service. cient distress on the premises must be positive; (m) Affidavit of the deponent's belief will not do.(n) Where the affidavit of service in ejectment appears defective, a party who has been served cannot take advantage of the defect before judgment is marked.(0) An agent of the lessor of the plaintiff may make affidavit of rent in arrear, required in ejectment on a vacant possession. (p) Where 'a declaration in ejectment was served on the son of the tenant in possession, upon an affidavit that the father was in the house at the time, the court refused to interfere, on counter affidavits that he was not at home, but absent on business, and not to avoid service, the affidavits not negativing that the son gave the declaration to the father before the first day of term. (q) An affidavit of the service of a declaration in ejectment must state that the party served is tenant in possession. (r) The affidavit of service of a declaration in ejectment on an administratrix must call her tenant in possession, and state that the property was leasehold. (s) The affidavits in support of an application for judgment against the ejector must swear to a service on the "tenant in possession," the word "occupier" not being sufficient. (t) An affidavit of service of a declaration in ejectment upon the person in possession is sufficient. (u) A memorandum at the back of a declaration in ejectment of the service four years back, in the handwriting of a person who had since left the country; held, not sufficient to allow judgment to be entered up against the casual ejector.(v) Explanation It was at one time held, that the affidavit must of service. show that the notice was read and explained to the tenant; for if it only stated it to have been read, it (m) Doe v. Roe, 2 Dowl. P. C. 413. (n) As to the title of affidavits, see Doe v. Roe, 3 Tyr. 602. 2 Dowl. P. C. 55. (0) Gabbot v. Ejector, 1 Alcock & Napier, 184 (Irish). (p) Doe d. Charles v. Roe, 2 Dowl. P. C. 752. Doe d. Jackson v. Roe, 4 Dowl. P. C. 609. tion. was not sufficient, unless the tenant had since ac- Explana knowledged that he understood the meaning and intention of the service.(w) But with such an acknowledgment, the service was good without any statement of the reading or explanation. (a) It is now held that it will suffice to read it over without explaining it, or to explain it without reading it over.(y) If the tenant in possession reads over, and says he understands the nature and object of a declaration in ejectment, it is not necessary for the person serving it to read it over or explain it.(z) A rule nisi was granted, where it appeared from circumstances that the parties understood the contents of the declaration, though the affidavit did not state that it was explained to them. (a) So where the declaration was put through an iron grating to the defendant, who was in Newgate. (b) So where the declaration was put on a table before the defendant, but could not be delivered to him, as the defendant's son prevented the person from serving it. (c) Service on the wife on the premises, and reading over the notice without explaining it is sufficient. (d) A rule nisi can only be obtained in the first instance, when the affidavits do not state that the import of the declaration was explained to the servant to whom it was delivered.(e) The court will grant a rule nisi for judgment Rule nisi, against the casual ejector, where the nature and object of the process has been explained to the tenant, but in consequence of his refusal the declaration has not been left with him.(ƒ) Where it became necessary to employ an interpreter, in order to explain to the tenant the object of the declara (w) Doe d. Whitfield v. Roe, Ad. Eject. 214. (r) Doe d. Quintin v. Roe, Ad. Eject. 215. S. P. Doe d. Thompson v. Roe, 2 Chit. 186. (y) Doe v. Roe, I Dowl. P. C. 428. (2) Doe d. Jones v. Roe, 1 Dowl. P. C. 518. (a) Anon, 2 Chit. 184. (b) Wright d Bailey v. Wrong, 2 Chit. 185. (c) Anon, 2 Chit. 185. (d) Doe v. Roe, 2 Dowl. P. C. 199. Anon, 2 Chit. 182. (f) Doe d. Forbes v. Roe, 2 Dowl. P. C. 452. Acknowledgment of service. Service on wife. Other matters. tion in ejectment, but who was not upon oath, it was held that the explanation was sufficient to entitle the lessor of the plaintiff to sign judgment.(g) An acknowledgment by the tenant in possession of the receipt of the declaration in ejectment, made on the first day of term, January 12, but not saying when it was received, is not sufficient to make good a service on his son on January 10,on the premises. (h) On motion for judgment against the casual ejector, if service of declaration is to be proved by the tenant's acknowledgment made in term, it must appear by such acknowledgment that the service was before the term. (i) Service of a declaration in ejectment upon the tenant's daughter before the term, and an acknowledgment by the tenant within the term; held sufficient to ground a motion for judgment against the casual ejector.(j) If the wife on the premises has received the declaration, and prevents the person serving it from giving explanation, or reading it over, the service is sufficient.(k) The court granted a rule nisi for judgment against the casual ejector on an affidavit, merely stating that the tenant "appeared to be acquainted with the intent of the declaration," without stating that it had been either read or explained to him. (7) The affidavit should not be intituled in the real names of the defendants. (m) Where the lessors of the plaintiffare described to be executors, the affidavit of service need not, in stating the name of the cause, notice the characters of the lessors stated in the declaration.(n) If the affidavit be made by a person who saw the declaration served, and heard it explained to the tenant in possession it is sufficient. (0) (9) Doe d. Probert v. Roe, 3 Dowl. P. C. 335. Doe d. Martin v. Roe, 1 Har. & Woll. 46. Doe d. Marshall v. Roe, 2 Adol. & Ellis, 588. 4 Nev. & M. 553. (k) Doe d. George v. Roe, 3 Dowl. P. C. 541. (1) Doe d. Downes v. Roe, 4 Dowl. P. C. 565. (n) Doe d. Jenks v. Roe, 2 Dowl. P. C. 55. S. C. nom. Doe v. Roe, 3 o) Goodtitle d. Wanklen v. Badtitle, 2 B. & P. 20. The court granted a rule nisi, where the affidavit was jointly made by the person who served the declaration and the housekeeper of the tenant in possession; the former stating a service on the latter with the proper explanation, and the latter stating that she had delivered the declaration to her master.(p) Affidavits may be sworn before attorneys in the cause. (q) (p) Doe v. Roe, 2 Dowl. P. C. 198. Cognovit. I DO hereby confess this action, and that the said John Doe is entitled to recover his term, [or terms] yet to come of and in, &c., (here set out the parcels as in the declaration,) with the appurtenances, situate in B., in the county of S., the tenements in the declaration in this cause mentioned; and also that he hath sustained damage by reason of the trespass and ejectment, [or trespasses and ejectments,] in the said declaration mentioned to the sum of one shilling, besides his costs and charges in this behalf, to be taxed by the master, [or in C. P. Prothonotary]. And in case I shall make default in delivering up possession of the premises aforesaid, or in the payment of the damages and costs as aforesaid, on the day of, &c., next, then the landlord shall be at liberty to enter up judgment for his term [or terms] of and in the said premises, and for his said damages and costs above acknowledged; as also for the costs of entering up such judgment and of suing out execution. And that he shall be at liberty thereupon forthwith to sue out execution for the same, together with sheriff's poundage, costs of levy, and all other incidental expenses. And I do hereby agree [to withdraw the plea (r) When the tenant has appeared, and entered into the common consent rule, he then becomes defendant, after which a cognovit may be accepted from him by the plaintiff. By taking a cognovit the lessor of the plaintiff is enabled to recover the costs of the action against the defendant by the execution, instead of resorting to the action for mesne profits. |