thereof upon of vacant possession, by posting a copy The service of the writ of ejectment, by analogy to the service of the declaration and notice under the old practice, must be effected by a delivery of a copy of the writ (the original writ being exhibited, if required, at the same time) to the tenant himself, or to his wife, or to some member of his family, in which latter case it must be shown that the writ came to his knowledge. It was always usual for the person who served it, to read over and explain the nature and meaning of the declaration to the person upon whom it was served; a proceeding far from unnecessary, when it is recollected what the declaration by John Doe against Richard Roe, and Richard Roe's friendly notice to the tenant in possession, respectively contained. Accordingly, this explanation was not dispensed with, except in those cases in which the person to be served dispensed with or rejected the explanation offered (see cases supra), or was an attorney, who would, of course, understand the proceeding without explanation. The necessity of explanation under the present practice, has not been formally disavowed by the courts; and in the only reported case wherein the question was raised, it was left undetermined (Edwards v. Griffiths, 3 C. L. R. 153). Although the present writ explains itself, and the R. G., H. T. 1853, r. 112, seems to ignore the necessity of explanation; it may be as well, as the statute is express in its terms, for every person serving a writ in ejectment to read it over and explain its nature to the person to be served, and to state his having done so in the affidavit of service, when such affidavit is made. As many copies as there are persons named in the writ must Service of be made, and a copy served on each person so named. Accept- writ, how ance of the copy of the writ by the person to be served is not effected. necessary. It is enough that the copy is tendered, and its nature stated (Doe d. Courthorpe v. Roe, 2 Dowl. 441); but the nature of the proceeding need not be stated, if the party, by his acts, dispenses with or prevents it (Doe d. George v. Roe, 3 Dowl. 541). Personal service on the tenant in possession himself, may be On tenant. made on the premises or elsewhere (Savage v. Dent, 2 Str. 164); and either within the jurisdiction of the court, or abroad (Doe d. Daniel v. Woodruffe, 7 Dowl. 494). The service must be on the person in actual possession, to whom the writ is directed; that is, on the sub-tenant (for instance), in ejectment by landlord against tenant, where the premises have been sub-let (Doe d. Darlington v. Cock, 4 B. & C. 259). Showing the writ to the tenant on the premises, and telling him the nature of it, is good service if the tenant goes away and refuses to listen (Doe d. Roberts v. Roe, 6 Sc. N. P. 633). So if the writ is shown to the tenant off the premises, and attempts are made to serve him with a copy and to explain the matter, and a copy is afterwards left for him on the premises with a servant, it is good service (Doe d. Hope v. Roe, 3 C. B. 771). person serving the writ, after stating his business, is turned out of the house when he is attempting to serve the writ, a copy thrust So if the On tenant's wife on the premises. On child, servant or member of family of tenant. Bankruptcy of tenant. Death of tenant. Where tenant a lunatic. Service on under the door will be good service (Doe d. Frith v. Roe, 3 Dowl. 569). So if the other parties eject the process-server from the presence of the tenant in possession, and prevent the complete service (Doe d. Mann v. Roe, 11 M. & W. 77). Service on the wife of the tenant, either on the premises (Goodright v. Thrustout, 2 Wm. Bl. 800) or at the husband's house is sufficient (Doe d. Graef v. Roe, 6 Dowl. 456). The reason that it is necessary to state in the affidavit that service on the wife was at the husband's house, is to show that they were living together as man and wife (Doe d. Morland v. Baylis, 6 T. R. 765). It is enough if the woman on the premises stated herself to be the wife of the tenant; and the person serving the writ swears that he believes such statement to be true (Doe d. Grange v. Roe, 1 Dowl. N. S. 274). An affidavit of service on the wife should state (if possible) that the wife was living with the husband at the time (Doe d. Boullot v. Roe, 7 Dowl. 463). Service of the declaration and notice might, by the former practice, have been effected by leaving the copy with a child, servant, or other member of the family of the tenant; but it was necessary that the service effected in this manner, should be on the premises themselves; and that the fact of the declaration and notice having come to his hands before the term, should have been subsequently acknowledged by the tenant himself (Doe d. Ginger v. Roe, 9 Dowl. 336; Doe d. Royle v. Roe, 5 C. B. 256, 258, where the more recent cases are collected; Doe d. Watson v. Roe, 5 C. B. 521). If an acknowledgment to that effect had been made by the tenant's wife only; it afforded ground for a rule nisi (Doe d. Chaffey v. Roe, 9 Dowl. 100; and see Doe d. Royle v. Roe, supra). Where the tenant had become bankrupt, a service on the messenger in possession of the premises, and on the official assignee, has been held insufficient (Doe d. Baring v. Roe, 6 Dowl. 456). Where the tenant had died, a service on the widow in possession, who was administratrix, was held sufficient ( Doe d. Pamphilon v. Roe, 1 Dowl. N. S. 186). Where a servant of the deceased remains in possession, the claimant ought to endeavour to obtain possession; and if the servant resists, he may be treated as tenant (Doe d. Atkins v. Roe, 2 Chit. 179). If the tenant is a lunatic, the service should be on his committee, if he has one, and not on a servant (Anon. Lofft. 461). If there is no committee, service on the lunatic is sufficient (Doe d. Gibbard v. Roe, 9 Dowl. 844). Service on a lunatic's daughter, who conducted the lunatic's business, was held insufficient (Doe d. Brown v. Roe, 6 Dowl. 270). Service on one of several joint tenants is sufficient (Doe d. joint tenants. Clothier v. Roe, 6 Dowl. 291); so is service on one of several partners (Doe d. Overton v. Roe, 9 Dowl. 1039; Doe d. Bennett v. Roe, 7 C. B. 127). On several tenants. If there are several tenants in possession, a copy of the writ ought to be served on each (B. N. P. 98; and Doe v. Cock, supra). If the service is on the original tenant, where there are several sub-tenants, and he appears and defends, he cannot afterwards object that the sub-tenants, and not himself, were in possession (Roe v. Wiggs, 2 New Rep. 330). Service on a landlord, subletting to weekly tenants, and occupying no part of the premises himself, is not sufficient (Doe d. Hubbard v. Roe, 2 Har. & Woll. 333); aliter if the premises have been for some time unoccupied (Doe d. Hayne v. Roe, 2 Will. Wol. & Dav. 72). As to service on public companies, see the observations as to On public the service of writs of summons (p. 13, ante), Doe d. Bromley v. companies. Roe (8 Dowl. 858), and Doe d. Bayes v. Roe (16 M. & W. 98). Service on churchwardens must be on all the churchwardens On church(Doe d. Weekes v. Roe, 5 Dowl. 405). Service on the surviving wardens, de. lessees, and on the sextoness of a dissenting chapel has been held sufficient (Doe d. Kirchner v. Roe, 7 Dowl. 97); and see Doe d. Dickens v. Roe (7 Dowl. 121); and Doe d. Smith v. Roe (8 Dowl. 509), where service on the minister and one trustee as to the chapel, and on the master as to the school; and sticking up a copy of the declaration and notice upon the doors of each building, was held sufficient. 171. The persons named as defendants in such writ, Appearance or either of them, shall be allowed to appear within the time appointed. The appearance of the tenant or tenants in possession to the writ should be in the form prescribed by s. 31. An appearance by a landlord must be according to s. 173. The appearance ought to be entered within the sixteen days under s. 169; an appearance may, of course, be entered after the expiration of that time, if judgment has not been signed. It may be doubtful now, for the provisions of s. 29, ante, apply to writs of ejectment; although these writs are now practically writs of summons in ejectment. As to limiting the defence to a part of the premises claimed, see s. 174. of persons named in the writ. of persons 172. Any other person not named in such writ shall, Appearance by leave of the court or a judge, be allowed to appear not named. and defend, on filing an affidavit showing that he is in possession of the land either by himself or his tenant. This section is more general than 11 Geo. 2, c. 19, s. 13; Who may which permitted the landlord to make himself defendant in eject- appear and ment. The word "landlord" in that section has been construed defend. to include all persons claiming title consistent with the possession of the occupier. Thus the court permitted a mortgagee out of possession to be made defendant (Doe d. Tilyard v. Cooper, 8 T. R. 645); but in such a case a mortgagee must show that he has a bona fide interest in the result (Doe d. Pearson v. Roe, 6 Bing. 613). An heir who had never been in possession (Doe d. Hibblethwaite v. Roe, 3 T. R. 783, n.), and a devisee in trust in the same position (Lovelock v. Dancaster, 4 T. R. 122), were admitted to defend; so under this section, the sub-lessee of three private boxes in a theatre was allowed to come in and defend, to the extent of his interest, an ejectment by the lessor against the lessee of the theatre for forfeiture (Croft v. Lumley, Ex parte Lord Ward, 4 E. & B. 608); but a cestui que trust, who had never Landlord. Affidavit for leave to appear. When to apply for leave to appear. Form and been in possession, was not admitted (Lovelock v. Dancaster, 3 T. R. 783) under the previous enactment. And under this section, an elegit creditor of a lessee who had executed the elegit, but who had not had actual possession delivered under a writ of possession, is not entitled to appear and defend an ejectment by the lessor against the lessee for forfeiture (Croft v. Lumley, Ex parte Hughes, 4 E. & B. 614; Thompson v. Tomkinson, 11 Exch. 442). And a mere remainderman has been refused leave to appear upon the ground that possession, either by himself or by his tenant, must be shown by an applicant under this section ( Whitworth v. Humphries, 5 H. & N. 185). Where a person claims in opposition to the title of the tenant in possession, it would be unjust to make him a co-defendant; the defences might clash (Driver v. Lawrence, 2 Wm. Bl. 1259). No person claiming adversely will be admitted to defend (Doe d. Horton v. Rys, 2 Y. & J. 88); and if admitted, the claimant may apply (under s. 176) to strike out the appearance. But if the claimant does not do so, and the party continues on the record, he will not be allowed to set up such inconsistent title as a defence at the trial (Doe d. Mee v. Litherland, 4 A. & E. 784; Doe v. Challis, L. J. 20, Q. B. 278). It is not necessary for the landlord to become a defendant in order to make his title admissible in evidence. He may, with the tenant's consent, defend in the tenant's name. In an action so defended, where the claimant, having knowledge thereof, obtained from the tenant a retraxit of the plea, and a cognovit of the action, the court set aside the judgment (Doe d. Locke v. Franklin, 7 Taunt. 9). See as to liability for costs, where ejectment defended in the name of tenant by strangers, Hutchinson v. Green-↓ wood, L. J. 24, Q. B. 2. The affidavit of a person applying for leave to appear and defend, must show that he is in possession of the premises. In an action brought to enforce an elegit, a corporation was not permitted to defend without admitting themselves to be in possession; although the defence was, that the premises were not possessed by them for any but public purposes, and therefore were not liable to execution (Doe d. Parr v. Roe, 1 Q. B. 700; see also Doe v. Challis ; Croft v. Lumley, Ex parte Hughes, ubi supra). Where the person applying for leave to appear and defend resides abroad, he may be required to give security for costs (Doe d. Hudson v. Jameson, 4 Man. & R. 470). The application for leave to appear and defend should be made as soon as the person has notice of the writ, so that an appearance may be entered within the sixteen days allowed for doing so, and, if possible, before judgment. Further time to appear, and a stay of proceedings, may possibly be obtained from a judge at chambers, should either be necessary. If judgment has been signed (s. 177), the application must also be to set aside the judgment. If the application be made in due time, terms cannot be imposed by the court upon a landlord who shows himself to be in possession by his tenant (Butler v. Meredith, 11 Exch. 85). As to form, and notice of appearance by a person let in to notice of ap- defend, see R. G., H. T. 1853, r. 113. pearance. The court will not allow the possession to be changed where there has been no trial or opportunity of trying the cause; and therefore will set aside a regular judgment, and admit the land lord to defend, if the tenant has not given him notice (Doe d. Troughton v. Roe, 4 Burr. 1996; and see Dobbs v. Passer, 2 Str. 975). And after judgment signed and execution executed, a judge at chambers may order the judgment and subsequent proceedings to be set aside on payment of costs, and a party to be let in to defend as tenant; as where the attorney, having been duly instructed, inadvertently neglected to appear in time (Doe d. Mullarky v. Roe, 11 A. & E. 333). But as a general rule, the court will not interfere after execution executed (Goodtitle v. Badtitle, 4 Taunt. 850; Doe d. Thompson v. Roe, 4 Dowl. 115); unless, indeed, in the case of inadvertence, as in Doe v. Mullarky (supra), or in Doe d. Butler v. Roe (2 Har. & W. 130), where, after an action for mesne profits had been commenced, the court set aside all the proceedings in the ejectment, it being shown that the landlord had never got the notices, his wife having locked them up, thinking that they related to a former action and were of no importance. In the case of collusion between the tenant and the claimant, the court will always interfere (Goodtitle v. Badtitle, supra; Doe d. Grocers' Company v. Roe, 5 Taunt. 205). When the court sets aside a regular judgment, it is generally on payment of costs. If a judgment is signed irregularly, the judgment and execution will be set aside, and generally with costs (Goodtitle v. Badtitle, 9 Dowl. 1009); and the court may impose the terms on the defendant that he shall bring no action (Adlam v. Noble, 9 Dowl. 322). When a judgment, under which possession has been delivered, Restitution. is set aside, the proper course to obtain restitution is to apply to the court in the first instance for a rule requiring possession to be restored, which will be enforced by attachment, if necessary (Corbett v. Nicholls, 2 L. M. & P. 87). If this is ineffectual (as where the claimant has absconded), a writ of restitution may then be issued (Doe d. Whittington v. Hards, L.J. 20, Q. B. 406). and defence 173. Any person appearing to defend as landlord in Appearance respect of property, whereof he is in possession only by landlord. by his tenant, shall state in his appearance that he appears as landlord; and such person shall be at liberty to set up any defence which a landlord appearing in an action of ejectment has heretofore been allowed to set up, and no other. See R. G., H. T. 1853, r. 113, where landlord not named in writ. A landlord admitted to defend, under the former practice could not avail himself of any defence which the tenant was precluded from setting up (Doe d. Willis v. Buckmore, 9 A. & E. 662). Nor could he avail himself of every defence that the tenant had; thus, he could not set up the want of a notice to quit to the occupier (Doe d. Davis v. Creed, 5 Bing. 327). The tenant will not, by a landlord being joined, be precluded from setting up any defence which he may have as tenant in possession (Doe d. Wawn v. Horn, 3 M. & W. 333). 174. Any person appearing to such writ shall be at liberty to limit his defence to a part only of the Notice to defend for part only. |