Of the Delivery of the Declaration in Eject ment. A Copy of the declaration, and notice thereon, must be delivered perfonally to the tenant or his wife, to whom, at the time of delivery, the notice fhould be read over, or an account given of the contents and meaning thereof. And a delivery to his fon, daughter, or fervant, he being abroad, or out of the way, is not a good delivery, unless it evidently appears to the court, that fuch declaration and notice came to his hands before the effoign-day of the term; and that on receipt thereof he very well understood the contents and meaning of the notice; and in fuch cafe it has been held a good delivery. Salk. 225. pl. 5. The tenant in poffeffion acknowledged the receipt of a declaration in ejectment on a Sunday, which, before the effoign-day, had been delivered to his daughter, and she made acquainted of the contents. 2 Barnes 148. But q. for a declaration in ejectment is in the nature of process, and no procefs fhall be ferved on a Sunday, by the ftat. 29 Car. 2. c. 7. f. 6. Though the delivery of a declaration, in another action, on a Sunday, had been held good; but that is not procefs. Upon affidavit that they had tendered a declaration in ejectment, and that the fervants refused to call their master, or receive it, faying, they had orders to take no papers; it was ordered, that leaving it at the houfe fhould be fufficient. Stra. 575. The declaration was tendered to the tenant in poffeffion, who refused it; whereupon it was left on the floor in his prefence; and he entering into a parlour, and fhutting the door, the perfon who fo tendered and left the declaration, read the notice aloud, fo that the tenant might hear it ; and this was held good fervice. The tenant fecreted himself in the house, so that he could not be perfonally ferved; whereupon, on motion for a rule to fhew cause why service of it on the fervant should not be good, the court ordered the rule to be ferved in that manner. The wife of the tenant in poffeffion, on a person's knocking at the door of the houfe in order to ferve the declaration, opened a wicket in the door, and looked through it, and was then acquainted with the contents of the declaration, and the English fubfcription was read to her; and immediately after, and before the declaration could be ten dered Of the Delivery of the Declaration in Eject ment. dered to her, the shut the wicket; whereupon the declaration was fixed upon the door, as by affidavit appeared; and it was fworn, that the tenant in poffeffion afterwards ac knowledged the receipt of the declaration on the day it was tendered to his wife and fixed upon the door; the service was held infufficient, because the tenant's acknowledgment that he received the declaration is not enough. An actual delivery, or tender, and refufal, ought either to be proved. or confeffed. Barnes 171. On motion for judgment, upon an affidavit, that tenant in poffeffion refufed to accept the declaration when tendered to him; that he was acquainted with the contents; and that he brought a gun, and swore he would fhoot the perfon who tendered the declaration, if he did not get off his land; whereupon the declaration was laid down on the ground in the presence of defendant and his man, whom defendant ordered not to take it up. The court were of opinion, that these circumstances amounted to good service, and made a rule for judgment, Per cur. It is the fame thing as a continual claim, where the party comes as near the land as he can to make his claim, for fear of his life: Barnes 174. The affidavit of fervice of declaration was, that deponent did ferve the wives of A. and B. who, or one of them, are tenants in poffeffion, &c. the court refused to make a rule for judgment; the affidavit is defective. Ibid. On motion for judgment against the cafual ejector, upon an affidavit, that the declaration was tendered to the wife of the tenant in poffeffion, who refufed to open the door of the house, but looked out of a parlour window, and was acquainted with the contents; and the subscription was read to her, after which the refufing to accept the declaration, it was put in at the window to her. The service was held fufficient. Barnes 178. The declaration was tendered to the wife of the tenant in poffeffion, upon the premiffes; fhe was acquainted with the contents thereof, and of the fubfcription, through a window, which the refused to open or receive the declaration; and thereupon the declaration was left upon the outfide ledge of the window. The perfon who tendered the declaration (wore, that he heard the woman's voice diftinctly through the window, and was well affured fhe heard what he faid, by the anfwers fhe gave him; the fervice was hel fufficient Of the Delivery of the Declaration in Eject ment. sufficient, and the common rule for judgment was made. Barnes 180. A declaration in ejectment ferved on the church-wardens and overfeers of a parish, who rented a house for harbouring fome of the parish poor, and did not otherwife occupy the houfe than by placing the poor in it, deemed fufficient fervice, and a rule made for judgment. Barnes 181. The declaration was left with the father of the tenant in poffeffion, with the ufual fubfcription, and he was acquainted with the contents; after which, and before the effoign-day, the tenant acknowledged the receipt of it. Held fufficient. Barnes 176. Affidavit of fervice of declaration on the wife of tenant in poffeffion, as fhe informed deponent, and as he verily believes; held fufficient. Barnes 194. The tenant fecreting himfelf, fo that he could not be ferved, the declaration wis delivered to the daughter,. who kept the house, and fhe made acquainted with the contents. A rule was made for the tenant to fhew cause, why fuch former fervice fhould not be deemed good. The rule to be ferved on the daughter at the house. On affidavit, that one of the tenants is a lunatic, and that one C. lives with her, tranfacts her business, and has the fole conduct thereof, and of her perfon, but would not permit the deponent to have accefs to her, in order to ferve her with the declaration; whereupon, he delivered it to tne faid C. and a rule was made for the lunatic and C. both to fhew caufe, why fuch fervice fhould not be good, and service of the rule on the faid C. to be good. On affidavit, that the tenant abfconded to avoid being served, and that she came into the poffeffion furreptitiously, and of fervice of the declaration on her fon, who is her fervant, manages her affairs, and lives in her family, a rule was made to fhew caufe, why fuch fervice fhould not be good, and leaving a copy of the rule at her houfe to be good fervice of the rule. The tenant in poffeffion abfconded, and on affidavit thereof, the court ordered that fervice of the declaration upon his niece, the only manager of the houfe, and refident in it, and fixing up another copy on the premifes, should be good; and made a rule to fhew caufe, why judgment fhould not be entered up against the cafual ejector. And ordered that fervice of this rule, on any perfon in the house, and Of the Delivery of the Declaration in Eject ment. and if no perfon there, then fixing the fame on the door, fhould be good fervice thereof. Burr. 4 pt. 1116. The tenant was perfonated at the time of fervice, by another who accepted the fervice in the name of the tenant ; and the court made a rule to fhew caufe, why it fhould not be deemed good fervice upon the tenant himself; and why judgment fhould not be figned against the cafual ejector, in default of his appearing; and that leaving a copy of this rule at his houfe, with fome perfon there, or if no one to be met with, affixing it on the door, fhould be good service thereof. Which rule was made abfolute on a proper affidavit. Burr. 4 pt. 1181. When the tenant is ferved with the declaration, a copy of the declaration must be made out on ftamps, to annex to an affidavit of service of the declaration on the tenant, in order to move for judgment on default of the tenant's appearance. Which affidavit must be to the following effect: In the King's Bench. John Den, on the demife of William laft A. B. of, &'c. gentleman, maketh oath, that he this Sworn, &c. A. B. This affidavit must be pofitive, that the tenant is tenant in poffeffion. Of moving for Judgment against the cafual ON Ejector. Nthe following affidavit, and default of the tenant's appearance, you move for judgment against the cafual ejector; which affidavit is delivered over to the clerk of the rules in B. R. or fecondary in C. B. when the motion is made to be filed; and then you draw up the rule, with the clerk of the rules in B. R. or fecondary in C. B. If the premiffes lie in London or Middlesex, and the notice. be to appear the first day of the next term, move for this rule the beginning of the term, and then the tenant has four days inclufive next after the motion to appear in*; but if the motion is made late in term, the court will not allow him more than one or two days; and will sometimes order the tenant to appear immediately, fo that the plaintiff may be able to give notice of trial within the term. But if the motion is not made before the last four days of the term, the tenant will then have, by the rule, until two days before the effoin day of the fubfequent term, to appear. But if the notice be to appear generally, then the tenant hath the whole term to appear in. And if the tenements lie in any other county than London or Middlefex, though the declaration be delivered, before the effoin day of Eafter or Michaelmas terms, yet the tenant has till four days before the next iffuable term, i. e. either Trinity or Hilary, to appear in C. B. till within four days exclufive, after the next iffuable term. And if the premises are in one of the northern counties, or where the affizes are held but once a year, the tenant has till four days next after the end of the term, preceding the affizes, to appear. The rule for judgment against the cafual ejector, is drawn out in the following manner, in the refpective courts: * But in C. B. in fuch cafe, by Reg. 32 Car. 2. " The plaintiff fhall take nothing by his motion for judgment, against the cafual ejector, for default of appearance, unlefs the motion be made within one week next after the first day of every Michaelmaş term, and every Eafter term; and within four days after the first day of every Hilary and Trinity term. VOL. II. M The |