Jackson ex dem. Beaver v. Stiles — 1 Cow. 222

Majority

p. 222

Jackson, ex dem. Beaver, against Stiles, Humphry, tenant.

Headnote

Where a printed declaration and notice in ejectment was served upon an illiterate tenant, who was told merely that they were a declaration in ejectment, without any farther explanation, But it appeared from circumstances that he must have known the nature of the papers, the court considered this equivalent to a technical service.

Whether the tenant is in possession, is not a question Upon the merits, but merely ofirregularity, and affidavits may be heard uponitonboth sides.

It must appear by affidavit, that the declaration and notice were served upon the tenant in possession, before a default can be taken against Lie casual ejeptor.

Ejectment. Motion to set aside the declaration, default and all subsequent proceedings, on the ground of irregularity in serving the declaration and notice from the casual ejector, upon the tenant.

The declaration and notice were printed: and when they were delivered to the tenant, he was informed, merely, that

p. 223

they were a declaration in ejectment, and they were not farther read or explained. The defendant, however, afterwards offered to settle the suit, by an exchange of lands with the lessor of the plaintiff. He had consulted an attorney and done some other acts, shewing that he must have understood the nature of the papers served upon him. He had before been a party in ejectment. He swore that he was an illiterate man, and that he was not the tenant in possession; but made no general affidavit of merits. And affidavits were produced on the part of the plaintiff, satisfactory to the Court, that .he was the tenant in possession.

Although the service was not, perhaps, technical-» correc^ we deny the motion, under the circumstances of this case. As the tenant was not deceived or mislead,^[1] we consider it equivalent to a technical service. The whole is a mere question of regularity, as it appears upon the papers. The plain tiff is bound, at his peril, to serve the declaration upon the tenant in possession.^[2] There must be an affidavit of this filed, to warrant a judgment by default against the casual ejector. • That must have been done in this case. The tenant’s affidavit, that he was not in possession, cannot be considered as an affidavit of merits. It may, therefore, be

(a) (a) Vid. Ryers v. Hillyer, 1 Caines, 112. Parkman v. Sherman, id. 344, Batten v. Harrison, 3 B. & P. 1.

(b) (b) 5) Vid. Adams on Ej. 209-10. Tidd, 6th ed. 509. 1 Ch. Rep. 118. n. (a) aoc.

p. 225

■contradicted, and the balance of testimony is that he was in possession. But though we deny the motion^ we direct it to hemade a part of the rule, that, on filing an affidavit of merits within thirty days, the default be set aside, and the tenant let in to defend, on payment of the costs.

Rule accordingly,^[3]

(c) (c) This decision, accords with the latest English decisions on this subject, which determine, that if the affidavit of service only state that the notice was read, this .will not be sufficient, unless the tenant afterwards acknowledge that he understands the meaning and intention of the service; but with such acknowledgment the service will be good, without any statement of the reading or explanation of the notice or service. (Doe, d. Whitfield, v. Roe, K. B. T. T. 1815, M. S. Same, d. Quintin, v. Roe, K. B. T. T. 1816, M. S. Adams, 217.)