any place. But in cases where the tenant in possession cannot be served, service on the wife of such tenant must be either on the land in question, or at the dwelling-house of the husband. In this case, from the fact of the wife being served on the premises, or at the dwelling-house of the husband though not on the premises, the court presumes that the parties are living together as man and wife, and that the husband has notice of the proceedings: and on this presumption, such service is deemed good (f). Where premises demised to one person, have been underlet to others, it is necessary to serve separately all the under-tenants (g). Service on one of several joint-tenants has been held sufficient (h). So service on the messenger in possession of the premises, and on the official assignee, the tenant being bankrupt (i). Where the tenant in possession had rendered the premises inaccessible, and had evaded personal service, the court held it sufficient to leave the declaration and notice at the counting-house of the tenant in possession (k). Where a tenant in possession had absconded, leaving the key of his house in the hands of a broker, with instructions to let the house; it was held, that service on the broker, and fixing a copy on the door of the house was sufficient (l); but wherever the service is upon the agent of the person in possession, the agency ought to be distinctly sworn to in moving for judgment (m). Where lodgers in a house cannot be served, service on the keeper of the house at the house is sufficient (n). Personal service on a lunatic in an asylum, no committee having been appointed, and a copy of the declaration having been also served upon the lunatic's servant upon the premises, has been held sufficient (o). In ejectment for part of the bed of a canal, service of the declaration on the clerk of the canal company (which was a corporation), at their office, was held sufficient (p). Service on the servant, child, or niece, of the tenant in possession, on the premises, is good service, provided the service be afterwards acknowledged by the tenant himself (q); an acknowledgment by his wife is not sufficient (r). If the tenant or his wife refuse to receive the writ, a copy of it should be left for them, or affixed to the premises: so, if there be not any person in possession of the thing demised, a copy of the writ should be affixed to some conspicuous part. Where there is any thing unusual in the manner of serving the writ, it should appear (by affidavit) to the court or judge on moving for the rule or order for judgment; and if the court or judge be satisfied that the tenant has had notice of (f) Doe v. Bayliss, 6 T. R. 765. (n) Doe v. Roe, 1 D N. S. 261. (0) Doe v. Roe, 3 M. & G. 87. (p) Doe v. Roe, 10 M. & W. 21. (q) Roe v. Doc, 14 East, 441; Doe v. Roe, 2 M. & W. 374. (r) 1 B. & P. 384. the declaration, the rule or order may be absolute in the first instance (s); if doubtful, a rule or order will be granted requiring the tenant to show cause why the service should not, under the special circumstances, be deemed sufficient, and they will prescribe the mode of serving the rule or order (t). By 112 R. G. Hil. T. 1853- No judgment in ejectment for want of appearance or defence shall be signed without first filing an affidavit of the service of the writ, or, where personal service has not been effected, without first obtaining a judge's order or rule of court authorizing the signing of such judgment, the rule or order or duplicate thereof to be filed, together with a copy of the writ. No time is fixed within which this application must be made; but it may be made at all events in the term following the expiration of the time limited for appearance, and (semble) within a reasonable time, without reference to any term (u). Where the tenant in possession is merely an under-tenant to some other person, as soon as the writ in ejectment is delivered to him, he is obliged by the C. L. P. Act, 1852, s. 209 (x), to give notice of such delivery to his landlord, under pain of forfeiting three years' improved or rack rent of the premises holden, i. e. not the rent actually reserved, but such a rent as the landlord and tenant might fairly agree upon at the time of serving the writ, if the premises were then let (y). This penalty does not attach to the tenant of a mortgagor, who omits to give him notice of an ejectment brought by the mortgagee; for the statute only extends to cases where ejectments are brought inconsistent with the landlord's title. Buckley v. Buckley, 1 T. R 647. By sect. 172-Any person not named in the writ shall, by leave of the court or a judge, be allowed to appear and defend, on an affidavit that he is in the possession of the land either by himself or his tenant (2). Actual possession under a claim of right is, it seems, sufficient, but not mere legal possession, e. g. a plaintiff in ejectment who has obtained judgment but has not been put into possession. Croft v. Lumley, 4 E. & B. 608. Where, however, the landlord complies with the requisites of the 172nd section, he is entitled to be let in to defend. Butler v. Meredith, 11 Exch. 85. Under the 11 Geo. II. c. 19, s. 12, the following persons were admitted to defend :- Devisee in trust; Lovelock v. Dancaster, 4 T. R. 122: Mortgagee under the defendant;-Doe v. Cooper, 8 T. R. 645. The following were not deemed landlords within the meaning (s) Doe v. Roe, 7 Dowl. 121. (t) See Sprightley v. Dunch, 2 Burr. 1116; Fenn v. Denn, 2 Burr. 1181; Lessee of Methold v. Noright, 1 Bl. R. 290; Gulliver v. Wagstaff, 1 Bl. R. 317; Doe v. Roe, 3 Dowl. 22. (u) Doe v. Roe, 9 M. & W. 426. 11 Geo. II. c. 19, s. 12. (y) Crocker v. Fothergill, 2 B. & Ald. 652. (2) A landlord might, previously to this enactment, be made defendant in ejectment under 11 Geo. II. c. 19, s. 13; or with the tenant, of common right. Fenwick v. Gravenor, 7 Mod. 70. of the act:-A devisee, where ejectment was brought by the heir; Roe d. Leake v. Doe, M. 29 Geo. II. C. B., Bull. N. P. 95.—A mortgagee, who had never received rent, ib.-The question to be considered in all cases is, whether the party applying to defend as landlord be himself interested in the event of the suit, or whether he be merely set in motion for the purposes of some other person: if the latter be the case, the court will not permit a mortgagee to defend as landlord (a).-Cestui que trust, not having been in possession; Lovelock v. Dancaster, 3 T. R. 783. In cases of vacant possession, no person claiming title was formerly let in to defend (b), and, it seems, could not be now, not being able to make the necessary affidavit. In Martin v. Davis, 2 Str. 914, the court refused to let a parson defend for right to enter and perform divine service only. If If a party should be admitted to defend as landlord, whose title is inconsistent with the possession of the tenant, the plaintiff may apply to the court or a judge, and have the rule discharged with costs (c); but, if that course be not adopted, and the party continue upon the record as defendant, he will not be allowed to set up such inconsistent title as a defence at the trial, as where the tenant in possession came in under the plaintiff, and had paid rent to him under an agreement that had expired (d), for if a person defends as landlord, in the right of the tenant, and that fails, his right must fail too (e). By sect. 173-Any person allowed to defend for property, of which he is in possession by his tenant only, shall state in his appearance that he defends 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." He cannot, for instance, set up the want of a notice to quit from the plaintiff to the tenant in possession, where the tenant has suffered judgment by default (f). Secus (semble), where the tenant defends with him (g). Generally, however, the landlord may set up any defence that the tenant might himself have set up (h). VII. Of the Proceedings under 15 & 16 Vict. c. 76, s. 210, in order to obviate the Difficulties attending Re-entries at Common Law, for Non-payment of Rent Arrear. By 15 & 16 Vict. c. 76, s. 210 (i)-In all cases between landlord and tenant, whenever half a year's rent shall be in arrear, and the landlord has a right of entry for non-payment thereof (k), he may, without a formal demand or re-entry, serve a writ in ejectment (1); or, in case the same cannot be legally served, or no tenant be in actual possession, affix a copy thereof upon the door of any demised messuage; or, in case such ejectment shall not be for the recovery of any messuage, then upon some notorious place of the lands, &c., comprised in such writ; and such affixing shall be deemed legal service; and in case of judgment against the defendant for non-appearance, if it shall appear by affidavit, or be proved on the trial, in case the defendant appears, that half a year's rent was due before the writ was served, and that no sufficient distress was to be found on the premises countervailing the arrears then due, and that the lessor had power to re-enter; then, and in every such case, the lessor shall recover judgment and execution, in the same manner as if the rent in arrear had been legally demanded and re-entry made, &c. By sect. 112-If the tenant, at any time before the trial, shall pay or tender to the landlord or his attorney, or pay into court, the rent arrear and costs, all further proceedings on the ejectment shall be discontinued (m). The statute only applies to cases where the right of re-entry is absolute, and the lease upon such re-entry forfeited, and not to a right to re-enter and hold "till the rent be satisfied," although in such a case the landlord might maintain ejectment at common law, complying with the requisite formalities of demand (n). So, if the time (if any) allowed to the tenant for payment of the rent, after it becomes due and before the right of re-entry accrues, has not expired when the writ is served, the ejectment is too early (0). The right of re-entry must be taken to have accrued on the day when the forfeiture would have accrued at common law, if the rent had been then duly demanded (p). The words, "no sufficient distress to be found on the premises," mean no sufficient distress which can be got at; hence, where the outer door was locked, so that the landlord could not get at the premises, it was held, that there was not any sufficient distress; for there was not any available distress. Doe v. Dyson, M. & M. 77. Goods are not "to be found" on premises within the statute, unless a broker (k) By the common law the demand of rent must have been made-upon the exact day when the forfeiture accrued,—for the precise rent, at the proper place of payment, and at a convenient hour before sunset, See 1 Wms. Saund. 286, b, n. (16). (1) He cannot enter without a demand. Hill v. Kempshall, 7 C. B. 975. (m) Before the 4 Geo. II. c. 28, courts of law and equity exercised a discretionary power of staying the lessor from proceeding at law, in cases of forfeiture for nonpayment of rent, by compelling him to take the money due to him. Archer v. Snapp, Andr. 341; 2 Salk. 597; 2 Vern. 103; 1 Wils. 75; 2 Str. 900. (n) Doe v. Bowditch, 8 Q. B. 973. But where the relationship of landlord and tenant does not exist, no demand is, it seems, necessary. Doe v. Horsley, 1 A. & E. 766. (0) Doe v. Roe, 7 C. B. 134. (p) Doe v. Shawcross, 3 B. & C. 752. using reasonable diligence would be able to find them (q). "Countervailing the arrears then due,"-i. e. all the arrears, and not merely half a year's rent where more is due (r). A landlord does not waive his right of re-entry by taking an insufficient distress, nor by continuing in possession under such distress after the expiration of the time for the payment of the rent (s); unless by taking such distress the amount due is reduced to less than half a year's rent. It is sufficient for the plaintiff to show that on some day between the time when the right of re-entry accrued and the service of the writ there was no sufficient distress on the premises, and it then lies on the defendant to show the contrary (t). Landlord, having a right of re-entry for non-payment of rent, brought an ejectment, and proved a demand of half a year's rent, after the day on which it was due, and a refusal on the part of the defendant to pay it before the re-entry. It appeared that there was a sufficient distress on the premises during the whole time. It was held, that the plaintiff could not recover, either at common law, or under the statute; not by the former, because the rent was not demanded on the day when it became due; nor by the latter, because there was a sufficient distress on the premises (u). Upon a lease reserving rent payable quarterly, with a proviso, that if the rent were in arrear twenty-one days after the day of payment, being lawfully demanded, the lessor might re-enter: it was held, that, five quarters being in arrear, and no sufficient distress on the premises, the lessor might re-enter without a demand (x); for the words so used refer to a lawful demand at common law, which the statute expressly dispensed with (see Doe v. Shawcross, 3 B. & C. 752). It would, it seems, be otherwise, if the lease contained an express covenant that the landlord would not re-enter without demand, (per Abbott, C. J., Doe v. Wilson, 5 B. & Ald. 385;) i. e., not a demand made with all the strictness of the common law, but an effectual demand, (per Ellenborough, C. J., Doe v. Alexander ;) and it is clear, that at common law a demand may be dispensed with by the stipulation of the parties. Doe v. Masters, 2 B. & C. 490. The application to the court on the part of the tenant, to stay proceedings, must, by the very terms of the act, be made before trial (y). In ejectment by a landlord, the tenant moved to stay proceedings, upon payment of the rent and costs. On a rule to show cause, it was insisted, for the plaintiff, that the case was not within the preceding statute; because it was not an ejectment founded singly on the statute, but it was brought likewise on a (q) Doe v. Franks, 2 C. & K. 678. (u) Doe v. Windlass, 7 T. R. 117. |