initted the amendment, [2] and refused to allow the party to plead de novo, notwithstanding the case of Goodtitle v. Meymott.(x)

OF THE NOTICE TO APPEAR.(y)

The name of the tenant in possession [3] must be prefixed to the notice; and, when the possession of the disputed premises is divided amongst several, it is usual to prefix the names of all the tenants, to each separate declaration; although it does not seem necessary to prefix more than the name of the individual tenant, upon whom the particular declaration is served.(z)

(1) Doe, d. O'Connell, v. Porch -Coram Heath, J. Trin. Vac. 1814. MS.

(y) Appendix, No. 13.

(z) Roe, d. Burlton, v. Roe, 7 T. R. 477.

[2] Amendment, as to the place laid in the declaration in Eject ment granted, upon payment of costs, after the plaintiff had been nonsuited at the trial for the variance. Jackson ex dem. Sinclair & Al. vs. Bailey, 5 Cowen's Rep. 265.

[3] The "Revised Statutes" of New-York, Part 3, Chap. 5, Tit. 1, § 12, 13, 14 & 15, (Vol. 2, p. 305,) contain the following enactments. 12. To such declaration there shall be subjoined a notice in writing by the plaintiff or his attorney, addressed to the defendant, and notifying him,

1. That the said declaration will be filed on some day in the then next term of the court in which the action is brought, specifying such day, or if the same be served during the term of any court, that it will be filed on some day in such term, specifying the same:

"2. That upon filing the same, a rule will be entered, requiring such defendant to appear and plead to such declaration, within twenty days after the entry of such rule: and,

"3. That if he neglect so to appear and plead, a judgment by default will be entered against him, and the plaintiff will recover possession of such premises.

"13. If the premises are actually occupied, the declaration shall be served by delivering a copy thereof, with the notice above prescribed, to the defendant named therein, who shall be in the occupation thereof, personally, or by leaving the same with some person of proper age at the dwelling-house of such defendant, if he be absent.

"14. If the premises claimed are not actually occupied, the declaration and notice shall be served on the defendant named therein, personally, or if he cannot be found, by leaving the same with some person of proper age, at the residence of such defendant.

§ 15. But where the declaration shall have been served in any other manner than upon the defendant, personally, no rule to plead shall be entered, without the special order of the court."

The notice must require the tenant to appear,[4] and apply to the court to be admitted defendant instead of the casual ejector, within a certain time after the declaration is delivered; and the time when the notice should require the *tenant to appear and [ *206 ] make this application, is regulated by the locality of the premises.

When the premises are situated in London, or Middlesex, the notice should be for the tenant to appear "on the first day," (not the essoign day,)(a) or "within the four first days" of the term next after the delivery of the declaration; and this mode of expression should be strictly observed; for, although where the notice was to appear "in the beginning of the term," the court granted a rule for judgment against the casual ejector;(b) yet, where the notice was to appear "on the morrow of the Holy Trinity," the judgment against the casual ejector was set aside, upon the principle, that the notice was designed to inform the lay gents. of the time of appearing, and should therefore be expressed in such terms as they might understand. (c) It will, however, be sufficient if the notice be to appear generally of the term,[1] but the tenant will then have the whole term to appear in.

The notice usually specifies the term by name, in which the tenant is to appear, and the declaration should regularly be entitled of the term preceding; but, in a very recent case, where a declaration, delivered in Hilary vacation, was entitled of Easter term, and the notice was to appear on the first day of next term, the court granted the rule absolute for judgment against the casual ejector in the first instance during Easter term, considering that the tenant could not be misled by the wrong title

(a) Holdfast v. Freeman, Stran. 1019. (b) Tredder v. Travis, Barn. 175,

(c) Sel. N. P. 610.

Notice in Ejectment is in the nature of process, and cannot be aided by any statement of the person serving the declaration, or by the defendants' appearing and excepting, unless they also enter into the common rule. Craig vs. Clarke, 3 Marsh. Rep. (Ky.) 252.

[4] Notice in Ejectment to the defendant to appear "on the first day of the next term of the Circuit Court," without naming the court, is

bad. Beall vs. Siverts, 1 Marsh. Rep. (Ky.) 154.

Den vs

[1] The notice at the end of the declaration in Ejectment may be amend ed after service, by striking out one day and inserting another. Laring, 4 Halsted's Rep. 254.

to the declaration, so as to imagine he had until Trinity term to [*207] appear, inasmuch as the declaration was delivered, and the notice dated on a day antecedent to the essoign day of Eas

ter term.(d)

When the premises are situated in any other county than London or Middlesex, the notice should regularly require the tenant to appear generally in the term next ensuing the delivery of the declaration; but it will be sufficient when the proceedings are in the Common Pleas, if it require him to appear in the issuable term, next ensuing such delivery, although a nonissuable term intervene. Thus, when a declaration is entitled of Trinity term, and delivered during the long vacation, the notice may require the tenant to appear in Easter term.(e)

The declaration must be delivered before the essoign day of the term, in which the notice is given to appear. (f)[1]

The notice should regularly be subscribed with the name of the casual ejector, and formerly proceedings have been set aside for an irregular signature; but it is now sufficient, though certainly not correct; if the notice be subscribed with the name of plaintiff in the action.(g) [2]

[ *208 ] One case only is extant, in which an amendment has been made, by rule of court, in the notice subscribed to the declaration; although it cannot be doubted that any amendments would now be allowed, which the justice of the case might require. In the casc above alluded to, the lands were situated in Devonshire, and the notice was for the tenant to appear in Michaelmas term, when, according to the

(d) Anon. K. B. E. T. 1817. MS.

(e) Doe, d. Clarke, v. Roe, 4 Taunt. 758. (f) Doe, d. Bird, v. Roe, Barns. 172.

(g) Peaceable v. Troublesome, Barn. 172. Hazlewood, d. Price, v. Thatcher, 3 T. R.

351.

[1] If a declaration in Ejectment be not served ten days prior to the first day of the term, the tenant has until the first day of the subsequent term to appear and enter into the consent rule. Den. ex dem. Wade vs. Fen. 3 Halsted's Rep. 133.

[2] The notice to the tenant in possession at the foot of the declaration in Ejectment, need not be in the name of the plaintiff; but, if in the name of the lessor of the plaintiff, or even any other person, the court will permit the rule for judgment against the casual ejector to be drawn up. Goodtitle dem. Duke of Norfolk vs. Notitle. 5 Barnew. & Ald. Rep. 849:

practice in country causes at that time, it should have been to appear in an issuable term, and the affidavit stated, that if the lessor were not permitted to amend, he would be barred, by the statute of limitations, from bringing a new ejectment: the court permitted the lessor to amend upon payment of costs. (h)

(h) Doe, d. Bass, v. Roe, 7 T. R. 469. It is singular, that a practice should have obtained of giving notices to tenants to appear

in nonissuable, as well as issuable terms, and that such change of practice should not have been noticed in any of the reported cases.—

209

CHAPTER VIII.

OF THE SERVICE OF THE DECLARATION, AND PROCEEDINGS TO JUDGMENT AGAINST THE CASUAL EJECTOR, WHEN NO APPEARANCE.

THE declaration in ejectment being a kind of process to bring the party interested into court, its delivery to the tenant resembles the service of a writ,[1] rather than the delivery of a declaration; and, as it is the only warning which the tenant in possession receives of the proceedings of the claimant, the courts are careful that a proper delivery be made, and that the nature and contents of the declaration be explained at the time, to the party to whom it is delivered. [2] This delivery and explanation are generally terined the service of the declaration; and our next inquiry will be directed to the different modes by which this service may be made.

The service, to be strictly regular, should be made personally upon the party in possession of the premises, at the time of the service; [3]

[1] The commencement of an Ejectment is the service of notice, and the seven years limitation [Kentucky] does not apply to Ejectments brought before the first of January, 1816. Taylor & Al. vs. Taylor & Al. 3 Marsh. Rep. (Ky.) 19.

In Ejectment the declaration and notice must be entered on the record at the term it is returnable, or it is discontinued; and proceedings at a subsequent term are irregular, though when noted on record at the proper term, the suit has relation to the service of the notice. Stair vs. Picketts, 3 Marsh. Rep. (Ky.) 551.

[2] Where a printed declaration and notice in Ejectment were served upon an illiterate tenant, who was told merely that they were a declaration in Ejectment, without any further 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. Jackson ex dem. Beaver vs. Stiles, 1 Cowen's Rep. 222.

[3] Where a defendant, on being served with a declaration in Eject