the declaration must allege a joint demise; if tenants in common, a several demise by each of their several parts (x) (22). In the latter case the declaration must contain as many counts as there are tenants in common lessors of the plaintiff. But tenants in common may join in a lease to a third person, and then the declaration may state a demise by such lessee. 3rd, The day (23), on which the demise is stated to have been made, must be some day after the title of the lessor of the plaintiff accrued; otherwise the plaintiff will be nonsuited for not being entitled to the possession he cannot make a lease: but in a case (y) where the demise was laid on the day prior to that on which the right of entry (for forfeiture) accrued ; it was holden, that the judge at Nisi Prius might, under the 23rd sect. of 3 & 4 Will. IV. c. 42, amend the declaration by substi

(x) Mantle v. Wollington, Cro. Jac. 166; Moore v. Fursden, Show. 342; Heatherley v. Weston, 2 Wils. 232, S. P.

(y) Doe d. Edwards v. Leach, 3 M. & Gr. 229; 3 Scott's N. R. 509.

for rent arrear. It seems, that where a power of re-entry for breach of covenant is reserved in a lease, and the reversion descends to parceners at common law, one alone cannot maintain ejectment for breach of the covenant. Doe d. de Rutzen v. Lewis, 5 A. & E. 277. A joint demise by one parcener with another parcener and her husband, whose title jure uxoris is barred by fine and non-claim, is bad. Doe d. Blight v. Pett, 11 A. & E. 842; 4 P. & D. 278.

(22) "Declaration in ejectment was of a joint demise of A. and B., and on the evidence it appeared that they were tenants in common; the plaintiff failed." M. 3 Jac. Blackasper's case, Noy, n. 43; Hal. MSS. cited and recognized in Doe d. Poole v. Errington, 1 A. & E. 750, 3 Nev. & Man. 646, where S. P. was adjudged. See Noy, 13, cited in Hargrave's n. (7) 1 Inst. 45, a. But payment of rent to the agent of A., B., and C., is an admission that the party holds under A., B., and C. jointly, and will support a joint demise, unless it be expressly proved that they were entitled in a different manner. Doe d. Clarke and others v. Grant, 12 East, 221. See also Doe v. Read, 12 East, 57. In Roe d. Raper v. Lonsdale, 12 East, 39; it was holden, that a copyhold descending by custom to all the children equally of the tenant last seised, one of the joint-tenants might maintain ejectment on his single demise for his own. share. In Doe d. Lulham v. Fenn, 3 Campb. 190, Lord Ellenborough, C. J., held, that in ejectment on the several demises of three persons, each demise being of the whole, the lessors of the plaintiff were entitled to a verdict, upon evidence, that they had jointly granted a lease to the defendant under which he had paid rent, but which had expired.-N. It was objected, that it must be taken that the lessors of the plaintiff were joint-tenants, and as there was not any joint demise, the plaintiff could not recover; but Lord Ellenborough overruled the objection. See Worrall v. Beck, M. 8 Geo. II. cited 1 Wils. 1.

(23) The year ought also to be inserted, though the omission is not ground of nonsuit; see Doe d. Parsons v. Heather, 8 M. & W. 158.

tuting the date of a day on which the right of entry was complete. The surrenderee of a copyhold estate after admittance, may maintain an ejectment against the surrenderor, on a demise laid on a day between the time of surrender and admittance; because, as against all persons, but the lord, the title of the surrenderee, after admittance, is perfect as from the time of the surrender, and shall relate back to it (z). So in ejectment by an administrator, the demise may be laid on a day after the intestate's death, but before administration granted (a). 4th, The demise may be for any number of years; this part of the declaration being a fiction, it will not be any objection that the lessor of the plaintiff had not power to grant a term of equal duration with that alleged. Hence, tenant from year to year may declare on a demise for seven years (b). Care should be taken that the term stated be long enough to admit of the plaintiff's recovering possession before it expires (24). 5th, If the ejectment be brought by a corporation aggregate (c) (25), an infant, or for tithes (d), regularly the declaration ought to state that the demise was by deed: and in the case of the infant, it ought to appear that some rent was reserved; but it is not necessary that the deed should be proved (e). In ejectment for tithes, the declaration used to set forth the nature of the tithe (f). 6th, With respect to the description of the thing demised, it may be observed, that it ought to be made with such certainty, that the sheriff may

(z) Holdfast v. Clapham, 1 T. R. 600. (a) Lessee of Patten v. Patten, Alcock & Napier, 493, Ireland, B. R.

(b) Doe v. Porter, 3 T. R. 13.

(c) Carth. 390. This omission will be aided by verdict. Bull. N. P. 98.

(d) Swadling v. Piers, Cro. Jac. 613. Omission cured by verdict, Partridge v. Ball, Ld. Raym. 136.

(e) Furley v. Wood, 1 Esp. N. P. C. 198, Kenyon, C. J. (f) Bull. N. P. 99.

(24) But the courts have been very liberal in permitting plaintiffs to amend in this instance. In the case of Power d. Boyce and another v. Rowe, (in Ireland, Pasch. 1802,) the term expired, whilst the case was depending in the Exchequer Chamber; the judgment having been affirmed, a motion was made to enlarge the term, and the court (Lord Redesdale, C., assisted by the chief justices,) on the authority of Dickens v. Greenvill, Carth. 3, and Vicars v. Haydon, Cowp. 841, made an order to amend the record by enlarging the term. A writ of error was then sued, returnable in Parliament, and upon the record so amended being transmitted, the plaintiff in error complained, by petition to the House of Lords, of the amendment made by the Court of Exchequer Chamber as an alteration of the record, and prayed a writ of certiorari to be directed to the Court of Exchequer Chamber to transmit the record in its original form. Upon debate, their lordships refused the writ, holding the amendment to have been properly made, and finally affirmed the judgment on the merits. See Lessee of Lawlor v. Murray, 1 Sch. & Lef. 81, n. (a).

(25) A corporation aggregate cannot make a lease for years without deed, in respect of the quality of the incorporation. 1 Inst. 85, a.

know, from an inspection of the record, what he is to deliver possession of. But the strictness of this rule has been relaxed in many instances, on the ground that the sheriff is to take his information from the party recovering (26). 7th, The ejectment or ouster must be stated to have been made after the commencement of the supposed lease: but it is not necessary, although usual, to mention any particular day (g). It is sufficient, if it appear on the face of the declaration, that the ouster was after the term commenced, and before action brought. It was formerly usual for the declaration in ejectment by original, to repeat the whole of the original writ; but now, by a general rule of all the courts (h), the rules heretofore made in the courts of King's Bench and Common Pleas respectively, for avoiding long and unnecessary repetitions of the original writ in certain actions therein mentioned, shall be extended and applied, in the courts King's Bench, Common Pleas, and Exchequer of Pleas, to all personal and mixed actions; and in none of such actions shall the original writ be repeated in the declaration, but only the nature of the action stated in manner following, viz. "A. B. was attached to answer C. D. in a plea of trespass, or in a plea of trespass and ejectment (i), or as the case may be; and any further statement shall not be allowed in costs."

Of the Notice subscribed to the Declaration.-To the declaration is subscribed a notice to the tenant in possession from the casual ejector, and subscribed with his name, signifying, that unless the tenant appear, &c. in the term next ensuing that in which the declaration is served, and by rule of court cause himself to be made defendant, in the room of the casual ejector, he shall suffer judgment to be entered against him, and the tenant will be turned out of possession. It is not necessary that there should be any date to the notice (k). At the time when the copy of the declaration and notice is delivered to the tenant in possession, he must be informed of the nature of the proceeding, and the notice should be read to him, or the substance of it fully explained. But if the tenant upon whom the declaration is personally served, is an

(g) Merrell . Smith, Cro. Jac, 311.
(h) R. G. H. T. 2 Will. IV. Reg. IV.
(i) For form of declaration by original,

see above rule.

(k) Per Patteson, J., Doe d. Evans v. Roe, 2 A. & E. 12.

(26) Ejectio firma of 30 acres of land in D. & S. The defendant was found guilty of 10 acres, and as to the residue, not guilty; and it was moved, in arrest of judgment, that it is uncertain in which of the vills this land lay, and therefore no judgment can be given, nor any execution. But the objection was overruled; and it was adjudged for the plaintiff;. for the sheriff shall take his information from the party for what 10 acres the verdict was. Portman v. Morgan, Cro. Eliz. 465. See also, to the same effect, Cottingham v. King, 1 Burr. 623, and Connor v. West, 5 Burr. 2673.

attorney, no explanation is necessary (7). The delivery of the declaration and notice accompanied with the explanation above mentioned, is called service of a declaration in ejectment. Formerly, landlords, to whom a right of entry had accrued during or immediately after Hilary and Trinity Terms respectively, were unable to prosecute ejectments, so as to try the same at the assizes immediately ensuing; but now, by stat. 11 Geo. IV. and 1 Will. IV. c. 70, s. 36, [23rd July, 1830,]" in all actions of ejectment by any landlord against his tenant, or against any person claiming through or under such tenant, for the recovery of any lands or hereditaments where the tenancy shall expire, or the right of entry shall accrue in (27) or after Hilary or Trinity Terms respectively, it shall be lawful for the lessor of the plaintiff, at any time within ten days after such tenancy shall expire, or right of entry accrue, to serve a declaration in ejectment, entitled of the day next after the day of the demise in such declaration, whether the same shall be in term or in vacation, with a notice thereunto subscribed, requiring the tenant in possession to appear and plead within ten days; and proceedings shall be had, and rules to plead entered and given, as nearly as may be, as if such declaration had been duly served before the preceding term. Provided, that no judgment shall be signed against the casual ejector, until default of appearance and plea within such ten days, and that at least six clear days' notice of trial shall be given to the defendant, before the commission day of the assizes at which such ejectment is intended to be tried (28). Provided also, that defendant may, at any time before trial, apply to a judge, by summons in the usual manner, for time to plead, or for staying or setting aside the proceedings, or for postponing the trial until the next assizes, and the judge may make such order as to him shall seem expedient." By sect. 37, the declaration may be entitled specially of the day next after the day of demise, whether in term or in vacation. The foregoing statute is confined to issuable terms (m).

(1) Doe d. Duke of Portland v. Roe, 3 M. & Gr. 397; 4 Scott's N. R. 22.

(m) Doe v. Roe, 2 C. & J. 45.

(27) That is, in full term. Trinity Term begins on the 22nd of May, (s. 6). Where the right accrued on the 20th of May, after the essoign day; but before the first day of term, it was holden, that the statute did not apply. Doe v. Roe, 1 Dowl. P. C. 79.

(28) It is not necessary to prove, at the trial, under this section, the notice of trial. Doe d. Antrobus v. Jephson, B. R. E. T. 1832. Jervis's New Rules and Statutes, 3rd edit. p. 143, n.

VII. Of the Service of Declaration.

THE tenant or tenants in possession may be served personally at any place. But in cases where tenant in possession cannot be served, service on the wife of tenant in possession 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 (n), 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. Where premises demised on lease to one person, have been underlet to others, it is necessary to serve separately all the under-tenants (o). Service on one of several joint-tenants has been holden (p) sufficient. So service on the messenger in possession of the premises, and on the official assignee, tenant being bankrupt (9). 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 (r) of the tenant in possession. 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 holden (s), that service of the declaration on the broker, and fixing a copy on the door of the house, was sufficient. 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 holden sufficient (t).

In ejectment for part of the bed of the Grand Junction Canal, service of the declaration on the clerk of the Grand Junction Canal Company (which is a corporation), at their office, was held sufficient for a rule nisi for judgment against the casual ejector (u).

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, and it appears that he has received it before the term (x), but not otherwise (y); and a mere acknowledgment of the wife is not sufficient (). If the tenant or his wife refuse to receive the declaration, &c., 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 declaration (n) Doe d. Morland v. Bayliss, 6 T. R. (8) Doe d. Scott v. Roe, 6 Bingh. N. C. 765.

(0) Doe d. Lord Darlington v. Cock,

4 B. & C. 259.

(p) Doe d. Clothier v. Roe, 6 Dowl. (P. C.) 291.

(q) Doe d. Baring v. Roe, 6 Dowl. (P. C.) 456.

(r) Doe d. Barrow v. Roe, 1 M. & Gr. 238; 1 Scott's N. R. 25.

207.

(t) Doe d. Gibbard v. Roe, 3 M. & Gr. 87; 3 Scott's N. R. 363.

(u) Doe d. Fisher v. Roe, 10 M. & W. 21. (x) Roe, Lessee of Hambrook v. Doe, 14 East, 441.

(y) Doe d. Lord Dinorben v. Roe, 2 M. & W. 374.

(z) 1 Bos. & Pul. 384.