
    John Den ex dem. Ely against Richard Fen, Daniel W. Applegate, tenant in possession.
    An affidavit of the acrvico of a declaration in ejectment, which states that the declaration was served on the daughter of the tenant, but does not shew that such service was made on the premises in question is insufficient.
    Such an affidavit may be amended.
    Where a judgment against a casual ejector is set aside in consequence of a defect in the affidavit proving the service of tlio declaration in ejectment, if the tenant lias been turned out of possession, a writ of restitution will be ordered with costs.
    Wall,
    upon notice to plaintiff’s attorney, moved to set aside a judgment by default in ejectment, because the affidavit- of the *service of the declaration did not shew that it was served upon the premises in question. The affidavit stated that the deponent “ did deliver to the son and daughter of Daniel W. Applegate the tenant in possession of the premises in the declaration hereunto annexed mentioned, or some part thereof, at the house of the said Daniel W. Applegate, a true copy of tho said declaration and of the notice thereunder written ; and did at the same time inform the said son and daughter of the said D. W. Applegate that it was a declaration in ejectment, &e.”
    
      Hamilton, contra.
   By the Court.

Let the judgment be set aside. Wall then stated, that the tenant in possession had been turned oat of possession by virtue of a writ of habere facias issued upon this judgment, and applied for a writ of restitution with costs.

Hamilton insisted that the tenant ought not to have costs.

By the Court. Let the writ of restitution issue with costs. He who is thus illegally turned out of possession, should have costs.

Hamilton then applied for leave to amend the affidavit, which was granted by the court.  