
    Cravins vs. Armour and others’ lessee.
    
    Under ihe act of 1S01, ch. 11, sec. 2, the sheriff must not only serve the writ on the defendant in an action of ejectment, but must deliver a copy of the declaration likewise.
    It must appear, from the sheriff’s return upon the process, in an action of ejectment, that he served the declaration; and a return upon the writ, “executed,” is no evidence of service of the declaration.
    To read a declaration in ejectment to the defendant, without leaving a copy, is not a good service under the act of 1801, ch. 11, sec. 2.
    When a judgment by default was taken against the defendant in ejectment, and no declaration had been served on him, but only the writ: Held, that the judgment would be set aside at the succeeding term from that at which tile default was taken, and a writ of restitution awarded on motion.
    This is an action of ejectment against Cravins, the tenant in possession. The only return upon the writ is, “executed on the 26th March, 1832.” No endorsement is made by the sheriff on the copy of the declaration, which is filed, nor is it shown by any.endorsement on the writ that the declaration in ejectment was served. At the return term, the defendant not appearing to plead, a judgment by default was taken, which, on the lessors of the plaintiff releasing all damages, was at that term made final. At the succeeding term, G. 'W. Pollun, the landlord of Cravins, filed his affidavit, setting forth his title, and that he had no notice of the suit, and praying that the judgment by default be set aside, and that he be permitted to become a defendant, and plead to the action. This was refused, from which this appeal in error is taken.
    
      J. Read and P. M. Miller, for the plaintiff in error.
    In support of the motion, the following authorities are referred to: Adams on Ejectment, 225, where it is laid down, that judgment against the casual ejector irregularly obtained, may be sei aside as a matter of course, and upon affidavit of merit, &c. and courts are liberal in setting aside regular judgments, &c. The proceeding by motion was regular, and warranted by the soundest principles and rules of law. See the following authorities: 4 Johns. Reports 493: 1 Caine’s Cas. 603: 10 Johns. Rep. 67: 3 Caine’s Rep. 133: 9 Johns. Rep. 257: 4 Johns. Rep. 489: 2 Stran. Rep. 975: 4Bur.Rep. 1996: 5 Taunt. Rep. 205.
    1. The judgment was irregularly obtained, being taken on the fifth day. The act of 1794, sec. 26, does not include judgment by default in ejectment, but at least defendant is entitled to three days to plead.
    2. There was not a proper service of the declaration • in this case. Adams on Ejectment, 209, 219, 220.
    3. The judgment was obtained by collusion, as is alleged, without notice to the landlord of the tenant in possession, and in cases where this is suggested, the court will set aside the judgment by default, and permit the landlord to plead, or they will set aside a judgment by default on affidavit of merits, where by accident, or other cause over which landlord had no control, it has been entered.
    
    The case in 5th Taunton, Doe on the Demise of the grocer’s company vs. Roe is one in point, and one that goes the whole length; the judgment was set aside after a writ of habere facias possessionem executed.
    The case in 1st Caine, Jackson vs. Stiles, is to the same effect. In ejectment every thing will be done to promote the justice of the case according to right. Here a term had passed. .
    Kent, chief justice, (Jackson vs. Stiles, 4 John. 495) says, the landlord is entitled to be made defendant after judgment has , been entered against the tenant who neglects or refuses to defend.
    
      A. B. Bradford, for defendant in error.
   Green, J.

delivered the opinion of the court.

By the act of 1S01, ch. 11, sec. 2, it is made the duty of the, sheriff upon receiving the writ and declaration in ejectment, to serve the declaration m ejectment on the tenant in possession, as was practised before the passage of that act, and also at the same time to serve the writ and take abail bond. Before this statute no writ issued in ejectment, but the declaration was the only process, and its delivery to the tenant in possession being the only warning which he received of the proceedings of the claimant, the courts were careful that a proper delivery should .be made, and that the nature and contents of the declaration be explained at the time to the party to whom it was delivered. This delivery and explanation are termed the service of the declaration. Adams on Ejectment, 209.

The act of assembly before referred to prescribes, that, in addition to the service of the writ, it shall be the duty of the sheriff “to serve the declaration in ejectment on the tenant in possession as heretofore.” This service of the declaration then is now as indispensable as it was before the passage of the act requiring the issuance of a writ, otherwise the party has not due notice to appear and defend. But if the service of the declaration is necessary, some proof of that service must be made. Formerly it was .proved by the the affidavit of the party serving it. But as our act of assembly requires the sheriff to serve it when he serves the writ, his return that he has done so is the evidence of the fact. The return on the writ, “executed,” does not prove that the declaration was served. It proves only that the writ had been served, a good service of which might .well be made without the party seeing the declaration. In addition to the absence of all proof by the return that the declaration was served, the sheriff by his affidavit proved that it was not served. He says, that he did not deliver and leave with the tenant a copy, he only read the declaration to him. It was lus duty to read and explain the declaration, but its delivery is the important act that constitutes the service, and none having taken place here, there was no service.

It follows from what has been said, that this default was taken without due notice to the tenant in possession. It was therefore irregular, and the court below ought to have set it aside as a matter of course. Adams on Ejectment, 225. In any description of case such an irregularity in the service of process would have been sufficient ground to set aside the judgment. 2 Hay. Rep. 73. But in ejectment the court will allow excuses for defaults to protect the possession which in other cases would not be received. 1 Caine’s Ca. 503.

We are of opinion, therefore, that in this case the judgment by default ought to have been set aside, although the motion was made at the succeeding term, and that a writ of restitution should have been awarded. 1 Caine’s Cas. 503: 5 Taunt, 205: 2 Hay. Rep. 73. This not having been done the judgment will be reversed, and the cause will be remanded to be proceeded in as herein directed.

Judgment reversed.  