1849. DOE d. BENNET v. ROE. were other partners resident in Cornwall who took at least as active a part in the general management of the business and concerns of the firm. The learned serjeant submitted that this was an attempt to fix all the parties by service upon one of them, without any evidence whatever to warrant the assumption that they were joint-tenants. Hewson, in support of his rule. We rely upon the service of the declaration and notice upon Joseph Talwyn Foster, one of the joint-tenants, and the most active and prominent member of the firm. The case is not affected by the death of two of the partners, and the introduction of another. In Doe d. — v. Roe (a), where the proprietors of a company, not incorporated, were tenants, and a third person was in actual occupation of a piece of land for which the ejectment was brought, service of the declaration on several of the proprietors, and on the clerk and treasurer of the company, and on the occupier, was held sufficient service, it being sworn that the proprietors of the company were believed to be joint-tenants of the land in question. [Maule, J. The service was upon the manager of the works, upon the premises, and there was also personal service on a member of the firm. Wilde, C. J. The affidavits in opposition to the rule do not deny that the parties are tenants in possession, as alleged. Channell, Serjt. The rule being served so very recently, there has in reality been no time to answer the affidavit.] WILDE, C. J. I incline to think the affidavit in this case is sufficient to entitle the plaintiff to judgment. The case of Doe d. v. Roe (a) seems to be an authority. The rest of the court concurring, Rule absolute. (a) 1 D. & L. 873. 1849. BAKER V. COGHLAN. IN N this case an order was made by Coltman, J., at chambers, to set aside the appearance entered for the defendant sec. stat., and all subsequent proceedings, for irregularity, on the ground that the indorsement of service on the original alias writ of summons, was not written by the party by whom the writ was served, she being unable to write, but having placed her mark at the foot of such indorsement, the learned judge considering that this was not a sufficient compliance with the statute and rule of court. The statute 2 W. 4. c. 39. s. 1., which provides for the service of the writ of summons, directs that "the person serving the same shall and is hereby required to indorse on the writ the day of the month and week of the service thereof:" and the rule of Michaelmas term, 3 W. 4. r. 3., provides "that the person serving a writ of summons shall, within three days at least, after such service, indorse on such writ the day of the week and month of such service; otherwise, the plaintiff shall not be at liberty to enter an appearance for the defendant according to the statute; and every affidavit upon which such an appearance shall be entered shall mention the day on which such indorsement was made." Jan. 31. The indorsement of the time of ser vice of a writ of summons, pursuant to the statute 2 W. 4. c. 39. 8. 1., and the rule of court of M. T, 3 W. 4. r. 3., may be made by a marksman. Hawkins, on a former day in this term, moved for a Jan. 13. rule to shew cause why the above order should not be set aside, upon an affidavit of Hannah Baker, the wife of the plaintiff, and the person who served the writ, stating, "that, previously to the deponent serving the defendant with the copy alias writ of summons in this 1849. BAKER บ. COGHLAN. action, this deponent read over and well understood the purport and effect of the same; that, previously to attaching her mark to the indorsement of service on the original alias writ of summons, she, this deponent, read over and well understood the printed and written words contained in the said indorsement of service; and she, this deponent, further saith that she is well able to read writing and printing, and is in the constant habit of perusing letters and papers connected with her husband, the said plaintiff's, business as a tailor and breeches-maker." [Wilde, C. J. Is there any memorandum accompanying the indorsement, shewing that what she attested by affixing her mark to it, was read over and explained to her? I do not think the want of that could be helped by a subsequent affidavit.] The rule as to that only applies to jurats. (a) [Wilde, C. J. Persons who cannot strictly comply with the rule, should not be employed to serve process. Maule, J. If this person were indicted for perjury in the affidavit of service, it would probably be said, that she was only a poor ignorant marks-woman, who could not very well understand the nature of what she was doing. The object of the rule of court is, to pin the party to a precise date of service. It is much more likely that mistake or shuffle will be avoided by holding that the indorsement must be written by the party effecting the service. It would probably be a construction more consonant with the spirit of the rule. However, there be some doubt about it.] may A rule nisi having been granted, Piggott now shewed cause. He submitted that the indorsement in question was no compliance with the statute and rule of court, which evidently intended that (a) See 2 Archb. Pr. 8th edit., by Chitty, p. 1454. the persons serving process should not be so grossly illiterate as to be unable to make the required indorsement himself. Hawkins was not heard upon this point. WILDE, C. J. We must read the words of the statute which require the indorsement, as we would read the same words elsewhere. The indorsement of a bill or note, or the execution of any other contract, may be by a mark. I should incline to say, therefore, that this must be taken to be the indorsement of the party. I do not see the extent of the consequences of holding the act not to be complied with, unless the whole of the indorsement is in the hand-writing of the person serving the writ. The conclusion I have come to, therefore, is, that the act is complied with where all but the mark is either printed or in the hand-writing of a stranger. The party putting his mark to it thereby becomes responsible for the whole. This objection, therefore, fails. The rest of the court concurring, The rule was referred to the master 1849. BAKER V. COGHLAN. 1849. Jan. 31. In ejectment THIS brought upon a right of reentry, under the 4 G. 2. c. 28. 8. 2., must appear it DOE d. DIXON v. ROE. IIS was an action of ejectment brought to recover the possession of a messuage, &c., in the parish of St. Mary Abbotts, Kensington, which had been held by one Samuel Marks under and by virtue of a lease, bearing date the 13th of September, 1847, at the yearly rent that the land- of 2007., payable quarterly, on the usual quarter-days. The lease contained a clause of re-entry for non-payment of the rent within twenty-one days next after any of respect of the the days whereon the same ought to be paid, or for other breach of covenant. lord had a power to re-enter, in non-payment of half a year's rent, at the time of affixing the declaration and notice upon the premises. Hawkins moved, under the 4 G. 2. c. 28. s. 2. (a), for (a) Which enacts, "that, in all cases between landlord and tenant, as often as it shall happen that one half-year's rent shall be in arrear, and the landlord or lessor to whom the same is due, hath right by law to re-enter for the non-payment thereof, such landlord or lessor shall and may, without any formal demand or re-entry, serve a declaration in ejectment for the recovery of the demised premises, or, in case the same cannot be legally served, or no tenant be in actual possession of the premises, then to affix the same 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, tenements, or hereditaments comprised in such declaration in ejectment; and such affixing shall be deemed legal service thereof; which service or affixing such declaration in ejectment shall stand in the place and stead of a demand and re-entry; and, in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry, and ouster, it shall be made appear to the court where the said suit is depending, by affidavit, or be proved upon the trial, in case the defendant appears, that half a year's rent was due before the said declaration was served, and that no sufficient distress was to be found on the demised premises countervailing the arrears then due, and that the lessor or lessors in ejectment had power to re-enter; then, and in every such case, the |