10 N.J.L. 237 | N.J. | 1828
The
delivered the opinion of the cowl.
Judgment by default against the casual ejector, for want of appearance having been rendered, the counsel of the corporation, who are alleged to be tenants in possession, has moved to set it aside, for several reasons 1. Because the service of ono of the declarations was not made by a competent person. 2. Because the service of the other declaration, as shewn by the affidavit, was not made on a proper person, nor in a full and complete manner.’ 3. Because a corporate body is not liable to an action of ejectment; and 4. Because if liable, the service of the declaration having been made oat of the ordinary manner, the rendition of judgment was irregular, anti! the court on tt rule to shew cause had sanction,ed the particular mtode of ser- - vice.
1. One copy of the declaration was served by the lessor of die plaintiff himself, which, it is insisted, should have been dono . by an indifferent person.
The practical books will be found, on examination, to furnish no distinct, express rule on this head j nor am I aware of any direct adjudication, either hi the English reports or those of the state of isew-lfork<, she lattes of which wo are accustomed 20
2. The second objection finds its support in the affidavit endorsed on the declaration, by which it appears that a copy was served “ upon Peter D. Vroom, said to be one of the directors of the within named company, by delivering a copy of the same to him personally at his office,” in the county of Somerset. This affidavit is defective in two particulars. The expression “ said to be,” is more equivocal than the strictness required by the rules of practice will allow. It may peradventure mean, as alleged by the plaintiff’s counsel, “ commonly reputed to be,” but it may equally well be true, if some one, utterly uninformed of the fact, had said to the person about to make the service that Peter D. Vroom was a director of the company. Moreover, the mere delivery of a copy is not a sufficient service. The notice subioined
3. The third objection is, that an action of ejectment will not lie against a corporation : — -and to support it, an appeal is mado to the ancient doctrine, that a corporate body is not amenable isa the action of trespass. Kyd, in his treatise on corporations, says, 55 the modern method of trying the title of land by ejectment extends to corporations of every kind, whether in the character of plaintiffs or defendants,” 1 Kyd 187. It is not necessary however at this stage of the suit to examine this question. The present defendant in the declaration is Richard Fen, the casuaS ejector.- Whether the corporation will become a party, rests in their option and requires their voluntary act. If the company are not in possession of the premises in question, and of that fact we may presume their agents to be well informed, a judgment by default, and an execution upon it, can dispossess them of nothing 5 and if they think proper to appear, the plaintiff can not sustain his action, for he will be required to prove on the trial, what in such case he cannot do, that they are in possession. If on the contrary, the company are actually in possession of the premises which the lessor of the plaintiff claims, there seems to be little, if any, reason to excuse them from defending it on the terms common to all other owners of real estate. It is however premature to decide whether an action of ejectment will lie; and the more especially as the appearance, even voluntary, of the company, will deprive them of no ground of defence, of which they ought justly and rightfully to be permitted to avail themselves.
4. The fourth objection is, that the judgment was irregular, without a previous sanction of the mode of service by a rule to shew cause.
From all the books of practice, there appear to be two methods of proceeding, one called regular or ordinary, when the declaration is served on the tenant himself, or on his wife or soma person of his family on the premises, by delivering a copy and
On this fourth objection, the judgment by default should be set aside.