Jackson ex dem. Beaver v. Stiles

Although the service was not, perhaps, technical-» correc^ we deny the motion, under the circumstances of this case. As the tenant was not deceived or mislead,(a) we consider it equivalent to a technical service. The whole is a mere question of regularity, as it appears upon the papers. The plain tiff is bound, at his peril, to serve the declaration upon the tenant in possession.(b) There must be an affidavit of this filed, to warrant a judgment by default against the casual ejector. • That must have been done in this case. The tenant’s affidavit, that he was not in possession, cannot be considered as an affidavit of merits. It may, therefore, be *225■contradicted, and the balance of testimony is that he was in possession. But though we deny the motion^ we direct it to hemade a part of the rule, that, on filing an affidavit of merits within thirty days, the default be set aside, and the tenant let in to defend, on payment of the costs.

Rule accordingly, (c)