Stratton v. Lord

By the Court,

The statute, 2 R. S. 303, § 1, retains the action of ejectment, declaring that it “ may be brought in the cases and the manner heretofore accustomed, subject to the provisions hereinafter contained.” The 14th section declares, that “ if the premises claimed are not actually occupied, the declaration and notice shall be served on the defendant named therein personally, or, if he cannot be found, by leaving the same with some person of proper age at the residence of such defendant.” The 15th section requires a special application for the rule to plead, where the service is made in any other manner than on the defendant personally. The statute has thus cut off all methods of ser*612vice in cases where the premises are not actually occupied, save those specifically mentioned in section 14. The former provision for service as between landlord and tenant not having been retained, the only remedy left to the plaintiff is an actual entry at common law, or the proceeding under 2 R. S. 512, § 24, 5, 6, 7. The provisions of these sections were evidently intended to come in place of the former, 1 R. L. 441, § 23, et seq. the mode of service in which was adopted by Evans v. Moran, 12 Wendell 180. In deciding the latter case, the provisions of 2 R. S. 512, seem to have been overlooked. Looking at these in connection with the provisions of <§> 14, cited, we are all of opinion that the practice laid down in Evans v. Moran cannot be sustained.

Motion denied.