produce, or subpoena

duces tecum.

If the document is in the hands of the opposite party, Notice to notice to produce must be given. Such notice is not required if the opposite party has got possession of the document by fraud from the person subpoenaed to produce (n), or when from the nature of the suit he must know he is charged with the possession of it (o), or when he has it in Court (p), or its non-existence is admitted (q). If the document is in the hands of a stranger he must be subpoenaed to produce it (r), unless he has it in Court (8); but a wrongful refusal to produce it after subpoena does not entitle the party to give secondary evidence (t).

19. Award.

To prove an award, the submission and the due execution of the award must be proved, and also the appointment of the arbitrators if they are not named in the submission. If the submission is by judge's order, an office copy of the order is sufficient proof of the submission (u), but in other cases the submission must be proved like any other contract (x). If the time for making the award has been enlarged, and the award made within the enlarged time, it must be shown that the time was properly enlarged (y), or that the irregularity has been waived if the

Awards under

Inclosure

Acts.

time was not properly enlarged (z). If the performance of any conditions precedent is denied, such performance must be proved.

Awards under Inclosure Acts are proved by production. of the original award, or true copies signed by the proper officer or by the clerk of the peace or his deputy (a); and such awards are presumed to have been regularly made, and all necessary formalities to have been completed, though this presumption may be rebutted (b). Awards under 6 & 7 Will. 4, c. 115, or 3 & 4 Vict. c. 31, are now conclusive evidence of all necessary consents, and no other evidence of title is necessary (c).

(2) Re Hick, 8 Taunt. 694; Tyerman v. Smith, 6 E. & B. 719. (a) 41 Geo. 3, c. 109, s. 35; 3 & 4 Will. 4, c. 87, ss. 2, 4.

(b) R. v. Haslingfield, 2 M. &

S. 558; Doe v. Gore, 2 M. & W. 320; Williams v. Eyton, 2 H. & N. 771; see Wingfield v. Tharp, 10 B. & C. 785.

(c) 3 & 4 Vict. c. 31, s. 1.

CHAPTER XXII.

PRACTICE IN THE HIGH COURT.

In this chapter it is proposed to deal with the procedure Procedure. in the High Court in an action of ejectment, but merely as to those points in which the procedure in such an action differs from that in an ordinary action (a).

In all actions for the recovery of land, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or against persons claiming under such tenant, the writ of summons may at the option of the plaintiff be specially indorsed with a statement of his claim, or of the remedy or relief to which he claims to be entitled; such special indorsement shall be to the effect of such of the forms in Appendix C, sect. 4, as shall be applicable to the case (b).

This rule only applies when the plaintiff is either the original lessor, or is an assignee whose title has been acknowledged by the tenant (c); and when the tenancy has expired by effluxion of time, or has been determined by notice to quit (d). It does not apply when the tenancy has been determined by a forfeiture (e) or by surrender (ee).

(a) Chit. Arch. vol. ii. p. 1206 (ed. 14).

(b) App. A, p. 288.

(c) Casey v. Hellier, 17 Q. B. D. 97. What is such acknowledgment, vide p. 26, 29.

(d) Doe v. Roe, 1 D. & R. 540.

(e) Mansergh v. Rimell, W. N. 1884, p. 34; Burns v. Walford, W. N. 1884, p. 31; Arden v. Boyce, [1894] 1 Q. B. 796.

(ee) Doe v. Roe, 2 B. & Ad.

922.

Ord. III. r. 6.

Special indorsement.

Ord. IX. r. 9.

Service of

writ.

Vacant possession.

Where it was provided in a lease that, upon non-payment of rent, the landlord might forthwith give the tenant. notice to quit in writing, and such notice to quit was given, it was held that the case was not within the rule (ƒ). A mortgagee, to whom the mortgagor has attorned tenant, is a landlord within this rule (g).

Service of a writ of summons in an action to recover land may, in case of vacant possession, when it cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwelling-house, or other conspicuous part of the property.

Ord. IX. r. 2. When service is required the writ shall, wherever it is practicable, be served in the manner in which personal service is now made, but if it be made to appear to the Court or a judge that the plaintiff is from any cause unable to effect prompt personal service, the Court or judge may make such order for substituted or other service or for the substitution for service of notice, by advertisement or otherwise as may be just.

Personal service.

Substituted service.

If practicable, personal service must be effected; if not practicable, and if there is not vacant possession, an order for substituted service may be obtained. If there is vacant possession, and service cannot otherwise be effected, a copy of the writ may be posted on the property. Personal service is effected by tendering a copy of the writ to the defendant, and producing the original if required. Substituted service may be in such manner as the Court or judge directs by the order giving leave (h). Possession is vacant when the premises have been really abandoned and the last tenant does not intend to return (i). Judgment

(f) Arden v. Boyce, [1894] 1 Q. B. 796.

(g) Daubuz v. Lavington, 13 Q. B. D. 347; Hall v. Comfort, 18 Q. B. D. 11.

(h) Crane v. Jullion, 2 Ch. D.

221.

(i) Isaacs v. Diamond, W. N. 1880, p. 75.

in default of appearance, when the writ has only been posted on the premises, can only be signed after a judge's order has been obtained (j).

Before the Judicature Acts and Orders a writ of ejectment was not subject to the same rules as to service as writs in other actions, and might in very many cases be served on persons other than the defendant, without leave (k).

Every tenant to whom any writ in ejectment shall be delivered, or to whose knowledge it shall come, shall forthwith give notice thereof to his landlord or his bailiff or receiver, under penalty of forfeiting the value of three years' improved or rack-rent (l) of the premises demised or holden in the possession of such tenant to the person of whom he holds, to be recovered by action in any Court of common law having jurisdiction for the amount.

This section only applies when the action is on a title which is inconsistent with the landlord's title (m). A landlord can generally get a judgment against his tenant set aside, if he has not received notice of the writ, so as to enable him to apply for leave to appear and defend (n), and this even after execution of a writ of possession (o); the terms of paying the costs of the judgment and execution are usually imposed upon him (n).

Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or judge whenever the whole subject-matter of the action

(j) Annual Practice, notes to Order IX. r. 9.

(k) C. L. P. Act, 1852, s. 170; vide Day's C. L. Act, p. 179 (ed. 4).

(1) Crocker v. Fothergill, 2 B. & Ald. 652.

(m) Buckley v. Buckley, 1 T. R.

647.

(n) Doe v. Roe, 2 H. & W. 130; Doe v. Roe, 4 Burr. 1996; Doe v. Roe, 11 Price, 507.

(0) Doe v. Roe, 5 Taunt. 205; Goodtitle v. Badtitle, 4 Taunt. 820.

C. L. P. Act, Tenants to give notice

1852, s. 209.

of writ to

landlords.

Ord. XI. r. 1.

Service out of the jurisdiction.