Plaint and summons.] In the cases above mentioned, "it shall be lawful for the landlord or his agent to enter a plaint in the county court to be holden under this Act; and thereupon a summons shall issue to the person so neglecting or refusing" (b). The following is the form of the Summons to a Tenant holding over. No. --. In the county court of· at (Seal.) A. B., plaintiff, C. D., defendant. in You are hereby summoned to appear at a county court to be holden at, on the day of - - at the hour of the forenoon, to answer to the above-named plaintiff, wherefore you neglect or refuse to quit and deliver up to him possession of a certain [messuage with appurtenances, or part of a house, &c., as the case may be] situate at And take notice, if you do not appear at the said court, and show cause why you do not quit and deliver up possession as aforesaid, you may, by order of the court, be turned out of the possession held by you. Given under the seal of the court, this day of Clerk of the court. Such summons may be served,—either personally,—or by leaving the same with some person being in and apparently residing at the place of abode of the person or persons so holding over as aforesaid;-or, if the person or persons so holding over, or any or either of them, cannot be found, and the place of abode of such person or persons shall either not be known, or admission thereto cannot be obtained for serving such summons, the posting of the said summons on some conspicuous part of the premises so held over shall be deemed to be good service upon such person or persons respectively (c). As a person may occupy premises and not reside in them,if the tenant or occupier reside in a different district from that in which the premises are situate, it should seem from the above section of the statute that the plaint in such a case should be entered in the court of the district in which the Occupier resides, unless the judge of the court, within the district of which the premises are situate, shall, for sufficient And reason, give leave to enter the plaint in that court (e). yet it appears an anomaly, that an action for the recovery of land, should be brought in a district in which the land is not; and I understand that it is the opinion of many of the judges of these local courts, that the action should be brought in the court of the district within which the house or land is situate, particularly as the statute directs that in certain cases the summons shall be served by posting it upon some part of the premises to be recovered. But that is only in case the place of abode of the party holding over is not known, or admission to it cannot be obtained. Where that is known, and admission to it can be obtained, the service, if not personal, must be at the place of abode of the person neglecting or refusing to give up possession. And applying to this the 60th section, which regulates out of what court the summons generally should issue, it would appear that in strictness the law is as I have first above mentioned. The part of the 122nd section, which most favours the idea that the action should be brought where the land lies, is that part which directs that the warrant of possession shall be directed to a bailiff of the court, and he alone and his assistants are justified in acting under it. Perhaps the best way, until there shall be some decision upon the subject, will be, that in all cases where the party occupying does not reside within the district in which the land is situate, the leave of the judge of the latter district should be obtained, that the summons may issue out of his court; and the summons may then be served in the other district by a bailiff of that district, under the 61st section of the Act. Proceedings thereon, hearing, &c.] "If the tenant or occupier shall not appear at the time and place appointed [by the summons], and show cause to the contrary,—and shall still neglect or refuse to deliver up possession of the premises, or of such part thereof of which he is then in possession, to the said landlord or his agent,-it shall be lawful for the landlord or agent to give to the court proof of the holding, and of the end or other determination of the tenancy, with the time and manner thereof, and (where the title of the landlord has accrued since the letting of the premises) the right by which he claims the possession (ƒ). Evidence.] It must be premised, as a general principle, that a tenant cannot dispute his landlord's title (g), whether he hold by deed (h) or not; nor can any person holding under See Stat. s. 60, ante, p. 4. (f) Stat. s. 122. 549. Parry v. House, Holt. 489. him (i). Even where a party, under a fraudulent pretence, borrowed the keys of a house from J. S., and then retained the possession, it was holden that he could not dispute the title of J. S. in an ejectment brought against him by the latter (k). And therefore, if the action be brought by the landlord who actually let the premises, against the tenant to whom he let them, or any person claiming under him, all he has to do is to prove the letting, and the determination of the tenancy, by notice to quit or otherwise, before the date of the summons. There is no necessity for his going into evidence of his title, for that is admitted, and cannot be denied. The tenant, however, may show that the title of his landlord, although undisputed and indisputable at the time of the letting, was at an end at the time of the date of the summons. He may show that his landlord, pending the term, sold his interest (1), or mortgaged the premises (m), or that his title has expired (n); or that the agreement under which the landlord held, was put an end to (0); or that he has become bankrupt (p); or that he was but second mortgagee, and that the first mortgagee has claimed the rent, and compelled the defendant to pay it to him (q). Where the action is brought, not by the original landlord, but by a person claiming under him, or by his assignee or person to whom he may have conveyed his interest, or by his devisee or heir at law, the plaintiff must prove the letting by the original landlord, and the determination of the tenancy above-mentioned; and he must also prove his own derivative title from the landlord. In this case, as well as where the action is at the suit of the original landlord, the tenant cannot dispute the title of the landlord (r). After the death of the landlord, however, the tenant may show that he was only tenant for life (s); or that the title is at an end, as above-mentioned. The tenant also can impeach the plaintiff's derivative title (t), unless he have paid rent to him. A mere acknowledgment of the plaintiff's title will not prevent him from disputing it, if it appear that such acknowledgment was obtained by misrepre (i) Doe v. Mills, 2 Ad. & El. 17. Doe v. Fuller, 1 Tyr. & Gr. 17. Doe v. Austin, 2 Moore & S. 107. Doe v. Burton, 9 Car. & P. 254. (k) Doe v. Baytup, 3 Ad. & El. 188. (1) Doe v. Watson, 2 Stark. 230. (m) Doc v. Edwards, 6 Car. & P. 208. (n) Neave v. Moss, 1 Bing. 360. England v. Slade, 4 T. R. 682. Doe v. Ramsbottom, 3 M. & S. 516. Farmer v. Duplock, 2 Bing. 10. (0) Brook v. Biggs, 2 Bing. N. C. 572. (p) Doe v. Brown et al., 7 Ad. & El. 447. (q) Doe v. Barton et al., 9 Law J. 57, qb. (r) Rennie v. Robinson, 1 Bing. 147. Doe v. Abrahams, 1 Stark. 305. (s) Doe v. Seaton, 2 Cr. M. & R. 728. (t) See Phillips v. Pearce, 5 B. C. 433. sentation, or arose from a misapprehension of the title set up (u). Even an attornment, although an admission of a tenancy, and good prima facie evidence against the tenant (v), does not prevent him from disputing the title of the person to whom he has attorned; for he may by mistake have attorned to one who has no title (w). Or, admitting the plaintiff's title, the tenant may prove that the tenancy has not been determined: that the action was commenced before the expiration of the tenancy; that the year of the tenancy, in the case of a notice to quit, has not expired; that the day on which the notice required him to quit, was not the day on which the year of the tenancy expired; that the notice to quit was not served in time; or that such notice was subsequently waived by the plaintiff. As to the derivative title, it must in strictness be proved with as much strictness, as to its being legal evidence, as if it was given in an action of ejectment; there is nothing in the present statute which dispenses with such strictness. When the tenant does not appear, proof must be given of the service of the summons, and that the tenant or occupier still neglects or refuses to deliver up the premises. Judgment and Warrant.] Upon proof as above-mentioned, it shall be lawful for the judge to issue a warrant under the seal of the court to any bailiff of the court, requiring and authorizing him,—within a period to be therein named, not less than seven or more than ten clear days from the date of such warrant,-to give possession of the premises to such landlord or agent (x). The following is the form of the Upon the hearing of this cause at a court holden at day of , on the it is adjudged, that the said plaintiff do recover against the said defendant, possession of a certain house [or land or part of a certain house] at costs of suit, amounting to the sum of £ together with the and it is ordered, that the said defendant do forthwith quit and deliver up possession (u) Gregory v. Doidge, 3 Bing. 474. (x) Stat. s. 122. (w) Cornish et al. v. Searell, 8 B. & C. 471. (v) Gravenor v. Woodhouse et al., 1 Bing. 38. 2 Id. 71. of the said house [or &c.] to the said plaintiff; and that a warrant do forthwith issue, to enforce this adjudication, and to require and authorize the bailiff of the said court to give possession of the said house [or &c.] to the said plaintiff, within days from the date of such warrant; and it is further ordered, that the said defendant do pay the said sum of £for the said plaintiff's costs, to the clerk of this court, at his office in — on or before the day of Given under the seal of the court, this 18-. day of Whereas at a county court duly holden at jurisdiction of the said court, on the day of within the before the judge of the said court, it was adjudged that the said plaintiff should recover against the said defendant possession of a certain house [or land, or part of a certain house, as in the judgment,] at together with the costs of suit, amounting to the sum of ; and it was then ordered that the defendant should forthwith quit and deliver up possession of the said house [&c.] to the said plaintiff; and that a warrant should forthwith issue, to enforce that adjudication, and to require and authorize the bailiff of the said court to give possession of the said house [&c.] to the said plaintiff within days from the date of the said warrant; and it was then further ordered that the defendant should pay the sum of· -for the said plaintiff's costs, to the clerk of the said court, at his office in, on or before the day of * And whereas the said defendant hath not quitted or delivered up possession of the said house, [&c.] to the said plaintiff; These are, therefore, to require and authorize you to give possession of the said house [&c.] to the said plaintiff, within days from the day of the date of this warrant. Given under the seal of the court, this 18-. day of Clerk of the court. Το bailiff of the said court (y). (y) This and the next form are not in the schedule to the rules. |