No. XXII. 4 George II. c. 28. When lessor in recover judg ment, &c. on the demised premises countervailing the arrears then due, and that the lessor or lessors in ejectment had power to re-enter; (1) then and in every such case the lessor or lessors in ejectment shall recover judgment and execution, in the same manner as if the rent in arrear had been legally demanded, and a re-entry made; and in case the lessee or lessees, his, her, or their assignee or assignees, or other person or persons claiming or deriving under the said leases, shall permit and suffer ejectment may judgment to be had and recovered on such ejectment and execution to be executed thereon, without paying the rent and arrears, together with full costs, and without filing any bill or bills for relief in equity, within six calendar months after such execution executed; then and in such case the said lessee or lessees, his, her, or their asssignee or assignees, and all other persons claiming and deriving under the said lease, shall be barred and foreclosed from all relief or remedy in law or equity, other than by writ of error, for reversal of such judgment, in case the same shall be erroneous, and the said landlord or lessor shall from thenceforth hold the said demised premises discharged from such lease; and if on such ejectment verdict shall pass for the defendant or defendants, or the plaintiff or plaintiff's shall be nonsuited therein, except for the defendant or defendants not confessing lease, entry and ouster, then in every such case such defendant or defendants shall have and recover, his, her, and their full costs: Provided always, That nothing herein Not to bar the contained shall extend to bar the right of any mortgagee or mortgagees right of any of such lease, or any part thereof, who shall not be in possession so as mortgagee. such mortgagee or mortgagees shall and do, within six calendar months after such judgment obtained, and execution executed, pay all rent in arrear, and all costs and damages sustained by such lessor, person or persons entitled to the remainder or reversion as aforesaid, and perform all the covenants and agreements, which on the part and behalf of the first lessee or lessees are and ought to be performed. III. And be it further enacted by the authority aforesaid, That in case the said lessee or lessees, his, her, or their assignee or assignees, or other person or persons claiming any right, title or interest, in law or equity, of, in, or to the said lease, shall, within the time aforesaid, file one or more bill or bills, for relief in any court of equity, such person or persons shall not have or continue any injunction, against the proceedings at law on such ejectment, unless he, she, or they do or shall, within forty days next after a full and perfect answer shall be filed by the lessor or lessors of the plaintiff in such ejectment, bring into court, a sufficient distress up to the day of the demise, or on the 6th of June (supposing that to be necessary) the case of the plaintiff, as to there being no sufficient distress, was held to be sufficiently proved to bring the case within the Act; Doe v. Smelt, 15 E. 286. (1) An ejectment can only be maintained under the statute in case there is no distress, or at common law in case a demand is made on the day, with all requisite formalities; Doe d. Forster v. Wandlass, 7 T. R. 117. It is not necessary to make any demand in order to entitle a plaintiff to recover in a case brought in other respects within the Act, although the proviso for re-entry be expressed to be in case of the rent being in arrear (being lawfully demanded); Doe d. Scholfield v. Alexander, 2 M. and S. 525. When, by the terms of the lease, there is a proviso for re-entry in case of nonpayment, although not lawfully demanded, an ejectment may be maintained without reference to the statute, the demand being dispensed with by the express terms of the lease; and by Lord Mansfield-"The Act of 4 Geo. II. is very perplexed: but the meaning certainly only is, that Lessees filing bill in equity, not to have an injunction against proceeding at law, &c. where there is no stipulation in the lease for entry without demand, you may notwithstanding enter without demand, provided six months' rent is in arrear, and there is not a sufficient distress; otherwise, in such cases you must make a demand;" Goodright d. Hare v. Cater, Doug. 478. It is always desirable that the proviso should be for re-entry, although the rent be not demanded, and that no mention should be made of there being no sufficient distress; and this would be no essential prejudice to the lessee, as in case there is a sufficient distress, it could be disposed of to the most advantage under his own directions, and there can be no doubt that he would be relieved from the forfeiture, if not at law, at least in equity, by payment according to the terms of the Act. In Doe d. West v. Davis, 7 E. 363, it seems to be held, that the want of sufficient distress was not requisite in order to bring a case within the statute. But the report is in this respect not very clear; and the supposed doctrine seems contrary both to the case of Doe v. Wandlass, and to the express language of the Act. No. XXII. 4 George II. c. 28. Tenant paying all rent with costs proceed ings to cease. Method of recovering seck rents, &c. Chief leases maybe renewed without surrendering all the underleases. and lodge with the proper officer such sum and sums of money as the lessor or lessors of the plaintiff in the said ejectment shall, in his, her, or their answer, swear to be due and in arrear, over and above all just allowances, and also the costs taxed in the said suit, there to remain till the hearing of the cause, or to be paid out to the lessor or landlord on good security, subject to the decree of the court; and in case such bill or bills shall be filed within the time aforesaid, and after execution is executed, the lessor or lessors of the plaintiff shall be accountable only for so much and no more, as he, she, or they shall really and bona fide, without fraud, deceit, or wilful neglect, make of the demised premises from the time of his, her, or their entering into the actual possession thereof, and if what shall be so made by the lessor or lessors of the plaintiff, happen to be less than the rent reserved on the said lease, then the said lessee or lessees, his, her, or their assignee or assignees, before he, she, or they shall be restored to his, her, or their possession or possessions, shall pay such lessor or lessors, or landlord or landlords, what the money so by them made, fell short of the reserved rent, for the time such lessor or lessors of the plaintiff, landlord or landlords, held the said lands. IV. Provided always, and be it further enacted by the authority aforesaid, That if the tenant or tenants, his, her, or their assignee or assignees, do or shall at any time before the trial (1) in such ejectment, pay or tender to the lessor or landlord, his executors or administrators, or his, her, or their attorney in that cause, or pay into the court where the same cause is depending, all the rent and arrears, together with the costs, then and in such case, all further proceedings on the said ejectment shall cease and be discontinued: and if such lessee or lessees, his, her, or their executors, administrators or assigns, shall, upon such bill filed as aforesaid, be relieved in equity, he, she, and they shall have, hold and enjoy the demised lands, according to the lease thereof made, without any new lease to be thereof made to him, her, or them. "V. And whereas the remedy for recovering rents seck, rents of assize ' and chief rents, are tedious and difficult,' Be it therefore enacted by the authority aforesaid, That from and after the twenty-fourth day of June One thousand seven hundred and thirty one, all and every person or persons, bodies politic and corporate, shall and may have the like remedy by distress, and by impounding and selling the same, in cases of rents seck, rents of assize and chief rents, which have been duly answered or paid for the space of three years, within the space of twenty years (2) before the first day of this present session of Parliament, or shall be hereafter created, as in case of rent reserved upon lease; any law or usage to the contrary notwithstanding. VI. And whereas many persons hold considerable estates by leases ' for lives or years, and lease out the same in parcels to several under'tenants: And whereas many of those leases cannot by law be renewed 'without a surrender of all the under-leases derived out of the same, so that it is in the power of any such under-tenants to prevent or delay the renewing of the principal lease, by refusing to surrender their under-leases, notwithstanding they have covenanted so to do, to the great prejudice of their immediate landlords the first lessees:' For preventing such inconveniencies, and for making the renewal of leases more easy for the future, Be it enacted by the authority aforesaid, That in case any lease shall be duly surrendered in order to be renewed, and a new lease made and executed by the chief landlord or landlords, the same new lease shall without a surrender of all or any the under-leases be as good and valid to all intents and purposes as if all the under-leases derived thereout had been likewise surrendered at or before the taking of such new lease; and all and every person and persons in whom any estate for life or lives, or for years, shall from time to time be vested by virtue of such new lease, and his, her, and their executors and ad (1) The Court refused to relieve after trial; Doe d. West v. Davis, 7 E. 363. (2) See Bradbury v. Wright, Doug. 627. No. XXII. 4 George II. c. 28. ministrators, shall be entitled to the rents, covenants and duties, and have like remedy for recovery thereof, and the under-lessees shall hold and enjoy the messuages, lands, and tenements in the respective underleases comprised, as if the original leases, out of which the respective under-leases are derived, had been still kept on foot and continued, and the chief landlord and landlords shall have and be entitled to such and the same remedy, by distress or entry in and upon the messuages, lands, tenements and hereditaments comprized in any such under-lease, for the rents and duties reserved by such new lease, so far as the same exceed not the rents and duties reserved in the lease, out of which such under-lease was derived, as they would have had in case such former lease had been still continued, or as they would have had in case the respective under-leases had been renewed under such new principal lease; ; any law, custom or usage to the contrary hereof notwithstanding. VII. Provided always, That nothing in this Act contained shall ex- Not to extend tend to that part of Great Britain called Scotland. [No. XXIII. ] 11 George II. c. 19.-An Act for the more effectual securing the Payment of Rents, and preventing Frauds by Tenants. to Scotland. c. 19. WH HEREAS the several laws heretofore made for the better security 11 George II. of rents, and to prevent frauds committed by tenants, have not proved sufficient to obtain the good ends and purposes designed thereby, 'but rather the fraudulent practices of tenants, and the mischief in- Preamble. tended by the said Acts to be prevented, have of late years increased, 'to the great loss and damage of their lessors or landlords;' For remedy whereof, may it please your most excellent Majesty, that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the twenty-fourth day of June, in the Landlords may year of our Lord One thousand seven hundred and thirty-eight, in case distrain and sell any tenant or tenants, lessee or lessees, for life or lives, term of years, goods fraudu at will, sufferance, or otherwise, of any messuages, lands, tenements, lently carried or hereditaments, upon the demise or holding whereof any rent is or off the premises shall be reserved, due, or made payable, shall fraudulently or clan- within thirty destinely convey away, or carry off or from such premises, his, (1) her, days, unless or their goods or chattels, to prevent the landlord or lessor, landlords sold to any peror lessors, from distraining the same for arrears of rent so reserved, son not privy to the fraud. due, or made payable; (2) it shall and may be lawful to and for every landlord or lessor, landlords or lessors, within that part of Great Britain called England, dominion of Wales, or the town of Berwick-uponTweed, or any person or persons by him, her, or them, for that purpose lawfully empowered, within the space of thirty days next ensuing such conveying away or carrying off such goods or chattels as aforesaid, to take and seize such goods and chattels, wherever the same shall be found, as a distress for the said arrears of rent; and the same to sell, or otherwise dispose of, in such manner as if the said goods and chattels had actually been distrained by such lessor or landlord, lessors or landlords, in and upon such premises, for such arrears of rent; any law, custom, or usage to the contrary in any wise notwithstanding. II. Provided always, That no landlord or lessor, or other person entitled to such arrears of rent, shall take or seize any such goods or chattels as a distress for the same, which shall be sold bonâ fide, and for (1) The stat. 11 Geo. II. c. 19., empowering landlords to follow goods fraudulently and clandestinely carried off the premises within thirty days, applies to the goods of the tenant only, and not to those of a stranger: wherefore, a plea justifying the following goods off the premises, and distraining them for rent arrear, must shew that they were the tenant's goods; Thornton v. Adams, 5 M. & S. 38. (2) In order to justify the landlord distraining under this Act, the removal must have taken place after the rent became due, and must have been secret, and not open and in the face of day; Watson v. Mann, 3 Esp. Rep. 16. No. XXIII. a valuable consideration, before such seizure made, to any person or 11 Geo. II. persons not privy to such fraud as aforesaid; any thing herein contained to the contrary notwithstanding. c. 19. III. And to deter tenants from such fraudulent conveying away their goods and chattels, and others from wilfully aiding or assisting therein, or concealing the same; Be it further enacted by the authority aforesaid, That from and after the said twenty-fourth day of June, if any such tenant or lessee shall fraudulently remove and convey away his or her goods or chattels as aforesaid, or if any person or persons shall wilfully and knowingly aid or assist any such tenant or lessee in such fraudulent conveying away or carrying off of any part of his or her goods or chattels, or (1) in concealing the same; all and every person and persons so offending, shall forfeit and pay to the landlord or landlords, lessor or lessors, from whose estate such goods and chattels were fraudulently carried off as aforesaid, double the value of the goods (2) by him, her, or them respectively carried off or concealed as aforesaid; to be recovered by action of debt in any of his Majesty's courts of record at Westminster, or in the courts of session in the counties palatine of Chester, Lancaster, or Durham respectively, or in the courts of grand sessions in Wales, wherein no essoin, protection, or wager of law shall be allowed, nor more than one imparlance. IV. Provided always, and be it enacted by the authority aforesaid, That where the goods and chattels so fraudulently carried off or concealed shall not exceed the value of fifty pounds, it shall and may be lawful for the landlord or landlords from whose estate such goods or chattels were removed, his, her, or their bailiff, servant, or agent, in his, her, or their behalf, to exhibit a complaint in writing (3) against such offender or offenders, before two or more justices of the peace of the same county, riding, or division of such county, residing near the place whence such goods and chattels were removed, or (4) near_the place where the same were found, not being interested in the lands or tenements whence such goods were removed; who may summon the parties concerned, examine the fact, and all proper witnesses, upon oath, or if any such witness be one of the people called Quakers, upon affirmation required by law; and in a summary way determine, whether such person or persons be guilty of the offence, with which he or they are charged; and to enquire in like manner of the value of the goods and chattels by him, her, or them respectively so fraudulently carried off or concealed as aforesaid; and, upon full proof of the offence, by order (5) under their hands and seals, the said justices of peace may and shall adjudge the offender or offenders to pay double the value of the said goods and chattels to such landlord or landlords, his, her, or their bailiff, servant, or agent, at such time as the said justices shall appoint: And in case the offender or offenders, having notice of such order, shall refuse or neglect so to do, may and shall, by warrant under their hands and seals, levy the same by distress and sale of the goods and chattels of the offender or offenders: and for want of such distress, may commit the offender or offenders to the house of correction, there to be kept to hard labour without bail or mainprize (1) In Rex v. Middlehurst, 1 Bur. 399, an order of justices, founded upon the next section, for assisting in fraudulently removing OR Concealing, was held good. (2) In an action founded upon this provision, a variance in stating the amount of the rent in arrear is not material; Gwinet v. Philips, 3 T.R. 643. (3) It need not be upon oath; Rex v. Bissex, Burn, tit. Distress. (4) If goods are removed from one county into another, the proceeding may be before justices of either; semble Rex v. Morgan, Cal dec. 156. (5) In Rex v. Bissex, Burn, tit. Distress, it was ruled that a proceeding under this Act is an order, and not a conviction; and that therefore it was not necessary to set out the evidence; and several particular objections to the form of the order, in respect of the particulars necessary to be stated, were overruled. Upon the same distinction between an order and a conviction, it was ruled in the case of Rex v. Middleton, mentioned in the note to the last section, that the offence might be set out disjunctively; but in Rex v. Morgan, Caldec. 156, the proceeding seems to be treated as a conviction. for the space of six months, unless the money so ordered to be paid as aforesaid, shall be sooner satisfied. V. Provided also, That it shall and may be lawful for any person, who thinks himself aggrieved by such order of the said two justices, to appeal to the justices of peace at their next general or quarter sessions to be held for the same county, riding, or division of such county, who may and shall hear and determine such appeal, and give such costs to either party as they shall think reasonable, whose determination therein shall be final. VI. Provided also, That where the party appealing shall enter in a recognizance with one or two sufficient surety or sureties in double the sum so ordered to be paid, with condition to appear at such general or quarter sessions, the order of the said two justices shall not be executed against him in the mean time. VII. And be it further enacted by the authority aforesaid, That where any goods or chattels fraudulently or clandestinely conveyed or carried away by any tenant or tenants, lessee or lessees, his, her, or their servant or servants, agent or agents, or other person or persons aiding or assisting therein, shall be put, placed, or kept in any house, barn, stable, out-house, yard, close or place locked up, fastened, or otherwise secured, so as to prevent such goods or chattels from being taken and seized as a distress for arrears of rent; it shall and may be lawful for the landlord or landlords, lessor or lessors, his, her, or their steward, bailiff, receiver or other person or persons empowered to take and seize, as a distress for rent, such goods and chattels (first calling to his, her, or their assistance, the constable, headborough, borsholder, or other peace officer of the hundred, borough, parish, district or place, where the same shall be suspected to be concealed, who are hereby required to aid and assist therein: and in case of a dwelling-house, oath being also first made before some justice of the peace of a reasonable ground to suspect that such goods or chattels are therein) in the day-time, to break open and enter into such house, barn, stable, out-house, yard, close and place, and to take and seize such goods and chattels for the said arrears of rent, as he, she, or they might have done by virtue of this or any former Act, if such goods and chattels had been put in any open field or place. VIII. And be it further enacted by the authority aforesaid, That from and after the said twenty-fourth day of June which shall be in the year of our Lord One thousand seven hundred and thirty-eight, it shall and may be lawful to and for every lessor or landlord, lessors or landlords, or his, her, or their steward, bailiff, receiver or other person or persons empowered by him, her or them, to take and seize, as a distress for arrears of rent, any cattle or stock of their respective tenant or tenants, feeding or depasturing upon any common, appendant or appurtenant, or any ways belonging to all or any part of the premises demised or holden; and also to take and seize all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever (1) which shall be growing on any part of the estates so demised or holden, as a distress for arrears of rent; and the same to cut, gather, make, cure, carry, and lay up, when ripe, in the barns, or other proper place on the premises so demised or holden; and in case there shall be no barn or proper place on the premises so demised or holden, then in any other barn or proper place which such lessor or landlord, lessors or landlords, shall hire or otherwise procure for that purpose, and as near as may be to the premises; and in convenient time to appraise, sell, or otherwise dispose of the same, towards satisfaction of the rent for which such distress shall have been taken, and of the charges of such distress, appraisement and sale, in the same manner as other goods and chat (1) Trees growing in a nurseryman's ground, who was a yearly tenant to the plaintiffs, and removable, by such tenant from time to time, are not distrainable for rent, under sect. 8. Clark v. Calvert, 3 Moore, 96. |