tress to be

What the affidavit ought to contain.

re-enter for non-payment thereof, and no sufficient distress rent and no be found on the premises to satisfy the same, the landlord sufficient, disshall and may, without any formal demand or re-entry, found on the serve a declaration in ejectment for the recovery of the premises. demised premises; or in case no tenant be in actual possession, then to affix the same upon the door of any demised messuage; or in case such ejectment shall not be for the recovery of any messuage, then upon some notorious place of the lands, &c. comprised in such declaration; and such affixing shall be deemed legal service, which shall stand in the name and place of a formal re-entry; and in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry, and ouster, it shall be made appear to the court, where the suit is depending by affidavit, or to be proved upon the trial, in case the defendant appears, that half a year's rent was due before the said declaration was served, and that no sufficient distress was to be found on the demised premises, countervailing the arrears then due; and that the lessors or lessor in ejectment had power to re-enter, then the lessor shall recover judgment, and have execution; Bill in equity which if the lessee suffer, without paying arrears and not filed withcosts, and without filing a bill in equity to be relieved in six months, within six months, he shall be barred from all relief, no relief. other than by a writ of error; and the lessor shall hold the premises discharged from the lease; but if the tenant or lessee, tender to the lessor, or bring into court the rent in arrear, together with costs, all further proceedings shall cease: and if the lessee be relieved in equity he shall enjoy the demised premises, according to his lease, without obtaining a new one. N. B. This is not to Mortgagee. bar the right of a mortgagee, who may pay the rent in arrear within six months, and costs.

If the lessee file a bill in equity for relief, he must If lessee file a bring into court in forty days after the lessor's answer, bill, he must so much as he could swear to be due, over and above bring into court all the the costs, there to remain till hearing. Sect. 3. Provided, -if the tenant shall, before trial, pay or tender to the lessor, &c. or pay into court all the rent, with costs, further proceedings shall cease. Sect. 4.

rent, &c.

The true intention of this act was to take off from Construction the landlord the inconvenience of his continuing always of the act. liable to an uncertainty of possession (from its remaining in the power of the tenant to offer him a compensation at any time, in order to found an application for relief in equity,) and to limit and confine the tenant to six calendar months after execution executed, for his doing

this; or else that the landlord shall from thenceforth hold the demised premises discharged from the lease. 1 Burr. 619. Doe v. Lewis.

The court will not after a trial, stay the proceedings Application to pay rent must on payment of the rent, &c. the statute only warranting be made be- such application before trial; and the statute is not confore trial, &c. fined to cases in ejectment brought after half a year's rent, where no sufficient distress was to be found on the premises. Roe dem. West v. Davis, 7 East, 363. 5 Term Rep. 465. Bull. N. P. 95. qu. Ed. Pure v.

Tenant may apply to pay rent, &c.

Even after

Sturdy.

If the tenant is served with a declaration in ejectment upon this act of parliament, he may apply by summons to stay proceedings upon payment of the rent and costs to be taxed. Str. 900. 8 Mod. 345. 10 Mod. 383.

This may be done even after judgment against the judgment and casual ejector, and before any writ of possession. Str. 900. Goodtitle v. Holdfast.

before pos

session. Ejectment how to be prepared.

Affidavit to move for judgment.

The ejectment is prepared as before, (it is not neces sary to make an actual entry or seal a lease,) laying your demise after the rent became due, which is generally twenty days after the quarter ended; after service thereof, the following affidavit is necessary, entitling the

cause.

J. K. of, &c. merchant, the lessor of the plaintiff in this cause, and J. B. of, &c. gentleman, severally make oath and say; and first this deponent J. B. for himself saith, that on the day of last past, and for several days before, the messuage (a) in the annexed declaration of ejectment mentioned, was shut up, and there being no tenant in the actual possession thereof, he this deponent did, on the day of last, affix a true copy of the declaration in ejectment, hereto annexed, and the notice thereunder written, upon the door of the said messuage, in the said declaration mentioned, late in the tenure of A. B. being the most noto. rious part thereof. And this deponent J. K. for himself saith, that before such copy of the declaration in ejectment was affixed as aforesaid, there was due to him

(a) Here state the premises for which the ejectment is brought (if for lands only) say, being a notorious place of the lands comprised in the said declaration in eject

ment.

this deponent, as landlord thereof, from the said A. B.
the tenant thereof, the sum of 141. for half a year's rent
upon and by virtue of a certain indenture of lease, bear-
ing date the
day of
1817, and made be-
tween this deponent of the one part, and the said A. B.
of the other part; and that no sufficient distress was then
to be found upon the said messuage, with the appurte-
nances, countervailing the arrears of rent then due to this
deponent; and this deponent further saith, that, at the
time of affixing the copy of the said declaration in eject-
ment as aforesaid, he had power to re-enter the said
messuage, with the appurtenances by virtue of the said
lease, for the non-payment of the rent so in arrear as
aforesaid. Vide Cooke's Rep. 68.

Move on this affidavit as before, for judgment against How to move for judgment. the casual ejector, pay counsel's fee 10s. 6d. and if no appearance and plea, draw up rule for judgment, and sign same.

Where there is no stipulation in the lease for entry When landwithout demand, you may, notwithstanding, enter with- lord may enout demand, provided six months rent is in arrear, and ter. there is not a sufficient distress; otherwise, in such cases, you must make a demand. Goodtitle v. Cator, Dougl. An actual en486. An actual entry is not necessary to maintain this ejectment. Ibid. 485. 2 Ld. Raym. 750. 1 Salk. 259. sary.

try not neces

If the tenant appears and pleads, all the matters in the If tenant apabove affidavit must be proved on the trial. 1 Burr. 620. pears and Doe v. Lewis. (a)

Proceedings under the stat. 11 Geo. 2. c. 19.

It may in this place be proper to notice a provision which the legislature has made for landlords, where tenants desert the premises, by stat. 11 Geo. 2. c. 19. s. 16. after stating that," whereas landlords are often great suf"ferers, by tenants ruuning away in arrear, and not "only suffering the demised premises to be uncultivated, "without any distress thereon, whereby landlords or les"sor might be satisfied for the rent arrear, but also refusing to deliver up the possession of the demised

66

(a) In case of judgment against the casual ejector, and nonsuit for not confessing, &c. the stat. directs, that it shall be made appear to the court by affidavit." On the trial, the same thing must be proved. Dennison, J. ibid.

pleads, what proof requi

site.

"premises, whereby the landlords are put to the expence and delay of recovering in ejectments, enacts "that if any tenant holding any lands, tenements or "hereditaments at a rack-rent, or where the rent re"served shall be full three-fourths of the yearly value "of the demised premises, and leave the same uncul"tivated or unoccupied, so as no sufficient distress can "be had to countervail the arrears of rent, it shall and "may be lawful to and for two justices of the peace "of the county, riding, division, or place (having no "interest in the demised premises) at the request of the "lessor or landlord, lessors or landlords, or his, her or their bailiffs or receiver, to go upon, or view the same, and affix or cause to be affixed on the most "notorious part of the premises, notice in writing "what day (at the distance of fourteen days at least,) they will return to take a second view thereof, and "if upon such second view, the tenant or some person upon his or her behalf shall not appear and pay the

66

46

66

"rent in arrear, or there shall not be sufficient distress "upon the premises, then the said justices may put the "landlord or landlords, lessor or lessors, into the pos'session of the said demised premises; and the lease "thereof, to such tenants as to any demise therein "contained only, shall from thenceforth become void."

Provided always that such proceedings of the said justices shall be examinable in a summary way, by the next justice or justices of assize, of the respective counties in which such lands or premises lie; and if they lie in London or Middlesex, by the judges of the court of King's Bench and Common Pleas; if in the counties palatine, by the judges thereof; or if in Wales, then before the courts of Grand Sessions, who are thereby respectively empowered to order restitution to be made, to such tenant, together with his or her expences and costs, to be paid by the lessor landlord, if they shall see cause for the same, and in case they shall affirm the act of the said justices, to award costs, not exceeding 51. for the frivolous appeal. s. 17.

In Easter term, 41 Geo. 3. Gurney moved for a mandamus to be directed to some magistrates of the county of Middlesex, in order that they should proceed on s. 16. of this stat. and put a landlord into possession of some premises directed by the tenant. He stated his case to be within the act, and said that the magistrates had refused to interfere, because the tenant was a lodger only. Lord Kenyon, on referring to the act

asked whether the premises were on lease, and if there was a proviso for re-entering? On the counsel answering in the negative, his lordship said in his opinion the case was not within the act. The preamble of the act spoke of the expence and delay to which landlords were put, in bringing ejectments; it seemed therefore to -him, that the cause applied only to cases where the landlord could support an ejectment, as where there was a written lease with a condition to re-enter if no such thing existed; in this case the magistrates had done right in refusing to interfere. Rule refused. MS. case, cited Joodf. Land. and Ten. 4 Ed. 430.

If brought for Non-payment of Rent only.

By the determination in the case of Goodright v. Cator, it appears if an ejectment is brought for non-payment of rent only, and not under the above statute, a demand must be made of such rent, on the day it becomes due, and it is a proceeding at common law. 7 Term Rep. 117. Doe v. Wandless.

ticular of the

In an ejectment for the forfeiture of a lease, the court For the forwill compel the plaintiff to give in a particular of the co- feiture of a venants of the breaches of the times when, &c. on which lease, a parhe means to insist that the defendant has forfeited his breaches may lease, and extend the rule that he shall not be permitted be had. to give evidence at the trial of any thing, not contained in those particulars. Birch v. Phillips, 6 Term Rep. 597..

Proceedings by a Mortgagee.

If the mortgagee have a right of entry, and the premises be tenanted, he may serve an ejectment; but if the premises be vacant, then he must seal a lease thereon as before stated.

tice.

It appears that a mortgagee may recover in ejectment When no no(without notice to quit) against a tenant who claims on a lease from the mortgagor granted after the mortgage, without the privity of the mortgagee. Keech v. Hall, Dougl. 21. 3 East, 449. S. P.

But if there is a tenant from year to year, and the When neceslandlord mortgages, pending the year, the tenant is en- sary. titled to six months notice to quit from the mortgagee. Birch v. Wright, 1 Term Rep. 378.