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Of Proceeding to recover Premifes according to the 4 Geo. 2. c. 28. by a Landlord having a Right of Re-entry.

Y the * 4 Geo. 2. c. 28. S. 2. after reciting that inconve

happen in

re-entry for non-payment of rent, by reafon of the many niceties that attend the re-entries at common law,

&c.

It is enacted," That in' all cafes between landlord and "tenant, as often as it fhall happen that one half year's "rent fhall be in arrear, and the landlord or leffor, to "whom the fame is due, hath right by law to re-enter for "the non-payment thereof; fuch landlord or leffor, fhall

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and may, without any formal demand or re-entry, ferve "a declaration in ejectment for the recovery of the demifed "premifes; or in cafe the fame cannot be legally ferved,. 66 or no tenant be in actual poffeffion of the premises, then to affix the fame upon the door of any demifed mefluage; or in cafe fuch ejectment fhall not be for the recovery of any meffuage, then upon fome notorious place of the lands, tenements, or hereditaments, comprized. in fuch "declaration in ejectment; and, fuch affixing fhall be deemed legal fervice thereof; which fervice, or affixing fuch deion in ejectment, fhall ftand in the place. and ftead of a demand and re-entry; and, in cafe of judgment against the cafual ejector, or nonfuit, for not "confeffing leafe, entry and oufter, it shall be made appear "to the court, where the faid fuit is depending, by affida vit, or be proved upon the trial, in cafe the defendant appears, that half a year's rent was due before the faid declaration was ferved.; and that no fufficient diftress * was to be found on the demifed premiffes countervailing the arrears then due; and that the leffor, or leffors, in Sc ejectment had power to re-enter: then, and in every fuch cafe, the leffor, or leffors in ejectment, hall ́recover judgment and execution, in the fame manner as if "the rent in arrear had been legally demanded, and a reentry made;, and in cafe the leffee or leffees, his, her, or their affignee or affignees, or other perfon or perfons claiming or deriving under the faid leafes, fhall permit "and. fuffer judgment to be had and recovered on fuch

66.

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This ftatute relates only to ejectments for non-payment of

rent, where the landlord has a right to re-enter.

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ejectment

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Of Proceeding to recover Premifes according to the 4 Geo, 2. c. 28. by a Landlord having a Right of Re-entry.

ejectment, and execution to be executed thereon, without "paying the rent and arrears, together with full cofts, "and without filing any bill or bills for relief in equity, "within fix calendar months after fuch execution exe"cuted; then, and in fuch cafe, fuch leffee, or leffees, &c. and all others claiming and deriving under the faid leafe, fhall be barred or foreclofed from all relief or remedy in law or equity, other than by writ of error for reverfal of fuch judgment, in cafe the fame fhall be erroneous "and the faid landlord, or leffor, fhall, from thenceforth, "hold the faid demifed premiffes difcharged from fuch "leafe and if on fuch ejectment verdict fhall pafs for the "defendant, or the plaintiff fhall be nonfuited therein, except for the defendant's not confeffing, &c. then, in every such case, fuch defendant fhall have and recover "his, her, or their full cofts: Provided always, That no"thing herein contained fhall extend to bar the right of any mortgagee, or mortgagees, of fuch leafe, or any "part thereof, who fhall not be in poffeffion, fo as fuch mortgagee, or mortgagees, fhall and do, within fix cá "lendar months after fuch judgment obtained, and exe"cution executed, pay all rent in arrear, and all cofts and damages fuftained by fuch leffor, perfon or perfons, entitled to the remainder or reverfion as aforefaid, and per"form all the covenants and agreements, which, on the part and behalf of the firft leffee or leffees, are and ought "to be performed."

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By feet. 3. "a leffee, filing a bill in equity, fhall not have an injunction, unless, within forty days after the answer of the leffor, he bring into court fo much as the leffor fhall in his faid anfwer fwear to be due, over and above allowances and cofts, there to remain till hearing, or to be paid to the leffor, fubject to the decree of the court: and in case fuch bill fhall be filed within the time, and after execution executed, the leffor of the plaintiff fhall be accountable only" for fo much, and, no more, as he fhall really make bona fide of the demifed premifes from the time of his entering into poffeffion; and if what shall be fo made fhall appear to be, lefs than the rent referved on the lease, then the ledice, shall, before he be restored to his poffeffion, pay to the leflor the deficiency."

3

Sect

Of Proceeding to recover Premises according to the 4 Geo. 2. c. 28. by a Landlord having a Right of Re-entry.

Sect. 4. Provided, "That if the tenant, &c. fhall, at any time before the trial in fuch ejectment, pay, or tender to the leffor, &c. or pay into court all the rent and arrears, together with cofts, then further proceedings on the ejectment fhall ceafe; and if the leffee, &c. fhall, upon the bill filed as aforefaid, be relieved in equity, fuch leffee, &c. fhall hold the demifed premiffes according to the leafe thereof, without any new leafe to be made thereof."

Note: The courts had permitted the tenant to bring into court the arrears of rent and cofts, antecedent to this act. Salk. 597:

After judgment against the cafual ejector, and before any writ of poffeffion executed, the court made a rule to ftay the proceedings, on payment of all rent due and costs, it not being pretended, that the ejectment was brought on any other title than a re-entry for non-payment of rent. Stra. 900.

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Per lord Mansfield, in the cafe of Doe ex dem. Hitchings v. Lewis, Burr. 4 pt. 614. The true end of this act of pår liament is to take off from the landlord the inconvenience of his continuing always liable to an uncertainty of poffeffion, [from its remaining in the power of the tenant to offer him a compenfation at any time, in order to found an application for relief in equity] and to limit and confine the tenant to fix calendar months after execution executed, for his doing this; or elfe, that the landlord fhould from thenceforth hold the demifed premiffes difcharged from the leafe.

In moving for judgment upon a declaration in ejectment delivered, or in cafe of no tenant, affixed on the premiffes, according to this act of 4 Geo. 2. c. 28. the courts require an affidavit, that there was half a year's rent in arrear before declaration ferved, that the leffor of the plaintiff had a right to re-enter, that no fufficient diftrefs was to be found on the premifes countervailing the arrears of rent then due, that the premifes were untenanted, or that the tenant could not be legally ferved with the declaration, (as the cafe is) and that a copy of the declaration was affixed on the most notorious, and what part of the premises, or the court will not give a rule for judgment.

The

Of Proceeding to recover Premifes according to the 4 Geo. 2. c. 28. by a Landlord having a Right of Re-entry.

The affidavit must be to the following effect:

In the

Between

George Hunt on the demife of A. B. plaintiff, againft

Richard Roe defendant in ejectment.

day of

A. B. the leffor of the plaintiff in this caufe, and John
Dixon of, Sc. feverally make oath and firit, this
deponent John Dixon, for himself, "faith, that he
this deponent did, on the
inftant, ferve a true copy of the declaration ià
ejectment hereunto annexed, and the English notice
thereunto written,, by affixing the fame copy on the
freet door or outward door of the meffuage in question,
mentioned in the faid declaration, and late in the
poffeffion of Philip Howe: and this deponent, A
B. faith, that half a year's rent then was and now
is due, and in arrear to him this deponent, from
the faid Philip Howe, before the faid declaration
was ferved and this deponent further faith, that
he this deponent then was, and now is, Jandlord
of the faid meluage, and that the faid Philip.
Howe then was, and now is, tenant to this de-
ponent, and holds the faid meffuage by deafe from
this deponent; and this deponent alfo faith, that
it appears by the faid leafe, that he, the faid de-)
ponent then had, and now hath power to re-enter
on the faid meffuage for the non-payment of the
faid. half year's rent, and this deponent further
faith, that before the faid ejectment was ferved,
no fufficient distress was to be found on the said.
meffuage, countervailing the arrears of rent then
due to this deponent.

Sworn, &c.

This affidavit is only neceffary upon moving for judgment against the cafual ejector, or after a nonfuit at the trial for the tenants not conting leafe, entry and ouster.

But if the tenant appears, and the ejectment comes to a tial, all the matters in the above affidavit must be proved

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Of Proceeding to recover Premifes according to the 4 Geo. 2. c. 28. by a Landlord having a Right of Re-entry

upon the trial. Per Dennison, just. in the cafe of Doe ex dem. Hitchings v. Lewis, Burr. 4 pt. 614.

The late tenant, or other perfon, claiming title to the premiffes, has the fame time, to appear in as is allowed to tenants in poffeffion.

In ejectment by a landlord, the tenant moved to stay proceedings upon payment of rent, arrear, and cofts, according to fec. 4. of the above act. And, on a rule to thew caufe, it was infifted for the plaintiff, that the cafe was not within the act, but that it was brought likewife on a claufe of re-entry in the leafe for not repairing. And the leafe was produced in court. However, the rule was made abfolute, with liberty for the plaintiff to proceed upon any other. title. Piere ex demife Withers v. Sturdy. H. 1752,

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By this ftatute 4 Geo. 2. where a landlord has a tight of re-entry, and there is half a year's rent due and unpaid, and no fufficient diftrefs on the premises, or the fame are untenanted, there is no occafion for the landlord to make an actual entry, and feal a leafe on the premises in the prefence of fome perfon, as must be done in all other cafes where the premises are untenanted. The method of proceeding to recover which, by a perfon claiming title, is as follows:

Of

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