Of Proceeding to recover Premifes untenanted.

IN all cafes, where there is no tenant on the premises, and

tenant, where the landlord has a right of re-entry, on half a year's rent being due and unpaid, and he proceeds according to the 4 Geo. 2. c. 28. ante] the proceedings are in the old way by fealing a leafe on the premises; and then, on the motion for judgment, there must be an affidavit, of the fealing of the leafe, and the purport of it to be shortly fet forth in the affidavit; and alfo in what manner the defendant got the poffeffion given to and taken from the lef fee, (who is always made plaintiff) and how the declaration was delivered to the defendant, that the court may judge of the regularity of the proceedings.

The method of proceeding is thus:

A. (the perfon claiming title) figns the following letter of attorney, to empower B. to execute a leafe in his name of the premises in queftion to C. which is done upon the premifes, B. and C. being only thereon; then B. after having executed the leafe to C. leaves him in poffeffion of the premises, who is turned out by D. to whom, while on the premises, E. delivers a declaration in ejectment; and then, on affidavit of the due execution of the letter of attorney, and executing the leafe in the above form, you move for judgment.

The letter of attorney is to the following effect:

"KNOW all men by thefe prefents, that I A. B. &c. have made, ordained, conftituted, and in my ftead and place, and by thefe do make, ordain, conftitute, and in my ftead and place put C. D. of, &c. my true and lawful attorney, for me, and in my name to enter into and take poffeffion of all, &c. in the tenure of, &c. and, when he hath taken poffeffion thereof and for me, in my name, and as my deed, to feal and execute a leafe of the faid premifes unto E. F. of, &c. to hold the fame to him, his executors, adminiftrators, and affigns, from laft paft, before the date hereof, years, at the yearly rent of a pepper-corn, (if lawfully demanded) subject VOL. II.

for the term of

N

to

Of Proceeding to recover Premifes untenanted.

to a provifo to be void on my tendering of 6 d. to the faid E. F.”

In witnefs, &c.

H. H. maketh oath, that he was present and did fee A. B. of, &c. duly fign, feal, and deliver the letter of attor ney hereunto annexed.

The leafe referred to by the above letter of attorney.

THIS INDENTURE made, &c. between
A. B. of, &c. of the one part, and E. F. of, &c,
of the other part, witneffeth, that the faid A. B.
for and in confideration of the fum of five fhillings
of lawful, &c. to him in hand paid by the faid
E. P. at and before the fealing and delivery of
thefe prefents, the receipt whereof the faid A. B.
doth hereby acknowledge, hath granted, demised,
fet, and to farm let unto the faid E. F. his ex-
ecutors and adminiftrators, all, &c. now or late
in the tenure of, &c. to have and to hold the faid
herein before mentioned and hereby demifed pre-
mifes, with all and every their appurtenances, unto
the faid. E. F. his executors, adminiftrators, and
affigns, from the
day of
Jaft
paft, before the date of thefe prefents, unto the
full end and term of five years from thence next en-
fuing, and fully to be compleat and ended, yield-
ing and paying therefore, during the faid term,
unto the faid A. B. or his affigns, the rent of one
pepper-corn, at the feaft of
yearly, (if
lawfully demanded) provided always, and thefe
prefents are on this condition nevertheless, that
if the faid A. B. or his affigns, fhall, at any time
or times hereafter, tender, or caufe to be tendered,
unto the faid E. F. the fum of 6 d. that then and
in fuch case, and from thenceforth, this inden-
ture, and every thing herein contained fhall cease,
determine, and be abfolutely void; any thing
herein contained to the contrary thereof in any
wife notwithstanding.

The attorney is to write the name
of his principal,

Sealed

Of Proceeding to recover Premifes untenanted.

Sealed and delivered as the act and deed of the above
named A. B. by C. D. of, &c. by virtue of a letter
of attorney to him for that purpose made by the
faid A. B. bearing date the
day of this in-
ftant, being firft duly ftamped in the presence of

The form of the affidavit required of the proceedings in cafe of a vacant poffeffion, is as follows:

H. H. of, &c. maketh oath, and faith, that he this deponent, on, &c. now last past, did see C. D. of, &c. for and in the name of A. B. the leffor of the premifes in this caufe, feverally enter upon and take poffeffion of part of the premises in the deed hereunto annexed mentioned, by entering into the first of the faid houses, and putting his foot on the threshold of the outer doors of two other of the faid houses, the fame being locked and uninhabited, fo that no other entry thereon, or poffeffion thereof, could be made or taken without force. And this deponent did then likewife fee the faid C. D. after fuch his entry into and upon the faid premifes, and whilft he was in fuch poffeffion thereof as aforefaid, at each of the faid houfes, feal and deliver the leafe hereunto annexed unto the plaintiff, and further faith, that after the faid leafe was fo executed, this deponent did fee the plaintiff take poffeffion of the faid three houfes with their appurtenances, by virtue of the faid leafe, by entering upon the threshold of the faid outer doors of the faid three houses, the fame being then locked and uninhabited, and no other entry to be made therein, fave as aforefaid, and this deponent faith, that immediately afterwards, the defendant did enter each and every of the faid three houfes, and turned the plaintiff out of poffeffion thereof, by thrufting him out of the fame; whereupon this deponent did then and there deliver and leave with the faid defendant, a true copy of the declaration hereunto annexed.

Sworn, &c.

H. H.

N 2

The

Of Proceeding to recover Premifes untenanted.

The declaration must be delivered, as in other cafes, before the effoin day of the term, in order to entitle the plaintiff to judgment as of that term; and there needs no notice at all at the end of the declaration; for instead of notice, the plaintiff only gives one rule to plead as in common actions; and on no plea being put in within the regular time, by the rule the plaintiff is entitled to judgment,

In cafes of vacant poffeffion, no perfon claiming title will be let in by the courts to defend; but he that can first feal a leafe on the premifes muft obtain poffeffion.

Bull. Ni. Pri. 96. I Barnes 122. And therefore, the perfon claiming title muft refort to his new ejectment,

Of

Of Proceeding to recover Premifes by a Mort

gagee.

Fa mortgagee of the premises, having a right of entry, wants to get poffeffion of the premifes, and the fame are untenanted, the mortgagee fhould feal a leafe, in order to nominate the plaintiff in ejectment, who is to be turned out by the nominal defendant, and then the ejectment must be delivered to the nominal defendant, to which declaration

there is no need of notice as in other cafes.

Such mortgagee, or leffor of plaintiff, fhould enter upon and take poffeffion of the premises in queftion, by going upon the land; or, if a houfe, by putting his foot upon the threshold of the house uninhabited; and then after fuch entry, and whilst he fo remains on the premises, feal and deliver a leafe to the nominal plaintiff, and give him poffeffion; and after fuch leafe is executed, and nominal plaintiff taken poffeffion, then the nominal defendant must come and put the plaintiff by, and take poffeffion of the said premifes, to whom, while he fo remains in poffeffion, another perfon muft deliver the declaration in ejectment.

The above leafe differs not from a leafe for a term, [which vide ante] only at the end is inferted the following claufe: "Provided always, and it is the true intent and meaning of these presents, that if I the faid leffor of the faid E. F. my executors, adminiftrators, or affigns, fhall at any time hereafter tender to the faid plaintiff, his executors, adminiftrators, or affigns, the fum of one fhilling; then these prefents, and every thing herein contained, thall be void and of no effect. In witnefs whereof, I the faid A. B. the leffor of the plaintiff, have fet my hand and feal the day and year firft above written. Signed, fealed, and delivered by the faid A. B. (leffor or mortgagee) to the faid E. F. the tenant or leffee, clofe to the threshold of the door of the said meffuage, in the presence of us,"

O. P.
Q. R.

Inftead of the notice at the foot of the declaration, there must be a rule to plead given in this cafe, and the parties must be all real perfons.

When the rule to plead is out, judgment may be figned, and the plaintiff has no occafion to move for judgmen, as in other cafes.