held by the occupier as owner, or under the same landlord. The Rent-Charge is apportioned among the lands of the parish, s. 33, 53, and the amount is charged upon the particular allotment, s. 55, and to be issuing thereout, s. 67, and in s. 81 and 82, the particular allotments seem to be considered as the lands liable to the payment, and although, by s. 85, the lands in the parish, held by the same occupier, either as owner, or under the same landlord, are made liable to be distrained or entered upon for the arrears of Rent-Charge, yet if there is no sufficient distress on the premises primarily charged, the writ may be issued, except in the case of Quakers. Re Hammersfield Rent-Charge Exch. Hilary Term, 1849. SECTION II. Of the Application for the Writ to assess the arrears of Rent-Charge. 361. Any Judge of the Courts at Westminster. The Court is not authorized to order the writ to be issued. The application is to be made to one of the Judges at chambers, which hitherto has been done ex parte, without previously summoning the landowner or occupier. The question whether the application should be made ex parte, or upon summoning the party, was argued before the Court of Exchequer, in Re Hammersmith Rent-Charge, in Hilary Term, 1849, the Court has not yet given its decision, but the majority of the Court were of opinion, that the order should be made ex parte. SECTION III. Of the Affidavit. 362. Upon Affidavit of the facts. The affidavit should set out the agreement or award for the Commutation of the Tithes, and the apportionment, so far as they apply to the apportioned Rent-Charge in arrear. 363. If the person entitled to the Rent-Charge has become owner of the Rent-Charge since the Commutation, the fact should be shown. 364. The affidavit should also state what halfyearly sums are in arrear, and that one of them, at the least, has been in arrear for the space of forty days after it became due. 365. There must also be an affidavit of there being no sufficient distress. This affidavit ought to be made by a third person, who could, on any future occasion, if necessary, testify to the fact. The affidavit of a sworn appraiser, or some one cognizant of such matters, would be preferable. 366. If there is property on the premises, the ten days' notice of intention to distrain should be served, and at the expiration thereof, attendance should be given for the purpose of making the distress, and admittance to the premises demanded; and, if necessary, a previous written appointment may be given. If the occupier refuses to permit or give access, the distress cannot be made, and, conse quently, there would, in such case, be no sufficient distress. See Nos. 352, 353. 367. The affidavit of the Rent-Charge being unpaid should be made by the owner of the RentCharge, if convenient, and in which his collector, if he employs one, should join, and the facts should be deposed to positively. But if the collection of the Rent-Charge is left wholly to the collector, or if from other circumstances he can swear positively to the non-payment, his affidavit of this fact would be sufficient. 368. Likewise the affidavit of there being no sufficient distress should be positive. The affidavits should, in fact, form a complete and conclusive case on the part of the owner of the Rent-Charge, to entitle him to the remedy by entry. 369. An affidavit that there was no sufficient distress when search was made shortly before the issuing of the writ, is prima facie evidence that there was no sufficient distress at the time of issuing the writ (No. 354). But it must be remembered that, if at the time of issuing the judge's order, and the writ, there be sufficient distress, although there was not at the time search was made, the writ might be considered irregular. Not more time should intervene, therefore, between the search for distress and the application for the writ, and the issuing of it, than possible. SECTION IV. Of the Order. 370. To Order. The affidavits being laid before a judge at chambers, he will order the writ to issue. The judges seem to make these orders almost as of course, leaving the responsibility to the party making the application. The materials for the application, therefore, require the greater caution in their preparation. 371. The order should be drawn up on reading the affidavits laid before the judge. Care should be taken that there is no omission in this respect. 372. The order should be in the words of the statute, or in words to the like purport or intent. SECTION V. Of the Writ for assessing the arrears of Rent- 373. The statute authorizing a judge to order the writ to be issued, in effect authorizes the issuing of the writ thereon. The writ is in practice issued out of the Court in which the affidavit is entitled, in like manner as other writs. This was, no doubt, the intention of the Act. 374. The writ is to be directed to the sheriff of the county in which the lands chargeable with the Rent-Charge are situated, requiring the sheriff to summon a jury to assess the arrears of Rent-Charge, and to return the inquisition to one of the Courts at Westminster, and may be made returnable on any day in term or vacation. 375. There can be no doubt that this writ may be tested in vacation, and it should be tested on the day of the issuing. Otherwise, where the RentCharge becomes due the 1st January, or the 1st July, the writ could not issue until the following term; whereas the statute authorizes its being issued on the 42nd day. The old rule of practice that a writ could be tested only in term time, having been innovated upon in respect of writs of summons, and some other processes, there can be no objection to the writ for assessing the arrears of Rent-Charge being also tested in vacation. 376. The return should be made three or four weeks after the time at which it is expected the writ will be executed before the sheriff, in order to meet any unforeseen circumstance which might cause the execution of it to be postponed. The three or four weeks would afford time to effect another service of the copy of the writ, or notice of executing it, if requisite, without getting the return of the writ enlarged. 377. It is important that the statements contained in the writ correspond with, and be fully warranted by the affidavits laid before the judge. |