When proceedings will be stayed on payment of rent and costs. Where, in a country cause, a declaration in ejectment was delivered on the 30th of September, and, on the fifth day of the ensuing Hilary term, a motion was made to stay proceedings in that ejectment until the costs of a former ejectment were paid; held, that the motion was not too late, although a term had elapsed since the commencement of the action, and notice of trial had been given a. 3.-Payment of rent and costs under 4 Geo. II. c. 28.] In ejectment for non-payment of rent, under 4 Geo. II. c. 28, it is provided by section 4 of that statute, that if the tenant shall at any time before the trial pay or tender to the landlord, his executor, or attorney in the cause, or pay into court, all the rent and arrears, together with costs, all further proceedings in the ejectment shall cease and be discontinued ". By the terms of this enactment, the application on behalf of the tenant to stay proceedings, on payment of the rent and costs, must be made before the trial, the court therefore will not grant such an application after the trial, even though the case may not be strictly within the statute; as where the proviso in the lease was, that if the rent was in arrear for twentyone days the lessor might re-enter, the court refused such an application made after the trial 4. Nor will they grant it, except by consent, where a writ of possession is executed. Where the rent was tendered after the landlord had given instructions to his attorney to commence an action, and before the declaration had been delivered, the court set aside the subsequent proceedings with costs. Doe d. Martin v. Packer, 2 C. & M. 457. > Before this statute, courts of law and equity exercised a discretionary power of staying the lessor from proceeding at law in cases of forfeiture for non-payment of rent, by compelling him to take the money due to him. See the opinion of Lee, C. J., in Archer v. Snapp, Andr. 341. 2 Salk. 597. 10 Mod. 383. 1 Wils. 75. 2 Str. 900. S. N. P. 717. Upon a motion to set aside an ejectment and restore the possession Where the lessors of the plaintiff were both devisees and executors, and in each capacity rent was due to them, the defendant moved to stay proceedings on payment of the rent due to the lessors of the plaintiff as devisees, they not being entitled to bring ejectment as executors: there appeared to be a mutual debt to the defendant by simple contract, and the defendant offered to go into the whole account, taking in both demands, as devisees and executors, having just allowances, which the lessors of the plaintiff refused, the rule was made absolute to stay proceedings on payment of the rent due to the lessors as devisees, and costs a. Where ejectment was brought on a clause of re-entry in a lease for not repairing, as well as for rent in arrear; on a rule to shew cause why the proceedings should not be stayed on payment of the rent and costs, it was insisted on the part of the plaintiff that it was not within the statute, because it was not founded singly on the non-payment of rent; the court, however, made the rule absolute, with liberty for the plaintiff to proceed upon any other title b. The application to stay proceedings may be made in term time in court, or in vacation before a judge at chambers c. 4.-Payment of mortgage-money, under 7 Geo. II. c. 20.] By the 7 Geo. II. c. 20. s. 1, it is enacted "that when an ejectment is brought by a mortgagee for the recovery of the possession of the mortgaged premises, and no suit is depending in any court of equity, for the foreclosing or redeeming of such mortgaged premises, if the person having a right to redeem, having been made the defendant in the action, shall at any time, pending the suit, pay to the mortgagee, or into court, all the principal monies and interest due on the mortgage, and the costs to be computed by the court or proper officer appointed for that purpose; the same shall be deemed and taken to be a full satisfaction and discharge of the mortgage, and the court shall discharge the mortgagor from the same accordingly." By the third Proceedings will be stayed in judgment by a mortgagee on payment of due on the the money mortgage and costs. a 2 Sell. Prac. 211. Barn. 184. Adams, 171. Pure d. Withers v. Sturdy, B. N. P. 97. с 2 Sell. Prac. 127. section, "the act is not to extend to any case where the person against whom the redemption is prayed, shall insist, either that the party praying a redemption has not a right to redeem, or that the premises are chargeable with other sums than what appear on the face of the mortgage, nor to any case where the right of redemption shall be controverted by different defendants in the same cause." a The application to stay proceedings under this statute should be made after appearance and before execution executed. But where the recovery was against the tenant of the mortgagor under a judgment by default, the court said that they would set aside the judgment and let in the mortgagor to defend as landlord, that he might be in a condition to apply to the court to stay the proceedings on the terms of the statute; but the mortgagee consented to take what was due, and restore the possession b. The court stayed the proceedings under this statute after an agreement, on the part of the mortgagor, to convey the equity of redemption to the mortgagee, where no tender of a deed of conveyance for execution had been made to the defendant, or bill in equity filed, but where it appeared that, subsequently to the defendant's agreement, several applications had been made to him, but without effect, to complete the purchase, the court refused to stay the proceedings d. Nor will they stay the proceedings on payment of the arrears of interest and costs, where, by the terms of the mortgage deed, the principal is due on default made in the payment of intereste. Where the mortgagor had taken up money from the mortgagee on his bond, the court stayed the proceedings on payment a It is provided by the 4 G. II. c. 28. s. 2, ante, 914, that nothing therein contained shall extend to bar the right of any mortgagee of such lease, who shall not be in possession, so as such mortgagee shall, 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, or persons entitled to the remainder or reversion as afore said, and perform all the covenants and agreements, which on the part and behalf of the first lessee or lessees ought to be performed. Doe d. Tubb v. Roe, 4 Taunt. 887. • Skinner v. Stacey, 1 Wils. 80. T. R. 185. e Goodtitle d. Green v. Notitle, 11 Moore, 491. of the mortgage and interest only; the bond debt not being a lien upon the lands. Where, however, the bond was a lien on the estate, and the mortgagee had given notice to the mortgagor, that he should insist upon payment of the money due upon it, the court refused to stay the proceedings upon payment of the mortgage money only b. So, where there were two mortgages, although upon different premises, the court refused to stay proceedings as to one mortgage, upon the payment of the sum due upon that mortgage only c. But the defendant is entitled to have the proceedings stayed on payment of the principal and interest due on the mortgage deed, without paying any by-gone interest, or the expense of preparing the mortgage deed or any assignment of it a. Where, on a motion of this kind any doubt exists as to the amount of what is due between the parties, the courts, pursuant to the terms of the statute, will refer the case to their respective officers, who will make just allowances and deductions. If after taxation the debts and costs are not paid, the lessor may proceed with the suit; he cannot have an attachment. The application under this statute may be made in term in court, or in vacation before a judge at chambers 8. 5.-Delivery of Particulars.] When an ejectment is brought on the forfeiture of a lease, the proceedings will be stayed, upon the application of the tenant, until the plaintiff delivers a particular of the breaches of covenant on which he intends to rely h. So, where the plaintiff declared generally for more messuages than the defendant claimed, and the defence was general; the judge at chambers, upon application of the defendant, made an order that the plaintiff should specify the particulars for which his declaration was served, and that the defendant should specify the particulars for which he defended within four days. So, if the plaintiff be not known to the defendant, the latter may call upon the attorney of the former for a particular of his residence, and if the attorney does not give a satisfactory account in that respect, the court will stay proceedings until security be given for the costs a. holds over after the the landlord may bring ejectment, and require of the tenant to give security for the payment of the costs, in case a verdict should pass SECTION XIII. OF PROCEEDINGS UNDER 1 G. IV., c. 87, WHERE THE TENANT HOLDS OVER. If a tenant By 1 Geo. IV. c. 87. s. 1, "where the term or interest of any tenant, holding under a lease or agreement in writing, any expiration lands, tenements, or hereditaments for any term or number of of his term, years certain, or from year to year, shall have expired, or been determined either by the landlord or tenant by regular notice to quit, and such tenant, or any one holding or claiming by or under him, shall refuse to deliver up possession accordingly, after lawful demand in writing made and signed by the landlord or his agent, and served personally upon, or left at the dwelling-house or usual place of abode of such tenant or person, and the landlord shall thereupon proceed by action of ejectment for the recovery of possession, he may at the foot of the declaration, address a notice to such tenant or person, requiring him to appear on the first day of the term next following, to be made defendant, and to find bail if ordered by the court; and upon appearance, or in case of non-appearance, or making the usual affidavit of service, the landlord producing the lease or agreement, or some counterpart or duplicate thereof, and proving the execution by affidavit, and upon affidavit that the premises have been actually enjoyed under such lease or agreement, and that the interest of the tenant has expired, or been determined by regular notice to quit, as the case may be, and that possession has been lawfully demanded in manner aforesaid, may move the court for a rule for such tenant or person to shew cause, within a time to be fixed by the court, on a consideration of the situation of the premises, why such tenant or person, upon being admitted defendant, besides entering into the common consent-rule, should not undertake, in case a ver a 1 Tidd's Prac. 476. |