Proceedings in ejectment

ment of

rent.

CCX. In all cases between landlord and tenant,

by landlord as often as it shall happen that one half year's rent for nonpay- shall be in arrear (a), and the landlord or lessor, to whom the same is due, hath right by law to reenter for the nonpayment thereof (6), such landlord or lessor shall and may, without any formal demand or re-entry, serve a writ in ejectment for the recovery of the demised premises, or in case the same cannot be legally served, or no tenant be in actual possession of the premises, then such landlord or lessor may affix a copy thereof upon the door of any demised messuage (c), or in case such action in ejectment shall not be for the recovery of any messuage, then upon some notorious place of the lands, tenements, or hereditaments comprised in such writ in ejectment, and such affixing shall be deemed legal service thereof, which service or affixing such writ in ejectment shall stand in the place and stead of a demand and re-entry; and in case of judgment against the defendant for nonappearance, if it shall be made appear to the court where the said action is depending, by affidavit (d), or be proved upon the trial in case the defendant appears, that half a year's rent was due before the said writ was served (e), and that

it is stated that this clause of the statute, however, has been construed to extend only to those cases in which the ejectment is inconsistent with the landlord's title. Therefore a tenant of a mortgagor, who does not give him notice of an ejectment brought by the mortgagee, upon the forfeiture of the mortgage, is not within the penalties of the clause.

(a) This re-enacts 4 Geo. 4, c. 28, 8. 2. The County Courts Act gives summary power of re-entry where the premises are not above the value of 50%., and the tenancy has expired (9 & 10 Vict. c. 95, s. 122).

(b) This only applies where there

is a proviso for re-entry, not merely to hold until payment of arrears, but absolutely to avoid the lease (Doe d. Drake v. Bowditch, 8 Q. B. 973).

(c) It must appear that the rent was due at the time of the affixing of the writ (Doe d. Dixon v. Roe, 7 C. B. 577).

(d) As to the affidavit, see Doe d. Gretton v. Roe, 4 C. B. 577; and Doe d. Cox v. Roe, 5 Dowl. & L. 272; Doe d. Dixon v. Roe, 7 C. B. 577.

(e) If the affidavit state facts showing that it cannot be ascertained whether there be sufficient distress or not, and allege deponent's belief

no sufficient distress was to be found on the demised premises (a), countervailing the arrears then due, and that the lessor had power to re-enter, then and in every such case the lessor shall recover judgment and execution, in the same manner as if the rent in arrear had been legally demanded, and a re-entry made; and in case the lessee or his assignee, or other person claiming or deriving under the said lease, shall permit and suffer judgment to be had and recovered on such trial in ejectment, and execution to be executed thereon, without paying the rent and arrears, together with full costs, and without proceeding for relief in equity within six months after such execution executed, then and in such case the said lessee, his assignee, and all other persons claiming and deriving under the said. lease, shall be barred and foreclosed from all relief or remedy in law or equity, other than by bringing error for reversal of such judgment, in case the same shall be erroneous, and the said landlord or lessor shall from thenceforth hold the said demised premises discharged from such lease; and if on such ejectment a verdict shall pass for the defendant, or the claimant shall be nonsuited therein, then in every such case such defendant shall have and recover his costs; provided that nothing herein contained shall extend to bar the right of any mortgagee of such lease, or any part thereof, who shall not be in possession, so as such mortgagee shall and do, within six months after such judgment obtained and execution executed, pay all rent in arrear, and all costs and damages sustained by such lessor or person entitled to the remainder or reversion as aforesaid, and perform all the covenants and

that there is not, it is enough (Doe d. Cox v. Roe, 5 Dowl. & L. 272). If a judgment have been obtained on an affidavit, which it is apprehended may be insufficient, the court will allow it to be superseded, and an

other to be signed on an amended affidavit (Doe d. Gretton v. Roe, 4 C. B. 577).

(a) The lease or agreement should be annexed to the affidavit (Doe d. Foucan, 2 L. M. & P. 213). S

agreements which, on the part and behalf of the first lessee, are and ought to be performed.

CCXI. In case the said lessee, his assignee, or other person claiming any right, title, or interest, in law or equity, of, in, or to the said lease, shall, within the time aforesaid, proceed for relief in any court of equity, such person shall not have or continue any injunction against the proceedings at law on such ejectment, unless he does or shall, within forty days next after a full and perfect answer shall be made by the claimant in such ejectment, bring into court, and lodge with the proper officer such sum and sums of money as the lessor or landlord shall in his answer swear to be due and in arrear over and above all just allowances, and also the costs taxed in the said suit, there to remain till the hearing of the cause, or to be paid out to the lessor or landlord on good security, subject to the decree of the court; and in case such proceedings for relief in equity shall be taken within the time aforesaid, and after execution is executed, the lessor or landlord shall be accountable only for so much and no more as he shall really and bonâ fide, without fraud, deceit, or wilful neglect, make of the demised premises from the time of his entering into the actual possession thereof; and if what shall be so made by the lessor or landlord happen to be less than the rent reserved on the said lease, then the said lessee or his assignee, before he shall be restored to his possession, shall pay such lessor or landlord, what the money so by him made fell short of the reserved rent for the time such lessor or landlord held the said lands.

CCXII (a). If the tenant or his assignee do or

(a) This section re-enacts 4 Geo.2, c. 28, s. 4. If at any time before trial of an ejectment for non-payment of rent, the tenant or his assignee pay or tender to the landlord, or pay into court, all arrears of rent

and costs, all further proceedings shall cease (4 Geo. 2, c. 28, s. 4; see Goodright d. Stevenson v. Noright, 2 W. Bl. 746; Doe v. Masters, 2 B. & C. 490; Doe d. Harcourt v. Roe, 4 Taunt. 883). The court

rent with

cease.

shall, at any time before the trial in such ejectment, paying all pay or tender to the lessor or landlord, his executors costs, proor administrators, or his or their attorney in that ceedings to cause, or pay into the court where the same cause is depending, all the rent and arrears, together with the costs, then and in such case, all further proceedings on the said ejectment shall cease and be discontinued; and if such lessee, his executors, administrators, or assigns, shall, upon such proceedings as aforesaid, be relieved in equity, he and they shall have, hold, and enjoy the demised lands, according to the lease thereof made, without any new lease.

ing over

ration of

term or de

of tenancy

CCXIII (a). Where the term or interest of any Ejectment tenant now or hereafter holding under a lease or against teby landlord agreement in writing any lands, tenements, or he- nant holdreditaments for any term or number of years cer- after expitain, or from year to year, shall have expired or been determined either by the landlord or tenant termination by regular notice to quit (6), and such tenant, or any by notice to one holding or claiming by or under him, shall re- quit. fuse 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

however cannot do this after execu

tion (Doe d. Lambert v. Roe, 3 Dowl. 557), or even after trial (Roe v. Davies, 7 East, 363); nor will they, after the landlord has obtained possession, compel him to pay over the value of the crops to the tenant, deducting the rent (Doe v. Witherwich, 3 Bing. 11). Under this statute, the mortgagee of the tenant has the same title to relief as the tenant against whom he ejectment is brought (Doe d. Whitfield v. Roe, 3 Taunt. 402). So has a sub-lessee (Doe v. Byron and another, 1 Man.

G. & S. 623; 3 Dowl. & L. 31). But although the court are thus empowered to interfere where the forfeiture is for nonpayment of rent, they have no authority to do so where the forfeiture is by breach of a covenant to repair (Doe v. Asby, 10 Ad. & E. 71; 8 Law J., Q. B. 207; see 1 Arch. Pr. 289).

(a) This re-enacts 1 Geo. 4, c. 87, s. 1 (see Doe d. Newstead v. Roe, 10 Jur. 924).

(b) If the premises were under 501. in value, the County Courts Act Procedure can be resorted to.

Rule or summons

for the

tenant to give bail.

On rule or

summons

absolute, if

tenant shall

not con

form, judg.

ment to be for the landlord.

recovery of possession, it shall be lawful for him,
at the foot of the writ in ejectment, to address a
notice to such tenant or person requiring him to
find such bail, if ordered by the court or a judge,
and for such purposes as hereinafter next specified;
and upon the appearance of the party on an affi-
davit of service or the writ and notice, it shall be
lawful for the landlord producing the lease or
agreement, or some counterpart or duplicate
thereof, and proving the execution of the same by
affidavit, and
upon affidavit that the premises have
been actually enjoyed under such lease or agree-
ment, and that the interest of the tenant has ex-
pired, or been determined by regular notice to quit,
as the case may be, and that possession has been
lawfully demanded in manner aforesaid, to move
the court or apply by summons to a judge at cham-
bers for a rule or summons for such tenant or per-
son to show cause, within a time to be fixed by the
court or judge on a consideration of the situation of
the premises, why such tenant or person should
not enter into a recognizance by himself and two
sufficient sureties in a reasonable sum conditioned
to pay the costs and damages which shall be reco-
vered by the claimants in the action (a); and it shall
be lawful for the court or judge upon cause shown,
or upon affidavit of the service of the rule or sum-
mons in case no cause shall be shown, to make the
same absolute in the whole or in part, and to order
such tenant or person, within a time to be fixed,
upon a consideration of all the circumstances, to
find such bail, with such conditions and in such
manner as shall be specified in the said rule or
summons, or such part of the same so made abso-
lute;
and in case the party shall neglect or refuse
so to do, and shall lay no ground to induce the

(a) One year's value of the premises, and a reasonable sum to be settled by the Master for the costs (Doe d. Levi v. Roe, 6 C. B. 272).

Not including damages caused by the tenant to the trade of the demised premises (Doe d. Marks v. Roe, 6 Dowl. & L. 87.