PART I. tenant a claim for rent or mesne profits, or for both, down to the day appointed for the hearing, or to any preceding day to be named in the plaint, may also be added, so that the aggregate amount does not exceed 501. (c). But if the plaint be against the sub-tenant no such claim can be made (d). The above applies to cases in which the tenancy has expired or been duly determined; but a plaint may be entered in cases also in which a half-year's rent is in arrear, and the landlord has a right to re-enter for the nonpayment; provided neither the value of the premises nor the rent exceeds 50l. a year. No formal demand of reentry is necessary, as the statute declares that the service of the summons stands in lieu of a demand and re-entry. If, however, the tenant, five clear days before the returnday of the summons, pays into court all the rent in arrear and the costs, the action ceases (e). The provisions of sections 50 and 52 of the 19 & 20 Vict. c. 108, do not overrule the provisions by which the court is prevented from entertaining a question of title if either the value or the rent of the premises exceeds 201. yearly (f). The judge, however, may decide, in the case of leasehold or freehold, questions of title as to whether the landlord has a lawful right to the possession; that is, such questions as arise from a dispute as to whether the lease was determined or the like; but he may not decide questions as to whether the claimant has title as landlord (g) if the limit of value or rent be exceeded. Where a defendant sets up as a defence that he had given up possession to a third party, who made a bonâ fide claim, it was held that the judge ought not to refuse to hear the case on the ground that title came in question, until he had ascertained and decided that the defendant gave up possession by compulsion; because if he gave it up voluntarily, he would be estopped from setting up the third person's title against his landlord's, and the court would have jurisdiction (h). The landlord, within the meaning of the act, is the (c) 19 & 20 Vict. c. 108, s. 51, p. 427. (d) Campbell v. Loader, 3 H. & C. (e) 19 & 20 Vict. c. 108, s. 52. c. 142, s. 12, p. 386. See ante, p. 48. (g) Kirkin v. Kirkin, 3 E. & B. 399; Pearson v. Glazebrook, L. R., 3 Exch. 27; S. C., 37 L. J., Exch. 15. (h) Emery v. Barnett, 4 C. B., N. S. 423; S. C. 27 L. J., C. P. 216. person entitled to the immediate reversion of the lands, CHAP. XIII. or in the case of joint tenancy, coparcenary, or tenancy in common, one of the persons entitled to such reversion (i). The action only lies where the relation of landlord and tenant exists; therefore where the plaintiff claimed as mortgagee, and there was no sufficient evidence that the defendant, who was tenant of the mortgagor, had consented to hold under the plaintiff, it was held that the court had no jurisdiction (k). So, where the defendant had been let into possession under an agreement to purchase, one of the terms being that the rent should be deducted from the purchase money, and it appeared that he had paid a sum which, together with a set-off, equalled the amount of the purchase money, it was held that the county court had no jurisdiction (1). Plaint and Summons.]-The plaint for the recovery of Plaint and the possession of tenements must be brought in the district summons. wherein the tenements are situate, and the summons must be in the form annexed to the rules (m). summons. Service of Summons.]-The summons may be served Service of like ordinary summonses to appear to a plaint (n). If, however, the defendant cannot be found, or his place of dwelling is not known, or admission to it cannot be obtained for serving the summons, service may be effected by posting a copy on some conspicuous part of the premises sought to be recovered (o). Where a summons is served on or comes to the knowledge of a sub-tenant of the plaintiff's immediate tenant, such sub-tenant being an occupier of the whole or of a part of the premises sought to be recovered, he must forthwith give notice thereof to his immediate landlord under penalty of forfeiting to such landlord three years' rackrent of the premises held by such sub-tenant, to be recovered by action in the court from which the summons issued; and the landlord, on the receipt of such notice, if not originally a defendant, may be added or substituted (i) 9 & 10 Vict. c. 95, s. 142. (k) Jones v. Owen, 5 D. & L. 669; S. C., 18 L. J., Q. B. 8; 13 Jur. 261. (1) Banks v. Rebbeck, 2 L. M. & P. 452; S. C., 20 L. J., Q. B. 476. (m) 19 & 20 Vict. c. 108, ss. 50, (o) 19 & 20 Vict. c. 108, s. 54, p. 428. PART I. Hearing. Plaintiff's evidence where the term has as a defendant to defend possession of the premises in question (p). Hearing.]-The proceedings at the hearing are the same as in other actions. The judge decides all questions both of law and fact, there being no power for a party to demand a jury, as in other cases. Where the plaintiff proceeds upon the ground that the term has expired or been determined, if the tenant or occupier on service of the summons does not appear at the time and place appointed, and show good cause to the contrary, the landlord may give to the court proof of the neglect or refusal to deliver up possession of the premises, and of the yearly value and rent thereof, and of the holding, and of the expiration or other determination of the tenancy, with the time or manner thereof, and of the title of the landlord, if such title has accrued since the letting of the premises, and of the service of the summons, if defendant has not appeared thereto (g). Where the plaintiff proceeds upon the ground that six months' rent is in arrear, the judge, on proof of the plaintiff's case (r), if the defendant does not show good cause to the contrary, may order possession of the premises to be given by the defendant to the plaintiff on or before such day, not being less than four weeks from the day of hearing, as the judge thinks fit to name, unless within that period all the rent in arrear and the costs are paid into court (s). Plaintiff's Evidence where the Term has expired or been determined.]-We have already seen that if the title comes expired or been in question and the yearly value or rent exceeds 201., the determined. Proof of holding. court has no jurisdiction (t). If the landlord's title has accrued previous to the letting of the premises, the plaintiff need only prove as follows. First, the tenancy or holding; if it be by lease, the lease, or a counterpart, must be produced, or an admission of its terms by the defendant (u) must be proved. A demise from year to year may be proved by the payment and receipt of yearly (p) 19 & 20 Vict. c. 108, s. 53, p. 428. (q) Ib. s. 50. (r) See post, p. 191. (s) 19 & 20 Vict. c. 108, s. 52. tenancy was determined by a legal notice to quit, and his decision on that fact is conclusive, and cannot be questioned on a motion for a prohibition. See Fearon v. Norvall, 5 D. & L. 439. (u) Howard v. Smith, 3 S. N. R. 574. rent (v). Where the defendant has been let into possession CHAP. XIII. under a lease void by the Statute of Frauds, or under a mere agreement for a future lease, payment and receipt of rent is still evidence of a tenancy from year to year (w). A general letting, without any agreement as to the length of the term, or the periods when rent is to be paid, creates only a tenancy at will (x); which by the receipt of rent is converted into a tenancy from year to year. If, however, the rent is reserved as a yearly rent, though it is received at shorter periods, it is a yearly tenancy (y); if determinable at three months' notice, it is a quarterly tenancy (z). Secondly, the plaintiff must prove the expiration or other Determination. determination of the tenancy, with the time or manner thereof; as, if it be an estate at will, the death of the lessee, demand of possession, or other determination of the will on either side; if it be a holding for a time certain, the expiration of that time; and in cases of holding for a time certain, a disclaimer, surrender or forfeiture by the tenant, or that the tenancy has been determined by a notice to quit. If the holding be from year to year, a mere denial by the tenant that he holds of his landlord, or other verbal repudiation, is sufficient to entitle the landlord to treat the tenancy as determined (a). In the case, however, of a definite term, it cannot be forfeited by mere words, and an attornment to a third person, or some other act on the part of the tenant inconsistent with the existence of the relationship of landlord and tenant, must be proved (b). A surrender may be proved either by deed or by act of law, as where the tenant has been party to some act which would not be valid if his lease still existed, as the acceptance of a new lease (c), or authorizing the landlord to let to another (d). A notice to quit may, in the absence of any express agreement, be by parol (e) or in writing; but it must refer (v) Doe v. Horn, 3 M. & W. 333; Bishop v. Howard, 2 B. & C. 100. (w) Doe v. Bill, 5 T. R. 471; Doe v. Amey, 12 A. & E. 476. (x) Richardson v. Landgridge, 4 Taunt. 128. (y) R. v. Herstmonceaux, 7 B. & C. 551. (z) Kemp v. Derrett, 3 Camp. 509. (a) Doe v. Stanion, 1 M. & W. 695. (b) Doe v. Wells, 10 A. & E. 427. (d) Nickells v. Atherstone, 10Q. B. PART I. Where title has accrued since letting. to some distinct time. If the tenancy is yearly, it must, in the absence of any special agreement, have been given six months before the end of the year (ƒ); or where the rent is payable on the usual feast-days, on one feast-day, to quit on the next but one (g). If the holding be for less than a year, the notice must follow the period, as a month's notice for a monthly, or a week's for a weekly, letting. A tenancy is taken to commence from the time of the tenant's entry (h), unless there is evidence to rebut the presumption, as where a tenant, having entered at the middle of a period, has paid rent subsequently according to such period (i). Where a tenant, who has entered under a lease, holds over and pays rent, notice to quit must be given in accordance with its terms (k). When a tenant, whose term ends in the broken part of a year, holds over and pays rent, the notice to quit must correspond with the commencement of the holding over, without reference to the time of his original entry. Where a defendant disclaims, and on demand of possession refuses to give up the premises, claiming the property as his own, no notice to quit is necessary (1). The notice may be given by the landlord or his agent. One of several joint tenants may give notice for himself and other joint tenants (m); and if an agent gives notice in the name of several joint tenants, it will enure for all, although he have but the authority of one (n). Should the title of the landlord have accrued since the letting of the premises, the plaintiff must prove, in addition to the above facts, the right by which he claims possession (o); not that his title can come in issue, but because otherwise his character as landlord would not appear. This right may be evidenced by length of possession (p), by title by act of law, as that of heir, or if it be a term of years, administrator, or by will or convey ance. Any misdescription in the nature of the claim for rent or mesne profit, or for both, may be amended at the trial (q). (f) Right v. Darby, 1 T. R. 159. (m) Doe v. Summersett, 1 B. & Ad. 135. (n) Doe v. Hughes, 7 M. & W. 139. (o) 19 & 20 Vict. c. 108, s. 50, p. 426. (p) Doe v. Cooke, 7 Bing. 346. (g) 19 & 20 Vict. c. 108, s. 51. |