Relief under the statute 4 table accident, and the injury or inconvenience arising from it capable of compensation: but where the transgression is wilful, or the compensation impracticable, the Courts will refuse to interfere. (p) It was formerly competent to the ejected tenant to offer Geo. II. c. 28. to the landlord the rent and costs at any time after execution in order to found an application to a Court of Equity for relief, and applications for indulgence at any time before execution executed, appear to have been successful even at law. (q) The statute 4 Geo. II. c. 28, (which it has been already shown gives the landlord a more speedy entry for non-payment of rent than he had at common law,) enacts "that in case the tenant shall suffer judgment to be recovered on the ejectment, and the execution to be executed thereon, without paying the rent and arrears together with full costs, and without filing any bill for relief in Equity within six calendar months after such execution, he shall be barred and foreclosed from all relief in law or Equity, other than by writ of error," &c. And by section 4, of the statute, it is provided, "that if the tenant shall at any time before the trial in the ejectment pay or tender to the landlord or pay into Court all the rent and arrears, together with the costs, then all further proceedings in the ejectment shall cease and be discontinued." After the passing of this act, it was urged, that the legislature did not mean to take away the discretionary power before exercised in staying the proceedings, but only made compulsory upon the Court to interfere if the tenant applied before trial: it was resolved, however, that after trial the Court cannot now relieve the tenant, by staying the proceedings in the ejectment on payment of the arrears of rent and costs. (r) If the lease is assigned by way of mortgage, the mortgagee (p) Vide Rolfe v. Harris, 2 Price, 210. n. (q) Doe dem. Hitchins v. Lewis, Burr. 619, et vide cases cited supra, p. 635, note (c.) (r) Roe dem. West v. Davis, 7 East, 363. Doe dem. Harris v. Masters, 2 B. & C. 490. will have the same benefit of the statute as the lessee might have had. (s) Where an application is properly made to a Court of Equity under the statute, the Court is bound to grant the application, provided within forty days after the filing of the lessor's answer the tenant bring into Court the sum which the lessor shall swear in his answer to be due, together with the costs to be taxed of the action of ejectment. (t) But it seems that the payment of the money into Court will in some cases be dispensed with; for where there had been various dealings between landlord and tenant so as to produce an account too complicated to be taken at law, and the landlord brought an ejectment for non-payment of rent, and the tenant filed a bill, before judgment at law, for an account upon those dealings, and to have the balance applied to the liquidation of the rent due, Lord Redesdale held, that upon such a bill there was no necessity for the tenant's bringing the rent into Court under the statute. (u) And where a tenant claimed against his landlord for unliquidated damages, caused by the cutting of timber in pursuance of a power in the lease, and the landlord having brought an ejectment for the non-payment of rent, the tenant filed a bill stating his claim, and charging that if it were ascertained there would not be a year's rent due; and the damages were ascertained by an issue, 1037. 6s.; the tenant was restored to possession, on paying the arrears due by him; and the Court decreed to him an account of the mesne profits, and that he should have credit for the 1037. 6s. (v) But where the question is not of a nature too complex to be tried at law, and, consequently, capable of being brought forward in the action of ejectment for non-payment of rent, a bill does not lie by the tenant for an account, and to be (s) Doe dem. Whitfield v. Roe, 3 Taunt. 402. (t) Sect. 3. (u) O'Conner v. Spaight, 1 Sch. & Lefr. 305. (v) Beasley v. Darcy, 2 Sch. & Lefr. 403. n. (b.) Whether this statute extends to all eject ments for rent in arrear half a-year? restored to possession on payment of what shall appear due, without bringing the rent and costs into Court. (w) A question has been raised whether this statute extends to cases, other than those in which half a-year's rent is in arrear, and no sufficient distress is to be found upon the premises? And in a case where the limited construction was contended for, Lord Ellenborough, C. J., said “The statute is more general in its operation; for though the fourth clause has the word such (such ejectment), yet the second clause to which it refers is in the disjunctive; stating first that in all cases between the landlord and tenant, when half a-year's rent shall be in arrear, and the landlord has a right of re-entry for non-payment thereof he may bring ejectment, &c., or in case such ejectment, &c., and no sufficient distress, &c., then and in every such case the lessor shall recover judgment and execution, &c." (x) But the statute does not appear to warrant this extensive construction; which supposes the second section to be disjoined by the particle or, so as to contain two cases in which the statute may be resorted to, (viz. one where half a-year's rent is in arrear, and the lease contains a clause of re-entry; the other where there are these facts, but there is also the absence of a sufficient distress :) and then concludes that the words such ejectment in the fourth clause apply to either; whereas, in fact, the two parts of the section are wholly dependent upon each other, constituting only one predicament, the latter part merely adding another requisite, viz. the absence of a sufficient distress, to complete the landlord's title to the benefit of the statute, where the half-year's rent is in arrear, and the lease contains a clause of re-entry. (y) (w) O'Mahony v. Dickson, 2 Sch. & Lefr. 400. (x) Roe dem. West v. Davis, 7 East, 363. (y) Vide Doe dem. Forster r. Wandlass, 7 T. R. 117. SECTION IV. OF THE TENANT'S RELIEF AGAINST PENALTIES, It has been already stated, that where a sum is agreed to be paid for the non-performance of agreement, questions of some nicety arise whether the sum is to be considered in the nature of a penalty as liquidated damages; (≈) but it is clear law, that if it is to be considered in the light of a penalty, and upon breach of the covenant, the lessor proceeds at law to recover the penalty, equity will interfere: as if the tenant covenant not to plough a certain portion of the land, under a penalty of 1007., and the tenant plough the land, and the lessor bring an action to recover the penalty, equity will grant an injunction; and by directing an issue to try quantum damnificatus, compel the lessor to take only so much as amounts to a compensation for the breach of covenant. (a) The same principle prevails if a certain stipulated sum is to be paid for the non-performance of several acts of different degrees of importance. (b) But if the act to be performed is single, as an agreement to pay a certain additional sum for every acre converted into tillage, the sum is recoverable as liquidated damages. (c) Where a lessee covenanted to lay out 2007. upon the premises, and laid out but 30%., and after several years had ex (z) Supra, 103. (a) Lowe v. Peers, Burr. 2228. Sloman v. Walker, 1 Br. Ch. Ca. 418. Hardy v. Martin, ibid. n. Barrett v. Blagrave, 5 Ves. 555. 1 Cox, 27. (b) Boys v. Ancell, 5 Bing. 390. N. S. et vide supra, 103. (c) See Farrant v. Olmius, 3 B. & A. 692. Denton v. Richmond, 2 Cr. & J. 734. Jones v. Green, Relief against a penalty incurred by the tenant. Injunctions to restrain the landlord from cutting ornamental trees. Tenant cannot resort to equity for money paid in his own wrong; or which is the subject of set-off. pired, the lessor brought an action upon the covenant and recovered 150%. damages; the Court refused either to relieve the tenant against the damages, or to order the money to be laid out in improvements, although it was considered to be a hard case on the tenant. (c) A case under peculiar circumstances was heard before Lord Eldon, in which he gave relief against the landlord, by ordering a restoration of the stock on the farm, seized under a bill of sale, given to the landlord on the ground that the landlord would not, by his answer, directly swear the sum was due, on which he was authorized to make the seizure. (d) Where the lessor reserved to himself a right of cutting the trees upon the premises demised, and afterwards upon the tenant's projecting some improvements in the grounds, sent his surveyor to meet the tenant's surveyor, and approving of the proposed alterations, consented to the cutting down some of the trees, and leaving others in clumps, as ornamental timber; the Court of Chancery granted an injunction to restrain the lessor from subsequently cutting down the trees, upon the mere suggestion that he had sent a surveyor to mark them for cutting, the Lord Chancellor observing that he should not wait till they were cut down. (e) Where the tenant having a right to deduct for the landtax, omits to deduct, and pays his full rent, a bill does not lie to recover back the tax, which ought to have been deducted. (f) And where a bill was brought by a tenant to be relieved out of the arrears of rent for taxes which he had paid, on account of rent reserved to a charity that appeared to be exempted from taxes, the bill was dismissed with costs. (g) Neither will a Court of Equity interfere to allow the tenant (c) Barker v. Holder, 1 Vern. 316. (d) Nutbrown v. Thornton, 10 Ves. 159. (e) Jackson v. Cator, 5 Ves. 688. (f) East v. Thornbury, 3 P. Wms. 127, supra. 629. (y) Wildey v. The Cooper's Company, ibid. n. [B.] |