PART X.

PROCEEDINGS IN PARTICULAR ACTIONS.

PAGE.

II.

CHAPTER I. ACTION FOR RECOVERY OF LAND

DISTRESS AND REPLEVIN

III. DOWER .

IV. ACTION FOR MANDAMUS

596

625

. 644

. 646

V. ACTION FOR INJUNCTION

. 648

VI. ACTION ON BOND UNDER 8 & 9 WILL. 3, c. 11 . . 649
VII. ACTION FOR DAMAGE BY COLLISION BETWEEN

II.

By Landlord upon Termination of Tenancy by Notice to
Quit, or Expiration of Time

613

III. By Landlord upon Forfeiture to which the Conveyancing

Act, 1881, s. 14, applies

616

IV. By Landlord upon Forfeiture for Non-payment of Rent. 619
V. By Mortgagee

623

(a) This is the name now used in the R. S. C. to denote the action formerly known as. and still often called, an action of ejectment. Many differences formerly existing between this action and others have been abolished. This chapter is in general confined to such points as are still peculiar to this particular action. See generally 2 Pract. 14th ed. 1200 et seq.

Action by Mortgagor.]—Under the Judicature Act, 1873, s. 25, sub-s. 5, " A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him

SECTION I.-RECOVERY OF LAND IN ORDINARY CASES.

1. Writ of Summons and Indorsement in Action for Recovery of Land. [Use the ordinary form of writ, and indorse the claim thus (b):] The plaintiff's claim is to recover possession of [describe the property, e.g., of]

a house, No.

the parish of

in Street [or of a farm called Blackacre], situate in -, in the [county] of

[If the plaintiff also seeks to

establish his title to and recover rents of land, add :] And to establish his

title to [describe the property], and to recover the rents thereof.

[The following claims may be added without leave to either or both of the above (c):]

And for mesne profits:

And for an account of rents [or arrears of rent] [or £

arrear] :

And for breach of covenant to [repair].

2. Notice by Tenant to his Landlord of Ejectment brought (d).

[Title, &c., of action as in writ of summons.]

rent in

Sir,-Take notice that you will receive herewith a copy of a writ of summons which has been served upon me [or C. D., of -] in the above action for recovery of possession of the messuage [or as the case may be] and held by me [or C. D.] as your tenant [or as tenant to L. L.]. Yours, &c., C. D.

premises at

To

Dated

[or T. T., solicitor for the said C. D.]

[the landlord, or his bailiff or receiver].

jointly with any other person." See 1 Sm. L. C. 10th ed. 503. The section enables a mortgagor to sue for an injunction to restrain the defendant from injuring the mortgaged premises (Fairclough v. Marshall, 4 Ex. D. 37), but does not enable him to elect to forfeit a lease granted before the mortgage (Matthews v. Usher, [1900] 2 Q. B. 535).

(b) Indorsement on Writ.]-These forms are given in R. S. C., App. A., Pt. III., Sect. IV., where it is noted that the claim for recovery of possession may be combined with that to establish title and recover rents.

(c) Joinder of Causes of Action.]-By R. S. C., Ord. XVIII., r. 2, "No cause of action shall, unless by leave of the Court or a Judge, be joined with an action for the recovery of land, except claims in respect of mesne profits or arrears of rent or double value in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed. . . ."

The leave must be obtained before the writ is issued (Re Pilcher, 11 Ch. D. 905), and is obtainable by applying ex parte to a Master in Chambers on an affidavit of facts. The order is not usually drawn up (Ord. LII., r. 14). The rule extends to a counterclaim (Compton v. Preston, 21 Ch. D. 138). It does not apply to an action to establish title to land or to recover rent, if possession of the land is not claimed (Gledhill v. Hunter, 14 Ch. D. 492). As to claims for an injunction, see Read v. Wotton, [1893] 2 Ch. 171. (d) This notice is required under a penalty by C. L. P. Act, 1852, s. 209 (see 2 Pract. 14th ed. 1213).

3. Appearance by a Defendant named in Writ, if Appearance entered to whole Claim (e).

As in ordinary cases, see forms ante, p. 71.

4. The like, limiting Defence to Part of Claim (f).

[As in ordinary cases, but after the words enter an appearance for the defendant C. D. in this action, add:]

The said defendant limits his defence to part only of the property mentioned in the writ of summons, namely, to the close called "The Big Field" [describing the property to which the defence is limited with reasonable certainty. Conclude as usual; see forms, ante, p. 71].

5. Notice that Defendant limits his Defence to Part of the Claim (ƒ).

[Title, &c., of action as usual.]

Take notice that the above-named defendant C. D. limits his defence to part only of the property mentioned in the writ of summons, namely, to the close called "The Big Field " [describing the property to which the defence is limited with reasonable certainty].

6. Affidavit by Party not named in Writ for Liberty to appear and defend (g).

I, E. F., of————,

[Title, &c., of action as usual.]

make oath and say as follows:

1. This action is brought for recovery of possession of a messuage [or as the case may be] and premises situate at

(e) As to appearance generally, see ante, pp. 70 et seq.

(f) Form No. 4 in the text is given in R. S. C., App. A., Pt. II., No. 4. By Ord. XII., r. 28, "Any person appearing to a writ of summons for the recovery of land shall be at liberty to limit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty in his memorandum of appearance or in a notice intituled in the action and signed by him or his solicitor; such notice shall be served within four days after appearance; and an appearance where the defence is not limited as above mentioned shall be deemed an appearance to defend the whole." By r. 29, "The notice mentioned in the last preceding Rule shall be in the form No. 3 in Appendix A., Part II., with such variations as circumstances may require." The form No. 5 in the text is that referred to in this Rule.

(9) By R. S. C., Ord. XII., r. 25, “ Any person not named as a defendant in a writ of

2. I am in possession of the said [messuage and] premises [or of part of the said premises] by myself [or by the above-named defendant C. D. as my tenant. If applicant be in possession, as to part by himself, and as to the residue by tenants, state the facts accordingly].

Sworn [&c., as usual; see post, " Affidavits "].

7. Order giving him Leave to appear (h).

[Title, &c., as in writ of summons.]

Upon [hearing the solicitor for E. F., and upon] reading the affidavit of E. F., filed the 19- - It is ordered that the said E. F.

day of

be at liberty to appear to and defend this action. [If as landlord, add as landlord of C. D. the defendant (or one of the defendants) named in the writ of summons], and to defend for the property claimed [or for-part of the property claimed, as the case may be].

8. Appearance by a Landlord not named in Writ (i).

Enter an appearance for E. F. as landlord of the above-named C. D. [and G. H., or as the case may be] pursuant to order of -, dated the

day of

19. [Add, if necessary, a statement that the said E. F. limits his defence (&c., see form No. 4, supra); and conclude as usual, see forms, ante, p. 71.]

9. Appearance of a Person other than Landlord not named in Writ. [As in the preceding form, but omitting the words as landlord of the said —]

summons for the recovery of land may by leave of the Court or Judge appear and defend, on filing an affidavit showing that he is in possession of the land either by himself or by his tenant." See 2 Pract. 14th ed. 1214.

(h) The order is usually obtainable by applying ex parte to a Master in Chambers. If judgment has been signed against the tenant, the applicant should apply by summons for an order under R. S. C., Ord. XIII., r. 10, ante, p. 83, that the judgment be varied by being limited to a judgment against the tenant, that execution be stayed or set aside, and that the applicant be at liberty to appear and defend.

(i) By R. S. C., Ord. XII., r. 26,"Any person appearing to defend an action for the recovery of land as landlord in respect of property whereof he is in possession only by his tenant, shall state in his appearance that he appears as landlord."

10. Notice of Appearance by Party not named in Writ (k).
[Title, &c., as in writ of summons.]

Take notice that pursuant to the order of Master

L. L., on the

dated

[as landlord of the defendant C. D.] [limiting his defence to], [and required (or did not require) a statement of claim to be delivered]. Dated

To

Solicitor [or agent for] the plaintiff.

(Signed) X. Y., Of

Solicitor for the said L. L.

11. Application for better Particulars of the Property claimed (1). [Formal parts as usual in application to Master] for an order that the plaintiff deliver to the defendant better particulars of the property claimed herein; that in the meantime all further proceedings herein be stayed; and that the costs of this application be

12. Summons for better Particulars of the Property defended (1).

[Formal parts as usual in application to Master] for an order that the defendants [or defendant C. D.] do within three days deliver to the plaintiff better particulars of the property for which they defend [or he defends]; and that, in default of such particulars being so delivered, the appearance [or the notice by the defendant (or the said C. D.) limiting his defence, dated] be set aside as irregular on the ground that it does not comply with R. S. C., Order XII., r. 28. And that the costs of this application be

13. Summons to stay Proceedings until Costs of previous Action of Ejectment are paid (m).

[Formal parts as usual in application to Master] for an order that all further proceedings herein be stayed until £, the taxed costs of the former action brought by [the plaintiff] against the defendant herein in the Division of the High Court of Justice, 19, No., for

recovery of the same premises as those mentioned in the indorsement on the writ of summons herein, together with interest thereon at £4 per centum per annum from the day of, 19, be paid. And that the costs

of this application be

(k) By R. S. C., Ord. XII., r. 27, "Where a person not named as defendant in any writ of summons for the recovery of land has obtained leave of the Court or a Judge to appear and defend, he shall enter an appearance according to the foregoing Rules of this Order, intituled in the action against the party named in the writ as defendant, and shall forthwith give notice of such appearance to the plaintiff's solicitor, or to the plaintiff if he sues in person, and shall in all subsequent proceedings be named as a party defendant to the action."

(7) See 2 Pract. 14th ed. 1220.

(m) See 2 Pract. 14th ed. 1221, and ante, p. 162, n. (g).