Tenant Act, 1730, section 2,) in all cases of ejectment between landlord and tenant, if half a year's rent be in arrear (p), and there be a right to re-enter for the nonpayment (9), and no sufficient distress be found (r), the landlord may, without any formal demand of the rent, or re-entry (s), serve a writ in ejectment for the recovery of the demised premises; and the judgment (with the execution thereon) in such an ejectment is final and conclusive, unless the rent, with the full costs, is paid or tendered within six calendar months after the execution.

Thirdly, by the Landlord and Tenant Act, 1730, if any tenant for life or for years, or other person claiming under or by collusion with him, shall wilfully (t) hold over after the determination of the term, after demand of possession made, and notice in writing given by him to whom the remainder or reversion of the premises shall belong (u), an action for double the yearly value, during the time he detains the land, will lie against him; and by the Distress for Rent Act, 1737 (11 Geo. II. c. 19), section 18, any tenant, with power to determine his lease, who shall give notice of his intention to quit, and shall not deliver up possession at the time he mentions, shall pay in like manner double his former rent for such time as he continues thenceforth in possession (a). And in order to give landlords, as against their tenants holding over, where the property is of small value, the option of a cheaper and more speedy remedy than that by action, it has been

(p) Gretton v. Roe (1847), 4 C. B. 576.

(q) Doe v. Bowditch (1846), 8 Q. B. 973.

(r) Doe v. Wandlass (1797), 7 T. R. 117.

(8) Duppa v. Mayo (1670), 1 Saund. Wms. 281. At law a formal demand of the rent on the day it became due was, and, except in the cases provided for by this

section, still is, essential; unless dispensed with by the lease.

(t) Swinfen v. Bacon (1860), 6 H. & N. 184, 846.

(u) Blatchford v. Cole (1858), 5 C. B. (N.S.) 514; Southport Trumways v. Gandy, [1897] 2 Q. B. 66.

(x) Wilkinson v. Colley (1771), 5 Burr. 2694; Soulsby v. Neving (1808), 9 East, 310; Page v. More (1850), 15 Q. B. 684.

provided, by the Small Tenants Recovery Act, 1838 (1 & 2 Vict. c. 74) (y), that a tenant at will, or for a term not exceeding seven years, without rent, or at a rent not exceeding 201. a year, who, or the person occupying under him, shall fail to deliver up possession after his interest has ended or been duly determined, may be ejected, after being served with written notice, by a summary proceeding before any two justices of the district; but the warrant for possession will be stayed, if the tenant shall give security to bring an action to try the right, and to pay the costs in the event of judgment being given against him. Relief of the same kind, to a landlord against his tenant holding over, is also now afforded through the medium of the county courts, not only in cases where the yearly value of the tenement is below 201., but also where such value does not exceed 501. and where no fine or premium has been paid for the lease,--it being enacted, by the County Courts Act, 1888 (51 & 52 Vict. c. 43), section 59, that if the term and interest of the tenant shall have expired or determined by a legal notice to quit, and the tenant, or any person holding or claiming through him, shall neglect or refuse to deliver up possession accordingly, the landlord may enter a plaint in the county court of the district; and after judgment given in his favour, may obtain possession, through the high bailiff of the court (z), to whom a warrant may issued for that purpose to the registrar (a). But the defendant may have the action removed into the High Court, upon the ground that the title to lands of greater value will be affected by the decision (b).

be

(z) Hodson v. Walker (1872), L. R. 7 Exch. 55.

(a) Jones v. Owen (1848), 5 D. & L. 669; 18 L. J. Q B. 8; Harrington v. Ramsay (1853), 8 Exch. 879; 2 El. & Bl. 669.

(b) Sects. 59-61.

Where a landlord is proceeding by action against his tenant for recovery of possession of the demised premises under a proviso for re-entry for non-payment of rent, the Common Law Procedure Act, 1860, section 1, gives the court power to grant the tenant relief from the forfeiture, on such terms as to payment of the rent in arrear and costs and otherwise as may be just. In the case of most covenants other than that for payment of rent, the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), section 14, provides that the landlord cannot enforce his right of re-entry by action or otherwise, unless he first gives to the lessee a notice specifying the particular breach complained of, and requiring the lessee to remedy the breach and to make compensation in money for it, and then only if the lessee fails to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money for it. Covenants against assigning, underletting, or parting with possession, and conditions for forfeiture on bankruptcy, and on taking in execution of the lessee's interest, and certain covenants in mining leases, are excepted from the section. The same section provides that the court may in any case within it grant to the lessee relief from the forfeiture on proper terms. This section did not apply to under-lessees; but the Conveyancing Act, 1892 (55 & 56 Vict. c. 13), section 4, enables the court to protect under-lessees against forfeiture of the superior leases, by making an order vesting the superior term in the under-lessee on proper

terms.

[2. Trespass,-otherwise called trespass quare clausum fregit. The injury of trespass quare clausum fregit, was so called from the language of the writ of trespass (now disused), which commanded the defendant to show quare clausum querentis fregit, i.e., why he broke the plaintiff's close; and this breaking was an injury to the plaintiff, because every man's land is, in the eye of the law, inclosed and set apart from his neighbour's, for the exclusive use of himself. In order to maintain this action, the plaintiff

And

[must have an actual possession by entry (e); and before entry and possession, he cannot maintain this action, though he may have the freehold in law (d). therefore an heir, before entry, cannot have this action against an abator (e); and though a disseisee might have it against the disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land, yet he cannot have it for any act done after the disseisin, until he hath regained the possession by re-entry, although he may then maintain it for the intermediate. damage done, the possession so regained being, by a kind of jus postlimini, supposed to have all along continued in him (f). Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrongdoer in trespass; but, by the Cestui que Vie Act, 1707, if a guardian or trustee for any infant, a husband seized jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the determination of their respective interests, hold over and continue in possession of the lands or tenements without the consent of the person entitled thereto, they are adjudged to be trespassers, and may be sued in trespass accordingly.

A man is answerable not only for his own trespass, but for that of his cattle also; for if, by his negligent keeping, they stray upon the land of another, and much more if he drives them on, and they tread down his neighbour's herbage, or damage his cattle (g), this is a trespass for which the owner of the cattle committing the trespass must answer in damages. And the law gives to the party injured in this case a right also to distrain the cattle damage feasant (doing damage), till the owner shall make

(c) Lambert v. Stroother (1740), Willes, 218; Com. Dig. Trespass.

(d) 2 Roll. Abr. 553.

(e) Ibid.

(f) 11 Rep. 5; Barnett v. Guildford (1855), 11 Exch. 19.

(g) Boden 1 Q. B. 608.

V. Roscoe, [1894]

[him satisfaction; but if he distrain, he cannot, so long as he holds the distress, maintain also an action for damages (h).

In some cases, an entry on another's land is justifiable, as where it is done in the exercise of a right of way, or the like; or where a man enters to pay money there payable, or to execute, in a legal manner, the process of the law, or to get back his own goods or to distrain for rent (i). Also, a man may justify entering into a public inn without the leave of the owner first specially asked; because when a man professes the keeping of a public inn, he thereby gives a general licence to any person to enter. And it has been said, that the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man's land, if they cannot be otherwise killed, and if no greater damage be done than is necessary, because the destroying such creatures may be profitable to the public (k). But fox-hunting, as a mere diversion, would not justify such an entry (1).

Where a man makes an ill use of the authority with which the law thus entrusts him, he shall be accounted a trespasser ab initio (m); for if one comes into a tavern, and will not go out in a reasonable time, but tarries there all night, contrary to the inclinations of the owner, this wrongful act shall affect and have relation back even to his first entry, and make the whole a trespass (n). But a bare nonfeasance, as not paying for the wine or beer he calls for, will not make him a trespasser; for this is only

(h) Boden v. Roscoe, [1894] 1. Q. B. 608; Lehain v. Philpott (1875), L. R. 10 Exch. 242.

(i) Patrick v. Colerick (1838), 3 M. & W. 483; Keane v. Reynolds (1853), 2 E. & B. 748.

(k) Gensh V. Mynns (1612), Cro. Jac. 321; Gundry v. Feltham (1786), 1 T. R. 334.

(1) Paul v. Summerhayes (1878), 4 Q. B. D. 9, citing Essex v. Capel, Chitty, Game Laws, p. 31.

(m) The Six Carpenters Case (1610), 8 Rep. 146; 1 Sm. L. C. 11th ed. 132; Finch, L. 47; Bagshawe v. Goward (1606), Cro. Jac. 147.

(n) 2 Roll. Abr. 561.

S.C.-III.

2 E