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 agreements which, on the part and behalf of the first lessee, are and ought to be performed." This is similar to 4 Geo. II. c. 28, s. 2. It only applies where the right to re-enter is absolute, and the lease upon such re-entry is forfeited; (Doe d. Darke v. Bowditch, 8 Q. B. 973;) and therefore if the condition was that upon nonpayment of a half year's rent the landlord might enter upon the premises until the rent was fully satisfied, it would not be within this statute. (Ib.) There must have been the power to re-enter in respect of the nonpayment of half a year's rent at the time of service of the writ (see Doe d. Dixon v. Roe, 7 C. B. 134); but now it might reasonably be said that the right to re-enter must exist at the time of writ issued. No demand is requisite if the case is in other respects within the act, although the proviso for re-entry be expressed to be in case of the rent being lawfully demanded. (Doe v. Shawcross, 3 B. & C. 752.) See however as to the effect of a covenant that the landlord will not enter without demand, Doe v. Wilson (5 B. & Ald. 385.) The insufficiency of the distress must be established by a search over every part of the premises, so that a broker would be able to find the property by reasonable diligence (Doe v. Wandlass, 7 T. R. 117; Doe v. Franks, 2 C. & K. 678); and if the tenant prevented an entry to distrain, it would be taken that there was no sufficient distress to be found, which means got at. (Doe d. Cox v. Roe, 5 D. & L. 272; Doe v. Dyson, 1 M. & M. 77.) The landlord has no right to lie by and seek to avail himself of this statute because there is not a sufficient distress for all the arrears of rent, but is restricted to an insufficiency to countervail one half-year (Doe Powell v. Roe, 9 Dowl. 548); but it is doubtful whether an affidavit in the words of the statute that there was no sufficient distress to countervail the arrears then due would be good. It would be more correct to state that it was not sufficient "to countervail half-a-year's rent." (See Doe d. Gretton v. Roe, 4 C. B. 576.) Where the judgment is signed it will be taken to be regular and conclusive, so that in a subsequent ejectment by the lessee he could not show that the affidavit was deficient. (Doe v. Lewis, 1 Burr. 614.) 211. "In case the said lessee, his assignee, or other Lessee properson claiming any right, title, or interest, in law or ceeding in equity not to equity, of, in, or to the said lease, shall, within the time have injuncaforesaid, proceed for relief in any Court of Equity, such tion or relief person shall not have or continue any injunction against ment of rent K 5 without pay and costs. Tenant paying all rent with costs, 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 bona 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." 212. "If the tenant or his assignee do or shall, at any time before the trial in such ejectment, pay or tender to proceedings the lessor or landlord, his executors or administrators, or his or their attorney in that cause, or pay into the court where the same cause is depending, all the rent and arrears, together with the costs, to cease. "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." Under this section relief may be given upon the application of the mortgagee (Doe d. Whitfield v. Roe, 3 Taunt. 402); or a sub-lessee (Doe v. Byron, 1 C. B. 623); and it may be given before action (Doe v. Wandlass, 7 T. R. 117); but not after execution or trial. (Doe d. Lambert v. Roe, 3 Dowl. 557; Doe v. Davis, 7 East, 363.) The rent to be paid is up to the last rent day. (Doe d. Harcourt v. Roe, 4 Taunt. 883.) There is no power to interfere where the forfeiture is for any breaches of covenant other than for the payment of rent. (Doe v. Asby, 10 A. & E. 71.) against te term or determination 213. "Where the term or interest of any tenant now Ejectment or hereafter holding under a lease or agreement in writ- by landlord ing any lands tenements, or hereditaments for any term nant holding or number of years certain, or from year to year, shall over after exhave expired or been determined either by the landlord piration of or tenant by regular notice to quit, "and such tenant, or any one holding or claiming by of tenancy or under him, shall refuse 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 dwellinghouse or usnal place of abode of such tenant or person, ❝and the landlord shall thereupon proceed by action of ejectment for the recovery of possession, by notice to qnit. mons for the it shall be lawful for him, at the foot of the writ in Rule or sumejectment, to address a notice to such tenant or person tenant to requiring him to find such bail, if ordered by the court give bail. or a judge, and for such purposes as are hereinafter next specified; 66 and upon the appearance of the party (a) on an affidavit of service of 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 agreement, "and that the interest of the tenant has expired, 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 chambers for a rule or summons for such tenant or person 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 recovered by the claimants in the action; summons "and it shall be lawful for the court or judge upon cause On rule or shown, or upon affidavit of the service of the rule or absolute, if summons in case no cause shall be shown, to make the tenant shall same absolute in the whole or in part, and to order such not conform, tenant or person, within a time to be fixed, upon a con- be for the judgment to (a) Are not the words "or in case of non-appearance or making" accidentally omitted here? landlord. sideration 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 absolute; "and in case the party shall neglect or refuse so to do, and shall lay no ground to induce the court or judge to enlarge the time for obeying the same, then the lessor or landlord filing an affidavit that such rule or order has been made and served and not complied with shall be at liberty to sign judgment for recovery of possession and costs of suit in the form contained in the schedule (A.) to this act annexed, marked No. 21, or the like effect." In the Queen's Bench. The Yorkshire day of No. 21. , A. D. 18. [Date of writ.] On the day and year above written, a writ of our to wit. lady the Queen issued forth of this court, with a notice thereunder written, the tenor of which writ and notice follows in these words; that is to say, [Here copy the writ and notice, which latter may be as follows: "Take notice, that you will be required, if ordered by the court or a judge, to give bail by yourself and two sufficient sureties, conditioned to pay the costs and damages which shall be recovered in this action."] And C. D. has appeared by his attorney [or " in person"] to the said writ, and has been ordered to give bail, pursuant to the statute, and has failed so to do: Therefore it is considered that the said [here insert name of landlord] do recover possession of the land in the said writ mentioned, with the appurtenances, together with £ for costs of suit. This section is similar to 1 Geo. IV. c. 87, s. 1; but if the premises were under 50l. in rent or value, the proceedings would be taken under 9 & 10 Vict. c. 95, s. 122. The holding must be under a lease or agreement in writing for a term certain; but any term, however short, will be within the act (Doe d. Phillips v. Roe, 5 B. & Ad. 766; Doe d. Carter v. Roe, 10 M. & W. 670); and a tenant in common may avail himself of the statute (Doe v. Rotherham, 3 Dowl. 690); and so may a tenant against an under-tenant. (Doe d. Watts v. Roe, 5 Dowl. 213.) The statute only applies where the tenancy has expired by effluxion of time, or has been determined by a regular notice to quit. (Doe d. Tindal v. Roe, 2 B. & Ad. 922; 1 Dowl. 143.) It does not apply to a tenancy for years determinable on lives (Doe d. Pemberton v. Roe, 7 B. & C. 2); nor where the tenant holds over after having surrendered his term; nor where the tenant, having determined his interest by notice to quit, holds over (Doe d. Cardigan v. Roe, 1 D. & R. 540); nor where the tenant is permitted to hold over for more than a year after his interest has expired; for a new tenancy from year to year has been thereby created (Doe v. Field, 2 Dowl. 542); nor where a right of entry is claimed for nonperformance of covenants (Doe v. Sharpley, 15 M. & W. 558); nor where the right to the premises is disputed between the parties. (Doe d. Sanders v. Roe, 1 Dowl. 4.) The lease or agreement in writing should be produced properly stamped, when the rule is moved for (Doe v. Rushworth, 4 M. & W. 74); and annexed to the affidavits (Doe d. Foucan v. Roe, 2 L. M. & P. 322); and it would be safer to have the affidavit of its execution made by the attesting witness, although it has been held not essential. (Doe v. Rotherham, 3 Dowl. 690; Doe d. Gowland v. Roe, 6 Dowl. 35; Doe d. Avery v. Roe, ib. 518.) It would also be better to show that the notice to quit was regular, although the use of that word might perhaps suffice. (Doe v. Boast, 7 Dowl. 487.) The recognizance will not extend to the mesne profits (Doe d. Sampson v. Roe, Moore, 54); or damages alleged to have been caused by the tenant to the trade of the demised premises. (Doe d. Marks v. Roe, 6 D. & L. 87.) In the Common Pleas it is taken for a year's value of the premises, and a reasonable sum for costs to be settled by the master. ment be to give da down to the 214. "Wherever it shall appear on the trial of any On trial of ejectment, at the suit of a landlord against a tenant, that any ejectsuch tenant or his attorney hath been served with due tween landnotice of trial, the judge before whom such cause shall lord and tecome on to be tried shall, whether the defendant shall nant, juries appear upon such trial or not, permit the claimant on the mages for trial, after proof of his right to recover possession of the mesne profits whole or of any part of the premises mentioned in the verdict, or to writ in ejectment, to go into evidence of the mesne profits a day specithereof which shall or might have accrued from the day of the expiration or determination of the tenant's interest in the same down to the time of the verdict given in the cause, or to some preceding day to be specially mentioned therein; "and the jury on the trial finding for the claimant shall in such case give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of the damages to be paid for such mesne profits; and in such case the landlord shall have judgment within the time herein before provided, not only for the fied therein. |