On trials after bail found, judge shall not stay except by recovery of possession and costs, but also for the mesne profits found by the jury: "provided always, that nothing hereinbefore contained shall be construed to bar any such landlord from bringing any action for the mesne profits which shall accrue from the verdict, or the day so specified therein, down to the day of the delivery of possession of the premises recovered in the ejectment." This is similar to 1 Geo. IV. c. 87, s. 2; and the sixth section of that act, as amended by 5 & 6 Vict. c. 97, s. 2, will still apply (see sect. 221), by which, if the landlord proceed under these provisions, and bail have been found by the tenant under sect. 213, and the landlord shall at the trial be nonsuited, or a verdict pass against him on the merits of the case, the defendant shall have judgment for such an amount of costs as will fully and reasonably indemnify him against all the costs and expenses incurred by him in or about the action. The damages for mesne profits may be recovered to the day of the trial without proof of notice. (Doe d. Thompson v. Hodgson, 12 Ad. & Ell. 135.) 215. "In all cases in which such security shall have been given as aforesaid, "if upon the trial a verdict shall pass for the claimantthe execution unless it shall appear to the judge before whom the same shall have been had that the finding of the jury was contrary to the evidence, or that the damages given were excessive-such judge shall not, except by consent, make any order to stay judgment or execution, consent, or on tenant's finding security. 66 except on condition that within four days from the day of the trial the defendant shall actually find security, by the recognizance of himself and two sufficient sureties, in such reasonable sum as the judge shall direct, conditioned not to commit any waste, or act in the nature of waste, or other wilful damage, and not to sell or carry off any standing crops, hay, straw or manure produced or made (if any) upon the premises, and which may happen to be thereupon, from the day on which the verdict shall have been given, to the day on which execution shall finally be made upon the judgment, or the same be set aside, as the case may be: "provided always, that the recognizance last above mentioned shall immediately stand discharged and be of Bail in error no effect, in case proceedings in error shall be brought to discharge upon such judgment, and the plaintiff in error shall become bound in the manner herein before provided." such secu rity. These sureties must be given, although sureties were given when the action was brought. (Doe v. Moore, 7 Bing. 124.) taken as bail; actions 216. "All recognizances and securities entered into as Recognilast aforesaid may and shall be taken respectively in such zances to be manner and by and before such persons as are provided other recogand authorized in respect of recognizances of bail upon nizances of actions and suits depending in the court in which any on them such action of ejectment shall have been commenced; limited. "and the officer of the same court with whom recognizances of bail are filed shall file such recognizances and securities, for which respectively the sum of two shillings and sixpence, and no more, shall be paid; "but no action or other proceeding shall be commenced upon any such recognizance or security after the expiration of six months from the time when possession of the premises, or any part thereof, shall actually have been delivered to the landlord." session of 217. "In all actions of ejectment hereafter to be Landlord to brought in any of her Majesty's courts at Westminster recover posby any landlord against his tenant, or against any person lands, &c., claiming through or under such tenant, for the recovery after service of any lands or hereditaments in any county, except ejectment. London or Middlesex, "where the tenancy shall expire or the right of entry into or upon such lands or hereditaments shall accrue to such landlord in or after Hilary or Trinity Terms respectively, of writ in "it shall be lawful for the claimant in any such action, at any time within ten days after such tenancy shall expire, or right of entry accrue as aforesaid, to serve a writ in ejectment in the form contained in the schedule (A.) See infra, 218. to this act annexed, marked No. 13, except that it shall command the persons to whom it is directed to appear within ten days after service thereof in the court in which such action may be brought; "and the like proceedings shall be thereupon had as herein before provided, save that it shall be sufficient to give at least six clear days' notice of trial to the defendant before the commission day of the assizes at which such ejectment is intended to be tried; "and any defendant in such action may at any time before the trial thereof apply to a judge by summons to stay or set aside the proceedings, or to postpone the trial until the next assizes; "and it shall be lawful for the judge, in his discretion, to make such order in the said cause as to him shall seem expedient." This is similar to 11 Geo. IV. & 1 Will. IV. c. 70, s. 36. Saving of former remedies. In ejectment by mortgagee, the mort dering the principal, in- be deemed a full satisfac tion, and the court may compel the mortgagee to reconvey. It will only apply where the right of entry accrues during or immediately after an issuable term, and not where an assizes has intervened between an issuable term and the right of entry. (Doe d. Milner v. Roe, 2 L. M. & P. 578.) The appearance at the trial would waive the right to the six days' notice of trial. (Doe v. Jepson, 3 B. & Ad. 402.) The commencing the action after the ten days would only be an irregularity, and the objection could not be taken at nisi prius. (Doe v. Brindley, 4 B. & Ad. 84.) 218. "Nothing herein contained shall be construed to prejudice or affect any other right of action or remedy which landlords may possess in any of the cases hereinbefore provided for, otherwise than hereinbefore expressly enacted." 219. "Where an action of ejectment shall be brought by any mortgagee, his heirs, executors, administrators or gagor's ren- assigns, for the recovery of the possession of any mortgaged lands, tenements or hereditaments, and no suit shall be then depending in any of her Majesty's courts of equity in that part of Great Britain called England, for or touching the foreclosing or redeeming of such mortgaged lands, tenements or hereditaments, "if the person having right to redeem such mortgaged lands, tenements or hereditaments, and who shall appear and become defendant in such action, shall, at any time pending such action, pay unto such mortgagee, or, is case of his refusal, shall bring into court, where such action shall be depending, all the principal monies and interest due on such mortgage, and also all such costs a have been expended in any suit at law or in equity upor such mortgage (such money for principal, interest and costs to be ascertained and computed by the court where such action is or shall be depending, or by the proper officer by such court to be appointed for that purpose), "the monies so paid to such mortgagee, or brought into such court, shall be deemed and taken to be in full satisfaction and discharge of such mortgage, and the court shall and may discharge every such mortgagor or defendant of and from the same accordingly; "and shall and may, by rule of the same court, compel such mortgagee, at the costs and charges of such mortgagor, to assign, surrender or reconvey such mortgaged lands, tenements and hereditaments, and such estate and interest as such mortgagee has therein, and deliver up all deeds, evidences and writings in his custody, relating to the title of such mortgaged lands, tenements and heredi taments, unto such mortgagor, who shall have paid or brought such monies into the court, his heirs, executors or administrators, or to such other person or persons as he or they shall for that purpose nominate or appoint." This section gives powers similar to those in 7 Geo. II. c. 20, s. 1, which extends also to an action by a mortgagee on a bond or covenant (Smeeton v. Collier, 1 Exch. 457; 17 L. J. 57, Exch.), which statute, however, does not apply where the mortgagee is in possession, or has attempted to exercise his right of sale. (Sutton v. Rawlings, 3 Exch. 407; 18 L. J. 249, Exch.) It will not apply where the redemption is controverted, or the money due is not adjusted, nor will it prejudice any subsequent mortgagee. (See the next section.) The application may be made to a judge at chambers. (Smeeton v. Collier, ut supra.) where the controverted, 220. "Nothing herein contained shall extend to any Not to excase where the person, against whom the redemption is tend to cases or shall be prayed, shall (by writing under his hand, or right of rethe hand of his attorney, agent or solicitor, to be deli- demption is vered before the money shall be brought into such court or the money of law, to the attorney or solicitor for the other side) due not adinsist, either that the party praying a redemption has not justed; a right to redeem, or that the premises are chargeable with other or different principal sums than what appear on the face of the mortgage or shall be admitted on the other side; 66 or to any case where the right of redemption to the mortgaged lands and premises in question in any cause or suit shall be controverted or questioned by or between different defendants in the same cause or suit; "or shall be any prejudice to any subsequent mortgage or to prejuor subsequent incumbrance, anything herein contained to dice any subthe contrary thereof in anywise notwithstanding." A delivery of a notice under this section, after the rule nisi had been obtained, would be an answer to the application. (Filbee v. Hopkins, 6 D. & L. 264.) The notice should state enough to enable the court to form an opinion as to the nature of the ground upon which the right to redeem is disputed, and to judge whether or not a case for the exercise of its jurisdiction properly arises. A mere general statement in such a notice that the mortgagee insisted that the mortgagor had no right to redeem, and that the mortgaged premises were chargeable with other principal sums than appeared on the face of the mortgaged deed, or were admitted by the mortgagor, is not sufficient. (Doe d. Harrison v. Louch, 18 L. J. 278, Q. B.) sequent mortgage. Jurisdiction judges. 221. "The several courts and the judges thereof reof courts and spectively shall and may exercise over the proceedings the like jurisdiction as heretofore exercised in the action of ejectment, so as to ensure a trial of the title, and of actual ouster, when necessary, only, and for all other purposes for which such jurisdiction may at present be exercised; "and the provisions of all statutes not inconsistent with the provisions of this act, and which may be applicable to the altered mode of proceeding, shall remain in force and be applied thereto." Amendment. XXVI. AMENDMENT AND MISCELLANEOUS PROVISIONS. "And whereas the power of amendment now vested in the courts and the judges thereof is insufficient to enable them to prevent the failure of justice by reason of mistakes and objections of form; be it enacted as follows: 222. "It shall be lawful for the superior courts of common law, "and every judge thereof, "and any judge sitting at nisi prius, "at all times to amend all defects and errors in any proceedings in civil causes, "whether there is anything in writing to amend by or not, "and whether the defect or error be that of the party applying to amend, or not; "and all such amendments may be made with or without costs, and upon such terms as to the court or judge may seem fit; "and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made." As already observed, this section is the key to the whole statute. Upon its being carried out in the spirit it was framed the utility of the act will very much depend. The courts have been frequently hampered by previous decisions, and compelled to follow precedents as to matters of form which were not by any means essential, and often caused a failure of justice. Now, the only object will be to determine in the existing suit the real questions in dispute, if possible; and the wide discretion as to costs will enable the courts and judges, while carrying out the object of the statute, to punish any attempt to gain an advantage by an irregularity. Various points as to amendments will be found in the preceding pages, for which see Index, and supra, 110, 117, 143. |