Davis v. Burrell & another. him from proceeding further with force and arms, and with a strong hand, to enter into the said stables and lodging-rooms, and to beat in and break the said last-mentioned doors and locks, and to prevent him from forcibly ejecting and expelling the said servants, and in order to preserve the peace of our lady the queen, and to prevent any further breach of the same, then gave charge of the plaintiff to a certain peace officer of our lady the queen, to wit, to one W. W., then and there being a constable of and belonging to the metropolitan police district, then and there present at the said breach of the peace, as they lawfully might for the cause aforesaid, and requested the said constable to take the said plaintiff into his the said constable's custody, to be dealt with according to law; and that the said constable, at such request of the defendants, did gently lay his hands on the plaintiff for the cause aforesaid, and, for the purpose of conveying him before a justice assigned to keep the peace of our lady the queen, did then gently force and compel the plaintiff to go in and along the said streets and highways to the said police station, and detained him there a short time, in order that he might be taken before a magistrate, and from thence the said constable conveyed the said plaintiff to the said police office, as in the said declaration mentioned, the same being one of the police offices established in the metropolis, before a certain justice assigned to keep the peace of our said lady the queen in and for the said county of Middlesex, to wit, Peregrine Bingham, Esq., then being one of the magistrates of the police courts of the metropolis, the said police station and police office being in the said county and district and within the said jurisdiction, to answer the premises, and be there further dealt with according to law, using no unnecessary force or delay, and committing no unnecessary trespass to the plaintiff in that behalf; which are the same alleged trespasses in the declaration mentioned, and whereof the plaintiff hath above complained against the defendants. Verification. Replication, de injuria, and issue thereon. The cause was tried, before Jervis, C. J., at the sittings for Middlesex after last Hilary term, when it appeared that the premises in question consisted of a livery yard, stables, and coach-houses, known as the Catherine Wheel Yard, and were held by the plaintiff under an assignment from one Smith of a lease granted to the latter by the defendant Burrell, for a term of twenty-five years from March, 1843, and which contained, amongst others, a covenant in the usual form by the lessee to pay all rates and taxes, with a proviso for reentry on breach of any of the covenants. On the 25th of April, 1850, two poor rates, which had been duly assessed, allowed and published, were in arrear and unpaid by the plaintiff, and had been demanded upon the premises, of the plaintiff's son, by the collector. The defendant, considering the non-payment to be a breach of the covenant, watched his opportunity to reënter. He had previously brought ejectment unsuccessfully to recover possession for breaches of other covenants. See Doe d. Burrell v. Davis, 15 Jur. 155; 1 Eng. Rep. 403. On the 25th of April, the date of the alleged trespasses, only one person, named Hutchinson, a servant of the plaintiff, was in actual occupation of the premises, Davis v. Burrell & another. and he in the course of the morning went away to be shaved, and on his return found that the defendants, Burrell the landlord, and Lane his attorney, had, during his absence, come upon the premises, closed the outward gate of the yard, and placed padlocks on the doors of the stables, coach-houses, and other places. Hutchinson having informed the plaintiff of this, the latter returned with several persons, and commenced breaking the padlocks of the doors, whereupon the defendants gave him into custody, and he was taken before a magistrate, who declined to interfere, as it was a question of disputed possession between landlord and tenant; whereupon the plaintiff brought this action. The jury having found that the rates were unpaid, the verdict was entered for the defendants, leave being reserved to the plaintiff to move to enter the verdict for him. Prentice (April 17) moved accordingly, and for a new trial, on the ground of misdirection. The simple question is, whether the defendant was, at the time mentioned, lawfully possessed of the premises within the meaning of the plea. In order to justify his entry, he ought to have shown that the rates in arrear had been demanded of the tenant, and that the tenant had notice of the rates having been made. In Hurrell v. Wink, 1 Moore, 417, which was an action of replevin for taking the plaintiff's goods, the defendant avowed as overseer of the poor, under the 43 Eliz. c. 2, by virtue of a warrant of distress for 104. 17s., due for several rates, one of which was quashed, on the ground that the plaintiff was not an occupier within the parish where he was rated; and the court held, that, as one of the rates was quashed, the warrant was void, and that the precise sum due for poor rates should have been demanded from the plaintiff previous to the issuing of such warrant, as he was entitled to know what sum was actually due for poor rates before it was issued. [Jervis, C. J. That was as between the collector and the tenant. Here you want to affect a third person, the landlord. Cresswell, J. Must the tenant not take notice of the rate for the purpose of appealing against it, whether it has been demanded or not? If he must, is he not also bound to take notice of it for the purpose of payment, to perform his covenant? All the case of Hurrell v. Wink shows is, that a poor rate is not levyable by distress till after it has been demanded.] The covenant means, to pay on demand, or within a reasonable time after. [Williams, J. Must it be a personal demand? The rate was demanded on the premises, of the plaintiff's son.] That is not sufficient; it must be a personal demand. [Williams, J. If that be so, a tenant has only to keep out of the way in order to get rid of his liability.] Assuming the landlord had a right of entry, he was not justified in getting possession in the way he did. Lawful possession means possession lawfully acquired. Newton v. Harland, 1 Man. & G. 644. There was but one transaction from first to last, and it amounted to a forcible entry by the defendant. Levien v. Heathwaite. [Cresswell, J. The plaintiff's man, Hutchinson, was off the premises when the defendant entered, and had no business to go on them again.] JERVIS, C. J. It is quite clear that, if the rates were due, they were not paid, and the contract between the parties was, that the landlord. might enter if they were not paid. He accordingly does enter at a time when the premises are vacant, there being no person upon them, and he is therefore, as alleged in the plea, lawfully in possession. If the affixing notice of the rate upon the church door is sufficient notice to the rate payers for the purposes of appeal, it is also a sufficient notice to cast upon the plaintiff the duty of seeking out the proper persons to whom he is to pay, and of paying the rate in performance of his covenant. The covenant in this case is the ordinary one, to pay all rates and taxes, and it is not contended that a reasonable time for payment had not elapsed, but that there was no personal demand upon the plaintiff. I think, however, that the demand upon the premises, of the plaintiff's son, was quite sufficient, if a demand was necessary. There will, therefore, be no rule. CRESSWELL, WILLIAMS, and TALFOURD, JJ., concurring. Rule refused. LEVIEN V. HEATHWAITE.1 Trinity Term, June 5, 1851. Practice-Sufficiency of Affidavit to enlarge peremptory Undertaking. An affidavit in support of a rule to enlarge a peremptory undertaking, on the ground of the absence of a witness, is not sufficient if it does not state the name of such witness, nor allege him to be a necessary as well as a material witness. BYLES, Serj., showed cause against a rule calling on the defendant to show cause why the peremptory undertaking to try, which had been given in Easter term last, should not be enlarged to Michaelmas term next. The affidavit of the plaintiff's attorney, on which this rule had been obtained, states as the reason of the plaintiff countermanding the notice of trial, (which had been given pursuant to his peremptory undertaking,) that, "in consequence of the absence of a material witness, it would have been unsafe to the plaintiff to have proceeded to trial in Easter term last;" and that the deponent "hath been informed and believes that the said witness, so absent as aforesaid, is now in that part of Great Britain and Ireland called Ireland, and is not expected to return until July or August next;" and that this deponent" is not now in a position to state where the address of the said witness is." This affidavit is very unsatisfactory; it does not state 1 15 Jur. 660. Richardson v. The South-eastern Railway Company. the name of the witness, nor show what efforts have been made to procure his attendance; the affidavit also omits to say that the witness is a necessary witness. [Jervis, C.J. The omission of the word "necessary" is important, for there may be two or three material witnesses to prove the same thing, and they would not clearly be all necessary.] After the first default, the affidavit must show a sufficient excuse for not proceeding to trial. In 2 Arch. Prac. 1312, it is stated that, if it be the first default, the affidavit in support of the motion to enlarge the rule need not state the name of the witness, for which Montford v. Bond, 2 Dowl. 403, is cited. But this is not sufficient after such default. Giffard, in support of the rule, submitted that the affidavit showed a good reason for not going to trial, it appearing from the affidavit that two days before the day of trial the plaintiff's attorney found that the witness was in Ireland, and he was, therefore, obliged to give notice of countermand; also, the attorney states that he expects to be able to procure the attendance of the witness, if the trial is postponed to next term. Per curiam. The affidavit is certainly not sufficient, and the rule must be discharged. Rule discharged. RICHARDSON V. THE SOUTH-EASTERN RAILWAY COMPANY. Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, s. 38, 68 - Costs of Inquiry to settle Compensation. The provisions of the 38th section of the Lands Clauses Consolidation Act, 1845, (8 & 9 Vict. c. 18,) requiring the company to give notice of the amount of compensation they are willing to pay the claimant before they summon a jury to settle the same, and also the provisions of the 51st section, which regulates by whom the costs of such inquiry are to be borne, apply to cases where the company are desired by the claimant, under sect. 68, to issue their warrant for summoning such jury. Therefore, where a jury has been sum moned in compliance with a notice from the claimant, under the 68th section, if the verdict of the jury is for a greater sum than the sum previously offered by the company, the claimant is entitled to his costs of such inquiry. THE declaration stated, that before, and at the time of giving the notice thereinafter next mentioned, and after the passing of the Lands Clauses Consolidation Act, 1845, and after the passing of the Railways Clauses Consolidation Act, 1845, and after the passing of a certain other act of Parliament made and passed in the session of Parliament holden in the ninth and tenth years of the reign of her present majesty, intituled "An Act to make a Railway from the London and Greenwich Railway to Woolwich and Gravesend," the Richardson v. The South-eastern Railway Company. plaintiff was seized of the inheritance in fee simple in possession of an estate, situate and being, &c., and adjoining the railway authorized to be constructed by the defendants under the last-mentioned act; that by reason of the said last-mentioned railway having intersected and cut off the roadway adjoining the north side of the said estate of the plaintiff, and having thereby destroyed or obstructed the immediate approaches thereto, and also by the execution of the works, &c., the said estate of the plaintiff was greatly damaged and injuriously affected. The declaration then stated, that before the giving of the said notice thereinafter next mentioned, to wit, on the 1st of January, 1849, the defendants took possession of, and used and converted to the purposes of their aforesaid railway, or the works connected therewith, a piece of ground at the north-east angle of one of the aforesaid messuages or cottages, by reason whereof the said estate of the plaintiff was further greatly damaged and injuriously affected; and the plaintiff, by reason of the several premises aforesaid, sustained a loss, and claimed to be entitled to compensation in respect thereof, from the defendants, to an amount exceeding 504, to wit, to the amount of 1000l.; that afterwards the plaintiff, being so interested in the said estate, and the same being so injuriously affected as aforesaid, and the plaintiff having sustained such loss as aforesaid, and being so entitled to compensation in respect thereof as aforesaid, and being desirous of having the question of compensation settled by a jury, to wit, on the 9th of March, 1850, did give a notice in writing to the defendants, and did thereby and therein state to the defendants the nature of his interest in the said hereditaments in respect of which he claimed compensation, and that he claimed from the defendants compensation in respect of the said loss and injury, and that 1000%. should be paid by the defendants to him, the plaintiff, for such compensation; and the plaintiff did also, by the said notice, state to the defendants that it was the desire of him, the plaintiff, that the question of the aforesaid compensation should be settled by a jury in the manner pointed out in that behalf by the Lands Clauses Consolidation Act, 1845, unless the defendants should be willing to pay the aforesaid amount of 1000l. as compensation, which the plaintiff thereby claimed, and enter, within the time limited by the said statute in that behalf, into an agreement for that purpose; that the defendants afterwards, to wit, on the 20th of March, 1850, gave to the plaintiff a certain notice in writing, whereby, after reciting the said notice so given by the plaintiff to the defendants as aforesaid, they, the defendants, made known to the plaintiff that they, the defendants, were ready and willing, and thereby offered to pay to the plaintiff the sum of 60%. in satisfaction and discharge of the injury and damage alleged to have been sustained by the plaintiff, and in respect of which the said sum of 1000l. was so claimed by the plaintiff as aforesaid; that the defendants did not, nor would, pay the amount of compensation so claimed by the plaintiff as aforesaid, nor did, nor would, enter into a written agreement for that purpose; that the defendants, within twenty-one days of the receipt of the said first-mentioned notice to them so given as aforesaid, to wit. on the 28th of March, |