BOOK 11. Consequence term time, or to a judge in vacation(t). By consent, the court or a judge will, even after execution executed, stay the proceedings, &c., on payment of the rent and costs (u). The rent to be paid must, it seems, be calculated only to the last rent-day, and not to the day of computing (v). The application may be made though the ejectment be not wholly brought under the act; and in such case the court will grant it, reserving, however, to the plaintiff the liberty of proceeding on any other title (x). Where the lessors of the plaintiff were both devisees and executors, and in each capacity rent was due to them; and the defendant moved to stay the proceedings, on payment of the rent due to the lessors of the plaintiff as devisees, they not being entitled to bring an ejectment as executors; and there appearing to be a mutual debt due to the defendant by simple contract, the defendant offered to go into the whole account, taking in demands both as devisees and executors, saving just allowances; which the lessors of the plaintiff refused: the rule was made absolute to stay the proceedings, on payment of the rent due to the lessors as devisees, and costs (y). Where the rent was tendered before notice of the action, the proceedings were set aside for irre gularity; and the landlord having given directions respecting the matter to his attorney, it was held to amount to nothing (z). Or the defendant may apply to a court of equity for relief, either before or after trial. But in case the lessee, his assignee, or other person claiming or deriving under the said lease, shall suffer judgment to be recovered on such ejectment, and execution to be executed thereon, without paying the rent in arrear, together with full costs, and without filing any bill for relief in equity within six calendar months after such execution executed; then and in such case the said lessee, &c., shall be barred or foreclosed from all relief in law and equity, (other than by writ of error, if the judgment be erroneous), and the landlord or lessor shalĺ thenceforth hold the said demised premises discharged from such lease (a). (t) Ca. Pr. C. B. 6: 2 Sellon, 127. (1) Harr. L. & T. 844. See Doe Lambert v. Roe, (3 Dowl. 557), where Williams, J., refused to set aside the proceedings after execution executed, where there were other grounds of forfeiture besides the non-payment of rent. (v) Doe Harcourt v. Roe, 4 Taunt. 883. (x) Bull. N. P. 97. (y) 2 Sel. Prac. 211: Duckworth d. Tub ley v. Tunstall, Barnes, 184. (z) Goodright Stevenson v. Noright, 2 W. Bl. 747. (a) 4 G. 2, c. 28, s. 2: see Doe Hitchins v. Lewis, 1 Burr. 614; 2 Ld. Ken. 320, S. C. SECT. 4. Proceedings in Ejectment by Landlord, under Stat. 1 G. 4, c. 87, upon the Determination of a Tenancy (a). СНАР. Т. applies. To what Cases the Statute applies.] THE mode of proceeding To what Cases given by the stat. 1 G. 4, c. 87 may be adopted in all cases the Statute "where the term or interest of any tenant, holding, under a lease or agreement in writing, any lands, tenements, or hereditaments, for any term or number of years certain, or from year to year, shall have expired, or been determined, either by the landlord or tenant by regular notice to quit (b); and such tenant, or any one holding or claiming by or under him, shall refuse to deliver up possession accordingly, after lawful demand in writing made thereof." A tenant in common may proceed under the act for the recovery of his undivided moiety (c). The act does not, it seems, extend to cases where the tenant bona fide disputes the landlord's title; as if the tenant claim the premises as heir-at-law, or the like (d). A holding for three months certain is a tenancy for a term within the meaning of the act (e). So is a mere agreement in writing for a lease for a term certain, and a holding over beyond that term (f). In the case of lessee and under-lessee, the lessee is a landlord within the statute (g). But a tenancy for years determinable on lives is not (h). And the statute only applies where there was a term certain, and the lease has expired by effluxion of time, or a tenancy from year to year, determined by regular notice to quit, and not to the middle case of a term for fourteen years, determinable by notice at the end of the first seven, and determined by such notice accordingly (2). The holding must have been under a lease or agreement in writing; and therefore, where a tenant held from year to year, under a letting by parol, it was holden not to be within the act (j). When a landlord allows his tenant to hold over above a year, without taking any steps to recover possession, a new tenancy from year to year being created, he is not entitled to the benefit of this act (†). A landlord, however, is not confined to the mode of proceeding given by this statute; but he may adopt it, or have recourse to the ordinary mode of proceeding laid down in the first section of this Chapter, ante, 733, &c., at his option (7). (a) See as to obtaining possession by summary proceedings before justices, where the term does not exceed seven years, or the rent 20.; and no fine has been reserved, 1 & 2 V. c. 74. (b) Doe Cardigan v. Roe, 1 D. & R. 540. (e) Doe v. Rotheram, 3 Dowl. 690. (d) Doe Saunders v. Roe, 1 Dowl. 4. (e Doe Phillips v. Roe, 5 B. & Ald. 766; 1 D. & R. 433, S. C. If See Doe Marquis of Anglesey v. Roe, 2 D. & R. 565. (g) Doe Watts v. Roe, 5 Dowl. 513. U) Doe Bradford v. Roe, 5 B. & Ald. 770; (k) Doe Thomas v. Field, 2 Dowl. 542. PART I BOOK III. And the landlord should be cautious in proceeding under this act, and requiring bail; for if he fail in the action, he will have to pay double costs(m). Demand of Declaration and Notice. Bail. ་་ ནཎྜ 6 Demand of Possession.] This demand must be in writing, and made and signed by the landlord or his agent, and served personally upon, or left at the dwelling-house or usual place of abode of such tenant, or person" holding or claiming by or under him (n). And if such tenant or person thereupon refuse to deliver up possession, the landlord may commence his ejectment (o). Y Declaration and Notice.] The declaration is in the usual form (p); but at the foot thereof the landlord is to address a notice to such tenant or person, (vide supra), requiring him to appear in the court in which the action shall have been commenced, on the first day of the term (4) then next following, For if the action shall be brought in the counties palatine of Lancaster or Durham respectively, then on the first day of the next session or assizes, or at the court day or other usual period for appearance, then next following, as the case may be], there to be made defendant, and to enter into a recognisance by himself and two sufficient sureties, in such sum as to the court shall seem reasonable, conditioned to pay the costs and damages which shall be recovered in the action, if the court shall so order(r). It must be signed by the landlord or his agent, and not in the name of Richard Roe, as in the notice in ordinary cases (s). A notice, signed A. B., agent for the plaintiff, instead of lessor of the plaintiff, and calling upon the tenant to appear and be made defendant, and find such bail, &c., " and for such purposes as are specified in the act of parliament," without detailing them, is sufficient (1). A notice according to the statute " to appear in Trinity term next following" is bad; it should require an appearance on the first day of term (u). In practice, it is usually added after the notice by the casual ejector; but there seems to be no necessity for both notices, as this notice comprises the whole of the substance of the other. The declaration is served in the manner directed ante, 736 to 743. Bail.]" Upon the appearance of the party at the day prescribed, or, in case of non-appearance, on making the usual affidavit of the service of the declaration and notice (v), 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 (m) 1 G. 4, c. 87, s. 6, post, 782. (n) Id. s. 1: see Doe Marquis of Anglesey v. Roe, 2 D & R. 565. See form where tenant held under a lease, Chit. Forms, 400; the like where he held from year to year, Id. (0) See 1 G. 4. c. 87, s. 1. (p) See ante, 733. See the forms, Chit. Forms, 400. (q) See Doe Holder v. Rushworth, 4 M. & W. 74; 6 Dowl, 712, S. C. (r) 1 G. 4, c. 87, s. 1. See form of notice, Chit. Forms, 400. (s) Anon., 1 D. & R. 435: Goodtitle v. Notitle, 5 B. & Ald. 849; 6 Moore, 36 a. See a form, Tidd's Forms, 623. (t) Doe Beard v. Roe, 1 M. & W. 360. See form, Chit. Forms, 400. (u) Doe Holder v. Rushworth, 4 M. & W. 74; 6 Dowl. 712, S. C. (c) Ante, 743, 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 for a rule for such tenant or person to shew cause, within a time to be fixed by the court on a consideration of the situation of the premises, why such tenant or person, upon being admitted defendant, besides entering into the common rule, and giving the common undertaking, should not undertake, in case a verdict shall pass for the plaintiff, to give the plaintiff a judgment, to be entered up against the real defendant, of the term next preceding the time of trial, [or if the action shall be brought in the counties palatine respectively, then of the session, assizes, or court day, as the case may be, at which the trial shall be had], and also why he should not enter into a recognisance, by himself and two sufficient sureties, in a reasonable sum, conditioned to pay the costs and damages which shall be recovered by the plaintiff in the action; and it shall be lawful for the court, upon cause shewn, or upon affidavit of the service of the rule in case no cause shall be shewn, to make the same absolute in whole or in part, and to order such tenant or person, within a time to be fixed, upon a consideration of all the circumstances, to give such undertakings, and find such bail, with such conditions, and in such manner, as shall be specified in the said rule, 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 to enlarge the time for obeying the same, then upon affidavit of the service of such order, an absolute rule shall be made for entering up judgment for the plaintiff” (x). СНАР. 1. SECT. 4. how made. In order to proceed under this act, make a motion to the court The Motion, for a rule to shew cause why the tenant should not give the under- by whom and taking and enter into the recognisance above mentioned, and why in default thereof the plaintiff should not be at liberty to sign judg ment against the casual ejector (y). The motion must be made on production of the original or a counterpart or duplicate of the lease or agreement properly stamped; and it is not sufficient to more on a copy, on an instrument unstamped at the time of the motion, though it be stamped after the rule nisi and before cause shewn (z). It may be made by one of several tenants in common (a). The motion should be founded upon the affidavit described by the The Affidavit. act(b). It is advisable that the affidavit should state the annual value of the premises, so that the court may be enabled to fix the sum for which the security should be given (c). It should shew that the tenancy, if from year to year, has been determined by a regular" notice to quit (d). It seems not to be necessary that the attesting witness should depose to the execution of the lease if it be sufficiently proved by other witnesses (e). Where an attorney who was the attesting witness to the counterpart afterwards became the (z) Ì G. 4. c. 87, s. 1. 66 Chit, Sum. Pract. 230. (a) See Doe v. Roe, 2 Dowl. 180. a Doe Caulfield v. Roe, 3 Bing. N. C. 327. 5. Dowl, 365, S. C.: see Doe Holder v. Rushworth, 4 M. & W, 74. but see Doe v. Roe, 1 D & R. 133, cont. (b) Doe Morgan v. Rotheram, 3 Dowl. (00: Doe Gowland v. Roe, 6 Dowl. 35; sed vide per Williams, J., in Doe Avery v. Roe, (c) See form of affidavit, where the PARI 1. BOOK III. attorney of the tenant, the court, notwithstanding, compelled him to prove the execution of the counterpart in support of the application; on the ground that, if a person becomes willingly a party to the execution of an instrument, he ought not, because he subsequently becomes the partisan of another, by being his attorney, or because he is out of humour, to be allowed to frustrate the remedy which a third has on person the instrument (ƒ). The Rule. Bail, how put in. Undertaking. Judginent against the casual Ejector. It is not necessary to express in the rule the amount of the security required (g). Draw up the rule, and serve a copy of it upon the tenant in possession, either personally, or by leaving it for him at his most usual place of abode. On the day appointed for shewing cause, move to make the rule absolute on an affidavit of service(h). The time within which the undertaking is to be given, and the recognisance entered into, as required by the act, is fixed by the court in this rule absolute (i). In one case the Court of Common Pleas, on making a rule absolute (no cause being shewn) for the tenant's undertaking to give the plaintiff judgment, to be entered up against the real defendant, and to enter into a recognisance in a reasonable sum conditioned to pay the costs and damages which should be recovered by the plaintiff in the action, ordered the tenant to appear in the next succeeding term to find such bail as were specified in the former rule; and on no cause being shewn to that order, they directed the rule for entering up judgment for the plaintiff to be made absolute (k). Usually bail is required for a sum sufficient to cover a year's value and 40%. for costs (). Draw up the rule, and serve it in the same manner as the rule nisi. Bail is put in, and the recognisance taken, in nearly the same manner as in ordinary cases (m); except that the tenant himself must join in the recognisance (n); but he cannot be examined as to his sufficiency (o). The recognisance should be entitled in the cause against the real defendant (p). The officer of the court with whom the recognisance is filed, is to file it on payment of 2s. 6d. It must be put in suit in six months after the landlord has obtained possession (q). The undertaking mentioned in the statute is included in the consent rule (r). Judgment against the casual Ejector.] If the tenant put in bail, except to them or not (s), as in ordinary cases, in order to compel a justification (t). And if he fail to justify his bail, or if no bail be put in, or the defendant have not entered into the consent rule, with the undertaking above mentioned, within the time given by the court for that purpose, then, if it was part of the rule for the required bail, that, in default of their (f) Doe Avery v. Roe, 6 Dowl. 518. (h) See form of the affidavit of service, (i) See Doe Anglesea v. Brown, 2 D. & (k) Doe Sampson v. Roe, 6 Moore, 54. (n) Id. s. 1. (0) Semb.: see Keane v. Deardon, 8 East, 298. See the forms, Chit. Forms, 406; see also the form of the notice of filing the recoguisance, Id. 407. (p) Doe Durant v. Moore, 6 Bing. 656; 4 Moo. & P. 531, S. C. (q) 1 G. 4, c. 87, s. 7. (r) See form, Chit. Forms, 408. (s) See form of notice of exception, Chit. Forms, 07. (t) Ante, Vol. I. 585, &c. |