sation at any time, in order to found an application for equitable aid (b).

The statute in question, the 4th Geo. 2. c. 28 already quoted, after reciting (c) that it often happened that after a re-entry made, the lessee or his assignee, upon one or more bills filed in a court of equity, not only held out the lessor or landlord by an injunction from recovering the possession, but likewise pending the suit ran much more in arrear, without giving any security for the rents due when the said re-entry was made, or which should afterwards incur, enacted, that in case the lessee or lessees, his, her, or their, assignee or assignees, or other person or persons claiming or deriving under the said leases, should permit or suffer judgment to be had and recovered on such ejectment, and execution to be executed thereon, without paying the rent and arrears, together with full costs, and without filing any bill or bills for relief in equity within six calendar months after such execution executed, then and in such case the said lessee or lessees, his, her, or their, assignee or assignees, and all other persons claiming and deriving under the said lease, should be barred and foreclosed from all relief or remedy in law or equity, other than by writ of error for reversal of such judgment, in case the same should be erroneous, and that the said landlord or lessor should from thenceforth hold the said demised premises discharged from such lease.

The third section of the same statute enacted, that in case the said lessee or lessees, his, her, or their, assignee or assignees, or other person or persons claiming any right, title, or interest, in law or equity, of, in, or to, the said lease, should, within the time aforesaid, file one or more bill or bills for relief in any court of equity, such person or persons should not have or continue any injunction against the proceedings at law on such ejectment, unless he, she, or they, should, within forty days next after a full and perfect answer should be filed by the lessor or lessors of the plaintiff in such

(b) Doe dem. Hitchins v. Lewis, 1 Burr. 619.

(c) 4 Geo. 2. c. 28, s. 2.

ejectment, bring into court, and lodge with the proper officer, such sum and sums of money as the lessor or lessors of the plaintiff in the said ejectment should in his or their 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 that in case such bill or bills should be filed within the time aforesaid, and after execution should be executed, the lessor or lessors of the plaintiff should be accountable only for so much and no more as he, she, or they should really and bonâ fide, without fraud, deceit, or wilful neglect, make of the demised premises from the time of his, her, or their, entering into the actual possession thereof; and that if what should be so made by the lessor or lessors of the plaintiff should happen to be less than the rent reserved on the said lease, then the said lessee or lessees, his, her, or their, assignee or assignees, before he she or they should be restored to his, her, or their possession or possessions, should pay such lessor or lessors, or landlord or landlords, what the money so by them made should fall short of the reserved rent for the time such lessor or lessors of the plaintiff, landlord or landlords, should hold the said lands.

To entitle himself to relief in equity from a forfeiture occasioned by non-payment of rent, it is not necessary that the failure in payment should arise from accident, as the miscarriage of a letter with a remittance, insolvency, or disease; but even in cases of negligence, the tenant being solvent, and not prevented by any accidental circumstance, equity will interfere; and, upon payment of the rent and all expenses, will prevent the tenant's being turned out of possession; considering that, in the one case, frequently great hardship might be the consequence; while, in the other, the lessor being placed in the same situation, there is in general no hardship (d).

(d) Per Lord Erskine; Sanders v. Pope, 12 Ves. 282-9. But see as to this principle, ante, p. 477 of this volume.

The necessity, however, for paying into court the arrears of rent and the costs arises only where the tenant applies for an injunction by which his possession is to be continued, and the landlord restrained from proceeding with his ejectment. In these cases, if the injunction be granted, the court is bound to impose the particular terms required by the statute for the security of the landlord; but if the landlord be actually in possession undisturbed by the interposition of the court, and the tenant's first application for relief be made at the hearing of the cause, the statute does not apply (e).

In equity, as at law (f), the court refuses to connect the right of the tenant to redeem under the statute for nonpayment of rent, with any extrinsic matter of waste, or breach of covenant, so as to make the tenant pay compensation for them, as a condition connected with his relief (g). Relief will be granted against forfeiture for non-payment of rent, without prejudice to any remedies at law or in equity to which the landlord may be entitled to resort on other accounts. But if breaches of covenants for which the lessee might be ejected, and against which the court could not relieve, be proved, it will not relieve against a breach for nonpayment of rent (h).

And where, on a trial in ejectment, the lessor was confined by the judge to the proof of one breach of covenant, against which, it seems, equity would have afforded relief, although he was capable of proving other breaches against which no relief could be had, the court refused to continue an injunction against further proceedings under the ejectment (i).

Where a lessee suffered judgment by default in an ejectment on a proviso for re-entry on non-performance of covenants, without requiring a particular of the breaches on

(e) Bowser v. Colby, 1 Hare, 109. (f) Ante, p. 477 of this volume. (g) Davis v. West, 12 Ves. 475. Swanston v. Biggs, 1 Beat. 170.

(h) Bowser v. Colby, 1 Hare, 109.

134. Home v. Thompson, Sau. & Scul. 615.

(i) Lovat v. Lord Ranelagh, 3 Ves. & B. 24.

481 which the lessor intended to rely, and afterwards applied for relief in equity on payment of arrears of rent and costs, and the lessor by his answer alleged that the ejectment was brought for breaches of other covenants, such as to repair, not to assign without license, &c., Sir Wm. Grant decreed that the defendant should be at liberty to bring an ejectment for breach of any of the covenants, except the covenant for payment of rent; reserving further directions; but on the cause coming before Lord Eldon on appeal, his lordship said that the decree was not right in form; for if the court thought it stood also upon the other breaches, and meant to examine them, the course ought to have been of a different nature; an issue to try whether there were any breaches of those covenants, specifying them, that were known to the defendant previously to the ejectment brought (k).

But, according to Sir James Wigram, V. C. (1), it depends very much, in these cases, on the form and course which the pleadings take, whether the breaches of covenant are to be proved in the cause, or tried in an issue.

And the same learned judge also admitted that a case might exist in which a lessee should have also dealt with the property of his landlord, or otherwise so acted, as to deprive himself of all right to equitable interference in redeeming his lease, forfeited by non-payment of rent, although no covenant other than that for payment of rent might have been broken (m). At the same time, he disclaimed the proposition, that a court of equity was to exercise a merely arbitrary discretion upon this subject, or that the equitable considerations which should deprive the plaintiffs in the cause before him of their right to redeem their testator's lease, must not be such as were capable of being defined, or, at least reduced to a principle (n).

Equity will relieve a lessee against a forfeiture of his lease

(k) Wadman v. Calcraft, 10 Ves. 67. And see Davis v. West, 12 Ves. 475; S. C. Roe dem. West v. Davis, 7 East, 363.

(4) Bowser v. Colby, 1 Hare, 109.132. (m) Bowser v. Colby, 1 Hare, 109. 138. (n) Ibid.

VOL. II.

I I

for non-payment of rent, as well where the lease is declared to be void, as where a right of re-entry is given to the lessor on that event (0).

An under-tenant of premises comprised in an ejectment for non-payment of rent brought by the first lessor, may obtain the same relief as his lessor, by filing a bill in equity against such first lessor within six months after execution had, and making the deposits prescribed by the act (p).

So, if there be many under-lessees of distinct parts of premises, the original lease of which becomes forfeited for nonpayment of rent, any of them may obtain relief, by paying the whole rent, and may compel a contribution from the other under-lessees (g).

Where a mesne lessor forfeited his lease for non-payment of rent, and afterwards took a new lease from his lessor, he might compel his under-lessee to accept a new lease from him, for so much of the term of the latter as was unexpired, with the same covenants as were in the old lease (7). But the necessity which it would seem formerly existed (s) for the grant of a new lease to the tenant on his obtaining relief, was obviated by the 4th section of the act of George the Second (t), which provided, that if the lessee, his executors, administrators, or assigns, should upon such bill filed as aforesaid be relieved in equity, he or they should have, hold, and enjoy, the demised lands according to the lease thereof made without any new lease.

3. As to relief in equity from forfeiture for breach by the lessee of other covenants than for payment of rent.

Whether the relief granted by the courts of equity against forfeiture for breach of covenant for payment of rent should

(0) Bowser v. Colby, 1 Hare, 109. And see ante, p.327 et seq. of this volume. (p) Berney v. Moore, 2 Ridgew. P. C. 310. See also O'Reilly v. Fetherston, 4 Bli. P. C. N. S. 161. The language of the Irish Act, 11 Anne, c. 2, is similar to that of the English act, 4 Geo. 2. c. 28. And see Doe dem. Wyatt v. Byron, 1 Man. Gra. & Sc. 623; S. C.

3 Dowl. & Lown. 31.

(2) Webber v. Smith, 2 Vern. 103; S. C. 1 Eq. Ca. Ab. 115. pl. 14.

(r) Baker v. Olibeare, Freem. Ch. 92. (8) Hack v. Leonard, 9 Mod. 90. Anon. Freem. Ch. 115, case 129. Baker v. Olibeare, Freem. Ch. 92. Bowen v. Whitmore, Freem. Ch. 192.

(t) 4 Geo. 2. c. 28. s. 4. 19 Ves. 141.