1830. And if it shall be proved that half a year's rent was due, was not suf had power to then the land lord shall reco ver judgment; and in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry and ouster, it shall be made appear to the Court where the said suit is depending, by affidavit, or to be proved upon the trial, in case the Defendant appears, that more than and that there half a year's rent was due before the said summons ficient distress on the premiwas served, and that no sufficient distress was to be ses, and that found on the demised premises countervailing the the landlord arrears then due, and that the lessor or lessors in re-enter, ejectment had power to re-enter, then and in every such case the lessor or lessors in ejectment shall recover judgment and execution, in the same manner as if the rent in arrear had been legally demanded, and a re-entry made; and in case the lessee or lessees, his or their assignee or assignees, or other person or persons claiming or deriving under the said leases, shall permit and suffer judgment to be had and 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 or bills for relief in equity, within six calendar months after such execution executed, then and in such case the said lessee and lessees, his or their assignee or assignees, and all other persons claiming and deriving Remedy by under the said lease, shall 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 shall be erroneous; and the said landlord or lessor shall from thenceforth hold the said demised premises discharged from such lease; and if on such ejectment verdict shall pass for the Defendant or Defendants, or the Plaintiff or Plaintiffs shall be nonsuited therein, except for the Defendant or Defendants not confessing lease, entry and ouster, then in and the tenant barred, if he does not pay shall be for ever the rent in ar rear and costs, months. within six writ of error. 1830. O'REILLY ບ. FEATHERSTON and others. every such case such Defendant or Defendants shall have and recover his and their full costs. (Same Statute.) Section 3d.--Provided always, that nothing herein The rights of contained shall extend to bar the right of any mortin possession, gagee or mortgagees of such lease, or any part thereof, who shall not be in possession. mortgagees not saved. Recites exist ing difficulties rents. And enacts, that after the 25th day of Dec. 1717, when more 4th Geo. 1, c. 5. (Irish Statute.) --- Section 3d. And whereas it hath been a frequent in recovering practice for sub-sheriffs, and seneschals of manors, to take insufficient security on replevins, by which means landlords have been often put to great trouble, charges and vexation, in recovering their rents, after judgment obtained in avowry: and whereas it hath been found difficult for landlords or lessors to prove the want of sufficient distress, by reason of niceties that attend such proof, whereby the said former Act hath proved in a great measure ineffectual; be it therefore enacted by the authority aforesaid, that from and after the 25th day of December 1717, as often as it shall happen that more than one year's rent shall be due and in an arrear to any landlord or lessor, though there be there be a suf- distress sufficient on the land to answer the said rent ficient distress, the landlord in arrear, such landlord or lessor may serve a summons may bring his in ejectment for recovery of the demised premises; and in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry and ouster, if it shall be made appear to the Court where the said suit is depending, by the affidavit of such landlord or lessor, his agent or receiver, or that it shall be made appear on the trial, in case the Defendant appears, that more than one year's rent was due before the said summons was served, then and in every such case such landlord or lessor, his lessee in ejectment, shall recover than one year's rent shall be dne, though ejectment; and if it shall appear that one year's rent was due, the landlord shall recover judg ment. 1830. O'REILLY 77. FEATHERSTON and others. If tenant suffer be executed, and do not pay months after execution to his rent in six be for ever judgment, and have execution thereon; and the jury that shall try such cause, in case it shall be before a jury, and if not, the Judge before whom the judgment shall be given, shall ascertain the sum that shall be so due and in arrear; and in case the lessee or lessees, his or their assigns, or other person or persons claiming or deriving under the said lease, shall permit and suffer judgment to be had and recovered on such ejectment and execution to be executed thereon, with- wards, he shall out paying on demand the rent so ascertained as barred. aforesaid to be in arrear, together with full costs, which the officer is hereby empowered to tax, or depositing the same in a Court of Equity, on filing a bill within six months after execution executed, then and in such case the said lessee or lessees, his or their assignee or assignees, and all other persons claiming or deriving under the said lease, shall 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 shall be erroneous; and the said landlord or lessor shall from thenceforth hold the said deinised premises discharged from such lease. And the land charged of the lord hold dis lease. (Same Statute.) Section 5th.-Provided always, that nothing therein Rights of contained shall extend to bar the right of any mortgagee of such lease, or any part thereof, who shall not sion, saved. be in possession. 8th Geo. 1, c. 2. (Irish Statute.) mortgagees not in posses to have nine the arrear after Section 4th. And be it enacted, by the authority Mortgagees to aforesaid, that where any lease, for avoiding of which be served and such ejectment is brought, shall, before the bringing months to pay such ejectment, have been mortgaged for a valuable execution execonsideration, and the lessee and mortgagee, and their cuted. respective assignees, shall be duly served with sum 1830. O'REILLY บ. FEATHERSTON mons in the said ejectment, and a proper affidavit or affidavits of the said summons shall be made and duly filed, and the Plaintiff shall obtain judgment and exeand others. cution in the said ejectment, then if the said mortgagee, or his assignee, shall not within nine months after such execution executed pay or tender unto such landlord or lessor the said rent in arrear and costs, to be ascertained in such manner as in and by the said Acts is directed and appointed, then such mortgagee, or his assignee, shall be barred and foreclosed of all relief or remedy in law or equity, on account of the said mortgage; and the said landlord or lessor shall from thenceforth hold and enjoy the demised premises, discharged and freed from the said mortgage, and the equity of redemption, any thing in the said Acts, or any law to the contrary, notwithstanding. Section 5th. And be it further enacted, by the authority aforesaid, that all and every mortgage of any lease, and every assignment thereof already made, shall be registered before the 24th day of June which shall be in the year of our Lord 1722, in such manner as is required by the statute for public registering of deeds, conveyances and wills; and all such mortgages and assignments hereafter to be made shall be registered in like manner within six calendar months after perfection thereof; and in default of registering such mortgage or assignment in manner aforesaid, the landlord or lessor may proceed in ejectment, and obtain judgment and execution thereon, although such mortgagee or assignee be not served with summons in ejectment, in such manner as if such mortgagee or assignee had been duly served. Mortgages and assignments to be registered within six months, 5 July 1830. On the 5th July 1830, Judgment was given. Lord Chancellor :-The question in this case de- Judgment. pends on the construction of the Irish statutes of the 11th Anne, and the 4th and 8th Geo. 1, called the Tenantry Acts. The effect of these Acts is, that if the rent be in arrear for a year, the landlord may have judgment and execution in ejectment; and if the tenant does not pay his rent and the costs of the ejectment within six months from the time of the execution executed, or file a bill, and pay the money into Court, his right is barred, and the landlord shall have the land free from the lease. Such was the enactment in the Act of the 4th Geo. 1, which, like the statute of Anne, contained a general saving clause in favour of mortgagees. Then came the Act of the 8th Geo. 1, saving the rights of mortgagees more precisely. As the tenant was allowed six months time to pay, the mortgagee was allowed nine months time to pay before his right became forfeited, and the landlord had the land free of the lease. The question arising in this case is of this description: Whether when the tenant having mortgaged the lease neglects to pay his rent in proper time, the mortgagee can save the forfeiture by paying the rent and costs after the expiration of the six months, but before the expiration of the nine months? This is a question of great importance and general interest. It is clear that the lease is in the mortgagee. It is the legal estate, and the security for his debt; and it is difficult to perceive, if the payment of the rent and costs has effect and operation for one purpose, why it should not have effect and operation for all purposes. In the course of the argument at the Bar, a question was asked, which still remains unanswered. Suppose |