I Str. 554

So, though in fuch former ejectment the leffor of the 2 BI. R. 904. plaintiff never entered into the confent rule.-So, when an Ibid. 1180. ejectment was brought by a fraudulent affignee of an infol vent debtor, the former leffor being plaintiff.-So, proceeding was ftayed in error and a fecond ejectment, the plaintiff not being able to fhew that the writ of error was brought with any other view than to delay payment of cofts.

The remedy to enforce the payment of cofts after verdict 2Sell. Pract.232. is by attachment.-But where the leffor of the plaintiff has been taken into cuftody upon an attachment for costs, which is in the nature of a capias ad fatisfaciendum, there is no reason to grant the rule to ftay proceedings in another action brought by the fame leffor on the fame demife.

So, where before trial a mistake is difcovered, fo as to render it neceffary to ferve a new ejectment, the Court will not ftay proceedings till the costs of the first are paid; unlefs the party has been vexatious, or great expence has been incurred.

IT. R. 491.

But if the leffor of the plaintiff be not known, the Court 2 Str. 681.1099will order notice to be given where he may be found.-So, 12. if he abandons his ejectment in one Court and brings a new action in the other.

Proceedings in a fecond ejectment were ftayed till the 2 Str. 1105. special verdict in the former was determined.

When the plaintiff fucceeds in an ejectment, the defendant cannot bring a new ejectment against him, until he has delivered up poffeffion, or the tenants in poffeffion have attorned: and, it fhould feem, till he has alfo paid the cofts. of the former action.

The Court will not give the plaintiff leave to discontinue 2 Bl. R. 815. after a special verdict has been had, in order to adduce fresh

proof in contradiction to the verdict.

SECTION V. Of the Action of Ejectment upon the Statute 11 Geo. 2. c. 28. s. 2.

By the common law an actual entry, by the person Paul's Landl. claiming title to lands and tenements, was neceffary to be &c. Lawy. 149. made in order to fupport an action of ejectment; but in

the cafe of a leafe, the landlord could not enter and take the

actual

actual poffeffion until the leafe was expired: it therefore became ufual to infert a provifo that in cafe the rent of the demised premises was behind and unpaid at a certain time, the leffor fhould have a right to re-enter. In parol demises however, from year to year, the landlord could not have the benefit of fuch, a provifo; and when the right of reentry fubfifted, great inconvenience frequently happened to leffors or landlords in cafes of re-entry for non-payment of rent; by reafon of the many niceties that attended fuch re-entries at common law, and even when a legal re-entry was made, the landlord or leffor was put to the expence and delay of recovering in ejectment before he could obtain the actual poffeffion of the demifed premifles.-It is therefore enacted,

By the 4th G. 2. c. 28. s. 2. “That in all cafes between landlord and tenant, as often as it fhall happen that one half year's rent fhall be in arrear, and the landlord or leffor to whom the fame is due, hath right by law to re-enter for the non-payment thereof; fuch landlord or leffor fhall and may, without any formal demand or re-entry, serve a declaration in ejectment for the recovery of the demifed premiffes; or in cafe the fame, legally ferved, or no tenant be in actual poffeffion of the premiffes, then to affix the fame upon the door of any demifed meffuage; or in cafe fuch ejectment fhall not be for the recovery of any meffuage, then upon fome notorious place of the lands, tenements, or hereditaments, comprized in fuch declaration in ejectment, and such affixing fhall be deemed legal fervice thereof; which fervice or affixing fuch declaration in ejectment fhall ftand in the place and ftead of a demand and re-entry; and in cafe of judgment against the casual ejector, or nonfuit, for not confeffing a leafe, entry and ouffer, it fhall be made appear to the Court, where the faid fuit is depending, by affidavit, or be proved upon the trial, in cafe the defendant appears, that half a year's rent was due before the faid declaration was ferved; and that no fufficient diftrefs was to be found on the demifed premiffes countervailing the arrears then due, and that the leffor or leffors in ejectment had power to re-enter, then and in every fuch cafe, the leffor or leffors in ejectment shall recover judgment and execution in the fame

manner

manner as if the rent in arrear had been legally demanded and a re-entry made and in cafe the leffee or leffees, his, her, or their affignee or affignees, or other perfon or perfors claiming or deriving under the faid leafe, fhall permit and fuffer judgment to be had and recovered on fuch ejectment and execution to be executed thereon without paying the rent and arrears, together with full cofts, and without filing any bill or bills for relief in equity within fix calendar months after fuch execution executed; then and in fuch cafe, fuch leffee or leffees, &c. and all others claiming and deriving under the faid leafe, fhall be barred or foreclosed from all relief or remedy in law' or equity, other than by writ of error-for reverfal of fuch judgment in cafe the fame shall be erroneous; and the faid landlord or leffor fhall from thenceforth hold the faid demifed premiffes difcharged from fuch leafe: and if on fuch ejectment verdict fhall pass for the defendant, or the plaintiff shall be nonfuited therein, except for the defendant's not confeffing, &c. then in every fuch case, fuch defendant fhall have and recover his, her, or their full costs.

"Provided always, that nothing herein contained fhall Provifo as to extend to bar the right of any mortgagee or mortgagees of Mortgagees. fuch lease, or any part thereof, who shall not be in possesfion, so as fuch mortgagee or mortgagees fhall and do, within fix calendar months after fuch judgment obtained and execution executed, pay all rent in arrear, and all coftsand damages fuftained by fuch leffor, perfon, or perfons entitled to the remainder or reverfion as aforefaid, and perform all the covenants and agreements which on the part and behalf of the firft leffee or leffees, are and ought to be performed.

By fect. 3. "In cafe the faid leffee or leffees, his, her, or of Proceedtheir affignee or affignees, or other perfon or perfons, claim- ings in Equity. ing any right, title or intereft, in law or equity, of, in, or to the faid leafe, fhall within the time aforefaid, file one or more bill or bills, for relief in any Court of equity, fuch person or persons shall not have or continue any injunction against the proceedings at law on fuch ejectment, unless he, The, or they do or fhall within forty days next after a full perfect answer fhall be held by the leffor or leffors of the

plaintiff

Intent of the

Statute.

1 Bur. 619.

plaintiff in fuch ejectment, bring into Court, and lodge with the proper officer, fuch fum and fums of money, as the leffor or leffors of the plaintiff in the faid ejectment fhall, in his, her, or their answers fworn to be due and in arrear, over and above all just allowances, and also the cofts taxed in the faid fuit; there to remain till the hearing of the cause, or to be paid out to the leffor or landlord, on good security, subject to the decree of the Court: and in cafe fuch bill or bills fhall be filed within the time aforefaid, and after execution is executed, the leffor or leffors of the plaintiff shall be accountable only for fo much, and no more, as he, she, or they shall really and bona fide, without fraud, deceit, or wilful neglect, make of the demifed premiffes, from the time of his, her, or their entering into the actual poffeffion thereof; and if what shall be so made by the leffor or leffors of the plaintiff, happen to be less than the rent referved on the faid leafe, then the faid leffee or leffees, his, her, or their affignee or affignees, before he, she, or they shall be restored to his, her, or their poffeffion or poffeffions, fhall pay fuch leffor or leffors, landlord or landlords, what the money fo to them paid fell fhort of the referved rent, for the time fuch leffor or leffors of the plaintiff, landlord or landlords, held the faid lands.

Sect. 4. "Provided always, that if the tenant or tenants, his, her, or their affignee or affignees, do or fhall at any time before the trial in such ejectment, pay or tender to the lef for or landlord, his executors or adminiftrators, or his, her, or their attorney in that cause, or pay into the Court where the fame cause is depending, all the rent and arrear, together with the cofts; then and in such case, all further proceedings in the faid ejectment shall ceafe and be difcontinued: and if fuch leffee or leffees, his, her, or their executors, adminiftrators, or affigns fhall, upon fuch bill filed as aforefaid, be relieved in equity, he, she, and they fhall have, hold, and enjoy the demifed lands according to the leafe thereof made, without any new leafe to be thereof made to him, her, or them."

The ftatute relates to ejectment for non-payment of rent, only where the landlord has a right to re-enter.-The true end and professed intention of the Act of Parliament is to

take

take off from the landlord the inconvenience of his conti

nuing always liable to an uncertainty of poffeffion from its remaining in the power of the tenant to offer him a compenfation at any time, in order to found an application for relief in equity; and to limit and confine the tenant to fix calendar months after execution executed for his doing this; or else that the landlord fhould from thenceforth hold the demised premiffes discharged from the leafe.

Cowp. 247,

Courts of law always lean against forfeitures, as Courts of Bull. N. P. 96. equity relieve against them: therefore, whenever a land- Co. 64. lord means to take advantage of any breach of covenant fo as that it should operate as a forfeiture of the leafe, he must take care not to do any thing which may be deemed an acknowledgment of the tenancy, and fo operate as a waiver of the forfeiture: as diftraining for the rent, or bringing an action for the payment of it, fince the forfeiture accrued ; or accepting fuch rent. So, an action for double rent on the fame ftatute, will be barred by an acceptance of rent.

Therefore, where an ejectment has been brought on the Cowp. 247. ftat. 4 G. 2. c. 28. s. 2. for the forfeiture of a leafe, there being half a year's rent in arrear, and no fufficient distress on the premiffes; acceptance of rent afterwards by the landlord, has, it feems, been held a waiver of the forfeiture of the leafe; which may well be; for it is a penalty, and by accepting the rent, the party waives the penalty.

Such acceptance of rent however muft be with the knowledge of the forfeiture having been incurred, for otherwise it does not manifest any intention in the landlord to con tinue his tenant.

2 Str. 900.

But though the tenant has incurred a forfeiture under the 2 Bl. R. 746; ftatute, yet he may ftay proceedings either by tendering the rent before ejectment is delivered, or by moving for leave to pay into Court all the rent due and costs, any time before the writ of poffeffion is executed, even after judgment against the casual ejector.

2 Sell. Pract.210.

Or it may be done by fummons in vacation time. Before the ftatute, proceedings would be flayed on bring- Salk. 597. ing the rent in arrear and cofts into Court, in an action whether of covenant or debt for rent: and it is not now confined to actions under the statute.

For