66

"re-entry, serve a declaration in éjectment; or in case the same cannot be legally served, or no tenant be in actual "possession, affix the same upon the door of any demised messuage; or in case such ejectment shall not be for the recovery of any messuage, then upon some notorious place "of the lands, &c. comprised in the declaration in ejectment, "and such affixing shall be deemed legal service; and in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry, and ouster, it shall appear by affida"vit, or be proved on the trial, in case the defendant appears, "that half a year's rent was due before the declaration served, "and that no sufficient distress was to be found on the pre"mises, countervailing the arrears then due, and that the " lessor had power to re-enter; then, and in every such case, "the lessor in ejectment shall recover judgment and execu"tion, in the same manner as if the rent in arrear had been "legally demanded, and re-entry made; provided, that if "the tenant, at any time before the trial in such ejectment, "shall pay or tender to the landlord or his attorney, or pay "into court, the rent arrear and costs, all further proceedings "on the ejectment shall be discontinued"(27).

It has been supposed that the preceding statute only applied to cases of ejectment brought after half a year's rent due, where no sufficient distress was to be found upon the premises. But in a late case (Roe v. Davis, 7 East, 363.) it was holden, that the statute was more general in its operation.

The application to the court, on the part of the tenant, to stay proceedings, must, by the very ferms of the act, be made before trial.

In ejectment by a landlord', the tenant moved to stay proceedings, upon payment of rent arrear and costs. On a rule to shew cause, it was insisted, for the plaintiff, that the case was not within the preceding statute; because it was not an ejectment founded singly on the act, but it was brought like

c See Doe d. Smelt v. Fuchau, 15 East, e Roe v. Davis, 7 East, 363. 286. f Pure d. Withers v. Sturdy, H. 1752. d S. 4. Bull. N. P. 97.

(27) Before this statute courts of law and equity exercised a discretionary power of staying the lessor from proceeding at law, in cases of forfeiture for non-payment of rent, by compelling him to take the money due to him. See the opinion of Lee C. J. in Archer v. Snapp, Andr. 341. 2 Salk. 597. 8 Mod. 345. 10 Mod, 383. 8 Vern. 103. 1 Wils. 75. 2 Str. 900.

wise on a clause of re-entry in the lease for not repairing, and the lease was produced in court. However, the rule was made absolute, with liberty for the plaintiff to proceed upon any other title.

Where an ejectment is brought on the preceding statute for the forfeiture of a leases, acceptance of rent afterwards, by the landlord, has been holden a waver of the forfeiture; for it is a penalty, and by accepting the rent, the party waves the penalty.

Landlord having a right of re-entry for non-payment of rent brought an ejectment and proved a demand of half a year's rent after the day on which it was due, and a refusal on the part of the defendant to pay it, before the re-entry. It appeared that there was a sufficient distress on the premises during the whole time. It was holden", that the lessor of the plaintiff could not recover either at common law, or under the preceding statute; not by the former, because the rent was not demanded on the day when it became due; Co. Lit. 201. 7 Rep.. 28.; nor by the latter, because there was a sufficient distress on the premises.

Of the Proceedings where the Possession is vacant.-In cases between landlord and tenant, where one half year's rent is in arrear, and the landlord has a right of entry, the mode of proceeding, where the premises are untenanted, is marked out by the preceding statute. In all other cases of a vacant possession the mode of proceeding is thus:

A. (the person claiming title) by letter of attorney empowers B. to execute a lease, in the name of A., of the premises in question, to C. This lease is executed on the premises, B. and C. only being thereon; then B. leaves C. in possession, who is turned out by D., to whom, while on the premises, E. delivers a declaration in ejectment. A rule to plead having been given, and not complied with, a motion is made for judgment, which is granted of course. This motion must be supported by an affidavit of the above-mentioned proceedings, viz. the execution of the power of attorney, the lease, entry, ouster, and delivery of declaration; a copy whereof is annexed to the affidavit.

A. made a lease of an alehouse in London', for years. The lessee, before the expiration of the term, left it, and took another house in Wapping; but there was some liquor and old yessels left in the first-mentioned house, and the doors were

g Per Aston J. in Dce v, Batten, i Savage v. Dent, M. 10 Geo. 2. B. R, Cowp. 247. MSS, 2 Str. 1064. Bull. N. P. 2.97. S. C. shortly stated.

h Doe d. Forster v. Wandlass, 7 T. R.

D 2

locked. Upon this the landlord sealed a lease on the premises, and brought an ejectment, as on a vacant possession, and accordingly had judgment and execution; to set aside which, a motion was made. In addition to the foregoing facts it appeared, that only one quarter's rent was in arrear, and that the landlord had seen his tenant a short time only before he brought the ejectment. Lord Hardwicke, C. J.-" If only one quarter's rent was in arrear, the landlord could not proceed against the tenant on the stat. 4 Geo. 2. c. 28. But then taking this as it stood at common law, the question will be, whether this was such a vacant possession as to enable the landlord to bring an ejectment in this manner. For though a tenant does not live on the premises, yet it cannot, from that circumstance alone, be called a vacant possession; as if a person uses one house and lives in another, that will be a good possession of both. Here the tenant had actual possession of the premises, by keeping his liquor there, and, as appears, was such a person as the landlord might have served personally with an ejectment; for a declaration in ejectment may be served on the tenant himself any where, though the wife can be served with it only on the premises (28). I remember a case where a person in the Fleet was served with an ejectment. If the tenant, in this case, sometimes absconded, and only appeared on Sundays, then the landlord should have applied to the court for a special rule, as to the service of the declaration in ejectment." Probyn J. mentioned a case, where hay was left in a barn by a tenant, and that was holden sufficient to keep the possession. The court ordered the judgment and execution to be set aside with costs.

X. Of the Pleadings and Defence.

SPECIAL pleas, either in bar or abatement, are seldom pleaded to this action; because, according to the modern practice, if the defendant appears, he generally enters into the consent rule, by the terms of which he is bound to plead

(28) Or at the dwelling house of the husband, if it appears that wife is living with husband. Vid. 4 T. R. 465.

the general issue, Not Guilty. There is one plea, however, which is sometimes pleaded to this action, namely, a plea of ancient demesne': but this being a dilatory plea cannot be pleaded after the four first days of the term"; neither can it be pleaded without an affidavit to verify the fact"; but quære, for in Doe d. Morton v. Roe, B. R. H. 49 G. 3. 10 East, 523. where application was made for leave to plead ancient demesne, the master referred the court to a case in his note book, where it had been holden, that it was not necessary to verify this plea by an affidavit. It was admitted, however, that it was necessary to apply to the court for leave to plead this plea; and in this case, the application having been made on the last day of the four first days of the term, the court directed the party applying to plead instanter, and granted him a rule calling on the other party to shew cause why the plea should not be allowed. N. The application was supported by an affidavit stating that the lands in question were holden of A.B. as of his manor of F., which manor was holden in ancient demesne, and that there was a court of ancient demesne held within the manor and suitors thereof, in which court, and before which suitors, the lessor of the plaintiff might have proceeded in ejectment. According to Wilmot J. in Doe d. Rust v. Roe, it ought also to have been shewn that the lessor of the plaintiff had a freehold interest (29). To this plea, the plaintiff may reply, that the land is pleadable at common law, and traverse that the manor is ancient demesne. Com. Dig. Abate ment, (D. 1.) cites, Rast. Ent. 58. b. Show. 271.

Of the Defence.-As an action of ejectment is founded on a right of entry in the party claiming title, if the defendant can shew that such right has been tolled or taken away, it will be a sufficient defence to the action. A right of entry may be taken away by descent, by discontinuance, by fine and nonclaim, or by statute of limitations.

1. Of Descents which toll Entries.-By the common law, descents of corporeal inheritances in fee simple take away the entry of him that has rightP; as if a disseisor die seised, and the land descends to his heir, the entry of the disseisee is

k Ruon. Eject. 238.

Alden's case, 5 Rep. 105.

m Dean d. Wroot v. Fenn, 8 T. R.474. n Hatch v. Cannon, C. B. 3 Wils. 51.

o See also Goodright v. Shuffill, Ld. Raym. 1418. S. P.

p Litt. s. 395.

(29) The jurisdiction of the lord's court extends to land holden of the manor only, and not to land, parcel of the manor." Per Treby C. J. Salk, 186,

thereby taken away, unless there has been a continual claim; the like law is of an abatement or intrusion, and of the feoffees or donees of abators and intrudors*. But by stat. 32 H. 8. c. 33. "The dying seised of any disseisor, of and in any "lands, &c., having no title therein, shall not be deemed a "descent to take away the entry of the person or his heir,

who had lawful title of entry at the time of the descent, "unless the disseisor has had peaceable possession for five years next after the disseisin, without entry or continual "claim by the person entitled."

By force of this statute', if the disseisor die seised within five years after the disseisin, though there be not any continual claim made, yet such dying seised shall not take away the entry of the disseisee; but after the five years, there must be such continual claim as there was at the common law. But this statute does not extend to any feoffee or donee of the disseisor; and it is said that abators and intrudors are not within it. These, therefore, remain as at common law.

Descent of a corporeal inheritance in fee tail" takes away the entry of him that has right; as where a disseisor makes a gift in tail, and the donee has issue and dies seised, and the issue enter; this will bar the entry of the disseisee.

From the preceding authorities it appears, that to constitute a descent, which shall take away an entry, there must be a dying seised in demesne of a corporeal inheritance, either in fee, or fee tail; and in those cases to which the statute 32 H. 8. c. 33. extends, five years quiet possession. Whether the descent be in the collateral line, or lineal, is immaterial. But a dying seised for term of life, or a descent of a reversion or remainder, will not take away an entry'; because, for this purpose it is essentially necessary that the disseisor should die seised both of the fee and freehold also".

The descent, both of the fee and freehold, must be immediate, otherwise the entry will not be barred. Hence, if feme disseisoress take husband, and hath issue and dies, and after the husband dies, such descent will not take away the entry of the disseisee; because the heir comes not to the fee and freehold at once, the latter having been suspended until the death of the father, who was tenant by the curtesy.

The doctrine of descent cast, tolling entry, does not affect copyhold or customary estates, where the freehold is in the

q Litt. s. 414.

1 Inst. 237. b.

s 1 Inst. 256. a. 1 Inst. 238. a.

u Litt.s. 386.

x 1 Inst. 239. b.

y Litt. s. 387, 388.

z 1 Inst. 239. h.

a Litt. s. 394. 1 Inst. 241. b.