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on the title of lands, and that Court has ordered the defendant to pursue an ejectment at law, there after one or two ejectments tried, and the right settled to the satisfaction of the Court, the Court has ordered a perpetual injunction against the defendant, because there the suit is first attached in that Court, and never began at law (a); and such precedent incumbrances appearing to be fraudulent, and inequitable against the possession, it is within the compass of the Court to relieve against it (b).
As the costs of the ejectment are deemed the recompence as above stated (though in truth but a poor one), the Court will not suffer either the plaintiff to bring a new ejectment, or the defendant to bring an ejectment against the successful plaintiff, until the costs of the former action are paid.—The Courts now consider a former ejectment in another Court, as one in the same Court, and will stay proceedings in a second till the costs of the former are paid (r).
So, though in such former ejectment the lessor of the plaintiff never entered into the consent-rule: and where a rule for a new trial was obtained on the ground of the plaintiff having been nonsuited by reason of his inability to prove that the defendant had entered into the common rule to defend as landlord, the Court said, that as there had been a slip in the plaintiff not being able to prove the rule under which the defendant was let in to defend, though no blame was imputable to him as the objection could not be foreseen, yet the new trial must be on the common terms of payment of costs (d).--- So, when an ejectment was brought by a fraudulent assignee of an insolvent debtor, the former lessor being plaintiff.—So, proceedings were stayed in error and a second ejectment, the plaintiff not being able to shew that the writ of error was brought with any other view than to delay payment of costs (e).
The remedy to enforce the payment of costs, after verdict is by attachment.—But where the lessor of the plaintiff has been taken into custody upon an attachment for costs, which is in the nature of a capias ad satisfaciendum, there is no reason to grant the rule to stay proceedings in another action brought by the same lessor on the same demise (/).
So, where before trial a mistake is discovered, so as to render it necessary to serve a new ejectment, the Court will not stay proceedings till the costs of the first are paid; unless the party has been vexatious, or great expense has been incurred.
But if the lessor of the plaintiff be not known, the Court will order
notice to be given where he may be found.—So, if he abandon his ejectment in one Court and bring a new action in the other (a).
Proceedings in a second ejectment were stayed till the special verdict in the former was determined (£).
When the plaintiff succeeds in an ejectment, the defendant cannot bring a new ejectment against him, until he has delivered up possession, or the tenants in possession have attorned: and, it should seem, till he has also paid the costs of the former action (c).
The Court will not give the plaintiff leave to discontinue after a special verdict has been had, in order to adduce fresh proof in contradiction to the verdict (d).
Section IV. Of the Action of Ejectment upon the Statute 4 G. 2. c. 28. s. 2.
By the common law an actual entry, by the person claiming title to lands and tenements, was necessary to be made in order to support an action of ejectment; but in the case of a lease, the landlord could not enter and take the actual possession until the lease was expired: it therefore became usual to insert a proviso that in case the rent of the demised premises was behind and unpaid at a certain time, the lessor should have a right to re-enter. In parol demises, however, from year to year, the landlord could not have the benefit of such a proviso; and when the right of re-entry subsisted, great inconvenience frequently happened to lessors or landlords in cases of re-entry for nonpayment of rent, by reason of the many niceties that attended such re-entries at common law ; and even when a legal re-entry was made, the landlord or lessor was put to the expense and delay of recovering in ejectment before he could obtain the actual possession of the demised premises (e).—It is therefore enacted,
By the 4th G. 2. c. 28. s. 2. "That in all cases between landlord and tenant, as often as it shall happen that one half year's rent shall be in arrear, and the landlord or lessor to whom the same is due, hath right by law to re-enter for the non-payment thereof; such landlord or lessor shall and may, without any formal demand or re-entry, serve a declaration in ejectment for the recovery of the demised premises; or in case the same cannot be legally served, or no tenant be in actual possession of the premises, may then 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, tenements, or hereditaments, comprised in such declaration in ejectment, and such affixing shall be deemed legal service thereof; which service or affixing such declaration in ejectment shall stand in the place and stead of a demand and re-entry; and in case of judgment against the casual ejector, or nonsuit, for not confessing a lease, entry, and ouster, it shall be made appear to the Court, where the said suit is depending, by affidavit, or be proved upon the trial, in case the defendant appears, that half a year's rent was due before the said declaration was served; and that no sufficient distress was to be found on the demised premises countervailing the arrears then due, and that the lessor or lessors in ejectment had power to re-enter, 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, her, or their assignee or assignees, 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 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 such lessee, &c. and all others claiming and deriving under the said lease, shall be barred or foreclosed from all relief 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 and 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 the plaintiff shall be nonsuited therein, except for the defendant's not confessing, &c. then such defendant shall recover his, her, or their full costs."
Proviso as to Mortgagees.—" Provided always, that nothing herein contained shall extend to bar the right of any mortgagee or mortgagees of such lease, or any part thereof, who shall not be in possession, so as such mortgagee or mortgagees, within six calendar months after such judgment obtained and execution executed, pay all rent in arrear, and all costs and damages sustained by such lessor, or persons entitled to the remainder or reversion as aforesaid, and perform all the covenants and agreements which on the part and behalf of the first lessee or lessees, ought to be performed."
Of Proceedings in Equity,—By sect. 3. "In case the said lessee or lessees, his, her, or their assignee or assignees, or other person claiming any right, title, Of interest, in law or equity, of, in, or to the said lease, shall, within the time aforesaid, file one or more bill or bills for relief in any Court of equity, such person or persons shall not have or continue any injunction against the proceeding at law on such ejectment, unless he, she, or they within forty days next after a full and perfect answer shall be filed by the lessor or lessors of the plaintiff in such ejectment, bring into Court, and lodge with the proper officer, such sum of money, as the lessor or lessors of the plaintiff in the said ejectment shall, in their answers, 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, or to be paid out to the lessor or landlord, on good security, subject to the decree of the Court; and in case such bill or bills shall be filed within the time aforesaid, and after execution is executed, the lessor or lessors of the plaintiff shall be accountable only for so much, and no more, as he, she, or they shall really and bond fide, without fraud, deceit, or wilful neglect, make of the demised premises, from the time of their entering into the actual possession thereof; and if what shall be so made by the lessor or lessors of the plaintiff, 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 shall be restored to his, her, or their possession or possessions, shall pay such lessor or lessors, landlord or landlords, what the money so by them made fell short of the reserved rent, for the time such lessor or lessors of the plaintiff, landlord or landlords, held the said lands."
Sect. 4. "Provided that if the tenant or tenants, his, her, or their assignee or assignees, shall at any time before the trial in such ejectment, pay or tender to the lessor or landlord, his executors or administrators, or his, her, or their attorney in that cause, or pay into the Court where the same cause is depending, all the rent and arrears, together with the costs; then all further proceedings in the said ejectment shall cease and be discontinued; and if such lessee, &c. or their executors, administrators, or assigns, shall, upon such bill filed as aforesaid, be relieved in equity, he, she, and they shall have, hold, and enjoy the demised lands according to the lease thereof made, without any new lease to be thereof made to him, her, or them."
Intent of the Statute.—The statute 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 off from the landlord the inconvenience of his continuing always liable to an uncertainty of possession from its remaining in the power of the tenant to offer him a compensation at any time, in order to found an application for relief in equity; and to limit and confine the tenant to six calendar months after execution executed for his doing this: or else that the landlord should from thenceforth hold the demised premises discharged from the lease (a).
(«) Doc d. Hitcbin v. Lewis. I Burr. 614-619.
r 'jil & ^irhcft an ejectment has been brought on the stat. 4 G. i.
ft"* for the forfeiture of a lease, there being half a year's rent
ti}S-'- afl(j no sufficient distress on the premises: acceptance of
to day by the landlord, has, it seems, been held a waiver of
Mot. fcitare of the lease; which may well be; for it is a penalty,
^j br accepting the rent, the party waives the penalty.—Such ac
*"rjoce of rent, however, must be with the knowledge of the for
ture having been incurred, for otherwise it does not manifest any
intention in the landlord to continue his tenant (a).
But though the tenant has incurred a forfeiture under the statute, get he may stay 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 possession is executed, even after judgment against the casual ejector (b). Or it may be done by summons in vacation time. For, where in ejectment by a landlord, the tenant moved to stay proceedings upon payment of rent, arrears and costs. On a rule to shew cause, it was insisted for the plaintiff that the case was not within the Act, for that it was not an ejectment founded singly on the Act, but that it was brought likewise 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 (c).
Where the rent was tendered before notice of the action, the proceedings were set aside for irregularity; and the landlord having given directions respecting the matter to his attorney, was held to amount to nothing (i).
The lessors of the plaintiff were both devisees and executors, and in each capacity rent was due to them. The defendant moved to stay 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. There appeared to be a mutual debt due to the defendant by simple