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, or 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 asnwers, 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 bona 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). (a) Doe d. Hitchin v. Lewis. 1 Burr. 614-619. for the recovery of an the lands, tener the place a sai fr Armed an therefore, gainst forfeitures, as Courts of equity whenever a landlord means to take breach of covenant so as that it should operate as a of the lease, he must take care not to do any thing which acknowledgment of the tenancy, and so operate as er of the forfeiture: as distraining for the rent, or bringing an accion for the payment of it, since the forfeiture accrued; or accept ing such rent. So, an action for double rent on the same statute, will be barred by an acceptance of rent (a). Therefore, where an in arrear, rent ejectment has been brought on the stat. 4 G. 2. the forfeiture of a lease, there being half a year's rent and no sufficient distress on the premises: acceptance of t afterwards by the landlord, has, it seems, been held a waiver of the forfeiture of the lease; which may well be; for it is a penalty, and by accepting the rent, the party waives the penalty.-Such acceptance of rent, however, must be with the knowledge of the forfeiture 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, yet 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 (b). 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 (a) Bull. N. P. 96. Doe d. Cheny v. Batten. | Bl. R. 746. Goodtitle v. Holdfast. 2 Stra. 900. Cowp. 243-247. (c) Bull. N. P. 97. (4) Goodright d. Stevenson v. Noright. 2 ntract, and the defendant offered to go into the whole account, king in both demands as devisees and executors, having just allowances; which the lessors of the plaintiff refused. The rule was made absolute to stay proceedings on payment of the rent due to the lessors as devisees, and costs (a). An insertion in the proviso of a lease, that the right of re-entry shall accrue upon the rent being lawfully demanded, will not render a demand necessary if there be no sufficient distress; for it is only stating in express words, that which is in substance contained from the principles of the common law in every proviso of this nature (b). In moving for judgment upon a declaration in ejectment delivered, or (in case of no tenant) affixed to the premises, according to the statute, the Courts require an affidavit that half a year's rent was in arrear before declaration served, that the lessor of the plaintiff had a right to re-enter, that no sufficient distress was to be found on the premises countervailing the arrears of rent then due, that the premises were untenanted, or that the tenant could not be legally served with the declaration (as the case is), and that a copy of the declaration was affixed on the most notorious (stating what) part of the premises: else the Court will not grant a rule for judgment.-This affidavit is necessary only upon moving for judgment against the casual ejector, or after a nonsuit at the trial for the tenant's not confessing lease, entry, and ouster. For, if the tenant appear, and the ejectment come to trial, the matters averred in the above affidavit must be proved upon the trial (b). Note. The affidavit is necessary only in proceeding under the statute, but not on the common law proceeding (b). The declaration in ejectment is prepared in the usual way, taking care to lay the demise after the forfeiture accrued (c). The late tenant or other person, claiming title to the premises, has the same time to appear in as is allowed to tenants in possession (c). After appearance the proceedings are the same as in other cases; therefore in case of no appearance, the plaintiff moves for judgment against the casual ejector on the affidavit above-mentioned, and proceeds as in ejectments at common law (d). Thus, where the case comes within the statute, there is no occasion for the landlord to make an actual entry and seal a lease on the premises: which, as we have before shewn, must be done in all other cases, where the premises are untenanted, nor is there any occasion to (a) Duckworth d. Tubley v. Tunstall. Barn. 184. 2 Sell. Pract. 211. (6) Doe d. Scholefield v, Alexander. 2 M. & S. 525. (c) Doe d. Hitchin v. Lewis. I Burr. 614-16. (d) 2 Sell. Pract. 212, Courts of law always lean against forfeitures, as Courts of equity relieve against them: therefore, whenever a landlord means to take advantage of any breach of covenant so as that it should operate as a forfeiture of the lease, he must take care not to do any thing which may be deemed an acknowledgment of the tenancy, and so operate as a waiver of the forfeiture: as distraining for the rent, or bringing an action for the payment of it, since the forfeiture accrued ; or accepting such rent. So, an action for double rent on the same statute, will be barred by an acceptance of rent (a). Therefore, where an ejectment has been brought on the stat. 4 G. 2. c. 28. s. 2. for the forfeiture of a lease, there being half a year's rent in arrear, and no sufficient distress on the premises: acceptance of rent afterwards by the landlord, has, it seems, been held a waiver of the forfeiture of the lease; which may well be; for it is a penalty, and by accepting the rent, the party waives the penalty.-Such acceptance of rent, however, must be with the knowledge of the forfeiture 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, yet 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 (b). 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 (a) Bull. N. P. 96. Doe d. Cheny v. Batten. | Bl. R. 746. Goodtitle v. Holdfast. 2 Stra. 900. Cowp. 243-247. (c) Bull. N. P. 97. (b) Goodright d. Stevenson v. Noright. 2 |