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contract, 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: £lse 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 (J).

Note. The affidavit is necessary only in proceeding under the statute, but not on the common law proceeding (3).

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. TunsulL Bam. | (c) Doe d. Httchin v. Lewis, 1 Burr. r>4- » Sett, Pract. »II. 614-16.

© Doc A. Schclefidd v, Alexander. % M. (d) % Sell. Pract. 112.

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 at i 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. 1 c. 28. /. 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 plainriffto 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

(a) Bull. N. P. 96. Docd.Cheny v. Batten. Bl. R. 746. Goodtitle v. Holdfast. JStn.»» Cowp. *43-*47- (t) Bull. N. P. 97.

(4) Goodright d. Stevenson v. Noright. »

contract, and the defendant offered to go into the whole account, taking 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 (£).

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

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prove at the trial any actual entry or ouster; for if the defendant appear, the common consent-rule is sufficiently binding (a).

The affidavit will in some cases be presumed; as after a long and quiet possession.

Thus where an ejectment was brought by a landlord against his tenant, under this statute, and judgment was had against the casual ejector by default, and possession thereupon delivered, and nearly twenty years after, the tenant brought an ejectment against the same landlord for the same premises. The landlord, who was made defendant in the latter action, was not obliged to produce such an affidavit as this clause requires, as an essential requisite previous to his original recovery; for as it was essentially requisite, the Court presumed that such affidavit was regularly made at the time, and that the judgment was founded on it (b).

The landlord's remedy for rent in arrear, is by action for the mesne profits, which, as has been before observed, is consequent to the action of ejectment, whereby the possession only is recovered (c).

If one pretending to have title to land give security to the tenants to save them harmless upon paying him the rent, and afterwards another recover in ejectment against them, they have no remedy upon the security until recovery of the mesne profits (d).

Section V. Of the Remedy for the landlord, under the Statute 11 G. 2. c. 19. where the Premises Ok vacant.

The injury that the landlord would sustain in his profits by his lands lying fallow and his buildings going to decay, owing to the desertion of his tenant and the actual possession of the premises remaining in no one, is remedied by the stat. 11 G. 2. c. 19. 116 which after stating that, "Whereas landlords are often great sufferers by tenants running away in arrear, and not only suffering the demised premises to be uncultivated without any distress thereon, whereby their landlords or lessors might be satisfied for the rent-arrear, but also refusing to deliver up the possession of the demised premises, whereby the landlords are put to the expense and delay of recovering in ejectments, enacts, That if any tenant holding any lands, tenements, or hereditaments at a rack-rent, or where the rent reserved shall be full three-fourths of the yearly value of the demised premises, who shall be in arrear for one year's rent, shall desert the demised premises, and leave the same uncultivated or unoccupied

(a) •Goodright d. Hare, v. Cator. Doug. Mr. 1618. 4*3- (<■) Aslia v. Parkin, a Burr. Wj-tf.

(t) Doe d. Hitchin v. Lewis, 1 Burr. 614- | (i) Aaon. 6 Mod. aaa

so as no sufficient distress can be had to countervail the arrears of rent, it shall and may be lawful to and for two or more Justices of the Peace for the county, riding, division, or place (having no interest in the demised premises), at the request of the lessor or landlord, lessors or landlords, or his, her, or their bailiff or receiver, to go upon and view the same, and to affix, or cause to be affixed, on the most notorious part of the premises, notice in writing what day (at the distance of fourteen days at least) they will return to take a second view thereof: and if upon such second view, the tenant, or some person upon his or her behalf, shall not appear and pay the rent in arrears or there shall not be sufficient distress upon the premises; then the said Justices may put the landlord or landlords, lessor or lessors, into the possession of the said demised premises; and the lease thereof to such tenants, as to any demise therein contained only, shall from thenceforth become void."

Sect. 17. « Provided always that such proceedings of the said Justices shall be examinable in a summary way by the next Justice or Justices of Assize of the respective counties in which such lands or premises lie; and if they lie in the city of London or county of Middlesex, by the Judges of the Courts of King's Bench or Common Pleas; and if in the counties palatine of Chester, Lancaster, or Durham, then before the Judges thereof; and if in Wales, then before the Courts of Grand Sessions respectively; who are hereby respectively empowered to order restitution to be made to such tenant, together with his or her expenses and costs, to be paid by the lessor or landlord, lessors or landlords, if they shall see cause for the same; and in case they shall affirm the act of the said Justices, to award costs not exceeding five pounds for the frivolous appeal."

By stat. 57 G. 3. c. 52. the provisions of this statute are extended to tenants, who shall be in arrear one half year's rent, and who shall hold the lands under any demise or agreement, whether written or verbal, and although no right or power of re-entry be reserved or given to the landlord in case of non-payment of rent.

Where a tenant ceased to reside on the premises for several months, and left them without any furniture, or sufficient other property to answer the year's rent: it was held that the landlord might properly proceed under the 11 G. 2. c. 19. s. 16. to recover the premises, although he knew where the tenant then was, and although the Justices found a servant of the tenant upon the premises, when they first went to view the same (a).

Nate. Irv these cases Justices ought to make a record of the whole proceedings (i).

(«) Ex parte Pikon. I E. & A. 369. (») 4 Burn. tit. Vagrants, 1.

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