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Section VI. Of the Remedy of the Landlord, under the Statute 1 G. 4. c. 87.
By the statute i G. 4. c. 87. reciting, that « Whereas the laws heretofore made for preventing the losses to which landlords are exposed by the unlawful holding over of lands and tenements by tenants, or persons claiming under them, after the expiration or legal determination of their terms or interests, have been found by experience insufficient, and it is therefore expedient to provide in certain cases a more expeditious mode for recovering the possession of lands and tenements so held over;" it is enacted, That where the term or interest of any tenant now or hereafter holding under a lease or agreement in writing any lands, tenements, or hereditaments, for any term or number of years certain, or from year to year, shall have expired or been determined either by the landlord or tenant by regular notice to quit, and such tenant, or any one holding or claiming by or under him, shall refuse to deliver up possession accordingly, after lawful demand in writing made and signed by the landlord or his agent, and served personally upon, or left at the dwelling-house or usual place of abode of such tenant or person, and the landlord shall thereupon proceed by action of ejectment for the recovery of possession, it shall be lawful for him, at the foot of the declaration, to address a notice to such tenant or person, requiring him to appear in the Court in which the action shall have been commenced on the first day of the term then next following, or if the action shall be brought in Wales, or in the counties palatine of Chester, Lancaster, or Durham respectively, then on the first day of the next session or assizes, or at the court-day or other usual period for appearance to process then next following (as the case may be), there to be made defendant, and to find such bail, if ordered by the Court, and for such purposes, as are hereinafter next specified; and upon the appearance of the party at the day prescribed, or in case of non-appearance on making the usual affidavit of service of the declaration and notice, it shall be lawful for the landlord, producing the lease or agreement, or some counterpart or duplicate thereof, and proving the execution of the same by affidavit, and upon affidavit that the premises have been actually enjoyed under such lease or agreement, and that the interest of the tenant has expired, or been determined by regular notice to quit, (as the case may be,) and that possession has been lawfully demanded in manner aforesaid, to move the Court for a rule for such tenant or person to shew cause, within a time to be fixed bythe Court on a consideration of the situation of the premises, why such tenant or person, upon being admitted defendant, beside entering into the common rule, and giving the common undertaking, should not undertake, in case a verdict shall pass for the plaintiff, to give the plaintiff a judgment, to be entered up against the real defendant, of the term next preceding the time of trial, or if the action shall be brought in Wales, or in the counties palatine respectively, then of the session, assizes, or court-day (as the case may be), at which the trial shall be had, and also why he should not enter into a recognizance, by himself and two sufficient sureties, in a reasonable sum conditioned to pay the costs and damages which shall be recovered by the plaintiff in the action; and it shall be lawful for the Court upon cause shown, or upon affidavit of the service of the rule in case no cause shall be shown, to make the same absolute in the whole or in part, and to order such tenant or person, within a time to be fixed, upon a consideration of all the circumstances, to give such undertakings, and find such bail, with such conditions and in such manner as shall be specified in the said rule, or such part of the same so made absolute; and in case the party shall neglect or refuse so to do, and shall lay no ground to induce the Court to enlarge the time for obeying the same, then upon affidavit of the service of such order an absolute rule shall be made for entering up judgment for the plaintiff.
II. " And be it further enacted, That wherever hereafter it shall appear on the trial of any ejectment, at the suit of a landlord against a tenant, that such tenant or his attorney hath been served with due notice of trial, the plaintiff shall not be nonsuited for default of the defendant's appearance, or of confession of lease, entry, and ouster, but the production of the consent-rule and undertaking of the defendant shall in all such cases be sufficient evidence of lease, entry, and ouster; and the Judge before whom such cause shall come on to be tried shall, whether the defendant shall appear upon such trial or not, permit the plaintiff on the trial, after proof of his right to recover possession of the whole or of any part of the premises mentioned in the declaration, to go into evidence of the mesne profits thereof, which shall or might have accrued from the day of the expiration or determination of the tenant's interest in the same, down to the time of the verdict given in the cause, or to some preceding day, to be specially mentioned therein; and the Jury on the trial, finding for the plaintiff, shall in such case give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of the damages to be paid for such mesne profits: provided always, that nothing hereinbefore contained shall be construed to bar any such landlord from bringing an action of trespass for the mesne profits which shall accrue from the verdict, or the day so specified therein, down to the day of the delivery of possession of the premises recovered in the ejectment. III. "And be it further enacted, That in all cases in which such undertaking shall have been given, and security found as aforesaid, if upon the trial a verdict shall pass for the plaintiff, but it shall appear to the Judge before whom the same shall have been had, that the finding of the Jury was contrary to the evidence, or that the damages given were excessive, it shall be lawful for the Judge to order the execution of the judgment to be stayed absolutely till the fifth day of the term then next following, or till the next Session, Assizes, or court-day (as the case may be); which order the Judge shall in all other cases, make upon the requisition of the defendant, in case he shall forthwith undertake to find, and on condition that within four days from the day of the trial, he shall actually find security by the recognizance of himself and two sufficient sureties, in such reasonable sum as the Judge shall direct, conditioned not to commit any waste, or act in the nature of waste, or other wilful damage, and not to sell or carry off any standing crops, hay, straw, or manure produced or made (if any) upon the premises, and which may happen to be there upon, from the day on which the verdict shall have been given to the day on which execution shall finally be made upon the judgment, or the same be set aside (as the case may be): provided always, that the recognizance last above-mentioned shall immediately stand discharged and be of no effect, in case a writ of error shall be brought upon such judgment, and the plaintiff in such writ shall become bound with two sufficient sureties unto the defendant in the same, in such sum and with such condition as may be conformable to the provisions respectively made for staying execution on bringing writs of error upon judgments in actions of ejectment, by an Act passed in England, in the sixteenth and seventeenth years of the reign of King Charles the Second, and by an Act passed in Ireland in the seventeenth and eighteenth years of the reign of the same King, which Acts are respectively intituled An Act to prevent Arrests of "Judgments and superseding Executions.
IV. "And be it further enacted, That all recognizances and securities entered into pursuant to the provisions of this Act, may and shall be taken respectively in such manner and by and before such persons as are provided and authorized in respect of recognizances of bail, upon actions and suits depending in the Court in which any such action of ejectment shall have been commenced; and that the officer of the same Court with whom recognizances of bail are filed, shall file such recognizances and securities, for which respectively the sum of two shillings and sixpence, and no more, shall be paid; but no action or other proceeding shall be commenced upon any such recognizance or security, after the expiration of six months from the time when possession of the premises, or any part thereof, shall actually have been delivered to the landlord.
V: "And be it further enacted, That it shall not be lawful for the defendant to remove any action of ejectment commenced by a landlord under the provisions of this Act from any of the Courts of Great Session in Wales to be tried in an English county, unless such Court of Great Session shall be of opinion that the same ought to be so removed upon special application to the Court for that purpose.
VI. « And be it further enacted, that in all cases wherein the landlord shall elect to proceed in ejectment, under the provisions hereinbefore contained, and the tenant shall have found bail, as ordered by the Court, then if the landlord upon the trial of the cause shall be nonsuited, or a verdict pass against him upon the merits of the case, there shall be judgment against him with double costs.
VII. "Provided always, That nothing in this Act contained shall be construed to prejudice or affect any right of action or remedy which landlords already possess, in any of the cases hereinbefore provided for.
VIII. " And be it further enacted, That this Act shall extend to all parts of the United Kingdom of Great Britain and Ireland, except Scotland."
Of the Remedies for and against Landlord and Tenant
For the Landlord, for Breach of Covenants and Agreements other than for Rent.
Section I. By Action of Covenant.
Section I. Of the Action of Covenant.
A N action of covenant or assumpsit, according as the premises are ■** demised by deed or not, lies for the recovery of damages for any injury sustained by the landlord in consequence of the tenant neglecting to repair the buildings, suffering trades to be carried on therein contrary to his covenant, treating the land in an unhusbandmanlike manner, or committing any other breach of the agreement.
An action of covenant cannot be maintained except upon a deed, and the declaration must shew that it is brought on one (a).
In the case of joint-lessees, if a lease be to A. and B. by indenture, and A. seal a counterpart, and B. agree to the lease, but does not seal, yet B. may be charged for a covenant broken; and this though the covenant be collateral, and not annexed to the land (£).
(a) Moore v. Jones, » Ld. Rajm. iSit. (i) Co. Lit. %3l.«.
The assignee of a term, however, is not liable on a mere collateral covenant (a).
So, if one party execute an indenture, it shall be his deed, though the other party do not execute it: but in order to make it necessary for the plaintiff to sue in covenant, the binding by deed ought to be mutual (except in the case of lessee of the King's Patent): for where a defendant has never sealed the indenture he cannot be sued in that form of action (b).
Touching the sealing of bonds or deeds, if it appear upon over that two parties sealed it, whereas one only is sued, the law will not intend that the other sealed the deeds unless it be expressly averred that he did: and though the bond or deed upon oyer recite, " in witness whereof we have set our hands and seals," yet that does not amount to such an averment, but the defendant must shew that the bond or deed was actually sealed by the other (c).
There are, indeed, some words of art, such as "indenture," "deed," or "writing obligatory," which of themselves import that the instrument was sealed by the party without an averment of sealing. If, therefore, the declaration state that J. S. by his " deed" did so and so, or by " indenture" covenanted or demised, or by his "writing obligatory" acknowledged, &c. without averring in either of these cases that he sealed, still the declaration is good. So, delivery, which is essential to a deed, is never averred (c).
But without such averment, or words of art, it is otherwise: for if it be alleged that J. S. by his " certain writing" simply, demised, or covenanted, or acknowledged, &c. without averring that he sealed, the Court will not intend that the writing was sealed (c). Neither does it follow, because the words "in witness whereof we do put our hands and seals" are used in the conclusion of an agreement, that therefore it was sealed by the parties: on the contrary, it has been decided that these words do not amount to an averment that the parties sealed the instrument (J.)
Leaving the glass of windows cracked has been held to be a breach of covenant to repair.— So, not repairing a pavement is a breach of covenant to leave the premises sufficiently maintained and repaired; for it is within the intention of the covenant, and is quasi the building i and the not repairing may be matter of value and of much prejudice to the lessor.—So, carrying away a shelf, though not stated to be a fixture, has been held to be a breach of covenant to leave the premises in the same order, &c.; for it shall be intended to be fixed (*).
A covenant to repair during the term after three months' notice,