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Proceedings

See notes (h)

411.

davit of service, when judgment is moved for against the casual ejector.(d)

Notwithstanding the recent acts which afford a landlord several facilities and peculiar advantages in actions of ejectment which do not extend to other persons, yet he may proceed in the ordinary

way.

In some cases, justices of the peace may interand (1) to p. fere summarily in giving possession, without proceeding by action of ejectment, besides the common right to take possession when entitled to it.

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By the 11 G. II., c. 19, s. 16, it is provided, that if any tenant at a rack rent,(e) or where the rent shall be full three fourths of the yearly value, shall be in arrear one year's rent, and shall desert the premises, and leave the same uncultivated, or unoccupied, so as no sufficient distress can be had to countervail the arrears, it shall be lawful for two justices, at the request of the landlord, (f) to go and view the premises, and to affix a notice in writing what day (at the distance of fourteen days at the least) they will return to take a second view; and if upon the latter no person on behalf of the tenant shall appear and pay the arrear of rent, or if there shall not be sufficient distress on the premises, then they shall put the landlord into possession, and the lease thereof shall be void.(g)

(d) Where the tenant absconds, or keeps out of the way to prevent being served, a copy of the declaration should be delivered to his relation, or servant, or some other person on the premises, to whom the notice should be read over and explained, and another copy affixed on the outer door, or some conspicuous part of the premises; and thereupon, if it be made appear to the satisfaction of the court that the tenant absconded, or kept out of the way to avoid being served, but not otherwise, the court, on an affidavit of the facts, will grant a rule nisi that the service on his relation, or servant, &c., shall be deemed good service, and direct in what manner the rule shall be served.-Doe d. Osbaldiston v. Roe, 1 Dowl. P. C. 456.

That is, such rent that could be fairly obtained.-See 2 B. & A. 652. (This need not be on oath or in writing.-3 B. & C. 649. 5 D. & R. 558. See the forms adopted in these proceedings under the head "Notices."

(9) But the tenant may appeal by affidavit and motion to the court of queen's bench or common pleas, &c., who may order restitution, or may affirm the act of the justices, and award costs not exceeding £5 for the frivolous appeal. The formal proceedings under the act will be found considered in 1 B. & A. 369. 3 D. & R. 501. 1 C. & P. 121. 3 B. & C. 649. 5 D. & R. 558. The preamble of this act being confined to formal provisoes of re-entry, in which actions of ejectment were sustainable,

The 59 G. III., c. 12, s. 24 and 25, gives sum- Summary mary powers to justices to give possession of cot- powers. tages occupied by paupers.(h) And besides these remedies, justices have power to interfere under the statutes against forcible detainers, but they are very reluctant to do so. (i)

28, s. 2.

may be had

Notwithstanding the act of 4 G. II., c. 28, s. 2, 4 G. II., c. providing as to proceedings for forfeiture by non- See p. 363. payment of rent, the landlord, in order to avoid the Proceedings delay of six months, may still proceed at common at common law, even when only a quarter's rent is due, by law, notobserving certain formal requisites; and this is ing this necessary to complete a forfeiture when there is suf- statute. ficient property of the tenant, or even of a third person, to pay the arrear of rent. (j)

The advantages in the practical proceedings in ejectment (k) in favour of landlords is so qualified, that if he proceed by requiring the tenant to find bail, then, if the action fail, the landlord will have to pay double costs.(1)

In general, the security for bail cannot be required in any action for tort, and a declaration in ejectment must be served before the first day in full term.

withstand

No damages are recoverable in ejectment, but Action for

(1 B. & A. 369,) it was found necessary to extend the provisions to cases where only half a year's rent is in arrear, and where there is no clause of re-entry, and to verbal tenancies, and which was effected by 57 G. III.,

c. 52.

(h) 8 B. & C. 4; and see the recent act, p. 418, for facilitating the reco. 1 & 2 Vict., very of possession of tenements, after due determination of the tenancy, c. 72. where there is no rent, or where the rent does not exceed £20 a year.

See Burns' Justice, tit. Forcible Entries and Detainers.

7 T. R. 117. In this case the landlord must go in person, or execute Forms una formal power to another, who must go in person (7 East, 363) at a reason- der the act. able time (usually half an hour) before sunset, and not at one o'clock in the day, (3 C. & P. 613,) on the last of the twenty-one or other number of days named in the proviso for re-entry, and at the front door, or most public part of the demised premises, or where a place elsewhere is appointed by the lease, then at that place, (Co. Lit. 201,) and there formally demand payment of the exact arrear of rent, and wait there, repeating such demand, until after sunset.-7 T. R. 117. See the form of proceedings, 1 Saund. 287, n. 16. Any mistake as to the amount of rent will be fatal; as, demanding half a year's rent when only a quarter is due.-3 Carr. & P. 613. The day of the demise must be after the demand. The forfeiture will be thus completed; and at law the tenant will have no relief, though he may obtain it in equity on proper terms, if the premises remain unlet.

(k) See 1 G. IV., c. 87, s. 1, see p. 363. 2 G. IV., and 1 W. IV., c. 70, 8.36. (4) 1 G. IV., c. 87, s. 6.

1 G. IV.

Holding

over.

Notice:

the lessor of the plaintiff is obliged to bring a separate action of trespass for the mesne profits; so no bail in error can in general be required. But in some cases of ejectment brought by a landlord, he may compel the tenant holding over, to give sureties or bail for the payment of damages and costs, (m) and may, when his right accrued after the first day of term,deliver his declaration any day in or after Hilary or Trinity term, and proceed to trial at the ensuing assizes; and may, in all cases, on proving the service of notice of trial, recover mesne profits and costs in the same action, and may insist on having two responsible persons as bail, in case a writ of error should be brought.(n)

The terms of the act 1 G. 4,(0) c. 87, is confined to holding over after the expiration of a tenancy,constituted in writing, and therefore when a tenant held from year to year under a letting by parol, it was holden not to be within the act. (p) But a mere agreement in writing for a lease for a term certain, and a holding over beyond that term, is holding for a certain term.(q) So a holding apartments for three months certain, is a tenancy for a term certain.(r) But a tenancy for years determinable on lives, is not a term certain within this act, (s) and the statute only applies where there was a term certain, in a tenancy from year to year, and not to the middle case of a term for 14 years, determinable by notice at the end of the first seven, and determined by such notice accordingly.()

The notice at the foot of the declaration under this act must be signed by the lessor of the plaintiff, (u) and not in the name of the casual ejector, and is to be a separate notice, to appear on the first day of next term, and be given in addition to the

(m) 1 W. IV., c. 70, s. 36. See p. 371.
(n) 1 G. IV., c. 87, s. 3.

(o) See pp. 369, 370.

See p. 368; and see 415, note (i).

(P) 5 B. & A. 770. 1 D. & R. 433. 6 Moore, 54. M'Clel. 492.
(q) 2 D. & R. 565.

(r) 5 B. & A. 766. 1 D. & R. 433. 6 Moore, 54. 2 D. & R. 565.

(s) 7 B. & C. 2.

(t) 1 D. & R. 540.

(u) See p. 380.

ordinary notice. (e) It may in the general terms of the act require the tenant in possession to appear, and to find such bail, if ordered by the court, and for such purposes as are specified in and by an act intituled, "An act for enabling landlords more speedily to recover possession of lands and tenements, unlawfully held over by the tenant."(w) Or it may particularly set forth what proceedings (x) will be had.(y)

of 1 W. IV.,

It has been shown, that in general a declaration, Provisions whether on behalf of a landlord or any other per- c. 79, s. 36. son, must be served before the first day in full term. But when a tenancy has expired, or a right of entry has accrued to a landlord, in or after Hilary or Trinity term, he may, under the statute 1 W. IV., c. 74, s. 36, at any time within ten days afterwards, serve a declaration in ejectment, specially entitled, of the day next after the day of the demise in such declaration, whether the same shall be in term or in vacation, with a notice thereunto subscribed, requiring the tenant in possession to appear and plead thereto within ten days. (≈) A rule to plead is to be entered and given as in other cases, and no judgment signed against the casual ejector until default of such appearance, and there must be six clear days' notice of trial. Time to plead may be obtained on summons, and the trial may be postponed until the following assizes.

In general a landlord must make affidavit of the Moving for service of the declaration and notice, and move for judgment. judgment against the casual ejector as in ordinary

cases.

But in the particular case of a holding over after the expiration of a written tenancy and demand in writing, the provisions of this statute may be had recourse to as to the production of the lease or agreement, and the affidavit of the execution thereof,

(v) 1 D. & R. 435. 5 B. & A. 849. 6 Moore, 56, a.

(w) See p. 380.

(x) See Tidd's forms.

(y) If there be any doubt upon the landlord's right thus to proceed, to require the tenant to find bail, it must not be adopted, because, if the lessor be non-suited in the merits, or a verdict pass against him, the defendant is entitled to double costs.

(z) See form, p. 381.

Recogni.

zance.

Appearance.

When undertaking given.

Tenancy expiring, and service in or

or Trinity

and of the possession under the same, and of the ex-
piration of the tenancy, and the demand of posses-
sion. (a)

The statute further authorises the court, upon
cause shown, or upon affidavit of service of rule,
and no cause shown to make the rule absolute, in
the whole or in part, (b) and to order the tenant within
a time to be fixed to give such undertaking, and to
find such bail, (usually for a sum sufficient to cover
a year's annual value and £40. for costs,) with such
conditions, and in such manner, as shall be specified
in the rule absolute; and in case the tenant shall
not comply, (or show ground for enlarging the
time,) then, on affidavit of the service of such
order, an absolute rule for judgment for plaintiff
against the casual ejector shall be made.

If the tenant appear and show cause he gives the undertaking usually inserted in the consent rule, and finds bail pursuant to the order, usually to cover a year's value and £40. for costs. The recognizance is taken before a judge in town causes, or in the country, before a commissioner, and shall be entitled in the cause against the real defendant, (c) and must be put in suit within six months after the landlord has obtained possession. (d)

When the tenant has given the undertaking, and entered into his recognizances, the plaintiff's attorney must search the ejectment books at the judges' chambers in the queen's bench for the consent rule or agreement, which in that court is signed by the judge.(e)

When the tenancy has expired, and the declaration has been served by a landlord in or after Hilary after Hilary or Trinity term, it has been shown that the tenant is to appear and plead within ten days, but may by summons and order of a judge obtain further time, and the rule to plead is to be entered as in other cases. (f)

terms.

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