been denied since. If a party should be admitted to defend as landlord, whose title is inconsistent with the possession of the tenant, the lessor of the plaintiff may apply to the court, or to a judge at Chambers, and have the rule discharged with

costs $.

IX. Of the Proceedings in Ejectment, directed by Stat. 4 G. 2. c. 28. s. 2. in order to obviate the Difficulties attending Re-entries at Common Law, for Nonpayment of Rent Arrear-Of the Proceedings where the Possession is vacant.

By stat. 4 Geo. 2. c. 28. s. 2. it is enacted, "That in all cases between landlord and tenant, when half a year's rent shall be in arrear, and the landlord has a right of entry for non-payment thereof, he may, without a formal demand or re-entry, serve a declaration in ejectment; or in case the same cannot be legally served, or no tenant be in actual possession, 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, &c. comprised in the declaration in ejectment and such affixing shall be deemed legal service; and in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry, and ouster, it shall appear by affidavit, or be proved on the trial, in case the defendant appears, that half a year's rent was due before the declaration served, and that no sufficient distress was to be found on the premisest, countervailing the arrears then due, and that the lessor had power to re-enter; then, and in every such case, the lessor in ejectment shall recover judgment and execution, in the same manner as if the rent in arrear had been legally demanded, and re-entry made; provided", that if the tenant, at any time before the trial in such ejectment, shall pay or tender to the landlord or his attorney, or pay into court, the rent arrear and costs, all further proceedings on the

s Doe d. Harwood v. Lippincott, Ad. Eject. 230.

t See Doe d. Smelt v. Fuchau, 15 East, 286.

u S. 4.

ejectment shall be discontinued" (27). It has been supposed that the preceding statute only applied to cases of ejectment brought after half a year's rent due, where no sufficient distress was to be found upon the premises. But in a late case, (Roe v. Davis, 7 East, 363,) it was holden, that the statute was more general in its operation. And, according to Lord Tenterden, these words, "no sufficient distress was to be found on the premises," must mean no sufficient distress, which can be got at; hence, where the outer door was locked, so that the landlord could not get at the premises, Lord T. held that there was not any sufficient distress; for there was not any available distress. Doe v. Dyson, M. and Malk. 77. The application to the court, on the part of the tenant, to stay proceedings, must, by the very terms of the act, be made before trial. In ejectment by a landlord', the tenant moved to stay proceeding, upon payment of rent arrear and costs. On a rule to shew cause, it was insisted, for the plaintiff, that the case was not within the preceding statute; because it was not an ejectment founded singly on the act, but 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. Where an

x Roe v. Davis, 7 East, 363.

y Pure d. Withers v. Sturdy, H. 1752. Bull. N. P. 97.

(27) Before this statute, courts of law and equity exercised a discretionary power of staying the lessor from proceeding at law, in cases of forfeiture for non-payment of rent, by compelling him to take the money due to him. See the opinion of Lee, C. J. in Archer v. Snapp, Andr. 341. 2 Salk. 597. 8 Mod. 345. 10 Mod. 383. 2 Vern. 103. 1 Wils. 75. 2 Str. 900. By this statute, the service of the declaration in ejectment is substituted for the demand of rent, which, at common law, must have been made upon the day when the forfeiture accrued, in case of non-payment. Ejectment on a demise laid on the 10th May, 1824. Defendant was tenant under a lease, by which the rent was made payable at Lady Day and Michaelmas, and in which there was a proviso for re-entry on non-payment of rent for thirty days. Half a year's rent was due at Lady Day, 1824, and there was no sufficient distress on the premises; the declaration was served on the 14th May, 1824. It was holden that, although the service of declaration was on a day subsequent to the day of demise, the plaintiff was entitled to recover, inasmuch as the title must be taken to have accrued on the 30th day after the rent became due, viz. the 24th of April. The statute does not require that the day of demise must be the very day when declaration is served. Doe d. Lawrence v. Shawcross, 3 B. and C. 752.

ejectment is brought on the preceding statute for the forfeiture of a lease, acceptance of rent afterwards, by the landlord, has been holden a waver of the forfeiture; for it is a penalty, and by accepting the rent, the party waves the penalty. Landlord having a right of re-entry for non-payment of rent, brought an ejectment and proved a demand of half a year's rent after the day on which it was due, and a refusal on the part of the defendant to pay it before the re-entry. It appeared that there was a sufficient distress on the premises during the whole time. It was holden, that the lessor of the plaintiff could not recover either at common law, or under the preceding statute; not by the former, because the rent was not demanded on the day when it became due; Co. Lit. 201.7 Rep. 28.; nor by the latter, because there was a sufficient distress on the premises. Upon a lease reserving rent payable quarterly, with a proviso, that if the rent be in arrear twenty-one days next after day of payment, being lawfully demanded, the lessor may re-enter: it was holden", by three judges (dissentiente Lord Ellenborough, C. J.), that five quarters being in arrear, and no sufficient distress on the premises, the lessor might re-enter without a demand. Lands were devised in fee, charged with an annuity; and power was given to the annuitant to distrain, if the annuity were in arrear for 20 days after the day of payment, being lawfully demanded; power was also given, if the annuity should be in arrear for 40 days, to enter and take the profits, until the annuitant should be thereby paid all arrears with costs; it was holdene, that upon the annuity being 40 days in arrear, the annuitant was entitled to recover in ejectment, although no demand was made; for this was not a case of forfeiture for non-payment of an annuity, but only a right to enter and receive the profits until the arrears were satisfied.

Of the Proceedings where the Possession is vacant.-In cases between landlord and tenant, where one half year's rent is in arrear, and the landlord has a right of entry, the mode of proceeding, where the premises are untenanted, is marked out by the preceding statute. In other cases of a vacant possession the mode of proceeding is thus: A. (the person claiming title) by letter of attorney empowers B. to execute a lease, in the name of A., of the premises in question, to C. This lease is executed on the premises, B. and C. only being

z Per Aston, J. in Doe v. Batten, Cowp. b Doe d. Scholefield v. Alexander, 2 247. M. and S. 525.

a Doe d. Forster v. Wandlass, 7 T. R. c Doe d. Biass v. Horsley, 1 Ad. and 117. Ell. 766. 8 Nev. and Man. 567.

thereon; then B. leaves C. in possession, who is turned out by D., to whom, while on the premises, E. delivers a declaration in ejectment. A rule to plead having been given, and not complied with, a motion is made for judgment, which is granted of course. This motion must be supported by an affidavit of the above-mentioned proceedings, viz: the execution of the power of attorney, the lease, entry, ouster, and delivery of declaration; a copy whereof is annexed to the affidavit. A. made a lease of an alehouse in London, for years. The lessee, before the expiration of the term, left it, and took another house in Wapping; but there was some liquor and old vessels left in the first-mentioned house, and the doors were locked. Upon this the landlord sealed a lease on the premises, and brought an ejectment, as on a vacant possession, and accordingly had judgment and execution; to set aside which, a motion was made. In addition to the foregoing facts it appeared, that only one quarter's rent was in arrear, and that the landlord had seen his tenant a short time only before he brought the ejectment. Lord Hardwicke, C. J.-"If only one quarter's rent was in arrear, the landlord could not proceed against the tenant on the stat. 4 Geo. 2. c. 28. But then, taking this as it stood at common law, the question will be, whether this was such a vacant possession as to enable the landlord to bring an ejectment in this manner. For though a tenant does not live on the premises, yet it cannot, from that circumstance alone, be called a vacant possession; as if a person uses one house and lives in another, that will be a good possession of both. Here the tenant had actual possession of the premises, by keeping his liquor there, and, as appears, was such a person as the landlord might have served personally with an ejectment; for a declaration in ejectment may be served on the tenant himself any where, though the wife can be served with it only on the premises (28). I remember a case where a person in the Fleet was served with an ejectment. If the tenant, in this case, sometimes absconded, and only appeared on Sundays, then the landlord should have applied to the court for a special rule, as to the service of the declaration in ejectment." Probyn, J. mentioned a case where hay was left in a barn by a tenant, and that was holden

d Savage v. Dent, M. 10 Geo. 2. B. R. MSS. 2 Str. 1064. Bull. N. P. 97. S. C. shortly stated.

(28) Or at the dwelling-house of the husband, if it appears that wife is living with husband. Vid. 4 T. R. 465.

sufficient to keep the possession. The court ordered the judgment and execution to be set aside with costs. Where the premises to be recovered consisted of unfinished houses, it was holdene, that the course was to proceed as on a vacant possession; and not by affixing the declaration on the doors of the houses.

X. Of the Pleadings and Defence.

SPECIAL pleas, either in bar or abatement, are seldom pleaded to this action; because, according to the modern. practice, if the defendant appears, he generally enters into the consent rule, by the terms of which he is bound to plead the general issue, Not Guilty. The rule of H. T. 4 W. 4. requiring pleadings subsequent to the declaration to be delivered between the parties, does not apply to actions of ejectment, which are left to the old practice; and so with regard to the declaration, it has been holdenh, that it must commence and conclude in the usual form, for it is not within the rules of H. T. 3 W. 4.

Of the Defence.-As an action of ejectment is founded on a right of entry in the party claiming title, if the defendant can shew that such right has been tolled or taken away, it will be a sufficient defence to the action. Under the old law, as it stood before the 31st December, 1833, (for which, see former editions of this work,) a right of entry might have been taken away by descent cast, discontinuance, or warranty; but that operation and effect has been removed by a late statutei. Another mode of defeating the right of entry, and thereby barring the ejectment was by fine and non-claim, but since the same day, that is, 31st December, 1833, fines and recoveries have been abolished, and more simple modes of assurance substituted in their room. As cases, however, may still arise, upon this species of bar, it may be convenient to retain that portion of the work.

Entry barred by Fine and Non-claim.-A fine at the common law, or fine without proclamations, levied by a te

e Doe d. Showell v. Roe, 2 Cr. M. and h Doe d. Gillett v. Roe, 1 Cr. M. & R. R. 42.

f Runn. Eject. 233. g Doe d. Williams v. and Man. 259.

19. 4 Tyrw. 649.

i Stat. 3 & 4 W. 4. c. 27. s. 39. and

3 & 4 W. 4. c. 74. s. 14.

Williams, 4 Nev.

k 3 & 4 W. 4. c. 74.