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On 4 Geo. II. c. 28-Rigor Non-payment of

Rent The Statute—Steps

to Action-Search for

* Distress Where Search prevented-When to lay Demise Service of Declaration Requisites of Affidavit-Subsequent Proceedings-On 1 Geo. IV. c. 87-Inconvenience remedied by the Act-Object of the Act-Where the Act applicable— where not-Demand of Possession-Requisites of Affidavit Proceedings to obtain Security from Tenant-Subsequent Proceedings-How Tenant is to enter into the Recognizances -On 1 Will. IV. c. 70-Privilege of Landlord under this Statute-When Case wtihin it-Time for proceeding -Form of Declaration-Requisites of Affidavit-Time for moving for Judgment—When and how Landlord to recover Mesne Profits in the Ejectment.

In all actions of ejectment between landlord and tenant, the proceedings may take place in the manner already pointed out; but there are some cases provided for by particular acts of parliament, in which a landlord may adopt a more advantageous mode of proceeding.

On Stat. 4, Geo. II. c. 28.-Formerly in cases between landlord and tenant, when a right of re-entry for non-payment of rent accrued to the landlord, a demand of the rent was necessary to be made before he could bring an ejectment: and great precision was required about the time, the place, and the manner of making the demand; and even when the demand was properly made, and the landlord had recovered possession by ejectment, he was always liable to uncertainty in the possession, for it was open to the tenant to offer him a compensation at any time, and thereupon to file a bill in equity for relief, all which was found exceedingly inconvenient; but by the statute 4 Geo. II. c. 28, it was enacted,

"That in all cases between landlord and tenant, as often as it shall happen that one half year's rent shall be in arrear, and the landlord or lessor to whom the same is due hath right by law to re-enter for the nonpayment thereof, such landlord or lessor shall and may, without any formal demand or re-entry, serve a declaration in ejectment for the recovery of the demised premises; or in case the same cannot be legally served, or no tenant be in actual possession of the premises, then to 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, 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 non-suit for not confessing lease, entry, and ouster, it shall be made to 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, then and 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." The statute then enacts, that after execution there shall be no relief at law or in equity, unless the rent and arrears, with full costs, are paid, or the bill in equity filed within six calendar months after the execution has been executed.

Where proceedings are intended to be taken under this statute, it is necessary to make a careful search over the premises to ascertain that there is no sufficient distress, as that fact must afterwards be proved

at the trial. The search must be made after the rent has accrued due, and before the declaration in ejectment is served. If the tenant conceal his property or refuse to permit the search, that would supersede the necessity of it, for in that case, in the words of the act, no sufficient distress could be found upon the premises.

The declaration will be in the usual form, and the demise must be laid on or after the day when the search has been made, and no sufficient distress found, and on or before the day the declaration is served. The search and the service may, however, be on the same day, and in that case the demise must be laid on that day.

The declaration and notice should be served in the usual way, if it can be done: but if a legal service cannot be effected, or no tenant be in actual possession of the premises, the service may be by affixing the declaration on the door of the house, or if there be no house, then on some notorious part of the land.

An affidavit must then be made, stating the service as it took place; if by affixing, let it state that no other legal service could be made, also that half a year's rent was in arrear before the declaration was served, and that no sufficient distress was to be found on the demised premises countervailing the arrears due, and that the lessor or lessors had power to re-enter. The declaration and affidavit must then be sent to the London agent, and he will move for judgment in the usual way. The proceedings are afterwards the same as in other cases, except that on the trial the lessor of the plaintiff must be prepared to prove that before the declaration was served there was no sufficient distress to be found on the premises (a).

On i Geo. IV. c. 87.-Where a tenancy had expired, it was considered a hardship that a tenant had

(a) See Form of the Affidavit in the Appendix, sect. 30.

it in his power to put his landlord to the expense of bringing an ejectment and taking it to trial, before he could obtain possession of the premises; and even after the cause had been tried, (the act enabling a judge to grant speedy execution not having been passed at the time now spoken of,) the landlord could not obtain possession till after the fifth day of the term next after the trial. With a view to remedy this inconvenience, the statute of 1 Geo. IV. c. 87, was passed, and this statute had a twofold object : 1st. To compel the tenant, before he was allowed to defend the action, to give security to the landlord for the damages and costs to be recovered in case the landlord should succeed. 2ndly. To give the landlord, after he had succeeded, the power of immediately signing judgment and obtaining possession of the premises recovered.

It is not thought necessary to insert the sections of the statute here, as the following observations and directions will enable the attorney, when he determines to proceed under this statute, to do all that is necessary; but caution should be used in proceeding under it, for if the landlord fail in the action the tenant will be entitled to double costs.

This statute is only applicable to cases between landlord and tenant, where the tenant holds under a lease, or agreement in writing, for any term or number of years certain, or from year to year; and where the term or interest has expired, or been determined by regular notice to quit, given either by the landlord or tenant; and where the tenant, or any one holding or claiming by or under him, has refused to deliver possession, after a demand in writing, signed by the landford or his agent, has been served personally upon or left at the dwelling-house or usual place of abode of the tenant, or the person so claiming or holding by or under him.

Unless the case is strictly within the above description, proceedings cannot be taken under this statute; and, therefore, where the tenant holds by parol, or

the tenancy is at an end by any other means than by notice to quit, or the expiration of the term, the landlord cannot proceed under this statute.

Where proceedings are to be taken under this statute, the first thing to be done is to prepare a written demand of possession from the tenant or person holding under him, the form of which may be that given in the Appendix, sect. 31. This demand must be signed by the landlord or his agent, and a duplicate of it must be kept; the demand, after being examined with the duplicate, must then be served on the tenant or person holding under him, or left at his dwelling-house or usual place of abode; the declaration in ejectment must then be prepared, which is precisely the same as in other cases (6), down to the tenant's name, the only difference being in the notice (c) at the foot of it, which must be, to appear on the first day of the term next after the declaration is served; the declaration must then be served in the usual way.

The usual affidavit of service of the declaration must then be made: but besides this, there must be an affidavit of the due execution of the lease or agreement under which the tenant holds the premises, or a counterpart or duplicate thereof, and the lease or agreement or counterpart or duplicate must not be annexed to the affidavit, but must be merely referred to; and it must be exhibited to the deponent when he swears the affidavit, and an exhibit must be written on it and signed by the commissioner before whom the affidavit is sworn; and it must be also stated on affidavit, that the premises have been actually enjoyed under such lease or agreement, and that the interest of the tenant has expired, either by the term having expired, or by regular notice to quit. It must also be stated on affidavit, that the demand in writing, signed by the landlord or his agent, has

(b) See the Form in the Appendix, sect. 26.

(c) The Form of this Notice is given in the Appendix, sect. 32.

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