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1. Recovering against them for the act so done." (See Basten v. Carevo, 5 D.& R. 558; possession on 3 B. & C. 649, S. C.) desertion by And such a record is equally conclusive as a protection to the land. tenant. lord and the constable who assisted in getting possession, even althour
the judges of assize on appeal have made an order for restitution of the farm to the tenant. (Ashcroft v. Bourne, 3 B. & Adol. 684). And sa further, tit. “Evidence," Vol. II. p. 404, as to the record being con
clusive. What a deserting In the case of Ex p. Pilton, (1 B. & Ald. 369), where a tenant cease
to reside on the premises for several months, and left them without not furniture or sufficient other property to answer the year's rent, it wa held that the landlord might properly proceed under stat. 11 Geo. II. c. 19, s. 16, to recover the possession, although he knew where the tenant then was, and although the justices found a servant of the
tenant on the premises when they first went to view the same. Appeal and resu
The judges of assize, on appeal, under stat. 11 Geo. II. c. 19,5 17 against an order of two magistrates giving possession to a landlord under s. 16, made an order for restitution of the premises to the tenant. The order of the judges was not directed to any person :-Held, that a Fri of mandamus could not issue commanding the two justices to make restitution. (Reg. v. Traill, 12 Ad. & Ell. 761; 4 Per. & D. 325, &C)
(1). Intormation or request on ustices to view preinises.
to wit: The information and request of A. B. of - gentleman, tako da - day of — in the year of our Lord 184-, before us J. P. and I e Lup two of her Majesty's justices of the peace for the said county of — that one C. D. is tenant of a certain messuage, dwelling-house, (lands), text and premises, with the appurtenances, situale at — , under a demise thered by said A. B. unto the said C. D. for years from year to year, at an annual ret rent of — ; and that the said C. D. is now in arrear for — year's rent for said premises, and hath wholly deserled the same, and left the same endecupied, aus there is not now upon the said premises any sufficient distress to countereil des arrears of rent: the said A. B. thereupon requests us the said justices (we haring interest in the said demised premises) to go upon and view the same, and la med such proceedings thereupon in that behalf, according to the statutes is schema made and provided, that he the said A. B. may be put into possession of the said per: mises. Taken before us the justices aforesaid, ai — on the day and a fait above-mentioned.
(2). Notice to be a thixed on piemises.
To C. D., late of labourer : Take notice that A. B. of - gentlemad, this day stated unto us, J. P. and K. P., Esqs., two of her Majesty's justed the peace for the county of — that you C. D. are tenant to him of — dc *** insert the substance of the information and request, in past tense and seconda son, to the words] possession of the said premises; and we, as such justice said, being willing to grant unto the said A. B. such remedy as by the statutai that behalf is provided, have hereupon now come upon the premises aforesas have viewed the same, and we now hereby give you notice that we shall reista said premises on — , to take a second view thereof; and if on such second te or some person on your behalf do not then appear here and pay the reni oferta and if there shall not then be sufficient distress upon the said premises to content the said arrears of rent, we shall put the said A. B. into possession of the sus mises, according to the form of the statute in such case made and provided. Disa - at this day of A. D.
(3). Record of proceedings.
- to wit: Be it remembered that on the day of — A.D. *
, A. B. of — cometh before us, J. P. and K. P., Esqs., two of the justices of our lady the Queen, assigned to keep the peace in the said county, and also hear and determine divers felonies, trespasses, and other misdemeanours in the sam county committed, and informeth us thai C. D. of is tenant [&c., set forth the information and request, to the words] possession of the said premises : And so, s such justices as aforesaid, being willing to grant unto the said A. B. such 2. Recovering emedy as by the statutes in that behalf is provided, do now hereupon come upon the possession on remises aforesaid, and, having viewed the same, do now hereupon affix upon the most determination otorious part of the premises aforesaid a certain written notice, directed to the said of tenancy. .D., wherein and whereby we give the said C. D. notice that we shall return to the zid premises on for the purpose of viewing the same a second time, and that
on such second view the said C. D., or some person on his behalf do not appear ere and pay the rent aforesaid, and if there shall not then be sufficient distress upon he said premises to countervail the said arrears of rent, we shall put the said Á. B. ito possession of the said premises, according to the form of the statute in such case iade and provided. And now at this day, to wit, on , in pursuance of the said otice, toe the said justices having returned to the said premises, do now view the ane a second time; but the said C. D. doth not, nor doth any person on his behalf, Itend here to pay the said rent, nor is the same as yet paid, nor is there any distress pon the said premises to countervail the said arrears of rent: Wherefore the said poeral matters in the information aforesaid being duly proved to us, and we being atisfied of the truth thereof, do hereupon put the said A. B. into possession of the aid premises, according to the form of the statute in such case made and provided. a wiiness whereof we the said justices have hereunto set our hands and seals, at - this day of - in the year of our Lord
II. Recovery of Possession on Determination of Tenancy.
By stat. 1 & 2 Vict. c. 74, intituled, “ An Act to facilitate the recovery When tenant or of possession of tenements after due determination of the tenancy,” reciting mises where there
occupier of prehat “it is expedient to provide for the more speedy and effectual re- is no rent, or
where the rent overy of the possession of premises unlawfully held over after the deter- Whers
does not exceed nination of the tenancy:" it is enacted, “ that from and after the passing 201. a year, refuses of this act, when and so soon as the term or interest of the tenant of any
to give posses
sion, the landloid louse, land, or other corporeal hereditaments held by him at will or for may give him no
tice of his inten. iny term not exceeding seven years, either without being liable to the
tion to procced to payment of any rent or at a rent not exceeding the rate of 201. a year, recover possession, and upon which no fine shall have been reserved or made payable, shall under
under the authu
rity of this act. have ended or shall have been duly determined by a legal notice to quit or otherwise, and such tenant or (if such tenant do not actually occupy the premises, or only occupy a part thereof) any person by whom the same or any part thereof shall be then actually occupied shall neglect Dr refuse to quit and deliver up possession of the premises or of such part thereof respectively, it shall be lawful for the landlord of the said premises or his agent to cause the person so neglecting or refusing to quit and deliver up possession to be served (in the manner herein-after mentioned) with a written notice, in the form set forth in the schedule to this act, signed by the said landlord or his agent, of his intention to proceed to recover possession under the authority and according to the mode prescribed in this act; and if the tenant or occupier shall not If tenant does not thereupon appear at the time and place appointed, and shew to the
appear, or fails to
shew cause why he satisfaction of the justices hereinafter mentioned reasonable cause why does not give possession should not be given under the provisions of this act, and shall possession che jusstill neglect or refuse to deliver up possession of the premises or of such warrant directing part thereof of which he is then in possession to the said landlord or his constables to give
landlord posagent, it shall be lawful for such landlord or agent to give to such jus- session. tices proof of the holding and of the end or other determination of the tenancy, with the time or manner thereof, and where the title of the landlord has accrued since the letting of the premises, the right by which he claims the possession, and upon proof of service of the notice, and of the neglect or refusal of the tenant or occupier, as the case may be, it shall be lawful for the justices acting for the district, division, or place within which the said premises or any part thereof shall be situate, in petty sessions assembled, or any two of them, to issue a warrant under their hands and seals to the constables and peace officers of the district, division, or place within which the said premises or any part thereof
thereupon shall supersede the warrant so granted, and the plaint
agent, and shall be approved of and signed by the said justit, at
2. Recovering shall be situate, commanding them within a period to be therein named possession on not less than twenty-one nor more than thirty clear days from the date determination of such warrant, to enter (by force if needful) into the premises, as of tenancy. give possession of the same to such landlord or agent: Provided alsaris
that entry upon any such warrant shall not be made on a Sunday, 6o 1 & 2 Viet. c. 74. Friday, or Christmas Day, or at any time except between the hour e.
nine in the morning and four in the afternoon: Provided also, the nothing herein contained shall be deemed to protect any persona whose application and to whom any such warrant shall be granted it! any action which may be brought against him by any such tenar: ? occupier, for or in respect of such entry and taking possession, wta such person had not at the time of granting the same lawful rizi: the possession of the same premises : Provided also, that nothing herin contained shall affect any rights to which any person may be entitada
out-going tenant by the custom of the country or otherwise." Mode of serving Sect. 2. “That such notice of application intended to be made unde
this act may be served either personally or by leaving the same ti some person being in and apparently residing at the place of aboced the persons so holding over as aforesaid, and that the person serving the same shall read over the same to the person served or with when the same shall be left as aforesaid, and explain the purport and is thereof: Provided that if the person so holding over cannot be found and the place of abode of such person shall either not be knorske admission thereto cannot be obtained for serving such sunda posting up of the said summons on some conspicuous part of
mises so held over shall be deemed to be good service upon such pesto How execution of Sect. 3. “That in every case in which the person to whoe sy pak warrants of possession may be
warrant shall be granted had not at the time of granting the care le stayed. ful right to the possession of the premises, the obtaining des sala
warrant as aforesaid shall be deemed a trespass by him against the team or occupier of the premises, although no entry shall be made by vitae of the warrant; and in case any such tenant or occupier wil beste bound with two sureties as hereinafter provided, to be approred the said justices, in such sum as to them shall seem reasonable
, reset being had to the value of the
premises and to the probable costs et un action, to sue the person to whom
such warrant was granted with Sket and without delay, and to pay all the costs of the proceeding a ser action in case a verdict shall pass for the defendant, of the plaisir del discontinue or not prosecute his action or become nonsuit tbera ecution of the warrant shall be delayed until judgment shall bwe given in such action of trespass ; and if upon the trial of such as trespass a verdict shall pass for the plaintiff, such verdiet and
be entitled to double costs in the said action of trespass." Proceedings on Sect. 4. “That every such bond as herein before mentioned to be bond in actions made to the said landlord or his agent at the costs of such lanciato of trespass.
securing the trial of which such bond was given the judge by visi shall be tried shall not indorse upon the record in court that dition of the bond hath been fufilled, the party to whom the board shall have been so made may bring an action, and recover there Provided always, that the Court where such 'action as last akres shall be brought may, by a rule of court, give such relief to the poste upon such bond as may be agreeable to justice, and such rule shall be
the nature and effect of a defeazance to such bond.” Protection of jus. Sect. 5. “ That it shall not be lawful to bring any action or prostata tices, constables,
against the said justices by whom such warrant as aforesaid shali bare been issued, or against any constable or peace officer by whom som warrant may be executed, for issuing such warrant or executing the
ime respectively, by reason that the person on whose application the 2. Recovering ime shall be granted had not lawful right to the possession of the pre- possession on
determination Sect. 6. “That where the landlord at the time of applying for such of tenancy. arrant as aforesaid had lawful right to the possession of the premises, Where landlord
of the part thereof so held over as aforesaid, neither the said landlord has a lawful title, or his agent, nor any other person acting in his behalf, shall be deemed a
he shall not be
deemed a trespasbe a trespasser by reason merely of any irregularity or informality in ser by reason of irle mode of proceeding for obtaining possession under the authority of menu dainty: bulibe
is act, but the party aggrieved may, if he think fit, bring an action on on the case for he case for such irregularity or informality, in which the damage sp
proceeding from lleged to be sustained thereby shall be specially laid, and may recover Irregularity. ill satisfaction for such special damage with costs of suit: Provided, at if the special damage so laid be not proved, the defendant shall be atitled to a verdict, and that if proved, but assessed by the jury at any im not exceeding 5s., the plaintiff shall recover no more costs than images, unless the judge before whom the trial shall have been held call certify.upon the back of the record that in his opinion full costs ight to be allowed.” Sect. 7. “ That in construing this act the word 'premises' shall be Interpretation
clause. aken to signify lands, houses, or other corporeal hereditaments; and hat the word person’ shall be taken to comprehend a body politic, orporate, or collegiate, as well as an individual; and that every word nporting the singular number shall, where necessary to give full effect
the enactments herein contained, be deemed to extend and be applied ) several persons or things as well as one person or thing; and that very word importing the masculine gender shall where necessary exind and be applied to a female as well as a male; and that the term landlord' shall be understood as signifying the person entitled to the nmediate reversion of the premises, or, if the property be held in joint nancy, coparcenary, or tenancy in common, shall be understood as gnifying any one of the persons entitled to such reversion; and that he word 'agent' shall be taken to signify any person usually emloyed by the landlord in the letting of the premises or in the collection f the rents thereof, or specially authorized to act in the particular latter by writing under the hand of such landlord.” Sect. 8. “That this act shall not extend to Scotland or Ireland.” Not to extend to
Scotland or Ire
land. At Michaelmas, 1823, the plaintiff became tenant from year to year Decision under
the act. I certain premises under one R. P. About Christmas, 1833, R. P. th ied, having devised the premises (which were copyhold) to his son, ?W.P, then a minor, charged with an annuity to his widow, M. P. After the death of R. P. the rent was regularly paid to the widow; and n the 24th of March, 1836 (which was after F. W. P. had been adaitted as tenant of the manor) an agreement in writing was made beween the plaintiff and M. P. for the continued occupation of the prenises by the former, without any variation in the terms of the tenancy. On the 23rd of March, 1840, the plaintiff was served with a notice to quit signed by M. P. and F. W. P., and upon his failure to quit puruant to that notice, a further notice was served upon him under the ibove statute of 1 & 2 Vict. c. 74, and afterwards a complaint was laid jefore the magistrates by F. W. P., “on behalf of himself and M. P.," Whereupon the magistrates granted a warrant. Possession having been aken by an officer under the warrant, and the plaintiff's goods removed from the premises, the key was either delivered to M. P. or laid down upon a table in her presence, and she was afterwards seen upon the premises. In trespass against M. P. and F. W. P., the defendants pleaded jointly, that the defendant F. W. P. was seised in fee of the premises, and that the alleged trespass was committed by him in the assertion of his right, and by the other defendant as his servant and by his com
2. Recovering mand. There was also a plea of not
guilty by M. P. The plaintif possession on entered a nolle prosequi as to F. W. P., and as to the other defendas determination replied setting up the demise by her of the 24th of March, 183, of tenancy. way of estoppel. The jury having found for the plaintiff against M.P.
-Held, first, that the verdict was warranted by the evidence; secon that the trespass was the proper form of action; thirdly, that the a.gation in the plea, that the defendant M. P. acted as the servant e by the command of F. W.P., (whose title was not denied), was ! admitted by the replication. (Darlington v. Pritchard, 5 Scott, N. 610).
to recover possession.
Schedule to which the 1 & 2 Vid. c. 74, refers. (11. Notice of
1- (owner, or, agent to - the owner, as the case may be,) do koreb owner's inteption lo apply to justices you notice, that unless peaceable possession of the tenement [shortly descriere:
situate which was held of me, or, of the said - [as the case may be
of the clock of the same day, at —, apply to her Majesty's jest
(Signed) To Mr.
12. Complaint before two jus tices.
The complaint of [owner, or, agent, &c., as the case may be, ma us, two of her Majesty's justices of the peace acting for the district sessions assembled, who saith that the said. did let to - a ten ing of - for under the rent of - -, and that the said tenancy was determined by notice to quit, given by the said -, as the case sat: the day of —, and that on the day of the said
[the tenant overholding) a notice in writing of his intention on cover possession of the said tenement, (a duplicate of which notice is less by giving, &c., [describing the mode in which the service was effected notwithstanding the said notice the said — refused [or, neglected] possession of the said tenement, and still detains the same.
(Signed Taken the day of — before us
(Signed) A duplicate of the notice of intention to apply is to be annexed n ***** plaint.
(3). Warrant to Whereas (set forth the complaint], we, two of her Majesty's justice peace otficers to take and give pos- mand you, on any day within in petty sessions assembled, acting for the of — do aulki
days from the date hereof, [excerpt Christmas Day, and Good Friday, to be added if necessary,] belesze nine in the forenoon and four in the afternoon, to enter, (by force, sa with or without the aid of - [the owner or agent, as the case may be, person or persons whom you may think requisite to call to your assiste upon the said tenement, and to eject thereout any person, and of the full and peaceable possession to deliver to the said (the orener, Ix Given under our hands and seals this day of
To - and all other constables and peace officers acting for of