1. Recovering possession on desertion by tenant. a summary way by the next justice or justices of assize of the repective counties in which such lands or premises lie; and if they lie in he city of London or county of Middlesex, by the judges of the Courts King's Bench or Common Pleas; and if in the counties palatine of hester, Lancaster, or Durham, then before the judges thereof; [and if Wales, then before the Courts of grand sessions (a) respectively;] 11 Geo. II. c. 19. ho are hereby respectively empowered to order restitution to be made such tenant, together with his or her expenses and costs, to be paid the lessor or landlord, lessors or landlords, if they shall see cause for e same; and in case they shall affirm the act of the said justices, to vard costs not exceeding 51. for the frivolous appeal." These provisions are extended, by stat. 57 Geo. III. c. 52, to tenants 10 shall be in arrear one half year's rent, and who shall hold the lands der any demise or agreement, whether written or verbal, and although right or power of re-entry be reserved or given to the landlord in case non-payment of rent. The enactment is as follows: "Whereas by act, &c. [recites 11 Geo. II. c. 19, s. 16, to the words, "should from nceforth become void"] And whereas it is expedient for the due tection of the interest of landlords that so much of the said act as uires a tenant to be in arrear for one year's rent should be altered, that the provisions of the said act should be extended to tenancies re no right of entry in case of non-payment is reserved to the land;" be it therefore enacted, "That the provisions, powers and remeby the said recited act given to lessors and landlords in case of any nt deserting the demised premises, and leaving the same uncultid or unoccupied, so as no sufficient distress can be had to counterthe arrears of rent, shall be extended to the case of tenants holding lands, tenements, or hereditaments at a rack rent, or where the reserved shall be full three-fourths of the yearly value of the ised premises, and who shall be in arrear for one half year's rent, ead of for one year as in the said recited act is provided and ted), and who shall hold such lands and tenements or hereditais under any demise or agreement, either written or verbal, and ugh no right or power of re-entry be reserved or given to the landin case of nonpayment of rent, who shall be in arrear for one half s rent, instead of for one year, as in the said recited act is provided nacted." Provisions extended to half year's rent in arrear, and alright of re-entry. though no express In metropolitan police district. Complaint on oath. Record of pro to the course of proceeding where the premises are within the opolitan police district, see 3 & 4 Vict. c. 84, s. 13. is not necessary that any information or complaint on oath should ade in order to justify the interference of magistrates under these (Basten v. Carew, 5 D. & R. 558; 3 B. & Cres. 649, S. C.) stices ought to make a record of the whole proceedings under these ments (6). In the case of Basten v. Carew, in trespass against two ceedings. strates for giving plaintiff's landlord possession of a farm as a dei farm, they produced in evidence a record of their proceedings r that act, which set forth all such circumstances as were necessary ve them jurisdiction, and by which it appeared that they had purthe directions of the statute; it was held, that this record was conre as an answer to the action. "It is a general rule and principle A protection to ," said Abbott, C. J., in delivering his opinion on this case, "that, justice. e justices of the peace have an authority given to them by an act rliament, and they appear to have acted within the jurisdiction so , and to have done all that they are required by the act to do in to originate their jurisdiction, a conviction, drawn up in due and remaining in force, is a protection in any action brought The Welch jurisdiction is now abolished by the 1 Will, IV. c. 70, t." Wales," Vol. VI. See form (3), post. against them for the act so done." (See Basten v. Carew, 5 D. & R. 558; 3 B. & C. 649, S. C.) And such a record is equally conclusive as a protection to the landlord and the constable who assisted in getting possession, even although 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 see further, tit. "Evidence," Vol. II. p. 404, as to the record being con clusive. In the case of Ex p. Pilton, (1 B. & Ald. 369), where a tenant ceased to reside on the premises for several months, and left them without any furniture or sufficient other property to answer the year's rent, it was 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. The judges of assize, on appeal, under stat. 11 Geo. II. c. 19, s.. against an order of two magistrates giving possession to a landlord unde 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 writ 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). Information or request on ustices to view pre inises. to wit: The information and request of A. B. of day of gentleman, taka lin in the year of our Lord 184-, before us J. P. and K. & Exp., two of her Majesty's justices of the peace for the said county of suich that one C. D. is tenant of a certain messuage, dwelling-house, [lands], tenements, and premises, with the appurtenances, situate at under a demise thereof by the said A. B. unto the said C. D. for years from year to year, at an annual rack rent of; and that the said C. D. is now in arrear for year's rent for the said premises, and hath wholly deserted the same, and left the same unoccupied, and there is not now upon the said premises any sufficient distress to countervail the sid arrears of rent: the said A. B. thereupon requests us the said justices (we having no interest in the said demised premises) to go upon and view the same, and to take such proceedings thereupon in that behalf, according to the statutes in such của made and provided, that he the said A. B. may be put into possession of the said promises. Taken before us the justices aforesaid, at above-mentioned. on the day and year frit To C. D., late of —, labourer: Take notice that A. B. of – • gentleman, hath this day stated unto us, J. P. and K. P., Esqs., two of her Majesty's justice f the peace for the county of — that you C. D. are tenant to him of [&c., bere insert the substance of the information and request, in past tense and second per son, to the words] possession of the said premises; and we, as such justices as afortsaid, being willing to grant unto the said A. B. such remedy as by the statutes is that behalf is provided, have hereupon now come upon the premises aforand have viewed the same, and we now hereby give you notice that we shall return to the said premises on, to take a second view thereof; and if on such second very or some person on your behalf do not then appear here and pay the rent oforesaid, and if there shall not then be sufficient distress upon the said premises to countera the said arrears of rent, we shall put the said A. B. into possession of the said p mises, according to the form of the statute in such case made and provided. Dated this day of -A. D. at (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 to hear and determine divers felonies, trespasses, and other misdemeanours in the said county committed, and informeth us that C. D. of · is tenant [&c., set forth the information and request, to the words] possession of the said premises: And we, of tenancy. as such justices as aforesaid, being willing to grant unto the said A. B. such 2. Recovering remedy as by the statutes in that behalf is provided, do now hereupon come upon the possession on premises aforesaid, and, having viewed the same, do now hereupon affix upon the most determination notorious part of the premises aforesaid a certain written notice, directed to the said C. D., wherein and whereby we give the said C. D. notice that we shall return to the said premises on, for the purpose of viewing the same a second time, and that if on such second view the said C. D., or some person on his behalf do not appear here and pay the rent aforesaid, and if there shall not then be sufficient distress upon the said premises to countervail the said arrears of rent, we shall put the said A. B. into possession of the said premises, according to the form of the statute in such case made and provided. And now at this day, to wit, on —, in pursuance of the said notice, we the said justices having returned to the said premises, do now view the same a second time; but the said C. D. doth not, nor doth any person on his behalf, attend here to pay the said rent, nor is the same as yet paid, nor is there any distress upon the said premises to countervail the said arrears of rent: Wherefore the said several matters in the information aforesaid being duly proved to us, and we being satisfied of the truth thereof, do hereupon put the said A. B. into possession of the said premises, according to the form of the statute in such case made and provided. In witness 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 of possession of tenements after due determination of the tenancy," reciting that "it is expedient to provide for the more speedy and effectual recovery of the possession of premises unlawfully held over after the determination of the tenancy:" it is enacted, " that from and after the passing of this act, when and so soon as the term or interest of the tenant of any house, land, or other corporeal hereditaments held by him at will or for any term not exceeding seven years, either without being liable to the payment of any rent or at a rent not exceeding the rate of 207. a year, and upon which no fine shall have been reserved or made payable, shall 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 or 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 thereupon appear at the time and place appointed, and shew to the satisfaction of the justices hereinafter mentioned reasonable cause why possession should not be given under the provisions of this act, and shall still neglect or refuse to deliver up possession of the premises or of such part thereof of which he is then in possession to the said landlord or his agent, it shall be lawful for such landlord or agent to give to such justices 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 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, & of tenancy. 1 & 2 Vict. c. 74. Mode of serving summous. How execution of warrants of possession may be stayed. Proceedings on bond in actions of trespass. Protection of justices, constables, &c. give possession of the same to such landlord or agent: Provided alway that entry upon any such warrant shall not be made on a Sunday, Go Friday, or Christmas Day, or at any time except between the hours nine in the morning and four in the afternoon: Provided also, the nothing herein contained shall be deemed to protect any person whose application and to whom any such warrant shall be granted fra any action which may be brought against him by any such tenant occupier, for or in respect of such entry and taking possession, whe such person had not at the time of granting the same lawful right a the possession of the same premises: Provided also, that nothing hea contained shall affect any rights to which any person may be entitled as out-going tenant by the custom of the country or otherwise." Sect. 2. "That such notice of application intended to be made and this act may be served either personally or by leaving the same with some person being in and apparently residing at the place of abode d 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 whom the same shall be left as aforesaid, and explain the purport and intent thereof: Provided that if the person so holding over cannot be found, and the place of abode of such person shall either not be known a admission thereto cannot be obtained for serving such summe posting up of the said summons on some conspicuous part of mises so held over shall be deemed to be good service upon such pe Sect. 3. "That in every case in which the person to whom my such warrant shall be granted had not at the time of granting these lawful right to the possession of the premises, the obtaining of any such warrant as aforesaid shall be deemed a trespass by him agains the test or occupier of the premises, although no entry shall be made by vir of the warrant; and in case any such tenant or occupier will be bound with two sureties as hereinafter provided, to be approved of by the said justices, in such sum as to them shall seem reasonable, regsel being had to the value of the premises and to the probable ense of action, to sue the person to whom such warrant was granted with fet and without delay, and to pay all the costs of the proceeding in sch action in case a verdict shall pass for the defendant, or the plaintif stall discontinue or not prosecute his action or become nonsuit the t ecution of the warrant shall be delayed until judgment shall haw S given in such action of trespass; and if upon the trial of such artan s trespass a verdict shall pass for the plaintiff, such verdict and j thereupon shall supersede the warrant so granted, and the plaintif sall be entitled to double costs in the said action of trespass." Sect. 4. "That every such bond as hereinbefore mentioned shall be made to the said landlord or his agent at the costs of such landin agent, and shall be approved of and signed by the said justices; and f the bond so taken be forfeited, or if upon the trial of the activ securing the trial of which such bond was given the judge by shall be tried shall not indorse upon the record in court that dition of the bond hath been fulfilled, the party to whom the band shall have been so made may bring an action, and recover there Provided always, that the Court where such action as last afr shall be brought may, by a rule of court, give such relief to the pe upon such bond as may be agreeable to justice, and such rule shall be the nature and effect of a defeazance to such bond." Sect. 5. "That it shall not be lawful to bring any action or prosecuta against the said justices by whom such warrant as aforesaid shall b been issued, or against any constable or peace officer by whom sh warrant may be executed, for issuing such warrant or executing t same respectively, by reason that the person on whose application the 2. Recovering same shall be granted had not lawful right to the possession of the pre mises." Sect. 6. "That where the landlord at the time of applying for such warrant as aforesaid had lawful right to the possession of the premises, or of the part thereof so held over as aforesaid, neither the said landlord nor his agent, nor any other person acting in his behalf, shall be deemed to be a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of this act, but the party aggrieved may, if he think fit, bring an action on the case for such irregularity or informality, in which the damage alleged to be sustained thereby shall be specially laid, and may recover full satisfaction for such special damage with costs of suit: Provided, that if the special damage so laid be not proved, the defendant shall be entitled to a verdict, and that if proved, but assessed by the jury at any um not exceeding 5s., the plaintiff shall recover no more costs than lamages, unless the judge before whom the trial shall have been held hall certify upon the back of the record that in his opinion full costs ught to be allowed." possession on determination of tenancy. Where landlord has a lawful title, deemed a trespasser by reason of irregularity, but be on the case for special damage irregularity. he shall not be liable in an action proceeding from clause. Sect. 7. "That in construing this act the word 'premises' shall be Interpretation 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 mporting the singular number shall, where necessary to give full effect o the enactments herein contained, be deemed to extend and be applied o several persons or things as well as one person or thing; and that very word importing the masculine gender shall where necessary exend 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 mmediate reversion of the premises, or, if the property be held in joint enancy, coparcenary, or tenancy in common, shall be understood as ignifying 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 of the rents thereof, or specially authorized to act in the particular natter 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 Ireland. the act. At Michaelmas, 1823, the plaintiff became tenant from year to year Decision under of certain premises under one R. P. About Christmas, 1833, R. P. died, having devised the premises (which were copyhold) to his son, F. 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 on the 24th of March, 1836 (which was after F. W. P. had been admitted as tenant of the manor) an agreement in writing was made between the plaintiff and M. P. for the continued occupation of the premises 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 pursuant to that notice, a further notice was served upon him under the above statute of 1 & 2 Vict. c. 74, and afterwards a complaint was laid before the magistrates by F. W. P., "on behalf of himself and M. P.," whereupon the magistrates granted a warrant. Possession having been taken 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 |
