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sunset. (t) Where the proviso is for re-entry in case of non-payment of rent for the space of ten, fifteen, or any other number of days after it has become due, the demand must be made on the tenth or last day. (u) Where rent was payable quarterly, and two quarters were in arrear and were demanded together, it was held that the lessor could not avail himself of the proviso for re-entry in case of non-payment for twentyone days, as the first quarter ought to have been demanded on the twenty-first day after it had become due. (v)

750. Where there is no sufficient distress and one half year's rent is due and in arrear, and the lessor has a right to re-enter for non-payment thereof, proceedings may be taken under the 15 & 16 Vict. c. 76, s. 210. (y) The operation of the statute appears to be confined to cases where the tenant was six months in arrear at the very time when the landlord had recourse to the statutory remedy. If the landlord distrains for the rent due, he waives any breach of the condition of re-entry which had accrued prior to the taking of the distress. (2) Proof of no sufficient distress at the time the right to re-enter accrued, is prima facie proof of there being no sufficient distress at the time of the service of process. (a) If more than half a year's rent is in arrear, the case is within the statute; (b) but, if more than half a year's rent is due, and there is sufficient distress on the premises to satisfy one half-year, the landlord can not proceed under the statute, but

(t) Fabian's Case, Cro. Eliz. 209; Co. Litt. 202, a.; 1 Saund. 287, n. 16. Doe v. Brydges, 2 D. & R. 29. Acocks v. Phillips, 5 H. & N. 183.

(u) Hill v. Grange, Plowd. 172, a, 173. Clun's Case, 10 Co. 129, a. Wood and Chiver, 4 Leon. 180. ▼. Wandlass, 7 T. R. 117.

Doe

(v) Doe v. Paul, 3 C. & P. 613. (y) Doe v. Franks, 2 C. & K. 678. (2) Cotesworth v. Spokes, 30 L. J. C. P. 222.

(a) Doe v. Fuchau, 15 East, 286. (b) Doe v. Alexander, 2 M. & S 525.

must make his demand and entry at common law. (c) But the distress must be available; and, therefore, if the tenant locks up the premises, so that the landlord can not get at the goods which may happen to be upon them, he may proceed under the statute. (d) The right of re-entry must be absolute and unqualified. If he has a right only to re-enter and hold until arrears of rent are satisfied, and not to avoid the lease altogether, he can not avail himself of the statute. (e) The tenant or his assignee or sub-lessee (f) may, at any time before trial (s. 212) stay all further proceedings by paying or tendering to the lessor, or bringing into court, the rent and arrears with costs. (g)'

(c) Doe v. Roe, 9 Dowl. 548,
(d) Doe v. Dyson, M. & M. 77.
(e) Doe v. Bowditch, 8 Q. B. 973.

(f) Doe v. Byron, 1 C. B. 623.
(g) Roe v. Davis, 7 East, 363.

1 See ante, note 1, § 692. Prepayment of rent with intent to prevent a purchaser at an execution sale of the premises from obtaining the proportion due him under the Delaware, Rev. Code, § 28, 398-9, after sale, will entitle the purchaser to distrain therefor, after confirmation of the sale. Baker v. Burton, 3 Houst. 10. The goods of a principal in the store of his commission-merchant, for sale, are not liable to distress for rent. McCrury v. Claffin, 37 Md. 435. A distress warrant will lie in Georgia to enforce a contract for rent, to the effect that the tenant should pay to the landlord, for rent, "four and one-half bales of first-class cotton, each of the weight of five hundred pounds, the half bale to weigh two hundred and fifty pounds, and in addition to fix that part o the kitchen on said place that has been injured by fire," proper affidavit being made as to the value of the cotton, and the cost of fixing the kitchen. Wilkins v. Taliafero, 52 Ga. 208; and see Urguhart v. Urguhart, 46 Id. 415. In Maryland an action of trespass will not lie against a landlord for distress for more rent than is due. Hamilton v. Wendolf, 36 Md. 301. A lease was for ten years, with a stipulation that the improvements erected might be removed at the end of the term; a brick malt-house was erected; the malt-house was personal property liable to be distrained for rent. Spencer v. Darlington, 74 Pa. 286. The term could not be sold under

751. Recovery of possession where the demise premises are deserted.-The 11 Geo. 2, c. 19, s. 16, and the 57 Geo. 3, c. 52, give a summary remedy by proceedings before justices for recovery of demised premises, when the tenant has deserted them, and left them uncultivated or unoccupied, so that no sufficient distress can be had. And by the 3 & 4 Vict. c. 84, police magistrates and police constables within the metropolitan police district are enabled to put the lessor into possession, and determine the lease. But this power is not by any of the provisions of the last-named statute, or by the 11 & 12 Vict. c. 43, s. 34, vested in the Lord Mayor or alderman sitting in the justice room at the Mansion House or Guildhall. (h) The record of the proceedings need not show that any complaint or inquiry was made before the justices upon oath, nor state that the landlord had a right of re-entry. (2) Where a bankrupt lessee of a dwelling-house went away, leaving a person in the house whose possession was merely colorable, it was held that the justices were warranted n finding that the lessee had deserted the premises. (k) But where the tenant left his wife and children

(h) Edwards v. Hodges, 15 C. B.

477.

(2) Basten v. Carew, 5 D. & R. 558. (k) Ex parte Pilton, 1 B. & Ald. 369.

a distress for rent. Id. Bidders at a sale under a distress for rent agreed that one should buy and sell to the other at the price at which he should buy; after the sale the constable gave a receipt for the purchase-money of "a lease" and the receiver of the tenant, an insolvent, in consideration of the purchase-money beyond the rent and costs, conveved all "his interest in the lease" to the purchaser at the sale; held, that this conveyance did not affect the contract between the two bidders. Id. The lease stipulated that a transfer of the lease without the written consent of the lessors should be a forfeiture. The receiver of the lessee could not transfer it without the written assent of the lessor. In Georgia a tenant may have a distress warrant against a sub-tenant. Harrison v. Guill, 46 Ga. 427.

in the house, but took away his furniture and went away himself, it was held that there was no desertion; and the judges of assize, on appeal, ordered restitution of the demised premises with costs. (1) Where the justices go the first time and find the premises deserted, then, unless some one appears and pays the rent, when they go the second time they are to deliver possession to the lessor. The proceedings of the justices are examinable in a summary way by the judges (s. 17).

752. Recovery of possession of houses and small tenements. The statute 1 & 2 Vict. c. 74, enables justices of the peace to give possession to the landlord of houses and land held for a term not exceeding seven years, rent free or at a rent not exceeding £20 per annum, upon which no fine is payable, provided the tenancy has been duly determined, and notice has been given as therein provided. (m) If under this statute a tenancy is proved before the justices, and a determination of that tenancy, and a refusal on the part of the tenant to quit, it is not competent to the tenant to set up the title of any third party, or raise any question of title before the magistrate. (n) If the term or interest of the tenant in any house, land or corporeal hereditament, where the value of the premises or the rent does not exceed £50 by the year, (0) and on which no fine has been paid, has been duly determined, and the tenant or (if he does not occupy or only occupies part) any person by whom the premises or part of them are then actually occupied, neglects

(7) Ashcroft v. Bourne, 3 B. & Ad. 684.

(m) Delaney v. Fox, I C. B., N. S. 166.

n) Rees Davies, 4 C. B., N. S. 62.

(0) If the rent does not exceed £50, the County Court has jurisdiction, though the premises are of greater annual value. Harrington, Earl of, v. Ramsey, 8 Exch. 881; 2 E. & B 669; 22 L. J., Q. B. 460.

or refuses to deliver up possession, the landlord or his agent may, by proper proceedings in the county court, obtain a warrant of possession. (p) The plaint must be brought in the district where the tenements are situate; and the court will have jurisdiction, even though a bona fide question of title is raised, where neither the annual value of the lands nor the rent payable in respect thereof exceed £20. (7) If, however, the annual value or rent exceed that sum, the jurisdic tion of the court will be ousted if a bonâ fide question of title is raised; and, even if neither rent nor value exceed £20, yet the defendant may have the action tried in a superior court if he can satisfy a judge that the title to lands of greater annual value than £20 will be affected by the decision. (r) A tenant is, in general, estopped from disputing his landlord's title; but he may show that it has expired; and, if there is some evidence to support the defense, and it is not a mere illusory claim, and the rent or annual value of the premises exceed £20, the judge of the county court should refrain from trying the question. (s)

Where on the hearing of a plaint it appeared that one of the matters seriously in dispute was whether the whole or part of a house had been demised, it was held that the inquiry involveď a question of title, and that the county court had no jurisdiction in the matter. (t) A decision of a county court judge, that the title is not in question, is by no means conclusive of the fact. The question may be brought before the superior courts on motion for a prohibition by affidavit ; and, if the court directs that the party should declare,

(p) 19 & 20 Vict. c. 108, s. 50. (g) 30 & 31 Vict. c. 142, s. 12. (r) 30 & 31 Vict. c. 142, s. 13. (s) Mountnoy v. Collier, 1 E. & 630; 22 L. J., Q. B. 126. Marsh v.

B.

Dewes, 17 Jur. 558. Kerkin v. Kerkin, 3 E. & B. 399. Latham v. Spedding, 17 Q. B. 440.

(t) Chew v. Holroyd, 8 Exch. 249; 22 L. J., Ex. 95.

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