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Clark, m.a. 3rd Edit. 6s. 1906. Coroners.— Jeuvis (Sir J.) on the Office and Duties of Coroners. 6th Edit. ByR. E. Melshetmer. 10s. &d. 1898. / THE LAW OF EJECTMENT. THE LAW OF EJECTMENT •OR EECOVERY OF POSSESSION OF LAND, "WITH AN APPENDIX OF STATUTES AND A FULL INDEX. BY JOHN HERBERT WILLIAMS, LL.B. OF THE MIDDLE TEMPLE, AND WALTER BALDWYN YATES, B.A., OF THE INNER TEMPLE. LONDON : SWEET AND MAXWELL, Limited, 3, CHANCERY LANE, ^ato publishers. MEREDITH, RAY, & LITTLER, MANCHESTER ; HODGES, FIGGIS & CO. Ltd., and E. PONSONBY, DUBLIN; C. F. MAXWELL, MELBOURNE & SYDNEY. 1894. \ LONDON : BRADBURY, AGNEW, & CO. LD., PRINTERS, WHITEFRIARS. I I PREFACE It is now forty years since any work upon tliis subject has appeared, and, in tlie belief tliat there is now a want for a modern and concise book upon the subject, the authors have ventured to publish this work, in the hope that it may, to some extent, prove useful to both branches of the profession. They still adhere to the old term Ejectment, in preference to the new term " Action for the Re- covery of Land," which is now used in the Orders and Rules of the Supreme Court, the latter term never having come into general use. Wishing to make this work as concise as possible, they have purposely omitted to deal with many subjects relating to the law of real property which perhaps might be considered within its scope, and have endeavoured to confine themselves strictly to those points which are most closely connected with an action of ejectment. In the text the provisions of the many statutes which are dealt with are not set out at length, but the actual words of all the more VI PREFACE. important statutes are set out in the Appendix, an arrangement whicb the authors think will commend itself as being most convenient. Where cases are cited a reference to only one report is given, but the Index of Cases gives the reference to all the reports in which each case is to be found. J. H. Williams, W. B. Yates. The Temple, November, 1894, TABLE OF CONTENTS. PAGE Table and Index of Cases xi Table of Statutes . . ' Ixv CHAPTER I. Right of entry 1 CHAPTER II. Several remedies for recovery op possession . . . 5 CHAPTER III. Entry 9 CHAPTER IV. Forcible entry and detainer 13 CHAPTER y. By landlord against tenajstt 25 CHAPTER VI. Termination of tenancy 35 1. Kotice to quit 35 2. Demand of possession 47 3. Efflux of time 49 4. Surrender 50 5. Disclaimer 51 viii TABLE OF CONTENTS. CHAPTER VII. PAGE Forfeiture 54 CHAPTER YIII. Breaches of covenants and conditions 71 1. Non-payment of rent 71 2. Alienation 77 3. Non-repair 82 4. User of premises . , . . . . . . 88 5. Waste 92 6. Non-insurance 94 7. Non-payment of rates and taxes . . . .95 8. Bankruptcy 100 9. Building covenants . ' 101 10. Residence 102 11. To buy goods of Lessor 102 12. Farming Covenants 103 13. Mining covenants 104 14. Sundry 105 CHAPTER IX. Waiver of forfeiture 107 CHAPTER X. Belief against forfeiture 116 CHAPTER XL By tenant 128 CHAPTER XII. Mortgagor and mortgagee 130 1. By mortgagee against mortgagor and tenants . .130 2. By mortgagor 137 3. Staying proceedings 138 CHAPTER XIII. By tenant by elegit and purchase under fi. fa. . . 145 CHAPTER XIV. 1. By devisee 151 2. By legatee 161 3. By executors and administrators 162 TABLE OF CONTENTS. IX CHAPTER XV. PAGR By heir-at-law 164 CHAPTER XYI. 1. By trustee of bankrupt ITI 2. By grantee of rent-charge . . . . . . 1T3 3. By guardian of infant . . . . . . .175 4. By infant . . . . . . . . . 176 5. Bj^ lunatic and person of unsound mind . . .177 6. By joint tenants, tenants in common, and co-parceners 177 7. By parson . . . . . . . . . 178 8. By churchwardens and overseers 180 CHAPTER XVII. Copyholds 184 CHAPTER XVIII. What persons can be sued 189 CHAPTER XIX. Mesne profits 190 CHAPTER XX. Statutes of limitations 193 CHAPTER XXI. Evidence 227 1. Ownership . 227 2. Notice to quit 230 3. Breach of covenant or condition .... 231 4. Assignment or sub-letting ...... 232 5. Distress 232 6. Insufficient distre.ss 232 7. Eviction 233 8. Vacant possession ........ 234 9. Assent of executor to bequest of leaseholds . . 235 10. Sunrise and sunset 235 11. Authority of agent 236 12. Elegit • 236 13. Copyholds 237 X TABLE OF COxN TENTS. PAGE 14. Title of parson 237 15. Title of churchwardens 238 16. Wills of lands 238 17. HeirsliiiJ 240 18. Deeds and documents ....... 247 19. Award 251 CHAPTER XXII. Practice in the high court 253 CHAPTER XXIII. Action in the codnty court 268 1. Ordinary action for the recovery of land . . . 268 2. Action by landlord to recover possession . . . 274 CHAPTER XXIV. Su:mmary proceedings before justices 281 1. Landlord against tenant 281 2. Deserted premises 283 3. Sundry other cases 285 APPENDIX A. Forms. Notice to quit 287 1. By landlord 287 2. By tenant 287 3. By tenant in common (landlord); notice of owner's intention to apply to justices to recover possession . 288 Statement op claim 288 1. Landlord against tenant ...... 288 2. Heir-at-law against stranger i89 Notice limiting defence 289 1. In the high court 289 2. In the county court 289 Application ex parte by landlord for leave to depend 290 APPENDIX B. Statutes 290 INDEX 375 TABLE AND INDEX OE CASES. PAGE Abergavenny v. Brace, L. R. 7 Ex. 145 ; 41 L. J. Ex. 120 ; 28 L. T. 514 ; 20 W. E. 462 198, 212, 214 Accidental Soc. v. Mackenzie, 5 L. T. 20 ; 9 W. R. 783 . . . 29 Acoeks V. Phillips, 5 H. & N. 183 75 Adam v. Kerr, 1 B. & P. 360 247 Adnam v. Sandwich, 2 Q. B. I). 485 ; 46 L. J. Q. B. 612 . . 194, 198 Agar V. Young, Car. & M. 78 27, 32 Ahearn v. Bellman, 4 Ex. D. 201 ; 48 L. J. Ex. 681 ; 40 L. T. 771 ; 27 W. R. 928 44 Alchorne v. Gomme, 2 Bing. 54 ; 9 Moore, 130 ... 28, 136 Alderman v. Neate, 4 M. & W, 704 ; 1 H. & H. 369 ; 3 Jur. 171 . ISO Alderson v. White, 2 De G. & J. 97 ; 4 Jur. N. S. 125 .. . 220 Aldridge v. Howard, 5 Scott, N. R. 623 ; 4 M. & Gr. 921 . .104 V. Feme, 17 Q. B. D. 212 ; 55 L. J. Q. B. 587 ; 34 W. R. 578 99 Alford V. Vickery, Car. & M. 280 42 Alison, Ee, 11 Ch. D. 284 ; 40 L. T. 234 ; 27 W. R. 537 218, 220, 224 AUason v. Stark, 9 A. & E. 255 ; 1 P. & D. 183 . . . 180, 181 Allen V. Kennet, 24 W. R. 845 262 V. Woods, 68 L. T. 143 2 Allum V. Dickinson,- 9 Q. B. D. 632 ; 52 L. J. Q. B. 190 ; 47 L. T. ' 493 ; 30 W. R. t*30 ; 46 J. P. 262 ; 47 Id. 102 . . . 96, 99 Alston, Ee [1892], Prob. 142 ; 61 L. J. Prob. 92 ; 66 L. T. 591. . 242 Ames V. Maunering, 26 Beav. 583 221 Amfield v. White, Ry. & M. 246 97 Amis V. Lloyd, 3 V. & B. 15 142 Andersons Midland Ry. Co., 3 E. & E. 614; 30 L. J. Q. B. 94; 3 L. T. 809 ; 7 Jur. N. S. 411 132 V. Pignet, 8 Ch. 180 ; 42 L. J. Ch. 310 ; 27 L. T. 740 ; 21 W. R. 150 4 Andrew v. Motley, 12 C. B. N. S. 514 ; 32 L. J. C. P. 128 . . 239 Andrews v. Hailes, 2 E. & B. 349 ; 22 L. J. Q. B. 409 .. . 33 Anglo-Italian Bank v. Davies, 9 Ch. D. 275 ; 47 L. J. Ch. 833 ; 39 L. T. 244 ; 27 W. R. 3 145, 149, 150 Anon., 3 Salk. 169 19, 22 Appleton V. Morrey, 8 W. R. 653 ; 2 F. & F. 167 . . . . 182 Archbold v. Scully, 9 H. L. C. 360 ; 5 L. T. 160 ; 7 Jur. N. S. 1169 206, 217 TABLE AND INDEX OF CASES. PAGE Archer v. Snapp, And. 342 ; 2 Stra. 1107 140, 141 Arden v. Boyce, 10 Times R. 253 260 V. , [1894] 1 Q. B. 796 ; 63 L. J. Q. B. 338 ; 70 L. T. 480 ; 42 AV. E. 354 ; 38 S. J. 324 253, 254 Arnisou, Ex parte, L. R. 3 Ex. 56 ; 37 L. J. Ex. 57 . . . . 233 Arnsby v. Woodward, 6 B. & C. 519 ; 9 D. & R. 536 . . 60, 108 Ashcroft V. Bourne, 3 B. & Ad. 684 283, 285 Asher v. Whitlock, L. R. 1 Q. B. 1 ; 35 L. J. Q. B. 17 ; 14 W. R. 26 ; 11 Jur. N. S. 925 153, 199, 227 Ashtown V. Larke, 6 Ir. R. C. L. 270 38 Asliii V. Parkin, 2 Burr. 665 ; 2 Ken. 376 191 Astley -y. Essex, 18 Eq. 290 ; 43 L. J. Ch. 817 ; 30 L. T. 485 ; 22 W. R. 620 203 Atchley v. Sprigg, 33 L. J. Ch. 345 ; 10 L. T. 16 ; 12 AV. R. 364 ; 10 Jur. N. S. 144 243, 244 A.-G. L. J. Churchill, 8 M. & W. 171 . V. Davey, 4 De G. & J. 136 . V. Flint, 4 Hare, 147 ... . V. Lewin, 1 Cooper Ch. 51 ; 8 Sim. 366 . V. Magdalen College, 18 Beav. 223 ; 23 Jur. 363 V. Parsons, 2 M. k W. 23 ; 2 Gale, 227 ; 5 Dowl. 165 V. Stephens, 6 De G. M. & G. Ill ; 25 L. J. Ch. Jur. N. S. 51 V. Tomline, 5 Ch. D. 750 ; 15 Id. 150 ; 46 L. J. Ch. 654 L. T. 684 ; 43 Id. 486 ; 25 W. R. 803 Attoe V. Hemmings, 2 Bulstr. 281 Attwood V. Joliffe, 3 New Sess. Cas. 116 Austin V. Llewellyn, 9 Exch. 276 ; 2 C. L Auworth V. Johnson, 5 C. & P. 239 . Aylesford Peerage, 11 App. Cas. 1 R. 408 ; 23 L. J. Ex. 11 / . 225 . 214 . 180, 181 Ch. 844; 18 . 215 . 7 888 ; 2 . 206 36 196 62 20 212 94 43, 245, 246 Badcock v. Hunt, 22 Q. B. D. 145 ; 58 L. J. Q. B. 134 ; 60 L. T. 314 ; 37 W. R. 205 ; 53 J. P. 340 97, 100 Baddely v. Denton, 1 L. M. & P. 172 268 Bagot V. Bagot, 32 Beav. 509 ; 33 L. J. Ch. 116 ; 9 L. T. 217 ; 12 W. R. 35 ; 9 Jur. N. S. 1022 93 Bailey v. Mason, 2 Ir. C. L. R. 582 213 Baily v. de Crespigny, L. R. 4 Q. B. 180 ; 38 L. J. Q. B. 98 ; 19 L. T. 681 ; 17 W. R. 494 59, 81 Bain v. Mason, 1 C. & P. 202 241, 242 Bainesi;. Lumley, 16W. R. 674 198,206 Baker v. Gostling, 4 Moo. & S. 539 ; 1 B. K C. 19 . . . .79 V. Greenhill, 3 Q. B. 148 ; 2 G. & D. 435 ; 6 Jur. 710 . . 96 V. Wetton, 14 Sim. 426 ; 9 Jur. 98 218 Balkis, Ee, 58 L. T. 300 ; 36 W. R. 392 249 Ball V. Cullimore, 2 C. M. & R. 120 ; 1 Gale, 96 ; 5 Tyr. 753 . . 47 TABLE AND INDEX OF CASES. 8 Jur. N. S. 1147; 7 L, P. 80 20 L. J. Q. B. 476 PAGE . 249 . 65 T. 187, 10 . 110, 127 . 243, 244 . 156 ; 24 ^Y. R. 274 192 96 Ball V. Dunsterville, 4 T. R. 313 ; 2 R. R. 394 Bally V. Wells, 3 AVils. 25 . . . Bamford v. Creasy, 3 Giff. 675 W. R. 856 ... Banbury Peerage, 1 S. & St. 153 Banghani, He, 1 P. D. 429 ; 45 L. J. Banks v. Rebbeck, L. M. & P. 452 712 ; 15 Jur. 659 BarberiJ. Brown, 1 C. B. N. S. 121 ; 26 L. J. C. P. 41 ; 3 Jur. N. S. 18 . Barcroft v. Welland, 12 L. R. Ir. 35 BargentiJ. Thomson, 4 Giff.4 73 ; 9 Jur. N. S. 1192 ; 9 L. T. 365 . 116, 127 Baring ■■«. Abingdon [1892], 2 Ch. 374 ; 67 L. T. 6 ; 41 W. R. 22 . 51 Barker v. Palmer, 8 Q. B. D. 9 ; 51 L. J. Q. B. 110 ; 45 L. T. 480 ; 30 W. R. 59 270 Barlow v. Teal, 15 Q. B. D. 4C3, 501 ; 54 L. J. Q. B. 400, 564 ; 53 L. T. 52 ; 54 Id. 63 ; 34 W. R. 54 ; 50 J. P. 100 . . 36, 37 Barnes v. Trompowsky, 7 T. R. 265 247 Barnett v. Guildford, 11 Exch. 19 ; 24 L. J. Ex. 281 ; 1 Jur. N. S. 1142 190, 191 Barraclough v. Greenhough, L. R. 2 Q. B. 612 ; 8 B. & S. 623 ; 36 L. J. Q. B. 251 ; 15 W. R. 934 240 Barrett v. Barrett, Hetley, 34 93 V. Bedford, 8 T. R. 602 99 Barrow v. Isaacs [1891], 1 Q. B. 417 ; 60 L. J. Q. B. 179 ; 64 L. T. 686 ; 39 W. R. 338 ; 55 J. P. 517 . . 58, 79, 116, 118, 127 Barry v. Glover, 10 Ir. C. L. R. 113 .... 59, 72, 76 Barton v. Dawes, 10 C. B. 261 ; 19 L. J. C. P. 302 . . . . 230 88 ; 4 R. R. 499 Nov, 42 Barwick v. Thompson, 7 T. R. Baspole v. Long, Cro. Eliz. 879 Bastard v. Clarke, 7 Ves. 489 Basten v. Carew, 3 B. & C. 649 ; 5 D. & R. 558 Batchelor^'. Bigger, 60 L. T. 416 .... Bath's Case, 6 Co. Rep. 34 b Baylis v. Le Gros, 4 C. B. N. S. 537 ; 4 Jur. N. S. 513 Beade v. Orme, Noy. 136 Beamish!!. Cox, 16 L. R. Ir. 270, 458 .. . Beardman v. Wilson, L. R. 4 C. P. 57 ; 38 L. J. C. P. 91 282 ; 17 W. R. 54 Beasney, Be, 7 Eq. 498 ; 38 L. J. Ch. 159 ; 19 L. T. 630 . Beattie v. Mair, 10 L. R. Ir. 208 Beaufort v. Bates, 3 De G. F. & J. 381 ; 31 L. J. Ch. 481 82 ; 10 W. R. 200 V. Neeld, 12 CI. & F. 248 Beckett v. Biadley, 7 M. & Gr. 994 ; 8 Scott N. R. 843 ; 2 586 ; 14 L. J. C. P. 3 ; 5 L. T. 832 . Beckford v. Wade, 17 Ves. 89 ; 13 R. R. 20 Beddall v. Maitland, 17 Ch. D. 174 ; 50 L. J. Ch. 401 ; 44 L 29 W. R. 484 283 19 27, 28 . 185 . 141 , 284, 285 . 99 . 131 67, 68, 87 14, 15 . 37 L. T. 60, 79 . 242 . 13 L. T. 85 127 217 . 214, 248 ; 10, 13,18 TABLE AND INDEX OF CASES. 15 W. R. 61 Bedell V. Con.staV)lo, Vaugli. 177 Bedford v. Bedford, 7 Exch. 777 ; 21 L. J. M. C. 225 Begbie v. Crook, 2 B. N. C. 70 ; 2 Scott, 128 . Beluney v. Kelly, 24 L. T. 738 ; 19 W. R. 1171 Belbin y. Skeats, 1 Sw. & Tr. 148 ; 27 L. J. Prob. 56 Belcher v. Mcintosh, 8 C. & P. 720 ; 2 M. & Rob. 186 Beuham, Re, 4 Eq. 416 ; 36 L. J. Ch. 502 ; 16 L. T. 349 741 Bennett v. Herring, 3 C. B. N. S. 370 .. . V. Womack, 7 B. & C. 627 ; 1 M. & Ry. 644 ; 3 C Berkeley Peerage, 4 Camp. 401 ; 14 R. R. 782 . Beruett v. Taylor, 9 Ves. 381 . Beniey v. Bickmore, 8 L. T. 353 .. . V. Read, 7 Q. B. 79 ; 14 L. J. Q. B. 247 ; 9 Jur. 620 Berrey v. Liudley, 3 M. & Gr. 498 ; 5 Jur. 1061 ; 4 Scott N Berry i>. Banner, 1 Peake, 212 ; 3 R. R. 674 V. Taunton, Cro. Eliz. 331 Bessell v. Landsberg, 7 Q. B. 638 ; 9 Jur. 576 ; 14 L Bickley v. Bickley, 4 Eq. 216; 36 L. J. Ch. 817 Biederraan v. Seymour, 3 Beav. 368 ; 10 L. J. Ch. 177 Cr. 117 Bikker v. Beeston, 1 F. & F. 685 Birch V. Wright, 1 T. R. 378 ; 1 R. R. 223 Bird V. Defonvielle, 2 C, & K. 415 . V. Elwes, L. R. 3 i^x. 225 ; 37 L. J. Ex. 91 ; 18 L. W. R. 1120 Birt V. Barlow, 1 Doug. 170 . Birtwhistle v. Vardill, 7 CI. & F. 895 ; 9 Bligh, 32 ; 6 B. N. C 4 Jur. 1076 ; 1 Scott N. R. 828 . Bissell V. Williamson, 7 H. & N. 396 Blades V. Higgs, 10 C. B. N. S. 713 ; 30 L. J. C. P. 347 ; 4 L. T 7 Jur. N. S. 1289 Blake v. Foster, 8 T. R. 487 ; 5 R. R. 419 V. Leigh, Amb. 305 .... Blandford v. Marlborough, 2 Atk. 541 Blight V. HartuoU, 19 Ch. D. 294 ; 51 L. J. Ch. 162 ; 45 30 W. R. 513 Blyth V. Denuett, 13 C. B. 178 ; 22 L. J. C. P. 79 Board V. Board, L. R. 9 Q. B. 48 ; 43 L. J. Q. B. 4 ; 29 L. T 22 W. R. 206 Boiling V. Hobday, 31 W. R. 9 . Boltou V. Tonilm, 5 A. & E. 856 ; 1 N. & P. 247 Bond V. Freke, W. N. 1884, p. 47 . Bonsor and Smith, Re, 34 Ch. D. 560 note Booth V. Booth, 2 Atk. 342 ... . Borgiiis V. Edwards, 2 F. & F. Ill . Borrows v. EUison, L. R. 6 Ex. 128 ; 40 L. J. Ex. 131 ; 24 L. T 64, 86. P. 96 . . 245 PAGE . 175 96, 97 . 161 . 50 . 239 82, 83 R. . 242 113 65 246 247 34 251 38 238 81 50 169 B. 355 . 164, 165, 2 Myl. & 165 228 35, 130, 133 . 44 16 T. 727 T. 385 99 242 168 275 551 10, 11 28, 31 . 175 . 96 524; 45: 459 ; 153 110 199 224 56 126 200 139 85 365: 19 W. R. 850 211 TABLE AND INDP:X OF CASES. XV PAOE Bosvile V. A.-G., 12 P. D. 177 ; 56 L. J. Prob. 97 ; 57 L. T. 88 ; 36 W. R. 79 243, 244 Bowen v. Anderson [1894], 1 Q. B. 164 ; 42 W. R. 236 . . . 37 Bowes V. Law, 9 Eq. 636 ; 39 L. J. Ch. 483 ; 22 L. T. 267 ; 18 W. R. 640 102 Bowker v. Bnrdekiu, 11 M. & W. 128 ; 12 L. J. Ex. 329 . . . 249 Bowman v. Hodgson, L. R. 1 P. & M, 362 ; 36 L. J. Prob. 124 ; 16 L. T. 392 239, 247 Bowser v. Colby, 1 Hare, 109 ; 11 L. J. Ch. 132 . . . .108 Boyesi;. Cook, 14 Ch. D. 53 ; 49 L. J. Ch. 350; 42 L. T. 556 ; 28 W. R. 754 158 Bradbury v. Wright, 2 Doug. 624 96, 97 Brain, He, 10 Eq. 389 ; 44 L. J. Ch, 103 ; 31 L. T. 17 ; 22 W. R. 867 54, 119, 124 Brarawell v. Lacy, 10 Ch. D. 691 ; 48 L. J. Ch. 339 ; 40 L. T. 361 ; 27 W. R. 463 89 Brandreth^. Shears, AV. N. 1883, p. 89 261 Brassiugton v. Llewellyn, 27 L. J. Ex. 297 ; 1 F. & F. 27 . . 224 Bray v. Fogart}', Ir. Rep. 4 Eq. 544 58, 92, 101 Brazier V. Jones, 8 B. & C. 124 251 Breton v. Cope, 1 Peake, 43 .247 Brewer i;. Eaton, 3 Doug. 230 ; 6 T. R. 220 . . . . 76, 110 V. Hill, 2 Anstr. 413 ; 3 R. R. 596 79 Brewster v. Kitchell, 1 Salk. 197 59, 96, 97, 98 Bridge v. Quicke, 67 L. T. 54 126 Bridges v. Longman, 24 Bear. 27 . . . . . . .112 V. Potts, 17 C. B. N. S. 314 ; 33 L. J. C. P. 338; 11 L. T. 373 ; 10 Jur. N. S. 1049 35, 36 Brierly v. Kendall, 17 Q. B. 937 ; 21 L. J. Q. B. 161 .. . 131 Brighton (Mayor) v. Brighton (Guardians), 5 C. P. D. 368 ; 49 L. J. C. P. 648 ; 44 J. P. 683 205 Bringloe v. Goodson, 4 B. N. C. 726 ; 6 Scott, 502 ; 8 Id. 71 ; 5 B. N. C. 738 248 Bristol V. Jones, 1 E. & E. 484 ; 28 L. J. Q. B. 201 ; 5 Jur. N. S. 956 ; 7 W. R. 307 86 V. Westcott, 12 Ch. D. 461 ; 41 L. T. 117 ; 27 W. R. 841 . 79 Brocklebank, Ex parte, 6 Ch. D. 358 ; 46 L. J. Bank. 113 ; 37 L. T. 282; 25 W. R. 859 176 Brook V. Biggs, 2 B. N. C. 572; 2 Scott, 803 31 Brookes v. Drysdale, 3 C. P. D. 52; 37 L. T. 467 ; 26 W. R. 331 . 55 Brown's Case, 4 Co. Rep. 21a . . . . . . . . 184 Brown, iJe, 1 K. & J. 522 157 V. Armstrong, 7 Ir. Rep. C. L. 130 229 V. Brown, 8 E. & B. 876 ; 27 L. J. Q. B. 173 ; 4 Jur. N. S. 163 239 V. Burtinshaw, 7 D. & R. 603 36 V. Cocking, L. R. 3 Q. B. 672; 37 L. J. Q. B. 250 ; 18 L. T. 560; 16 W. R. 933 ; 9 B. & S. 503 269, 27.^ XVI TABLE AND INDEX OF CASES. Browne V. Cork, 1 Dr. &Wal. 700 V. Dawson, 12 A. & E. 624 ; 4 P. & D. 355 . V. Radford, W. N. 1874, p. 124 . V. Storey, 1 M. & Gr. 117; 1 Scott N. R. 9 ; 4 Jur. 319 Browning v. Beston's Case, Plow. 130 .... Brudnel's Case, 5 Co. Rep. 9 a Bryan v. Cowdal, 21 W. R. 693 Brydges r. Lewis, 3 Q. B. 603 ; 2 G. & D. 763; 6 Jur. 837 Bubb V. Yelverton, 10 Eq. 465 Buckland^7. Gibbins, 32 L. J. Ch. 391 ; 9 Jar. N. S. 781 ; 8 129 ; 11 W. R. 483 Buckle V. Fredericks, 44 Ch. D. 244 ; 62 L. T. 884 ; 38 W. R 55 J. P. 165 Buckley v. Buckley, 1 T. R. 647 ; 1 R. R. 338 . V. Pirk, 1 Salk, 316 Buckworth v. Simpson, 1 C. M. & R. 834 ; 5 Tyr. 344 ; 1 Gale, Budd V. Marshal], 5 C. P. D. 481 ; 50 L. J. Q. B. 24 ; 42 L. T, 793 ; 29 W. R. 148 ; 44 J. P. 584 Buller V. Burt, 4 A. & E. 15, cited , Bullock V. Bennett, 24 L. J. Ch. 512 V. Dommitt, 2 Chit. 608 ; 6 T. R. 650 ; 3 R. R. 300 Burdett v. Withers, 7 A. & E. 136 ; 2 N. & P. 122 ; 1 Jur Burgaine v. Spurling, Cro. Car. 283 8 Jur. 621; 13 L. J. M. C 514 PAGE . 218 10,11 . 214 . 134 9, 107 . 50 . 224 . 61 . 93 L. T. . 32 742; 90, 91 . 255 64, 81 38 . 61 149, . 99 . 239 . 154 . 84 82, 83 . 72 122; . 84 116, 127 . 11 Burgess v. Boetefeur, 7 M. & Gr. 481 8 Scott N. R. 194 Burke v. Prior. 15 Ir. Ch. Rep. 106 Burling v. Read, 11 Q. B. 904 . Burn V. Phelps, 1 Stark. 94 Burnaby v. Baillic, 61 L. T. 634 Burne v. Richardson, 4 Taunt. 720 ; 14 R. R. 647 Burns v. Walford, W. N. 1884, p. 31 Burroughs v. M'Creight, 1 J. & L. 290 ; 7 Ir. Eq. Rep. 49 ; 2 Con. & L. 94 208, 209, 214, 216 Burrowes v. Gradin, 1 D. & L. 213 ; 12 L. J. Q. B. 333 ; 7 Jur. 942. 133 Bursill V. Tanner, 16' Q. B. D. 1 ; 55 L. J. Q. B. 53 ; 53 L. T. 445 ; 34 W. R. 35 Burt V. Gray [1891], 2 Q. B. 98 ; 60 L. J. Q. B. 664 ; 65 L. T. 229 39 W. R. 429 Burton v. Dickenson, 17 L. T. 264 Bushby v. Dixon, 3 B. & C. 298 ; 5 D. & R. 126 Buskin v. Edmunds, Cro. Eliz. 415 . 74 Butcher v. Butcher, 7 B. & C. 399 ; 1 N. R. 113 ; 1 M. & Ry. 220 9, 10 Bute V. Thompson, 13 M. & W. 487 ; 14 L. J. Ex. 95 . . . 105 Butler V. Butler, 28 Ch. D. 66 ; 54 L. J. Ch. 197 ; 52 L. T. 90 ; 33 W. R, 192 158 V. Meredith, 11 Exch. 85 ; 1 Jur. N. S. 451 ; 24 L. J. Ex. 239 257 V. Mountgarret, 7 H. L. C. 633 246 234 244 192 253 251 124 133 206 TABLE AND INDEX OF CASES. XVU PAGE Cadby V. Martinez, 11 A. & E. 720 ; 3 P. & D. 386 . . . . 35 . 246 . 142 11 L. T. 608 ; . 277 . 221 137; -I-Zicl. 153 213 . 263 . 229 . 48 Camoys Peerage, 6 CI. & F. 789 Campbell v. Campbell, L. R. 1 H. L. Sc. 182 . V. Loader, 3 H. & C. 520 j 34 L. J. Ex. 50 11 Jur. N. S. 286 ; 13 W. R. 348 . Cann v. Taylor, 1 F. & F. 651 .... Cannon r. Eiraington, 12 C. B. 1, 18 ; 21 L. J. C. P Carew v. Christopher, 8 L. R. Ir, 252 ; 10 id. 38 Carne v. Nicoll, 1 B. IST. C. 430 ; 1 Scott, 466 . Carpenter v. Colins, Yelv. 73 . V. Parker, 3 C. B. N. S. 206 ; 27 L. J. C. P. 78. . . 234 Can-ick v. Ford, 4 Ch. 247 ; 38 L. J. Ch. 671 ; 20 L. T. 289 ; 17 W. R. 478 172 Cartwright, Ec, 41 Ch. D. 532 ; 38 L. J. Ch. 590 ; 60 L. T. 891 ; 37 W. R. 612 94 Casey v. Hellyer, 17 Q. B. D. 97 ; 55 L. J. Q. B. 207 ; 54 L. T. 103 ; 34 W. R. 337 253 Caulfield v. Farr, Ir. R. 7 C. L. 469 49 Chadwick v. Broadwood, 3 Beav, 308 ; 10 L. J. Ch. 242 ; 5 Jur. 359 198, 206 Chaloner v. Bolcklow, 3 App. Cas. 933 ; 39 L. T. 134 ; 47 L. J. Q. B. 562 ; 26 W. R. 541 98 Chaplin v. Raid, 1 F. & F. 315 231 Chapman v. Beard, 3 Anstr. 942 ; 4 R. R. 875 . . . . 179, 238 V. Beecham, 3 Q. B. 723 ; 3 G. & D. 71 ; 12 L. J. Q. B. 42 ; 6 Jur. 968 132 V. Corpe, 27 W. R. 781 ; 41 L. T. 22. . . . 218, 224 Charity Commissioners c. Wybrants, 2 J. & L. 182 . . . .216 Chatfield v. Parker, 8 B. & C. 543 ; 2 M. & Ry. 540 . . . .147 V. Berchtoldt, 7 Ch. 192 ; 41 L. J. Ch. 255 ; 26 L. T. 267 ; 20 W. E. 401 152 Cherry v. Heniing, 4 Exch. 631 ; 19 L. J. Ex. 63 . . . . 248 Chesterfield v. Bolton, 2 Comyn, 627 84 Chetham v. Hoare, 9 Eq. 571 ; 39 L. J. Ch. 376 ; 22 L. T. 57 . .217 Chew V. Holroyd, 8 Exch. 249 ; 22 L. J. Ex. 95 . . . 268 Chilcote V. Youldon, 3 E. & £. 7 ; 29 L. J. M. C. 197 ; 2 L. T. 370 ; 6 Jur. N. S. 1054 ; 8 W. R. 559 286 Child V. Douglas, 5 De G. M. & G. 739 ; Kay, 560 ; 2 Jur. N. S. 950 ; 2 W. R. 461 102 Chinnery v. Evans, 11 H. L. G. 115 ; 11 L. T. 68 ; 10 Jur. K S. 855 ; 13 W. R. 20 221, 222 Cholmeley's School v. Sewell, [1893] 2 Q. B. 254 ; 62 L. J. Q. B. 476 ; 69 L. T. 188 ; 41 W. R. 637 ; 57 J. P. 680 ; 5 R. 501 . . 126 Christie v. Ovington, 1 Ch. D. 279 ; 24 W. R. 204 . . . . 169 Christ's Hospital v. Harrild, 2 M. & Gr. 707 ; 3 Scott, N. E. 126 . 97 Church V. Brown, 15 Ves. 258 ; 10 R. R. 74 . . . . 77, 79 Churcher v. Martin, 42 Ch. D. 312 ; 58 L. J. Ch. 586 ; 61 L. T. 113 ; 37 W. R. 682 214 W.Y.E. b XVIU TABLE AND INDEX OF CASES. PAGE Claridge v, Jlackenzie, 4 M. & Gr. 143 ; 4 Scott, N. R. 796 . . 32 Clark V. Adie (No. 2), 2 App. Cas. 423 ; 46 L. J. Ch. 598 ; 37 L. T. 1 ; 26 AV. R. 47 29, 33 . 84 Jur. N. S. . 184, 186 . 199, 211 V. Glasgow Co., 1 Macq. 668 . Clarke v. Arden, 16 C. B. 227 ; 24 L. J. C. P. 162 ; 1 710 ; 3 C. L. R. 81 V. Clarke, Ir. Rep. 2 C. L. 395 .. . Clegg V. Hands, 44 Ch. D. 503 ; 59 L. J. Ch. 477 ; 62 L. T. 502 ; 38 W. R. 433. See Addendum. V. Rowland, 2 Eq. 160; 35 L. J. Ch. 396 ; 14 L. T. 217 ; 14 W. R. 530 Clifford V. Watts, L. R. 5 C. P. 577 ; 40 L. J. C. P. 36 717 ; 18 W. R. 925 Clifton -y, Molineux, 4 Co. Rep. 27 a . Clowes V. Hnghes, L. R. 5 Ex. 160 ; 39 L. J. Ex. 62 ; 22 18 W. R. 459 Coatsworth v. Johnson, 55 L. J. Q. B. 220 ; 54 L. T. 520 J. \ 40 ; 13 Cobb V. Stokes, 8 East, 358 ; 9 R. R. 464 Cocks V. Darson, Hob. 215 Cockson V. Cock, Cro. Jac. 125 . Cogswell V. Armstrong, 2 K. & J. 227 ; 1 Jur. N. S. 1162 Cole V. Eagle, 8 B. & C. 409 . Cole's Case, 1 Salk. 196 , Coles V. Coles, L. R. 1 P. & M. 70 ; 35 L 14 W. R. 290 . Collier v. Nokes, 2 C. & K. 1012 . Colling V. Treweek, 6 B. & C. 394 . Collingwood v. Pace, 1 Vent. 413 Colville V. Hall, 14 Ir. C. L. R. 265 . Compton u Preston, 21 Ch. D. 138 ; 51 L 30 W. R. 563 . Congleton v. Pattison, 10 East, 130 . Connor v. West, 5 Burr, 2672 . Cook V. Enchmarch, 2 Ch. D. Ill ; 45 L. J. Ch V. Whellock, 24 Q. B. D. 658 ; 59 L. J. 675 ; 38 W. R. 534 ; 54 J. P. 423 . Cooke V. Cholmondeley, 4 Drew. 326 ; 27 L. J J. Ch. 680 ; 47 S. 1023 ; V. Loxley, 5 T. R. 4 ; 2 R. R. 521 . r. Tanswell, 8 Taunt. 450 ; 2 Moore, 513 Coombe v. Green, 11 M. & W. 480 ; 2 Dowl. N 291 Coombs V. Cook, 1 C. & E. 75 . Cooper V. Blandy, 1 B. N. C. 45 V. France, 14 Jur. 215; 19 L. J. Ch. 313 V. Twibill, 3 Camp. 286, n. ; 13 R. R. 803, n. Cope V. Cope, 1 M. & Jlob. ,269 ; 5 C. & P. ,604 . 93 ; 22 L. T. . 105 . 185 L. T. 103 ; . 132 2, 47, 121, 123, 124 . 46 . 177 . 65 . 157 . 18 . 65 L. T L. T 504 ; 24 W. R Q. B. 329 ; 62 Ch. 826 ; 7 Jur 12 L. 608 ; . 239 75, 235 . 251 . 166 . 60 122 ; , 261 65, 66 . 266 293. 262 L. T. . 27 N. S. . 82 28, 30 247, 250 J. Ex. . 86 . 91 29, 30 . 16.^ . 102 244, 245 TABLE AND INDEX OF CASES. XIX I'ACK Coi)piiiser ?\ Gubhins, 3 J. & L. 307 ; 9 Ir. Eq. R. 30-t . . . 93 Corbett v. Plowden, 25 Oh. D. 678 ; 51 L. J. Uh. 109 ; 50 L. T. 7 10 ; 32 W. R. 667 134 Coibishley, r,c, 14 Ch. D. 846 ; 49 L. J. Ch. 266 ; 28 W. R. 536 . 242 Cornish v. Oleife, 3 H. & C. 446 ; 34 L. J. Ex. 19 ; 11 Jur. N. S. ISl ; 11 L. T. 606 ; 13 W. R. 389 . . . . 85 V. Searell, 8 B. & C. 471 ; 1 M. & Ry. 703 . . . .30 V. Stubbs, L. R. 5 C. P. 334 ; 39 L. J. C. P. 202 ; 22 L T. 21 ; 18 W. R. 547 37, 46, 61 Corpus Christi Coll. v. Rogers, 49 L. J. Ex. 4 ; 44 J. P. 216 . . 201 Coteswortli r. Spokes, 10 C. B. N. S. 103 ; 30 L. J. C. P. 220 ; 7 Jnr. N. S. 803 ; 4 L. T. 214 ; 9 W. R. 436 .. . 76 Cotterell v. Dutton, 4 Taunt. 826 ; 14 R. R. C75 Cottinghara v. King, 1 Burr. 623 .... Cotton's Case, Cro. Eliz. 189 . Cottrell V. Hughes, 15 C. B. 532 ; 1 Jur. X. S. 448 ; 2-4 107 Coward v. Gregory, L. R. 2 C. P. 153 ; 12 Jur. N. S L. J. C. P. 1 ; 15 L. T. 279 ; 15 W. R. 170 Cowper V. Cowper, 2 P. Wms. 720 . Cox V. Brown, Chan. Rep. 170 ..... V. Wright, 9 Jur. N. S. 98 ; 2 N. R. 436 . Cramer v. Mott, L. R. 5 Q. B. 357 ; 39 L. J. Q. B. 172 ; 22 18 W. R. 947 Crane v. Jullion, 2 Ch. D. 220 ; 24 W. R. 691 . Crawley v. Price, L. R. 10 Q. B. 302 ; 33 L. J. C. P, 110 210 266 10 3,4 L. T 1000 ; 36 84, 86, 113, 114 . 166 . 81 . 176 857 ; . 232 . 254 L. T. 203 ; 23 W. R. 874 54, 55, 56 Creak v. Brighton, 1 F. & F. 110 Crease v. Barrett, 1 C. M. & R. 919 ; 5 Tyr. 458 Creswell v. Davidson, 56 L. T. 811 ; W. N. 1887, p. 87 . Creswick v. Woodhead, 4 M. & Gr. 811 ; 6 Jur. 973 ; 12 L. Ill ; 5 Scott, N. R. 778 Crocker v. Fothergill, 2 B. & Aid. 652 Croft V. Croft, 4 Swa. & Tr. 10 V. London Bank, 14 Q. B. D. 347 ; 54 L. J. Q. B. 277 ; 52 L. T. 374 V. Lumley, 6 H. L. C. 672 ; 5 E. & B. 648 ; 4 id. 608 ; 24 L. J. Q. B. 78 ; 27 id. 321 . 56, 58, 80, 107, 108, 109, 113, 118, 256, 257 V. Pawlett, 2 Str. 1109 239 Cronin v. Rogers, 1 C. & E. 348 109, 124 Cronk v. Frith, 9 C. & P. 197 247 Cropp V. Harableton, Cro. Eliz. 48 ; Co. Lit. 202 a.; Moore, 223 . 72 Crosby v. Percy, 1 Taunt. 364 247 Cross, Ec, 20 Ch. D. 109 ; 51 L. J. Ch. 645 ; 45 L. T. 777 ; 30 W. R. 376 217 V. Jordan, 8 Exch. 149 ; 22 L. J. Ex. 70 ; 17 Jur. 93 . .76 Crosse v. Raw, L. R. 9 Ex. 209 ; 43 L. J. Ex. 144 ; 23 W. R. 6 . 99 h 2 " . 284 . 229 67, 121, 124 J. C. P. . 163 . 255 . 239 118 XX TABLE AND INDEX OF CASES. PAGE Crowle V. Russe}, 4 C. P. D. 186 ; 48 L. J. C. P. 7C ; 39 L. T. 320 ; 27W. R. 84 H3 Crowley v. Vitty, 7 Exch. 319 ; 21 L. J. Ex. 135 ... . 269 Crowther v. Crowther, 23 Beav. 305 ; 25 L. J. Ch. 511 ; 2 Jur. N. S. 274 196 Crusoe v. Bugby, 3 Wils. 234 ; 2 W. Bl. 766 . . . . 77, 79 Culley V. Doe, 11 A. & E. 1008 ; 3 P. & D. 539 . . 178, 194, 208 Cunliffe v. Sefton, 2 East, 183 247 Cunningliam V. Foot, 3 App. Cas. 974 ; 38 L. T. 889 ; 26 W. P. 858 . 215 Currie v. Child, 3 Camp. 283 247 Curzon v. Lomax, 5 Esp. 60 ....... . 228 CuthbertsoD v. Irving, 4 H. & N. 742 ; 6 id. 135 ; 28 L. J. Ex. 306 ; 29 id. 485 ; 3 L. T. 335 ; 8 W. R. 704 ; 5 Jur. N. S. 740 ; 6 ul. 1211 27, 29, 31, 62 Catting V. Derby, 2 W. Bl. 1075 41 26, 227 108 168 28 48 93 67 ; 12 33 194, 196 Daintry v. Brocklehurst, 3 Exch. 207 ; 18 L. J. Ex. 57 Dakin v. Cope, 2 Russ. 170 . Dalhousie v. McDouall, 7 CI. & Fin. 817 . Dancer v. Hastings, 12 Moore, 34 ; 4 Bing. 2 . Daniels v. Davison, 16 Ves. 249 ; 10 R. R. 171 . Darcy v. Askwith, Hob. 234 . Darlington v. Hamilton, Kay, 550 . V. Pritchard, 4 M. & Gr. 783 ; 2 Dowl. N. S. 664 L. J. C. P. 34 ; 7 Jur. 677 ; 5 Scott, N. R. 610 Dartmouth v. Spittle, 24 L. T. 67 ; 19 W. R. 444 Daubuz V. Lavington, 13 Q. B. D. 347 ; 53 L. J. Q. B. 283 ; 51 L. T. 206 ; 32 W. R. 772 131, 254 Davenport v. Reg., 3 App. Cas. 115 ; 47 L. J. P. C. 8 ; 37 L. T. 727 60, 108, 109, 112 Davey v. Railway Asstirance Co., 44 L. J. Ch. 568 ; 43 L. T. 234 . 6 Davies v. Davies, 38 Ch. D. 499 ; 57 L. J. Ch. 1093 ; 58 L. T. 314 ; 36 W. R. 399 94 V. Lowndes, 6 M. & Gr. 471 ; 7 Scott, N. R. 141 ; 12 L. J. Ex. 506 245, 246 V. Pierce, 2 T. R. 53 ; 1 R. R. 419 229 V. Underwood, 2 H. &]Sr. 570 ; 3 Jur. N. S. 1223 ; 27 L. J. E.x. 113 69 Davis t;. Burrell, 10 C. B. 821 ; 15 Jur. 658 . . . .9, 95, 96 V. Eyton, 7 Bing. 154 ; 4 Moo. & P. 820 . . . . 55, 68 V. James, 26 Ch. D. 778 ; 53 L. J. Ch. 523 ; 50 L. T. 115 ; 32 W. R. 406 262 V. Kirk, 2 K. & J. 391 166 V. Vass, 15 East, 97 251 Davison v. Gent, 1 H. & N. 744 ; 26 L. J. Ex. 122 ; 3 Jur. N. S. 342 51 TAHLE AUD 1NDL:X 01<' CAyEi. XXI Davison v. AVilson, 11 Q. B. 890 ; 17 L. J. Q. B. l'J6 ; in Jiir 318 ; 48 L. . 27 id. 173 35 ; 24 L. T J. Ex. 177 Davy, Ex parte, 2 Dowl. N. S. 24 . Dawes v. Bagnall, 23 W. R. 690 Dawkins v. Peuvhyn, 4 App. Gas. 51 ; G Cli. D. 304 ; 37 L. T. SO ; 39 id. 583 ; 26 W. R. 6 ; Day V. Day, L. R. 3 P. C. 751 ; 40 L. J. T. C. 19 W. R. 1017 .... — V. Williams, 2 C. & J. 460 . Deau V. Thwaite, 21 Beav. 621 De Beauvoir v. Owen, 5 Exch. 166 ; 19 L, De Bode's Case, 8 Q. B. 2U8 ; 10 Jur. 217 Delaney v. Fox, 2 C. B. N, S. 768 ; 1 id. 166 248 ; 2 Jur. N. S. 1233 . Den V. Hopkinson, 3 D. & R. 507 . Deudy v. Nicholl, 4 C. B. N. S. 376 ; 27 L. J. C. P. 220 Deuu V. Purvis, 1 Burr. 326 V. Spray, 1 T. R. 466 ; 1 R. R. 250 V. Walker, 2 Peake, 194 . V. White, 7 T. R. 112 Denne v. Judge, 11 East, 288 Dennis v. Cronapton, AV. N. 1882, 121 V. Loving, Hardi'. 424 . Deptford Churchwardens v. Sketchley, 8 Q. B. 394 . De Roos Peerage, 2 Coop. 541 Des Barres v. Shey, 29 L. T. 592 ; 22 W. R. 273 Devereux v. Underhill, 2 Keb. 245 .... Devonshire v. Barrow Hematite Co., 2 Q. B. D. 286 ; 46 96, 435 ; 36 L. T. 355 ; 25 W. R. 469 Dibble v. Bowater, 2 E. & B. 564 ; 22 L. J. Q. B. 396 ; 1 Digby V. Atkinson, 4 Camp. 275 .... Dinsdale v. lies, 2 Lev. 88 ; Raym. 224 ; 1 Ventr. 247 Dixon V. Baty, L. R. 1 Ex. 259 ; 12 Jur. N. S. 1024 ; 14 V. Gayfere, 17 Beav. 421 ; 23 L. J. Ch. 60 V. Wigram, 2 Cr. & J. 613 . Dodwell V. Gibbs, 2 0. & P. 615 Doe V. Abel, 2 M. & S. 541 ; 15 R. R. 342 — V. Abrahams, 1 Stark. 305 .... _ V. Adams, 2 C. & J. 232 ; 2 Tyrr. 289 — V. Alexander, 2 M. & S. 525 ; 15 R. R. 338 — V. Allen, 3 Taunt. 78 ; 12 R. R. 597 . — V. Alston, 1 T. R. 491 _- V. Amey, 12 A. & E. 476 ; 4 P. & D. 177 . — y. Andrews, 4 Bing. 348 ; 12 Moore, 601 . _ v. 15 Q. B. 756 — V. Augell, 9 Q. B. 328 ; 15 L. J. Q. B. 193 ; 10 Jur. 705 — r. Archer, 14 East, 245 ; 12 R. R. 509 .. . I'AGK . Gi7 11, 19 . 20 . 217 Ch. 215, 263 856 ; . 2U3, 204 . 3 . 217 . 225 . 26 26 L. J. C. P. 5, 27, 32, 234, 282, 283 . 40 . 110 . 177 ISS, 237 . 39 Jur W. R Q. B. 1054 536 242, 204, 191 177 262 79 18 246 194 266 93 72 84 48 34 227 141 191 59 28 60 77 112 267 49 32 243 197, 206 XXU TABLE AND INDEX OF CASES. PAGE Doe V. Arkwright, 5 C. & P. 575 ; 2 A. & E. 182 ; 1 N. & M. 731. .228, 229 — V. Asby, 10 A. & E. 71 ; 2 P. & D. 302 116 — V. Ashley, 10 Q. B. 663 ; 16 L. J. Q. B. 356 ; 11 Jiir. 905. . 230 — V. Austin, 9 Bing. 41 ; 2 Moo. & Sc. 107 . . 26, 27, 28, 29, 30 — V. Baker, 8 Tamit. 241 ; 2 Moore, 189 35 — V. Bancks, 4 B. & AM. 401 ; Gow, 220 .. . 59, 105, 108 — V. Barber, 2 T. E. 749 ; 1 R. R. 611 129 — V. Barnard, 13 Q. B. 945 ; 18 L. J. Q. B. 306 ; 13 Jnr. 915. 225, 227 — V. Barnes, 8 Q. B. 1037 ; 15 L. J. Q. B. 293 ; 10 Jur. 520 . 238, 242 — V. Barton, 11 A. & E. 307 ; 3 P. & D. 194 ; 4 Jur. 432 , . 32 — v.- Bateman, 2 B. & Aid, 168 60, 79 — V. Bather, 12 Q. B. 941 ; 18 L. J. Q. B. 2 ; 12 Jur. 1087 . 45, 267 — i\ Batten, 1 Cowp. 243 ; 9 East, 314, n. ; 9 R. R. 470, n. . . 113 — V. Baytup, 3 A. & E. 188 ; 4 N. & M. 837 ; 1 H. & M^ 270 , 27 — V. Beckett, 4 Q. B. 601 ; 12 L. J. Q. B. 236 ; 7 Jur. 532 . 28, 205, 228 — v. Bell, 5 T. R. 471 ; 2 R. R. 642 ; 2 Sm. L. C. 110 (ed. 9) 36, 49 — V. Bellamy, 2 M. & S. 87 ; 14 R. R. 595 187 — V. Benhain, 7 Q. B. 976 ; 14 L. J. Q. B. 342 ; 9 Jur. 662 . . 226 — V. Benson, 4 B. & Aid. 588 40 — V. Bevan, 3 M. & S. 353 80, 81 — V. Biggs, 1 Taunt. 367 ; 2 id. 109 ; 11 R. R. 353 .. . 39 — V. Birch, 1 M. & W. 402 ; Tyr. & Gr. 769 . 56, 60, 108, 110, 112 — V. Birchmore, 9 A. & E. 662 ; 1 P. & D. 448 . . . k7, 257 — V. Bird, 6 C. & P. 195 ; 7 irf. 6 ; 4 N. & M. 285 ; 2 A. & E. 161 86, 88, 89, 104, 106 -- V. — 11 East, 49 178 . 166 . 203 . 114 . 9 . 137 . 174 . 49 — V. Blackburn, 1 M. & Rob. 547 . — u Blakeway, 5 C. & P. 563 — V. Bliss, 4 Taunt. 735 .... — V. Bond, 5 B. & C. 855 ; 8 D. & R. 738 . — V. Booth, 2 B. & P. 219 ; 5 R. R. 575 — V. Boulter, 6 A. & E. 675 ; 1 N. & P. 650 . — V. Boulton, 6 M. & S, 148 . — V. Bousfield, 6 Q. B. 492 ; 1 C. & K. 558 ; 14 L. J. Q. B. 42 ; 8 Jur. 1121 129, 184, 188 — V. Bowditch, 8 Q. B, 973 ; 15 L. J. Q. B. 266 ; 10 Jur. 637 .. 57, 58, 71, 73, 76, 175 — V. Bradbury, 2 D. & R. 706 162 — V. Bramston, 3 A. & E. 63 ; 1 H. & W. 162 ; 4 N. & M. 664. .199, 211 — V. Brandling, 7 B. & C. 643 ; 1 M. & Ry. 600 . . . .59 — V. Bray, 8 B. & C. 813 ; 3 M. & Ry. 428 ; M. & M. 166 . 243, 246 — V. Breach, 6 Esp. 106 56 — V. Brightwen, 10 East, 583 ; 10 R. R. 395 237 — V. Briudley, 12 Moore, 37 112 — V. Brown, 7 A. & E. 447 ; 2 N. & P. 592 . . . . 29, 30 — V. Browne, 8 East, 165 ; 9 R. R. 397 40 — V. Brydges, 2 D. & R. 29 75 TABLE AND INDEX OF CASES. XXUl 39, 4 113 M Doe V. Buckncll, 8 C. & P. 566 . . — r, Budden, 5 B. & Aid. 626 ; 1 D. & R. 243 — V. Burdett, 4 A. & E. 1 ; 6 JL & Gr. 386 . — V. Burlington, 5 B. & Ad. 507 ; 2 N. & U. 534 — V. Burt, 1 T. R. 701 ; 1 R. R. 367 . — V. Burton, 16 Q. B. 807 ; 15 Jur. 990 — V. 9 C. & P. 254 . — V. Butcher, 1 Doug. 50 ... . — V. 6 Q. B. 115 . — V. Butler, 2 Esp. 589 ; 5 R. R. 756 . — V. Byron, 1 C. B. 623 ; 3 D. & L. 31 — V. Cadwallader, 2 B. & Ad. 473 . — V. Calvert, 2 Camp. 387 ; 11 R. R. 745 — V. Capps, 3 B. N. C. 768 . — V. Carew, 2 Q. B. 317 ; 6 Jur. 457 ; 1 G. & D. 640 — V. Carpenter, 16 Q. B. 181 ; 20 L. J. Q. B. 70 — V. Carter, Ry. & M. 237 . — V. 8 T. R. 57, 301 ; 4 R. R. 586 . — r. 9 Q. B. 853 ; 18 L. J. Q. B. 305 — V. Cartwriglit, 1 C. & P. 218 ; Ry. & M. 62 — I'. Cawdor, 1 C. M. & R. 398 ; 4 Tyr. 852 . — V. Challis, 17 Q. B. 166 ; 18 id. 224 ; 20 L. J. Q. B, 227 ; 15 Jur. 601 ; 16 Jur. 969 — r. Chambers, 4 A. & E. 410 ; 1 H. & W. 749 ; 6 N. & — V. Chaplin, 3 Taunt. 120 ; 12 R. R. 615 — V. Church, 3 Camj). 71 . . . — V. Clarke, 8 East, 185 ; 9 R. R. 402 . . . 50, — V. 14 East, 488 .. , — V. Clifford, 2 C. & K. 448 . — V. Clift, 12 A. & E. 566 ; 4 P. & D. 579 — V. Clifton, 4 A. & E. 809 — V. Cock, 4 B. & C. 259 — r. Cockell, 4 A. & E. 478 — V. Cole, 6 C. & P. 359 — V. Cooke, 6 Bing. 174 ; 3 M. & P. 411 — V. , 7 Bing. 346 ; 5 M. & P. 181 — V. , 5 Esp. 221 — V. Coombes, 9 C. B. 714 ; 19 L. J. C. P. 306 — V. Cooper, 8 T. R. 645 — V. — -, 1 M. & Gr. 135 ; 1 Scott, N. R. 36 — V. Coulthred, 7 A. & E. 235 ; 2 N. & P. 165 — r. Cox, 11 Q. B. 122 ; 17 L. J. Q. B. 3 ; 11 Jur. 991 — V. Creed, 5 Bing. 327 ; 2 M. & P. 648 — V. Crick, 5 Esp. 196 ; 8 R. R. 848 . — V. Curwood, 1 H. & W. 140 — V. David, 5 Tyr. 125 ; 1 C. M. & R. 405 — V. Davies, 16 L. J. Q. B. 218 . — V. , 9 Q. B. 648 ; 16 L. J. Q. B. 97 ; 11 Jur. IS 2 H. & W. 285 6 K & M. 179 33, PAGE . 134 28, 29 239, 248 . 93 , 229, 230 27, 30 . 29 59, 107 . 59 . 39 76, 118 133, 135 238, 239 . 141 . 57 . 230 179, 238 80, 81 . 204 . 229 48, 52, 53 21 id. 191, 192 . 539 . 249 41, 177 . 44 55, 101, 102 . 180 228, 251 186, 187 136, 141 . 234 41, ISO . 250 . 3 . 227 . 207 . 257 51, 52 . 229 131, 132 . 257 42, 44 . Ill 55, 66, 100 245 239. XXIV TABLE AND INDEX OF CASES. 21 L. J. Ex. 60 6 Jur. 913 ; 2 H. & W 364 Doe V. Davies, 7 Exch. 89 — V. Dawson, 3 Wils. 49 . — V. Day, 2 Q. B. 147 ; 12 L. J. Q. B. 86 ; — V. Dixon, 5 A. & E. 834 ; 1 N. & P. 255 — V. Dobell, 1 Q. B. 806 ; 1 G. & D. 218 — V. Donovan, 2 Camp. 78 ; 1 Taunt. 555 — V. Durnford, 2 C. & J. 667 . — V. , 2 M. & S. 62 — V. Dyeball, M. & M. 346 ; 3 C. & P. 610 — V. Dyson, M. & M. 77 . — V. Edgar, 2 B. N. C. 498 ; 2 Scott, 732 ; 1 Hodges, 437 — V. Edmonds, 6 M. & "\V. 295 — V. Edwards, 5 B. & Ad. 1065 ; 6 C. & P. 208 ; 3 N. & M. 193 rA(;E 48, 131, 132 . 26G 128, 131 . 165 36, 38 . 33 113, — V. Elsam, M. & M. 189 — V. Evans, 1 Cr. & M. 450 ; 3 Tyr. 339 — V. , 9 M. & W. 48 — V. Eykins, 1 C. & P. 154 ; Ry. & U. 29 — v. Eyre, 17 Q. B. 366 ; 20 L. J. Q. B. 431 — V. Fenn, 3 Camp. 190 . — V. Filliter, 13 M. & ^Y. 47 ; 13 L. J. Ex. 275 — V. Fletcher, 8 B. & C. 25 ; 2 M. & Ry. 206 — V. Flynn, 1 C. M. & R. 137 ; 4 Tyr. 619 — V. Forwood, 3 Q. B, 627 . — V. Forster, 13 East, 405 ; 12 R. R. 383 — V. Foster, 3 C. B. 215 ; 15 L. J, C. P. 263 — V. Francis, 2 M. & Rob. 57 ; 4 M. & W. 331 — V. Franks, 2 C. & K. 678 . — V. Frowd, 4 Bing. 557 ; 1 M. & P. 480 — V. Fuchau, 15 East, 286 ; 13 R. R, 472 — V. Fuller, 1 Tyr. & Gr. 17 . — V. Galloway, 5 B. & Ad. 43 ; 2 N, & M. 240 — V. Gardiner, 12 C. B. 319 ; 21 L. J. C. P. 222 — V. Giles, 5 Bing. 421 ; 2 M. & P. 749 . — V. Gladwin, 6 Q. B. 953 ; 14 L. J. Q. B. 189 2 D. & L. 186 27, 49, 130, 133 9 Jur. 508 837 40, — V. Glenn, 1 A. & E. 49 ; 3 N. & M — V. Godwin, 4 M. & S. 265 . — V. Golding, 6 Moore, 231 . .— V. Goldsmith, 2 Cr. & J. 674 ; 2 Tyr. 710 . — V. Goldwin, 2 Q. B. 143 ; 1 G. & D. 463 . — V. Goodier, 10 Q. B. 957 ; 16 L. J. Q. B. 435 — V. Gopsall, 4 Q, B. 603, n. ; 5 Jur. 170 — V. Gore, 2 M. & W. 320 ... . — V. Gower, 17 Q. B. 589 ; 21 L. J. Q. B. 57 ; 16 Jur. 100 — V. Grafton, 18 Q. B. 496 ; 21 L. J. Q. B. 276 — V. Green, 4 Esp. 198 _ V, , 9 A. & E. 658 ; 1 P. & D. 454 41, 44 132, 52 232 230 227 233 29 210 3], 2, 60, 133 56, 91 . 148 40, 111, 112 . 209 . 177 192 179 52 41 39 41, 45, 181 . 30 . 233 . 52 77, 233 28, 30 . 230 . 41 135, 221 57, 95, 113, 114 . 128 137 6, 28, 01 131, 236 133, 135 . 207 . 252 180, 205 36, 33 . 39 . 36 TABLE AND INDEX OF CASES. XXV 563 Boer. Greeiihill, 4 B. & Aid. 684 — I'. Griffin, 15 East, 293 ; 13 R. E. 474. — V. Griibb, 10 B. & C. 816 . — V. Guy, 3 East, 120 ; 4 Esp. 154 ; 6 R. R — V. Hales, 7 Biug. 322 ; 5 M. & P. 132 . — V. Hall, 5 M. & Gr. 795 ; 1 D. & L. 49 — V. Hare, 2 Cr. & M. 145 ; 4 Tyr. 29 ; 2 Dowl. — V. Hares, 4 B. & Ad. 435 ; 1 N. & M. 237 . — V. Harland, 10 A. & E. 761 ; 3 Jur. 1189 . — V. Harlow, 12 A. & E. 40 . — V. Harris, 16 M, & W. 517 ; 16 L. J. Ex. 190 — V. Harrison, 6 Q. B. 631 ; 14 L. J. Q. B. 771 — V. Harvey, 8 Bing. 239 ; 1 M. & Sc. 374 — V. , R. & Moo. 297 . — V. Hatherley, 2 Str. 1152 ; 7 JMod. 420 — V. Hazell, 1 Esp. 94 ; 5 R. R. 722 — V. Hawke, 2 East, 481 ... — V. Heakin, 6 A. & E. 495 ; 2 N. & P. 660 — V. Hellier, 3 T. R. 162 ; 1 R. R. 680 . — V. Hilder, 2 B. k Aid. 782 . — V. Hiley, 10 B. & C. 885 ; 5 M. & Ry. 706 — V. Hinde, 2 M. & Rob. 441 . — V. Hodgson, 12 A. & E. 135 ; 2 M. & Rob 4 P. & D. 142 — V. Hogg, 4 D. & R. 226 ; 1 C. & P. 160 — V. Horn, 3 M, & W. 333 ; 5 id. 564 , — V. Home, 3 Q. B. 757 ; 12 L. J. Q. B. 72 ; 239 — V. Horrocks, 1 C. & K. 566 . — V. Horsley, 1 A. & E. 766 ; 3 N. & M. 567 — V. Howard, 11 East, 498 ; 11 R. R. 255 — V. Hubbard, 15 Q. B. 227 ; 20 L. J. Q. B. — V. Huddart, 2 C. M. & R. 316 ; 4 Dowl. 437 260 — V. Hughes, 7 M. & W. 139 . — V. , 11 Jur. 698 . — V. HuU, 2 D. & R. 38 . — V. Humphreys, 2 East, 237 . — V. Ingleby, 14 M. & W. 91 ; 15 id. 465 ; 14 — V. Inglis, 3 Taunt. 54 . — V. Jackson, 2 Stark. 293 . — V. , 1 Doug. 175 — V. , 1 B. & C. 448 ; 2 D. & R. 514 — V. Jepson, 3 B. & Ad. 402 . — V. Jesson, 6 East, 80 ; 2 Smith, 236 ; 8 R. ] — V. Johnson, 1 Stark. 411 — 17. , Gow, 173 . — V. , 6 Esp. 10 J 9 R. R. 800 215 283 7 Jur, Jur. 104 I'AGE . 145 241, 242 52, 53 162, 235 133, 61 . 135 . 231 . 192 . 137 . 267 . 192 . 30 . 187 . 191 . 246 . 267 . 37 81, 102 . 228 184, 185, 186 146, 147, 14S . 180 . 206, 225 Jur. 1202 ; . 190 . 80 3, 178 ; 3 G. & D. . 137 . 208 71, 72, 76, 174 . 39 ; 14 Jur. 1110 . 230 5 Tyr. S46 ; 1 Gale, . 191 39, 41 3, 46, 38 49, 59, L.J. 408 Ex. 2 46... 133, 135 202 45 55, 56, 101 . 45 . 86 . 44 . 47 . 57 . 210 76, 110 . 227 . 38 XXVI TALLE AND INDEX OF CASES. Doe n Jones, 9 M. & W. 372 ; 1 Dowl. N. S. 352 6 Jur. 302 — V. Jones, 4 B. & Ad. 126 ; 1 N. & M. 6 — V. Jones, 4 T. E. 300 ; 2 R. E. 390 . — V. , 15 M. & W. 580 ; 16 L. J. Ex. 58 — V. , 13 Q. B. ;74 ; 18 L. J. Q. B. 200 — r. , 2 C. & K. 743 — '•. , 5 Exch. 498 ; 19 L. J. Ex. 405 — i: Jordan, 4 C. & P. 146 — V. Keeling, 1 M. & S. 95 ; 14 R. E. 405 — V. Kensington, 8 Q. B. 429 ; 15 L. J. Q. B 12 L. J. Ex 13 J 153 ur. 824 10 Jur. — r. Kightley, 7 T. R. 63 ; 4 R. R. 375 . — r. King, 6 Exch. 791 ; 2 L. M. & P. 493 — V. Knight, 5 B. & C. 671 ; 8 D. & R. 348 — V. Laming, 4 Camp. 73 ; 15 R. R. 728 — V. Langdon, 12 Q. B. 711 ; 18 L. J. Q. B. 17 ; 13 Jur. 96 — V. Langfield, 16 M. & W. 497 . — V. Laurence, 4 Taunt. 23 . . . — T. Law, 2 W. BL 1180 — V. Lawder, 1 Stark. 308 . — V. Lawes, 7 A. & E. 195 ; 2 K & P. 195 — V. Lawley, 13 Q. B. 954 ; 3 N. & M. 331 — V. Lea, 11 East, 312 . — V. Lediard, 4 B. & Ad. 137 ; 1 N. & M. 683 — r. Lewis, 1 Burr. 614 ; 2 Ken. 320 — V. , 5 A. & E. 277 ; 2 H. & W. 162 ; 6 N. & M. 764 — V. , 13 M. & W. 241 ; 13 L. J. Ex. 200 ; 14 id. 198 & L. 667 — V. Lightfoot, 8 M. & W. 553 ; 5 Jur. 966 . . . 131 — V. Lines, 11 Q. B. 402 ; 17 L. J. Q. B. 108 ; 12 Jur. — V. Litherland, 4 A. & E. 784 ; 6 N. & M. 313 — V. Liversedge, 11 M. & W. 517 ; 13 L. J. Ex. 61 — V. Long, 9 C. & P. 773 51, — V. Louch, 6 D. & L. 270 ; 18 L. J. Q. B. 27S ; 14 Jur. 853 — V. Lucas, 5 Esp. 153 ; 8 R. R. 842 — V. Ludlam, 7 Bing. 275 ; 5 M. & P. 48 — V. Mabberley, 6 C. & P. 126 — V. M'Kaeg, 10 B. & C. 721 ; 5 M. & Ey. 620 — V. Maisey, 8 B. & C. 767 ; 3 M. & Ry. 107 . — V. Marchetti, 1 B. & Ad. 715 — V. Martin, Car. & Marsh. 32 . . . — V. Mason, 1 Esp. 53 ; 5 R. R. 718 — V. Massey, 17 Q. B. 373 ; 15 Jur. 1031 ; 20 L. J. Q. B. 434 — V. Masters, 2 B. & C. 490 ; 4 D. & R. 45 — V. Matthews, 11 C. B. 675 . — V. Mayo, 7 L. J. K. B. 84 . — V. Meux, 4 B. & C. 606 ; 1 C. & P. 346 ; 7 D. & R. 98 PAGE 265 ; 129, 147 87, 93 . 210 . 33 4 . 113 . 229 . 89 i5 137, 173 . 45 177, 266 . 250 . 94 . o . 229 . 61 . 267 . 47 . 187 . 209 37, 40 . 137 . 128 62,110 2 D. . 137 133, 221 . 38 . 29 211, 212 52, 53, 199 140, 142 . 42 . 187 . 235 . 47 49, 130 . 56 . 227 . 249 195, 221 . 73 . 38 . 139 87, 110 TABLE AND INDEX OF CASES. XXVll Q. B. 438 ; 14 Jur. 935 B. 324 ; 10 Jur. 815 . Q. B. 345 ; 9 Jur. 776 326 . . . . Ex. 169 . 201 Doe V. Michael, 17 Q. B. 276 ; 20 L. J. Q. B. 480 ; 15 Jur. 677 — V. ]\nies, 1 Stark. 181 ; 4 Camii. 373 — V. Mills, 2 A. & E. 17 ; 1 M. & Rob. 385 .... — V. jMihvard, 3 M. & W. 328 — V. ilitehell, 1 B. & B. 11 ; 3 Moore, 229 .... — V. 1 Jur. 795 ....... — V. Mizem, 2 M. & Rob. 56 — V. Motlatt, 15 Q. B. 257 ; 19 L. J. — V. Moore, 9 Q. B. 555 ; 15 L. J. Q. — V. Jlorphett, 7 Q. B. 577 ; 14 L. J, — V. Morris, 11 L. J. Ex. 313 ; 6 Jur — V. Moulsdale, 16 M. & AV. 689 ; 16 L. J -- V. Mulliuer, 1 Esp. 460 ; 5 R. R. 744 — r. Murless, 6 M. & S. 110 — V. iluscott, 12 M. & W. 832 ; 14 L. J. Ex. 185 . — V. Nepean, 5 B. & Ad. 86 ; 2 M. & ^Y. 894 — V. Oliver, 5 M. & Ey. 202 ; 10 B. & C. 181 ; 2 Sm (9ed.) — v. Olley, 12 A. & E. 481 ; 4 P. & D. 275 ; 4 Jur. 1084 — V. Ongley, 10 0. B. 25 ; 20 L. J. C. P. 26 . — V. Osboru, 5 B. & S. 67 — V. Owen, 2 C. & J. 71 ; 2 Tyr. 149 . — V. Oxenden, 3 Taunt. 147 ; 12 R. R. 619 . — V. Oxenham, 7 M. & W, 131 ; 4 Jur. 1016 — V. Page, 5 Q. B. 767 ; 13 L. J. Q. B. 153 ; 8 Jur. 399 — V. Palmer, 16 East, 53 ; 14 R. R. 284 .. . — V. Parker, Gow, ISO — V. Parry, 13 M. & W. 356 ; 2 D. & L. 430 — V. Pasquali, 1 Peake, 259 ; 3 R. R. 688 . — V. Passingham, 6 B. & C. 305 ; 9 D. & R. 416 . — V. Paul, 3 C. & P. 613 — V. Payne, 1 Stai'k. 86 ...... — r. Pearson, 6 East, 173 ; 3 Smith, 295 ; 8 R. R. 447 . I'AGE 228, 239 . 46 . 29 . 37 . 30 . 42 27, 29, 40 50 28, 203, 204 . 38 . 88 . 211, 212 . 196 26, 147, 148, 232 . 184 . 242 . L. C. 803 129 132 134 104 147 230 207 . 204 . 45 . 52 145, 147 . 52 1 74, 75 . 232 . 177 — V. Peck, 1 B. & Ad. 428 64, 66, 93, 95, 109, 113, 114 Penibroke, 11 East, 504 ; 11 R. R. 260 . Penfold, 8 C. & P. 536 3 Q. B. 757 ; 6 Jur. 948 ; 12 L. J. Q. B. 7C ; 3 D. 235 Perrin, 9 C. & P. 467 Phillips, 2 Bing. 13 ; 9 Moore, 46 . 3 B. & Ad. 753 ; 1 Dowl. 56 . . . 10 Q. B. 130 ; 16 L. J. Q. B. 269 ; 11 Jur. 692 Pittman, 2 N. & M. 673 Plowman, 2 B. & Ad. 573 Poole, 11 Q. B. 713 ; 17 L. J. Q. B. 143 ; 12 Jur. 450 Porter, 3 T. R. 13 ; 1 R. R. 626 . Powell, 5 B. & C. 308 ; 8 D. & R. 35 . 198, G. & 137, 246 227 241 39 54 177 47 . 3 . 51 . 162 56, 80 XXVlll TABLE AND INDEX OF CASES. Doe V. Powell, 7 M. & Gr. 980 ; 14 L. J. C. P. 5 ; 8 Scott, N 687 ; S Jur. 1123 . — r. 1 A. & E. 531 ; 3 N. & M. 616 . — v. Price, 9 Bing. 356 ; 2 Moo. & Sc. 464 . — r. 16 M. & W. 603 ; 16 L, J. Ex. 159 ; 11 Jur. 131 — V. Pritchard, 5 B. & Ad. 765 ; 2 N. & M. 489 . 55, 65, 66, — ■ V. Prosser, 1 Cowp. 217 . — V. Pulman, 3 Q. B. 622 . — V. Quigley, 2 Camp. 505 ; 11 R. R. 780 — V. Ratran, 6 Esp. 4 . — V. Read, 12 East, 57 .... ~ V. Reed, 5 B. & Aid. 232 .... — V. Rees, 4 B. N. G. 384 ; 6 Scott, 161 ; 1 Arii. — r. 6 G. & P. 610 ... . — V. Rickarby, 5 Esp. 4 .... — r. Eidout, 5 Taunt. 519 .... — V. Ries, 7 Bing. 724 ; 8 id. 178 ; 1 Moo. & Sc. — v. Roberts, 16 M. & W. 778 .. . — r. 13 M. & W. 520 ; 14 L. J. Ex. 274 — V. Robinson, 3 B. N. G. 677 ; 4 Scott, 396 — V. Robson, 2 G. & P. 245 . — r. Rock, 4 M. & Gr. 30 ; 6 Jur. 266 ; Car. & M. 549 — r. Roe, 2 B. & Ad. 922 ; 1 Dowl. 143 . 5 B. & Ad. 878 2 Chit. 179 . 4 C. B. 576 . 7 C. B. 125 . 7 C. B. 134 . 6 C. B. 272 . 4 Burr. 1996 2 N. & M. 399, 691 222 393 428 3M 407 2 Dowl, 3 Dowl 4 DowL 6 Dowl. 7 Dowl. 326 . 8 Dowl. 444 . 9 Dowl. 548 . 9 Dowl. 971 . 2 Dowl. N. S. 1 D. & L. 657 5 D. & L. 272 1 D. & R. 540 4 East, 585 . 4 Esp. 185 ; 6 R. R 2 H. & W. 130 ]2L. J. Q. B. 97 8 M. & W. 579 11 Price, 507 & W. 279 7 Jur. 352 850 PAGK . R. . 128 . 136 7, 48, 52 4 108, 114 . 178 . 228 . 49 35, 37 40, 177 . 3 108, 114 34, 195 •26, 232 . 35 . 128 49, 176 . 7 . 40 69, 231 205, 216 253, 267 . 267 189, 234 76 234 72 192 255 234 234 181 234 234 267 76 266 266 234 233 253 207 45 255 234 TABLE AND INDEX OF CASES. XXIX Doe V. Roo 1 Taunt. 55 — V. — 3 Taunt. 402 ... . — V. — 4 Taunt. 887 ... . — V. — 5 Taunt. 205 ; 14 R. R. 742 — V. — 8 T. R. 645 ; 5 R. R. 493 . — V. Rollings, 4 C. B. 188 ; 17 L. J. C. P. 568 — V. Rosser, 3 East, 15 , — V. Kowe, 2 C. & P. 245 ; Ry. & M. 343 . — V. Rowlands, 9 C. & P. 734 — r. Rugeley, 6 Q. B. 107 ; 8 Jur. 615 ; 13 L. J. M. C. — r. St. Helens, 2 Q. B. 364 ; 1 G. & D. 663 — V. Samples, 8 A. & E. 151 ; 3 K & P. 254 ; 2 Jur. 841 — V. Samuel, 5 Esp. 173 ; 8 R. R. 845 . — V. Savage, 1 Car. & K. 487 — V. Sayer, 3 Camp. 8 — V. Scott, 11 East, 473 .... — V. Seaton, 2 C. M. & R. 728 ; 1 Tyr. & G. 19 ; — V. Shawcross, 3 B. & C. 752 ; 5 D. & R. 711 — V. Shewin, 3 Camp. 134 .... — V. Sisson, 12 East, 62 .... — V. SkiiTow, 7 A. & E. 157 ; 2 N. & P. 123 — V. Smaridge, 7 Q. B. 957 ; 14 L. J. Q. B. 327 ; — V. Smith, A. & E. 350 ; 6 N. & M. 829 ; 2 H. ^ — V. 2 Stark, 199 . . — V. 5 Taunt. 795 ; 1 Marsh. 359 ; 2 Rose^ 660 — V. Smyth, 6 B. & C. 112 ; 9 D. & R. 136 . — V. Smythe, 4 M. & S. 347 . — V. Somerton, 7 Q. B. 58 ; 14 L. J, Q. B. 210 ; — V. Spence, 6 East, 120 ; 2 Smith, 255 ; 8 R. R. — V. Spiller, 6 Esp. 70 ; 9 R. R. 810 . — V. Spry, 1 B. & Aid. 617 . — r. Stacey, 6 C. & P. 139 . — V. Stagg, 5 B. ]^. C. 564 . — V. Standish, 2 Dowl. N. S. 26 ; 6 Jur. 73 6 — V. Stanion, 1 M. & W. 695 ; 2 Gale, 154 — V. Stanton, 2 B. & Akl. 371 ; Chit. 118 — V. Staple, 2 T. R. 684 .. . — V. Stapleton, 3 C. & P. 275 — V. Steel, 1 Dowl. 359 ... — V. -^— 3 Camp. 115 ; 13 R. R. 768 — V. Steuuett, 2 Esp. 717 ; 5 R. R. 769 — V. Stephens, 6 Q. B. 208 ; 13 L. J. Q. B. 350 ; 8 Jur — V. Stevens, 3 B. & Ad. 299 — V. Stevenson, 3 B. & P. 22 — 1-. Stone, 3 C. B. 176 ; 15 L. J. C. P. 234 ; 10 — V. Stradling, 2 Stark. 187 . — r. Sturges,.7 Taunt. 217 ; 2 Marsh. 505 Gale Jur W. 2S0 ) Jur 422 Jur. 118, 137 PAOE . 266 76, 118 141, 257 . 255 267 . 52 . 7 . 112 !, 85, 102 59, 91 . 137 . 248 . 37 . 228 . 48 303 30 72, 76, 77 7, 94, 114, 231 . 237 27, 23, 29 781 . . 36 76 15 951 450 38, 4.^ . 147 R. R. 80, 81 . 161 , 29, 257 . 23 J . 39 . 45 88, 91 227, 928 . 53 . 267 51, 52 . 189 . 1, 3 . 38 . 141 . 45 . 49 . 93 . 53 . 2(^7 . 136 . 189 . 235 XXX TABLE AND INDEX OF CASES. Doe V. Si;ckerraore, 5 A. & E. 703 ; 2 N. & P. 16 ; 4 Jur. 607 — V. Summcrsett, 1 B. & Ad. 135 . — V. Sumner, 14 M, & W. 39 ^ 14 L. J. Ex. 337 ; 9 Jur. 413 — V. Sutton, 9 C. & P. 706 . — V. Tatchell, 3 B. & Ad. 675 — V. Terry, 4 A. & E. 274 ; 5 N. & M. 556 . — V. Thomas, 6 Exch. 854 ; 20 L. J. Ex. 367 . — V. 9 B. & C. 288 ; 4 M. & Ry. 218 — V. Thompson, 13 Q. B. 670 ; 18 L. J. Q. B. 326 — V. 5 A. & E. 532 ; 1 N. & P. 215 — 6 A. & E. 721 ; 2 N. & P. 656 — 9 Q. B. 1037 ; 11 Jur. 1007 . Thorn, 1 M. & S. 425 ; 14 R. R. 485 Tidbury, 14 C. B. 304 ; 23 L. J. C. P. 57 L. R. 347 Timothy, 2 C. & K. 351 Tom, 4 *Q. B. 615 ; 12 L. J. Q. B. 264 ; 7 Jur 637 Tomkinson, 2 M. & S. 165 Tressidder, 1 Q. B, 416 ; 10 L. J. Q. B. 160 ; 5 Jur. 1 G. & D. 70 — V. — V. 18 Trueman, 1 B. & Ad. 736 .. . Turford, 3 B. & Ad. 890 ... Turner, 7 M. & W. 226 ; 9 id. 643 IJlph, 13 Q. B. 204 ; 18 L. J. Q. B. 106 ; 13 Vickers, 4 A. & E. 782 ; 6 N. & M. 437 . Yince, 2 Camp. 257 .... Walker, 14 L. J. Q. B. 181 . . B. & C. Ill ; 7 D. & R. 487 . Walters, 10 B. & C. 626 ; 5 M. & Ry. 357 Wandlass, 7 T. R. 117 ; 4 R. R. 393 Watkins, 7 East, 551 ; 3 Smith, 517 ; 8 R. 1 AVatson, 2 Stark. 230 .... Watt, 8 B. & C. 30S ; 1 M. & Ry. 694 . Weaver, 2 0. & K. 754 . Webber, 3 B. N. 0. 922 ; 5 Scott, 189 ; 3 Ho Webster, 12 A. & E. 442 ; 4 P. & D. 270 AVells, 10 A. & E. 427 ; 2 P. & D. 396 . Wliarton, 8 T. R. 2 Wheeler, 15 M. & W. 623 ; 16 L. J. Ex. 312 Whichelo, 8T. R. 211 .... Whitcomb, 8 Bing. 46 ... . White, 2 D. & R. 716 . 4 Bing. 276 ; 12 Monre, 526 Whitehead, 8 A. & E. 571 ; 2 Jur. 493 ; 3 N, Whittick, Gow. 195 . . . Wiggins, 4 Q. B. 367 ; 12 L. J. Q. B. 177 G.&D. 504 Jur. Jul 847 670 ff. 203 468 3G I'AGE . 248 . 41 205, 224 84, 112 . 162 40, 41, 180 47, 48 . 128 186, 187 . 52 . 203 33, 134 . 148 2C. . 33 . 39 &D. . 132 931 ; 184, 185, 76 55, 47, 40, 56 1, 3, 162, & P. 55/ 191, 69, 153 129 186 230 204 94 136 39 236 128 236 74 39 32 . 69 174 136 181 52 148 163 167 192 49 61 231 52 7 Jur. 529 30 TABLE AND INDEX OF CASES. XXXI Doe V. "Wilkinson, 12 A. & E. 743 ; 4 P. & D. 323 . — V. Williams, 6 B. & C. 41 : 9 D. & R. 30 . — V. 2 M. & W. 749 ; 1 Jur. 755 . — V. 7 C. & P. 322 — r. 5 B. & Ad. 783 — V. 5 A. & E. 291 ; 6 N. & M. 816 ; 2 H. & W. 213 — V. Wilson, 2 Stark. 477 — 1). 5 B. & Aid. 363 — V. Withers, 2 B. & Ad. 896 — V. Wiltccmb, 6 Exch. 601 ; 4 H. L. C. 425 ... — V. Wolley, 8 B. & C. 22 ; 3 C. & P. 402 ; 2 M. & Ry. 195 rAnK . 45 26, 42, 232 . 1, 3 53, 10ft . 68 . 220 . 266 . 83 . 250 168, 239, 242, 247 — V. Wood, 2 B. & Aid. 724 9, 10, 68 — V. 14 M. & W. 682 ; 15 L. J. Ex. 41 ; 9 Jur. 1060 — V. AVoodbridge, 9 B. & C. 376 ; 4 M. & Ry. 302 12 L. .J. — V. AVoodmaii, 8 East, 228 ; 9 R. R. 422 — V. AVoodroffe, 10 M. & W. 608 ; 15 id. 769 2 H. L. C. 811 ; 13 Jur. 1013 — V. Woombwell, 2 Camp. 559 — V. Worsley, 1 Camp. 20 . . . — V. Wright, 10 A. & E. 763 ; 2 P. & D. 672 — V. Wrighte, 2 B. & Aid. 710 . — V. Wrightman, 4 Esp. 5 ; 6 R. R. 834 — V. Wroot, 5 East, 132 ; 1 Smith, 363 . Doherty v. AUman, 3 App. Cas. 709 ; 39 L. T. 129 ; 26 W. R. 513 35, 162 . 92, 113 42, 43 Ex. 147 ; . 10 . 39 . 77 . 191 3 Dolby r. Isles, 11 A. & E. 335 ; 4 Jur. 432 Don, Ee, 4 Drew. 194 ; 27 L. J. Ch. 98 ; 3 Jnr. N. S. 1192 Donellan v. Read, 3 B. & Ad. 899 , Dormer's Case, 5 Co. Rep. 40 a ; Poph. 22 Dormer v. Fortescue, 3 Atk. 123 Dougal V. McCarthy, [1893] 1 Q. B. 736 ; 62 L. J L. T. 699 ; 41 W. R. 484 ; 4 R. 402 Doughty V. Bowman, 11 Q. B. 444 ; 17 L. J. Q Douse V. Earle, 3 Lev. 264 ; 2 Vent. 126 . Downingham's Case, Owen, 17 . Downs V. Cooper, 2 Q. B. 256 ; 6 Jur. 622 Drake, Ex parte, 1 M. D. & De G. 539 . Driver v. Lawrence, 2 W. Bl. 1259 . Drummond v. Sant, L. R. 6 Q. B. 763 ; 41 L. 419 ; 20 W. R. 18 . Drury v. Fitch, Hutton, 16 . Duke V. Ashby, 7 H. & N. 600 ; 31 L. J. Ex. 168 8 Jur. N. S. 236 , Dunn r. Large, 3 Doug. 335 Duppa V. Mayo, 1 Wms. Saunders, 275 d . Dwyer v. Collins, 7 Exch. 639 ; 21 L. J. Ex. 225 38, 42, 44 1 87, 93 27 169 66 73 196 Q. B. 462 ; 68 50 B. Ill ; 12 Jur. 182 65 . 85 129, 188 . 33 . SO 28, 29 . T. J. Q. B, 21 10 W. R . 28 . 192 . 112 16 Jur. 569 250, 251 21i 273 216 177 XXXU TABLE AND INDEX OF CASES. PAGE Dyke, Ex jmrte, Re, Morrish, 22 Ch. D. 410 ; 48 L. T. 303 . . 68 Dyne v. Nutley, 14 C. B, 122 ; 2 C. L. E. 81 230 Eager v. Furnivall, 17 Ch. D. 115 ; 50 L. J. Ch. 537 ; 44 L. T, 464 ; 29 W. R. 649 ; 45 J. P. 603 161 East V. Harding, Cro. Eliz. 498 185, 186 Easton v. Penny, 67 L. T. 290 51 ^'. Pratt, 2 H. & C. 676 ; 33 L. J. Ex, 31, 233 ; 9 L. T. 841 ; 12 W. R. 805 ; 10 Jur. N. S. 732 82 Ecclesiastical Commissioners v. N. E, R., 4 Ch. D. 845 ; 47 L. J. Ch. 20 ; 36 L. T. 174 217 Ecclesiastical Commissioners v. Rowe, 5 App. Cas. 736 ; 49 L. J. Q. B. 771 ; 43 L. T. 353 ; 29 W. R. 159 ; 45 J. P. 36 . 201, 223 Ecclesiastical Commissioners v. Treemer, [1893] 1 Ch. 166 ; 62 L. J. Ch. 119 ; 68 L. T, 11 ; 41 W. R. 166 ; 3 R. 136 . . . 201 Edwards, fejufty^e, 3 Atk. 519 175 Edwards v. Hodges, 15 C. B. 477 ; 24 L. J. M. C. 481 ; 1 Jur. K S. 91 ; 3 C. L. R. 472 285 Edwick V. Hawkes, 18 Ch. D. 199 ; 50 L. J. Ch. 577 ; 45 L. T. 168 ; 29 W. R. 913 10, 13, 15, 102 Egremont v. Keene, 2 Jones, Ir. Ex. 307 62 Elias V. Snowdon Co., 4 App. Cas. 454 ; 48 L. J. Ch. 811 ; 41 L. T. 289 ; 28 W. R. 54 93 Elliott V. Elliott, 9 M. & W. 23 235 V. Johnson, L. R. 2 Q. B. 120 ; 36 L. J. Q. B. 44 ; 8 B. & S. 38 ; 15 W. R. 253 61 Ellis's Case, Cro. Jac. 634 . .17 Kllis V. Peachy, 5 D. & L. 675 : 18 L. J. Q. B. 137 ; 13 Jur. 564 . 275 Elstou V. Rose, L. R. 4 Q. B. 4 ; 9 B, & S. 509 ; 38 L. J. Q. B. 6 ; 19 L. T. 280 ; 17 W. R, 52 269 Elvis V. York, Hob. 322 202 Emery v. Baruett, 4 C. B, N. S. 423 ; 27 L. J. C. P. 216 ; 4 Jur. N. S. 634 234, 275 Emmerson v. Ind, 33 Ch. D. 323 ; 12 App. Cas. 300 ; 55 L. T. 422 ; 56 icl. 778 ; 55 L. J. Ch. 903 ; 56 id. 989 ; 34 W. E. 778 ; 36 id. 243 265 England v. Slade, 4 T. R. 682 ; 2 R. R. 498 31 Erne v. Armstrong, 20 ^Y. R. 370 ; 6 Ir. Rep. C. L. 279 . . . 40 Evans v. Bicknell, 6 Ves. 173 ; 5 E. R. 245 3 V. Davis, 10 Ch, D. 747 ; 48 L. J. Ch. 22 ; 39 L. T. 391 ; 27 W. R. 285 . 58, 68, 91, 112 V. Elliott, 9 A, & E. 342 ; 1 P. & D. 256 , 130, 133, 134, 135 V. Thomas, Cro. Jac, 172 ....... 131 V. Wyatt, 43 L. T. 176 ; 44 J. P. 767 . Evcl\ n V. Evelyn, 42 L. T. 248 ; 28 W, R. 531 ■ V. Raddish, 7 Taunt. 411 Kxtou V. Scott, 6 Sim. 31 . . . . 113 262 84 250 TABLE AND INDEX OF CASES. XXXlll Eyre r. Sliaftcsbniy, 2 P. "Wins. 103 Eyston, Ex parte, 7 Cli. D. 145 ; 47 L. J. 26 W. R. 181 PAGE . 175 Bank. 62 ; 37 L. T. 447 100 Ex. 284 17 L. J. Q. B. 161 J. Ch. 379 . 41 146 ; 39 Fabiax r. AVinston, Cro. Eliz. 209 . Fail-claim v. Shamtitle, 3 Burr. 1290 Faircloughu. Marshall, 4 E.k. D. 37 ; 48 L. J 389 ; 27 W. R. 145 . Fairtitle v. Gilbert, 2 T. R. 169 ; 1 R. R. 455 Farrelly v. Robin.s, Ir. Rep. 3 C. L, Fasset v. Brown. 1 Peake, 23 . Fearon v. Norvall, 5 D. & L. 439 Feilden v. Slater, 7 Eq. 523 ; 38 L, Felton V. Ash, Barn. 177 . Fenn v. Bittleston, 7 Exch. 152 ; 21 L. J. Ex 1?. Smart, 12 East, 444 . Fenuer v. Duplock, 2 Bing. 10 ; 9 Moore, 38 Fenwick, Re, L. R. 1 P. & D. 319 ; 36 L. J. Prob. 54 Feret v. Hill, 15 C. B. 207 ; 23 L. J. C. P. 185 ; 18 Jur L. R. 1366 Ferguson v. Ferguson, 2 Esp. 589 .... Ferrer v. Oven, 7 B. & C. 427 ; 1 M. & Ry. 222 Yqvjv. Perkins, L. R. 2 Ex. 92 ; 36 L. J. Ex. 54; 16 L. W. R. 713 .... Fielden v. Tattersall, 7 L. T. 718 Filbee v. Hopkins, 6 D. & L. 264 . Finch V. Throckmorton, Cro. Eliz. 221 V. Underwood, 2 Ch. D. 310 ; 45 L 24 W. R. 657 . Fishmongers Co. v. Dimsdale, 6 C. B. 896 Fitchet V. Adams, 2 Str. 1128 . Fitz V. Res, [1893] 1 Ch. 77 ; 62 L. J. Ch Fitzgerald v. Day, 6 L. R. Ir. 326 . V. Elsee, 2 Camp. 635 Fitzroy, Re, 1 Sw. & Tr. 133 . Fleetwood v. Hull, 23 Q. B. D. 35 ; 58 L 790 ; 37 W. R. 714 ; 54 J. P. 229 Fleming v. Gooding, 10 Bing. 549 ; 4 Moo, V. Snook, 5 Beav. 250 Foley V. Addenbrooke, 13 M. & W. 174 ; Ford's Case, Cro. Jac. 151 Ford V. Ager, 2 H. & C. 279 ; 32 L. J. Ex R. 1073 ; 9 Jur. N. S. 804 V. Grey, 1 Salk. 285 . Forster v. Patterson, 17 Ch. D. 132 ; 50 L 29 W. R. 463 . Foster v. Pointer, 9 C. & P. 718 W.Y.E. 13 Jur 32f 16 L. T 1014 J. C h. 522 ; 34 258 &S. 14 L. 269 L. T. J. Q. B. 341 455 J. Ex. 169 8 L. T. 546 ; J. Ch. 603 ; 44 . 74 . 257 L. T. 137 137 48 247 275 . 90 . 140 . 131 60, 63 30, 31, 32 , 124. 155 2C. 28, 129 . 94 . 251 62; 15 L. T 08 60 L. T 110 103 140 107 779 . 108 . 248 9 91, 92 . 283 247, 248 . 155 L. T. 91, 11 AV. 465 ; 210, 123 28 104 105 24 222 208 220 251 XXXIV TABLE AND INDEX OB' CASES. PAGE Foster v. Reeves, [1892] 2 Q. B. 255 ; 61 L. J. Q. B. 763 ; 67 L. T. 537 ; iO W. 11. 695 ; 57 J. P. 23 2 Foundling Hospital ■!;. Garrett, 47 L. T. 230 106 Fox V. Oakley, 2 Peake, 214 183 — V. Swaun, Styles, 482 81 Frances' Case, 8 Co. Rep. 92 a 63 Francis v. Hayward, 20 Ch. D. 773 ; 22 Id. 177 ; 52 L. J. Ch. 12, 291 ; 46 L. T. 659 ; 48 Id. 297 ; 30 W. R. 744 ; 31 Id. 488 . 229 Freeman v. Steggall, 14 Q. B. 202 ; 19 L. J. Q. B. 18 ; 13 Jur. 1030 . 248 Freme v. Clement, 18 Ch. D. 499 ; 53 L. J. Ch. 801 ; 44 L. T. 399 ; 30 W. R. 1 . • 157 French v. French, 1 Dick. 268 241 Friend v. Shaw, 20 Q. B. D. 374 ; 57 L. J. Q. B. 225 ; 58 L. T. 89 ; 36 W. R. 236 ; 52 J. P. 438 276 Fnlder, Ex 2Mrte, 8 Dowl. 535 ; 4 Jur. 507 . . . .21, 284 Furley v. Wood, 1 Esp. 198 39 Furnivall v. Grove, 8 C. B. N. S. 496 ; 30 L. J. C. P. 3 . . . 46 Fursdon v. Clogg, 10 M. & W. 572 210 10 L. T. 304 ; 12 W. . 103 . 86, 112 133 ; 33 L. T. 617; Gale v. Bates, 3 H. & C. 84; 33 L. J. Ex. 235 R. 715 ; 10 Jnr. N. S. 734 Gange v. Lockwood, 2 F. & F. 115 . Garbutt v. Fawcns, 1 Ch. D. 155 ; 45 L. J, Ch 24 W. R. 89 143 Gardner v. Gardner, 2 App. Cas. 723 243, 244 V. Ingram, 61 L. T. 729 : 54 J, P. 311 .... 44 Garland v. Mead, L. R. 6 Q. B. 441 ; 40 L. J. Q. B. 179 ; 24 L. T. 421 ; 19 W. R. 1156 152,186,187 Garrard v. Tnck, 8 C. B. 231 ; 18 L. J. C. P. 338 ; 13 Jur. 871 . 3, 200 205, 216 Garth v. Thomas, 2 Sim. & St. 188 142 Garton v. G. W. R., E. B. & E. 837 ; 28 L. J. Q. B. 321 ; 5 Jur. N. S. 1244 43 General Finance Co. v. Liberator, 10 Ch. D. 15 ; 39 L. T. 600 ; 27 W. B. 210 1, 136, 137 General Share Co. v. Wetley, 20 Ch. D 260 ; 30 W. R. 445 . . 265 German v. Chapman, 7 Ch. D. 271 ; 47 L. J. Ch. 250 ; 37 L. T. 685 ; 26 W. R. 149 89 Gery v. Redman, 1 Q. B. D. 161 ; 45 L. J. Q. B. 267 ; 24 W. R. 270 26, 229 Gibbins v. Buckland, 1 H. & C. 736 ; 42 L. J. Ex. 156 ; 8 L. T. 87 ; 11 W. R. 380 ; 9 Jur. K S. 207 32 Gibbs V. Cruikshank, L. R. 8 C. P. 454 ; 42 L. J. C. P. 273 ; 28 L. T. 735 ; 21 W. R. 734 131, 134, 135 Gibson v. Doeg, 2 H. & K 615 ; 27 L. J. Ex. 37 . . . .114 V. Wells, 1 N. R. 290 94 Gilbert v. Schwenck, 14 M. & W. 488 ; 14 L. J. Ex. 317 ; 9 Jur. 693 . 175 TABLE AND INDEX OF CASES. XNXV 112, 140, Gillies V. Smither, 2 Stark. 528 Glenister v. Hardinf;, 29 Ch. D. 985 ; 53 L. T. 528 . Glover v. Cope, 4 jioil. 80 ; 3 Levintz, 326 ; Carth. 205 ; Skin. 30c Goodall V. Skerratt, 24 L. J. Ch. 323 ; 3 Drew. 216 ; 1 Jur. N. S. 5/ Goode V. Job, 1 E. & E. 6 ; 28 L. J. Q. B. 1 ; 5 Jur. N. S. 145 Goodright v. Cator, 2 Doug. 477 r. Cordwent, 6 T. E. 219 ; 3 K. R. 161 . V. Davids, 2 Cowp. 803 V. Moss, 2 Cowp. 591 V. Noright, 2 W. Black. 746 . V. Saul, 4 T. R. 356 ; 2 R. R. 409 . Goodtitle v. Badtitle, 4 Taunt. 820 ; 14 R. R. 674 . V. Bishop, 1 Y. & J. 344 V. Herbert, 4 T. R. 680 v. Jones, 7 T. R. 43 V. Lousdown, 3 Anstr. 937 .... V. Morse, 3 T. R. 365 ; 1 R. R. 719 . r. Pope, 7 T. R. 185 V. Saville, 16 East, 87 ; 14 R. R. 305 V. Southern, 5 M. & S. 299 ; 14 R. R. 435 . v. Tombs, 3Wils. 118 V. Wood, "Willes, 211 153, V. Woodward, 3 B. & Aid. 689 . Gordon v. Secretan, 8 East, 548 ..... Gorely, Ex jmrte, Re Barker, 4 De G. J. & S. 477 ; 34 L. J. Bank. 1 ; 11 L. T. 319 ; 13 W. R. 60 ; 10 Jur. N, S. 1085 . , 64, 95 Goring v. Warner, 7 Yin. 85 ; 2 Eq. Cas. Abr. 100 ... 81 Gorton v. Gregory', 3 B. & S. 90 Gosset V. Campbell, ^V. N. 1877, p. 134 ■ . 264 Gould, Exjmrte, Re Y'alker, 13 Q. B. D. 454 ; 51 L. T. 368 ; 1 M. B. R. 168 55, 100, 120 Gouldsworth v. Knights, 11 M. & AV. 337 ; 12 L. J. Ex. 283 . . 27 Gourlay r. Somerset, 1 Y. & B. 68 ; 13 R. R. 234 . . . .80 Graham v. AVade, 16 East, 29 97, 98 Grant v. Ellis, 9 M. & W. 113 198, 225 Gravenor v. Woodhouse, 2 Bing. 71 ; 7 Moore, 289. . . .30 Gray v. Bompas, 11 C. B. N. S. 520 ; 5 L. T. 841 . . . .46 G. W. R. V. Smith, 2 Ch. D. 235 ; 3 App. Cas. 165 ; 45 L. J. Ch. 235 ; 47 id. 97 ; 34 L. T. 267 ; 37 id. 645 ; 24 W. R. 443 ; 26 i^. 130 68 Greaves v. Greenwood, 2 Ex, D. 289 ; 46 L. J. Ex. 252 ; 45 id. 795 ; 25 W, R. 639 ; 24 id. 926 ; 36 L. T. 1 : 35 id. 65 . 168, 24], 242 Green's Case, Cro. Eliz. 3 109, 110 PAGE . 247 244, 245 62 213 210 -. 73 45 114 245 72 244 255 141 47 1 140 33 140 56 23) 192 168 40 248 Green v. Bridges, 4 Sim. 96 . . . V. Eales, 2 Q. B. 225 ; 1 G. & D. 468 V. Goddard, 2 Salk. 64 . V. Low, 22 Beav. 625 ; 2 Jui'. N. S. 848 . 127 84, 85 . 17 . 95 c 2 xxxvi TABLE AND INDEX OF CASES. Green v. Marsh, [1892] 2 Q. B. 330 ; 61 L. J. Q. B. 442 ; 66 L. T. 480 ; 40 W. E. 449 ; 56 J. P. 839 132 Greenaway v. Adams, 1 2 Ves. 395 ....... 77 V. Hart, 14 C. B. 340 ; 23 L. J. C. P. 115 ; 2 C. L. R. 370 ; 18 Jiir. 449 28, 62, 64 Greenslade v. Tapscott, 1 0. M. & R. 55 ; 4 Tyr. 466 .. . 80 Greenway v. Greeinvay, 1 Giff. 131 ; 2 De G. F. & J. 128 ; 5 Jur. N. S. 884 160 Greenwood, Re, [1892] Prob. 7 ; 61 L. J. Prob. 56 ; 66 L. T. 61 . 156 Gregg V. Gotes, 23 Bcav. 33 ; 2 Jur. N. S. 964 84 Gregory v. Doidge, 3 Bing. 474 ; 11 Moore, 394 .. . 29, 30 V. Wilson, 9 Hare, 683 ; 16 Jur. 304 . . . . Ill, 127 Grellier-u. Neale, 1 Peake, 146; 3 R. R. 669 . . . . 248, 249 Gresham v. Rossa, W. N. 1870, p. 119 43 Griffin V. Tomkins, 42 L. T. 359 ; 44 J. P. 457 ... 92, 109 Grimman v. Legge, 8 B. & C. 324 ; 2 M. & Ry. 438 . . . .51 Grimwood v. Moss, L. R. 7 C. P. 360 ; 41 L. J. C. P. 239 ; 27 L. T. 268 ; 20 W. R. 972 68, 109, 113 Gudgen v. Bessel, 6 E. & B. 986 ; 26 L. J. Q. B. 36 ; 3 Jur. N. S. 212 ; 5 W. R. 47 250 Gutteridge I'.Munyard, 1 M. & Rob. 334 ; 7 C. & P. 129 . 82, 83, 89 Hainks v. Guthrie, 13 Q. B. D. 818 ; 53 L. J. Q. B. 645 ; 33 W. R. 99 ; 48 J. P. 756 .. . Haldane v. Johnson, 8 Exch. 689 ; 22 L. J. Ex. 937 V. Newcomb, 12 W. R. 135 ; 9 L. T. 420 . Hall V. Bainbridge, 12 Q. B. 699 ; 12 Jur. 795 ; 17 L, V. Burgess, 5 B. & C. 332 ; 8 D. & R. 67 . V. Butler, 10 A. & E. 204 ; 2 P. & D. 374 ; 8 L. y. Comfort, 18 Q. B. D. 11 ; 56 L. J. Q. B. 185 ; 35 W. E. 48 V. Hall, 47 L. J. Ch. 680 Hammond v. Colls, 1 C. B. 916 ; 14 L. J. C. P. 288 ; V. Mather, 3 F. & F. 151 . Hamp V. Robinson, 16 L. T. 29 Hanbury v. Cundy, 58 L. T. 155 . . . . Hanson v. Boothman, 13 East, 22 . Hardy v. Seyer, Cro. Eliz. 414 ..... Hare v. Elms, [1893] 1 Q. B. 604; 62 L. J. Q. B. 187 41 W. R. 297 ; 57 J. P. 309 ; 5 R. 189 V. Horton, 5 B. & Ad. 715 ... . Hargrave v. Hargrave, 9 Beav. 552 ; 23 id. 484 Hariock v. Ashberry, 19 Ch. D. 539 ; 51 L. J. Ch. 356 ; 30 W. R. 327 521 ; 51 L. T. . 241, 245 264; 17 Jur. . 72 . 82 J. Q. B. 317 . 249 . 233 J. Q. B. 239 . 30 55 L. T. 550 ; . 132, 254 . 265 3 D. & L. 164 65, 104 . 233 . 244 57, 58 . 105 . 56 223 ■ 116, 119 . 250 243, 244 394; 46 L. T. . ^21, 261 ; 68 L. T TABLE AND INDEX OF CASES. XXXVU I'AfiE Hariuau v. Kees Powell, 65 L. T. 255 ; 60 L. J. Q. B. 628 ; 56 J. 1*. 150 91 Harrington v. Wise, Cro. Eliz. 486 55 Harris v. Davison, 15 Sim. 128 ; 15 L. J. Cli. 255 ; 10 Jur. 257 145, 268 r. Jones, 1 M. k Rob. 173 83, 84 V. Mulkern, 1 Ex. D. 31 ; 45 L. J. Ex. 244 ; 34 L. T. 99 ; 24 W. R. 208 191 V. Pugh, 4 Bing. 335 ; 12 Moore, 577 145 Harrison v. Barrow, 63 L. T. 834 ; 39 W. R. 250 . . . 78, 79 r. Blades, 3 Camp. 457 229, 247 V. Good, 11 Eq. 338 ; 40 L. J. Cli. 294 ; 24 L. T. 263 ; 19 W. R. 346 90 Hartley v. Hudson, 4 C. P. D. 367 ; 48 L. J. C. P. 751 . . 65, 66, 99 V. Pehall, 1 Peake, 178 ; 3 R. E. 668 66 Hartshorne r. Watson, 4 B. N. C. 178 ; 5 Scott, 506 ; 2 Jur. 155 ; 6 Dowl. 404 67 Harvey v. Baker, 2 Dowl. N. S. 75 ; 6 Jur. 605 .... 267 'V. Brydges, 14 M. & W. 437 ; 14 L. J. Ex. 272 ; 3 D. & L. 55 ; 9 Jur. 759 10, 11 V. Mitchell, 2 M. & Rob. 366 250, 267 Harvie V. Oswel, Cro. Eliz. 553, 572 108,113 Hassell v. Gowthaite, Willes, 500 73, 74, 174 Hastings Union v. St. James, L. R. 1 Q. B. 38 ; 35 L J. M. C. 65 ; 6 B. & S. 914; 13 L. T. 362 ; 14 W. R. 175 ; 11 Jur. N. S. 977 36 Hatton V. Haywood, 9 Ch. 229 ; 43 L. J. Ch. 372 ; 29 L. T. 385 ; 30 id. 279 ; 22 W. R. 53, 356 145, 146 Havens v. Middleton, 10 Hare, 641 ; 22 L. J. Ch. 746 ; 17 Jur. 271 95 Havergill V. Hare, Cro. Jac. 510 173,174 Hawes v. Draeger, 2! Ch. D. 173 ; 52 L. J. Ch. 449 ; 48 L. T. 518 ; 31 W. R. 576 243, 244 Hawksbee v. Hawksbee, 11 Hare, 230 ; 23 L. J. Cb. 521 . . . 199 Hayne v. Cummings, 16 0. B. N. S. 421 ; 10 L. T.341 ; 10 Jur. N. S. 773 56 Heath v. Crealock, 18 E(i. 215 ; 10 Ch. 22 ; 44 L. J. Ch. 157 ; 43 id. 169 ; 31 L. T. 650 ; 29 id. 763 ; 23 W. R. 95 . . .136 V. Pryn, 1 Ventr. 14 238 V. Pugh, 6 Q. B. D. 345 ; 7 App. Cas. 235 ; 50 L. J. Q. B. 473 ; 44 L. T. 327 ; 46 id. 321 ; 29 W. R. 904 ; 30 id. 553 . 222 Hemingway v. Fernandes, 13 Sim. 228 ; 12 L. J. Ch. 130 ; 7 Jur. 888 65 Hemming v. Blanton, 42 L. J. C. P. 158 ; 21 W. R. 636 . . . 221 Henderson v. JMears, 28 L. J. Q. B. 305 ; 7 W. R. 554 ; 5 Jur. N. S. 709 . . 234 V. Squire, 10 B. & S. 183 ; L. R. 4 Q. B. 170 ; 38 L. J. Q. B. 73 ; 19 L. T. 601 ; 17 W. R. 519 .... 192 Hensman v. Fryer, 3 Ch. 420 ; 37 L. J. Ch. 97 ; 17 L. T. 394 . . 157 Hermitage v. Tomkins, 1 Raym. 729 136 XXXVlll TABLE AND INDEX OF CASES. PAGE Hemes v. Griffiths, 2 W. R. 72 138 Hey V. Moorhouse, 6 B. N. C. 52 ; 8 Scott, 156 ... 9, 10 Hey wood v. Heywood, 34 Beav. 317 ; 34 L. J. Ch. 317 ; 13 W. R. 514 ; 11 Jur. N. S. 633 165, 166 Hewitt V. Macartney, 13 Yes. 560 140 Hick, Re, 8 Taunt. 694 252 Hickman v. Isaacs, 4 L. T. 285 90 V. MacMn, 28 L. J. Ex. 310 ; 4 H. & N. 716 ; 5 Jur. N. S. 576 134, 135 V. Upsall, 20 Eq. 136 : 4 Ch. D. 144 ; 46 L. J. Ch. 245 ; 35 L. T. 919 ; 23 W. R. 776 ; 25 id. 175 242 Higginbotham v. Barton, 11 A. & E. 307 ; 3 P. & D. 194 ; 4 Jur. 432 136 Higham v. Ridgway, 2 Sm. L. C. 348 (Ed. 9) 229 Hildige v. Farrell, 8 L. R. Ir. 158 263 Hillv. Barclay, 16 Ves. 402 ; 18 id. 56 ; 11 R. R. 147 . . 127, 186 ^,. Cowdery, 1 H. & N. 360 ; 25 L. J. Ex. 285 . . . . 100 V. Edward, 1 C. & E. 481 99 V. Kempsball, 7 C. B. 975 71, 73 Hills V. Rowland, 4 De G. M. & G. 430 ; 22 L. J. Ch. 964 . . 103 Hindis V. Pollitt, 6 M. & W. 529 103 Hirst V. Horn, 6 M. & W. 393 38 Hitchman v. Walton, 4 M. & W. 409 ; 1 H. & H. 374 . . . 130 Hoar V. Loe, W. N. 1888, p. 241 261 Hobbs V. Wade, 36 Ch. D. 553 ; 57 L. J. Ch. 184 ; 58 L. T. 9 ; 36 W. R. 445 ' 195, 196, 208 Hobson, Re, 33 Ch. D. 493 ; 55 L. J. Ch. 754 ; 55 L. T. 255 ; 34 W. R. 786 147 Hoby V. Roebuck, 7 Taunt. 156 ; 2 Marsh. 433 66 Hodgins V. Hickson, 39 L. T. 644 26k! Hodgskin v. Queenborough, Willes, 129 234, 262 Hodgson V. Hooper, 3 E. & B. 149 ; 29 L. J. Q. B. 222 ; 6 Jur. N. S. 911 ; 8 W. R. 637 Hodle V. Healey, Mad. k G. 181 ; 1 V. & B. 536 Hodsoni'. Walker, L. R. 7 Ex. 55 ; 41 L. J. Ex.i51 ; 2 20 W. R. 489 Hogan-y. Hand, 14 Moore P. C. 310 ; 4 L. T. 565 ; 9 W Hogg V. Brooks, 15 Q. B. D. 256 ; 50 J. P. 118 V. Norris, 2 F. & F. 246 Holcomb V. Rawlins, Cro. Eliz. 540 .... Holcombe v. Hewson, 2 Camp. 391 ; 11 R. R. 746 . Holdfast V. Clapham, 1 T. R. 600 ; 1 R. R. 309 Holford V. Hatch, 1 Doug. 183 .... Holland v. Cole, 1 H. & C. 67 ; 31 L. J. Ex. 481 ; 6 L. T. 503 ; 10 W. R. 563 ; 8 Jur. N. S. 1066 Holmes v. Newlands, 11 A. & E. 44 ; 3 Q. B. 679 ; . 204 . 218 L. T. 937 ; . 277, 280 R. 673 . 204 35, 43 . 41, 228 . 192 . 102 . 188 . 79 . 81 P. & D. 128 194, 224 TABLE AND INDEX OF CASES. XXXIX PARE Holt V. Collyor, 16 C'h. I). 718 ; 50 L. J. Ch. Sll ; 44 L. T. 214 ; 29 W. R. 502 ; 45 J. P. 456 90 Home Stores v. Todd, 63 L. T. 829 99 Homes v. Pearce, 1 F. & F. 283 228 Hook V. Hook, 1 H. & M. 43 ; 32 L. J. Ch. 14 ; 7 L. T. 501 ; U W. R. 105 ; 9 Jiir. N. S. 42 169, 188 Hooper v. Clark, L. R. 2 Q. B. 200 ; 36 L. J. Q. B. 79 ; 15 W. It. 347 62, 64, 65 V. Cooke, 20 Beav. 639 ; 25 L. J. Cli. 62, 467 ; 1 Jur. N. S. 949; 2 id. 527 174 Hopcraft v. Keys, 9 Bing. 613 ; 2 M. & Sc, 760 . . . .31 Hopkins, ^a^jUrtrifi, 3 P. Wms. 182 175 Hornidge v. Wilson, 11 A. &E. 645 ; 3 P. & D. 641 . . . .64 Horsefnll v. Testar, 7 Taunt. 385 ; 1 Moore, 89 87 V. Mather, Holt N. P. 7 94 Horton v. Bott, 2 H. &N. 249 ; 26 L. J. Ex. 267 ; 3 Jiu-. N. S. 568 . 265 Hovenden v. Annesley, 2 Sch. & Lef. 617 . . . . 214, 215, 217 Howi;. Hall, 14 East, 274 ; 12 R. R. 515 251 Howard v. Shrewsbury, 17 £([. 378 ; 43 L. J. Ch. 495 ; 29 L. T. 863 ; 22 W. R. 290 2 V. Smith, 3 M. & Gr. 254 ; 3 Scott N. R. 574 ... 26 V. Wemsley, 6 Esp. 53 ; 9 R. R. 806 39 Howe V. Scarrott, 4 H. & N. 723 ; 28 L. J. Ex. 325 .... 33 Howitt V. Harrington, [1893] 2 Ch. 497 ; 62 L. J. Ch. 571 ; 68 L. T. 703; 41 W. R. 664 ; 3 R. 568 225 Hubbard v. Lees, L. R. 1 Ex. 255 ; 35 L. J. Ex. 169 ; 14 L. T. 442 ; 4 H. & C. 418 155, 246 Hudson V. Williams, 39 L. T. 632 85 Hughes and Crowther's Case, 13 Co. Rep. 66 . . . .50, 56 Hughes V. Metropolitan Rlwy., 1 C. P. D. 120 ; 2 App. Cas. 439 ; 45 L. J. C, P. 578 ; 46 id. 583 ; 35 L. T. 87 ; 36 id. 932 ; 24 W. 1!. 652 ; 25 mZ. 680 111,116,127 Hnngate v. Gascoigne, 2 Cooper, 405 246 Hunt V. Allgood, 10 C. B. N. S. 253 ; 30 L. J. C. P. 313 ; 4 L. T. 215 41 V, Bishop, 8 Exch. 675 ; 22 L. J. Ex. 337 . . 57, 65, 111 r. Cope, 1 Cowp. 242 234 V. Remnant, 9 Exch. 635 ; 23 L. J. Ex. 135 ; 18 Jur. 335 65, 111 Hunter v. Britts, 3 Camp. 455 ; 14 R. R. 807 191 V. Miller, 9 L. T. 159 104 Huntley v. Russell, 13 Q. B. 572 ; 18 L. J. Q. B. 239 ; 13 Jur. 837 . 93 Hurst V. Hurst, 4 Exch. 571 ; 19 L. J. Ex. 410. . . 95, 96, 98 Huson V. Hewson, 5 Ves. 105 ........ 140 Hutchins v. Scott, 2 M. & W. 809 ; M. & H. 194 . . . . 232 Hutton V. Warren, 1 M. & W. 466 ; 2 Gale, 71 .... 94 Hyatt i;. Griffiths, 17 Q. B. 505 49,56 Hyde v. Dallaway, 2 Hare, 528 219 V. Hill, 3 T. R. 377 98 xl TABLE AND INDEX OF CASES. PAGE Hyde v. Warden, 3 Ex. D. 72 ; 47 L. J. Ex. 121 ; 37 L. T. 567 . 58, 60, 62, 78 r. Watts, 12 M. & W. 254 ; 13 L. J. Ex. 41 ; 1 D. & L. 479 . 94 I BBS V. Richardson, 9 A. & E. 849 ; 1 P. & D. 618 ; 3 Jur. 102 .192 luchiquin v. Lyons, 20 L. R. Ir. 474 45 Incorporated Law Soc. v. Richards, 1 Dru. & W. 258 . . 210, 224 Ingilby V. Amcotts, 21 Beav. 585 ; 25 L. J. Ch. 769 ; 4 W. R. 433 ; 2 Jur. N. S. 556 164, 168 Irish Land Commission v. Grant, 10 App. Cas. 14 : L. K. 11 Ir. 430 ; 13 id. 478 ; 52 L. T. 228 ; 33 W. R. 357 . . 222, 223, 225 Isaacs ■;;. Diamond, W. N., 1880, p. 75 234, 254 Isherwood v. Oldknow, 3 M. & S. 382 62 Ive V. Scott, 9 Dowl. 993 ; 5 Jur. 552 192 JacjvMAN v. Hoddesdon, Cro. Eliz. 351 185 Jackson v. Northampton Trams, 55 L. T. 91 . . . . 55, 56 Jacobs V. Seward, L. R. 5 H. L. 464 ; 41 L. J. C. P. 221 ; 22 L. T. 690 ; 27 id. 185 ; 18 W. R. 953 178 Jacques v. Harrison, 12 Q. B. D. 136, 165 ; 53 L. J. Q. B. 137 ; 50 L. T. 246 ; 32 ^Y. R. 274, 470 121 James v. Dean, 11 Ves. 383 ; 15 id. 236 ; 8 R. R. 178 . . . 48 V. Salter, 2 B. N. C. 505 ; 3 id. 544 ; 2 Scott, 750 ; 1 Hodges 405 197, 199, 200, 225 V. Shrimpton, 1 P. D. 431 ; 45 L. J. Prob. 85 ; 35 L. T. 428 ; 24 W. R. 740 156 Jayne v. Hughes, 10 Exch. 430 ; 24 L. J. Ex. 115 . . . .210 V. Price, 5 Taunt. 326 ; 1 Marsh. 68 ; 15 R. R. 518 . 17, 227 Jeffrey v. Neale, L. R. 6 C. P. 240 ; 40 L. J. C. P. 191 ; 24 L. T. 362 ; 19 W. R. 700 65, 97 Jemmot v. Cooly, 1 Lev. 170 ; 1 Saund. 112c 131 Jenner v. Clegg, 1 M. & Rob. 213 45 Jervis v. Tomkinson, 1 H. & N. 195 ; 26 L. J. Ex. 41 . . . 105 Job V. Banister, 2 K. & J. 374 ; 26 L. J. Ch. 125 ; 3 Jur. N. S. 93 ; 5 W. R. 177 • . , . .127 Johnson v. Baker, 4 B. & Akl. 440 249 V. Hereford, 4 Ad. & E. 520 . . . . 6i, 82, 83 V. Lawsou, 2 Biug. 86 ; 9 Moore, 183 246 V. Mason, 1 Esp. 89 28 V. Warwick, 17 C. B. 516 ; 25 L. J. C. P. 102 . . . 162 Johnstone v. Hall, 2 K. & J. 414 ; 25 L. J. Ch. 462 ; 2 Jur. N. S. 780 89 V. Hudlestone, 4 B. & C. 922 ; 7 D. & R. 411 . 36, 50 JolJy V. Arbuthnott, 4 De G. & J. 224 ; 28 L. J. Ch. 547 ; 5 Jur. N. S. 689 28, 130, 132 TABLE AND INDEX OF CASES. xU PAGE Jones, Ex parte, 4 Y. & C. 466 207 V. Bone, 9 Eq. 674 ; 39 L. J. Ch. 405 ; 23 L. T. 304 ; 18 W. K. 489 90 V. Carter, 5 M. & "W. 718 ; 8 Q. B. 134 ; 15 L. J. Q. B. 97 ; 10 Jur. 33 67, 68, 113 V. Chapman, 14 M. & W. 124 ; 2 D. & L. 907 ; 14 L. J. Ex. 313 9, 11, 282 V. Curling, 13 Q. B. D. 262 ; 53 L. J. Q. B. 373 ; 50 L. T. 349 ; 32 W. R. 651 267 V. Foley, [1891] 1 Q. B. 730 ; 60 L. J. Q. B. 464 ; 64 L. T. 538 ; 39 W. R. 510 ; 55 J. P. 521 . 9, 10, 11, 13, 14, 282 • V. Galway, 11 Ir. L. R. 435 249 V. Green, 3 Y. & J. 298 104 V. Jones, 16 M. & W. 699 ; 5 D. & L. 494 ; 16 L. J. Ex. 299 ; 11 Jur. 335 209 V. Marsh, 4 T. R. 464 ; 2 R. R. 441 42 V. Mills, 10 C. B. N. S. 788 ; 31 L. J. C. P. 66 ; 8 Jur. N. S. 387 37, 52 V. Murphy, 2 J. & S. 323 42 V. Owen, 5 D. & L. 669 ; 18 L. J. Q. B. 8 ; 13 Jur. 261 . 274 V. Phipps, L. R. 3 Q. B. 567 ; 37 L. J. Q. B. 198 ; 18 L. T. 813 ; 9 B. & S. 761 ; 16 W. R. 1044 ... 40, 44, 236 V. Shears, 4 A. & E. 832 ; 2 H. & W. 43 ; 6 N. & M. 428 . 105 V. Thomas, 4 L. T. 210 274 V. Thorne, 1 B. & C. 715 ; 3 D. & R. 152 . , . . 90 V. Williams, 2 M. & W. 326 ; 6 L. J. Ex. 107 .. . 228 Jordan v. Chowns, 8 Dowl. 709 141 Jumpsen r. Pitchers, 13 Sim. 327 199,211 Kearsley v. Phillips, 11 Q. B. D. 621 ; 52 L. J. Q. B. 581 ; 49 L. T. 435 ; 31 W. E. 909 132 Keating y. Sparrow, 1 B. & B., Ir. Ch. Rep. 367 .... 124 Keech v. Hall, 1 Doug. 21 ; 1 Sm. L. C. 546 (yth ed.) . 130, 131, 134 KeefiFe v. Kirhy, 6 Ir. C. L. R. 591 199 Keene v. Angel, 5 T. R. 740 267 Kehoe v. Lansdowne, [1893] A. C. 451 ; 62 L. J. P. C. 97 ; 57 J. P. 708 ; 1 R. 294 55 Kelly V. Morray, L. R. 1 C. P. 667 ; 35 L. J. C. P. 287 ; 14 L. T. 624 ; 14 W. R. 939 ; 12 Jur. N. S. 769 . . . .172 V. Patterrson, L. R. 9 C. P. 681 ; 43 L. J. C. P. 320 ; 30 L. T. 842 38, 49 Kemp V. Derrett, 3 Camp. 510 ; 14 R. R. 820 36 V. Soher, 1 Sim. N. S. 517 ; 20 L. J. Ch. 602 ; 15 Jur. 458 . 89 Kendrick v. Roberts, 46 L. T. 59 ; 30 AV. R. 365 ... , 262 Kennedy v. Lyell, 15 Q. B. D. 491 ; 53 L. T. 466 . . . . 210 Kerkin I'.Kerkin, 3 E. & B. 399 ; 18 Jur. 813 275 Kernaghan v. M'Nally, 12 Ir. Ch. Rep. 89 199 xlii TABLE AND INDEX OF CASES. Keyse v. Powell, 2 E. & B. 132 ; 22 L. J. Q. B. 305 Kidner v. Keith, 15 C. B. N. S. 35 . Kidney v. Cockbuni, 2 R. & Mj. 167 Kidwelly v. Brand, Plowd. 69 . Kingsdale v. Maim, 6 Mod. 27 . Kingston's Case, 2 Sm. L. C. 812 (ed. 9) . Kinnaird v. Trollope, 39 Ch. D. 636 ; 57 L. J. Ch. 905 ; 59 L 37 W. R. 234 Kinnersley v. Orpe, 1 Doug. 56 Kinsman v. Jackson, 42 L. T. 80, 558 ; 28 W. R. 33 V. Rouse, 17 Ch. D. 104 ; 50 L. J. Ch 29 W. R. 627 Kitching v. Kitehing, 24 W. R. 901 . Knight V. Clarke, 15 Q. B. D. 294 ; 54 L. J. Q. B. 509 ; 84 V. Cox, 18 C. B. 645 ; 25 L. J. C. P. 314 V. Mory, Cro. Eliz. 6U . Knipe v. Palmer, 2 Wils. 130 . Kynnaird v. Leslie, L. R. 1 C. P. 389 ; 35 L. J. C. P. 226 ; 756 ; 14 W. R. 761 ; 12 Jur. N. S. 468 . Laoey v. Hill, 19 Eq. 346 ; 44 L. J. Ch. 215 ; 32 L. T. 48 ; 23 W, R. 285 152 Lacon v. Hooper, 6 T. R. 224 ; 1 Esp. 246 182 V. Tyrrell, W. N. 1887, p. 71 ; 56 L. T. 483 . . . . 261 Like V. Biflers, 1 Ld. Ray. 733 147 V. Currie, 2 De G. M. & G. 536 ; 16 Jur. 1027 . . . .158 Lambert, Re, 56 L. J. Ch. 122 ; 56 L. T. 15 . . . . 241, 246 V. Norris, 2 M. & W. 333 ; 1 Jur. 24 66 Langdale v. Rriggs, 8 De G. M. & G. 391 ; 3 Sm. & G. 246 ; 25 L. J. Ch. 100 ; 26 id. 27 ; 4 W. R. 144, 703 ; 2 Jur. N. S. 35, 982 . 153, 240 Langridge v. Payne, 2 J. & H. 423 ; 7 L. T 23 ; 10 W. R. 726 . 139 Latham r. Spedding, 2 L. M. & P. 378 ; 17 Q. B. 440 ; 20 L. J. Q. B. 302 ; 15 Jur. 576 275 Lauderdale Peerage, 10 App. Cas. 692 245, 246 Law V. Bagwell, 4 Dr. & War. 398 214, 215 Lawrenee v. Hogben, 26 L. J. Ex. 55 142 Lawrie v. Lees, 14 Ch. D. 249 ; 49 L. J. Ch. 636 ; 42 L. T. 485 ; 28 W. R, 779 114 Leeds v. Cheetham, 1 Sim. 146 85 V. Cook, 4 Esp. 256 ; 6 R. R. 855 251 Lfgge V. Edmonds, 25 L. J. Ch. 125 243, 244, 245 Legh V. Hewitt, 4 East, 154 ; 7 R. R. 545 ... . 94, 103 Leigli V. Jack, 5 Ex. D. 264 ; 49 L, J. Q. B. 220; 42 L. T. 463 ; 28 W. R. 452 : 44 J. P. 488 195, 198 TABLE AND INDEX OF CASES. xliii PAGE Lehmann v. JIcArtluir, 3 Eq. 746 ; 3 Ch. 496 ; 16 L. T. 196 ; 15 W. R. 551 55, 7S 79 Leplii r. Rogers, [1893] 1 Q. B. 31 ; 68 L. T. 584 ; 57 J. P. 55 ; 5 R. 57 78 Levy, lie, 30 Ch. D. 119 ; 54 L. J. Cli. 968 ; 53 L. T. 200 ; 33 "VV. ll. 893 100 Lewes, Ee, 11 Eq. 236 ; 6 Ch. 356 ; 40 L. J. Ch. 602 ; 23 L. T. 692 ; 24 id. 533 ; 19 W. R. 195, 617 242 Lewiii r. Wilson, 11 App, Cas. 639 ; 55 L. J. P. C. 75 ; 55 L. T. 410 221 Lewis V. Fothergill, 5 Ch. 103 105 V. Thomas, 3 Hare, 26 -.^11? Ley V. Peter, 3 H. L N. 101 ; 27 L. J. Ex. 239 ... 209, 210 Liddy v. Kennedy, L. R. 5 H. L. 134 ; 20 W. R. 150 . . . 49 LUley V. Harvey, 17 L. J. Q. B. 357 ; 5 D. & L. 648 ; 12 Jur. 1026 . 275 Limerick v. Limerick, 32 L. J. P. & M. 92 ; 11 W. R. 503 . . 241 Lisbm-ne v. Davies, L. R. 1 C. P. 259 ; 35 L. J. C. P. 193; 13 L. T. 795 ; 14 AV. R. 333 ; 12 Jur. N. S. 340 . . . . 33, 34 Lister v. Lane, [1893] 2 Q. B. 212 ; 62 L. J. Q. B. 583 ; 69 L. T. 176 ; 41 W. R. 626 ; 57 J. P. 725 ; 4 R. 474 . . . . 83 V. Pickford, 34 Beav. 576 ; 34 L. J. Ch. 582 ; 12 L. T. 587 ; 13 W. R. 827 ; 11 Jur. N. S. 649 214 Litchfield v. Ready, 5 Exch. 939 ; 20 L. J. Ex. 51 . . . 128, 190 Llewellyn v. Mackworth, 2 Eq. Cas. Abr. 578 215 Lloyd V. Jones, 6 C. B. 81 ; 17 L. J. C. P. 206 ; 5 D. & L. 784; 12 Jur. 657 268, 275 Loader v. Kemp, 2 C. & P. 375 83 Lock V. Pearce, [1893] 2 Ch. 271 ; 62 L. J. Ch. 582 ; 68 L. T. 569 ; 41 W. R. 369; 2 R. 403 121, 125, 126, 127 Locke V. Matthews, 13 C. B. N. S. 753 ; 32 L. J. C. P. 98 ; 7 L. T. 824 ; 11 W. R. 343 ; 9 Jur. N. S. 875 .. . 47, 204. 207 Locking v. Parker, 8 Ch. 30 ; 42 L. J. Ch. 257 ; 27 L. T. 635 ; 21 W. R. 113 216, 220 Lockwood V. Wilson, 43 L. J. C. P. 179 ; 30 L. T. 761 ; 22 W. R. 919 97 Lofft V. Dennis, 1 E. & E. 474 ; 28 L. J. Q. B. 168 ; 5 Jur. N. S. 727 85 L. & N. \V. R. V. Garnett, 9 Eq. 26 ; 39 L. J. Ch. 25 ; 21 L. T. 352 ; 18 W. R. 246 90 V. "West, L. R. 2 C. P. 553 ; 36 L. J. C. P. 245 . 28, 32 London Co. v. Field, 16 Ch. D. 645 ; 50 L. J. Ch. 549 ; 44 L. T. 444 90 London .S: Westminster Bank v. L. & N. W. R., [1893] 2 Q. B. 49 ; 62 L. J. Q. B. 370 ; 69 L. T. 320 ; 41 W. R. 670 ; 5 R. 425 . 72 Longford v. Eyre, 1 P. Wms. 740 239 Lougher v. Williams, 2 Lev. 92 64 Lovat Peerage, 10 App. Cas. 763 ...... 245, 216 Lovelock V. Doucaster, 4 T. R. 122 ; 3 id. 783 . . . . 256, 257 xliv TABLE AND INDEX OF CASES. PAGE Low V. Innes, 4 De G. J. & S. 286 101 Lowe V. JoUiffe, 1 W. BL 3 5 '239 Lowndes v. Fountain, 11 Exch. 487; 25 L. J. Ex. 49 . . . 103 Lows V. Telford, 1 App. Cas. 414; 45 L. J. Q. B. 613 ; 35 L. T. 69 . 9, 10, 13, 16, 134 Lowtlial V. Tonkins, 2 Eq. Cas. Abr. 380 146 Lowther v. Heaver, 41 Ch. D. 248 ; 58 L. J. Ch. 482 ; 60 L. T. 310 59 id. 631 ; 37 AV. R. 55, 465 2 Lucas u Dennison, 13 Sira. 584 ....... 218 Ludlow, Ex parte, 2 P. Wnis. 635 ; 2 Atk. 407 .... 175 Lukert?. Dennis, 7 Ch. D. 227 ; 47 L. J. Ch. 174 ; 37 L. T. 827 ; 26 W. R. 167 102 Luraley v. Metropolitan R. C, 34 L. T. 774 91 Luxmore v. Robson, 1 B. & Aid. 584 84 Lyell V. Kennedy, 8 App. Cas. 217 ; 20 Ch. 1). 484 ; 52 L. J. Ch. 385 : 51 id. 409 ; 48 L. T. 585 ; 46 id. 752 ; 31 W, R. 618 ; 30 id. 493 . . . 264, 265 V. , 14 App. Cas. 437 ; 18 Q. B. D. 796 ; 59 L. J. Q. B. 268 ; 56 id. b03 ; 56 L. T. 647 ; 35 W. R. 725 . 195, 206, 218, 225, 243 M-Craw v. Gentry, 3 Camp. 232 247 M'DonneUu M'Kinty, 10 Ir. L. R. 514 194 Al'lntosh-y. Fontypridd Co., 61 L. J. Q. B. 164 . . . , 87 Maddon v. White, 2 T. R. 159 ; 1 R. R. 453 . . . . 35, 168 Magdalen ColL v. A.-G., 6 H. L. C. 189; 26 L. J. Ch. 620; 3 Jur. N. S. 675 214, 216, 225, 226 Magdalen Hospital v. Knotts, 8 Ch. D. 709 : L. J. Ch. 726 ; 48 id. 579 ; 38 L. T. 624 141, 640 Mahon V. Miles, 30 W. E. 123 ; 45 L. T. 540 Malloon v. Fitzgerald, 3 Mod. 29 Mallory's Case, 5 Co. Rep. ] 1 1 b. Manby v. Bewicke, 3 K. & J. 342 Manchester Warehouse v. Carr, 5 C. P. D. 507 ; 49 L. J. C. P. 809 ; 43 L. T. 476 ; 29 W. R. 354 85, 93 Manchester & Liverpool Bank v. Parkinson, 22 Q. B. D. 173 ; 58 L. J. Q. B. 262 ; 60 L. T. 258 ; 37 W. R. 264 . . . . 149 Maudeville's Case, Co. Lit. 26 b 166 Mauisty v. Kenealy, 24 W. K. 918 262 Manners v. Johnson, 1 Ch. D. 673 ; 45 L. J. Ch. 404 ; 24 W. R. 481. 101 Manning v. Fitzgerald, 29 L. J. Ex. 24 ; 1 F. & F. 633 ■ . . . 229 V. Lunn, 2 C. & K. 13 97 24 L. J. Ex. 62 . . . ,225 p. 34 253 6 Scott, 277 ; 1 Arn. 198 . 82, 83 4 App. Cas. 324 ; 47 40 id. 466 ; 26 W. R. 31, 194, 197, 203, 228 . 148 . 203 . 63 . 217 V. Phelps, 10 Exch. 59 Mansergh v. Riniell, W. N. 1884, Mantz V. Goring, 4 B. N. C. 451 Margary v. Robinson, 12 P. D. 8 ; 56 L. J. Prcb. 42 ; 57 L. T. 281 35 W. R. 350 ; 51J. P. 407 154 TABLE AND INDEX OF CASES. xlv Markey v. Coote, 10 Ir. Rep. C. L. 149 . Markwick v. Hardingham, 15 Cli. D. 339 ; 43 L. T. 647 361 Marsh v. Curteys, 2 Cro. Eliz. 52S . V. De\i'es, 17 Jiir. 558 ..... Marshall V. Smith, 10 Jnr. N. S. 1174 ; 34 L. J. Ch. 189 443 ; 13 AV. R. 198 Marston v. Downes, 1 A. & E. 31 ; 3 X. & M. 861 ; 6 C. & Martin v. Gilliam, 7 A. & E. 540 : 2 N. & P. 568 V. Smith, 27 L, J. Ex. 317 .... Martyn v. Clue, 18 Q. B. 661 ; 22 L. J. Q. B. 147 . V. Podger, 5 Burr. 2631 ; 2 W. Bl. 701 . V. Williams, 1 H. & N. 817 ; 26 L. J. Ex. 117 Mason v. Cole, 4 Exch. 375 ; 18 L. J. Ex, 478 . V. Farnell, 12 M. & W. 674 ; 13 L. J. Ex. 142 ; 1 D. & L. 576 I'AOK . 48 29 W. R. 209, 218, 224 , 108, 109 . 275 ; 11 L. T. . 197 P. 381 . 250, 251 V. Mason, 1 Mer. 308 V. Paynter, 1 Q. B. 974 ; 1 G. & D. 381 ; 6 Jnr. 214 Massey r. Goodnll, 17 Q. B. 310 ; 20 L. J. Q. B. 526; 15 Jur. Mathews v. Whetton, Cro. Car. 233 Matthew v. Osborne, 13 C. B. 919 ; 22 L. J. C. P. 241 991 . 94 . 147 64, 86 . 147 62, 64 . 101 30, 235 242 266 103 186 17 Jiu-. 696 187, 191 Maugham r. Hubbard, 8 B. & C. 14 ; 2 M & Ry. 5 . . . . 248 Maund v. Monmouth, Car. & Mar. 606 ; 4 M. & Gr. 452 ; 2 Dowl. N. S. 113 ; 5 Scott N. R. 457 ; 6 Jur. 932 19 Mannsell v. Hort, 1 L. R. Ir. 88 86, 92, 93 May i\ May, 2 Str. 1073 2^6 Meath v. Cuthbert, Ir. Rep. 10 C. L. 395 85 V. Winchester, 3 B. N. C. 183 248 Meek v. Carter, 4 Jur. N. S. 992 ; 6 W. R. 852 . . 94, 116, 127 Mellers v. Devonshire, 16 Beav. 252 ; 22 L. J. Ch. 310 ; 1 W. R. 44 105 Melling v. Leak, 16 C. B. 652 ; 24 L. J. C. P, 187 ; 3 C. L. R. 1U17 : 1 Jur. N. S. 759 48, 216 Mellish V. Brook, 3 Beav. 22 225 . 46 186, 188 . 175 . 11 . 132 795 ; 163, Mellor V. Watkins, L. R. 9 Q. B. 400 ; 23 W. R. 55 . Melwich v. Luter, 4 Co. Lit. 26 a ; Cro. Eliz. 102 , Mendes v. Mendes, 1 Yes. Sen. 89 ; 3 Atk. 619. Merest v. Harvey, 5 Taunt. 442 ; 1 Marsh, 139 ; 15 R. R. 548 Metropolitan As.surance Soc. v. Brown, 28 L. J. Ex. 340 . Metters v. Brown, 1 H. & C. 686 ; 32 L. J. Ex. 138 ; 7 L. T 11 W. R. 429 ; 9 Jur. K S. 416 163, 228 Meux r. Cobley, [1892] 2 Ch. 253 ; 61 L. J. Ch. 449 ; 66 L. T. 86 . 104 Meyer v. Sefton, 2 Stark. 274 250 Midletoni;. Power, 19 L. R. Ir. 1 112 Miles V. Murphy, Ir. Rep. 5 C. L. 382 40, 41 — V. Tobin, 17 L. T. 432 ; 16 W. R. 465 114 Milfax V. Baker, 1 Lev. 26 186 xlvi TABLE AND INDEX OF CASES. V. Capel, 20 Eq. 592 ; 44 L. J. Ch. 674 ; 33 L. T. 158 Mills, Ee, 34 Ch. D. 186 ; 56 L. J. Ch. 118 ; 55 L. T. 665 ; 35 W. R. 133 158 . 213 . 38 M. & . 251 14, 18 . 256 N. S. 249 ; 2 D. & L. 23 3 Dowl. 722 ; 2 C, J. E X. 194 ; 4 Jur. 1038 676 607 ; 3 T. R. 558 ; - V. Goff, 14 M. & W. 72 ; 14 L. J. Ex - V. Oddy, 6 C. & P. 728 ; 1 Gale, 92 R. 103 Milner v. Maclean, 2 C. & P. 17 Minet v. Johnson, 63 L. T. 507 . Minshull v. Oakes, 2 H. & N. 793 ; 27 L. 169 Minton v. Geiger, 28 L. T. 449 Mitchison v. Thomson, 1 C. & E. 72 . Moase v. White, 3 Ch. D. 763 ; 24 W. R. Moises V. Thornton, 8 T. R. 303 Molineux v. Molineux, Cro. Jac. 144. Mollett V. Brayne, 2 Camp. 103 ; 11 R. R Monk V. Butler, 1 Roll. R. 83 . JSToyes, 1 C. & P. 265 . Monkton r. A. G., 2 R. & My. 247 . Moons V. De Bernales, 1 Russ. 301 . Jloor V. Deiin, 2 B. & P. 247 ; 7 Bro. P. C 175 . V. Raisbeck, 12 Sim. 123 Moore v. Clark, 5 Taunt. 90 V. Plymouth, 3 B. & Aid. 66 ; 1 Moore, 346 ; 7 Taunt. 614 . V. Woolsey, 4 E. & B. 243 ; 3 C. L. R. 207 ; 24 L. J. Q. B. 40 ; 1 Jur. N. S. 468 More's case, Cro. Eliz. 26 Morgan v. Davies, 3 C. P. D. 260 ; 26 W. R. 816 . . . 36, 39 V. Morgan, 10 Eq. 99 ; 39 L. J. Ch. 493 ; 22 L. T. 595 ; 18 W. R. 744 215 V. Swansea, 9 Ch. D. 582 ; 27 W. R. 283 . . . . 169 V. Thomas, 8 Exch. 302 ; 22 L. J. Ex. 152 ; 17 Jur. 283 . 163 MorreU v. Frith, 3 M. & W. 402 ; 8 C. & P. 246 ; 7 L. J. Ex. 172 ; 2 Jur. 619 ; 1 H. & H. 100 210 Morris v. Davies, 1 CI. & F. 163 ; 1 Jur. 911 . . . . 243, 244 V. Ogdeu, L. R. 4 C. P. 687 ; 38 L. J. C. P. 329 ; 20 L. T. 978 ; 17 W. R. 1103 V. Smith, 3 Doug. 279 Morrison v. Chadwick, 7 C. B. 266 ; 6 D. & L. 567 ; 18 L. J. C. P. 189 ; 13 Jur. 638 Mortimer v. McCallan, 6 M. & W. 58 ; 9 L. J. Ex. 73 ; 4 Jur. 633 . Morton v. Woods, L. R. 3 Q. B. 658 ; 4 id. 293 ; 37 L. J. Q. B. 242 : 38 id. 81 ; 9 B. & S. 632, 650 ; 16 W. R. 979 ; 17 id. 414 ; 18 L. T. 791 . . . 28, 132, 133 Moss V. Gallimore, 1 Sm. L. C. 604 (ed. 9) ; 1 Doug. 279 . 133, 134, 136 V. James, 37 L. T. 715 ; 47 L. J. Q. B. 160 . , . .51 . 64 . 230 . 126 . 158 . 249 . 73 50, 51 . 179 . 87 245, 246 . 241 6 id. . 268 . 157 . 85 60 84 81 179 105 111 250 TABLE AND INDEX OF CASES. xlvil PAGE Mountnoy v. Collier, 1 E. & B. 630 ; 22 L. J. Q. B. 124 ; 17 Jur. 503 31, 229, 275 Moyle V. Mayle, Owen 66 93 Muggleton v. Baniett, 1 H. & N. 282 ; 2 id. 653 ; 26 L. J. Ex. 47 ; 27 id. 125 : 2 Jur. N. S. 1026 ; 4 id. 139 ; 6 AV. R. 182 . 169, 1S3 Jlulcarry v. Eyres, Cro. Car. 511 107 Mulckern v. Doerks, 53^ L. J. Q. B. 526 ; 51 L. T. 429 . . . 2)1 Mumford v. Collier, 25 Q. B. D. 279 ; 38 AV. R. 716 ; 59 L. J. Q. B. 552 1:31 Municipal Soc. v. Smith, 22 Q. B. D. 70 ; 58 L. J. Q. B. 61 ; 37 AV. R. 42 135 Munn V. Godbold, 3 Bing. 292 250 Mimro V. Munro, 7 CI. & Fin. 842 163 Murphy r. Murphy, 15 Ir. C. L. R. 205 ; 31 L. J. Mat 162 . . 208 Murray v. Milner, 12 Ch. D. 845 ; 48 L. J. Ch. 775 ; 41 L. T. 213 ; 27 AV. R. 881 245 v. Stair, 2 B. & C. 82 ; 3 D. & R. 278 250 Musgrave v. Stevens, AV, N. 1881, p. 163 261 Nanson v. Barnes, 7 Eq. 250 ; 20 L. T. 154 ; 17 AA^ R. 429 , . 166 National Provincial Bank v. Jackson, 33 Ch. D. 1 ; 55 L. T. 458 ; 34 AV. R. 597 249 Naylor v. Collinge, 1 Taunt. 19 ; 9 R. R. 691 87 Neal V. AA'ilding, 2 Str. 1151 246 Neale v. Ratclitf, 15 Q. B. 916 ; 20 L. J. Q. B. 130 ; 15 Jur. 166 . 86 Neate v. Pickard, 2 Notes of Cases, 406 156 Neave v. Moss, 1 Bing. 360 ; 8 Moore, 389 31 Nelson V. Hopkins, 21 L. J. Ch. 410. . ." . . . .158 Nepean v. Doe, 2 Sm. L. C. 610 (ed. 9) ; 2 M. & AV. 894 . 194, 204, 205, 206 New British Co. v. Peed, 3 C. P. D. 196 ; 26 AV. R. 354 . . . 264 Newbould v. Smith, 33 Ch. D. 127 ; 55 L. J. Ch. 788 ; 55 L. T. 194 ; 34 A\''. R. 690 221 Newby v. Sharpe, 8 Ch. D. 39 ; 47 L. J. Ch. 617 ; 38 L. T. 583 ; 26 AV. R. 685 234 Newcastle, Re, 8 Eq. 700 ; 39 L. J. Ch. 68 ; 21 L. T. 343 ; 18 AV. R. 8 145 Newitt, Ex parte, 16 Ch. D. 522 ; 44 L. T. 5 ; 29 AA^ R. 344 . 108, 112 Newson v. Smythies, 1 F. & F. 477 ; 3 H. & N. 840 ; 28 L. J. Ex. 97 103 Newton v. Chaplin, 10 C. B. 356 ; 19 L. J. G. P. 374 .. . 251 V. Harland, 1 Scott, N. R. 474 ; 1 M. & Gr. 644 ; 2 Jur. 350 11. 13 V. Nock, 43 L. T. 197 105 Nichols u Hawkes, 10 Hare, 342 159 Nicloson V. AVordsworth, 2 Swanst. 365 161 xlviii TABLE AND INDEX OF CASES. PAGE Nicoll V. Feiiniiig, 19 Ch. D. 258 ; 51 L. J. Cli. 166 ; 45 L. T. 738 ; 30 W. R. 95 90 Nind V. Nineteenth Century, [189i] 1 Q. B. 472; [1894] 2 Q. B. 226 ; 9 R. 220 ; 70 L. T. 831 122, 124 Nixon V. Freeman, 5 H. & N. 652 ; 29 L. J. Ex. 273 ; 6 Jur. N. S. 983 235 Noel V. Robinson, 1 Yern. 90 ; 2 Vent. 358 ; 2 Ch. Cas. 145 ; 2 Ch. Rep. 128 235 Nokes V. Gibbon, 26 L. J. Ch. 433 ; 3 Drew. 681 ; 3 Jur. N. S. 726... 84, 127 North London Freehold Co. v. Jacques. W. N. 1883, p. 187 ; 49 L. T. 659 ; 32 W. R. 283 ; 48 J. P. 405 ... 121, 124, 126 Norton v. L. & N. W. R., 13 Ch. D. 268 ; 47 L. J. Ch. 859 ; 41 L. T. 28 W. R. 173 ; 44 J. P. 22 195 Norval v. Pascoe, 34 L. J. Ch. 82 ; 10 L. T. 809 ; 12 W. R. 973 ; 10 Jur. N. S. 792 62 Nottingham v. Tomkinson, 4 C. P. D. 343 : 48 L. J. M. C. 174 ; 28 W. R. 151 244 Oakapple v. Copous, 4 T. R. 361 ....... 4S Oakley v. Monek, L. R. 1 Ex. 159 ; 3 H. & C. 706 ; 4 id. 251 ; 34 L. J. Ex. 137 ; 35 id. 87 ; 14 L. T. 20 ; 12 id. 465 ; 14 W. R. 406 ; 13 id. 721 ; 11 Jur. N. S. 376 134 Oastler v. Henderson, 2 Q. B. D. 575 ; 46 L. J. Q. B. 607 ; 37 L. T. 22 51 Oates V. Brydon, 3 Burr. 1895 178 Owen V. de Beauvoir, 16 M. & W. 547 ; 5 Exch. 166; 11 Jur. 458 ; 19 L. J. Ex. 177 197, 198 V. Williams, 32 L.. J. P. U. & A. 159 ; 9 L. T. 86 ; 11 AY. R. 808 239 Pack v. Tarpley, 9 A. & E. 468 ; 1 P. & D. 478 ; 2 W. W. & H. 88 237 Paddingtou Charities, Re, 8 Sim. 629 ; 7 L. J. Ch. 44 ; 2 Jur. 344 180, 181 Paddock, v. Fradley, 1 C. & J. 90 230 Paine v. Edwards, 8 Jur. N. S. 1200 139 V. Jones, 18 Eq. 320 ; 43 L. J. Ch. 787 ; 30 L. T. 779 ; 22 AY. R. 837 199 Palmer v. Earith, 14 M. & AY. 428 ; 14 L. J. Ex. 256 . . 96, 97 V. Hendvie, 27 Renv. 349 ; 28 id. 341 138 V. Palmer, 18 L. R. Ir. 192 241 Papendick v. Bridgwater, 5 E. & B. 166 ; 24 L. J. Q. B. 289 ; 1 Jur. N. S. 657 ; 3 AY. R. 490 229 Papillon V. Brunton, 5 H. & N. 518 ; 29 L. J. Ex. 265 ; 2 L. T. 326 42, 43 Paradine v. Jane, Aleyn, 26 234 Pargetor v. Harris, 7 Q. B. 708 ; 15 L. J. Q. B. 113 ; 10 Jur. 260 . 28 TABLE AND INDEX OF CASES. xlix PAGE Parish V. Slceman, 1 De G. F. & G. 326 ; 29 L. ,T. Ch. 53, 96 ; 1 L. T. 24, 506 ; 8 W. R. 166 ; 5 Jur. N. S. 1198 ; 6 id. 3S5 . 96, 97 Parker, re, 1 Sw. & Tr. 523 161 V. Manning, 7 T. R. 537 27 V. Webb, 3 Salk 5 64 Parkinson v. Francis, 15 Sim. 160 241 V. Potter, 16 Q. B. D. 152 ; 55 L. J. Q. B. 153 ; 53 L. T. 818; 34 W. R. 215 98 Parraenter v. Webber, 8 Taimt. 593 ; 2 Mooro 656 . . . .79 Parson v. Sexton, 4 C. B. 899 ; 16 L. J. G. P. 181 ; 11 Jur. 849 ; 2 C. & K. 266 84 Partington v. Woodcock, 6 A. & E. 690 ; 5 N. & M. 672 ; 1 H. & W. 262 134, 135 Partridge v. Bare, 5 B. & Aid. 604 ; 1 D. & R. 272 . . . . 130 Paterson v. Mills, 19 L. J. Ch. 310 ; 15 Jnr. 1 165 Paul V. Nurse, 8 B. & C. 486 ; 2 M, & Ry. 525 ... 64, 65 Paull V. Simpson, 9 Q. B. 365 ; 15 L. J. Q. B. 382 ; 11 Jur. 13 . 232 Payne v. Burridge, 12 M. & W. 727 ; 13 L. J. Ex. 191 . . 98, 99 V. Haine, 16 M. & W. 541 ; 16 L. J. Ex. 130 . . 82, 83 Paynter u Carew, Kay, xxxvi. appendix . . . . . .138 ^Peaceable v. Watson, 4 Taunt 16 ; 13 R. R. 552 . . 26, 227, 229 Peachy v. Somerset, 1 Str. 447 ; 2 Wh. & Tud. L. C. 1245 (ed. 6) 184, 185, 186 Pearce v. Hooper, 3 Taunt. 60 248 Pearse v. Boulter, 2 F. & F. 133 43 'Pearse v. Coaker, L. R. 4 Ex. 92 ; 38 L. J. Ex. 82 ; 20 L. T. 82.. 191, 192 Pearson v. Glazebrook, L. R. 3 Ex. 27 ; 37 L. J. Ex. 15 ; 17 L. T. 260 274 V. A. G., 53 L. T. 707 242, 245 Pease v. Coats, 2 Eq. 688 ; 36 L. J. Ch. 57 ; 12 Jur. N. S. 684 ; 14 L. T. 886 ; 14 W. R. 1021 90 Redder v. Hunt, 18 Q. B D. 565 ; 56 L. J. Q. B. 212 ; 56 L. T. 6S7 ; 35 W. R. 371 202 Pedler v. Paige, 1 M. & Rob. 258 247 Pellatt V. Boosey, 31 L. J. C. P. 281 ; 8 Jur. N. S. 1107 . 108, 109, 110, 111, 233 Pelley ■;;. Bascombe, 34 L. J. Ch. 233 ; 9 Jur. N. S. 1120 ; 11 id. 52 ; 13 W. R. 306 ; 4 Giff. 390 195, 196 Pembroke v. Berkeley, Cro. Eliz. 384 55 Pendleton v. Rooth, 1 De G. F. & J. 81 ; 1 Gitt'. 35 ; 29 L. J. Ch. 265 ; 5 Jur. N. S. 840 ; 6 id. 182 : 8 W. R. 101 .. . 218 Pendrell v. Pendrell, 2 Str. 924 ■. .246 Pennant's case, 3 Co. Rep. 64a 107,112 Penney v. Todd, 26 W. R. 502 196 Pennial v. Harborne, 11 Q. B. 368 ; 17 L. J. Q. B. 94 ; 12 Jur. 159 94, 95, 112, 114 Pennock v. Pennock, 13 Eq. 144 ; 41 L. J. Ch. 141 ; 25 L. T. 691 ; 20 W. R. 141 159 W.Y.E. d TABLE AND INDEX OF CASES. 22 L. T. Ill , 21 18 ; 31 L. J. C. P. 235 523 . J. Q. B. 135 ; 39 L. L. J. C. P. 13: 29 T. Penny v. Allen, 7 De G. M. & G. 409 ; 3 Jur. N. S. 273 Penry v. Brown, 2 Stark. 403 Pentland v. Stokes, 2 Ball & B. 68 . Perry v. Davis, 3 C. B. N. S. 769 . Petre v. Petre, 1 Drew. 371 ; 15 Jur. 693 . Phene, re, 5 Ch. 139 ; 39 L. J. Cli. 316 303 Phene v. Popplewell, 12 C. B. N. S. 334 N. S. 1104 ; 6 L. T. 247 ; 10 W. R. Philips V. Philips, 4 Q. B. D. 127 ; 48 L. 40 id. 815 ; 27 W. R. 436, 939 . Phillips V. Bridge, L. R. 9 C. P. 48 ; 43 692 ; 22 W. R. 237 ... V. Hartley, 3 C. & P. 121 . . . . V. Pearce, 5 B. & C. 433 ; 8 D. & R. 43 r. Smith, 14 M & W. 589 ; 15 L. J. Ex. 201 Phillipson v. Gibbon, 6 Ch. 428 ; 40 L. J. Ch. 406 ; 24 L, 19 W. R. 661 Philpot T. Hoare, 2 Atk. 219 Phipps V. Sculthorpe, 1 B. & Aid. 50 ... . Pickard v. Sears, 6 A. & E. 469 ; Pilcher, re, 11 Ch. D. 905 ; 48 L. R. 789 ... . Pilton, cximrtc, 1 B. & Aid. 369 Pinhorn v. Souster, 8 Exch. 763 ; Pinney v. Pinney, 8 B. & C. 335 Pitt V. Dacre, 3 Ch. D. 295 : 45 L. J. Ch. 796 ; 24 W. R. 943 Plant V. Taylor, 7 H. & N. 211 ; 31 L. J. Ex. 289 ; 5 L. T 8 Jnr. N. S. 140 Playfair v. Musgrove, 14 M. & W. 239 ; 15 L. J. Ex. 26 ; 3 D 72 ; 9 Jur. 783 Pleasant %\ Benson, 14 East 234 ; 12 R. R. 507 Plowes V. Bossey, 31 L. J. Ch. 681 ; 10 W. R. 332 ; 2 143 ; 8 Jur. N. S. 352 Pocock I'. Faulks, 10 Times Rep. 183 u Gilham, 1 C. & E. 104 . Polkinhom v. Wright, 8 Q. B. 197 ; 15 L. J. q Pollen V. Brewer, 7 C. B. N. S. 371 ; 6 Jur. N. Pollock V. Stacy, 9 Q. B. 1033 ; 16 L. J. Q. B. Poole V. Warren, 8 A. & E. 582 ; 3 N. & P. 69 PAGE . 213 85, 87 . 215 . 112 216, 217 W. R. , 242 8 Jur. . 51 556 ; 262, 265 L. T. 72, 73 . 163 . 180 . 93 2 N. & P. 488 , J. Ch. 587 ; 40 L. T. 22 L. J. Ex. 18, 266 832; 602 194 81 27 112 27 W. 261, 262 . 283 7, 48, 132, . 162 . 225 318; &L. Drew & Sm. 243, 147 41 244 19 101 17 B. 70 ; 10 Jur. 11 S. 509 . 11, 13, 47 132 ; 11 Jur. 267 . 79 ; : 3 Jur. 23 . 248. 250 %. AVhitt, 15 M. & W. 571 ; 16 L. J. Ex. 229 . . . 32, 234 Pope, re, 17 Q. B. D. 743 149 V. Biggs, 9 B. & C. 245 ; 4 M. & Ry. 193 .... 136 Portman v. Home Hospital Ass., 27 Ch. D. 81 note ; 50 L. T. 599 . 89 Postmaster General, ex ■parte, 10 Ch. D. 595 ; 48 L. J. Bank. 84 ; 40 L. T. 16 ; 27 W. R. 325 172 Ponltney v. Holmes, 1 Str. 405 79 Powtl V. Cleanor, 2 Bro. C. C. 500 175 TABLE AND INDEX OF CASES. PAGE Powel V. Milliank, 3 Wils, 355 ; 2 W. Bl. 851 . . . . 170, 233 Powley V. AValker, 5 T. R. 373 ; 2 R. R. 610 94 Powuall V. MooR's, 5 11 & Aid. 41tj 103 Powsely V. Blackmail, Cro. Jac. 659 131 Pi-aed V. Hull, 1 Sim. & S. 331 139, 142 Pratt V. Swaiiie, 8 B. & C. 285 ; 2 M. & Ry. 350 . . . 163, 200 Preece v. Corrie, 5 Bing. 24 ; 2 M. & P. 57 79 Prescott V. Barker, 9 Ch. 174 ; 43 L. J. Ch. 498 ; 29 L. T. 727 : 30 id. 149 ; 22 W. R. 423 158 Price, re, 28 Ch. D. 709 ; 54 L. J. Ch. 509 ; 52 L. T. 430 . . 154 V. Varney, 3 B. & C. 733 ; 5 D. & R. 612 V. Worwood, 4 H. & N. 512 ; 28 L. J. Ex. 329 ; 5 Jivr. N. S. 472 94, 108, 109, 113, 231, Prince V. Blackburn, 2 East 250 V. Evans, 29 L. T. 835 Proudfoot V. Hart, 25 Q. B. D. 42 ; 59 L. J. Q. B. 389 ; 38 W 730 Prudential Assurance v. Edmonds, 2 App. Cas. 487 . Pugh V. Arton, 8 Eq. 626 ; 38 L. J. Ch. 619 ; 20 L. T. 865 V. Heath, 6 Q. B. D. 345 ; 7 App. Cas. 235 ; 50 L. J. Q. 473 ; 51 id. 367 ; 44 L. T. 327 ; 46 id. 321 ; 29 ^W R. 904 ; 30 id. 553 197, 217 148 232 . 247 . 44 R. 82, S3 . 242 56, 68 B. QuAiiRiNGTOX V. Arthur, 10 M. & W. 335 ; 11 id. 491 ; 2 Dowl. N". S. 1036 ; 12 L. J. Ex. 311 105 Quarterniaine v. Selby, 5 Times Rep. 223 . . . . 35, 43 Quilter v. Maplcson, 9 Q. B. D. 672 ; 52 L. .T. Q. B. 44 ; 31 W. R. 75 125 R. V. - V. V, V. V. V. Allison, R. & R. 109 All Saints, Derby, 13 East 143 Atkins, 3 Burr. 1706 Aylesbury, 9 Q. B. 261 Bathurst, Sayer 225 Birmingham, 1 B. & S. 703 ; 31 L. J. M. C. 63 ; 5 10 W. R. 41 ; 8 Jur. K S. 37 Blake, 3 BuiT. 1731 Bliss, 7 A. & E. 550 ; 2 N. & P. 464 Bolton, 1 Q. B. 66 ; 4 P. & D. 679 ; 5 Jur Bowser, 8 DowL 128 Bramley, 6 T. R. 330 Child, 2 Cox C. C. 102 . Darlington, 6 Q. B. 682 ; 14 L. J. Q Dillon, 2 Chit. 314 . Dorney, 12 Mod. 418 ; 1 Salk. 260 Ehvell, 2 Ld. Ray 1514 ; 2 Str. 794 L. T 13. 1154 B. 67 ; 9 Jur. 21 . 241 . 180 14, 17 . 97 . 17 309 ; . 229 14, 17, 18 . 229 . 182 . 23 . 245 . 17 . 286 . 21 . 24 . 20 d 2 Hi TABLE AND INDEX OF CASES. 38 L. J. M. C 126 20 B. 86 22 M. & Rob, Jur. 05 R. V. Ely, 8 B. & C. 112 . — v. Eriswell, 3 T. E. 707 — V. Exeter, L. R. 4 Q. B. 341 _ 17 W. R. 850 .... — V. Garland, L. R. 5 Q. B. 269; 39 L. J. Q. 18 W. R. 429 .... — V. Griffith, 3 Salk 169 . — V. Hake, 4 M. & Ry. 483 . — V. Harland, 8 A. & E. 826 ; 1 P. & D. 93 ; 2 — V. Harris, 1 Salk. 260 , — V. Haslingfield, 2 M. & S, 558 ; 15 R. R. 350 — V. Haworth, 4 C. & P. 254 . — V. Hoare, 6 M. & S. 266 — V. Hord, Sayer 175 ... . — V. Jones, 1 Str. 474 .... — V. Layton, 1 Salk. 353 ... — V. Llanfaethly, 2 E. & B. 940 ; 17 Jur. 1123 — r. Luffe, 8 East, 193 ; 9 E. R. 406 — V. Mansfield, 1 Q. B. 444 ; 1 G. & D. 7 — V. Middlesex JJ., 7 Dowl. 767 . — V. Mildmay, 5 B. & Ad. 254 ; 2 N. & M. 778 — V. North Petherton, 5 B. & C. 508 ~ V. Oakley, 4 B. & Ad. 307 ; 1 N. & M. 58 — V. Rishworth, 2 Q. B. 476 . — V. St. Giles, 22 L. J. M. C. 54 . — V. St. Martins, 2 A. & E. 210 — V. Paul's, 7 Q. B. 232 . — V. Sewell, 8 Q. B. 161 ; 15 L. J. Q. B. — V. Smyth, 1 M. & Rob. 155 ; 5 C. & P, — V. Sourton, 5 A. & E. 180 ; 6 N. & M. — V. Storr, 3 Burr. 1698 . — V. Toddington, 1 B. & AM. 560 . — V. Tolson, 4 F. & F. 103 — I'. Topping, Mc. & Y. 544 . — V. Traill, 12 A. & E. 761 ; 4 P. & D. 325 — V. Wannop, Sayer, 142 — -y. Watson, 2 Stark, 130 — V. Weaver, L. R. 2 C. C. R. 85 ; 43 L. J. M 22 W. R. 190 ; 12;Cox, C. C. 527 . — V. Wilby, 2 M. & S. 504 ; 15 R. R. 328 — V. Williams, 9 B. & C. 549 ; 4 M. & Ry. 471 — V. Wilson, 8 T. R. 357 ; 4 R. R. 694 . — V. Wilson, 10 B. & C. 80 — V. Wilson, 3 A. & E. 817 ; 5 N. & M. 164 — r. Winter, 2 Salk. 587 . Rafiety v. King, 1 Keen, 601 ; 6 L. J. Ch. 87 Rains v. Buxton, 14 Ch. D. 537 ; 49 L. J. Ch. 473 ; 43 L W. R. 954 .... 49; 201 575 L. T. 141 10 Jur. 48 3;2 PAGE . 238 . 237 693; 229 L. T. 160; 16, . 152 . 17 . 21 17,21,23 . 23 . 252 . 251 . 17 . 20 . 24 20, 21 . 251 . 244 . '^44 . 182 . 187 . 243 19, 20, 23 . 245 . 248 . 248 , 249 . 285 . 14 . 244 14, 17 . 176 . 242 . 55 . 285 . 17 . 250 13, L. T. 544 ; . 243 . 175 . 24 14, 17, 18 . 187 20, 23, 24 23, 24 218, 219 T. 88 ; 28 . 198, 217 16, TABLE AND INDEX OF CASES. liii Eakestraw v. Bruyer, Moseley, 189 .... Ramsbottom v. Buckhurst, 2 JM. & S. 565 ; 15 R. R. 352 Raudall V. Stevens, 2 E, & B. 641 ; 23 L. J. Q. B, 68 ; 1 C 18Jur. 128 L'audle v. Lory, 6 A. & E. 218 . R i.stal V. Turner, Cro. Eliz. 598 Rawlins v. Briggs, 3 C. P. D. 368 ; 47 L. J. C. P. 487 138 Rawson v. Eicke, 7 A, & E. 451 ; 2 N. & P. 423 Rayson v. Adcock, 7 L. T, 747 ; 9 Jur. N. S. 800 llcadu. Wotton, (1893) 2 Ch. 171 ; 62 L. J. Ch. 481 41 W. R. 556 ; 3 R. 374 . lieading's Case, 1 Salk. 392 ... . Roarden v. Miuter, 5 M. & Gr. 204 . Reay v. Rawliuson, 29 Beav. 88 ; 30 L. J. Ch. 330 ; Rede v. Farr, 6 M. & S. 121 . Roes V. King, Forrest 19 . V. Davies, 4 C. B. N. S. 56 V. Perrott, 4 C. & P. 230 . Reeves v. Cattell, 24 W. R. 485 ... Reilly V. Fitzgerald, 6 Ir. Eq. Rep. 335 . Rennie v. Robinson, 1 Bing. 147 ; 7 Moore, 539 Reynolds v. Pitt, 19 Ves. 134 . V. Reynolds. 12 Ir. Eq. Rep. 172 V. Wright, 25 Beav. 100 ; 27 L. J. Ch. 392 Riiodes V. Rhodes, 36 Ch. D. 586 ; 56 L. J. Ch. 825 V. Smethurst, 4 M. & W. 42; 6 id. 351; 2 702 Richards v. Bluck, 6 C. B. 437 ; 6 D. & L. 325 V. Richards, 15 East, 294 n. ; 13 R. R, Richardson v. Webb, 1 M. B. R. 40 . V. Younge, 6 Ch. 478 ; 40 19 W. R. 612 Rider, v. Wood, 1 K. & J. 644; 24 L. J. Ch. 737 Right V. Bucknell, 2 B. & Ad. 278 . V. Cuthell, 5 East, 491 ; 5 Esp. 149 ; 7 R. R. V. Darby, 1 T. R. 159 ; 1 R. R. 169 Riniington v. Cannon, 12 C. B. 18 . Rishton v. Nesbitt, 2 M. & Rob. 554 Roberts v. Brett, 11 H. L. C. 337 ; 34 L. J. C. P. 587 ; 11 Jur. K. S. 377 . V. Dave)^ 4 B. & Ad. 664 ; 1 N. & M. 443 V. Doxon, 1 Peake 83 ; 3 R. R. 660 V. Gordon, 6 Ch. D. 531 ; 46 L. J. Ch. 794 ; V. Oppenheim, 26 Ch. D. 724 ; 53 L. J. Ch 729 ; 32 W. R. 654 . V. Tayler, 1 C. B. 117 ; 3 D. & L. 1 ; 14 L Jur. 330 475 J. Ch. 338 68 Jur. 57 Jur, 25 52 241 37 1148 J. L. R 27 L. T N, PACK . 220 146, 236 641 ; 204, 207 104, 106 . 185 W. R. , 99 . 133 187, 188 209 ; . 262 . 178 . 248 S. 118 159 59, 107, 108 . 223 . 282 26, 42 . 89 . 241 28, 30 . 127 . 227 2, 153 . 242 152, T. 652 . 893 ; 4 id. 168. 210 103 241 146 L. T 230 ; . 218, 219 . 168, 169 . 33, 136 40, 44, 236 36, 46 . 194, 198 . 245 13 W. R. 60, 67, Qd; T. 627 ; 50 L. P. 8/ 108 250 161 264 11 liv TABLE AND INDEX OF CASES, 3 R. R. 643 1 R. R. 656 PAGE . 37 73, 236, 250 . 177 . 39 65, 65, 100 6G, 81, 113, 114 . 185, 187 . 175 . 153 . 177 . 187 . 110 . 87, 110 . 188, 237 . 236 . 31 . 243 . 208 . 80 26, 47 . 184 Roe V. Chai'iiook, 1 Pealce 4 — V. Davis, 7 East 363 .... — V. Dawson, 3AVils. 49 . . . — V. Doe, 6 Ring. 574 .... — V. Galliers, 2 T. R. 133 ; 1 R. R. 445 — V. Harrison, 2 T.R. 425 ; 1 R. R. 513 — V. Hicks, 2 Wils. 13 ; 1 Ld. Ken. 110 — V. Hodgson, 2 Wils. 129 . — V. Jones, 1 H. Bl. 30 ; 3 T. R. 88 — V. Lonsdale, 12 East 39 .... — V. LovRles3, 2 B. & Aid. 453 ... — V. Minshall, B. N. P. 96 c — V. Paine, 2 Camp. 520 ... . — V. Parker, 5 T. R. 26 — V. Pierce, 2 Camp. 96; 11 R. R. 673 . — V. Ramsbotham, 3 M. & S. 510 . — V. Rawlings, 7 East, 279 .... — V. Rowlston, 2 Taunt. 441 ; 11 R. R. 640 . — V. Sales, 1 M. & S. 297 — V. Street, 2 A. & E. 329 ; 4 X. & M. 42 — V. Wegg, 6 T. R. 708 — V. Wiggs, 2 B. & P. N. R. 330 . Pogers V. Goodenough, 2 Sw. & T. 342; 31 L. J. 719 ; 8 Jur. IST. S. 391 . V. Grazebrook, 8 Q. B. 895 . V. Hull Docks, 34 L. J. Ch. 165 ; 11 L. T. 42; 12 W. R. 1101; 10 Jur. N. S. 1245 V. Humphreys, 4 A. & E. 299 ; 5 N. & M. 511 V. Pitcher, 6 Taunt. 202 ; 1 Marsh 541 . V. Rice, (1892)_2 Ch. 170 ; 61 L. J. Ch. 573 ; 66 L W. R. 489 Rolfe V. Peterson, 2 Bro. P. C. 436 Rolls V. Miller, 25 Ch. D. 206 ; 27 id 597 ; 32 W. R. 806 . Romily v. Fycroft, 4 W. R. 26 Rose V. Bartlett, Cro. Car. 292 Ross V. Clifton, 11 A. & E. 631 ; 9DowL 1033 ; 5 Jur. 1059 Runcorn v. Cooper, 5 B. & 0. 696 ; 8 D. & R. 450 Russell V. Baber, 18 W. R. 1021 Be, 15 P. D. Ill ; 59 L. J. Prob. 80 ; 62 L. T. 644 Ruttledge v. Whelan, 10 L. R. Ir. 263 Ryan v. Clark, 14 Q. B. 65 ; 7 D. & L, V. Ring, 25 L. R. Ir. 184 Prob. 71 ; 53 L. J. Ch. 68 49 ; 5 L. T. 189 156 131 . 36 133, 134 26, 30, 146, 14a T. 640 ; 40 . 123 . 104 50 L. T. 89 233 158 19 222 102 155 125 128 243 Sadlers Co.'s Case, 4 Co. Rep. 55 a. St. Albans v. Battersby, 3 Q. B. D. 359 ; 47 L. J. Q. B. 571 ; 38 L. T. 685 ; 26 W. R. 678 90 TABLE AND INDEX OF CASES. Iv 215, PAGE , 244 , 184 , 233 216 261 422 ; 6 Biiiff. 644 St. George's v. St. Margaret's, 1 Salk. 123 Salisbury's Case, 1 Levinz, 63 . Salmon v. Smith, 1 Wms. Sauiul 202 , Salter v. Cavanagh, 2 Dru. & War. 668 ■ V. Edgar, 54 L. T. 374 . Sampson v. Easterby, 9 B. & C. 505 ; 4 M 4 M. & P. 601 ; 1 C. & J. 105 65 Sanders v. Sanders, 19 Ch. D. 373 ; 50 L. J. Ch. 367 ; 51 id. 276 ; 44 L. T. 171 ; 45 id. 637 ; 29 W. E. 413 ; 30 id. 281, 208, 209, 218, 224 V. Pope, 12 Ves. 282 127 Saudford v. Clarke, 21 Q. 13 D. 398 ; 57 L. J. Q. B. 507 ; 59 L. T. 226 ; 37 W. R. 28 ; 52 J. P. 773 37 J. Q. B Saudilands, re, L. R. 6 C. P. 411 Sandill v. Franklin, L. R. 10 C. P. 377 ; 44 L. J. G. 309 ; 23 W. R. 473 . Sands to Thompson, 22 Ch. D. 614 ; 52 L 31 W. R. 397 . Saner v. Bilton, 7 Ch. D. 815 ; 47 L. J. Ch. 267 W, R. 394 ... Sangster v. Noy, 16 L. T. 157 . Saimders' Case, 5 Co. Rep. 12 b. Saunders v. Merryweather, 3 H. & C. 902 ; 35 L. W. R. 814 .... Savage t: Dent, 2 Str. 1064 Saverne v. Smith, Cro. Car. 7, 2 Eolle 344 Saye v. Sele's Case, 1 H. L. C. 507 . Sayer v. Glossop, 2 Exch. 409 . Scales V. Lawrence, 2 F. & F. 289 . Scaltock V. Harston, 1 0. P. D. 106 ; 45 L, 130 Schoole V. Sail, 1 Sch. & L. 176 Scot V. Scot, Cvo. Eliz. 73 Scott V. Brown, 51 L. T. 746 . V. Nixon, 3 Drar. & War. 388 ; 6 Ir. 185 .... V. Scott, 4 H. L. C. 1065 . Sear v. House Co., 16 Ch. D. 387 ; 50 L 29 W. R. 192 ; 45 J. P. 204 Searby v. Tottenham R. C, 5 Eq. 409 Seddon v. Smith, 36 L. T. 168. Seers v. Hind, 1 Ves. 294 . Selby V. Browne, 7 Q. B. 620 . Selwyn v. Garfit, 38 Ch. D. 273 ; 57 L, 36 W. R. 613 V. Selwyn, 2 Burr. 1131 . Shaw V. Coffin, 14 C. B. N. S. 372 . V. Gould, L. R. 3 H. L. 55 ; 37 L. . P. 216 . 38 J. Ch. 406 ; 48 L. T. 210 ; 140, 205, 215, 216 L. T. 281; 26 . 82, 83, 85, 93 . 43 . 162 Eq. Rep. J. Ch. 77 J. Ch. 609 249 L. T. J. Ex. 115; 13 125 8, 2 43 59 Ch. 433 ; 18 L 34 10 Con L. T L. T T. S 121 &L. . 28 . 23.0 . 185 . 244 . 242 82, 83 T. 63, 64 . 138 . 74 123 224 214 531 55, 78 . 195 . 196 . 81 . 69 233 112 153 55 168 Ivi TABLE AND INDEX OF CASES. I'AGE Shaw V. Keighron, 3 Ir. Rep. Eq. 574 207 Shedilen v. A. G., 2 S. & T. 170 ; 30 L. J. P. & M. 217 ; 3 L. T. 592 ; 6 Jur. N. S. J163 ; 9 W. R. 285 . . . . 242, 246 Shepherd v. Berger, (1891) 1 Q. B. 597 ; 60 L. J. Q. B. 395 ; 64 L. T. 435 ; 39 W. R. 330 ; 55 J. P. 532 .... . 57, 113 Sheppard v. Hong Kong Bank, 20 \V. R. 459 78 Sherwood v. Clark, 15 M. v. W. 764 145, 147 Shiekls v. Boucher, 1 De G. & S. 40 241, 245 . 267 . 245 . 106 . 93 . 10 . 90 . 55 . 140 P. eu 60 L. J. Q. B. 629 ; 63 . 121, ; 9 L. T. 763 ; Short V. King, 2 Str. 680. Shrewsbury Peerage, 7 H. L. C. 1 V. Gould, 2 B. & Aid. 487 . Simmons v. Norton, 7 Bing. 640 ; 5 M. & Simonds v. Lawnd, Cro. Eliz. 239 Simons v. Farren, 1 B. N. C. 126 . Simpson v. Titterell, Cro. Eliz. 242 . Skinner v. Stacey, 1 Wils. 80 . Skinners Co. v. Knight, (1891) 2 Q. B. 542 L. T. 698 ; 65 L. T. 240 ; 40 W. R. 57 . Skull V. Glenister, 33 L. J. C. P. 185 ; 12 W. R 16 C. B. N. S. 81 Slaney v. Wade, 1 My. & C. 338 ; 7 Sim. 595 . Slater v. Stone, Cro. Jac. 645 ...... Slatterie v. Pooley, 6 M. & W. 664 ; 10 L. J. Ex. 8 ; 4 Jur Slipper V. Tottenham Ry. Co., 4 Eq. 112 : 36 L. J. Cli. 841 446 ; 15 W. R. 861 Sly V. Sly, 2 P. D. 91 ; 46 L. J. Prob. 63 ; 25 W. R. 463 . Smallpiece v. Evans, 1 Anders. 123 Smartle v. Williams, 1 Salk. 245 Smith V. Adkins, 8 M. & W. 362 ; 1 Dowl. N. S. 129 V. Bennett, 30 L. T. 100 V. Birmingham Gas Co. 1 A. & E. 526 ; 3 N. & JI. : V. Bustard, 1 Leon. 141 ........ 74 ■ V. Day, 2 M. & W. 684 ; M. & H. 185 129 V. Eggingtou, L. R. 9 C. P. 145 ; 43 L. J. C. P. 140 ; 30 L. T. 521 61, 134 V. Gronow, (1891) 2 Q. B. 394 ; 60 L. J. Q. B. 776 ; 65 L. T. 117 ; 40 W. R. 46 67, 100, 101 1038 ; 16 L. T. 229, 126 230 246 86 26 81 238 81 130 180 195 236 % Humble, 15 C. B. 321. V. Lloyd, 9 Exch. 562 ; 23 L. J. Ex. 194 ; 2 C. L. R. 1007 194, D. 545 ; 59 L. J. Q. B. 533 ; 63 L. T. 93 196 and Nelson, re, 25 Q. B 475; 39 W. R. 117 V. Raleigh, 3 Camp. 513 ; 14 R. R. 829 V. Robinson, (1893) 2 Q. B. 53 ; 62 L. J. Q. B. 509 ; 69 L. T, 434 ; 41 W. R. 588 ; 5 R. 469 V. Stocks, 10 B. & S. 701 ; 38 L. J. Q. B. 306 ; 20 L. T. 740 ; 17 W. R. 1135 195 233 99 TABLE AND INDEX OF CASES. Ivii I'AGE Smith V. Tebbitt, L. E. 1 P. & D. 354 ; 36 L. J. Prob. 97 ; 16 L. T. 841 ; 16 W. R. 18 245, 246 V. Tett, 9 Exch. 307 ; 23 L. J. Ex. 93 ; 2 C. L. K. 509 . . 191 V. Waltou, 8 Biiig. 235 ; 1 M. & Sc. 380 . . . .40 V. Whichcord, 24 W. R. 900 . 144 V. Widlake, 3 C. P. D. 10 ; 47 L. J. Q. B. 282 ; 26 W. R. 52 . 31 Saigge V. Shirton, Cro. Jac. 199 16 Show v. Cutler, 1 Kcb. 567 237 V. Phillips, 1 Sid. 220 238 V. Whitehead, 27 Ch. D. 588 ; 53 L. J. Ch. 885 ; 51 L. T. 253 ; 33 W. E. 128 102 Sottomayer v. De Barros, 3 P. D. 1 ; 47 L. J. Prob. 23 ; 37 L. T. 415 ; 26 W. R. 455 247 SouLsby V. Neviug, 9 East, 310 ; 9 R. R. 567 46 Soutchcot V. Stowell, 1 Mod. 226 ; 2 id. 207 166 South, re, 9 Ch. 369 ; 43 L. J. Ch. 441 ; 30 L. T. 347 ; 22 W. R. 388, 460 145 Southall V. Leadbetter, 3 T. R. 458 99 So^vard v. Leggatt, 7 C. & P. 613 83 Spanish Telegraph Co. r. Shepherd, 13 Q. B. D. 202 ; 53 L. J. Q. B. 420 ; 51 L. T. 124 ; 32 \V, R. 717 100 Sparrow t\ Hawkes, 2 Esp. 505 46 Speucer's Case, 5 Co. Rep. 16 a. . . . . . . .64 Spoouer v. Payue, 4 C. B. 328 ; 16 L. J. C. P. 225 . , . . 247 Spotswood V. Barrow, 5 Exch. 110 ; 19 L. J. Ex. 226 .. . 10 Springett v. Jenings, 10 Eq. 488 ; 6 Ch. 333 ; 39 L. J. Ch. 652 ; 40 id. 348 ; 23 L. T. 132 ; 24 id. 643 ; 18 W. R. 962 ; 19 id. 575 . 157 Stackpoole v. Parkinson, Ir. Rep. 8 C. L. 561 ..... 40 Standen v. Chrismas, 10 Q. B. 137 ; 16 L. J. Q.B. 265 ; 11 Jur. 694 . 61 Stanley v. Towgood, 3 B. N. C. 4 ; 3 Scott, 313 ... 82, 84 Stansfield v. Hobsou, 3 De G. M. & G. 620 ; 22 L. J. Ch. 657 ; 16 Beav. 236 218 Stanynought u. Cosius, Barnes, 456 . . . . . . .192 Stapylton v. Clough, 2 E. & B. 933 ; 23 L. J. Q. B. 5 ; 18 Jur. 60 . 230 Stephenson v. Raine, 2 E. & B. 744 ; 23 L. J. Q. B. 62 ; 18 Jur. 176 268 Stevens v. Copp, L. R. 4 Ex. 20 ; 38 L. J. Ex. 31 ; 19 L. T. 454 ; 17 W. R. 166 56, 64, 66, 106 Stevenson v. Lambard, 2 East, 575 ; 6 R. R. 511 . . . .04 . 162 . 251 . 269 . 165 25 W. R. . 199 . 109 3-33; 90, 92 V. Liverpool, L. R. 10 Q. B. 81 . Still V. Haiford, 4 Camp. 17 Stolworthy v. Powell, 55 L. J. Q. B. 228 ; 54 L. T. 795 Strickland v. Strickland, 10 Sim. 374 .. . Stringer, re, 6 Ch. D. 1 ; 46 L. J. Ch. 633 ; 37 L. T. 233 815 Strong V. Stringer, 61 L. T. 470 Stuart V. Diplock, 43 Ch. D. 343 ; 59 L. J. Ch. 142 ; 62 38 W. R. 223 Stukeley v. Butler, Hob. 168 L. T, Iviii TABLE AND INDEX OF CASES. PAGE Sturgeon v. Wingfield, 15 M. & W. 224 : 15 L. J. Ex. 212 . . 33 Sturgis V. Morse. 24 Beav. 541 ; 3 De G. & J. 1 ; 2 De G. Y. Sc J. 223 ; 29 L. J. Ch. 766 ; 8 W. R. 737 ; 6 Jur. N. S. 766 . . 217 Sugden v. St. Leonards, h P. 1). 154 ; 45 L. J. Prob. 49 ; 34 L. T. 372 ; 24 W. R. 860 239 Sutcliffe V. James, 40 L. T. 875 263 V. Rawlhigs, 3 Exch. 407 ; 6 D. & L. 673 . . 139, 141, 142 V. Wood, 53 L. J. Ch. 970 : 50 L. T. 705 . . . . 261 Swain v. Ayres, 21 Q. B. D. 289 ; 57 L. J, Q. B. 428 ; 36 W. R. 798 2, 63, 120, 121, 123, 124 Swann v. Falmouth, 8 B. & C. 456 ; 2 M. & Ry. 534 .. . 232 Sweeney v. Sweeney, 10 Ir. Reji. C. L. 375 42 Sweet V. Seagar, 2 C. B. N. S. 119 ; 3 Jur. N. S. 588 .. . 99 Swetuian v. Cush, Cro. Jac. 8 ; Moore, 680 ... . 74, 88 Syke.s, re, L. R. 3 P. & D. 26 ; 42 L. J. Prob. 17 ; 28 L. T. 142 ; 21 W. R. 416 156 Symons v. Rees, 1 Ex. I). 416 ; 25 W. R. 116 269 Talbot v. Hodson, 7 Taunt. 251 ; 2 Marsh, 527 ... . 247 Talbot de Malahide v. Odium, Ir. Kep. 5 0. L. 302 . . . . 49 Tauliam v. Nicholson, L. R. 5 H. L. 561 ; Ir. Rep. 6 C. L. 188. 42, 43 Tatem v. Chaplin, 2 H. Bl. 133 ; 3 R. R. 360 65 Taunton v. Costar, 7 T. R. 431 ; 4 R. R. 481 . . . . 9,. 11, 12 Tawell V. Slate Co., 3 Ch. D. 629 261 Tayleur v. Wildin, L. R. 3 Ex. 303 ; 37 L. J. Ex. 173 ; 18 L. T. 655 ; 16 W. R. 1018 45 Taylor v. Cole, 3 T. R. 292 ; 1 H. BL 561 ; 1 P. R. 70S . 9, 16, 146, 148 V. Meads, 34 L. J. Ch. 203 ; 13 W. R. HM ; 11 Jur. N. S. 166 155 V. Needham, 2 Taunt. 278 ; 11 R. R. 572 . . 28, 29, 136 Thomas v. Cadwallader, Willes, 496 86 V. Hay ward, L. R. 4 Ex. 311 ; 38 L. J. Ex. 175 ; 20 L. T. 814 65 V. Jones, 2 J. & H. 475 ; 1 K R. 138 ; 31 L. J. Ch. 732 ; 32 id. 139 ; 7 L. T. 154, 610 ; 1 De G. J. & S. 63 ; 10 W. R. 853 ; 11 id. 242 ; 8 Jur. N. S. 1124 : 9 id. 161 153, 154, 158 V. Packer, 1 H. & N. 669 ; 26 L. J. Ex. 207 ... 56 V. Thomas, 2 Camp. 647 39 V. Thomas, 2 K. & J. 79 ; 25 L. J. Ch. 159 ; 1 Jur. N. S. 1160 195, 196 Tomkinsv. Pincent, 7 Mod. 97 ; 1 Salk. 141 72 Thompson, Ee, 12 P. D. 100 ; 56 L. J. Prob. 46 ; 57 L. T. 373 ; 35 W. R. 384 241, 243 V. Bowyer, 9 Jur. K S. 863 ; 11 "W. R. 975 . . . 218 V. Donaldson, 3 Esp. 63 ; 6 R. R. 812 . . . .241 TABLE AND INDEX OF CASES. lix Thompsons. Inf^ham, 14 Q. B. 710; 19 L. J. Q. B. 189; 14 Jur, 429 275 r. Lapworth, L. li. 3 C. P. 149 ; 37 L. J. 0. P. 74 ; 17 L. T. 507 ; 16 W. R. 312 9S, 99 V. Reynolds, 3 C. & P. 123 1G2 V. Simpson, 1 Dnir. & War. 459 ; 2 J. & L. 110 ; 8 Ir. Ei^. Rep. 55 215 V. Tomkiusou, 11 Exch. 442 257 Thomson v. Field, Cro. Jac. 499 72, 75 Tliorn V. "Woolleomhe, 3 B. & Ad. 586 79 Tliornewcll v. Johnson, 50 L. J. Ch. 641 ; 44 L. T. 768 ; 29 W. R. 677 90 Thornton v. Slierratt, 8 Taunt. 529 102 Threlfall, Mc, 16 Ch. D. 274 ; 50 L. J. Ch. 318 ; 42 L. T. 596 ; 44 id. 74 ; 28 W. R. 708 ; 29 id. 128 132 Threslier v. East Loudon, 2 B. & C. 608 ; 4 D. & R. 62 . . . 87 Thunder v. Belcher, 3 East, 449 130, 134 Tiehborne v. Mostyn, L. R. 8 C. P. 29 ; 41 L. J. C. P. 113 ; 26 L. T. 554 ; 20 W. R. 661 267 Tickle, He, 3 M. B. R. 126 55, 100, 108 Tidball V. James, 29 L. J. Ex, 91 208 Tidswell V. Whitworth, L. R. 2 C. P. 326 ; 36 L. J. C. P. 103 ; 15 L. T. 574 ; 15 W. R. 427 99 Timmins v. Rowlinson, 3 Bmr. 1603 ; 1 W. Bh 533 . . . .44 Timiiis V. Baker, 49 L. T. 106 58, 80 Tinker v. Rodwell, 69 L. T. 591 196 Todheatley v. Benham, 40 Ch. D. SO ; 58 L. J. Ch. 83 ; 60 L. T. 241 ; 37 W. R. 38 89, 90, 92 Toleman v. Portbury, L. R. 6 Q. B. 245 ; 7 id. 344 ; 40 L. J. Q. B. 125 ; 41 id. 98 ; 24 L. T. 24 ; 26 id. 292 ; 19 W. R. 623 ; 20 id. 441 G9, 111, 231 Tolsou V. Kaye, 3 B. & B. 217 ; 6 Moure, 542 .... 194, 210 Tomkins v. Jones, 22 Q. B. D. 599 ; 58 L. J. Q. B. 222 ; 60 L. T. 939 ; 37 W. R. 328 268 Toms V. Wilson, 32 L. J. Q. B. 33, 382 ; 7 L. T. 421 ; 8 id. 799 ; 11 W. R. 117, 952; 9 Jur. N. S. 492; 10 id. 201 ; 4 B. & 8. 442 73, 75 Torriano v. Young, 6 C. & P. 8 . . . . . . . .94 Towerson v. Jackson, [1891] 2 Q. B. 484 ; 61 L. J. Q. B. 36 ; 65 L. T. 332 ; 40 W. R. 37 ; 56 J. P. 21 134 Towuson V. Tickell, 3 B. & Aid. 31 161, 162 Trash v. W^ood, 4 My. & Cr, 324 ; 9 L. J. Ch. 105 ; 4 Jur. i56'J . . 167 Treloar v. Bigge, L. R. 9 Ex. 151 ; 43 L. J. Ex. 95 ; 22 W. R. 843 . 78 Trent v. Hunt, 9 Exch. 14 ; 22 L. J. Ex. 318 ; 17 Jur. 899 . . 133 Trevivaut;. La^^Tance, 1 Salk. 276 ...... 33, 136 Tritton v. Baukart, 56 L. J. Ch. 629 ; 56 L. T. 306 ; 35 W. R. 474 . 92 Trotter v. Maclean, 13 Ch. D. 574 ; 49 L. J. Ch. 256 ; 42 L. T. 118 ; 28 W. R. 244 217 Ix TABLE AND INDEX OF CASES. PAGE Trulock r. Robey, 12Sim. 402; 5 Jur. 1101 218 Truscott V. Diamond Co., 20 Ch. D. 251 ; 51 L. J. Cli. 259 ; 46 L. T. 7 ; 30 W. R. 277 «2, 83 Trustees' Co. v. Sliort, 13 App. Gas. 793 ; 58 L. J. P. C. 4 ; 59 L. T. 677 ; 37 W. R. 433 ; 53 J. P. 132 194, 198 Turner, ^e, 29 Cli. D. 985 ; 53 L. T. 528 243, 246 V. Cameron, 5 Excli. 932 128 V. Doe, 9 M. & W. 643 47, 68 • V. Hodges, Hutton, 101 ; Hetley, I26 186 V. Meymott, 7 Moore, 574 ; 1 Biug. 158 . . . 9, 11 Tutton V. Darke, 5 H. & N. 647 ; 29 L. J. Ex. 271 ; 2 L. T. 361 ; 6 Jur. N. S. 983 235, 236 Twiss V. Noblett, 4 Ir. Rep. Eq. 64 207 Twynham v. Pickard, 2 B. & Aid. 105 62 Tyennau r. Smith, 6 E. & B. 719 ; 25 L. J. Q. B. 359 ; 2 Jur. N. S. 860 252 Tyler v. Merchant Taylors Co., 15 P. D. 216 ; 60 L. J. Prob. 86 ; 63 L. T. 779 156 Tyley v. Seed, Skin. 649 ,37 Tyrwhitt v. Wynne, 2 B. & Aid. 554 228 Umphery v. Damyon, 1 Bulstr. 181 73, 74 Underhay v. Read, 20 Q. B. D. 209 ; 57 L. J. Q. B. 129 ; 58 L. T. 457 ; 36 W. R. 298 134 Underwood v. Wing, 4 De G. M. & G. 633 242 Upton V. Townend, 17 C. B. 30 ; 25 L. J. C. P. 44 ; 1 Jur. N. S. 1089 233, 234 Uthwatt V. Elkins, 13 M. & W. 772 : 14 L. J. Ex. 131 . . . 181 Vance v. Vance, Ir. Rep. 5 C. L. 363 45 Vane v. Vane, 8 Ch. 383 ; 42 L. J. Ch. 299 ; 27 L. T. 534 ; :'8 id. 320 ; 21 W. R. 66, 252 217 Varley v. Coppard, L. R. 7 C. P. 505 ; 26 L. T. 882 ; 20 W. R. 972 79 Vaughan, Ux parte, L. R. 2 Q. B. 114 ; 36 L. J. M. C. 17 ; 7 B. & S. 902; 15L. T. 277; 15 W. R. 198 181,182 Vaughan v. Atkins, 5 Burr. 2764 1S7, 188 Vernon v. Smith, 5 B. & Aid. 1 64, 95 V. Wright, 7 H. L. C. 35 ; 2 Drew. 439 ; 23 L. J. Ch. 881 ; 28 id. 198; 4 Jur. N. S. 1113 ; 2 Eq. Rep.1159 . . ,166 Victoria, A.-G. of, v. Ettershank, L. R. 6 P. C. 354 ; 44 L. J. P. C. 65 ; 24 W. R. 37 60, 108, 124 Viner r. Vaughan, 2 Bear. 466 93 Vivian v. Moat, 16 Ch. D. 730 ; 50 L. J. Ch. 331 ; 44 L. T. 210 ; 29 W. R. 504 51, 53 TABLE AND INDEX OF CASES. Voisey, Ex parte, 21 Ch. D. 442'; 52 L. J. Ch. 121 ; 47 L. T. 362 ; 31 W. R. 19 132 Vooght V. Wiiicli, 2 B. & Aid. 662 101 Vowles V. Young, 13 Ves. 140 ; 9 R. R. 154 ... . 245, 246 Vyvyau v. Arthur, 1 ?,. & C. 410 ; 2 D. & R. 670 . . . . 65 AVadpilovk v. Baruett, 4 Dowl. 347 ; 2 B. N. C. 538 ; 2 1 Hodges, 395 "Wade V. Baker, 1 Ld. Raym. 130 .... "VVadham v. Postmaster Gen., L. R. 6 Q. B. 644 ; 40 L. J. 24 L. T. 545; 19 W. R. 1082 .... Wakefield v. Brown, 9 Q. B. 209 ; 10 Jur. 853 ; 15 L. J. Walker r. Pjeauchamp, 6 C. & P. 552 Jur Soott, 263 ; 68 r. Giles, 6 C. B. 662 ; 18 L. J. C. P. 323 ; 1 V. Gode, 6 H. & N. 594 V. Hatton, 10 M. & W. 249 ; 2 Dowl. N. S. Waller v. Andrews, 3 M. &AV. 312 ; 1 H & H. 87 Wallis V. Delniar, 29 L. J. Ex. 276 . '('. Hands, (1893) 2 Cli. 75 ; 62 L. J. Ch. 586 41 W. R. 471 ; 3 R. 351 . Walrond v. Hawkins, L. R. 10 C. P. 342 ; 44 L. J. C. P T. 119 Walsh V. Fussell, 6 Bing. 163; 3 M. & P. 457 . V. Lonsdale, 21 Ch. D. 9 ; 52 L. J. Ch. 2; 46 W. R. 109 Walters v. Pfeil, M. & M. 362 . V. Webb, 9 Eq. 83 ; 5 Ch. 531 ; 39 L. J. Ch. T. 657 ; 18 W. R. 86, 587 .... Ward V. Carrtar, 1 Eq. 29 ; 35 Beav. 171 . V. Clarke, 12 M. & W. 747 ; 1 D. & L. 102 229 ; 8 Jur. 364 ... . V. Day, 4 B. & S. 337 ; 5 id. 359 ; 33 L. J. Q T. 578 ; 12 W. R. 829 , V. Ryan, Ir. R. 10 C. L. 17 . V. Ward, L. R. 6 Ch. 789 .. , AVaruer's Case, Cro. Eliz. 461. .... Warren v. Murray, L. R. (1894) 2 Q. B. 648 Waterloo v. Cull, 1 E. & E. 213 ; 28 L. J. Q. B. 70 ; 29 Jur. N. S. 464, 1288' Waterpark v. Feuncll, 7 H. L. C. 650 ; 7 W. R. 634 ; 5 Q. B }. B 588, 116 L. T. 8, 414, ; 13 B. 1135 Watkins, Re, 13 Ch. D. 252; 49 L. J. Bank. 7 ; 41 L. W. R. 127 Watkins v. Nash, 20 Eti. 262 ; 44 L. J. Ch. 50.5 ; 23 W. Watson V. Atkins, 3 B. & Aid. 647 . V. Home, 7 B. & C. 285 ; 1 M. & Ry. 191 . V. AValtham, 2 A. & E. 485 ; 4 N. & M. 537 . L. T 677 254 id. Jur, T. 56 703 ; . 134 . 176 310; 58, 91 373 . 64 . 246 753 . 132 . 39 82, 83, 88 . 100 . 47 428 ; . 51 32 L. 92, 113 . 66 8 ; 31 2, 50, 129 . 163 21 L. . 197 195 L. J. Ex. . 181 10 L. 109, 110, 111 27, 30 . 208 . 18 . 205 10 ; 5 . 97 N. S. . 230 5; 28 . 150 V. 647 . 250 65, 96, 98 . 98 . 188 Ixii TABLE AND INDEX OF CASES. PAGE Weatherall v. Geering, 12 Ves. 504 ; 8 R. R. 369 . . . 79, 80 Weaver 1). Bush, 8 T. R. 78 17 Webb V. Adkins, 14 C. B. 401 ; 2 C. L. R. 702 ; 23 L. J. C. P. 95 .162 V. Russell, 3 T. R. 393 ; 1 R. R. 725 . . . 31, 60, 64 Webster v. Southey, 36 Ch. D. 9 ; 56 L. J. Ch. 785 ; 56 L. T. 879 ; 35 W. R. 622 ; 52 J. P. 36 203 Wefldall V. Capes, 1 M. & W. 50 ; 1 Gale, 432 50 Weld V. Baxter, 11 Exch. 816 ; 25 L. J. Ex. 214 ; 26 id. 112 ; 1 H. & N. 568 ; 3 Jur. N. S. 91 31 Wellesley v. Withers, 4 E. & B. 750 ; 24 L. J. Q. B. 134 ; 1 Jur. N. S. 706 161 Wells, Re, 42 Ch. D. 646 ; 58 L. J. Ch. 835 ; 61 L. T. 588 ; 38 W. R. 229 155 V. Attenborough, 24 L. T. 312 ; 19 AV. R. 465 ... 91 West V. Blakeway, 2 M. & Gr. 729 ; 5 Jur. 630 ; 3 Scott N. R. 199, 218 ; 9 Dowl. 846 112, 114 V. Dobb, L. R. 4 Q. B. 634 ; 5 id. 460 ; 38 L. J. Q. B. 289 ; 9 B. & S. 755 ; 20 L. T. 737 ; 17 W. R. 879 . 58, 64, 67 V. Fritche, 3 Exch. 216 ; 18 L. J. Ex. 50 133 . V. Houghtou, 4 C. P. D. 197 : 40 L. T. 364 ; 27 W. R. 678 . 104 Weston V. Metrop. Asylums, 8 Q. B. D. 387 ; 9 id. 404 ; 51 L. J. Q. B. 399 ; 46 L. T. 166, 580 ; 30 W. R. 459, 623 ; 46 J. P. 564 . 57 Wheatley v. Westminster Co., 9 Eij. 538; 39 L. J. Ch. 175; 22 L. T. 7 105 Wheeler v. Branscombe, 5 Q. B. 373 ; 13 L. J. Q. B. 83 ; 1 D. & M. 406 134 V. Montefiore, 2 Q. B. 133 ; 6 Jur. 299 ; 1 G. & D. 493 . 128 V. Stevenson, 6 H. & N. 155 ; 30 L. J. Ex. 46 ; 3 L. T. 702 ; 9 W. R. 233 77, 233, 234 White V. Bayley, 10 C. B. N. S. 227 ; 30 L. J. C. P. 253 ; 7 Jur. N. S. 948 46 V. Nicholson, 4 ]\I. & Gr. 95 ; 4 Scott K R. 707 ; 11 L. J. C. P. 264 94 V. Wakley, 26 Beav. 16 ; 28 L. J. Ch. 77 ; 4 Jur. N. S. 988 . 85 Whitmore v. Humphries, L. R. 7 C. P. 1 ; 41 L. J. C. P. 43 ; 25 L. T. 496 ; 20 W. R. 79 33, 34, 195 Whitton V. Peacock, 3 M. & K. 325 ; 2 Scott, 630 ; 2 B. N. C. 411 . 62 Whitworth v. Humphreys, 5 H. & N. 185 ; 29 L. J. Ex. 113 ; 8 W. R. 215 ; 6 Jur. N. S. 231 256, 257 Wliyman v. Garth, 8 Exch. 803 247 Wickenden v. Webster, 6 E. & B. 387 ; 25 L. J. Q. B. 264 ; 2 Jur. N. S. 590 89 Wight i;. Dicksons, 1 Dow, 141 102 Wildbor v. Rainforth, 8 B. .t C. 4 ; 2 M. & Ry. 185 . . . 9, 183 Wilkins v. Wingate, 6 T. R. 62 27 . V. Wood, 17 L. J. Q. H. 319 ; 12 Jur. 583 . . . .37 Wilkinson v. Calvert, 3 C. P. D. 360 ; 47 L. J. C. P. 679 ; 38 L. T. 813 ; 26 W. R. 829 36 TABLE AND INDEX OF CASES. I'AOE . 40 , Q. B. 374 ; C. P. 80 ; 30 99 221 "Wilkinson v. Colley, 5 Burr. 2694 • V. Collyer, 13 Q. B. D. 1 ; 53 L. J. Q. P.. 278 ; 51 L. T. 299 ; 32 W. R. 614 . V. Hall, 3 B. N. C. 508 ; 4 Scott, 301 ; 3 Hodges 56 . 131 V. Kirby. 15 C. B. 430 ; 23 L. J. C. P. 224 ; 1 Jur. N. S. 164 ; 2 C. L. R. 1387 190, 191 V. Rogers, 2 De G. J. & S. 62 ; 9 L. T. 434 ; 12 W. R. 119 ; 10 Jur. N. S. 5, 162 65, 89 WiUesden v. Paddington, 3 B. & S. 593 ; 32 L. J. M. C. 109 ; 11 W. R. 425 ; 9 Jur. K S. 874 36 "Williams, Ec, 34 Ch. D. 558 ; 56 L. J. Ch. 123 ; 55 L. T. 633 ; 35 W. R. 182 , Ec, 42 Ch. D. 93 ; 58 L. J. Ch. 451 ; 61 L. T. 58 • V. Bosanquet, 1 B. & B. 238 ; 3 Moore, 500 V. Cheney, 3 Ves. 59 V. Currie, 1 C. B. 841 V. Earle, L. R. 3 Q. B. 739 ; 9 B. & S. 740 ; 37 L. J. 231 ; 19 L. T. 238 ; 16 W. R. 1041 . V. Eyton, 2 H. & N. 771 ; 28 L. J. Ex. 146 ; 6 Jur. 770 ; 7 W. R. 291 V. Hay ward, 1 E. & E. 1040 ; 28 L. . N. S. 1417 ; 7 W. R. 563 . V. Heales, L. R. 9 C. P. 177 ; 43 L. J 20 ; 22 W. R. 317 .. . V. Jones, 11 A. & E. 643 . v. Pott, 12 Eq. 149 ; 40 L. J. Ch. 775 Williamson v. Williamson, 17 Eq. 549; 9 Ch. 729; 43 L. J. Ch 738 ; 30 L. T. 154 ; 31 L. T. 291 ; 22 W. R. 682 Willis, re, 21 Q. B. D. 384 ; 57 L. J. Q. B. 634 ; 59 L. T. 749 W. R. 639 V. Howe, (1893) 2 Ch. 545 ; 62 L. J. Ch. 690 ; 69 L. T 41 W. R. 433 Wilmot V. Freehold Co., 51 L. T. 552 . Wilson V. Abbott. 3 B. & C. 88 ; 4 D. & R. 693 V. Hart, 1 Ch. 463 ; 2 H. & M. 551 ; 35 L. J. Ch. 569 ; 14 L. T. 499 ; 14 W. R. 748 V. Queen's Club, (1891) 3 Ch. 522 ; 60 L. J. Ch. 69S : 65L.T. 42 ; 40 W. R. 172 , V. Wilson, 14 C. B. 616 ; 23 L. J. C. P. 137 Windsor's Case, 5 Co. Rep. 24 b Wing V. Angrave, 8 H. L. C. 183 ; 30 L. J. Ch 65 . Wingfield v. Tharp, 10 B. & C. 785 Winters, Dumergue, 14 W. R. 281, 699 ; 12 Jur. N. S. 726 V. Perratt, 9 CI. & F. 606 Wintle, re, 9 Eq. 373 ; 21 L. T. 781 ; IS \V. R. 394. Wisden v. Wisden, 2 Sm. & Giff. 396 ... . Withall V. Nixon, 28 Ch. D. 413 ; 54 L. J. Ch. 616 ; 33 W. R. 5 200 158 64, 76, 1-28 . 80 . 11 Q. B. 64, 66 N. S. . 252 Jur. . 234 L. T. 26, 232 . 19 195, 207 382, . 66 ; 36 . 132 358; . 217 . 261 . 46 65 . 135 94, 114 65 242 252 81 166 243 159, 161 565: 261, 265 XIV TABLE AND INDEX OF CASES. 593 144 524 C. 8]1 , 7 Jur AVogaii V. Doyle, 12 L. R. Ir. 69 Woilaston v. Hakewill, 3 il & Gr. 297 ; 3 Scott N. R C. P. 303 Wood V. Nunn, 5 Bing. 10 ; 2 M. & P. 27 V. Wheatcr, 22 Ch. D. 281 ; 52 L. J. Ch 31 AV. R. 117 Woodcock V. Gibson, 4 B. & C. 462 ; 6 D. & R Woodroffe v. Doe, 15 M. & W. 7(39 ; 2 H. L 13 id. 1013 . . , . . Woodhonse v. Balfour, 13 P. D. 2 . Woodward v. Goulstone, 11 App. Gas. 469 L. T. 790 ; 35 W. R. 337 . Woolcock V. Dew, 1 F. & F. 337 Woolerv. Knott, 1 Ex. D. 124, 265 ; 45 L. J. Ex. 313, 884 ; 34 362 ; 35 id. 121 ; 24 W. R. 615, 1004 Woolley V. Clark, 5 B. & Aid. 744 ; 1 D. & R AVoolway v. Rowe, 1 A. & E. 114 AVorge v. Relf, 11 L. J. M. C. 125 . Worsley v. Swann, 51 L. J. Ch. 576 . Worssam v. Vandenbrande, 17 W. R. Wrenford v. Gyles, Cro. Eliz. 643 . Wrentmore v. Hagley, 46 L. T. 741 . Wright V. Burroughes, 3 C. B. 685 ; 15 L, 10 Jur. 860 ; 4 D. & L. 226 V. Rogers, L. R. 1 P. & D. 678 ; 2 id. ■67 ;iOid. 8 ;21 L. T. 156; 2B id 19 id. 192 . V. Sanderson, 9 P. D. 149 ; 53 L. J. P 32 W. R. 560 .. . v. Tatham, 1 A. & E. 3 ; 3 N. & M. 268 J. 56 L. 409 C. P. .79 ; 569 PAGE . 28 10 L. J. 79, 81, 232 . 232 47 L. T. 440 ; J. Prob. 2 id. 158 1 : 51 277 ; 16 38 L. J. P. 17 W. R -lb. 49; 50L. T 959; 261 190 208 239 239 82 .. T. 56, 91 162, 163 228, 229 181 91 207 55 264 id. 6 , 9, 10 &M 833 62 769 239 239 239 Xenos v. Wickham, 13 C. B. N. S. 381 ; L. R. 2 H. L. 296 ; 31 L. J. C. P. 364 ; 36 id. 313 ; 16 L. T. 800 ; 16 W. R. 38 . . . 161 Yardley v. Holland, 20 Eq. 428 ; 33 L. T. 301 Yellowly v. Gower, 11 Exch. 274 ; 24 L. J. Ex. Yeo V. Leman, 2 Str. 1190 Young V. Harris, 65 L. T. 45 . !S9 . 215 . 94 196 ZoucH -y. Forse, 7 East 186 . . . . V. Willingale, 1 H. Bl. 311 ; 2 R. R. 770 188 45 TABLE OF STATUTES 6 Edw. 1, c. 5 13 Edw. 1, c. 18 5 Rich. 2, c. 8 15 Rich. 2, c. 2 4 Hen. 4, c. 8. 8 Hen. 6, c. 9 . 1 s. 2 . s. 3 . s. 4 . s. r> . s. 7 . 32 Hen. 8, c. 34 31 Eliz. c. 11 . 21 Jac. 1, c. 4, s. 4 21 Jac. 1, c. 14 21 Jac. 1, c. 15 12 Car. 2, c. 24, s. 8 . s. 9 . 29 Car. 2, c. 3, s. 3 8 Anne, c. 14. 4 Geo. 2, c. 28, ss. 2—4 7 Geo. 2, c. 20, s. 1 . s. 2 . s. 3 . 11 Geo. 2, c. 19. s. Ifi. s. 17 . . . 14 Geo. 3, c. 78, s. 41 . s. 83 . 39 & 40 Geo. 3, c. 88, s. 4 41 Geo. 3, c. 109, s. 35 . 52 Geo. 3, c. 146, ss. 5, 57 Geo. 3, c. xxix. . PAGE . 93 . 145 . 24, 291 19, 24, 291 24 292 9, 24, 292—294 . 292 . 22, 293 . 22 18, 23, 293 . 23, 294 61, 62 22, 24, 294 . 19 . 7 . 22, 24 57 Geo. 3, c. 52 W.Y.E. . 175, 176 . 175, 176 50, 51, 295 . 109 . 117 . 139, 141 . 139 . 140 5, 295 283, 284, 295 . 284, 296 . 99 . 95, 296 152 252 243 95 5, 283, 297 PAGE 59 Geo. 3, c. 12, s. 12 182 s. 13 182 s. 17 . , . . 180, 298 s. 24 . . 6,181,182,299 s. 25 . . 6, 181, 182, 300 6 Geo. 4, c. 133, s. 33 . . 99 1 & 2 Will. 4,c. 42, s. 3 . 182, 183 1 &2 Will. 4, c. 59 . . 182 2 Will. 4, c. 42 . . 182, 301 3 & 4 Will. 4, c. 27, s. 1 206, 212, 221, 225, 305 s. 2 ... 212, 220 s. 3 152, 196, 199, 200, 202, 203, 207, 220, 306 s. 4 , . . 202, 203, 307 s. 5 . . . 152, 201, 211 s. 6 . . . 152, 200, 307 s. 7 . 202, 203, 204, 205, 207, 216, 307 202, 205, 207, 308 202, 206, 207, 308 . 207,308 . 208, 308 . 178,308 . 209,309 197, 209, 220, 309 . 309 s. » s. 9 s. 10 s. 11 s. 12 s. 13 s. 14 s. 15, s. 16 . s. 17. s. 18 s. 19. s. 20. s. 21. s. 22. s. 23. s. 24. . 210, 220 . 211 . 210, 310 . 310 201, 211, 310 212,213,311 . 213, 311 . 213 217, 311 e Ixvl TABLE OF STATUTES. 3 & 4 Will. s. 25 4, c. 214, s. 26. s. 27. s. 28. s. 29. s. 30. s. 31. s. 32. s. 33. s. 34. s. 35. s. 36. s. 39. s. 41. s. 42. 3 & 4 Will S.2 . s. 4 . 3 & 4 Will. 4, c s. 1 s.2 3 4 5 6 7 4, c s. s. s. s. 8 . s. 9 . s. 10. s. 11. s. 12. 4 & 5 Will. 4, c 5 & 6 Will. 4, c 6 & 7 Will. 4, c 6 & 7 Will. 4, c 6 & 7 Will. 4, c 7 Will. 4 and 1 7 Will. 4 and 1 s. 3 . 8.4 . s. .5 . s. 6 . s. 7 . s. 8 . s. 9 . s. 10. PAGE 27 — continued. 215, 216, 220, 226, 311 . 217, 311 . 217, 312 209, 216, 218 222, 223, 312 223, 313 224, 313 224, 313 224, 313 224, 314 197, 314 93, 314 . 315 . 315 . 315 87, . 252 , 252 106, 164, 165, 166, 316 164, 317 165, 317 166, 318 166, 318 166,318 167, 318 167,319 167, 319 167,319 167, 320 . 320 . 181 , 181, 183 . 242 76 69, 242 252 242 86, s. 38 115 A'^ict. c. 22 Vict. c. 26, 64, 153, 187, 322 . 323 152. 324 163, 325 154, 325 154, 325 154. 325 155. 326 PAGE 7 Will. 4 and 1 Vict c.2Q— continued. s. 13 . . . . 154, 326 s. 14. . . . 154,326 s. 15 . . . . 155, 326 s. 16 . . . . 155, 326 s, 17 . . . . 155, 327 s. 18. . . . 155,327 s. 19 . . . . 155, 327 s. 20. . . . 156,327 s. 21 . . . . 156, 327 s. 22 . . . . 156, 328 s. 23 . . . . 157, 328 s. 24 . . . . 153, 328 s. 25 . . . . 157, 328 s. 26 . . . . 157, 328 s. 27 . . . . 158, 329 s. 28 . . . . 159, 329 s. 29. . . . 159,329 s. 30, . . . 160,330 s. 31 . . . . 160, 330 s. 32. . . . 160,330 s. 33 . . . . 160, 331 s. 34. . . . 161,331 s. 35 331 7 Will. 4 and 1 Vict.c. 28 . 221, 331 1 & 2 Vict. c. 74, s. 1 . 5, 281, 282, 283, 332 . 282,333 s. 2 s. 3 s. 4 s. 5 s. 6 s. 7 1 & 2 Vict. c. 109 1&2 Vict. c. 110, s 11 1 3 & 4 Vict. c. 31 3 & 4 Vict. c. 77 s. 19 . s. 2r) . 3 & 4 Vict, c, 84, s. 13 . 3 & 4 Vict. c. 113, s. 7 , 4 & 5 Vict.c. 38, ss. 17,18 5 & 6 Vict. c. 35, s. 103 5 & 6 Vict. c. 97, s. 2 6 & 7 Vict. c. 54. . 8 & 9 Vict. c. 16, s. 135 8 & 9 Vict. c. 18, s. 134 . 283,333 . 283,334 . 283,334 . 283,335 . 283,335 . 225 . 145, 147, 336 . 252 5, 284, 337 , 338 . 285, 338 . 223 5,285 . 98 . 18 . 223 . 43 . 43 TABLE OF STATUTES. Ixvii 8 & 9 Vict. c. 10(), s. 3 8 & 9 Vict. c. 112 . s. 1 . s. 2 . 8 & 9 Vict. c. 113, s. 1 8 & 9 Vict. c. 118, s. Ill 9 & 10 Vict. c. 95, s. 122 11 & 12 Vict. c. 43, s. 33 . s. 34 . 11 & 12 Vict. c. 63 . 14 & 15 Vict. c. 25, s. 1 14 & 15 Vict. c. 99, s. 14 14 & 15 Vict. c. 119 15 & 16 Vict. c. 24 . 15 & 16 Vict. c. 76, s. 170 s. 183 s. 188 s. 209 s. 210 s. 211 s. 212 6. 213 s. 214 s. 219 s. 220 15 & 16 Vict. c. 79, 15 & 16 Vict. c. 150 17 & 18 Vict. c. 104 17 & 18 Vict. c. 125 s. 16 . s. 26 . 18 & 19 Vict. c. 120 18 & 19 Vict. c. 121 19 & 20 Vict. c. 108 s. 50 . s. 51 . s. 52 . 20 & 21 Vict. c. 77, s. 62 . s. 63 . s. 64 . 22 Vict. c. 12, s. 5 22 & 23 Vict. c. 35, s. 3 . . 255, 12,71, 75, 175, . 117, 72, 117, 49, 190, ;. 13 s. 3 s. 282 s. 10.^ s. 19 274, PAGE 1 51 ,80, 339 3 4 340 4 340 249 5 285 275 283 285 285 99 46 179 243 99 154 ,341 255 265 178 272 343 117, 118, 232 343 118 344 118 345 258 345 191, 346 140 140 6, 286 99 241 6 230, 247 99 99 276, 278 274 274 240 240 240 6, 286 62, 347 22 & 23 Vict. c. s. 4 . s. 6 . s. 8 . s. 9 . s. 19 . s. 20 . 23 & 24 Vict. c. 23 & 24 Vict. c. s. 1 . s. 2 . ss. 3-11 . 23 & 24 Vict. c. 25 & 26 Vict. c. 27 & 28 Vict. c. 27 & 28 Vict. c. s. 1 . s. 2 . s. 3 . s. 4 . s. 5 . s. 6 . 29 & 30 Vict. c. 32 & 33 Vict. c. 32 & 33 Vict. c. 33 Vict. c. 14 . 33 & 34 Vict. c. 33 & 34 Vict. c. 34 & 35 Vict. c. 35 &; 36 Vict. c. 36 & 37 Vict. c. s. 24 . s. 24, sub-s. sub-s. sub-s. sub-s. sub-s. sub-s. s. 25, sub-s. sub-s. sub-s. 37 & 38 Vict. c. 37 & 38 Vict. c. 37 & 38 Vict. c. s. 1 . s. 2 . 196, 35 — continued. PAGE 38, s. 6 126, . 117 . 117 . 117 . 117 166, 347 166, ,347 . 114, 348 . 117,118,348 . 117 . 117 136, s. 13 6, 258 ] 02, s. 96 . 99 57, s. 12 . . 286 112, 145, 148, 348 . 348 149, 349 149, 349 . 349 . 350 . 99 95, 96 . 223 . 151 . 167 . 151 . 233 . 151 90, s. 10 41,s. 1 42 23 102 79 39 66, 60, 140, 350 1, .350 1, 142, 350 1, 351 . 143 2,351 2, 351 217, .352 2, 137, 352 149, 352 . 193 . 96 8 35 54, s. 8 57, 196, 197, 212, 352 201, 202, 211, 215, 353 IXVlll TABLE OF STATUTES. PAGE PAGE 37 & 38 Vict. c. 57— O07iiinued. 46 & 47 Vict. c. 52- ■continued. s. 3 . 197,210 215, 220, 354 s. 22, sub-s . 9 . . 173 s. 4 . 197, 210, 354 s. 43 . . 172 s. 5 . . 197 211, 215,354 s. 44, sub-s . 1 . 171, 172 s. . 213, 354 s. 45 . . 146, 172 s. 7 . 216, 218, 219, 220, 355 s. 47 . . 172 s. 8 . . 193 210, 221, 357 s. 48 . . 172 37 & 38 Vict. c. 78, s. 5 . . 169 s. 49 . . 172 37 & 38 Vict. c. 88, s. 37. . 241 s. 50, sub-s .4 . 173 38 & 39 Vict. c. 55, s. 54 . . 35 s. 94 . . 99 s. 54, sub-s . 1 . 171 s. 150 . 99 2 . 171 38 & 39 Vict. 0. 87, s 48. . 169 3 . 171 41 & 42 Vict. c. 31, s 6 . . 132 4 . 173 42 & 43 Vict. c. 8 . . 241 s. 55 . . 35, 173 42 & 43 Vict. c. 5'J . 93, 193 s. 57, sub-. 5.2 . 173 44 at 45 Vict. c. 41 . . 46 s. S3 . 173 s. 2, sub-s. 11 . 120, 357 s. 87, sub-s . 4 . 171 15 . 120, 358 s. 132 . 172 s. 4 . 170, 358 s. 138 . 172 s. 10 . 60, 63, 76, 358 s. 146 . 146 s. 11 . 60 135, 358 s. 168, sub -s. 1 . 171 s. 12 . 60, 63, 359 46 & 47 Vict, c .61, s. 14, sub-s. 1 69, 120, s. 28. . 43, 366 121, 359 s. 33 . 36, 37, 367 2 . 120 123, 359 s. 41. . 44, 367 3 . 123 124, 360 s. 54. . 36, 136, 368 4 . 124, 360 49 & 50 Vict, c .27, 5 . 125, 360 s. 2 . . 176 6 . , 70, 119, s. 3, sub-s. 1 . 176 120, 360 2 . 176 8 . 69 120, 361 s. 4 . . 176 tl . 78 125, 361 50 & 51 Vict, c . 26, s. 4 . 136, 368 a. 18 . 135, 361 51 & 52 Vict, c .43, s. 30 . 170, 363 s. 56. . 268, 369 s. 44, sub-s. 3 . 173 174, 364 s. 59. 268,26 9, 270, 275, 369 s. 58 . 64, 364 s. 60. . 268,370 s. 67 . 122, 365 s. 138 274 , 275, 276, 277, s. 69, sub-s. 1 . 126, 366 278, 279, 370 3 . 126, 366 s. 139 232 , 274, 275, 277, 45 & 46 Vict. c. 43, s 9 . . 132 278, 279, 371 45 & 46 Vict. c. 75, s 1 . 154, 366 s. 140 . 279, 372 46 & 47 Vict. c. 49 . 117, 140, 178, s. 141 . 279, 372 260, 265 s. 142 . 279, 373 46 & 47 Vict. c. 52 . . 100 s. 143 . 280,373 s. 20, sub-s. 1 . . 171 s. 144 . 280, 373 s. 21, 2 . 171, 172 s. 145 277, 280, 373 4 . . 171, 172 s, 186 . 276,374 TABLE OF STATUTES. Ixix PAGE PAGE 51 &; 52 Vict. c. 51, 54 & 55 Vict. c. 76 . . 99 s. -i . . 149 55 & 56 Vict. c. 13, s. 5 . . 148 s. 2, sub- s. 1 . . 122, 375 s. 6 . . 148 2 . 70, 119, 120 52 &c 53 Vict. 0. 4<1, 375 ss. 1-12 . ( s. 3 . . 78, 376 s. 9 . . 251 s. 4 . 123, 124, 376 53 Sc 54 Vict. c. 57, s. 5 . 123, 124, 376 s. 1 . 13fi, 374 56 Sc 57 Vict. c. 63, a . 3 . 154, 377 s. 2, sub-s. 2 136, 374 56 Sc 57 Vict. c.73,s. 6, sub-s. 1 53 & 54 Vict. c. 71. s. 13. . 173 183, 377 W.Y.E. / ADDENDUM. Page 65. A covenant by a lessee of a public house, to buy all beer from the lessor, runs with the lantl and reversion ; Clcgg v. Hands, 44 Ch. D. 503. THE LAW OF EJECTMENT. CHAPTER I. RIGHT OF ENTRY. To entitle a plaintiff to bring an action for the recover}' \yhat is a of possession of land he must have a right of entry either ° legal or equitable. A right of entry means a right to enter and take actual possession of lands, tenements, or heredita- ments, as incident to some estate or interest therein. Before the Judicature Acts this right of entry must have At common been, in any court of common law, a legal right ; a mere Q^'^g^be leqal equitable title would have been insufficient to support an action of ejectment {a). Since the Judicature Acts all since Judica- the courts are bound to give to a plaintiff, or to a defen- ^^^^t^bie' dant, the same relief upon an equitable title as the Court "8^1* suffi- cient. of Chancery would formerly have given (6). Now, there- fore, a plaintiff claiming possession under an equitable title will succeed upon proof of an equitable right to the actual possession (c). The person in whom the legal (a) Doe V. Wroot, 5 East, 132 Doe V. Williams, 2 M. & W. 749 Doe V. Passinghavi, 6 B. & C. 305 Doe V. TVebber, 3 B. N. C. 922 Goodtitle v. Jones, 7 T, R. 43 Doe V. Staple, 2 T. R. 684. W.Y.E. B (6) 36 & 37 Vict. c. 66, s. 24, sub-ss. 1, 2, 4. See App. B, pp. 350—351. (c) General Finance Co. v. Liberator, 10 Ch. D. 15, 24. LAW OF EJECTMENT. Mortgagor can sito for possession. Lognl title in courts of equity. Effect of Judi- cature Acts. Right of entry must be right to immediate possession. estate is vested must, however, be made a party to the proceedings (d). A mortgagor also who is entitled to possession, or to the receipt of the rents and profits, may sue for such possession or rents if no notice of his intention to take possession has been given by the mortgagee (e). Conversely, before the Judicature Acts, courts of equity would not usually grant relief to a plaintiff who had a legal title, though there were some exceptions to that rule (/) ; since those acts, courts of equity give the same effect to, and the same relief upon, legal titles as the courts of law (g). The effect of the Judicature Acts is that a tenant who has entered under an agreement for a lease, which is not valid as a lease, if he is entitled to specific performance, is in the same position as if a lease had been executed, and every branch of the high court will enforce his rights, as if a lease had actually been granted (fi). In the county court, however, the tenant cannot assert that right if the value of the premises exceeds the equitable jurisdiction of county courts {i). If, however, the tenant is not entitled to specific performance, he is, under such circumstances, no more than a tenant at will or yearly tenant upon such terms of the agreement as are not inconsistent with a yearly tenancy (h). The right of entry must be a right to the immediate (d) Allen V. Woods, 68 L. T. 143. (e) 36 & 37 Vict. c. 66, s. 25, sub-s. 5. See App. B, p. 352. (/) Howard v. Shrewsbury, 17 qE. 378. (g) 36 & 37 Vict. c. 66, s. 24, sub-ss. 6, 7. See App. B, p. (/i) TFahh v. Lonsdale, 21 Cb. D. 9 ; Swain v. Ayres, 21 Q. B. D. 289 ; Coatmcorth v. Johnson, 55 L. J. Q. B. 220 ; Lowther v. Heaver, 41 Ch. D. 248. .'^ee p. 50. (i) Foster V. Reeves, [1892] 2 Q. B. 255. RIGHT OF ENTRY. <■ possession of the property. A reversionary or other future estate is not sufficient until it has become an estate in possession by the forfeiture, defeasance, or expiration of the prior estate. If, therefore, it is shown that there is a tenancy existing in any other person wliicli is good against the plaintiff he cannot recover possession (k). So also if there is an outstanding term which has not been surren- dered (I). With regard to outstanding terms, before the statute Outstanding terms 8 & 9 Vict. c. 112, a jury Avas sometimes directed to pre- sume the surrender of a satisfied term. The mere fact that a term was satisfied, or the mere lapse of time, was cot sufficient ground for such presumption, and a jury would be directed to make such a presumption only when the estate had been dealt with in a way in which reason- able men would not have dealt with it unless the term had been surrendered {m) ; or when the presumption was to be made in favour of a beneficial owner who had a title good in substance and only wanting this collateral matter to make it good in form (m). The Satisfied Terms Act (n) provides that every satis- Satisfied terms fied term, which was on the 31st of December, 1845, either by express declaration or by construction of law, attendant on the inheritance of any land, shall on that day cease as to such land ; but that every term so attendant by express declaration shall continue to afford to everyone (k) Doe V. Wharton, 8 T. R. Garrard v. Tuck, 8 C. B. 231 ; 2 ; Doe v. Alford, 1 D. & L. 470; Cottrell v. Hughes, 15 C. B. 532 ; Doe V. Horn, 3 M. & W. 333. Evans v. Bicknell, 6 Ves. 173, (l) See cases in next note. 185 ; Doe v. Williams, 2 M. & (m) Doe V. Staple, 2 T. R. 684 Doe V. Wricjhte, 2 B. & Aid. 710 Doe V. Hilder, 2 B. & Aid. 782 Doe V. Plowman, 2 B. & Ad. 573 Doe V. Cooke, 6 Bing. 174, 179 Doe V. Langdon, 12 Q. B. 711 W. 749 ; Doe v. Scott, 11 East, 478 ; Doe v. Eeed, 5 B. & Aid. 232 ; Day v. Williams, 2 C, & J. 460. («) 8 & 9 Vict. c. 112. B 2 * LAW OF EJECTMENT. the same protection against charges, actions, and claims as if it had continued to subsist, but had not been assigned or dealt with after that date, and shall, for the purpose of giving such protection, be considered in every court of law or equity to be a subsisting term (o). Since that Act, only satisfied terms which were at its date, by express declara- tion, attendant upon the inheritance, can be set up to defeat a claim to the possession of the land, and then only when a jury would not be directed to presume its surren- der (2)), or a court of equity would not have restrained a party from setting it up (q). By the same Act it is provided that terms then subsist- ing, or thereafter created, becoming satisfied since the 31st of December, 1845, and attendant either by express de- claration or by construction of law, shall, immediately upon becoming so attendant, absolutely cease (r). In order that a term should cease under this section it must have become attendant upon the inheritance («), and must be satisfied (t). Wheu a term A term does not become satisfied unless the beneficial interest in the whole charge secured by the term, and the beneficial interest in the whole term, are united and merged in one person (u). A term attendant upon the inheritance can be dealt with only by those entitled to the inheritance, and an assignment thereof by a tenant for life is inoperative (./). (o) S. 1 ; Doe v. Price, 16 U. (s) Doe v. Jones, 13 Q. B. 774. & W. 603. (t) Anderso7i v. Pignet, 8 Oi. (p) A7ite, p. 3. ISO. (q) Cottrellv. Hughes, 15 C. Vj. (h) Anderson v. Pignet, 8 Ch. 532 ; Plant v. Taylor, 7 H. & K. 180, 189, per James, L.J. 211. (.'•) Plant V. Taylor, 7 H. i^^ N. (r) S. 2. 211. is satisfied. CHAPTER II. THE SEVERAL REMEDIES FOR THE RECOVERr OF POSSESSION OF LAND. The usual remedies for the recovery of tlie possession of any lands, tenements or corporeal hereditaments situate in England, Wales or Berwick-upon-Tweed are : I. Entry. Post, chap. 3, p. 9. II. An action in the High Court. Post, chap. 22, p. 253. III. An action in the County Court, where the County Court has jurisdiction. Post, chap. 23, p. 263. IV. Summary proceedings before justices by a land- lord against his tenant to recover possession of small tenements, after the expiration or deter- mination of the tenancy under 1 & 2 Vict. c. 74, s. 1 ; post, chap. 24, p. 281. V. Summary proceedings before justices by a landlord against liis tenant to recover possession of de- sertetl premises, under 11 Geo. 2, c. 19, as amended by 57 Geo. 3, c. 52; post, chap. 24, p. 283. VI. Summary proceedings before justices to recover pos- session of: (a) schoolhouses from the masters thereof, under 3 & 4 Vict. c. 77, s. 19, and 4 & 5 Vict, c. 38, ss. 17, 18 ; post, chap. 24, p. 285 ; (b) of allotments, under 8 &: 9 Vict. c. 118, s. Ill ; post, chap. 24, p. 285 ; LAW OF EJECTMENT. (c) of encroachments on lands to be enclosed, under 15 & IG Vict. c. 79, s. 13 ; post, cliap. 24, p. 286 ; (d) of lands vested in the secretary of state for war, under 22 Vict. c. J 2 ; post, chap. 24, p. 286 ; (e) of parish or union houses or lands, under 59 Geo. 3, c. 12, ss. 24, 25, and 5 & 6 Will. 4, c. 69, s. 5 ; post, chap. 16, p. ISO. (f) of school and other buildings belonging to charities from officers or recipients, under 23 & 24 Vict. c. 136, s. 13 ; post, chap. 24, p. 286. VII. After a forcible entry, or detainer, or an unlawful entr}^ and forcible detainer, by indictment or inquisition before justices and a jury ; post, chap. 4, pp. 21 — 24. VIII. Under an arbitration and award. Award. Former pro- cedure under C. L. P. Act, 1854, s. 16. Formerly the procedure for recovering possession under an award was regulated by the Common Law Procedure Act, 1854 (a). Under that act, where an award was made on any submission directing that possession of any lands or tenements capable of being the subject of an action of ejectment should be delivered to any party, or that any such party was entitled to the possession thereof, and the submission was or was not made a rule of court (h), the court might order any party in possession or any person claiming through or under liim by title subse- quent to the date of the submission, to deliver possession to the party entitled thereto under the award. This order had the effect of a judgment in ejectment, and might be enforced in the same way. (a) 17 & 18 Vict. c. 125, s. 16. (b) Davey v. Railway Assurance Co., 49 L. J. Cli. 568. THE SEVERAL REMEDEIS 7 These provisions are now repealed l)y the Arbitration Presejit pro- . -loorv / N 1-1 -1 / 7\ 1 1 • • ceilure under Act, lb8y {c), winch provides (a) that " a submission, Arbitration unless a contrary intention is expressed therein, shall he ^"^V^T^' irrevocable, except by leave of the court or a judge," and sliall have the same effect in all respects as if it had been made an order of court ; and an award on a submission may, by leave of the court or judge, be enforced in the same manner as a judgment or order to the same effect (/). If after an award the successful party brings an action of ejectment, the award precludes the other party from disputing his title (g). IX. The crown may recover possession of lands by an in- inronaation formation of intrusion exhibited by the attorney-general (h). ^^ intrusion. The crown had not the right "of its prerogative to lay the venue in any county it chose, or to have the hearing in a different county from that in which the venue was laid (i) ; now local venues are abolished altogether except where it is otherwise provided by statute (k). The defendant to an information of intrusion cannot what det'en- plead the general issue, but must specially plead his own '^^.nt must title, unless the crown has been out of possession for more than twenty years, and then the onus is on the crown to prove its title (I). A grantee or lessee of the crown may recover possession Grantee from by action of ejectment (m). X. An action for recovery of land cannot be maintained Petition of against the crown or any of its immediate officers or " (c) 52 & 53 Vict. c. 49 ; Smith & W. 171, overruling on that V. Nelson, 63 L. T. 475. point Att.-Gen. v. Parsons, 2 M. (d) S. 1. & W. 23. (/) S. 12. {k) R. a. C. Ord. 36, r. 1. (g) Doe V. Rosser, 3 East, 15. (I) 21 Jac. 1, c. 14 ; Att.-Gen. {h) Manning's Practice, p. 198 ; v. Parsons, 2 M. & W. 23. Cole, Eject, p. 62. (m) Doe v, Roberts, 13 M. & W. (i) Att.-Gen. v. Churchill, 8 M. 520. LAW OF EJECTMENT. servants in possession on its behalf, and any such proceed- ings will be stayed upon a summary application by the attorney-general (n). The remedy is by petition of right (o). (n) Doe V. Eoe, 8 M. & W, (o) Sadlers' case, 4 Co. Eept 579. 55 a ; Ad. Eject, p. 16. CHAPTER III. ENTRY. Any person who has a right to the immediate posses- Entry, sion of land may proceed to recover such possession by means of any one of the remedies enumerated in the pre- ceding chapter which may be apphcable to his case. He may either take legal proceedings, or he may enter upon the land and take actual possession thereof. Even if he j^fter legal has taken legal proceedings and obtained judgment for proceedings, possession, he is not precluded from entering and taking actual possession ; and this is so although the judgment is for possession after a certain time which has not expired Qj). He may either enter himself (q), or he may for this Entry by jjurpose employ any person as his agent (r). The authority of an agent need not be given in any formal manner {s), except that a corporation aggregate cannot authorise an entry for condition broken otherwise than by deed {t). He may subsequently ratify and adopt an entry made on his behalf by a stranger (s). A demise may be made to a tenant, who may then enter {u). ascent. (2J) Jones v. 3^ley, [1891] 1 Q. B. 730. (q) Taylor v. Cole, 3 T. R. 292 Davis V. Burrell, 10 C. B. 8i!l Wiklhor v. Rainforth, 8 B. «& 0. 4 ; Turner v. Meymott, 1 Binj. 158 ; Wright v, BwTOuyhes, 3 1128. C. B. 685 ; Taimton v. Costar, 7 (0 1 Rolle Abr. 514. T. R. 431 ; Lews v. Telford, 1 (w) Doe v. JVood, 2 B. & Aid. App. Cas. 414. 724. (r) Butcher v. Butcher, 7 B. & C. 399 ; Hey v. Moorhouse, 6 B. N. C. 52 ; Jones v. Chapman, 2 Exch. 803 ; Jones v. Foley, [1891] 1 Q. B. 730. (s) Fitchet v. Adams, 2 Strange, 10 LAW OF EJECTMENT. Effect of entry. Mode of entry. A lawful entry upon any part of the property in the name of the whole enures as an entry into every part (x), unless the land be in different counties, when a separate entry must be made in each county {y). If there be two or more disseisors, as their seisin is distinct, so also must be the act which divests that seisin {z). The person entering need only do some act upon the premises showing his intention to take possession {a). Where a person having a right of entry has entered, and has become peaceably and lawfully possessed, he be- comes possessed of such an estate as was vested in him before and at the time of his entry (J)). A surrenderor of copyholds, or a lessor, who enters lor conditions broken is entitled to possession free from the surrender or the lease (c). When a person has so entered and become possessed, he may turn out all previous occupiers, or other persons, as tres- passers, using no more force than is necessary {(I) ; or may bring an action of trespass against them (e). If, however, his entry is made under such circumstances as to be a forcible entry (/), he is liable in damages for any indepen- dent wrung or injury done to the occupier or other person, such as an assault or injury to property ((/) ; but he is nut Ousting occupiers (.e) Litt. .s. 417 ; Cutton''s case, Cro. Eliz. ls9. iy) Co. Lit. 252 b. (.) Id. (a) Butcher v. Butcher, 7 B. it C. 399 ; Hey v. Moorhouse, 6 B. N. C. 52 ; Doe v. Wood, 2 B. & Aid. 724, 741. (b) Sjjotawood v. Burrow, 5 Exch. liO, 113; Doe v. Wood- roffe, 10 M. & W. 608, 032 ; Loics V. Telford, 1 App. Cas. 414. (c) Himonds v. Laiond, Ci'o. EUz. 239. ((/) Wright V. BurrougJtes, 3 C. B. 085 ; Harvey v. Brydges, L4 M. & W. 437 ; Browne v. Daw- son, 12 A. & E. 624 ; Hey v. Moorhouse, 6 B. N. C. 52 ; Blades V. Higys, 30 L. J. C. P. 347 ; Scott V. Brown, 51 L. T. 746. (t) Butcher V. Butcher, 7 B. & C. 399 ; Hey v. Moorhouse, 6 B. 1^. C. 52. (/) Jones V. Foley, [1891] 1 Q, B. 730. See Chap. 4. (g) Beddall v. Maitland, 17 Ch. D. 174 ; Edwick v. Haiokes, ENTRY. 11 liable to an action for trespass to the land (li), though he may have broken open doors (/), or pulled down the premises (/,;). If the entry is forcible he is liable to be indicted {I), but he can retain the possession which he has acquired, unless a writ of restitution is awarded upon a prosecution for the forcible entry {in). If he is sued for trespass, he may answer that the land was his freehold, or was not the land of the plaintiff, and that he entered by virtue of a lawful title {n). If sued for assault he must plead that ho was lawfully possessed of the land, and committed the acts complained of in defence of his possession (o). If the right to enter and take actual possession be clear and free from all doubt, the remedy by entry may, in many cases, be preferable to the remedy by legal proceed- ings, as saving delay and expense. On the other hand, if there be any doubt as to the right to enter, it is better to proceed by law, and to have the right judicially determined in the first instance ; for the person entering may be sued for trespass or assault, and be mulcted in heavy damages, if he has been mistaken as to his right to enter, or has asserted that right in an unlawful man- ner (p) ; or may be harassed by having his cattle dis- 18 Ch. D. 199 ; Neidon v. Har- 904. land, 1 M. & Gr. 644 ; Jones v. {I) See Chap. 4. Foley, [1891] 1 Q. B. 730. {m) See pp. 21—24. Qi) Davison v. Wilson, 11 Q. B. (u) Jones v. Cha-pman, 2 Exch. 890 ; Burling v. Read, 11 Q. B. 803 ; Browne v. Dawson, 12 A. & 904 ; Taunton v. Gostar, 7 T. R. E. 624 ; Burling v. Read, 11 Q. B. 431 ; Harvey v. Brydges, 14 ]\I. & 904 ; Harvey v. Brydges, 14 M. & W. 437 ; Browne v. Daioson, 12 W. 437, 442 ; Davison v. Wilson, A. & E. 624 ; Blades v. Higgs, 30 11 Q. B. 890. L. .J. C. P. 347 ; Pollen v. Breifcr, (o) Roberts v. Taijler, 1 C. B. 7 C. B. N. S. 371. 117. [i) Turner v. Meymott, 1 Bing. (^j) Merest v. Harcey, 5 Taunt. 158. ' 442 ; Williams v. Gurrie, 1 C. B. (k) Burling v. Read, 11 Q. B. 841. 12 LAW OF EJECTMENT. trained damage feasant (q). There is also the danger of being indicted (r) for forcible entry ; the law relating to forcible entries and detainers is by no means clear, and there is always a danger of being guilty of some excess of force or violence in taking possession, especially where resistance is offered. There are often advantages to be gained by taking legal proceedings instead of entering and taking possession: a title topossession judicially determined is much less likely to be questioned than one gained by entry only ; and, under the C. L. P. Act, 1852 («), an action to recover possession for non-payment of rent may, in some cases, be brought, though no actual entry could be made, because no demand of payment had been made (t). (q) Taunton v. Costar, 7 T. E. (s) 15 & 16 Vict. c. 70, ^josf, 431. p. 77. (r) Post, Chap. 4. {t) S. 210, post, p. 77. CHAPTER IV. FORCIBLE ENTRY AND DETAINER. A PERSON who makes a forcible entry upon lands or Forcible •^ ^ , entry, tenements, whether he is entitled to the possession or not, commits an imlawful act (^0, and is liable either to an in- dictment at common law (6), or to criminal proceedings Criminal ^ proceedings, under the statutes relating to forcible entry, and to be com- pelled to restore possession of the property to the person whom he has dispossessed (c). In certain cases, if the person entering forcibly is not Action for •IT • p I ■ -1 1 trespass, entitled to the possession, damages for the lorcible entry can be recovered against him by the person upon whose possession such forcible entry has been made, under the statute 8 Hen. 6, c. 9 {d) ; or in an ordinary action of trespass, in which the damages will probably be large, on account of the violence (e). If the person entering forcibly is entitled to possession, no action for trespass in respect of the entry will lie against him (/), but for any indepen- dent wrong (such as an assault, or injury to furniture) committed in the course of the forcible entry, damages can be recovered by the person injured {g). (a) Pollen v. Brewer, 7 C. B. (d) Post, p. 18. N. S. 371 ; Neioton v. Harland, I (e) See p. 11. M. & Gr. 644 ; Edwick v. HmvJ:es, (/) See pp. 10—11. 18 Ch. D. 199 ; Loivs v. Telford, (•) Id. s. 26. 22. (s) Vin. Abr., Forcible Entry (z) Beade v. Orme, siqira. (A 5, 6) ; Hawk. P. C, I. c. 64, {a) Hawk. P. C, I. c. 64, s. s. 27 ; Edwick v. Hawles, 18 Ch. 24 ; Bac. Abr., Forcible Entry D. 199. See p. 10. (B) ; Vin. Abr., Forcible Entry (t) Edwick V. Haivkes, supra. (A 4). (it) Bac. Abr., Forcible Entry 16 LAW OF EJECTMENT. Who may prosecute. Forcible detainer. Peaceable and lawful entry. Forcible entry may be resisted. enters upon the land, or forcibly ejects or keeps out of possession his co-tenant, is guilty of a forcible entry (b). If the legal possession is in any person, whether he has obtained it by force or otherwise, he is entitled to indict any other persons who enter forcibl}^ even those whom he himself dispossessed (c). Forcible detainer is where a man, having entered forcibly, or peaceably but unlawfully, afterwards detains possession by force (d). The same circumstances of force and violence which will make an entry forcible (e) will also make a detainer forcible. Mere refusal to go out on request, or a passive resistance to expulsion, or a barri- cading of the house, is not sufficient to constitute a forcible detainer. There must be some actual menaces, intimida- tion, or personal violence (/). A detainer may be forcible though no attempt to enter be made (g). A person who has a right to the possession, and enters , peaceably, cannot be convicted for a subsequent forcible detainer of possession (h). A tenant for years, or at will, who, after the term is ended or the will determined, for- cibly detains possession from the reversioner, is perhaps guilty of a forcible detainer (i). A forcible entry may be resisted by the person lawfully (h) Bac. Abr., Forcible Entry (D) ; Hawk. P. C, I. c. 64, s. .33 ; Vin. Abr., Forcible Entry (A 14). (c) Loivs V. Telford, 1 App. Cas. 414. (d) Com. Dig., Forcible Entry (B) ; 15 Eic. 2, c. 2 ; 8 Hen. 6, G.9',R. V. OaMeii, 4 B. & Ad. 307. (e) Ante, p. 14. (/) Hawk. P. C, I. c. 64, s. 30 ; Com. Dig., Forcible De- tainer (B 2). (g) Snigrje v. Shirton, Ci'o. Jac. 199; B. V. Wilson, 3 A. & E. 817. (h) Taylor v. Cole, 3 T, K. 292, 295. (i) Snifige v. Shirton, Cro. .Jac. 199 ; R. V. Oaliey, 4 B. & Ad. 307, 312 ; R. v. TFilson, 3 A. & E. 817 ; Hawk. P. C, I. c. 64, s. 23 ; see Bums' Justice, II. 598 (ed. 30). FORCIBLE ENTRY AND DETAINER. X7 in possession, -without any previous request to desist, for " there is a manifest distinction betvveen endeavouring to turn a man out of a house or close into wiiich he has previously entered quietly, and resis,ting a forcible attempt to enter. In the first case a request is necessary, in the latter not" (k). The person injured may prefer an indictment under the Indictment, statutes for a forcible entry or detainer at the quarter sessions or the assizes (l). The indictment must set out the nature of the estate of the party on whose possession the forcible entry was made (on). If he has a fee simple, the indictment is sufficient, if it allege that he was seised, Under and in possession (n) ; if he has an estate tail or for life merely, it should be described as such ; while if he has only an estate for a term of years the indictment should allege an entry into the freehold of A. in the possession of B. (o). Possession is priTYid facie proof of seisin, but this presumption may be rebutted {p). An indictment will lie at common law for a forcible At common law. entry with strong hand, or with multitude of persons in a violent and tumultuous manner in breach of the public peace [q), not for a mere trespass vi et arniis and unlawful expulsion from the land (r). The indictment must charge Qc) Polkinhorn v. Wright, 8 Q. (?i) R. v. Hoare, 6 M. & S. B. 197 ; Green v. Goddard, 2 266 ; Ellis's case, Cro. Jac. 634 ; Salk. 641 ; JFeaver v. Bush, 8 T. R. v. Griffith, 3 Salk. 169 ; R. v R. 78. Wilson, supra. (I) R. V. Harland, 8 A. & E. (o) R. v. Griffith, supra. 826. For statutes, see App. ip) See p. 227. See R. v. B, pp. 291—294. CJiild, 2 Cox, C. C. 102 ; Jayne (m) R. V. Wannop, Sayer, 142 ; v. Price, 5 Taunt. 326. R. V. Bathurst, Sayer, 225 ; R. v. (g) R. v. Blake, 3 Burr. 1731. BlaJce, 3 Burr. 1731 ; R. v. (r) R. v. Storr, 3 Burr. 1698 ; Wilson, 8 T. R. 357, 360; but R. v. Atkins, Id. 1706; R. v. see R. V. Child, 2 Cox, C. C. Wilson, 8 T. R. 357, 360. 102. W.Y.E. 18 LAW OF EJECTMENT. the defendant with having used such a degree of force as constitutes a public breach of the peace (s). It is not necessary at common Law to set out the estate of the prosecutor ; it is sufficient if the indictment allege that he was possessed (f). It must appear on the face of the indictment, either under the statutes or at common law, that the entry was made in such a manner as to be an indictable offence ; Indictment merely to allege that it was witli " force and arms," with- must allege i i ,» • nr^ • ^ /< force. out " with a strong hand, is not surticient, as such force must be shown as implies a breach of the public peace (u). The words " with a strong hand " imply sufficient violence, and an indictment alleging that the defendants with force and arms, and with a strong hand, unlawfully entered and expelled, is sufficient (x). The actual number alleged to be present is almost immaterial if no force be shown (y). 8 Hen. 6, Under the statute 8 Hen. 6, c. 9 (z), a freeliolder may c. 9. Action ]jj.jj^g r^^ action for trespass for a forcible entry or detainer. This remedy is given to the " disseissor," and a disseissor is one who takes the freehold («) ; if, therefore, the person's possession is unlawful he cannot recover any damages (b). The plaintiff may recover treble damages as well for the mesne occupation as for the wrongful entry, together with full costs, charges, and expenses, pursuant to o & 6 Vict. c. 97, s. 2, in lieu of the treble costs to wiiieh he was formerly entitled under the statute (c), but not the costs (s) B. V. Wilson, supra. (s) S. 6. (t) Arch. Grim. Plead, p. 966 (a) Anon., 3 Salk. 169 ; Cole (ed. 21). V. Eagle, 8 B. & C. 409. {u) B. V. Blake, 3 Burr. 1731 ; {h) Beddall v. Maitland, 17 ! Warner and Collins' case, Cro. Ch. D. 174, 188. Eliz. 461. {c) Milner v. Maclean, 2 C. & {x) B. V. Wilson, 8 T. R. 357. P. 17, note (c) ; Co. Lit. 257 b. [y) B. V. Blake, supra. FORCIBLE ENTRY AND DETAINER. 19 of prosecuting the defendant for the forcible entry (d). The defendant may plead " not guilty by statute " (e), and under such defence he may dispute the plaintiffs title and raise any defence under the statute or at common law(/). The right to plead " not guilty by statute " is preserved by Plea of not the Rules of the Supreme Court, 1883 (g), and the mode of pleading it is there prescribed (h), but if such defence is pleaded, the defendant cannot without leave plead any other defence to the same cause of action (g). In this action restitution cannot be awarded (i). By the statute 15 Rich. 2, c. 2, a forcible detainer, when Summary preceded by a forcible entry, is an offence cognizable by oMustices!^ justices in a summary way, and by the statute 8 Hen. 6, Forcible c. 9, a forcible detainer, when preceded by a peaceable but unlawful entry (k), and perhaps also in some cases a detainer. forcible detainer even when the entry was peaceable and lawful {I), is an offence so cognizable. Under the latter statute justices may also summon a jury to inquire into any forcible entry or forcible detainer. When complaint is made to a justice of the peace of a Viewing the forcible entry and forcible detainer, or of an unlawful entry and forcible detainer (which complaint may be made orally and without oath), the justice should take sufficient force and go to the house or other place mentioned, and then upon his own view ascertain whether the place is holden by force ; and for this purpose he may order outer doors to be broken open. If he be satistic-d that it is so held (d) Pocock V. Faulks, 10 Times B. 890. Rep. 183. ig) Ord. XIX. r. 12. (e) 21 Jac. 1, c. 4, s. 4. (h) Ord. XXI. r. 19. (/) Ross V. Clifton, 11 A. & E. (i) Vin. Abr., Forcible Entry 631 ; Maund v. Monmouth, Car. (15)- & M. 606 ; Anon., 3 Salk. 169 ; (k) Reg. v. Oakley, 4 B. & Ad see Williams v. Jones, 11 A. & E. 307. 463; Davison v. Wilson, 11 Q. (l) Ante,ix 16. c 2 20 LAW OF EJECTMENT. Procedure. Conviction, what it must .show. lie may either arrest the offender on the spot and remove the force or, if he adjourn to another place, ho must summon the offender to appear before him to answer the charge. In any case he must examine witnesses in order to ascertain the nature of the defendant's entry, whether it was forcible, or peaceable but unlawful. The inquiry may take place on the spot in the defendant's presence, or if it is adjourned elsewhere, the defendant must have notice in order that he may have the opportunity, if he wishes, of being heard. If after such notice he fails to appear, the inquiry may proceed in his absence (m). The justice's own view can only be evidence of the forcible de- tainer, and is sufficient for that purpose without the neces- sity of hearing evidence on that point (n). If the justice is satisfied that the offence has been committed he should commit the defendant and make a record of the force (o). The conviction must show that the justice did inquire, that the defendant had notice, and had an opportunity of being heard (p), the nature of the entry, and probably the facts from which the nature of the entry is inferred (q) ; it is not sufficient to state merely the fact of the prosecutor having complained (r). The conviction must also show that a fine was imposed (s), and that the offender was committed until the fine was paid (t), though the amount of the fine may be fixed after the conviction (u). The Queen's Bench will not compel justices to exercise their summary jurisdiction by granting a mandamus (x). (m) E. V. JVilsoji, 3 A. & E. 817, 826. (n) Hawk. P. C, I. c. 64, s. 60 ; B. V. TVilson, supra. (o) Vin. Alir., Forcible Entry (F 10). (p) Attwood V. Joliffe, 3 New Sess. Cas. 116. (g) B. V. Wilson, 3 A. & E. 817 ; E. V. Oakley, 4 B. & Ad. 307. (r) R. V. Wilson, supra; B. v. Oakley, supra. {s)R. V. Elvell, 2 L. Ray. 1514. (0 E. V. Hord, Sayer, 176. (u) B. V. Layton, 1 Salk. 353. (x) Ex parte Davy, 2 Dowl FORCIBLE ENTRY AND DETAINER. 21 A single justice may execute this summary jurisdic- tion {y). In cities, towns, and boroughs having franchise, the mayors, justices, sheriffs and bailiffs have like power as justices elsewhere to remove forcible entries, etc. ; so, too, has the lord mayor of London (z). Restitution of possession can be granted either where Restitution. proceedings have been taken by indictment under the statutes, or where summary proceedings have been taken before justices ; but not after an indictment at common law. In the case of an indictment at the assizes or quarter After indict- •f 1 1 • n 1 1 -11 1 raent found, sessions, it the grand juiy rind a true bill the court may, before conviction, upon the application of the prosecutor, award restitution, the finding of a true bill being necessary to give the court jurisdiction to award restitution. It is entirely in the discretion of the court to grant or refuse a writ of restitution at this stage ; and they may sometimes require the case to be made out by affidavit («). The Queen's Bench will not review their decision (a). The defendant can show by affidavit when the writ is prayed for that the prosecutor's interest has ceased ; or can, if the writ be granted, apply to have it quashed ; oi', on giving indemnity to the sheriff, can get him to return upon the writ any special matter, in which case the prosecutor can either object to the return for insufficiency in law, or bring an action for a false return if the return is inaccurate in fact (b) ; or can allege for a stay of restitu- tion that he has had occupation or quiet possession for three years together next before the day of such indict- N. S. 24 ; Ex parte Fidder, 8 (a) Bac. Abr., Forcible Entry Dowl. 535. (F) ; R. v. Dillon, 2 Chit. 314 ; {y) Hawk. P. C, I. c. 64, s. 8. B. v. Harland, 8 A. & E. 826 ; (2) B. V. Layton, 1 Salk. 353 ; B. v. Hake, 4 M. & R. 483 ; Com. 15 Rich. 2, c. 2 ; 8 Hen. 6, c. 9, Dig., Forcible Entry (D 5). p. 6. (6) B. V. l)illo7i, 2 Chit. 314. 22 LAW OF EJECTMENT. To whom restitution may he awarded. Against whom. Restitution after summary proceedings. ment so found, and that his estate therein is not ended or determined. If the prosecutor traverse this last allega- tion the question must be tried, and if it be found against the defendant, the defendant must pay to the prosecutor .such costs and damages as shall be assessed by the judges or justices before whom the same is tried, which can be recovered and levied in the same way as costs and damages in judgments upon other actions are recovered (c). Restitution upon indictment found may be awarded to freeholders, or to tenants for terms of years, tenants by copyhold, by elegit, and others (d). An award of restitution will only be made where the person who forcibly entered or detained had actually ousted the prosecutor, and is himself in possession at the time the indictment is found (e). If a person who has a right to enter, enter by force, he may be indicted, not- withstanding his right, and restitution may be awarded (/). Justices cannot upon their own view of the force award restitution without an inquisition and verdict of a jury (g). The proper course to pursue is as follows : Where com- plaint is made to justices of a forcible entry and detainer, or of an unlawful entry and forcible detainer, the justice may, if necessary, remove the force and convict the offender (h) ; he should then issue a prsecept directed to the sheriff of the county to summon and return a jury to inquire into the matter (i). A time and place for the hearing must be fixed, and notice given to the defendant and the other parties to appear before him (k). The complainant must prove a forcible entry and detainer (c) 31 Eliz. c. 11. (d) 21 Jac. 1, c. 15 ; App. B, p. 294. (e) Anon., 3 Salk. 169. (/) Dalton, c. 182. (g) Hawk. P. C, I. c. 64, s. 50. (h) Ante, p. 20. (t) 8 Hen. 6, c. 9, ss. 3, 4. (^) Hawk. P. C, I. c. 64, s. 60 ; Bac. Abr., Forcible Entry (G). FORCIBLE ENTRY AND DETAINER. 23 or an unlawful entry and forcible detainer (l). The de- fendant can deny the force, or plead that his entry was peaceable and lawful (rii), or that he or his ancestor has been in possession for three whole years together of a lawful estate (n), and that his estate therein is not ended or determined (o). The issues must then be tried by a jury and no award of restitution can be made until they have been tried (p). If the jury find in favour of the complainant, an inquisition should be drawn up and signed by each of them and by the justice, which must be kept by the justice unless the inquiry is moved by certiorari into the Queen's Bench Division. Upon the inquisition being found in fayour of the complainant the justice is bound to grant restitution (q), and will at once put the complainant into possession, peaceably if possible, and make an indorsement on the inquisition of such possession having been delivered. The inquisition must set out the estate possessed by the complainant in the property in dispute (r). If possession cannot be obtained peaceably, a warrant should be directed to the sheriff to put the com- plainant in possession (.s). The justice in all cases must indorse on the inquisition a memorandum of the writ of possession being granted and what has been done under it. The justices, or any one of those who have awarded Supersedeas restitution, may themselves supei'sede the praecept for of restitution. restitution before it is executed, if the indictment or in- By justices. quisition appear to them to be insufficient (f). The Queen's o c n (l) B. V. Wilson, 3 A. & E. {p) R. v. Harris, 1 Salk. 260 ; 817 ; B. V. Oakley, 4 B. & Ad. JL v. JVi7iter, 2 Salk. 587. 307. (q) B. V. Harland, 8 A. & E. (m) Ante, p. 19. 826. (n) 8 Hen. 6, c. 9, s. 6 ; Hawk. (r) B. v. Bowser, 8 Dowl. 128. P. C, I. c. 64, s. 53 ; Bac. Abr., (s) Hawk. P. C, I. c. 64, s. 52. Forcible Entry (G). {t) Id. ss. 61, 62. (o) 8 Hen. 6, c. 9, s. 7. 24 LAW OF EJECTMENT. Bench has always power to remove an indictment or inqui- sition by certiorari, and to supersede the restitution (u), or, upon quashing an indictment or inquisition, to set aside a writ of restitution which has been executed (ic). A writ of restitution will be superseded and re-restitution granted when it appears that the justices have been irregular in their proceedings, as by refusing to try a traverse of the force tendered by the defendant {x), or if the defendant does traverse the force and gets a verdict {y). In the case of an indictment, a traverse of the force is an absolute supersedeas (0). An inquisition as to the force used, which was to give effect to a conviction, will be quashed if the conviction is void ((0, it will also be quashed if it does not appear what estate the party had on whom entry was made (6). Ee-restitution Where the Queen's Bench has set aside a writ of resti- "*' ^' ■ ■ tution after it has been executed it will always award to the defendant re-restitution (c), even when the indictment or conviction or inquisition on which the restitution was granted is quashed {d), and that, too, without going into the merits (e). The following are the statutes relating to the subject of forcible entry and forcible detainer (/) : 5 Rich. 2, c. 8- 15 Rich. 2, c. 2 ; 4 Hen. 4, c. 8 ; 8 Hen. 6, c. 9; 31 Eliz. c. 11 ; 21 Jac. 1, c. 15. (16) Hawk. P. C, I. c. C4, s. 63. (c) R. v. Willimns, 9 B. e^ C. (x) R. v. Winter, 2 Salk. 587. 549 ; R. v. Wilson, 3 A. & E. (y) Hawk. P. C, 1. c. 64, s. 817. 63. [d) FortVs case, Cro. Jac. 151 ; (2) R. V. Winter, sufra. R. v. Jones, 1 Str. 474. («) R. v. Wilson, 3 A. & E. (e) it. v. Wilson, siqira. 817. (/) See App. B, pp. 291—294. {b) R. v. Dor7iey, 12 Mod. 418. CHAPTER V. BY LANDLORD AGAINST TENANT. When a landlord brings an action to recover posses- what land- sion of demised premises, he need not prove his title to °Qy^"^ the premises. It is sufficient for him to prove a tenancy, and its termination, and that the defendant is in possession under that tenancy. If the plaintiff himself did not let the defendant into possession, or actually demise to him, he must also show that the reversion is vested in him. The only other matter necessary to be proved, is that the pre- mises sought to be recovered were included in the demise. A tenancy, according to its nature, may expire, or be Termination determined by efflux of time, notice to quit, demand of ^ enancy. possession, determination of will, forfeiture, disclaimer, or surrender. A landlord may proceed under the practice established Procedure. by the Judicature Acts, and the rules of the Supreme Court, or under the Common Law Procedure Act, if appli- cable to his case. The fact that the defendant is a tenant can be shown Proof of by proof of a lease by deed or writing, or of an oral demise ; that the defendant was let into possession by the plaintiff or his predecessors, and not under a conveyance of the freehold (a) ; by payment and receipt of rent; by an acknowledgment of title as landlord ; or by admissions of (a) Doe V. Wiggins, 4 Q. B. 367. 26 LAW OF EJECTMENT, tenancy (/>). The presumption of a tenancy raised by an acknowledgment, admission, or payment of rent may be rebutted by an explanation of the circumstances under which they were made (c). If the defendant is not the original tenant, it may be proved by direct evidence that he came in as assignee or sub-lessee, or otherwise through or under the original tenant ; if he came into possession after the original tenant, and during the continuance of the demise, he will be presumed, in the absence of proof to the contrary, to have obtained possession through or under the original tenant by assignment, sub-lease, or otherwise (d). If he has paid rent to, or otherwise acknowledged the title of the landlord, he will have estopped himself from denying that he is in possession as tenant (e). Proof that Jf the plaintiff is not the original lessor, but claims plaintiff is i i • i i i • • i i reversioner. through or under him, he must show that he is entitled to the reversion. This he can do by direct evidence of assignment, sub-lease, or any other title to the reversion. Payment of rent to the plaintiff by previous occupiers (/), and admissions by previous deceased occupiers (g), are prima facie evidence that the plaintiff is entitled to the reversion. If the defendant, or any person through or under whom he claims, has paid rent to, or acknowledged the title of the plaintiff, he is estopped from denying his (b) Howard v. Smith, 3 M. & Gr. IVilliams v. Heales, L. R. 9 C. P. 254 ; Slatterie v. Fooley, 6 M. & 177. W. 664. (e) Post, pp. 29, 30. (c) Rogers v. Pitcher, 6 Taunt. (/) Doe v. Stacey, 6 C. & P. 202. 139 ; Doe v. Austin, 9 Biug. 41 ; {d) Doe V. Murless, 6 M. & S. Daintry v. Brocldehurst, 3 Exch. 110 ; Doe v. Williams, 6 B. & C. 207. 41 ; Boe v. Street, 2 A. & E. 329, {g) Gcry v. Redman, 1 Q. B. D. 331 ; Doe v. Rickarby, 5 Esp. 4 ; 161 ; De Bode's case, 8 Q. B. 208 ; Bees V. Perrott, 4 C. & P. 230 ; Peaceable v. Watson, 4 Tauut. 16. Doe v. Stacey, 6 C. & P. 139; BY LANDLORD AGAINST TENANT. 27 title to the reversion, unless such payment or acknowledg' ment can be explained (/i). When the plaintiff has shown the existence of the rela- Tenant tionship of landlord and tenant between himself and the ^enymg title^ defendant in any of the before- mentioned ways, the of lessor. defendant is estopped from denying his title to the premises. It is a well-established rule or maxim of law that a tenant cannot dispute his landlord's title (i) ; it is his duty to defend his landlord's title ; if he wishes to dispute it, he must give up possession (k). This is the rule, whether the demise is by deed, by writing, or by parol ; whether for a term certain, or for any indefinite period, or at will, or at sufferance (I) ; and applies to a mere licensee or to a servant (m). A tenant is estopped from contending that the person who demised to him, or let him into possession, either actually or constructively, had not, at the time of the demise or letting into possession, any right or title to dispose of the possession (n). For instance, he cannot set up the defence that there was then an existing tenancy in another (o) ; or that the landlord was an un- discharged bankrupt (p) ; or had mortgaged the premises {h) Post, p. 30. (l) Agar v. Young, Car. & M. {i) Lit. s. 58 ; Co. Lit. 47 b ; 78 ; Doe v. Skirrow, 7 A. & E. Duchess of Kingston's case, 2 Sm. 157 ; Doe v. Foster, 3 C. B. 215, L. C. 812 (ed. 9) ; Doe v. Smythe, 229 ; Doe v. Burton, 16 Q. B. 807. 4 M. & S. 347 ; Parker v. Man- (m) Doe v. Baytup, 3 A. & E. ning, 7 T. R. 537 ; WilUns v. 188 ; Doe v. Birchmore, 9 A. & Wingate, 6 T. R. 62 ; Delaney v. E. 662. Fox, 2 C. B. N. S. 768 ; Goulds- (n) Barioick v. Thompson, 7 ivorth V. Knights, 11 M. & W. T. R. 488 ; Ward v. Ryan, It. R. 337 ; Guthbertson v. Irving, 6 H. 10 C. L. 17 ; Francis v. Doe, & N. 135 ; Dolby v. Isles, 11 A. 4 M. & W. 331, 336. & E. 335 ; Beckett v. Bradley, 7 (o) Phipps v. Sculthorpe, 1 B. M. & Gr. 994 ; Phipps v. Scul- & Aid. 50 ; Doe v. Mizem, 2 M. thorpe, 1 B. & Aid. 50. ^ Rob. 56 ; Bringloe v. Goodsoyi, {k) Doe V. Austin, 9 Bing. 41, 4 B. N. C. 726. 45. [p) Parker v. Manning, 7 T. R. 28 LAW OF EJECTMENT. Defect of title apparent in lease. Lease obtained by frand. Estoppel extends to all persons coming in after the essee. and the mortgagee was entitled to possession (q). He cannot set up any supposed defect in his landlord's title (r), as that the presentation of an incumbent was simoni- acal (.s) ; that the assignment of a lease was void (t) ; that a lease from the Crown to the landlord was illegal (u) ; or that the lessors, who demised as trustees of two per- sons, were trustees of one only {x) ; or, when this was material in ejectment, that the lessor had only an equit- able estate (y). A tenant is equally estopped, even if such defect appears upon the face of the lease itself (z). Both landlord and tenant are estopped by a lease which has been obtained by fraud or misrepresentation, until proceedings have been taken under which it has been set aside (a). The rule that a tenant cannot dispute his landlord's title extends to all j^ersons who claim, or obtain possession, through or under the original tenant, whether by assign- ment (6), sub-lease (c), or in any other way {d). They are 537 ; Cook v. W'helloch 24 Q. B. D. 658. (g) Alchorne v. Gomme, 2 Bing. 54 ; Doe v. Skirroiv, 7 A. & E. 157. (r) Driver v. Lawrence, 2 W. Black. 1259 ; Doe v. Ongley, 10 C. B. 25. (s) Cooke V. Loxley, 5 T. E. 4. {t) Wogan v. Doyle, 12 L. E. Ir. 69. [u) Doe V. Abrahams, 1 Stark. 305. (.«) Fleming v. Gooding, 10 Bing. 549. (y) Blake v. Foster, 8 T. R. 487 ; Doe V. Budden, 5 B. & Aid. 626 ; Rennie v. Robinson, I Bing. 147. (a) Morton v. Woods, L. R. 3 Q. B. 658 ; 4 id. 293 ; Jolly v. Arbuthnott, 28 L. J. Ch. 547 ; Dancer v. Hastings, 12 Moore, 34 ; Duke v. Ashby, 7 H. & N. 600. There are some earlier cases which seem to be to the con- trary : — Pargeter v. Harris, 7 Q. B. 708 ; Doe v. Goldsmith, 2 C. 6 J. 674; Greenaway v. Hart, 14 C. B. 340 ; Saunders v. Mere- weather, 3 H. & C. 902. (a) Feret v. Hill, 15 C. B. 207. (IS) Taylor v. Needhum, 2 Taunt. 278 ; Johnson v. Mason, 1 Esp. 89. (c) L. <£,• N.-W. R. v. West, L. R. 2 C. P. 553 ; Doe v. Beckett, 4 Q. B. 601 ; Barwick v. Thompson, 7 T. R. 488 ; Doe v. Fuller, Tyr. & Gr. 17. (d) Doe V. Austin, 9 Bing. 41 BY LANDLORD AGAINST TENANT. 29 I'espectively estopped in the same way and to the same extent as the original tenant himself would have been. This is the rule, even though any such person may have a good title of his own against the landlord ; in that case he must first give up possession, and tlien assert his own title (e). A person who defends as landlord is estopped in the same manner and to the same extent as his tenant (/), and he is not estopped if his tenant is not estopped {g). This estoppel continues as long as the oi'iginal tenant, Continuance or any person claiming through or under him, remains in estoppel, possession, even after the expiration of the term (li). It has, however, been held in one case that a person who having possession under a good title of his own, took a demise from, and paid rent to a stranger, was not estopped from setting up his own good title as a defence after the expiration of the term (i). A tenant is just as much estopped in an action by a plaintiff claiming through or under the original lessor, as in an action by such lessor himself, from disputing the right and title of the lessor to demise {h). He is not, Estoppel in T J. 1 r J • J.1 X J.1 • • favour of suc- however, estopped from denying that the reversion is lessors of vested in the plaintiff, unless he has acknowledged the lessor. Doe v. Sldrroiv, 7 A. & E. 157 ; {g) Doe v. Brown, 7 A. & E. Doe v. Budden, 5 B. & Aid. 626 ; 447 ; Gregory v. Doidge, 3 Bing. Cooper V. Blandy, 1 B. N. C. 45 ; 474. Doe v. Edgar, 2 B. N. C. 498 ; {h) Doe v. Austin, 9 Bing. 41 ; Doe v. Mills, 2 A. & E. 17 ; Doe Clark v. Adie, 2 App. Gas. 423, v. Burtun, 9 C. & P. 254. 435, per Ld. Blackburn. (e) Doe V. Burton, 9 C. & P. (i) Accidental Soc. v. Mackenzie, 254. 5 L. T. 20. (/) Doe V. Smythe, 4 M. & S. {k) Cuthbertson v. Irving, 6 347 ; Doe v. Mizem, 2 M. & H. & N. 135 ; Driver v. Laiv- Rob. 56 ; Doe v. Litherland, 4 rence, 2 Wm. Black. 1259 ; A. & E. 784 ; Doe v. Austin, 9 Taijlor v. Needham, 2 Taunt. Bing. 41. 278 ; Doe v. Edgar, 2 B. 30 LAW OF EJECTMENT. Estoppel of tenant by attornment or acknow- ledgment. Reversion hy estoppel. plaintiff as his landlord (l). If the plaintiff claims as assignee, or as heir, or as devisee, executor or adminis- trator, the defendant may dispute the assignment (m), the heirship (■??-), or that the reversion passed by the will ; or he may prove that the executor had assented to a specific bequest of the reversion to another per- son (p). Although a tenant is always estopped from denying the title of the person who actually demised to him or let him into possession, yet, when it is sought to establish the relationship of landlord and tenant from mere attornment or payment of rent, evidence is always admissible on the part of the tenant to explain such attornment or payment of rent, and to show that it was made in consequence of a mistake (q), or of a misrepresentation (r), and that he was not aware of the defect in the title of the person to whom he attorned or paid rent. The payment of rent, as a general rule, raises a presumption that the person receiving it has a good title, which may, however, be rebutted («). A reversion by estoppel is a legal estate which will N. C. 498 ; Doe v. Fuller, Tyr. & Gr. 17 ; TFard v. Byan, Ir. Rep. 10 C. L. 17. (l) Doe V. Burton, 16 Q. B. 807 ; Doe v. Wiggins, 4 Q. B. 367 ; Doe v. Austin, 9 Bing. 41 ; Cooper V. Blandy, 1 B. N. C. 45 ; CooJce V. Loxley, 5 T. R. 4 ; Hall V. Butler, 10 A. & E. 204; Doe V. Mitchell, 1 B. & B. 11. (m) Rennie v. Robinson, 1 Bing. 147. (to) Doe V. Seaton, 2 C. M. & R. 728. {p) Mason v. Farnell, 12 M. & W. 674 ; Doe v. Harris, 16 M. & W. 517, 520. (q) Rogers v. Pitcher, 6 Taunt. 202 ; Cornish v. Searell, 8 B. & C. 471 ; Gregory v. Doidge, 3 liing. 474 ; Doe v. Francis, 2 M. & Rob. 57 ; Knight v. Cox, 18 C. B. 645 ; Cooper v. Blandy, 1 B. N. C. 45. (r) Gravenor v. JVoodhouse, 2 Bing. 71 ; Doe v. Broim, 7 A. & E. 447. (s) Fennery. Duplock, 2 Bing. 10. BY LANDLORD AGAINST TENANT. 31 continue during the tenancy, and may be assigned or transmitted in any legal way (t). In some exceptional cases a defendant who has been let Exceptions into possession by the plaintiff, or has occupied the estoppel. position of tenant to him, is not estopped from denying the plaintiff's title, for instance, if he has been let into possession under a lease which the plaintiff had no power to grant, and which is void, unless he has paid rent or done some other act acknowledging him as landlord (u). A person who has taken a conveyance of a freehold subject to avoid lease is not estopped from ejecting the tenant under such lease as a trespasser (x). Though a tenant is estopped from disputing his land- Tenant may _ _ show expira- lord's right to demise or title to the reversion, he is not tion of land- estopped from proving that the title of his landlord has expired, or has been merged or extinguished (y) since the date of the demise. He may show that his landlord was onl}' a tenant for a term of years which has expired (z) ; or that the original lessor was tenant for life and is dead (a) ; or that his landlord was tenant j^itr autre vie, and that the cestui que vie is dead (6) ; or that his land- lord was a tenant from year to year, or at wilL or on suffer- ance, and that such tenancy has been determined (c) ; or that his landlord was a mortgagor in possession, and that (t) Doe V. Edwards, 5 B. & Ad. 816; Neave v. Moss, 1 Bing. 1065 ; Cuthbertson v. Irvine/, 6 360. H. & N. 135. " (6) Blalce v. Foster, 8 T. R. (u) Magdalen Hospital v. 487 ; Roe v. Eamsbotham, 3 M. & iir?!0^^s, 4 App. Cas. 324. S. 516; Fenner v. Duplock, 2 (x) Smith v. TFidMe, 3 C. P. Bing. 10 ; Hill v. Saunders, 4 B. D. 10. & C. 529. {y) JVebb v. Russell, 3 T. R. (c) Hopcraft v. Keys, 9 Bing. 393. 613 ; Mountnoy v. Collier, 1 E. & [z) England v. Slade, 4 T. R. B. 630 ; Brook v. Biggs, 2 B. N. 682 ; Neave v. Moss, 1 Bing. 360. C. 572. (a) Weld V. Baxter, 11 Exch. 82 LAW OF EJECTMENT. Eviction by title para- mount. Expiration of landlord's title after action begun. Estoppel when tenant acknowledges landlord's title after expiration. Estoppel Ox landlord. the mortgagee has entered into possession and demanded the rent (cZ) ; or that the plaintiff has parted with his reversion by sale, mortgage, or otherwise (e) ; or has become bankrupt, and that the reversion has vested in his trustee (/). The tenant may prove that he has been evicted by title paramount, for that shows that the land- lord's title has expired ; the eviction must be actual and genuine, and without any collusion with the person who has evicted (g). If the plaintiff had a good title at the date of the writ, which has, however, expired before the trial, the defendant is estopped from setting up such expiration as a bar to the issue of a writ of possession (h) ; unless the defendant prove affirmatively that it would be futile to issue such a writ because someone else, and not the plaintiff, has a right to the possession (i). If, however, the tenant has, after the expiration of the landlord's title, with knowledge of that fact, paid rent to him or otherwise acknowledged his title, he is estopped from showing that his title has expired (k) ; but he is not thereby estopped if he was ignorant of such expiration, or has been misled by his landlord on that point {I). As between landlord and tenant the estoppel must be (d) Doe V. Barton, 11 A. & E. 307 ; but see Delaney v. Fox, 2 C. B. N. S. 768. (e) Doe V. Watwn, 2 Stark. 230 ; Doe v. Edwards, 5 B. & Ad. 1065 ; Agar v. Young, Car. & M. 78. (/) Doe V. Andrews, 4 Bing. 348. {g) Delaney v. Fox, 2 C. B. N. S. 768 ; Poole v. Whitt, 15 M. & W. 571. As to what amounts to an eviction, see post, p. 233. (/i) Gibbins v. BucMand, 1 H. & C. 736 ; Buckland v. Gibbins, 32 L. J. Ch. 391 ; Knight v. Clarke, 15 Q. B. D. 294. (i) Knight v. Clarke, supra. See pp. 266, 278. {k) L. ^^^^^ by a registered letter addressed to him there. If sent by post, it is to be deemed to have been served at the tiine when the letter would be delivered in ordinary course. Such service can be proved by proof that the letter was properly addressed and posted containing the notice (a). (q) Papillon v. Brunton, 5 H. {u) Tanham v. Nicholson, L. & N. 518 ; Quartermaine V . Selbij, K. 5 H. L. 561, 568. 5 Times Rep. 223. (x) Papillon v. Brunton, 5 H. (r) Pearse v. Boulter, 2 F. & F. & N. 521 ; Gresham Co. v. Rossa 133. Co., W. N. 1870, p. 119. (s) Doe V. Woodman, 8 East, [y) Sangster v. Noy, 16 L. T. 228. 157. (0 8 & 9 Vict. c. 18, s. 134, (z) Hogrj v. Brooks, 15 Q. B. D. Lands Clauses Consolidation Act 256. 1845 ; 8 & 9 Vict. c. 16, s. 135, (a) 46 & 47 Vict. c. 61, s. 28. Companies Act, 1845 ; Garton v. See A^ip. B, p. 366. G. W. R, E. B. & E. 837. 44 LAW OF EJECTMENT. Form of notice. Verbal. Not qualified or optional. Must be to quit all the premises. Exceptions. Misdescrip- tion in notice ; A parol notice to quit is sufficient, but it is usual for it to be in writing {h). The form in which a notice to quit is given is not material, but it must be clear and un- ambiguous, and such a notice that the person to whom it is given can safely act upon it at the time when it is given, and it must not be qualified or optional (c). It is not made ineffectual because it is accompanied with an offer of a new tenancy, even if such offer is written upon the same piece of paper, but in a separate and distinct paragraph {d). A notice to quit need not be directed to the tenant if it is delivered to him (e). As a general rule, a notice to quit must be a notice to quit all the premises held under the same demise (/). By the Agricultural Holdings Act, 1883 (^), power is given to the landlord to re-take part only of the land with a view to using it for any of the purposes mentioned in the Act {h). Under such circumstances the landlord can give a notice to quit part only of the holding, but the tenant may, within twenty-eight days after service of the notice to quit, serve upon the landlord a notice in writing that he accepts the same as a notice to quit the entire holding, to take effect at end of the current year of the tenancy {h). A misdescription of the premises, or of the tenant, or an obvious error in the notice, is not fatal if the tenant be (5) Doe V. Crick, 5 Esp. 196 ; Timmins v. Eoiolinson, 3 BuiT. 1603 ; Bird v. Defonvielk, 2 C. & K. 415, 420. (c) Doe V. Goldwin, 2 Q. B. 143 ; Doe v. Jackson, 1 Doug. 175 ; Ahcarn v. Bellman, 4 Ex. Uiv. 20 1 , 205 ; Jones v. Phipps, L. R. 3 Q. B. 567, 573 ; Gardner V. Ingram, 61 L. T. 729. (d) Doe V. Jackson, supra ; Ahcarn v. Bellman, supra. (e) Doe V. Wrightmcm, 4 Esp. 5. (/) Doe V. Archer, 14 East, 245 ; Right v. Cuthell, 5 East, 491 ; Doe v. Ghtwch, 3 Camp. 71 ; Prince v. Evans, 29 L. T. 835. (f/) 46 & 47 Vict. c. 61. (h) S. 41. See App. B, p. 367. TERMINATION OF TENANCY. 45 not misled by it (i). And in any case a misdescription can be waived (k). The fact that the names of unneces- or omissions. sary persons appear in the notice will not render it invalid, if it is otherwise good (l) ; nor will the fact that it does not state to whom the premises are to be given up (Z). A defect in a notice to quit may be waived, and the question of waiver is one of fact (m). A notice to quit, at its expiration, terminates the tenancy Effect of absolutely. The landlord and tenant may, however, ex- pressly or impliedly agree to waive their rights to resume or give up possession under such notice. If they do so, "Waiver. a new tenancy is created {n). Whether or not a notice to quit has been waived and a new tenancy created is a question of fact (o) ; such an agreement may be implied Creation of ] 1 r . • iiew tenancy, irom payment, or acceptance, or demana, oi rent accrumg due since the expiration of the notice to quit (j)) ; or from a distress (q) for such rent, unless the tenant replevies in which case he repudiates the tenancy (r) ; or from a second notice to quit being given (s) ; but such an agreement will not be implied from a mere holding over (t), or accidental (i) Doe V. Roe, 4 Esp. 185; (o) Blyth v. Domett, 13 C. B. Doe V. Kightley, 7 T. R. 63 ; 178 ; Doe v. Batten, 1 Cowp. Doe V. Wilkinsoyi, 12 A. & E. 243 ; Vance v. Vance, 5 Ir. Eej). 743 ; Doe v. Smith, 5 A. & E. 3.50. C. L. 363. Qi) Doe V. Spiller, 6 Esp. 70. (^j) Doe v. Batten, supra ; (I) Doe y. Foster, Z Q.^. '2.1b. Blyth v. Dennett, supra; Good- (m) Oakapple v. Copous, 4 T. right v. Cordwent, 6 T. R. 219 ; R. 361. Doe v. Calvert, 2 Camp. 387. (w) Tayleur v. Wildin, L. R. (q) Zouch v. Willingale, 1 H. 3 Ex. 303. In Inchiquin v. Bl. 311. Lyons, 20 L. R. Ir. 474, the (r) Bhjth v. Dennett, supra. Court of Appeal in Ireland dis- (s) Doe v. Palmer, 16 East, 53 ; agreed with the law, as laid down Doe v. Humphreys, 2 East, 237 ; in Tayleur v. Wildin, that a new Doe v. Inglis, 3 Taunt. 54 ; Doe tenancy was created by a waiver v. Steel, 3 Camp. 115, 117. of a notice to quit before its ex- {t) Jenner v. Glegg, 1 M. & pixation. Rob. 213. 46 LAW OF EJECTMENT. Tenants of mortgagor. When notice to quit is unnecessary. retention of the key (u), by the tenant, or from payment or acceptance of double value under the statute 4 Geo. 2, c. 28 (x). A tenant is not entitled to notice to quit from a person who claims by title paramount to the title of his lessor (y), and, therefore, the tenants of a mortgagor whose tenancies have commenced since the date of the mortgage are not entitled to notice to quit from the mortgagee, unless the provisions of the Conveyancing Act, 1881 (s), or of certain other statutes, apply (a), or unless a new tenancy has been created between them and the mortgagee (h). A notice to quit is unnecessary when the demise is for a term certain (c), or is to determine under certain circum- stances or upon a certain event (d) ; when it is a term of the tenancy, or the landlord and tenant have expressly or impliedly agreed, that notice shall be unnecessary (e) ; or when a tenant holds over until the expiration of the current year of his tenancy, after his tenancy has been determined by the determination or cesser of his landlord's estate (/) ; it is unnecessary in the case of a tenant at will (g), of a tenant on sufferance Qi), or of a licensee, though his licence must be revoked (i), or of a mortgagor in posses- sion after the time fixed for repayment has expired (k). (u) Gray v. Bompas, 11 C. B. N. S. 520. (x) Sotdshy v. Neving, 9 East, 310. (i/) Doe V. Hilder, 2 B. & Aid. 782. (s) Post, p. 135. (a) Post, p. 136. (6) Post, p. 134. (c) Bight V. Darby, 1 T. R. 159, 162 ; Cobb v. Stokes, 8 East, 358. ((Z) Doe V. Miles, 1 Stark. 181 ; Wilson V. Abbott, 3 B. & C. 88 ; Furnivall v. Ch-ove, 8 C. B. N. S, 496 ; TFJiite v. Bayleij, 10 C. B. N. S. 227. (e) Sparrow v. Haivkes, 2 Esp. 505. (/) 14 & 15 Vict. c. 25, 8. 1. (g) See p. 47. (h) See p. 49. (i) Cornish v. Stubbs, L. R. 5 C. P. 334 ; Mellor v. TVatkins, L. R. 9 Q. B. 400. (k) See p. 130. TEEMINATION OF TENANCY. 47 A notice to quit is unnecessary when there has been a surrender of the term (1) or a disclaimer (m). 2. Demand of Possession. A demand of possession (n) must be made by a landlord To determine before commencing an action to recover possession from ^ill!"^^ ^ his tenant at will, unless such tenancy has been legally determined by entry (o), or otherwise. The demand may be either verbal or in writing. It How made, may be made upon any person on the premises, or may be made off the premises if communicated to the tenant at will (p). It may be made by an agent provided he have authority at the time he makes the demand (q). Any verbal or written communication to the tenant which amounts to a clear expression of the determination of the "will is a sufficient demand (r). A demand of possession is unnecessary when the tenancy Unnecessary at will is determined by entry or otherwise. The tenancy w^" tenancy •^ •' "^ determined at will is determined when the landlord has done any act by entry or , . , . . . • 1 1 ' . otherwise. upon the premises which is inconsistent with the continu- ance of the will, and for which he would otherwise be liable to an action of trespass (s), such as an entry to take pos- session (s), or to cut stone (s) or trees (s), or the doing of (0 See p. 50, 51. B. 181. (m) See p. 51, 53. (r) Doe v. Laivder, 1 Stark. (n) GoocUitle v. Herbert, 4 T. R. 308 ; Doe v. Price, 9 Bing. 356 ; 680 ; Doe v. Jackson, 1 B. & C. Pollen v. Breiver, 7 C. B. N. S. 448 ; Doe v. McKaeg, 10 B. & C. 371 ; Locke v. Matthews, 13 C. B. 721 ; Doe v. Phillips, 10 Q. B. N. S. 753 ; Coatsiuorth v. John- 130. son, 55 L. J. Q. B. 220. (o) TFallis V. Delmar, 29 L. J. (s) Ball v, Cullimore, 2 C. M. Ex. 276. & R. 120 ; Doe v. Thomas, 6 (j3) Roe V. Street, 2 A. & E. Exch. 854 ; Turner v. Doe, 9 329 ; Pinhorn v. Souster, 8 Exch. M. & W. 643 ; Locke v. Matthews, 763, 770. siqjra ; Co. Lit. 55 b. (2) Doe V. Walker, 14 L. J. Q. 48 LAW OF EJECTMENT. How tenancy at will deter- mined other- wise than bj' demand. Knowledge of landlord or tenant. any act, which is equivalent to entry. The tenancy is also determined when the landlord has done any act off the premises which is an assertion of his right to the possession, such as making a lease to commence presently (t), or assigning his reversion (u) ; and, perhaps, when he becomes bankrupt (v). The death of the landlord termi- nates a tenancy at will (x). A tenancy at will is determined if the tenant commits waste (y) ; disclaims (0) ; assigns or attempts to assign his interest (a) ; purchases the freehold (6) ; or dies (x) ; or, perhaps, if he becomes bankrupt (c). When a pur- chaser has become tenant at will to the vendor by taking possession under a contract of sale, such tenancy is deter- mined by rescission of the contract (d) ; but if the pur- chaser continues in possession afterwards it is a question of fact whether or not a new tenancy at will has been created (d). The death of one joint tenant does not deter- mine the tenancy of the other (e). Any act done or suffered by the tenant does not deter- mine the tenancy at will unless the landlord have notice or knowledge thereof (k) ; nor does any act done or suffered by the landlord off the premises unless the tenant have notice or knowledge thereof (k). (t) Dinsdale v. lies, 2 Lev. 88. (w) Doe V. Tliomas, supra ; Doe v. Davies, 7 Exch. 89 ; Farrelly V. Robins, Ir. Rep. 3 C. L. 284. {v) Doe V. Thomas, supra. (,x) James v. Dean, 11 Ves. 383, 391. (!/) Co. Lit. 57 a. (z) Doe V. Cawdor, 1 C. M. & R. 398 ; Doe v. Price, 9 Bing. 356. (a) Pinhorn v, Souster, 8 Exch. 763. (b) Daniels v. Davison, 16 Ves. 249, 252. (c) Doe V. Thomas, 6 Exch. 854. (d) Doe V. Sayer, 3 Camp. 8 ; Markey v. Coote, Ir. Rep. 10 C. L. 149. (e) Co. Lit. 55 b. {k) Carpenter v. Colins, Yelv. 73 ; Pinhorn v. Souster, 8 Exch. 763 ; Melling v. Leak, 16 C. B. 652, 669 ; Co. Lit. 55 b. TERMINATION OF TENANCY. 49 A demand of possession is unnecessary before commenc- Demand vm- ... • p J. necessary in ing an action to recover possession irom a mere tres- other cases, passer (I) ; or upon a right to re-enter for a forfeiture (m) ; or upon non-payment of an annuity ; or upon a right to enter and hold until an annuity is paid (71) ; or from a mortgagor (0). A demand of possession is unnecessary before commenc- Tenancy at SUffGr3illCG ing an action to recover possession from a tenant at suffer- ance (p). When proceedings are taken by a landlord under s. 213 Demand T , „ under C. L. P. of the C. L. p. Act, 1852, he must make a demand oi Act, 1852. possession in writing before commencing his action ; this demand must be served personally or left at the dwelling- house or usual place of abode of the tenant or of the person holding or claiming through or under him (q). 3. Efflux of Time. When the demise is for a term certain, the tenancy is Demise for determined upon the expiration of that term, and the landlord is immediately entitled to possession and the tenant ought thereupon to quit. If the tenant holds over, he becomes a tenant at suffer- Holding over. ance, or he may become a yearly tenant by payment of rent (r), or, after a lease for one year, by continuing (0 Doe V. TFJiite, 2 D. & K. See Chap. 12. 716 ; Doe v. Boulton, 6 M. & S. (p) Doe v. Roberts, 16 M. & W. 148 ; Doe v. Quigleij, 2 Camp. 778 ; Doe v. Quigley, 2 Camp. 505. 505. (q) 15 & 16 Vict. 0. 76. (m) Liddy v. Kennedy, Ir. Rep. (r) Doe v. Stennett, 2 Esp. 1 C. L. 105 ; Talbot de Malahide 717 ; Hyatt v. Griffiths, 17 Q. B, V. Odium, Ir. Rep. 5 C. L. 302. 505 ; Doe v. Amey, 12 A. & E, {n) Doe V. Horsley, 1 A. & E. 476 ; Caulfield v. Farr, Ir. R. 7 766. C. L. 469 ; Doe v. Bell, 2 Sm. L. C. (o) Doe V. Giles, 5 Bing. 421 ; 110 (ed. 9) ; Kelly v. Patterson, Doe V Maisey, 8 B. & C. 767. L. R. 9 C. P. 681. W.Y.E. E 50 LAW OF EJECTMENT. Tenant under void agi-ee- ment for definite term. Since the Judicature Acts. Term for certain period or until an event. in possession as tenant with the consent of both parties (s). When a tenant has entered and paid rent under an agreement for a definite term, or under a lease void at law as being a lease for more than three years and not under seal, and thereby becomes a yearly tenant, and has occu- pied during the whole period, the tenancy ceases at the end of that period by effluxion of time, an agreement that it should cease at the end of a definite term not being inconsistent with a tenancy from year to year (t). Since the Judicature Acts, however, a tenant holding under an agreement of ivldch specific perfovnnance would he decreed, is in the same position as if a lease had been duly granted, both at law and in equity, and is not merely a tenant from year to year {ii). When a tenancy is limited for a term certain or until the happening of some event, it will cease upon the expiration of the term for which it was granted or upon the happen- ing of the event {x). By act of parties. 4. Surrender. A surrender is effected either by the act of the parties, or by operation of law. No particular words are necessary to constitute a surren- der by act of the parties, provided that the agreement to surrender is clear (?/). The Statute of Frauds {z) provides (s) Dougal v. McCarthy, [1893] 1 Q. B. 736. (0 Doe V. Moffatt, 15 Q. B. 257. (u) Walsh V. Lonsdale, 21 Ch. D. 9. See p. 2. (cc) Brudnel's case, 5 Co. Rep. 9 a ; Huijhes anil Crowther's case, 13 Co. Rep. 66 ; Doe v. Clarke, 8 East, 185 ; Belaney v. Kelly, 24 L. T. 738. (y) Weddall v. Capes, 1 :\I. & W. 50 ; Johnstone v. Hudlestone, 4 B. & C. 922 ; Bessell v. Lands- berg, 7 Q. B. 638; Mollett v. Brayne, 2 Camp. 103. {z) 29 Car. II. c. 3, s. 3, App. B, p. 295. TERMINATION OF TENANCY. 51 that every surrender, except of copyholds or customary estates, must be in writing, or by act and operation of law (a) ; and the statute 8 & 9 Vict. c. 106 (b), provides that a surrender in writing, except of copyholds or of an estate which might have been created without writing, must be made by deed (h). A surrender by act and operation of law takes place By act and 1 , , , T n ±. T operation of when a tenant accepts a new lease tor a new term, even it j^J^y less than the existing term (c), provided that such an estate pass by the new lease as appears thereby to have been contemplated by the parties at the time (d) ; also when the landlord and tenant have agreed that the tenancy should cease and that the landlord should re-enter, and the tenant has quitted and the landlord has re-entered, the change of possession being essential (e) ; but the grant of a new lease to a third person, with the consent of the tenant, does not operate as a surrender of the old leS-se unless the old tenant gives up possession to the new tenant at or about the time of the grant of the new lease to which he assents (/). 5. — Disclaimer. In order to constitute a disclaimer something must be Whatamounts -,■,-, 1 . , ,. T • to disclaimer. done by the tenant which amounts to a direct repudiation of the relationship of landlord and tenant, and is neces- sarily inconsistent with that relationship {g). (a) 29 Car. II. c. 3, s. 3, App. v. Pemiy, 67 L. T. 290. B, p. 295. (/) iVallis v. Hands, [1893] 2 (h) S. 3. Ch. 75 ; Baring v. Abingdon, (c) Bac. Abr., Leases, (S) 2. [1892] 2 Ch. 374, 381 ; Davison {d) Doe V. Poole, 11 Q. B. 713. v. Gent, 1 H. & N. 744 ; 2 Smith's (e) Grimman v. Leggc, 8 B. & L. C, p. 917 et seq. (ed. 9). C. 324 ; Mallet v. Brayne, 2 {g) Doe v. Stanion, 1 M. & W. Camp. 103 ; Moss v. James, 37 695 ; Doe v. Long, 9 C. & P. L. T. 715 ; Oastler v. Henderson, 773 ; Doe v. Cooper, 1 M. & Gr. 2 Q. B. D. 575 ; Phene v. Popple- 135 ; Vivian v. Moat, 16 Ch. well, 12 C. B. N. S. 334 ; Easton Div. 730. E 2 52 LAW OF EJECTMENT, Definite term of years. Yearly tenancy. Tenancy at will. A mere verbal di-sclaimer does not cause a forfeiture of a definite term of years Qi), nor does a mere payment of rent to a third person (i), the giving up possession, in fraud of the landlord, to a third person who claims under a hostile title will be sufficient {j), or any disclaimer by matter of record {Ic). In the case of a yearly tenancy a parol denial of the landlord's title {I), the setting up of a title to the premises in aaother {m), or attorning tenant to another (in), or assist- ing another to set up a title {n), or a claim of title by the tenant himself (o), operates as a disclaimer and dispenses with the necessity of a notice to quit. When a tenant at will has disclaimed, a demand of possession is unneces- sary {p). A mere refusal to pay rent to the devisee of the land- lord under a contested will until the contest is decided {q), or' a claim to hold as purchaser from the landlord (r), or the withholding of rent while honestly inquiring into an assignee's title (s), or a mere renunciation of the {h) Doe V. IVelU, 10 A. & E. 427 ; Doe v. Rollings, 4 C. B. 188, 192, per Maule, J. (i) Doe V. Parker, Gow. 180. 0') Doe V. Flynn, 1 C. M. & E. 137. {k) Comyiis' Dig. tit. For- feiture, A. ; Vin. Abr. tit. Estate, Forfeiture, C. (Z) Doe V. Stnnion, 1 M. & W. 695, 702 ; Vivian v. Moaf, 16 Ch. Div. 730. (m) Doe V. Pittman, 2 N. & M 673 ; Doe v. Gruhh, 10 B. & C 816 ; Doe v. Froiod, 4 Bing. 557 : Doe V. Evans, 9 M. & W. 48 Doe V. Rollings, 4 C. B. 188 Doe V. Lo7ig, 9 C. & P. 773. (n) Doe V. Flynn, 1 C. M. & R. 137. (o) Doe V. Whittich, Gow. 195 ; Doe V. Gower, 17 Q. B. 589. {p) Doe V. Cawdor, 1 C. M. & R. 398 ; Doe v. Price, 9 Bing. 356 ; Doe v. Thompson, 5 A. & E. 532. ((/) Doe V. Pasquali, 1 Peake, 259. (?•) Doe V. Stanion, 1 M. & W. 695. (s) Doe V. Cooper, 1 M. & Gr. 135 ; Jones v. Mills, 10 C. B. N. S. 788. TERMINATION OF TENANCY. 53 tenancy wliich was intended to operate as a surrender (t), do not amount to a disclaimer. A (.lisclaimer must have been made on or before the day on which the landlord claims to have become entitled to possession (u). A disclaimer may be waived in the same way as a for- Waiver, feiture (x). (t) Doe V. Stagy, 5 B. N. C. 773 ; Doe v. Gruhb, 10 B. & C. 564. 816. (u) Doe V. Cawdor, 1 C. M. & (a;) Doe v. Williams, 7 C. & P. R. 398 ; Doe v. Long, 9 C. & P. 322. '&&& j)ost, Waiver, Chap. 11. CHAPTER VII. FORFEITURE. What landlord must prove. How forfeit- ure incurred. Condition broken. How con- dition is created. When a landlord proceeds to recover possession of the demised premises from the tenant upon the ground that the demise has been determined by a forfeiture, he must prove the demise {a), and the forfeiture incurred. Forfeiture may be incurred for breach of some con- dition ; or for breach of some covenant or agreement, when a power of re-entry is reserved upon such breach ; or for non-payment of rent, if reserved under a condition, or if there is a proviso for re-entry upon non-payment ; or upon the happening of any event which by tlie terms of the demise is made a cause of forfeiture. For any condition broken the landlord may re-enter and maintain an action of ejectment, although there is in the lease no proviso for re-entry (6) ; but he cannot re-enter for a mere breach of covenant or agreement unless it is fortified by a proviso for re-entry (c). It is, therefore, often a question of importance whether a clause or agree- ment operates as a condition, or as a covenant only. A condition may be introduced into an agreement or into a lease for years, not under seal, provided apt and proper words be used ; no precise form of words is neces- sary, but it is sufficient if it appear that the words used (a) Ante, p. 25. (b) Doe V. JVatt, 8 B. & C. 308 ; Re Brain, 10 Eq. 389. (c) Co. Lit. s. 325 ; Doe v. Phillips, 2 Biiig. 13 ; CrawUij v. Price, L. K. 10 Q. B. 302. FORFEITURE. 55 were intended to have the effect of creating a condi- tion {d). Mere words of agreement do not create a condi- tion so as to give a right of re-entry for breach of such agreement (e). A proviso, without a penalty, is as a general rule, a condition (/) ; but if a penalty is annexed it is only a covenant (g). If words both of covenant and condition are used, they will both operate, and will create respectively a covenant and a condition (g). A demise of premises for a specified purpose imports an agreement by the tenant not to use the premises for any other pur- pose {h). A condition is frequently created in express terms for Instances. forfeiture upon the happening of certain events, or the doing of certain acts, besides breaches of covenant ; for instance, upon bankruptcy of the lessee (i), or the taking in execution of the term (k) ; upon default in pay- ment of monies due after demand in writing (l) ; upon the lessee ceasing to occupy personally {m), or being unable to go on with the management of the farm (n) ; upon the lessee ceasing to be in the lessor's service (o) ; (fO Doe V. JVatt, 8 B. & C. A. C. 451. 308 ; Simpson v. Titter ell, Cro. (i) Roe v. Galliers, 2 T. E. 133 ; Eliz. 242 ; Pembroke v. Berkeley, Doe v. Inglehy, 15 M. & W. 465 ; Id. 384, 560. As to the con- Doe v. David, 1 C. M. & K. 405 ; structioii placed ui^on words in Ex parte Gould, 13 Q. B. D. 454 ; particular cases, see Sear v. House Re Tickle, 3 M. B. R. 126 ; Doe v. Co, 16 Ch. D. 387 ; Brookes v. Rees, 4 B. N. C. 384; Pugli v. Drysdale, 3 C. P. D. 52 ; Lehmann Arton, 8 Eq. 626. V. McArtMir, 3 Cli. 496 ; Sliep. {k) Davis v. Eyton, 7 Bing. Touch. 162. 154 ; R. v. Topping, Mc. & Y. (e) Shaio v. Guffin, 14 C. B. N. 544. S. 372 ; Craidey v. Price, L. R. (/) Jackson v. Northampton 10 Q. B. 302. Trams, 55 L. T. 91. (/) Harrington v. JVise, Cro. {m) Doe v. Clarke, 8 East, 185. Eliz. 486. (») Doe v. Pritchard, 5 B. & (g) Doe V. TFatt, 8 B. & C. Ad. 765. 308. (o) Wrenford v. Gyles, Cro. (/)) Kelwe V. Lansdowne, [1893] Eliz. 643. 56 LAW OF EJECTMENT. Conditions may be created upon any'deinise. Construction of provisoes for re-entry. upon assignment by the lessee (p) ; upon conviction of the lessee for an offence against the game laws (q) ; upon the death of A. before a certain time (r). Conditions, and covenants or agreements coupled with a proviso for forfeiture, may be contained in a lease or in an agreement for a lease (.s) ; or a parol demise may be made subject to any conditions, stipulations, or provisoes {t). The general rule is that a proviso for re-entry must be construed strictly, though probably not with the strictness of a condition at common law (ii). It ought clearly to appear that the proviso was meant to include and does include the covenant for breach whereof the right to re-enter is claimed (u) ; but the question whether the covenant itself has been broken is to be determined according to the rules which prevail in construing ordinary contracts {x). The apparent intention of the parties should be considered in construing both covenants and provisoes (?/), and the court must be satis- fied that the particular case comes within their terms (y). If the meaning is clear the court will enforce the right of re-entry whatever the hardship (p) Doe V. Watt, 8 B. & C. 308 ; Knight v. Mory, Cro. Eliz. 60. (q) Stevens v. Cojip, L. R. 4 Ex. 20. (r) Hughes' case, 13 Co. Rep. 66. (s) Doe V. Breach, 6 Esp. 106 ; Doe v. Powell, 5 B. & C. 308, 312 ; Doe v. Watt, 8 B. & C. 308 ; Doe v. Birch, 1 M. & W. 402 ; Thomas v. Packer, 1 H. & N. 669 ; Hayne v. Cummings, 16 C. B. N. S. 421 ; Hyatt v. Griffiths, 17 Q. B. 505 ; Crawley v. Price, L. R. 10 Q. B. 302. (0 Bolton V. Tomlin, 5 A. & E. 856. (u) Doe V. D^gleby, 15 M. & W. 465, 469 ; Doe v. Marchetti, 1 B. & Ad. 715, 720 ; Hardy v. Seyer, Cro. Eliz. 414 ; Croft v. Lumley, 6 H. L. C. 672, 693; and see Doe V. Elsam, M. & M. 189 ; Jaclison V. Northampton, 55 L. T. 91. (x) Doe V. Godwin, 4 M, & S. 265 ; Croft v. Lumley, 6 H. L. C. 672, 693. (i/) Goodtitle v. Saville, 16 East, 87, 95 ; Doe v. Abel, 2 M. & S. 541, 547 ; Hayne v. Cummings, 16 C. B. N. S. 421 ; Wooler v. A'ho«, 1 Ex. D. 124, 265. FORFEITURE. 57 inflicted (z) ; if the mcnniiig is doubtful, but a fair mean- ing can be given to the words used, the court will give such meaning to the words («) ; if, however, the words be without sense, the court will not force a meaning upon them (h). A proviso for re-entr}' upon breaches of covenant "here- Instances. inafter contained," will not apply to covenants which go before, even if there be none thereinafter (c). If there be a proviso for re-entry if rent be in arrear for thirty days, and another proviso stating ^\hen that rent was payable and giving power to re enter if it be in arrear at any time, the power to re-enter is governed by the last proviso (d). Under a proviso for re-entry " if and when- ever any one quarter's rent shall be in arrear and no sufficient distress can be levied for the same," the lessor has a right of re-entr}^ as often as at any moment of time such rent is in arrear, and there is no sufficient dis- tress (g). If an extra rent is reserved (h), or penalty imposed (?*), penalty upon upon breach' of, or the rent is to be reduced upon i^on-observ- performance of {k), any covenant, the lessor may still covenant, re-enter, under a proviso for that purpose, upon breach or non-performance of any covenant. The question in such case always is whether the parties intended to prevent the act being done altogether, or to permit it to be done (a) Doe V. Gladwin, 6 Q. B. 231. 953, 961 ; Doe v. Sheivin, 3 (g) Shejjherd v. Bergcr, [1891] I Camp. 134. Q. B. 597. (a) Doe V. Bowditclt, 8 Q. B. Qi) Weston v. Metropolitan 973 ; Hunt v. Bishop, 8 Exch. As^Jlum, 8 Q. B. D. 387, 404. 675. (i) Doe v. Jepson, 3 B. & Ad. (6) Doe V. Carew, 2 Q. B. 317. 402. (c) Doe V. Godwin, 4 M. & S. (k) Hanburyv. Candy, 58 L. T. 265. 155. (cZ) Doe V. Golding, 6 Moo. 58 LAW OF EJECTMENT. Positive and negative covenants. Right to re-enter quousqioe. upon payment of the stipulated price for the permis- sion (?), and if it is clear that it was intended that the act should not be done at all, the lessee is not entitled to do the things prohibited by the covenant on payment of the increased rent or of the penalty {II). A proviso for re-entry may be reserved upon breach of positive as well as of negative covenants, that is, for acts of commission and for acts of omission {m). There are dicta in some of the earlier cases to the effect that the word " perform," used in a proviso for re-entry, will not apply to breaches of negative covenants, and that some such words as "observe" or "keep" are necessary to include breaches of negative covenants {n). In a recent case, howevei", the judges in the Court of Appeal expressed an opinion that this distinction was not well founded (o). It would seem, therefore, that any of the words "observe," " perform," or " keep," will apply to breaches both of positive and negative covenants {p). It has been held that a proviso for re-entry " upon doing any act contrary to, or in breach of the covenants," did not apply to the breach of a covenant to repair [q). The question often arises whether a proviso for re-entry upon non-payment of rent, or of an annuity, creates a forfeiture or gives only a right to enter and hold quousque until the arrears are satisfied (r) : this question must be (I) Bray v. Fogarty, Ir. Rep. 4 Eq. 544; Hanbury v. Cundy, supra. {II) See note (/c), previous page. {m) JFadham v. Fostmaster- fkneral, L. R. 6 Q. B. 644. {n) Hyde v. Warden, 3 Ex. D. 72, 82 ; Evans v. Davis, 10 Ch. D. 747 ; Wadham v. Postmaster- General, L. R. 6 Q. B. 644, 648 ; West V. Dohh, L. R. 5 Q. B. 460. (o) Barrovj v. Isaacs, [1891] 1 Q. B. 417, 419, 424. {}}) Evans v. Davis, supra; Timms v. Baker, 49 L. T. 106 ; Croft V. Lumley, 6 H. L. C. 672 ; Barrow v. Isaacs, supra. (q) Doe V. Stevens, 3 B. & Ad. 299. (r) Doe V. Bowditch, 8 Q. B. 973 ; Doe v. Horsley, 1 A. & E. FORFEITURE. 59 determined in each case upon the construction of the terms of the proviso (r). If performance of a covenant or condition is rendered Performance impossible, or impossible, or a breach thereof is made compulsory, by a breach com- subsequent statute, and such breach was not contemplated sutute.' by the parties when the condition or covenant was made, a forfeiture for such non-performance or breach cannot be enforced (s). If the covenant or condition was not to do an act which was then unlawful, and the legislature sub- sequently makes the act lawful, this does not release the covenant or condition (t). A power of re-entry inserted in accordance with the provisions of a private Act cannot be insisted upon if th$ provisions of such private Act are altered by a subsequent Act (u). A distinction has been drawn between cases where the Lease void or voidable ouly. condition or proviso for forfeiture provides that the lease shall be absolutely void, and where the lease is to be void- able only (x), viz. that in the former cases the lease would ipso facto determine upon breach, while in the latter cases it would determine only at the election of the lessor. This distinction seems now to be of little importance, for it is well settled that a lessee cannot take advantage of his own wrong to assert that the lease has been forfeited {y) and the courts have in almost every possible case construed condi- 766 ; Barry v. Glover, 10 Ir. C. (0 Bretcster v. Kitchell, supra. L. E. 113. (u) Doe v. Brandling, 7 B. & (r) See last note. C. 643. (s) Doe V. Rugeley, 6 Q. B. i^) Co. Lit. 215 a ; Browning 107 ; Brewster v. Kitchell, 1 Salk. v. Beston, Plowd. 130 ; Doe v. 197 ; Baily v. de Crespigny, L. Butcher, 1 Doug. 50. R. 4 Q. B. 180 ; Bac. Abr., Con- {y) Doe v. Bands, 1 B. & Aid. ditions (Q) 2 ; Com. Dig., Con- 401 ; Rede v. Farr, 6 M. & S. dition(L. 13). See Doe\. Butcher, 121. 6 Q. B. 115. 60 LAW OF EJECTMENT. Who may enforce right of re-entry. Beneficial owner of reversion. Lessor cannot after assit^n- nieiit of reversion. tions and provisoes for forfeiture as making the lease voidable only at the option of the lessor for all pur- poses (z). Before the Judicature Acts no one could re-enter for a forfeiture except the person then legally entitled to the rent or reversion (a), unless the tenant was estopped from denying his title (?>) ; but now the effect of the Judicature Acts (c), and of the Conveyancing Act (d), 1881, is to enable any person beneficially entitled to the rent or reversion, or any part thereof if severed, to enforce a right of re-entry. A lessor cannot enforce a right of re-entry after he has parted with his reversion (e), or after the reversion has been merged or extinguished (/) ; but a lessee who has demised the whole of his interest, subject to a right of re-entry, may enforce such right of re-entry (g), though he has no reversion and cannot distrain because an under- lease for the whole term of the under-lessor is equivalent to an assignment (/t). If a sub-lessor grants to his sub- lessee the residue of his interest from the determination of the sub-lease, that is a grant of an interesse termini, and the right of re-entry contained in the sub-lease is not destroyed (i). {&) Arnsby v. Woodward, 6 B. & C. 519 ; RoherU v. Davey, 4 B. & Ad. 664 ; Doe v. Birch, 1 M. & W. 402 ; Davenport v. The Queen, 3 App. Cas. 115; Victoria, A.- (J. of V. Ettershank, L. R. 6 P. ('. 354. See p. 107. (a) Doe V. Adams, 2 C. & J. 232 ; Moore v. Plymouth, 3 B. & Aid. 66. {h) See p. 27. (c) Judicature Act, 1873, s. 24 (36 & 37 Vict. c. 66). id) 44 & 45 Vict. c. 41, ss. 10, 11, 12. (e) Fenii v. Smart, 12 East, 444 ; Doe v. Edwards, 5 B. & Ad. 1065. See p. 32. (/) Webb V. Mussell, 3 T. R. 393. (gf) Doe V. Bateman, 2 B. & Aid. 168 ; Colville v. Hall, 14 Ir. C. L. R. 265 ; see Hyde v. Warden, 3 Ex. D. 72. {h) Beardman v. Wilson, L. R. 4 C. P. 57. {i) Hyde v. Warden, 3 Ex. I). 72. FORFEITURE. 61 A right of re-entry cannot effectually be reserved to a Stranger to stranger to the estate out of which the lease is granted {k), cannot. unless he has joined in the demise, in which case the tenant is estopped by the lease from denying that the lessors were joint tenants or had power to demise jointly (l). A right of re-entry, reserved in an underlease, to both the original lessor and the underlessor, gives each of them a separate right of re-entr}' (n). By the common law an asignee of the reversion could Assignee of _ the reversion, not enforce a right of re-entry for condition broken, or under a proviso for re-entry, such a right being inalien- able. To remedy this, the statute of 32 Hen. VIII. c. 34, 32 Henry vir. T 1 1 • 1 1 • f> c. 34. was passed, by whicli the grantees or assignees of reversions on leases were enabled to re-enter for breach of condition or covenant. That statute applied only to leases under seal and, there- fore, the assignee of the reversion upon a lease not under seal could not re-enter by virtue of that statute (o). Where, however, in the case of tenancies not created by deed, there had been an acceptance of rent or some other act affirming the tenancy (p) after an assignment, a con- ventional law was made, having the same effect as the statute of Hen. VIII., and it was inferred that the parties had agreed to continue upon the terms of the original lease {q). (/.:) Doe V. Laurence, 4 Taunt. 2 Q. B. 120. 23 ; Doc V. Goldsmith, 2 Cr. & J. ( p) See p. 29. 674. {c[) Cornish v. Stubbs, L. R. 5 (/) Doe V. Goldsmith, supra. C. P. 334 ; Smith v. Eggington, See p. 28. L. R. 9 C. P. 145 ; Elliott v. {n) Doe V. Wliite, 4 Bing. 276. Johnson, L. R. 2 Q. B. 120 ; (o) Brijdges v. Lewis, 3 Q. B. Buchcorth v. Simpson, 1 C. M. & 603 ; Stamlen v. Chrismas, 10 Q. R. 834. B. 135 ; Elliott v. Johnson, L. R. 62 LAW OF EJECTMENT. 22 & 23 Vict. c. 35. Conveyancing Act, 1881. Severance of reversion. Under the statute of Henry VIII. an assignee of the rever- sion in part of the lands could not enforce a right of re- entry (r), but the assignee of part of the reversion in all the lands could do so (s). By the statute 22 & 23 Vict, c. 35, it was provided that where the reversion on a lease is severed, and the rent or other reservation is equally apportioned, the assignee of each part of the reversion shall have, in respect to his portion of the rent or reserva- tion, the benefit of all conditions of re-entry for non- payment of rent, as if the same had been reserved to him (t). The Act of Hen. VHI. extends to a surrenderee of copy- holds (u), to the assignee of the reversion upon a lease of incorporeal hereditaments (x), to the remaindermen and reversioners in a settlement (y), for they are the assigns of the settlor (y), and to assignees by estoppel (z), Now, by the Conveyancing Act, 1881 (a), with respect to leases made since December 31, 1881, the benefit of every covenant or provision in a lease, having reference to the subject-matter thereof, and every condition of re-entry and other condition, runs with the reversionary estate in the whole or part of the land, notwithstanding severance, and can be enforced and taken advantage of by the person for the time being entitled to the income of the whole or (r) Doe V. Lewis, 5 A. & E. 277 ; Twynam v. Picard, 2 B. & Aid. 105 ; see Hyde v. Wardeu, 3Ex. D. 72. (s) Kidwelly v. -BrajwZ, Plowd. 69 ; Altoe v. Hemminrjs, 2 Bulstr. 281 ; JVriyht v. Burroiujhes, 3 C. B. 685. (0 S. 3. {u) Glover v. Coi^, 4 ]\Io(l. 80 ; Whitton V. Peacock, 3 IM. & K. 325. (x) Mariyn v. TVilliams, 1 H. & N. 817 ; Norval v. Pascoc, 34 L. J. Cli. 82 ; Hooi^er v. Clark, L. R. 2 Q. B. 200 ; Egremont v. Keene, 2 Jones, Ir. Excli. 307. (y) Grecnaway v. Hart, 14 C. B. 340, 348 ; Ishenvood v. Old- hnow, 3 M. & S. 382. {z) Cuthberfson v. Irvine/, 4 H. & N. 742 ; 6 id, 135. («) 44 & 45 Vict. c. 41. FORFEITURE. 63 part of the demised premises (h). And, further, every Assignee of ,. • • 1 ,■ T • P^^"* ofrever- condition or rig lit oi re-entry and every other condition sion. in a lease shall, upon severance of the reversionary Assignee of reversion in estate, or upon avoidance or cesser of the term as to part part of tho only of the land, be apportioned and be annexed to the severed parts of the reversionary estate, as if the land comprised in each severed part, or the land as to which the term remains subsisting, had alone originally been comprised in the lease (c). Under these provisions the assignee of the whole or part of the reversion, or the assignee of the reversion in the whole or part of the lands, can enforce a right of re- entry ; and, where the term as to part of the lands has been avoided, or otherwise ceased, the owner of the reversion in the part of the land which still remains subject to the lease can enforce a right of re-entry. These sections speak of a "lease," and it has been held To wh.at that the word " lease " in s. 14 applies only to an actual vejancing lease, and perhaps to an agreement for a lease where the ■'^ct, I88i, ' c i. o applies. tenant is entitled to specific performance (d). Presum- ably the same construction must be given to the word " lease " in ss. 10 and 12. An assignee of the reversion can re-enter for such for- Assignee cannot re- feiture only as has been incurred after he became enter for assignee (e) ; for such forfeiture he can re-enter, although no incmreT notice of the assignment has been given to the tenant ( f), ^"^'"™'^ ^•^'^^S" except that notice must have been given to the tenant before there can be forfeiture for non-payment of rent (g). An assignee cannot re-enter for a forfeiture incurred before (6) S. 10. (/) Scalfock v. Harston, 1 C. (c) S. 12. P. D. 106. (d) Srmin v. Ayres, 21 Q. B. {g) Mallorifs case, 5 Co. Rep. D. 289. 111b; Francis's case, 8 Co. Rep. (e) Fenn v. Smart, 12 East,444 92a. ment. 64 LAW OF EJECTMENT. Devisee of reversion. Covenants and condition running with reversion. Instances. he became assignee, for a right of re-entry for condition broken is not assignable (h); but a devisee of the reversion can re-enter for a forfeiture incurred during the life of his testator (i). An assignee of the reversion cannot re-enter for every breach of condition or covenant which might have entitled the original lessor to re-enter. The statute of Henry VIII. was held to apply only to conditions and covenants which touch and concern the thing demised, and not to collateral conditions and covenants (k). The Conveyancing Act, 1881, uses the words, "having reference to the subject-matter of the lease " (l), which presumably are intended to have the same meaning as the rule laid down in Spencer's case. The benefit of such conditions and covenants as do touch and concern the demised premises runs with reversion whether assigns are named or not (m). The following conditions and covenants have been held to run with the land or reversion : — to pay rent (n) ; to repair (o) ; to insure (^9) ; not to alienate (q) ; to reside (h) Htmt v. Bishop, 8 Excli. 675 ; Hunt v. Remnant, 9 Exch. 635 ; Martyn v. Williams, 1 H. & N. 817 ; Johnson v. St. Peter, 4 A. & E. 520 ; Bennett v. Herring, 3 C. B. N. S. 370. {i) Wills Act, 1838, 1 Vict. c. 26, s. 3. See ^mst, p. 153. {k) Spencer's case, 1 Sm. L. C. 63 (9th Ed.) ; Vernon v. Smith, 5 B. & Aid. 1 ; I)oe v. Peck, 1 B. 6 Ad. 428 ; Hooper v. Clark, L. R. 2 Q. B. 200 ; Stevens v. Copp, L. R. 4 Ex. 20 ; TVebb v. Eussell, 3 T. R. 393. (l) S. 10. (m) Conveyancing Act, 1881, s. 58 ; Lougher v. JVilliums, 2 Lev. 92. («) Parker v. Webb, 3 Salk. 5 ; Stevenson v. Lambard, 2 East, 575 ; Paul v. Nurse, 8 B. & C. 486 ; Williams v. Bosanquet, 1 B. & B. 238. (0) Wakefield v. Broion, 9 Q. B. 209 ; Minshull v. Oakes, 2 H. & N. 793; Hornidge v. Wilson, 11 A. &E. 645 ; Martyn v. Glue, 18 Q. B. 661 ; Buckley \. Pirk, 1 Salk. 316 ; Greenaway v. Hart, 14 C. B. 340 ; Williams v. Earle, L. R. 3 Q. B. 739 ; Scal- tock v. Harston, 1 C. P. D. 106. (p) Vernon V. Smith, 5 B. & Aid. 1 ; Ex parte Gorely, 34 L. J. Bank. 1. (7) Williams v. Earle, L. R. 3 Q. B. 739 ; West v. Dobb, L. R. FORFEITURE. 65 constantly upon the premises (r) ; as to user (s), raode of occupation (t), and cultivation of the premises (u) ; to keep the premises well stocked with game (x) ; to allow the landlord a right of passage over the premises (y) ; to pay all rates, taxes, &c. (z) ; to grind all corn grown on the premises at the mill of the lessor (a) ; probably, also, con- ditions for forfeiture upon bankruptcy or the taking in execution of the term (b), though there is no express decision upon this point, for the same reasoning would appear to apply to this condition as to conditions against alienation or for personal residence ; also, to build upon the demised premises (c) ; and, to convey upon a demised railway all coal gotten from certain mines {d). The following conditions and covenants have been held Covenants not to run with the land or reversion : not to build a not mnninc^ public-house within a certain distance of the demised ^V-^^ ^^^^^" premises (e) ; to pay an amount, or any sum, not being 4 Q. B. 634, 637 ; Hammond v. Colls, 1 C. B. 916. See Paid v. Nurse, 8 B. & C. 486, where a contrary opinion is indicated. (r) Tatem v. Chaplin, 2 H. BI. 133. (s) TFilki7ison v. Rogers, 12 W. K. 119 ; Congleton v. Pattison, 10 East, 130 ; but see Wilson v. Hart, 1 Ch. 463, 466 per Turner, L.J. (t) Bally V. Wells, 3 Wils. 25. («) Cockson V. Cock, Cro. Jac. 125. {x) Hooper v. Clark, L. R. 2 Q. B. 200. (i/) CoWs case, 1 Salk. 196. (s) Windsor's case, 5 Co. Rep. 24 b. ; Hartley v. Hudson, 4 C. P. D. 367 ; Jeffrey v. Neale, W.Y.E, L. R. 6 C. P. 240 ; Bennett v. Womack, 7 B. & C. 627 ; Watson V. Atkins, 3 B. & Aid. 647. (a) Vyvyan v. Arthur, 1 B. & C. 410. (6) See Roe v. Galliers, 2 T. R. 133 ; Doe v. Pritchard, 5 B. & Ad. 765 ; where the point was discussed but not decided. (c) Sampson v. Easterhy, 9 B. & C. 505 ; Doughty v. Boioman, 11 Q. B. 444 ; Hunt v. Bishop, 8 Exch. 675 ; Hunt v. Remnant, 9 Exch. 635 ; Cockson v. Cock, Cro. Jac. 125. (d) Hemingway v. Fernandes, 13 Sim. 228. (e) Thomas v. Hayward, L. R. 4 Ex. 311. 66 LAW OF EJECTMENT. rent (/) ; those which relate to chattels demised along with the premises (g) ; for forfeiture upon the conviction of the tenant or occupier for any offence against the game laws (h) ; not to employ persons from other parishes upon the demised premises (i) ; to trade only with the lessor (k). Forfeiture by When a landlord seeks to eject an assignee of the lease ^gj.j°_ for condition broken, it is, in most cases, only material to consider the precise words of the condition, to see whether it does in terms apply to an assignee, and it is immaterial whether the burden of the condition runs with the land or not (I) ; for the lessor has a right to make the estate of his lessee conditional upon any event, and an assignee takes it subject to the condition, and is liable to forfeiture for the breach of it (l). If the condition be that the doing, or the omitting to do, any act, by the lessee or by an assignee, shall cause a forfeiture, then the landlord can re-enter if such act be done or be omitted to be done by the lessee or by an assignee {m). The only cases in which it can be material to consider whether the burden of the condition runs with the land or not, are those in which the condition does not in its terms apply to an assignee, and the act or omission for which a forfeiture is alleged to have been incurred, is the act or . omission of the assignee, and not of the lessee. In such (/) Lambert v. Norris, 2 M. & (k) See Hartley v. Pehall, W. 333 ; Hohj v. Eoebuck, 7 Peake, 178. Taunt. 156 ; Donellan v. Read, {I) Doe v. Pech, 1 B. & Ad. 3 B. k Ad. 899. 428. {g) Gorton v. Gregory, 3 B. & (m) Stevens v. Co}:)}), L. R. 4 S. 90 ; Williams v. Earle, L. R. Ex. 20 ; Doe v. Peck, 1 B. & Ad. 3 Q. B. 739. 428 ; Boe v. Harrison, 2 T. R. (h) Stevens v. Copjh L. R. 4 425 ; Doe v. Pritchard, 5 B. & Ex. 20. Ad. 765 ; Due v. David, 1 C. M. & (i) Gongleton v. Pattison, 10 R. 405 ; Williamson v. William- East, 130 ; see also Walsh v. son, 9 Ch. 729. Fussell, 6 Bing. 163. FORFEITURE. 67 cases the assignee will be liable to ejectment only if the condition is one that runs with the land (n). In Smith v. Gronoiu, there was a proviso for re-entry if " the lessee, his executors, administrators, or assigns should become bankrupt " ; after assignment with the consent of the lessor, the lessee became bankrupt, and Wright, J., held that the proviso referred only to the bankruptcy of the person for the time being entitled to the term, and that no forfeiture had been incurred (o). If two or more houses or parcels of land are demised by Forfeiture one lease which contains a proviso for re-entry upon breach demised has of covenant or condition, an assis^nee or under-lessee of ^?^P, , " ' '^ dividea. any part of the demised premises may be ejected for forfeiture incurred by breach of covenant or condition committed by the tenant of another part of the demised premises, though he himself has performed all the con- ditions and covenants (p). The provisions of the Convey- ancing Act, 1881, have made no difference in this re- spect (q). The lease is determined upon forfeiture from the time Lease deter- n ., 1 • f. , J.1 J • r mined upon ot the making oi an entry, or the doing oi some une- gi^tTv for quivocal act which is equivalent to entry (r). forfeiture. In order to determine a lease upon the ground of a for- What is feiture, where the lease is voidable at the option of the entry ^" lessor, the landlord must make an entry, or do some other unequivocal act, showing an intention to insist upon the forfeiture, which is equivalent to an entry (s). A demise of (n) TFest v. Dobb, L. R. 4 Q. (r) Hartshorne v. Watson, 4 B. B. 634 ; 5 id. 460. N. C. 178. (o) Smith V. Gronow, [1891] 2 (s) Feim v. Smart, 12 East, Q. B. 394. 444 ; Baylis v. Le Gros, 4 C. B. (p) Darlington v. Hamilton, N. S. 537 ; Jones v. Garter, 15 Kay, 550. M. & W. 718, 725 ; Eoherts v. {q) Cressioell v. Davidson, 56 Davey, 4 B. & Ad. 664, L. T. 811. F 2 68 LAW OF EJECTMENT. Action of ejectment. Effect of re-entry. Landlord's right to emblements and fixtures. Landlord's right to the premises to a new tenant (t), or a new demise to a tenant or sub-tenant in possession (u), is such an act. An actual entry is any act done by the landlord which, if done by a person having no right to re-enter, would be a tres- pass (x) ; or an entry upon the premises by the landlord claiming to be entitled to possession (y). Before the Common Law Procedure Act, 1852, the service of a declaration in ejectment was held to determine the lease (z) ; since that Act, the bringing of an action of eject- ment was held to be equivalent to an entry and to deter- mine the term (a) ; and, since the Judicature Acts, Fry, J., said that an action of ejectment was " equivalent to the old entry " (b). In Ex 'parte Dyke (c), however, this point was elaborately argued, and the C. A. declined to express any opinion upon it. The effect of such a determination is to destroy the right of possession under the lease both of the tenant himself and of all sub-tenants ((?), and to give to the person who re-enters the same estate as the lessor had at the time of the demise, and to avoid all mesne estates (e). Upon re-entering, the lessor is entitled to the emble- ments and fixtures unless the tenant has protected himself by express agreement giving him a right to take or remove them after the end of the term (/). When a landlord has enforced a right of re-entry for (i) Baylis v. Le Gros, supra. (u) Roberts v. Davey, supra. {x) Doe V. Wood, 2 B. & Aid. 724 ; Turner v.Doe,9'^L&^Y.6i?,. (y) Doe V. Williams, 5 B. & Ad. 78.3, 789. (z) Goodright v. Gator, 2 Doug. 477 ; Jones v. Carter, 15 M. & W. 718. (a) Grimwood v. AIoss. L. R. 7 C. P. 360, 364. (6) Evans v. Davis, 10 Cli. D. 747, 763. (c) 22 Ch. D. 410. (d) G. W. 11 V. Smith, 2 Cli. 1). 235, 253. (e) Bac. ALr. Conditions, 0. 4 ; Co. Lit. 202 a. (/) Davis V. Eyton, 7 Bing. 154 ; Purjh v. Arton, 8 £q. 626. FORFEITURE. 69 non-payment of rent or for breach of any covenant or con- recover rent dition, he is not prevented from recovering substantial aftei^for- ^ damages for breaches of covenant committed before re- feit^re. entry (g), or from recovering arrears of rent accrued before re-entry (h), even if the right is to re-enter and retake the premises as if no lease had ever been made (h). A landlord who claims to re-enter for a forfeiture must Landlord T ^ n r • 11 • must always always show that the lorreiture has been incurred even prove breach. though the proof required may be of a negative character ; thus, if the breach alleged is the doing an act without his consent he must give some evidence that he did not con- sent (i) ; or if the breach is non-insurance he must give some evidence that the premises were not insured (k)- Whenever the breach alleged is the omission to do something the landlord must give some negative evidence of that omission (Z). By the Conveyancing Act, 1881 (m), a right of re-entry Restrictions or forfeiture under any proviso or stipulation in a lease, re-entry im- for a breach of any covenant or condition in the lease, is veyancino- not enforceable, by action or otherwise, unless and until ^^^' l^^^- the lessor serves on the lessee a certain notice, and the lessee fails to comply therewith (n). There are, however, some exceptions to this provision requiring notice to be given before enforcing a forfeiture, and notice need not be given when the forfeiture is for : (1) non-payment of rent (o) ; (2) breach of covenant not to assign, underlet, {g) Davies v. Underwood, 2 H. {h) Doe v. JFliitehead, 8 A. & E. & N. 570 ; Selby v. Browne, 7 Q. 571 ; Toleman v. Poriburij, supra. B. 620. {I) Doe v. Robson, 2 C. & P. ill) Hartshorne v. Watson, 4 B. 245 ; Doe v. JFatt, 8 B. & C. 308. N. C. 178. (m) 44 & 45 Vict. c. 41. (i) Toleman v. Porthimj, L. E. (?i) S. 14, sub-s. 1. 6 Q. B. 245. (o) S. 14, sub-s. 8. 70 LAW OF EJECTMENT. part with the possession of, or dispose of the land leased {p) ; (3) on the bankruptcy of the lessee, or the taking in execution of his interest, with certain exceptions (q) ; (4) breaches of certain covenants in mining leases (p). This subject is fully dealt with in the chapter on relief (r). [f) S. 14, sub-s. 6. 55 & 56 Vict. c. 13, s. 2, sul.-s. 2. [q) Conveyancing Act, 1892, (r) Fost, p. 116. 71 CHAPTER VIII. BREACHES OF COVENANTS AND CONDITIONS. 1. Non-2oayment of Kent, 71 \ S. Bankruptcy, 100. 2. Alienation, 77. 9- Building Covenants, 101. 3. Non-repair, 82. | 10, Residence, 102. 4. User of the Premises, 88. ; 11. To buy Goods of Lessor, 102. 5. IVaste, 92. 6. Non-Insurance, 94. 12. Farming Covenants, 103. 13. Alining Covenants, 104. Non-payment of Rates and 14. Sundry, 105 Taxes, 95. 1. Non-payment of Rent. If a landlord desires to recover possession of demised Common Law. premises on the ground of a forfeiture for non-payment of C. L. P. Act, rent, he can proceed either under the common law, or under the provisions of s. 210 of the Common Law Procedure Act, 1852 {a). He can in all cases proceed at common law, and Tiiust so proceed in cases which do not come within the provisions of the statute (a). la no case can a landlord recover possession for non- Conditiou, or payment of rent unless the payment of rent has been made Je entry a condition (6), or unless there is a proviso (b) giving the i^ecessary. landlord a right to re-enter for such non-payment, and either determine the demise (c), or hold until the arrears are satisfied {d). («) 15 & 16 Vict, c, 76. ((I) Doe v. Horsley, 1 A. & E. (6) Ante, pp. 54—55. 766 ; Doe v. Boivditcli, 8 Q. B. (c) hill V. Kempshall, 7 C. B. 973. 975. 72 LAW OF EJECTMENT. Default in ])avment. Tender oi rent at Com- mon Law. Tender of rent under C. L. P. Act, 1852. If the condition or proviso allows a specified number of days for payment of the rent after the day upon which it becomes due, no forfeiture can accrue for its non-payment until those days have elapsed (e). If the rent is reserved, " payable quarterly, and always if required in advance," the rent is always due in advance, and becomes payable upon demand at any time during the quarter, and is, therefore, in arrear as soon as it has been demanded (/). By the Common Law a tenant can pay his rent at any time before the expiration of the last day allowed for payment (g). If he, or anyone on his behalf, pays or tenders the rent to the landlord, or to his authorised agent, at any time (Ji) before the expiration of such last day either on or off the demised premises, no forfeiture will accrue (i) ; but the tenant must seek out his landlord, wherever he may be " i^iter quattuor Tiiaina," in order to pay his rent (k). Payment or tender at any time subsequent to such last day will not prevent a forfeiture at common law if the landlord has proceeded in the manner required by the common law (l). If, however, the landlord seeks to proceed under the statute (rti), payment or tender of the rent at any time before the action is commenced prevents a forfeiture (n). Whether the proceedings be at common law, or under the statute, all (e) Thomson v. Field, Cro. Jac. 499 ; Thomkins v. Pincent, 7 Mod. 97 ; Doe v. Roe, 7 C. B. 134 ; Phillips v. Bridge, L. R. U C. P. 48. (/) London dc Westminster Co. V. L. iV. IF. By. [1893] 2 Q. B. 49. (r/) Dibble v. Boivater, 2 E. & B. 564. (h) Burgaine v. Spurling, Cro. Car. 283. (i) Groj)]) V. Hambleton, Cro. Eliz. 48. (k) Haldane v. Johnson, 8 Exch. 689. (l) Doe V. Shauxross, 3 B. & C. 752 (m) 15 & 16 Vict. c. 76. {n) Goodright v. Noright, 2 Wm. Black, 746 ; Doe v. Shaiv- cross, 3 B. & C. 752. BREACHES OF COVENANTS AND CONDITIONS. 73 proceedings are stayed on payment or tender of all rent and costs at any time before trial (o). When the proceedinofs are at common law there must Demand of . . , rent. be a demand by the landlord, or his duly authorised agent, of the precise rent due and payable to save the forfeiture, on the exact day on which it so becomes payable, at the proper place of payment, and at a convenient time before sunset, and at sunset (p). If, however, the lease provides Common that the landlord may re-enter, although no formal demand shall have been made, or if the right to re- enter (q) is only a right to enter and hold until the arrears have been satisfied (r), the formalities of the common law need not be complied with, and no demand at all need be made. The words " being demanded," in a proviso for re-entry, dispense with the necessity for a strict common law demand, but not for a demand of some kind (s) ; but the words " without resorting to any legal process " do not dispense with a strict demand (t). The landlord may make the demand in person, or by How made. his duly authorised agent. An agent is usually authorised By agent. by power of attorney, and he must have his authority with him ready to produce to the tenant if required (lo) ; but he need not produce it unless requested to do so (u). Perhaps it would be sufficient if the agent was authorised (o) C. L. P. Act, 1852, s. 212 ; (r) Doe v. Horsley, 1 A. & E. see p. 118 ; Roe v. Davis, 7 East, 766 ; Doe v. Bowditch, 8 Q. B. 363, 366. 973 ; but see Hassell v. Gowth- {2}) 1 Wms. Saund. (Ed. 6) 287, waite, Willes, 500, 507. note (16) and (m) ; Hill v. Kemj)- (s) Phillips v. Bridge, L. R. 9 shall, 7 C. B. 975 ; Molineux v. C. P. 48. Molineux, Cro. Jac. 144. {t) Barry v. Glover, 10 Ir. C. L. (g) Umphyrey v. Dameon, 1 R. 113. Bulstr. 181 ; Dormer's case, 5 Co. (u) Roe v. Davis, 7 East, 363 ; Rep. 40 a ; Goodright v. Gator, Toms v. JVilson, 32 L. J. Q. B. 2 Doug. 477, 486 ; Doe v. Masters, 33, 382. 2 B. & C. 490. 74 LAW OF EJECTMENT. only by having a receipt for the rent signed by the land- lord and duly stamped ; especially if he be the known servant of the landlord, or his steward or agent who usually receives his rents. What must The precise sum then becoming due and payable must be demanded. ^^ demanded, and not one penny more or less, otherwise the demand will be altogether bad. So, if the rent be payable quarterly, half-yearly, or yearly, only the rent becoming due for the last of such periods should be demanded, and not the previous arrears, because it is only in respect of the rent becoming due for the last period that a forfeiture will accrue, the previous arrears not having been demanded on a proper day for that pur- pose iy). When demand The rent must be demanded upon the very day upon made. which it becomes due and payable, if no extra days are allowed by the lease to save a forfeiture (z). If such extra days are allowed, it must be demanded upon the last of such days (a). A demand upon any other day before or after the right day is insufficient (6). Where. The demand must be made at the proper place. When the rent is made payable at a particular place, either on or off the premises, it must be demanded there (c). In the absence of any special provision the demand must be made upon the land (d), at the most notorious place (2/) Scot V. Scot, Cro. Eliz. 73 ; 141 ; ante, p. 72. Doe v. Paul, 3 C. & P. 613 ; (6) Doe v. JFandlass, 7 T. E. Fabian v. Winston, Cro. Eliz. 117. 209, 1 Wilis. Saunders, (Ed. 6) (c) 4 Co. Rep. 73 a ; Buskin v. 287. Edmunds, Cro. Eliz. 415 ; Hassell (z) Doe V. Wandlass, 7 T. R. v. Gowthwaite, W'illes, 500, 507 ; 117 ; Co. Lit. 202 a, note (3) ; Kidwelly v. Brand, Plowd. 70 a. Umphyrey v. Dameon, 1 Bulstr. (d) Bwetman v. Gush, Cro. Jac. 181. 8. (a) Smith v. Bustard, 1 Leon. BREACHES OF COVENANTS AND CONDITIONS. 75 thereon ; if there be a dwelUng-house it must be made there, at the front door, though there is no necessity to enter the house (e) ; if the premises are only a wood, or land without buildmgs, it must be made at a gate, or on a highway running through, or other notorious place ; if one place be as notorious as another the landlord may choose which he pleases (/). The demand must always be made, though neither the tenant nor anyone on his behalf is present (g), and is good in such a case, though made upon a sub-tenant, and not generally (g). The demand must be made at a proper hour of the day. Time for that is, at a convenient hour before sunset and at j'emand. sunset (li) : it may be made at any time before sunset provided it be continued until sunset {It) ; it must com- mence a sufficient time before sunset to allow the money to be counted and paid (h), or, if made by an agent, to allow the tenant to enquire into his autho- rity (I). The court will not take judicial notice of the time of sunset on any particular day, but it must be proved by evidence {k). By s. 210 of the 0. L. P. Act, 1852 (l), a landlord Proceedings may proceed to recover possession of the premises ^^t^\852^ ' from his tenant under its provisions when he has by law a right to re-enter, and one half-year's rent is in arrear, and there is no sufficient distress to be found upon the premises countervailing the arrears then due (I). This enactment is only applicable to cases between (e) Co. Lit. 201 b. Doe v. Paul, 3 C. & P. 613. (/) Co. Lit, 202 a. (i) Toms v. IVilson, L. J. 32 Ig) Doe V. Brydges, 2 D. & R. Q. B. 33, 382. 29 ; Co. Lit. 201 b. {k) Collier v. Nokes, 2 C. & K. (h) 1 Wnis-Saund. (Ed. 6) 287 ; 1012. See p. 235. Co. Lit. 202 a ; Pluwd. 172 a ; {I) 15 & 16 Vict. c. 76, s. 210. Acocks V. Phillips, 5 H. & N. 183 ; See note (/ ), p. 277. Thomson v. Field, Cro. Jac. 499 ; 76 LAW OF EJECTMENT. Right by law to re-enter. Half-year's rent in arrear. No sufficient distress. landlord (m) und tenant. Tlie assignee of a tenant, whether by way of mortgage (n), or otherwise, and also an underlessee (o), are tenants within its meaning. The landlord must have by law a right to re-enter. He has such a right whenever the payment of rent is made a condition of the lease, or there is a proviso giving him a right to re-enter if it is not paid {p). It must be a right to re-enter and determine the tenancy, not merely to enter and hold until the arrears are satisfied (q). There must be at least one half-year's rent in arrear at the time the action is commenced (r). The taking and realising of a distress which reduces the amount of arrears to less than one half-year's rent is a bar to the action (s) ; but not if it does not so reduce the arrears (t). If an insufficient distress is taken, but not realised, that is no bar to an action {u), though possession may have been kept for some time (ic). There must be no sufficient distress to be found upon the premises countervailing the arrears then due, that is, countervailing all the arrears then due, whether only one half-year's rent or more (x). It is good prima facie proof of insufficiency to show that there was no sufficient distress upon any one day between the time when the rent (m) See 44 & 45 Vict c. 41. s. 10, App. B, p. 358. (n) Doe V. Roe, 3 Taunt. 402 ; Williams v. Bosanquet, 1 B. & B. 238. (o) Doe V. Buron, 1 C. B. 623. Qj) Ante, p. 71. (q) Doe V. Bowditch, 8 Q. B. 973 ; Doe v. Horsley, 1 A. & E. 766 ; Barry v. Glover, 10 Ir. C. L. R. 113. {r) Doe V. Shaivcross, 3 B. & C. 752 ; Doe v. Johnson, 1 Stark. 411. (s) Cotesioorth v. Spokes, 10 C. B. N. S. 103. {t) Breiver v. Eaton, 3 Doug. 230. {u) Doe V. Johnson, 1 Stark. 411. (x) Cross V. Jordan, 8 Exch. 149 ; Doe v. Roe, 4 C. B. 576 ; Doe V. Roe, 9 Dowl. 548, contra, overruled. BEEACHES OF COVENANTS AND CONDITIONS. 77 became in arrear, and when the action was commenced {y), but the tenant may rebut this by showing that there was a sufficient distress at the time the action was com- menced {y). No demand of the rent need have been made. In Demand proceedings under this Act, service of the writ is sub- ^' stituted for, and is equivalent to a formal common law demand {z). Demand is unnecessary, even though the proviso for re-entry be expressed to be in case the rent is in arrear "being lawfully demanded " (a) ; though it may be otherwise, if there is an express covenant not to re-enter without demand (6). When an action has been commenced under this Act, the forfeiture accrues from the day upon wdiich it would have been complete at common law, had a demand been made (c). 2. Xot to assign, sublet, &c. The covenant by a tenant that he will not alienate his Construction estate is always construed jealously to prevent the restraint ^^^ ^q assif'n, from going beyond the express stipulation (^Z). This cove- '^''• nant varies in the extent to which the restraint is imposed, and each covenant must be carefully examined to see to what extent it does impose a restraint {e). The widest covenant is that which restrains the tenant Forms of ■ 1 • • II,,- , • • , 1 , 1 such cove- from either assigning, or sub-letting, or parting with the nants. {y) Doe V. Fuchan, 15 East, (c) Doev. Shawcross, 3 B. & C 286 ; Wheeler v. Stevenson, 6 H. 752. & N. 155 ; post, p. 232. (cZ) Church v. Brown, 15 Ves. (z) Doe V. Shaxvcross, 3 B. & C. 258. 752. (e) Crusoe v. Burjlnj, 3 Wils. (a) Doe V. Alexander, 2 M. S. 234; Roe v. Harrison, 2 T. R, 525 ; Doe v. Wilson, 5 B. & Aid. 425 ; Roe v. Sales, 1 M. & S. 297 ; 3g3_ Doe V. Worsley, 1 Camp. 20 ; (h) Doe V. Wilson, supra. Greenaivayv. Adams, 12 Ves. 395. 78 LAW OF EJECTMENT. Conveyan- cing Act, 1892, s. 3. Consent improperly withheld. possession of the demised premises or any part thereof. This is usually modified by the addition of the words, " without the consent of the landlord," and often of the further words, " sucJi consent not to he withheld arbi- trarily,^' or " in the case of a respectable and responsible person," or some other such words (/). By the Conveyancing Act, 1892, s. 3 (. 42. supra; Proudfoot v. Hart, 25 Q.B. (d) Burdett -v. Withers, 7 A. & D. 42 ; Lister v. Lane, supra. E. 136 ; Walker v. Hatton, 12 («) Fitz. Abr. tit. Covenant M. & W. 249. fol. 4; Shep. Touch. 169; {e) Mantz\. Goring, A B. Is. Johnson v. Hereford, 4 A. & E. C. 451. G 2 84 LAW OF EJECTMENT, Performance of tlie cove- nant. Time to le allowed. Premises destroyed by tire, &c. The covenant to repair is performed if tlie tenant keeps the premises substantially in repair, and does all that he reasonably ought to do in performance of his covenant (/) ; it is always a question of fact whether he has done so (g). Even if the tenant has agreed to repair to the satisfaction of the landlord's surveyor, the jury may find that the state of repair ought to have satisfied the surveyor (Jo). It is not sufficient for the tenant to have employed competent persons to do the repairs if they have not in fact executed them properly (i). If the premises are out of repair at any time during the term the covenant is broken (Jc). A tenant must, however, be allowed a reasonable time to put the premises into repair at the commencement of the tenancy {I), even if he has covenanted to do so "forthwith" (m), or "immediately "(i/i); and also to execute repairs during the tenancy, unless they are rendered necessary by his own default. If the tenant positively refuses to repair the landlord may proceed to enforce the forfeiture without waiting for such reasonable time to elapse (n). A tenant is bound by his covenant to repair though the premises are burnt down by accident or negligence (o), or (/) Evelyn v. Eaddish, 7 Taunt. 411 ; Harris v. Jones, 1 Moo. & R. 173 ; Stanley v. Toio- goocl, 3 B. N. C. 4 ; Boe v. Sutton, 9 C. & P. 706. {g) Doe V. Sutton, supra. (h) Doe V. Jones, 2 C. & K. 743 ; Parson v. Sexton, 4 C. B. 899, 909 ; Moore v. JVoolsey, 4 E. & B. 243, 252, 256. (i) Nokes v. Gibbon, 3 Drew. 681. (k) L^ixmore v. Eobson,''! B. & Aid. 584. (I) Green v. Eales, 2 Q. B. 225 ; Covmrd v. Gregory, L. E. 2 C. P. 153. (m) Doe V. Sutton, 9 C. & P. 706 ; Burgess v. Bcetifeur, 7 M. & Gr. 481, 494 ; Roberts v. Brett, 11 H. L. C. 337. {n) Green v. Eales, 2 Q . B. 225. (o) Bullock V. Dommitt, 6 T. R. 650 ; Chesterfield v. Bolton, 2 Comyn. 627 ; Diglnj v, Atkinson, 4 Camp. 275 ; Clark v. Glasgow Co., 1 Mac(|. 668 ; Gregg v. Coates, 23 Beav. 33. BREACHES OF COVENANTS AND CONDITIONS. 85 blown down by a tempest {oo), or destroyed by other inevit- able accident (j)), unless the covenant contains an excep- tion in those cases (5'). The fact that the landlord has insured and received compensation does not release the tenant from such liability (r). Non- repair caused, not by the acts or neglect of the Non-repair tenant but by other persons in pursuance of statutory thMperson. powers, is not a breach of the covenant to repair (s). The tenant is, however, liable for the acts of a third person not having statutory powers {t). It is often a difficult question to decide whether a cove- Subsequently nant to repair extends to buildings which have been erected buildiuo-s. upon the premises subsequently to the demise. No general rule can be laid down, but the question must be deter- mined upon the particular words of each covenant. The authorities seem to establish these rules, that where there is a perfectly general covenant to repair and keep in repair the inference is that the tenant covenants to repair subse- quently erected buildings (u) ; but that, where the tenant covenants to repair and keep in repair the demised premises {x), no such liability arises {11). Sometimes there is a condition precedent to be per- Conditions formed before the tenant becomes liable under a covenant lability" to repair. In those cases there can be no breach by the tenant until the condition has been performed. For {00) See note (0) previous page. [t) Borgnis v. Edwards, 2 F. & 0^) Shep. Touch. 173. F. 111. {q) Saner v. Bilton, 7 Cli. D. (m) Cornish v. Gleife, 5 H. & C, 815 ; Manchester Go. v. Carr, 5 446 ; Hudson v. Williams, 39 L.- C. P. D. 507 ; Meath v. Cuthhert, T. 632 ; White v. WaMey, 26 Ir. R. 10 C. L. 395. Beav. 16 ; Doe v. Roidands, 9 C. (r) Leeds v. Cheetham, 1 Sim. & P. 734 ; Douse v. Earle, 3 Lev. 146 ; Lofft V. Dennis, 1 E. & E. 264 ; Penry v. Broivn, 2 Stark. 474. 403 ; Beaufort v. Bates, 3 De G. (s) Moore v. Clarl, 5 Taunt. F. & J. 381. 90 ; Green v. Bales, 2 Q. B. 225. («) Cornish v. Gleife, supra. 86 LAW OF EJECTMENT. Pulling down or altering premises, instance, if tlie landlord has agreed to previously put the premises into repair {y), or to supply materials for repairs (s), or to appoint a surveyor to see that the repairs are properly done {a), those conditions must be performed before the tenant is liable for non-repair. If the landlord only agrees that the tenant may take suffi- cient wood from the demised land, it is not a condition precedent that there shall be sufficient wood upon the land (6). If the landlord is ready and willing to perform his part, but the tenant refuses to repair, that is sufficient performance of the condition precedent (c). If the landlord perform the condition precedent as to- part only of the premises, the tenant is not bound to- repair that part {d) ; the condition is indivisible, unless^ perhaps, where the covenant relates to separate and distinct premises, and the landlord performs the condition as to. one part {d). Where the tenant had covenanted to complete build- ings within a certain time, and also to keep them in repair, he was held liable under the latter covenant though he had never performed the former (e). It is a breach of the covenant to repair to pull down the premises either wholly or partially, or to open new doors or windows, or to make any alterations {/). If, however. (y) Necde v. Ratdiff, 15 Q. B. 916 ; Slater v. Stone, Cro. Jac. 645 ; Coward v. Gregory, L. R. 2 C, P. 153, 172. (z) Thomas v. Cadwallader, Willes, 496. (a) Coomhe v. Green, 11 M. & W. 480. {h) Bristol v. Jones, 1 E. & E. 484. (c) Martyn v. Clue, 18 Q. B. 661. (cZ) Neale v. Ratcliff, 15 Q. B. 916. (e) Bennett v. Herring, 3 C. B. N. S. 370. (/) Gange v. Lockwood, 2 F. & F. 115; Doe v. Jackson, 2 Stark. 293 ; Doe v. Bird, 6 0. & P. 195 ; 7 id. 6 ; Maunsell v. Horty 1 L. R. Ir. 88. BREACHES OF COVENANTS AND CONDITIONS. 87 the lease contemplates the making of improvements by tlie tenant, it is not a breach of the covenant to repair to make such improvementSj though the premises are thereby altered (g). The removal of fixtures erected by the tenant during Removing the term at any time is a breach of the covenant to repair (h), unless they are such as a tenant is allowed by law to remove. Neglecting to paint the interior when Painting. necessary is a breach of the covenant to repair (i). It is sufficient proof of a breach of a covenant to repair P™of ^f ^^'"^"^ '■ ^ .01 repair at if the landlord shows that the premises were out of repair time of a short time before he elected to enforce the forfeiture. The onus is then upon the tenant to show that the pre- mises were in repair at the time when the landlord did so elect (k). Covenants to repair, and to repair after notice, are usually Notice to distinct and independent covenants, though there may be in particular cases one indivisible covenant only. Where the covenants are distinct, the landlord may proceed for a breach of either (I), but, if he has given a notice to repair within the time specified by the covenant to repair after notice, he is precluded from proceeding to eject under the general covenant to repair until the expiration of the speci- fied time (I). Where there is but one indivisible cove- nant, he must give notice before he can proceed (7n). The {(j) Doe V. Jones, 4 B. & Ad. . (k) Doe v. Durnford, 2 C. & J. 126 ; Doherty v. Allman, 3 App. 667. Cas. 709,731 ; Mcintosh y.Pontij- (I) Baylis v. Le Gros, 4 C. B. Ijridd Co., 61 L. J. Q. B. 164. N. S. 437 ; Roe v. Paine, 2 Camp. (h) Penry v. Brown, 2 Stark. 520 ; Doe v. Meux, 4 B. & C. 403 ; Tliresher v. East London Go., 606 ; Few v. Perkins, L. R. 2 Ex. 2 B. & C. 608 ; Naylor v. GoUinge, 92 ; see pp. 110, 130. 1 Taunt. 19. (m) Horsefall v. Testar, 7 Tauut. {i) Monk V. Noyes, 1 C. & P. 385. 265. 88 LAW OF EJECTMENT. Covenant to rejiair in underlease. notice to rejDair must be given to the lessee or his assigns, and not be served upon a mere undertenant or left upon the premises unless the lease so provides (■?i). If the right of re-entry is reserved upon " wilful non- repair," no notice to repair is necessary to make the non- repair " wilful " ; it is " wilful " if it exists to the know- ledge of the tenant (o). A covenant to repair contained in an underlease, though identical in terms with that in the original lease, does not necessarily have the same effect, because the age and con- dition of the premises may be different {'p). Covenants to user, Buf^iness or trade. Business. 4. User of the Premises. A covenant restricting the purposes for which the de- mised premises may be used is very frequently inserted in leases, especially in those of houses. The object is to pre- vent the lowering of the tenement in the scale of houses by their user for those purposes which, in the judgment of the lessor, are likely to be a nuisance to the neigh- bourhood, or to prevent tenants from afterwards taking the pi-emises, and may therefore depreciate their value at a future period {q). A covenant to use the premises as a private chvelling- Jiouse only, and a covenant not to carry on any business upon the premises, are the same in effect ; but a covenant not to carry on any trade ujoon the premises is more limited in its restriction. Every trade is a business, but every business is not necessarily a trade (r). Business is (?i) Bivetman v. Gush, Cro. Jac. W. 249. 8. { "^ •' ^ -^ breaches oi ancing Acts, 1881 (/) and 1892 (g). Under the provisions covenants, of these Acts relief can now be given in all cases, with some exceptions {h). These exceptions are as follows : — Exceptions. (a) Conditions and covenants against assigning, under- Conditions letting, parting with the possession of, or disposing afienation. of, the demised premises (i). (b) Covenants in a mining lease to allow the lessor to Covenants in . , mining have access to, or inspect, books, accounts, records, leases. weighing machines or other things, or to enter or (c) Hare v. Elms, [1893] 1 Q. (h) S. 14, sub-s. 6 of the Act B, 604. oi 1881, and s. 2, sub-s. 2 of the (e) Ee Brain, 10 Eq. 389. Act of 1892. (/) 44 & 45 Vict. c. 41, s. 14. (i) S. 14, sub-s 6. (g) 55 & 56 Vict. c. 13. 1-20 LAW OF EJECTMENT. N'on-payineut of rent. BMnkruptcy or taking iu execution. Notice Lefore enforcing forfeiture. What notice. inspect the mine or workings (j). A mining lease is defined in the Act of 1881 (^O- (c) Forfeiture for non-payment of rent (I). (d) Conditions for forfeiture on the bankruptcy of the lessee, or the taking in execution of the lessee'ii interest (m). By the provisions of the Convey- ancing Act, 1892, this exception does not take effect until the expiration of one year from the date of the bankruptcy or execution, and does not take effect at all if the lessee's interest be sold within that year (n). This modification introduced by the Act of 1892 does not, however, apply to leases of (i.) agricultural or pastoral land ; (ii.) a public house or beershop ; (iii.) a furnished house ; (iv.) any property with respect to which the per- sonal qualifications of the tenant are of import- ance (n). " Bankruptcy" is defined by the Act of 1881 (o). By the Act of 1881 a right of re-entry is not enforceable at all until the lessor has served the lessee with a notice and the lessee has failed to comply with such notice (p) ; and when the right of re-entry becomes enforceable upoQ non-compliance with the notice and the lessor enforces it,, or proceeds to enforce it, the lessee can obtain relief (q). The object of this notice is to give the lessee an oppor- tunity of making good the breach complained of and so (j) S. 14, sub-s. 6. (jfc) S. 2 (11) of the Act of 1881. See App. B. p. 357. (Z) S. 14, sub-s. 8. See ante, p. (m) S. 14, sub-s. 6 of the Act of 1881. 1892. See App. B. p. 375. (o) S. 2 (15) of the Act of 1881. See App. B. p. 358. Ex parte Gould, Be Walker, 13 Q. B. D. 454. {])) S. 14, sub-s. 1. HeeSivain V. Ayres, 21 Q. B. D. 289. (n) S. 2, sub-s. 2 of the Act of (q) S. 14, sub-s. 2. RELIEF AGAINST FORFEITURE. ]21 depriving the lessor of his right to re-enter (r). The notice must specify every breach complained of and must require the lessee to remedy the same if it is capable of remedy (rr). If there is anything for which to compensate and the lessor requires compensation for the breach, the notice must claim such compensation (rr) ; a notice is good without any claim for compensation (s). If the lessee, after notice, fails to remedy the breach within a reasonable time, and to make reasonable com- pensation to the satisfaction of the lessor when compensa- tion is claimed in the notice, the lessor may proceed to enforce his right of re-entry {t). If the lessor proceeds where no by action without having given a proper notice, that fact ° may be pleaded as a defence (u) ; or if in such a case judgment has been obtained by default against the lessee, an assignee or mortgagee may apply to have the judgment set aside (x), the lessee being made a party to the appli- cation (x). If the lessor, not having given a proper notice, re-enters without action, the lessee can recover back possession of the premises by action. "Keasonable compensation " means such compensation What is as might have been recovered in an action by the lessor compensation. for breach of covenant, and does not include the expenses of a survey of the premises and of preparing the notice (y). The lessor may, however, recover as a debt all reasonable costs and expenses properly incurred in the employment of a solicitor and surveyor or valuer, or otherwise, in refer- (r) Gressxoell v. Davidson, 56 v. Knight, [1891] 2 Q. B. 542. L. T. 811 ; Coatsworth y. Johnson (u) North London ... Co. v. 55 L. J. Q. B. 220. Jacques, 32 W. E. 283 ; Jacques v. (rr) S. 14, sub-s. 1. See Swain Harrison, 12 Q. B. D. 136, 165 ; V. Atjres, 21 Q. B. D. 289. Scott v. Brown, 51 L. T. 746. (s) Lock v. Pearce, [1893] 2 Cli. (x) Jacques v. Harrison, siipra. 271. (y) Skinners Go. v. Knight, (0 S. 14, sub-s. 1, Skinners Co. [1891] 2 Q. B. 542 122 LAW OF EJECTMENT. Form of notice. Service. Application for relief, when made. ence to a forfeiture which has been waived in writing, or from which the lessee " is relieved " under the Act of 1881 or 18.92 {z). Where the " lessee," by complying with the terms of the notice, had prevented the "lessor" fi'om en- forcing his right of re-entry, the Queen's Bench Divisioti held that he had been " relieved " within the meaning of the above section {a) ; but Lord Esher and Davey, L.J., in the Court of Appeal, expressed the opinion that that decision was wrong {a). This notice may be addressed to the "lessee " by that designation, without his name ; or generally to the persons interested without any name, though any person to be affected by the notice is abroad, under disability, unborn, or unascertained (6). The notice may be served by being left at the last- known place of abode or business in the United Kingdom of the person to be served ; or it may be affixed to, or left for the lessee upon, the land or any house comprised in the lease ; or, in the case of a mining lease, it may be left at the office or counting-house of the mine (c). It may also be served by post in a registered letter addressed to the lessee or other person to be served by name at any of the above places, as the case may be ; and, if not returned undelivered, it is deemed to have been served at the time at which the letter would be delivered in the ordinary course of post (d). When the lessor is proceeding, by action or otherwise, to re-enter, the lessee may apply to the court for relief, either in the action brought by the lessor, or in an action (z) Convej'ancing Act, 1892, s. 2, sub-s. 1. (a) Nind v. Nineteenth Century Soc, [1894] 1 Q. B. 472 ; [1894] 2 Q. B. 226. (h) S. 67, sub-s. 2 of the Act of 1881. (c) Id. sub-s. 3 {d) Id. sub-s. 4. RELIEF AGAINST FORFEITURE. 123 brought by himself for that jjurpose (e). The court may grant or refuse rehef in its discretion, having regard to the proceedings and conduct of the parties under sect. 14, and to all the other circumstances of the case (f). Relief Terms ■^ imposed. may be granted upon such terms, if any, as to costs, ex- penses, damages, compensation, penalty, or otherwise, including the grant of an injunction to restrain any like breach in future, as the court may think fit (/). When the lessor is proceeding to enforce a forfeiture an Application under-lessee of all or part of the property may apply in lessee for like manner, and the court may make an order vesting the "^''^'-"^S order, whole or part of the property, as the case may be, in the underlessee, for the whole or part of the term, upon such terms as to the execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, security, or otherwise as the court thinks fit (g). The under-lessee is not entitled to demand a lease for any longer term than he had under his sub-lease (g). An application for relief, or by an under-lessee for a vesting order, cannot be made under these Acts after the lessor has actually re-entered (h). For the purposes of sect. 14 of the Act of 1881 a Definition of "lease" includes an original or derivative under-lease (i) ; "Lease," also an agreement for a lease when the lessee has become entitled to have his lease granted {k). An " under-lease " includes an agreement for an under-lease when the under- lessee has become entitled to have his under-lease (e) Conveyancing Act, 1881, s. B. D. 672 ; Rogers v. Eice, [1892] 14, sub-s. 2 ; 44 & 45 Vict. c. 41. 2 Ch. 170. (/) S. 14, sub-s. 2 ; Scott v. (i) S. 14, sub-s. 3. Broivn, 51 L. T. 746 ; Fleetwood (k) S. 5 of the Act of 1892. V. Hull, 23 Q. B. D. 35. See Goatsworth v. Johnson, 55 L. (g) Conveyancing Act, 1892, J. Q. B. 220 ; Swain v. Ayres, s. 4. 21 Q. B. D. 289. (/i) Quilter v. Mapleson, 9 Q. 124 LAW OF EJECTMENT. Lessor, "Lessee," " Under- lessee. ' "VVlio can obtain relief. granted {Ich). A " lease " also includes a grant at a fee farm rent, or securing a rent by condition (/), A "lessor" includes an original or derivative under- lessor, and the heirs, executors, administrators, and assigns of a lessor {I) ; also a grantor as above described and his heirs and assigns (/). A " lessee " includes an original or derivative under- lessee, and the heirs, executors, administrators and assigns (IT) of a lessee (Z) ; also a grantee under the above- described grant, his heirs and assigns (/). For the purpose of obtaining a vesting order an " under-lessee " includes any person deriving title under or from an under-lessee {7)i). The under-lessee of a lessee cannot, under sect. 14, obtain relief against the original lessor (ji). An under- lessee can only obtain relief when his lessor is proceeding against him [n) ; he can, however, in any case obtain a vesting order under the Act of 1892 (o). An equitable mortgagee of a lessee can obtain relief against the lessor, but the lessee must be made a party to the application (p). Sect. 14 applies, although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act of Parliament {q). This was formerly a doubtful ques- tion (r). Relief can be obtained against the crown apart from this provision (s). {kk) S. 5 of the Act of 1892. See Coatsicorthv. Johnson, oHIj.J.Q.B. 220 ; Swamv Ayres,2l Q.B.D. 289. {I) S. 14, sub-s. 3. {II) Cronin v. Rogers, 1 C. & E. 348. (m) S. 5 of the Act of 1892. (n) Burt V. Gray, [1891] 2 Q. B. 98 ; Cresswell v. Davidson, 56 L. T. 811 ; Nind v. Nineteenth Century Sac, [1894] 2 Q. B. 226. (o) S. 4. (^j) North London ... Co. v.. Jacques, 49 L. T. 659. (q) S. 14, sub-s. 4. (/•) Be Brain, 10 Eq. 389 ; Keating v. Sparroiv, 1 B. & B. Ir. Ch. Rep. 367 ; A.-G. of Victoria V. Ettershank, L. R. 6. P. C. 354. (s) A.-G. of Victoria v. Etter- shank, supra. RELIEF AGAINST FORFEITURE. 125 A lease limited to continue so long only as the lessee abstains from committing a breach of covenant is to be construed as a lease for any longer term for which it could subsist, but determinable by a proviso for re-entry on any such breach (f) ; and sect. 14 applies to all leases whether made before or after the Act (u), and takes effect notwith- standing any stipulation to the contrary {u) ; it applies to all breaches whether committed before or after the Act (a). Where a lessee has a right of renewal upon the per- Forfeiture formance of certain conditions, but forfeits such right by renewal, non- performance of the conditions, he cannot obtain relief under these Acts ; such a case does not come within sect. 14 (y). This Act imposes on judges the difficult duty of deciding instances of the terms upon which relief ought to be granted. Where ini\',osed there has been a breach of condition or covenant, but no actual pecuniary loss to the landlord, it is very difficult to say what compensation ought to be made. Probably no damages will be given, but the only penalty inflicted will be the payment of costs. If the lessor has not asked for compensation in his notice, he cannot ask to have the pay- ment of compensation made a condition of relief (z). Some instances of the terms imposed may be useful, — (a) Where the breach was non-insurance : — Payment of all premiums paid by the landlord with the interest thereon, of rent up to date of relief, and of all costs (a). (b) Where the breach was non-completion of build- ings : — Payment of all rent in arrear and all costs, (t) S. 14, sub-s. 5. {z) Lock v. Pearce, [1893] 2 (u) Id. sub-s. 9. Ch. 271, per Lord Esher, M.R. (y) Ruttledge y. IFhelayi, lOL. (a) Quilterv. Ma})leson, 9 Q,. B. R. Ir. 263. D. 672. 126 LAW OF EJECTMENT. Application for relief, liow made. and an undertaking to complete within a limited time, and if not to redeem possession (6). (c) Where the breach was non-repair : — Security to the satisfaction of the master to put the premises in repair ; in four months to put the premises in repair to the satisfaction of a third person ; pa}''- raent of all arrears of rent and costs (c). Tn a case of a breach of covenant to repair, the court granted relief upon the defendant paying the costs, as between solicitor and client, of the action and of the proceed- ings for relief and surveyors' fees in respect of the service of the notice and preparation of the specification incurred before action brought. The payment of these costs and expenses may be made a condition of granting relief, though they cannot be demanded as compensation in the notice to be given before proceedings to enforce a for- feiture (d). When application is made for relief in the lessor's action, or for a vesting order, it may be made by way of counter-claim (e), or by an application by summons at chambers (/). In one case it was granted upon application at the trial, though not asked for by the pleadings (g). When not made in the lessor's action the application for relief must be made in the Chancery Division (h), and by an action commenced in the ordinary way, not by originat- ing summons (i). The lessee can only apply in the lessor's (b) North London Freehold Landed Go. v. Jacques, 49 L. T. 659. (c) Mitcliison v. lliomson, 1 C. & E. 72. Other cases, Bond v. Freke, W. N. (1884) 47. (d) Bridge v. Qidcke, 67 L. T. 54, distinguishing Skinners Co. V. Knight, supra. (e) Glwlmeleij s School v. Sewell, [1893] 2 Q. B. 254. (/) S. 69, sub-s. 3. (g) Mitchison v. Thomson, 1 C. & E. 72. (/() S. 69, sub-s. 1 ; Lock v. Pcarce, [1893] 2 Ch. 271. (/) Lock V. Pearce, supra. RELIEF AGAINST FORFEITURE. 127 action when that action is brought in the High Court (i) ; if the lessor is proceeding in a county court, the lessee must himself bring an action in the Chancery Division for relief (i). 3. Equitable Relief in other Gases. In the cases excepted from the provisions of sect. 14 of the Conveyancing Act the equitable jurisdiction of the High Court of Justice still remains. In such cases equity will relieve where the breach has Jurisdiction been occasioned by fraud {h), misleading (^) on the part of excepted ^^ the lessor, accident, surprise (7n), or mistake {n), but *''*^^^' even then, only when there can be complete compensation, or where there is no injury which requires any compensa- tion (o). Equity will not relieve where the mistake arises from the negligence (p) or the mere forgetfulness {q) of the suitor who seeks its help ; nor vvill it relieve where the l)reach has been wilful (r) ; nor against gross improvi- dence (s) ; nor on the sole ground that full compensation can be made {t). {k) Burke v. Prior, 15 Ir. Ch. [1891] 1 Q. B. See, however, Rep. 106. Esher, M. R., S. C. p. 421. {l) Meek v. Garter, 4 .Tur. N. S. (q) Barrow v. Isaacs, at p. 421. 992 ; Hughes v. Metropolitan, (r) Sanders v. Poj^e, 12 Ves. Rhvij. Co. 1 C. P. D. 120, 2 App. 282 ; Hill v. Barclay, 16 Ves. Cas. 439. 402 ; 18 Ves. 56 ; Eeynolds v. (m) Bargent v. Thomson, 4 Giff. Pitt, 19 Ves. 134. 473 ; Bamford v. Greasy, 3 Giff. (s) Beaufort v. Neeld, 12 Q\. 675. «& F. 248. (n) Barrow v. Isaacs, [1891] 1 {t) Hill v. Barclay, supra; Q. B. 417. Gregory v. Wilson, 9 Hare, (o) Green v. Bridges, 4 Sim. 683 ; Nokes v. Gibbon, 26 L. J. 96 ; Barroio v. Isaacs, [1891] 1 Q. Ch. 433 ; Job v. Banister, 2 K. B. 417. & J. 374 ; Barroiu v. Isaacs, [1891] {p) Barrow v. Isaacs, at p. 428, 1 Q. B. 417. CHAPTER XL BY TENANT. Tenant may- recover pos- session immediately after demise ; without liaviiig entered. Inttresse termini. Agreement for lease. Where lessor no estate in possession. A TENANT for lives, for years, or from year to year, is during tbe existence and continuance of the term generally entitled to actual possession of the demised premises (a), and he or any person claiming through or under him (h) may eject the lessor or any person claiming through or under the lessor by title subsequent to the demise (c). A tenant can recover possession of the demised premises immediately upon the making of the demise whether he has actually entered under it or not (cZ). The interesse termini, which a lessee under a present demise has before entry, is a sufficient title upon which to maintain ejectment (d) ; but where there was only an agreement to demise, the proposed tenant could not maintain ejectment until he had actually entered (e). He cannot, however, sue for trespass to the land unless he has actually entered (/). If the lessor had no estate in possession at the time of the demise, the lease operates by estoppel as soon as the lessor does acquire such an estate, and the tenant may (rt) Doe V. Leiuis, 1 Burr. 614. (h) Doe V. Glenn, 1 A. & E. 49. (c) Doe V. Thomas, 9 B. & C. 288. {d) Doe V. Day, 2 Q. B. 147, 15t) ; Doe v. Rics, 8 Bing. 178 ; Ryan v. Clarke, 14 Q. B. 65, 73 ; IVilliams v. Bosanquet, 1 B. & B. 2:38 ; Doe v. IValker, 5 B. & C. Ill, Shep. Touch. 269, Co. Lit. 46 b. (e) Doe V. Ries, 8 Bing. 178 ; Price V. Birch, 4 M. & Gr. 1 ; Doe V. Poivell, 7 M. & Gr. 980. See 230st, p. 129. (/) Ryan v. Clark, 14 Q. B. 65 ; Turner v. Cameron, 5 Excli. 932 ; Wheeler v. Montefiore, 2 Q. B. 133, 156 ; Litchfield v. Ready, 5 Excli. 939. BY TENANT. 129 then recover possession {a). When the term is to com- Term to com- mence on a mence in futiiro, the tenant cannot recover possession future day. until the date (//.) when the term is to commence Qi). If a lease is absolutely void, as, for instance, by statute, Tenant under . ... void or void- the tenant cannot bnng ejectment upon it against the able lease. lessor or a stranger {i) ; but if it is only voidable, as for fraud, a tenant can bring ejectment upon it until it has been cancelled by a Court of Equity (/»•). A lease of copy- Copyholds. holds, which is void as against the lord of the manor for being contrary to the custom, is valid against everyone but the lord, and the tenant may bring ejectment upon it against the lessor {I). After the term had been taken in execution by the Term taken sheriff, the tenant could recover possession from a pur- but not chaser from the sheriff, if a proper assignment had not ''^^^^S^e . been executed {ni). Since the Judicature Acts the pur- chaser's equitable title would be a good defence (m). If a tenant seeks to recover possession from a stranger, What tenant ^ must prove. he must prove that the term is vested m him, and the title of his landlord ; but in an action against his landlord, he need only prove the creation of the term and that it is vested in himself. A mere agreement for a lease, where Where mere 1 . , , • r- 1 1 , am-eement for no term has arisen by operation of law, as by entry or jy^se. payment of rent, was not a sufficient title at law upon which to recover possession of the land agreed to be leased, but perhaps the Judicature Acts have the effect of making it so {n). (g) Doe v. Oliver, 5 M. & Ry. 416 ; Downingham's case, Owen, 202. 17 ; Doe v. Bousfield, 6 Q. B, (/i) Smith v. Day, 2 M. & W. 492. 684. {m) Doe v. Jones, 9 M. & W. (i) Doe V. Barher, 2 T. R. 749 ; 372. Doe V. Scott, 11 East, 478. ('0 Walsh v. Lonsdale, 21 Ch. (/>•) Feret v. Hill, 15 C. B. 207. D. 9. See pp. 2, 50. (l) Doe v. Tressidder, 1 Q. B. W.Y.E. K CHAPTER XII. MORTGAGOR AND MORTGAGEE, 1. By Mortgagee against Mod- 1 2. Bij Mortgagor, 137. gagor and Tenants, I'M. \ 3. Staying Proceedings, 138. 1. By Mortgagee against Mortgagor and Tenants. Position of IMMEDIATELY upoii the executioij of the mortgage deed mortgagor after mort- the estate of the mortgagor passes to the mortgagee, and, gage. unless there is in the mortgage deed, or in a separate deed, a proviso or stipulation amounting in law to a re-demise by the mortgagee to the mortgagor, the mortgagor who remains in possession is at the most a tenant at sufferance, and may be ejected at any time by the mortgagee without notice or demand of possession («). If there be no such proviso or stipulation, but the mort- gagee either expressly or impliedly consent to the mortgagor remaining in possession, the latter becomes tenant at will to the former (IS). Re-demise to There is usuallv in the mortgage deed some proviso or mortgagor . , . • i- r< i until default, stipulation pi'ovidmg for the possession of the mortgagor until default. Such proviso or stipulation will not operate (a) Keech v. Hall, 1 Sni. L. C. 604 ; Smartlev. Williams, 1 Salk. T)m (9th ed.) ; Thunder v. Belcher, 245 ; Doe v. Giles, 5 Bing. 421 ; 3 East, 449 ; Hitchman v. Wal- Doe v. Mayo, 7 L. J., K. B. 84 ton, 4 M. & W. 409, 415 ; Birch (o. s.)- V. Wright, 1 T. E. 378 ; Jolli/ v. (h) Evans x. FAlintt, 9 A. & E. Arhuthnot, 4 De G. & J. 224 ; 342 ; Keech v. Hall, 1 Sni. L. C. Doe V. Maisey, 8 B. & C. 7fi7 ; 565 (9th ed.). Partridge v. Bere, 5 B. & Aid. MORTGAGOR AND MORTGAGEE. 131 as a re-demise to the mortE^acree unless it be affirmative on the part of the mortgagee that the mortgagor shall have possession until default, and the time of default be certain and determined (c). Thus, merely negative stipu- lations that the mortgagee shall not sell or lease (d), intermeddle with the possession or perception of rents (e), or take any means to obtain possession until default (/), Avill not operate as a re-demise by the mortgagor to the mortgagee ; so also a stipulation that the mortgagee shall enter after default (g). Nor will any stipulations in which the time is uncertain, as that the mortgagee shall hold until default, for which no time is fixed {h) ; or which depend upon notice to be given by the mortgagee (i) ; but a proviso that the mortgagor shall hold until a certain day, unless he make default upon notice at an earlier day, is good as a demise until the day certain, though defeasible at the earlier day (k). When there is such a re-demise to the mortgagor, he has an interest in the nature of a term of years until deftiult, and then he becomes a tenant at sufferance (I). There is also frequently an express agreement that the Attornment mortgagor shall attorn and become tenant to the mort- tJinort"a) 36 & 37 Vict. c. 66. See App. B, p. 352. See Fairclough V. JlarshaU, 4 Ex. D. 37. (?•) Kinnainl v. Trollope, 39 Cla. D. 636 ; Palmer v. Hendrie, 27 Beav. 349, 28 Beav. 341. (s) Schoole V. Sale, 1 Sch. & Lef. 176 ; Herries v. Griffiihs, 2 W. R. 72 ; Paynter v. Careiv, Kay. 36, app. MORTGAGOR AND MORTGAGEE. 139 or that the mortgagor should give security to redeem the mortgage {t), or consent to abide by any order that miglit be made in the foreclosure action (;iv), without prejudice to other defendants if any (x) ; but the Court would not stay on a mere agreement to pay the principal, &:c., at a future day, however near (y). A mortyaoor, therefore, who was anxious to have the proceedings in ejectment against him stayed, was obliged to have recourse to a Court of Equity for the purpose. To remedy this an Act of Parliament was passed which Extended to ... Common L:iw enabled the Courts oi Common Law to stay proceedings m Courts by any action of ejectment by the mortgagee, on payment by ^ ^q' ' the mortgagor of all principal monies, interest, and costs of any suit upon such mortgage (5;). The effect of that Act (a) was that, in an action for Effect of ejectment by the mortgagee, where no suit to foreclose or ^ 20.' ' redeem was pending, if the mortgagor defended and paid to the mortoagee, or in case of his refusal, into Court, the principal, interest, and all costs expended in any suit on such mortgage {b), the whole to be computed by the Court, such monies were to be taken ni full satisfaction of the mortgage debt, and the Court would thereupon dis- charge the mortgagor, and order the mortgagee to re- convey the property and return the deeds. If, however, a suit to foreclose was pending, the Court might, if the defendant applied in that suit and admitted the plaintiff's title, make the same decree that could have been made had the action gone to trial (c). {t) Booth V. Booth, 2 Atk. {y) Paynter v. C'areiv, Kay. 342. 36, app. (m) Langridcje v. Payne, 2 J. & {z) 7 Geo. 2, c. 20. H. 423 ; Praed v. Hull, 1 Sim. & (a) 7 Geo. 2, c. 20, s. 1. S. 331. {h) Suttuti V. Raidings, 3 Exch. {x) Paine v. Edwards, 8 Jur. 407. N. S. 1200. (c) S. 2. 140 LAW OF EJECTMENT. (J^L. r. Act, This Act was practically re-enacted by the Common Law Procedure Act, 1852 (d), ss. 219, 220, which sections have since been repealed by the Statute Law Revision Act, 1883 (e). The Act, therefore, of 7 Geo. 2, c. 20, remains, though its importance is almost entirely taken away by the Judicature Act, 1873 (/). It may, however, be useful to refer to a few decisions upon it. Act does not This Act does not apply where a mortgagee has given a notice ^faven notice in writing ((/) to the mortgagor, insisting that he under s. 3. i^j^g j^q right to redeem, or that the preuiises are charge- able with other sums than those which appear by the deed, or are admitted, nor where the right to redeem is. controverted between the defendants, nor where a sub- To what the sequent incumbrancer would be prejudiced (//). It only applies where the right to redeem is undisputed (^), and To what it where money is due on the security (k). It does not apply apply- where the mortgagor has agreed to sell the equity of redemption to the mortgagee, and has refused to complete the sale (/), unless it be because the mortgagee did not tender the conveyance for execution by the mortgagor {th) ;, nor where the mortgagor has given a bond to pay the money, which bond is a lien on the lands, and the mort- gagee insists on payment of it (n) ; nor where the mortgagor was in contempt (o) ; nor where other claims. (d) 15 & 16 Vict. c. 76. & Jer. 344. (e) 46 & 47 Vict. c. 49. (k) Scmds to Thonqisvn, 22 Ch. (/■) 36 & 37 Vict. c. 66, s. 24. D. 614. ((/) See Goodtitle v. Lonsdomi, (l) Goodtitle v. Pojje, 7 T. E.. 3 Anstr. 937 ; Doe v. Louch, 6 185. D. & L. 270, 274 ; Goodtitle v. {m) Skinner v. Staceij, 1 Wils.. Bishop, 1 Y. & J. 344 ; Huson v. 80. Heicson, 4 Ves. 105 ; but see («) Felton v. Ash, Barn. 177 ;, Filbee v. Hopkins, 6 D. & L. 264. Archer v. Simpp, 3 Sir. 1107. (/i) S. 3. (a) He^vittv. MacartneijjlSVes^ (i) Doe V. Lunch, 6 D. & L. 560. 270 ; Goodtitle v. Bishop, 1 Y. MORTGAGOR AND MORTGAGEE. 141 besides foreclosure were made against the mortgagor (p) ; nor where the mortgagor has not appeared (q), but if judgment is obtained by default against a tenant of the mortgagor, the proceedings may be set aside to enable the mortgagor to appear and defend as landlord and claim relief under the statute (r) ; nor where the mortgagee is in possession or has attempted to exercise his power of sale (s). But it does apply even though a second mort- gagee gave a first mortgagee notice not to deliver up the •deeds to the mortgagor {t). Tlie mortgagor must pay to the mortgagee, or into Terms. Court, the principal, interest, and all costs expended in any suit on such mortgage (u), all such costs being taxed as between party and party (x) ; but not interest from the date of the application until reconveyance, if the delay arise through the mortgagee's default (y), nor the cost of the mortgage deed (z), nor any collateral debt (a). In the Courts of Equity the " costs" which a mortgagor would be compelled to pay upon redeeming included much more. The application may be made by anyone who has a By whom clear right to redeem (6), as, for instance, a purchaser of n|!i,\e*^*^^'^^^ the equity of redemption (b), but not by a tenant of the mortgagor (c), nor by the trustee in bankruptcy of the (jj) Bastard v. Clarke, 7 Ves. (y) Jordan v. Chowns, 8 Dowl. 489. 709. (^) Doe V. Clifto7i, 4 A. & E. (s) Doe v. Steel, 1 Dowl. 359 ; 809. see Coote on Mortgages, p. 767 (r) Doev. Roe, 4 Taunt. 887. (5th eil.) ; Sutton v. Rawlings, 3 (s) Sutton V. Raiclinjs, 3 E.xch. Exch. 407. 407. (a) Doe v. Steel, supra; Archer (t) Dixon V. Wigram, 2 Cr. & v. Snapp, 2 Str. 1107. Jer. 613. {h) Goodtitle v. Bishop, 1 Y. & ()(.) S. 1. Jer. 344 ; Archer v. Snapp, sup. (x) Doe V. Capps, 3 B. N. C. (c) Doe v. Roe, 4 Taunt. 887^ 768. 142 LAW OF EJECTMENT. mortgagor without the bankrupt's consent (d). If the mort- gagor has assigned his equity of redemption, he can still take advantage of the statute if proceeded against under the covenants (e). Where made The application may be made either to the Court or in and when. ' ^ "^ Chambers (/), but must be made before the mortgagee is entitled to issue execution {g). The former jurisdiction in Equity was not affected by this Act (It), which merely enabled the Courts of Law to give relief to a somewhat similar, but lesser (i), extent than that which Equity had always given, the second section referring to Courts of Equity being merely incidental and Judicature unnecessary. Now since the passing of the Judicature Act, 1873. -^ . . Act, 1873 (/.•), if a defendant claims to be entitled to relief upon any equitable ground, the Courts of Law or Equity will give such ground of relief the same effect as the Court of Chancery would have given in any pro- ceeding instituted for the purpose in that Court before the Act {I). The effect of this is to render thef above statute {m) almost inoperative, and to enable a mortgagor to plead by way of equitable defence to the action of ejectment any matter which he might have made use of as a ground for asking for relief, had he been proceeding formerly in Equity {n). The Courts of Law will then give the same relief as the Courts of Equity formerly could have done ; (rf) Garth V. Thomas, 2 Sim. & 270 ; Praecl v. Htdl, 1 Sun. & S. St. 188. 331. (e) Kinnainl v. Trollojte, 39 Ch. {i) Sutton v. Ilmdiugs, 3 Exch. D. 636. 407. (/) Lawrence v. Hoghen, 26 L. (/c) 36 & 37 Vict. c. 66. J. Ex. 55. (l) S. 24, sub-s. 2. See App. {(j) Aviis V. Lloyd, 3 V. & B. B., p. 350. 15. ' (m) 7 Geo. 2, c. 20. {h) Doe V. Louch, 6 D. & L. (n) Seeaiife, p. 138. MORTGAGOR AND MORTGAGEE. 143 but the nature of that relief must, of course, depend upon the circumstances of each particular case. The Courts have also had given to them bv the same Power to stay . " . proceedings. Act (o) a discretionary power to stay proceedings, either generally, or so far as is necessary for the purpose of justice, in any cause or matter before them, on the applica- tion of an}^ person who could formerly have applied or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule, or order contrary to which all or any of the proceedings in such cause or matter have been taken (o). The application must be made to that Division of the High Court in which the action sought to be stayed is pending, though in practice it is sometimes made at Chambers (ji). The object of this enactment is to give the Courts of Law power to stay actions improperly brought, or the prosecution of which Equity would have restrained by injunction (q), but it does not give them power to restrain an action of ejectment merely on account of the existence of a suit for administration in Chancery (r). The old rule tliat Equity could restrain proceedings at Common Law is now abolished, as judges of one Division can no longer restrain actions pending in another Divi- sion (s). If, then, a foreclosure action is pending in Equity, and an action of ejectment at Common Law, application can be made in either Division to stay the proceedings in the action in that division, or the existence of the foreclosure (o) Judicature Act, 1873, s. 24, (q) Cronie v. Eussel, 4 C. P. D. sub-s. 5. 186. (j>) Garhvit v. Fmrcus, 1 Ch. (r) S. C. D. 155 ; Auuual Practice,- p. 29 (s) Garbuttv. Favxus, 1 Ch. D. (ed. 1894). 155. 144 LAW OF EJECTMENT. action may be relied upon by way of equitable defence to the Common Law action ; or either action may be trans- ferred to the other Division, when the two actions can be consolidated or tried together (t). (t) Smith V. Whichconl, 24 W. R. 900. CHAPTEK XIII. BY TENANT BY ELEGIT AND PURCHASER UNDER FI. FA. The sheriff can, under a writ of elegit, seize and deliver What can be . , T 11 1 1 1 11 seized under to a judgment creditor all the lands, tenements, and here- elegit. ditaments of any tenure of which the debtor or any person in trust for him is seised or possessed, or over which he has any disposing power which he might without the assent of any other person exercise for his own benefit (a) at the time the writ is executed (6) ; until the Act 1 & 2 Vict. c. 110, only a moiety of the debtor's lands could be seized under a writ of elegit (c). The sheriff cannot seize laods mortgaged by the debtor (d), for a mortgagee is not a trustee for the mortgagor within the meaning of 1 & 2 Vict. c. 110 (e) ; or lands of which some person is seized in trust for the debtor and another person (/), as the Act only applies when a trustee is seized for the debtor solely ; or an estate in remainder (g). The chattel interests in land, that is, leaseholds or Leaseholds. terms of years, of the debtor may still be seized under a (a) 1 & 2 Vict. c. 110, s. 11 ; Ch. D. 275. Harris Y. Davison, 15 Sim. 128. (e) S. 11. (6) 27 &28 Vict. c. 112, s. 1. (/) Doe v. CrreenUll, 4 B. & {c) Doe V. Parry, 13 M. & W. Aid. 684 ; Harris v. Pugh, 4 356 ; Sherwood v. Clark, 15 M. & Bing. 335. W. 764 ; 13 Edw. I. c. 18. (g) Re South, 9 Ch. 369 ; (d) Re Newcastle, 8 Eq. 700 ; Hatton v. Hayivood, 9 Ch. 229. Anglo-Italian Bank v. Davies, 9 W.Y.E. L C41 LAW OF EJECTMENT. writ of elegit (li), or they may be seized and sold by the sheriff under a writ of ^. fa. (i). PTow posses- -pj-jQ sheriff does not usually put the execution creditor, sion obtained. . or the purchaser under a Ji. fa., into actual possession (j), though he may do so {k), and he cannot do so by force or where a person other than the judgment debtor is in pos- session (k) ; therefore it is generally necessary for the exe- cution creditor, or the purchaser under a^. fa., to bring an action to recover possession. The return to the writ of elegit, or the sheriff's assignment after a sale under a, ft. fa., vests the legal estate in the creditor, or in the assignee (1). Proof of title ^ plaintiff seeking to recover possession as tenant by of tenant by ^ ° ^ ele;^dt, elegit, or through a tenant by elegit, must prove the judg- ment, the writ of elegit issued upon it, the sheriff's inqui- sition, and perhaps the return thereon by which the land was delivered over (m). ^^I'^i'^^o"^ By the Bankruptcy Act, 1883 (n), a creditor who has Act, looOj ^ 1 •/ a. 45. issued execution against the lands of a debtor cannot retain the benefit of the execution against the debtor's trustee in bankruptcy, unless he has completed the execu- tion by seizure of the land, or, in the case of an equitable interest, by the appointment of a receiver (o), before the date of the receiving order, or of notice of the presentation of a bankruptcy petition by or against the debtor or of an available act of bankruptcy committed by the debtor. If the land has been seized and delivered under the elegit the execution creditor is protected, though tlie (7i,) Richardson v. JVehb, 1 (/.) Rogers v. Pitcher, 6 Taunt. M. B. R. 40. See Bankruptcy 202, 206. Act, 1883, s. 146. (0 t^ciUon v. Haywood, 9 Cli. (i) Doe V. Hilder, 2 B. & Aid. 229 ; Lowthal v. Tonkins, ante. 1732. (m) B. N. P. 102 ; Ramshottom (j) Taylor v. Cole, 3 T. R. 292 ; v. Bud-hurst, 2 M. & S. 565. Lowthal V. Tonkins, 2 Eatiou of tenants. Position of tenant by elegit. Registration of title of tenant by elegit. effectual to pass the property to the purchaser, even if the ji. fa. is afterwards set aside for irregularity {a). The plaintiff must also prove that the debtor was possessed for a term of years, or as tenant (6). If the lands are held by a tenant under a demise prior to the execution of the writ, the elegit creditor or the pur- chaser under the Ji. fa. is only put in the position of a landlord (c) and cannot eject such tenant ; but tenants let in subsequent to the execution of the writ can be ejected {d). A tenant by elegit is entitled to hold only until his judgment and costs (e) of execution are satisfied, and the court out of which the execution issued can order an inquiry, and that the tenant by elegit shall give up pos- session if the inquiry shows that his judgment has been satisfied (/). Writs and orders affecting land issued or made by any court to enforce a judgment statute or recognisance, and any order appointing a receiver or sequestrator of land, must be registered at the office of the land registry in the name of the person whose land is thereby affected {g). Registration ceases to have effect after five years, but may be renewed for a subsequent period of five years. Such writs and orders and every delivery in execution or other proceeding taken in pursuance thereof are void as against a purchaser for value unless registered {h). (a) Doe V. Thorn, 1 M. & S. 425. (b) Doe Y. Murless, 6 M. & S. 110. See Chap. 21, on Evi- dence, pp. 227—229. (c) Rogers v. Pitcher, 6 Taunt. 202, 206 ; Doe v. Wharton, 8 T. E. 2 ; Taylor v. Cole, 3 T. R. 292 ; Doe V. Evans, 1 Cr. & M. 455. {d) See Doe v. Hilder, 2 B. & Aid. 782, 785, and 27 & 28 Vict, c. 112, s. 1. {e) Mahon v. Miks, 30 W. E. 123. (/) Price V. Varncij, 3 B. & C. 733. (g) 51 & 52 Viut. c. 51, s. 5. (/t) S. (). BY TENANT BY ELEGIT AND PURCHASER UNDER FI. FA. 149 A purchaser for value includes a mortgagee or lessee or Purchase for other person who for valuable consideration takes any interest in land, or in a charge on land (i). Prior to this Act when land had been actually delivered Old law. in execution under a writ of elegit or other lawful authority, it was unnecessary to register the judgment, writ, or other process of execution except for the purpose of obtaining a summary order for sale (k) ; but registration is now necessary under the Act of 1 888 in order to protect the rights of the execution creditor against a purchaser for value (?). Where the debtor's interest in the land is of such a nature Equitabb that it cannot be reached by means of a writ of execution, or ■can only be reached in that manner with difficulty, recourse must be had to the process of equitable execution by means of a receiver {n). Before the passing of the Judi- cature Acts the mode of obtaining equitable execution was by issuing a writ of elegit and, without obtaining a return, filing a bill in equity alleging that the plaintiff had issued his writ of elegit, and that owing to legal impediments it could not be enforced at law, and asking for payment of the judgment debt by means of a receiver (o). Now a receiver may be appointed in all cases in which it shall appear just or convenient to do so (p). The order when made is equivalent to a delivery of the Effect of land in execution within the meaning of 27 & 28 Vict. ^^ ®^* (i) S. 4. Parhinsmi, 22 Q. B. D. 173. (A:) 27 & 28 Vict. c. 112, ss. 3, (o) Anglo -Italian Bank v. 4 ; Re Pope, 17 Q. B. D. 743. Davies, ante. (l) 51 & 52 Vict. c. 51. (p) Judicature Act, 1873 (36 (n) R. S. C. Or. 50, t. 16 ; Re & 37 Vict. c. 66), s. 25, sub-s. 8 ; WatJdns,49h. J. Bank. 7; Anglo- R. 3. C. Or. 50, r. 15 a ; Anglo- Italian JBank v. Davies, 9 Ch. D. Italian Bank v. Davies, ante. 275, 291 ; Manchester Bank v. 150 LAW OF EJECTMENT. c. 112 {q), and Linds the laud at once, even though the receiver has not perfected his appointment by giving security (r). {q) Tie Watkins, Ex parte 275, 283. Evans, 13 Ch. D. 252 ; Anglo- (r) Re Wathins, Ex parte Italian Bank v. Davies, 9 Cb. D. Evans, ante. CHAPTER XIV. 1. By Devisee, 151. 3. Btj Executors and Adminis- 2. By Legatee, 161. | trators, 162. 1. By Devisee of Freeholds. A PLAINTIFF who seeks to recover possession of land as Devisee a devisee, or through a devisee, must prove the will, the ]and""° death of the testator, the title of the testator, that he, the what he must plaintiff, is the person named as devisee, and is entitled to 1*^°^^- an estate in the land under the devise, and that the land claimed is the land devised ; also, if he claims through a devisee, his derivative title from such devisee. It is im- possible within the scope of this work to enter fully into all these questions. For the law relating to the validity and construction of wills of realty we must refer our readers to the special authorities upon such subjects, and limit this chapter to setting out, and shortly referring to, the terms of the Wills Act, 1837, and discussing a few other points specially relating to actions by devisees for the recovery of land. A will of realty must always be made and executed and -win realty. be valid according to the law of the country where the ^'^^ ' land is situate. Land may now be taken, held, and disposed of by Aliens. aliens, and a title derived through or under them (a), (a) 33 Vict. c. 14 ; 33 & 34 Vict. c. 102 ; 35 & 36 Vict. c. 39 152 LAW OF EJECTMENT. The sovereign. Interpretation of terms. Wliat may be devised. Copyholds. Wills or extracts must be entered on Court Kolls. Estates pur autre vie, The sovereign can devise realty (h). For the meaning of particular words in the Wills Act, the reader is referred to the Appendix (c), where the Act is set out. We now proceed to give a summary of that Act (d). A testator can now by will dispose of all real and per- sonal property of every tenure and kind which would, upon an intestacy, pass to the heir or to the adminis- trator (e). Copyholds may now be devised without any surrender to the use of the will, and notwithstanding that the tes- tator has not been admitted thereto ; and may be so de- vised whatever the customs of the manor may be (e). Formerly copyholds could not be devised without a sur- render to the use of the will, and no one could devise copyholds to which he had not been admitted, except a customary heir. If there has been no surrender to the use of the will, the estate is in the customary heir until the admittance of the devisee (e). The will, or an extract showing the devise, must be entered on the court rolls ; and though trusts need not be entered, the entry must say if the estate is subject to the trusts of the will, if any (/). Estates|)i6r autre vie{g) of any tenure, whether corporeal or incorporeal hereditaments, and whether there be a special occupant or not, can be disposed of by will {Jc) ; if freehold and not disposed of by will, they will descend (6) 39 & 40 Geo. III. c. 88, s. 4. (c) App. B, pp. 320—331. (d) 7 Will. IV. & 1 Vict. c. 26. (e) The Wills Act, 1836, 7 W^ill. IV. and 1 Vict. c. 26, s. 3 ; B. V. Garland, L. E. 5 Q. B. 269 ; Garland v. Mead, L. R. 6 Q. B. 441 ; Lacey v. Hill, 19 Eq. 346, 351. (/) S. 5. ((/) S. 3 ; Chatfidd v. Berchtoldt, 7 Ch. 192. Qi) S. 6 ; lieijnolds v. Wright, 25 Beav. 100. BY DEVISEE. 153 as an ordinary freehold in fee to the heir; if there be no heir, then the estate passes to the executor or administra- tor of the person who had the grant, and must be adminis- tered by him as personal estate {JiJt). Contingent, executory or other future interests can now Contingent 11-1111 -1 ^'^*i future be devised, whether the testator be ascertained or not as estates. the person or one of the persons in whom the same re- spectively may become vested, and whether he may be entitled thereto under the instrument creating the same or under any disposition by deed or will (i) ; formerly a contingent interest was not devisable if the person who was to take it was not ascertained before the contingency happened (/.;). All rights of entry are now devisable {I) ; and a person Rights of having possession of land without other title has a devis- poggessorv able interest (in). ^i^^*^- A will now speaks and takes effect as if executed im- A vnW now , speaks from mediately before the testators death, unless a contrary testator's intention appears, and therefore property acquired after ^^^ ' the execution of the will can be devised (n). Formerly a will of realty could operate only on the property which the testator had at the date of its execution, and not upon any subsequently acquired property (o). Sect. 24, however, merely deals with the disposition of the testator's property, and in no way affects the objects of his bounty, or his testamentary capacity (p). (hh) Rci/nokls v. IFrighf, 25 see Pdight v. Hartnoll, 19 Cli. D. Beav. 100. 294. (i) Thomas v. Jones, 2 J. & H. (/) S. 3. 475, 32 L. J. Ch. 139; Selwyn (m) Asher v. JVhitlock, L. R. V. Sehoijn, 2 Burr. 1131 ; Roe v. 1 Q. B. 1. Jones, 1 H. Bl. 30 ; Goodtitle v. (n) Ss. 3, 24. JVood, Willes, 211. (o) Thomas v. Jones, 2 J. & H. {k) Doe V. Tomkinstn, 2 M. & 475. S. 165 ; Thomas v. Jones, supra ; ( f) Lamjdale v.Briggs, 8 De G. 154 LAW OF EJECTMENT. Infant. Married Execution and attesta- tion. Publication not requisite. "Witness. An infant under tweny-one cannot make a will (q). The Wills Act does not give a married woman any greater testamentary power than she had before the Act (r). The Married Women's Property Act, 1882, enables a married woman to dispose by will of any real or personal property, which is her separate property, as if she were a feme sole, without the intervention of any trus- tee (6') ; and the Married Women's Property Act, 18.93, provides that sect. 24 {t) of the Wills Act shall apply to the will of a married woman made during coverture, whether she has any separate property at the time of making the will or not, and that such will need not be re-executed or re-published after the death of her husband (u). A will must be in writing, and signed " at the foot or end thereof" {x) by the testator or by some one in his presence and by his direction ; and such signature must be made or acknowledged by him in the presence of two witnesses present at the same time, who attest and sub- scribe the will in his presence ; no form of attestation is necessary. This section, so far as relates to the words " at the foot or end thereof," has been amended by the Wills Amendment Act, 1852, which largely extends the meaning of those words {y). If a will be properly executed no further publication is required {z). A will is not invalid by reason of any witness being incompetent to prove its execution (a). M. & G. 39 ; Bulloch v. Bennett, 24 L. J. Ch. 512 ; Re Price, 28 Ch. 709. (9) S. 7. {r) S. 8 ; Thomas v. Jones, 2 J. & H. 475 ; 32 L. J. Ch. 139. (s) 45 & 46 Vict. c. 75, s. 1. (0 Seep. 153. («) 56 & 57 Vict. c. 63, s. 3. \x) S. 9. {y) 15 & 16 Vict. c. 24. See App. B, p. 341 ; Mar(junj v. Robinson, 12 P. D. 8. (s) S. 13. («) S. 14. BY DEVISEE. 155 A person to whom or to whose husband or wife any Gifts to p ■ 1 • ■ -11 • attesting gift or beneficial devise is made by the will is not thereby witness. prevented from being a witness, but the gift or devise is void (6). A creditor or the wife or husband of a creditor whose Creditor and executor can debt is charged on the devised property can, notwith- be witnesses. standing such charge, be a witness (c) ; so also can an executor {d). A power of appointment by will must be executed in Executinn ot •11- / ^ r 1 • • powers of accordance with this Act, and no other formality is neces- appointment. sary, even though additional formalities are required by the power (e). If the power is not in terms a power of appointment by will, it will be duly executed by will, if the will answers the description of the instrument required for the execution of the power (/). This section applies to all powers whether created prior or subsequent to this Act ig). A will is revoked by subsequent marriage, unless the Revocation by nianiage. will be in exercise of a power of appointment, and the pro- perty would not in default of appointment have passed to the heir, executor, administrator or statutory next of kin of the testator (h) ; if the will exercises the power of ap- pointment and also disposes of other property of the testa- tor not included in the power, thah part of the will which exercises the power is good {i). No will is revoked by any presumption of an intention Not by pre- on the ground of an alteration in circumstances (k). (6) S. 15. (/i) S. 18 ; Ee Fitzroy, 1 S. & (c) S. 16. T. 133 ; Re Fenwkk, L. E. 1 P. {d) S. 17. & D. 319 ; Jarman, vol. i., 112. (e) S. 10. {i) Re Russell, 15 P. D. Ill ; (/) Taylor v. Mead, 34 L. J. Re Fitzroy, 1 S. & T. 133. Ch. 2U3. (k) S. 19. See Re Wells, 42 [g) Hubbard v. Lees, L. R. 1 Ch. D. 646. Ex. 255. 156 LAW OF EJECTMENT. 1)}' another will, &c. ; by burning, &c. Obliterations, alterations, Revival of revoked will. Subsequent conveyance of property devised. A will or codicil is also revoked by another will or codicil properly executed ; by any writing, executed in the same way as a will, which declares an intention to revoke ; by burning, tearing, or otherwise destroying the same by the testator, or someone in his presence and by his direc- tion, with the intention of revoking the same (I). An obliteration, interlineation or alteration in a will after execution has no effect, except so far as the former words or effect of the will are not apparent, unless it is executed like a will ; but a will with an alteration in it is deemed to be duly executed, if it is signed and attested in the margin or opposite or near to the alteration, or at the foot or end or opposite to a memorandum referring to the alteration and written at the end or some other part of the will (m). The general rule is, that there is a presump- tion that alterations on the face of a will were made after execution (n), though this presumption may be rebutted by evidence of declarations made before, but not after, execution (o). A will once revoked can only be revived by re-execution, or by a properly executed codicil showing an intention to revive (p) ; and if a will or codicil is partly revoked and afterwards v,' holly revoked, a subsequent revival will not extend to the portion partially revoked unless a contrary intention appear (q). A subsequent conveyance or other act relating to the property comprised in the will, except a revocation of the will, will not prevent the operation of the will with respect (l) S. 20 ; Jarnian, vol. i., 110 (ed. 5). (7/0 S. 21. {n) Re Sykes, L. E. 3 P. & D. 26. (o) Ee Greenicood [1892], Prob. Tyler Co., 15 P. D. 216. (2)) S. 22 ; Neate v. Pickard, 2 No. Cas. 406 ; Rogers v. Good- enough, 2 S\v. & Tr. 342. {q) S. 22 ; Re Bangham, 1 P. D. 429 ; James v. Shrimptony 1 Merchant Taylors P. D. 431. BY DEVISEE. 157 to any interest in the property which the testator has power to dispose of by will at the time of his death (r-). This clause applies to cases where testators, after having devised their estates, make conveyances of them in the nature of tines and recoveries, or when they mortgage the devised estates in fee and afterwards take a reconveyance of them to themselves and a trustee to uses to bar dower, but not to cases where, by a sale of the property, that which it was intended to devise is gone (r). Property comprised in a lapsed or void devise is included Lapsed and in the residuary devise (if any) in a will, unless a contrary intention appears (s). Formerly all residuary devises of realty were specific, because the testator could devise only the realty which he had at the date of the will (/), and therefore lapsed and void devises did not, as a rule, pass under the residuary devise (u). The residuary devise under this section (s) must be a devise of a general residue, and not of a distinct and separate residue, as of the residue of property in a particular place, parts of which have already been specifically devised to others (it). A general devise of land simply or with a general de- General devise ° ... ii^s-y include scription, or any other general devise which would describe copyholds or copyholds or leaseholds if the testator had no freeholds which could be described by it, includes copyholds and leaseholds, or such of them as answer such description, as Avell as freeholds, unless a contrary intention appears (x). Formerly the rule was that if a testator had freeholds and leaseholds a devise of land passed the freeholds (r) S. 23. Moor v. Baished; 12 J. 522, 527 ; Hensman v. Frijer, Sim. 123. 3 Ch. 420 ; S'pringett v. Jenings, (s) S. 25. See Freme v. 10 Eq. 488 ; Cogswell v. Arm- Clement, 18 Ch. D. 499. strong, 2 K. & J. 227, 231. (t) Ante, p. 153. (x) S. 26. (n) lie Brown's Trusts, 1 K. & 1.58 LAW OF EJECTMENT, General devise is execution of general power. only, but that it passed the leaseholds if he had no free- holds {y). The section consists of two parts : the first relates to a general devise of " land," and the second, which relates to an}^ other "general devise," was intended to cover cases not included in the first part. The effect of the whole seems to be that "lands" pj-ima facie include (0) lease- holds, the onus being now on the person who seeks to prove the contrary; while "real estate" or "freeJtolds" does not include leaseholds if there is real estate which will answer the description, unless there is something in the will to identify them (a). A general devise or bequest of real or personal estate operates as an execution of any general power of appoint- ment over that estate which the testator may possess, unless a contrary intention appear by the will (6). For- merly this was not so, unless it was clear either from the power itself, or from the nature of the property devised, that the devisor intended it should so operate (c) ; such an intention was inferred from the fact that the devisor had no real estate except that subject to the power (c). This section applies only to general powers, and leaves unaltered the old law so far as special powers are con- cerned. It would seem, however, that, having regard to sect. 24 (d), no intention to exercise a special power over real estate can now be inferred from the fact that the tes- (?/) Ease V. Bartlett, Cro. Car. 292. {z) Butler V. Butler, 28 Cli. D. 66. ((f) Jarman, vol. i., 625 ; Mouse V. JVhitr, 3 Ch. D. 763 ; Frcscott v. Barker, 9 Ch. 174 ; Nelson v. Hopkins, 21 L. J. Ch. 410. (b) S. 27. (c) Lake v. C'urrie, 2 De G. M. & G. 536 ; Thomas v. Jones, 2 J. & H. 475 ; Ee Williams, 42 Ch. D. 93 ; Ee Mills, 34 Ch. D. 186 ; Boyesv. Cook, 14 Ch. D. 53. (fZ) Ante, p. 153. BY DEVISEE. 159 tator bad no other real estate except that subject to the power (e). A devise of real estate without words of limitation Devise with- out words 01 passes the whole interest of the testator in such estate, limitation. unless a contrary intention appear by the will (/). For- merly such a devise passed only a life estate, unless it was clear that the testator intended to pass a larger estate (g). The section only applies to devises of real estate existing and vested in the testator at his deatli and of which he can then dispose, and does not apply to particular estates created by the will out of his fee simple estates, such as a rent charge or an annuity (h). The words " die without issue," or " die without leaving Meaninc? of „ ,, , . ,, , , . . words " dio issue, or have no issue, or other words importing a without want or failure of issue of any person during his life, or at ^^^^^'^' ^' his death, or an indefinite failure of issue, now mean a want or failure of issue in his lifetime or at his death and not an indefinite failure of his issue (i) ; unless a contrary intention appears by reason of such person having a prior estate tail, or of a preceding gift being, without any impli- cation arising from such words, a limitation of an estate tail to s\ich person or his issue, or otherwise (i). This section does not apply where such words import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall attain the age, or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue (i). Such words were formerly held to create an estate tail which might be barred (k). (e) Jarman, vol. i., 641, and (li) Nichols v. Havjkes,lO}I(ive, cases above. 342 ; Reay v. Rawlinson, 29 (/) S. 28. Beav. 88. {fl) Wisden v. Wisclen, 2 Sm. & (i) S. 29. Gill. .393; Pennock v. Pennock, 13 {k) Jarman, vol. ii., 1320; Wil- Ei|. 144 ; Jarman, vol. ii., 1135. Hams Real Property, p. 232 160 LAW OF EJECTMENT. Devise to trustee passes whole estate. Unless only for life of beneficiary. 'No lapse in certain cases. Devise of estate tail. Devise to issue who die leaving issue. A devise of real estate, other than an advowson, to a trustee or executor, passes the whole interest of the testa- tor in such estate, unless some less estate is given expressly or by implication (l) ; and such a devise to a trustee, where the beneficial interest in the estate or surplus profits is not given to any one for life, or when it is so given, but the trusts may continue beyond such life, passes the testa- tor's whole interest which he had power to dispose of, and not merely an estate determinable when the trusts are satisfied ('m) ; the result is that trustees whose estate is not expressly defined by the will, must in every case, and whatever be the nature of the duty imposed upon them, take either an estate for life or the testator's whole estate (n). The devise of an estate tail, or quasi entail, to a person who dies before the testator, but leaves issue inheritable under such entail living at the testator's death, does not lapse, but takes effect as if the devisee had died immedi- ately after the testator, imless a contrary intention appear by the will (o). Where real or personal estate is devised or bequeathed by a testator to his issue for an interest not determinable at or before their death, and such issue die in the testator's lifetime leaving issue living at his death, such devise or bequest does not lapse, but takes effect as if the devisee had died immediately after the testator, unless a contrary intention appear by the will (2)). The section does not make the gift a gift to the issue, but merely makes the gift take effect as if the devisee had died immediately after his testator, and therefore it will pass under the devisee's will, or on his intestacy the exist- (ed. 17) ; Greemmy v. Greemvay, 1 Gift'. 131. (0 S. 30. {m) S. 31. (n) Jarman, vol. ii., 1166. (0) S. 32. (2>) S. 33. BY LEGATEE. 161 ence of issue merely preventini^ a lapse (r/). The issue need not be the issue in existence at the devisee's death, but may be any issue, as for instance a grandchild of the devisee, who shall be living at the testator's death (r). The Wills Act does not extend to wills made before Extent of Act. January 1st, 1838, unless re-executed, re-published or revived since that date, and does not extend to an estate 'pur autre vie of a person dying before that date (s). A devisee cannot recover possession if he has disclaimed Disclaimer by devisee, takmg any estate in the land devised {t), but a mere dis- claimer of title under the will, when he relies on a higher and better title, does not prevent him recovering (u). If he acts as executor or trustee under a will he is not thereby prevented from disclaiming a devise under such will {x). Any deed which sufficiently shows an intention to dis- claim is enough {y), and probably a mere parol disclaimer is sufficient (0), but in any case it must be a clear and un- equivocal disclaimer of the land {z). 2. By Legatee of Leaseholds. A plaintiff claiming leaseholds as legatee must prove Legatee p ^ ^^ • ■ • • claiming the probate of the will {a), and not the origmal will as in leaseholds. the case of freeholds, and also the assent Qj) of the executor What he must prove. (5) .Jarman,vol. i., 322 (5th ed.). & B. 750. Re Parker, 1 Sw.&Tr. 523 ; Eacjer (y) Totonson v. Tickell, 3 B. & V. Furnbxill, 17 Ch. D. 115 ; Aid. 31 ; Bcghie v. Grool, 2 B. N. lFi.-ide7i v. JFisden, 2 Sm. & Giff. C. 70 ; Nidoson v. TFordsworth, ;j96. 2 Swanst. 365, 371. (r) Ee Parker, ante. (z) Townson v. Tickell, supra ; (s) S. 34. Roberts v. Gordon, 6 Ch. D. 531 ; {t) Beghie v. Crook, 2 B. N. C. Boe v. Smyth, supra ; Xenos v. 70 ; Nicloson v. WordswoTtli, 2 Wiclcliam, 13 C. B. N. S. 3S1 ; Swanst. 365, 371. Shep. Touch. 352. {u) Dog v. Smyth, 6 B. & C. («) See p. 240. 112. {h) See p. 235, for evidence of {x) Wellesley v. Withers, 4 E. assent. W.Y.E. M 162 LAW OF EJECTMENT. Assent of executor. to the bequest. Until such assent the term does not vest in the legatee, but in the executor. By the assent the term is vested in the legatee as from the death of the tes- tator (c). The assent of one of several executors is suffi- cient, and one of several executors can assent to a bequest to himself (d). Assent to the bequest of a particular estate in a term is an assent to the bequest in re- mainder (e). Assent before probate is good, even though the assenting executor die without proving, provided that probate is ultimately taken out (/). Title of personal representa- tives to leaseholds. Title of executors. 3. JBij Executors and Adnivnistrators. Executors and administrators are in law assignees of the leasehold estates of the testator or intestate. They can recover possession of any lands or tenements whereof the testator or intestate died possessed or entitled for a term of years (g) or as tenant from year to year (h), provided that the term still continues, and that there has been no assent to a bequest thereof (i). An executor derives his title from the will itself, and the property vests in him from the death of the testator (k). He may commence an action to recover possession before probate, but the probate, being the only proper evidence of his title, must be produced at the trial (l). (c) Saunders's case, 5 Co. Rep. 12 b. ; Doe v. Gmj/,3 East, 120. (d) Townson v. TicMl, 3 B. & Aid. 31, 40. (e) Stevenson v. Liverpool, L. R., 10 Q. B. 81. (/) Wms. Exors. 251 (9th ed.) ; Johnson v. Warwick, 17 C. B. 516. ((/) Doe V. Wheeler, 15 M. & W. 623. {h) Doe V. Porter, 3 T. R. 13 ; Doe V. Wood, 14 M. & W. 682 ; Doe v. Bradbury, 2 D. & R. 706. (i) Doe v. Tatchell, 3 B. & Ad. 675 ; Johnson v. TFarwick, 17 C. B. 516. (k) Woolley V. Clarl-, 5 B. & Aid. 744. (l) Finney v. Pinney, 8 B. & C. 335 ; Wehb v. Adkins, 14 C. B. 401 ; Thompson v. Reynolds, 3 C. & P. 123. BY EXECUTORS AND ADMINISTRATORS. 163 Any one executor may bring an action to recover pos- session (m) ; or all may join in bringing the action whether they have proved or not (n) ; it is not necessary that all who have proved should join in bringing the action (m). An administrator derives his title from the letters of administration, and cannot, therefore, commence an action before the letters have been granted (o). Freeholds pitr autre vie, if not disposed, of by will and if there is no special occftpant, pass to the executor or ad- ministrator (p). An executor or administrator must prove that the interest of his testator or of the intestate was a chattel interest ; the probate of the will or grant of administration ; and the death of the testator or intestate (q). One executor may recover possessiou. Title of adiainistrcator. Estates ^Jtir cmbx vie. What mu£i be proved («i) Doe V. niieeler, 15 M. & W. 623. (n) Greswichv. TVoodheacl,4'M. & G. 811 ; JVaUers v. Pfeil, M. & M. 362. (o) Pratt V. Sicaine, 8 B. & C. 285 ; Woolley v. Clark, 5 B. & Aid. 744 ; Morgan v. Thomas, 8 Exch. 302 ; Phillips v. Hartley, 3 C. & P. 121 ; Williams' Exors. p. 342 (9th ed.). (p) Wills Act, 7 Will. 4 & 1 Vict. c. 26, 's. 6. See App. B, p. 325. Williams' Exors. p. 601 (9th ed). (q) Metiers v. Brown, 1 H. & C. 686. M 2 CHAPTER XV. BY HEIR-AT-LAW. Old law. Before the Inheritance Act, a person who claimed as heir-at-law, or through an heir-at-law, must have proved that the ancestor from whom he claimed was actually seised of the land, or, in case of a remainder, was the person in whom it first vested by purchase (a). The rule of law was that seisina facit stipitem. luheiitaiice Xhe Inheritance Act (h) has now altered this rule as to Act, 1833. ... . ^ ,, „ , „ seisin in all descents since 1833. Land now descends in J urchaser. all cases to the heir of the last 'purchaser (c). Purchase is "possession to which a man cometh not by title of descent " (cZ). The last purchaser is the last person who had a right to the land, who did not acquire his right by descent (e), i.e., by reason of consanguinity (/) ; and it is immaterial whether he obtained possession of the land or not (/). The person last entitled to the land is to be considered to be the " purchaser," unless it is proved that he took by descent ((/). When it is proved that the person last entitled took by descent, then it is to be considered that the person from whom he inherited was the " pur- (rt) 3 Co. Rep. 41L ; Watk. on [cl) Lit. s. 12. Descent, 120 ; Ingilhy v. Amcotts, (e) S. 2 ; see App. B, p. 317. 21 Beav. 585, 593. (/) S. 1 ; see App.B,p. 316 ; (6) 3 & 4 Will. 4, c. 106. BickUij v. Bicldcij, 4 Eq. 216, {c) S. 2 ; see App. B, p. 317 ; 220. Iiigilby v. Amcotts, 21 Beav. 585, {(j) Ss. 1, 2; see App.'B, p. 316. 593. BY HEIR AT LAW. 165 chaser" ((/). In like manner the last person from whom the land is proved to have been inherited is, in every case, considered to be the " purchaser " until the contrary is proved {(j). The heir of a testator to whom the laud is devised by Df^vise to heir, will now acquires the land by purchase {k), thougU formerly, under similar circumstances, he would have taken it by descent, and not by purchase (^). Probably an heir to copyholds, who disclaims all interest as devisee, and takes the lands as heir-at-law upon a lapse, still takes by descent {k). Tlie whole share of a coparcener dying intestate leaving Coparceners, issue descends to that issue, and not to the heir of the person from whom the coparcener inherited il). A person who acquires land by escheat, partition (?n), or Tartition. enclosure, by the effect of which the land becomes part of, ^''^<^"^^*- or descendible in the same manner as, other land acquired by descent, is not a purchaser {n). A person w-ho conveys lands by any assurance (o) to Conveyance himself, or to his heirs, is considered to have acquired himself or them as purchaser, by virtue of the assurance {p) ; but otherwise a person who has inherited does not convert himself into a purchaser, so as to make himself the stock ■of descent, unless he has absolutely conveyed the land away, so as to divest himself of all interest in it, and has {g) S. 1 ; see App. B, p. 316. {T) Cooper v. France, 14 .Jur. Qi) S. 3 ; see App. B, p. 317 ; 215 ; Paterson v. Mills, 19 L. J., Strickland v. Strickland, 10 Sim. Cli. 310. 374 ; Heyicood v. Heyiuood, 13 (m) Doe v. Dixon, 5 A. & E. W. E. 514. 834. (i) Biederman v. Seymour, 3 (n) S. 1 ; see App. B, p. 316. Beav. 368 ; Slielford, R. P. Sta- (o) S. 1 defines " assurance ; " tiites, p. 357 (ed. 9). see App. B, p. 316. (k) Bickley v. Bickley, 4 Eq. (jj) S. 3 ; see App. B, p. 317. 216. his heiis. 1G6 LAW OF EJECTMENT. Limitation to lieirs as purchasers. Default of heirs of "purchaser." I'rothers and .sisters. Lineal an- cestors. subsequently taken it back as a now estate upon another transaction, and by another conveyance (q). "Where a person acquires land by purchase, under a limitation to the heirs or heirs of the body of any of his ancestors contained in an assurance (r) or will, such land will descend as if the ancestor named in the limitation had been the purchaser («). This section does not apply if the limitation is to the heir, in the singular number (t). In the case of the total failure of the heirs of the last purchaser, the descent is to be traced from the person last entitled, by any means, to the land (u), whether he obtained possession of the land or not (,x'). No brother or sister is now considered to inherit immediately from his or her brother or sister, but every descent from a brother or sister is now traced through the parent (y). Before the Act the descent between brothers and sisters was considered to be immediate, and not to be traced through the common ancestor (z). A lineal ancestor can now be heir to any of his issue^ and if the purchaser has no issue his nearest lineal ancestor is the heir (a). It was an old maxim that aui inheritance might lineally descend, but not ascend (b), and therefore the father could not be heir immediately to the- son (c). (§■) Nanson v. Barnes, 7 Eq. 250 ; Davis v. Kirk, 2 K. & J. 391 ; Heywood v. Heyivood, 13 W. R. 514. (r) Ante, p. 165. (s) S. 4. See App. B, p. 318 ; MandevilWs case, Co. Lit. 26 b ; Soutchcot V. Stmcell, 1 Mod. 226, 237 ; IFrifjht v. Vernon, 2 Drew, 439. (0 JFi7iter v. Perratf, 9 CI. & F. 606. u) 22 & 23 Vict. c. 35, ss. 19, 20, passed in consequence of the- decision in Doe v. Blackburn, 1 M. & Rob. 547. (x) Inlieritance Act, s. 1. See App. B, p. 316. {y) S. 5. See App. B, p. 318. (z) Gollingwood v. Pace, 1 Vent. 413 ; Kynnaird v. Leslie, L. R. 1 C. P. 389. (fl) S. 6 ; see App. B, p. 318. (6) Co. Lit. 11 a. (c) Coivper v. Cowper, 2 P. Wms. 720, 734. BY HEIR AT LAW. 167 The paternal ancestors now inherit before the maternal Male line ])i-eronecl to ancestors ; and the male paternal ancestors before the female. female paternal ancestors ; and the male maternal ances- tors before the female maternal ancestors (d). The mother of the more remote male ancestor, whether Mother of paternal or maternal, is to be preferred to the mother of j^^^^jg anoestor the less remote (e). preferred. The half-blood inherit next after any relation in tlie Half-blood, same degree of the whole blood, where the common ancestor is a male, and next after the common ancestor where such common ancestor is a female (/). The old rule of law excluded the half-blood from taking by descent, subject to some exceptions and qualifications (g). Descent can now be traced through an attainted person Attainted after his death (h) ; this was not the case formerly (-i). Since 1870, no attainder is caused by any conviction for trea,son or felony (k). The Inheritance Act does not extend to any descent Commence- which shall take place on the death of any person dying before January l.st, 1834 (I). The same rules of descent apply to equitable estates as Equitable to the legal estates (m) ; and the rules of descent, so far as they relate to descendants, apply to estates tail. The Estates tail. descent of an estate tail was always traced from the last purchaser, that is, from the person to whom the estate tail was first given (n). (d) S. 7 ; see App. B, p. 318. (0 3 & 4 Will. 4, c. 106, s. (e) S. 8 ; see App. B, p. 319. 11. (/) S. 9 ; see App. B, p. 319. (m) Trash v. IFood, 4 My. & {(j) Shelford, R. P. Statutes, p. Cr. 324 ; Williams R. P., p. 178 362 (ed. 9). (ed. 17). h) S. 10 ; see App. B, p. 319. (n) Doc v. JFhichelo, 8 T. R. i) Litt. 8 a (c) ; Kynnaird v. 211 ; Williams R. P., p. 207 (ed. Leslie, L. R. 1 C. P. 389. 17). {k) 33 & 34 Yict. c. 23. 168 LAW OF EJi:CTMENT. Property which descends. What claim- ant must prove. Outstanding estate. Legitimacy. Land to wliich the Inheritance Act applies is fully defined in s. 1 (o). A contingent interest in fee, and an executory devise in fee, are descendible interests, and will descend to the heir of the donee dying intestate, though the donee dies before the interest vests {p). A person claiming land as heir-at-law, or through an heir-at-law, ought to exhaust the possibility of there being a nearer heir of modern existence, and to negative, to the best of his power, the existence of more remote heirs by showing that he can hear nothing of such, after due inquiry and investigation {q) ; and he must give prima facie (r) evidence that the ancestor from whom he claims was entitled to the land. The onus is then thrown upon the defendant to show, either that the claimant is not heir-at-law, or that the ancestor from whom he claims was not entitled at all, or was only entitled by descent (s). The heir must prove that he is entitled to possession, and any outstanding estate in persons claiming under the title through which the heir claims will prevent him recovering possession {t). A person claiming land in England as heir-at-law must be legitimate by the law of England ; it is not sufficient for him to be legitimate by the law of the country in which his parents were domiciled (u) ; and for the same reason an ancestor cannot inherit land in England from a de- (o) See Apj). B, p. 316, {■p) Rider v. Wood, 1 K. & J. 644 ; Goodtitle v. Wood, Willes, 211 ; Ingilhy v. Amcotts, 21 Beav. 585. (g) Greaves v. Greenu'ood, 2 Ex. D. ^89 ; Richards v. Pdchards, 15 East, 294, note ; Doe v. Wolley, 8 B. & C. 22. (r) See p. 227 for wliat is good primd facie evidence. (s) See p. 164. [t) Maddon v. White, 2 T. R. 159. (u) Birtwhistle v. Vardill, 7 CI. & F. 895 ; Dalhousie v. M'Douall, 7 id. 817 ; Munro v. Munro, 7 id. 842 ; Shaio v. Gould, L. R. 3 H. L. 55, 70. BY HEIR AT LAW. 169 scendant unless such descendant is legitimate by the law of England (x). Customs of descent are not affected by the Act. The Customs of Act does not extend the operation of a custom of descent, affected. nor make any alteration as to the course in which such custom is to be applicable (y). Therefore land subject to copyhold, gavelkind, borough English, or any other customary tenure, will still descend according to the custom of such tenures (y). By the custom of gavelkind land descends to all sons equally ; by the custom of borough English, to the youngest son ; land subject to copyhold or other customary tenure descends according to the custom of the manor to which it belongs. After the degree at which the custom ceases to be applicable, the Common Law rules of descent will be applied (z). There are some statutory exceptions to the rules of Statutory descent. By the Land Transfer Act, 1875 (a), upon the to rules of death of a bare trustee intestate as to any corporeal or descent. incorporeal hereditaments of which such trustee was seised in fee simple, such hereditaments vest in his legal personal representative, except in the case of lands registered under that Act (6). A " bare trustee " is one who has no bene- Bare trustee, iicial interest in the trust property, nor any active duty to perform in respect of it (c). The above enactment was repealed, as to cases of deaths Conveyancing ■occurring after the 31st of December, 1881, by the Con- ^ ' (x) Re Don, 4 Drew, 194. pealing and substantially re- {y) Muggleton v. Barnett, 2 H. enacting s. 5 of the Vendor and & N. 653 ; BicJdeij v. Bickley, 4 Purchaser Act, 1874, 37 & 38 Eq. 216 ; Hooh v. Hook, 1 H. & Vict. c. 78. M. 43 ; Eider v. TFood, 2 K. & (h) S. 48. J. 644. (c) Morgan v. Sivansea, 9 Ch. (z) Hook V. Hook, supra ; Mug- D. 582 ; Christie v. Ovington, 1 gleton v. Barnett, supra. Ch. D. 279. (a) 38 & 39 Vict. c. 87, re- 170 LAW OF EJECTMENT. Trust and mortgage Land con- tracted to be sold. veyancing Act, 1881 (d), Avhich enacts that where an estate or interest of inheritance, or limited to the heir as special occupant, in any corporeal or incorporeal heredita- ments, is vested on any trust, or by way of mortgage, in any person solely, the same shall on his death, notwith- standing any testamentary disposition, devolve to and become vested in his personal representative (e). The same Act also enacts that where, on the death of any person after the 31st of December, 1881, there is a subsisting' contract enforceable against his heir or devisee for the sale of any freehold interest descendible to his heirs general, in any land, his personal representatives may convey the land for all the estate and interest vested in him at his death, in any manner proper for giving effect to the contract (/). (d) 44 & 45 Vict. c. 4L (e) S. 30, sub-ss. 1 and 3; App. B, p. 363. (/) S. 4 ; App. B, p. 363. CHAPTER XVI. 1 . By Trustee of Ba nkrupt, 171. 2. By Grantee of Eent-charyc, 173. 3. By GuanHan of Infants, 175. 4. By Infants, 176. 5. By Lunatic and Person of Unsound Mind, 177. 6. By Joint Tenants, Tenants in Common, and. Co-jicir- ceners, 177. 7. By Parson, 178. 8. By Ghurchivardens and Over- seers, 180. 1. By the Trustee of a Bankrupt. The Bankruptcy Act of 1883 constitutes the present code in Bankruptcy (a), as it affects the land of a bankrupt. When a person has been adjudicated a bankrupt, all his Lands vest . in trustee property passes to and vests m a trustee (6). upon adjudi- The creditoi'S may appoint a trustee (c), but, until a ^^ ^°"" Appoiutnient trustee is appointed, the Official Receiver is the trustee, ot trustee. and the bankrupt's property vests in him {d). Upon the appointment of a trustee the property passes to and vests in such trustee (e). The property passes to the trustee for the time being (/). If at any time there is no appointed trustee, the Official Receiver becomes the trustee {g). All freehold, leasehold, or customary land which be- What pro- 11 1-111 perty vests longed to or was vested in the bankrupt at the commence- in trustee. ment of the bankruptcy, or which may be acquired by or de- volve upon him before his discharge Qt), vests in the trustee. (a) 46 & 47 Vict. c. {h) S. 20, sub-s. 1. (c) S. 21. {d) S. 54, sub-s. 1. 52. (e) S. 54, sub-s. 2. (/) S. 54, sub-s. 3. Ig) S. 87, sub-s. 4. (li) S. 168, sub-s. 1 ; s. 44. 172 LAW OF EJECTMENT. Comiuence- meiit of Laukruptcy. Proof of adjudication of appoiut- 111 ent of trustee. except property hekl by the bankrupt upon trust for any other person (/), or property which has been extended by the Crown before adjudication (/,;). The commencement of the bankruptcy is the time of the act of bankruptcy being committed, upon which the receiving order is made ; or, if the bankrupt committed more acts of bankruptcy than one, the time of the first of such acts of bankruptcy committed within three months next preceding the date of the presentation of the petition (I). Certain other property also, such as property which has been fraudulently or voluntarily transferred by the bank- rupt, which was not vested in or belonging to the bankrupt at the commencement of the bankruptcy, vests in the trustee (m). A copy of the London Gazette, containing a notice of an order of adjudication, is conclusive evidence of the order having been duly made, and of its date {n). The Board of Trade certifies that the trustee has been duly appointed (o), and the certificate is conclusive evi- dence that he has been duly appointed (p). His appointment takes effect from the date of the certificate (q). He may commence an action before the certificate has been given, but must produce it at the trial, dated prior to the issue of the writ (r). The certificate, for the purposes of any law requiring the registration, enrolment, or recording of conveyances or assignments of property, is to be deemed to be a convey- (i) S. 44, sub-s. 1. (k) Ex parte Postnuister-Gene- ral, 10 Ch. D. 595. (l) S. 43. (m) Ss. 45, 47—49. (?i) S. 132. (o) S. 21, sub-s. 2. (p) S. 138. (q) S. 21, sub-s. 4. (r) Kelly v. Morraij, L. R. 1 C. P. 667 ; Carrick v. Ford, L. E. 4 Ch. 247. BY TRUSTEE OF BANKRUPT ; BY GRANTEE OF RENT-CHARGE. 173 ance or assignment of property, and may be registered, enrolled, and recorded accordingly (s). The trustee is not compellable to be admitted to pro- Copyholds. perty of copyhold or customary tenure, but may deal with it as if it had been duly surrendered to such uses as he might appoint, and his appointee shall be admitted accordingly (t). The trustee may, with the permission of the committee May sue with of inspection (u), or of the Board of Trade if there be no committee (x), sue for the recovery of land of the bankrupt which has vested in him. He sues in his official name of " the trustee of .... a bankrupt " (y). If the trustee has disclaimed any property, as he may Dischaimer. do under the Act (z), he cannot afterwards sue to recover possession of it. 2. By Grantee of Rent-charge. The grantee of a rent-charge, with a power to enter and receive the rents and profits when the rent-charge is in arrear, may bring an action to recover possession of the lands (a). If the instrument creating the charge came R^'nt-charge . , . -r 1 . ■, piiorto 1882. into operation before January 1st, 1882, there is only a power to enter if expressly given by the instrument ; if it Conveyancing Act, 1881, came into operation after that date, there is an implied power to enter, if and as far as a contrary intention is not therein expressed (6). The rent-charger may enter if any portion of the rent-charge is in arrear for the period, if (s) S. 54, sub-s. 4. 54 Vict. c. 71. (t) S. 50, sub-s. 4. (a) Jemmot v. Cooly, 1 Saund. (u) S. 57, sub-s. 2. 112 c, ed. 1871, p. 132 ; Haver- {x) S. 22, sub-s. 9. gill v. Hare, Cro. Jac. 510 ; Doe (y) S. 83. v. Kensington, 8 Q. B. 429. {z) S. 55, amended by s. 13 of {h) Conveyancing Act, 1881, the Bankru])tcy Act, 1890, 53 & 44 & 45 Vict. c. 41^ s. 44. 174 LAW OF EJECTMENT. No demand necessary unless re- ([iiired by instrument. Rent-charger can hold until arrears paid. Who can enter. Right passes to represen- tatives. Who may be ejected. any, fixed by the instrument (c), or, in the case of the implied power, for forty days (d). No previous demand of the arrears is necessary, un- less expressly required by the instrument creating the charge (e) ; but, if necessary, it must be made according to the strict rules of the Common Law (/). The right of the rent-charger is only to keep possession until the arrears of the charge are satisfied ; and, as soon as they are satisfied, he must give up possession (g). If the entry is under the powers given by the Conveyancing Act, the rent-charger may keep possession until payment of all costs and expenses occasioned by non-payment of the rent-charge (h). This right of entry was construed strictly, and was not extended to any person to whom the right was not clearly given by the instrument creating the charge (^). Now, when the instrument creating the charge came into opera- tion after January 1st, 1882, any person entitled to receive a rent-charge has a right to enter, if and as far as a contrary intention is not expressed (k). If a rent-charger dies after having entered into posses- sion, and before the arrears for which he entered are satisfied, the right to possession until such satisfaction passes to his personal representatives (l). All persons claiming under a title subsequent to the instrument creating the charge may be ejected {in). (c) Haveryill v. Hare, 5 Cro. (A) S. 44, sub-s. 3. Jac. 5 ID. (i) Hassell v. Gouihwaitey (d) Conveyancing Act, 1881, Willes, oOl) ; Havergill v. Hare, s. 44, siib-s. 3. ' 5 Cro. Jac. 510. (e) Doe V. Horslcy, 1 A. & E. (k) Conveyancing Act, 1881, 766. s. 44. l^f) See p. 73. (I) Doe v. Weaver, 2 C. & K. {g) Hooper v. Cooke, 25 L. J. 754. Ch. 62, 467 ; Doe v. Horsley, (m) Doe v. Boulter, 6 A. & E. supra. 675. BY GUARDIANS OF INFANTS. 175 The Common Law Procedure Act, 1852 (n), does not C. L. P. Act, . , 1 , 1852, s. 210. apply to an action to eniorce a right to enter when a rent- charge is in arrear (o). 8. By Guardians of Infants. Guardians of infants are of two kinds, guardians in Two kinds of socage, and testamentary guardians. A guardianship in ^'^'^^ socage arises when a title to the legal estate in socage in socage. lands has descended on an infant under the age of four- teen years (p). The guardian in socage is the next of blood to whom the inheritance cannot possibly descend {q), and his guardianship continues until the infant has attained the age of fourteen years {r). A testamentary guardian is one appointed by the father Testamentary. of an infant, pursuant to 12 Car. II. c. 241, ss. 8, 9, by deed or will. His guardianship continues until the infant attains the age of twenty-one years (s), or, if a female, marries under that age {t). His power is the same as that of a guardian in socage (w). If more than one are appointed, the office survives to the survivor (,r), and each while living is a complete guardian {y). Under this Act only ih.e father can appoint a guardian {z). By a recent Act considerable changes have been made 49 & 50 Vict. c. 27. (?0 S. 210, p. 76. Wils. 129. (o) Doe V. Bon-ditch, 8 Q. B. {x) Eyre v. Shaftesbury, 2 P. 973. Wms. 103 ; Bedell v. Constable, {p) Lit. 123; Co. Lit. 87 b. Vaugh. 177. (q) Id.; R. v. Inhabitants of (y) Eyre v. Shcftesbury, supra; Wilby, 2 M. & S. 504. Gilbert v. Schtvendc, 14 M. & W. (?•) Id. 488. (s) S. 8 ; Ex parte Ludloic, 2 (2) Ex parte Edwards, 3 Atk. P. Wms. 635. 519 ; Blake v. Leigh, Amb. 305 ; {t) Mendes v. Mendes, 1 Ves. Poiuel v. Cleanor, 2 Bro. C. C. sen. 89. 5()0 ; Ex parte Hopkins, 3 P. (li) S. 9 ; Eoe v. Hodgson, 2 AVms. 152. 176 LAW OF EJECTMENT. in the law as to appointment of testamentary guardians (a). On the death of the father of an infant the mother, if surviving, is the guardian of such infant, either alone, when no guardian has been appointed by the father, or jointly with any guai'dian appointed by the father (6). The Court may in certain events, if it thinks fit, appoint a guardian or guardians to act jointly with the mother (c). The mother may, by deed or will, appoint a guardian to act after the death of herself and the father ; and where guardians are appointed by both parents, they are to act jointly (d). In certain cases the mother may nominate a guardian to act jointly with the father, but any such appointment requires the confirmation of the Court (c). Every guardian under this Ace has the same powers as guardians appointed under 12 Car. 11. c. 24 (/). Guardians Guardians, both in socage and testamentary, can maiu- possesbioirof tain ejectment for the land of the infant (g) ; but only land of infant. yji^Qn the estate is legal, not when it is equitable merely (h), at any rate before the Judicature Acts (i). 4. By Infants. An infant may bring an action to recover possession of land in his own name {k), even if he has a guardian in socage or a testamentary guardian (l). He usually, how- ever, sues by his next friend ; and a defendant can always obtain an order that he shall sue by his next friend (m). (a) 49 & 50 Vict. c. 27. Aid. 560. {b) S. 2. (i) See Chap. 1. (c) S. 2. (k) Doe v. Roberts, 16 M. & W. (d) S. 3, sub-s. 1. 778 ; Ex parte Brocklebank, 6 Ch. (e) S. 3, svib-s. 2. Div. 358. (/) S. 4. {I) Ad. Eject, p. 49 ; Cole, {g) Wade v. Baker, 1 Raym. Eject. 584. 130 ; Doe v. Bell, 5 T. R. 471. (m) Cox v. TFright, 9 Jur. N. {h) E. V. Toddington, 1 B. & S. 981 ; Ord. XVI. rr. 16, 18. BY LUNATICS; BY CO-OWNERS. 177 5. By Lunatics and Persons of Unsound Mind. The committee of the estate of a lunatic is but a bailiff, Lunatics, jind has no estate or interest in the land, and an action to recover possession of the land of the lunatic must be brought by the committee in the name of the lunatic (n). The committee generally cannot act in the management of the lunatic's estate upon his own responsibility, but must apply to a Master, or to the Lords Justices having jurisdic- tion in lunacy, for directions (o). A lunatic defends by his •committee (p). A person of unsound mind sues by his next friend, and Persons of defends by his guardian ad litem, appointed for that mind, purpose (j?). G. By Joint Tenants, Tenants in Common, and Go-parceners. Joint tenants, tenants in common, and co-parceners may Jo^it tenants, ,.,,,, . &'•'•) can sue respectively, either all together sue to recover possession together for of the whole of the common property (g), or any one or seimi-atelv more may sue for his or their undivided share or shares (r) . ^°'' ^^lares. In either case he or they must prove the extent of his or their interest : it is not sufficient to prove some interest (s). Generally speaking one joint tenant, tenant in common, Cannot sue or co-parcener, cannot maintain an ejectment against his to recover companion, because the possession of the one is the posses- (n) Drunj v. Fitch, Hutton, v. Juner, 1 Raym. 726. 16 ; Cocks V. Darson, Holi. 215 (r) Doe v. ChaphM, 3 Taunt. (Ed. 1879, p. 376) ; Knipe v. 120 ; Roe v. Lonsdale, 12 East, Palmer, 2 Wils. 130. 39 ; Denne v. Judge, 11 East, (o) Elmer s Lunacy Practice, 288 ; Doe v. Phillips, 3 B. & Ad. 180—205 (7th ed. ). 753 ; Roe v. Dawson, 3 Wils. 49 ; {p) R. S. 0. 1883, Ord. XVL Denn v. Purvis, 1 Burr. 326 : r. 17. Doe v. Pearson, 6 East, 173, 181 (<7) Doe V. Read, 12 East, 57 ; (s) Doe v. King, 6 Exch. 791. Doe v. Fenn, 3 Camp. 190 ; Bover W.Y.E. N 178 LAW OF EJECTMENT. Unless ouster. 3 & 4 Will. 4, c. 27. Possession of one not possession of other. Proof of title by parson. sion of the other; and to enable the party complaining to maintain an ejectment there must have been an actual ouster of him (t). Actual ouster is when there has been a direct and positive exclusion of one co-owner from the common property, he seeking to exercise his rights therein and being denied the exercise of such rights (u). Mere sole possession or perception of rents and profits is no evidence of ouster (x), unless very long continued (y). By 3 & 4 Will. IV. c. 27, the possession of the entirety, or of more than his undivided share, by one co-owner, is not to be deemed to be the possession of his companion (z). From this it would seem that it would be no longer necessary for a plaintiff to prove actual ouster. Under the C. L. P. Act, 1852 (a), the defendant could by a special proceeding have raised the defence of non-ouster, but this part of the Act has been repealed (b). It is submitted that now a plaintiff need not prove actual ouster (c), unless the defendant denies ouster in his defence. 7. By Parson. A parson seeking to recover possession of the rectory or parsonage house, or of the glebe, must, unless he sues as landlord (d), show his title by proving presentation, institution, and induction ; or collation and induc- tion ; or a deed of donation. He need not prove {t) Culley V. Doe, 11 A. & E. 1008, 1014 ; Oates v. Brydon, 3 Burr. 1895 ; Reading's case, 1 Salk. 392 ; Co. Lit. 199 b. (m) Lit. s. 322 ; Jacobs v. Sew- ard, L. R. 5 H. L. 464, 474; Doe V. Horn, 3 M. & AV. 333 ; 5 id. 564 ; Doe v. Bird, 11 East, 49 ; Doe v. Prosser, 1 Cowp. 217. (;«) Co. Lit. 199 b ; Ficadiw/s case, 1 Salk. 392. (y) Culley v. Doe, 11 A. & E. 1008, 1014. (z) S. 12; Culley v. Doe, supra ; see p. 208. {a) S. 188. {h) 46 & 47 Vict. c. 49. ((■) Ad. Eject, p. 69. [d] See Chap. 5. BY PARSON. 179 the title of a patron (c). If he has been in posses- sion, such possession will be iirimd facie evidence of his title (/). A parson who has been duly presented, instituted, and inducted may recover possession from another who has previously been presented to the same benefice simonia- cally {(j). A sentence of suspension ah offi,cio et a beneficio will, so long as it is in force, prevent a parson from recovering possession of house or glebe (h). At common law a demise by a parson was effectual Tenants "^ ^ _ untler demise only so long as lie continued incumbent, and his successor by predeces- could immediately eject the tenant (i). Now, if the demise, not being made under a statute, terminates when the lessor ceases to be incumbent, the lessee can hold until the expiration of the current year of his tenancy, but can then be ejected without any notice (k). When a parson has been in undisturbed possession Presumption *■ ... Irom undis- of the benefice for some time it will be presumed tiu-bed pos- that he has done all that is necessary by law subsequent to institution (/), and lie will not be required to prove that he has taken the requisite oaths, &c., according to the Act of Uniformity, unless some evidence to the contrary is given (m). Some evidence must be given that the land sought to be recovered is the property of the benefice (n). {>') B. N. P. 105. (k) 14 & 15 Vict. c. 25, s. 1. (/) Fosf, p. 227. {l) Poivel v. Milbank, 3 Wils. [ij) Doe V. Fletcher, 8 B. & C. 355, 366 ; Monk v. Butler, 1 25. Eoll. R. 83 ; Chapman v. Beard, {h) Morris v. Ogden, L. R. 4 3 Anst. 942. C. P. 687, 702. {m) Poivel v. Milbank, 2 Wm. (i) Doe V. Carter, Ry. & M. Black. 851. 237. (») See j^ost, p. 237. N 2 180 LAW OF EJECTMENT. 8. By Chvurchivardens and Overseers. 59 Geo. 3, By 59 Geo. III. c. 12, all parish property is vested in ' ."* the churchwardens and overseers of the poor for the time rarish '• property vests being (o). Before this Act there was frequently a difficulty in church- . . • r • i i i i i wardens and m recovering possession 01 parish lands and houses, owing overseers. to the impossibility of proving the title of the church- wardens and overseers who were seeking to recover possession. For instance the reversion of parish property demised by churchwardens and overseers did not vest in their successors without assignment {p). Quasi- By the operation of this Act the churchwardens and corporation. , . , • i , , i overseers become a quasi-corporation, but are not made a complete body corporate. They can accept a demise without using any common seal, and a demise to them by their names of office is sufficient {q). There must be officers of both descriptions before the Act will operate to vest parish property in them {r). Neither churchwardens only, nor overseers only, have any title under the Act (s). There must be two overseers, but in some cases one churchwarden may be sufficient {r). Whatproperty Only lands belonging to the parish it) for qeneral parish vests in them. -^ *= » ^ . ^ purposes, or for those purposes to which poors' rates and church rates are applicable, are by the Act vested in the churchwardens and overseers [ii). The Act does not apply to lands devoted to special parish charities {x), nor to' (o) S. 17 ; see App. B, p. 298. {t) Alderman v. Neate, 4 M. & If) Doe v. Clarke, 14' East, W. 704. 488. (k) Doe v. Hilcy, 10 B. & C. {q) Smith v. Adkins, 8 M. & 885 ; Doe v. Terry, 4 A. & E. W. 362. 274 ; Doe v. CocMl, 4 A. & E. (r) Woodcock v. Gibson, 4 B. & 478. C. 462 ; B. v. All Saints, Derby, (ac) A.-G. v. Lewin, 8 Sim. 13 East, 143. 366 ; Re Paddinyfon Charities, 8 (s) Doe V. Go2ver, 17 Q. B. 589 ; Sim. 629 ; Allason v. Stark, 9 A. Phillips V. Pearce, 5 B. & C. 433. & E. 255. BY CHURCHWARDENS AND OVERSEERS. 181 copyholds {y), nor to any lands which are vested in known existing trustees {z), nor to lands which are granted or demised to churchwardens and overseers jointly v/ith other persons («). Although a parish forms part of a union under 4 & 5 Where parish Will. IV. c. 76, the parish lands are not divested out of ^°nion/'^^ the churchwardens and overseers of such parish, either by that Act, or by 5 & 6 Will. IV. c. G9 {h), and they can still acquire parish property as a quasi-corporation (c). It must be proved that the land sought to be recovered What they is parish land (d), and that the plaintiffs were the church- ^^° ^^^''^■ wardens and overseers at the time the action was com- menced (e). The churchwardens and overseers must each be named (/) in the writ, and must also be described as churchwardens and overseers {g). By the same Act [k) the churchwardens and overseers Summary • n • ^ J. T- proceedings are enabled to recover possession oi parish property by before summary proceedings before magistrates. By s. 24, if any J^i'^tices. person who has been permitted to occupy any parish houses or tenements, or who has unlawfully intruded therein, or into any house, tenement, or hereditament belonging to the parish {%), does not quit and deliver up possession to the churchwardens and overseers within one month after notice and demand in writing, such person (?/) Doe V. Foster, 3 C. B. 215 ; {d) See Chap, on Evidence, Re Paddington Charities, suina ; p. 227. A.-G. V. Leioin, supra. (e) See Chap, on Evidence, {z) Deptford v. Sketcliley, 8 Q. p. 238. B. 394 ; Allason v. Stark, 9 A. & (/) Doe v. Boe, 4 Dowl. 222. E. 255. ig) Ward v. Clarke, 12 M. & (a) Uthivatt v. Elkins, 13 M. & W. 747. W. 772. {h) 59 Geo. III. c. 12, ss. 24, (6) Doe v. TFebster, 12 A. & E. 25 ; see App. B, pp. 291—321. 442 ; IVorge v. liclf, 11 L. J. M, (i) Ex parte Vaughan, L. E. C. 125. 2 Q. B. 114. (c) JForge v. EeJf, supra. 182 LAW OF EJECTMENT. When s. 24 applies. They may proceed in ordinary way. may be summoned before justices, who may by warrant cause possession to be given to the churchwardens and overseers. The notice must be signed by the church- wardens and overseers, or the major part of them, and delivered to the person in possession, or in his absence affixed to some notorious part of the premises. Similar proceedings may, by s, 25, be taken against any person to whom parish lands have been let for his own occupation, who does not quit and deliver up possession at the expira- tion of his term, and against any person who has unlaw- fully taken possession of any parish lands or heredita- ments. Sect. 24 only applies when the parish property is provided for the habitation of the poor, or is intruded upon, not when it has been let to anyone as a tenant (k). A lunar month's notice is sufficient (l), and it may be served upon some one upon the premises not necessarily the person in possession (m). The jurisdiction of the magistrates is not ousted by a claim of title on the part of the person in possession {n). Several statutes have given powers to churchwardens and overseers to acquire lands and houses for the purposes of the Poor Law (o). Summary powers of recovering posses- sion of such lands and houses are given (p). The churchwardens and overseers are not bound to pursue the remedies given by these Acts, but they may enter and take possession of parish lands without giving any notice. (k) R. v. Middlesex, 7 Dowl. B. 66. 767. {I) Lacon v. Hooiyer, 6 T. K. 224. (m) Appleton v. Money, 8 W. E. 653. {n) Ex parte Vaughan, L. R. 2 Q. B. 114 ; B. v. Bolton, 1 Q. 301. (o) 59 Geo. III. c. 12, s. 12, 13 ; 1 & 2 Will. IV. c. 42, and c. 59 ; 2 & 3 Will. IV. c. 42. (p) 59 Geo. III. c. 12, ss. 24, 25 ; see App. B, p. 299 ; 2 & 3 Will. IV. c. 42 ; see App. B, p. BY CHURCHWARDENS AND OVERSEERS. 183 if they cau do so peaceably (q) ; or they may bring an action at law. These provisions for summary proceedings (r) are GuanlianH of extended to houses and lands vested in or under the ''' "'"^'^• management or control of the guardians of the poor of any union or parish (.s). The Local Government Act, 1894 (t), transfers to a rural Local Govern- Parish Council the " powers, duties, and liabilities " of the "g^^* ^'-^^' overseers, or of the churchwardens and overseers, with respect to " the holding or management " of parish property, village greens, or allotments, not belonging to the Church, or held for an ecclesiastical charity (u). (q) JFildbor V. Rainforth, 8 B. (s) 5 & 6 Will. IV. c. 69, s. 5 ; ■& C. 4 ; Fox V. OaJdey, 2 Peake, 1 & 2 Will. IV. c. 42, s. 3. 514. (t) 56 & 57 Vict. c. 73. (/•) 59 Geo. III. c. 12 ; 2 & 3 (n) S. 6, sub-s. 1, c. (iii) ; see Will. IV. c. 42. App. B, p. 377. CHAPTER XVII. COPYHOLDS. Title of lord of manor. Entry quousqiic. Forfeitures. Absolute forfeiture. The lord of the manor is the freeholder of all the copy- hold tenements, and the copyhold tenants hold at the will of the lord according to the custom of the manor (x). If no tenant comes in to be admitted (y), the lord is en- titled to enter and hold possession of the copyhold tene- ment until the person entitled is admitted, and any suc- ceeding lord may take advantage of an entry made under such circumstances by his predecessor (z) ; but before the lord can seize quousque there must have been three pro- clamations at three successive courts for a tenant to come in and be admitted (a), unless a notice to appear and be admitted has been personally served («), The lord's right to enter for a forfeiture is regulated entirely by the general custom of copyholds or by the special custom of a particular manor. Forfeitures are of two classes, the one which operates as. an absolute forfeiture of the tenement and destroys the estate ipso facto, and the other which operates as a for- feiture only at the election of the lord (6). Whether par- (x) Broivn's case, 4 Co. Eep. (a) Doe v. Trueman, 1 B. & 21 a ; Eoe v. TVegrj, 6 T. R. 708 ; Peachy v. Somerset, 2 Wli. & Tud. L. C. 1245 (6th ed.). (y) Salisbury's case, 1 Lev. 63 ; Doe V, Muscott, 12 M. & W. 832. (z) Doe V. Trueman, 1 B. & Ad. 736. Ad. 736 ; Doe v. Hellier, 3 T. R. 162 ; Scriven, pp. 114—116 (6tli ed.). (6) Doe V. Trueman, supra; Clarke v. Arclen, 16 C. B. 227 ; Doe V. Bousfield, 6 Q. B. 492. COPYHOLDS. 185 ticular acts or omissions of copyhold tenants operate as absolute forfeitures, or only as forfeitures at the election of the lord depends on the custom, but the general rule is that any act done by a copyholder incompatible with his copyhold interest as established by the custom operates as a forfeiture. Such acts are, making leases without licence of the lord or contrary to the custom of the manor (c) ; making a feoffment or levying a fine ; opening mines ; cutting timber, etc. A forfeiture can only arise by the act or omission of the How forfei- / 7x 1 p . . t"i'*5 iucuired- copy holder or his lessee (a) ; thereiore any act or omission of a devisee, surrenderee (e), or cestui que trust (/) before admittance cannot cause a forfeiture (g). A for- E-'^tent of. feiture does not extend bej^ond the estate or interest of the person offending. This forfeiture by copyholder for life does not affect a remainderman ; nor does forfeiture by a husband holding in right of his wife affect anything but his own interest (A). In the case of an absolute forfeiture the estate is extin- Effect of guished, and the lord for the time being can enter, while in the case of a forfeiture at the election of the lord, a succeeding lord cannot take advantage of it, unless the lord during whose time it occurred has made his election and has entered (/). Although it is probably not necessary to present a for- (c) Jachnan v. Hoddesdon, Cro. 879 ; Eastal v. Turner, Cro. Eliz. 351 ; East v. Harding, Cro. Eliz. 598. Eliz. 498 ; Kitchen, 115. [h) Saverne v. Smith, Cro. {d) Clifton V. Molineux, 4 Co. Car. 7. Rep. 27 a. (i) Doe v. Trueman, 1 B. & (e) Eoe V. Hicks, 2 Wils. 13. Ad. 736 ; Doe v. Hellier, 3 T. R. (/) Peach]) V. Somerset, 1 Str. 162 ; East v. Harding, Cro. Eliz. 454. 498. {g) BasiMe v. Long, Cro. Eliz. 186 LAW OF EJECTMENT. Tenant of copyliolder in possession. Leases by copyholder. "Waiver of forfeiture. Belief against forfeiture. Heir at law of copyholds. feiture, yet it is safer to present the forfeiture and to prove sucli presentation (/,•). The lord of the manor can in no case enter on tlie copy- hold tenement either for the purpose of seizing quoiisque, or for a forfeiture, if there be a tenant of the copyholder lawfully in possession under a lease (l). By the general custom a copyholder can make leases of the copyhold tenement to continue for one year only (m), though by special custom, or the licence of the lord, leases may be made to continue beyond that period (n). When an act creates a forfeiture or not at the election of the lord, and the lord with knowledge (o) does any act after- wards which admits the copyholder to be still a copyholder, such as receiving rent, accepting a surrender, or amercing him in his court, the forfeiture is waived and dispensed with (p). Relief against the forfeiture of a copyhold estate was never granted in equity, in absence of any fraud or acqui- escence on the part of the lord, unless the forfeiture was for non-payment of a sum of money such as rent or fines (q). The title of an heir at law of copyholds is complete without admittance against everyone except the lord (r), and even as against the lord he need not prove admittance {k) Scriven, pp. 187—189 (6th ed.) ; East v. Harding, Cro. Eliz. 498. (l) Clarke v. Arden, 16 C. B. 227 ; Turner v. Hodges, Hutton, 101. (m) Melwicli v. Lnter, 4 Co. Eep. 26 a ; Mathews v. IVhetton, Cro. Car. 233. {n) For instances, see Scriven, p. 193 (6th ed.). (o) Mathews v. JFhetton, Cro. Car. 233. (2^) 1-^oe V. Trueman, 1 B. & Ad. 736, 745 ; Doe v. Hellier, 3 T. R. 162; Milfaxv. Baker, 1 Lev. 26. {q) Peachy v. Somerset, 2 Wh. & Tud. L. C. 1245 (6th ed.) Hill v. Bardaxj, 18 Ves. 56, 64. (r) Garland v. Mead, L. R. 6 Q. B. 441, 449 ; Doe v. Clift, 12 A. & E. 566, 575 ; Doe v. True- man, 1 B. & Ad. 736, 747 ; Doe V. Thompson, 13 Q. B. 670. COPYHOLDS. 187 if the lorJ or his steward has refused to admit him either in or out of court (s). If copyholds are not by the custom descendible to the heir, but the heir has only a customary right of renewal, the heir has no title until admitted by the lord (t). A devise of copyholds has only a right to be admitted, Devisee of and has no legal title until he has been admitted (u). ^°P^ ° **• Since the Wills Act (x) a surrender to the use of the will is unnecessary (y). Until the admittance of a devisee the legal estate is in the customary heir (z), and if the heir tenders himself to be admitted, the lord cannot seize quousque the devisee comes in to be admitted (a). If a devisee has not been admitted before his death, the right of admittance de- scends to the heir of his testator and does not pass to his devisee (b). A surrenderee of copyholds has no legal title before ad- Surrenderee mittance (c), but the estate remains in the surrenderor (c), ° '^'^^^^ and if the surrenderee dies before admittance, the legal estate does not pass to his heir or devisee, but remains in the surrenderor (d). An admittance relates back to the time of the surrender, against everyone but the lord, and (s) Doe V. Bellamy, 2 M. & S. Doe v. Lawes, supra; Doe v. S7. Harrison, 6 Q. B. 631. (t) Doe V. Clift, 12 A. & E. (a) Garland v. Mead, supra. 566, 575 ; Doe v. Thompson, 13 {h) Doe v. Lawes, supra. •Q. B. 670. (t) Vaxujlian v. Atkins, 5 Burr. {u) Garlaiid v. Mead, L. R. 6 2764; Roe v. Loveless, 2 B. «&;Ald. Q. B. 441, 449 ; Doe v. Laioes, 7 453 ; R. v.JFilson, 10 B. & C. 80 ; A. & E. 195 ; Roe v. Hicks, 2 R. v. Mildmay, 5 B. & Ad. 254, Wils. 13. 279 ; Ray son v. Adcock, 9 Jur. (x) 1 Vict. c. 26, s. 3 ; see N. S. 800 ; Roe v. Hicks, 2 Wils. App. B, p. 322. 13. (y) Garland v. Mead, supra ; {d) Matthew v. Osborne, 13 C. Doe V. Ludlam, 7 Bing. 275. B. 919, 941. (z) Garland v. Mead, supra; 188 LAW OF EJECTMENT. Admittance of person without title. Lessee need not be admitted. Custom of descent must be proved. therefore a plaintiff's title will be good if he proves an ad- mittance at any time before the trial (e). The admittance of a person who has no title, upon an unfounded claim, does not pass the estate to him and give him a good title (/). A lessee of copyholds need not be admitted (g) and has a good title against all but the lord of the manor, and can recover possession of the demised premises without proving any custom or licence of the lord authorising the lease (It). If a plaintiff claims possession as heir by the custom of the manor the custom must be proved (i), but if there is no custom, or so far as there is no custom, the ordinary law of inheritance applies {h). (e) Eayson v. Adcock, 9 Jur. N. S. 800 ; Holdfast v. Claplmm, 1 T. E. 600 ; Vaughan v. Atkins, 5 Burr. 276-^. (/) Zouch V. Forse, 7 East, 186. (g) Watson v. Waltham, 2 A. 6 E. 485, 490. Qi) Downingliam's case, Owen, 17 ; Mehvich v. Litter, 4 Co. Eep. 26 a ; Doe v. Bousfield, 6 Q. B. 492; Scriven, 370—372 (6th ed.). {i) Roe V. Parker, 5 T. R. 26 ; Denn v. Spxty, 1 T.E. 466. Qi) Denn v. Sfray, 1 T. E. 466 ; Hook v. Hook, 32 L. J. Ch. 14 ; Muggleton v. Burnett, 27 L. J. Ex. 125 ; Scriven, 270—274 (6th ed.). CHAPTER XVIII. WHAT PERSONS CAN BE SUED. A PERSON seeking to recover possession must sue the Person in person who is in possession of the premises either by him- r'^^^^^^^o'i self or by his tenants. He may sue the landlord only (a), possession or only the tenant in actual possession, or both toorether (a). ^^ tenants •^ _ ^ *= '^ ' or servants. A mere servant in possession by permission of another is liable to be sued (6). A landlord is liable to be sued, even if he has given his Landlords, tenants notice to quit, if they have not given up pos- session (c). If possession is vacant, the last person who would have Vacant been in possession had the premises not been left vacant P"^^*^^^^*^^* should be sued. When judgment for possession has been recovered, the sheriff will turn out all persons in possession, and give possession to the plaintiff (c). (a) Eoe V. Wiggs, 2 B. & P. {h) Doe v. Stradling, 2 Stark. :tT. R. 330 ; Doe v. Stanton, 2 B. 187 ; Doe v. Roe, 2 Chit. 179. & Aid. 371. (c) Eoe v. JFiggs, supra. CHAPTER XIX. MESNE PROFITS. What plaintiff must prove. Entry into possession. His title. Mesne profits as damages for trespass to the land may now be claimed either in the action to recover possession, or by a separate action (a). In an action to recover mesne profits, they can only be recovered down to the date when the action was commenced, except in cases between land- lord and tenant under sect. 214 of the Common Law Pro- cedure Act, 1852 (6), when they can be recovered down to the date of the judgment ; and under that section they may be recovered though they have not been claimed (c). The plaintiff must prove that he has re-entered into possession, his title during the period for which he claims, that the defendant has been in possession during that period, and the amount of such mesne profits. The plaintiff must have re-entered into possession, either by actual entry or execution of the writ of posses- sion, before he can recover mesne profits (d). When he has once re-entered, the period of his possession relates back to the time when his right of entry accrued, and mesne profits are recoverable for that period (d). Before the Common Law Procedure Acts the judgment in ejectment was conclusive evidence of the plaintiff's title («) Old. III. r. 6 ; Ord. XVIII. r. 2. (b) 15 & 16 Vict. c. 76, s. 214 ; App. B, p. 346. (c) Doe V. Hodgson, 12 A. & E. 135 ; Smith v. Tett, 9 Exch. 307. (fZ) Barnett v. Guildford, 11 Exch. 19 ; Wilkinson v. Kirhy, 15 C. B. 430 ; Litchfield v. Ready, 5 Exch. 939. MESNE PROFITS. 101 from the date at which the title was by the writ alleged to have accrued. Under the Common Law Procedure Acts it was only conclusive evidence of title at the date of the writ, and such would seem now to be the case, the form of judgment under the Judicature Acts being the same as under the Common Law Procedure Acts (e). It is only con- clusive as an estoppel, if so pleaded (/) ; but if there is no opportunity of so pleading it, it is conclusive as evi- dence (/). It is conclusive whether given after trial or upon default (g), and against all persons claiming luider the defendant,but not against strangers (A). If mesne profits are claimed for a time anterior to the judgment, evidence must be given to prove the plaintiff's title during such time. Mesne profits being thus damages for trespass, and it being necessary for him to prove his possession, it is diffi- cult to see how a claim for them can ever be joined with an action to recover possession (except under the Common Law Procedure Act, 1852) (i), for until the plaintiff has actually recovered possession he has no cause of action for mesne profits. In practice, however, no such objection as this seems ever to be taken. The judgment in ejectment probably proves the posses- The posses- sion of the defendant from the date of the writ in the defendant. action of ejectment (A;). If, however, the defendant is (e) Harris v. Mnlhrn, 1 Ex. Exch. 19 ; Aslin v. Parian, 2 D. 31 ; Pearse v. Coaker, L. R. 4 Burr. 665. Ex. 92 ; Aslin Y. ParJdn, 2 BwTC. (h) Denn v. TTVw^e, 7 T. R. 665 ; TFilkinson v. Kirhy, 15 C. 112 ; Doe v. Whitcomb, 8 Bing. B. 430. 46 ; Doe v. Harvey, 8 Bing. 239 ; if) Doe v. Wri(jht, 10 A. & E. Hunter v. Britts, 3 Camp. 455. 763 ; Doe v. Huddarf, 2 C. M. & (i) S. 214 ; App._B, p. 346. R. 316 ; Mattlmo v. Osborne, 13 [h) Pearse v. Coaker, L. R. 4 C. B. 919 ; Voofjht v. JFinrh, 2 Ex. 92 ; Aslin v. Parkin, 2 Burr. B. & Aid. 662 ; 2 Smith's L. C. 665 ; Doe v. Challis, 17 Q. B. 853 (ed. 9). 166 ; Dodwell v. Gibbs, 2 C. & P. (y) Barnett v. Guildford, 11 615. 192 LAW OF EJECTMENT, alleged to have been in possession before that time, the duration of his possession must always be proved (Z). Mesne profits may be recovered from any person who has been in actual possession even if only as servant, and from persons who have been in possession by their sub- tenants or servants (m). The amount The amount that may be recovered as mesne profits is profits. not limited to the rental value of the land, but the jury may give extra damages, as for deterioration (n) and the reaf;onable costs of getting into possession (o). The mesne profits are to be assessed for the period during which the defendant was in possession and the plaintiff was en- titled (j)). And the defendant ought to be allowed a deduction for any outgoings and ground rent which he may have paid (q). (l) Ive V. Scott, 9 Dowl. 993. 275 ; Dunn v. Large, 3 "Doug. {m) Henderson v. Squire, L. R. 335. 4 Q. B. 170 ; Doe v. Harlow, 12 (o) Doe v. Filliter, 13 M. & W. A. & E. 40 ; Ibbs v. Richardson, 47, 48 ; Pearse v. Cooker, L. R. 9 A. & E. 849 ; Burne v. Richard- 4 Ex. 92. son, 4 Taunt. 720 ; Doe v. Whit- (p) Stanynought v. Cosins, comb, 8 Bing. 46 ; Holcomh v. Barnes, 456. Raivlins, Cro. Eliz. 540 ; Doe v. (q) Doe y. Hare, 2 Cr. & M. Challis, 17 Q. B. 166. 145 ; Barber v. Brow7i, 1 C. B. (7i) Goodtitle v. Tombs, 3 Wils. N. S. 121. 118 ; Doe v. Roe, 6 C. B. 272, CHAPTER XX. STATUTES OF LIMITATION, The time within which proceedings must be taken to recover possession of land is now regulated by the Real Property Limitation Act, 1833 (y guardian. Possession of the surface. Action to lie commenced within 12 years. possession of a receiver is primd facie the possession of the person appointing him {u). The possession of a guardian is the possession of the infant of whom he is guardian {x), and the statute does not begin to run against the infant, and in favour of the guardian, until something has been done to change the character of that possession ; and such a change will not be inferred from the mere re- tention of the property by the guardian after the infant has attained his majority {y). The possession of the surface is 'prima facie possession of the minerals beneath, unless they are dissevered in title {z) ; but where they are dissevered in title from the surface, no presumption of a possession of the whole arises from possession of a part (a). In order to prevent the operation of the Statutes of Limitation, the action, speaking generally, must be brought within twelve years of the time when the cause of action first accrued (h), and this is, in most cases, though not in all, explained by sect. 3 (c) and certain other sections of the Act of 1833 (c), and sect. 2 of the Act of 1874 {d). This limit of twelve years is qualified by other sections of the same Acts, e.g., where tliere has been an acknowledgment 740 ; JFliitmore v. Humphries, L. R. 7 C. P. 1 ; A.-G. v. Tom- line, 5 Ch. D. 750 ; 15 Ch. D. 150 ; s. 8 of 3 & 4 Will. IV. c. 27, see App. B, p. 308 ; see Doe V. Mulliner, 1 Esp. 460. (n) Penney v. Todd, 26 W. R. 502. (x) Dormer v. Foriescue, 3 Atk. 123, 130 ; Crowther v. Croivther, 23 Beav. 305, 309. (t/) Tinker v. Rodwell, 69 L. T. 591 ; Pelly v. Bascombe, 4 Giff, 390 ; Hohbs V. Wade, 36 Ch. D. 553 ; Thomas v. Thomas, 2 K. & J. 79 ; Young v. Harris, 65 L. T. 45. {z) Keyse v. Poivell, 2 E. & 13. 132 ; Smith v. Lloyd, 9 Excli. 562 ; Seddon v. Smith, 36 L. T. 168. (a) Dartmozith v. Spittle, 24 L. T. 67. {h) S. 1, 37 & 38 Vict. c. 57. (c) 3 & 4 Will. IV. c. 27. ((/) 37 & 38 Vict. c. 57. STATUTES OF LIMITATION. 197 of title {e), or a payment of rent (/), or any disability existing at the time when the right first accrued (g). A suit by the heir of a former tenant to compel the lord Suit tocompt'l 111-1 111 1 • 1 • • • 1 • admittance to who had seized copyholds quousqueto admit him is within copyholds. sect. 1 of the Act of 1874 (A). So is a widow's right to Dower. sue out a writ of dower (i). Sect. 3 of the Act of 1833 (k) may be divided into Operation of „ T . 11 1 . , 1 . 1 . 1 . s- 3 of Act of five distinct beads, which explain, and give the time i833. at which, the right first accrues in those cases in which doubt or difficulty might occur, leaving every case which plainly falls within the general words of sect. 1 of the Act . of 1874 (^), but is not included amongst the instances given by sect. 3 of the Act of 1833, to be governed by the opera- tion of sect. 1 of the Act of 1874 (m). The word rent in "Rent." this section probably means a rentcharge (n). These five heads are : (1) where the claimant, or person The five heads through whom he claims, has been in possession and has been dispossessed or has discontinued possession; (2) where the claim is to the land of a deceased person who was in possession until his death, and was the last person entitled who was in possession ; (3) where the claim is under an instrument (other than a will) made by a person in posses- sion, and no person entitled under the instrument has been in possession ; (4) where the claim is to a future estate and no person has been in possession in respect of such estate ; (e) S. 14 of 3 & 4 Will. 4, c. (I) 37 & 38 Vict. c. 57, s. 1 ; 27. see App. B, p. 352. (/) S. 35, id. {m) James v. Salter, 3 B. N.C. {g) Ss. 3, 4, 5 of 37 & 38 Vict. 544; Magdalen Hosjntal v. Knotts, c. 57. 8 Ch. D. 709, 727 ; Pugh v. (h) Walters v. JFebb, 5^Ch. 531. Heath, 7 App. Cas. 235 ; Oicen v, (i) Marshall v. Smith, 34 L. J. De Beauvoir, 16 M. & W. 547. Ch. 189. (n) Doe v. Angell, 9 Q. B. 328, (^) 3 & 4 Will. 4, c. 27 ; see 355. App. B, p. 306. 198 LAW OF EJE(;TMENT. Dispossession. Discontinu- ance of possession. Abandonment liy intruder without acquiring a statutorj'' title. Claim to land of deceased person. (5) where the claim is founded upon a forfeiture or breach of condition. Under the first head, where the claimant or person through whom he claims has been dispossessed or has dis- continued possession, the cause of action accrues upon such dispossession or discontinuance. " Dispossession " takes place where one person comes in and drives out another from possession. " Discontinuance " of possession is where the person who has a right to possess goes out and is followed into possession by another ; this does not occur where a person has conveyed his estate to another (o). This part of the section does not apply where a lessor permits his lessee during the continuance of the lease to pay no rent ; such a case falls rather within the fourth head {p). Though a person dispossessed of land is allowed twelve years from the time of his being dispossessed, a person disseised of rent has twelve years only from the last payment of rent within which to bring his action {q). Where a person who has taken possession without title, abandons possession without having acquired a statutory title, the rightful owner is in the same position on the abandonment as he was before the intrusion {r). Under the second head of the section, if a person claim the land or rent of a deceased person who remained in possession of the land, or receipt of the rent {s) until his death, and was the last person entitled who was in such possession or receipt, the right to enter is deemed to have (o) Rimington v. Gannon, 12 C. B. 18, 34 ; Abergavenny v. Brace, L. R. 7 Ex. 145 ; Adnam V. Sandioich, 2 Q. B. D. 485, 490 ; Leigh v. Jack, 5 Ex. D. 264, 272 ; Rains v. Buxton, 14 Ch. D. 537. (p) Doe V. Oxenham, 7 M. & W. 131 ; Grant v. Ellis, 9 M. & W. 113 ; Ghadwick v. Broadwood, 3 Beav. 308 ; see j^ost, p. 200—202. (q) Owen v. De Beauvoir, 16 M. & W. 547, 565. (r) Trustees Go. v. Short, 13 App. Cas. 793. {s) Baines v. Lumley, 16 W. R. 674. STATUTES OF LIMITATION. 199 accrued at the death (0- Under this part are treated the cases of heir at law and devisee. The result of this is that if the ancestor or testator died in possession, the heir or devisee, as the case may be, has twelve years from the death during which he may assert his claim to the estate (x). Heir and Q6V1SGG If, however, the ancestor or testator died out of possession, and the time had begun to run against him, then the heir or devisee has only as long a time within which to make his claim as the ancestor or testator would have had under the first part of the section (y). A person in possession without other title, even for less Devisai)le than the statutor}- period, has a devisable interest ; if he "^*^^'^^^- devise this interest, his devisee's title is under the will, and he or his heirs can eject any one who has not a title prior to the testator (z). If a devisee enter under such Possession circumstances, and rely on the will, he cannot plead the "^^"°^ ^ ^^'^'^• Statute of Limitations against, or dispute the title of, a remainderman under the same will (a). Where a devisee for life took possession of land to which she wrongly be- lieved she was entitled under the will of a testator who died before the Wills Act, the land having been acquired after the date of the will, it was held that after the lapse of the statutory period she acquired a title against a per- son claiming as remainderman under the will and against the heir at law (6). (f) S. 3 of 3 & 4 Will. 4, c. L. K. 591 ; Clarke v. Clarke, Ir. 27 ; Doe v. Long, 9 C. & P. 773 ; Rep. 2 C. L. 395 ; Hawksbee v. I)oe V. Bramston, 3 A. S^.E. 6Z ; Hawksbee, 11 Hare, 230; JRe James v. Salter, 3 B. N. C. 544. Stringer, 6 Ch. D. 1, 10 ; Ker- {x) S. 3 of 3 & 4 Will. 4, c. naghan v. M'Nally, 12 Ir. Ch. 27 ; Doe v. Long, supra. Rep. 89. iy) S. 3 of 3 & 4 Will. 4, c. (a) Board v. Board, L. R. 9 Q. 27 ; Doe v. Bramston, supra; see B. 48 ; Paine v. Jones, 18 Eq. Jumpsenv. Pitchers, 13 Sim. 327. 320. (z) Aslier v. Whitlock, L. R. 1 (6) Paine v. Jones, supra. Q. B. 1 ; Keeffe v. Kirby, 6 Ir. C. 200 LAW OF EJECTMENT, Administra- tor. Executor. Claims under instruments other tlian wills. Estates in remainder and reversion. With regard to an administrator the rule of law formerly was that, as to all rights occurring after the death of the intestate, time only began to run from the grant of ad- ministration. Now by sect. 6 of the Act of 1833, time begins to run from the death of the intestate, and an ad- ministrator must claim as if no interval had occurred between the death of the intestate, and the grant of administration (c). Where letters of administration have been granted the administrator is entitled to all the ricfhts whicli the intestate had, at the time of his death, vested in him, although no right of action accrues to the adminis- trator until he has obtained letters of administration (r/). The case of an executor falls within the principles govern- ing the case of devisee (e). The third head of sect. 3 applies to claims to lands or rents under any instrument other than a will, when no person entitled under such instrument has been in posses- sion. It deals with the cases where wrongful possession commenced immediately on alienation by the rightful owner (/). In such case the cause of action accrues when the claimant became entitled by virtue of the instru- ment (g). This part applies to cases where the person holding the land does not hold it under, or in privity with the person in whom the right of entry is supposed to be, and therefore does not apply to the case of a ceatiii que trust holding possession of a land under a trustee ((/). The fourth head of this section, which relates to estates in remainder or reversion expectant on the determination (c) S. 6 of 3 & 4 Will. 4, c. 27 ; Re Williams, 34 Ch. D. 558 ; see Re Bonsor and Smith, 34 Ch. D. 560, note. (d) Pratt V. Swaine, 8 B. & C. 285 ; see p. 162, (e) Ante, p. 199, (/) S. 3 of 3 & 4 Will. 4, c. 27 ; James v. Salter, 3 B. N. C. 544, (g) Garrard v. Tuck, 8 C, B. 231,252. See j;os^, p. 216, STATUTES OF LIMITATION. ^ 201 of a particular estate, must be construed with reference to sect. 2 of the Act of 1874 (h). Under these two sections a person entitled to an estate or interest in reversion, or remainder, or other future estate, has twelve years from the time at which his estate has become an estate or interest in possession during which he can make an entry or distress or bring an action or suit to recover it (i), even though he himself or someone through whom he claims has been previously in possession or in receipt of the rents (h). This section only applies to cases where a person other than the remainderman or reversioner is Another ^ _ person must entitled to the particular estate, for if the same person has have parti- concurrent rights to both estates sect. 20 applies (k). It is further provided by sect, 2 of the Act of 1874 that When owner . of particular if the person last entitled to the particular estate was not estate out of in possession, or in receipt of the rents, when his interest P°ss6-^^^°"- determined, then the owner of the future estate has twelve years from the time when the right to make an entry or distress or bring an action first accrued to the person last entitled to the particular estate, or six years from the time when his own estate became vested in possession, which- ever period is the longer (l). This applies to the case in which the person entitled is out of possession, i.e., where the right to possession and the actual possession are separ- ated ; in such cases a cause of action accrues to the owner of the particular estate, and on its cesser another cause of action accrues to the owner of the remainder, and the two periods mentioned in the enactment run respectively from (h) 37 & 38 Vict. c. 57, s. 2 ; Treemer, [1893] 1 Ch. 166. App. B, p. 353. S. 5 of 3 & 4 (k) Post,ix 211 ; Doe v.AIouls- Will. 4, c. 27, is repealed. dale, 16 M. & W. 689. (i) Ecclesiastical Commissioners (l) 37 & 38 Vict. c. 57, s. 2 ; V. Kmoe, 5 App. Cas. 736 ; Coiyiis 3 & 4 Will. 4, c. 27, s. 5, is now College v. Rogers, 49 L. J. Ex. 4 ; repealed, see Ecclesiastical Commissionersv. 202 LAW OF EJECTMENT. Effect of future estate being Laned. Conveyance by tenant tor life. Landlorfl. Forfeiture on breach of condition. the accruing of these rights of action {m). If tlic ownei* of the future estate is barred, the bar extends to any person who claims in respect of any subsequent estate under any deed, will, or instrument executed or taking effect after the original dispossession commenced {n). If the tenant for life conveys in fee to a purchaser, the remainderman or his assigns may recover the land within twelve years from the death of the tenant for life (o), A landlord, being a reversioner, is within the provisions of this section (p), subject to certain qualifications con- tained in sects. 7, 8, and 9 of the Act of 1833 {q). Under the old law a landlord might re-enter at the expiration of his lease, or within twenty years from that time, even though he had during the lease discontinued the receipt of rent from his tenant (r). Now if he has discontinued receipt of the rent he has twelve years from such discon- tinuance, or, if he has received rent up to the termination of the lease, then twelve years from such termination, except in cases of leases in writing under sect. 9, when the right accrues in one case from the time when some person wrongfully receives the rent, and in the other cases not until the determination of the lease. The fifth head of sect. 3 (s), and also sect. 4 (s), apply to ejectments founded upon any forfeiture or breach of con- dition. This part of sect. 3 fixes the occurrence of the forfeiture, or breach of condition, as the time at which the right to enter first accrues ; and sect. 4 provides that, if the right to enter first accrues in respect of an estate or interest in reversion, or remainder, and no advantage has (m) Pedder v. Hunt, 18 Q. B. D. 565. (n) 37 & 38 Vict. c. 57, s. 2 ; App. B, p. 353. (o) Doe V. Hull, 2 D. & R. 38. (p) S. 3 of 3 & 4 Will. 4, c. 27. (q) Post, p. 204—207. (?•) Elvis V. York, Hob. 322. (s) 3 & 4 Will. 4, c. 27 ; App. B, p. 306. STATUTES OF LIMITATION. 203 been taken of the forfeiture by the remainderman or re- versioner, his right shall be deemed to have first accrued in respect of such estate or interest when that estate becomes an estate in possession, as if no such forfeiture or breach of condition had happened (.s). The words " for- feiture " and " breach of condition " are used in their largest sense, and include every case of forfeiture or breach of condition, whether the effect of the forfeiture was to accelerate another estate under what is sometimes called a conditional limitation, or whether the effect of the forfeiture was merely to give a right to the heir to re-enter under the old common law rule (t). The object of sect. 4 is to prevent a person, who either intentionally or otherwise fails to take advantage of a for- feiture, from being barred of his rights altogether, while sect. 3 fixes the time from which the statute runs when it is proposed to take advantage of the forfeiture (it). A remainderman or reversioner need not insist on the for- feiture of the particular estate, but may wait its regular expiration, in which case the statute does not begin to I'un until the expiration (w). If a person makes a void or voidable lease, he has an Void or void- immediate right of entrv, and time begins to run from the moment of the execution of the lease (x). If, however, rent has been reserved and received, a yearly tenancy will be inferred and will prevent the statute from running (x). Sect. 7 (y) deals with the case of a tenancy at wall, and Tenancy at will. (t) Astley V. Essex, 18 Eq. 290; (x) Magdalen Hospital v. Knotts, see Magdalen Hospital v. Knotts, 4 A pp. Cas. 324 ; see Webster v. S Ch. D. 709, 727. Southeij, 36 Ch. D. 9. («) 2 Smith's L. C. p. 747 (y) S. 7 of 3 & 4 Will. 4, c. 27 ; sujyra. stituted for s. 2, 3 & 4 Will. 4, (h) 37 & 38 Vict. c. 57. c. 27. (x) Abergavenny v. Brace, (?•) Abergavenny v. Brace, L. supra. R. 7 Ex, 145 ; see post, ss. 21, 22. issue. STATUTES OF LIMITATIOX. 213 conveyed away his own right and thus put it out of his power to recover {y). If time has begun to run against the tenant in tail, but Time running has not expired at his death, then those whom he could i,°'taii con-' have barred have left to them only the residue of the time tmnes to •^ run against which remains to run, within which to prosecute their remainder- rights {z). The successors of the tenant in tail are thus placed, so to speak, by the operation of sects. 21 and 22, in the shoes of the tenant in tail, and therefore cannot claim the benefit of the savings in the act in regard to their own disabilities («). These two sections are retrospec- tive (a). Where a tenant in tail has executed an assurance effec- Assurance tual to bar his own issue, but ineffectual to bar remainder- ;lt"™'" men, or reversioners, by reason of the consent of the pro- tector of the settlement not having been obtained, this assurance creates merely a base fee (b). If, then, there has been a possession or receipt of rent under such assiu'ance for a period of twelve years after the time at which the assui'ance, if it had then been executed, would without the consent of anyone have barred the future estates, e.g., from the death of the protector, then such assurance is made effectual against the future estates (c). If the deed is not enrolled, it is not effectual to bar the issue, and sect. 6 does not apply {d). The con- veyance must be of an estate tail and not of a life estate (e). The section does not apply to the case of an assurance by {y) Gannon v. Bimington, 12 c. 27 ; Penny v. Allen, 7 De G. C. B. 1, 18. M. & G. 409. (z) Goodcdl V. Skerratt, 24 L. (c) S. 6 of 37 & 38 Vict. c. 57 ; J. Ch. 323 ; s. 22 of the Act of s. 23 of 3 & 4 Will. 4, c. 27, is 1833. repealed. (a) Goodall v. Skerratt, supra. ((/) Morgan v. Morgan, 10 E(|. (6) S. 6, 37 & 38 Vict. c. 57, 99. substituted for s. 23,3 & 4 Will. 4, {e) Mills v. Gapel, 20 Eq. 692. 214 LAW OF EJECTMENT. Express trust. Purchaser for value. What cases within s. 25. a tenant in tail who, by a private Act, was prohibited from barring the entail of his estate (/). Where land or rent is vested in a trustee upon an express trust, time does not begin to run against the cestui que trust until the land or rent has been conveyed to a purchaser for value (g), and then only in respect of such purchaser (g). The rights of the cestui que trust remain unaffected by lapse of time as against the trustee (Jl), and also as against all volunteers claiming under him, even though the cestui que trust has acquiesced in the conve}-- ance to the volunteer (i) ; but as soon as there is a convey- ance to a purchaser for value, time begins to run in respect of such purchaser and as against the cestui que trust. Inasmuch as the possession of the trustee is the posses- session of his cestui que trust {k), the right of the cestui que trust is not barred by the trustee treating a person, other than the cestui que trust, as entitled to the land, and paying the rent to such third person (l). In order to bring a case within sect. 25, there must be land, a trustee in whom the land is vested, a cestui que trust for whose benefit in this respect the land is to be held, and an express trust, that is, a trust which arises upon the construction of the words of the written instrument under which it is created, and which does not rest upon any in- (/) Abergavenny v. Brace, L. R. 7 Ex. 145. (g) S. 25, 3 & 4 Will. 4, c. 27 ; Burroughs v. McCr eight, 1 J. & L. 290, 304 ; Magdalen College v. ^.-G., 6H.L. C. 189, 215; A.-G. v. Flint, 4 Hare, 147 ; see Scott V. Scott, 4 H. L. C. 1065. (h) Magdalen College v. A.-G., supra ; Law v. Bagioell, 4 Dr. & War. 398 ; Browne v. Radford, W. N. (1874) 124. As to what constitutes a purchaser for value, and what is his position if he knew of the trust, see Lewin on Trusts, p. 998 (ed. 9). {i) Brown v. Radford, supra. (k) Hovenden v.Annesley, 2 Sch. & Lef. 607, 633 ; Lister v. Pick- ford, 34 Beav. 576 ; Churchcr v. Martin, 42 Ch. D. 312 ; Beckford v. TFade, 17 Ves. 89. (/) Lister v. Pickford, supra. STATUTES OF LIMITATION. 215 ference of law imposing a trust upon the conscience. All these four things must be found upon the coastruction of the instrument which has to he construed (m). Where trustees take possession of property, which does not pass under the instrument creating the trust, sect. 25 does not ■apply, as they are not trustees of that particular pro- perty {n). If the cestui que trust's rights are reversionary or in where cestui remainder, time will not commence to run as against him, '?'"'^''"^ ' " ' estate is a and in favour of the purchaser, until the reversion or re- future one. mainder has become an estate or interest in possession (o), or, if he be under disability, until the cesser of disability, or the death of the person under it {})). But the whole time in case of disability must not exceed thirty years from the first accrual of the right (q). If both the trustee and cestui que trust (r), or the where trustee trustee only (s), have been out of possession for the statu- ^^^^J'^^j^ll ^"'^ tory period both will be barred, though probably the cestui ^^een out of . possession. que trust in equity will be allowed any extended period for disability to which he would have been entitled had his title been a legal one (t). Sect. 25 does not apply to a resulting trust, to an im- Trusts to which s. 25 {m) Cunningham v. Foot, 3 223, 239 ; Thompson v. Simpson, App, Cas, 974, 984 ; Petre v. 1 Dru. & War. 459 ; Lewm on Petre, 1 Drew, 371, 393 ; Laio v. Trusts, p. 999 (ed. 9). Bagwell, 4 Dru. & War. 398 ; {p) S. 3 ; A.-G. v. Magdalen Drummond v. Sant, L. R. 6 College, supra. Q. B. 763; Sands to Thompson, (q) S. 5, ante,^). 211. 22 Ch. D. 614 ; Dawkins v. (r) Llewellyn v. Mackworth, 2 Fenrhyn, 4 App. Cas. 51 ; Salter Ec|. Abr. Cas. 578. V. Cavanagh, 2 Dru. & Walsh, (s) Pcntland v. StoJces, 2 Ball & 668. B. 68, 75 ; Hovenden v. Annesley, (7i) Yardley v. Holland, 20 Eti. 2 Sch. & Lef. 607, 629. 428. (0 Lewiii on Trusts, p. 988 (o) 37 & 38 Vict. c. 57, s. 2 ; (ed. 9). A.-G. V. Magdalen College, 18 Beav. does not apply. trust ill possession. 216 LAW OF EJECTMENT. plied trust, or to a constructive trust {u). A security in the form of a trust for sale is a mortgage within sect. 7 {x)^ and is not a trust within sect. 25 {y). Sect. 25 applies to- charities (s). Cestui que If the cestui que trust is let into possession by the trustee he becomes tenant at will to the trustee and the trustee's right to enter only accrues on the actual deter- mination of such tenancy at will («), and is not affected by the provision of sect. 7 (6). This, however, only applies where the cestui que trust is the actual occupant ; if he acts as bailiff for the trustee, and allows an occupier tO' remain in possession without payment of rent or acknow- ledgment to anyone for the statutory period, the trustee will lose his title {c). If the cestui que trust is in posses- sion under an implied trust it has been held that the case comes within sect. 7 (c?). Where the cestui que trust has. received the rents of the trust property, it is a question of fact in each case in what capacity he has received them^ whether as agent for the trustees or under a claim of right. If he have received them under a claim of right adverse to> the trustees and the other cestui que trusts, then the trustees and the other cestui que trusts are barred at the expiration of the statutory period (e). (it) 3 & 4 Will. 4, c. 27, s. 25 ; (a) Garrard v. Tuck, 8 C. B. Sands to Thomjoson, 22 Cli. D. 231 ; Drummond v. Sant, L. R. G 614 ; Petre v. Petre, 1 Drew, 371 ; Q. B. 763. Salter v. Oavanagh, 2 Dru. & Wal. (b) Ante, p. 205. 668. (c) Melling v. Leak, 16 C. B. («) 37 & 38 Vict. c. 57, s. 7, 652. repealing s. 28 of 3 & 4 Will. 4, {d) Doe v. Bock, 4 M. & Gr. c. 27. 30 ; Sands to Thompson, 22 Ch. (?/) Locking y. Parker, 8 Ch. 20. D. 614; see Drummond \. Santy {z) Magdalen College v. A.-G., 6 supra. 11. L. C. 189 ; Charity Commis- (e) Burroxujhs v. McCmght, 1 sioners v. Wyhants, 2 Jones & La. J. & L. 290. 182. STATUTES OF LIMITATION. 217 The Judicature Act, 1873, provides that no claim of a Jiulicature Act, 18/3, cestui que trust against his trustee for any property held s. 25. upon an express trust shall be held to be barred by any Statute of Limitations (/). Equitable rights are barred by the statutes to the same Equitable extent as they would have been barred had they been legal ^^ ' rights (g). The statutes do not interfere with any equitable juris- Acquiescence. diction to refuse relief, on the ground of acquiescence, to any person who has not been barred by the statutes (h). In cases of concealed fraud the equitable right of the Concealed person wdio has been deprived by such fraud accrues when the fraud is, or might with reasonable diligence have been, discovered (i). This, however, does not affect the rights o^ {i bond fide purchaser for value without notice of the fraud (i). It is a question of fact in each case as to what' is, or is not, concealed fraud {k). A purchaser for value who purchases through an agent who knows of the fraud, is not protected {I). Where a mortgagee obtains possession or receipt of the Mortgagor profits of any land or rent comprised in his mortgage, the |^^„gg"°^^* mortgagor or anyone claiming through him has twelve (/) S. 25, sub-s. 2, 36 & 37 Chefham v. Hoare, 9 Eq. 571 ; Vict. c. 66 ; App. B, p. ; see Ecclesiastical Commissioners v. Ee Cross, 20 Ch. Div. 109, 121. N. E. By., 4 Ch. D. 845, 860 ; (g) S. 24, 3 & 4 Will. 4, c. 27 ; Dean v. Tliwaite, 21 Beav. 621 ; Archbold v. Scully, 9 H. L. C. Trotter v. Maclean, 13 Ch. D. 360 ; Pugh v. Heath, 7 App. Cas. 574, 584 ; Daives v. Bagnall, 23 235. W. R. 690 ; Archbold v. Scully, (h) S. 27 ; Bedford v. Wade, 9 H. L. C. 360, 384 ; Willis v. 17 Ves. 89, 97 ; Eovenden v. Howe, [1893] 2 Ch. 545 ; Petre v. Annesley, 2 Sch. & L. 607, 633. Petre, 1 Drew, 371, 397 ; Sturgis {i) S. 26 of 3 & 4 Will. 4, v. Morse, 24 Beav. 541 ; Leicis v c. 27. Thomas, 3 Hare, 26 ; Manhy v. (k) Eains v. Buxton, 14 Ch. D. Bevriche, 3 K. & J. 342. 537 ; Vane v. Vane, 8 Ch. 383 ; {l) Vane v. Vane, supra. 218 LAW OF EJECTMENT. Mortgagee in possession. Acknow- ledgment of title. Porm of acknow- ledgment. AVhen to be made. By whom : 3'ears from that time, or from the last written acknowledg- ment of his title by the mortgagee to him or his agent, in which to redeem (on). The acknowledgment in order to be effectual must be an acknowleds^ment of the mortganjor's title or right to redeem (n). It must be made to the mortgagor or someone claiming his estate or to the agent of either (o). It must be in writing and signed by the mortgagee or person claiming through him (o), and the signature of an agent is not sufficient (o). An acknowledgment may be contained in letters signed by the mortgagee and sent to the mortgagor or his agent (p) ; but a mere recital in a deed of transfer to a third person that the mortgage is still subsisting is not sufficient (q) ; it may also be inferred from the fact that the mortgagee is keeping accounts (r). As the effect of the statute is to extinguish the right to the land at the expiration of the statutory period, an acknowledgment after the statutory period has expired will not restore the mortgagor's title (s) ; nor will an acknow- ledgment to the mortgagor after his bankruptcy have any effect (t). If there is more than one mortgagor, or person claiming {m) S. 7, 37 & 38 Vict. c. 57, repealing s. 28, 3 & 4 Will. 4, c. 27 ; Raffety v. King, 1 Keen, GOl, 610 ; see Browne v. Cork, 1 Dm. & Wal. 700; HodU v. Healey, Mad. & Geld. 181. {n) Truloch v. Bobey, 12 Sim. 402 ; Pendleton v. Booth, 1 Giff. 35. (o) Riclmrdson v. Younge, 6 Ch. 478. (p) Bichardsonv. Young, supra; Hodle V. Healey, Mad. & Geld. 181 ; Truloch v. Bohey, 12 Sim. 402 ; Sfunsfield v. Hobson, 16 Beav. 236 ; Thompson v. Bowyer, 9 Jur. N. S. 863. (2) LxLcas V. Dennison, 13 Sim. 584. (r) Balcer v. JVetton, 14 Sim. 426 ; Hodle v. Healey, supra. (s) Lyell V. Kennedy, 18 Q. B. D. 796, 814 ; Re Alison, 11 Ch. D. 284 ; Banders v. Sanders, 19 Ch. D. 373, in which Stansfield v. Hobson, 16 Beav. 236, was not followed ; Chapman v. Corpe, 41 L. T. 22. {t) Marhwick v. Hardingham, 15 Ch. D. 339. STATUTES OF LIMITATION. 219 through him, an acknowledgment given to any one of them Several . . iiiortfiifors. or his agent is as effectual as if given to all (u). If there is more than one mortgagee, or person claiming Several 1 • 111 ,1 f J 1 ■ laortoafjfees. his estate, an acknowledgment by one or more oi them is •effectual only against those giving it, and those claiming the mortgage money or land through them or entitled to interests after or in defeasance of their interests (u) ; such ■an acknowledgment does not give any right to redeem against any person entitled to any other divided or undivided part of the land or rent (n). When one or more of several mortgagees has given an acknowledg- ment and is entitled to one undivided part of the mortgaged land, and not to any ascertained part of the mortgage money, the mortgagor may redeem such divided part of the land on payment of a part of the mortgage money proportionate to the value of such divided part (x). "When several mortgagees are joint mortgagees, who joint mort- ■appear by the mortgage deed to advance the money upon S^s^es. a joint account as trustees, an acknowledgment by one of them is wholly ineffectual (y). The provisions of the section as to an acknowledgment by one of several mort- gagees apply only where they have separate interests in the money or the land (y). If joint mortgagees are not trustees they must almost of necessity be entitled to some distinct interests in the mortgage money {y). If a mortgagee takes possession, not as mortgagee, but Purcliase of as purchaser of the equity of redemption which happens to redemptiou be a life estate, time does not beijin to run against those ^^ "^°^'*' in remainder until the expiration of the life estate (s). If the mortgagee has been in possession of part of the Mortgagee (u) S. 7 of 37 & 38 Vict. c. 57. (z) RaffeUj v. King, 1 Keen, (x) S. 7 of 37 & 38 Vict. c. 57. 601 ; Hrjde v. Dallaway, 2 Hare, (y) Richardson v, Younge, 6 Ch. 528. 478. 220 LAW OF EJECTMENT. m possession of part of land. Where mort- gagor may redeem after statutory period. No saving for disabilities. Mortgagee not in pos- session : land for the statutory period, the right of the mortgagor to redeem that part is barred, though he held possession of the rest (a). The old rule was that no lapse of time Larred the right of a mortgagor to redeem the whole, pro- vided he held possession of part (6). A security in the form of a conveyance to the lender in trust for sale is a mortgage within the meaning of sect. 7 (c), and is not within sect. 25 (d). If by the terms of the mortgage the mortgagor may re- deem at any time duriug a period longer than the statutory period, Lord Cranworth thought that the statute did not apply so as to make mere possession by the mortgagee for the statutory period without acknowledgment a bar to re- demption (e). This statutory period of twelve years is absolute and is not extended by any disability on the part of a mortgagor, as sect. 3 (/'), which saves the rights of persons under dis- ability, does not apply {g). It was at one time doubted whether a mortgagee, who was not in possession or receipt of the profits within the statutory period, and to whom no acknowledgment under sect. 14 had been given, was not barred of his right to eject the mortgagor by reason of the j)rovisions of sects. 2 and 3 (h), for that his right had accrued more than twenty years previously {i). These doubts have been removed by (a) S. 7, 37 & 38 Vict. c. 57 ; Kinsman v. Eoicse, 17 Ch. D. 104. (b) Eakestraw v. Bruyer, Mose- ley, 189 ; Kinsman v. Rouse, siq)ra. (c) 37 & 38 Vict. c. 57. (d) Locking v. Parker, L. E. 8 Cli. 30; Be Alison, 11 Cli. D. 284. (e) Alderson v. White, 2 De G. & J. 97, 109. (/) 37 & 38 Vict. c. 57 ; s. 16 of 3 & 4 Will. 4, c. 27, is re- pealed. {g) Forster v. Patterson, 17 Ch. D. 132 ; Kinsman v. House, 17 id. 104. (Ii) 3 & 4 Will. 4, c. 27. {i)DoevJVilliams, 5 A.&E.291. STATUTES OF LIMITATION. 221 7 Will. 4, c, 28 (j), and now a person entitled to or claim- 7 Will. 4, ing under a mortgage of land, as defined by sect. 1 (k), may make an entry or bring an action to recover the land within twelve (l) years after the last payment of principal or interest (m). A purchaser of the mortgaged premises by convevance P^^'chaser from the mortgagee and the mortgagor is a " person gagee and claiming under any mortgagee " within the meaning of ° ° ' the statute (n). This enactment prevents a mortgagee, whose interest Effect of lias been regularly paid, from being barred, and makes c. 28. time begin to run only from the last payment of principal or interest (o). The payment of such principal or interest, Pajnnent of in order to come within the statute, must amount to an j^^ bv nior^" acknowledgment of the mortgagee's title ; it must, there- S^sor or * to o J > ageut. fore, be made by the mortgagor or his agent, or by some person liable to pay the principal and interest on his behalf (p), or by someone who, by the terms of the con- tract, can make a tender and from whom a tender must be accepted by the mortgagee for the defeasance or re- demption of the mortgage (q). A payment of rent to the Payment hy a tenant. mortgagee by the tenant of the mortgagor on notice from the mortgagee is not sufficient (r). When several estates in different counties are included in the same mortgagfe, a payment to the mortgagee, by the receiver appointed to Payment of interest by a receiver. 0") App. B, p. 331. (2)) Cann v. Tatjlor, 1 F. & F. (/,•) 3 e^ 4 Will. 4, c. 27. 651 ; Ames v.Mannering,26 Beav. (I) 37 & 38 Vict. c. 57, s. 9. 583 ; Newhould v. Smith, 33 Ch. (m) Doe y.Lightfoot,8 M.&W. D. 127 ; Harlock v. Ashberry, 19 553 ; JVilMnson v. Hall, 3 B. N. Ch. D. 539 ; Chinnery v. Evans, C. 508 ; Doe v. GileSy 5 Bing. 11 H. L. C. 115. 421. (q) Lewin v. Wilson, 11 App. (n) Doe v. Massey, 17 Q. B. Cas. 639. 373. (r) Harlock v. Ashberry, 19 (o) Hemming v. Blanton, 42 Cli. D. 539. L. J. C. P. 158. 222 LAW OF EJECTMENT. collect the rents, of interest out of the rents of one estate preserves the mortgagee's remedy against all (s). Mortgagee A mortgagee, to whom principal or interest has been trmesTec^ver P^^*^ within twelve years, may sometimes be able to re- though cover the land against a third person, though the mort- mortgagor ° barred. g^gor himself is barred, unless of course the mortgagor's title was barred when he mortgaged the premises (t). Title of The effect of an order for a foreclosure absolute obtained oTforedosiuc by a legal mortgagee is to vest the ownership in him, and absolute. ^^ „[yQ -]^[^ twelve years from such order in which to recover possession (u). Ecclesiastical An ecclesiastical or eleemosynary corporation sole must and eleemosy- ^^^q proceedins^s, after the right of action has accrued, nary corpo- r o ' o f rations solo, within the period during which two persons in succession have held the office or benefice in respect of which the land is claimed, and six years after the appointment of a third person, if such period amounts to sixty years or, if not, during the period of sixty years (x). Before this enactment ecclesiastical corporations were not affected by Statutes of Limitation, and no bishop or dean could do anything to bind their successors, Avithout the assent of the dean and chapter, nor could parsons or vicars without their patron's assent (y), but each successor had five years in which to make his claim or entry, and if he suffered that five years to pass he was bound during his own time (z). The special provisions of this section apply only to spiritual or eleemosynary corporation sole, and no other lay corporation can avail itself of these provisions (a). The (s) Chinner]] v. Evans, 11 H. 27. L. C. 115. {y) Plow. 538. (0 Ford V. Ayer, 2 H. k C. (2) Plow. 538 ; 4 Hen. 7, c. 279. 24 ; see Runcorn v. Cooper, 5 B. {u) Heath v. Pugh, 6 Q. B. D. & C. 696. 345 ; 7 App. Cas. 235. (a) Irish Land Commission v. (x) S. 29 of 3 k 4 Will. 4, c. Grant, 10 App. Cas. 14. STATUTES OF LIMITATION. 223 Ecclesiastical Commissioners, in whom the rights of certain spiritual corporations sole are vested by 3 & 4 Vict. c. 113, have, by virtue of sect. 7 of that Act, the same length of time as the corporation sole to whose rights they succeed had, within which to enforce their right to possession (h). If, however, the lay coi-poration have been in possession and have been dispossessed, they have only the same time as any other person (c). The Irish Land Commission, in whom the tithe rent- charge has become vested by virtue of the Irish Church Act, 18G9 (d), cannot in any case avail themselves of the provisions of sect. 29 even when the right accrued to the spiritual corporation sole to whose rights they suc- ceeded (e). Proceedings by a patron to recover the right to an ad- Advowson. vowson must be brought within the j^eriod during which three clerks in succession have held the same adversely to the right of the patron or some one through whom he claims, or the full period of sixty years, whichever is the longer (/). This section was afterv/ards applied to the case of a bishop claiming a right as patron to collate or bestow any ecclesiastical benefice (g). If, after possession Piesentatiou of an ecclesiastical benefice by a clerk adversely to the lapse or patron, the crown or ordinary present such clerk thereto "^''^^'•^^"'^*^- after a lapse, such clerk is deemed to have obtained pos- session adversely to the patron ; but if the clerk be pre- sented by the crown on the avoidance of the benefice by the promotion of the incumbent to a bishoprick, the in- (h) Ecclesiastical Commissioners (e) Irish Land Commission v. v. Rowe, 5 App. Cas. V36 ; dis- Grant, supra. sentiente Ld. Blackburn. (/ ) S. 30, 3 & 4 Will. 4, (c) Ecclesiastical Commissioners c, 27. V. Rowe, mpra. (g) 6 & 7 Vict. c. 54. {(l) 32 & 33 Vict. c. 42. 224 LAW OF EJECTMENT. Limit of time for recovery of advowson. Right extin- guislied ; and cannot be revived. curabency of the clerk so appointed is deemed a continua- tion of the incumbency of his predecessor Qi). Every person claiming a right to present, or an advow- son, by virtue of an estate which the owner of an estate tail in the advowson might have barred, is deemed to be a person claiming through the person entitled to such an estate tail, and the right to take proceedings is limited accordingly (i). No proceedings can be taken by a patron to recover an advowson after one hundred years from the time at which a clerk obtained possession adversely to the patron, unless a clerk subsequently obtain possession of the bene- fice on the presentation of the patron (/•). At the end of the period limited by the statutes the right and title of the person out of possession to the land or rent is extinguished (I). The former Statutes of Limi- tation merely barred the remedy and did not touch the right ; but under the present Acts, when the remedy is barred, the right and title of the real owner is extinguished, and a parliamentary conveyance is made of the fee simple to the party in possession (m). After the statutory period has expired, no written acknowledgment {n), payment of rent (o), re-entry {p), or ratification of acts done by a (/).) S. 31, 3 & 4 Will. 4, c. 27. (i) S. 32, 3 & 4 Will. 4, c. 27. (k) S. 33, 3 & 4 Will. 4, c. 27. (0 S. 34, 3 & 4 Will. 4, c. 27. (m) Incorporated Society v. Richards, 1 Dm. & War. 258, 289 ; Boiling v. Hobday, 31 W. R. 9 ; Doe v. Sumner, 14 M. & W. 39 ; Holmes v, Newlands, 11 A. & E. 44 ; Scott v. Nixon, 3 Dru. & War. 388 ; Chaj^man v. Cor^K, 41 L. T. 22 ; Lyell v. Kennedy, 18 Q. B. D. 796. (n) Sanders v. Sanders, 19 Ch. D. 373, 379; Re Alison, 11 Ch. D. 284, 296 ; Lyell v. Kennedy, supra; Markwiclc v. Hardinyham, 15 Ch. D. 339. (o) Lijcll V. Kennedy, supra. {p) Bryan V. Cowdal, 21 W. R. 693 ; Brassinrjton v. Llewellyn, 27 L. J. Ex. 297. STATUTES OF LIMITATION. 225 person before the statutory period had exph'ed (q), will restore the title which has been extinguished. An ancient quit-rent, whether payable in respect of a freehold (r) or copyhold (s), of which no payment or ac- knowledgment has been made for a period of twelve years, i^ at the end of that period extinguished (r). Although a I'ent-charge is extinguished at the end of the statutory period as a charge on the land yet, if there is a covenant for its repayment, the rights under that covenant would not be affected (t). Probably the possession for the period required bv the Possession . ^ . r 1 " fo^ statutory statutes to give a good title to a wrongful possessor must period by be either by one person or by several persons who claim g^^g^ ^'^^' the one from the other by will, descent, or convey- ance (u). The statute does not apply to Jamaica (x) ; turnpike tolls are not " land " (y) ; the poor of a parish are a class of persons within sect. 1 {z) ; tithe rent-charge created under 1 & 2 Vict. c. 109 is " rent " within sect. 1 (a) ; the statute does not apply to rent reserved on a demise under seal (6) ; "rent" includes all services and suits for which distress can be made, but the service demanded from a tenant of keeping a grindstone for the parish is not rent (c), (q) Lyell v. Kennedy, supra. 295. (r) De Beauvoir v. Owen, 5 (y) Mellish v. Brook, 3 Beav. Exch. 166 ; James v. Salter, 3 B. 22. N. C. 544 ; Irish Land Commis- (z) Magdalen College v. A.-G., sion V. Grant, 10 App. Cas. 14, 6 H. L. C. 189 ; see A.-G. v. 27. Bavey, 4 De G. & J. 136. (s) Howitty. Harrington, [1893] (a) Irish Land Commission v. 2 Ch. 497. Grant, 10 App. Cas. 14. [t) Manning v. Phelps, 24 L. {h) Grant v. Ellis, 9 M. & W. J. Ex. 62. 113. (w) Doe V. Barnard, 13 Q. B. (c) Doe v. Hinde, 2 M. & Eob. 945. 441. (x) Pitt V. Dacre, 3 Cli. D; W.Y.E. Q 226 LAW OF EJECTMENT. though sweeping the church and tolling the bell is {d) ; charities are within the Act though protected by- sect. 25 (e). (fl) Doe V. Benham, 7 Q. B. (e) Magdalen College v. A.-G., 976. supra ; A.-G. v. Davey, swpra. CHAPTER XXI. EVIDENCE. 1. Ownership, 227. 2. Notice to Quit, 230. 3. Breach of Covenant or Con- dition, 231. 4. Assignment or Subletting, 232. 5. Distress, 232. 6. Insufficient Distress, 232. 7. Eviction, 233. 8. Vacant Possession, 234. 9. Assent of Executor to Bequest of Leaseholds, 235. 10. Sunrise and Sunset, 235. 11. Authority of an Agent, 236. 12. E'^cf/if, 236. 13. Copyholds, 237- 14. Title of Parson, 237. 15. Title of Churchwardens, 238. 16. Will of Lands, 238. 17. Heirship, 240. 18. Deef^s ajifi Documents, 247. 19. ^?ra?-d, 251. ]. Oiunershi]:). Actual possession of the land (a), or receipt of the Posse.ssion. rents thereof (6), is prima facie evidence of seisin in fee, and is sufficient to maintain an action of ejectment; but this presumption may be rebutted by proof of title in someone else (66). The sum received as rent may, how- ever, be so small as to raise the presumption that it is merely a quit-rent (c). The receipt of the rents can be Receipt of shown by the production of receipts for rent which were («) Peaceable v. Watson, 4 Tannt. 16 ; Doe v. Dyhall, M. & M. 346 ; Doe v. Barnard, 13 Q. B. 945 ; Doe v. Penfold, 8 C. & P. 536 ; Asher v. WhitlocJc, L. E. 1 Q. B. 1, in which case Dixon v. Gaijfore, 17 Beav. 421, was com- laented on. \l)) Jayne v. Price, 5 Taunt. 326 ; Daintry v. Brocklehurst, 3 Exch. 207 ; Doe v. Martin, Car. & Mar. 32 ; Doe v. Stacey, 6 G. & P. 139 ; Doe v. Cooke, 7 Bing. 346. (bb) Doe V. Barnard, supra. (c) Doe V. Johnson, Gow, 173 : Erynolds v. Jieynolds, 12 Ir. E4. Rep. 172, 181. Q 2 228 LAW OF p:jectment. Acts of ownership. Declarations and admis- sions. in the custody of a deceased occupier {d), by entries made in the ordinary course of business by a deceased agent or someone else on his behalf, if signed by him (e), or by admissions of payment by an occupier (/). Payment of rent under a lease is prhiid facie evidence of title to the leasehold interest [g). The title to property may also by shown by evidence of unequivocal acts of ownership exercised over it, such as granting leases (li), which may be proved by production of the lessor's counterpart (i) ; cutting wood and felling timber {Ic) ; building upon the land or doing or paying for repairs {I) ; perambulating the land (m) ; or, in the case of a manor, holding courts and appointing keepers {n). Merely shooting over land or appointing keepers (o), or being assessed to the land tax {p), is not evidence of ownership of the land. When acts of ownership are exercised upon or in reference to land which is not the actual part in dis- pute it must be shown that the locus in quo and the land in dispute are part of one entire estate or district {q). The declarations or admissions of a deceased occupier or (d) Doe V. Savage, 1 Car. & K. 487. (e) Doe V. Stacey, 6 0. & P. 139; Doe v. Michael, 17 Q. B. 276. (/) Doe V. Beckett, 4 Q. B. 601 ; Hogg v. Norris, 2 F. & F. 246. {g) Bilcker v. Beeston, 1 F. & F. 685 ; Metiers v. Broxon, 1 H. & C. 686. (/i) Doe V. Puhnan, 3 Q. B. 622 ; Magdalen Hosjntal v. Knotts, 8 Ch. D. 709. (i) Cases in last note, and Homes v. Pearce, 1 F. & F. 283. ijc) Doe v. Arkwright, 5 C. & P. 575, 578 ; Ourzon v. Lomax, 5 Esp. 60. (0 Doe V. Clifford, 2 C. & K. 448 ; Jones v. Williams, 2 M. & W. 326. {m) JFoolway v. Bowe, 1 A. & E. 114. (n) Doe V. Heakin, 6 A. & E. 495. (o) Tyrwhitt v. Wynne, 2 B. & Aid. 554. {p) Doe V. Arkwright, 1 F. & F. 575. {([) Tyrwhitt v. Wynne, 2 B. & Aid. 554 ; Jones v. Williams, 2 M. & W. 326. EVIDENCE. 229 owner (7'), whether verbal or Avritten, as to the ownership of the land which he occupied, are admissible evidence for all purposes against all persons (s), and the admis- sions of an occupier, who is alive, are admissible evidence against any person who claims in respect of the same interest as the occupier who made the admission (t). Admissions of a tenant are not, however, admissible evi- dence to derogate from his landlord's rights (u). It must be shown that the person, whose declarations or admissions are sought to be proved, was in possession of the property to which the declaration or admission relates (x), and when necessary, that he is dead, not merely seriously ill (2/)- The ownership of land may also be proved by docum^en- Documentary tary evidence, such as title deeds, or secondary evidence thereof when admissible ; and by evidence of the mode in which the property has been enjoyed (5). A demise, grant or gift of property ijriind facie passes Parcel or . , . , no parcel. everything that belongs to it, though v/hether particular premises are or are not parcel of such property is a question of fact (a). The rule is that if a sufficient description of (r) Doe V. Coulthrcd, 7 A. & E. {t) TVoohvmj v. Rowe, I A. & 235 ; Gery v. Redman, 1 Q. B. D. E. 114. 161. (?0 R. V. Bliss, 7 A. & E. 550 ; (s) Peaceable v. Watson, 4 Papendick v. Bridgwater, 24 L. Taunt. 16 ; Grease v. Barrett, 1 J. Q. B. 289. C. M. & R. 919, 931; Doe v. {£) Peaceable v. Watson, 4 Arhv}rig'kt,bCk'P. bib; Mount- Taunt. 16; Doc v. Cartwright, 1 noy V. Gollier, 1 E. & B. 630, C. & P. 218. 640 ; Davies v. Pierce, 2 T. R. 53 ; {y) Harrison v. Blades, 3 Camp. Doe V. Langfidd, 16 M. & W. 457. 497, 514 ; R. v. Birmingham, 1 (,-) Doe v. Jordan, 4 C. »£ P. B. & S. 763 ; R. v. Exeter, L. R. 146. 4 Q. B. 341 ; Came v. Nicoll, 1 {a) Doe v. Burt, 1 T. R. 701 ; B. N. C. 430 ; Sly v. Sly, 2 P. D. Brown v. Armstrong, 7 Ir. Rep. 91 ; Higham v. Ridgivay, 2 S. L. C L. 130 ; Manning v. Fitz- C. p. 370 (ed. 9). gerald, 29 L. J. Ex. 24.; Francis- 230 LAW OF EJECTMENT. the premises is set out, a falsa demonstratio will be re- jected, but if the premises are described in general terms, and a particular description is added, the latter controls the former (6). If words are ambiguous or indeterminate they may be explained by parol (c), and evidence is admis- sible to prove the state and condition and the local names of the property demised, granted, or given {d) ; and any collateral facts may be proved from which the intention of the parties to include certain premises can be gathered {e), though the intention itself may not be given in evi- dence (/). Such collateral facts are, that the land was in the occupation of a certain person ( a declaration that the goods shall not be removed until the rent is paid (c) ; going over the premises and giving a written notice that goods are distrained (d) ; demand of rent and expenses of levj^ (e), have been held sufficient to create a distress. 6. Insufficient Distress (/). The plaintiff must prove that every part of the premises has been searched (g), unless he has been prevented by the (y) Doe V. Rickarhy, 5 Esp. 4. (c) Wood v. Nunn, 5 Bing. 10 ; (z) Doe v. Williams, 9 D. & E. Cramer v. Mott, supra, 30 ; Doe v. Durnford, 2 C. & J. (d) Swann v. Falmouth, 8 B. 667 ; Doe v. Eiclcarhj, siqnxt ; & C. 456. Doe V. Murless, 6 M. & S. 110; (e^ Hutchins v. Scott, 2 jNI, & Doe V. Payne, 1 Stark. 86 ; Paull W. 809. v. Simpson, 9 Q. B. 365 ; Wollas- (/) Common Law Procedure inn v. Hakewill, 3 M. & Gr. 297 ; Act, 1852 (15 & 16 Vict. c. 76)» Williams v. Heales, L. E. 9 C. P. s. 210 ; see App. B, p. 343 ; 177. County Courts Act, 1888 (51 & (a) Doe v. Rickarhy, supra. 52 Vict. c. 43), s. 139 ; see App. (6) Cramer v. Mott, L. E. 5 Q. B, p. 271. B. 357. {g) Price v. Worwood, 4 H. & EVIDENCE. 233 locking up of the premises or otherwise from entering to distrain, in which case that very fact is sufficient evidence that there was no sufficient distress (h). Although there may be sufficient goods upon the premises, yet there is no *' sufficient distress " to be found, within the meaning of the Acts, unless the goods are so visibly tliere that a broker going to distrain would, using reasonable diligence, be able to find them (i). The goods of a person put in by the landlord to take cai'e of the premises {k), goods privi- leged from distress, or goods protected by the Lodgers' Goods Protection Act (l), 1871, are not to be taken into account. The prospective value of growing crops, after deducting the expenses of getting them, must be taken into account (m). Evidence that there was no sufficient distress on any day after the right to re-enter accrued is sufficient (71). 7. Eviction. Anything done by the landlord, or by a person claiming through or under him, with the intention of depriving the tenant of the enjoyment of the whole or part (0) of the premises demised amounts to an eviction {p), such as letting the premises to another person {q) or permanently taking possession of the whole or part of the premises to the exclusion of the lessee (p). A mere temporary tres- N. 512 ; Rees v. King^ Forrest, Ex. 56. 19. {n) Doe v. Fuchau, 15 East, {h) Doe V. Dijson, M. & M. 286. 77 ; Doe v. Roe, 5 D. & L. 272 ; (0) U2)ton v. Tovmend, 17 C. Hammond v. Mather, 3 F. & F. B. 30 ; Smith v. Raleigh, 3 Camp. 151; Romilj/v. Fijcroft, ■iW.K26. 513; Salmon v. Smith,! Wins. (i) Doe V. Franks, 2 C. & K. Saunders, 204 (note 2). 678. (p) Upton V. Toivnend, siqva ; (k) Wheeler v. Stevenson, 6 H. Fellatt v. Boosey, 31 L. J. C. P. & N. 155. 281 ; Smith v. Raleigh, supra. (l) 3-4 & 35 Vict. c. 79. (q) Hall v. Burgess, 5 B. & C. (m) Ex parte Arnison, L. R. 3 332 ; Pellatt v. Boosey, supra. 234 LAW OF EJECTMENT. pass (r), or taking possessiou of deserted premises (s), or preveuting the tenant from using an easement which was not part of the premises demised {t), is not an eviction. It is always a question of fact whether particular acts amount By title to an eviction or not (u). Eviction by title paramount is paramount. when the tenant is actually turned out by, or compelled unwillingly to attorn to, a person lawfully entitled to tlie premises(a;); if the tenant goes out, or attorns by a voluntary arrangement, or pays rent, under a mere threat of distress, to another person (y), that is not an eviction (s). The evic- tion of an under-tenant is the eviction of the tenant (a). 8. Vacant Possession. If the tenant has retained possession of the premises personally or by a sub-tenant or agent, the possession is not vacant {b). If the premises are unoccupied (c), pulled down (d), or locked up (e), and no person or goods are in them and the whereabouts of the tenant cannot be found (/), or he is dead ((/), that amounts to vacant possession. Careful enquiries must first be made for the tenant, and (r) Hodgskin v. Queenborough, {z) Emery v. Barnett, 4 C. B. Willes, 129 ; Newby v. Sharpe, 8 N. S. 423. Ch. D. 39 ; Paradine v. Jane, (a) Burn v. Phelps, 1 Stark. Aleyn, 26 ; Hunt v. Cope, 1 94. Cowp. 242. {b) Doe v. Boe, 6 Dowl. 393 ; (s) Wheeler v. Stevenson, 6 H. Doe v. Roe, 7 Dowi. 326 ; Isaacs & N. 155. V. Diamond, W. N. (1880) 75. {t) Williams v. Haytvard, 1 E. (c) Doe v. Roe, 7 C. B. 125 ; & E. 1040. Doe v. Roe, 3 Dowl. 691. {u) Upton V. Townend, 17 C. {d) Doe v. Rue, 2 Dowl. 399, B. 30 ; Henderson v. Mears, 28 428. L. J. Q. B. 305. (e) Doe v. Code, 4 B. & C. 259. (x) Carpenter v. Parlcer, 3 C. B. (/) Doe v. Roe, 1 D. & L. 657 ; N. S. 206 ; Poole v. Whitt, 5 M. Doe v. Roe, 2 Dowl. 399 ; Doe v. & W. 571. Roe, 12 L. J. Q. B. 97. {y) Delaney v. Fox, 2 C. B. N. {g) Doe v. Roe, 2 Chit. 179. S. 768. EVIDENCE. 235 the premises be searched, as if anything is left upon them, such as beer in a cellar or hay in a barn, they are not vacant {It). 9. Assent of Executor to Bequest of LeaseJiolds. The assent may be either express, or implied from acts and conduct (i) ; and whether it has been given or not is a question of fact in each case (k). A very small matter is sufficient evidence (l) ; if an executor does any act which shows his assent that is sufficient, but if his acts are refer- able to his character of executor they are not evidence of assent to the legacy {7)i). If an executor is given a life interest, his entry upon the premises is not of itself evi- dence of an assent, but, if he takes an absolute interest, it is (n) ; assent to a bequest for life is assent to a bequest in remainder (n) ; appointing a day for handing over the premises to the legatee (o), or paying the rent of the premises and charging it to the legatee, are evidence of assent Qj). 10. Sunrise and Sunset. The almanack is not evidence as to the time of sunrise or sunset {q). It seems doubtful whether the time of sun- rise is to be reckoned from the first appearance of the beams of the sun above the horizon, or when the entire sun has emerged, but " persons who distrain should bear {Ji) Savage v. Dent, 2 Str. 1064. Stevenson v. Liverpool, L. E. 10 (i) Doe v. Sturcjes, 7 Taunt. Q. B. 81. 217. (o) Doe V. Guy, 3 East, 120. {k) Mason v. Farnell, 12 M. & {p) Doe v. Mahherley,Q C. & P. W. 674 ; Elliott v. Elliott, 9 M. 126 ; see also Williams' Exors. & W. 23. 1225—1239 (ed. 9). [1] Noel V. Robinson, 1 Vern. {q) Tutton v. Darke, 5 H. t&; N. 90. 647 ; Nixon v. Freeman, 5 H. & (m) Doe V. Sturcjes, supra. N. 652 ; Collier v. Nokes, 2 C. & (n) Doe v. Sturges, supra; K. 1012. 236 I^AW OF EJ]':CTMENT. in mind that a distress is to be made in the daytime, and they ought not to go so near the limits as to raise any doubt on the subject " (r). The time of sunrise or sunset may be proved by an expert from an observatory. 11. Authority of an Agent. An aofent, when for instance he demands rent or gives a notice to quit, must be authorised at the time he acts (-S') ; subsequent ratification of his act by his principal is suffi- cient if such ratification takes place before the time from which the act is to take effect {t). A general agent has a general authority {u), but the authority of a particular agent must be proved {u). An agent must notify his authority to the tenant, and if it is special must, if re- quired, produce it (i/;). A notice given by a general agent need not show his agency upon its face {y). A corporation may appoint its agent to give notices or to do other ordi- nary acts without giving him an authority under seal {z). 12. Elegit Elegit. An examined copy of the record in the action containing the judgment, the award of elegit and return of inquisition, is sufficient proof without proving the inquisition or the writ (a). If the record does not contain any memoran- (r) Tutton v. Darke, supra j (x) Roe v. Davies, 7 East, Nixon V. Freeman, supra. 763. (s) Roe V. Davis, 7 East, 363 ; {y) Jones v. Phipps, L. R. 3 Q. Jones V. Phipps, L. E. 3 Q. B. B. 567 ; Doe v. Walker, 14 L. J. 567. Q. B. 181. {t) Doe V. Walker, 14 L.J. Q. B. {z) Roe v. Pierce, 2 Camp. 96 ; 181 ; Doe v. Walters, 10 B. & C. Smith v. Birmingham Gas Co., 1 626 ; Doe v. Goldwin, 2 Q. B. A. & E. 526. 143; i?%/(,i V. Cit^/ie//, 5 East, 491, [a) Ramsbottom v. Buckhurst, (u) Jones V. Phipps, supra; 2 M. & S. 565. Doe V. Walker, supra. EVIDENCE. 237 dum of the award of a writ, the writ itself can be pro- duced (6). 13. Copyholds. Customs of a manor, whether as to descent or other Customs, matters, can be proved by entries in Court Rolls, without proving any instance in which they have been acted upon (c) ; or by reputation of the custom {d) ; or by in- stances in which they have been acted upon (e). Examined Court rolls, copies of the Court Rolls, if proved to be true copies (/), or copies under the hand of the steward (r/), can be used. Admittances and surrenders may be proved by entries in Admittances , P and sur- the Court Rolls, or by a certified copy thereof. lenders. 14. Title of Parson. The presentation of a parson to the bishop, if by parol, Presentation. may be proved by a person who was present and heard it (/i). Presentation by a corporation aggregate must be in writing under the common seal and must be proved by proof of the seal. Institution is not of itself evidence of presentation, though the fact of presentation be recited in the letters of institution, especially if induction or posses- sion has not followed. Institution may be proved by the Institution. letters testimonial of institution, or by the official entry in the public registry of the diocese, which ought regularly to record the time of institution, and on whose presenta- tion it took place, such an entry being also evidence of (6) Pad v. Tarpley, 9 A. & E. (/) Doe v. Coolce, 5 Esp. 221 ; 468. Scriven, 394. (c) JDenn v. Spray, 1 T. R. (g) Snoiv v. Cutler, 1 Keb. 466 ; Roe v. Parker, 5 T. R. 26, 567 ; Scriven, 394. 32. (h) R. V. Eriswell, 3 T. R. 707, {d) Doe v. Sisson, 12 East, 62. 723 ; B. N. P. 1U5 ; but see (e) Doe V. Brightwen, 10 East, Phill. Eccl. Law, 407 ; Wliite- 5S3. bead Cliurcb Law, 210. 2SS LAW OF EJECTMENT. Induction. presentation (?') ; or by other public records. Induction may be proved by a person who was present at the cere- mony, or by an endorsement on the mandate directed by the ordinary to the archdeacon ; or by the return to the mandate, if a return has been made {l"). A parson need not prove that he has taken the requisite oaths, or declared his assent to the Book of Common Prayer according to the Act of Uniformity (l). Possession and enjoyment of the benefice is ]irimd facie evidence of induction (m). Letters of institution reciting the cession of the parson's predecessor, followed by induction, are sufficient evidence of such cession {n). A parson need not prove the title of his patron (o). 15. Title of Cliiircliivardens. The fact that churchwardens have acted and are acting- as such can be shown by the evidence of parishioners, or otherwise, and is of itself sufficient proof that they hold the office of churchwardens without proof of their appoint- ment {p) ; though if there be an alleged custom to elect them at a select vestry, and they were so elected, evidence should be given of this custom {q). Contents 16. Will of Lands. The primary evidence of a will of lands is the will itself, and not the probate (r) ; if the will itself is lost, the ledger (i) B.. V. Ely, 8 B. & C. 112 ; 220 ; Heath v. Pnjji, 1 Ventr. Phill. Eccl. Law, p. 472. 14. (k) Pliill. Eccl. Law, p. 477. (p) Doe v. Barnes, 8 Q. B. (I) Powel V. Milbanh, 2 Will. 1037. Blac. 851. {q) Berry v. Banner, 1 Peake, (m) ChapvianY. Beard, 3 Anatr. 212. 942, (r) Doe v. Calvert, 2 Camp. (n) Doe V. Carter, By. & M. 387 ; Sly v. Sly, 2 P. D. 91 ; 237. Roscoe, N. P. p. 143 (ed. 16). (o) Snow V. Phillips, 1 Sid. EVIDENCE. 239 or register book of the Ecclesiastical Court, or an examined or office copy or any authenticated copy, have been ad- mitted as secondary evidence ; parol evidence of the con- tents of a lost or destroyed will is also admissible (s). The Execution. due execution of a will maybe proved by one of the attest- ing witnesses (t) ; if one or all of them cannot recollect whether the will was properly executed, or swear that it was not, evidence may be given to show that it was pro- perly executed (it). Due execution may be presumed if the usual form of attestation has been used, or may be found as a fact when the signature of the witnesses has been proved (x). If the witnesses are dead, this fact and their handwriting should be proved (y). If any one of the attesting witnesses can prove the due execution he must be called (;2:). A will thirty years old coming from the ^ ^?, ^ ^ -^ •' ® years old. proper custody will, like a deed, be presumed to have been duly executed (a). Formerly the thirty years were reckoned from the date when the will was executed (b)^ but whether that is so since the Wills Act, or whether the (s) Doe V. Calvert, 2 Camp. Buller v. Burt, cited 4 A. & E. 390, note ; Brown v. Broion, 8 15 ; I)oe v. Burdett, 4 A. & E. 1 ; E. k B. 876 ; Sucjden v. St. Croft v. Pawlett, 2 Stra. 1109 ; Leonard's, 1 P. D. 154 ; see see Wright v. Sanderson, 9 P. D. Woodward \. Goulstone, 11 App. 149. Cas. 469. {y) Andrew v. Motley, 12 C. {t) Longford v. Eyre, 1 P. B. N. S. 527, 532. Wms. 740 ; Belhin v. Sleats, 1 (?;) Oioen v. Williams, 32 L. J. Swa. & Tr. 148 ; Wright v. P. M. & A. 159 ; Coles v. Coles, Tatham, 1 A. & E. 3 ; B. N. P. L. K. 1 P. & M. 70 ; Bowman 264. V. Hodgson, L. E. 1 P. & M. (h) Lowe V. Jolliffe, 1 W. Blac. 362. 365 ; Wright v. Rogers, L. E. 1 (a) Doe v. Burdett, 4 A. & E. P. & M. 678 ; Croft v. Croft, 4 1 ; Andrews v. Motley, supra ; Swa. & Tr. 10. Doe v. Michael, 17 Q. B. 276. (x) Woodhouse v. Balfour, 13 (6) Doe v. Wolley, 8 B. & C. P. D. 2 ; Doe v. Davies, 9 Q. B. 22. 648 ; Wright v. Rogers, supra ; 240 LAW OF EJECTMENT. time is to be reckoned from the death of the testator, is doubtful {c). When probate When a will of lands has been proved in solemn form, is evidence. . t t i i or when its validity has been declared by a decree or order in a contentious cause or matter, the probate, decree, or order are conclusive evidence of its validity and contents (d), except as against the heir, or any person in respect of his interest in the land, if he has not been cited or made a party to the proceedings, unless he derives title under or through a person who has been cited or made a party (e). If it is necessary to prove the original will, a party may give ten days' notice of his intention to give in evidence the probate of such will, and the probate will be sufficient evidence of its validity and contents unless the party re- ceiving the notice gives, within four days of its receipt, a counter-notice disputing its validity (/). " Sufficient evi- dence" means only good iJrimd facie evidence, and the validity may be disputed though counter-notice has not been given {g). A notice under this section ought to be given to the solicitor, and not merely to the party (li). Will of ipjjg probate granted by the proper court is the proper evidence of a will of personalty, e.g., leaseholds, secondary evidence being admissible when necessary (/). 17. Heirship. Heirship may be proved by direct and express evidence, or, if this cannot be done, by reasonable evidence that no nearer heir can be found after due enquiries for nearer (c) See Ropcoe, N. P. 148 (ed. (r/) Barraclough v. Greenhougk, 16) ; Langdale v. Briggs, 8 De G. L. R. 2 Q. B. 612. M. & G. 391, 436. {h) Barrachugh v. Greenliough, (d) 20 & 21 Vict. c. 77, s. 62. supra. (e) Id. s. 63. {i) Roscoe, N. P. p. 143 (ed. (/) Id. s. 64. 16). EVIDENCE. 241 heirs have been made, by advertisement or otherwise, and that there has been no claim made by descendants of those who were in existence at a remote period (Jc). Births and the time thereof, marriages, deaths, and con- Births, xiiciri'itifes sanguinity generally, may be proved by hearsay, from and death's ; proper quarters, in pedigree cases (1) ; or by direct evi- ^nj'j'j'ji^y dence of eye-witnesses (^n). Death may be proved by entries in the register, or certi- Peath. fied or examined copies thereof (n), coupled with some evidence of identity (o). The receipt of a legacy under a will purporting to be made by the deceased is evidence of death Q?), but probate or letters of administration are »ot (q). Births, deaths, and marriages of Biitish officers and Abroad, or soldiers, out of the United Kingdom, are proved by Army Register Books (r). Births and deaths on board ship are proved by entries in the Marine Register Book (s). Mar- riages on board ship are proved by entries in the log-book, in cases where official log-books are required (t). Where a person has not been heard of for seven years Absence for 1 , 1 i 1 -111, 11 seven years. it IS presumed that such person is dead, but not that he died at any particular period within the seven years ; the (k) Greaves v. Greemcood, 2 Ex. (o) Doe v. Griffin, 15 East, D. 289 ; Richards v. Richards, 15 293 ; Parkinson v. Francis, 15 East, 294. Sim. 160. (/) Shields v. Boucher, 1 De G. {p) Doe v. Penfold, 8 C. & P. & S. 40 ; Re Lambert, 56 L. J. 536. Ch. 122; Haines v. Guthrie, 13 (q) Thomj)son y. Donaldson, 3 Q. B. D. 818 ; Re Thompson, 12 Esp. 63 ; Moons v. de Bcrnales, 1 P. D. 100 ; Palmer v. Palmer, 18 Russ. 301 ; but see French v. L. R. Ir. 192. French, 1 Dick. 268; Reilbjv.Fitz- (m) Limerick v. Limerick, 32 gerald, 6 Ir. Eq. Rep. 335, 349. L. J. P. & M. 92 ; Bain v. (»•) 42 & 43 Vict. c. 8. Mason, 1 C. & P. 202 ; R. v. (s) 37 & 38 Vict. c. 88, s. 37. Allison, R. & R. 109. (t) 17 & 18 Vict. c. 104, s. (?i) Roscoe, N. P. 124 (ed. 16). 282. W.Y.E. R 242 LAW OF EJECTMENT. omis of proving death at any particular time witliin the seven years lies upon the person alleging the death at a particular time (u). A person alive at any particular time is presumed to have been alive at any reasonable time afterwards (x). Survivorship. There is no presumption of survivorship between per- sons who meet their death by the same cause, whatever their ages or sex, but survivorship must be proved by direct evidence (y). Death without Death without issue will be presumed after the lapse of issue. '^ '■ a long period where there is no evidence to the contrary, such as the marriage of the deceased (z). Maninges. Marriages and the time and place thereof can be proved by entries in the register (a), or by certified or examined copies (a), and by declarations of the parties themselves (b), and of others who know the fact (c), or by general reputa- tion (d). The identity of the persons must be proved, and this Birth. may be done by proving their handwriting (e). The fact of birth may be proved by entries in the register of births or (m) Doe V. Nepean, 5 B. & Ad. Alsto7i, [1892] Prob. p. 142. 86 ; 2 Sm. L. C. pp. 610, 729 (ed. (s) Doe v. JFolley, 8 B. & C. 22, 9) ; lie Phenfs Trusts, 5 Ch. 27 ; Doe v. Griffi7u 15 East, 293 ; 139, 148 ; Ee Corhisldey, 14 Ch. Greaves v. Grecnivood, 2 Ex. D. D. 846 ; Re Leives, 11 Eq. 236 ; 289. 6 Cli. 356 ; Re Beasney, 7 Eq. (a) 6 & 7 Will. 4, c. 85 ; id. 498 ; Re Benhams' Trusts, 4 Eq. c. 86, s. 38 ; 1 Vict. c. 22 ; Sayer 416, 419 ; Hichman v. TJpsall, v. Glossop, 2 Exch. 409 ; Doe v. 20 Eq. 136 ; 4 Ch. D. 144 ; Andrews, 15 Q. B. 756 ; Doe v. Frudential Co. v. Edmonds, 2 Barries, 1 M. & Roh. 386. App. Cas. 487 ; Rhodes v. Rhodes, (b) B. N. P. 112. 36 Ch. D. 586. (r) Shedden v. A.-G., 30 L. J. (x) Re Phene^s Trusts, siqyra; P. & M. 217. Pearson v. A.-G., 53 L. T. 707, (d) S. C. ; Camphdl v. Cawp- 710. Ml, L. R. 1 H. L. Sc. 201. {y) Mason v. Mason, 1 Mer. (e) Birt v. Barloiv, 1 Doiig. 308, 312 ; Underivood v. JVing, 170 ; Bain v. Mason, 1 C. & P. 4 De G. M. & G. 633 ; TFing v. 202 ; Sayer v. Glossop, supra ; R. Angrave, 8 H. L. C. 183 ; Re v. Tolsou, 4 F. & F. 103. EVIDENCE. 243 baptisms (/) or by certified or examined copies thereof {g), or by declarations of the parents Qi). The time may be proved by memoranda of the parents {i). Entries in the registers of births or baptisms as to the time or place of l)irth are admissible in pedigree cases as an item of evidence, though little weight will be given to such entries if uncorroborated {h). They are, however, good evidence that the birth took place before the registration {I). It must be shown that entries in registers have been Entries in made by a person upon whom a public duty was imposed ° to make such entries, or whose duty it was to complete a transaction and to make an entry of it when completed {r)i). In all cases where certified or examined copies of registers are used it must be shown that the register is in its proper custody (71-). The general rule is that a child born in wedlock is pre- Legitimacy, sumed to be the child of the husband and to be legiti- mate (o). This presumption may be rebutted by evidence, which must be clear and conclusive, and not resting merely on a balance of probabilities, and must be such as to estab- lish in the minds of a jury the conviction that the child (/) 14 & 15 Vict. c. 99, s. 14 ; R. Ir. 184. R. V. Weaver, L. R. 2 C. C. R. {n) 14 & 15 Vict. c. 99, s. 14 ; 85. R. V. Weaver, L. R. 2 C. C. R. {(j) 52 Geo. 3, c. 146, s. 5, s. 6 ; 85. B. N. p. 247. (o) Morris v. Davies, 5 CI. & (7i,) Re Thompson, 12 P. D. 100. F. 163 ; Bosvile v. A.-G., 12 P. (t) i?oe V. iiawZwif/s, 7 East, 279, D. 177; Hawes v, Draeger, 23 290 ; Re Turner, 29 Ch. D. 985. Ch. D. 173 ; Lecjfje v. Edmonds, (Ic) Re Turner, supra ; see Doe 25 L. J. Ch. 125; Plowes v. V. Bray, 8 B. & C. 813. Bossey, 31 L. J. Ch. 681 ; Gard- {l) Re Wintle, 9 Eq. 373 ; R. ner v. Gardner, 2 App. Cas. 723 ; V. North Petheram, 5 B. & C. Banbury Peerage case, 1 S. & St. 508. 153 ; Hargrave v. Hargrave, 9 (?n) Lyell v. Kennedy, 56 L. T. Beav. 552 ; Atchley v. Sprigg, 33 647 ; Doe v. Andre^vs, 15 Q. B. L. J. Ch. 345 ; Aylesford Peerage, 756, 758 ; Ryan v. Kmg, 25 L. 11 App. Cas. 1. R 2 244 LAW OF EJECTMENT, was illegitimate (o). The onus of proving the illegitimacy of a child born in wedlock lies upon the person asserting it (|3). The presumption of legitimacy may be rebutted by evidence of non-access from want of opportunity (q), or of circumstances from which non-access may be inferred (r), such as adultery (s), concealment of the fact of pregnancy or of the birth of the child (t), the child taking the para- mour's name (u), recognition of the child as his own by the paramour (a?), reputation of illegitimacy in the family (2/), though not a general reputation of it (z), the incapacity of the husband (a), or that the child was begotten after a judicial separation (b). Neither the husband nor wife can prove non-access (c) ; nor are their declarations admis- sible to bastardize their child ((/), but they may be admis- (0) See note, preceding page. {]}) Ploives V. Bosseij, 31 L. J. Ch. 681 ; Banbury Peerage case, 1 S. & St. 1 53 ; Gardner v. Gardner, 2 App. Cas. 723. (g) Saye and Sele, 1 H. L. C. 507, 512 ; B. v. Luffe, 8 East, 193 ; Har grave v. Har grave, 9 Beav. 552. ()•) Bosvih \. A.-G., 12 P. D. 177 ; Morris v. Davies, 5 CI. & F. 163; Hawes v. Draeger, 23 Ch. D. 173 ; R. v. Mansfield, 1 Q. B. 444 ;. Ploioes v. Bossey, supra. (s) Cope V. CojJe, 1 M, & Rob. 269 ; R. V. Mansfield, 1 Q. B. 444 ; Morris v. Davies, 5 CI. & F. 163 ; Saye and Sele, 1 H. L. C, 5U7. {t) Morris v. Davies, supra ; Bosvile V. A.-G., 12 P. D, 177. («) Ha:ves v. Draeger, 23 Ch. D. 173 ; Atchley v. Spriqg, 33 L. J. Ch. 345 ; Goodright v. Saul, 4 T. R. 356. {j-) Morris v. Davies, supra. (y) Goodright v. Saul, supra. (z) Glenister v. Harding, 29 Ch. D. 985, 991. (a) Hargrave v. Hargrave, 9 Beav. 552 ; Legge v. Edmonds, 25 L. J. Ch. 125. (h) St. George^s and St. Mar- garet's, 1 Salk. 123 ; 1 Taylor on Evidence, p. 129 (8th ed.). (c) R. V. Sourton, 5 A. & E. 180 ; Copie v. Cope, 1 M. & Rol.. 269 ; Nottingham (Guardians) v. Tomkinson, 4 C. P. D. 343 ; Hamp V.Robinson, 16 L. T. 29 ; Atchley V. Sprigg, 33 L. J. Ch. 345 ; Burnaby v. Baillie, 61 L. T. 634 ; Haices v. Draeger, 23 Ch. D. 173, 178. (d) Cope V. Cope, supra ; Legge V. Edmonds, 25 L. J. Ch. 125 ; Atchley v. Sprigg, 33 L. J. Ch. 345. EVIDENCE. 245 sible as evidence of conduct to establish adultery (e) or to prove the paternity of the child if non-access is established aliunde (/). Declarations by a parent that the marriage was invalid (g), or that there was no marriage, or that the child was born before marriage, are admissible after the parent's death {Ji) ; a child's declarations as to its own illegitimacy are not admissible except as against itself (i). Illegitimacy may also be shown by entries in family bibles (k), or parish registers (I). Declarations whether oral or written may be given in Hearsay . , c 1 n ■ ^ • „ to prove evidence tor the purpose ot proving the existence ot relationship. relationship between members of a family (m), or that a certain person was or was not a relation of a family (lu), or the place where a person resided {n) ; they must be of matters within the declarant's own personal knowledge (o), or which he has heard from persons to whose statements he gave credit (o) ; the declarant, and any person whose statement he has repeated, must be shown by evidence dehors his declaration to be a blood relation of the family to which his declaration refers (p), or the husband, wife, or (e) The Aylesford Peerage, 11 13 Q. B. D. 818. App. Cas. 1. (?t) Eishton v. Nesbitt, 2 M. & (/) Leyge v. Edmonds, supra. Rob. 554. {g) ii*. V. jBra?7iZe!/, 6 T. R. 330 ; (o) Monhton v. A.-G., supra; Murray v. Milner, 12 Ch. D. Davies v. Lowndes, 6 M. & G. 845. 471, 527 ; Shields v. Boucher, 1 (/i.) Murray v. Milner, supra ; De G. & S. 40 ; The Lauderdale Goodright v. Moss, 2 Covvp. 591. Peerage, 10 App. Cas. 692, 706 ; [i) B. V. Bishworth, 2 Q. B. The Lovat Peerage, 10 App. Cas. 476. 763. (k) Berkeley Peerage case, 4 (p) Vowles v. Young, 13 Ves. Camp. 401. 140, 147 ; Doe v. Davies, 16 L. (0 Cope V. CojK, 1 M. & Rob. J. Q. B. 218; Monktonv. A.-G., 269 ; Glenister v. Harding, 29 supra ; Smith v. Tebhitt, L. R. 1 Ch. D. 985, 991. P. & D. 354 ; The Shrexoshury {m) Monkton v. A.-G., 2 R. & Peerage, 7 H. L. C. 1, 26 ; Pearson My. 247 ; Pearson v. A.-G., 53 v. A.-G., 53 L. T. 707, 709. L. T. 707, 709 ; Haines v. Guthrie, 246 LAW OF EJECTMENT. Marriage law. niotliei' of a member thereof {(j). The declarations must liave l.)een made before the controversy to which they are material arose (r), but may have been made with a view to any such controversy if and when it should arise (s) ; the declarant must be dead (t). Declarations may be contemporaneous entries in family bibles (u), or books (x) ; in letters or memoranda (y) ; in inscriptions on monuments (z), walls (a), tombs (6), pic- tures (c), hatchments (d), or rings (e) ; in recitals or state- ments in deeds (/), settlements (g), wills (A), drafts (i), or pedigrees produced from the custody of a family rela- tion (k). The general rule is that the law of the country where the marriage is solemnized decides all questions relating (q) Doe V. Harvey, E. & Moo. 297; The Aylesford Peerage, 11 App. Cas. 1. (r) Monkton v. A.-G., supra; Smith V. Tehhitt, supra; Walker V. Beaucharnp, 6 C. & P. 552 ; Lovat Peerage, 10 App. Cas. 763 ; Shedden v. A.-G., 30 L. J. P. & M. 217. (s) Monkton v. A.-G., su-pra ; Davies v. Loivndes, 6 M. & G. 627 ; Lauderdale Peerage, 10 App. Cas. 692 ; Berkeley Peerage, 4 Camp. 401. {t) Smith V. Tebhitt, supra; Pendrell v. Pendrell, 2 Str. 924 ; Johnson v. Lawson, 2 Bing. 86 ; Butler V. Mounfgarret, 7 H. L. C. 633, 648. (u) Monkton v. A.-G., supra; Berkeley Peerage, 4 Camp. 401, 416 ; Hubbard v. Lees, L. R. 1 E.x. 255. (x) Neal V. Wilding, 2 Str. 1151 ; Doe V. Bray, 8 B. & C. 813 ; May v. May, 2 Str. 1073. (t/) Butler V. Mountgarret, 7 H. L. C. 633, 648 ; Be Turner, 29 Ch. D. 985. (z) Kidney v. Cockburn, 2 R. & My. 167. (a) Slaney v. JFade, 1 My. & C. 338. {b) Monkton v. ^.-G., supra; Voivles V. Young, 13 Ves. 140. (c) Camoys Peerage, 6 CI. & F. 789. ((^) Hungate v. Gascoigne, 2 Coop. 405, 407, 414. (ej Voivles v. Young, supra/ Monkton v. A.-G., supra. (/) S?7iii/i- V. Te66iii, L. R. 1 P. & D. 354. (g) De Boos Peerage, 2 Coop 541. (/(-) i^oe V. Pembroke, 11 East, 504^ (i) Be Lambert, 56 L. J. Ch. 122. {k) Camoys Peerage, 6 CI. & F. 789. EVIDENCE. 247 to the validity of the ceremony by which the marriage is alleged to have been constituted, but the law of the domi- cile of the parties decides the personal capacity to contract a valid marriage {I). 18. Deeds and Documents. A document in writing which does not require attesta- Proof oF . . . . attestation, tion may be proved by admission or otherwise without calling the attesting witness if there be one {m). If attes- tation is necessary, one of the attesting witnesses must be called {n) ; and if this be impossible, as for instance if the onl}^ witness is insane (o), or dead (p), not merely ill (q), or out of the jurisdiction of the Court (r), or cannot be found (s), his handwriting may be proved; if he be blind he must be called (t). Where the attesting witness asserts that the instrument was never executed {u), or that he never saw it exe- cuted {x), or that he signed his name without being desired to do so (y), or if the name of a fictitious person is added as a witness (s), then evidence should be given to prove (l) Sottomayor v. De Barros, 3 East, 250. P. D. 1. (s) Gunliffe v. Sefton, 2 East, (wi) 17 & 18 Vict. c. 125, s. 26 ; 183 ; H^ooner v. Payne, 4 C. B. JFhymaii v. Garth, 8 Excli. 803 ; 328 ; Crosby v. Percy, 1 Taunt. Bowman v. Hodgson, L. R. 1 P. & 364. 1). 362. (0 Cronk v. Frith, 9 C. & P. {n) Gillies v, Sinither, 2 Stark. 197 ; Pedler v. Pai•). If a claim has been joined without leave, the de- fendant can enter a conditional appearance (L), and apply to have the writ set aside as irregular. After uncon- ditional appearance, it will be too late to make such an application (m) ; but the defendant can raise the point in his statement of defence (n). A plaintiff who has joined a claim without leave cannot cure the irregularity by his statement of claim, but must amend his writ (n). It is a inatter of discretion whether leave will be given or not, and in practice it is only given when the causes of action arise out of the same state of circumstances and are not (g) For the decisions previous 56 L. T. 483. to the atldition of tlie latter part (li) ComjJton v. Preston, 21 Ch. of this rule, see Tan-ell v. Slate D. 138. Co., 3 Ch. D. 629; JVood v. {i) Be Pilcher, U Ch.D. 905. Wheater, 22 Ch. D. 281 ; Har- \k) Musgrave v. Stevens, W. N. lock V. Ashberry, 19 Ch. D. 539 ; 1881, p. 163 ; Brandreth v. Shears, Hoar v. Loe, W. N. 1884, p. "W. N., 1883, p. 89. 241 ; SutcUffe v. JFood, 50 L. T. [1) Ord. XII. r. 30. 705 ; JVithall v. Nixon, 28 Ch. (m) Mulckern v. Doerks, 53 L. 1). 413. Since the addition the J. Q. B. 527. decisions are :— Salter v. Edgar, {n) Wilmot v. Freehold House 54 L. T. 374 ; Lacon v. Tyrrell, Co., 51 L. T. 552. 262 LAW OF EJECTMKNT. totally different (o). Leave has been given to join the following claims : a claim for administration of the per- sonal estate of the intestate whose realty is sought to be recovered ( p) ; for delivery up and cancellation of a deed relating to the land {q) ; for damages for assault by the defendant in entering upon the land (7-) ; for a re-convey- ance (s) ; for a receiver, though in this case the Court said that leave was probably unnecessary {t). No leave is re- ([uired to join a claim for an injunction restraining inter- ference with the land (ii), or restraining breaches of cove- nants in a lease under which the property was demised to the defendant {x). Orel. XIX. V. 4. Every pleading shall contain, and contain only, a state- PleaLlinj^s. ment in a summary form of the material facts on which the party pleading relies for his claim, but not the evi- dence (y) by which they are to be proved. Statement of The statement of claim in actions for the recovery of land is subject to the same rules as every other statement of claim (0). It must show a good 'privid facie title to the land, deducing that title through every stage from the last person through whom the plaintiff claims and who had possession under a claim of title ((/)• It need only allege the fact of possession by the defendant (/j). If the plain- (0) Re Pilcher, supra. (x) Bead v. JFotton, [1893] 2 {p) Kitching v. Kitching, 24 Ch. 171. W. K,. 901 ; Cook v. Enchmarch, {y) Evelyn v. Evelyn, 42 L. T. 2 Ch. D. 111. 248. (g) Cook V. Enchmarch, supra. (2) Philips v. Philips, 4 Q. (r) Dennis v. Grompton, W. N, B. D. 127, 132. For Forms, see (1882) p. 121. App. A, p. 288. (s) Manisty v. Kenealy, 24 W. (a) Philips v. Philips, supra ; R. 918. Davis v. James, 26 Ch. D. 778 ; {t) Allen V. Rennet, 24 W. R. Hodgins v. Hickson, 39 L. T 845 ; Kendrick v. Roberts, 46 L. C44. T. 59. {b) Hodgins v. Hic/cson, supra. [u) Kendrick v. Roberts, supra. claim. PRACTICE IN THE HIGH COURT. 2(j:i tiff is seekiug to recover possession as landlord lie need only show the creation of the tenancy and its determina- tion, and, if he is not the original lessor, how the re- version devolved upon him from the original lessor. No defendant in an action for the recovery of land who Onl. XX [. V 21 IS in possession by himself or his tenant need plead his •iii-ir • Defence, title, unless his defence depends on an equitable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence, that he is so in possession, and it shall be taken to be implied in such statement that he denies, or does not admit the allegations of fact contained in the plaintiff's statement of claim. He may, nevertheless, rely upon any ground of defence which he can prove, except as hereinbefore mentioned. A statement of defence need only state that the defend- ant is in possession, unless he relies upon an equitable de- fence. Any equitable defence must be pleaded fully by stating all material facts (c). It seems clear from the very words of this rule that the Statute of Limitations need not be pleaded (d), it not being an equitable defence. There is no rule that a counter-claim cannot be pleaded Countev- to an action for the recovery of land, but, on the contrary, Order XIX., rule 3, allows such a counter-claim subject to the discretion of a Court or judge to exclude it. In prac- tice a counter-claim will probably not be excluded if it arises out of the same circumstances as the claim, or if there is a claim for mesne profits or other sum of money (e). (c) Sutdiffe v. James, 40 L. T. gerald v. Day, 6 L. R. Ir. 326 ; 875. Hildicje v. Farreli, 8 L. R. Ir. (rf) Dawkins v. Penrhyn, 4 158 ; Carew v. Christopher, id. App. Cas. 51. 252. (e) See Ord. XIX. r. 3 ; Fitz- 2(J4 LAW OF EJECTMENT. Old. XXVII. r. 7. Default of defence. Ord. XXVII. r. 8. Ord. XXVII. r. 9. Defence as to part only of claim. Ord. XXXI. Discovery. In an action for the recovery of land, if the defendant makes default as mentioned in rule 2 [in delivering a defence] the plaintiff may enter a judgment that the person whose title is asserted in the writ of summons shall recover possession of the land with his costs. Where- the plaintiff has indorsed a claim for mesne profits, arrears of rent, or double value in respect of the premises claimed, or any part of them, or damages for breach of contract upon a writ for the recovery of land, if the defendant makes default as mentioned in rule 2, or if there be more than one defendant some or one of the defendants make such default, the plaintiff' may enter judgment against the defaulting defendant or defendants and proceed as men- tioned in rules 4 and 5. If the defendant deliver a defence which pui'ports to offer an answer to part only of the plaintiff's alleged cause of action, the plaintiff may by leave of the Court or a judge enter judgment final or interlocutory, as the case may be, for the part unanswered ; provided that the unanswered part consists of a separate cause of action, or is severable from the rest. Provided also that where there is a counter-claim, execution on any such judgment as above mentioned in respect of the plain- tiff's claim shall not issue without leave of the Court or a judge (/). The plaintiff in an action for recovery of land is entitled to discovery from the defendant by interrogatories (r/), and by affidavit of documents (h). The defendant may refuse to answer as to any facts, and to produce any documents, which relate solely to his own title, and do not in any way tend to prove or support the plaintiffs case (^i). Defen- (/) Gosset V. Camj)hcll, W. N. (77) 134. (g) Lyell v. Kennedy, 8 App. Cas. 217. (/(,) New British Co. v. Peed, 3 C. P. D. 196; Wrentmore v. Hcujley, 46 L. T. 741. (i) Roberts v. Opi)enheim, 26 PRACTICE IN THE HIGH COUllT. 265 dantSjWho are purchasers for valuable consideration without notice of the plaintiff's title, are not thereby protected from giving discovery (k). Discovery will not be granted unless the Court is satisfied that the plaintiff has a reason- able cause of action, and probably never before statement of claim is delivered (l). If, when a trial is called on, the plaintiff appears, and Ord. XXXVI. the defendant does not appear, then the plaintiff may ^- ^•^• prove his claim, so far as the burden of proof lies upon him. Under the old practice, if the defendant did not appear at the trial, the plaintiff in an action of ejectment Avas entitled to recover without any proof of title (n). A judgment for the recovery or for the delivery of pos- O^d. XLII. session of land may be enforced by writ of possession. Execution A judgment or order (o) that a party do recover otj. XLVII. possession of any land may be enforced by writ of posses- ^* sion in manner before the commencement of the principal act used in actions of ejectment in the superior courts of common law. Where by any judgment or order any person therein Ord. XLVII. named is directed to deliver up possession of any lands to " ' some other person, the person prosecuting such judgment or order shall, without any order for that purpose, be en- titled to sue out a writ of possession on filing an affidavit showing due service of such judgment or order and that the same has not been obeyed (|>). Ch. D. V24 ; Lyell v. Kennedy, repealed by Statute Law Revision supra ; Horton v. Bott, 2 H. & N. Act, 1883 (46 & 47 Vict. c. 49). 249 ; Emmerson v. Ind, 33 Ch. (o) JVithall v. Nixon, 28 Ch. D. 323 ; 12 App. Cas. 300. D. 413 ; General Share Co. v. (k) Emmerson v. Tnd, supra. Wetley Co., 23 Ch. D. 260. (l) Philips V. Philips, 40 L. (^>) Hall v. Hall, 47 L. J. Ch. T. 815. 680. (n) C. L, P. Act, 1852, s. 183, 266 LAW OF EJECTMENT. Onl. XLVII. Upon any judgment or order for the recovery of any land and costs, there may be either one writ or separate writs of execution for the recovery of possession and for the costs at the election of the successful party. The plaintiff will be allowed to issue a writ of possession though his estate has terminated since the commence- ment of the action, unless the defendant show affirmatively that it will be unjust and futile to issue such writ (q). The sheriff is allowed a reasonable time within which to execute the writ ; he cannot refuse to execute it if re- quired to do so, and if he has an opportunity and is not prevented (r). The plaintiff must point out the premises and the sheriff must deliver them to him at the plaintiff's peril (s). If the plaintiff has recovered possession of the whole, the sheriff must put him in possession of the whole by turning everyone out ; if of an imdivided portion, the sheriff must only put liim in possession of that portion (t). If the sheriff puts him in possession of a part only, the ^jlaintiff may have a new writ for the rest (u). When possession has once been peaceably given, the plaintiff cannot have a fresh writ if the defendant retakes posses- sion (x), unless the first execution of the writ has in reality been defeated by the defendant immediately retaking pos- session forcibly (y) ; and not even then if the rights of the parties have been changed. stayiii? Proceedings will be stayed in a subsequent action for inoceedmgs ^]^q recovery of land until the costs of a prior action are (q) K^iujht V. Clarke, 15 Q. B. [t) Doe v. DaiDson, 3 Wils. 49 ; D. 294. Doe v. King, 6 Exch. 791, 793. ^ (r) Mason v. Paynter, 1 Q. B. (h) Devereux v. Underhill, 2 974, 981. Keb. 245. (s) Gottingham v. King, 1 Burr. {x) Doe v. Roe, 1 Taunt. 55. (•.29 ; Connor v. West, 5 Burr. {y) Doe v. Roe, 2 Dowl. N. S. :-(i72 ; Doe v. Wilson, 2 Stark. 407 ; Kingsdah v. Mann, 6 Mod. 477. 27 ; Doe v. Roe, 9 Dowl. 971. PRACTICE IN THE HIGH COURT. 2G7 paid, if the subsequent action is brouf^ht to litigate the until pay- If J'l'^'it of costs same title as the prior action (z) ; unless the result or of previous tlie prior action was caused by fraud or perjury, or arose from some miscarriage for which the defeated party was not responsible (a). It is not necessary that the parties or the premises should be the same as in the prior action, if the same title is in substance in issue (b). The length of the time which has elapsed between the first and second action is immaterial (c). The costs in an action for the recovery of land are sub- Costs. ject to the same rules as the costs in other actions (d). If a plaintiff claims several closes and recovers some only, the verdict and judgment are distributive, and, if the costs follow the event, the defendant will be entitled to costs caused by the claim for those closes in respect of which the plaintiff failed (e). (?.') Harvey v. Baker, 2 Dovvl. N. S. 75; Doe v. Roe, 4 East, 585 ; Doe v. Stevenson, 3 B. & P. 22 ; Doe v. Alston, 1 T. R. 491. (rt) Doe V. Btandish, 2 Dowl. N. S. 26 ; Short v. King, 2 Str. 680 ; Tichhorne v. Mosiijn, L. R. 8 C. P. 29. {b) Tichborne v. Mostyn, supra Doe V. Harland, 10 A. & E. 761 Doe V. Roe, 8 Dowl. 444, 449 Doe V. Roe, 8 T. R. 645 ; Doe v. Roe, 5 B. & Ad. 878 ; Doe v. Law, 2 W. Blac. 1180 ; Doe v. Hatherley, 2 Str. 1152 ; Doe v. Bather, 12 Q. B. 941, 948 ; Keene V. Angel, 6 T. R. 740. (c) Tichborne v. Mostyn, supra ; Keene v. Angel, supra. (d) Ord. LXV. r. 1. (c) Jones V. Curling, 13 Q. B. D. 262. CHAPTER XXIIL ACTION IN THE COUNTY COURT. 1. Ordinary Action for Re- j 2. Actio7i by Landlord to Re- covery of Land, 268. I cover Possession, 214. 1. Ordinary Action to Recover Land. County Coiuts The jurisdiction of county courts in actions for the re- ^*^56^^ covery of land is now such as is conferred upon them by the County Courts Act, 1888 (a). By sect. 56 of that Act it is provided that " except as in this Act provided, the Court shall not have cognizance of any action of ejectment, or in which the title to any corporeal or incorporeal here- ditaments (b), or to any toll, fair, market or franchise shall y gg be in question ;" and sect. 59 confers jurisdiction as follows: Jurisdiction " All actions of ejectment, where neither the value of the m ejec men -. jj^j^ds, tenements, or hereditameuts, nor the rent payable in respect thereof, shall exceed the sum of i;50 by the year may be brought and prosecuted in tlie Court of the district in which the lands, tenements or hereditaments g go, are situate." It is further provided by sect. 60 that " a judge shall have jurisdiction to try any action in which the title to any corporeal or incorporeal hereditaments shall come in question where neither the value of the (a) 51 & 52 Vict. c. 43 ; see Denn, 2 B. & P. 247 ; Harris v. App. B, p. 3G9. I)avison,l5 Sim.128, 134 ; Baddely (b) As to what is a heredita- v. Denton, 4 Excli. 504 ; Stephen- ment, see : — Tomkins v. Jones, son v. Raine, 2 E. & B. 744 ; 22 Q. B. D. 599 ; Chew v. Hoi- Lloyd v. Jones, 6 C. B. 81 ; Co. royd, 8 Exch. 249 ; Moor v. Litt. 6 a. ACTION IN THE COUNTY COURT. 269 lauds, tenements or hereditaments in dispute, nor the rent payable in respect thereof, shall exceed the sum of i'oO by the year, or in case of an easement or licence, where neither the value nor reserved rent of the lands, tenements or hereditaments in respect of which the easement or licence is claimed, or on, through, over, or under which the ease- ment is claimed " shall exceed MoO a year. It will be seen that if either the rent or the value ex- Rent, ceeds £50 a year, the county court has no jurisdiction. Value. The value of the lands means their actual marketable value, and the best criterion of this is the rent which would be paid by the tenant in occupation (c). The rent " payable in respect of the lands " means the rent payable between the litigant parties, and not that payable to the defendant by a sub-tenant, though this latter is strong, but not conclusive, evidence of the value (d), and such rent must be payable in respect of the actual premises in dispute (e). If the county court judge decides upon evidence that he has jurisdiction, his decision is final, unless he has arrived at his decision under a mistake of law (/). If the defendant has failed upon a summons for prohibition, he cannot afterwards raise the question of rent or value at the trial (g). The defendant in any action of ejectment within the s. 59. jurisdiction of the Court may, by sect. 59, " within one Removal of , . p . I. , action to month from the day of service of the summons, apply to a High Court. judge of the High Court at Chambers for a summons to (c) Elsto7i V. Rose, L. E. 4 Q. J. Q. B. 228. B. 4 ; see, too, Crowley v. Vitty, (/) Br axon v. Cocking, L. R. 3 7 Exch. 319. Q. B. 672. {(I) Broivn v. Cocking, L. R. 3 {g) Syinons v. Rees, 1 Ex. J). Q. B. 672. 416. ((,') Stolworthy v. Powell, 55 L. 270 LAW OF EJECTMENT. What claims may be joined ■with eject- ment. Particnlars of claim. Service of summons. Where vacant posses.sion. the plaintiff to show cause wliy such action .shoukl not be tried in the High Court on the ground that the title to lands or hereditaments of greater annual value than ±'50 would be affected by the decision in such action ; and on the hearing of such summons, the judge of the High Court, if satisfied that the title to other lands would be so affected, may order such action to be tried in the High Court, and thereupon all proceedings in the Court in such action shall be discontinued." No cause of action shall, unless by the leave of the judge or registrar, be joined with an action for the recovery of land, except claims in respect of mesne profits, or arrears of rent, or double value in respect of the premises claimed, or any part thereof, or damages for breach of any contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed (It). In all actions for the recovery of laud, the particulars shall contain a full description of the property sought to be recovered, and of the annual value thereof, and of the rent, if there be any, fixed or paid in respect thereof {i). "The summons in an action to recover lands under sect. 59 should, in order to insure its service, be delivered to the bailiff forty clear days at least before the return day, and shall be served thirty-five clear days before the return day thereof" (k). " Service of the summons in an action to recover land may, in case of vacant possession (l), if it cannot otherwise be effected, be made by posting a copy of the summons (h) County Court Rules, 1889, Ord. IV. r, 1. See notes on the same nlle in the High Court, p. 260. (i) Id. Ord. VI. r. 4. (Ic) Ord. VII. r. 7. This is altered from the old rule ; see Barker v. Palmer, 8 Q. B. D. 9. (Z) Seep. 234. ACTION IN THE COUNTY COURT. 271 upon the door of the dwelling-house or other conspicuous part of the premises " ('i)i). " Any defendant in an action to recover lands may at r.'onl'o.ssion 1 c ,1 1 1 r- , 1 • by deremlaiit anytime before the return day, contess the action as to oi' claim. the whole or any part of the lands by signing in the pre- sence of any registrar or of one of his clerks, or of a solicitor, and attested by the person in whose presence it is signed, an admission of tlie title of the plaintiff to the lands or to the said part thereof, and of his riglits to the possession thereof; and the registrar shall upon receipt of such ad- mission further give notice thereof by post to the plaintiff, and the Court may on the return day upon proof of the signature of the de/endant to such admission by affidavit or otherwise, in case the same is not attested by a registrar or his clerk, and without any further proof of the plaintiff's title (if no defendant other than the defendant signing such admission defends for the said lands or the said part thereof) give judgment for the plaintiff for the recovery of possession and for costs : Provided that, if the plaintitf receive notice of such admission before the return day, he shall not be entitled as against any defendant signing to any costs incurred subsequently to the receipt of such notice except the costs of attending the Court on the return diiy, unless the Court shall otherwise order. Pro- vided also that where the admission is not signed by all the defendants defending for the said lands, or the said part thereof, the trial shall proceed against all the defen- dants who shall not have signed, as if no admission had been signed " (n). " In actions for the recovery of land any person not Person not named as a defendant in the summons may by leave of defendant the judge or registrar be allowed to appear and defend on "^''^y'Mn'eai-. (m) Ord. VII. r. 21. See p. 2.J4. (7;) Ord. IX. r. 6. 272 LAW OF EJECTMENT. Tenant must give notice of the action to Ids lamUonl. Xotice limit- ing defence to part of property. filing twelve clear days before the return day, an affidavit together with as many copies thereof as there are plain- tiffs and defendants, showing that he is in possession either by himself or his tenant of the property or some part thereof mentioned in the particulars (such part being described in the affidavit with reasonable certainty), and upon such affidavit being filed, the registrar shall enter the name, address, and description of the person filing the same in the plaint book as a defendant in addi- tion to the name of every person originally made defen- dant ; and shall ten clear days before the return day give notice, according to the form in the appendix, or other- wise, to the plaintiffs and the original defendants, that the person filing the affidavit has filed the same and will appear and defend at the trial of the action, annexing to each notice a copy of the affidavit. In all subsequent pro- ceedings in the action, the person filing the affidavit shall be named as a defendant (p). By the Common Law Procedure Act, 1852, "Every tenant to whom any writ in ejectment shall be delivered, or to whose knowledge it shall come, shall forthwith give notice thereof to his landlord, or his bailiff or receiver, under penalty of forfeiting the value of three years im- proved or rack rent of the premises demised or holden in the possession of such tenant, to the person of whom he holds, to be recovered by action in any court of common law having jurisdiction for the amount " (q). " In actions for the recovery of land any defendant may, twelve clear days before the return day, file with the regis- trar a notice in writing, according to the form in the ap- pendix, signed by himself or his solicitor, that he intends ip) Ord. X. r. 4. (q) 15 & 16 Vict. C.76, s. 209 ; see App. B, p. 343. ACTION IN THE COUNTY COURT. 273 to limit his defence to a part only of the property men- tioned in the particulars, describing that part in such notice with reasonable certainty, and the registrar shall ten clear days before the return day send the same by post to the plaintiff" (r). " Actions for the recovery of land or tenements or to Trial by a enforce any right relating to lands, or for the recovery of any damages in respect of any such right, may at the instance of either party be tried by a jury " (s). " Where in an action to recover land, or any damages in Plaintiffs _ title expiring respect of any right relating to land, the title of the plain- before return tiff shall appear to have existed, as alleged in the summons, *^ ^^' at the time of the entry of the plaint, but to have expired before the return day, the plaintiff shall be entitled to judgment according to the fact that he was so entitled, and for his costs of the action, unless the judge shall other- wise order" (t). " A judgment or order for the recovery of or for the de- Execution, livery of the possession of land, may be enforced by warrant of possession which shall be according to the form in the appendix " (u). "Where in an action to recover land judgment is given for the plaintiff execution may issue upon a day to be named in the judgment, and if no day be named, then it may issue after the expiration of fourteen clear days from the day on which judgment shall have been given " (x). "Where in an action to recover land judgment has been obtained for the recovery of possession and costs, there may be either one warrant or separate warrants of (r) Ord. X. r. 5. Form, see p. 266, for the same rule in the App. A, p. 289. High Court. (s) Ord. XXII. r. 3. («) Ord. XXV. r. 45. (t) Ord. XXIII. r. 10. See (x) Id. r. 46. W.Y.E. T 274 LAW OF ejf:ctment. 51 & 52 Vict. c. 43, ss. 138 and 139. Small tene- ments. Rein ti on ship of lanillord and tenant must be clear. execution for the recovery of possession and for the costs, at the election of the plaintiff" {y). "Where in an action to recover land judgment is given for the defendants or any of them with costs, execution may issue for the costs on the day named in the judgment, and if no day be named then at the expiration of fourteen clear days from the day on which judgment shall have been given " {z). " When an order is made for the recovery or for the delivery of the possession of land to any person, the warrant of possession shall not be issued by the registrar without evidence by affidavit of service of the order and disobedience thereto " (a). 2. By Landlord to Recover Possession. Besides the ordinary jurisdiction in ejectment, county courts have also jurisdiction in actions for the recovery of possession of tenements of comparatively small value by landlords against their tenants, which is conferred by sects. 138 and 139 of the County Courts Act, 1888 (6). The first of these sections deals Avith tenancies which have expired, or have been determined by notice to quit, and the other with tenancies where half a year's rent is in arrear and there is a right of re-entry for non-payment. Proceedings under these sections can only be taken when it is clear that the ordinary relationship of landlord and tenant exists (c), and not when the relationship is only such as exists between mortgagee and mortgagor {d). If, ((/) Ord. XXV. r. 47. (z) Id. r. 48. (a) Id. r. 49. (h) 51 & 52 Vict. c. 4.3. These sections are substituted for ss. 50- 52 of 19 & 20 Vict. c. 108, which is now repealed. (c) Pearson v. Glazebrook, L. R. 3 Ex. 27 ; Jones v. Oiven, 5 D. & L. 669 ; Banks v. Eebbeck, 2 L. M. & P. 452 ; Jones v. Thomas, 4 L. T. 210. [d) Jones V. Oiven, mpra. ACTION IN THE COUNTY COURT. 275 therefore, a bond fide dispute arises as to the existence of this relationship the jurisdiction of the county court judge under these sections is ousted ( by reason of the person who sued out the summons having had no lawful right to the possession of the premises (t). of Neither the landlord nor his agent is deemed a tres- passer because of any irregularity or informality in the mode of proceeding for possession under this Act, if at the time of applying for the warrant the landlord had a lawful right to possession; but the party aggrieved can sue for such irregularity or informality and recover for any special damage, provided it be claimed, and costs (u). If the special damage laid is not proved, the defendant is entitled to a verdict, and if proved but assessed at less than five shillings, the plaintiff can have no more costs than damages unless the judge certify for full costs (u). (s) S. 143. {t) S. 144. (it) S. 145 ; Hodson v. Walker^ L. R. 7 Ex. 55. CHAPTER XXIV. SUMMARY PROCEEDINGS BEFORE JUSTICES, 1. Landlord against Tenant, p. 281. 2. Deserted Premises, p. 283. 3. Sundru other cases, p. 285. Under various statutes justices have in certain cases jurisdiction jurisdiction in proceedings to recover possession of land, ^y ^ '^ '^ ^• particularly in cases between landlords and tenants. These statutes and the jurisdiction conferred by them, will be dealt with separately in this chapter. 1. Landlord and Tenant. By 1 & 2 Vict. c. 74, when the term or interest of any Upon expira- tenant at will or for a term not exceeding seven years at niination of * a rent not exceeding £20 a year, or at no rent, and upon tenancy. which no fine or premium has been paid or reserved, shall ^ 74^ have ended or been duly determined by notice to quit (a) or otherwise (6), and such tenant or the person in actual occupation neglects or refuses to quit and deliver up posses- sion of the premises or any part thereof, the landlord can proceed before justices of the district division or place within which the premises or any part thereof are situate in petty sessions (c). The procedure is as follows : The landlord or his agent Proccdm-e. serves the person, who so refuses or neglects, with a written notice in the form provided by the schedule to the Act (d), (a) See Chap. VI. (6) Cole, Eject. 669. (c) S. 1, App. B, p. 332. (d) App. A, p. 288. 282 LAW OF EJECTMENT. Hearing. Definitions. Person. Landlord. Agent. signed by the landlord or his agent, of his intention to proceed to recover possession. The notice must be served either personally or by leaving it with a person being in and apparently residing at the residence of the person so holding over, and it must be read over and explained by the person serving it to the person served. If the person holding over cannot be found and his residence is either unknown or admission thereto cannot be obtained the notice may be served by posting it upon some conspicuous part of the premises (e). The notice must state the place at which the application will be made (/), and, probably, that the applicant is " owner" or "agent to owner " (/). If the tenant or occupier do not appear and show cause why possession should not be given up, and still refuses and neglects to give up possession, the justices may, upon proof of the facts founding their jurisdiction and of the service of the notice, issue a warrant to the constables of the district {g) to deliver possession within a period therein named not less than twenty-one, nor more than thirty, clear days from the date of the warrant (h). The landlord must prove his title to the reversion if it has accrued since the letting (i). The tenant cannot dispute his landlord's title (k). A " person " is defined to be a body politic, corporate, or collegiate, as well as an individual ; a " landlord " to be the person entitled to the immediate reversion in the lands, and, if the property is held in joint tenancy, copar- cenary, or tenancy in common, any one of the persons entitled to such reversion ; an " agent " to be any person ■ (e) S. 2, App. B, p. 333. (/) Delaney v. Fox, 26 L. J. C. P. 5. (r/) Jo7ies V. Chapman, 14 M. & W. 124. Qi) S. 1 ; Jones v. Foley, [1891] 1 Q. B. 730. ii) S. 1. {k) Eees v. Davies, 4 C. B. N. S. 56 ; see p. 26. SUMMARY PROCEEDINGS BEFORE JUSTICES. 283 usually employed by the landlord in the letting of the premises, or in the collection of the rents thereof, or sjDecially authorised to act in the particular matter by writing under the hand of such landlord (I). Justices have no power to grant costs in these proceed- Costs. ings, as 11 & 12 Vict. c. 43 does not apply (m). A person who applies for and obtains a warrant is not Wrongfully , . -11 • -c obtaining protected against an action by the tenant or occupier it vvurraut. he had not then a right to possession (n). It is a trespass to obtain such a warrant without having a right to posses- sion, although no entry is made under the warrant (o). The tenant or occupier may bind himself to sue forthwith for such trespass, and thereupon execution of the warrant is stayed until judgment in the action (o). If the plaintiff succeeds, the warrant is superseded (o). Justices and con- Protection to stables are protected even if the applicant had not a right constables, to possession (j:;). The landlord, if he has a right to pos- session, is not a trespasser by reason of any irregularity, but is only liable to an action on the case for special damage {q). 2. Deserted Premises. By 11 Geo. 2, c. 19 {r), amended by 57 Geo. 3, c. 52, if a tenant who holds premises at a rack rent, or at a rent which is full three-fourths of the yearly value, under any demise or agreement whether verbal or written (s), whether a right of re-entry for non-payment of rent is reserved or not (s), is in arrear for one half year's rent(.s') and deserts {t) (I) S. 7, App. B, p. 335. {q) S. 6, App. B, p. .335 ; De- {m) Stone's Practice, 5!i8, note laneij v. Fox, 26 L. J. C. P. 5. (9th ed.) ; Oke's Mag. Syn. 1445 (r) S. 16, App. B, p. 295. (13tli ed.). (*•) App. B, p. 297. (n) S. 1, App. B, p. 332. (t) Bastcn v. Careiv, 3 B. & C. (o) Ss. 3, 4, App. B, pp. 333— 649 ; Ashcroft v. Bourne, 3 B. & 334. Ad. 684, 685 ; Ex parte Pilton, {p) S. 5, App. B, p. 334. 1 B. & Aid. 369. 284 LAW OF EJECTMENT. the premises, and leaves tliem uncultivated or unoccupied so that no sufficient distress (u) can be had to countervail the arrears of rent, the landlord may proceed to recover possession under the Act. Procedure. The procedure is as follows (v) : At the request of the landlord or his bailiff or receiver, two or more justices of the district shall go and view the premises and affix on the most notorious part thereof a written notice stating the day (at a distance of fourteen clear (y) days at least) upon which they will return to take a second view thereof. If upon such second view the tenant or someone on his behalf does not appear and pay the rent or there is not sufficient distress upon the premises, the justices may put the landlord into possession, and the lease, as to any demise therein only, becomes void. Neither the information to the justices nor any inquiry by them need be upon oath, as they decide on their view whether the premises are deserted and there is no sufficient distress (z). If the justices from doubt as to their juris- diction refuse to give possession, a mandamus will not be granted to compel them to do so (a). Apixial, ^^^^ proceedings of the justices are examinable in a. summary way by the next justice or justices of Assize, or^ if the premises are in London or Middlesex, by the Queen's. Bench Division, who may order restitution to the tenant, with his costs and expenses. If they affirm the act of the justices they may award costs to the landlord not. exceeding £,5 (b). An order for restitution is made by justices of Assize in their individual capacity, and perhaps should be signed by them (c). Such an order (it) See pp. 232—233. 649. (v) S. 16, App. B, p. 295. (a) Ex parte Fulder, 8 DowL (;/) Creak v. Brighton, 1 F. & 535. F. 110. (b) S. 17, App. B, p. 296. {z) Bastcn v. Carciv, 3 B. & C. (c) E. v. Seivell, 8 Q. B. 161. SUMMARY PROCEEDINGS BEFORE JUSTICES. 285 should be directed to some person, or else there is no way of enforcing it (d). The justices should draw np a record of their proceed- Acticn by ings, and such record is an answer to any action against them, or anyone aiding them, or the landlord who receives possession (e). The landlord may, however, be liable to an action if he maliciously or upon false information moves the justices (e). If the premises are within the Metropolitan Police Dis- Premises in trict, a police magistrate may on request of the landlord, his bailiff, or receiver, made in open Court, and upon proof of the arrears of rent and desertion, send a constable to view the premises and affix the notice. Upon the return of the warrant to the constable, and proof of its due execution, and that the rent has not been paid and that there is no sufficient distress, the magistrate may authorise a con- stable to put the landlord into possession (/). The lord mayor or an alderman in London, and all Of lord ,. . , 1 . mayor, &c., stipendiary magistrates have the same powers as two jus- and stipen- tices, but they cannot send a constable to view (g). laues. 3. Sundry other Cases. The procedure provided by 1 & 2 Vict, c. 74 is ex- tended by subsequent statutes to the following cases : — The recovery of school premises from masters of School 11 ^ r 1 11 nx premises. grammar schools, and irom other schoolmasters [k). The recovery of possession of allotment gardens for the Allotment , ^ gardens. poor under the In closure Act, 1845 {%). (d) B. V. Traill, 11 Ad. & E. (g) 11 & 12 Vict. c. 43, ss. 3.3, 761. 34 ; Edwards v. Hodges, 15 C. B. (e) Ashcroft v. Bourne, 3 B. & 477. Ad. 684 ; Basten v. Careio, 3 B. (/i) 3 & 4 Vict. c. 77, s. 19 ; 4 & C. 649. & 5 Vict. c. 38, s. 18. (/) 3 & 4 Vict. c. 84, s. 13. (i) 8& 9 Vict. c. 118, s. 111. App. B, p. 338. 286 LAW OF EJECTMENT. Encroach- The recovery of possession from persons who have en- croached upon lands to be enclosed (k). Charities. The recovery of premises belonging to charities from schoolmasters or other officers or recipients of the benefit of a charity (l). Crown knds. The recovery of possession of Crown lands (m). By church- Summary proceedings can also be taken before justices wardens, ^^^^^ -^^ churchwardens, overseers and guardians of the poor to guardians. recover parish property and poor allotments from the persons to whom they have been let, or from tres- passers (n). {k) 15 & 16 Vict. c. 79, s. 13 ; Chilcote v. YoxMon, 29 L. J. M. C. 197. {I) 23 & 24 Vict. c. 136, s. 13 ; R. v. Darlington, 6 Q. B. 682. (m) 22 Vict. c. 12, s. 5 ; 27 & 28 Vict. c. 57, s. 12. (?i) See Chap. 16, p. 180. APPENDIX A. FORMS. NOTICE TO QUIT. 1. — By Landlord. To A. B. I hereby give you notice to quit and deliver up possession of tlie [house or ] and premises, with the appurtenances, situate [at or in the parish of ] in the county of which you hold of me, as tenant thereof, on the (twenty-ninth) day of (September) next [or at the expiration of the year of your tenancy which shall exj^ire next after the end of one half year from the service of this notice]. Dated the day of , 189 . Signed 2. — By Tenant. To C. D. I hereby give you notice that it is my intention to quit and deliver up possession of the [house or ] and premises with the appurtenances situate [at or in the parish of ] in the county of now held by me as your tenant thereof on the (twenty-ninth) day of (September) next. Dated the day of , 189 . Signed . 3. — By Tenant in Common (Landlord). To A. B. I hereby give you notice of my intention to determine the tenancy under which you now hold of me [one undivided part or share as the case may be] of and in the [messuage or farm, and] premises with the appurtenances situate at in 288 APPENDIX A. the county of , and requu-e you to quit the same on the day of next [or at the expiration of the year of your tenancy which shall exjiire next after the end of one half year from the service of tliis notice]. Dated the day of , 18 . Signed 1 & 2 Vict. c. 74. — Notice of Owner's Intention to Apply TO Justices to Recover Possession. I [owner or agent to , the owner, as the case may be] do hereby give you notice that unless peaceable possession of the tenement [shortly descrihing it] situate which was held of me or of the said [as the case may be] under a tenancy from year to year or [as the case may he] which expired [or was determined] by notice to quit from the said [or otherwise, as the case may be], on the day of , and which tenement is now held over and detained from the said be given to [the oimier or agent] on or before the expiration of seven clear days from the service of this notice, I , shall on next, the day of at of the clock of the same day, at apply to Her Majesty's Justices of the Peace acting for the district of [being the district, division, or place in which the said tenement or any part thereof is situate], in Petty Sessions assembled, to issue their warrant directing the constables of the said district to enter and take possession of the said tenement, and to eject any person therefrom. Dated this To Mr. (Signed) {Owner or Agent). STATEMENT OF CLAIM. 1. — Landlord against Tenant. The plaintiff is entitled to the possession of a farm and premises called Church Farm, in the parish of , in the county of , which was let by the plaintiff to the defendant for the term of from the day of , which term has expired [or as tenant from year to year from the day of , which FORMS. 289 said tenancy was duly determined bj'' notice to quit expiring on the day of ]. The plaintiff claims possession and £ for mesne profits. Place of Trial, Signed 2. — Heir-at-Law against Stranger. 1. The plaintiff is entitled to the possession of Blackacre, in the parish of , in the county of 2. On or before the day of A. B. was seized in fee and in possession of the premises. 3. On the day of , the said A. B. died so seised, whereupon 4. The estate descended to the plaintiff, his eldest son and heir- at-law. 5. After the death of the said A. B. , the defendant "wrongfully took possession of the i^remises. The plaintiff claims : — 1. Possession of the premises ; 2. Mesne profits from the day of Place of Trial, Signed NOTICE LIMITING DEFENCE. 1. — In the High Court. Take notice that the above-named defendant [A. B.] limits his defence to part only of the property mentioned in the writ of summons, namely, to the close, called " The Big Field." Dated the day of , 18 . (Signed) of Agent for of Solicitors for the above-named defendant. To Messrs. , the plaintiff's solicitors. 2. In the County Court. Take notice that the above-named defendant K. L. will at the trial of this action limit his defence to a part only of the property mentioned in the statement annexed to the summons ; that is to say [here describe the part, to ivhich the defence is limited, loith rensonahle certainty]. To the Registrar of the Court and to the plaintiff. W.Y.E. U 290 APPENDIX A. ACKNOWLEDGMENT OF TITLE. I, , of , do hereby admit that I am now in possession of [or in receipt of the rents and profits of] all that messuage with the appurtenances situate at [or in the parish of ] in the county of by the permission of , of , and subject to the title of the said under whom I now hold the same. Dated the day of Signed To APPLICATION, EX PARTE, BY LANDLORD FOR LEAVE TO DEFEND. In the High Court of Justice. Chancery Division. [Name of Judge.] [Title of action or matter and reference to the 7'ecord.] Let all parties concerned attend at my chambers in the Royal Courts of Justice, Strand, London, on the day of ,18 , at o'clock in the noon. [If a short return is granted, add "by special leave."] On the hearing of an application on the part of A. B. , that he may be at liberty to appear and defend this action [if so, as land- lord of the above-named defendant, C. D.]. [If the applicant desires to limit his defence to a part only of the property mentioned in the ivrit, add ;] For [here describe the part to which it is desired to limit the defence] being a part of the property mentioned in the said writ of summons. Dated this day of , 18 . APPENDIX B. STATUTES. 5 Rich. 2, Stat. 1, c. 8. " And also the king defendeth that none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law, and in such case not witli ,, 24 strong hand, nor with multitude of people, but only in peaceable and easy manner. And if any man from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by imprisonment of his body, and thereof ransomed at the king's will." 15 Rich. 2, c. 2. An Act " for confirming and amending former statutes re- specting riots and forcible entries ; " *' also it is accorded and assented, that the statutes and ordinances, made and not re- pealed, concerning those who make entries with strong hand into lands and tenements, or other possessions whatsoever, and them hold with force, and also of those that make insurrec- tions, or great ridings, riots, routs, or assemblies, in disturbance of the peace, or of the common law, or in affray of the people, pp. 19^ 20. shall be holden, and kept, and fully executed, adding thereto, that at all times that such forcible entries shall be made, and com])laint thereof cometh to the justice of peace, or to any of them, that such justices or justice take sufficient power of the county, and go to the place where such force is made, and if he or they find any that hold such place forcibly, after such entry made, they shall be taken and put into the next gaol, there to abide convict by the record of such justices or justice, until they have made fine and ransom to the king ; and that all U 2 292 APPENDIX B. people of the county, as well tlie sheriff as other, shall be attendant upon the same justices to go and assist the same justices, to arrest such offenders, upon pain of imprisonment, and to make fine to the king : and in the same manner it shall be done of those who make such forcible entries in benefices or offices of holy church." 4 Hen. 4, c. 8. Intituled " a special assize shall be maintainable against a p. 24. disseisor with force. The lord chancellor may in his discretion grant a special assize to try any forcible entry, under which the defendant if convicted, 'shall have one year's imprisonment and yield to the party grieved his double damages.' " 8 Hen. 6, o. 9. For confirming and amending former statutes respecting pp. 19, 20. forcible entries. Recital of 15 Richard 2, c. 2, at length. S. 2. And for that the said statute doth not extend to entries in tenements in peaceable manner, and after holden with force, nor if the persons which enter with force into lands and tene- ments, be removed and voided before the coming of the said justices or justice, as before, nor any pain ordained if the sheriff do not obey the commandments and prsecepts of the said justices for executing the said ordinance ; many wrongful and forcible entries be daily made into lands and tenements by such as have no right ; and also divers gifts, feoffments, and discontinuances sometimes made to Lords, and other powerful persons, and extortioners within the said counties where they be conversant, to have maintenance, and sometimes to such persons as be unknown to them so put out, to the intent to delay and defraud such rightful possessors of their right and recovery for ever ; to the final disherison of divers of the king's faithful liege people, and likely it is daily to increase, if due remedy be not provided in this behalf ; our lord the king considering the premises hath ordained " that the said statute, and all other statutes of such entries or aliena- tions made in times past shall be holden and duly executed ; STATUTES. 293 adding thereto, that ' if from henceforth any doth make any forcible entry in lands and tenements, or other possessions, or them hold forcibly after complaint thereof, made within the same county where such entry is made, to the justices of peace, or to one of them, by the party grieved, that the justices or justice so warned, within a convenient time shall cause, or one of them shall cause the said statute duly to be executed, and that at the costs of the party so grieved." S. 3. " And moreover, though that such persons making such entry be present, or else departed befoi-e the coming of the said justices or justice, nevertheless the same justices or justice in. some good town next to the tenements so entered, or in some other convenient place according to their discretion, shall have, p. 22. or either of them shall have authority and power to inquire, by the people of the same county, as well of them that make forcible entries in lands and tenements, as of them which hold the same with force ; and if it be found before any of them that any doth contrary to this statute, then the said justices or justice shall cause the said lands and tenements so entered or holden as aforesaid to be reseised, and shall put the party so put out in full possession of the same lands and tenements so as aforesaid entered or holden." S. 6. And moreover, if any pei'son be put out, or disseised of any lands or tenements in forcible manner, or put out peaceably, and after holden out with strong hand ; or after such entry, any feoffment or discontinuance in anywise thereof be made, to defraud, and take away the right of the possessor ; that the party grieved in this behalf shall have assize of novel disseisin or a writ of trespass against such disseisor, and if pp. 18, 23. the party grieved recover by assize, or by action of trespass, and it be found by verdict, or in other manner by due form in the law that the party defendant entered with force into the lands and tenements, or them after his entry did hold with force, that the plaiutift' shall recover his treble damages against the defendant ; and moveover, that he make fine and ransom to the king, and that mayors, justices or justice of peace, sheriff and bailiffs of cities, towns, and boroughs having franchise shall have in the said cities, towns, and boroughs like 294 APPENDIX B. power to remove such entries, and in other the articles afore- said, arising within the same, as the justices of peace and sheriffs in counties and countries aforesaid have. S, 7. Provided always, that they which keep their possessions with force in any lands and tenements whereof they or their p. 23. ancestors, or they whose estates they have in such lands and tenements, have continued their possessions in the same by three yeai's or more, be not endangered by force of this statute. 31 Eliz. c. 11. " No restitution upon any indictment of forcible entrj^, or holding with force, be made to any person or persons, if the person or persons so indicted hath had the occupation, or hath been in quiet possession by the space of three whole years together next before the day of such indictment so found, and his, her, or their estate or estates therein not ended nor deter- pp. 22, 24. mined ; which the party indicted shall and may allege for stay of restitution, and restitution to stay until that be tried if the other will deny or traverse the same, and if the same allega- tion be tried against the same person or persons so indicted, then the same person or persons so indicted to pay such costs and damages to the other party as shall be assessed by the judge or justices before whom the same shall be tried; the same costs and damages to be recovered and levied as is usual for costs and damages contained in judgments upon other actions." 21 Jac. 1, c. 15. " Such judges, justices or justice of the peace, as by reason of any act or acts of parliament now in force are authorized and enabled upon inquiiy to give restitution of possession unto tenants of any estate of freehold of their lands and tenements, Avhich shall be entered upon with force, or from them with- holden by force, shall by reason of this present act have the like and the same authority and ability from henceforth (upon indictment of such forcible entries, or forcible withholdings before them duly found) to give like restitution of possession unto tenants for terms of years, tenants by copy of court roll, guardians by knight service, tenants by elegit, statute pp. 22, 24. STATUTES. 295 merchant and staple of lauds or tenements by them so holden which shall be entered upon by force, or holden from them by force." THE STATUTE OF FRAUDS. 29 Car. 2, c. 3, s. 3. " No leases, estates, or interests, either of freehold, or terms of years, or any uncertain interest, not being copyhold or customary interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall at any time after the said four and twentieth day of June be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law. pp. 50, 51. p. 5. 11 Geo. 2, c. 19, ss. 16, 17. S. 16. And whereas landlords are often great sufferers by tenants running away in arrear, and not only suffering the demised premises to lie uncultivated without any distress thereon, whereby their landlords or lessors might be satisfied for the rent arrear, but also refusing to deliver up the possession of the demised premises, whereby the landlords are put to the expense and delay of recovering in ejectment ; be it further enacted by the authority aforesaid, that from and after the said pp, 283, 284. twenty-fourth day of June, one thousand seven hundred and thirty-eight, if any tenant holding any lands, tenements, or hereditaments, at a rack-rent, and where the rent reserved shall be full three-fourths of the yearly value of the demised premises, who shall be in aiTcar for one year's rent, shall desert the demised premises, and leave the same uncultivated or un- occupied so as no sufficient distress can be had to countervail the arrears of rent ; it shall and may be lawful to and for two or more justices of the peace of the county, riding, division, or place (having no interest in the demised premises) at the request of the lessor or landlord, lessors or landlords, or his, her, or their bailiff or receiver, to go upon and view the same, and to affix, or cause to be affixed, on the most notorious part 296 APPENDIX B. of the premises notice in writing what day (at the distance of fourteen days at least) they -will return to take a second view thereof; and if upon such second view the tenant, or some person on his or her behalf, shall not appear, and pay the rent in arrear, or there shall not be sufficient distress upon the premises ; then the said justices may put the landlord or land- lords, lessor or lessors, into the possession of the said demised premises ; and the lease thereof to such tenant, as to any demise therein contained only, shall from thenceforth become void. S. 17. Provided always that such proceedings of the said justices shall be examinable in a summary way for the next justice or justices of assize of the respective counties in which such lands or premises lie ; and if they lie in the City ot p. 284. London or County of Middlesex, by the judges of the courts of Queen's Bench or Common Pleas ; and if in the counties pala- tine of Chester, Lancaster, or Durham, then before the judges thereof ; and if in, Wales, then before the courts of grand sessions, respectively ; who are hereby respectively impowered to order restitution to be made to such tenant, together with his or her expenses and costs, to be paid by the lessor or landlord, lessors or landlords, if they shall see cause for the same ; and in case they shall affirm the act of the said justices, to award costs not exceeding five pounds for the frivolous appeal. 14 Geo. 3, c. 78, s. 83. S. 83. " And in order to deter and hinder ill-minded persons. from wilfully setting their house or houses, or other buildings, on fire, with a view of gaining to themselves the insurance money, whereby the lives and fortunes of many families may ^* ' be lost or endangered ; " be it further enacted by the authority aforesaid, That it shall and may be lawful to and for the respective governors or directors of the several insurance offices for insuring houses or other buildings against loss by fire, and they are thereby authorized and required, upon the request of any person or persons interested in, or entitled unto, any house or houses or other buildings which may hereafter be burnt down, demolished, or damaged by fire, or upon any STATUTES. 297 grounds of suspicion tliat the owner or owners, occxipier or occupiers, or other person or persons who shall have insured such house or houses, or other buildings, have been guilty of fraud, or of wilfully setting their house or houses or other buildings on fire, to cause the insurance money to be laid out and expended, as far as the same will go, towards rebuilding, re- instating, or repairing such house or houses, or other buildings so burnt down, demolished, or damaged by fire ; unless the party or parties claiming such insurance money shall, within sixty days next after his, her, or their claim is adjusted, give sufficient security to the governors or directors of the insurance office where such house or houses, or other buildings are in- sured, that the same insurance money shall be laid out and ex- pended as aforesaid ; or unless the said insurance money shall be, in that time, settled and disposed of to and amongst all the contending parties, to the satisfaction and approbation of such governors or directors of such insurance office respectively. 57 Geo. 3, c. 52. Whereas by an act of parliament passed in the eleventh year of the reign of his late majesty King George the Second, intituled, An act for the more effectual securing the payments of rents, and preventing frauds by tenants, it is amongst other things enacted, that from and after the twenty-fourth day of June, one thousand seven hundred and thirtj^-eight, if any tenant holding any lands, tenements, or hereditaments at a pp. 5, 283. rack rent, or where the I'ent reserved should be full three- fourths of the yearly value of the demised premises, who should be in arrear for one year's rent, should desert the demised premises, and leave the same uncultivated or unoccupied, so as no sufficient distress could be had to countervail the arrears of rent, it should and might be lawful to and for two or more justices of the peace of the county, riding, division, or place (having no interest in the demised premises) at the request of the lessor or landlord, lessors or landlords, or his, her, and their bailiff or receiver, to go upon and view the same, and to affix or cause to be affixed on the most notorious part of the premises notice in writing what day (at the distance of fourteen days at least) they would return to take a second view thereof ; and if 298 APPENDIX B. upon such second "vicAV the tenant, or some person on his or lier behalf, should not appear and pay the rent in arrears, or there should not be sufficient distress upon the premises, then the said justices might put the landlord or landlords, lessor or lessors, into the possession of the said demised premises ; and tiie lease thereof to such tenant, as to any demise therein con- tained only, sliould from thenceforth become void : And whereas it is expedient, for the due protection of the interest of landlords, that so much of the said act as requires a tenant to be in arrear for one year's rent should be altered, and that the provisions of the said act should be extended to tenancies where no right of entry in case of non-payment is reserved to the landlord ; be it therefore enacted, by the king's most ex- cellent majesty, by and with the advice and consent of the lords spiritual and tempoi'al, and commons, in this present par- liament assembled, and by the authority of the same, that from and after the passing of this act, the provisions, powers, and remedies by the said recited act given to lessors and landlords in case of any tenant deserting the demised j^remises and leaving the same uncultivated or unoccupied, so as no sufficient distress can be had to countervail the arrears of rent, shall be extended to the case of tenants holding any lands, tenements, or hereditaments at a rack rent, or where the rent reserved shall be full three-fourths of the yearly value of the demised premises, and who shall be in arrear for one half-year's rent (instead of for one year's as in the said recited act is provided and enacted), and who shall hold such lands and tenements or hereditaments under any demise or agreement either written or verbal, and although no right or power of re entry be re- served or given to the landlord in case of non-payment of rent, who shall be in arrear for one half-year's rent, instead of for one year as in the said recited act is provided and enacted. 59 Geo. 3, c. 12, ss. 17, 24, 25. S. 17. And be it further enacted that all buildings, lands, and hereditaments which shall be jjurchased, hired, or taken ou lease by the churchwardens and overseers of the poor of any parish, by the authority and for any of the purposes of this STATUTES. 299 Act, shall be conveyed, demised and assured to the church- wardens and overseers of the poor of every such parish respec- tiveh", and their successors, in trust for the parish ; and such churchwardens and overseers of the poor and their successors shall and may, and they are hereb}' empowered to accept, take and hold, in the nature of a body corporate for and on behalf of the parish all such buildings, lands and hereditaments, and also all other buildings, lands and hereditaments belonging to such parish ; and in all actions, suits, indictments and p. 180. other proceedings for or in relation to any such buildings, land and hereditament, or the rent thereof, or for or in relation to any other buildings, lands or hereditaments belonging to such parish, or the rent thereof, and in all actions and pro- ceedings upon or in relation to any bond to be given for the faithful execution of the office of an assistant overseer, it shall be sufficient to name the churchwardens and overseers of the poor for the time being, describing them as the churchwardens and overseers of the poor of the parish for -which they shall act, and naming such parish ; and no actioia or suit, indict- ment or other proceeding shall cease, abate, or be discontinued, quashed, defeated, or impeded by the death of the church- wardens and overseers named in such proceeding, or the deaths or death of any of them, or by their removal or the removal of any of them from, or the expiration of their i-espective offices. S. 24. And whereas difficulties have frequently arisen, and considerable expenses have sometimes been incurred, by reason of the refusal of persons who have been permitted to occupy, or who have intruded themselves into parish or town houses, or other tenements or dwellings built or provided for the habitation of the poor or otherwise belonging to such parishes, pp. 6,181, 1S2. to deliver up the possession of such houses, tenements or dwellings, when thereto required ; and it is expedient to provide a remedy for the same ; be it further enacted, that if any person who shall have been permitted to occupy any parish or town house, or any other tenement or dwelling belonging to or provided by or at the charge of any parish, for the habitation of the poor thereof, or who shall have uu- »S00 APPENDIX B. lawfully intruded himself or herself into any such house, tenement or dwelling, or into any house, tenement or here- ditament belonging to such parish, shall refuse or neglect to quit the same, and deliver up the possession thereof to the churchwardens and overseers of the poor of any such parish, within one month after notice and demand in writing fur that purpose, signed by such churchwardens and overseers, or the major part of them, shall have been delivered to the person in possession, or in his or her absence affixed to some noto- rious part of the premises, it shall be lawful for any two of his majesty's justices of the peace, upon complaint to them made by one or more of the churchwardens and overseers of the poor of the parish, in which any such house, tenement or dwelling shall be situated, to issue their summons to the person against whom such complaint shall be made, to appear before such justices at a time and place to be appointed by them, and to cause such summons to be delivered to the party against whom the complaint shall be made, or in his or her absence to be affixed on the premises seven days at the least before the time appointed for hearing such complaint > and such justices are hereby empowered and required, upon the appearance of the defendant, or upon proof on oath that such summons hath been delivered or affixed as is hereby directed, to proceed to hear and determine the matter of such complaint, and if they shall find and adjudge the same to be true, then by wan-ant under their hands and seals to cause possession of the premises in question to be delivered to the churchwardens and overseers of the poor of the parish or to some of them. S. 25. And be it fui-ther enacted, that if any person to whom any land appropriated, purchased or taken under the authority of this act for the employment of the poor of any parish, or 6 181 ^^ whom any other lands belonging to such parish or to the 182, churchwardens and overseers thereof, or to either of them, shall have been let for his or her own occupation, shall refuse to quit and deliver up the possession thereof to the church- wardens and overseers of the poor of such parish, at the ex- piration of the term for which the same shall have been STATUTES. 301 demised or let to him or her ; or if any person or persons shall luilawfally enter upon, or take or hold possession of any such land, or any other land or hereditaments belonging to such parish or to the churchwardens and overseers or to either of them, it shall be lawful for such churchwardens and over- seers of the poor, or any of them, after such notice and demand of possession as is by this act directed in the case of parish houses, to exhibit a complaint against the person or persons in possession of such land, before two of his majesty's justices of the peace, who are hereby authorised and required to proceed thereon, and to hear and determine the matter thereof, and if they shall find and adjudge the same to be true, to cause possession of such land to be delivered to the churchwardens and overseers of the poor, or some of them, in such and the like course and manner as are by this act directed with regard to parish houses. 2 & 3 Will. 4, c. 42. Whereas in parishes inclosed under acts of parliament there P- 182. are in many cases allotments made for the benefit of the poor, chiefly with a view to fuel, which are now comparatively useless and unproductive : And whereas it would tend much to the w^elfare and happiness of the poor if those allotments could be let at a fair rent, and in small portions, to industrious cottagers of good character, while the distribution of fuel might be augmented by appropriating the said rents to the purchase of an additional quantity; be it therefore enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present parliament assembled, and by the authority of the same. That it shall and may be lawful for the trustees of the said allotments, together with the churchwardens and overseers of the poor, in parish vestry assembled, and they are hereby required, to let portions of any such allotment, not less than one-fourth of a statute acre and not exceeding one such acre, to any one individual according to their discretion, as a yearly occupation from Michaelmas to Michaelmas (and at such rent as land of the same quality is usually let for in the said parish) to such indus- 302 APPENDIX B. trions cottagers of good character, being day labourers or journeymen legally settled in the said parish, and dwelling Avithin or near its bounds, as shall apply for the same in the manner hereinafter mentioned. S. 2. Provided also, and be it further enacted. That the person hiring the same shall be held bound to cultivate it in such manner as shall preserve the land in a due state of fertility. S. 3. And be it further enacted, That for the purpose of carrying this act into effect a vestry shall be held in the first Aveek in September in every year, of which ten days' notice shall be given in the usual manner, at which vestry the trustees of the said allotments may attend and vote, if they shall so think fit, and at which vestry, or some adjournment thereof, any industrious cottager of good character who may desire to rent such portion of land as aforesaid may apply for the same ; and the said vestry are hereby required, taking into consideration the character and circumstances of the applicant, to determine the case, either by rejecting his application, or by making an order that he shall be permitted to occupy such portion of the poor allotment, being not less than one-fourth of a statute acre, nor exceeding one such acre, as the said vestry in their discretion shall determine, and upon the terms herein- before enacted ; and the said order of vestry shall be held to all intents and purposes to be sufficient title and authority to such applicant to enter into the occupation of such land at the time therein appointed. S. 4. Provided always, and be it further enacted, That the rent shall be reserved and payable to the churchwardens and overseers of the poor, on behalf of the vestry, in one gross sum for the whole year, and shall be paid to one or either of them at the end of the year's occupation. S. 5. And be it further enacted, That if the rent of such portion of land shall at any time be four weeks in arrear, or if at the end of any one year of occupation it shall be the opinion of the vestry that the land has not been duly cultivated, so as to fulfil the useful and benevolent purposes of this act, then and in such case the churchwardens and overseers of the poor, STATUTES. ."^OS or any or either of them witli the consent of the vestry, may serve a notice to quit upon the occupier of such portion of land ; Whereupon the said occupier shall deliver up possession of the same to the churchwardens and overseers aforesaid, or any or either of them, within one week after the said notice has been duly served iipon him. S. 6. And be it further enacted, That if any person to whom such portion of land as aforesaid shall have been let, for his or her own occupation, shall refuse to quit and to deliver up posses- sion thereof when thereto required according to the terms of this act, or if any other person or persons shall unlawfully enter upon or take or hold possession of any such land, it shall be lawful for the churchwardens and overseers of the poor, or any or either of them, to exhibit a complaint against the person so in possession of such land before two of his majesty's justices of the peace, who are hereby authorized and required to issue a summons, under their hands and seals, to the person against whom such complaint shall be made, to appear before them at a time and place appointed therein ; and siich justices are hereby required and empowered upon the appearance of the defendant before them, or upon proof on oath that such summons has been duly served upon him, or left at his usual ])lace of residence, or if there should have been any difficulty in finding such usvial place of residence, then upon proof on oath of such difficulty, and that such summons has been affixed on the door of the parish church of the said parish in which such land is situated, and in any extra parochial place on some public building or other conspicuous place therein, to proceed to hear and determine the matter of such complaint, and if they shall find and adjudge the same to be true, then by warrant under their hands and seals to cause posses- sion of the land in question to be delivered to the church- wardens and overseers of the poor, or to some of them. S. 7, And be it further enacted, That all arrears of rent for the said portions of land shall be recoverable by the church- wardens and overseers of the poor, or any of them on behalf of the vestry, by application to two of his majesty's justices of the peace in petty sessions assembled who shall thereupon 304 APPENDIX B. summons the party complained against, and after hearing what he has to allege, should they find any rent to be due, they are requii-ed to issue a warrant under their hands and seals to levy the same upon the goods and chattels of the person from whom the said rents shall be due and owing. S. 8. And be it further enacted, That the rent of the said portions of land shall be applied by the vestry in the purchase of fuel to be distributed in the winter season among the poor parishioners legally settled and resident in or near the said parish. S. 9. And be it further enacted. That if any of the said allotments shall be found to lie at an inconvenient distance from the residences of the cottagers, it shall be lawful for the vestry, by an order made to that effect, to let such allotment or any part thereof, for the best rent that can be j^rocured for the same, and to hire in lieu thereof, for the purposes of this act, land of equal value more favourably situated. S. 10. And be it further enacted, That no habitation shall be erected on the portions of land demised under this act, either at the expense of the parish or by the individuals renting the same. S. 11. And whereas by two acts of the first and second years of the reign of his present majesty intituled, An act to amend an act of the fifty-ninth year of his majesty King George the Third, for the relief and employment of the poor, and the other intituled, An act to enable the churchwardens and overseers to inclose lands belonging to the crown, for the benefit of poor persons residing in the parish in which such crown land is situated, power is given under certain restrictions to inclose any quantity not exceeding fifty acres of waste land and crown land respectively, for the use and benefit of the poor ; be it further enacted. That in any parish where such inclosure shall exist or shall hereafter take place, or where land shall in any other manner be found appropriated for the general benefit of the poor of any parish, then and in such cases the powers and provisions of this act shall be held to apply in so far as the same may be found applicable. 221, 225. STATUTES. 805 STATUTE OF LIMITATIONS. 3 & 4 Will. 4, c. 27. S. 1. An Act for the limitation of actions and suits relating to real property, and for simplifying the remedies for trying the rights thereto [24 July, 1833] : Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons in the present Parliament assembled and by the authority of the same, that the words and expressions hereinafter mentioned which in their ordinary signification have a more confined or a different meaning shall in this Act, except wdiere the nature of the provision or the context of the Act shall exclude such construction, be interpreted as follows {that is to say) : the word "land" shall extend to manors, messuages and all other pp. 206, 212, coi'poreal hereditaments whatsoever, and also to tithes other than tithes belonging to a spiritual or eleemosynary corpora- tion sole, and also to any share, estate or interest in them or any of them whether the same shall be a freehold or chattel interest and whether freehold or copyhold or held according to any other tenure ; and the word " rent " shall extend to all heriots and to all services and suits for which a distress may be made, and to all annuities and periodical sums of money charged upon or payable out of any land (except moduses or compositions belonging to a spiritual or eleemo- synary corporation sole) ; and the person through whom another person is said to claim shall mean any person by, through or under or by the act of whom the person so claiming became entitled to the estate or interest claimed as heir, issue in tail, tenant by the curtesy of England, tenant in dower, successor, special or general occupant, executor, ad- ministrator, legatee, husband, assignee, appointee, devisee or otherwise, and also any person who was entitled to an estate or interest to which the person so claiming or some person through whom he claims became entitled as lord by escheat ; and the word " person " shall extend to a body politic cor- porate or collegiate, and to a class of creditors or other persons, as well as an individual ; and every word importing the singular number only shall extend and be applied to several W.Y.E. X 306 APPENDIX B, persons or things as well as one person or thing ; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. S. 3. And be it further enacted, That in the construction of this Act the right to make an entry or distress or bring an action to recover any land or rent shall be deemed to have first accrued at such time as hereinafter is mentioned (that is to say) : when the person claiming such land or rent or some person through whom he claims shall in respect of the estate or interest claimed have been in possession or in receipt pp. 152, 196, of the profits of such land or in receipt of such rent and shall 199, 200, 202, , ., . T T , 1 , I 203 207 220. while entitled tliereto have been dispossessed or have dis- continued such possession or receipt, then such right shall be deemed to have first accrued at the time of such disposses- sion or discontinuance of possession or at the last time at which any such profits or rent were or was so received ; and when the person claiming such land or rent shall claim the estate or interest of some deceased person who shall have continued in such possession or receipt in respect of the same estate or interest until the time of his death, and shall have been the last person entitled to such estate or interest wlio shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death ; and when the person claiming such land or rent shall claim in respect of an estate or interest in possession granted, ajj- pointed or otherwise assured by any instrument (other than a will) to him or some person through whom he claims by a person being in respect of the same estate or interest in the possession or receipt of the profits of the land or in the receipt of the rent, and no person entitled under such instru- ment shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person claiming as aforesaid or the person through whom he claims became entitled to such possession or receipt by virtue of such instrument ; and when the estate or interest claimed shall have been an estate or interest in reversion or remainder or other future estate or interest, and no i^erson shall have obtained the possession or receipt of the profits STATUTES. 307 of such land or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accnied at the time at which such estate or interest hecame an estate or interest in possession ; and when the person claiming such land or rent or the person through whom he claims shall have become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred or such condition was broken. S. 4. Provided always that when any right to make an entry or distress, or to bring an action to recover any land or rent by reason of any forfeiture or breach of condition, shall have first accrued in respect of any estate or interest in reversion or pp. 202, 203, remainder and the land or rent shall not have been recovered by virtue of such right, the right to make an entry or distress or bring an action to recover such land or rent shall be deemed to have first accrued in respect of such estate or interest at the time when the same shall have become an estate or interest in possession as if no such foi'feiture or breach of condition had happened. S. 6. And be it further enacted that for the purposes of this act an administrator claiming the estate or interest of the deceased person of whose chattels he shall be appointed ad- pp. 152, 200. ministrator shall be deemed to claim as if there had been no interval of time between the death of such deceased person and the grant of the letters of administration. S. 7. And be it further enacted that when any person shall be in possession or in receipt of the profits of any land or in receipt of any rent as tenant at will the right of the person entitled subject thereto, or of the person through whom he claims to make an entry or distress or bring an action to PP- 202, 203, recover such land or rent, shall be deemed to have first 216* ^' " '* accrued either at the determination of such tenancy or at the expiration of one year next after the commencement of such tenancy at which time such tenancy shall be deemed to have determined : Provided always that no mortgagor or cestui que trust shall be deemed to be a tenant at will within the meaning of this clause to his mortgagee or trustee. X 2 308 APPENDIX B. S. 8. And be it further enacted, That wlicn any person shall be in possession or in receipt of the profits of any land or in receipt of any rent as tenant from year to year or other period PP^ 202, 205, without any lease in writing, the right of the person entitled subject thereto or of the person through whom he claims to make an entry or distress or to bring an action to recover such land or rent shall be deemed to have first accrued at the determination of the first of such years or other periods or at the last time when any rent payable in respect of such tenancy shall have been received (which shall last happen). S. 9. And be it further enacted, That when any person shall be in possession or in receipt of the profits of any land or in receipt of any rent by virtue of a lease in writing by which a rent amounting to the yearly sum of twenty shillings or pp^ 202, 206, upwards shall be reserved and the rent reserved bv such lease 20/. ^ " . , shall have been received by some person wrongfully claimmg to be entitled to such land or rent in reversion immediately expectant on the determination of such lease and no payment in respect of the rent reserved by such lease shall afterwards have been made to the person rightfully entitled thereto, the right of the person entitled to such land or rent subject to such lease or of the person through whom he claims to make an entry or distress or to bring an action after the determination of such lease shall be deemed to have first accrued at the time at which the rent reserved by such lease was first so received by the person wrongfully claiming as aforesaid, and no such right shall be deemed to have first accrued upon the determina- tion of such lease to the person rightfully entitled. S. 10. And be it further enacted, That no person shall be I'- 207. deemed to have been in possession of any land within the meaning of this act merely by reason of having made an entry thereon. S. 11. And be it further enacted. That no continual or other !'• 2^^- claim upon or near any land shall preserve any right of making an entry or distress or of bringing an action : S. 12. And be it further enacted, That Avhen any one or p. 178. more of several persons entitled to any land or rent as co- parceners, joint tenants or tenants in common shall have been STATUTES. 309 in possession or receipt of the entirety or more than his or their undivided share or shares of such land or of the profits thei'eof or of such rent for his or their own benefit or for the benefit of any person or persons other than the person or per- sons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons or any of them. S. 13. And be it further enacted, that when a younger brother or other relation of the person entitled as heir to the P- 209. possession or receipt of the profits of any land or to the I'eceipt ■of any rent shall enter into the possession or receipt thereof, such possession or receipt shall not be deemed to be the pos- session or receipt of or by the person entitled as heir : S. 14. Provided always and be it further enacted, That when any acknowledgment of the title of the person entitled to any land or rent shall have been given to him or his agent in writing signed by the person in possession or in receipt of the profits of such land or in receipt of such rent, then such possession or receipt of or by the person by whom pp. 197, 209, such acknowledgment shall have been given shall be deemed, "" ' according to the meaning of this act, to have been the posses- sion or receipt of or by the person to whom or to whose agent such, acknowledgment shall have been given at the time of giving the same, and the right of such last-mentioned person or any person claiming through him to make an enty or dis- tress or bring an action to recover such land or rent shall be deemed to have first accrued at and not before the time at which such acknowledgment or the last of such acknowledg- ments if more than one was given : S. 15. Provided also and be it further enacted that when no such acknowledgment as aforesaid shall have been given before the passing of this Act and the possession or receipt of the profits of the land or the receipt of the rent shall not at the time of the passing of this Act have been adverse to the right or title of the person claiming to be entitled thereto, then such person or the person claiming through him may notwith- standing the period of twenty [now 12] years hereinbefore 310 APPENDIX B. limited shall have expired make an entry or distress or bring an action to recover such land or interest at any time within five years next after the passing of this Act. S. 18. Provided always, and be it further enacted, that when any person shall be under any of the disabilities hereinbefore mentioned at the time at which his right to make an entry or distress or to bring an action to recover any land or rent shall p. 210. have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or distress or to bring an action to recover such land or rent beyond the said period of [ten] years next after the right of such person to make an entry or distress or to bring an action to recover such land or rent shall have first accrued, or the said period of [six] years next after the time at which such person shall have died shall be allowed by reason of any disability of any other person. S. 1 9. And be it further enacted, that no part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, or Sark, nor any island adjacent to any of them (being part of the dominions of His Majesty )> shall be deemed to be beyond seas within the meaning of this. Act. S. 20. And be it further enacted, that when the right of any person to make an entry or distress or bring an action ta recover any land or rent to which he may have been entitled for an estate or interest in possession shall have been barred by the determination of the period hereinbefore limited, which PlJ. 201, 211. shall be applicable in such case, and such person shall at any time during the said period have been entitled to any other estate, interest, right, or possibility in reversion, remainder, or otherwise in or to the same land or rent, no entry, distress, or action shall be made or brought by such person, or any person claiming through him to recover such land or rent in respect of such other estate, interest, right or possibility imless in the meantime such land or rent shall have been recovered by some person entitled to an estate interest or right which have been limited or taken effect after or in defeasance of such estate or interest in possession. STATUTES. 311 S. 21. That Avhen the right of a tenant in tail of any land or rent to make an entry or distress or to bring an action to recover the same shall have been barred by reason of the same not having been made or brought within the period herein- pp. 212, 213. before limited, which shall be applicable in such case, no such entry, distress or action shall be made or brought by any person claiming any estate, interest or right which such tenant in tail might lawfully have barred. S. 22. That when a tenant in tail of any land or rent entitled to recover the same, shall have died before the expiration of the period hereinbefore limited which shall be applicable in such case, for making an entry or distress or bringing an p. 213. action to recover such land or rent, no person claiming any estate, interest or right Avhich such tenant in tail might lawfully have barred shall make an entry or distress or bring an action to recover such land or rent but within the period during which, if such tenant in tail had so long continued to live, he might have made such entry or distress or brought such action. S. 24. And be it further enacted that after the said thirty-first day of December one thousand eight hundred and thirty-three no person claiming any land or rent in equity shall bring any suit p. 217. to recover the same but within the period during which by virtue of the provisions hereinbefore contained he might have made an entry or distress or brought an action to recover the same respectively if he had been entitled at law to such estate, interest or right in or to the same as he shall claim therein in equity. S. 25. Provided always and be it further enacted that when any land or rent shall be vested in a trustee upon any express trust, the right of the cestui que trust or any person claiming through him to bring a suit against the trustee or any person pp. 214, 215, claiming through him to recover such land or rent shall be ' ' deemed to have first accrued according to the meaning of this Act at and not before the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him. S. 26. And be it further enacted that in every case of a con- 312 APPENDIX B. cealed fraud, the right of any person to bring a suit in equity for the recovery of any land or rent of which he or any person tlirough whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at and not l)efore the time at which such fraud shall or with reasonable diligence might have been first known or discovered, provided that p. 217. nothing in this clause contained shall enable any owner of lands or rents to have a suit in equity for the recovery of such lands or rents or for setting aside any conveyance of such lands or rents on account of fraud against any bond fide purchaser for valuable consideration who has not assisted in the com- mission of such fraud, and who at the time that he made the purchase did not know and had no reason to believe that any such fraud had been committed. S. 27. Provided always that nothing in this Act contained shall be deemed to interfere with any rule or jurisdiction of p. 217. Courts of Equity in refusing relief on the ground of ac- quiescence or otherwise to any person whose right to bring a suit may not be barred by virtue of this Act. S. 29. Provided always that it shall be lawful for any arch- bishop, bishop, dean, prebendary, parson, vicar, master of hospital or other spiritual or eleemosynary corporation sole, to make an entry or distress or to bring an action or suit to recover any land or rent within such period as hereinafter is mentioned next after the time at which the right of such pp. 222, 223. corporation sole or of his predecessor to make such entry or distress or bring such action or suit shall have first accrued ; (that is to say) the period during which two persons in succession sliall have held the office or benefice in respect whereof siich land or rent shall be claimed and six years after a third person shall have been appointed thereto, if the times of such two incimibrances and such term of six years taken together shall amount to the full period of sixty years ; and if such times taken together shall not amount to the full period of sixty years, then during such further number of years in addition to such six years as will with the time of the holding of such two persons and such six yeai'S make up the full period of sixty years; and after the said 31st of Decembei-, 1833, no STATUTES. 313 such entry, distress, action, or suit shall be made or brought at any time beyond the determination of such period. S. 30. That after the said 31st of December, 1833, no person shall bring any quart imped it or other action or any suit to enforce a right to present to or bestow any church, vicarage, or other ecclesiastical benefice, as the pati'on thereof, after the expiration of such period as hereinafter is mentioned : (that is to say) the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession P- 223. thereof adversely to the right of presentation or gift of such person or of some person through whom he claims, if the times of such incumbrances taken together shall amount to the full \ eriod of sixty years ; and if the times of such incumbrances shall not together amount to the full period of sixty years, then ftfter the expiration of such further time as with the times of such incumbrances will make up the full period of sixty years. S. 31. Provided always that when on the avoidance, after a clerk shall have obtained possession of au ecclesiastical benefice adversely to the right of presentation or gift of the patron thereof, a clerk shall be presented or collated thereto by his majesty or the ordinary by reason of a lapse, such last-men- p- 224. tioned clerk shall be deemed to have obtained possession adversely to the right of presentation or gift of such patron as aforesaid ; but when a clerk shall have been presented by his majesty on the avoidance of a benefice in consequence of the incumbent thereof having been made a bishop, the incumbency of such clerk shall, for the purposes of this Act, be deemed a continiiation of the incumbency of the clerk so made bishop. S. 32. That in the construction of this Act every person claiming a right to present to or bestow any ecclesiastical benefice as patron thereof b_y virtue of any estate, interest, or P- 224. right which the owner of an estate tail in the advowson might have barred shall be deemed to be a person claiming through the person entitled to such estate tail, and the right to bring- any quare imped it action or suit shall be limited accordingly, S. 33. Provided always, that after the said 31st of December, 1833, no person shall bring any quare impedit or other action P- 224. or any suit to enforce a right to present to or bestow any 314 APPENDIX B. ecclesiastical benefice, as the patron thereof, after the expira- tion of one hundred years from the time at which a clerk shall have obtained possession of such benefice, adversely to the right of presentation or gift of such person, or of some other person through whom he claims, or of some person entitled to some preceding estate or interest, or undivided share, or alternate right of presentation or gift, held or derived under the same title, unless a clerk shall subsequently have obtained possession of such benefice on the presentation or gift of the person so claiming, or of some person through whom he claims, or of some other person entitled in respect of an estate, share, or right held or derived under the same title. 8. 34. That at the determination of the period limited by this act to any person for making an entry or distress, or bringing any Avrit of quare impedit or other action or siiit, the P- ^^^- right and title of such person to the land, rent, or advowson for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period, shall be extinguished. S. 35. That the receipt of the rent payable by anj' tenant from year to year, or other lessee, shall, as against such lessee P- ■^^'^* or any person claiming under him (but subject to the lease), be deemed to be the receipt of the profits of the land for the purposes of this Act. S. 36. That no writ of right patent, writ of right quia dominus remisit curiam, writ of right in capite, writ of right in London, writ of right close, writ of right de rationabili parte, writ of right of advowson, writ of right upon disclaimer, P- 93. ■vvrit de rationabilibus divisis, writ of right of ward, writ de consuetudinibus et servitiis, writ of cessavit, writ of esclieat, writ of quo jure, writ of secta ad molendinum, writ de essendo quietum de thcolonio, writ of ne injuste vexes, writ of mesne, writ of quod permittat, writ of formedon in descender, in re- mainder, or in reverter, writ of assize of novel disseisin nuisance, darrein presentment, jviris utrum, or mort d'ancestor, Avrit of entry sur disseisin, in the quibus, in the per, in the per and cui, or in the post ; writ of entry sur intrusion, writ of entry sur alienation, dum fuit non compos mentis, dum fuit infra STATUTES. 315 setatem, dum fuit in prisono, ad communem legem, in casii proviso, in consimili casu, cui in vita, sur cui in vita, cui ante divortium, or sur cui ante divortium ; writ of entry sur abate- ment, writ of entiy quare ejecit infra terminum, or ad termi- num qui pra3teriit, or causa matrimonii pra3loci;ti ; writ of aiel, besaiel, tresaiel, cosinage or nuper obiit; writ of waste, writ of partition, writ of desceit, writ of quod ei deforceat, writ of covenant real, writ of warrantia chartse, writ of curia claudenda, or writ per qufe servitia, and no other action real or mixed (except a writ of right of dower, or writ of dower unde nihil habet, or a quare impedit, or an ejectment) and no plaint in the natixre of any such writ or action (except a plaint for freebench or dower) shall be brought after the 31st of Decem- ber, 1834. S. 39. That no descent, cast, discontinuance, or warranty which may happen or be made after the said 3 1st of December, 1833, shall toll or defeat any right of entry or action for the recovery of land. S. 41. That after the said 31st of December, 1833, no arrears of dower, nor any damages on account of such arrears, shall be recovered or obtained by any action or suit for a longer period than six years next before the commencement of such action or suit. S. 42. That after the said 31st of December, 1833, no arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress, action or suit but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent : Provided nevertheless, that where any prior mortgagee or other incumbrancer shall have been in possession of any land, or in receipt of the profits thereof, within one year next before an action or suit shall be brought by any person entitled to subsequent mortgage or other in- cumbrance on the same land, the person entitled to such subse- 316 APPENDIX 13. quent mortgage or incumbrance may recover in snch action or suit the arrears of interest which shall have become due during the whole time that such prior mortgagee or incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years. S. 43. That after the said 31st of December, 1833, no person claiming any tithes, legacy, or other property for the recovery of which he might bring an action or suit at law or in equity, shall bring a suit or other proceeding in any spiritual court to recover the same but within the period during which he might bring such action or suit at law or in equity. S. 41. Provided always, that this act shall not extend to Scotland, and shall not, so far as it relates to any right to permit to or bestow any church, vicarage, or other ecclesiastical benefice, extend to Ireland. AN ACT FOR THE AMENDMENT OF THE LAW OF INHERITANCE. 3 & 4 Will. 4, c. 106. S. 1. That the words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows (that is to say) : — " Land " shall extend to manors, advowsons, messuages, and all other hereditaments, whether corporeal or incorporeal and pp 164 166. whether freehold or copyhold, or of any other tenure, and whether descendible according to the common law or according to the custom of gavelkind or borough English or any other custom, and to money to be laid out in the purchase of land, and to chattels and other personal property transmissible to heirs, and also to any share of the same hereditaments and properties or any of them, and to any estate of inheritance, or estate for any life or lives or other estate transmissible to heirs, and to any possibility, right or title of entry or action, and any other intei'est capable of being inherited, and whether the same estates, possibilities, right, titles and interests or STATUTES. 317 any of them shall be in possession, reversion, remainder or contingency; and the word "purchaser" shall mean the person who last acquired the land otherwise than by descent or than by any escheat, partition, or inclosure, by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent ; and the word " descent " shall mean the title to inherit land by reason of consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be a child or other issue ; and the " descendants " of any ancestor shall extend to all persons who must trace their descent through such ancestor; and the expression "the person last entitled to land " shall extend to the last person who had a right thereto, Avhether he did or did not obtain the possession or receipt of the rents and profits thereof ; and the word " assurance " shall mean any deed or instrument (other than a will) by which any land shall be conveyed or transferred at law or in equity ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. S. 2. That in every case descent shall be traced from the purchaser, and to the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title shall require, the person last entitled to the land shall, for the purposes of this Act, be considered to p. 164. have been the purchaser thereof, unless it shall be proved that he inherited the same, in which case the person from whom he inherited the same shall be considered to have been the pur- chaser unless it shall be proved that he inherited the same ; and in like manner the last person from whom the land shall have been proved to have been inherited shall in every case be considered to have been the purchaser, xmless it shall be proved that he inherited the same. S. 3. That when any land shall have been devised by any testator who shall die after the 31st day of Decembei-, 1833, P- 165. to the heir or to the person who shall be the heir of such 318 APPENDIX B. testator, such heir shall be considered to have acquired the land as a devisee, and not by descent ; and when any land shall have been limited by any assurance executed after the said 31st day of December, 1833, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate or part thereof. S. 4. That when any person shall have acquired any land by purchase under a limitation to the heirs or to the heirs of the body of any of his ancestors, contained in an assurance executed after the said 31st day of December, 1833, or under p. 166. g^ limitation to the heirs or to the heirs of the body of any of his ancestors, or iinder any limitation having the same effect, contained in a will of any testator who shall depart this life after the said 31st day of December, 1833, then and in any such cases such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land. S. 5. That no brother or sister shall be considered to inherit P- 166. immediately from his or her brother or sister, but every descent from a brother or sister shall be traced through the parent. S. 6. That every lineal ancestor shall be capable of being heir to any of his issue ; and in every case where there shall be no issue of the purchaser, his nearest lineal ancestor shall be his heir in preference to any person who would have been P- 166' entitled to inherit, either by tracing liis descent through such lineal ancestor, or in consequence of there being no descendant of such lineal ancestor, so that the father shall be preferred to a brother or sister, and a more remote lineal ancestor to any of his issue other than a nearer lineal ancestor or his issue. S. 7. That none of the maternal ancestors of the person from whom the descent is to be traced, nor any of their descen- P- 167. dants, shall be capable of inheriting initil all his paternal ancestors and their descendants shall have failed ; and also that no female paternal ancestor of such person, nor any of STATUTES, 319 lier descendants, shall be capable of inheriting until all his male paternal ancestors and their descendants shall have failed ; and that no female maternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male maternal ancestors and their descendants shall have failed. S. 8. That where there shall be a failure of male paternal ancestors of the pei'son from whom the descent is to be traced, and their descendants, the mother of his more remote male pa- ternal ancestor, or her descendants, shall be the heir or heirs of p. 167 such person in preference to the mother of a less remote male paternal ancestor, or her descendants ; and where there shall be a failure of male paternal ancestors of such person, and their descendants, the mother of his more remote male maternal ancestor, and her descendants, shall be the heir or heirs of such person in preference to the mother of a less remote male ma- ternal ancestor, and her descendants. S, 9. That any person related to the person from whom the descent is to be traced by the half blood shall be capable of being his heir, and the place in which any such relation by the half blood shall stand in the order of inheritance, so as to be entitled to inherit, shall be next after any relation in the same p. 167. degree of the w^hole blood and his issue, where the common ancestor shall be a male, and next after the common ancestor where such common ancestor shall be a female, so that the brother of the half blood on the part of the father shall inherit next after the sisters of the whole blood on the part of the father and their issue, and the brother of the half blood on the part of the mother shall inherit next after the mother. S. 10. That when the person from whom the descent of any land is to be traced shall have had any relation who, having been attainted, shall have died before such descent shall have P- 167. taken place, then such attainder shall not prevent any person from inheriting such land who would have been capable of in- heriting the same by tracing his descent through such relation if he had not been attainted, unless such land shall have escheated in consequence of such attainder before the 31st of January, 1834. 320 APPENDIX B. S. 11. That this act shall not extend to any descent which p. 167. shall take place on the death of any person who shall die before the said 1st of January, 1834. S. 12. That where any assurance executed before the said 1st of January, 1834, or the will of any person who shall die before the same 1st of January, 1834, shall contain any limita- tion or gift to the heir or heirs of any person, under which the person or persons answering the description of heir shall be entitled to an estate by purchase, then the person or persons who would have answered such description of heir if this act had not been made shall become entitled by virtue of such limitation or gift, whether the person named as ancestor shall or shall not be living on or after the said 1st of January, 1834. THE WILLS ACT, 1837. 7 Will. 4 cfe 1 Vict. c. 26. S. 1. Be it enacted that the words and expressions herein- after mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows : (that is to say) the word " will " shall extend to a testament, and to a codicil, and to an appointment by will, or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of an act passed in the twelfth year of the reign of King Charles the Second intituled "An Act for taking away the Court of wards and liveries and tenures in capite, and by knights service, and purveyance, and for settling a revenue upon his Majesty in lieu thereof" or by virtue of an act passed in the Parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, in- tituled " An Act for taking away the Court of wards and liveries and tenures in capite and by knight's service," and to any other testamentary disposition : and the words " real estate " shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary STATUTES. 321 freehold, tenant right, customary or copyhold, or of any ■other tenure, and whether corporeal, incorporeal, or per- sonal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein ; and the words "personal estate" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and •all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. S. 2. And be it further enacted that an Act passed in the thirty-second year of the reign of King Henry the Eighth, in- tituled "the Act of wills, wards and primer seisins, whereby a man may devise two parts of his land ; " and also an Act passed in the thirty-fourth and thirty-fifth years of the reign of the said King Henry the Eighth intituled " the Bill concerning the explanation of wills ; " and also an Act passed in the Parliament of Ireland in the tenth year of the reign of King Charles the First intituled " an Act how lands, tenements, etc. may be disposed by will or otherwise, and concerning wards and primer seisins ; " and also so much of an Act passed in the twenty-ninth year of the reign of King Charles the Second, intituled "an Act for prevention of frauds and perjuries;" and of an Act passed in the Parliament of Ireland in the seventh year of the reign of King William the Third intituled " an Act for prevention of frauds and perjuries," as relates to devises or bequests of lands or tenements, or to the revocation or altera- tion of any devise in writing of any lands, tenements, or hereditaments, or any clause thereof, or to the devise of any estate pur autre vie, or to any such estate being assets, or to nuncupative wills, or to the repeal, altering or changing of any will in writing concerning any goods or chattels or personal estate, or any clause, devise, or bequest therein ; and also so much of an Act passed in the fourth and fifth years of the W.Y.E. Y 322 APPENDIX B. reign of Queen Anne, intituled "an Act for the amendment of the law and the better advancement of justice ; " and of an Act passed in the Parliament of Ireland in the sixth year of the reign of Queen Anne, intituled "an Act for the amendment of the law and the better advancement of justice," as relates to witnesses to nuncupative Avills ; and also so much of an Act passed in the fourteenth year of the reign of King George the Second, intituled " an Act to amend the law concerning common recoveries, and to explain and amend an Act made in the twenty-ninth year of the reign of King Charles the Second, intituled ' an Act for the prevention of frauds and perjuries,' as relates to estates pur autre vie : " and also an Act passed in the twenty-fifth year of the reign of King George the Second, intituled " an Act for avoiding and putting an end to certain doubts and questions relating to the attestation of wills and codicils concerning real estates in that part of Great Britain called England, and in his Majesty's colonics and plantations in America ; " and also an Act passed in the Parliament of Ireland in the same twenty-fifth year of the reign of King George the Second, intituled " an Act for the avoiding and putting an end to certain doubts and questions relating to the attestations of wills and codicils concerning real estate ; " and also an Act passed in the fifty-fifth year of the reign of King George the Third, intituled " an Act to remove certain diffi- culties in the dispositions of copyhold estates by will," shall be and the same are hereby repealed, except so far as the same Acts, or any of them respectively relate to any wills or estates pur autre vie to which this Act does not extend. S. 3. It shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner hereinafter re- quired, all real estate and all personal estate which he shall ]?^i ' '^^' be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator ; and that the power hereby given shall extend to all real estate of the nature of customary, freehold or tenant right, or customary or copyhold, not- STATUTES. 323 withstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this Act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this Act, if this Act had not been made ; and also to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal here- ditament, and also to all contingent, executory or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will ; and also to all rights of entry for conditions broken, and other rights of entry ; and also to such of the same estates, interests and rights re- spectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will. ' S. 4. Provided always, and be it further enacted that, where any real estate of the nature of customary freehold, or tenant right, or customary or copyhold, might by the custom of the manor of which the same is holden, have been surrendered to the iTse of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, Y 2 324 APPENDIX B. fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate to the use of the will, or in respect of presenting, registering or enrolling such surrender, if the same real estate had been surrendered to the vise of the will of such testator ; Provided also, that where the testator was entitled to have been admitted to such real estnte, and might, if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fines and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees and sums of money as would have been lawfully due and payable in respect of surrendering such real estate to the use of the will, or of presenting, registering, or enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will ; all which stamp duties, fees, fine or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid. S. 5. And be it further enacted, that when any real estate of the nature of customary freehold or tenant right, or cus- tomary or copyhold, shall be disposed of by will, the lord of the manor or reputed manor of which such real estate is p. 152. holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such real estate, to be entered on the court rolls of such manor or reputed manor ; and when any trusts are declared by the will of such real estate it shall not be necessary to enter the declaration of such trusts, but it shall be suflicient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will ; and when any such real STATUTES. 325 estate could not have been disposed of by -will if this Act had not been made, the same fine, heriot, dues, duties and services shall be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate, and the lord shall, as against the devisee of such estate, have the same remedy for recovering and enforcing such fine, heriot, dues, duties and services as he is now entitled to for recovering and enforcing the same from or against the customary heir in case of descent. S. 6. And be it further enacted, that if no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple ; and in case there shall be no special occupant of any estate pur autre vie, Avhether freehold or customary freehold, tenant right, p. 163. customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant ; and if the same shall come to the executor or administrator, either by reason of a special occupancy or by virtue of this Act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate. S. 7. And be it further enacted, that no will made by any p. 154. person under the age of twenty-one years shall be valid. S. 8. Provided also, and be it further enacted, that no will made by any married woman shall be valid except such a will p. 154. as might have been made by a married woman before the passing of this Act. S. 9. And be it further enacted, that no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned ; (that is to say) it shall be signed " at the foot or p. 154. end thereof" by the testator, or by some person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall 326 APPENDIX B. attest and shall subscribe the will in the presence of the testa- tor, but no form of attestation shall be necessary. S. 10. And be it further enacted, that no appointment made by will in exercise of any power shall be valid, unless the same be executed in manner hereinbefore required ; and every will p. 155. executed in manner hereinbefore required, shall, so far as re- spects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execu- tion or solemnity. S. 13. And be it further enacted, that every will executed p. 154. in manner hei'einbefore required shall be valid without any other publication thereof. S. 14. And be it further enacted, that if any person who shall attest the execution of a will shall at the time of the p. 154. execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. S. 15. And be it further enacted, that if any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment of, or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, p. 155. legacy, estate, interest, gift, or appointment shall, so far only as concerns such persons attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will. S. 16. And be it further enacted, that in case by any will p. 155. any real or personal estate shall be charged with any debt or debts, and any creditor, or tlie wife or husband of any creditor, STATUTES. 327 whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge sliall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof. S. 17. And be it further enacted, that no person shall, on account of his being an executor of a will, be incompetent to be p- 155 admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof. S. 18. And be it further enacted, that every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment when the p. 155. real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor or administrator, or the person entitled as his or her next of kin, under the statute of distribution). S. 19. And be it further enacted, that no will shall be re- p. 155 Yoked by any presumption of an intention on the ground of an alteration in circumstances. S. 20. And be it further enacted, that no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid ; or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke tlie same, and executed in the manner in which a will is here- p. 156. inbefore required to be executed, or by the burning, tearing, or otherwise destrojung the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same. S. 21. And be it further enacted, that no obliteration, in- terlineation, or other alteration made in any will after the execution tliereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall p. 156. not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will ; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to 328 APPENDIX B. such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the will. S. 22. And be it further enacted, that no will or codicil or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing p. 156. an intention to revive the same ; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. S. 23. And be it further enacted. That no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, P- 157. shall prevent the operation of the Avill with respect to such estate or interest in such real or pei-sonal estate as the testator shall have power to dispose of by will at the time of his death. S. 24. And be it further enacted, that every will shall be construed, with reference to the real estate and personal estate p. 153. comprised in it, to speak and take effect as if it had been. executed immediately before the death of the testator, unless a contrary intention shall appear by the will. S. 25. And be it further enacted, that unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in p. 157. any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking eflFect, shall be included in the residuary devise (if any) contained in such will. S. 26. And be it further enacted, that a devise of the land P- 157. of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his will, or other- STATUTES. 329 wise described in a general manner and any other general de- vise which would describe a customary, copyhold or leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the customar}', copyhold and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them, to which svich description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will. S. 27. And be it further enacted, that a general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person men- tioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), r- 158. which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will ; and a beqiiest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be constnied to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power unless a contrary intention shall appear by the will. S. 28. And be it further enacted, that where any real estate shall be devised to any person withovit any words of limitation, such devise shall be construed to pass the fee P- 159. simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will. S. 29. And be it further enacted, that in any devise or bequest of real or personal estate the words "die without issue," or " die without leaving issue," or " have no issue," or any other words which may import either a want or failure of P- 159. issue of any person in his lifetime or at the time of his death, or an indefinite faikire of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue. 330 APPENDIX B. unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or other- wise ; Provided that this Act shall not extend to cases where such words as aforesaid import if no issue described in a pre- ceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. S. 30. And be it further enacted, that where any real estate (other than or not being a presentation to a church) shall be de- vised to any trustee or executor, such devise shall be construed p. 160. to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication. S. 31. And be it further enacted, that where any real estate shall be devised to a trustee without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such bene- p. 160. ficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple or other the whole legal estate which the tes- tator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied. S. 32. And be it further enacted, that when any person to whom any real estate shall be devised for an estate tail or an estate in quasi entail shall die in the lifetime of the p. 160. testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall talie efifect as if the death of such person had happened STATUTES. 331 immediately after the death of the testator, unless a contrary intention shall appear by the will. S. 33, And be it further enacted, that where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of p. 160. such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time at the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. S. 34. And be it further enacted, that this Act shall not extend to any will made before the first day of January, One thousand Eight hundred and thirty-eight, and that every will re-executed or re-published* or revived by any codicil, shall for p. 161. the purposes of this Act be deemed to have been made at the time at which the same shall be so re-executed, re-published, or revived ; and this Act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, One thousand Eight hundred and thirty-eight. S. 35. And be it further enacted that this Act shall not extend to Scotland. 7 Will. 4 & 1 Vict. c. 28. An Act to amend 3 & 4 Will. 4, c. 27. It shall and may be lawful for any person entitled to or claiming under any mortgage of land, being land within the definition contained in the first section of the said Act, to make an entry or bring an action at law or suit in equity p. 221. to recover such land at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry or bring such action or suit in equity shall have first accrued, anything in the said Act notwithstanding. 332 APPENDIX B. 1 & 2 Vict. c. 74. S. 1. 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 twenty pounds 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 and refuse to quit and deliver up possession of the premises or such part thereof pp. 5, 28] — 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 hereinafter 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 and occupier shall not thereupon appear at the time and place appointed, and show 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 the said premises or any part thereof shall be situate, in Petty Sessions assembled, or any STATUTES. S33 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 shall be situate, commanding them, within a period to be therein named, not less than twenty-one nor more than thirty clear days from the date of such warrant, to enter (by force if needful) into the premises, and give possession of the same to such landlord or agent ; Provided always, that entry upon any such warrant shall not be made on a Sunday, Good Friday, or Chi'istmas Day, or at any time except between the hours of nine in the morning and four in the afternoon : Provided also, that nothing herein contained shall be deemed to protect any person on whose application and to whom any such warrant shall be granted from any action which may be brought against him by any such tenant or occupier, for or in respect of such entry and taking possession, where such person had not at the time of granting the same lawful right to the possession of the same premises : Provided also, that nothing hei-ein contained shall affect any rights to which any person may be entitled as outgoing tenant by the custom of the country or otherwise. S. 2. And be it enacted, that such notice of application in- tended to be made under 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 of the persons so holding over as aforesaid, and that the person serving the P- 282, 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 or admission thereto cannot be obtained for serving such summons, the posting up of the said summons on some conspicuous part of the premises so held over shall be deemed to be good service upon such person. S. 3. And be it enacted, that in every case in which the person to whom any such warrant shall be granted had not at p. 2S3. the time of granting the same lawful right to the possession of the premises, the obtaining of any such warrant as aforesaid 334 APPENDIX B. shall be deemed a trespass by him against the tenant or occupier of the premises, although no entry shall be made by virtue of the warrant ; and in case any such tenant or occupier "will become bound with two sureties as hereinafter provided, to be approved by the said Justices, in such sums as to them shall seem reasonable, regard being had to the value of the premises and to the probable costs of an action, to sue the person to Avhom such warrant was granted with effect and without delay, and to pay all the costs of the proceeding in such action in case a verdict shall pass for the defendant, or the plaintiff shall discontinue or not prosecute his action or become non-suit therein. Execution of the warrant shall be delayed until judgment shall have been given in such action of trespass ; and if upon the trial of such action of trespass a verdict shall pass for the plaintiff, such verdict and judgment thereupon shall supersede the warrant so granted, and the plaintiff shall be entitled to double costs in the said action of trespass. S. 4. And be it enacted, that every such bond as herein- before mentioned shall be made to the said landlord or his agent at the costs of such landlord or agent, and shall be approved of and signed by the said justices; and if the bond so taken be forfeited, or if iipon the trial of the action for P- -^^- securing the trial of which such bond was given, the judge by whom it shall be tried shall not endorse upon the record in Court that the condition of the bond hath been fulfilled, the party to whom the bond shall have been so made may bring an action and recover thereon : Provided always, that the Court where such action as last aforesaid shall be brought may, by a rule of Court, give such relief to the parties upon such bond as may be agreeable to justice, and such rule shall have the nature and effect of a defeazance to such bond. S. 5. And be it enacted, that it shall not be lawful to bring any action or prosecution against the said justices by Avhom such warrant as aforesaid shall have been issued, or against r- ^^^- any constable or peace officer by whom such warrant may be executed, for issuing such warrant or executing the same respectively, by reason that the person on whose application STATUTES. S35 the same shall be granted had not lawful right to the possession of the premises. S. 6. And be it enacted, 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 p. 283. anthority of this Act, but the party aggrieved may if he think fit bring an action on the case for such irregularity or in- formality, 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 snit : provided, that if the special damage so laid be not proved, the defendant shall be entitled to a verdict, and that if proved and assessed by the jury at any sum not exceeding five shillings, the plaintiff shall recover no more costs than damages, unless the judge before whom the trial shall have been held shall certify upon the back of the record that in his opinion full costs ought to be allow^ed. S. 7. And be it enacted, that in construing this Act the w-ord "premises" shall be taken to signify lands, houses, or other corporeal hereditaments ; and that the word " person " sliall be taken to comprehend a body politic, corporate, or collegiate as well as an individual, and that every word im- porting the singular number shall, where necessary to give full effect to the enactments hei-ein contained, he deemed to extend and be applied to several persons or things, as well as one P- 283. person or thing ; and that every word importing the masculine •gender shall where necessary extend 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 immediate reversion of the premises, or, if the property be held in joint- tenancy, coparcenary, or tenancy in common, shall be under- stood as signifying any one of the persons entitled to such reversion; and that the word "agent" shall be taken to signify any person usually employed by the landlord in the letting of the premises, or in the collection of the rents thereof, 336 APPENDIX B. or specially authorised to act in the particular matter by writing: under the hand of such landlord. 1 & 2 Vict. c. 110, s. 11. And whereas the existing law is defective in not providing adequate means for enabling judgment creditors to obtain satisfaction from the property of their debtors, and it is ex- pedient to give judgment creditors more effectual remedies against the real and personal estate of their debtors than they jDOSsess under the existing law ; be it therefore further enacted, that it shall be lawful for tlie sheriff or other officer to whom any writ of elegit or any precept in pursuance thereof, shall be directed, at the suit of any person, upon any judgment which at the time appointed for the commencement of this act shall have been recovered or shall be thereafter recovered in any action in any of her majesty's superior courts at Westminster, to make and deliver execution unto the party in that behalf pp. 14j, 147. suing of all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execution is so sued ; or any person in trust for him, shall have been seised or possessed of at the time of entering up the said judg- ment, or at any time afterwards, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might without the assent of any other person exercise for his own benefit, in like manner as the sheriff or other officer may now make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit is sued out ; which lands, tenements, rectories, tithes, rents, and here- ditaments, by force and virtue of such execution, shall accordingly be held and enjoyed by the party to whom such execution shall be so made and delivered, subject to such account in the court out of which such execution shall have been sued out as a tenant by elegit is now subject to in a court of equity : Provided always, that such party suing out execu- tion, and to whom any copyhold or customary lands shall be so delivered in execution, shall be liable and is hereby required STATUTES. 337 to make, perform, and render to tlie lord of the manor or other person entitled all such and the like payments and services as the person against whom such execution shall be issued would have been bound to make, perform, and render in case such execution had not issued ; and that the party so suing out such execution, and to whom any such copyhold or customary lands shall have been so delivered in execution, shall be entitled to hold the same until the amount of such payments, and the value of such services, as well as the amount of the judgment, shall have been levied : Provided also, that as against pui'- chasers, mortgagees, or creditors who shall have become such before the time appointed for the commencement of this act, such writ of elegit shall have no greater or other effect than a writ of elegit would have had in case this act had not passed. 3 cfe 4 Vict. c. 77. S. 19. And for the more speedy and effectual recovery of the possession of any premises belonging to any grammar school which the master who shall have been dismissed as aforesaid, or any person who shall have ceased to be master, shall hold over after his dismissal or ceasing to be master, except under such assignment as may have been made under the provisions of this act, the term of such assignment, being still unexpired, and the premises being in tlie actual occupation of the master, VV- ^' 284. so dismissed or ceased to be master, be it enacted, that when and as often as any master holding any schoolroom, school- house, or any other house, land or tenement, by virtue of his office or as tenant or otherwise under the trustees of the said grammar school, except on lease for a term of years still unexpired shall have been dismissed as aforesaid, or shall have ceased to be master, and such master, or (if he shall not actually occupy the premises or shall 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, except such as are hereinbefore excepted, within the space of three months after such dismissal or ceasing to be master, it shall be lawful for justices of the peace acting for the W.Y.E. Z 338 APPENDIX B. district or division in which such premises or any part thereof are situated, in petty sessions assembled, or any two of them, and they are hereby required, on the coniphiint of the said trustees or their agents, under the production of an order of the court of chancery declaring such master to have been duly dismissed or have ceased to be master to issue a warrant under their hands and seals, to the constables and peace officers of the said district or division, commanding them, within a period to be therein named, not less than ten nor more than twenty- one clear days from the date of such warrant, to enter into the premises, and give possession of the same to the said trustees or their agents in such manner as any justices of the peace are empowered to give possession of any premises to any landlord or his agents under an act passed in the session of parliament held in the first and second years of the reign of her present majesty, intituled^?;, act to facilitate the recovery of possession of tenements after due determination of the tenancy. S. 20. Provided always, and be it enacted that nothing in this Act or the said recited Act shall extend or be construed to extend to enable any master so dismissed, or ceasing to be master as aforesaid to call in question the validity of such dismissal, provided that the same shall have proceeded from the persons authorized to order the same after such inquiries and by such mode of proceeding as required in that beha]f, or to call in question the title of the trustees to possession of any premises of which such master shall have become possessed by virtue of his late office, or as tenant or otherwise under the trustee.' of the said grammar school for the time being. 3 & 4 Vict. c. 84, s. 13. S. 13. That after the passing of this Act none of the police magistrates within the metropolitan police district shall be re- quired to go upon any deserted lands, tenements or heredita- !'• ^^^- ments for the purpose of viewing the same or affixing any nutices thereon, or of putting the landlord or landlords, lessor or lessors, into the possession thereof, under the provisions of 11 Geo. 2, c. 19, intituled "an Act for the more effectual securing the payment of rents, and preventing frauds by 339 STATUTES. tenants," or of the 57 Goo. 3, c. 52, for altering the last recited Act, but that in every case within the metropolitan police district in which by the said Acts, or either of them, two justices are authorized to put the landlord or lessor into the possession of such deserted premises, it shall be lawfid for one of the police magistrates, upon request of the lessor or landlord, or his or her bailiff or receiver, made in open court, and upon proof given to the satisfaction of such magistrate of the arrear of rent and desertion of the premises by the tenant as aforesaid, to issue his warrant, directed to one of the constables of the metropolitan police force, requiring him to go upon and view the premises, and to affix thereon the like notices as under the said Acts or either of them are required to be affixed by two justices of the peace ; and upon the return of the warrant, and upon proof being given to the satisfaction of the magistrate before whom the warrant shall be returned that it has been duly executed, and that neither the tenant nor any person, on his or her behalf has appeared and paid the rent in arrear, and that there is not sufficient distress upon the premises, it shall be lawful for such magis- trate to issue his warrant to a constable of the metropolitan police force, requiring him to put the landlord or lessor into the possession of the premises ; and eveiy constable to whom any such warrant shall be directed shall duly execute and return the same, subject to the provisions contained in 2 & 3 Vict., c. 47, intituled " an Act for fui'ther improving the police in and near the metropolis," as to the execution of warrants directed to constables of the metropolitan police force ; and upon the execution of such second warrant the lease of the premises to such tenant, as to any demise therein contained only, shall thenceforth be void. ACT TO AMEND THE LAW OF REAL PROPERTY. 8 & 9 Vict. c. 106. S. 3. That a feoffment, made after the first day of October, One thousand Eight hundred and forty-five, other than a PP- 51, 80. feoffment made under a custom by an infant, shall be void at law, unless evidenced by deed ; and that a partition, and an Z 2 840 APPENDIX B. exchange, of any tenements or hereditaments, not bchig copy- hold, and a lease, required by law to be in writing, of any tenements or hereditaments, and an assignment of a chattel interest, not being copyhold, in any tenements or heredita- ments, and a surrender in writing of an interest in any tenements or hereditaments, not being a copyhold interest^ and not being an interest which might by law have been created without writing, made after the said first day of October, One thousand Eight hundred and forty-five, shall also be void at law, unless made by deed : Provided always, that the said enactment so far as the same relates to a release or a surrender shall not extend to Ireland. 8 & 9 Vict. c. 112. p. 3, S. 1. "Whereas the assignment of satisfied terms has been found to be attended with great difficulty, delay, and expence, and to operate in many cases to the prejudice of the persons justly entitled to the lands to which they relate"; Be it therefore enacted, that every satisfied term of years which, either by express declaration or by construction of law, shall upon the thirty-first day of December, One thousand Eight p. 4. ' hundred and forty-five be attendant upon the inheritance or reversion of any lands, shall on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years which shall be so attendant as aforesaid, by express declaration, although hereby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim and demand as it would have aftbrded to him if it had continvied to subsist, but had not been assigned or dealt with, after the said thirty-fii'st day of December, One thousand Eight hundred and forty-five, and shall for the pur- pose of such protection be considered in every court of law and of equity to be a subsisting term. S. 2. And be it enacted, that every term of years now p. ^ subsisting or hereafter to be created, becoming satisfied after the said thirty-first day of December, One thousand STATUTES. Eight hundred and forty- five, and which either by express declaration or by consti-uction of law, shall after that day become attendant npon the inheritance or reversion of any lands, shall immediately upon the same becoming so attendant iibsolutely cease and determine as to the land upon the in- lieritance or reversion whereof such term shall become attendant as aforesaid. S. 3. And be it enacted, that in the construction and for the purposes of this Act, unless there be something in the subject or context repugnant to such construction, the word ■" lands " shall extend to all freehold tenements and here- ditaments, whether corporeal or incorporeal, and to all such .customary land as will pass by deed, or deed and admittance and not by surrender, or any imdivided part or share thereof respectively ; and every word importing the singular number cnly shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the masculine gender only shall extend and be applied to a female ;;is well as a male. AN ACT TO AMEND THE WILLS ACT. 15 & 16 Vict. c. 24. p. 154 S. 1. Where by an Act passed in the first year of the reign of her majesty Queen Victoria, intituled "An Act for the Amendment of the Laws with respect to Wills," it is enacted, that no will shall be valid unless it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction : every will shall, so far only as regards the position of the signature of the testator, or of the person signing for him as aforesaid, be deemed to be valid Avithin the said enactment, as explained by this Act, if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will, and that no such will shall be affected by the circum- stance that the signature shall not follow or be immediately after the foot or end of the will, or by the circumstance that a S41 342 APPENDIX B. blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signa- ture shall be placed among the words of the testimonium clause or of the clause of attestation, either with or without a blank space intervening, or shall follow or be after or under or beside the names or one of the names of the subscribing wit- nesses, or by the circumstance that the signature shall be on a aide a page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circum- stance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature ; and the enumeration of the above circumstances shall not restrict the generality of the above enactment ; but no signature under the said Act or this Act shall be operative to give effect to any disposition or direction which is under- neath or which follows it ; nor shall it give effect to any disposition or direction inserted after the signature shall be made. S. 2. The provisions of this Act shall extend and be applied to every will already made where administration or probate has not already been granted or ordered by a court of com- petent jurisdiction in consequence of the defective execution of such wmII, or where the property, not being within the juris- diction of the ecclesiastical courts, has not been possessed or enjoyed by some person or persons claiming to be entitled thereto in consequence of the defective execution of such will, or the right thereto shall not have been decided to be in some other person or persons than the persons claiming under the will, by a court of competent jurisdiction, in consequence of the defective execution of such will. S. 3. The word "will" shall in the construction of this Act be interpreted in like manner as the same is directed to be interpreted under the provisions in this behalf contained in the Act of the first year of the reign of her majesty Queen Victoria. STATUTES. 343 COMMON LAW PROCEDURE ACT, 1852. 15 & 16 Vict. c. 7G. S. 209. Every tenant to whom any writ in ejectment shall be delivered, or to whose knowledge it shall come, shall forth- PP- '-;'5, 272. with give notice thereof to his landlord, or his bailiff or receiver, under penalty of forfeiting the value of three years' improved or rack rent of the premises demised or holden in the possession of such tenant, to the person of whom he holds, to be recovered by action in any court of common law having jurisdiction for the amount. S. 210. 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 non-payment thereof, such landlord or lessor shall and may, without any formal demand or re-entry, serve a writ 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 such land- lord or lessor may afl&x a copy thereof upon the door of any pp- 12, 71, 75, demised messuage, or in case such action in ejectment shall 23->' ' ' not be for the recovery of any messuage, then upon some notorious place of the lands, tenements, or hereditaments com- prised in such writ in ejectment ; and such affixing shall be deemed legal service thereof, which service or affixing such writ in ejectment shall stand in the place and stead of a demand and re-entry ; and in case of judgment against the defendant for non-appearance, if it shall be made to appear to the Court where the said action 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 writ was served, and that no sufficient distress was to be found on the demised pre- mises, countervailing the arrears then due, and that the lessor had power to re-enter, then and in every such case the lessor shall recover judgment and execution in the same manner as if the rent in arrear had been legally demanded and a re-entry made j and in case the lessee or his assignee or other person claiming or deriving under the said lease, shall permit and suffer judgment 344 APPENDIX B. to be had luid recovered on such trial in ejectment, and execu- tion to be executed thereon, without paying the rent and arrears, together with full costs, and without proceeding for relief in equity within six months after sucli execution exe- cuted, then and in such case the said lessee, his assignee, and all other persons claiming and deriving under the said lease shall be barred and foreclosed from all relief or remedy in law or equity, other than by bringing error for reversal of such judgment, in case the same shall be erroneous ; and the said landlord or lessor shall from thenceforth hold the said demised l)remises discharged from such lease ; and if on such ejectment a verdict shall pass for the defendant, or the claimant shall be nonsuited therein, then and in every such case siich defendant shall have and recover his costs ; provided that nothing herein contained shall extend to bar the right of any mortgagee of such lease, or any part thereof, who shall not be in possession, so as such mortgagee shall and do, within six months after such judgment obtained and execution executed, pay all rent in arrear, and all costs and damages sustained by such lessor or person entitled to the remainder or reversion as aforesaid, and perform all the covenants and agreements which, on the i^art and behalf of the first lessee, are and ought to be performed. S. 211. In case the said lessee, his assignee or other person claimiug any right, title or interest, in law or equity of, in, or to the said lease, shall, within the time aforesaid, proceed for relief in any Court of equity, such person shall not have or continue any injunction against the proceedings at law on such ejectment, unless he does or shall, within forty days next after pp. 117, 118. a full and perfect answer shall be made by the claimant in such ejectment, bring into Court, and lodge with the proper officer such sum or sums of money as the lessor or landlord shall in his answer swear to be due and in arrear over and above all just allowances, and also the costs taxed in the said suit, there to remain till the hearing of the cause, or to be paid out to the lessor or landlord on good security, subject to the decree of the Court ; and in case such proceedings for relief in equity shall be taken within the time aforesaid, and after execution is executed, the lessor or landlord shall be accountable only for so much STATUTES. 345 .and no more as he shall really and bond fide, without fraud, ■deceit, or wilful neglect, make of the demised premises from the time of his entering into the actual possession thereof ; and ;if what shall be so made by the lessor or landlord happen to be less than the rent reserved on the said lease, then the said lessee or his assignee, before he shall be restored to his posses- sion, shall pay such lessor or landlord, what the money so by liim made fell short of the reserved rent for the time such lessor or landlord held the said lands. 8. 212. If the tenant or his assignee do or shall, at any time before the trial in such ejectment, pay or tender to the lessor or landlord, his executors or administrators, or his or their .attorney in that cause, or pay into the Court where the same cause is depending, all the rent and arrears, together with the l^P- "2, 117, costs, then and in such case all further proceedings on the said .ejectment shall cease and be discontinued ; and if such lessee, his executors, administrators or assigns, shall, upon such proceedings as aforesaid, be relieved in equity, he and they .shall have, hold, and enjoy the demised lands, according to the lease thereof made, without any new lease. S. 213. Where the term or interest of any tenant now or hereafter holding under a lease or agreement in writing any lands, tenements, or hereditaments for any term or number of yeai's certain, or from A'ear to j'ear, shall have expired or been xietermined cither by the landlord or tenant by regular notice to quit, and siich tenant, or any one holding or claiming by or PP- ^^' ^^^> under him, shall refuse to deliver up possession accordingly, after lawful demand in writing made and signed by the land- lord or his agent, and served personally upon or left at the dwelling house or usual place of abode of such tenant or person, and the landlord shall thereupon proceed by action of eject- ment for the recovery of possession, it shall be lawful for him, at the foot of the writ in ejectment, to address a notice to such tenant or person requiring him to find such bail, if ordered by the Court or a judge, and for such purposes as are hereinafter next specified ; and upon the appearance of the party on an .affidavit of service of the writ and notice, it shall be lawful for the landlord producing the lease or agreement, or some counter- 346 APPENDIX B. part or duplicate thereof, and proving the execution of the same by affidavit, and upon affidavit that the premises had been actually enjoyed under such lease or agreement, and that the interest of the tenant has expired, or been determined by regular notice to quit, as the case may be, and that possession has been lawfally demanded in manner aforesaid, to move the Court or apply by summons to a Judge at Chambers for a rule or summons for such tenant or person to show cause, within a time to be fixed by the Court or judge on a consideration of the situation of the premises, why such tenant or person should not enter into a recognizance by himself and twa sufficient sureties in a reasonable sum conditioned to pay the costs and damages which shall be recovered by the claimants in the action; and it shall be lawful for the Court or judge upon cause shown, or upon affidavit of the service of the rule or summons in case no cause shall be shown, to make the same absolute in the whole or in part, and to order such tenant or person, within a time to be fixed, \ipon a consideration of all the circumstances, to find such bail, with such conditions, and in such manner as shall be specified m the said rule or summons, or such part of the same so made absolute ; and in case the party shall neglect or refuse so to do and shall lay no ground to induce the Court or judge to enlarge the time for obeying the same, then the lessor or landlord filing an affidavit that such rule or order has been made and served and not complied with, shall be at liberty to sign jiidgment for recovery of possession and costs of suit. S. 214. Whenever it shall appear on the trial of any eject- ment at the suit of a landlord against a tenant, that such p. 191. tenant or his attorney hath been served with due notice of trial, the judge before whom such cause shall come on to be tried shall, whether the defendant shall appear upon such trial or not, permit the claimant on the trial after proof of his right to recover possession of the whole, or of any part of the premises mentioned in the writ of ejectment, to go into evidence of the mesne profits thereof which shall or might have accrued from the day of the expiration or determination of the tenant's interest in the same down to the time of the verdict STATUTES. J?47 given in the cause, or to some preceding day to be mentioned therein ; and the jury on the trial finding for the claimant shall in such case give their verdict upon the whole matter, both as to the recovei*y of the whole or any part of the premises, and also as to the amount of damages to be paid for such mesne profits ; and in such case the landlord shall have judg- ment within the time hereinbefore provided, not only for the recovery of possession and costs, but also for the mesne profits found by the jury ; provided always that nothing hereinbefore contained shall be construed to bar any such landlord from bringing any action for the mesne profits which shall accrue from the verdict, or the day so specified therein, down to the day of the delivery of possession of the premises recovered in ejectment. 22 & 23 Vict. c. 35. S. 3. Where the reversion upon a lease is severed, and the rent or other reservation is legally apportioned, the assignee of each part of the reservation shall, in respect of the appor- tioned rent or other reservation allotted or belonging to him p. 02, have and be entitled to the benefit of all conditions or powers of re-entry for non-payment of the original rent or other reservation, in like manner as if such conditions or powers had been reserved to him as incident to his part of the reversion in respect of the apportioned rent or other reservation allotted or belonging to him. S. 19. Where there shall be a total failure of heirs of the purchaser, or where any land shall be descendible as if an ancestor had been the purchaser thereof, and there shall be a p. 166, total failure of the heirs of such ancestor, then, and in every such case, the land shall descend, and the descent shall thence- forth be traced from the person last entitled to the land as if he had been the purchaser thereof. S. 20. The last preceding section shall be read as part of the Act "For the amendment of the law of inheritance," of the p. ■'.66, session of the third and fourth years of the reign of King William the Fourth, chapter one hundred and six. M8 APPENDIX E. 23 & 24 Vict. c. 38. S. G. Where any actual waiver of the benefit of any covenant or condition in any lease on the part of any lessor, or his heirs, executors, administrators or assigns, shall be proved to have taken place after the passing of this Act in any one particular instance, such actual waiver shall not be assumed or deemed to extend to 114. any instance or any breach of covenant or condition other than that to which such w'aiver shall specially relate, nor to be a general waiver of the benefit of any such covenant or con- dition, unless an intention to that effect shall appear. THE COMMON LAW PROCEDURE ACT, 1860. 23 & 24 Vict. 126. S. 1. In the case of any ejectment for a forfeiture brought for non-payment of rent, the Court or a judge shall have power, upon rule or summons, to give relief in a summary manner, 117. 118. ^^^t, subject to appeal as hereinafter mentioned, up to and within the like time after execution executed, and subject to the same terms and conditions in all respects, as to payment of rent, costs, and otherwise, as in the Court of Chancery ; and if the lessee, his executors, administrators, or assigns, shall, upon such proceeding, be relieved, he and they shall hold the demised lands according to the lease thereof made, Avithout any new lease. 27 & 28 Vict. c. 112. S. 1. No judgment, statute, or recognizance to be entered up after the passing of this Act shall aflPect any land (of what- pp. 1-15, 148. ever tenure) until such land shall have been actually delivered in execution by virtue of a writ of elegit, or other lawful authority, in pursuance of such judgment, statute, or recog- nizance. S. 2. In the construction of this Act the term "judgment" shall be taken to include registered decrees, orders of Courts of Equity and Bankruptcy, and other orders having the operation of a judgment; and the term "land " shall be taken to include all hereditaments, corporeal or incorporeal, or any interest STATUTES. 349 therein ; and the term " debtor " shall be taken to include husbands of married women, assignees and bankrupts, com- mittees of lunatics, and the heirs or devisees of deceased persons. S. 3. Every writ or other process of execution of any such judgment, statute, or recognizance, by virtue whereof any land shall have been actiuilly delivered in execution, shall be registered in the manner provided by an Act passed in the session of the twenty-third and twenty-fourth years of her present Majesty, intituled An Act to further amend the law of property^ but in the name of the debtor against whom such writ or process is P- 149. issued, instead of, as under the said Act, in the name of the creditor ; and no other or prior registration of such judgment, statute, or recognizance shall be, or be deemed, necessary for any purpose ; and no reference to any such prior registration shall be required to be made in or by the memorandum or minute of such writ or other process of execution which shall be left with the senior master of the Court of Common Pleas for the purpose of such registry. S. 4. Eveiy creditor to whom any land of his debtor shall have been actually delivered in execution by virtue of any such judgment, statute, or recognizance, and whose writ or other process of execution shall be duly registered, shall be entitled forthwith, or at any time afterwards while the registry of such writ or process shall continue in force, to obtain from the Court of Chancery, upon petition in a summary way, an order P- 149- for the sale of his debtor's interest in such land, and every such petition may be served upon the debtor only ; and there- upon the Court shall direct all such inquiries to be made as to the nature and particulars of the debtor's interest in such land, and his title thereto, as shall appear to be necessar}^ or proper ; and in making such inquiries, and generally in carrying into effect such order for sale, the practice of the said Court with respect to sales of real estates of deceased persons for the payment of debts shall be adopted and followed, so far as the same may be found conveniently applicable. S. 5. If it shall appear on making such inquiries that any other debt due on any judgment, statute, or recognizance is a 350 APPENDIX B. charge on such land, the creditor entitled to the benefit of such charge (whether prior or subsequent to the charge of the petitioner) shall be served with notice of the said oi'der for sale, and shall after such service be bound thereby, and shall be at liberty to attend the proceedings under the same, and to have the benefit thereof ; and the proceeds of such sale shall be distributed among the persons who may be found entitled thereto, according to their respective priorities. S. 6. Every person claiming any interest in such land through or under the debtor, by any means subsequent to the delivery of such land in execution as aforesaid, shall be bound by every such order for sale, and by all the proceedings consequent thereon. THE JUDICATURE ACT, 1873. 36 k 37 Vict. c. 66. S. 24. In every civil cause or matter commenced in the High Court of Justice law and equity shall be administered by pp. 60, 140. the High Court of Justice and the Court of Appeal respectively according to the rules following : — (1) If any plaintiff" or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title or claim whatsoever asserted by any defendant P' 1- or respondent in such cause or matter, or to any relief founded upon a legal right, which heretofore could only have been given by a court of equity, the said courts respectively, and every judge thereof, shall give to such plaintiff" or petitioner such and the same relief as ought to have been given by the Court of Chancery in a suit or proceeding for the same or the like purpose properly instituted before the passing of this Act. (2) If any defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument or contract, or against any right, title, or claim asserted by any plaintiff" or petitioner in such cause pp. 1, 142. or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, the said Courts respectively, and every judge thereof, shall STATUTES. 351 give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner, as the Court of Chancery ought to have given if the same or the like matters had been relied on by way of defence, in any suit or proceeding instituted in that court for the same or the like purpose before the passing of this Act. (4) The said courts respectively, and every judge thereof, shall recognise and take notice of all equitable estates, titles, And rights, and all equitable duties and liabilities appearing p. 1. incidentally in the course of any cause or matter, in the same manner in which the Court of Chancery would have recog- nised and taken notice of the same in any suit or proceeding duly instituted therein before the passing of this Act. (6) Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner afore- said, and to the other express provisions of this Act, the said coui'ts respectively, and every judge thereof, shall recognise and give effect to all legal claims and demands, and all estates, p. 2. titles, rights, duties, obligations and liabilities existing by the common law or by any custom, or created by any statute, in the same manner as the same would have been recognised and given effect to if this Act had not passed by any of the courts whose jurisdiction is hereby transferred to the said High Court of Justice. (7) The High Court of Justice and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them ■ by this Act in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either p. 2. absolutely or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsover as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter ; so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings con- cerning any of such matters avoided. 352 APPENDIX ]5. S. 25. — (2) No claim of a cestui que trust against liiS' trustee for any property held on an express trust, or in respect p. 217. of any breach of such trust, shall be held to be barred by any statute of limitations. (5) A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given pp. 2, 137. by the mortgagee, may sue for such possession or for the recovery of such rents or profits, or to prevent or recover" damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person. (8) A mandamus or an injimction may be granted, or a receiver appointed, by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient that such order should Ije made ; and any such p. 149. order may be made either unconditionally or iipon such terms- and conditions as the court shall think just ; and if an in- junction is asked either before, or at, or after the hearing of any cause or matter, to prevent any threatened or appre- hended waste or trespass, such injunction may be granted, if the court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title ; and whether the estates claimed by both or by either of the parties are legal or equitable. REAL PROPERTY LIMITATION ACT, 1874. 37 & 38 Vict. c. 57. S. 1. After the commencement of this act no person shall pp. 196, 107. make an entry or distress or bring an action or suit to recover any land or rent but within twelve years next after the time at which the right to make such entry or distress or to bring such action or suit shall have first accrued to some person STATUTES. 353 through whom he claims ; or if such right shall not have accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entry or distress or to bring such action or suit, shall have first accrued to the person making or bringing the same. S. 2. A right to make an entry or distress, or to bring an action or suit, to recover any land or rent shall be deemed to have first accrued, in respect of an estate or interest in rever- sion or remainder, or other future estate or interest, at the time at which the same shall have become an estate or interest in possession by the determination of any estate or estates in respect of which such land shall have been held, or the profits thereof or such rent shall have been received, notwithstanding the person claiming such land or rent, or some person throiigh whom he claims, shall at any time previously to the creation of the estate or estates which shall have determined, have been in the possession or receipt of the profits of such land, or in PP- 1^6, 201, . 202 211 215. receipt of such rent. But if the person last entitled to any ' ' particular estate on which any future estate or interest was expectant shall not have been in the possession or receipt of the profits of such land, or in receipt of such rent, at the time when his interest determined, no such entry or distress shall be made, and no such action or suit shall be brought, by any person becoming entitled in possession to a future estate or interest, but within twelve years next after the time when the right to make an entry or distress, or to bring an action or suit, for the recovery of such land or rent shall have first accrued to the person whose interest shall have so determined, or wuthin six years next after the time when the estate of the person becoming entitled in possession shall have become vested in possession, whichever of these two periods shall be the longer ; and if the right of any such person to make such entry or distress, or to bring any such action or suit, shall have been barred under this Act, no person afterwards claiming to be entitled to the same land or rent in respect of any subsequent estate or interest under any deed, will, or settlement, executed or taking effect after the time when a right to make an entry or distress, or to bring an action or suit, for the recovery of such land or rent, shall have W.Y.E. A A S54 APPENDIX B. first accrued to the owner of the particular estate whose interest shall have so determined as aforesaid, shall make any such entry or distress, or bring any such action or suit, to recover such land or rent. S. 3. If at the time at which the right of any person to make an entry or distress, or to bring an action or suit, to recover any land or rent, shall have first accrued as aforesaid, such person shall have been under any of the disabilities hereinafter pp. 197, 210, mentioned, (that is to say), infiincy, coverture, idiotcy, lunacy- or " ' " ■ unsoundness of mind, then such person, or the person claiming through him, may, notwithstanding the period of twelve years or six years (as the case may be) hereinbefore limited shall have ex- pired, make an entry or distress, or bring an action or suit, to re- cover such land or rent at any time within six years next after the time at which the person to whom such right shall first have ac- crued shall have ceased to be under any such disability, or shall have died (whichever of these two events shall have first happened). S. 4. The time within which any such entry may be made, or any such action or suit may be brought as aforesaid, shall not in any case after the commencement of this Act be extended pp. 197, 210. or enlarged by reason of the absence beyond seas during all or any part of that time of the person having the right to make such entry, or to bring such action or suit, or of any person through whom he claims. S. 5. No entr}^ distress, action, or suit shall be made or brought by any person who at the time at which his right to make any entry or distress, or to bring an action or suit to re- pp. 197, 211, cover any land or rent, shall have first accrued, shall be under any of the disabilities hereinbefore mentioned, or by any person claiming through him, but within thirty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such thirty years, or although the term of six years from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired. S. 6. When a tenant in tail of any land or rent shall have made an assurance thereof which shall not operate to bar the 215, STATUTES. 355 estate or estates to take effect after or in defeasance of his estate tail, and any person shall by virtue of such assurance at the time of the execvition thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in the receipt of such rent, and the same person or any other person whosoever (other than some person entitled to such possession P- 213, or receipt in respect of an estate which shall have taken effect after or in defeasance of the estate tail) shall continue or be in such possession or receipt for the period of twelve years next after the commencement of the time at which such assurance, if it had then been executed by such tenant in tail, or the person who would have been entitled to his estate tail if such assurance had not been executed, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then, at the expiration of such period of twelve years, such assurance shall be and be deenaed to have been effectual as against any person claiming any estate, interest, or right to take effect after or in defeasance of such estate tail. S. 7. When a mortgagee shall have obtained the possession or receipt of the profits of any land or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring any action or suit to redeem the mortgage but within twelve years next after the time at which the mortgagee obtained such possession pp. 216, 218, or receipt, unless in the meantime an acknowledgment in writing of the title of the mortgagor, or of his right to redemption, shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mort- gagor or person, signed by the mortgagee or the person claiming through him ; and in such case no such action or suit shall be brought but within twelve years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given ; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mort- gagors or persons ; but where there shall be more than one A A 2 356 APPENDIX B. mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as afore- said, and the person or persons claiming any part of the mortgage money or land or rent by from or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money or land or rent ; and where such of the mortgagees or persons aforesaid as shall have given such acknowledgment shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent on payment with interest of the part of the mortgage money which shall bear the same pi'oportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage. S. 8. No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judg- ment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money or some interest thereon shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent ; and in such case no such action or suit or pro- ceeding shall be brought but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledoments, if more than one, was given. STATUTES. '357 S. 9. From and after the commencement of this Act oil the provisions of the Act passed in the session of the third and fourth year of the reign of his h\te Majesty King William the Fourth, chapter twenty-seven (except those contained in the several sections thereof next hereinafter mentioned), shall remain in full force, and shall be construed together with this Act, and shall take efiect as if the provisions here- inbefore contained were substituted in such Act for the provisions contained in the sections thereof numbered two, five, sixteen, seventeen, twenty-three, twenty-eight and forty PP- 193, 210. respectively (which several sections from and after the com- mencement of this Act shall be repealed), and as if the term of six years had been mentioned, instead of the term of ten years, in the section of the said Act numbered eighteen, and the period of twelve years had been mentioned in the said section eighteen instead of the period of twenty years ; and the pro- visions of the Act passed in the session of the seventh year of the reign of his late Majesty King William the Fourth, and the first year of the reign of her present Majesty, chapter tw^enty-eight, shall remain in full force, and be construed together with this Act, as if the period of twelve years had been therein mentioned instead of the period of twenty years. S. 10. After the commencement of this Act ,no action, suit, or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent at law or in equity, and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in respect of such arrears, except witliin the time within which the same would be recoverable if there were not any such trust. THE CONVEYANCING ACT, 1881. 44 & 45 Vict. c. 41. p. i6. S. 2 (xi). A mining lease is a lease for mining purposes, that is, the searching for, winning, working, getting, making p. 120. merchantable, carrying away, or disposing of mines and minerals, or purposes connected therewith, and includes a grant or licence for mining purposes. 358 APPENDIX B. (xv). Bankruptcy includes liquidation by arrangement, and any other act or proceeding in law having, under any Act for p. 120. the time being in force, effects or results similar to those of bankruptcy ; and bankrupt has a meaning corresponding to that of bankruptcy. S. 4 (1). Where at the death of any person there is sub- sisting a contract enforceable against his heir or devisee for the sale of the fee simple or other freehold interest, descendible to his heirs general, in any land, his personal representatives \<- 170. shall, by virtue of this Act, have power to convey the land for all the estate and interest vested in him at his death, in any manner proper for giving effect to the contract. (2). A conveyance made under this section shall not affect the beneficial rights of any person claiming under any testa- mentary disposition or as heir or nest of kin of a testator or intestate. (3). This section applies only in cases of death after the commencement of this Act. S. 10 (1). Rent reserved by a lease, and the benefit of every covenant or provision therein contained, having reference to the subject matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and inci- l>p. 60, 63, 76. dent to and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. (2). This section applies only to leases made after the com- mencement of this Act. S. 11 (1). The obligation of a covenant entered into by a lessor with reference to the subject matter of a lease shall, if and as far as the lessor ha^ power to bind the reversionai-y pp. 60, 135. estate immediately expectant on the term granted by the lease, be annexed and incident to and shall go with that reversionary estate, or the several parts thereof, notwith- STATUTES. 859 standing severance of that reversionary estate, and may be taken advantage of and enforced by the pei'son in whom the term is from time to time vested by conveyance, devolution in hiw, or otherwise ; and, if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled. (2). This section applies only to leases made after the com- mencement of this Act. S. 12 (1). Notwithstanding the severance by conveyance, surrender, or otherwise of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition conrained in PP- 60> ^^^ the lease, shall be apportioned, and shall remain annexed to the severed parts of the reversionaiy estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease. (2). This section applies only to leases made after the com- mencement of this Act. S. 14 (1). A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease, shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a ^]^[ ' " ' notice specifying the particular breach complained of and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and in any case requiring the lessee to make compensation in money for the breach, and the lessee fails within a reasonable time thereafter to remedy the breach if it is capable of remedy, and to make reasonable compensation in moxiey to the satisfaction of the lessor for the breach. (2). Where a lessor is proceeding by action or otherwise to 360 APPENDIX B. enforce such a right of re-entry or forfeiture, the lessee may in the lessor's action, if any, or in any action brought by himself, apply to the court for relief, and the court may grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this pp. 120, 123. section, and to all the other circumstances, thinks fit, and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty or otherwise, in- cluding the granting of an injunction to restrain any like breach in the future, as the court in the circumstances of each case thinks fit. (3). For the purpose of this section a lease includes an original or derivative under-lease, also a grant at a fee-farm rent, or securing a rent by condition ; and a lessee includes an original or derivative under-lessee, and the heirs, executors, pp. 123, 124. administrators and assigns of a lessee, also a grantee under such a grant as aforesaid, his heirs and assigns ; and a lessor includes an original or derivative under-lessor, and the heirs, executors, administrators and assigns of a lessor, also a grantor as aforesaid, and his heirs and assigns. (4). This section applies although the proviso or stipulation xuider which the right of re-entry or forfeiture accrues is p. 124. inserted in the lease in pursuance of the directions of any Act of Parliament. (5). For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing p. 125. a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach. (6). This section does not extend — (i). To a covenant or condition against the assigning, under- letting, parting with the possession, or disposing of the land leased ; or to a condition for forfeiture on the bank- pp. 70, 119, ruptcy of the lessee, or on the taking in execution of the lessee's interest ; or (ii). In case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings thereof. 120. STATUTES. 361 (8) This section shall not affect the law relating to re-entry pp. 60, 120. or forfeiture or relief in case of non-payment of rent. (9) This section applies to leases made either before or after the commencement of this Act, and shall have effect notwith- pp. 78, 12.5. standing any stipulation to the conti'ary. S. 18. — (1) A mortgagor of land while in possession shall, as against every incumbrancer, have, by virtue of this Act, power to make from time to time any such lease of the mortgaged land, or any part thereof, as is in this section •described and authorized. (2) A mortgagee of land while in possession shall, as against all prior incumbrancers, if any, and as against the mortgagor, have by virtue of this Act power to make from time to time any such lease as aforesaid. (3) The leases which this section authorizes are : — (i) An agricultural or occupation lease for any term not exceeding twenty-one years ; and (ii) A building lease for any term not exceeding ninety-nine p. 135. years. (4) Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf (5) Every such lease shall be made to take effect in posses- sion not Inter than twelve months after its date. (6) Every such lease shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken. (7) Every such lease shall contain a covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified not ex- ceeding thirty days. (8) A counterpart of every such lease shall be executed by the lessee and delivered to the lessor, of which execution and •delivery the execution of the lease by the lessor shall, in favour of the lessee and all persons deriving title under him, be sufficient evidence. (9) Every such building lease shall be made in considera- tion of the lessee, or some person by whose direction the lease S62 APPENDIX B. is granted, having erected, or agreeing to erect within not more than five years from the date of the lease, buildings, new or additional, or having improved or repaired buildings, or agreeing to improve or repair buildings within that time, or having execvited, or agreeing to execute within that time, on the land leased, an improvement for or in connection with building purposes. (10) In any such bviilding lease or peppercorn rent, or a nominal or other rent less than the rent idtimately payable, may be made payable for the first five years, or any less part of the term. (11) In case of a lease by the mortgagor, he shall, within one month after making the lease, deliver to the mortgagee, or where there are more than one, to the mortgagee first in priority, a counterpart duly executed by the lessee : but the lessee shall not be concerned to see that this pro\ision is complied with. (12) A contract to make or accept a lease under this section m.ay be enforced by or against every person on whom the lease if granted would be binding. (13) This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise in writing, and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained. (14) Nothing in this Act shall prevent the mortgage deed from reserving to or conferring on the mortgagor or the: mortgagee, or both, any further or other powers of leasing or having reference to leasing ; and any further or other- powers so reserved or conferred shall be exerciseable, as far as. may be, as if they were conferred by this Act, and with all the like incidents, effects, and consequences, unless a contrary intention is expressed in the mortgage deed. (15) Nothing in this Act shall be construed to enable a mortgagor or mortgagee to make a lease lor any longer term or on any other conditions than such as could have been granted or imposed by the mortgagor, with the con- currence of all the incumbrancers, if this Act had not been passed. STATUTES. 863 (16) This section applies only in case of a mortgage made after the commencement of this Act ; but the provisions thereof of any of them, may, by agreement in writing made after the commencement of this Act, between mortgagor and mortgagee, be applied to a mortgage made before the com- mencement of this Act, so nevertheless that any such agree- ment shall not prejudically aifect any right or interest of any mortgagee not joining in or adopting the agreement. (17) The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or letting. S. 30. — (1) AVhere an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments corporeal or incorporeal, is vested on any trust, or by way of mortgage, in any person solely, the same shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time in like manner as if the same were a chattel real vesting in them or him ; and ac- cordingly all the like powers, for one only of several joint p. 170. personal representatives, as well as for a single personal repre- sentative, and for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deceased's personal representatives or repi'esentative from time to time, with all the like incidents, but subject to all the like rights, equities and obligations, as if the same were a chattel real vesting in them or him ; and, for the pui'jDOses of this section, the personal representatives, for the time being, of the deceased, shall be deemed in law his heirs and assigns, within the meaning of all trusts and powers. (2) Section four of the Vendor and Purchaser Act, 187-i, and section forty-eight of the Land Transfer Act, 1875, are hereby repealed. (3) This section, including the repeals therein, applies only in cases of death after the commencement of tliis Act. S. 44. (1) — Where a person is entitled to receive out of any land, or out of the income of any land, any annual 364 APPKNDIX B. sum, payable half yearly or otherwise, whether charged on the land or on the income of the land, and whether by way of rent-charge or otherwise, not being rent incident to a reversion, then, subject and without prejudice to all estates, interests, and rights having priority to the annual sum, the person entitled to receive the same shall have such remedies for recovering and compelling payment of the same as are described in this section, as far as these remedies might have been conferred by the instrument under which the annual sum arises, but not further. (2) If at any time the annual sum or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to I'eceive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occasioned by non-payment thereof, may be fvdly paid. (3) If at any time the annual sum or any part thereof is unpaid for forty days next after the time appointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and hold pp. 173, 174. the land charged or any part thereof, and take the income thei'eof, until thereby or otherwise the annual sum, and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by non-payment of the annual sum, are fully paid ; and such possession when taken shall be without impeachment of waste. (5) This section applies only of and as far as a contrary inten- tion is not expressed in the instrument under which the annual sum arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (6) This section applies only where that instrument comes into operation after the commencement of this Act. 8. 58. — (1) A covenant relating to land of inheritance, or p. 64. devolving on the heir as special occupant, shall be deemed to STATUTES. be made with the cdvcnantce, liis heivs and assigns and shall have effect as if heirs and assigns were expressed. (2) A covenant rehiting to land not of inheritance, or not devolving on the heir as special occupant, shall be deemed to be made with the covenantee, his executors, administrators and assigns, and shall have eifect as if executors, administrators, and assigns, were expressed. (3) This section applies only to covenants made after the commencement of this Act. S. 67. — (1) Any notice required or authorized by this Act to be served shall be in writing. (2) Any notice required or authorized by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation without his name, or generalh' to the persons interested with- out any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained. P- l"-2. (3) Any notice required or authorized by this Act to be served shall be sufficiently served if it is left at the last known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice requii'ed or authorized to be served on a lessee oi mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine. (4) Any notice required or authorized by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mort- gagor, or other person to be served, by name, at the aforesaid place of abode or business, office or counting-house, and if that letter is not returned through the post-office undelivered ; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. (5) This section does not apply to notices served in pro- ceedings in the Court. 365 366 APPENDIX B. S. 69. — (1) All matters within the jurisdiction of the Court ]). 126. under this Act shall, subject to the Acts regulating the Court, be assigned to the Chancery Division of the Court. (3) Every application to the Court shall, except where it is p. 126. otherwise expressed, be by summons at Chambers. THE SETTLED LAND ACT, 1882. 45 & 46 Vict. c. 38. S. 2 — (10) Mines and minerals mean mines and minerals whether already opened or in work or not, and include all minerals and substances in, on, or under the land, obtainable by underground or by surface working ; and mining purposes include the sinking and searching foi', winning, working, getting, making merchantable, smelting, or otherwise con- verting or working for the purpose of any manufacture, carry- ing away and disposing of mines and minerals in or under the settled land or any other land, and the erection of buildings and the execution of engineering and other works suitable for those purposes ; and a mining lease is a lease for any raining purposes or purposes connected therewith, and includes a grant or licence for any mining purposes. THE MARRIED WOMEN'S PROPERTY ACT, 1882. 45 & 46 Vict. c. 75. S. 1 (1) — A married woman shall, in accordance with the provisions of this Act, be capable of acquiring, holding, and p. 154. disposing by will or otherwise of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee. THE AGRICULTURAL HOLDINGS ACT, 1883. , 46 & 47 Vict. c. 61. S. 28. Any notice, request, demand or other instrument under this Act may be served on the person to whom it is to be p_ 43_ given, either personally or by leaving it for him at his last known place of abode in England, or by sending it through the STATUTES. 3G7 post in a registered letter addressed to him there ; and if so sent by post it shall be deemed to have been served at the time when the letter containing it would be delivered in ordinary course ; and in order to prove service by letter it shall be sufficient to prove that the letter was properly addressed and posted, and that it contained the notice, request, demand or other instrument to be served. S. 33. Where a half-year's notice, expiring with a year of tenancy, is by law necessary and sufficient for determination of a tenancy from year to year, in the case of any such tenancy under a contract of tenancy made either before or after the commencement of this Act, a year's notice so expiring shall by pp. 36, 37. virtue of this Act be necessary and sufficient for the same, unless the landlord and tenant of the holding, by writing under their hands, agree that this section shall not apply, in which case a half-year's notice shall continue to be sufficient ; but nothing in this section shall extend to a case where the tenant is adjudged bankrupt, or has filed a petition for a com- position or arrangement with his creditors. S. 41. "Where on a tenancy from year to year a notice to quit is given by the landlord with a view to the use of land for any p. 14. of the following purposes : — The erection of farm-labourers' cottages or other houses, with or without gardens ; The providing of gardens for existing farm-labourers' cot- tages or other houses ; The allotment for labourers of land for gardens or other pui'poses ; The planting of trees ; The opening or working of any coal, ironstone, limestone, or other mineral, or of a stone quarry, clay, sand, or gravel pit, or the construction of any works or buildings to be used in connection therewith ; The obtaining of brick earth, gravel or sand ; The making of a watercourse or reservoir ; The making of any road, railway, tramroad, siding, canal, or basin, or any wharf, pier, or other work connected there- with ; 368 APPENDIX J{. and the notice to quit so states, then it shall, hy virtue of this Act, be no objection to the notice that it relates to part only of the holding. In every such case the provisions of this Act respecting compensation shall apply as on determination of a tenancy in respect of an entire holding. The tenant shall also be entitled to a proportionate reduction of rent in respect of the land comprised in the notice to quit, and in respect of any depreciation of the value to him of the residue of the holding, caused by the withdrawal of that land from the holding, or by the use to be made thereof, and the amount of that reduction shall be ascertained by agreement or settled by a reference under this Act, as in case of compensation (but without appeal). The tenant shall further be entitled, at any time within twenty-eight days after service of the notice to quit, to serve on the landlord a notice in Avriting to the effect that he (the tenant) accepts the same as a notice to quit the entire holding, to take effect at the expiration of the then current year of tenancy ; and the notice to quit shall have effect accordingly. S. 54. Nothing in this Act shall apply to a holding that is not either wholly agricultural or wholly pastoral, or in part Pli. ob, IJO. agricultural and as to the residue pastoral, or in whole or in part cultivated as a market garden, or to any holding let to the tenant during his continuance in any office, appointment, or employment held under the landlord. ALLOTMENTS AND COTTAGE GARDENS COM- PENSATION FOR CROPS ACT, 1887. 50 & 51 Vict. c. 26. In this Act : — S, 4. " The Metropolis " means the city of London and all parishes and places mentioned in Schedules A, B, and C, to the p. 136. Metropolis Management Act, 1855. " Allotment " means any parcel of land of not more than two acres in extent held by a tenant under a landlord and STATUTES. .S69 cultivated as a garden or as a farm, or partly as a garden and })artly as a farm. " Cottage garden " means an allotment attached to a cottage. " Holding " means an allotment or cottage-garden. " Tenant " means the holder of a holding under a landlord for any term, and includes the legal personal representative of a deceased tenant. " Landlord " means the person for the time being entitled to receive the rents and profits of any holding. "Person" includes a body of persons and a corporation aggregate or sole. " Contract of tenancy " means the letting of land for any term. " Determination of tenancy " means the cesser of a contract of tenancy by effluxion of time or from any other cause. The designations of landlord and tenant shall, for the pur- poses of this Act, continue to apply to the parties to a contract of tenancy until the conclusion of any proceedings taken under this Act on the determination of a tenancy. THE COUNTY COURTS ACT, 1888. 51 & 52 Vict. c. 43. S. 56. All personal actions, where the debt, demand, or damage claimed is not more than fifty pounds, whether on balance of account or otherwise, may be commenced in the Court; and all such actions shall be heard and determined in a summary way according to the provisions of this Act : Provided always that, except as in this Act provided, the p. 268. Court shall not have cognizance of any action of ejectment, or in which the title to any corporeal or incorporeal heredita- ments, or to any toll, fair, market, or franchise, shall be in question, or for any libel or slander, or for seduction, or for breach of pi'omise of marriage. S. 59. All actions of ejectment, where neither the value of pp. 268—270, the lands, tenements, or hereditaments, nor the rent payable ^'^' in respect thereof, shall exceed the sum of fifty pounds by the W.Y.E. B B 370 APPENDIX B. year, may be brought and prosecuted iu the coui-t of the district in which the lands, tenements, or hereditaments are situate ; provided that the defendant in any such action of ejectment, or his landlord, may, within one month from the day of service of the summons, apply to a judge of the High Court at chambers for a sunmions to the plaintiff to show cause why such action should not be tried in the High Court on the ground that the title to lands or hereditaments of greater annual value than fifty pounds would be affected by the decision in such action ; and on the hearing of such summons the judge of the High Court, if satisfied that the title to other lands would be so effected, may order such action to be tried in the High Court, thereupon all pi'oceedings in the court in such action shall be discontinued. S. 60. A judge shall have jurisdiction to try any action in which the title to any corporeal or incorporeal hereditaments shall come in question where neither the value of the lands, j,^ •2Qy. tenements, or hereditaments in dispute, nor the rent payable in respect thereof, shall exceed the sxim of fifty pounds by the year, or in case of an easement or licence, where neither the value nor reserved rent of the lands, tenements, or liercdita- ments in respect of which the easement or licence is claimed, or on, through, over, or under which such easement or licence is claimed, shall exceed the sum of fifty pounds by the year. S. 138. When the term and interest of the tenant of any corporeal hereditament, where neither the value of the pre- mises nor the rent payable in respect thereof shall have exceeded fifty pounds by the year, and upon which no fine or premium shall have been duly paid, shall have expired, J,,,, :^74_-279. 0^ shall have been determined, either by the landlord or the tenant, by notice to quit, and such tenant, or any person holding or claiming by, through, or under him, shall neglect or refuse to deliver up possession accordingly, the landlord may enter a plaint, at his option, either against such tenant, or against such person so neglecting or refusing, in the court of the district in which the premises lie, for the recovery of the same, and thereupon a summons shall issue to such tenant or such person so neglecting or refusing ; and if the STATUTES. 371 defendant shall not at the time named in the summons show good cause to the contrary, then on proof of his still neglectins!; or refusing to deliver up possession of the premises, and of the yearly value and rent of the premises, and of the holding and of the expiration or other determination of the tenancy, with the time and manner thereof, and of the title of the plaintitl', if such title has accrued since the letting of the premises, and of the service of the summons if the defendant shall not appear thereto, the judge may order that possession of tlie premises mentioned in the plaint be given by the defendant to the plaintiff either forthwith or on or before such day as the judge shall think fit to name ; and if such order be not obeyed, the registrar, whether such order can be proved to have been served or not, shall, at the instance of the plaintiff, issue a warrant authorising and requiring the bailiff of the court to give possession of such premises to the plaintiff. In any such plaint against a tenant tlie plaintiff may add a claim for rent or mesne profits, or both, down to the day appointed for the hearing, or to any preceding day named in the plaint, so as the same shall not exceed fifty pounds. S. 139. When the rent of any corporeal hereditament, where neither the value of the premises nor the rent payable in respect thereof exceeds fifty pounds by the year, shall for one half year be in arrear, and the landlord shall have right by law to re-enter for the non-payment thereof, he may, without pp. 232, 274— any formal demand for re-entry, enter a plaint in the court of the district in which the premises lie for the recovery of the premises, and thereupon a summons shall issue to the tenant, the service whereof shall stand in lieu of a demand and re- entry, and if the tenant shall, five clear days before the return day of such summons, pay into court all the rent in arrear and the costs, the action shall cease ; but if he shall not make sucu payment, and shall not at the time named in the summons show good cause why the premises should not be recovered, then, on proof of the yearly value and rent of the premises, and of the fact that one half year's rent was in arrear before the plaint was entered, and that no sufficient distress was then to be found on the premises to countervail such arrear, B F. 2 372 APPENDIX B. and of tlie landlord's power to re-enter, and of the rent being still in arrear, and of the title of the plaintiff if such title has accrued since the letting of the premises, and of the service of the summons if the defendant shall not appear thereto, the judge may order possession of the premises men- tioned in the plaint to be given by the defendant to the plaintiff on or before such day, not being less than four weeks from the day of hearing, as the judge shall think fit to name, unless within that period all the rent in arrear and the costs are paid into court ; and if such order be not obeyed, and such rent and costs are not so paid, the registrar shall, whether such order can be proved to have been served or not, at the instance of the plaintiff, issue a warrant authorising and requiring the bailiff of the court to give possession of such premises to the plaintiff, and the plaintiff shall, from the time of the execution of such warrant, hold the premises discharged of the tenancy, and the defendant, and all persons claiming by, through, or under him, shall, so long as the order of the court remains unreversed, be barred of all relief S. 140. Where any summons for the recovery of a tenement as is hereinbefore specified shall be served on or come to the knowledge of any sub-tenant of the plaintiff's immediate tenant, such sub-tenant being an occupier of the whole or of a part of the premises sought to be recovered, he shall forthwith V- -'^^- give notice thereof to his immediate landlord, under penalty of forfeiting three years' rack rent of the premises held by such sub-tenant to such landlord, to be recovered, whatever the amount thereof, by such landlord by action in the Court from which such summons shall have issued, and such landlord, on the receipt of such notice, if not originally a defendant, may be added or substituted as a defendant to defend posses- sion of the premises in question. S. 141. A summons for the recovery of a tenement may be served like ordinary summons to appear to plaints in the Court, and if the defendant cannot be found, and his place of dwelling i'" '-'^' shall either not be known, or admission thereto cannot be obtained for serving any such summons, a copy of the summons shall be posted on some conspicuous part of the premises STATUTES. 373 sought to be recovered, and such posting shall be deemed good service on the defendant. S. 142. Any warrant to a bailiff to give possession of a tenement shall justify the bailiff named therein in entering upon the premises named therein, with such assistants as he p. 279. shall deem necessary, and in giving possession accordingly ; but no entry upon any such warrant shall be made except between the hours of nine in the morning and four in the afternoon. S, 14.3. Every such warrant shall, on w^hatever day it may be issued, bear date on the day next after the last day named by the judge in his order for the delivery of possession of the P- 280. premises in question, and shall continue in force for three months from such date and no longer, but no order for delivery of possession need be drawn up or served. S. 144. It shall not be lawful to bring any action or prose- cution against the judge or against the registrar of the Court by whom such warrant as aforesaid shall have been issued, or against any bailiff or other person by whom such warrant may p. 280. be executed or summons affixed, for issuing such warrant, or executing the same respectively, or affixing such summons, by reason that the person by whom the same shall be sued out had not lawful right to the possession of the premises. S. 145. 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 ]tp. 277, 280. proceeding for obtaining possession under the authority of this Act, but the party aggrieved may, if he think fit, bring an action 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 the action. 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 at any sum not exceeding five shillings, the plaintiff shall recover no more costs than damages, unless 374 APPENDIX B. the judge before whom the trial shall have been held shall certify that in his opinion full costs ought to be allowed. S. 186. In construing this Act or any future Act relating to County Courts, unless there is anything in the subject or context repugnant thereto, the several words hereinafter men- p. 276. tioned shall have or include the meanings following : — " Land- lord " shall be understood to mean the person entitled to the immediate reversion of the lands, or, if the property be holden in joint tenancy, co-parcenary, or tenancy in common, shall be understood to mean any one of the persons entitled to sucli reversion. TENANTS COMPENSATION ACT, 1890. 53 & 54 Vict. c. 57. S. 1. This Act shall be construed as one with the Agri- cultural Holdings Act, 1883, and the Allotments and Cottage p. 136. Gardens Compensation for Crops Act, 1887 (in this Act referred to as the principal Acts) and this Act may be cited as the Tenants Compensation Act, 1890. S. 2. Where a person occiipies land under a contract of tenancy with the mortgagor, whether made before or after the passing of this Act, which is not binding on the mortgagee of such land, then — (2) Before the mortgagee deprives the occupier of possession of the land otherwise than in accordance with the said p. 136. contract, he shall give to the occupier six months' notice in writing of his intention so to deprive him, and if he SO deprives him, compensation shall be due to the occupier for his crops and for any expenditure upon the land which he has made in the expectation of holding the land for the full term of his contract of tenancy, in so far as any improvement resulting therefrom is not exhausted at the time of his being so deprived, and such compensation shall be determined in like manner as compensation under the principal Acts, and shall be set off, charged, and recovered in manner before provided in this section. Tliis sub-section shall only apply where the said contract is for a tenancy from year to year, or for a term of years not exceeding twenty-one, at a rack- rent. STATUTES. 375 THE CONVEYANCING ACT, 1892. 55 & 56 Vict. c. 13. S. 1. This Act may be cited as the Conveyancing and Law of Property Act, 1892, and the Conveyancing and Law of Property Act, 1881, and the Conveyancing Act, 1882, and this Act shall be read together, and may be cited together as the Conveyancing Acts, 1881, 1882, and 1892. S. 2.— (1) A lessor shall be entitled to recover as a debt due to him from a lessee, and in addition to damages, if any, all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor or valuei', ]i. 122. or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the lessee, is waived by the lessor by writing under his hand, or from which the lessee is relieved under the provisions of the Conveyancing and Law of Property Act, 1881, or of this Act. (2) Sub-section six of section fourteen of the Conveyancing and Law of Property Act, 1881, is to apply to a condition for forfeiture on bankruptcy of the lessee, or on taking in execu- tion of the lessee's interest only after the expiration of one I'l'- '"• H-^ year from the date of the bankruptcy, or taking in execution, and provided the lessee's interest be not sold within such one year, but in case the lessee's interest be sold within such one year, sub-section six shall cease to be applicable thereto. (3) Sub-section two of this section is not to apply to any lease of — (a) Agricultural or pastoral land ; (b) Mines or minerals ; (c) A house used or intended to be used as a public-house or beer-shop ; (d) A house let as a dwelling-house, with the use of any furniture, books, works of art, or other chattels, not being in the nature of fixtures ; (e) Any property with respect to which the personal quali- fications of the tenant are of importance for the preserva- tion of the value or character of the property, or on the ground of neighbourhood to the lessor, or to any person holding under him. 376 APPENDIX B. S. 3. In all leases containing a covenant, condition, or agreement against assigning, under-letting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition or agree- ment shall, unless the lease contains an expressed provision to the contrary, be deemed to be subject to a proviso to the yg effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent ; but this proviso shall not preclude the right to require the payment of a reasonable sum in respect of any legal or other expense incurred in relation to such licence or consent. S. 4. Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso, or stipulation in a lease, the Court may, on appli- cation by any person claiming as under-lessee any estate or interest in the property comprised in the lease or any part thereof either in the lessor's action, if any, or in any action brought by such person for that purpose, make an order 123 l'^4 vesting for the whole term of the lease or any less term the property comprised in the lease or any part thereof in any person entitled as under-lessee to any estate or interest in such property upon such conditions, as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security, or otherwise, as the Court in the circumstances of each case shall think fit, but in no case shall any such under-lessee be entitled to require a lease to be granted to him for any longer term than he had under his original sub-lease. S. 5. In section fourteen of the Conveyancing and Law of Property Act, 1881, as amended by this Act, and in this Act, " lease " shall also include an agreement for a lease where the pp. 23. 124. lessee has become entitled to have his lease granted, and " under-lease " shall also include an agreement for an under- lease where the " under-lessee " has become entitled to have his underlease granted, and in this Act under-lessee shall include any person deriving title under or from an under- lessee. STATUTES. 877 THE MARRIED WOMAN'S PROPERTY ACT, 1893. 56 & 57 Vict. c. 63. S. 3. Section twenty-four of the Wills Act, 1837, shall apply to the will of a married woman made during coverture whether she is or is not possessed of or entitled to any p- 154. separate property at the time of making it, and such will shall not require to be re-executed or re-published after the death of her husband. THE LOCAL GOVERNMENT ACT, 1894. 56 & 57 Vict. c. 73. S. 6. — (1) Upon the parish council of a rural parish coming into office, there shall be transferred to that council : — (f) The powers, duties and liabilities of the overseers or of the churchwardens and overseers of the parish with p. 1S3. respect to — (iii) The holding or management of parish property, not being property relating to affairs of the church or held for an ecclesiastical charity, and the holding or manage- ment of village greens, or of allotments, whether for recreation grounds or for gardens or otherwise for the benefit of the inhabitants or any of them. INDEX. ACKNOWLEDGMENT, to save statutes of limitation, 209, 218 form of, 290 ACQUIESCENCE, 217 See Limitation, Statutes of. ADMINISTRATOR, title of, to leaseholds, 163 estates pur autre vie, 152, 16.3 cannot sue before grant of administration, 163 when bari'ed by statutes of limitation, 200 ADMITTANCE TO COPYHOLDS. ,S'ee Copyholds. ADVERSE POSSESSION, 194 ADVOWSON, Statutes of limitation, 223 AGENT, entry by, 9 notice to quit by, 40 notice to quit to, 42 demand of possession by, 47 waiver of forfeiture by, 112 possession by, 195 possession as, 195 proof of authority, 236 notice by agent of intention to proceed before justices, 281 — 282 AGREEMENT FOR A LEASE, right to possession under, 2 effect of, 2 ALIEN, may take and hold land, 151 ALLOTMENTS, 136, 285 380 INDEX. APPEARANCE. See Peactice, County Coukt. ARBITRATION. Sec Award. ASSENT TO BEQUEST, what constitutes, 161—162, 235 ASSIGNEE OF REVERSION, when he can re-enter for forfeiture, 60 — 66 of part of, 63 cannot re-enter for forfeiture incurred before assignment, 63 in part of lands, 63 ASSIGNEE OF TERM, proof that occupier is, 26 forfeiture by, 66 — 67 how far bound by covenants and conditions, 81 ASSIGNMENT OF TERM, evidence of, 26 forfeiture by. Sec Covenant against Alienation. ATTAINDER, 167 ATTESTING WITNESS, 154, 239, 247 ATTORNMENT, creates estoppel, 25 — 28 arising from mistake, 30 through misrepresentation, 30 by mortgagor to mortgagee, 131, 132 by tenants, to mortgagee, 134 AWARD, recovering possession under, 6 — 7 how proved, 251 — 252 BANKRUPTCY, forfeiture on, 55, 81, 100, 101, 146, 173 BIRTHS, how proved, 241, 242 BREACH OF COVENANT, landlord must always prove, 68 continuing breach, 92, 113, 114 not cured bj' subsec[uent performance, 114 how proved, 231 INDEX. 381 BUILDING COVENANTS, 101, 102 See Covenants as to Buildings. CESTUI QUE TRUST. Sec Trustee. CESTUI QUE VIE, covenant as to, 106 CHARITIES, within protection of s. 25 of 3 & 4 Will. 4, c. 27. ..216 summary proceedings to recover property of, 286 CHURCHWARDENS AND OVERSEERS, notice to quit by, 41 action to recover parish propert}'', 180 — 183 property vests in them as a (^((asi-corporation, 180 what propei'ty vests in tliem, 180 what they must prove, 181 summary proceedings by, 181, 286 provisions of Parish Councils Act, 1894. ..183 evidence of title of, 238 COMMITTEE OF LUNATIC. Sec Lunatic. COMPENSATION. See Relief. CONDITION, how created, 54 — 55 forfeiture for breach of, 54 — 70 construction of, 56 — 57 precedent to liability to repair, 85 effect of waiver on, 114, 115 CONTINUING BREACH, 92 waiver, 113, 114 CONVEYANCING ACTS. See Relief, Forfeitube, and Index OF Statutes. COPARCENERS, descent from, 165 action by, 177, 178 statutes of limitation, 208 See Joint Tenants. COPYHOLDS, surrenderee may enforce right of re-entry, 62 devise of, 152 right of trustee in bankruptcy, 173 title of lord of manor, 184 382 INDEX. COPYHOLDS— co??.i!m?/ec?. entry quoufsque, 184 forfeitures, 184—186 lord cannot enter when tenant of copyholder is in possession, 186 waiver of forfeiture, 186 no relief against forfeiture, 186 title of heir-at-law, 186 devisee of copj-holds, 187 smTenderee, 187 admittance of person not entitled, 188 lessee of copyholder need not be admitted, 188 customs of descent, 188 right to admittance barred by statutes, 197 Statutes of Limitation ajiply, 197 proof of customs, 237 court rolls, 237 admittances and surrenders, 237 CORPORATIONS, notice to quit to, 42 deeds of, 249 ecclesiastical and eleemosynary, Statutes of Limitation, 222 COSTS, in action for trespass for forcible entry, 18 staying proceedings until costs of former action paid. 266 costs in High Court, 267 costs in county court, 279 of summary proceedings before justices, 283 security for, 258 COUNTY COURT, jui'isdiction of, 268 removal of action to High Court, 269 practice in actions of ejectment, 270 — 274 joinder of causes of action, 270 particulars of claim, 270 service of summons, 270 ' vacant possession, 270 confession of claim, 270 appearance by person not named as defendant, 271 notice limiting defence, 272 ti-ial by jury, 273 I expiration of plaintiff's title before return day, 273 execution, 273 — 274 jiroceedings by landlord against tenant, 274 — 280 jurisdiction, 274—276 definition of landlord, 276 order not conclusive, 277 INDEX. 383 COUNTY COVET— co7itinued. proceedings, exj^iration of tenancy, 276 determination by notice to quit, 276 for non-j^ayment of rent, 277 execution, 278 trial, 279 costs, 279 warrant of possession, 279 protection of judges, &c., 280 protection of landlord, 280 venue, 275 COURT ROLLS, proof of, 237 COVENANT, construction of, 56, 58 positive or negative, 58 performance made impossible by statute, 59 running with reversion, 64 not running with reversion, 64 running with the land, 66, 67, 95 COVENANT NOT TO ALIENATE, breach of, 77, 81 not to alienate without consent, 78 alienation by operation of law or compulsion, 80 — 81 how far assigns are bound, 81 proof of breach, 232 COVENANT AS TO BUILDING, forfeiture for breach of, 101, 102 COVENANT TO BUY FROM LESSOR, forfeiture for breach of, 102 COVENANT AS TO CESTUI QUE FIE, 106 COVENANT AS TO FARMING, forfeiture for breach of, 103, 104 COVENANT AS TO GAME LAWS, 106 COVENANT FOR INSPECTION BY LESSOR, 106 COVENANT TO INSURE, forfeiture for breach of, 94, 95 must be performed strictly, 95 runs with the land, 95 proof of breach, 231 384 INDEX. COVENANT AS TO MINING, forfeiture for breach of, 104, 105 COVENANT TO PAY RATES AND TAXES, forfeiture for breach of, 95 — 100 the liability to pay rates and taxes, 95, 96 construction of covenant, 96 meaning of " rates and taxes," 96, 97 effect of subsequent statutes on the covenant, 97 — 98 increase of burdens, 98 extraordinary impositions, 98, 100 COVENANT TO PAY RENT, forfeiture for breach of, 71, 77 relief against forfeiture for, 118, 119 See Rent, Non-payment of. COVENANT TO REPAIR, forfeiture for breach of, 82 — 92 meaning and effect of, 82 extent of liability of tenant, 82 age of buildings to be considered, 83 class of buildings, 83 general condition of buildings, 83 performance of the covenant, 84 time to be allowed to tenant, 84 premises destroyed by fire, &c., 84 — 85 non-repair caiised by third person, 85 subsequently erected buildings, 85 conditions precedent to liability, 85 — 86 pulling down or altering premises, 86 removing fixtures, 87 proof of want of repair, 87 notice to repair, 87 in an underlease, 88 COVENANT AS TO RESIDENCE ON PREMISES, forfeiture for breach of, 102 COVENANT AS TO USER OF PREMISES, forfeiture for breach of, 88 — 92 business or trade, 88 — 89 offensive or annoying business or trade, 89 — 90 user as public house, 90 in respect of public house, 91 what amounts to breach of, 91 continuing breach, 92 INDEX. 385 CROWN, recovering possession by, 7 by lessee of, 7 from, 7—8 waiver by the crown, 112 summary proceedings to recover crown lands, 286 CUSTOM, as to notice to quit, 37 of descent, 169—188 proof of customs of manor, 237 CUSTOMARY HEIR, 169 DAMAGES, when they may be claimed in action of ejectment, 260 DEATH, how proved, 241 presumption after absence for seven years, 241 without issue, 242 DECLARATIONS, of occupiers, 228, 229 in pedigree cases, 244, 246 DEEDS AND DOCUMENTS, jiroof of attestation, 247 execution, 248 signature, 248 sealing, 249 of corporation, 249 delivery, 249 escrow, 249 proof of contents, 250 secondary evidence, 250 notice to produce, 251 suhpcena duces tecum, 251 DEFENDANT, who may be sued, 189 DEMAND OF POSSESSION, from tenant at will, 47, 49 when necessary, 47 when not necessary, 47 how made, 47 by agent, 47 not necessary from tenant at sufferance, 49 W.Y.E. C C 386 INDEX. DEMAND OF POSSESSION— continued. or trespasser, 49 under C. L. P. Act, 1852, s. 213, 49 by guardians imder 59 Geo. 3, c. 12, 181 DEMAND OF RENT, 73, 77, 235 Sen Rent, Nox-payment of. DESCENT. See Heir-at-Law. DESERTED PREMISES, summary proceedings by landlord to recover possession of, 283 — 285 DETAINER. See Forcible Detainer. DEVISEE, action by, 151—161 wliat he must prove, 151 what may be devised, 152, 153, 199 of copyholds, 152, 187 estates ^itr autre vie, 152 contingent and future estates, 153 will speaks from death of testator, 153 attesting witness, 155 conveyance by testator of property devised, 156, 157 lapsed and void devises, 157 general devise, what it includes, 157, 158 devise without words of limitation, 159 devise to trustee, 160 no lapse in certain cases, 160 — 161 disclaimer of devise, 161, 165 leaseholds, 161-163 when barred by statutes of limitation, 199 DIE WITHOUT ISSUE. Meaning of words, 159 DISABILITIES, preventing operation of statutes of limitation, 210, 211, 220 DISCLAIMER OF DEVISE, 161, 165 DISCLAIMER ?>Y TENANT, what amounts to, 51 — 53 of term of years, 52 yearly tenancy, 52 tenancy at will, 52 waiver of, 53 DISCLAIMER BY TRUSTEE IN BANKRUPTCY, 173 INDEX. 387 DISCOVERY IN ACTIONS OF EJECTMENT, 264 DISTRESS, insufficient distress, 76, 77, 232 waiver of forfeiture by, 109, 110 what amounts to a distress, 232 time for, 235 DOCUMENTS. Sec Deeds. EFFLUX OF TIME, 49—51 See Tenancy. ELEGIT, TENANT BY, what can be seized under an elegit, 145 leaseholds, 145 how possession obtained, 146 what tenant by elegit must prove, 146 effect of Bankruptcy Act, 1883. ..146 effect of inquisition, 147 return to inquisition, 147 when tenant in possession, 148 position of tenant by elegit, 148 registration of writ, 148, 149 equitable execution, 149 how proved, 236 ENCROACHMENTS BY TENANT, right of landlord in respect of, 33, 34 possession of, is possession as tenant, 195 summary proceedings to recover when land to be inclosed, 286 ENTRY, 9, 12 person having right may always enter, 9 by agent, 9 by tenant, 9 mode of entry, 10 effect of, 10 ousting occupiers, 10 determining tenancy at will, 47, 48 to determine lease upon forfeiture, Q7, 68 mere entry does not give possession, 207 forcible, see Forcible Entky. ENTRY, RIGHT OF, 1—4 what it is, 1 equitable right, 1, 2 must be right to immediate possession, 2, 4 enforcing, 9—12 is devisable, 153 C C 2 388 INDEX. ENTRY QUOUSQUE, for non-payment of rent or annuity, 58, 59, 174 upon copyholds, 184, 185 EQUITABLE RELIEF AGAINST FORFEITURE, 116, 127 EQUITABLE RIGHT TO POSSESSION, 1, 176 legal o\viier must be party to the action, 1 EQUITABLE TITLE, right to possession, 1, 2, 176 descent of equitable estates, 167 subject to Statutes of Limitation, 217 ESCROAV, 249, 250 ESTATE PUR AUTRE VIE, 152 £S I'ATE TAIL, when barred by Statutes of Limitation, 212, 213 ESTOPPEL BY JUDGMENT FOR POSSESSION, 190, 191 in County Court, in action to recover possession by landlord, 277 ESTOPPEL BETWEEN LANDLORD AND TENANT, of tenant, 27—32 tenant cannot dispute landlord's title, 27 of persons coming into possession after lessee, 28 iiow long it continues, 29 in favour of successors of lessor, 29 attornment or acknowledgment may be explained, 30 exceptions to rule, 31 estoppel of landlord, 32, 33 to what premises it extends, 33 as to encroachments by tenant, 33, 34 of landlord from enforcing forfeiture, 112 ESTOPPEL, LEASE BY, 33, 128 ESTOPPEL OF MORTGAGOR, 136 EVICTION, tenant may show eviction by title paramount, 42, 234 waiver of forfeiture by, 111 what amounts to, 233, 234 EXECUTION, equitable execution, 149 all persons will be turned out, 189 writs of execution in High Court, 265 in County Coirrt, 273 INDEX. 389 EXECUTOR, may attest a will, 155 assent to bequest, 161, 162, 235 title to leaseholds, 162, 163 EXPIRATION OF TITLE, of landlord's title before action, 31, 32, 133 after action, 32 practice in County Court, 273 FAILURE OF ISSUE, meaning of words, 159 FEAST DAYS, old or new style, 39 FIERI FACIAS, PURCHASER UNDER, leaseholds, 146 what he must prove, 147 when no assignment by sheriff, 147 when tenant in possession, 148 equitable execution, 149 FORCIBLE DETAINER, what is, 16 summary proceedings for, 19 — 21 restitution after, 21 — 24 statutes relating to, 291 ct seq. FORCIBLE ENTRY, 13—21 action of trespass for, 13, 18 what amounts to, 14, 15 licence to enter by force, 15 by several, 15 by joint owners, 15 who may prosecute for, 16 may be resisted by force, 16 indictment for, 17, 18 summary proceedings for, 19 — 21 conviction for, 20 restitution after, 21 — 24 statutes relating to, 291 et seq. FORFEITURE BY COPYHOLDER, 184—186. See CorynoLDS. FORFEITURE BY TENANT, 63—70 what landlord must prove, 54 how incurred, 54 for breach of covenant or condition, 54, 71 390 INDEX. FORFEITURE BY TENANT— coji^mwa?. on taking iu execution of the term, 55, 80 — 81 construction of conditions or provisoes for re-entry, 56 — 58 where lease to be void, 59, 107, 108 who may enforce, 60 — &Q by assignee of term, 66, 67 when demised premises have been sub-divided, 67 lease determined upon, 67 entry to determine lease, 67 — 69 eftect of, 67 landlord's right to fixtures and emblements upon, 67 restrictions imposed by Conveyancing Acts, 69, 70, 120 — 122 for non-payment of rent, 71 — 77 breach of covenant against alienation, 77 — 81 on bankruptcy, 81, 100, 101 for breach of covenant to repair, 82—92 as to user of premises, 88 — 92 waste, 92—94 non-insurance, 94 — 95 non-payment of rates and taxes, 95 — 100 for breach of building covenants, 101, 102 covenant to reside, 102 to buy from lessor, 102 farming covenants, 103, 104 mining covenants, 104, 105 covenant to allow lessor to inspect, 106 as to game, 106 to produce certificate as to life of cestui que vie, 106 Statutes of Limitation, 202 FORMS, notice to quit, 287 notice of owner to apply to justices to recover possession, 288 statement of claim, 288 notice limiting defence, 289 acknowledgment of title, 290 application for leave to defend, 290 FRAUD. See Concealed Fraud. GUARDIAN OF INFANT, action by, 175, 176 guardian in socage, 175 testamentary guardian, 175 guardianship of Infants Act, 1886. ..175, 176 may recover possession of land of infant, 176 possession by, 196 See Infant. INDEX. 891 GUARDIANS OF THE POOi;. See Churchwardens and Over- seers. HEARSAY EVIDENCE, to prove relationship, 245, 246 HEIR-AT-LAW, action b}', 164—170 Inheritance Act, 1833. ..164— 168 descent from last "purchaser," 164, 165 devise to heir, 165 heir of co-parceners, 165 default of heirs of "purchaser," 166 descent from brothers and sisters, 166 ancestors can inherit, 166 male line preferred, 167 half-blood, 167 attainted persons, 167 descent as to equitable estates, 167 estate tail, 167 descendible interests, 168 what claimant as heir-at-law must prove, 168 legitimacy, 168 customs of descent, 169, 188 statutory exceptions to rules of descent, 169, 170 trust estates, 170 mortgage estates, 170 land contracted to be sold, 170 title to copyholds, 186 when barred by statutes of limitation, 199 proof of heirship, 240 — 247 hearsay evidence to prove relationship, 245, 246 HOLDING OVER BY TENANT, 49 INFANT, will of, 154 may sue in his own name, 176 by next friend, 176 See Guardian of Infant. INHERITANCE ACT, 1833, 164, 168 INSURANCE. Sec Covenant to Insure. INTERESSE TERMINI, sufficient title to maintain ejectment, 128 INTRUSION, INFORMATION OF, 7 392 INDEX. ISSUE, failure of issue, 159, 160 in tail, statutes of limitation, 212, 213 JOINT-TENANTS, action by, 177—178 how they may sue, 177 cannot sue each other, unless ouster, 177, 178 possession of one not possession of other, 178 statutes of limitation, 208 LAND TAX. See Covenant to pay Rates and Taxes. LANDLORD AGAINST TENANT, 25—34 what landlord must prove, 25 estoppel of tenant, 27 — 30. tenant may show expiration of landlord's title, 31, 32, 133 encroachments, 33, 34 statutes of limitation, 202—207 liroceedings in county court, 274—280 summary proceedings before justices, 281 — 285 LANDLORD, appearance by, 256 LAPSED AND VOID DEVISES, 157 LEASE, definition under Conveyancing Act, 123 LEASEHOLDS, seizure under elegit, 145 action by legatee of, 161, 162 title of executors, 162 administrators, 163 assent to bequest of, 161, 162, 235 LEGATEE, of leaseholds, 161, 162 what he must prove, 161 assent of executor, 162, 235 LEGITIMACY, presumption of, 243 how presumption rebutted, 243, 245 INDEX. 39-3 LIMITATION, STATUTES OF, how the statutes should be construed, 193 doctrine of adverse possession abolished, 194 time runs from accrual of riglit of entry, 194 claimant must be out of, and another in, possession, 194, 225 possession by agent or tenant, 195 possession of encroachments, 195 possession by receiver, 196 possession by guardian, 196 possession of surface, 196 action must generally be brought within twelve years. 196 admittance to copyholds, 197 when right of entry accrues after dispossession, 198 after discontinuance of [lossession, 198 to heir and devisee, 199 to remainderman, 199 to executor or administrator, 200 when claim under instrument other than will, 200 in respect of future estates, 200 — 202 in case of landlord, 202 — 207 for forfeiture, 202 on void or voidable lease, 203 on tenancy at will, 203—205 on yearly tenancy, 205 on leases in writing, 206 mere entry does not give possession, 207 continual claim does not preserve right, 207 coparceners, joint tenants, tenants in common, 208 entry by younger brother, 208 acknowledgment to save statute, 209, 218 disabilities, 210, 211, 220 no disabilities as between mortgagor and mortgagee, 210, 220 successive disabilities, 210 different estates in same person, 211 estate tail, 212, 213 remainderman after estate tail, 212 trustee and cestui que trust, 205, 214—217 purchaser for value, 214 trustee and cestui que trust out of possession, 215 s. 25 applies only to express trusts, 214, 215 ccsttii que tritst in possession, 216 equitable rights, 217 acquiescence, 217 concealed fraud, 217 mortgagor and mortgagee, 217 — 222 mortgagee in possession, 218, 219, 229 acknowledgment by mortgagee, 218, 219 mortgagee not in possession, 220 — 222 394 INDEX. LIMITATION, STATUTES 0¥—co7iiimicd. efi'ect of foreclosure decree, 222 ecclesiastical corporations sole, 222 eleemosynary corporations sole, 222 advowsons, 223 right extinguished after statutory period, 224, 225 possession during slatutory period by several persons, 225 what is payment of "rent," 225 See Statutes set out pp. 305, 331, 352 LUNATIC, sues in name of committee, 177 person of unsound mind sues by next friend, 177 MAERIAGE, revocation of will by, 155 how proved, 241, 242, 246 MARRIED WOMAN, will of, 154 MESNE PROFITS, how recovered, 190 to date of judgment, 190 what plaintiff must prove, 190 possession and title must be proved, 190, 191 possession ol' the defendant, 191 from whom they may be recovered, 192 amount of, 192 MINES AND MINERALS, covenants relating to, 104 MONTHLY TENANCY, notice to quit, 37 MONTHS, meaning of in agi'eement as to notice to quit, 36 MORTGAGOR, may recover possession until notice by mortgagee, 2, 134, 137 also when re-demise to him, 130, 137 stay o," proceedings in action by mortgagee, 138, 144 See Mortgagor and Mortgagee. MORTGAGOR AND MORTGAGEE, mortgagee entitled to possession,' 130 re-demise to mortgagor, 130, 131 mortgagor may be tenant at will to mortgagee, 130 INDEX. 895 MORTGAGOR AND UOllTGAGEE—contimoed. attornment by mortgagor to mortgagee, 131, 132 effect of attornment, 132 recognition of jjossession of mortgagor, 133 tenancies existing at time of mortgage, 133 tenants let in by mortgagor after mortgage, 134 — 136 do not become tenants of mortgagee, 134 new tenancy to mortgagee may be created, 134 — 135 under Conveyancing Acts, 135 entitled to notice to quit from mortgagee in some cases, 136 mortgagor estopped from denying title of mortgagee, 136 mortgage of toll-houses, 137 staying proceedings in ejectment by mortgagee, 138 — 144 statutes of limitation, 217 — 222 NOTICE OF WRIT, tenant must give notice to landlord, 255, 272, 278 NOTICE TO QUIT, nature of, 35 agi'eed notice, 35 by common law, 36 yearly tenancies, 36 under Agricultural Holdings Act, 36 meaning of " mouths " in agreement, 36 by custom, 37 weekly tenancy, 37 monthly tenancy, 37 quarterly tenancy, 37 to quit at what time, 37, 38 alternative times for quitting, 38 may be evidence of date of commencement of tenancy, 39 when premises entered on at different times, 39 feast days, 39, 40 to quit at what time, 39 by whom it may be given, 40 by mortgagee or mortgagor, 40, 41 by co-owners, 41 by churchwardens and overseers, 41 to whom to be given, 41, 42 to co-owners, 42 to corporation, 42 service of, 42, 43, 230 upon whom to be served, 42 service by post, 43 time of service, 43 396 INDEX. NOTICE TO qV IT— contirMcd. form ot; 44, 287 must not be qualified, 44 must be to quit all tlie premises, 44 mistakes or omissions in, 44, 45 etl'ect of, 45 waiver of, 45 tenants of mortgagor not always entitled to, 46 when unnecessary, 46 may be verbal or written, 230 how proved, 230 " Legal" notice to quit, 276 NOTICE TO REMEDY BREACH OF COVENANT, under Conveyancing Acts, 69, 70—120, 122 what it must contain, 121 failure to comply with, 121 failure to give, 121 reasonable compensation, 121, 122 form of, 122 service of, 122 NOTICE TO REPAIR, 87, 88 See Covenant to repair. OUSTER, by co-owner, 178 OUTSTANDING TERM, defeats action, 3, 4 OVERSEERS. See Guardians. OWNERSHIP, evidence of, possession, 227 receipt of rent, 227 acts of ownership, 228 admissions of occupiers, 229 PARCELS, how proved, 229, 230 PARISH PROPERTY, action to recover, 180 — 183 See Churchwardens and Overseers. INDEX. 397 PARSON, action by, 178, 179 what he must prove, 178 tenants of predecessor, 179 presumption in favour of person in possession, 179—238 evidence of title of, 237, 238 PETITION OF RIGHT, 8 PLEADINGS. See Peactice. POSSESSION, under agreement for a lease, 2 of copyholds, 186 what is sufficient to prevent Statutes of Limitation running, 194, 196, 207 of guardian is possession of infant, 196 by agent, 196 by receiver, 196 of surface, 196 of encroachments, 195 gives devisable interest, 199 prima facie evidence of seisin in fee, 227 POWER OF APPOINTMENT, execution by will, 155, 158 PRACTICE IN HIGH COURT, stay of proceedings in action for non-payment of rent, 118, 119 by mortgagee, 138 — 144 application for reliel against forfeiture, 122, 123, 126 special indorsement, 253 service of writ, 254 vacant possession, 254 substituted service, 254 notice of writ to be given by tenant to landlord, 255 service of writ out of jurisdiction, 255 appearance by person not named in writ, 266 landlord, 256 application for leave to appear, 256 notice limiting defence, 257 default of appearance, 257 summary judgment, 258 security for costs and damages, 258 joinder of causes of action, 259 — 261 pleadings, 262 counterclaim in actions of ejectment, 263 default of defence, 264 398 INDEX. PRACTICE IN HIGH COURT— contimied. defence as to part of claim, 264 discovery, 264 trial, 265 execution, 265 stajdng proceedings until costs of former action paid, 266 costs, 267 removal of action from county court to High Court, 269 forms of pleadings and notices, 287 — 290 PEOBATK, only proper evidence of will of leaseholds, 161, 240 executor may commence action before, 162 when evidence of will of realty, 240 not evidence of death, 241 PROVISO FOR RE-ENTRY. See Condition. " PURCHASER," meaning of, 164, 166 PURCHASER FOR VALUE, when writs or orders not registered, 148, 149 from trustee, 214 discovery from, 264 QUARTERLY TENANCIES, notice to quit, 37 QUOUSQUE. See ExNTRY Quousque. RATES AND TAXES. Sec Covenant to pay Rates and Taxes. RECEIVER. See Possession ; Statutes of Limitation. RE-ENTRY, proviso for, how construed, 56 — 58 who may re-enter for forfeiture, 60 — 66 effect of, 67 See Forfeiture ; Entry. REGISTERS, proof of entries in, 243 RELATIONSHIP, how proved, 245, 246 RELIEF AGAINST FORFEITURE, formerly in equity only, 116 staying proceedings at law, 116 present jurisdiction to grant, 117 INDEX. 399 RELIEF AGAINST FORFEITURE— continued. for non-paymeut of rent, 118, 119 under Conveyancing Acts, 119 — 127 in what cases, 119, 120 when application to be made, 122, 123 vesting order in favour of underlcssee, 123 "lease," meaning of, 123, 124 "lessor," meaning of, 124 "underlessee," meaning of, 124 who can obtain, 124 to what leases it applies, 125 not in case of forfeiture of right of renewal, 125 terms imposed, 125, 126 how application made, 126 equitable relief in other cases, 127 of copyholds, 186 REMAINDERMAN, notice to quit, 41 devisable interest, 153 forfeiture of copyholds, 185 Statutes of Limitation, 200, 211, 212, 213 RENT, payment or receipt, how proved, 227, 228 receipt of, is evidence of ownership, 227 payments which prevent operation of Statutes of Limitation. 206, 221, 225 receipt of, by wrongful claimant, 206, 207 non-payment of, forfeiture for, 71 — 77 proviso for re-entry, or condition, necessary, 71 default in payment, 72 tender, 72 demand, 73, 77 demand by agent, 73, 74 what must be demanded, 74 when demand must be made, 74 where demand must be made, 74, 75 time for making demand, 75 proceedings under C. L. P. Act, 1852 ..75—77 half-year's rent in arrear, 76 no sufficient distress, 76 relief against forfeiture for, 118, 119 proceedings in county court, 277 400 INDEX. RENT-CHARGE, ejectnieut by grantee of, 173 — 175 powers conferred by Conveyancing Acts, 173 no demand necessary, 174 right to hold quousque, 174 wlio can enter for non-payment, 174 REPAIR. Sec Covenant to Repair. RESIDENCE. Sec Covenant as to Residence. RESTITUTION, after forcible entry or detainer, 21 — 24 REV^ERSION, severance of, 62, 63 devisee of, may enforce right of re-entry, 64 covenants running with, 64 Sec Assignee of Reversion. REVERSION BY ESTOPPEL, 29, 31 REVERSIONER, proof that plaintiff is, 26 ])ayment of rent to, 26 acknowledgment of title of, 26 iSce Assignee ok Reversion ; Reversion. REVOCATION OF WILL. Sec Will. SATISFIED TERMS, presumption of satisfaction, 3 Satisfied Terras Act, 3, 4 SEALING. Sec Deeds. SECONDARY EVIDENCE. See Deeds. SERVICE, of notice to quit, 42, 43, 230 under Conveyancing Acts, 122 ,, 59 Geo. 3, c. 12. ..182 See Pr ACTIO K. SIGNATURE. See Deeds ; Wills. SMALL TENEMENTS. See County Court ; Summary Proceed- ings. INDEX, 401 STAY OF PROCEEDINGS. Sec Costs ; Practice ; Relief. SUB-LETTING, breach of covenant by, 77 — 81 SUFFERANCE. See Tenant at Sufferance. SUMMARY PROCEEDINGS, by guardians and overseers, 181 — 183, 286 by landlord, 281—285 upon expiration or detennination of tenancy, 281 procedure, 282, 283 notice by landlord, 282 costs, 283 wrongfully obtaining warrant, 283 for deserted premises, 283— 285 in what cases, 283 procedure, 284 view by justices or constable, 284 appeal, 285 premises in London, 285 to recover school premises, 285 allotment gardens, 285 encroachments on land to be enclosed, 286 premises belonging to charities, 286 Crown lands, 286 parish property, 181—183, 286 SUNRISE AND SUNSET, how proved, 235 SURRENDER, by act of parties, 50, 51 by operation of law, 51 of copyholds how proved, 237 TENANCY, termination of, 25, 48 how proved, 25, 26 weekly, monthly, and quarterly, 37 commencement of, 38, 39 termination by efflux of time, 49 — 51 See Demand of Possession, Disclaimer, Notice to Quit, Surrender. TENANT, under an agreement, 2, 50, 128, 129 holding over, 49 action of ejectment by tenant, 128 — 129 entitled to possession on execution of present lease, 1 28 where term to commence in futuro, 129 W.Y.E. D D 402 INDEX. TE'^A'NT— continued. under void or voidable lease, 129 of copyholds, 1 29 when term taken in execution, 129 what he must prove when plaintiff, 129 of.mortgagor before mortgage, 1 33 ,, after mortgage, 134—136 of parson, 179 must give notice of writ to his landlord, 255, 272, 278 TENANTS IN COMMON, action by^ 177, 178.^ statutes of limitation, 208 Sec Joint-Tenant. TENANT AT SUFFERANCE, 46, 49, 131 TENANT AT WILL, demand of possession, 47 — 49 determination of will, 48 disclaimer by, 52 mortgagor in possession, 131, 133 statutes of limitation, 203 cestui que trust in possession, 216 summary proceedings against, 281 TENANT FROM YEAR TO YEAR, notice to quit, 36 holding over, 49 disclaimer by, 52 statutes of limitation, 205 TRIAL, in High Court, 265 in County Court, 273, 279 TRUSTEE, devise to, 160 statutes of limitation, 205, 214 — 217 purchaser for value from, 214 cestui que trust in possession, 216 TRUSTEE IN BANKRUPTCY, property of bankrupt vests in, 171 appointment of, 171 what property vests in, 171 — 172 commencement of bankruptcy, 172 proof of adjudication, 172 ,, ,, appointment of trustee, 172 copyholds, 173 disclaimer by, 173 INDEX. 403 USER OF THE PREMISES. See Covenant as to User. VACANT POSSESSION, wlio should be sued when possession vacant, 189 how proved, 235 service of writ, 254, 271 VENUE, in County Court action, 275 VOID OR VOIDABLE LEASE, 59, 107, 108, 203 See Forfeiture ; Limitation, StatiTtes of ; Waiver. WAIVER OF DISCLAIMER, 53 WAIVER OF FORFEITURE, meaning of, 1 07 void or voidable lease, 107, 108 what amounts to waiver, 108 by acceptance of rent, 108, 109 by distress for rent, 109, 110 by other acts, 110, 111 what acts do not operate as a waiver. 111, 112 by the Crown, 112 by an agent, 112 landloi'd must have knowledge of the forfeiture, 112 not after election to forfeit, 113 where breaches are continuing, 113, 114 recovery of damages is not, 114 waiver does not destroy condition, 114, 115 of copyholds, 186 WAIVER OF NOTICE TO QUIT, 45 WASTE, forfeiture for, 92 — 94 voluntary, 93 permissive, 94 WEEKLY TENANCY, notice to quit, 37 ^ WILL, of realty must be valid by the lex loci, 151 of copyholds, 152 speaks from death of testator, 153 of infants, 154 of married woman, 154 execution and attestation, 154, 155 404 INDEX. WILL — continued. executing powers of appointment, 155, 158 revocation by marriage, 155 not by presvimption, 1 55 by another will or writing, 156 by destruction, 156 ' obliterations, alterations, &c.,^56 revival of, 156 subsequent conveyance of property devised, 156, 157 meaning of " die without issue," &c., 159, 160 no lapse in certain cases, 160^-161 bequest of leaseholds, 161, 162 probate is the evidence of will of leaseholds, 161, 240 title of executors or administrators, 162, 163 proof of contents, 238 ,, execution, 239 when probate is evidence of will of realty, 240 statutes set out, 320, 341, 377 WITNESS. See Attesting Witness. W.KIT OF ELEGIT, registration of, 148 Sec Elegit, Tenant -by. WRIT OF FI, FA. See Fieri Facias, Purchaser under. YEARLY TENANT. See Tenant from Year to Year. THE END. BRADBURY, AGNKW, & CO. ID., PRINTERS, WHITEFRIARS. LAW BOOKS— SWEET & MAXWELL, LIMITED, Costs. — JoHNsoK. 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