No. 274. 28 VICTORIA, ejectment; and such affixing shall be deemed legal service thereof; which service or affixing such writ in ejectment shall stand in the place or stead of a demand and re-entry and in case of judgment against the defendant for non-appearance, if it shall be made appear to the court 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 premises 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; and in case the lessee or his assignee or other person claiming or deriving under the said lease shall permit and suffer judgment to be had and recovered on such trial in ejectment and execution 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 such execution executed, 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 appeal or 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 same demised premises discharged from such lease; and if on such ejectment a verdict shall pass for the defendant or the claimant shall be nonsuited therein, then in every such case such 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 part and behalf of the first lessee are and ought to be performed. Lessee proceeding in equity not to or relief without payment of rent and costs. 15 & 16 Vict. c. 76 s. 211. 178. In case the said lessee his assignee or other person claiming have injunction 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 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 and 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 and no more as he shall really and bona 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 possession shall pay such lessor or landlord what the money so by 28 VICTORIA, him made fell short of the reserved rent for the time such lessor or No. 274. landlord held the said lands. proceedings to 15 & 16 Vict. c. 76 s. 212. 179. If the tenant or his assignee do or shall at any time before Tenant paying the trial in such ejectment pay or tender to the lessor or landlord his rent with costs executors or administrators or his or their attorney in that cause or cease. pay into court all the rent and arrears together with the costs, then and in such case all further proceedings on the said ejectment 4 Geo. II. c. 28 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. 8. 4. tenant holding expiration or tenancy. 180. Where the term or interest of any tenant now or hereafter Ejectment by holding under a lease or agreement in writing any lands tenements or hereditaments for any term or number of years certain or from over after year to year shall have expired or been determined either by the determination of landlord or tenant by regular notice to quit, and such tenant or any 15 & 16 Vict. one holding or claiming by or under him shall refuse to deliver up c. 76 s. 213. possession accordingly after lawful demand in writing made and Geo. IV. c. 87 signed by the landlord 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 ejectment 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 1 or person requiring him to find such bail (if ordered by the court or Tenant to give a judge) and for such purposes as are hereinafter next specified; and bail. 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 counterpart or duplicate thereof and proving the execution of the same by affidavit and upon affidavit that the premises have 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 lawfully demanded in manner aforesaid, to move the court or apply 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 two 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 If tenant shall cause shown or upon affidavit of the service of the rule or summons not do so in case no cause shall be shown to make the same absolute in the for the landlord. whole or in part, and to order such tenant or person within a time to be fixed upon a consideration of all the circumstances to find such bail with such conditions and in such manner as shall be specified in the said rule or summons or such part of the same so made abso-. lute; 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 judgment for recovery of possession and judgment to be 28 VICTORIA, Costs of suit in the form contained in the Twentieth Schedule to this Act or to the like effect. No. 274. Twentieth On ejectment between landlord and tenant juries to give damages for mesne profits. 16 & 17 Vict. c. 76 8. 214. 1 Geo. IV. c. 87 s. 2. Who may take bail. 15 & 16 Vict. c. 76 s. 216. Saving of former Ejectment by 7 Geo. II. c. 20 181. Wherever it shall appear on the trial of any ejectment at the suit of a landlord against a tenant that such 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 in 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 given in the cause or to some preceding day to be specially 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 recovery of the whole or any part of the premises and also as to the amount of the damages to be paid for such mesne profits; and in such case the landlord shall have judgment at 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 herein 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 the ejectment. 182. All recognizances and securities entered into as last aforesaid may and shall be taken respectively in such manner and by and before such persons as are provided and authorized in respect of recognizances of bail upon actions and suits depending in the Supreme Court; and the officer of the court with whom recognizances of bail are filed shall file such recognizances and securities, for which respectively the sum of two shillings and sixpence and no more shall be paid; but no action or other proceedings shall be commenced upon any such recognizance or security after the expiration of six months from the time when possession of the premises or any part thereof shall actually have been delivered to the landlord. 183. Nothing herein contained shall be construed to prejudice or affect any other right of action or remedy which landlords may possess in any of the cases herein before provided for otherwise than herein before expressly enacted. 184. Where an action of ejectment shall be brought by any mortgagee his heirs executors administrators or assignees for the recovery of the possession of any mortgaged lands tenements or hereditaments and no suit shall be then depending in equity for or touching the foreclosing or redeeming of such mortgaged lands tenements or hereditaments, if the person having right to redeem such mortgaged lands tenements or hereditaments and who shall appear and become defendant in such action shall at any time pending such action pay unto such mortgagee or in case of his refusal shall bring into court all the principal moneys and interest due on such mortgage and also all such costs as have been expended in any suit at law or in equity upon such mortgage (such money for principal interest and costs to be ascertained and computed by the court or by No. 274. the proper officer by such court to be appointed for that purpose), 28 VICTORIA, the moneys so paid to such mortgagee or brought into such court shall be deemed and taken to be in full satisfaction and discharge of such mortgage; and the court shall and may discharge every such mortgagor or defendant of and from the same accordingly, and shall and may by rule of the same court compel such mortgagee at the costs and charges of such mortgagor to assign or re-convey such mortgaged lands tenements and hereditaments and such estate and interest as such mortgagee has therein and deliver up all deeds evidences and writings in his custody relating to the title of such mortgaged lands tenements and hereditaments unto such mortgagor who shall have paid or brought such moneys into the court his heirs executors or administrators or to such other person or persons as he or they shall for that purpose nominate or appoint. 15 & 16 Vict. s. 3. 185. Nothing herein contained shall extend to any case where Not to extend to the person against whom the redemption is or shall be prayed shall certain cases. (by writing under his hand or the hand of his attorney agent or c. 76 s. 220. solicitor to be delivered before the money shall be brought into court 7 Geo. IL. c. 20 to the attorney or solicitor for the other side) insist either that the party praying a redemption has not a right to redeem or that the premises are chargeable with other or different principal sums than what appear on the face of the mortgage or shall be admitted on the other side; or to any case where the right of redemption to the mortgaged lands and premises in question in any cause or suit shall be controverted or questioned by or between different defendants in the same cause or suit; or shall be any prejudice to any subsequent mortgage or subsequent incumbrance; anything herein contained to the contrary thereof in anywise notwithstanding. court and judges. 15 & 16 Vict. 186. The Supreme Court and the judges thereof respectively Jurisdiction of shall and may exercise over the proceedings the like jurisdiction as heretofore exercised in the action of ejectment so as to ensure a c. 76 s. 221. trial of the title and of actual ouster when necessary only and for all other purposes for which such jurisdiction may at present be exercised; and the provisions of all statutes and Acts not inconsistent with the provisions of this Act and which may be applicable to the altered mode of proceedings shall remain in force and be applied thereto. and security for costs. c. 125 s. 93. 187. If a plaintiff in ejectment be nonsuited at the trial, the Costs of nonsuit defendant shall be entitled to judgment for his costs of suit; and if any person shall bring an action of ejectment after a prior action of R. Pl. 29. ejectment for the same premises has been or shall have been unsuc- 17 & 18 Vict. cessfully brought by such person or by any person through or under whom he claims against the same defendant or against any person through or under whom he defends, the court or a judge may (if they or he think fit) on the application of the defendant at any time after such defendant has appeared to the writ order that the plaintiff shall give to the defendant security for the payment of the defendant's costs, and that all further proceedings in the cause shall be stayed until such security be given, whether the prior action has been or shall have been disposed of by discontinuance or by nonsuit or by judgment for the defendant. 28 VICTORIA, No. 274. Writ of replevin. Twenty-first Upon application an action of stting that the the meantime in such action. 1 & 2 Will. IV. c. 58 s. 1. (12.) Replevin.(a) 188. Every action of replevin shall be commenced in the Supreme Court; and when any such action shall have been so commenced, it shall be lawful for the plaintiff therein to sue out of such court a writ, to be called a writ of replevin, directed to the sheriff of the colony or of the circuit district in which the goods and chattels shall be under distress requiring him to replevy the said goods and chattels ; and the said court is hereby authorized to issue such writ, which shall be in the form contained in the Twenty-first Schedule to this Act and shall have the same effect as any process or proceedings for such purpose heretofore in use; and the said sheriff shall in cases not otherwise by law provided for upon good security (by the bond of the plaintiff and two responsible persons as sureties conditioned to prosecute the suit with effect and without delay) being given to him execute such writ and return the said writ with a correct and proper statement endorsed thereon of the manner in which the same shall have been executed or the cause why the same has not been executed to the said court within a reasonable time next after such writ shall have been delivered to him. Provided always that the value of the property so distrained shall be ascertained by the said sheriff in like manner as the value of goods distrained is now ascertained in taking security in replevins; and that the said bonds shall be assignable under like circumstances and in like manner and shall be available to the assignee thereof as by law now authorized and directed with reference to bonds in replevin. (13.) Interpleader. 189. Upon application made by or on behalf of any defendant by a defendant in sued in the Supreme Court in any personal action, such application being made after declaration and before plea by affidavit or otherwise, showing that such defendant does not claim any interest in the subject matter of the suit, but that the right thereto is claimed or supposed to belong to some third party who has sued or is expected to sue for the same, and that such defendant does not in tain or relinquish any manner collude with such third party but is ready to bring into his claim and in court or to pay or dispose of the subject matter of the action in such stay proceedings manner as the court (or any judge thereof) may order or direct, it shall be lawful for the Supreme Court or any judge thereof to make rules and orders calling upon such third party to appear and to state the nature and particulars of his claim and maintain or relinquish his claim; and upon such rule or order to hear the allegations as well of such third party as of the plaintiff; and in the meantime to stay the proceedings in such action; and finally to order such third party to make himself defendant in the same or some other action or to proceed to trial on one or more feigned issue or issues; and also to direct which of the parties shall be plaintiff or defendant on such trial; or with the consent of the plaintiff and such third party their counsel or attorneys to dispose of the merits of their claims and determine the same in a summary manner; and to make such other rules and orders therein (a) So much of this Statute as limits the action of replevin to the Supreme Court is repealed by 33 Vict. No. 345 s. 97, "County Court Statute 1869." |