clause of re-entry in the lease for not repairing, and the lease was produced in court. However, the rule was made absolute, with liberty for the plaintiff to proceed upon any other title (≈). Where the Possession is vacant.-In cases between landlord and tenant, where one half year's rent is in arrear, and the landlord has a right of entry, the mode of proceeding, where the premises are untenanted, is marked out by the preceding statute. But it must not be supposed that possession is vacant, merely because no one is in actual possession of the premises. A. made a lease of an alehouse in London, for years (a). The lessee, before the expiration of the term, left it, and took another house in Wapping; but there was some liquor and old vessels left in the first-mentioned house, and the doors were locked. Upon this the landlord brought ejectment, as on a vacant possession, and had judgment; to set aside which, a motion was made. Lord Hardwicke, C. J.—“ Though a tenant does not live on the premises, yet it cannot, from that circumstance alone, be called a vacant possession; as if a person uses one house and lives in another, that will be a good possession of both. Here the tenant had actual possession of the premises, by keeping his liquor there, and, as appears, was such a person as the landlord might have served personally with an ejectment."-Probyn, J., mentioned a case where hay was left in a barn by a tenant, and that was held sufficient to keep the possession. Where the premises consist of unfinished houses, it was held, that the course was to proceed as on a vacant possession (b). These proceedings formerly differed from those of an ordinary ejectment, but under the C. L. P. Act, 1852, there is no difference, except in the service of the writ, which, in cases of vacant possession, may, without any leave of the court, or a judge, be "by posting a copy thereof upon the door of the dwelling-house, or other conspicuous part of the property," sect. 170; and except, perhaps, that, in such cases, no one not mentioned in the writ can be let in to defend; ante, p. 725. The 11 Geo. II. c. 19, s. 16, authorizes two or more Js. P. - in cases where tenants holding premises at rack rent or three quarters of the yearly value, who are in arrear "one year" (altered to half a year by 57 Geo. III. c. 52 (c),) desert them and leave them unoccupied so as no sufficient distress can be had-on the request of the lessor, to view and affix on the most notorious part of the premises a notice in writing what day (at the distance of fourteen days at least) they will return to take a second view; and if, upon such second view, the tenant or some person in his behalf does not appear and pay the rent, or there shall not be sufficient distress upon the premises, then the justices may put the landlord into possession. (z) Pure v. Sturdy, Bull. N. P. 97. (a) Savage v. Dent, M. 10 Geo. II. B. R. MS.; 2 Str. 1064; Bull. N. P. 97. (b) Doe v. Roe. 2 C. M. & R. 42. (c) And extended to cases where the landlord has no right of re-entry. By the 17th sect. (of the 2 Geo. II. c. 19) a summary appeal is given to the judges at the next assize, who may order restitution to be made; but if they dismiss the appeal, they cannot award costs against the tenant exceeding 5l. It is not necessary that any complaint should be made on oath, in order to justify the interference of the magistrates. The request of the landlord or his bailiff is sufficient (d). Although the tenant has a summary remedy by appeal to the justices of assize, yet the record of the proceedings in pursuance of the statute unappealed from, is conclusive as to the magistrates, and will afford a complete defence to them in an action of trespass (e). Where the magistrates had adjudicated erroneously on the fact of desertion, and the judges of assize on appeal had made an order for the restitution of the farm to the tenant with costs; and the tenant afterwards brought trespass for the eviction, against the magistrates, the constables, and the landlord; it was held, that the record of the proceedings before the magistrates was an answer to the action on behalf of all the defendants (ƒ). Under the above section the judges act as individuals and not as commissioners of assize; any order of restitution they make, therefore, should be signed by themselves and not by the clerk of assize (g); and directed to the sheriff (h). On appeal, under the above section, against an order made by two magistrates, giving possession to a landlord under sect. 16, the order made by the judges for restitution was not directed to any person. It was held, that a mandamus could not issue commanding the two magistrates to make restitution (¿). VIII. Of the Statutes of Limitations, 21 Jac. I. c. 16; 3 & 4 Will. IV. c. 27 (k). As an action of ejectment is founded on a right of entry in the party claiming title, if the defendant can show that such right has been barred, it will be a sufficient defence to the action. 21 Jac. I. c. 16.-By the statute of James, no person could make an entry into any lands, tenements, or hereditaments, but within twenty years next after his right or title first descended or accrued. The plaintiff, therefore, in ejectment, must have proved either actual possession or a right of entry within twenty years, or (d) Basten v. Carew, 3 B. & C. 649. (e) Ibid. (f) Ashcroft v. Bourne, 3 B. & Ad. 684. (g) R. v. Sewell, 8 Q. B. 161. (h) Cole on Ejectment, 680. (i) R. v. Traill, 12 A. & E. 761. (k) See Doe v. Morris, 2 B. N. C. 189, on the construction of the 21 Jac. I. c. 14, limiting the right of the crown to twenty years. have accounted for the want of it; for, by force of that statute, an uninterrupted possession for that period, if adverse (1), operated as a complete bar, except in cases under the second section, viz. infancy, coverture, non compos mentis, imprisonment, and absence beyond seas. Notwithstanding the foregoing statute, however, the right of bringing an ejectment frequently existed long after the power of trying a real action had determined; for either when disabilities lasted for sixty years after the death of the ancestor, or when estates in remainder did not come into possession until after that time, real actions were barred by the 32nd of Hen. VIII. c. 2, but the right of entry was saved by the 21 Jac. I. c. 16, the possession not being (in the latter case) adverse. These questions are now set at rest (m) by the,— 3 & 4 Will. IV. c. 27.-By the 2nd section of which, no person shall make an entry or distress, or bring an action to recover any land (n) or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same.—The above section does not apply to rent reserved on a demise, but only to rents existing as an inheritance distinct from the land, such as ancient rent service, fee farm rents, and the like (0); and, as to these, the statute, by the conjoint operation of sects. 2 and 3, runs from the last receipt of the rent, and not from the time when the right of distress for non-payment first accrued (p). By sect. 3, 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 1. 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 of the profits of such land, or in receipt of such rent, and shall, while entitled thereto, have been dispossessed, or have discontinued such possession or receipt, then such right shall be deemed to have first accrued at the time of such (1) Fairclaim v. Shackleton, 5 Burr. 2604. (m) See Nepean v. Doe, 2 M. & W. 894. But the 7 Will. IV. & 1 Vict. c. 28, has revived the doctrine of adverse possession in the case of a mortgagee. See Doe v. Eyre, post, p. 733. (n) Possession of the surface is primá facie possession of the minerals; Keyse v. Powell, 2 E. & B. 144; but this is re butted by showing a distinct grant of the dispossession or discontinuance of possession, or at the last time at which any such profits or rent were so received. 2. 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, who shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death. 3. When the person claiming such land or rent shall claim in respect of an estate or interest in possession, granted, appointed, 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 instrument 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, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument. 4. 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 person shall have obtained the possession or receipt of the profits 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 accrued at the time at which such estate or interest became an estate or interest in possession; notwithstanding (sect. 5) the person claiming, &c. shall, previously to the creation of the estate which shall have determined, have been in possession or receipt of the profits of such land or in receipt of such rent.-The above clause of the third section only applies to cases where another person than the reversioner is entitled to the particular estate (q). 5. 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, (i. e. as far as any re-entry during the lease is concerned; Doe v. Bingham, 3 Ir. L. R. 456). But by sect. 4, if the land or rent shall not have been recovered by virtue of such right, the right to make an entry, &c. 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 forfeiture or breach of condition had happened (r). The object and intent of the third section is "to explain and give a construction to the enactment contained in the second clause, (q) Doe v. Moulsdale, 16 M. & W. 689. See sect. 20, post. (r) This is in accordance with the former law. Doe v. Danvers, 7 East, 299. as to the time at which the right to make a distress for any rent shall be deemed to have first accrued,' in those cases only, in which doubt or difficulty might occur; leaving every case which plainly falls within the general words of the second section, but is not included among the instances given by the third, to be governed by the operation of the second" (s). Therefore, a distress or action for an annuity accruing by will, and charged on land, must be resorted to within twenty years from the death of the testator (t). The right of possession accrues to a mortgagee from the time of the execution of the mortgage deed, when there is no agreement that the mortgagor shall remain in possession until default, or any thing in the deed operating as a redemise from the mortgagor to the mortgagee for a de erminate period (u); and this rule holds, whenever there is no express agreement to that effect, as where the mortgage deed contains a covenant from the mortgagor for quiet enjoyment by the mortgagee after default (x); and although (semble) there is a covenant by the mortgagee not to enter until after a month's notice (y). And the rule, it seems, would hold, although there were in terms an agreement of redemise, if such agreement were inconsistent with the obvious intention of the parties, as appearing by the deed itself (z). By the 7 Will. IV. & 1 Vict. c. 28, reciting that doubts had been entertained as to the effect of the foregoing act, so far as the same related to mortgages (a), it is declared and enacted, that any person claiming under any mortgage of land, within the definition contained in the first section of the act, may make an entry or bring an action at law or suit in equity, 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 shall have first accrued. This statute preserves to a mortgagee the same right of entry as if the 3 & 4 Will. IV. c. 27, had not passed, and, therefore, a mortgagee may, within twenty years after the payment of part of the principal or interest, recover against a tenant let into possession by the mortgagor before the mortgage, although the mortgagor's right as against such person be barred by the latter statute; the question in such cases being whether the possession of the tenant was adverse to the title of the mortgagee, as before that statute (b). The purchaser of property under mortgage, to whom the mortgagor and mortgagee have joined in conveying the property, is a person claiming under a mortgage" within the above statute (c). (s) Per Tindal, C. J., delivering judg ment in Jones v. Salter, 3 B. N. C. 553. (t) Jones v. Salter, supra. (u) Doe v. Day, 2 Q. B. 147. (x) Doe v. Lightfoot, 8 M. & W. 553; Rogers v. Grazebrook, 8 Q. B. 895, acc. (y) Doe v. Day, supra. (2) Walker v. Giles, 6 C. B. 662. (a) See Doe v. Williams, 5 A. & E. 291. (b) Doe v. Eyre, 17 Q. B. 366. (c) Doe v. Massey, 17 Q. B. 313. |