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Lessee PORTER บ.

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T. T. 1844. "year's rent was due before the said summons was served, and that Each of Pleas. no sufficient distress was to be found on the demised premisses countervailing the arrears then due, and that the lessor or lessors "in ejectment had power to re-enter; then and in every such case, "the lessor or lessors in ejectment shall recover judgment and exe"cution, 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 "lessees, his or their assignee or assignees, or other person or persons "claiming or deriving under the said leases, shall permit and suffer "judgment to be had and recovered on such ejectment, and execu❝tion to be executed thereon, without paying the rent and arrear "together with full costs, and without filing any bill or bills for "relief in equity within six calendar months after such execution "executed, then and in such case the said lessee and lessees, his or "their assignee or assignees, 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 writ of 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 premisses discharged from such lease; and if on such 'ejectment verdict shall pass for the defendant or defendants, or the "plaintiff or plaintiffs shall be nonsuited therein except for the "defendant or defendants not confessing lease, entry, and ouster; "then and in every such case such defendant or defendants shall have "and recover his and their full costs." Surely this is not language which we can treat as addressed for their information and guidance to plain and unlettered men. The terms used are to persons acquainted with the legal phraseology of the Courts intelligible enough—but I think I may safely say, that there is not a sentence in this section, to which a person unacquainted with legal forms and technical modes of procedure could attach a definite meaning; or the precise effect and operation of which such a person could possibly comprehend. The subsequent enactments are in like manner conversant about the legal modes of procedure to be adopted by the landlord, or rather by his legal advisers; and on the whole, it has long appeared to me, with great respect for the opinions I have referred to, to be altogether a mistake to say that those statutes are to be dealt with in the mode suggested: and in my judgment we are to look at them as enactments proceeding from legal men, providing for the remedy of defects and mischiefs, to the then existing forms of legal proceedings, and addressed to the Judges and officers of the law in the respective Courts of Justice. It follows, in my opinion, that we cannot safely give to the terms "landlord and tenant," used in

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those Acts, any other meaning than that which the law attaches T. T. 1844. to them, unless there be some language in the Acts themselves Exch. of Pleas. importing that they are to be taken in a different sense. I admit that if such an inference can be fairly drawn from the language of the Legislature in those enactments, it is a just ground of argument in support of an interpretation of the words "landlord and tenant," which would include within them a case like that before us. I think I will be able to point out, by reference to several expressions in these statutes, that they really point to a very different conclusion; and I have not heard much argument addressed to us in the present case on this particular subject. There has, however, been, in the course of the discussion on the construction of those Acts, one observation made on the first section of the statute 11 Anne, c. 2, and the first section of the 25 G. 2, c, 13, which has received the sanction of such very eminent authority that I cannot omit noticing it on the present occasion; I allude to the argument of Lord Plunket in the case of Pluck v. Digges (a), where his lordship is reported to have used the following language: "In the first section "of this very Act, the 11 Anne, c. 2, is recited and amended, and in "that the term 'landlord' is used by the Legislature as applicable to one who has departed with his entire interest. It provides that "a tenant overholding after the determination of his term, and after "demand by his landlord, shall pay double rent to his landlord, or "to such person to whom the immediate reversion of such lands, "expectant on the determination of such lease, shall belong. Now, "it is clear that such immediate reversion could not belong to any "other person than the landlord, unless the interest of the landlord "expired with that of the tenant. It does not, therefore, seem "unreasonable to use the word, in the remaining sections of the "Act, in the same sense in which the Legislature has clearly used "it in the first; and more especially, if this is done to give effect "to the remedy in a case plainly falling within the mischief."

With great respect for the opinion of that noble and learned Judge, I confess myself unable to concur in the reasoning of this passage. The words of the 11 Anne are these:-"For securing to "lessors and landlords their just rights, and to prevent frauds fre"quently committed by tenants; be it enacted, &c., that in case any "tenant or tenants for any term for life, lives, or years, or other person or persons who are or shall come into possession of any "lands, tenements, or hereditaments, by, from, or under, or by collu"sion with such tenant or tenants, shall wilfully hold over any lands,

(a) 2 Hud. & Br. 88.

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T. T. 1844. "tenements, or hereditaments after the determination of such term Each of Pleas. 66 or terms, and after demand made, and notice in writing given "for delivering the possession thereof by his or their landlords, or "lessors, his or their agent or agents thereunto lawfully authorised, "then and in such case such person or persons, so holding over, shall, for and during the time he, she, and they, shall so hold over, or keep possession of the said lands, tenements, and hereditaments, as aforesaid, pay and forfeit to the landlord or landlords, lessor "or lessors, his, her, or their heirs, executors, administrators, or "assigns, or to such person or persons to whom the immediate "reversion of such lands, expectant on the determination of such "lease, shall respectively belong, double the yearly value of the "lands, tenements, and hereditaments so detained, for so long a time as the same are detained, to be recovered in any of her Majesty's "Courts of Record by action of debt or trespass, whereunto the "defendant or defendants shall be obliged to give special bail, "against the recovering of which said penalty there shall be no "relief in equity."

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There is, perhaps, some looseness in the form of expression used in this section; but for myself I would say it would require the authority of the highest Court of Judicature in the country, to coerce me to hold that this statute could be made use of by a person who had no reversion in the lands, nor any right to the possession, while there was, as in the case before us, a third person having the immediate reversion in the lands expectant on the determination of the demise. Could Porter in the present case take advantage of this Act? Is he to give the notice, and make the demand of possession for himself? That is answered by the simple proposition that unquestionably Porter's lessor could make the same demand on Dunne; and can two persons, at the same time, have the power of making separate demands of the possession, and enforcing separate claims for double value? If Porter cannot make the demand for himself, could he make it as landlord merely, not as agent, for the benefit of his original lessor, so as to entitle that lessor to sue for the double value, having himself made no demand? I see no reason for supposing that this could be done, consistently with the language of the Act: and to get rid of these contrarieties and inconsistencies, I think we must read the Act so as to give the words "or such person," &c., that signification which they will naturally have; and that in truth they merely mean any person having the reversion otherwise than by direct transmission or assignment from the original landlord or lessor; such, for instance, as a tenant in remainder on an estate for life, in reference to a lease made under a power by the

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tenant for life. In fact the very words used in this section are not T. T. 1844. uncommonly found in leasing powers, and in leases made under Exch. of Pleas. them; though in contemplation of law [see the case of Isherwood v. Oldknow (a)] such remaindermen are assignees of the reversion, within the meaning of the statute. The language of conveyancers has been in practice guarded to provide for the reservation of rent in the form I have mentioned, and I believe is still for greater caution, or from adherence to old forms, often so expressed. If we take that to be so, the sections in question, so far from affording an argument that the statutes meant to deal with persons having no reversion, nearly demonstrate the contrary, as showing that it was to the ownership of the reversion the right is given, and that in the term "landlord" that ownership is implied.

The case of Fairclaim v. Shamtitle (b) is referred to in the same part of his judgment, by Lord Plunket, as an authority that the term "landlord," used in the Ejectment Statutes, might be applied to a person who was not such in the legal sense of the term; but I think that case, when looked into, fails to support the proposition. It was a question on the English statute, which enables the Court to let in a person to defend as landlord an ejectment served on the tenant in possession. The dispute as to the title was between a person claiming as heir of a copyhold to the person last seised, and the lord of the manor claiming as on an escheat for default of heirs in that person; and the question merely was, whether such claimant by escheat was within the Act, and could be let in as landlord to defend the ejectment brought by the person claiming to be heir-atlaw, he never having been at any time previously in possession? It is plain that if the escheat actually had occurred, the lord had become, in legal contemplation, the landlord of the tenant in possession; he claimed as lord by escheat in the strictest sense of the term, and might distrain for the rent as assignee in law of the reversion: Litt. s. 348. But the question in the case in Burrow is a much narrower one, and merely respected the possession of the party in reference to the antecedent possession of the land, and to the construction of the statute and the practice of the Court in such a case in the action of ejectment; and the claimant by escheat was admitted accordingly.

I cannot therefore find any thing in the statutes themselves, or in any decided case in England, to warrant me in concluding that any meaning different from that which they should bear in the consideration of a Court of Law, should be given to the words "landlord

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T. T. 1844. and tenant," as used in them; and when I look through the Acts, it Each. of Pleas. appears to me as if the words were carefully used by the framers of them, as having a definite legal import. Assuming, as I think we are well warranted in doing, that the Acts were drawn by persons conversant with legal principles and distinctions, it appears that they must from earlier statutes have had their attention as it were especially drawn to those very distinctions.

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The Act of 10 and 11 Car. 1, c. 7, is as follows:-" Whereas at "a Parliament holden in this kingdom, in the eighteenth year of the "reigne of the late King Edward the Fourth, late King of England "and Lord of Ireland, it was ordained and accorded by authority of "that Parliament, that when any lord thenceforth take any distresse, "if the distresse be not quit within eight dayes after the taking, "that then it shall be lawfull to the lord to call before him or his "officer, four men of the same lordship, and to make them sweare "before him or his seneschall or his receiver, upon a book, to prayse "the distresse or distresses so taken; and if he from whom the dis"tresse is taken, do not come within other eight dayes after the "praysement and pay his duty, or make no agreement with his lord "or his officer, then the lord to take it as it is praysed for his rent "with his damages; and if the distresse be better than the rent, "with the arrerages, the lord to restore the surplusage unto the "tenant; and if it be of lesser price than the value of the rent, with "the arrerages, the tenant to pay the surplusage, or to be againe distrained: And forasmuch as divers doubts and ambiguities did, "and daily do arise, whether the said statute can extend unto any, "but unto very lord and very tenant; be it therefore enacted, "adjudged, and declared by the King's most excellent Majesty, and "the Lords Spirituall and Temporall, and Commons in this present "Parliament assembled, and by authority of the same, that all and "every person and persons, bodies politique and corporate, and other persons whatsoever, who is or are, or hereafter shall be seized in "fee, or fee tayle, generall or speciall, or as tenant after possibility "of issue extinct, or as tenant for life or lives in dower, or by the "courtesie of England, or of any other estate of freehold, or that now "is or are, or hereafter shall be possessed as of an estate for years, "guardian in chivalrie or socage, or as tenant by elegit, statute mer"chant or statute staple, or of any other estate for years, or estate "equivalent thereunto, of any honours, castles, lands, tenements, or "other hereditaments whatsoever, and also all and every grantee or 'grantees of any one or more rent or rents-charge, and the heires, successors and assigns of every such grantee or grantees, and every "other person and persons whatsoever, shall and may from hence

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