DISTRESS REPLEVIN AND EJECTMENT ACT OF 1867- - OzCase

517
s. 1.
DISTRESS REPLEVIN AND EJECTMENT ACT OF 1867-
(31 Vic, No. 16.)
AS AMENDED BY
The Acts Shortening Act Amendment Act of 1903 (3 Edw. VII,
No. 10).
The Statute Law Revision Act of 1908 (8 Edw. VII. No. 18).
The Supreme Court Act of 1921 (12 Geo. V. No. 15).
The Magistrates Courts Act of 1921 (12 Geo. V. No, 22).
An Act to ConsoLihte and Arne& the Laws rclating to Distress
Replevin and Ejectment.
[Assented to 28th December, 1867.1
References to Pring’s Statutes and to Colonial Acts were omitted from the
marginal notes throughout this Act by Tho Acts Shortening Act Amendment
Act of 1903, 8. 10, title ACTS.
[Preamble r.epeulad by Tho Statute Lnw Revision Act of 1908, s. 2,
title ACTS.]
Interpretation.
1. Meaning of words in the Act. 3 & 4 Wm. IV. c. 27 s. l.-The
words and^ expressions hereinafter mentioned which in their ordinary
signification have a more confined or difTerent meaning shall in the first
thirty-one sections of 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.”-the word “land” shall extend to messuages and all
other corporeal hereditaments whatsoever 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 held according to any other
tenure and
“Rent.”-the word ‘Lrent” shall extend 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 and upon any
demise lease or contract whatsoever or otherwise and
Person through whom another claims.-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 courtesy
of England tenant in dower successor special or general occupant
executor administrator legatee husband assignee appointee devisee or
otherwise and also any person who wm entitled to a.n estate or interest
to which the person so claiming or some person through whom Be claims
became entitled its lord by escheat and
“Person.”-tho word “person’’ shall extend to a body politic
corporate or collegiate and to a clam of creditors or other persons as
well as an individual and

548
9.1-3. LnndZord nnd Temnt. [Vol. v.
Australia and the adjacent islands not to be deemed beyond seas.--
no part of Australia nor any island adjacent thereto (being part o€
the dominions of Her Majesty) shall be deemed to be beyond seas within
the meaning of this Act.
The statute 3 & 4 Will. IV, e. 27, referred to in the marginal notes to the
first thirty sections of this Act, is The Real Property Limitation Act, 1833
(Imperial), for which see Halvbury’s Statutes of England, Vol. 10, pp. 441
et seq. That Act was adopted in the territory now comprised within this State
by the New South Wales Act 8 Will. Tv, No. 3, which has now been repealed
with respect to this State by the Repealing Act of 1867 (31 Vie. No. 39), for
which see the 1911 edition of the Queensland Statutes, Vol. 3, p. 3053.
It should be noted that the definitions made by this section’are made
applicable only to the first thirty-one sections of this Act.
a Land ’).-The term includes any definite part of the crust of the earth,
e.g., a seam of coal (Tilkinson v. Proud (1843), 31 M. & W. 33), or a space
formed in it by tunnelling (Bsua?~ v. London Portland Cement Co. Ltd. (1892),
67 L.T. 615), or the proceeds of sale of land held on trust for sale (Re
Haaekdine’s Trusts, r1908] 1 Ch. 34; Re Fox, [1913] 2 Ch. 75; Re Witham,
Chadburn V. Tinfield, 119221 2 Ch. 413; Re Jauncey, Bird v. Arnold, [E3261
Ch. 471), unless the context otherwise requires.
Cf. the definition of ((land” in the Acts Shortening Act of 1867, S. 11,
title ACTS.
As to (‘estate”, see ibid.
U Rent ”.--“Rent’ includes annual interest on money advanced on the
scrurity of n deposit of title deeds without writing (Burnet v. William,s (1889),
15 V.L.R. 205).
G Person through whom mother erson is said to clalm *.-Real estate
le heir according to tho feudal rules of
primogeniture, hut is distributable in the same manner as personal estates
imdisposed of by will. Bee The Intestacy Act of 1877, S. 13; Succession Act
of 1867, 8s. 29 et seq., title SUCCESSION. As to the meaning of the word ((heir”
of an intestate no longer descends to t P
in this Act, see The Intestacy Act of 1877, S. 27.
Courtesy and dower were abolished with respect to the lands of persons
dying thereafter by The Intestacy Act of 1877, s. 28.
As to the rights of a special occupant, see Halsbury’s Lams of England
(2nd ea.), Vol. 10, p. 619.
Person ”.-Cf. the definition in the Acts Shortening Act of 1867, S. 11,
title ACTS.
S0e further, with respect to this section, Halsbury’s Laws of England (2nd
ea.), Vol. 20, pp. 683-687; English and Empire Digest, Vol. 32, pp. 427-431.
Rights of Entry Distress or Action.
2. No descent cast warranty to bar a right of errtry &c. 3 & 4
Wm. IV. c. 27 s. 39.--T\io descent cast discontinnance or warranty shall
toll or defeat any right of entry or action for the recovery of land.
This Reetion prorides in effect that nothing but lapse of time shall take
away the right of an owner of land to recover it by action or entry. As to the
meaning and former effect of “descent cast”, see HalRbury’s Laws of England
(2nd ed.), Vol. 27, p. 776, note (m). As to ‘(discontinuance1’, see ibid., p. 679,
note (e). As to ‘(warranty”, see Co. Litt. 365a, 393b, Bac. Abr., title
7.a I‘ m nt y .
To (‘toll” is to take away; thus, when n man’s right of entry upou land
was barred or taken away by lapse of time or otherwise it was said to be tolled
(Mozley and Wliitclep ’s Law Dictionary (5th ed.) , 11. 335).
3. No right to be preserved by continual claim. 3 & 4 Wm. IV.
c. 27 s. 11.-No continual or other claim upon or near any land shall
preserve any right of riiakirig ari entry or distress or of bringing art
action.

Distress Replevin and Ejectnzeqtt Act of 1867.
%5-
4. Receipt of rent to be deemed receipt of profits. 3 & 4 Wm. IV.
c. 27 s. 35.--The receipt of the rent payable by any tenant from year
to year or other lessee shall as against such lessee 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.
The receipt of the profits of the land is treated throughout the sections of
this Act relating to limitation of actions as being equivalent to possession;
therefore so long as a person receives rent from a lessee the lessee can never
obtain a title to the land against him under this Act. See s. 11, post.
6. At the end of the period of limitation the right of the party out
of possession to be extinguished. 3 & 4 Wm. IV. c. 27 s. 34.-At
the determination of the period limited by this Act to any person for
making an entry or distress or bringing any writ or action or suit the
right and title of such person to the land or rent for the recovery
whereof such entry distress action or suit respectively might have been
made or brought within such period shall be extinguished.
For the period limited for making an entry or distress or bringing an
action, see sa. 6-10, post.
The title of the dispossawed owner being extinguished, the occupant obtains
a title by virtue of liis possession; that is, resting not on ‘‘a species of
involuntary alienation effected by the statute”, but on the lack in every other
person of a better right to the land. Buch a title, notwithstanding its negative
eharncter, will bo forced on a purchaser provided the title be deduced for the
revioufl forty years (Soott v. Nixon (1843), 3 Dr. & War. 388; Jacobs v.
$kvell, [1900] 2 Ch. 868, 869; Be Atkinson & Horsell, [I9121 2 c11. 1, at pp.
11, 19).
Eascnicnts affecting the Innil, including restrictive covenants (which are in
tho nature of equitable easements), will continue to affect it (see Re Nisbet
and Pott’s Contract, [1905] 1 Ch. 391; [1906] 1 Ch. 386, C.A.; Halsbury’s
Laws of England (2nd ed.), Vol. 20, p. 742), but no rights will be acquired
which are baeed on an implied grant (e.g., a way of necessity) (Wilkes v.
Grecnwag (1890), 6 T.L.R. 449; see Halsbury’s Laws of England (2nd ea.),
Vol. 20, p. 741).
The inchoate rights of a person in possession of land without title form a
transmissible and inheritable interest, defeasible by the entry of the rightful
owner (Asher v. WhitlocB (1865), L.R. 1 Q.B. 1; Anstee v. Nelms (1856),
1 H. & N. 225; Board v. Board (1873), L.R. 9 Q.B. 48; Dalton v. Fitzgerald,
[1897] 2 Ch. 86; English and Empire Digest, Vol. 32, pp. 488, 489).
In order that the title of an owner of land may be extinguished under this
section it is necessary that possession adverso to him be taken continuously for
twenty years, no matter whether the possession be the continuous possession of
one person or the successive possession of several (see Doe v. Carter (1847),
9 Q.B. 863), but if there be any interval between the possession of successive
persons the ovner of the land will he in the same position as if he had never
been dispossessed (Trustees, etc., Agency Co. v. Short (1888), 13 App. Cas.
793). In ordor that time may begin to run there must be some one in whose
favour it can run (Smith v. Lloyd (1854), 9 Ex. 562). Thus, if A, an owner
of land, is dispossessed by B, who, after four years, is dispossessed by C, who,
after two years, is dispossessed by D, who renzaiziv in possession for fourteen
years, A’s right to the land will be barred; but if, after four years, B discon-
tinues posscssion, and the land is left vacant, A’s rights will be as if he had
never been diRpovsessed whether he re-enters or not, and if C afterwards enters
A will have twenty years in which to recover the land. Whoever is in possession
of land has a title which is good against all except the true owner (see Perry
v. Clissold, [1907] A.C. 73), therefore D, in the case put, has, on the extinguish-
ment of A’s title, a good title defeasible only by entry of C within twenty years
of C’s dispossession, or of R within twenty years of his dispossession. See
Cheshire, Tho Modern Law of Real Property (2nd ea.), pp. 774-775; Hal.sbury’8
Laws of England (2nd ea.), Vol. 20, p. 745; English and Empire Digest, Vol. 32,
pp. 432 et seq.; notes to s. 6, post.
AR to whcther this section operates to extinguish personal rights charged or
secured upon land, see Sutton v. Xutton (1882), 22 Ch. D. 511; National Bank
of Xasmania Ltd. (In Liquidation) v. McKen8ie, [ 19201 V.L.R. 411 ; Halsbury ’8
Laws of England (2nd ea.), Vol. 20, p. 650.

520
s. 6.
Limitation of Actions and Distresses.
6. No lamd or rent to be recovered but within twenty yew after
the right of action accrued to the claimant or some person whose
eshb he claims. 3 & 4 Wm. IV. G. 27 s. 2.-No person shall make an
entry or distress or bring an action to recover any land 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.
As to the statute 3 & 4 Will. 4, c. 27, referred to in the marginal note, see
note to s. 1, ante.
For definitions of terms used in this section, see S. 1, ante.
For the time when the right to make entry or distress or to bring an action
accrues, seo ss. 11-17, 21, post. Until such time arrives the period does not
commence to run (H‘urdoch v. Registrar of Titlas, [1913] V.L.R. 75).
Ths effect of lapse of the statutory period is to extinguish title, not merely
to bar actions. See s. 5, ante.
This section must be pleaded where it is sought to be relied on. Bee R.8.0.
(lgoo), Ord. 28, rr. 14, 20, title PBACTICE.
As to limitation of actions by mortgagors and mortgagees respectively, see
s8. 30, 31, post.
As to limitation of equitable claims, see ss. 26-29, post.
The term itrent” is dofined by s. 1, ante. “Rent,’ in this section means
rent as an incorporeal hereditament, an incumbrance on land, a right to receive
aomething out of it to the detriment of the owner, e.g., a rent charge. See
Grant v. Ellis (1841), 9 M. & W. 113; Jones v. Withers (1896)) 74 L.T. 572.
It does not mean rent reserved on a lease for pars, which is a mere incident of
tenure (Grant v. Ellis, supra), as to which see the Statute of Frauds and
Limitations of 1867, ss. 16, 21, 22, title FRAUDS AND LIMITATIONS.
This Act does not of itself bind the Ckmvn.
f3p3 !t%o.z?zas v. Pritchard,
119031 I KB. 209, at p. 212; AttcmwpGm v. Hoggan (1$77), 3 V.L.R.
(Eq.), 111. A.s to a c W ~ on of lands of the Grown, see
the Cko7~1f Snkts Act, 1769 g G Statutes of Englsnd, Vol. 10,
p. 433. That Act is in force in Queensland (Attorney-General v. Love, [1898]
A.C. 679; Powell v. Hepburn (1889), 11 A.L.T. 115).
A title by adverse possession cannot be acquired or set up against the
registered proprietor of land under the Real Property Act of 1861, title REAL
PBOPERTP (Mkcamble v. Phillips, [193G] St. R. Qd. 136; 30 Q.J.P.R. 71; In,
?.e Brymn (1899), 9 Q.L.J. (N.C.) 93). Miscanible v. Phillips, supra, overruled
the decisions to the contrary in Perri v. Holmes, [1934] Q.W.N. 9 and
Ziiscarnbles Pty. Ltd. v. Rae, [1935] Q.W.N. 38.
This section onIy applies where there is both a discontinuance of possession
by the person against whom it is set up and possession by the party setting it
up, in both cases extending throughout the statutory period (Maguire v. Brown.
(1913), 17 C.L.R. 365). A party who reIie8 on this Act must prove exclusive
occupation of the land for the statutory period. He must have had de facto
possession, and 3180 the animus possidendi (Borton v. Briggs (1903), 6 W.A.L.R.
26). In deciding whether leaving the laud for a time constitutes an abandon-
ment of powession, it is necessary io consider whether there has been either an
entire eossation of physical control or a failme of the hltention to possess
(ibid.). If all visible signs of occupation arc removed it is not open to a person
clainling to hnve been in possmsion, to ~a-y that he still intended to remain in
possession; but if he goes away leaving some visible signs of his occupatim, it
is necessary, in order to decide whether he has abandoned possession, to consider
whether at tho tho he goes away he has any intention of rcturning (ibid.).
See also the notes to s. 5, unte.

521
Distress Repleviln and Ejectment Act of 1867. ss. 61-8,.
Where a widow held possession of the land of her intestate husband for %e
statutory period, it was held that the title of the heir-at-law was defeated (Re
Cherry (1906)) 2 Tas. L.R. 68). Entry by the administrator of an intestato on
his land prevented the statute from running against the infant heir. The statute
only coinnienced to run against the administrator on the death of the heir and
did not run against the owner merely because he had not taken posseseion if
the land remains unoccupied (Gregory v. Poole (1892), 18 V.L.R. 356).
Where a documentary title, however remote in date, is proved it is incumbent
upon the other party to shorn title hy possession in order to resist it (Nixon v.
Beynolds (18G9), 3 8.A.L.R. 142). In an action of ejectment by the curator
of an intestate estate brought after the statutory period of limitation, it was
held that the onus of proving the plaintiff ’8 want of possession within the
necessary period lay on the defendant, and, when proved, constituted a good
defence (Weigull V. Blyth (1874), 5 A.J.R. 106).
See further Halsbury’s Laws of England (2nd od.), Vol. 20, pp. 681 et seq.;
English and Empire Digest, Vol. 32, pp. 425 et seq.; Lightwood’s Time Limit
on Actions, pp. 6 et seq.
7. Persons under disability of infancy lunacy coverture or beyond
seas and their representatives to be allowed ten years from the
termination of their disability or death. 3 & 4 Wm. IV. c. 27 s. 16.-
Provided always that if at the time at which the right of any person
to make an entry or distress or bring an action to recover any land
or rent shall have first accrued as aforesaid such person shall have
been under any of the disabilities hereinafter mentioned (that is to say)
infancy coverture idiotcy lunacy unsoundness of mind or absence beyond
seas then such person or the person claiming through him may notwith-
standing the period of twenty years hereinbefore limited shall have
expired make an entry or distress or bring an action to recover such
land or rent at any time within ten years next after the time at which
the person to whom such right shall first have accrued as aforesaid shall
have ceased to be under any such disability or shall have died (which
shall have first happened).
The operation of this section is qualified by 8s. 8 and 9, post.
’
Expressions used in this section are defined by s. 1, mte.
For the time when the right to make entry or distress or to bring an action
accrues, see 8s. 11-17, 31, post.
An action for the redemption of a mortgage is not an action for the
recovery of land, and is not affected by this section (Einsman v. Rouse (1881),
17 Ch. D. 104) ; such an action is governed by 8. 30, post.
Disability occurring after the accrual of the came of action affords no
protection (Murray v. Wutkins (1890), 62 L.T. 796; Garner v. Wingtw~,
C1905) 2 clh. 233). As to the mode of determining the time of such accrual to
a mortgagee, see PurneZZ v. Boche, [1927] 2 Ch. 142.
If a person be under successive disabilities time will not begin to run
against him until the cessation of the last of the disabilities, provide& there be
no interval between any of them (Borrows v. Ellison (1871)) L.R. 6 Ex. 128).
See further Halsbury’s Laws of England (2nd ca.), Vol. 20, pp. 715-717;
English and Empire Digest, Vol. 32, pp. 460-463.
8. But no action &c. shall be brought &c. beyond forty yeam after
the right of action acmed. 3 & 4 Wm, IV. c. 27 s. 17.-Provided
nevertheless that no entry distress or action shall be made or brought
by any person who 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 have first
accrued shall be under any of the disabilities hereinbefore mentioned or
by any person claiming through him but within forty years next after
the time at which such right shall have first accrued although the person

522
s. 8-10. Lmadlord crnd Tenant. [Vol. v.
under disability at such time may have remained under one or more
of such disabilities during the whole of such forty years or although the
term of ten years from the time at which he shall have ceased to be
under any such disability or have died shall not have expired.
For the time when the right to make entry or distress or to bring an action
accriies, see SR. 11-17, 31, post.
The (disnhilitias liereinbefore mentioned” are those referred to in s. 7,
anfe.
9. No further time to be allowed for a succesion of disabilities.
3 & 4 Wm. IV. c. 27 s. 18. 3 & 4 Wm. IV. c. 27 s. 19.-T>rovided always
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 have lirst 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 twenty years next
after the right of such person to make an entry or distress or lo bring
an action to recover such land or rent shall have first accrued or the
said period of ten years next after the time at which such person shall
have died shall be allowed by reason of any disability of any other
person.
The ~‘disnbilitiss hereinbefore mentioned ” are those referred to in s. 7,
anfe.
10. No lands or rents to be recovered by ecclesiastical
eleemosynary corporations sole but within two incumbencies and six
years or sixty years. 3 & 4 Wm. IV. c. 27 s. 29. 27 Vie. No. 8 s. 7.
28 Vic. No, 24 ss. 4 and 12.-Provided always that it &all be lawful
for any 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 herein-
after is mentioned next after the time at which the right of such
corporation sole or of his predecessor to make such entry or distress
or bring such action or suit shall first have accrued that is to say the
period during which two persons in succession shall have held the office
in respect whereof such land or rent shall be claimed and six years after
a third person shall have’been appointed thereto if the times of such
two incumbencies 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 years make up the full
period of sixty years and no such entry distress action or suit shall be
Bade or brought at any time beyond the determination of such period.
T ~ Acts P 27 Vir. NO. 8 and 28 Vie. NO. 21, referred to in the marginal
notes, were respectively The Railway Act of 1803 and The Rail.rvay Act of 1864.
They were repealed by The Railways Act of 1914, S. 4, title RAILWAYS AND
TRAUWAYS. The effect of the sections mentioned in the marginal note was to
constitute the ComniisiGoncr for Railways a corporation sole. See now The
Railways Act of 1914, s. 8.
Tho period of limitfition under this section is never less than sixty years.
The time at which tho right to rnnke 30. entry or distress or to bring an action
accrues is to be ascertained by rnfercnce to ss. 11-17, 21, po.qt. So0 llrChbi8hOp
01 Uv,bZin v. Coote (1849), 12 Ir. Eq. 12. 251, at pp. 264-865.

L?istress Replevin a

,524
ss. 11-13. Landlord und T'ewarzt. [Vol. v.
' Disposscssed . . . discontinued ".-Dispossession is where a person
comes in and puts another out of possession; discontinuance of possession is
where the person in possession goes out and another person takes possession
(Rains v. Buxton (1880), 14 Ch. D. 537, at p. 540). Nothing constitutes
dispossession which ia not an interference with or usurpation of the enjoyment
of the land by its owner: see cascs cited in the English and Empire Digest,
Vol. 32, pp. 431-444. Mere going out of possession is not enough to constitute
discontinuance; it is essential that some other person come in (M'DonndE v.
M'Kinty (1847), 10 I.L.R. 514); moreover, if that person goes out before
acquiring a title under the Act the owner is in the same position as if he had
never discontinued possession (Xrustees, etc., Agency CO. v. Short (1888), 13
App. Cas. 793). See notes to s. 5, ante.
Where the possession of the defendant had begun under a subsequent con-
veyance of the same land from the person who had previously conveyed it in fee
to the plaintiff but had retained possession, it was held that the defendant's
possession warn not to be considered as subject to the plaintiff '8 title, but as
hostile to it (Delup v. Mawley (1879), 5 V.L.R. (L.) 170).
As to claims of the estates of deceased persons, see also 8. 14, post.
The provision relating to the accrual of the cause of action where alienation
has taken place and no person taking thereunder has been in possession, was
appIied in Power v. McBride (1884), 1 Q.L.J. 192.
As to future estates, see also ss. 12, 13, 22, post.
Time begins to run against the right of a mortgagee of a reversionary
interest in land as from the date of the falling into possession of such interest
under the part of the section relating to futuro estates (Hugill v. Wilkinson
(1888), 38 Ch. D. 480, distinguish Re Owen, [1894 3 Ch. 220 (charge), Be
Witham, Chadbwn v. Winfield, [1922] 2 Ch. 413 {mortgage of reversionary
interest in land on trust for sale)).
With respect to rights accruing on forfeiture or breach of a condition, see
also s. 12, post.
With regard to this section generally, see also Halsbury's Laws of England
(2nd ea.), Vol. 20, pp. 688 et seq.; English and Empire Digest, Vol. 32, pp.
431 et seq.
12. Where advantage of forfeiture is not taken by remainderman
he shall have a new right when his estate comes into possession. 3 & 4
Wm. IV. c. 27 s. &-Provided always that when any right to make an
entry or distress or to bring an &etion to recover any Ian4 or rent by
peasun of any forfeiture or breach of condition shall $me first accrued
in respect of any estate or interest in reversion or remainder and the
had or rent shall not have been recovered by virtue of such right the
sight 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 forfeiture or breach of condition had
happened.
This section is to be read with ss. 6-10, ante. It applies to every case of
forfeiture or breach of a condition. See Astley v. Earl of Essex (1871), L.R.
18 Eq. 290.
Definitions of terms used are contained in S. 1, ante.
See further Halsbnry's Laws of EngIand (2nd ea.), Vol. 20, pp. 701, 702.
13. Reversioner to have a new right. 3 & 4 Wm. IV. c. 27 s. 6.-
Provided also that a right to make an entry or distress or to bring an
action to recover any land or rent shall be deemed to have first accrued
.in respect of an estate or interest in reversion 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

Distress Replevin amd Ejectment Act of 1867. ss. 13-15.
shall have been held or the profits thereof or such rent shall have been
received notwithstanding the person claiming such laud or some person
through ‘whom he claims shall at any time previously to the creation of
the estate or estates which shall have determined have been in possession
or receipt of the profits of such land or in receipt of such rent.
This section is to be read with the penultimate paragraph of 8. 11, ante.
Sec also s. 22, post.
For definitions of terms used, see 8. 1, ante. (‘Land” in this section does
not include tho proceeds of sale of land (Re Witham, Chadbwn v. Winfield,
[1922] 2 Ch. 413).
14. An administrator to claim as if he obtained the estate without
interval after death of deceased. 3 & 4 Wm. IV. c. 27 s. ~.-FOF the
purposes of this Act an administrator claiming the estate or interest
of the deceased person of whose chattels he shall be appointed adminis-
trator shall be deemed to claim as if there had been no interval of time
between the death of such deceased person and the graut of the letters
of administration.
See also the second paragraph of 8. 11, unfe. Property of intestates vests
in the Public Curator during the period prior to grant of administration. See
The Public Curator Act of 1915, 8. 30, title TRUSTEES AND EXECUTORS.
For circumstances in which a widow continuing in‘ possession without taking
out administration was held to haw been in adverse possession, see Lambourn v.
Hoskin, [1912] V.L.R. 394.
Bee Halabury ’8 Laws of England (2nd ea.), Vol. 20, p. 702.
16, In the cue of a tenant at will the right shall be deemed to
have accrued at the end of one year. 3 & 4 Wm. IV. c. 27 s. 7.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 recover such land or rent shall
be deemed to have first 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.
This section is to be read with ss. 6-10, ante. For meaning of expressions
used, see s. 1, nntc.
Claims by mortgagees against mortgagors are dealt with by s. 31, post.
Under this section a tenancy at will, if not determined earlier, is deemed to
have ceased at the end of the first year of the tenancy. Consequently, when a
tenant at will has been continuously in possession of land for the necessary
statutory period he becomes entitled to such land, notwithstanding any acts of
ownership on the part of the owner during that period, short of actually dispossessing
the tenant at will O’NeiZ v. Hart, [1905] V.L.R. 107; Wilson v.
Equity Trustees, eto., [1911] V. i .R. 481; Foley v. Egan (1891), 17 V.L.R. 340).
The possession of a person placed in the occupation of land by the owner as
servant, bailiff, or caretaker, is that of the owner himself, and during the con-
tinuance of such relationship the eriod of limitation cannot begin to run against
the owner (0 ’Neil v. Hart, supm~. If it is proved that a person claiming to be

ss. 15-17. [Vol. v.
entitled went into occupation in such capacity, the onus lies upon him to establish
when and under what circumstances his possession became possession for himself
(ibia.1.
Mere paper operations by the person owning the title to land, e.g., mort-
gaging such land, do not per se stop the possession of an actual occupant of such
land, nor interfere with the maturing of his title under this Act (ibid.).
As to the effect of this section where land is occupied in consideration of
payment of rates, see Langmore v. Vines, [1917] V.L.R. 595.
See further Halsbury’s Laws of England (2nd ea.), Vol. 20, pp. 702-706;
English and Empire Digest, Vol. 32, pp. 451-454.
16, No person after a tenancy from year to year to have any right
but from the end of the fwst yeax or last payment of rent. 3 & 4
Wm. IV. c. 27 s. €!.-When 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 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 determina-
tion 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 receivcd
(which shall last happen).
This section must be read with 8s. 6-10, atite. For the mcaning of terms
used, see S. 1, ante.
‘At the lust time when any rent . . . . shall have been veoeived”.-Rent
here means rent reserved on n lease, not rent as an incorporeal hcreditament.
If, however, twenty years elapse between the expiration of the first year of the
tenancy and a payment of rent, such payment will have no effect as the right of
the lessor will hare been extinguished (Nicholson v. England, [1926] 2 K.B. 93,
not following Bunting v. Sargent (1879), 13 Ch. D. 330).
17. Where rent amounting to twenty shillings reserved by a lease
in writing shall have been wrongfully received right to accrue on first
wrongful receipt md no right to accrue on the determination of the
lease. 3 & 4 Wm. IV. c. 27 s. %-When my person shall be in
posseslson or in receipt of the profits of any land or in receipt of any
rent by virtue of a lease in vriting by which a rent amounting to the
yearly sum of twenty shillings or upwards shall be reserved and the
rent reserved by such lease shall have been received by some person
wrongfully claiming to be entitled to such land or rent in reversion
immediately expectant on the determination of such lease and no pay-
ment 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 determination
of such lease to the person rightfully entitled.
This section is to be read with 8s. 6-10, ante. For definitions of terms used,
800 S. 1, anbe.
The words “wrongfullr claiming’’ refer not merely to intentional and
improper claim&, but to any claim other thm a claim by the reversioner and
thus include claims made under a misapprehension and the case of rent receivcd

Distress BepJcvi~h and 3jectmen.t Act of 1867. ss. 17-21.
by the person entitled being by mistake accounted for by him to a Atranger
(Williams v. Pott (1871), L.R. 12 Eq. 149; cf. Mitchell v. Mosley, [I9141
1 Ch. 438 (severance of reversion without notice to lessee)).
As to the rights agajnst'the lessee of a person ac.quiring a title to land
under thia section and 8. 5, ante, see Curlton v. Bowcock (1884), 51 L.T. GB9.
Possession.
18. A mere entry not to be deemed possession. 3 & 4 Wm. IV.
c. 27 s. 10.-No person shall be deemed to have been in possession of
a;ny land within the meaning of this Act merely by reason of having
made an entry thereon.
For circumstances in which the acts of the owner by documentary title
who visited the land from time to tima were held not to be sufficient to disturb
the possession of the adverse possessor, 908 Robertson v. Bwtler, [1915j V.L.R. 31,
As to what is sufhient to revest possession in an owner who has been
dispossessed, see also Lightwood's Tima Limit on Actions, pp. 11-12 ; Halsbury 's
Laws of England (2nd ed.), Vol. 20, p. 710.
19. Possession of one coparcener &c. not to be the possession of
the others. 3 & 4 Wm. IV. C. 27 S. 12.-When any one or more of
several persons entitled to any land or rent tis copnrccners joint tenants
or tenants in common shall have been in possession or receipt of the
entirety or more than his or their undivided share or shares of such
land or of the profits thereof or of such rent for his or their own benefit
or for the benefit of any person or persons other than the person or
persons 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.
When one coparcener, joint tenant, or tenant in common is receiving all
the profits the other has a right to nialre an entry or bring an action without
any ouster to recover his portion of t,he profits and share in tho land (Beazimont
v. Hochkins (1889) , 15 V.L.R. 442).
20. Possession of a younger brother not to be the possession of
the heir. 3 & 4 Wm. IV. c. 27 s. 13.When a younger brother or other
relation of the person entitled as heir to the possession or receipt of the
profits of any land or to the receipt of any rent shall enter into the
possession or receipt thereof such possession or receipt shall not be
deemed to be the possession or receipt of or by the person entitled as
heir. Real estate undevized no longer descends to the heir according to the feudal
rules of primogeniture, but is distributable in the same manner as personal
estate undisposed of by will. See The Intestacy Act of 1877, 9s. 13, 27;
Succession Act of 1867, SEI. 29 et seq., title SUCCESSION.
21. Acknowledgment in writing even to the person entitled or
his agent to be equivalent to possesslon or receipt of rent. 3 & 4
Wm. IV. c. 27 s. 14.--Provided always 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 OP such rent then
such possession or receipt of or by the person by whom such acknowledg-
ment shall have been given shall be deemed according to the meaning
of this Act to have been the possession or receipt of or by the person
to whom or to whose agent such acknowledgment shall haTre been given
at the time of giving the same

525
ss. 21, 22. La% dl o r d 0 11 d Tc Y L t . ~ [vol. v,
and the right of such last-mentioned person or any person claiming
through him to make any entry or distress 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
acknowledgments if more than one was given.
This section is to be read with ss. 6-10, ante. For definitions of terms, see
s. 1, ante, and notes thereto.
Aeknomledgmeiit by a mortgagee of thc title of thc mortgagor is dealt
with by s. 30, post.
Any acknowledgment in writing is sufficient if from it there may fairly
be implied an admission that the persoil to whom it is given is the owner of the
land in question. See Halsbury’s Laws of England (2nd ea.), Vol. 20, p. 714.
An acknowledgment of title given after twenty years from the accrual of
the right or cessation of disability is ineffective as the title of the person entitled
to the land would have been extinguished under S. 5, ante (Banders v. Sanders
(1881), 19 Ch. D. 373 j lee, also, Nioholson v. Escgland, [ 19261 2 K.B. 93).
An acknowledgment signed by an agent is inefr’ectire (Ley v. Peter (1358),
3 H. & N. 101); see, however, Dublin Corporation’s Lessee v. Judge (1847),
11 I.L.R. 8.
For precedents of acknowledgments, see Encyclopedia of Forms and Precedents
(2nd ea.), Vol. 1, pp. 5-12, and Australian Supplement thereto, Vol. 3,
p. 7.
Sce further Halsbury’s Laws of England (2nd ed.), Vol. 20, pp. 712-714;
English and Empire Digest, Vol. 32, pp. 459, 460.
Putwe Estates.
22. When the right to an estate in possession is barred the right
of the same person to future estates shall also be barred. 3 & 4
Wm. IV. c. 27 s. 20.When the right of any person to make an entry
or distress or bring an action to 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
whkh shall be appfimble in sue51 ease &ad m& person shall ,at any
time dusirtg the said period have been entiitled 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 unless in the meantime such land or rent shall have been
recovered by some person entitled to an estate interest or right which
shall have been limited or taken effect after or in defeasance of such
estate or interest in possession.
For “the period hereinbefore limited”, see BS. 6-10, ante.
As to future estates, see also the penultimate paragraph of s. 11, ante, and
s. 13, ante, and notes to those sections.
A power of appointment is not within this section (Re Earl of Devon”S
Settled Estates, [1896] 2 Ch. 568). Cf. Re Armstrong (1886), 17 Q.B.D. 521.
See further, as to this section, Enlsbury’s Lams of England (2nd ea,),
Vol. 20, p. 699.

529
Distress Replevin, and Ejectment Act of 1667. ss. 23-25,
Estates Tail.
23. Where tenant in tail is bmed remaindermen whom he might
have barred shall not recover. 3 & 4 Wm. IV. e. 27 s. 2l.-When 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
hereinbefore 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.
For “the period hereinbefore limited ”, Bee as. 6-10, ante.
See Ralsbury’s Laws of England (2nd ea.), Vol. 20, pp. 717-719.
24. Possession adverse to 8 tenant in tail shall run on against the
remaindermen whom he might have barred. 3 & 4 Wm. IV. e. 27
s. 22.-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 action to recover such land or rent no person
claiming ‘any estate interest or right which 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.
For “the period hereinbefore limited”, see sa. 6-10, ante.
See Halsbury’a Laws of England (2nd ed.), Vol. 20, pp. 717-719.
25. Where there shall have been possession under an assurance by
a tenant in tail which shall not bar the remainders they shall be barred
at the end of twenty years after the time when the assurance if then
executed would have barred them. 3 & 4 Wm. IV. e. 27 s. 23,When
a tenant in tail of any land or rent shall have made an assurance thereof
which shall not operate to bar an 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 execution thereof or at any time
afterwards be in possession or receipt of the profits of such lmd or
in the receipt of such rent and the same person or my other person
whatsoever (other than some person entitled to such possession or receipt
in respect of an estate which shall bave taken effect after or in defeasance
of the estate tail) shall continue to be in such possession or receipt for
the period of twenty years next after the commencement of the thie 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 twenty years such wrance shall be and
be deemed to have been effectual as against any pemon claiming any
estate interest or right to take effect after or in defeasance of such estate
tail.

530
ss. 26, 27. [Vol. v.
Limitatimi of Suits.
26. No suit in equity to be brought after the time when the
plaintif€ if entitled at law might have brought an action. 3 & 4
Wm. IV, c, 27 s. 24.-ISo person claiming any land or rent in equity
shall bring any suit 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
rcspcctively if hc had heen entitled at lam to such estate interest or
right in or to the same as he shall claim therein in equity,
‘rllis section deals with remedies in equity for the recovery of land or rent
ns :in incorporeal liercditnnieiit (ace note to S. 6, ante), which are distinguish-
ntrlo from ttic ronicdics in equity of cestuis que triisient under express trusts
(HW A.4. v. Fliaf (1844), 4 Hare 147, at p. 155). As to express trusts, see
s. 27, post. The effect of the section is that, subject to exceptions, in the caRe
of concealed fraud (see S. 28, post),, and acquiescence (see s. 29, post), every
auch remedy (e.g., a procaeding to recover title-deeds (Wells (Dean and Chapter)
v. Doddington (1845), 2 Doll. 73), an action in rebpect of equitable waste
(Lecds (Duke) v. Amherst (Ea:arZ) (1846), 2 Ph. 117), or an action for fore-
closure (Pugh v. Heath (1882), ‘7 App. Cas. 235; Harlocb v. Ashberry (1882),
19 (711. D. 539) but not a redemption action, which is not an action to recover
land (Kinsman v. Rouse (1881), 17 Ch. D. 104)), is in the eame position as if
it were a. remedy ut law, not only as to the period of limitation (for which see
RR. 0, 10, ante) but al~o as to the time at which the right to sue is deemed to
lilivo nccrucd (se0 RE. 11-17, ante) and as to all exceptions on the grounda of
disnhility (sec ss. 7-9, ante) or otherwise. See Hicks v. Ballitt (1853), 3 De G.M.
& (3. 782.
IP tho clnim of a trmtee be barred by lapse of time, the right of any cestui
(yzl,: Irmt who is ontitled in possession is also barred (Zewellin v. MacLworth
(1740), 2 TCq. CUR. AIw. 579). The difficult question of the right of a cestui que
tra.st who is ontitled in roiiinindcr or under. disability at the time when the
right of the trustee is burred will be found discussed in Hnlsburp’s Laws of
Englnnd (2nd ea.), Vol. 20, p. 721 ; Lightwood, Time Limit on Actions, pp.
79-81; Underhill, Law of Trusts and Trustees (8th ea.), pp. 208, 810; Leon
Trusts (13th ed.), p. 893.
27. In cases of express trust the right shall not be deemed to have
accrued until a conveyance to a purehaser. 3 & 4 Wm. IV. c. 27 s. 25.-
&&U be vested in a
v.5 qrre tmqrt or any
a suit against the tmstee or any
person claiming throngh hjm to recover such land or rent shall be deemed
to have first accrued according to the meaning of t.his 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.
See also, as to limitation of actions against trustees. The Judicature Act
(1876), S. 5 (2) (title PRACTICE) and The Trustees and Executors Act of 1897,
S. 52 (title TRUSTEES AND EXECUTORS).
This section is “confined to eqress trusts; that is, trusts expressly declared
by a deed or a will, or some other written instrument; it does not mean a trust
that is to be made out by circumstances; the trustee must be esprcssly appointed
by some written instrument; and the effect is that a person who is under some
inatrument an express trustee, or who darives title under such R trustee, is
precluded, however long he may have been in onjoyment of the property, from
setting up the statute; but if a person has been in possesuion, not being a trustee
under some instrument, but still being in possemion nnder such circumstances
that the Court, on the prjnciples of equity, would hold him a, trustee, then [this
section] does not apply; and if the possession of such a constructive trustee
has continued for more than twenty years he map set up the statute against

Distress Replet& and Ejectnzelzt Act of 1867.
531
ss. 27-29.
the party who, but for the lapse of time, would be the right owner” (Kindersley,
V.-C., in Petre v. Petre (1853), 1 Drew. 371, at p. 303). As to what constitutes
an express trust, see also Halsbury’s Laws of England (2nd ea.), Vol. 13,
pp. 194, 195; Soar v. Ashwell, 1118931 2 Q.B. 390.
This section “renders lapse of time unimportant in all cases within the
section . . . between the cestui que trust and his trustee until . . . the trustee
sells to a third party for valuable consideration’’ (Law v. Bagwell (1843), 4
Dr. & War. 398, at p. 408; Black V. CO$ (1901)) 27 V.L.R. 609).
Lapse of time offers no bar to recovery of mesne profits in an action to
recover trust property wrongfully conveyed by a trustee to a third party
(Black v. CO%, supra).
See further Halsbury Laws of England (2nd ea.), Vol. 20, pp. 722 et seg.;
English and Empire Digest, Vol. 32, pp. 466 st 8eq.
28. In cases of fraud no time shall run whilst the fraud remains
concealed. 3 & 4 Wrn. IV. C. 27 S. 26.-In every case of a concealed
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 through whom he claims
may have been deprived by such fraud shall be deemed to have first
accrued at and not before the time at which such fraud shall or with
reasonable diligence might have been first known or discovered
Provided that 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 ban& fide purchsaser for valuable con-
sideration who has not assisted in the commission. 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.
Concealed fraud “does not mean the case of a party entering wrong-
fully into possession; it meane a case of designed fraud by which a party,
knowing to whom the right belongs, conceals the circumstances giving that right
and, by means of such concealment, enables himself [or another] to enter and
hold” (Rindersley, V.-C., in Petre v. Petre (1853)) 1 Drew. 371, at p. 397).
“The section seems to point to some contrivance by which the real owner has
not merely been deprived, but defrauded, in the sense of being induced to
believe that he was not owner, aud that the person who so entered was owner and
entitled to enter” (Kay L.J., in Willis v. Earl Howe, [1893] 2 Ch. 545, at p.
552).
Concealed fraud must be ((a fraud which has deprived the plaintiff of his
land’) (Lord Watson in Lawrance v. Norreys (1890)) 15 App. Cas. 210, at p.
220).
The concealed fraud must be the fraud of the person setting up the Act or
of some person through whom he claims or the agent of either (Re McCalEum,
YcCallzsnt v. McCallum, [1901] 1 Ch. 143, C.A., diss. Rigby L.J.).
As to this section, see also In re Bulli Coal Mining Co. (1896)) 17
N.S.W.L.R. (Eq.) 242; reversed on another ground, 18 N.S.W.L.R. (%.) 146;
Halsbury’s Laws of England (2nd ea.), Vol. 20, p 726.
29. Saving the jurisdiction of equity on-&b+t rl ground of
acquiescence or otherwise. 3 & 4 Wm. IV. c. 27 s. 27.-Provided
always that nothing in this Act contained shall be deemed to interfere
with any rule or jurisdiction of courts of equity in refusing relief on
the ground of acquiescence or otherwise to any person whose right to
bring a suit may not be barTed by virtue of this Act.
As to the meaning of acquiescence in this shction, and its effect, see Weld
v. Petre, [1929] 1 Ch. 33; Li htwood’s Time Limit on Actions, pp. 252-254;
Halsbury’s Laws of England &nd ea.), Vol. 13, pp. 208-211.

532
s. 30. [Vol. v.
Mortgages.
30. Mortgagor to be barred at the end of twenty years from the
time when the mortgagee took possession or from the last written
acknowledgment. 3 & 4 Wm. IV. c. 27 s. 28.-When a mortgagee shall
have obtained the possession or receipt of the profifits of any land or
the receipt of any rent comprised in his mortgage the mortgagor or
any person claiming through him shall not bring a suit to redeem
the mortgage but within twenty years next after the time at which
the mortgagee obtained such possession or receipt unless in the mean-
time an acknowledgment of the title of the mortgagor or of his right
of redemption shall have been given to the mortgagor or some person
clairniiig his estate OS to the agent of such mortgagor or persoh in
writing signed by the mortgagee or the person claiming through him
and in such case no such suit shall be brought but within twenty
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 acknowledg-
ment 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 mortgagors
or persons
but where there shall be more than one 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 sh-all be effectual only as against the party or parties signing as
aforesaid 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
given snch achowledgment 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 proportion 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.
The words in square brackets were substituted for ( (mortgaged money”
by The Sets Shortening Act Amendment Act of 1903, s. 10, title ACTS.
The effect of the expiration of the statutory period is to extinguish title.
Bee B. 5, ante.
The section has no provision for disabilities, and the disability of a mort-
gagor is not a ground for the extension of time within which he can redeem
(Ximn v. Roasse (1881), 17 Ch. D. 104).
“In the meuntims”.-An acknowledgment made after the right of the
mortgagor has been extinguished under this section is ineffective (&andera v.
Sunders (1881), 19 Ch. D. 373).

533
‘ ‘Agent ”.-Acknowledgment made to a stranger is insufficient (Batchelor
v. Middleton (1848), 6 Hare 75, at p. 83), e.g., an acknowledgment made in a
deed assigning the mortgage and the mortgaged property to a third person
(Lucas v. Bennison (1843), 13 Sim. 584), or an acknowledgment made to the
mortgagor after the mortgagor has become bnnlrrupt (Murkwick v. Hardingham
(1880)’ 15 Ch. D. 339).
“ One or more of such mortgagees”.-This provision does not apply to
acknowledgments by one of two mortgagees who are trustees holding on a joint
account, and are shown to be such on the face of the deed (Richardson v.
Pounge (1871), 6 Ch. -4pp. 478).
For examples of sufficient and insufficient acknowledgments, see the English
and Empire Digest, Vol. 32, p. 479. See also the notes to s. 21, ante.
For a form of acknowledgment by a niortgMee in possession of the
mortgagor’s title, see the Encyclopsdia of Forms and Precedents (2nd ed.),
Vol. 1, p. 10.
“Rcnt” in this section means rent a# an incorporeal hereditament; see note
to S. 6, ante.
A mortgagor can redeem only on payment of all arrears of interest (Be
Ltoyd, Lloyd v. Lloyd, /1903] 1 Ch. 385, 401 C.A.).
No Statute of Limitation is applicuble to mortgages of personalty
(London and Midland Bank v. Xitchell, [1899] 3 Ch. 161; Weld v. Petre,
[I9291 1 Ch. 33)) but where pcrsonalty and realty are subject to one mortgage
and the right to redeem the realty has hccoirie barred, the right to redeem the
personalty will be barred with it (Charter v. W’atuom, [IS991 1 Ch. 175) ; it ie
othcrwisc in the erne of foreclosure (Re Jauncey, Bird v. Arnold, [1926] Ch.
471).
See further Halsbury’s Lams of England (2nd ed.), Vol. 20, pp. 733-737.
31. Mortgagees within the definition in section 1 may bring actions
to recover land within twenty years after last payment of principal or
interest. 1 Vic. C. 28.--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 this Act to 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 in equity shall
have first accrued anything herein notwithstanding.
The Act referred to in the mmginal note is The Real Property Limitation
Act, 1837 (Imperial), for which see Halsbury’s Statutes of England, Vol. 10,
p. 460.
The effect of the lapse of the period under this section is to extinguish
title. See S. 5, ante. An action for foreclosure of a mortgage is an action to
recover land (Pugh v. Heath (1882), 7 App. Cas. 235), and time for such an
action begins to run in general at the date hed in the mortgage deed for
redemption. See Kibble v. Fairthome, [1895] 1 Ch. 219, at p. 225; Pumell v.
Roche, [1927] 2 Ch. 142; Re Brown’s Estate, [1893] 2 Ch. 300, at p. 305.
An acknowledgment made at any time before the expiration of twenty
years from the accrual of the came of action or the last part-payment of
principal or payment of interest will dwaps cause time to ran a€r&. See
S. 21, ante.
This section does not apply when possession adverse to the morfgagor
existed at the date of the mortgage (Xhornton v. Rrunce, [I8971 2 Q.B. 143).
In such a case time will run as from the moment mhen it would have run
against the mortgagor on generd principles if no mortgage had been executed.
But where possession adverse to the mortgagor is taken after the date of the
mortgage, payment of part of the principal or of intereRt wi11 muse time to
run afresh in favour of the mortgagee as against the person in posseanion,
although the right of the mort a or be unaffected (Doe v. Ewe (1851), 17
Q.B. 366; Luabrook v. IM~J, fieoil 2 K.B. 96).
Sce further Ralsbury’s Laws of England (2nd ea.), Vol. 20, p- 728;
English and Empire Digest, Vol. 32, p. 471.

534
SS. 32-34, Landlord and Tenant. [Vol. v*
Extension of Right of Distress and Action.
32. Rent in arrear upon 8 lease for life &c. expired may be
distrdned for after the determination of the lease. 8 Anne C. 14 s. 6.-
It shall and may be lawful for any person or persons having any rent
in arrear or due upon any lease for life or lives or for years or at
will ended or determined to distrain for such arrears after the deter-
mination of the said respective leases in the same manner as they might
have done if such lease or leases had not been ended or determined.
For the statute 8 Anne e. 14 (or e. 18) (The Landlord and Tenant Act,
3700), S. 6, sce IIalsbury’s Statutes of England, Vol. 10, p. 320.
8ca now Tlic Lnw of Distress and Other Acta Amendment Act of 1934,
S. 5 (l), post.
The detcrmimtion of the lease must be normal determination; the section
doea not apply when the grant has been forfeited or disclaimed (David v.
Williams (1835), 7 C. & P. 332).
The holding over by the tenant may be by consent (Nuttall v. Staunton
(1825)’ 4 B. & 0. 51). It is sufficient if part of the premises be occupied
provided the distress be levied on that part (Nuttall v. Staunton, supra). But
if a new tenancy be granted, the landlord cannot avajl himself of this section
(Wilkinson v. Peel, [1895] 1 Q.B. 516; and see Lewis v. Dauies, [1913]
2 K.B. 37).
Soe also English and Empire Digest, Vol. 18, pp. 311-313; Redman’s
Law of Lnndlord and Tenant (8th ea.), pp. 479, 480.
8~ a180 s. 39, poat, and the Common Law Practice Act of 1867, ss. 6 (action
for rent upon demise for life or lives), 9 and 10 (rent recoverable from under-
tonant when tenant for life, etc., dies before rent payable), title PRACTICE.
33. Distress to be within six months after the end of the lease and
during the landlords’ title and tenants’ possession. 8 Anne c. 14 s. 7.-
Provided that such distress be made within the space of six calendar
months after the determination of such lease and during the continuance
of such landlord’s title or interest and during the possession of the
tenant from whom such arrears became due.
For the statute 8 Anne e. 14 (or e. 18) (The Landlord and Tenant Act,
1709), 8. 7, me Hdsbury’s 8tatnW of England, Vol. 10, p. 320.
34. Executors of lessors may distrain. 3 & 4 Wm. IV. c. 42 ss. 37
and 38.-It shall be lawful for the executors or administrators of any
lessor or landlord to distrain upon the lands demised for any term
or at will for arrears of rent due to such lessor or landlord in his
lifetime in like manner as such lessor or landlord might have done in
his lifetime and such arrears may be distrained for after the end or
determination of such term or lease in the same manner as if it had
not been determined
Provided that such distress be made within six calendar months
after the determination of such term or lease and during the continuance
of the powssion of the tenant from whom such arrears became due
and that all provisions in force by law relating to distresses for rent
shall be applicable to every distress so made.
The provisions referred to in the marginal note have been reproduced
(though not repealed) in s. 26 (4) of the Administ.mtion of Estates Act, 1925
(15 Geo. 5, e. 23). For the sections, see Hah?bury’s Statutes of England,
vol. a, pp. 284, 319.

;Distress Replevin and Ejectment Act of 1867.
535
fit5.35-38.
35, The husband’s remedy for rent due in the right and in the life
of his wife. 32 Hy. VIII. c. 37 S. 3.-If any man which now hath or
hereafter shall have in the right of his wife any estate in fee simple
fee tail or for term of life of or in any rents or fee farms and the same
rents or fee farms now be or hereafter shall be due behind and unpaid
in the said wife’s life then the said husband after the death of his
said wife his executors and administrators shall have an action of debt
for the said arrearages against the tenant of the demesne that ought
to have paid the same his executors or administrators and also the
said husband after the death of his said wife may distrain for the
said arrearages in like manner and form as he might have done if
his said wife hnad been then living and make avowry upon his matter
as is aforesaid.
36. The remedy for a rent the estate whereof dependeth upon
another’s life being dead. 32 Hy. VIII. e. 37 S. 4.-If any person which
now have or hereafter shall have any rents or fce farms for term of
life or lives of any other person and the said rent or fee farm now ‘be
or hereafter shall be due and unpaid in the life of such person for
whose life the estatc of thc said rent or fee fnriri (lid depend or
continue and the said person do die then he unto whom the said rent
or fee farm was due in form aforesaid his executors or administrators
shall and may have an action of debt against the tenant in demesne
that ought to have paid the same when it was first due his executors
and administrators and also distrain for the same arrearages upon such
lands and tenements out of the which the said rents or fee farms were
issuing and payable in such like manner and form as he ought or might
have done if such person by whose death the aforesaid estate in the
said rents and fee farms was determined and expired had been in full
life and was not dead and the avowry for the taking of the same distress
to be made in rnanner and form aforesaid.
37. Method of recovering seck rents &c. 4 Geo. 11. c. 28 s. 5.-
Every person bodies politic and corporate shall and may have the like
remedy by distress and by impounding and selling the same in cases
of rents seck rents of assize and chief rents which have been or shall
be hereafter created as in the case of rent reserved upon lease any law
or usage to the contrary notwithstanding.
For the statute 4 Geo. 2, e. 28 (The Landlord and Tenant Act, 1730),
8. 5, see Halsbury’a Statutes of England, Vol. 10, p. 321.
See Hdsbury’s Lawfl of England (2nd ea.), Vol. 10, pp. 442, 443; English
and Empire Digest, Vol. 18, pp. 262-264.
38. Tenants holding over after their notice for quitting to pay
double rent. 11 Geo. II. c. 19 s. 18.-Tn case any tenant shall give
notice of his intention to quit the premises by him holden at a time
mentioned in such notice and shall not accordingly deliver up the
possession thereof at the time in snch notice contained then the mid
tenant his executors or adminjstrators shall from thenceforward pay
to the landlord or lessor double the rent or sum which he should
otherwise have paid to be levied sued for and recovered at the same
times and in the same manner as the single rent or sum before the giving

ss. 38, 39. Landlord and Tmlant, [Vol. v.
such notice could be levied sued for or recovered and such double rent
or sum shall continue to be paid during all the time such tenant shall
continue in possession as aforesaid.
For the statute 11 Geo. 2, e. 19 (The Distress for Rent Act, 1737), S. 18,
880 Hdsbury’s Btatutes of England, Vol. 5, p. 150.
The notice to quit must be valid (Farrance F. Elkifigton (lsii), 2 Camp.
591). It need not be in writing (Timmins v. Rowkson (1765), 3 Burr. 1603).
Tho landlord may waive his claim by accepting single rent (Cheny v,
Battcs. (1775), 1 COT. 243; Ryal v. Rich (1808), 10 East 48).
8co al~o English and Empire Digest, Vol. 31, p. 541; Redman’s Law of
Landlord and Tenant (6th ed.), p. 688.
Tlic L:111(110rd and Tcnant Act, 1730 (4 Geo. 2, c. 28), S. 1 (Halsbury’s
SlatuCcs of England, vol. 10, p. 321), imposcs nn obligation to pay at the
mto of doublo tho yearly value on a tenant who wilfully and contemaciously
holds ovor after the oxpiration of a lease from year to year (but not from
inonth to month or week to week) or for a period of years and after demand
of pomemion by the landlord. That section appears to be in foree in Queensland.
See Publio Curator v. L. A. Wilkinson (Northern) Ltil., 119331 Q.W.N. 28;
27 Q.J.P.R. 35.
Apportwwne7it.
39. All rents annuities and other payments coming due at fixed
periods to be apportioned. 4 & 6 Wm. IV. c. 22 s. 2. Subject to all just
deductions.-From and after the commencement of this Act all rents
sorvice resicrvcd on my lease by a tenant in fee or for any life interest
or 1)y ‘uny I (~ILSV grantd under any power (and which leases shall have
been grnntrtl after the cornmencement of this Act) and all rents charge
urd other rents annuitice pensions dividends and all other payments
of evcry description niadc payable or coming due at fixed periods
under any instrument that shall be executed after the commencement
of this Act or (being a will or testamentary instrument) th*at shall
come into operation after the commencement of this Act shall be
apportioned so and in such manner that on the death of any person
interested in any such rents annuities pensions dividends or other
payments as aforesaid or in the estate fund or office from or in respect
of which the m e sb.a,ll be issning or derived or on the determination
meaw wha.tsaeve~ & the i of any sac& person he
or hGtr GBC
zw&ps W Im entitled
to a proporkion of melt rents annuities pensions dividends and oher
payments according to the time which shall have elapsed from the
commencement or last period of payment thereof respectively (as the
cme may be) including the day of the death of such person or of the
determination of his or her interest all just allowances and deductions
in respect of charges on such rents annuities pensions dividends and
other payments being made
Remedies for obtaining the apportioned parts.-and every such
person his or her executors administrators and assigns shall have such
and the same remedies at law and in equity for recorering snch
apportioned parts of the said rents annuities pensions dividends and
other payments when the entire portion of which such apportioned
parts shall form part shall become due and payable and not before as
he she or they would have had for recovering and obtaining such entire
rents annuities pensions dividends and other payments if entitled
thereto but so that persons liable to pay rents reserved by any lease
or demise and the lands tenements and hereditaments comprised therein
shall not be resorted to for such apportioned parts specifically as
aforesaid but the entire rents of which such portions shall form a part

537
Distress Ropkevh and EjectmeNt Act of 1867. ss. 39-41.
shall be received and recovered by the person or persons who if this
Act had not passed would have been entitled to such entire rents and
;such portions shall be recoverable from such person 017 persons by the
parties entitled to the same under this Act in any action or suit at law
or in equity
Not to apply in certain cases.-Provided always that the provisions
in this section contained shall not apply to any ease in which it shall be
expressly stipulated tbat no apportionment shall take place or to annual
sums made payable in policies of assurance of any description.
For the statute 4 6s 5 Will. 4, e. 22 (The Apportionment Act, 1834), 8. 2,
see I-Ialsbury’s- Statutes of England, Vol. 10, p. 323. See also The
Apportionment Act, 1870 (33 & 34 Vie. e. 35)) for which see ibid., Vol. 8, p.
299. See also 8s. 32-36, ante, and the Common Law Practice Act of 1867, ss. 9,
10, title PEACTIOE.
Rent payable in advance is not made apportionable by this section (Ellis r.
IL)owbotham, [1900] 1 Q.B. 740).
As to whether this section applies to tho profits of an ordinary partnership,
see Jones v. Ogle (1872) , 8 Ch. App. 192 ; Hughrs v. Pripp (1922), 30 C.L.R.
508, at p. 520; [1921] V.L.R. 275; Riddell v. Speedy, 119251 N.Z.L.R. 354, at
p. 357; Re Denwkton, [1928] N.Z.L.R. 7GO.
See also Be Morrison (1907)) 3 Tas. L.R. 12 (interest on money placed at
fixed dc osit by doceasod) ; Reid v. Filter (1913)) 32 N.Z.L.R. 1213; Halsbury’s
Laws of England (2nd ea.), Vol. 20, pa 178; bnglish and Empire Digest, Vol.
31, p. 260.
Rent Charges.
40. Release of part of land charged not to be an extinguishment.
22 & 23 Vic. c. 36 s. 10.--The release from a rent charge.of part of the
hereditaments charged therewith shall not extinguish the whole rent
charge but shall operate only to bar the right to recover any part of
the rent charge out of the hereditaments released without prejudice
nevertheless to the rights of all persons interested in the hereditaments
remaining unreleased and not concurring in or confirming the release.
The statute 22 & 23 Vie. e. 35 (Law of Property Amendment Act, 1859),
s. 10, has been replaced by the Law of Property Act, 1925 (15 Geo. 5, e. 20),
s. 70, for which we Halsbury’s Statutes of England, Vol. 15, p. 246.
If the parties interested in the remaining part of the land concur in or
confirm the release, the remaining part of the land may become subject to the
whole rent charge without apportionment (Price v. John, [ 19051 1 Ch. 744) ; but
if they do not concur, the remaining part will be subject only to an apportioned
part of the rent charge (Booth v. Smith (1884), 14 Q.B.D. 318).
See further Halsbury’s Laws of England (2nd ed.), Vol. 28, p. 228;
English and Empire Digest, Vol. 39, p. 189.
Privileged, Persons and Goods.
41. Processes against any public minister or his servants to be
adjudged void, 7 Anne c. 12 s. 3.-All writs and proctesses that shall
at any time hereafter be sued forth or prosecuted whereby the person
of any ambassador or other public minister of any foreign prince or
state authorized and received as such by Hcli Majesty her heirs or
successors or the domestic or domestic servant of my such ambassador
or other public minister may be arrested or imprisoned or his or their
goods or chattels may be distrained seized or attached shall b‘e deemed
and adjudged to be utterly null and void to all intents constructions
and purposes whatsoever.
For the statute 7 Anne c. 12 (The Diplomatic Privileges Act, 1708), S. 3,
see Halsbury’ Statutes of England, Vol. 3, p. 504.

538
ss. 42, 43. -Landlord mad Yenailit. [Vol. VI
42. Visitors and lodgers’ goods not to be seized for rent. 15 Vie,
No. ll,, S. 6,-No distress shall be made on the goods of any casual
visitor in any house nor on the goods (other than furniture) of any
lodger in any house or apartment ordinarily let or used as a lodging-
house or apartment.
Cf. the Law of Distress Amendment Act, 1908 (8 Edw. 7, e. 53), s. 1, for
which see Halsbury’s statutes of England, Vol. 5, p. 160.
As to distress on goods not being those of the tenant, see nom The Law of
Distress :ind Other Aets Amendment Act of 1934, s. 4, post. See also 8s. 5 (I),
7, 9, 10 of tlint Act.
A woiiian who has been living with the tenant as his reputed wife for a
period of two pcars is not a casual visitor (Melville v. Phillips (1899), 9
Q.L.J. 114; 9 Q.1J.J. (N.C.) 65).
Whether a person is a lodger is a question of fact; the circumstance that
tho tenanti of the superior landlord resides on the premises is not conclusive
ovidenw that he is a lodger (Eent v. Fittall, [1906] 1 K.B. 60), nor is the
circumstance that such tenant does not reside on the premises conclusive evidence
to the contrary (Nem v. Stephenson (1882)) 9 Q.B.D. 245). See also Halsbury’s
Laws of England (2nd ea.), Vol. 10, p. 471; English and Empire Digest, Vol. 18,
p. 304.
Even prior to the prohibition contnined in The Law of Distress and Other
ActH Amendmcnt Act of 1934, s. 4, post, there was no right to distrain the
goo& of n stranger on the premises where the tenancy was merely one bp
ti~toppel, and tho lnndlord had no reversion in the land, such estoppel not binding
the owner of the goods (Pariridge v. McIntosh & Sons Ltd. (1933), 49
(LLR. 453). A mortgagee of land under the Real Property Act of 1861 (title
BEAI, PROPERTY) has no interest in the land sufficient to constitute such a
reverclion (Partridge v. McIntosh 4 Sons Ztd., supra).
Tho goods of the Crown cannot be distrained (Repatriation Commission v.
KiTkiana (icc~), 32 C.L.R. 1).
For other goods which may or map not be distrained, see EIS. 50, 51, post;
The Legal Process Restriction Act of 1904, post; the Preliminary Note, ante.
No distraint must be made during the pendency of an application by a
lessee for relief under The Lessees’ Relief Act of 1931, post (ibid., s. 11).
Pew’s Refit.
43. No goods shall be taken in execution &c. unless the pasty
before removal of the goods &c. pay the landlord the rent due.
8 Anne C. 14 s. 1.-No goods or chattels whatsoever lying or being in
or upon any messuage lands or tenements which are or shall be leased
for life or livcs term of years at will or otherwise shall be liable to be
taken by virtue of an execution on any pretence whatsoever unless the
party at whose suit the said execution is sued out shall before the
renioval of such goods from off the said premises by virtue of such
execution or extent pay to the landlord of the said premises or his
bailiff all such sum or sums of money as are or shall be due for rent
for the said premises at the time of the taking of such goods or chattels
by virtue of such execution
Provided that it amount to no more than one year’s rent.-
Provided the said arrears of rent do not amount to more than one
year’s sent and in case the said arrears shall exceed one year’s rent
then the said party at whose suit such esecution is sued out paying the
said landlord or his bailiff one year’s rent may proceed to execute his
judgment as he might haw clone before the making of this Act

Distress Replevh and Ejectment Act of 1867. SS. 43-45.
The sheriff &c. to levy the rent as well as the execution money.-
and the sheriff or other officer is hereby empowered and required to
levy and pay to the plaintiff as well the money so paid for rent as the
execution money but this section shall not aRect section ninety-nine of
“The Distiict Cozirts Act of 1867.”
For the statute 8 Anne e. 14 (or c. 18) (The Landlord and Tenant Act,
1709), s. 1, see Halsbury’s Statutes of England, Vol. 10, p. 318.
It appears that this section must now be read, in respect of executions
issuing out of Magistrates Courts in their civil jurisdiction, subject to The
Magistrates Courts Rules, 1922, rr. 138, 139 (title JUSTICES). See The
Magistrates Courts Act of 1921, S. 14 (1) (iv) (f) (title JUGTICES), and The
District Courts Act, 1891 (55 Vie. No. 33), s. 169, now repealed. The District
Courts Act of 1867 was repealed by The District Courts Act, 1891, s. 4.
This saction appears to apply to an execution under a warrant of execution
under The Justices Act of 1886, ss. 161 et sey., title JUSTICES. See Window
v. Wilson (1936), 54 C.L.R. 554.
An execution lcvied after termination of tho tenancy while the tenant is
still in occupation does not fall within this section (Lewis v. Davies, E19141
2 K.B. 469; Cox v. Leigh (1874), L.R. 9 Q.B. 333).
If two axecutions are being levied the landlord cannot claim on each (Bod
v. Saxby (1735), 2 Stra. 1024).
‘‘Lnridlord” does not includc a Ruperior landlord (Taylor v. Lamyon (1830),
6 Bing. 536).
If tho shoriff rcmove the goods without pnying a year’s rent, he is liable
to an action for damages (Thomas v. Mirehouss (1887), 19 Q.B.D. 563).
See further Halsbury’s Laws of England (2nd ea.), Vol. 10, p. 507;
English and Empire Digest, Vol. 18, p. 343.
As to the rights of the landlord where the tenant becomes bankrupt, aee
the Bankruptcy Act 1924-1933, sa. 84 (1) (i), 88 (Commonwealth).
44. Growing crops seized and sold under execution to be liable for
accruing rent. 14 & 15 Vic. c. 25 S. 2,-h case all or any part of the
growing crops of the tenant of any farm or lands shball be seized and
sold by any sheriff or other officer by virtue of any writ of fieri fucias
or other writ of execution such crops so long as the same shall remain
on the farms or lands shall in default of sufficient distresses of the goods
and chattels of the tenant be liable to the rent which may accrue and
become due to the landlord after any such seizure and sale and to the
remedies by distrew for recovery of such rent and that notwithstanding
any bargain and sale or assignment which may have been made or
executed of such growing crops by any such sheriff or other officer.
For the statute 14 & 15 Vie. e. 25 (The Landlord and Tenant Act, 1851),
s. 2, see Halabury’s Statutes of England, Vol. 10, p. 330.
See also s. 43, ante, and no.l.es thereto; English and Empire Digest, Vol. 18,
p. - 301.
A prefcrential right to rent not exceeding that for one year is conferred on
the landlord where a lienor sella a crop under a registered crop lien. See the
Mercantile Act of 1867, s. 39, title MERCANTILE LAW.
Warrant of Distress Copies mid Inventory.
45. No landlord to distrain except personally or by bailif€
authorized by written wa,rra.nt,-No person to whom any rent shall be
diie shall distrain any goods or chattels for such rent except by
himself personally or by his agent or bailiff then duly authorized by
warrant under his hand or under the haad of his attorney duly
constituted auch warrant to be in the form or to the effect of the
schedule hereunto annexed number one

540
ss. 45-47. [Vol. Vc
Provided always that whenever the person signing such warrant
shall be unable to write his name his signature sl~all be attested by a
justice of the peace an attorney at law or a clerk of petty sessions.
As to the authority of an agent to issue a Farrant of distress, see Wilson
r. Hichardson. (1888), 9 N.S.W.L.R. (L.) 44; Crowley v. Apted (1893), 14
N.S.W.L.R. (L.) 146; Harker v. Barwicb (1864), 1 W.W. & a’B. (L.) 165;
Pielcl r. Howlett (1873), 4 A.J.R. 152; hTiool v. Blasher (1883), 9 V.L.R. (L.}
270.
A claim in zt marrant of distress for a sum for rent due and something else
is not void so as to malie tho landlord trespapser ab initio (Nicol v. Brasher,
supra).
If a bailiff authorised to distrain upon goods on the dcmised premises
seizes such goods after their removal to other premises, the landlord is not liable
in respect of such seizure unless it is proved that he .authorisad or ratified it
(Russell v. Laidle?/ (1895), 21 V.L.R. 179; Peck v. Smith (1878), 4 V.L.R. (L.)
16). Rut where a bailiff, owing to the vagueness of his instructions, lavied
distress on the wrong person and premises, it was held that the person signing
the warrant was liable. See Fox v. McGregor (1882), 3 N.S.W.L.R. (L.) 281;
Jones v. Barton (1883), 4 N.S.W.L.R. (L.) 271.
A IanNord who had rtuthoriRed the seizure was not allowed to rely on the
fact that he had not signed the warrant, in Crowley v. Apted (1893), 14
N.S.W.L.R. (L) 146.
See also English nnd Empire Digest, Vol. 18, p. 329; Redmnn’s Law of
Landlord and Tenant (8th ea.), p. 511.
Dirtress for rent may now be made only in accordance with The Law of
DiRtress and Othcr Acts Amendment Act of 1934, post. See ibid., 8s. 5 (I),
7, 10.
For tho limited right of a mortgagee of land under the Real Property Act
of 1861 (title REAL PROPERTY) to distrain the goods of the occupier or tenant
of the mortgaged land, see ibid., s. 61.
46. Bailiff to procure warrant in duplicate and give one copy to
person distrained on.-Every person making any such distress as the
agent or bailiff of another shall first procure from such person two
copies of the beforementioned warrant both of which shall be signed
as aforesaid and shall deliver one of such copies at the time of making
the distress to the tenant or owner of the goods distrained or to some
person for him resident at the place where the said distress shall be
made
and in case there shall he no person at such pl,ace with whom such
copy can be left as aforesaid then such bailiff or agent shall give such
copy to the said tenmt or oEner at any time afterwards on demand
within one month after the making of such distress.
A penalty for failure to obtain a warrant in duplicate or to deliver a copy
to the tenant or owner is prescribed by s. 63, post.
47. Person distraining to forthwith make out and deliver
inventory.-Every person making my distress for rent shall forthwith
make out a mitten inventory in the form or to the effect of the
schediile hereunto number two of the goods distrained which inventory
shall be dated on the day of such distress and shall be signed by the
person making the same and shall be thereupon delivered to the tenant
or owner of the goods so distrsined or to some person for him resident
at the place where the said distress shall be made

Distress Replevin rcnd E’jcctnzent Act of .1867. SS. 47-50.
and in case there shall be no person at such place with whom
such inventory can be left as aforesaid then such inventory shall be
posted on some conspicuous part of the premises on which the distress
is made and such person so distraining shall give such inventory to the
said tenant or owner at any time afterwards on demand v:ithin one
month after the making of such distress.
For penalty for neglect or refusal to make out and delirer or po9t up an
inventory, see s. 63, post.
As to whether non-delivery of the inventory with distress warrant makes
the distress illegal, see Garclem v. Norton (1915), 32 N.S.W.W.N. 82.
See Redman’s Law of Landlord and Tenant (8th ea.), p. 516.
Charges of Distress.
48. Charges of distress defined.-Where any distress shall be
made by the person to whom the rent shall be due or by any bailiff or
agent as aforesaid the charges in the section next following mentioned
and no other shall be made in respect thereof.
As to recovery of charges of diRtrcss and snlc out of tlic proceeds of sale,
sec S. 58, post.
For penalty for making a grcatcr charge than is authoriserl, see s. 63, post.
49. Costs of levy. 67 aeo. III. c. 93 s. 1.-The costs of levy where
made by an agent or bailif? under the authority of a warrant to distrain
shall be according to the following scale-
E S. a.
Where the sum distrained for shall be inore than two and less than
ten pounds . . .. .. .. .. .. .. .. 0 5 0
Where such sum shall be ten and less than fifty pounds . . .. 0 10 0
Where such sum shall be fifty pounds or upwards , . .. .. 1 0 0
Man in possession per diem . . .. .. .. .. .. 0 4 0
And the charges of the auctioneer or the bailiff conducting the sale shall not
exceed two and a half per cent.
And the charge for advertisements shall be the money paid for their insertion
if RUC~ advertisemente he required by the person whose goods are
distrained.
For the statute 57 Qeo. 3, e. 93 (The Distress (Costs) het, 1817), S. 1, see
Halsbury’s Statutes of England (2nd ca.), Vol. 5, p. 152.
Distrainable Goods.
50. Corn loose &c. may be detained and sold. 2 Wm. & Mary Sa.
1 C. 5 S. 3.-lt shall and may be lawful to and for any person or persons
having rent arrear and due upon any such demise lease or contract as
aforesaid to seize and secure any sheaves or cocks of corn or corn loose
or in the straw or hay lying or being in any barn or graaary or upon
any hovel stack or rick or otherwise upon any part of the land or ground
charged with such rent and to lock up or detain the same in the place
where the same shall be found for or in the nature of a distress until the
same shall be replevied upon such secnrity to be given as hereinafter
provided and in default of replevying the same as aforesaid within the
time hereinafter provided to sell the same so as nevertheless such corn
grain or hay so distrained as aforesaid be not removed by the person or
persons distraining to the damage of the owner thereof out of the place

542
ss. 60-62. [Vol. V.
where the same shall be found and seized but be kept there (as
impounded) until the same shall be replevied or sold in default of
replevying the same within the time hereinafter provided.
For the statute 2 Will. & Mary, sess. 1, e. 5 (The Distress Act, 1689), see
Ealsbury's Statutes of England, Vol. 5, pp. 140-143. Section 2 of that Act
corresponds to this section.
As to security in replevin, see S. 70, post.
For the time after which sale may take place, see s. 58, post.
It is immaterial whether corn be thrashed or unthrashed (Belasyse v.
Burbridge (1G96), 1 Lut. 213).
Sale has beon held to bc compulsory, unless there is a replevy (Piggot T.
Birth (1836), 1 M. & W. 441, at p. 448).
Sec. Hnlsbury's Td:iws of Engl:~iid (2nd ea.), Vol. 10, p. 459; Redman '9 1,aifr
of Landlord illid Tcnnnt (8th ecl.) p. 553.
51. Landlord may distrain stock or cattle on the premises. 11 Geo,
11. c. 19 s. 8.-Tt Rhall and may be lawful for every lessor or landlord
or his steward bailiff receiver or other person empowered by him to take
and s&!e as a distress for arrears of rent any cattle or stock of their
1-cspective tenant feeding or depasturing upon any common appurtenant
or tiny ways bclongiiig to all or any part of the premises demised or
1101~1~~11
rtiitl also to talre nud seize all sorts of corn and grass hops roots
fruits 1)iilso 01' other product m4iatsoever which shall be growing on any
1)rii.f; of' ltic rstatcs so tfcrnisccl or liolcien as a distress for arrears of rent
itrid IJie smie to tilt gptlicr make cure carry and lay up when ripe in the
l)nt*iis 01' other proper place on the premises so demised or holden and
in case there shall be no barn or proper place on the premises so demised
or Iiolden then in any other barn or proper place which such lessor or
landlord shall hire or otherwise procure for that purpose and as near
as may be to the premises and in convenient time to sell or otherwise
dispose of the satne towards satisfaction of the rent for which such
distress shall have been taken and of the charges of such distress and
sale in the same manner as other goods and chattels may be seized
distrained and disposed of.
See also s. 54, post.
For the statute 11 Geo. 2, c. 19 (Tho Distress for Rnt Act, 1'737), S. 8,
see Halabury's Statutes of England, Vol. 5, p. 146.
A grantee of a rent charge is not a landlord within this section (Millpr T.
Green (1831), 8 Bing. 92).
See Bedman's Law of Landlord and Tenant (8th ed.), p. 501.
52. Parties impounding cattle to provide food. 5 & 6 Wm. IV.
C. 59 S. 4.-Every person who shall impound or confine or cause to be
impounded or confined any horse ass or other cattle or animal in any
cornmon pound open pound or close pound or in any inclosed place shall
and he is hereby required to find provide and supply such horse ass and
other cattle or animal so impounded or collfined daily with good and
sufficient food and nourishment for so long a time as such horse ass or
other cattle or animal shall remain and continue so impounded or
confined as aforesaid
and every such person who shall so find provide and supply any such
liorsc ass or other cattle or animal with such daily food and nourishment
as aforesaid shall and may and he and thy are hereby authorized and
cmpowrred to recover of and from the owner or owners of such cattle OT

543
Distmss Replevin and Ejectment Act of 1867. ss, 52-64,
animal not exceeding double the full value of the food and nourishment
so supplied to such cattle or animal as aforesaid by proceeding before a
justice of the peace within whose jurisdiction such cattle or animal shall
have been so impounded and supplied with food as aforesaid in like
manner as any forfeiture or any damage or injury Inay be recovered
under and by virtue of any of the powers or authorities in any Act in
that behalf contained and which value of the food and nonrishiiipnt so
to be supplied as aforesaid such justice is hereby fully authorized and
empowered to ascwtain determine and enforce as aforesaid
And every person who shall have so supplied such food and nourish-
ment as aforesaid shall be at liberty if he shall so think fit instead of
proceeding for the recovery of the value thereof as last aforesaid after
the expiration of seven clear Jays from the time of impounding the
same to sell any such horse ass or other cattle or animal openly at any
public market (after having given three days’ public printed notice
thereof) for the tnost money that can then be got for the same and to
apply the produce in discharge of the value of such food and nourish-
ment so supplied as aforesaid and the expenses of and attending such
sale rendering the overplus (if any) to the owner of such cattle or
animal.
Cf. the Protcction of Anirnal~ Act, 1911 (1 & 2 Qeo. 5, e. 27), R. 7, for
wliich see Halsbnry’s Statutes of England, Vol. 1, p. 377.
Tho perRon taking the animal to the pound, and not the poundkeeper, is
responsible to supply food nndor this section (Dargan. v. Dacies (1877), 2 Q.B.D.
118).
See also Tho Local Government Act of 1936. 8. 43 (31) (i) (e), title LOCAL
AUTHORITIES.
53, Person may enter pounds &c. 5 & 6 Wm. IV. c. 59 s, 5.-In
case any horse ass or other animal shall at any time so remain impounded
or confined as aforesaid without suacient daily food or nourishment
more than twenty-four hours it shall and may be lawful to and for any
person or persons whomsoever from time to time and as often as shall
be necessary to enter into and upon any such common pound open pound
or close pound or other inclosed place in which any such cattle or animal
shall be so impounded or confined and to supply such cattle OF animal
with such good and sufficient food and nourishment during so long a
time as such cattle or animal shall so remain and continue impounded
or confined as aforesaid without being liable to any action of trespass
or other proceeding by any person or persons whomsoever for or by
any reason of such entry or entries for the purposes aforesaid.
Cf. the Protection of Animals Act, 1911 (1 & 3 Geo. 5, e. 27), s. 7 (2),
for which see Halabury’s Statutes of England, Vol. 1, p. 377.
54. Tenant to have notice of the place where the distress is lodged.
11 Geo. 11. c. 19 s. 9.-Notice of the place where the goods and chattels
so distrained shall be lodged or deposited shall within the space of one
week after the lodging or depositing thereof in such place be given to
such lessee or tenant or left at the last place of his abode
Distress of corn &c. to cease if rent be paid before it be cut.-and
if after any distress for arrears of rent so taken of corn grass hops roots
fruits piilse or other product which shall be growing as aforesaid and
at any lime before the same shall be ripe and cut cured or gathered the
tenant or lessee his executors administrators or assigns shall pay or
cause to be paid to the lessor or landlord for whom such distress shall

544
ss. 54, 55. Lan/dZord nnd Tenant. [Vol. v.
be taken or to the steward or other person usually employed to receive
the rent of such lessor or landlord the whole rent which shall be then
in arrear together with the full costs and charges of making such distress
and which shall have been occasioned thereby then and upon such
payment or lawful tender thereof actually made whereby the end of
such distress will be fully answered the same and every part thereof
shall cease and the corn grass hops roots fruits pulse or other product
so distrained shall be delivered up to the lessee or tenant his executors
administrators or assigns.
For the statute 11 Geo. 2, e. 19 (The Distress for Rent Act, 1737), s. 9,
see Halsbury’s Statutes of England, Vol. 5, p. 146.
As to distraint upon corn and other growing crops, see s. 51, ante.
Distrained goods are held as a pledge and tho tenant is not entitled to get
them back without payment of rent (NeZviZZe v. Piiillips (1899), 9 Q.L.J. 114,
at p. 116).
55. If any lessee &c, shall fraudulently carry off gosh and the
lessor &c. may within thirty days after seize such goods &G. and sell
the same as if they had been distrained. 8 Anne c. 14 s. 2. 11 Geo. 11.
e. 19 s. 1.-Tn case any tenant or lessee for life or lives term of years
at will sufferance or otherwise ol any riiessuages lands tenements or
hereditaments upon the demise or holding whereof any rents are or shall
he reserved due OF made payable shall fraudulently or clandestinely
convey or carry OTT? from such premises his goods or chattels with intent
to prevent the landlorcl or lessor from distraining the same for arrears
of such rent so reserved due or made payable as aforesaid it shall and
may be lawful to ancl for such lessor or landlord or any persons by him
for that purpose lawfully empowered within the space of thirty days
next ensuing such conveying away or carrying off such goods or chattels
as aforesaid to take and seize such goods and chattels wherever the
same shall be found as.a distress for the said arrears of rent and the
same to sell or otherwise dispose of in such manner as if the said goods
and chattels had actually been distrained by such lessor or landlord in
and upon such premises for such arrears of rent any law custom or
usage to the contrary in anjwise notwithstanding.
The statute 8 Anne e. 14 (or c. IS), s. 2, has been repealed in England.
For the statute 11 Geo. 2, e. 19 (The Distress for Rent Act, 1737), s. 1, see
Halsbury’s Statutes of England (2nd ea.), Vol. 5, p. 143.
This section applies to all tenancies on which there is a rent paynblc (Croft
v. Hylton (1916), 33 N.S.W.W.N. 93).
Where a tenant was disputing the amount of rent due and removed his
goods in the middle of the day in the presence of the landlord aud othei.s, it
WRS held that there vns no evidence of a clandestine removal (Ex parte Wonders
(1901), 18 N.S.W.W.N. 153). But the case comes Tithin the section if the
removal is fraudulent, though not clandestine (Opperman. v. Smith, (1824),
4 Pow. 6 Ry. 33). The removal must have been to avoid distress (Parry v.
Duncan (1831), 7 Bing. 243).
See further Halsbury’s Laws of England (2nd ea.), Vol. 10, p. 523;
English and Empire Digest, Vol. 18, pp. 360 et seq.
The Distress for Rent Act, 1737, s. 3 (Halebury’s Statntes of England,
Vol. 5, p. la), gives the landlord an action for doubIe the value of the goods
carried away in circumstances mentioned in this section. Section 4 of that
Act allows such double value to be recovered in proceedings bufore justices
where the goods carried away do not exceed $50 in valuc. The Inst-mentioned
section came into force in the territory now comprised in this State hy virtue
of The Australian Courts Act, 1828, s. 24 (Imperial), title CONSTITUTION, and
has not been repenled by implication by the re-cnnctment in this het of other
provisions of The Distress for Rent Act, 1737 (Barrett v. Austin (1898),
8 Q.L.J. 157; 8 Q.L.J. (N.C.) 107).

Distress Repleuiqz mid Ejectnzent Act of 1867. ss. 56-58.
56. Proviso that such lessor &c. shall not seize any goods &c.
which shall be bong fide sold before. 8 Anne c. 14 s. 3. 11 Geo. 11.
c. 19 s. 2.-Provided that no lessor or landlord shall take or seize any
such goods or chattels as a distress for the same which shall be sold
bola6 fide and for a valuable consideration before such seizure made to
any person not privy to such fraud as aforesaid anything herein
contained to the contrary notwithstanding.
The statute 8 Anne c. 14 (or e. 18), s. 3, has been repealed. For the
statute 11 Goo. 2, C. 19 (The Distrcsc., for Rent Act, 1737), S. 2, see Halsbury’s
Statutes of England, Vol. 6, p. 144.
Sec the English an3 Empire Digest, Vol. 18, p. 3G3.
57. Landlord may break open houses. 11 Geo. IT. G. 19 s. 7,When
my goods or chattels fraudulently or clandestinely conveyed or carried
away by any tenant lessee or his servant agent or other person aiding
or assisting therein shall be put placed or kept in any house barn stable
outhouse yard close or place locked up fastened or otherwise secured
so as to prevent snch goocis or chattels from being taken and seized as
a distress for arrears of rent it shall and may be lawful for the landlord
lessor his steward bailif? receiver or other person empowered to take and
seize as ti distress for rent such goods and chattels (first calling to his
assistance a peace. officer of the district or place where the same shall
be suspected to be coiicenled who is hereby required to aid and assist
therein find in case of a dwelling-house oath being also first made before
some justice of the peacc of a reasonable ground to suspect that such
goods or chattels are therein) in the daytime to break open and enter
into snch house barn stable outhouse yard close and place and to take
and seize snch goods and chattels for the said arrears of rent as he
might have done by virtue of this or any former Act if such goods and
chattels had been put in any open field or place.
For the statute 11 Geo. 2, c. 19 (The Distress for Rent Act, 1737), S. 7, see
Halsbury’s Statutes of England (2nd ed.), Vol. 5, p. 145.
The presence of the peace officer is necessary (Cartzuright v. S?n?th (1833),
1 Mood. & R. 284).
A previous request to enter is not necessnry (Wil1,iants v. Roberts (1852),
7 Ex. 618).
Sale.
58. Goods distrained for rent may be sold after the expiration of
five days. 2 Wm. & Mary Sw. 1 c. 5 s. 2.Where any goods or chattels
shall be distrained for any rent and the tenant or owner of the goods
so distrained shall not within five days next after mch distress taken
replevy the same mith sufficient security to be given to the sheriff or
his deputy or to any justice of the peace according to law then in such
case after the expiration of the said five days the person distraining
shall and may cause the goods and chattels so distrained to be sold by
pnblic auction by a duly licensed auctioneer or by a sherif€’s bailiff or
a bailiff of some court of petty sessions or small debts court for the best
price that can be gotten for the same towards satisfaction of the said
rent and the charges of the said distrem and sale and the overplus if any
shall be forthwith handed over to the said tenant or owner and a full
and true account in writing of every such sale shall in every case be
given by the person making the distress to the tenant or owner on
demand
I8

546
ss. 58-60. [Vol. v.
Not to apply to corn grass hops &c. growbg at time of sekure,--
Provided always that nothing herein contained as to the time of sale
shall apply to any corn grass hops roots fruits pulse or other product
whatsoever which shall be growing at the tinie of the same being seized
as a distress.
For the statute 3 Wm. 6; Mary, sess. 3, c. 5 (The Distress Act, 1689), s. 1,
which this section follows, see Halsbury’s Statutes of England, Vol. 5, 1). 140.
As to replevin and security therein, sec SR. 67 et se$, post.
For the time for sale of growing crops, sec, s. 51, ante.
Ais to whcther nii nuctionccr selling under this section must 11c* licensed,
see also The Auctioneers :tiid Coiinniusio~i A4geiit~ -Let of 1922, S. f! (1) (h), title
AUCTIONEERS AND COMMISSION AGENTS.
The reference to Small Debts Courts mist now be read ns to Magistrates
Courts. See The Magistrates Courts Act of 1921, S. 3 (3), title JUSTICES.
For the charges of distress and sale, see 5s. 48, 49, ante.
A penalty for refusal to give an account of the sale in writing is imposed
by 8. 63, post.
As to whether ;L landlord can purchase at thc siilc, set’ Izcitt r. ZLCo~iritclr,
R.C’.R., Dec. 14, 1587, Paul D.C.J.; kPootto?? P. Sdofcrs (1894), J 6 ,\.t.T’. 10;
Ex parte Eearney (19011, 1 N.S.W.S.R. 1ST; DUVC~J v. Bank of Srio Smith
\Bales (1883), 9 V.L.R. (L.) 352.
A sale by private contract, instcad of Ly :tuctina is an irrcgu1:irity (S~PWUV~
r. Fisliley (1880), 6 V.L.R. (L.) 3).
Tlic overplus must I)e p:iiil to thc ieiiaiit witliont doduciing arre:irs of rent
not distrnined for (NcAcZani v. McIntyrc (1911), 11 N.8.W.S.R. 305).
A complaint for money had and received will ljc! by a tenant against a
lalidlord for an overplus within the meaning of this section, although wch
overplus has not come to the liniids of the landlord, but lias been retained by a
licensed auctionecr who effected the sale of the goods of thc! teiinnt (Rhodes s.
Parrott, [1912] V.L.R. 333).
See also Halsbury’s Laws of England (2nd ed.), Vol 10, p. 513; English
and Empire Digest, Vol. 18, p. 350.
’59. Owner of distrained goods may direct order of sale.-The
tenant or owner of any goods so distrained as aforesaid may at his
option direct and specify the order in trhich the said goocts and chattels
shall be successively sold and the said goods and chattels shall in such
case be put up for sale according to such directions of the tenant 01%
owner as aforesaicl.
60. Distress may be secured and sold on premises. 11 Geo. 11. G. 19
s. 10.-It shall be lawful for any person lawfully taking any distress
for rent to impound or otherwise secure the distress so made of what
nature or kind soever it may be in such places or on such part of the
premises chargeable with the rent as shall be most fit and convenient
for the impounding and securing such distress ancl to sell and dispose
of the same upon the preinises and it shall be lawful for any person or
persons whatsoever after the expiration of the five days hereinbefore
mentioned to come and go to and froin such place OF part of the said
premises where any distress for rent sliall be impounded anrl secnrcct as
aforesaid in order to view arid buy and in orcicr to carry off or remove
the same on account of the purchaser thereof

547
Distress Repleviyi and Ejectmewt Act of ,1867. ss. 60-62.
Treble damages for pound breach. 2 Wm. & Mary Sess. 1 C. 5
s. 4,-alld if any pound breach or rescous shall be made of any goods
and chattels distrained for rent the person or persons aggrieved thereby
shall in a special action on the case for the wrong thereby sustained
recover his and their treble damages and costs of snit against the
offender or offenders in any such rescous or poiind breach any or either
of them or against the owner of the goods distrained iii case the same be
aftertvaids found to have come to his use or possession.
For the stntutc 11 Geo. 2, c. 19 (The Distress for Rent Act, 1737), s. 10,
see EIalsbury’s Statutes of England, Vol. 5, p. 147. For the statute 2 Wa. &
Mary, sess. I, c. 5 (The Distress Act, 1689), s. 4, see ibid., p. 142.
For “the five days hcrcinbefore mentioncd”, sce R. 58, ante.
Cattle, stock, corn, grass, etc., may bo impounded on the premises under
U. 51, mite.
This section does not allow impounding on the premises of goods not
lawfully distrained, and thcre is no right of action for treble damages for pound
brencli in rcspcct of xuch goods attempted to be impounded on the premises
(Repatriation Commission v. Kirldand (1923), 33 C.L.R. 1).
For what constitutes rescue and pound-brcncb, sec Ralsbury ’s Laws of
England (2nd ed.), Vol. 10, pp. 526-528.
No Hpecial damngo need bc proved (Kemp v. Christmns (18981, 79 L.T.
233).
The action cradcd by this scction is a pmnl action, and the plaintiff is not
entitled to discovory (Jones v. Jones (1889), 82 Q.E.D. 425).
See nlso Halsbury’s Lawe of England (2iid ea.), Vol. 10, p. 528; English
and Empire Digest, Val. 18, pp. 339, 366; Redman’s Law of Landlord and
Tenant (8th ea.), p. 517.
61. No appraisement necessary in distress for rent.--In no case
of distress for rent shall any appraisement whatever be necessary nor
shall any costs or expenses be charged or allo.cr.ed in respect thereof.
Unlawful Distress.
62. Double damages and costs against unlawful distrainer.-In
case any such distress and sale as aforesaid shall be made by virtue or
color of this Act for rent pretended to be arrear and due where in truth
110 rent is arrear or due to the person distraining or to him in whose
name or right such distress shall be taken as aforesaid then the owner
of such goocls or chattels distrained and sold as aforesaid his executors
or administrators shall and may by action of trespass or upon the case
to be brought against the person so distraining his executors or adminis-
trators recover double of the value of the goods or chattels so distrained
mid sold together with full costs of suit.
Of. The Distress Act, 1689 (2 Will & Mary e. 5), s. 4, Ealsbury’s Statutes
of England, Vol. 5, p. 142.
This section does not, by virtue of s. 66, post, apply to distress for rates
(M‘Nirtt v. ridgee Divisional Board (1896), 7 Q.L.J. 75).
Only the owner can sue (Chancellor v. Webster (1893), 9 T.L.R. 568).
As to necessity of proving a tenancy between the parties, see McGee v.
Spiers (1900), 18 N.S.W.W.N. 35.
Nothing lesa than double damages cm be awarded (Uaaters v. Parris
(1845), 1 C.B. 715). Cf. M’Nutt I-. Widgee Divisional Board, siipra.

548
ss. 62-64. [Vol. v.
Where excessive goods are distrained, but the tenant is not deprived of
their use, he can recover only nominal damages (NicoZ v. Brasher (1883), 9
V.L.R. (L.) 270).
See also English and Empire Digest, Vol. 18, p. 393; Redman’s Lam of
Landlord and Tenant (8th ea.), p. 542.
By the statute 52 Hen. 3, e. 4 (Halsbury’s Statutes of England, Vol. 5,
p. 136), which appears to be in force in Queeasland, it is enacted that distresses
must be reaPonable and not too great.
63, Penalty for distraining &c. contrary to law.-If any persoil
shall lmowingly and wilfully distrain for rent as the agent or bailiff of
another without having Grst obtained the warrant hereinbefore men-
tioned in duplicate or shall neglect or refuse to deliver one of such
duplicates to the tenant or owner as hereinbefore directed or if any
person distraining for rent shall neglect or refuse to make out and
deliver or post up such inventory as aforesaid or shall charge more for
any distress or sale than is authorized by this Act or shall refuse to give
such account in writing of any sale as hereinbefore provided every person
so offending shall on conviction be liable to a penalty not exceeding fifty
pounds to be recovered in a summary way by the party aggrieved before
any two justices of the peace.
As to obtaining ,z warrant in duplicate nnd dclivwy of one C ~ J ~ Y
to tlic
tcunnt or owner, see 8. 46, ante.
For thc duty to make out and deliver or post up an invoiitorp, HCC R. 47,
mitt-.
0.71tC.
The cliarges which may be niade upon a distress are prescribed by se. 48, 49,
For the obligation to give n written account of a sale, Bee s. 58, u)tfc.
-4pplicntion of penalties recovered is governed by s. 142, post.
64. Distresses for rent not unlawful &c. for any irregularity
therein. 11 Geo. 11. c. 19 s. 19.When any distress shall be niade for
any kind of rent justly due and any irregularity or unlawful act shall
be afterwards done by the party distraining or by his her or their agents
the distress itself shall not be therefore deemed to be unlawful nor the
party making it be deemed a trespasser ab initio but the party aggrieved
by such unlawful act or irregularity shall or may recover full satis-
faction for the special damage he or they may have sustained thereby
and no more in an action of trespass or on the case at the election of the
plaintif€
provided always that when the plaintiff shall recover in such action
he shall be paid his full costs of suit and have all the like remedies for
the same as in other cases of costs.
For the statute 11 Qco. 2, e. 19 (The Distress for Rent Act, 1’737’), s. 19,
see Halsbury’s Statutes of England, Vol. 5, p. 150.
For what amounts to trespass ab initio, see Halshury’s Lam of Englalld
(1st ca.), Vol. 2’7, title Trespass, p. 856.
Where distress has been made for rent, a sale by private contract instead
of by public auction is an irregularity in terms of this section (Stewart B.
Fishley (1880), 6 V.L.R. (L.) 3). See aIso s. 58, ante; Patara Rnngi v. Reeves
(1888), 6 N.Z.L.R. 667.
The meamre of damages is the special damage sustained (see Lyon v.
Tomkies (1836), 1 M. & W. 603), and if there is no special &image the
defendant is entitled to the verdict (Lucas T. Tarleton (1858), 3 H, & N. 116).
For instances of irregulns distress, 2nd as to tender of amends, sec
Halsbury’s Laws of England (2nd ea.), Vol. 10, pp. 531, 532.
See also Redman’s Law of Landlord and Tenant (8th ea.), p. 536.

549
Distress Repleviu awd Ejectmmat Act of rl867. ss. 65-67.
The Prerogatiue.
65. This Act shall not hinder the Queen &c. to levy any debts
fines &e. due to the Crown. 8 Anne c. 14 s. &-Nothing in this Act
contained shall extend or be construed to extend to let hinder or
prejudice Her Majesty her heirs or successors in the levying recovering
or seizing any debts fines penalties or .forfeitures that are OY shall be
due payable or answerable to Her Majesty her heirs or successors but
that it shall and may be lawful for Her Majesty her heirs and successors
to levy recover and seize such debts fines penalties and forfeitures in
the Same manner as if this Act had never been made anything in this
Act contained to the contrary thereof in anywise notwithstanding.
For tho statute 8 Anne e. 14 (or e. 18) (The Landlord and Tciiant Act,
1709), S. 8, see Walsbury’s Statutes of England, Vol. 10, p. 320.
Recovery of debts, etc., due to the Crown is regulated by The Crown
Remedies Acta, 1874 to 1930, title CROWN.
Tho goods of the Crown arc not liable to be distrnined (Brpatrintion
Commission v. Kirkland (1923), 32 C.L.R. 1).
66. Provisions of last section extended to other distresses. 7 & 8
Geo. IV. c. 17 S. 1.-From and after the commencement of this Act all
the rules rcplutions clauses provisions penalties matters and things in
this Act contained shall extend and be construed to extend and shall be
applied and put; in execution so far as the same are applicable and
capable of being put in execution with respect to any distress or levy
which fihall be made for any land tax or any other rates taxes impositions
or assessments whatever in all cases where the sum demanded and due
for or in respect of such rates taxes assessments or impositions shall not
exceed the sum of twenty pounds and in all cases where the whole of the
several sums sought to be levied by distresses taken for different purposes
at the same time shall not exceed the sum of twenty pounds and such
costs and charges and no other shall be taken and payable as the costs
and charges of the levy and disposition of such distresses
and all such proceedings shall and may be had and taken against
any and every person transgressing the regulations of this Act in the
levying or distraining for any such taxes rates impositions or assess-
ments and all such persons shall be liable to and shall incur such and the
like penalties as by this Act are directed required and imposed with
respect to persons making any distress for rent contrary to the directions
of this Act!
and in any order or judgment of any justices before whom any
complaint shall be preferred in consequence of this Act such order shall
be expressed to be made upon a complaint for the breach of this Act.
For the statute 7 & 8 Geo. 4, c. 17 (The Distress (OMS) Act, 1827), see
Halsbury’s Statutes of England, Vol. 5, p. 155.
This section does not apply to cases where distress is xwde for rates and
no rates are due, and therefore does not have the effect of applying S. F2, anta,
to distress for rates (M’Nutt v. Widgee Divisional Board (1896), 7 Q.L.J. 75).
Rcptevi?i.
67. Power to take replevin-The sheriff‘ or his deputy by him
specially appointed for that purpose shall have power to grant replevin
in all cases in which a sheriff in England has power to grant the same
and every person who shall apply to make replevin shall enter a plaint
in replevin in the form hereinafter given or to be fixed by rules of

350
SS. 67-70. [Vol. v.
court as hereinafter provided in the office of the said sheriff and upon
such security being given by bond as hereinafter mentioned a precept
in replevin in the form hereinafter given or to be ked in like manner
shall issue to cause the goods seized to be re-delivered to the person
replevying the same ancl such sheriff and deputy shall have power to
take and shall require before he grants any such replevin from the
person desiring to make replevin a bond with one or more responsible
surety or sureties in a competent amount the condition of mhich bond
shall be that the party desiring to make such replevin shall prosecute
his suit in R pvoper court with effect arid without delay ancl make return
of the goods and chattels seized if a return thereof be adjudged and
such l~oiid iiiay be assigned by such sheriff and siml on in like manner
as in lilie case5 in England.
For the form of plaint in replevin, see s. 75, and Schedule, form 3, post;
The Magistrates Courts Rules, 1922, r. 32, title JUSr!21CES.
As to security, see also 88. 70, 72, and Sched., Form 5, post, As to
assignment of the bond, see s. 72, and Sched., Form 6, pod.
As to precept in replcvin, see S. 72, and Sched., Form 4, post.
68. Sheriff to appoint deputies at certain places.-The sheriff for
the time being of the said colony shall by writing under his hand and
scd appoint onc or more deputy or deputies in Brisbane €or the purpose
of niaking replevin ancl deliverance of distresses.
69. Justices may grant replevin in certain cases.-In all cases in
which any distress shall be niade at any place distant more than ten
iiiiles from the oKce of tlie sheriff or froni the residence of any deputy
appointed as aforesaid it shall be lawful for any justice of the peace
to grant a replevin of the goods distrained and for that purpose to
take a replevin bond with sufficient sureties
Provided nevertheless that neither such justice nor the sheriff nor
any such deputy as aforesaid shall be liable to any action for taking
insufficient security if he shall ha~e acted bona fide and with reasonable
care and caution.
70. Sheriff before deliverance of any distress to take suf€icient
security ZLS herein mentioned.-The said sheriff or deputy or justice of
the peace as aforesaid shall before deliverance be made by him of any
distresses take from the person or persons to whom such replevin is
granted and two sufficient sureties a bond in double the value of the
property distrained such value to be ascertained by the oath of one or
more credible witness or witnesses and which oath tlie person granting
replevin is hereby authorized to administer conditioned for commencing
within one calendar month from the date of such bond and prosecuting
with egect and without delay an action for the taking ancl detaining the
property distrained and for returning such property in case a return
should be awarded
and such sheriff deputy or justice of the peace taking any such bond
shall at the request of the avowant or person making cognizance assign
such bond to the avowant or person making cognizance by indorsing the
wme and attesting it wder his hand and seal in the presence of one
credible witness

551
and if the bond so taken and assigned be forfeited the avowant or
the person making cognizance may bring an action and recover thereupoil
in his own name and the court where such action shall be brought may
by a rule or order of the same court give such relief to the parties upon
such bond as may be agreeable to justice ancl yeason and such nile shall
have the nature and effect of a defeasance to such bond.
See also s. 67, ante, and s. 73, and Sehed., Forms 5, 6, post.
71. Actions of replevin to be commenced by writ of summons in
such form as the judges shall prescribe.-Every action of replevin
except those over which jurisdiction is expressly given to district courts
or small debts courts and courts of petty sessions shall be commenced in
the Supreme Court of Queensland by writ of summons in such form as
the judges shall from time to time prescribe as hereinafter mentioned
and be thenceforward prosecuted and dealt with in like mannw as other
actions in the said court may he prosecuted and dealt with ancl the laws
and statiitw in forcc in England applicable to actions of replevin shall
be in force in this colony and be applied in the administration of justice
so far as the smie can be applicd within this colony.
For form of ondorscrncnt of claim on thc wit, we R.8.C. (1900), Srhea. I,
Part I, Sec. IT, I), titlo PRACTICE.
As to payment into court by a plaintiff, sce The Common Law Pleading
Act OB 1807, RH. -IC;, 47, tit] F"{.~(WCE.
Sco goncrnlly, as to replevin, Rcdman's Law of Landlord and Tenant (6th
cd.) . 644; TI:Llubury's Law8 of England (2nd ed.), Vol. lo, p. 534; English
and$mpire Digest, Vol. 18, p. 370.
72. Fom of precept to replevy and of replevin and assignment
bonds.-Every plaint in replevin may be in the form or to the effect
of the schedule to this Act number three and every precept to replevy
,may be in the form or to the efEect of the schedule to this Act annexed
number four and every replevin bond shall be taken in the form or to
the effect of the schedule to this Act annexed number five and every
assignment of such bond shall be in the form or to the effect of the
schedule to this Act annexed nuniber six.
As to the plaint, see also s. 75, post; The Magistrates Courts Rules, 1922,
r. 32, title JUSTICES.
With respect to the bond, see also ss. 67, 70, ante.
73. Fees to be charged.-The sheriB and every such deputy as
aforesaid and every justice of the peace shall be entitled to demand and
receive for the making of every replevin including the taking of the bond
thereon a fee of ten shillings and for the making of every such assignment
a fee of two shillings and sixpence.
74. . -. . . . small debts courts and petty sessions empowered
to adjudicate in actions of replevin its to distresses for rent not
exceeding thirty pounds.-The respective . . . . small debts
courts established or hereafter to be established and the respective courts
of petty sessions established or hereafter to be established in any part of
the colony shall and they are hereby authorized and empowered to hear
and detertnine within their respective jurisdictions all actions of replevin
relating to distresses for rent between landlord and tenant where the
rent for or in respect of which any distress shall be or ought to have been
made shall not . . . . exceed [one hundred pounds] in amount or value

552
ss. 74-77. Landlord and T’Tengant. [Vol. v.
and all proceedings in such action of replevin shall be taken and all
such actions shall be tried and determined in the same manner and shall
be subject to the same rules and appeal as the law now directs or shall
hereafter direct with respect to other actions in the said . . . . small
debts courts or courts of petty sessions.
In the marginal note the words “District and were expunged where
indicated, under powers conferred by S. 2 9 of ~ the Acts Shortening Act of 1SG7,
title ACTS.
Words reforring to district courts were expunged from the body of the
section in the places indicsted, by Tho Supreme Court Act of 1921, s. 12 (I),
titla SUPREME COURT. The words in square brackets were substituted for
‘

553
to the party who distrained the same and the costs of the proceedings
paid no further proceedings shall be had on the replevin bond and all
such goods if returned or recovered under any such order as aforesaid
inay be sold for the recovery of the rent due and expenses at the
expiration of four days after the return thereof.
The words ‘(district court and” were expunged where indicated, by The
Supreme Court Act of 1921, S. 12 (I), title SUPREICE COURT.
[78-117. Krp. by The Stntwte Law XZevisio11 Act of 1908, s. 2, title
ACTS.]
Belief agahst Forfeitures.
118. Relief against forfeiture for non-payment of rent. 23 & 24
Vic. c. 126 S. 1.--In case of any ejectment for a forfeiture brought for
non-payment of rent the court or a judge shall have power upon a rule
or summons to give relid in a smnmary niaiiney but subject to appeal as
hereinafter rtieiitiouecl up to and within the like time after execution
esecutecl and subject to the smiic terms and conditions in all respects as
to payment, of rent costs and otherwise as in a court of equity
and if the lessee his executors administrators or assigns shall upon
such procceding be relieved lie and they shall hold the demised lancls
according to the lease thereof made without any new lease.
The stiLtuto 23 & 24 Vie. e. 126, mentioned in. the marginal notcs to 9s.
138-124 and 127, is the Common Lniv Procedure Act, 1860 (repealed).
This section only allows relief against forfeiture in aa action for recovery
of land commenced by init of summons. Relief cannot be granted on an
originating summons issued by the tenant (Hebbard v. Lung, [1937] Q.W.X.
42). See also 9s. 130-132, post; R.S.C. (19@0), Ord. 18, r. 10: title PRACTICE.
119. Relief against forfeiture for non-insuring. 23 & 24 Vic, c. 126
s. 2. 22 & 23 Vic. c. 35.--In the case of any ejectment for a forfeiture
for breach of covenant or, condition to insure against loss or damage
hy fire the court or a judge shall have power upon a rule or
summons to give relief in a summary manner but subject to appeal as
hereinafter mentioned in all cases in which such relief may now be
obtained in a court of equity under.the provisions of “The Equity Act
of 1867” and upon such terms as would be imposed in such court.
As to stat. 23 €& 24 Vie. c. 126, see note to s. 118, ante. The stat. 22 & 23
Vie. c. 35, s. 4, was The Law of Property Amendment Act, 1859, S. 4 (now
repealed).
The relevant provisions of the Equity Act of 1867 (title PRACTICE) are
contained in 8s. 63-68 thereof.
See Zebbard v. Lung, [1937] Q.W.N. 42, cited under S. 118, supra.
Applications, other than in an action pending, €or relief against forfeiture
for breach of a covenant to insure against loss or damage by fire may be made
by originating summons (R.S.C. (1900), Ord. 64, r. 1 (8), titlo PRACTICE).
120. Minute of relief granted. 23 & 24 Vic. c, 126 s. 3.Where
such relie€ shall be granted the court or a judge shall direct a minute
thereof to be made by indorsement on the lease or otherwise.
Cf. the Equity Act of 1867, s. 64, titlo PRACTICE.

554
ss. 121-125. [Vol. v.
121. Appeal to the court from order of judge. 23 & 24 Vic. c. 126
s. 4.-An;y order made by a judge upon an application for relief under
the provisions of this Act shall be snbject to an appeal to the court and
inay be discharged varied or set aside by the court upon such terms
as the court shall think fit on application made thereto by any party
dissatisfied with such order
122. Notice of appeal. 23 & 24 Vic. c. 126 s. 7.-No appeal shall
be allowed unless notice thereof shall be given in writing to the opposite
party or his attorney and to the prothonotary of the Supreme Court
within four clays after the decision complained of or such further time
as may be allowed by the court or a judge.
123. Bail. 23 & 24 Vic. c. 126 s. 8.-Notice of appeal shall be a
stay of execution provided bail to pay the sum demanded and costs be
given in like manner and to the same amount as bail in error within
eight days after the decision complained of or before execution delivered
to the sheriff’.
Leases.
124. Restriction on effect of License to alien. 22 & 23 Vic. c. 36
s. 1.Where any license to do any act which without such license
would create a forfeiture or give a right to rc-enter under a condition
or power reserved in any lease licretofore granted or to be hereafter
granted sliall at any the after the coinmencement of this Act be given
to any lessee or his assigns every such license shall unless otherwise
expressed extend only to the permission actnally given or to any specific
breach of any proviso or covenant made or to be made or to the actual
assignment under lease or other matter thereby specifically authorized
to be clone but not so as to prevent any proceeding for any subsequent
breach (unless otherwise specified in such License)
and all rights under covenants and powers of forfeiture and
re-entry in the lease contained shall remain in full force and virtue
and shall be available as against any subsequent breach of covenant or
condition assignment underlease or other matter not specifically
authorized or made dispunishable by such license in the same manner
as if no such license had been given and the condition or right of
re-entry shall be and remain in all respects as if such license had not
been given except in respect of the particular matter authorized to
be done.
The statute 22 & 23 Tric. e. 35, s. I, is The Law of Property Amendment
Act, 1859, E. 1 (nom repealed). Cf. now the Law of Property Act, 1925, s. 143
(I), (2) (Imperial), Halsbury’s Statutes of England, Vol. 15, p. 323.
This section alters the law established in Umnpor’s Case (1603), 4 Co. Rep.
119, that a condition of re-entry was in law indivisible, a rule which, though
frequently disapproved, had always been followed. See Bwinmel v. Macpherson
(1807), 14 Yes. 173 (cesser of right of re-entry on assignment with licence).
A5 to waiver of a right of re-entry for breach of a covenant, see Xulcahy
v. Hoyne (1925)’ 36 C.L.R. 41.
125. Restricted operation of partial license. 22 & 23 Vic, c. 35
s. %-When in any lease heretofore granted or to be hereafter granted
there is or shall be a power or condition of re-entry on assigning or
underletting or doing any other specified act without license and rz
license at any time after the commencement of this Act shall be given
to one of several lessees or eo-owners to assign or underlet his share
or interest or to do any other act prohibited to be done without license

555
or shall be given to any lessee or owner 01’ any one of several lessees 01’
owners to assign or underlet part only of the property or to do any
other such act -as aforesaid in respect of part only of such property
such license shall not operate to destroy or extingnish the riglit of
re-entry in case of any breach of the covenant or condition by the
co-lemee or eo-lessees or owner or owners of the other shares or interests
in the property or by tlie lessee or owner of tlie rest of the property
(as the case may he) over or in respect of such shares or interests or
remaining property but siich right of re-entry shall remain in full
force ovey or in respect of the shares or interests or property not the
sn h,j ect of such license.
Stat. 22 & 23 Vie. c. 35, s. 2, has been repealed. Cf. now the Law of
Property Act, 1925, s. 143 (3) (Imperial), Kalsbury’s Statutes of England,
Vol. 15, p. 323,
See notes to s. 124, ante.
126, Apportionment of conditions of re-entry in certain cases.
22 & 23 Vic. c. 35 S. 3.-Wher.e tlie reversion upon a lease is severed
and the rent, or otlier rcscrvn.1 ion is l~gally apportioned the assigiiee of
each part of the rcwersion shall in rwpcct of thc apportioned rent or
othcr reservation nllotted or belonging to hiin have and be entitled to
the bencfit of all conditions or powers of re-mtry for nou-paymcnt of
the original rant or othcr reservation in like manner as if such
conditions or powers hacl been reserved to him as jneident to his part
of the reversion in rcapcct of the apportioned rent or other reservation
allotted or h(3longing to him.
Stat. 22 ti 33 Vie. e. 35, s. 3, hns been repealed.
Cf. now the Law of
Property Act, 1925, s. 140 (1) (Imperial), Halsbury’s Statutes of England,
Vol. 15, p. 319.
Before this section was enacted, with certain exceptions (by act in law and
by act and wrong of the lessee), an assignee of part of the reversion conld not
apportion a, condition (Dumpor’s Case (1603), 4 Co. Rep. 119B; and cf.
Xnight’s Case (1588), 5 Co. Rep. 54B). Severance arising from the voluntary
act of the lessor destroyed the condition (Winter’s Case (1572), 3 Dyer 308).
As to eases where the severance was an involuntary act (or act in law within
Lord Coke’s meaning), for instance, where part of the land was taken com-
pulsorily by a public authority, see Piggott v. Middlesex County Couiicil, [1909]
1 Ch. 134, per Eve J., at p. 142.
It was held that a similar section in a Victorian Act applied where the
severance took place after the corninencement of the section but the lease had
been made prior thereto (Gerraty v. McGnvin (1914), 18 C.L.R. 152).
See the English and Empire Digest, Vol. 31, p. 429.
127. Restriction in effect of waiver. 23 & 24 Vic. c. 38 s. 6,-
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 comrneneenient *
of this Act in m y one particular instance such actual waiver shall not
be assumed or deemed to extend to any instance or any breach of
covenant or condition other than that to which such waiver shall specially
relate nor be a general waiver of the benefit of any such covenant or
condition unless an intention to that effect shall appear.
Tho statute 33 & 24 Vie. e. 38, S. 6, has been repealed. Cf. now the Law
of Property Act, 1925, E. 148 (Imperial), Halshury’s Statutes of England,
Vol. 15, p. 331.
Wnivor of n brench of covenant to repair after notice of an unequivocal
act (action for possession claiming past rent) does not waive a continuing
coccnnnt to ropair (Fenton v. Barnett, [1898] 1 Q.B. 276).

556
SS. 127-130. [Vol. v,
The following acts amount to waiver if done after the forfeiture is known:
unqualiiied demand of rent accruing after the forfeiture (Doe v. Birch (1836),
1 M. & W. 402, 408) ; acceptance of rent accruing after the forfeiture (Woe V.
Bees (1838), 4 Bing. N.C. 384; Davenport v. E. (1877), 3 App. Cas. 115; but
not where the landlord has already terminated the tenancy-parkel- v. BTOO~,
[l927] St. R. Qd. 32; [1927] Q.W.N. 4), notwithstanding that the lessor
stipulates that acceptance is without prejudice to his right to insist on the
forfeitiire (Davenport v. R., supra) j action for rent due after the forfeiture
(Dendy v. Nicholl (1858), 4 C.B.N.S. 376); distress for rent (Cotesworth V.
Spokes (1861), 10 C.B.N.S. 103; Cheyne v. Moses, [1919] St. R. &d. 74; [1919]
Q.W.N. 13). See also English and Empire Digest, Vol. 31, p. 497.
128. Attornment of tenants void. 11 Geo. 11. c. 19 s. 11.-All and
every attornment to a stranger of any tenant of any land within
Quecnslancl shall be absolutely null and void to all intents and purposes
whatsoever and the possession of his landlord or lessor shall not be
deemed or construed to be anywise changed altered or dected by any
such attornment
Provided #always that nothing in this secticn contained shall extend
to vacate or deet any attornment made pursuant to and in consequence
of some judgment at law or decree or order of a court of equity or
made with the privity and consent of the landlord or lessor or to any
mortgagee aftcr the mortgage has become forfeited.
TIM stntiite 11 Cleo. 2, e. 19, e. 11, has been repealed. Cf. now the Law
of Property Act, 1935, s. 151 (2) (Imperial), Halsbury’s Statutes of England,
Vol. 15, p. 335.
ThiR section is designed to prevent the lessee prejudicing the title of the
lessor.
At common law an attornment by the tenant was necessary to complete the
title of an assignee of the reversion. The statute 4 & 5 Anne, c. 16, s. 9,
onacted, however, that all grants OP conveyances of any rents or of reversions
or remainders should be effectual without the attornment of the tenants. Section
10 04 that Act provides that no tenant shall be prejudiced by payment of rent
to his grantor or by breach of any condition for non-payment before notice of
the assignment is given to him. These provisions appear to be in force in this
State. See Mate v. Eidd (1864), 3 N.S.W.S.C.R. 196; SZupp v. Webb (1850),
1 N.S.W.S.C.R. bpp. 54. See further Hammond and Davidson’s Law of
Landlord and Tenant (N.S.W.), 3rd ea., p. 16.
Duty of Tenant.
129. Tenants to give notice of ejectment to landlord. 15 & 16 Vie.
c. 76 s. 209.-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 vdue 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 the Supreme Court.
As to appearance in the action bp the landlord, see R.S.C. (1900), Ord. 12,
r. 13, title PRACTICE.
Ejectment for Nan-Payment of Rent.
130. Proceedings in ejectment by landlord for non-payment of
rent. 15 & 16 Vie. e. 76 s. 2PO.-In all cases between landlord and
tenant its 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
I)y law to rr-enter for the non-payment thereof such landlord or lessor
may without any formal demand or re-entry serve a vrit in ejectment
for the recovery of the demised premises or in case the same cannot be

557
D&?-ess Replevin aptd Ejectment Act of 1867. 5s. 130,131.
legally served or no tenant be in actual possession of the premises then
such landlord or lessor may affix a copy thereof upon the door of any
demised messuage or in case such action in ejectment shall not be for
the recovery of any messuage then upon some notorious place of the
lands tenements or hereditaments comprised in such writ in ejectment
and such affiring shall be deemed legal service thereof which service or
afiing 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 appear to the court where the said action is depending
by affidavit or be proved upon the trinal in case the defendant appears
that half a year’s rent was due before the said writ was served and that
no sufficient clistress 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 iu 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 sue21 ilxecution executed then and in such case the said lessee his
assignee and a11 other peraons claiming and deriving under the said
lease shall be barred and foreclosed from all relief or remedy in law or
equity and the said landlord or lessor shall from thenceforth hold the
said 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
lie 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 on behalf of the first
lessee are and ought to be performed.
-4s to the equitable right to relief against the forfeiture, see 8s. 118-123,
ante; 8s. 131, 132, post; R..8.C. (1900), Ord. 18, r. 10, title PRACTICE.
As to whether this section applies where the landlord has terminated the
lease by re-entry but the tanant has subsequently re-possessed himself, see
Howard v. Panshawe, [I8951 2 Ch. 581; Suttie v. Xe Winitana Xupotahi (1914),
33 N.Z.L.R. 1216; Igchell v. Vhittaber (1897), 13 N.S.W.W.N. 169; Young v.
Tout (1933), 50 N.S.W.W.N. 234.
See Halsbury’s Laws of England (2nd ea.), Vol. 20, p. 265.
Actions of ejectment have now been replaced by actions for recovery of
land. Sea R.S.C. (1900), Ord. 6, r. 7, title PRACTICE; GZedhiIl T. Hunter (1880),
14 Ch. D. 492; Halsbury’s Laws of England (2nd ea.), Vol. 1, p. 63.
With respect to summrtrp proceodings to recover possession, see the Summary
Edectment Act of 1867, post.
131. Lessee proceeding in equity not to have injunction or relief
without payment of rent and costs. 16 & 16 Wic. c. 76 s. 21L-h case
the said lessee his assignee or other person claiming any right title or
interest in law or equity of in or to the said lease shall within the time
aforesaid proceed for relie€ in equity such person shall not have or

[Voll. v.
continue any injunction against the proceedings at law on slZcil ejectment
unless he shall within forty days nest after sa, full and perfect answey
shall be made by the claimant in such ejectment bring illto court anct
lodge with the master in equity such sum and sums of money as the
lessor or landlord shall in his ansver 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 tlic
court
and in casc such proceedings for relief in equity sllstll be taken
with the time afowsaid ancl after eseention is executed the lessor or
landlord sliall hc acc~ountable only for so inucli ancl no inore as lie shall
rcally ancl boil2 fide without fraud deceit or wilful neglect lmke of the
demised prcmises 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 ldore he shall be restored to his possession shall pay such lessor
or landlord what the money so by him made fell short of the reserved
rent; for thc time such lemor or landlord held the said lands.
A8 to proceedings for relief in equity, see SR. 118-123, ante; R.S.C. (1900),
Ord. 18, P. 10, titlo PRACTICE.
132. Tenant paying all rent with costs proceedings to cease.
15 & 16 Vic. e. 76 s. [212]-If the tenant or his assignee 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 all the rent and arrears together with
the 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 nev lease.
The figures in square brackets in the marginal note were substituted for
c(227y by The Acts Shortening Act Amendment Act of 1903, e. 10, title ACTS.
See Halsbury's Laws of England (2nd ea.), Vol. 20, p. 264.
Teiiant Iioldi~iy
OCPY.
133. Ejectment by landlord against tenant holding over after
expiration of term or determination of tenancy by notice to quit. 15 &
16 Vic. c. 76 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 years certain
or from year to year shall have expired or been determined either by
the landlo~c1 or tciiaiit by regular uotice to quit and such tenant or
iznyone holding or claiming by or under him shall refuse to deliver up
possession accordingly after lawful demand in mriting made and signed
by the landlord or his agent and served personally upon or left at the
tlwelling-housc or usual place of abode of such tenant or person and
ilie lmdlord sliall thereupon proeeed by action of ejectnlent for the
recovery of possession

559
Rule or summons for the tenant to give bail,-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 fiud such
bail if ordered by the court or a judge and for such
purposes as are hereinafter next specified
and upou the appearance of the party on an affidavit of service of
On
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
aftidavit 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 by suzLllllons to a judge at
chambers for a rule or summons for such teiiant 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 arid damages which shall be
recovered by the claimant in the action
rule or summons absolute if tenant shall not conform
judgment to be for the laadlord.-and it shall be
la~f~l for the court or judge upon cause shown or upon
affidavit of the service of the rule or summons in case
no came 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 upon a consideration of all the circumstances
to find such bail with such conditions and in such
manner as shall be specijied in the said rule or summons or
such part of the same so made absolute and in ewe 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 st liberty to sign judgment for recovery of
possession and costs of suit in the form contained in the
schedule to this Act annexed marked number fifteen or to
the like effect.
The procedure under this section is replaced by an action for recovery of
land commenced by a specially endorsed mrit. See R.8.C. (IQOO), Ord. 6, 1’. 7,
title PRACTICE; Gledhill v. Hunter (1880), 14 Cli. D. 492; Halsbury’s Laws of
England (2nd ea.), Vol. 1, p. 63.
For summary jurisdiction of justices in like cases, see the Summary
Ejectment Act of 1867, post.
LancZlord against Tenant.
134. On trial of any ejectment between lmdlord and tenant juries
to give damages for mesne profits down to the verdict or to a day
specified therein. 15 & 16 Vic. c. 76 s. 214.-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

560
ss, 134-136. Landlord and I’ei)2mat.
claimant on the trial after proof of his right to recover possession of tile
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 gken 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 recov-ery of the
whole or any part of the preinises and also as to the amolirit of the
damages to be paid for such mesne profits
arid in such case the landlord shall haye judgment t~.it-lin the tiine
Iiereinlwfore provided not only for the recovery of possessio11 ancl costs
brit also for the mesne profits found by the jury
Provided always that nothing hereinbefore contained shall be con-
strued 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 thc ejectment.
AR to recovery of incsiie profits aud flrrcm-8 of miit bi an action for recovery
~ i ‘ liltid, scc R.8.C. (1900), Ord. 4, r. 2; Ord. 6, r. 7; Ord. 15, r. 9; Ord. 18,
I’. 1 ; Orcl: 31, 1’. 8, titlr l’rt.~rftwE: Southport Tramz~~ys Co. T. Ga~dy, [18971
2 0.1%. 60; Rnglidi nnd Eriipire Digcst, Vol. 31, p. 552.
135. On trials after bail found judge shall not stay the execution
except by consent or on tenant’s flnding security, 15 & 16 Vic. c, 76
s. 215.--Tn all cases in which such security shall have been. given as
aforesaid if upon the trial a verdict shall pass for the claimant unless it
shall appear to the judge before whom the same shall have been had
that the finding of the jury was contrary to the evidence or that the
damages given were excessive such judge shall not except by oonsent
make any order to stay judgment or execution except on condition that
within four days from the day of the trial the defendant shall actually
fbd security by the recognizmce‘of himself and two sufficient sureties in
such reasonable sum as the judge shall direct conditioned not to commit
any waste or act in the nature of waste or other wilful damage and not
to sell or carry off any stmding crops hay straw or manure produced
or made (if any) upon the premises and which may happen to be there-
upon from the day on which the verdict shall have been given to the
day on which execution shall finally be made upon the judgment or the
same be set aside as the case may be.
136. Recognizances to be taken as other recognizances of ba,il.
Actions on them limited. 15 & 16 Vic. e. 76 s. [216]-ALl recognizances
and securities entered into as last aforesaid shall. be taken respectiyely
in such manner and by and before such persons as the judges shall direct
and shall be filed with the prothonotary for which respectively the sum
of two shillings and sixpence and no more shall be paid but no action
or other proceeding shall be commenced upon any such rec0,Qizance or
security after the espiration of six months from the time when possession
or the pwtniscs or ally part therrof dial1 actually have been de1i.i-ered
to the landlord.
Tho figures in squnra brnclcets in the marginal not(. were subsfit&d for
4tJ267’ hy Tho Avts Shortcniiig Act X~iieiidment Act of 1903, s. 10, title ACTS.

137. Saving of former remedies. 15 & 16 Vie. c. 76 s. 218.-
Sotlii1lg herein vontainccl shall be construed to prejudice 01% affect
any other right of action or remedy which landlords may possess in any
of the cases hereinbefore provided for otherwise than hereinbefore
expressly enacted.
Mortgagor and Mortgagee.
138. In ejectment by mortgagee the mortgagor’s rendering the
principal interest and costs in court shall be deemed a full satisfaction
and the court may compel the mortgagee to re-convey. 15 & 16 Vic.
c. 76 s. 219.-Where an action of ejectment shall be brought by any
iiiortgagee his heirs executors administrators or assignees for the
yecovery of the possession of any mortgaged lands tenements or heredita-
ments and no suit shall be then depending in equity for or touching
the foreclosing or redeeming of such mortgaged lands tenements or
I iereditaiilents if the person having right to redeem such mortgaged
lands tenements or hereditaments and who shall appear and liecome
defendant in such action shall at any time pending snch 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 aiid 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
c2scer-tained land computed by the court or the proper officer in that
hehalf) the moneys so paid to such mortgagee or brought into court
shall be deemed and taken to 1)c in full satisfaction and discharge of
such mortgage
and the court shall aiid may discharge eveyy such iiiort,gagor or
defendant of and from the same accordingly and shall and inay by rule
of the same court compel such mortgagee at the costs and charges of such
mortgagor to assign surrender or re-convey such mortgaged laiids teae-
inents 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 OF
appoint.
Actions of ejectment have nov been replaced by actions for recovery of
land. See R.S.C. (1900), Ora. 6, r. 7, title PRACTICE; GZerZhiZZ v. Hiinter (1880),
14 Ch. D. 492.
This section applies only to cases in which the mortgagee is not iu
possession, and in which he has not attempted to exercise the right of sale
(Stitton v. Rawtings (1849), 3 Exch. 407).
A party applying for assistance of the Court to compel a mortgagee tQ
reconvey the mortgaged premises must be the party entitled to redeem; an
authorised agent is not vithin the provisions of the statute (Doe d. Hurst v.
Clifton (1836), 4 Ad. & El. 809). The Court will not interfere where the right
to redeem is disptited upon the affidavits (Goodtitle d. Fisher v. Bishop (1827),
1 Y. tk J. 344).
AS to what the claim of a mortgagee disputing the right to redeem must
show, see Goodtitle d. Leon v. Lonsdourn (1797), 3 Anst. 937; and Doe d.
Harrison v. Lou& (1849), 6 Dow. & L. 270.
AS to when the claim mzy be made, Bee Jndon P. Chozuns (1840), 8 Dowl.
‘709; and Pilbee v. Hoplcins (1848), 6 DOTV. & L. 264; and as to what payment
by the mortgagor must include, see Goodtitle d. Green v. Notitle (1826), 11
Moore, C.P. 491; and Dowle v. Neale (1862), 10 W.R. 627.
See also Bourton v. William (1870), 5 Ch, App. 665 (payment to attorney
good discharga of mortgagor) ; English and Empire Digest, Vol. 35, pp. 612-613,
Nos. 3495-3508; Halsbury’s Laws of England (2nd e&), Vol. 23, p. 501.

562
ss, 139-143, [Vol. v.
139. Not to extend to cases where the right of redemption is
controverted or the money due not adjusted. 15 & 16 Vic. e. 76 s. 220.
Or to prejudice my subsequent mortgwe,-Nothing herein contained
shall extend to any case where the person against whom the redemption
is or shall be prayed shall (by writing under his hand or, the hand of
his attorney agent or solicitor to be delivered before the money shall
be brought into court 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 preinises are chargeable with other or different
principal sunis 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 asy
snbsecluent mortgage or subsequent encumbrance anything herein
contained to the contrary thereof in anywise notwithstanding.
See notes to 8. 138, ante.
Jwisdicfion of the Court.
140. Jurisdiction of courts and judges. 15 & 16 Vic. e. 76 s. 221.-
The Supreme Court and the judges thereof respectively shall and may
esrrvise

other days for the same as in their judgiiieiit shall be necessary or proper
Provided that nothing herein contained shall be constrned to restrain
the authority or limit the jurisdiction of the said court or the judges
thereof to make rules or orders or otherwise to regulate and dispose of
the business therein.
See now Tho Supreme Court Act of 1921, s. 11, title SUPRENE COURT.
144. Defence by persons not in possession.--%‘he court or a judge
sliall have power to strike out or confine appearances and defciices set
up by persons not in possession by themselves or their tenants.
Coonrnancem eqzt ail cl NioA Title.
145. Commencement of Act. Short title.-This Act shall
coimnence 011 the thirty-firsl clay of Lkcember one ~Iiousilii~ I eight
hundred and sixty-seven and iiiay be wferi~d to as thr ” L)ist~*c.s.s
Rcplsviir aoid Ejrcfmcict Act of lS6‘i.”
SCHEDULE.
The ninrKinul noten to these Scliedules were expunged hy The Acts Shortening: Act
Amendment Act of 1903, S. 10, title ACTS.
NUMBER ONE.
For application of this form, see s. 45, ante.
I AB. of’
Warrant to Distrain.
do hereby authorize you C.D. of
to distrain the goods and chattels in the dwelling-house [OY in and upon the farm
land and premises] of E.P. situate at for 5 being the amount
of rent due to me for the same on the day of last [or instant],
and to proceed thereon for the recovery of the said rent as the law directs.
Datcd this day of A.D. 18 .
NUMBER Tmo.
As to application of this form, see s. 47, ante.
Inventory.
A.B.
[or ,4.B. by his attorney G.H.]
J have this day [if distress made by a bailiff here uild by virtue of the warrant
n copy of which is hereunder written] distrained the following goods and chattels ixi
the dwellinghouse [OY in and upon the farm land and premises] of EA’. situate a?,
for d being the amount of rent duo to me [or if the distress be
mode by U builiff to A.R. of
] for the same on the
last [or instant].
Dntctl this day of A.D.’ 18 .
day of
A.R. lnrtdlord.
[or C.D. bailiff .-I .
[Euuiiierata tho goods and chattels at full length and if distress be iiiade by a bailiff
then insert a copy of tho wanant to distrain.]

564
Schs. [Vol. v.
NUMBER THREE.
As to application of this form, see 8s. 72, 75, uqite.
Plaint in Replevin.
A.B. of [insert place of residencs] complains of C.D. of [insert plam of
-residence] for that the said C.D. did on the
day of
last [or
instant] at [insert place of distress] unlawfully distrain the following goods and
chattels of the said A.B. that is to say [here describe them at full length] for the sum
of [here insert amount distrained for] which the said C.D. alleged to be due to him
for rent.
NUMBER FOUR.
As to application of this form, see s. 72, ante.
Precept to Replevy.
AD. Esquire sheriff of Queensland [or deputy specially appointed by the sheriff
of Queensland or one of Her Majesty’s justices in and for the Colony of Queensland
assigned to keep the peace] To C.D. my bailiff Because E.P. hath found me
Bufficient security as well for rosecuting his suit vith effect against G.H. for taking
his goods and chattels to wit [specifying them] and also for making a return thoreof
if return thereof shall be adjudged therefore I coniinand you without delay to
replevy and deliver to the said E.F. his said goods and chattels which the said Q.H.
hath taken and unjustly detained as alleged Thereof fail not.
Dated this day of A.D. 18 .
A.B. sheriff
[or sheriff’s deputy or justice of the pence].
NUMBER FIVE.
As to application of this form, sec SE. 70. 72, ante.
Replevin Bond.
Know all men by these presents that we J.P. of [place of abode and addition]
C.D. of [place of abode and addition] and L.H. of [ptlc.c of abode and adclition] are
held and firmly bound to A.B. Esquire sheriff of Queensland [or deputy specially
appointed by the sheriff of Queensland or one of Her Majesty’s justices in and for
the Colony of Queensland assigned to keep the peace] in the mm of [insert dmble
the value of the goods and chattels] of lawful money of Great Britain to be paid to
the said A.B. or his certain attorney executors administrators or assigns for which
papent to be made we bind ourselves and each of us our respective heirs executors
and administrators jointly and severally by these presents.
Dated this day of A.D. 18 .
Whereas the above 9.B. upon the complaint of the above J.P. hath consented to
deliver and replevy to the said J.P. the goods and chattels following to wit
[enzmerafe the whole of the property] which J.N. of [@me of abode and ad&tion]
hath taken and wrongfully withheld as the said J.P. alleges.
Now the condition of this obligation is that if the said J.P. do within OnQ
month now next ensuing commence an action against the said J.N. in the Supreme
Court of Queensland or in some competent district court or small debts court or
court of pettv sessions and do prosecute such suit with effect and without delay
against the s&d J.N. for the taking and withholding of the said goods and chattels
and also do make return thereof if return thereof shall be adjudged by law and so
defend and save harmless the said A.B. against the said J.N. and all other persons
from and against all matters and things concerning the premises then this obligation
shall be roid otherwise it is to remain in full force.
signed sealed and delivered ?
in the presence of
J.P.
C.D.
L.H.

565
Distress Rcpleuh and Ejectwent Act of 1867. schs.
NUMBER SIX.
As to application of this form, see ss. 70, 72, urrte.
Assignment of Bond.
Know all men by these )resents that I the within-named A.B. have at the
request of the within-named J.J. [the avowant or pervon making oogni~~ance] assigned
.oyer this replevin bond unto him the said J.N. pursuant to the Act in such case made
and provided In witness whereof I have hereunto set my hand and seal this
day of ia .
Signed sealed and delivered 1
AB. [L.S.]
in the presence of J
NUMBER BETEN.
[Rep. by The Xtatzitc Law Revision Act of 1908, s. 2, title ACTS.]
NUMBER EIGHT.
This form was made applicable by the former S. 86. That section was repealed
by The Statute Law Revision Act of 1908 (title ACTS) but this Schedule has not been
repealed.
Ipswich 1
to wit. )
The
Confession.
In the Puprerne Court of Queensland.
day of A.D. 18 .
[Date of zc~it.1
On the day and year abova written a writ of Our Lady the Queen issued forth
of this court in these words that is to say-
Victoria by the grace of God [here copy the writ] and C.D. has on the
day of appeared by
his attorney [or in person] to the said
writ and the said C.D. has confessed the said action [or has confessed the said action
8s to part of the said land that is to say (here stcte the part)] Therefore it is
considered that the said A.B. do recover possession of the land in the said wit
mentioned [OY of the said part of the said land] with the appurtenances and
pounds for costs.
NUNBETCS KINE TO TWELVE.
[Rep. by The Statute Law Revision Act of 1908, s. 2, title ACTS.]
NUMBER THETEEN.
This form was applied by the repealed s. 114.
Wiscontinzcanw.
In the Supreme Court of Queensland.
Brisbane? On the day of A.D. 18 .
to wit. ) [Date of writ.]
On the day and year above written a writ of Our Lady the Queen issued forth
of this court in these words that is to say-
Victoria by the grace of God [hers copy the writ] and C.D. has on the
day of appeared by
his attorney [or in persoa] to the said
writ and A.B. has discontinued the action Therefore it is considered that the said
C.D. be acquitted and that he recover against the said A.B. pounds for his
costs of defence.
NUMBERS FOURTEEN AND FIFTEEN.
[Rep. by The Statute Law Bevision Act OJ' 1908, 8. 2, title ACTS.]