William Woodfall.

Woodfall's Law of landlord and tenant (Volume 2) online

. (page 44 of 54)
Online LibraryWilliam WoodfallWoodfall's Law of landlord and tenant (Volume 2) → online text (page 44 of 54)
Font size
QR-code for this ebook

thereof, exceeds 20L, and in all actions and proceedings where
the sum claimed exceeds 20Z."

Appeal in other cases. — The 14th section of the 13 & 14
Vict. c. 61 (referred to in the above enactment) is as follows :
— " And be it enacted, that if either party in any cause of the
amount to which jurisdiction is given to the County Courts
by this act shall be dissatisfied with the determination or di-
rection of the sai?d court in point of law or upon the admis-
sion or rejection of any evidence, such party may appeal from
the same to any of the superior courts of common law at
Westminster : provided that such party shall, toithiii ten days
after such determination or direction, give notice of such
appeal to the other party, or his attorney, and also give secur-
ity, to be approved by the clerk of the court (Oi f<^i' the costs
of tlie appeal, whatever may be the event of the appeal, and

(s) Now "exceeding 10/." if the (t) Now called the registrar ; 19 St,

action be brought in a superior court ; 20 Vict. c. 108, s. 8.
30 & 31 Vict. c. 142, s. 5.



for the umouiit of the judt^iiiciil if lie he the (h-ft'iidaiil, iiiid
the appeal he (» ) : piovideil, iieveitheh'ss, that siu-h
seeuiity, so far as regards the amount of the judgment, sliall
not be required in any case where the; judge of the
County Court shall have * ordered the jiirty appeal- [*S22]
ing to pay the amount of sueh judgment into the
hands of the clerk of the County Court (r) in which such
action shall have l)een tried, and the same sliall have Ikjcu
paid accordingly ; and the said Court of Appeal may either
order a new trial on such terms as it thinks lit, or may order
judgment to be entered for either party, as the i-asc may l)e,
and may make order with respect to the costs of the said
appeal, as such court may think proper; and such oi-dt'i-s shall
he tinal."

Appeal in the form of a special case. — By l'> iV 14 \ ict. c.
61, s. 15, '"•such appeal shall be in the form of a case agreed
on by both parties, or their attornies, and if they cannot agree,
the judge of the County Court, upon l)eing applied to by
them or their attornies, shall settle the case and sign it, and
such case shall be transmitted by the appellant to the rule
department of the master's office of the couit in which the
appeal is to be brought."

Appeal by motion. — By the County Courts Act, 1875 (38
and 39 Vict. c. 50), s. (3, the appeal may be by motion and
rule nisi, which, when no court is sitting to hear such api)eals,
may be obtiiined at chambers.

This section applies to appeals undci' 1!' v*s: '20 N'itt. c 108,
s. 00 (.r).

Where no appeal by consent. — By 10 *!V: 'iO X'ict. c. lOS, s.
69, "no ap})cal shall lie from the decision of the County
Court, if l)efore such decision is pronounced both parties
shall agree, in writing signed by them.selvcs or tlieir attornies
or agents, that the decision of the judge shall be fmal : and
no such agreement shall ic(iniie a stamp."

(it) As to liow far tlic giving of {<•) Now calleil the registrar; !'.•

suoli security is a comlitioii precedent, & 20 Vict. c. 108, s. S.

without compliance with whicli the (.r) As to the practice on such ap-

court cannot entertain the appeal, peals, see C. C. Rules, Nos. 180 —

sec Francis v. Dowdeswell, L. K-, 107.
C. P. 42;), and the cases there cited.



(vii.) Equitable Defences and Counter-claims and other


With regard to equitable defences and counter-claims, as
well as to the peculiarities in the County Court Rules relat-
ing to actions for the recovery of land, these matters will be
found fully considered under the next head — that of " Or-
dinary Action in County Courts " (3/).

(viii.) Fees.

By the Treasury Order of 26th October, 1875, made in
pui'suance of the County Court Acts of 1856, 1865, 1867 and
1875, &c., the following fees (amongst others) may be taken
in the County Courts : \

For every plaint — one shilling in the pound.

Where the claim or demand exceeds forty shillings, and
the summons is to be served by bailiff, an additional
fee of one shilling.

Where in any case the number of defendants shall
exceed three, an additional fee of one shilling for each
defendant above three.
[*823J * For every hearing — two shillings in the pound. An
additional hearing fee shall be taken for every new

For issuing every warrant to deliver possession of tene-
ments — eighteenpence in the pound.

In plaints for the recovery of tenements when the term
has expired or been determined by notice, all pound-
age except as aforesaid (i.e. except where otherwise
specified in this schedule) shall be estimated on the
amount of the weekly, monthly, or yearly rent of the
tenement, as such tenement shall have been let by the
week or month, or for any longer period; and if no
rent shall have been reserved, then on the amount of
the half-yearly value of the tenement, to be fixed by
the registrar.

{y) Post, 823.



Where a claim for iviit or inesiit' profits, or holh i.s iuldud
to a i)laiiit lor the recovery of a tenement^ an additional
pounda^-e shall he taken on the anionnt or amounts so
ckinied, hut where tlicrehy the totd amount on whifrh
poundage would he taken shall exeeed twenty j)onnds,
the poundage shall he estimated on twenty jtonnds

In phiints for the recovery of tenements for non-payment
of rent, all poundage, exeept as aforesaid, shall he esti-
mated on the amount of the half-yearly rent of the

Where a counter or other claim is made under Order X.
of the County Court Rules, 1875, the same fees shall
be taken as upon the entry and hearing of a plaint.

In the above cases, where the poundage would, but for
tills direction, be estimated on an amount exceeding
twenty pounds, it shall be estimated at twenty pounds

In every case where the poundage cannot be estimated
by any rule in this schedule, it shall be estimated on
twenty pounds.

All fractions of a pound, for the purpose of calculating
poundage, shall be treated as an entire pound'.

No increase of fees shall l)e made by reasf)n of there
being more than one plaintiff or defendant, except as
before directed, where the number of defendants ex-
ceeds three.

(c) Ordinary Action in County Courts.

Ejectment -where neither annual value nor rent exceeds 20l. —
By sect. 11 of the County Couits Act, IbGT i^z), "All actions
of ejectment, where neither the value of the lands, tenements,
or hereditaments, nor the rent payable in resj)ect
thereof, shall exceed the * sum of 20/. by the year (a), [*824]
may be brought and prosecuted in the County Couit

(s) 30 & 31 Vict. c. 142. such fine or premium may tend to

(o) Wiietlier any fine or premium show that tlie annnnl value for the
shall have heen paid or not ; but any time being exceeds 20/.



of the district in wliicli the liiiids, teiu'iiieuts, or hereditaments
are situate " (^0-

Notice, under Conveyancing Act, before proceeding for for-
feiture. — If the action be for a forfeiture caused otherwise
than by non-pajmient of rent, it must be preceded by the
notice under sect. 14 of the Conveyancing Act already set
out (ante, p. 797), but the County Court has no power to
grant relief against forfeiture under that act, and if the par-
ties do not come to terms the tenant will not be able to obtain
relief in the landlord's action in the County Court, but must
brino' an independent action of his own in the High Court.

Appeal in ejectment, &c. — By sect. 13, " An appeal from
the decision of a C'ounty Court on the same grounds, and
subject to the same conditions as are provided by the section
14 of the act [13 & 14 Vict. c. 61] (c), shall be allowed in
all actions of ejectment, and in all actions in which the title
to any corporeal or incorporeal hereditament shall have come
in question, and, with the leave of the judge, an appeal shall
be allowed in actions in wliich an appeal is not now allowed,
if the judge shall think it reasonable and proper that such
appeal should be allowed."

Appeal by motion. — There will also be a right to appeal
by motion under the County Courts Act, 1875 (t^).

The " rent payable " means as between the litigant parties,
and not any rent that may be paid by a sublessee («), though,
if tlie latter rent exceeds 20Z. that would be strong prima facie
evidence that the annual value exceeds 201. The "annual
value " means the actual marketable value per annum ; and
of this the rent at which the property would let from year to'
year to a suitable tenant is a fair criterion (f). The annual
value means the annual value of the property itself, and not
of the interest therein of either of the parties ; so that if a
ground-rent be payable thereout to a superior landlord, such
ground-rent must not be taken into consideration, or deducted

(h) By sect. 12 of the same act, (c) Ante, 822.

the County Courts have a like juris- (d) See ante, 822.

diction to try any action in wliich (c) Brown v. Cocking, L. R., 3 Q.

title to land comes in question, wlicre B. 072 ; 37 L. J„ Q. B. 2.50.
neither the value nor the rent exceeds (/) Elston v. Rose, L. R., 4 Q. B.

20/. by the year. 4 ; Re Helstone, 38 L. J., Q. B. 6.



in estimating the annual value of the pioiuaty (./'). It is to
be oUseived, that neither the annual value nor the annual
rent may exeeed 20/., otherwise the County Court will have
no jurisdiction under this act.

County Court Rules of 1875. — The RcLlCS, OUDEUS, and
Forms, of proceedings in the County Courts which are now
(1886) in force came into operation on the 2nd of November,

* County Court Rules, Ord. XXXVII. r. 25. — Hy C. [*825]
C. Rules, Ord. XXXV'II. r. 25, " Wiiere an action
can be brought to recover possession under the provisions of
the County Comls Act, 1856, no action shall l)e brought un-
der the County Courts Act 1867.'" This rule re-enacts lule
255 of the County Court Rules of 18(i8 (g).

In "what excepted cases ordinary action of ejectment may be
brought. — The eii'ect of the above rule seems to be, that the
orditiary action of ejectment cannot be maintained in the
County Court hy a landlord against a tenant^ except when
the following circumstances concur, viz. : — 1. Neither the
value of the property nor the rent payable in respect thereof
shall exceed 20Z. by the year (K). 2. It nuist not be a case of
" holding over," after the term has expired, or been deter-
mined by a legal notice to quit, given by either party ; uidess, in-
deed, there was a fine or premium paid for the lease (/).
3. It must not be for non-payment of rent (A-), whethei- a line
or premium was paid for the lease or not.

In these excepted cases, the landlord must follow the
special procedure marked out by the County Courts Act,
1856, and the practitioner nuist refer to the New County
Court Rules and P'orms before mentioned (Z), or to some
County Court practice published in or since the year 1875.

Joinder of parties. — To return to the ordinary action under
the Act ot 18«)7. — By Ord. V. r. 10 of the C. C. Rules, it

(<7) A doubt lias arisen (see the to whidi objection was taken was

previous eilition of this work) whether liehl valid. But it is conceived that

this rule is consistent- with .jO & .31 the rule is quite valid, inasmuch as it

Vict. c. 131, s. 11 (823, ante). If in- deals with practice only. See 1!) &

consistent, the rule would not be 20 Vict. c. 108, s. .32.
valid. See Irving r. Askew, L. R., 5 {h)Ante,S2^. (^k)Antr,m\\.

Q. H. 208, where, however, the rule (/) Ante, 810. (/) Ante, 824.



is provided that " all persons in wliom title is alleged must be
joined as plaintiffs, and tlie person or persons alleged to be in
possession or apparent possession must be defendants." Mis-
joinder of })arties will not, however, defeat the aetion (Ord.
XVII. r. 12).

Of causes of action. — By Ord. VI. r. 1, " No cause of action
shall, unless by leave of the judge, be joined with an action
for the recovery of land, except claims in respect of mesne
profits, or arrears of rent in respect of the premises claimed or
any part thereof, or damages for breach of any contract under
which the same or any part thereof are held."

Joinder of other causes of action. — And by Rule 7 of the
same Order, " If at any time it appears, or is made to appear,
to the court that the causes of action united, or claims joined,
in any action cannot be conveniently tried and disposed of to-
gether, it may order separate trials, or may exclude any such
cause of action or claim, and may order the particulars to be
amended accordingly and may make such order as to costs as

may be just."
[*826] * Description of property. — By Ord. VII. r. 5,
" Where the action is brought under sect. 11 of the
County Courts Act, 1867, to recover any lands, the plaintiff
shall at the time of entering the plaint file a statement in writ^
ing containing a full description of the property sought to be
recovered and of the annual value thereof, and of the rent, if
there be any, fixed or paid in respect thereof."

Delivery of summons to bailiff. — By Ord. VIII. r. 7, " The
summons in an action brought under sect. 11 of the County
Courts Act, 1867, to recover lands, shall be delivered to the
bailiff forty (m) clear days at least before the return-day,
and shall be served thirty-five clear days before the return-day

Service in case of vacant possession. — By Rule 20 of the
same Order, " Where the action is to recover any lands or
tenements the summons may, in case of vacant possession, or
if the defendant cannot be found and his place of abode shall
not be known, or admission thereto cannot be obtained for

(m) It is necessary to give this himself of sect. 12 of 30 & 31 Vict,
time to enable a defendant to avail c. 142.



servinc^ the suininoiis, l)e served l»y itostinjr a coj)y of sucli
summons upon the door of the dwelling-house or otlier con-
spicuous part of the property, and such aflixing shall he
deemed good service on the defejidant."

Appearance by person not summoned. — By Oi'd. IX. r. 3,
''Any person not summoned ;us a defendant may, hy leave of
the registrar, api)ear and defend on filing an allidavit (with
a copy for each plaintiff and defendant) twelve clear days
before the return-day, that he is in possession, l)y himself
or tenant, of the property or part thereof therein described ;
whereupon the registrar must enter the name, &c., of such
pei-son in the j)laint book as an additional defendant, and send
a notice, with a copy of the affidavit annexed, of such entry
to the plaintiffs and original defendants ten clear days before
the return-day."

Limitation of defence to part. — By Rule 4 of the same
Order, " Wliere a defendant desires to limit his defence to a
part only of the property sought to be recovered, he may give
notice in \vTiting, signed by himself or his solicitor, to the
registrar, tAvelve clear days before the return-day, and send
the same by post to the plaintiff or plaintiffs."

Equitable defence. — A defendant may rely on any equi-
tiiblc ground of defence against the i)laintiff's claim, in wliieh
case he must, five clear days before the return-day. iile a state-
ment of the grounds he so relies on (w) ; or he may make any
counter-claim against the plaintiff, in which case he must iile
a concise statement of the counter-claim seven clear days be-
fore the return-day (o). There is no rule, such as applies to
joinder of causes of action by a plaintiff, forbidding any
counter-claim whatever to be set uj) in an action for
the recovery of land: but })rol)ably * if such wjis not [*H27]
connected with the plaintiff's claim, it would always
be ordered to be tried sej)arately (/>).

Discontinuance of action by plaintiff. — Bv ()rtl. XX.W II.
r. 28, '' Where the plainlilf is desirous eitliei- of abandiMiing
the action altogether or in respect of some poi'tion of tlu' pro[i-
erty, he may give notice to the registrar and to the defendant
by post; and after the receipt of such notice, the defendant
(n) Ord. IX. r. 15. (o) Ord. X. r. 1. (/<) Ord. VI. r. 7 ; Ord. X. rr. 2, 3.



may apply for an order against the plaintiff for the costs in-
curred before the receipt of such notice and of attending the
court on the return-day to obtain such order."

Discontinuance of action for same cause in other court. — It
was held, in Bissill v. Williamson (^y), that the pendency of
an ejectment in one of the superior courts was not a bar to
the plaintiff's proceeding in the County Court, under 19 &
20 Vict. c. 108, for recovery of possession. But now, by Ord.
XVI. r. 10, " where at the return-day it shall appear that an
action for the same cause, at the suit of the same plaintiff", is
pending in any other court of record, the court shall order
the plaint to be struck out, unless the plaintiff shall under-
take to discontinue the action in such other court, before a
day to be named, to which such trial shall be adjourned, and
unless before such adjourned trial such action shall have been
discontinued, the plaint shall then be struck out."

Confession of action by defendant. — By Rule 24 of Ord.
XXXVII., '•' Any defendant nia}^, at any time before the re-
turn-day, confess the action, as to the whole or any part of
the lands, by signing, in the presence of the registrar or
one of liis clerks or a solicitor of the Supreme Court, and at-
tested by the person in whose presence it is signed, an ad-
mission of the title of the plaintiff to the lands or to the said
part thereof, and of his right to the possession thereof ; and
the registrar shall, upon the receipt of such admission,
forthwith give notice thereof by post to the plaintiff, and the
judge may, on the return-day, upon proof of the signature of
the defendant or defendants to such admission by affidavit or
otherwise, in case the same is not attested by the registrar or
clerk, and without any further proof of the plaintiff's title
(if no defendant other than the defendant signing such admis-
sion defends for the said lands or the said part thereof) give
judgment for the plaintiff for the recovery of possession and
costs ; provided, that if the plaintiff receive notice of such
admission before the return-day, he shall not be entitled as
against the defendant or defendants signing to any costs in-

{q) 31 L. J., Ex. 181 ; 7 H. & N. ty Courts is derived from the County
391. The power to make rules "for Courts Act, 1856 (19 & 20 Vict. c.
regulating the practice " of the Coun- 108), s. .32.



curred subsequently to tlif receii)t of such uotico, except the
costs of iittendiiii; the court ou the ivturu-ihiy, unless the
judge shall otherwise order; provided ulso, that wiiere the
admission is not signed by all the defendants defending for
the said lands or the said part thereof the trial shall
* proceed against these non-admitting defendants as [*828]
if no admission had been signed."

A tenant served with a summons for the recovery of land,
where the claim is inconsistent with tlu; title of his land-
lord (/•), should give notice to his landlord, to avoid the risk
of being subject to the penalties imposed by sect. 209 of the
Common Law Procedure Act, 1852.

Jury. — By Ord. XVI. r. 3, "Actions for the recovery of
laud or tenements . . . may, at the instance of either party,
be tried by a jury."

Judgment. — IJy Ord. XA'^IIl. r. 8, " \Miere in an action
brought under sect. 11 of the County Courts Act, 1867, to
recover land . . . the title of the plaintiff sliall appear to
have existed, as alleged in the summons, at the time of entry
of the plaint, but to have expired before the return-day, the
plaintiff shall be entitled to judgment according to the fact
that he was so entitled, and for his costs of suit, unless the
court shall otherwise order." Ky Rule of the same order,
where in a similar action '■'■ judgment is given for the plaintiff,
execution may issue upon a. day to be named in the judgment,
and if no day be named then it may issue after the expiration
of fourteen clear days fiom the day on whicli judgment shall
have been given." By Rule 10, where "judgment ha.s been
obtained for the recovery of possession ami costs, there may
be either one warrant or separate warrants for the recovery
of possession, and for the costs, at the election of the plain-
tiff." And by Rule 11, where "judgment is given for the
defendants or any of them with costs, executions may issue
for the costs against the plaintiffs upon a day to be named in
the judgment, and if no day be named then it may issue after
the expiration of fourteen clear days from the day on which
judgment shall have been given."

By Ord. XIX. r. 29, "Where an order has been made in
(r) Buckley .-. Buckley, I T. U 047.



any action or proceeding for the delivery up to any person of
lands or tenements . . . the registrar shall, upon the appli-
cation of the person entitled to such possession, issue to the
bailiff either a warrant of possession or warrant of assistance,
as the case may require."

Costs. — By Ord. XXXVI. r. 10, " Costs in actions for the
recovery of tenements . . . may, where the fees of court are
paid on 51. and upwards, be allowed to solicitors upon the
scale applicable to actions on contract where the amount
claimed exceeds 20?., if the judge shall so order."

Except in so far as is specially directed by the above rules,
actions of ejectment in the County Courts will follow the
ordinary rules in other actions in these courts.

[*829] * Sect. 4. — Proceedings before 'Justices.

(a) Recovery of Small Tenements wrongfulhj held over.

Where term not more than 7 years, &c. — In order to save
the landlords of small tenements the expense and delay of a
proceecHng by ejectment to recover possession, where a tenant
refuses to quit at the determination of his interest in the prem-
ises, the statute 1 & 2 Vict. c. 74, sect. 1, enacts, that " when
and so soon as the term or interest of the tenant of any house,
land or corporeal hereditaments held by him at will, or for
any term not exceeding seven years., either without being liable
to the payment of any rent, or at a re7it not exceeding the rate
of twenty 'pounds a year., and upon which no fine shall have
been reserved or made paj^able, shall have ended, or shall
have been duly determined by a legal notice to quit or other-
wise, and such tenant, or (if such tenant do not actually oc-
cupy the premises, or only occupy a part thereof) any person
by whom the same, or any part thereof, shall be then actuall}^
occupied, shall neglect or refuse to (piit and deliver up pos-
'session of the premises, oi- of such part thereof respectively, it
shall be lawful for the landlord of the said premises, or his
agent, to cause the person so neglecting or refusing to quit
and deliver up possession to be served (in the manner herein-
after mentioned) \\A\h a written notice in the form set forth



ill the schedule t(t this ;u-t («), signed Wy the; said landlord or
liis agent, of his intention to proceed to recover possession
under the authority and aceoiding to tlu^ mode; picserihed in
this act; and if the tenant or oeeupier shall not thereuj)on aj*-
pear at the time and plaee ap[)ointed, and show to th(^ satis-
faction of the justices hereinafter mentioned reasoiiahle cause
wliy possession should not he given under the jirovisions of
this act, and shall still neglect or refuse to deliver up ])osses-
sion of the premises, or of such part thereof of which he is
then in ])ossession, to the said landlord or his agent, it shall
he lawful for such landloi'd or agent to give to such justices
proof of the holding and of the end or other determination of
the tenancy, with tlu; time or niaiuiei- thereof; and where tlu;
title of the hmdlord has acciued since the letting of the ])rem-
ises, tlu! right hy which he claims the [)ossession ; and upon
proof of service of the notice, and of the neglect or refusal of

Online LibraryWilliam WoodfallWoodfall's Law of landlord and tenant (Volume 2) → online text (page 44 of 54)