uOl- DISTRESS AN AFFIRMATION" OF TENANCY. 



statute 4 Geo. 11. c. 28, s. 2, for which the 210th section of the Common 

 Law Procedure Act is substituted, enables a landlord to proceed under 

 it only in cases where there shall be half-a-year's rent in arrear, and a 

 right to re-enter for the non-payment thereof, i.e. for non-payment of 

 half-a-year's rent, see {Doe dcm. Dixon v. Hoc, 7 C. B. 134). In the 

 present case, therefore, no right to re-enter in respect of the rent due 

 for the half-year which ended at Michaelmas could be relied on, because 

 it never was in arrear for 21 days. But it was contended that at all 

 events a complete title accrued on the 21st day after the Midsummer 

 rent became due, and Doc v. tShanrross (3 B. & C. 752) was cited." 



" That case certainly shows that in cases to which the Act applies, 

 the title accrues at the time when the demand of the rent ought to have 

 been made at common law. But the statute authorises the service of 

 the writ ' as often as it shall happen that one half-year's rent shall be in 

 arrear ; ' and in the present case, there was no such arrear at the time 

 the writ was served. The case therefore is not within the Act, unless 

 the words ' shall be ' ought to be construed 'shall have been.' But there 

 is nothing unreasonable in supposing that the statute meant to confine 

 its operation to cases where the tenant was six months in arrear at the 

 very time when the landlord had recourse to this statutory remedy. It 

 is not, however, necessary for us to decide this point, because we are 

 clearly of opinion that the plaintiflF waived any breach of the conditioii 

 of re-entry, which accrued earlier than Michaelmas, by distraining for 

 the Michaelmas rent. Had the distress been confined to the rent due 

 at Midsummer, it would not have waived the forfeiture for the non-pay- 

 ment of that rent, as appears by the case of Brewer v. Eato7i (3 Doug. 

 230), which was cited for the plaintiffs. But the distinction is plain, 

 that though a distress in respect of rent due accruing before the breach 

 of condition is no waiver of it, yet a distress for rent accruing after such 

 breach, with notice of it, is a waiver of it, because such a distress 

 affirms and admits the continuance of the tenancy up to the day when 

 the rent so distrained for became due. If it were otherwise the plaintiffs 

 would by this action establish their right to the possession of the 

 demised premises, and to deal with the defendant as a trespasser at a 

 date anterior to Michaelmas, although the plaintiff's by their distress 

 have treated the defendant as having been rightfully in possession as 

 tenant up to that date " {Cotesivorth and Another v. Spokes). 



Sheriff not enlitled lo immdaije. — Where after seizure of goods under 

 writ of execution, but before mle, the judgment and subsequent proceed- 

 ings are set aside for irregularity, and the goods are therefore not sold, 

 the sheriff is not entitled to poundage {Miles v. Harris). 



Measure of damages in case of trespasser at) initio. — AVhere a landlord 



