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"the authority and according to the mode prescribed in this "act; and if the tenant or occupier shall not thereupon appear "at the time and place appointed, and shew to the satisfaction "of the justices hereinafter mentioned, reasonable cause why pos"session should not be given under the provisions of this act, " and shall still neglect or refuse to deliver up possession of the premises, or of such part thereof of which he is then in posses"sion, to the said landlord or his agent, it shall be lawful for "such landlord or agent to give to such justices proof of the holding and of the end or other determination of the tenancy, with "the time or manner thereof, and where the title of the landlord "has accrued since the letting of the premises, the right by which "he claims possession, and upon proof of service of the notice, "and of the neglect or refusal of the tenant or occupier, as the case may be, it shall be lawful for the justices acting for the "district, division, or place within which the said premises, or any "part thereof, shall be situate, in petty sessions assembled, or any "two of them, to issue a warrant under their hands and seals to the "constables and peace officers of the district, division, or place "within which the said premises or any part thereof shall be situ"ate, commanding them within a period to be therein named, not "less than twenty-one or more than thirty clear days from the date " of such warrant, to enter (by force if needful) into the premises, "and give possession of the same to such landlord or agent: Pro"vided always, that entry upon any such warrant shall not be made on a Sunday, Good Friday, or Christmas Day, or at any time ex"cept between the hours of nine in the morning and four in the "afternoon: Provided also, that nothing herein contained shall be "deemed to protect any person on whose application and to whom << any such warrant shall be granted from any action which may be "brought against him by any such tenant or occupier, for or in "respect of such entry and taking possession, where such person "had not, at the time of granting the same, lawful right to the pos"session of the same premises: Provided also, that nothing "herein contained shall affect any rights to which any person may be entitled as out-going tenant by the custom of the coun"try or otherwise 1."

And also, "that such notice of application, intended to be "made under this act may be served either personally or by "leaving the same with some person being in and apparently re

1 Sect. 1.

2.Sect. 2.

* Sect. 3.

46

siding at the place of abode of the person so holding over as aforesaid, and that the person serving the same shall read over "the same to the person served or with whom the same shall be "left as aforesaid, and explain the purport and intent thereof: “Provided that, if the person so holding over cannot be found, "and the place of abode of such person shall either not be known or admission thereto cannot be obtained for serving such summons, the posting up of the said summons on some conspicuous "part of the premises so held over shall be deemed to be good "service upon such person 1."

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And also, "that in every case in which the person to whom any such warrant shall be granted had not, at the time of grant"ing the same, lawful right to the possession of the premises, the obtaining of any such warrant as aforesaid shall be deemed a "trespass by him against the tenant or occupier of the premises, although no entry shall be made by virtue of the warrant; and "in case any such tenant or occupier will become bound with two "sureties as hereinafter provided, to be approved of by the said "justices, in such sum as to them shall seem reasonable, regard being had to the value of the premises and to the probable costs "of an action, to sue the person to whom such warrant was grant"ed with effect and without delay, and to pay all the costs of the "proceeding in such action in case a verdict shall pass for the

66

defendant, or the plaintiff shall discontinue or not prosecute "his action or become non-suit therein, execution of the warrant "shall be delayed until judgment shall have been given in such "action of trespass; and if, upon the trial of such action of trespass, a verdict shall pass for the plaintiff, such verdict and judg"ment thereupon shall supersede the warrant so granted, and "the plaintiff shall be entitled to double costs in the said action " of trespass 2."

And also, "that every such bond as hereinbefore mentioned "shall be made to the said landlord or his agent, at the costs of "such landlord or agent, and shall be approved of and signed by "the said justices; and if the bond so taken be forfeited, or if, upon the trial of the action for securing the trial of which such "bond was given, the judge by whom it shall be tried shall not "indorse upon the record in court that the condition of the bond "hath been fulfilled, the party to whom the bond shall have been so made may bring an action, and recover thereon: Provided

66

RECOVERY OF POSSESSION.

always, that the court where such action as last aforesaid shall "be brought may, by a rule of court, give such relief to the par

"ties upon such bond as may be agreeable to justice, and such rule

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shall have the nature and effect of a defeasance to such bond1." Sect. 4. And also, "that it shall not be lawful to bring any action

or prosecution against the said justices by whom such warrant as aforesaid shall have been issued, or against any constable or peace officer by whom such warrant may be executed, for issuing such warrant or executing the same respectively, by reason "that the person on whose application the same shall be granted "had not lawful right to the possession of the premises 2."

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And also," that where the landlord, at the time of applying "for such warrant as aforesaid, had lawful right to the possession "of the premises, or of the part thereof so held over as aforesaid, "neither the said landlord nor his agent, nor any other person

acting in his behalf, shall be deemed to be a trespasser by reason "merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of this "act, but the party aggrieved may if he think fit bring an action "on the case for such irregularity or informality, in which the

damage alleged to be sustained thereby shall be specially laid, "and may recover full satisfaction for such special damage, with "costs of suit: Provided that, if the special damage so laid be "not proved, the defendant shall be entitled to a verdict, and "that if proved, but assessed by the jury at any sum not exceed'ing five shillings, the plaintiff shall recover no more costs than damages, unless the judge before whom the trial shall have "been held shall certify upon the back of the record that in his opinion full costs ought to be allowed 3."

And also," that, in construing this act, the word 'premises' "shall be taken to signify lands, houses, or other corporeal here"ditaments; and the word 'person' shall be taken to compre"hend a body politic, corporate, or collegiate, as well as an indi"vidual; and that every word importing the singular number shall, "where necessary to give full effect to the enactments herein "contained, be deemed to extend and be applied to several per"sons or things as well as one person or thing; and that every "word importing the masculine gender shall, where necessary, ex"tend and be applied to a female as well as a male; and that the "term landlord' shall be nnderstood as signifying the person

* Sect. 5.

& Sect. 6.

Sect. 7.

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"entitled to the immediate reversion of the premises, or, if the property be held in joint-tenancy, coparcenary, or tenancy in "common, shall be understood as signifying any one of the persons "entitled to such reversion; and that the word 'agent' shall be "taken to signify any person usually employed by the landlord in "the letting of the premises or in the collection of the rents thereof, or specially authorized to act in the particular matter by writing under the hand of such landlord1."

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SECT. 6.-OF MERGER.

The subject of merger has already been several times incidentally adverted to. Questions of the greatest difficulty and of the most frequent occurrence with respect to this subject have arisen upon the merger of terms for years; and, therefore, the detailed examination of it has been referred to this place. Merger is a conclusion of law, founded upon the consideration, that where two estates, of different quantities, become united in the same person, in the same right, as a term of years and an estate for life, the former sinks or merges in the latter, the ownership of a larger estate necessarily carrying with it all the rights and privileges of the less. There are various other legal conclusions of an analogous character, but which, nevertheless, on examination, will be found to be marked by distinctive attributes. Extinguishment,' for example, a term applied to that operation of law by which, on the union of two estates of different quantities, some collateral right or matter becomes extinguished; as where lord of a manor, tenant for life, purchases and takes a conveyance to himself of a copyhold tenement, held of him as such lord: two operations take place; first, the copyhold of inheritance, on principles already explained2, merges in the estate * Ante, p. 169. for life of the lord of the manor; and, secondly, the customary estate being destroyed by this operation, the services due to the lord in respect of it, are extinguished 3. So, again, if tenant Roe v. Wigg, in fee, subject to a rent-charge, afterwards acquire the rentcharge, the rent-charge is extinguished. So, again, a person being the owner of an estate subject to an interesse termini, by a release of the interesse termini to such owner it becomes extinguished. In all these cases it will be seen, that

6 T. R. 708.

while the operation of merger consists in one estate being destroyed by its union with another, the term extinguishment applies only to the destruction of some collateral matter, as services or pay ments, which are to be performed or made in respect of an estate, and not of the estate itself. The term suspension' again applies to some collateral matter, as services; by which, in consequence of the right to the lands and the right to the services being for a term united in one person, the services become suspended during that period1. So again, as to implied surrenders;' as where the lessee of a term before its expiration takes a new lease, to commence immediately, the conclusion of law is, that the former lease was surrendered before the new one was granted; in other words, the former lease, instead of being considered as merging in the latter, is in legal presumption put an end to before it commences, for otherwise the second lease could not have been granted.

To return to the subject immediately before us, merger arises where two vested estates meet, without any intervening estate, in the same person in the same right; in such a case, the less estate merges or becomes annihilated in the larger; and the same effect will take place where they meet in different rights, when the union is brought about by the act of the party; as if A. be possessed of a term of years, and the inheritance should descend upon or be conveyed to him, the term would merge in the inheritance: so, if a tenant for years grant an underlease, and afterwards assign his term, and the assignee take a conveyance of the fee, his reversionary interest in the term is merged; and the covenants incident to that reversionary interest are thereby extinguished 2. The doctrine of merger applies not only to lands of freehold, but to copyholds and other tenures 3; and not only to the entirety but to undivided parts of the estate: as, if a term be assigned to one of several joint tenants of the inheritance, the joint tenancy will be severed, and the undivided part of the term corresponding with his undivided share of the inheritance will merge in it 4. So, "when the reversion descendeth to one joint tenant for life, or one joint tenant for life purchaseth the reversion, the jointure is severed, and the estate for life determined 5." And the same conclusion would manifestly follow where the reversion was purchased by, or descended upon, one of several joint tenants of a term.

When two estates meet in the same person in the same right,