contract, and the defendant offered to go into the whole account, taking in both demands as devisees and executors, having just allowances; which the lessors of the plaintiff refused. The rule was made absolute to stay proceedings on payment of the rent due to the lessors as devisees, and costs (a).

An insertion in the proviso of a lease, that the right of re-entry shall accrue upon the rent being lawfully demanded, will not render a demand necessary if there be no sufficient distress; for it is only stating in express words, that which is in substance contained from the principles of the common law in every proviso of this nature (b).

In moving for judgment upon a declaration in ejectment delivered, or (in case of no tenant) affixed to the premises, according to the statute, the Courts require an affidavit that half a year's rent was in arrear before declaration served, that the lessor of the plaintiff had a right to re-enter, that no sufficient distress was to be found on the premises countervailing the arrears of rent then due, that the premises were untenanted, or that the tenant could not be legally served with the declaration (as the case is), and that a copy of the declaration was affixed on the most notorious (stating what) part of the pre. mises: else the Court will not grant a rule for judgment. This affidavit is necessary only upon moving for judgment against the casual ejector, or after a nonsuit at the trial for the tenant's not confessing lease, entry, and ouster.

For, if the tenant appear, and the ejectment come to trial, the matters averred in the above affidavit must be proved upon the trial (b).

Note. The affidavit is necessary only in proceeding under the statute, but not on the common law proceeding (b).

The declaration in ejectment is prepared in the usual way, taking care to lay the demise after the forfeiture accrued (c).

The late tenant or other person, claiming title to the premises, has the same time to appear in as is allowed to tenants in possession (c). After appearance the proceedings are the same as in other cases; therefore in case of no appearance, the plaintiff moves for judgment against the casual ejector on the affidavit above-mentioned, and proceeds as in ejectments at common law (d).

Thus, where the case comes within the statute, there is no occasion for the landlord to make an actual entry and seal a lease on the premises: which, as we have before shewn, must be done in all other cases, where the premises are untenanted, nor is there any occasion to

(a) Duckworth d. Tubley v. Tunstall. Barn. 184. 2 Sell. Pract. 211.

(b) Doe d. Scholefield v, Alexander. 2 M. & S. 525.

(c) Doe d. Hitchin v. Lewis. I Burr. 614-16.

(d) 2 Sell. Pract. 212,

prove at the trial any actual entry or ouster; for if the defendant appear, the common consent-rule is sufficiently binding (a).

The affidavit will in some cases be presumed; as after a long and quiet possession.

Thus where an ejectment was brought by a landlord against his tenant, under this statute, and judgment was had against the casual ejector by default, and possession thereupon delivered, and nearly twenty years after, the tenant brought an ejectment against the same landlord for the same premises. The landlord, who was made defendant in the latter action, was not obliged to produce such an affidavit as this clause requires, as an essential requisite previous to his original recovery; for as it was essentially requisite, the Court presumed that such affidavit was regularly made at the time, and that the judgment was founded on it (b).

The landlord's remedy for rent in arrear, is by action for the mesne profits, which, as has been before observed, is consequent to the action of ejectment, whereby the possession only is recovered (c).

If one pretending to have title to land give security to the tenants to save them harmless upon paying him the rent, and afterwards another recover in ejectment against them, they have no remedy upon the security until recovery of the mesne profits (d).

SECTION V. Of the Remedy for the Landlord, under the Statute 11 G. 2. c. 19. where the Premises are vacant.

The injury that the landlord would sustain in his profits by his lands lying fallow and his buildings going to decay, owing to the desertion of his tenant and the actual possession of the premises remaining in no one, is remedied by the stat. 11 G. 2. c. 19. s. 16. which after stating that, "Whereas landlords are often great sufferers by tenants running away in arrear, and not only suffering the demised premises to be uncultivated without any distress thereon, whereby their landlords or lessors might be satisfied for the rent-arrear, but also refusing to deliver up the possession of the demised premises, whereby the landlords are put to the expense and delay of recovering in ejectments, enacts, That if any tenant holding any lands, tenements, or hereditaments at a rack-rent, or where the rent reserved shall be full three-fourths of the yearly value of the demised premises, who shall be in arrear for one year's rent, shall desert the demised premises, and leave the same uncultivated or unoccupied, (a) Goodright d. Hare. v. Cator. Doug. 477.618.

483.

(6) Doe d. Hitchin v. Lewis, 1 Burr. 614

8

(c) Asli v. Parkin. 2 Burr. 665-68.
(4) Anon. 6 Mod. 222.

so as no sufficient distress can be had to countervail the arrears of rent, it shall and may be lawful to and for two or more Justices of the Peace for the county, riding, division, or place (having no interest in the demised premises), at the request of the lessor or landlord, lessors or landlords, or his, her, or their bailiff or receiver, to go upon and view the same, and to affix, or cause to be affixed, on the most notorious part of the premises, notice in writing what day (at the distance of fourteen days at least) they will return to take a second view thereof; and if upon such second view, the tenant, or some person upon his or her behalf, shall not appear and pay the rent in arrear; or there shall not be sufficient distress upon the premises; then the said Justices may put the landlord or landlords, lessor or lessors, into the possession of the said demised premises; and the lease thereof to such tenants, as to any demise therein contained only, shall from thenceforth become void."

Sect. 17. Provided always that such proceedings of the said Justices shall be examinable in a summary way by the next Justice or Justices of Assize of the respective counties in which such lands or premises lie; and if they lie in the city of London or county of Middlesex, by the Judges of the Courts of King's Bench or Common Pleas ; and if in the counties palatine of Chester, Lancaster, or Durham, then before the Judges thereof; and if in Wales, then before the Courts of Grand Sessions respectively; who are hereby respectively empowered to order restitution to be made to such tenant, together with his or her expenses and costs, to be paid by the lessor or landlord, lessors or landlords, if they shall see cause for the same; and in case they shall affirm the act of the said Justices, to award costs not exceeding five pounds for the frivolous appeal."

By stat. 57 G. 3. c. 52. the provisions of this statute are extended to tenants, who shall be in arrear one half year's rent, and who shall hold the lands under any demise or agreement, whether written or verbal, and although no right or power of re-entry be reserved or given to the landlord in case of non-payment of rent.

Where a tenant ceased to reside on the premises for several months, and left them without any furniture, or sufficient other property to answer the year's rent: it was held that the landlord might properly proceed under the 11 G. 2. c. 19. s. 16. to recover the premises, although he knew where the tenant then was, and although the Justices found a servant of the tenant upon the premises, when they first went to view the same (a).

Note. In these cases Justices ought to make a record of the whole proceedings (b).

(4) Ex parte Pilton. I B. & A. 369.

(b) 4 Burn. tit. Vagrants, I.

SECTION VI. Of the Remedy of the Landlord, under the Statute 1 G. 4. c. 87.

By the statute 1 G. 4. c. 87. reciting, that "Whereas the laws heretofore made for preventing the losses to which landlords are exposed by the unlawful holding over of lands and tenements by tenants, or persons claiming under them, after the expiration or legal determination of their terms or interests, have been found by experience insufficient, and it is therefore expedient to provide in certain cases a more expeditious mode for recovering the possession of lands and tenements so held over;" it is enacted, That 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 landlord or tenant by regular notice to quit, and such tenant, or any one holding or claiming by or under him, shall refuse to deliver up possession accordingly, after lawful demand in writing made and signed by the landlord or his agent, and served personally upon, or left at the dwelling-house or usual place of abode of such tenant or person, and the landlord shall thereupon proceed by action of ejectment for the recovery of possession, it shall be lawful for him, at the foot of the declaration, to address a notice to such tenant or person, requiring him to appear in the Court in which the action shall have been commenced on the first day of the term then next following, or if the action shall be brought in Wales, or in the counties palatine of Chester, Lancaster, or Durham respectively, then on the first day of the next session or assizes, or at the court-day or other usual period for appearance to process then next following (as the case may be), there to be made defendant, and to find such bail, if ordered by the Court, and for such purposes, as are hereinafter next specified; and upon the appearance of the party at the day prescribed, or in case of non-appearance on making the usual affidavit of service of the declaration 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 affidavit, 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 for a rule for such tenant or person to shew cause, within a time to be fixed bythe Court on a consideration of the situation of the premises, why such tenant or person, upon being admitted defendant, beside entering into the common

rule, and giving the common undertaking, should not undertake, in case a verdict shall pass for the plaintiff, to give the plaintiff a judgment, to be entered up against the real defendant, of the term next preceding the time of trial, or if the action shall be brought in Wales, or in the counties palatine respectively, then of the session, assizes, or court-day (as the case may be), at which the trial shall be had, and also why he should not enter into a recognizance, by himself and two sufficient sureties, in a reasonable sum conditioned to pay the costs and damages which shall be recovered by the plaintiff in the action; and it shall be lawful for the Court upon cause shown, or upon affidavit of the service of the rule in case no cause 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 give such undertakings, and find such bail, with such conditions and in such manner as shall be specified in the said rule, or such part of the same so made absolute; and in case the party shall neglect or refuse so to do, and shall lay no ground to induce the Court to enlarge the time for obeying the same, then upon affidavit of the service of such order an absolute rule shall be made for entering up judgment for the plaintiff.

II." And be it further enacted, That wherever hereafter 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 plaintiff shall not be nonsuited for default of the defendant's appearance, or of confession of lease, entry, and ouster, but the production of the consent-rule and undertaking of the defendant shall in all such cases be sufficient evidence of lease, entry, and ouster; and 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 plaintiff on the trial, after proof of his right to recover possession of the whole or of any part of the premises mentioned in the declaration, 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 given in the cause, or to some preceding day, to be specially mentioned therein; and the Jury on the trial, finding for the plaintiff, shall in such case give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of the damages to be paid for such mesne profits: provided always, that nothing hereinbefore contained shall be construed to bar any such landlord from bringing an action of trespass 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 the ejectment. III." And be it further enacted, That in all cases in which such