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 de fault 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 da mages to be paid for such mesne profits: provided always, that nothing herein before 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 undertaking shall have been given, and security found as aforesaid, if upon the trial a verdict shall pass for the plaintiff, but 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, it shall be lawful for the Judge to order the execution of the judgment to be stayed absolutely till the fifth day of the term then next following, or till the next Session, Assizes, or court-day; (as the case may be;) which order. the Judge shall in all other cases make upon the requisition of the defendant, in case he shall forthwith undertake to find, and on con- ' dition that within four days from the day of the trial, he shall ac

tually find security by the recognizance 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 standing crops, hay, straw, or manure produced or made (if any) upon the premises, and which may happen to be thereupon, 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): provided always, that the recognizance last above mentioned shall immediately stand discharged and be of no effect, in case a writ of error shall be brought upon such judgment, and the plaintiff in such writ shall become bound with two sufficient sureties unto the defendant in the same, in such sum and with such condition as may be conformable to the provisions respectively made for staying execution on bringing writs of error upon judg ments in actions of ejectment, by an Act passed in England, in the sixteenth and seventeenth years of the reign of King Charles the Second, and by an Act passed in Ireland in the seventeenth and eighteenth years of the reign of the same King, which Acts are respectively intituled An Act to prevent Arrests of Judgments and superseding Executions.

IV. "And be it further enacted, That all recognizances and securities entered into pursuant to the provisions of this Act, may and shall be taken respectively in such manner and by and before such persons as are provided and authorized in respect of recognizances of bail, upon actions and suits depending in the Court in which any such action of ejectment shall have been commenced; and that the officer of the same Court with whom recognizances of bail are filed, shall file such recognizances and securities, 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 recognizance or security, after the expiration of six months from the time when possession of the premises, or any part thereof, shall actually have been delivered to the landlord.

V. And be it further enacted, That it shall not be lawful for the defendant to remove any action of ejectment commenced by a landlord under the provisions of this Act from any of the Courts of Great Session in Wales to be tried in an English county, unless such Court of Great Session shall be of opinion that the same ought

to be so removed upon special application to the Court for that purpose.

VI." And be it further enacted, that in all cases wherein the landlord shall elect to proceed in ejectment, under the provisions hereinbefore contained, and the tenant shall have found bail, as ordered by the Court, then if the landlord upon the trial of the cause shall be nonsuited, or a verdict pass against him upon the merits of the case, there shall be judgment against him with double costs.

VII. "Provided always, That nothing in this Act contained shall be construed to prejudice or affect any right of action or remedy which landlords already possess, in any of the cases hereinbefore provided for.

VIII. "And be it further enacted, That this Act shall extend to all parts of the United Kingdom of Great Britain and Ireland, except Scotland."

This statute has been holden to extend to a tenancy, by virtue of an agreement in writing for a term certain; (a) but not to the case of a lessee, holding over after notice to quit given by himself, where his tenancy has not expired by efflux of time. (b)

And where a tenant holds from year to year, without a lease or agreement in writing, it is not a case within the statute. (e)

Where a landlord had entered into a written agreement with the tenant to grant him a lease, which lease, however, was never granted, and at the expiration of the term the tenant held over, after having been served with a proper notice to quit, and he was then served with a written demand of possession, with an intimation that if he did not deliver it, an ejectment would be brought; the Court decided first, that the tenant held under an agreement in writing, and secondly, that the demand of possession was sufficient to entitle the plaintiff to the benefit of the undertaking and security required by the statute. (d) But a tenancy for years determinable on lives, is not a holding for any term or number of years certain within the meaning of the above statute. (e)

The notice at the foot of the declaration given by the landlord to the tenant on the above statute, should require the latter to appear in the court in which the action is commenced, on the first day of the next term, there to be made defendant, and to find such bail, if ordered by the Court, and for such purposes as are specified in the statute. (a)*

This notice should be signed by the lessor of the plaintiff, and not by the casual ejector; (b) and ought to be a separate notice, in addition to the ordinary one given by the latter. (b) The notice may either state the nature of the bail or undertaking, and the recognizance to be given and entered into by the tenant and his sureties specially, or may describe them generally, with reference to the statute. In proceeding on this statute, the lease or agreement under which the tenant holds the premises, or a counterpart or duplicate thereof, must be produced, though it need not, it seems, be left in Court; and the execution of the same must be `proved by affidavit, as well as 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 a regular notice to quit; (c) and that a demand in writing of the possession has been made, and signed by the landlord or his agent, and personally served upon, or left at the dwelling-house or usual place of abode of the tenant or person holding under him; upon which the Court will grant a rule to show cause, (d) why the tenant, upon being made defendant instead of the casual ejector, beside entering into the common consent rule, and giving the usual undertaking, should not undertake, in case a verdict should pass for the plaintiff, to give him judgment, to be entered up of the preceding term against the real defendant, and 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, pursuant to the statute.

... This rule, however, need not specify all the particulars required by the statute; as the Court may mould the rule conformably to its requisites, on showing cause; (e) and if no sufficient cause be

(a) Tidd's Append. c. 46. s. 29.

(b) Doe d. Phillips v. Roe, 1 Dowl, & Ryl. 435. a. and see Goodtitle d. D. of Norfolk v. Notitle, 5 Barn. & Ald, 849.

(c) Tidd's Append. c. 46. s. 28. (d) Tidd's Append. c. 46. s. 48. (e) Doe d. Phillips v. Roe, 5 Barn. & Ald. 766. 1 Dowl. & Ryl. 433. S. C.

shown, they will, on making the rule absolute, (a) order the tenant to give the additional undertaking required by the statute, and also that he do, within a certain time to be specified in the rule, enter into a recognizance, by himself and two sufficient sureties, in a certain sum to be fixed by the Court, conditioned to pay the costs and damages, &c. (a)

The undertaking to give judgment of the preceding term, is usually inserted in the consent-rule; and the recognizance is taken before a judge in town causes, or, in the country, before a commis sioner for taking bail. (b)

CHAPTER XV.

OF THE REMEDIES FOR LANDLORD AGAINST TENANT

(CONTINUED.)

For Breach of Covenants and Agreements other than for.

Rent.

SECTION I. By Action of Covenant.

SECTION II.

By Action of Assumpsit.

SECTION I. Of the Action of Covenant.

any

AN action of covenant or assumpsit, according as the premises are demised by deed or not, lies for the recovery of damages for injury sustained by the landlord in consequence of the tenant neglecting to repair the buildings, suffering trades to be carried on therein contrary to his covenant, treating the land in an unhusbandmanlike manner, or committing any other breach of the agreement. An action of covenant cannot be maintained except upon a deed, and the declaration must show that it is brought on one. (c).

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