days thereafter, to answer the said complaint; and the said aldermen or justices shall, on the day appointed, or on some other day then to be appointed by said justices or aldermen, proceed to hear the case, and if it shall appear that the said complaint so made as aforesaid by the lessor, is in all particulars just and true, then the said aldermen or justices shall enter judgment against such lessee, that the premises shall be delivered up to the lessor, and at the request of the lessor issue a writ of possession, directed to the said constable, commanding him forthwith to deliver actual possession of the premises to the lessor, and also to levy the costs on the defendant, in the same manner that costs are now by law levied and collected on other writs of execution; but if on the hearing aforesaid it shall appear that the said complaint is vexatious and unfounded, the said aldermen or justices shall dismiss the same with costs to be paid by the lessor. Provided always, That at any time before the said writ of possession is actually executed, the lessee may supersede and render the said writ of none effect, by paying to the said constable, for the use of the lessor, the rent actually due and in arrear, and the costs; which rent so in arrear shall be ascertained and determined by the said aldermen or justices on due and legal proof, and indorsed by them on the said writ of possession, together with the costs of the proceeding, of all of which doings the said constable shall make return to the said aldermen or justices within ten days after receiving of the said writ, and the said constable shall be answerable in default of executing the said writ according to its lawful requisitions, or in returning the same in the same manner as to the amount of rent ascertained and determined, and costs, as constables are now by law answerable on other writs of execution. And provided further, That no writ of possession shall be issued by the said aldermen or justices for five days after the rendition of judgment, and if within the said five days, the tenant shall give good, sufficient and absolute security by recognizance for all costs that may have, and may accrue, in case the judgment shall be affirmed; and also for all rent that has accrued, or may accrue up to the time of final judgment; then the tenant shall be entitled to an appeal to the next Court of Common Pleas, which appeal shall be then tried in the same manner that other suits are tried. And provided further, That nothing herein contained shall prevent the issuing of a certiorari with the usual form and effect.

Under this statute it has been held that the sheriff's vendee of the

landlord's title is a lessor within its meaning. McKeon v. King, 9 Barr, 213; Clark v. Everley, 8 W. & S. 227. And that the notice to quit must be accompanied with a demand for the rent. Clark v. Everley, 8 W. & S. 223. And that the notice must be served on the party residing on the premises. Clark v. Everley, 8 W. & S. 228. It must be proved affirmatively on the hearing that there is a deficiency of goods on the premises. Clark v. Everley, 8 W. & S. 228. As to what is sufficient in the finding of the justices. See McKeon v. King, 9 Barr, 213.

The justices are not to enter judgment for the rent arrear. v. Culbertson, 10 W. 395.

Hazen

As to the recognisance, see Hazen v. Culbertson, 10 Watts, 393.

IN the last Lecture we considered the different modes in which a tenancy may be determined, whether by efflux of time, surrender, express or implied, and forfeiture, or-in the case of a yearly tenancy, or tenancy of a like description to a yearly one-by notice to quit. It remains to consider the respective rights of the two parties upon the determination of the tenancy. These are often provided for by express agreement; but even in the absence of express agreement, there are two matters for which the law provides, between landlord and tenant, under the head of Emblements and *Fixtures. The term emblements expresses a

right which the law gives to the tenant of an [*248]

estate of uncertain duration, and which has unexpectedly determined, without any fault of his, to take the crops growing upon the land when his estate determines, although his estate is itself come to an end.

It is obvious that this right proceeds upon a just and fair principle, for a tenant who has been at the labor and expense of sowing and tilling the ground, ought, in justice and fairness, 'to be allowed to reap the crop produced by that labour, notwithstanding the unforeseen determination of his interest.1

1 Since this Lecture was written the right to emblements has been taken away by statute, wherever the lease of any farm or land, held at rack-rent, determines by the death or cesser of the estate of a landlord who is entitled for life, or for any other uncertain interest. And in these cases an extended occupation has been allowed to the tenant as an equivalent. See the 14 & 15 Vic. c. 25, s. 1, (which came into operation on the 24th of July, 1851,) and which enacts that when "the lease or tenancy of any farm or lands, held by a tenant at rackrent, shall determine by the death or cesser of the estate of any landlord entitled for his life, or for any other uncertain interest, instead of claims to emblements, the tenant shall continue to hold and occupy such farm or lands until the expiration of the then current year of his tenancy, and shall then quit, upon the terms of his lease or holding, in the same manner as if such lease or tenancy were then determined by effluxion of time, or other lawful means during the continuance of his landlord's estate; and the succeeding landlord or owner shall be entitled to recover and receive of the tenant, in the same manner as his predecessor or such tenant's lessor could have done, if he had been living or had continued the landlord or lessor, a fair proportion of the rent for the period which may have elapsed from the day of the death or cesser of the estate of such predecessor or lessor to the time of the tenant so quitting, and the succeeding landlord or owner and the tenant respectively shall, as between themselves and as against each other, be entitled to all the benefits and advantages, and be subject to the terms, conditions, and restrictions, to which the preceding landlord or lessor and such tenant respectively would have been entitled and subject, in case the lease or tenancy had determined in manner aforesaid at the expiration of such current year; provided always, that no notice to quit shall be necessary or required, by or from either party to determine any such holding and occupation as aforesaid."

*Now, this right to the emblements extends

[*249] to a tenant for life wherever his estate determines by the act of God, or by the act of the law; that is, in fact, whenever it determines by any means except his own fault. Thus, for instance, if a tenant for life dies before harvest time, and so his estate comes to an end, that is an act of God, and his executors will be entitled to the crops. But if a widow holds lands, (and there are instances of such an estate,)2 so long as she shall remain sole and unmarried, if she think proper to marry again, she will not be entitled to emblements, for to re-marry is her own fault, or perhaps her misfortune, and at all events, before she did so, she had time and opportunity to consider this point regarding emblements as well as other points of more importance to her. This state of the law is laid down. in Oland's Case, 5 Coke, 116, and in the judgment of the Lord Chief Justice Abbott in Bulwer v. Bulwer, 2 B. & A. 470.3(a)

2 See Co. Litt. 214 b; and for instances of such an estate, Oland's Case, cited above; Doe d. Gwillim v. Gwillim, 5 B. & Ad. 122, (27 E. C. L. R. 60,); and Brooke v. Spong, 15 M. & W. 153.*

3 See also Co. Litt. 55 b; and Com. Dig. Biens (G). In Oland's Case, cited in the text, an instance is given of such a determination of an estate by act of law as gives a right to emblements. It is there said, that if a lease be made to a husband and wife during the coverture, and afterwards they are divorced causâ præcontractus, the husband shall have the emblements, for the sentence which dissolves the marriage is the judgment of the law. See the observations on this case in Davis v. Eyton, 7 Bing. 159, (20 E. C. L. R. 79,). Emblements may be claimed by the executors or administrators of tenants for life, to the exclusion of the remainder-men or reversioners, because

(a) Debow v. Colfax, 5 Halst. 128; 3 N. H. 501; Davis v. Thompson, 1 Shep. 209; Sherburne v. Jones, 2 App. 70; Davis v. Brocklebank, 9 N. H. 73.