diet should pass for the plaintiff, to give him a judgment, to be entered up against the real defendant of the term next preceding the trial; 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 recovered by the plaintiff in the action; and the court, on cause shewn, or affidavit of service, may make the rule absolute in the whole or in part, and order such tenant or person, within a time fixed, to give such undertakings, and find such bail, with such conditions, and in such manner as shall be specified in the rule or such part of the same so made absolute; and if 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 service of the order, the rule may be made absolute to enter judgment for the plaintiff."

One of the main objects of this statute was to save the landlord the necessity of going to trial where the tenant holds over vexatiously, and where the trouble and expense of an ejectment may be very disproportionate to the value of the premises. A tenancy by virtue of an agreement in writing for three months certain, is a tenancy for a term within the meaning of this statute. But a tenant from year to year without a lease or agreement in writing is not within it, nor is a tenancy for years determinable on lives, for it is not a holding for a number of years certain d.

The statute applies only to cases where the lease or term has To what expired by efflux of time, and therefore it does not extend to

cases the

statute ap

a tenancy determined by a notice to quit, either from the land- plies.
lord to the tenant, or to the landlord by the tenant, where there
is a subsisting lease determinable at the end of a certain number
of years; nor to a case where the tenant has surrendered his
term but refuses to quit ; nor to a case where the title to the

Per Abbott, C. J., in Doe d. Phillips v. Roe, 5 B. & A. 768.

Id.

Doe d. Bradford (Earl of) v. Roe, 5 B. & A. 770.

Doe d. Pemberton v. Roe, 7 B. & C. 2.

e Doe d. Cardigan v. Roe, 1 D. & R. 540. But it applies to the case of a yearly tenancy under a written agreement.

f Doe d. Tindall v. Roe, 2 B. & Ad. 922.

Giving security.

Notice.

premises is disputed between the parties". Where a landlord, who was tenant in common, brought ejectment for his undivided part, it was held to be within the statute, and that the tenant should enter into a recognizance b. But if a landlord allow his tenant to hold over above a year, without taking any step to recover the premises, he is not entitled to the benefit of the

statute c.

The time within which the undertaking and security required by the statute shall be given, will be fixed by the court when the rule is granted d. It may be made part of the rule that the landlord be at liberty to sign judgment against the casual ejector, if the tenant fails to give the required security. If the tenant does not appear to give the undertaking, or enter into a recognizance at the period required by the rule, the court will permit the plaintiff to enter up judgment. On the appearance of the defendant, the court will direct recognizance to be entered into for the costs of the action only, to be ascertained by their officer, and not for the mesne profits. The recognizance should be entitled in the name of the tenant in place of the original nominal defendant 1.

The notice at the foot of the declaration required by the statute must be signed by the landlord or his agent, and should be in addition to, and not form part of the ordinary notice signed by the casual ejector. It is sufficient if such notice requires the defendant "to appear and be made defendant, and find such bail, &c., and for such purposes as are specified in the act of parliament," without stating those purposes in detail k

THE evi

1.-Evidence of the plaintiff's title in general.]
dence required to support the plaintiff's case in ejectment, will
vary according to the nature of his title to the premises. We
have seen a that the plaintiff must recover on the strength of
his own title, and that he can derive no support from the weak-
ness of that of his adversary. Therefore the plaintiff must in
all cases prove a legal and possessory title in himself, unless
when he claims as landlord, or where there exists a privity of
estate between him and the defendant; in which case, as we
shall shew hereafter, the plaintiff need not. prove his title, for
the defendant will not be permitted to dispute it. As the
tenant in possession cannot be allowed to defend, unless he has
entered into the consent rule, which confesses lease, entry,
ouster, and possession of the premises, by his appearance at
the trial, he admits every thing that is required by that rule.
The plaintiff, therefore, is not required to give evidence of any
of those facts, or even to produce the consent rule; unless there
be a doubt as to the identity of the premises. As where the
plaintiff directs his case to certain premises, and the other
party contends that he does not defend for those; in which
case it may be necessary to produce the rule to shew for what
he does defend. The locality of the premises, as described in
the declaration, must be proved. The court will, however, in

C

2 Ante, 828.

See ante, 908.

Per Lord Tenterden, C. J., in

Doe d. Greaves v. Raby, 2 B. & Ad.

949, overruling Doe d. Lamble v.
Lamble, M. & M. 237.

4 See ante, 884.

The plain

tiff must shew a legal

and pos

sessory

title.

The landlord must give evi

dence of

the commencement and determination of the tenancy.

general, permit the plaintiff to amend, where there is a variance in this respect. The title proved must be consistent with the demise in the declaration; therefore, if there be a joint demise by several persons, there must be evidence of a joint interest in the whole premises b. If there be a joint demise, and a joint title be not proved, the plaintiff must be nonsuited; for the court will not allow an amendment. The payment of an entire rent to the common agent of the lessors of the plaintiff is primá facie evidence of their joint titled. Proof of an actual entry on the premises is in no case necessary, except when the plaintiff's title would be otherwise barred by the statute of limitations; or to avoid a fine levied with proclamations. But as by 4 & 5 W. IV. c. 92. s. 2, no fine or recovery shall be levied or suffered after the 31st of October, 1834, few instances only can occur of the necessity of proving an entry to avoid such fine.

2.-Evidence in ejectment by a landlord against his tenant.] When the ejectment is by the landlord, or a party between whom and the defendant a privity of estate exists, the plaintiff, as we have shewn, is not required to prove his title, but he must prove the existence and termination of the privity. As if the defendant be put into possession upon an agreement for the purchase, or for a lease of the premises, evidence must be given to show that the negotiation was broken off, and that a demand of the possession was made of him previous to the day of the demise in the declarations. So where the defendant is tenant at will, it must be shown how he became tenant, and that the tenancy was determined by a demand of possession, or otherwise, as the case may beh; for the common consent rule is not evidence of such determination.

When the relation of landlord and tenant regularly subsists between the parties, or those under whom they claim, there are

a See "Amendment," in the Index, and Doe d. Marriott r. Edwards, 6 C. & P. 208. Doe d. Marsack v. Read, 12 East, 57.

b See ante, 880.

Doe d. Poole v. Errington, 1
Add. & Ell. 750.

d Doe d. Clarke v. Grant, 12

East, 221.

See ante, 330.
Ante, 853.

Right d. Lewis r. Beard, 13 East, 210. Doe d. Newby v. Jackson, 1 B. & C. 448, ante, 863.

h See ante, 863. 2 Stark. Ev. 303. Adams, 210.

three ways whereby the tenancy may be determined; 1st, by efflux of time; 2dly, by notice to quit; 3dly, by forfeiture.

of tenancy

by efflux of time to be proved by the pro

duction of the deed

or other

The expiration of a tenancy by efflux of time, is proved by Expiration evidence of the contract under which the defendant is in possession. If the demise be by deed, or in writing, it must be proved by the production of the original, or of a counterpart. If there be no counterpart, and the original be in the possession of the defendant, notice to produce it must be given, and if not produced, the plaintiff may give secondary evidence of its contents; but he cannot give such evidence, without having given notice to produce the original. If the demise be by parol, it may be proved by a person who was present at the making of it, or by the admissions of the defendant. But if it should

appear by the witnesses on the part of the plaintiff that a contract in writing had been entered into between the parties, it must be produced by the plaintiff. As where the plaintiff's witness proved an acknowledgment by the defendant that he held under T., and stated that he (the witness) had drawn an agreement touching the premises between the plaintiff and T., it was held, that the plaintiff was bound to produce the writing b. But if it appears that the instrument is not per se binding on the parties, as if it be a memorandum of an agreement not signed by the parties, the demise may be proved by parol evidence. Where the tenancy is determined by the happening of any particular event, the lessor must show that such event has happened d.

Where the tenancy is determined by reason of notice to quit, the plaintiff must prove the tenancy of the defendant and service of the notice. Service of the notice may be proved by the person who served it, but if there be a subscribing witness to the notice, he must be called. The contents of the notice may be proved by a duplicate original, or by parol evidence of its contents. It is not necessary to give the defendant notice to produce the original. Where it was the practice in an at

2 Roe d. West v. Davis, 7 East, 363.

Fenn d. Thomas v. Griffith, 6 Bing. 533.

e R. v. St. Martin, Leicester, 4

N. & M. 202. 2 Add. & Ell, 210.
d Adams, 312.

e Doe d. Sykes v. Durnford, 2 M.
& S. 62, ante, 863.

f Jory v. Orchard, 2 B. & P. 41.

writing.

Proof of

the service

of notice to

quit.