#### Den on dem. of BENJAMIN SHANNONHOUSE vs. DOCTRINE BAGLEY.

The Act of 1823, respecting security for costs and damages to be filed by a tenant holding over, before he can be admitted to plead, applies in favor of one who purchases the land during the lease.

The affidavit required to be made by the lessor of the plaintiff in Hie action of ejectment in order to compel an over-holding tenant to give security for costs and damages, need not set out the length of the term, or whether the lease was for years, or from year to year.

An affidavit in such case, which sets forth “ that the lease had expired before bringing the suit—that tire defendant refuses to surrender possession, and holds over against the will and consent of the affiant, and now pretends to claim title thereto,” is sufficient, without alleging a more formal demand and refusal before bringing the suit.

At tlae return Term of an action of ejectment, motions were made on behalf of the respective parties, which were considered by Manly, J., at the Spring Term, 1856, of Perqmmons Superior Court

The defendant’s counsel asked leave to plead upon filing an ordinary bail-bond.

On the other hand, the plaintiff’s counsel contended that he was entitled to judgment against the casual ejector, unless title defendant gave bond and security for the costs and damages accruing subsequently to the expiration of the term. His motion was predicated on the following affidavit:

(copy oe the aeeidavit.)

“Benjamin Shannonhouse, maketh oath that the defendant, Doctrine Bagley, entered into the premises, now occupied by him, as tenant of one Charles Skinner, and that after his being thus in possession, this affiant purchased of said Skinner the tract of land on which defendant is and was situate, and which he cultivated as tenant as aforesaid; and said Bagley, since then, has occupied the premises as Ms tenant; that Ms term has long since expired, and that the defendant holds over against the will and consent of this affiant, and now pretends to claim title thereto, and refuses to surrender it.”

*296The defendant contended that there was no such tenancy here, as authorised such a requisition from him; and further, that the affidavit itself was insufficient for that purpose; but his Honor being of opinion with the plaintiff, decided that unless the defendant gave bond according to the act of 1823, he should not be permitted to defend, and that judgment should, in that case, be entered against the casual ejector; from which order the defendant appealed.

The following is the act of 1823. Rev. Code, ch. 31, section 48:

(copy of tiie statute.)

“ If the lessors of the plaintiff, or any one of them, in an action of ejectment, his agent or attorney shall, at the return term of the declaration in ejectment, file his affidavit that the tenant in possession of the premises sued for, and to whom the notice of the said suit is directed in the process issued, entered into said premises as his tenant, or as tenant of the person for whom such agent or attorney deposes, and that the said tenant’s term therein was expired at the commencement of the suit, and that he refuses to surrender the possession of the premises to said lessors or any of them, then the person in possession, or any other person applying to become defendant, shall not be entitled to plead to the suit, and the lessors of the plaintiff shall be entitled to judgment final against the casual ejector at the said term, unless the person in possession or other person applying to he made defendant, shall malee affidavit before the Court in writing, that his term therein had not expired, and also enter into bond with ample security, in such sum as the Court shall direct, conditioned that the defendant shall pay the lessor or lessors such costs and damages as shall be recovered in the suit; and the jury in such cases, when the issue rqay be joined, shall find in their verdict whether the defendant entered into possession of the premises as the tenant of l(he lessors, or of which of them, and whether he refused to surVender the premises after his term therein had expired. And if the finding be in favor of the lessors of the plaintiff, the \j ury shall assess the damages to *297which they shall be entitled, including the value of the occupation of the premises sued for, from the expiration of the tenant’s time to the rendition of the verdict, and damages for 'waste and trespass during the time of said holding over; and the Court shall render judgment against the defendant and his sureties upon their said bond, to be discharged by the payment of the damages assessed and all costs; and judgment upon the verdict shall bar the action for mesne profits, or for the trespass by any of the lessors in the said action.”

Jordan, for plaintiff.

No counsel appeared for the defendant in this Court.

Pearson, J\

When a tenant, after his term expires, refuses to give up the possession, the lessor is subjected to great inconvenience, and in many cases, to actual loss. lie is unable to sell the land or to lease to another, because, he cannot give possession ; and if he brings an action, besides the delay, he usually has his own costs to pay and loses the profits. A tenant who holds over is apt to be worth nothing, or to be that sort of a man who will put his property out of the reach of creditors, before a judgment can be obtained. For these reasons owners of land were reluctant to make leases, and poor men found it difficult to procure homes. This state of things was not only injurious to these two classes, but affected the whole community. It is against public policy that land should lie idle and be unproductive. To remedy this evil and to encourage the making of leases, was the object of the statute now under consideration.

The first point is, that our case does not come within the operation of the statute ; for, that the defendant did not enter as the tenant of the lessor of the plaintiff, but as the tenant of one from whom he bought the land, pending the lease; and it is contended that although the defendant continued in possession after the sale, as the tenant of the purchaser, yet the statute applies only to cases where the original entry was as the tenant of the lessor of the plaintiff.

*298It is certain that our case falls within the mischief for which the statute intended to provide a remedy. Owners of land would be reluctant to make leases, if thereby it was put out of their power to sell, should a good offer be made, unless the purchaser was willing to depend upon the mere promise of the lessee to give up possession at the expiration of the term.

We think it clear that the statute embraces all cases where the relation of lessor and lessee exists between the parties, so that the latter holds possession under the former, without reference to the manner of the original entry. A construction hinging upon the word enter would disregard the admonition quod Kwret in Utero, Kwret in cortice.

But the word enter, in legal parlance is not confined to the original act of going upon the land. There may be an entry in contemplation of law as distinguished from an actual entry; for instance, a lease is renewed and the lessee continues in possession; he is considered as having entered under the new lease, so as to change it from a mere mteresse termini into a term, without the idle form of going off of the land and coming back again. So in trespass quare elemsv/mfregit, laying the trespass with a continuando, or from day to day, to support the action, which is for an injury to the possession, the plaintiff after he regains possession, by the jus posttiminii is considered to have been in possession all the time, and the defendant is considered to have entered every day so as commit a series of distinct trespasses ; otherwise the action eoxtld only be maintained for the original entry. By parity of reasoning, in contemplation of law, for the sake of the remedy, the defendant may be considered as having entered as the tenant of the lessor of the plaintiff as soon as he acquired the title, and the relation of lessor and lessee was established between them.

The next point is, that the affidavit does not set out the terms of the lease so as to show whether it was a lease for a certain number of years, or from year to year, but contains merely a general statement “ that the defendant’s term had long since—before the commencement of this suit, expired.” *299 Phelps v. Long, 9 Ire. 226, is relied on. ¥e can see no reason for requiring the terms of the lease to be set out in the affidavit; the substance is, that there was a lease, and that it has expired; if so, it can make no manner of difference whether it was for five or ten years, or from year to year. It is sufficient to say, that the statute does not require the terms of the lease to be set out. The case cited does not support the objection. The affidavit there did not aver in words that the lease of the defendant had expired, but left it merely as an inference, from the fact that notice to quit had been given in 1843. The Court decide that no such inference can be made, because, taking it to be a tenancy from year to year, it was necessary to state at what time of the year the lease commenced, in order to enable the Court to see whether the notice had been given within reasonable time so as to determine the tenancy, and in that way make the inference that the lease had expired. The plaintiff in his affidavit, having omitted to aver the fact expressly, the question simply was, whether the matters stated were sufficient to enable the Court to supply this omission by making an inference.

The remaining point is, that the affidavit does not allege a demand and refusal to surrender possession, before the action was commenced, but alleges merely that the defendant rrfuses to surrender possession, in the present tense, i. e., at the time of filing the affidavit..

A man would hardly bo at the trouble and expense of bringing an action of ej ectmont, unless his tenant, after the expiration of the term, refused to give up the possession ; hence the cdU.guta and probata- in regard to this matter need not be very strong, because the fact of his bringing the action speaks for itself. In this case, however, besides the allegation that the defendant “ refuses to surrender possession,” there is the allegation that “ the defendant holds over against the will and consent of the affiant, and now pretends to claim title thereto.” So, besides the fact that the lessor was under the necessity of bringing the actiem, we have the further fact, that the elefendant disavows his tenancy and sets up title in himself. *300Admitting, therefore, as contended for by the defendant’s counsel, that the proper construction of the statute requires an averment, that the defendant had refused to surrender the possession before tbe action was commenced, we think this averment is substantially made. But a conclusive reply is, the affidavit pursues the very words of the statute, and actually goes further; and if the construction is correct iu regard to the statute, it follows that it must be so iu reference to the iiffidavit.

It was assumed iu the argument, that this is a rigid statute and ought to be construed strictly. It will be seen, that we do not concur in this view of it. It imposes no penalty, and does not deprive the defendant of any vested rights, but simply says to bim, if the plaintiff will make oath that you had possession as his tenant,-['that the lease is expired, and that yon refuse to give np the possession, yon will not be permitted to take advantage of the delay which is incident to the proceedings of the Courts, in order to keep him out of possession, unless you will give security to pay the cost, and the profits of the land, in the event that he recovers against you; and to make this the more reasonable, tbe statute requires that the facts on which the application was founded, that is, a lease, its expiration, and the defendant’s refusal to surrender, must be found by the jury, so as to convict the defendant of wrongfully holding over in violation of his fealty as a tenant. It may as well be said that the statute in regard to the action of replevin is rigid, and ought to be construed strictly.

Per Curiam.

There is no error. Judgment affirmed.