The opinion of the Court was delivered by

The first error assigned embraces the question whether the plaintiff ought not to have filed a declaration or statement of his cause of action, before the District Court could give judgment by default against the defendant, under the Act of 28th of March 1835, for the insufficiency of his affidavit. It is understood that it has been the settled practice of the District Court, since the enactment of the law, not to require a declaration or statement, and it ought to be very clear that the Act of Assembly required it, either expressly or on principles of obvious necessity and convenience, before this court would overturn the long-settled practice of that court, and subject numerous judgments to reversal. It is by no means, however, so clear that the Act contemplated the filing of a declaration or statement. The affidavit system is a new one. It was introduced into that court in lieu of arbitrations. It was intended to afford speedy relief in cases of undisputed debts. It was introductive .of provisions not known to the common law, and not necessarily connected with its *556accustomed forms. And, after all, a declaration, in many cases, would shed little additional light in determining what was the exact amount which the plaintiff claimed beyond that of filing a copy of the instrument. Declarations are often indefinite, not designating any precise amount, frequently containing many counts and leaving the record as obscure on the subject of the plaintiff’s precise claim, as if they had not been filed at all. A statement may be as loose and unsatisfactory as a declaration. The supplement extending the provisions to the cases of loans of money on verbal contracts requires the affidavit of the plaintiff, and leaves the Act of 1835 unchanged. Where a copy of the instrument is filed, it is in the power of the defendant to deny all indebtedness upon it, or to explain the nature of his defence against all and any claims that might arise upon the face of the instrument. It would seem as if the legislature intended that the propriety of entering a judgment was to be tested not so much by the plaintiff’s claim as by the defendant’s affidavit, which is on that account required to state specially the nature and character of the defence.

On the best consideration we are not able to perceive that the Act of Assembly requires a declaration or statement, or that under this peculiar system any great advantage would be gained by introducing them universally, though plaintiffs are at liberty to file them, and there are cases in which the court may, if they see proper, direct it to be done, and defendants may be compelled to answer the averments contained in them.

2. The second question is on the merits of the case set forth in the defendant’s affidavit. The substance of it is, that before taking possession under the lease he assigned it over, and that the plaintiff recognised the assignee as his tenant, and received rent from him. This constitutes no defence. It is well settled that where there is an express covenant by the lessee to pay the rent, he is liable in an action of covenant during the lease, notwithstanding before the breach complained of the interest in the lease may have been assigned, and though the lessor may have accepted rent from the assignee. 1 Chitty’s Plead. 36, and cases cited. There is no pretence for the allegation of a release to the lessee. There is none averred in point of fact, and no inference of it can be drawn from the facts stated; nor does any consideration for it appear. The facts stated are perfectly consistent with the continued liability of the lessee. The lessor may receive rent from the assignee as his tenant without being considered as thereby releasing the lessee; and perhaps he is bound to receive it from the assignee if tendered when due. Then it is said that it appears by the affidavit that the plaintiff broke his covenant, and that the defendant is entitled to a deduction. But the difficulty is that the affidavit does not aver any breach by the plaintiff. It merely says that “ the tenant had not the free use and privilege of a good road for carts from the wharf to Gray’s Ferry road, nor *557of the water of plaintiff’s, well, on the hill near the wharf,” which might well be, if the tenant had declined or neglected to make use of the privileges contracted for, or was deprived of their enjoyment by a third person, or by some act of Providence. If the plaintiff had violated his covenant, it was in the power of the defendant, and it was his duty, to state it in language less ambiguous. As to the judgment, it was only against Dewey. As he was the only party that was served with process and took defence, the judgment would regularly be against him alone, though entered generally. But it appeal’s now, during the argument, that the judgment was expressly entered against Dewey alone.

Judgment affirmed.