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Nor for a tin-bound, Doe d. E. of Falmouth v. Alderson 1 M. and W.210.
The owner of the fee by indenture granted to A., his partners, fellow adventurers, &c. free liberty to dig for tin and all other metals throughout certain lands therein described, and to raise, make merchantable, and dispose of the same to their own use; and to make adits, &c. necessary for the exercise of that liberty, together with the use of all waters and watercourses, excepting to the grantor, liberty for driving any new adit within the lands therehy granted, and to convey any watercourse over the premises granted, habendum for twentyone years ; covenant by the grantee to pay one-eighth share of all ore to the grantor, and
all rates, taxes, &c. and to work effectually the mines during the term; and then, in failure of the performance of any of the covenants, a right of reentry was reserved to the grantor, it was holden that this deed did not amount to a lease, but contained a mere license to dig and search for minerals, and the grantee could not maintain an ejectment for mines lying within the limits of the set, but not connected with the workings of the grantee.
IV. In what Cases previous Steps must be taken before
In some cases before an ejectment can be brought, some previous steps must be taken, in order to entitle the plaintiff to the action. Under what circumstances these proceedings will be necessary, will appear from the following remarks:
An actual entry is necessary, to avoid a fine levied with proclamations, according to the stat. 4. H. 7. c. 24 (12); and an ejectment cannot be brought until such entry has been maded. And by stat. 4 Ann. c. 16. the action must be commenced within one year next after the making such entry, and prosecuted with effect; the plaintiff laying his demise on a day subsequent to the day of the entry. But an actual entry is not necessary to avoid a fine at common law, without proclamationsf: nor a fine with proclamations, if all the proclamations were not made at the time when the ejectment was brought&; nor a fine which has no operation, as a fine levied by son of tenant at sufferanceh, or a fine levied by a tenant for yearsi; nor to maintain an ejectment on a clause of reentry for non-payment of rentk. So if one of two tenants in common of a reversion levy a fine of the whole, such fine does not require an actual entry by the other tenant in common to avoid it?. Where tenant for life levies a fine with proclamations, although it is not any bar to those in remainder, yet a remainder-man must make an actual entry, in order to avoid it, before he can maintain an ejectment i; but he need not enter until five years after the death of a tenant for life. An entry upon an estate generally, is an entry for the whole°; if it be for less it should be so defined at the time. But it is a sufficient entry to avoid a fine, if the party enters expressly to claim the premises as his ownP; it is not necessary for him to say that he enters to avoid all fines, or to specify what particular act, adverse to his own interest, he means to defeat.
c Doe d. Hanley v. Wood, 2 B. and A. d Berrington v. Parkhurst, Str. 1086. 724.
Compere v. Hicks, 7 T. R. 727.
(12) By 3 & 4 W. 4. c. 74. abolition of fines after 31st Dec. 1833.
In a case where a party had a right of entry upon condition broken"; and a stranger entered, and afterwards the plaintiff assented to such entry, and brought an ejectment laying the demise after the assent, it was holden sufficient. Where an ejectment is brought by a corporation aggregate they must execute a letter of attorney to some person, empowering him to enter on the land; but a verbal notice to quit, given by a steward of a corporation, is sufficient". Where lands are in the possession of a receivers, under an appointment of the Court of Chancery, an ejectment cannot be brought for the recovery of such lands, without leave of the court. Such receiver is authorized to determine tenancies from year to year by a notice to quitt.
e 2 Str. 1086. 7 T. R.727.
m Compere v Hicks, 7 T. R. 433. 727. f Jenkins on d. Harris and Wife, y. n Pomfret v. Windsor, 2 Ves. 481, Prichard, 2 Wils. 45.
o Per Lord Kenyon, C.J.3 T. R. 170. & Doe d. Ducket and Ladbrooke v. p Doe d. Jones v. Williams, 5 B. and
Watts, 9 East, 17, in which Tapner d. Ad. 783.
r Roe d. Dean and Ch. of Rochester h Doe v. Perkins, 3 M. and S. 271. v. Pierce, 2 Campb. 96. i Per Lord Kenyon, C. J. in Peaceable 8 Angel v. Smith, L. 1. H. Feb. 1804. v. Read, 1 East, 575.
Eldon, C. 10 Ves. jun. 335. k Goodright v. Cator, Doug. 477. t Doe d. Marsack v. Read, 12 East, 59. | Roe v. Elliot, 1 B. and A. 85. See
also Doe v. Harris, 5 M. & S. 326.
V. In what Cases a Notice to quit must be given before
Ejectment brought.—Requisites of Notice.-Waver of
Notice.—Where Notice is not required. The old tenancy at will being attended with many inconveniences, the inclination of the courts has of late been to make every tenancy a holding from year to year, if they can find any foundation for ita : as if the lessor accepts yearly rent, or rent measured by any aliquot part of a year; and it has been considered as more advantageous to the parties, that such demises should be construed to be tenancies from year to year, so long as it shall please both parties; for in that case one party cannot determine the tenancy, without giving a reasonable notice to quit to the other; with respect to which it may be laid down as a general rule, that half a year's (13) noticeb, expiring with the year of the tenancy, is a reasonable notice in all cases, except where a different period is established, either by express agreement, or the custom of particular places (14). If the tenant die, his personal repre
a See Richardson v. Langridge, 4
Taunt. 128. where the agreement was holden to be a tenancy at will; the premises being let so long as both parties liked, and a compensation reserved accruing de die in diem and not referrible to a year or any aliquot part of a year. In Freeman v. Jury, Moody and Malkin, 19. and post. tit. use and occupation, p. where rent
had been paid for a single quarter only, Abbott, C. J. held that not to be evidence of a new continuing te
pancy. b 13 H. 8. 15 b. c Roe d. Brown v. Wilkinson, Harg.
and But. Co. Litt. 270. b. n. 1. Roe d. Henderson v. Charnock, Peake's N. P. C. 4. 5.
(13) By legal computation half a year contains 182 days; for the odd hours are rejected. 1 Inst. 135. b. But a notice served on the 28th of September to quit on the 25th of March, although the period contain only 179 days, has been holden to be a good notice. Doe d. Harrop v. Green, 4 Esp. N. P. C. 199. And Lord Ellenborough, in the same case, said, that a notice on the 29th of September to quit at Lady-day following had been holden good. See Ř. v. Swyer, 10 B. & Č. 486. where it was holden, that the words, “Three Years" in the prohibitory clause of a charter imported years of office, and not calendar years.
(14) By the custom of London, a tenant at will, under 40s. rent, shall not be turned out without a quarter's warning. Dethik v. Saunders, 2 Sidf. 20. See also Tyley v. Seed, Skin. 619.
sentative, having the same interest in the land which the tenant had, will be entitled to the same notice ; that is, half a year's notice ending with the yeard. So if an infant becomes entitled to the reversion of lands leased to a tenant from year to year, he cannot maintain an ejectment, unless he has given the tenant a proper notice to quite. There is not any distinction between houses and land, in this repect. Half a year's notice to quit, ending with the year of the tenancy, must be given in both casesf. Neither will the circumstance of the rent being reserved quarterly, vary the case, if the tenancy be from year to year8 (15). So if a house be let from year to year, to quit at a quarter's notice, the notice must be given to quit at the end of a quarter expiring with a year of the tenancyh. But if the demise be for one year only, and then to continue tenant afterwards, and to quit at a quarter's notice, a quarter's notice ending at any time will be sufficient. So where premises are taken under an agreement by which the “tenant is always to be subject to quit at three months' notice,” this constitutes a quarterly tenancy, which may be determined by a three months' notice to quit, expiring at the same time of the year it commenced, or any corresponding quarter-day. But although the tenant under such an agreement enters in the middle of one of the usual quarters if there appears to be no agreement to the contrary, he will be presumed to hold from the day he enters, and the tenancy can only be determined by a notice expiring on that day of the year, or some other quarter-day calculated from thencek A demise, “not for one year only, but from year to year,
1," inures as a demise for two years at least; and consequently, the tenant cannot be ejected after a notice to quit at the expiration of the first year!. But where furnished apartments were taken " for twelve months certain, and six months' notice afterwards," it was contended, that the defendant, under the above taking, was not at liberty to quit till six months'
d Doe d. Shore y. Porter, 3 T. R. 13. h Doe d. Pitcher v. Donovan, 2 Campb.
See also 3 Wils. 25. and Lawrence, 78. 1 Taunt. 555. S. C.
J. in R. v. Stone, 6 T. R. 298. i Per Chambre, J.S. C. e Maddon v. White, 2 T. R. 159. k Kemp v. Derrett, 3 Campb. 510. f Right v. Darby, 1 T. R. 162. | Denn v. Cartwright, 4 East, 31. & Shirley v. Newman, 1 Esp. N. P. C. m Thompson v. Maberly, 2 Campb.573.
267. Kenyon, C. J.
(15) But where a house is taken by the month, a month's notice will be sufficient. Doe d. Parry v. Hazell, 1 Esp. N. P. C. 94.
notice had been given after the expiration of the first year; but Lord Ellenborough was clearly of opinion, that the defendant was only bound to remain the twelve months certain, and that he was at liberty to quit at the end of that period, by giving six months' previous notice. His lordship laid considerable stress upon the word certain, applied to the first twelve months, which shewed that every thing afterwards was uncertain and depended on the notice. If a lessee, after the expiration of the lease, holds over and pays rent, the law presumes an agreement between the parties, that the tenant shall continue the possession according to the terms of the original demise, as far as those terms are consistent with a tenancy from year to year; in which case, if the landlord means to determine the tenancy, he must give the tenant half a year's notice to quit, corresponding with the time of the original taking. In this case, the tenancy from year to year commences at the same time when the lease began"; and if the tenant assign the premises, the assignee will be tenant from year
to year from the same time, and notice to quit must be given accordingly: e. g. if the original term began from Michaelmas, the notice must be to quit at Michaelmas. The receipt of rent is evidence to be left to a jury that a tenancy was subsisting during the period for which that rent was paid; and if no other tenancy appear, the presumption is, that that tenancy was from year to year. A., being tenant for life', with remainder to the lessor of the plaintiff in fee, on 22nd June, 1785, demised to defendant, for twenty-one years, to commence from old Lady Day then past. On 30th September, 1785, A. died ; defendant continued in possession, and paid rent to the lessor of the plaintiff for two years, on old Lady Day and old Michaelmas Day; before old Michaelmas Day, 1787, lessor of plaintiff gave defendant notice to quit on old Lady Day then next. Adjudged, per cur., that the notice was good, on the ground, that payment of rent on the 5th of April was evidence of an agreement for a tenancy from year to year to hold from that day; although it was objected, that the interest of the tenant for life having expired on the 30th of September, the notice ought to have been to quit at the end of the year from that time. In January, 1790, A.P let a farm to defendant for seven years by parol. Defendant was to enter at old Lady Day on the land, and on the house on the 25th of May, and he was to quit at Candlemas. On the 22nd of September, 1792, a notice to
n Doe d. Castleton v. Samuel, 5 Esp. o Doe d. Jordan v. Ward, 1 H. Bl. 97. N. P. C. 173.
p Doe d. Rigge v. Bell, 5 T. R. 471.