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quit at Lady Day next was served on defendant. The court held, that this notice was improper, Lord Kenyon, C. J. observing, that though the agreement be void by the statute of frauds, as to the duration of the lease, yet it must regulate the terms, on which the tenancy subsisted, in other respects, i. e. as to the rent, the time of year when the tenant was to quit, &c. The agreement was, that defendant should quit at Candlemas. If the lessor, therefore, chose to determine the tenancy before the expiration of the seven years, he could put an end to it at Candlemas only.
Where the in-coming tenant enters upon different parts of the demised premises, at different times, half a year's notice to quit, with reference to the substantial time of entry, that is, with reference to the original time of entry on the substantial part of the premises demised is sufficient, the whole being demised at one entire rent. It is not necessary that the notice to quit should be given with reference to the time of entry on the other parts, which are only auxiliary to the principal subject of the demise. Neither is it necessary that separate notices to quit the other parts should be given, where all the parts are demised as one entire thing. One notice, given in conformity with the rule laid down, is sufficient. The substantial time of entry is not necessarily to be collected from the rent days, per Le Blanc, J. 7 East, 557, though it happened in the case of Doe v. Spence, that the tenant entered on the substantial part of the premises on the day from which the rent was reckoned. It is a question of fact for the jury to decide, which is the principal and which the accessorial subject of demise". This being found, the judge may then determine, whether the notice to quit has been given in due
Requisites of Notice.-With respect to the notice to quit, it may be observed, that although a parol notice is sufficients, yet it is more advisable to give a written notice; but not attested by a witness; for, if so attested, that witnesst must be called, or his absence must be accounted for. The terms in which the notice is expressed should be clear and definite, in order to avoid any objection on this ground at the trial of the ejectment; for it has been holden, that where an irregulara notice is given, it is not incumbent on the party served with it, to make an objection to it at the time of service; it is sufficient if he object to it at the trial. The courts, however, seem to listen to these objections with reluctance, and will, if possible, so construe the notice as to give effect to itx, Hence, “I desire you to quit, &c. or I shall insist on double rent ;" has been holden a good noticey. So upon a taking from old Michaelmas to old Michaelmas, a notice to quit at Michaelmas will be sufficient?, at least if it be proved, that the tenancy commenced at old Michaelmasa. So a notice delivered at Michaelmas, 1796, “to quit at Lady Day which will be in the year 1795," was adjudged to be good; for the intention is clear, and the words,“ in the year 1795," may be rejectedb. So a notice to quit at the expiration of the current year of the tenancy, which shall expire next after the end of one half year from the date of the notice, is sufficient, although no particular day is mentioned. It is, however, essentially necessary, that the notice should be to quit at the expiration of the current year of the tenancy; that is, if the defendant hold from Michaelmas, the notice must be given half a year before Michaelmas, to quit at Michaelmas; if from Lady Day at Lady Day, &c.; for, if a notice to quit at Midsummer be given to a tenant holding from Michaelmas, or vise versá, it will be insufficientd; and a notice to quit at a particular day is not prima facie evidence of a holding from that day, though a contrary doctrine was formerly holden", unless it is served personally on the tenant, who makes no objection at the time. In a case where the notice (which was delivered on the 29th of September) was to quit on the 25th of March, or the 8th day of April, next ensuing, defendant having objected to it on the ground that it did not express with sufficient accuracy the end of the tenancy, and the time when the defendant was to quit, and that at all events it was incumbent on the lessor of the plaintiff to shew that the defendant's tenancy commenced either on the 25th of March or 8th of April, Lord Kenyon, C. J. ruled the notice to be sufficient, and that the onus of proving the commencement of his tenancy lay on the defendanth. N. In this case the demise was laid on a day subsequent to the 8th of April. A notice to a weekly tenant to quit at the end of his tenancy, next after a week from the date of the notice was holden sufficient; where the ejectment was brought after a sufficient time had elapsed for covering a tenancy commencing with any day of the week. It will be proper to remark, that where the tenant, being applied to by his landlord respecting the commencement of his holding, informs him that it began on a certain day, and the landlord gives the tenant notice to quit agreeably to the information received", the tenant will be precluded from contending that his tenancy commenced on a different day, even though he can prove that the information which he gave his landlord proceeded on a mistake, and not from an intention to deceive. A receipt for rent up to a particular day is prima facie evidence of the commencement of the tenancy at that day?. Upon a parol demise, rent to commence from the following Lady Day m, evidence of the custom of the country is admissible to shew that by “Lady Day,” the parties meant “old Lady Day.” It is not essentially necessary that the notice should be directed to the defendant", if the terms of it shew that the defendant is tenant to the plaintiff, and if it is proved to have been served on the defendant at the proper time. Neither is it necessary for a landlord to give notice to any one but his own tenant', although such tenant may have underlet part of the demised premises. A., tenant from year to year to B. from Michaelmas, 1801, underlet part of the premises to C. A., without receiving any regular notice to quit from B., agreed to give him up possession at Michaelmas, 1810, and B. then took possession of all that A. had continued to occupy; but C. having before refused to deliver his part, was served, in the February preceding, with a notice to quit at Michaelmas, 1810, from B. to whom he had never paid rent, or otherwise acknowledged as his immediate landlord, but had paid his rent to A. up to Michaelmas, 1808, and had tendered him the rent which had accrued since that time, which A. had refused to receive. B. brought an ejectment against C.; it was holden, that the notice was insufficient, B. not having given any regular notice to A. his immediate tenant; and A. not having given any such notice to C.; for without one or other of such notices, Ci's interest in the part underlet continued. Lord Ellenborough observed “that a tenancy from year to year was determinable either by a regular notice to quit; or, he might say, for the purpose of this case, by a surrender of a part of the premises in the name of the whole; but A. had not done even that; for he merely ceased to reside on the part which he had retained in his own possession, without making a surrender in the name of the whole. But while he was tenant from
4 Doe v. Spence, 6 East, 120. Doe v. 8 Per Lord Ellenborough, C. J. in Doe
Watkins, 7 East, 551. See also d. Ld. Macartney v. Crick, 5 Esp. Doe d. Dagget v. Snowdon, 2 BI. R. N. P. C. 197. Roe v. Pierce, 1224.
Campb. 96. r Doe on d. of Heapy v. Howard, 11 t Doe d. Sykes v. Durnford, 2 M, and East, 498.
u Oakapple d. Green v. Copous, 4 T. 6 Doe d. D. of Bedford v. Knightley,
R. 361. But see Doe d. Leicester, 7 T. R. 63. 2 Taunt. 109.
6 2 Esp. N. P. C. 589. x See Doe v. Archer, 14 East, 245. d Oakapple d. Green v. Copous, 4 T. y Doe d. Matthews v. Jackson, Doug. R. 361. 175.
e 2 Campb. 258 n. Doe d. Ash v. Calz Denn d. Alstone v. Waine, C. B. E. vert, 2 Campb. 388.
32 G. 3. cited by Heath, J. Peake's f Doe d. Puddicombe v. Harris, per A. C. 195.
Eyre, Baron, Dorset Sum. Ass. 1784. a Doe d. Hinde v. Vince, Campb. 1 T. R. 161.
256. per Sir A. Mc. Donald, C. B. and g Doe d. Clarges v. Forster, 13 East, S. P. per Lord Ellenborough, C. J. 405. Thomas v. Thomas, 2 Campb. jn Doe v.
Brookes, 2 Camph. 257. n. 647.
h Doe d. Matthewson v. Wrightman,
4 Esp. N. P. C. 5. But see Doe v.
Forster, sup. i Doe d. Campbell v. Scott, 6 Bingh.
362. k Doe d. Eyre v. Lambly, 2 Esp. N. P.
C. 635. i Per Lord Ellenborough, C. J. in Doe
d. Castleton v. Samuel, 5 Esp. N. P. C. 174.
m Doe d. Hall v. Benson, 4 B. and A.
588. n Doe d. Matthewson v. Wrightman,
4 Esp. N. P. C. 5. o Roe'v. Wiggs, 2 Bos. and Pul. N. R.
330. See also 3 Taunt. 95. p Pleasant d. Hayton v. Benson, 14
East, 234. See Roe d. Blair v. Strect, 2 Ad. & Ell. 329.
year to year of the whole, he let off a part to the defendant; and nothing has been done to put an end to the tenancy as to that part. Evidence that the notice was delivered and explained to the servant of the tenant at his dwelling-house, though such dwelling-house be not situated on the demised premises, is presumptive evidence that the notice came to the hands of the tenant9, the servant not being called. But evidence of the notice having been left at the tenant's house', without further proof of its having been delivered to a servant, who is not called, or that it came to the tenant's hands is not sufficient. Evidence of the notice being served on the premisess, on one of two joint tenants, who resided on the premises, is presumptive evidence that the notice reached the other joint tenant, who resided elsewhere. A lease contained a proviso making it determinable by a notice in writing given by the lessor or his executors under his or their respective hands. Holdent that a notice signed by two only of three executors of the lessor to whom he had bequeathed the freehold as joint-tenants, expressing the notice to be given on behalf of themselves, and the third executor, was not good. Neither could such notice be sustained under the general rule of law that one joint-tenant may bind his companion by an act done for his benefit ; for non constat that the determination of the lease was for the benefit of the co-joint tenant, which it was incumbent on the party who wished to avail himself of it to prove. And the notice to quit being such as the tenant was to act upon at the time, no subsequent recognition of the third executor would make it good by relation: nor was his joining in the ejectment evidence of his original assent to bind the tenant by the notice. In the foregoing case a mode was specifically pointed out to be pursued, in order to put an end to a subsisting term, and that mode required the concurrence of all the joint-tenants; hence a notice by some of the jointtenants only, would have no operation. But where a notice to quit was signed by one of the several joint-tenants, on behalf of all, it was holden" sufficient to determine a tenancy from year to year as to all, inasmuch as a notice to quit by one of several joint-tenants, puts an end to the tenancy on behalf of all. Where there is a mere tenancy at will, any thing which amounts to a demand of possession, although not expressed in precise and formal language, is sufficient to indicate the determination of the landlord's will. It seems that a mere agent to receive rents has not an implied authority y to give a notice to quit.
q Jones d. Griffiths v. Marsh, 4 T. R. and another, 5 Esp. N. P. C. 196. 464.
S. P. Ellenborough, C. J. r Doe d. Buross v. Lucas, 5 Esp. N. P. t Right v. Cuthell, 5 East, 491. See C. 153.
Doe d. Mann v. Walters, 10 B. & C. s Doe v. Watkins and another, 7 East, 626.
551. Doe d. Ld. Macartney v. Crick
Waver of Notice.—Where a notice to quit has been given, the lessor must be careful not to do
any act which
may construed as an affirmance of the tenancy and a waver of the notice. A distress for rent, which accrued after the expiration of the time, at which, by the notice, the tenant is to quit, is an acknowledgment of the tenancya; so is the acceptance of rent so dueb; but it shall be left to the jury to say whether the money received was received as rent; for whether it shall be a waver of the notice depends on the intention of the parties, which is a matter of fact to be left to the juryo (16). Ejectment for recovering possession of a farmd, tried before Lawrence, J. at Salop Sum. Ass. 1801. The farm consisted of lands of different descriptions, to be quitted at different times; the arable on the 29th of September, 1800; the pasture and meadow on the 30th of November; the dwell
u Doe d. Aslin and another v.Summer
sett, 1 B. & Ad. 135. x Doe d. Price v. Price, 9 Bingh. 356. y Doe d. Mann v. Walters, 10 B. & C.
a Ward v. Willingale, 1 H. Bl. 311.
6 T. R. 219.
East's R. 237.
(16) In the case of a tenancy from year to year, if at the expiration of the year, the landlord consents to accept another person as his tenant, the first tenant is thereby discharged, although he has not given any notice to quit, or made any surrender in writing of his interest. Sparrow v. Hawkes, 2 Esp. N. P. C. 505.