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ing-house, &c. on the 1st of May 1801. The lessor on the 21st of March, 1800, served the defendant with a notice to quit the farm at the several times above stated: and the defendant not having quitted the arable on the 29th of September, or the meadow and pasture on the 30th of November, the lessor brought his ejectment; pending which he delivered to the defendant another notice (17), dated the 20th of March, 1801, to quit the messuage and dwelling house, &c. together with the lands, &c. to wit, the arable on the 29th of September, 1801; the meadow and pasture on the 30th of November, 1801; the dwelling-house, &c. on the first of May, 1802. It was objected, at the trial, that the second notice was a yaver of the first, being a recognition of the tenancy still subsisting: but the learned judge overruled the objection and a verdict was found for plaintiff. The court (after argument on motion to enter a nonsuit,) concurred in opinion with Lawrence, J., observing, that it had been admitted, in the course of argument, that if the plaintiff had not intended that the second notice should operate as a waver of the first, he might have so explained his intention, by adding that the second notice was to enable him to recover the premises at a subsequent assizes, if, by any accident he should fail at those then ensuing. And, under the circumstances, the defendant must have understood, that this notice was given for that purpose; and it was not possible for the defendant to suppose, that the plaintiff intended to wave the first notice, when he knew the plaintiff was, on the foundation of that notice, proceeding by ejectment to turn him out of the farm (18). Where rent is
(17) The second notice was copied verbatim from the first, with the alteration only of the dates ; and the reason suggested at the bar, why it was given, was, because the person who was to prove the service of the first notice was dangerously ill, and it was apprehended, that the lessor would not be able to prove the notice.
(18) In Messenger v. Armstrong, 1 T. R. 53, which was an action for double the yearly value, it appeared that the defendant was tenant to the plaintiff, under a demise for three years, from Whitsuntide, 1781. Two months previously to Whitsuntide, 1784, plaintiff gave the defendant notice to quit at that time. After the expiration of this notice, viz. on the 3rd of June, 1784, the plaintiff gave the defendant another notice to quit at the Martinmas following, or to pay double rent. It was contended, that the first notice was waived by the second; but the objection was overruled; Lord Mansfield, C. J. observing, that where a term is to end on a precise day, there is not any occasion for a notice to quit ; that here it ended at Whitsuntide ; that the meaning of the first notice was, that if usually paid at a banker's, if the banker, without any special authority, receives rent accruing after expiration of notice to quit, it will not operate as a wavere. And here it
be proper to take notice of a doctrine analogous to the subject of the preceding remarks, viz. that acceptance of, or a distress for, rent due after condition broken, with notice of the breach, is a waver of the forfeiture. Ejectment, by a landlord, against his tenanth, on a proviso for re-entry for nonpayment of rent arrear: it appeared, that the lessor had brought covenant for half a year's rent, due on a day subsequent to the day of the demise laid in the declaration in ejectment, and a rule had been obtained to pay the rent arrear into court in that action: it was holden that the plaintiff had waved the right of entry for the forfeiture; because, by bringing the action of covenant on the lease, he admitted the defendant to be tenant in possession by virtue of the lease; and the tenant having brought the money into court was equivalent to acceptance. The law will always incline against forfeitures, as courts of equity relieve against them. Proviso in a lease', giving power of re-entry if the lessee “shall do or e Doe v. Calvert, 2 Campb. 387. h Roe d. Crompton v. Minshal, Bull. f Goodrightd. Walter v. Davids, Cowp.
803. Arnsby v. Woodward, 6 B. & i Doe d.Abdy v. Stevens, 3 B. & Ad.
C. 519. & Adm. Green's case, Cro. Eliz. 3.
N. P. 96. & MSS.
the tenant did not quit, the landlord would insist on double rent; and the second notice only expressed what was meant by the first. So where after the expiration of a notice to quit, the landlord gave the defendant a fresh notice, that unless he quitted in fourteen days, he would be required to pay double value. Lord Ellenborough, C. J. held that the second notice was not a waiver of the first. Doe d. Digby v. Steel, 3 Campb. 117. A tenant held under a demise from the 26th day of March for one year then next ensuing, and so from year to year, for so long as the landlord and tenant should respectively please. The tenant, after having held more than one year, gave a parol notice to the landlord less than six months before the 25th day of March, that he would quit on that day, and the landlord accepted and assented to the notice; it was holden, on demurrer in replevin, that the tenancy was not thereby determined, there not having been either a sufficient notice to quit, or a surrender in writing, or by operation of law within the stat. of frauds. It was holden also, that the tenant baving holden over after the expiration of the time mentioned in the notice to quit, the landlord was not entitled to distrain for double rent, under stat. 11 Geo. 2. c. 19. s. 18, inasmuch as that statute applies only to those cases where the tenant has the power of determining his tenancy by a notice, and where he actually gives a valid notice, sufficient to determine it. Johnstone v. Hudlestone, 4 B. and C. 922.
cause to be done, any act, matter, or thing, contrary to, and in breach of, any of the covenants," does not apply to a breach of the covenant to repair, the omission to repair not being an act done within the meaning of the proviso. Acceptance of rent, without notice of forfeiture, will not amount to a waverk. So a lessor who has a right of re-entry reserved on a breach of covenant not to underlet, does not, by waving his re-entry, on one underletting, lose his right to re-enter on a subsequent underletting? A landlord of premises, about to sell them, gave his tenant notice to quit, on the 1lth of October, 1806, but promised him not to turn him out m unless they were sold; and not being sold till February 1807, the tenant refused, on demand, to deliver up possession; and on ejectment brought, laying the demise on the 12th of October, 1806, it was holden, that the promise, which was performed, was no waver of the notice, nor operated as a licence to be on the premises otherwise than subject to the landlord's right of acting on such notice, if necessary; and, therefore, that the tenant, not having delivered up possession on demand, after a sale, was a trespasser from the expiration of the notice to quit. Acceptance of rent, as rent by a remainder-man, will not amount to a confirmation of a lease void as against him”; but it is an admission of a tenancy from year to year, and the lessee will thereby be entitled to half a year's notice to quito. In order to raise an implied tenancyp from the receipt of rent, it must appear that the rent was paid and received, as between landlord and tenant, so as to raise a presumption of an agreement for a tenancy from year to year, and not as in the case of a conventionary rent, where the payment is made with reference to a supposed tenancy of another kind, Where, however, tenant in tail9 had received an ancient rent of 11. 185. 6d. from the lessee in possession, under a void lease, granted by tenant for life under a power, the rack rent value of which was £30 a-year, it was holden, that such tenant in tail could not maintain an ejectment, laying his demise on a day before the delivery of the declaration, without giving the lessee some notice to quit, so as to make him a trespasser at the time of the action brought, after such recognition of a lawful possession, if not as tenant from year to year, at least as tenant at will. An indenture of lease contained a general covenant to repair, and a further covenant that the tenant should, within three months after notice, repair all defects, of which notice had been given. The lease contained the usual clause of re-entry.—It was holden' that the landlord, who had served a notice to repair forthwith, might maintain ejectment, before the expiration of the three months, for a breach of the general covenant to repair; for the notice was not any waver of the forfeiture. But where the notice required the tenant to repair within three months, this was holdens to operate as a waver of the forfeiture. From this last decision it appears that in cases where a notice to repair has been given, it will be prudent neither to serve the ejectment nor to lay the demise until the time allowed by the notice has expired.
k Gregson v. Harrison, 2 T. R. 425. o Doe d. Martin v. Watts, 7 T. R. 83, 1 Doe d. Boscawen v. Eliss, 4 Taunt. recognized in Doe d. Tucker v. 735.
Morse, I B. & Ad. 365. m Whiteacre d. Boult v. Symonds, 10 p Right v. Pawden, 3 East, 260. See
East, 13. See also Doe d. Leeson v. also 10 East, 188, 9. Doe v. Quigley, Sayer, 3 Campb. 8.
2 Campb. 505. n Doug. 51. Cowp. 201. 483,
9 Denn d. Brune v. Rawlings, 10 East,
Where Notice to quit is not required.—The doctrine relative to notices to quit, is only applicable to those tenancies where the time of quitting is not agreed upon between the parties; for, where a lease is determinable upon a certain event, or at a fixed time, it is not necessary to give such notice, both parties being apprized of the determination of the term (19). Neither is such notice necessary in a case where the possession is adverset, or where the relation of landlord and tenant does not subsist; e. g. if the tenant has attorned to some other person, or done some other act disclaiming to hold as tenant to the landlordu. But if the acts done by the tenant do not amount to a disavowal of the landlord's title, e. g. a refusal to pay rent to a devisee under a contested will, accompanied with a declaration that he (the tenant) was ready to pay the rent to any person entitled to receive it, then the tenant is entitled to notice. A mortgagor in possession stands in a peculiar character; and is liable to be treated as tenant or trespasser, at the option of the mortgagee; and consequently r Roe d. Goatly v. Paine, 2 Campb. x Doe d. Williams v. Pasquali, Peake's 520.
N. P. C. 3rd. Edit. 259. s Doe v. Meux, 4 B, and C. 606.
Doe d. Dillon v. Parker, Gow's N. t Doe v. Williams, Cowp. 622.
P. C. 180. u Throgmorton v. Whelpdale, H. 9. G.
3 Bull. N. P. 96.
(19) “ If there be a lease for a year, and, by consent of both parties, the tenant continue in possession afterwards, the law implies a tacit renovation of the contract. They are supposed to have renewed the old agreement, which was to hold for a year. But then it is necessary, for the sake of convenience, that, if either party should be inclined to change his mind, he should give the other half a year's notice before the expiratio 1 of the next or any following year.” Per Lord Mansfield, C. J. in Right v. Darby, 1 T. R. 162.
is not entitled to a notice to quit, or even a demand of possession!; and if a mortgagor lets another person into possession, as tenant from year to year, such tenant is not entitled to a notice to quit either from the mortgagee?, or his assigneea, and this rule holds, although the tenant has been let into possession before the assignment of the mortgage. A. agreed to demise a house to B., during the joint lives of A. and B.; B. entered, in pursuance of the agreement, and, before any lease was executed, diedb; after which B.'s executor took possession of the house; it was holden that A. might maintain ejectment against the executor, without a notice to quit; because the death of B. determined his interest, and consequently there was not any interest vested in the executor. So where the tenant had occupied under an agreement for a lease for seven years, which period had expiredc.
Where a person obtains possession of a house without the privity of a landlord, and afterwards a negociation takes place for a lease, upon the terms of which the parties eventually differ, a notice to quit is not necessaryd. So where a person enters under an agreement for a lease, without a stipulation that in case a lease is not executed he shall hold for one year certain, if a lease be tendered to the occupier and he refuses to execute it, the lessor may eject him without any notice to quite. But where the lessor of the plaintiff had put the defendant into possession under an agreement for the purchase of the land, it was holden', that he could not without a demand of the possession again, and a refusal by the defendant, or some wrongful act by him to determine his lawful possession, treat the defendant as a wrong-doer and a trespasser, as he assumed to do by his declaration in ejectment. A minister of a dissenting congregation, after his election, was put into possession of a chapel and dwelling-house, by persons in whom the legal fee was vested in trust, to permit and suffer the chapel to be used for the purpose of religious worship; afterwards, at a meeting of the congregation, it was determined, by a large majority, that the minister should be changed; but another was not elected. Possession of the premises was demanded on behalf of the trustees; this was
y Doe d. Roby v. Maisey, 8 B. and C. tings, 1 William 4th, coram Park, J. 767.
S. P. 2 Keech v. Hall, Doug. 22.
d Doe d. Knight v. Quigley, 2 Campb. a Thunder d. Weaver v. Belcher, 3 East, 505. 449.
e Per Curiam, Hegan v. Johnson, b Doe d. Broomfield v. Smith, 6 East, 2 Taunt, 148. Ste also Doe d. Lee530.
son v. Sayer, 3 Campb. 8. c Doe d. Tilt v. Stratton, 4 Bingh. 446. f Right d. Lewis v. Beard, 13 East.
Doe v. Day, B. R. Middlesex Sit. 210.