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broken, with notice of the breach, is a waver of the forfeiture.

Ejectment, by a landlord, against his tenant, on a proviso for re-entry for non-payment 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 declation 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.

But acceptance of rent, without notice of forfeiture, will not amount to a waver".

A landlord of premises, about to sell them, gave his tenant notice to quit, on the 11th of October, 1800, but promised him not to turn him out 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 quit.

In order to raise an implied tenancy 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.

r Roe d. Crompton v. Minshal, B. R.
E. 33 G. 2. Bull. N. P. 96. and MSS.
s Gregson v. Harrison, 2 T. R. 425.
t Whiteacre d. Boult v. Symonds, 10
East, 13. See also Doe d. Leeson
v. Sayer, 3 Camp. N. P. C. 8.

u Doug. 51. Cowp. 201. 483.

x Doe d. Martin v. Watts, 7 T R. 83. y Right v. Bawden, 3 East, 260. See also 10 East, 188, 9. Doe v. Quigley, 2 Camp. N. P. C. 505.

Where, however, tenant in tail had received an ancient rent of 11. 188. 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 30l. 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 reentry. 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 holden to operate as a waver of the forfeiture.

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 on 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 (18).— Neither is such notice necessary in a case where the possession is adverse, 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

z Denn d. Brune v. Rawlins, 10 East, b Doe v. Meux, 4 B. & C. 606. c Doe v. Williams, Cowp. 622.

261.

a Roe d. Goatly v. Paine, 2 Camp. N. P. C. 520.

(18) "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 expiration of the next or any following year." Per Lord Mansfield, C. J. in Right v. Darby, 1 T.R.

to the landlord. But if the acts done by the tenant do not amount to a disavowal of the landlord's title, then the tenant is entitled to notice,

A mortgagor in possession, being only tenant by sufferance, is not entitled to a notice to quit: and consequently 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 assignee, 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, died; 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.

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 necessary. 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 quit'. 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. The defendant's confession of a lease from the lessor to the plaintiff, under the common rule, is not sufficient to determine the possession; for the rule is only entered into after the delivery of the declaration in ejectment, and can never prove that the defendant was trespasser before that time.

d Throgmorton v. Whelpdale, H. 9. h Doe d. Knight v. Quigley, 2 Camp.

G. 3. Bull. N. P. 96. Doe v. Pasquali, Peake's N. P. C. 196.

e Keech v. Hall, Doug. 22.

f Thunder d. Weaver v. Belcher, 3 East, 448.

g Doe d. Broomfield v. Smith, 6 East,

N. P. C. 505.

i Per Curiam,

Hegan v. Johnson,

2 Taunt. 148. See also Doe d. Leeson v. Sayer, 3 Camp. N. P. C. 8.

k Right d. Lewis v. Beard, 13 East, 210.

VI. Of the Mode of proceeding in Ejectment, and herein of the Declaration.

THE mode of proceeding in the action of ejectment now in use, is not, as in other actions, by suing out a writ; but A., the party claiming title, before the essoign day of the term, serves a copy of a declaration, with a notice subscribed, upon B. the tenant in possession of the lands or tenements; or, if there be several tenants, on each' of them.

The declaration states that A. on a certain day, (that is, some day after A.'s title to the land, &c. accrued), demised to John Doe, two messuages, one hundred acres of land, &c. situate, &c. for the term ofyears, by virtue of which demise the said John Doe entered and was possessed, until Richard Roe afterwards ejected him.

Such is the outline of the declaration, which is for the most part a fiction; for, except in a few instances, there is neither lease, entry, nor ouster; and the parties, viz. the plaintiff, and the defendant, the ejector, usually termed the casual ejector, are fictitious persons. In some respects, however, care and accuracy are necesary in framing this declaration; as, 1st, The venue must be laid in the county in which the lands lie; for this is a local action. 2d, If there be several lessors, the demise stated in the declaration must be such as their title will warrant; as if the lessors of the plaintiff be joint-tenants or parceners (19), the declaration

1 Bull. N. P. 98.

m Bull. N. P. 107.

(19) In an action of ejectio firma, a lease was made by two parceners, and it was declared quod dimiserunt: an exception was taken, on the ground, that the lease was the several lease of each of them for her moiety, and holden good. Moor, 682, pl. 939. This case was denied by Holt, C. J. in Ld. Raym. 726, who ruled, that parceners might join in ejectment. Holt's opinion is confirmed by a passage in 1 Inst. 180. b. where it is said, that jointtenants must jointly implead, and jointly be impleaded by others, which property is common between them and parceners; and Holt's opinion is adopted in Buller's N. P. 107. It is corroborated by the following position in Rol. Ab. 878. pl. 5. If two parceners join in a lease for years by indenture, this is but one lease; for they have not several frank tenements, but shall join in an assize. And in Stedman v. Bates, Ld. Raym. 64. it was holden that parceners must join in an avowry for rent arrear.

must allege a joint demise; if tenants in common, a several demise by each of their several parts" (20). In the latter case the declaration must contain as many counts as there are tenants in common lessors of the plaintiff. But tenants in common may join in a lease to a third person, and then the declaration may state a demise by such lessee. 3d, The day, on which the demise is stated to have been made, must be some day after the title of the lessor of the plaintiff accrued; otherwise the plaintiff will be nonsuited: for not being entitled to the possession he cannot make a lease. Hence, in the case of a fine levied with proclamations, where an actual entry is necessary to complete the lessor's title, the demise must be laid on a day subsequent to the entry. But the surrenderee of a copy hold estate, after admittance, may maintain an ejectment against the surrenderor, on a demise laid on a day between the times of surrender and admittance; because, as against all persons, but the lord, the title of the surrenderee, after admittance, is perfect as from the time of the surrender, and shall relate back to it. So in ejectment by an administrator, the demise may be laid on a day after the

n Mantle v. Wollington, Cro. Jac. 166. o Berrington v. Parkhurst, Str. 1086. Moor v. Thursden, Show. 342. p Holdfast v. Clapham, 1 T. R. 600. Heatherly v. Weston, 2 Wils. 232.

S. P.

(20) "Declaration in ejectment was of a joint demise of A. and B., and on the evidence it appeared that they were tenants in common; the plaintiff failed." M. 3 Jac. Blackasper's case. Noy, n. 43. Hal. MSS. See Noy, 13. cited in Hargrave's n. (7) 1 Inst. 45 a. But payment of rent to the agent of A. B. C. is an admission that the party holds under A. B. C. jointly, and will support joint demise, unless it be expressly proved that they were entitled in a different manner. Doe d. Clarke and others v. Grant, 12 East, 221. See also Doe v. Read, 12 East, 57. In Roe d. Raper v. Lonsdale, 12 East. 39, it was holden that a copyhold descending by custom to all the children equally of the tenant last seised, one of the joint-tenants might maintain ejectment on his single demise for his own share. In Doe d. Lulham v. Fenn, 3 Camp. N. P. C. 190. Lord Ellenborough, C. J. held, that in ejeetment on the several demises of three persons, each demise being of the whole, the lessors of the plaintiff were entitled to a verdict, upon evidence, that they had jointly granted a lease to the defendant under which he had paid rent, but which had expired.-N. It was objected, that it must be taken that the lessors of the plaintiff were joint-tenants, and as there was not any joint demise, the plaintiff could nol recover, but Lord Ellenborough overruled the objection. See Worrall v. Beck, M. 8 Geo. 2. cited 1 Wils. 1.

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