Ejectment for recovering possession of a farm, tried beforé 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 dwelling 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 (16), 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 1st of May, 1802. It was objected at the trial, that the second notice was a waver 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 the 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 (17). t Doe d. Williams v. Humphreys, 2 East's R. 237. ration 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. (16) 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. (17) In Messenger v. Armstrong, 1 T. R. 53. which was an Where rent is 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 waver". And here it may 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 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 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. 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, 1806, but promised him not to turn him out unless they were sold; and a Doe v. Calvert, 2 Camp, N. P. C. 387.. x Goodright d. Walter v. Davids, Cowp. 903. y Adm. Green's case, Cro. Eliz. 3. z Roe d. Crompton v. Minshal, B. R. action for double rent, 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, plaintif gave the defendant notice to quit at that time. After the expiration of this notice, viz. on the 3d 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 waved by the second; but the objection was overruled; Ld. 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 the tenant did not quit, the landlord would insist on double rent; and the second notice only expressed what was meant by the 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. Where, however, tenant in tail had received an ancient rent of 17. 18s. 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 301. 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, 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. Where Notice to quit is not required.-The doctrine relative c Doug. 51. Cowp. 201. 483. d Doe d. Martin v. Watts, 7 T. R. 83. e Right v. Bawden, 3 East, 260. See also 10 East, 188, 9. Doe v. Quigley, 2 Camp. N. P. C. 505. f Dean d. Brune v. Rawlins, 10 East, 261. g Roe d. Goatly v. Paine, 2 Camp. N. P. C. 520. 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 apprised of the determination of the term (18). Neither is such notice necessary in a case where the possession is adversch, 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 landlord'. But if the acts done by the tenant do not amount to a disavowal of a 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 the 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 h Doe v. Williams, Cowp. 622. i Throgmorton v. Whelpdale, H. 9 G. 3. Bul. N. P. 96. Doe v. Pasquali, Peake's N. P. C. 196. k Keech v. Hall, Doug. 22. 1 Thunder d. Weaver v. Belcher, 3 East, 448. m Doe d. Broomfield v. Smith, 6 East, 530.. n Doe d Knight v. Quigley, 2 Camp. N. P. C. 505. (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 Ld. Mansfield C. J. in Right v. Darby, 1 T. R. 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 suffici ent 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 a trespasser before that time. 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 each1 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 of years, 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, • Per Curiam, Hegan v. Johnson, 2 Taunt. 148, p Right d. Lewis v. Beard, 13 East, 210. q Bull. N. P. 99. |