But where a notice to quit was signed by one of the several jointtenants, on behalf of all, it was holden (g) 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. So a notice to quit given by a person authorized by one of several lessors, joint-tenants, determines the tenancy as to all (h). Where there is a mere tenancy at will, any thing which amounts to a demand of possession (i), although not expressed in precise and formal language, is sufficient to indicate the determination of the landlord's will.

A receiver appointed by the Court of Chancery, with a general authority to let the lands to tenants from year to year, has also authority (k) to determine such tenancies by a notice to quit; and an agent to receive rents and let has been holden (1) to have a similar authority; but a mere receiver of rents, as such, has no authority to determine a tenancy (m). A verbal notice to quit given by the steward of a corporation is sufficient (n), without evidence that he had an authority under seal; but a notice to quit given by an agent of an agent is not sufficient (o) without a recognition by the principal.

Waiver of Notice.-Where a notice to quit has been given, the lessor must be careful not to do any act which may be construed as an affirmance of the tenancy and a waiver 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 tenancy (p); so is the acceptance of rent so due (9); but it shall be left to the jury to say whether the money received was received as rent; for whether it shall be a waiver of the notice depends on the intention of the parties, which is a matter of fact to be left to the jury (r) (17). Ejectment for recovering possession of a farm (s), tried before Lawrence, J., at Salop Sum. Ass. 1801. The farm con

(g) Doe d. Aslin and another v. Summersett, 1 B. & Ad. 135.

(h) Doe d. Kindersley v. Hughes, 7 M. & W. 139, recognizing Doe d. Aslin v. Summersett.

(i) Doe d. Price v. Price, 9 Bingh. 356. (k) Doe d. Marsack v. Read, 12 East, 57.

(1) Doe d. Manvers v. Mizem, 2 M. & Rob. 56, Patteson, J.

(m) Doe d. Mann v. Walters, 10 B. & C. 626.

(n) Roe v. Pierce, 2 Campb. 96, recognized in Smith v. Birmingham Gas Company, 1 A. & E. 531.

(0) Doe d. Rdehos v. Robinson, 3 Bingh. N. C. 677.

(p) Ward v. Willingale, 1 H. Bl. 311. (g) Goodright d. Charter v. Cordwent, 6 T. R. 219.

(r) Doe v. Batten, Cowp. 243.

(s) Doe d. Williams v. Humphreys, 2 East's R. 237.

(17) 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.

sisted 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 (18), 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 20th of September, 1801; the meadow and pasture on the 30th of November, 1801; the dwellinghouse, &c. on the 1st of May, 1802. It was objected, at the trial, that the second notice was a waiver 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 waiver 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 waive 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 (19). Where rent

(18) 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.

(19) 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 the tenant did not quit, the landlord would insist on double rent; and the second notice only expressed what was meant by the first. where after the expiration of a notice to quit, the landlord gave the defen

So

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 waiver (t).

Here it may be proper to take notice of a doctrine analogous to the subject of the preceding remarks, viz. that acceptance (u) of, or a distress (x) for, rent due after condition broken, with notice of the breach, is a waiver of the forfeiture. Ejectment, by a landlord, against his tenant (y), 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 waived 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: and the general rule is, that a clause of re-entry be construed strictly (z). Proviso in a lease (a), giving power of re-entry if the lessee "shall do, or 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,

(t) Doe v. Calvert, 2 Campb. 387. (u) Goodright d. Walter v. Davids, Cowp. 803; Arnsby v. Woodward, 6 B. & C. 519. See Doe d. Griffith v. Pritchard, 5 B. & Ad. 765; 2 Nev. & M. 489. (x) Adm. Green's case, Cro. Eliz. 3.

(y) Roe d. Crompton v. Minshal, Bull. N. P. 96, and MSS.

(z) Per Tenterden, C. J., in Doe d. Palk v. Marchetti, 1 B. & Ad. 720.

(a) Doe d. Abdy v. Stevens, 3 B. & Ad.

299.

dant 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 statute of frauds. It was holden, also, that the tenant having 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. II. 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. & C. 922 ; see Doe d. Murrell v. Milward, 3 M. & W. 328; ante, p. 712.

the omission to repair not being an act done within the meaning of the proviso. In ejectment for not insuring according to covenant; it was holden (b), that it was incumbent on the plaintiff to prove that no insurance had been effected, and that the circumstance that the defendant refused to show the policy, when the plaintiff required him, and the non-production of it on the trial after notice, were not primâ facie evidence against him; for the lessor of the plaintiff has chosen to make the forfeiture depend on a condition peculiarly within the knowledge of the defendant, and has therefore brought the difficulty on himself. Littledale, J., said, in covenant for not insuring, perhaps it might be for the defendant to prove affirmatively that he had insured, but not in an action like the present for a forfeiture. It has been holden (c), that a landlord does not waive a forfeiture by merely lying by and witnessing the act, but that there must be some act affirming the tenancy. Acceptance of rent, without notice of forfeiture, will not amount to a waiver (d). So a lessor who has a right of re-entry reserved on a breach of covenant not to underlet, does not, by waiving his re-entry, on one underletting, lose his right to re-entry on a subsequent underletting (e). 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 (f), 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 waiver of the notice, nor operated as a license 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 (g); 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 (h). In order to raise an implied tenancy (i) 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 (k) had received an ancient rent of 17. 18s. 6d. from

(b) Doe d. Bridger v. Whitehead, 3 Nev. & P. 557; 8 A. & E. 571.

78.

(c) Doe d. Sheppard v. Allen, 3 Taunt.

(d) Gregson v. Harrison, 2 T. R. 425. (e) Doe d. Boscawen v. Bliss, 4 Taunt. 735.

(f) Whiteacre d. Boult v. Symonds, 10 East, 13. See also Doe d. Leeson v. Sayer, 3 Campb. 8.

(g) Doug. 51; Cowp. 201, 483.

(h) Doe d. Martin v. Watts, 7 T. R. 83; recognized in Doe d. Tucker v. Morse, 1 B. & Ad. 365.

(i) Right v. Bawden, 3 East, 260. See also 10 East, 188, 9; Doe v. Quigley, 2 Campb. 505.

(k) Denn d. Brune v. Rawlins, 10 East, 261.

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 re-entry. It was holden (1), 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 waiver of the forfeiture. But where the notice required the tenant to repair within three months; this was holden (m) to operate as a waiver 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. In a case (n) where there was a general covenant to repair, but no specific power of re-entry for breach of that covenant, but a proviso for re-entry in case of non-repair within three months after notice, or in case of breach of the other covenants: notice (dated 6th of January) was given to repair within three months; and ejectment was brought before the expiration of the three months. At the Spring Assizes, by consent of parties, an order of court was made that a juror should be withdrawn, and the repairs be performed on or before the 24th of June. The repairs not being performed on that day, another ejectment was brought, and the plaintiff had a verdict, and the court refused a rule for a new trial, for the right of entry was at all events only suspended, Parke, J., observing, that "the lessor of the plaintiff had put an end to the first action by consenting to the order of court. It was the same as if the parties, after the 6th of January, and before the expiration of the three months, had agreed, that the time for repairing should be extended to the 24th of June: it was merely a consent to postpone the time of completing the repair for the benefit of the defendant; and on his failing to comply with the terms, the lessor of the plaintiff might justly insist on his right of entry, and bring a new ejectment after the expiration of the enlarged time."

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

(1) Roe d. Goatly v. Paine, 2 Campb. 520.

(m) Doe v. Meux, 4 B. & C. 606, cited by Patteson, J., in Doe d. de Rutzen v.

Lewis, 5 A. & E. 289.

(n) Doe d. Rankin v. Brindley, 4 B. & Ad. 84, cited by Patteson, J., in Doe d. de Rutzen v. Lewis, 5 A. & E. 289.