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 (20). Neither is such notice necessary in a case where the possession is adverse (n), 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 (o); and, in the case of a tenancy from year to year, it does not appear to be necessary that any act should be done as distinguished from a verbal disclaimer; a disavowal by the tenant of the holding under the particular landlord by words only is sufficient. But in order to make a verbal or written disclaimer sufficient, it must amount to a direct repudiation of the relation of landlord and tenant, or to a distinct claim to hold possession of the estate upon a ground wholly inconsistent with the existence of that relation (p). 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 (q), that he (the tenant) was ready to pay the rent to any person entitled to receive it, then the tenant is entitled to notice. It is sometimes said that a tenancy from year to year is forfeited by disclaimer; but it would be more correct to say that a disclaimer furnishes evidence in answer to the disclaiming party's assertion, that he has had no notice to quit; as it would be idle to prove such a notice where the tenant has asserted that there is no longer any tenancy (r). A tenant for a definite term of years does not forfeit his term by orally refusing, upon demand made by his landlord, to pay the rent, and claiming the fee as his own (s).

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 is not entitled to a notice to quit, or even a demand of possession (t); and if a mortgagor lets another

(n) Doe v. Williams, Cowp. 622. (0) Throgmorton v. Whelpdale, H. 9 Geo. III., Bull. N. P. 96.

(p) Per Parke, B., delivering judgment of court in Doe d. Gray v. Stanion, 1 M. & W. 702.

(q) Doe d. Williams v. Pasquali,

Peake's N. P. C. 3rd edit. 259; see also

Doe d. Dillon v. Parker, Gow's N. P. C. 180.

(r) Per Patteson, J., in Doe d. Graves v. Wells, 10 A. & E. 427. (8) S. C.

(t) Doe d. Robey v. Maisey, 8 B. & C. 767.

(20) "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. 162.

person into possession, as tenant from year to year, such tenant is not entitled to a notice to quit, either from the mortgagee (u), or his assignee (x); 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 (y); 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 expired (2).

Where a person obtains possession of a house without the privity of a landlord, and afterwards a negotiation takes place for a lease, upon the terms of which the parties eventually differ, a notice to quit is not necessary (a). 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 (b). 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 (c), 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 holden (d) sufficient, without any notice to quit; as the minister was a mere tenant at will to the trustees. The same point was ruled (e) in a subsequent case, where the defendant had an annual salary of 201., and the ejectment had been served immediately

(u) Keech v. Hall, Doug. 22; see Brown v. Storey, 1 M. & Gr. 117; 1 Scott's N. R. 9.

(x) Thunder d. Weaver v. Belcher, 3 East, 449.

(y) Doe d. Bromfield v. Smith, 6 East, 530.

(z) Doe d. Tilt v. Stratton, 4 Bingh. 446; Doe v. Day, B. R. Middlesex Sittings, 1 Will. IV., coram Park, J., S. P. (a) Doe d. Knight v. Quigley, 2 Campb.

after the demand of possession; although it was urged that the defendant was entitled to a reasonable notice. It is not necessary that this demand should be made on the premises; and even where made on a Sunday, it was holden (f) good. 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 a trespasser before that time.

By stat. 1 Geo. IV. c. 87, s. 1, after reciting that it was expedient to provide in certain cases a more expeditious mode for recovering the possession of lands and tenements unlawfully held over by tenants, it is enacted, that, "where the term or interest of any tenant holding under a lease or agreement in writing any lands or hereditaments for any term or number of years certain, or from year to year, shall have expired, or been determined either by the landlord or tenant by regular notice to quit, and such tenant, or any one holding or claiming by or under him, shall refuse to deliver up possession, after lawful demand in writing made and signed by the landlord or his agent, and served personally upon or left at the dwelling-house or usual place of abode of such tenant or person, and the landlord shall thereupon proceed by ejectment for the recovery of possession, he may, at the foot of the declaration, address a notice to such tenant or person, requiring him to appear in the court in which the action shall be commenced on the first day of the term next following, there to be made defendant and to find bail if ordered by the court; and upon appearance, or in case of nonappearance, or making the usual affidavits of service, the landlord producing the lease or agreement, or some counterpart or duplicate thereof, and proving the execution by affidavit, and upon affidavit that the premises have been enjoyed under such lease or agreement, and that the interest of the tenant has expired or been determined by regular notice to quit, and that possession has been lawfully demanded in manner aforesaid, may move the court for a rule for such tenant or person to show cause, within a time to be fixed by the court, on a consideration of the premises, why such tenant or person, upon being admitted defendant, besides entering into the common rule, should not undertake, in case a verdict should pass for the plaintiff, to give him a judgment, to be entered up against the real defendant of the term next preceding the trial; and also why he should not enter into a recognizance by himself and two sufficient sureties, in a reasonable sum, conditioned to pay the costs and damages recovered by the plaintiff in the action; and the court, on cause shown, or affidavit of service, may make the rule absolute in the whole or in part, and order such tenant or person, within a time fixed, to give such undertaking, and find such bail, with such

(f) Doe d. Turner v. Benallack, B. R. E. 10 Geo. IV.

conditions, and in such manner, as shall be specified in the rule, or such part of the same so made absolute; and if the party shall neglect or refuse so to do, and shall lay no ground to induce the court to enlarge the time for obeying the same, then upon affidavit of service of the order, the rule may be made absolute to enter judgment for the plaintiff."

The effect of this statute is to save the landlord the necessity of going to trial when the tenant holds over vexatiously, and when the trouble and expense of an ejectment may be very disproportionate to the value of the premises. Hence a tenancy by virtue of an agreement for three months certain, is a tenancy "for a term ' within the meaning of the statute (g); but a tenancy for years, determinable on lives (h), is not: and where the tenant holds from year to year without a lease or agreement in writing, that is not a case within the meaning of the statute (i): and when the tenant holds under an agreement in writing from quarter to quarter, the tenant to quit possession at the end of any three months on receiving notice in writing, or in the event of his losing his license to sell ale, &c. at any time during the term, then forthwith to quit, on being requested so to do by the landlord without any notice; the tenancy was holden to be neither for a term certain, nor from year to year, within the meaning of this act (k).

This statute does not apply in cases where the title is disputed (1); nor to the case of a tenant who holds over after notice to quit given by himself, where his tenancy has not expired by efflux of time (m); nor to the case of a tenant who has surrendered his term, but refuses to quit the premises (n).

Under this statute there must be a separate and distinct demand signed by the landlord, besides the demand of possession by John Doe at the foot of the declaration (o).

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 first 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,

(g) Doe d. Phillips v. Roe, 5 B. & A. 766.

(h) Doe d. Pemberton v. Roe, 7 B. & C. 2.

(i) Doe d. Bradford v. Roe, 5 B. & A. 770.

(k) Doe d. Carter v. Roe, 10 M. & W. 670.

(1) Doe d. Sanders v. Roe, 1 Dowl. P.

C. 4.

(m) Doe d. Cardigan v. Roe, 1 Dow. & Ry. 540.

(n) Doe d. Tindal v. Roe, 2 B. & Ad. 922.

(0) Anon. E. T. 2 Geo. IV. Br., 1 Dow. & Ry. 435, n.

on each (p) of them.

The

Declarations in ejectment may be served before the first day of any term, and thereupon the plaintiff shall be entitled to judgment against the casual ejector in like manner as upon declarations served before the essoign, or first general return day. R. G. T. T. 1 Will. IV. 11th rule.-The Rule of Court, that every declaration shall be entitled of the day of the month and year on which it is filed and delivered, does not apply to declarations in ejectment (9). Where the declaration was entitled, "In the Common Pleas, June 12, 1834;" it was holden (r) sufficient, although it was urged, that it should have been entitled of some term, or if of a particular day, as of some term. 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, however, care and accuracy are necessary 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. But where the venue stated in the body of the declaration was correct; it was holden (s) to be sufficient, although the county in the margin was wrong; and it is sufficient also to state the lands only "in the county" (t). 2nd, If there be several lessors, the demise stated in the declaration must be such as their title will warrant; the lessors of the plaintiff be joint-tenants (u), or parceners (21),

as if

(s) Doe d. Goodwin v. Roe, 3 Dowl. (P. C.) 323.

(t) Doe v. Gunning, 2 Nev. & P. 260. (u) Bull. N. P. 107.

(21) In an action of ejectio firmæ, 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 joint-tenants 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 Roll. Abr. 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

VOL. II.

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