months' notice to quit, &c. Held that the lease could only be determined by twelve months' notice given "by the representatives of the party dying before the end of the term;" and consequently that such notice given by the lessor to the representatives of the lessee (who died during the term) did not determine it (a).

Where a power is given to a party to determine a lease on giving a notice in writing, he cannot determine it by giving a parol notice (a). A parol notice, it should seem, would be sufficient under a parol demise (b); though in other cases it should be in writing (c).

Although a lease of tythes cannot be without deed, yet a parol agreement for retaining tythes must be determined by a notice, with analogy to the notice given in a holding of land (d).

Where there are three joint-trustees of an estate, notice to quit or discontinue the possession given by two is bad, even though given in the name of the third, and the third trustee afterwards adopts it and joins in the demise in ejectment (e).

To entitle joint-tenants to recover in ejectment against a tenant from year to year, the notice to quit must be signed by all the jointtenants at the time it is served; but if the notice be given by an agent it is sufficient, if his authority be subsequently recognized; and therefore when such notice was given by an agent under a written authority, which at the time of the service had been signed only by some of the several joint-tenants; but afterwards signed by all the others: held, that the subsequent recognition was sufficient to give validity to the authority from the beginning, and the notice to quit was therefore sufficient (ƒ).

A. demised premises to B. from year to year by a written agreement, B. entered and took receipts first from A. in his own namẹ alone, and afterwards in the name of A. and two others who were his partners, A. gave a notice to quit in his own name alone, it was contended that the notice ought to have been given by all three partners but the objection was overruled and A. recovered (g).

Notice to quit, served upon one of two tenants on the premises, under a joint demise, is evidence that the notice reached the other, who lived elsewhere (b).

It is not necessary that a notice to quit should be directed to the tenant in possession, if proved to be delivered to him at the proper time (i).

When a notice to quit is signed by the party and attested by a witness, such witness must be called to prove the handwriting of the party, or his absence be accounted for, although he was not the person who served it upon the tenant; proof that it was served upon the tenant, that he read it, and did not object to it, is not in such case sufficient (a).

The delivery of the notice to quit to the servant of the tenant at his dwelling-house, to whom the nature of it was explained, though such dwelling-house was not situated on the premises, and it did not appear to have come to the tenant's hands, is strong presumptive evidence that it reached him, which may be rebutted by the evidence of the servant (b).

But the mere leaving of a notice to quit at the tenant's house, without further proof of its being delivered to a servant, and explained, or that it came to the tenant's hands, is not sufficient to support an ejectment (c).

If a landlord receive rent due, after the expiration of a notice to quit, it is a waiver of that notice. But if the money had not been received as rent, but as a satisfaction for the injury done by the tenant in continuing on his late landlord's premises as a trespasser, then the late landlord might have recovered in ejectment (d).

A landlord of premises about to sell them, gave his tenant notice to quit on the 11th of October, 1806, but promised 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, it was held that the promise which was performed was no waiver 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 (e),

Though a notice to quit is in general waived by the receipt of rent due subsequent to such notice, yet the mere acceptance of rent by a landlord subsequent to the time when the tenant ought to have quitted according to the notice given him for that purpose, is not itself a waiver, on the part of the landlord, of such notice; but matter of evidence only to be left to the jury, under the circumstances of the case for the landlord might possibly have accepted the rent under terms, or made an express declaration that he did not mean to waive the notice, and that notwithstanding his acceptance or receipt of the

(a) Doe d. Sir F. Sykes v. Durnford. 2 M. & S. 62.

(d) Goodright d. Charter v. Cordwent. 6 T. R. 220. Zouch d. Ward v. Willingale. 1

(6) Jones d. Griffiths v. Marsh. 4 T. R. H. Blk. 311. 464.

(s) Doe d. Buross v. Lucas. 5 Esp. 153.

(e) Whiteacre d. Boult v. Symonds. 10 East. 13.

rent, he should still insist upon the possession; or fraud or contrivance might have been practised on the part of the tenant in paying it.—The question therefore, in such cases, is quo animo the rent was received, and what the real intention of both parties was? (a)

Where rent is usually paid at a banker's, if the banker, without any special authority, receive rent accruing after the expiration of a notice to quit, the notice is not thereby waived (b)?

Where a landlord gave notice to quit different parts of a farm at different times, which the tenant neglected to do in part, in consequence of which the landlord commenced an ejectment; and before the last period mentioned in the notice was expired, the landlord, apprehending that the witness by whom he was to prove the notice would die, gave another notice to quit at the respective times in the following year, but continued to proceed with his ejectment, it was held that the second notice was not a waiver of the first (c).

So, a notice to the tenant, that if he do not quit in fourteen days, he will be required to pay double value, given after the expiration of a regular notice to quit, is no waiver of such notice (d).

So, if a landlord give notice to his tenant to quit at the expiration of the lease, and the tenant hold over, the landlord is entitled to double rent; and a second notice delivered to the tenant after the expiration of such notice "to quit on a subsequent day or to pay double rent," is no waiver of the first notice, or of the double rent which has accrued under it (d).

Where a second notice was given to a tenant to quit at Michaelmas, 1811, it was held a waiver as to him of a former notice given to the original lessee (from whom he claimed by assignment) to quit at Michaelmas 1810 (e).

Where one in remainder, after the expiration of an estate for life, gave notice to the tenant to quit on a certain day, and afterwards accepted of half a year's rent; such acceptance being only evidence of a holding from year to year, is rebutted by the previous notice to quit, and therefore the notice remains good (f).

But when three months' notice was given where the rent was reserved quarterly, and the landlord expressed neither his assent nor dissent to admit it, and took the rent up to the time when his tenant quitted; it was construed to be such an acquiescence as amounted to presumptive evidence that the parties intended to dispense with the notice, and was therefore deemed a waiver of it (g).

So, if at the end of the year (where there has been a tenancy from

(a) Doe d. Cheny v. Batten. 1 Cowp. 243. (b) Doe d. Ash v. Calvert. 2 Camp. 387. (c) Doe d. Williams v. Humphreys. 2 East. 237.

(d) Doe d. Digby v. Steele. 3 Camp. 117.

(e) Doe d. Brierley v. Palmer. 16 East. 53(f) Sykes d. Murgatroyd v. • cited in Right d. Fowler v. Darby. 1 T. R. 161. (g) Shirley v. Newman. 1 Esp. 266.

year to year) the landlord accepts another as his tenant, without any surrender in writing, such acceptance shall be a dispensation of the notice to quit (a).

Notice to quit, however, is not necessary in every case. Thus when a lease is determinable on a certain event, or at a particular period, no notice to quit is necessary, because both parties are equally apprized of the determination of the term (b).

So, if the tenant have attorned to some other person, or done some other act disclaiming to hold as tenant to the landlord, in that case no notice is necessary (c). Indeed if a tenant put his landlord at defiance, his landlord may consider him either as his tenant or a trespasser, and in the latter case need not give him a notice to quit before he brings his ejectment (d).

But a refusal to pay rent to a devisee in a will which was contested, is not such a disavowal of the title as to empower such devisee to maintain an ejectment without giving a previous notice (d).

A mortgagee may recover possession against the mortgagor, or a tenant under a lease from the mortgagor posterior to the mortgage, without notice to quit; for when the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises at will in the strictest sense, and therefore no notice is ever given him to quit (e).

Where a tenant had come into possession of premises in 1816, and the lessor of the plaintiff claimed under a writ of Elegit, and Inquisition thereon issued in 1818, but founded on a judgment recovered prior to 1816, it was held that no notice to quit was necessary (ƒ).

It may again be observed, that where the estate or lease is ipso facto void on the condition or limitation, no acceptance of the rent after can make it to have a continuance; otherwise it is of an estate or lease voidable by entry (g): and this distinction is because the acceptance of rent in the one case cannot make a new lease, and the old one was determined; but the acceptance of the rent in the other, is a sufficient declaration that it is the lessor's will to continue the lease, for he is not entitled to the rent but by the lease (b).

It need scarcely be again observed, that where the relation of landlord and tenant does not subsist, notice to quit is out of the question. Thus the receipt from the cestuique of a quit-rent reserved on the grant of a copyhold does not constitute a tenancy from year to year,

(a) Sparrow v. Hawkes. 2 Esp. 505. (6) Messenger v. Armstrong. I T. R. 54. Right d. Flower v. Darby. 1 T. R. 159-62. (c) Bull. N. P. 96. Isp. N. P. 463. (4) Doe d. Williams v. Pasquali, Peake.

R. 197.

(e) Keech d. Warne v. Hall. Doug. 22. (f) Doe d. Puttard v. Hilder. 2 B.& A. 782. (g) Co. Lit. 215. Jones d. Cowper v. Verney. Willes, 169. (4) Co. Lit. n. I.

so as to entitle his widow to notice to quit ; the rent not being received as between landlord and tenant, but attributable to another consideration for as to the question of tenancy from year to year, the payment of rent cannot be evidence of a holding from year to year, if, as in the case of a conventionary rent like this, it be not a payment of rent as between landlord and tenant (a).

In the case of Mildway v. Shirley, Dorchester Summer Assizes, 1806, where the lessor of the plaintiff claimed thirty acres of leasehold, on a lease settled on him long before extinct, on which a rent of 135. 4d. was reserved, it appeared that after the lease had run out, the steward not knowing that, had continued regularly to receive the 135. 4d. on the day on which it was reserved by the lease; wherefore it was objected, that this payment of rent created a tenancy from year to year, and that there ought to have been a notice to quit. But, however, Thompson, B. held that it was not necessary, that no contract as of a tenancy from year to year could be presumed, that the payment was made alio intuitu, and that the case fell within the principle of that determination in 3 East, 260-(cited 10 East, 165).

Tenant from year to year underlet part of the premises, and then gave up to his landlord the part remaining in his own possession, without either receiving a regular notice to quit the whole, or giving notice to quit to his sub-lessee, or even surrendering that part in the name of the whole. The landlord cannot entitle himself to recover against the sub-lessee, (there being no privity of contract between them) upon giving half a year's notice to quit in his own name, and not in the name of the first lessee; for as to the part so underlet, the original tenancy still continued undetermined (b).

SECTION II. Of Tenants for a less Term than from Year to Year: wherein of Lodgings.

We have had occasion before to observe, that any one possessed of a certain quantity of interest may alienate the whole or any part of it, unless restricted from so doing by agreement of the party from whom he derives that interest or estate, or by the terms upon which he

takes it.

Upon the same principle he may demise it or any part of it for any term shorter than that of which he is possessed; and when part of a messuage or tenement is let to another, it is called a lodging or lodgings.

Of Lodgings.-Lodgings may be let in the same manner as lands and tenements: in general, however, they are let either by agreement in writing between the landlord and tenant, or by parol agreement. (a) Right d. Dean of Wells v. Bawden. 3 East's R. 260.

(b) Pleasant d. Hayton v. Benson. 14 East. 234.