Opinion of the Court-Shafter, J. ance does not apply to this case, where no such tenancy exists. The original entry of the tenant was lawful, it being under a written lease for one year, and if he had held over under such circumstances or for such length of time as to create a presumption of acquiescence of the landlord, he would be a tenant by sufferance. The necessity of reasonable notice to quit exists in cases of uncertain tenancy, to prevent the mischievous effects of a capricious and unreasonable determination of the estate. (2 Pick. 71; 4 Kent Com. 113.) By the Court, SHAFTER, J.: This is an action to recover the possession of real estate. The complaint states a case within the Act relating to forcible entry, etc., but by the consent of parties the action was turned into an action of ejectment in the Court below. The appeal is taken from an order overruling defendant's motion for a new trial. First. It is insisted by the appellant that the judgment should be reversed, for the reason that there was no evidence tending to prove that the plaintiff made a written demand upon the defendant to surrender the possession of the premises thirty days before the commencement of the action. The defendant held under a lease from the plaintiff for one year. The term ended July 28, 1864, and a [554] demand in writing for a surrender of the premises was duly served by the plaintiff on the defendant the next. day. The service was on the premises-the plaintiff having entered thereon for that purpose. The action was commenced on the 3d of August following. When a tenant held over after the expiration of his lease, he was regarded at common law as a tenant at sufferance; but the estate might be destroyed by an entry on the part of the landlord, and he might thereupon proceed in ejectment. (Uridias v. Morrell, 25 Cal. 34.) The Act of 1861 (Statutes of 1861, p. 514) relates to tenancies at will and by sufferance, and the first section pro Opinion of the Court-Shafter, J. vides that "the same may be terminated by the landlord's giving one month's notice in writing to the tenant, requiring him to remove from the premises." It is further provided by the third section that "at the expiration of one month from the service of such notice, the landlord may re-enter or maintain ejectment, or proceed in the manner prescribed by law to remove such tenant, without any other or further notice to quit;" and section five gives the landlord a right to double damages in the action. A tenancy by sufferance is not by the consent, but by the laches of the owner (2 Black. Com. 150), and it follows that where the owner has been guilty of no laches there can be no tenancy by sufferance to which the provision of the statute as to notice can apply. In this case the defendant never became tenant by sufferance, for the indispensable condition of laches on the part of the plaintiff is not only not found, but is shown affirmatively never to have existed. In view of the principle that the law rejects fractions of days, we consider the record as showing that the plaintiff entered upon the premises on the instant the defendant's term expired, and for the avowed purpose of asserting his rights as owner. Instead of laches, then, we have a singular exhibition of diligence in the conduct of the plaintiff which forestalled the possibility of a tenancy by sufferance arising in the defendant's favor. It was held in [555] *Rowan v. Little (11 Wend. 616), under a statute of New York from which our Act of 1861 appears to have been copied (see note in Adams on Eject. 145), that there could be no tenancy by sufferance where there were no laches by the landlord, and that the burden of proving some degree of negligence at least, on his part, was on the party asserting the tenancy. In that case the landlord delayed proceedings for three months after the expiration of the lease; but it was held that, under the circumstances of the case, the delay did not amount to laches, and therefore that the tenant was not entitled to notice to quit as a prerequisite to an action of ejectment against him. In the case at bar, the question is not upon the sufficiency of delay Points decided. for any given period, for there was no delay. The plaintiff entered not for the purpose of recovering from the consequences of neglect, but with a view to prevent the consequences by practicing diligence, instead of its opposite, from the start. The plaintiff filed his petition in insolvency prior to the bringing of this action, and the Sheriff was appointed assignee before the trial. The appropriate evidence of these facts was offered at the trial, but inasmuch as it appeared by the record that the plaintiff had a perfected title to the premises as a homestead when he filed his petition, which title was recognized and established by the decree in pursuance of the prayer of the applicant, the evidence was rejected by the Court; and we consider that there was no error in the ruling. Judgment affirmed. A. BUCKMAN v. GEORGE O. WHITNEY AND J. HENRY WOOD.' PAPERS TO BE USED ON APPEAL.-District Courts have no jurisdiction to determine what papers may be used on appeal to the Supreme Court. HOW TO SUPPLY Lost Record.—If the judgment-roll or any part of the record in the District Court has been lost, the District Court, upon proper proofs, may supply its place by copies, and direct that the proved copies be substituted for the lost papers, and that they shall constitute the record or portion of it lost, and here the functions of the District Court end. APPEAL FROM ORDER SUPPLYING LOST RECORD.-If either party is dissatisfied "with an order of the District Court in supplying a lost record, it may be reviewed by an appeal from the order. [556] IF LOST RECORD NOT SUPPLIED NO APPEAL CAN BE TAKEN.-If the record or a portion of it in the District Court has been lost, and either party desires to appeal, an order of the District Court reciting that copies of the lost papers have been furnished, and directing that such copies may be used on appeal to the Supreme Court, is not an order substituting and supplying the lost record, and there is no record in the District Court from which a transcript on appeal can be taken. 1. Same case, 24 Cal. 267, and Cal. Sup. Ct., Oct. T., 1863, not reported. Court records, cited, Satterlee v. Bliss, 36 Cal. 522. Opinion of the Court-Sawyer, J. Loss OF MATERIAL PORTIONS OF A STATEMENT.--If material portions of the statement on motion for a new trial or of the papers referred to in the statement have been lost, and are not supplied and substituted by the District Court, an appeal from the order denying a new trial will be dismissed. APPEAL from the District Court, Seventh Judicial District, Solano County. Plaintiff recovered judgment in the Court below, and defendants appealed. The other facts are stated in the opinion of the Court. G. F. & W. H. Sharp, for Appellants. J. McM. Shafter, for Respondent. By the Court, SAWYER, J.: * * At the January Term, 1864, a motion was made to dismiss the appeal on the ground of delay in filing the transcript in this Court. As an excuse for delay, appellants alleged an inability to make up a transcript on account of a loss of the judgment-roll, and asked permission to supply the missing papers. We then said: "This Court has no control over the records of the Court below, and cannot properly make any order to supply a lost record; but that duty is within the province of the District Court. Upon proper application being made, it will be the duty of the Court below to supply the lost judgment-roll by the aid of copies, or by some other means under its control." It was then ordered that appellants have thirty days from and after the next term of the District Court "in which to prepare and file in this Court the transcript on appeal [557] in this cause, and that, in the meantime, all proceedings on said motion in this Court be stayed." (24 Cal. 267.) The object of the stay was to give appellants an opportunity, by motion in the Court below, to supply, if possible, the lost judgment-roll, and restore the record of the District Court, thereby enabling them to obtain a Opinion of the Court--Sawyer, J. transcript on appeal of the record thus restored, to be filed in this Court. A document, claimed by appellants to be a transcript of the record, was filed in this Court in October, 1864, and some amendments were subsequently made in March last. Respondent now renews the motion to dismiss, on the ground that the document filed is not a transcript of the record in the Court below, and that no transcript has yet been filed in the case. A transcript on appeal is a true copy of a record, or part of a record, actually existing in the Court below. Essential portions of the record in this case having been lost, the first thing necessary to be done, to enable the party to procure a transcript was, if possible, to have the record in some way restored. And this could only be done by the Court below in the mode before indicated. Instead of applying to the Court below, upon notice to the opposite party, to restore its own record by supplying the defects occasioned by the loss, and then taking a transcript of the record thus restored, and filing it in this Court, appeilants seem to have applied to the District Court to aid them in making up a record, to be used in this Court on appeal. And the Court, after certain proceedings were had, accordingly ordered as follows: "But to the end that said defendants may be able to perfect an appeal to the Supreme Court of this State, it is hereby ordered by the Court that the defendants, in order to perfect an appeal, to the Supreme Court of this State, may substitute and use copies of all or any papers in said cause which may be necessary for or requisite to the perfecting of said appeal, as aforesaid, with like force and effect as the originals. "And it is further ordered by the Court that, in the event copies of said judgment-roll, or any part of the same, or any of the lost papers in said cause necessary to be used in said *appeal, cannot be produced, then that the [558] said defendants may, from such data as may be at their command, make out the necessary papers, containing and embodying as near as may be the several matters contained in the originals lost herein as aforesaid, and that said |