day, 1793, and did not bring his ejectment until after such acceptance, nor try the cause until 1795, the jury held that the notice was waived.(1)

The notice may also be waived by other acts of the landlord; but they are all open to explanation, and the particular act will, or will not, be a waiver of the notice, according to the circumstances which attend it. Thus, a second notice to quit, given after the expiration of the first notice, but also after the commencement of an ejectment, in which the landlord continued to proceed, notwithstanding his second notice, was holden to be no waiver of the *notice originally giv- [ *141 ] en; because, it was impossible for the tenant to suppose, that the landlord meant to waive a notice upon the foundation of which he was proceeding to turn him out of his farm. (m) [1] Where, also, after the expiration of a regular notice to quit, the landlord gave a second notice in these words:"I do hereby desire you to quit the premises which you now hold of me, within fourteen days from this date, or I shall insist upon double value," it was ruled by Lord Ellenborough, C. J. at Nisi Prius, that the second notice could not be intended, or understood to be intended, as a waiver of the first, or even as an acknowledgment of a subsisting tenancy at will having for its object merely the recovery of double value; and the lessor of the plaintiff recovered upon a demise anterior to the expiration of the second notice.(n) So, also, where a notice was given "to quit the premises which you hold under me, your term therein having long since expired," the Court considered the paper as a mere demand of possession, and not as a recognition of a subsisting tenancy.(0)

But where the defendant was lessee by assignment of certain tithes, under an agreement, which only operated to create a tenancy from year to year, and the impropriator, in March, 1810, (some days after the assignment,) gave the original lessee a notice to quit at Michaelmas fol

(1) Goodright, d. Charter, v. Cordwent, 6 T. R. 219.

(m) Doe, d. Williams, v. Humphreys, 2 East, 236.

(n) Doe, d. Digby, v. Steel, MS. and 3 Campb. 115.

(0) Doe, d. Godsell, v. Inglis, 3 Taunt. 5.

[1] After verdict against a tenant for not quitting pursuant to notice, a subsequent distress by the landlord, for rent due after the verdict, does not waive the notice to quit; nor is it any ground for setting aside the verdict, or staying execution. Doe ex dem Holmes vs. Darby, Clerk, 8 Taunt. Rep. 538.

owing, and afterwards, in March, 1811, gave the assignee a notice to quit at the then next Michaelmas, the Court were clearly of opinion, that such second notice was a waiver as to the assignee of the former notice

given to the original lessee. And, in answer to an argument in [*142] *support of the efficacy of the first notice, that the original tenancy having expired at Michaelmas, 1810, could not be set up again by another notice to the defendant in 1811, inasmuch as the giving of a person notice to quit does not operate to create a tenancy in him, the Court observed, "It does not necessarily do so, but it is generally considered as an acknowledgment of a subsisting tenancy; and if the party obeys the notice, how can he be deemed a trespasser on account of a prior notice to another person? Nothing appears to shew, that the defendant had knowledge of any other notice to quit than the one which was served upon him ;" and Bayley, J. added, "the second notice gives the defendant to understand, that if he quits at Michaelmas, 1811, he will not be deemed a trespasser."(p)

It may be collected from this case, that if a tenant, having underlet the premises, receive from his landlord a notice to quit, and the landlord afterwards give to the under-tenant a notice to quit, expiring at a subsequent period, (q) he is precluded from recovering in an ejectment against such under-tenant, upon a demise anterior to the time of the expiration of the notice so given by him to the under-tenant. [1] And if, after the expiration of a regular notice, the landlord should give to the same tenant a second regular notice, in the usual form, to quit at the termination of the next, or any subsequent year of the tenancy, without referring therein to any claim for double value, and without having taken any steps, in the intermediate time, to enforce the first notice, it may be doubted, whether such second notice will not also amount to a waiver of the first.

[ *143 ]

*In a case where a landlord, after the delivery of a notice to quit, promised the tenant that he should not be turned out until

(p) Doe, d. Brierly, v. Palmer, 16 East, 53.

(q) Ante, 122, 123.

[1] In an action of Ejectment, the plaintiff must be nonsuited, if it be proved that a notice to quit at the end of six months was given by the lessor of the plaintiff to the occupier of the premises a short time before the bringing of the action. Doe ex dem. Scott vs. Miller, 2 Carr. & P. Rep.

the place was sold, and after the sale of the premises, brought an ejectment upon a demise anterior to the time of the sale; it was contended that the permission to occupy was a waiver of the antecedent notice, so far as to prevent the tenant from being considered as a trespasser by relation back to the time when the notice expired, and that the demise ought to have been laid posterior to the day when the contract for the sale was made. But the Court held, that the permission amounted only to a declaration on the part of the landlord, that until the sale of the place, he would suspend the exercise of his right under the notice, and indulge the tenant by permitting him to remain on the premises; and that it was not intended to vacate the notice, or be destructive of any of the rights which the landlord had acquired under it. (r)

The acceptance by the landlord of the double value of the premises, given by the stat. 4 Geo. II. c. 28. when the tenant wilfully holds over after the expiration of a written notice to quit, or the bringing of an action of debt for the same, will not be a waiver of the notice; for the double value is given as a penalty for the trespass, and not as a payment between landlord and tenant. But if, after the expiration of a notice to quit by the tenant, the landlord accept the double rent to which he is entitled by the stat. 11 Geo. II. c. 19., it seems that he cannot afterwards *proceed upon the notice to quit; for this lat- [ *144 ] ter statute recognizes the party by the name of tenant, which

the first statute does not, and gives a right of distress for the double rent, which is a remedy applicable only to the relation of landlord and tenant.(s)

In cases where the act of the landlord cannot be qualified, but must of necessity be taken as a confirmation of the tenancy, as if he distrain for rent accruing after the expiration of the notice, or recover it in an action for use and occupation, the notice will of course, be waived :(t) but it seems that a pending action for such use and occupation will not be sufficient to invalidate the notice; for the landlord may only recover to the time of the expiration of the notice, although he claim rent to a later period. (u)

(r) Whiteaker, d. Boult, v. Symonds, 10 East, 13.

(8) Doe, d. Cheney, v. Batten, Cowp 245. Timmins v. Rowlinson, Burr. 1603. Soulsby ▼. Neving, 9 East, 310. Ryal v. Rich, 10 East, 48.

(t) Zouch, d Ward, v. Willingale, 1 H. Blk. 311.

(u) Per Buller, J., Birch v. Wright, 1 T. R. 378. et vide Roe, d. Crompton, v. Minshall, S. N. P. 650.

By the common law, if a landlord distrained after the expiration of a term, though for rent accruing during its continuance, he was held to have acknowledged a subsequent tenancy; because, by the common law, no distress could be made after the determination of a demise ;(v) but since the statute 8 Ann. c. 14. s. 6. & 7. by which a landlord is allowed to distrain within six calendar months after the determination of a lease for life, for years, or at will, provided his own title, or interest, and the possession of the tenant, from whom such rent became due, be continuing, a distress for rent accruing at the time of the ex[145] piration of the notice to quit, if made within the six months, will be no waiver thereof.

Next, of the termination of a tenancy by the act of the tenant, which may happen in two several ways; first, by a notice to his landlord that he intends to quit the possession ;(w)[1] secondly, by the non-payment of rent, or non-performance of a covenant.(x)

As the relation of landlord and tenant is mutual, the principles which govern the first of these modes have been discussed, when treating of the notice to quit as given by the landlord; and it, therefore, now only remains to inquire into the regulations adopted by the courts in the two latter instances.

The right to give a notice to quit is given by the common law, and is necessarily incidental to a tenancy from year to year: [2] the determina

(v) Pennant's case, 3 Co. 64. (w) Appendix, No. 4.

(x) As the non-payment of rent is, in fact, the non-performance of a covenant, this particular enumeration may perhaps be logically

incorrect; but as the proceedings differ so materially in cases of non-payment of rent, and of non-performance of other covenants, it was thought most conducive to perspicuity, to name them separately.

[1] The "Revised Statutes," Part 2, Chap. 1. Tit. 4, § 10, (Vol. 1, p. 745,) contain the following provision as to notice to quit, given by the Tenant. "10. If any tenant shall give notice of his intention to quit the premises by him holden, and shall not accordingly deliver up the possession "thereof, at the time in such notice specified, such tenant, his executors "or administrators, shall, from thenceforward, pay to the landlord, his "heirs or assigns, double the rent which he should otherwise have paid, "to be levied, sued for and recovered, at the same time and in the same "manner, as the single rent; and such double rent shall be continued to "be paid during all the time such tenant shall continue in possession as "aforesaid."

[2] In the case of Jackson ex dem. Wood vs. Salmon, (4 Wend. Rep. 327.) it was shewn on the trial that one Wells entered into possession of

tion of a tenancy by the non-payment of rent, or the non-performance of a covenant, can only arise under an express agreement between the parties, and seldom occurs but where the tenant has a written lease for a determinate period.

It has already been observed,(y) that an actual entry upon the lands was formerly necessary before an ejectment could be maintained, and that the claimant's title must be of such a nature as to render

his entry legal. Whe, there *fore, a lease for years was gran- [ *146 ] ted to the tenant, and the right of possession thereby transferred to him, the landlord could not legally enter upon the land during the continuance of the term; and was, consequently, without remedy to recover back his possession whilst the term lasted, although the tenant should neglect to render his rent, or otherwise disregarded the conditions of his grant.[1] When terms for years increased in length and

(y) Ante, 10.

the premises in question, in March, 1824, as a Tenant of the Lessor of the Plaintiff for One Year, to work the same on shares. He held over. In May, 1825, the Defendant entered under Wells, (Wells remaining in possession,) to work the land on shares, and on the fourteenth of the same month an ejectment was commenced against him. The plaintiff was nonsuited for the reason that the defendant was a mere cropper; that Wells was the real tenant, and, remaining in possession, the action should have been brought against him. A motion was made to set aside the nonsuit.

By the Court, SAVAGE, Ch. J. "The only question in the case is, whe"ther the defendant was entitled to notice to quit. Wells entered into possession lawfully; he hired the premises for one year, and continued "in possession after that period; he was tenant from year to year, and "was entitled to notice before an ejectment could be brought against him. "The defendant coming in under Wells, stands in the same relation to the "lessor. A tenant for a year, holding over, is tenant from year to year, "and not at will; but if at will, he was entitled to notice. (4 Cowen, 349.) We therefore refuse to set aside the nonsuit."

[1] After articles for the sale of land, on which the vendor receives part of the purchase money in hand, and the residue to be paid in several instalments, if the times of payment have long expired, without payment by the vendee before or after the suit brought, the vendor may recover in Ejectment. Martin vs. Willink & Al., 7 Serg. & R. Rep. 297.

If A. purchase the right of B. to land under an application and survey, he is answerable to the Commonwealth for the purchase money, and is not bound to pay till called upon; and if the representatives of B. obtain a patent, not at the request of A. nor for his benefit, but for the purpose of vesting the title in themselves, A. may recover in Ejectment against them,