a term of years, with privilege of renewal for the same term, may elect, of course, at the expiration of his first period, to continue for another; and his retention of possession for a reasonable time, without other expression of intent, authorizes the landlord to assume that he has so elected. Therefore, such a hold-over tenant who expresses no other purpose may, by the lessor's choice, become a tenant for a renewed period equal to that of his former lease-a lessee for ten years with the privilege of renewal, holding over without other indication of intent, may thus readily become a lessee for ten years more.2 Whether a hold-over tenant is bound for the same rent, and by the same covenants and stipulations, as in the former demise, is rather a question of fact than of law. It is to be decided from all the transactions and circumstances of each case; but, in the absence of positive agreement or clear evidence to show intent, the presumption is that the holding over is on the same terms as the original holding, in so far as they are applicable. This is emphatically true, as heretofore explained, with regard to a lessee for years who becomes a tenant from year to year by holding over; except that he is not impliedly bound to another estate of the same length as his former leasehold.5 month by month. Since his original rent was reckoned by the year, and no change of payment was made at the expiration of his lease, the rule seems clear, and such is probably the weight of authority, that the landlord in this case may treat him as a tenant from year to year. See cases cited in last preceding note but one. But if his original payments were not made monthly, or in the manner in which he made them after holding over, as when he occupies under a lease for one year without any regular payment, and as a hold-over tenant pays regularly month by month, the reason of the case, and at least some good decisions make him a tenant from month to month. People v. Darling, 47 N. Y. 666; Geiger v. Braun, 6 Daly (N. Y.), 506; Gilfoyle e. Cahill, 18 N. Y. Misc. 68; Taylor, Landl. & T. § 425. See Chaplin, Landl. & T. §§ 622, 623; 1 McAdam, Landl. & T. p. 30. 1 Winslow v. Baltimore, 188 U. S. 646; Tracey v. Albany Exchange Co., 7 N. Y. 472: Kelly v. Varnes, 52 N. Y. App. Div. 100; Voege v. Ronalds, 83 Hun (N. Y.), 114; Bailie v. Plant, 11 N. Y. Misc. 30; Brown v. Samuels, 24 Ky. L. Rep. 1216; Boston v. Solberg, 28 Wash. 262; Chaplin, Landl. & T. § 288. See Pickett v. Bartlett, 107 N. Y. 277; Zorkowski v. Astor, 156 N. Y. 393; Cannon v. Ryan, 49 N. J. L. 314. 2 Ibid. 8 Mayor, etc. v. Tyler, 8 Q. B. 95; Oakley v. Monck, 3 H. & C. 706; Despard v. Walbridge, 15 N. Y. 274; Thorndike . Burrage, 111 Mass. 531; Ives v. Williams, 50 Mich. 100; Hunt v. Bailey, 39 Mo. 257. Ibid.; Schuyler v. Smith, 51 N. Y. 309; Weston v. Weston, 102 Mass. 514; Wilson v. Prescott, 62 Me. 115; Thomas v. Frost, 29 Mich. 336; Clapp v. Noble, 84 Ill. 62; Auer v. Hoffman, 132 Wis. 620. 5 § 656, supra. § 668. Statutory Penalties for Holding Over. By the English statute, 4 Geo. II. ch. 28, § 1, a tenant for life or years, or any person who has gained possession through or under him, who wrongfully holds over after the expiration of his term and after receiving from the landlord one month's notice in writing to quit, is liable for double the yearly value of the property, during the time that he so holds over: and by 11 Geo. II. ch. 19, § 18, a tenant who gives notice of his intention to quit, and does not deliver possession of the property at the time specified in the notice, is liable, during the time he so holds over, for double the rent which he should otherwise have paid. These statutes are substantially re-enacted in several of the states of this country, generally with the addition, like that of the earlier English act, that the tenant must also pay all damages which his wrongful possession of the property after he received the notice from the landlord has occasioned.1 (a) (a) In New York, the present forms of these statutes are as follows: "Where, on the termination of an estate for life, or for years, the person entitled to the possession demands the same, and serves, in the same manner as for the termination of a tenancy at will, a written notice to quit, if the tenant, or any person in possession under him, or by collusion with him, wilfully holds over, after the expiration of thirty days from such service, he must pay to the person so kept out of possession, or his representatives, at the rate of double the yearly value of the property detained, for the time while he so detains the same, together with all damages incurred by the person so kept out by reason of such detention. There is no equitable defence or relief against a demand accrued, or a recovery had, under this section." Real Prop. L. § 230. "If a tenant gives notice of his intention to quit the premises held by him, and does not accordingly deliver up the possession thereof, at the time specified in such notice, he or his personal representatives must, so long as he continues in possession, pay to the landlord, his heirs or assign, double the rent which he should otherwise have paid, to be recovered at the same time, and in the same manner, as the single rent." Real Prop. L. § 229. These were originally enacted in New York, in practically their present form, as L. 1774, ch. 14; they were re-enacted in 1788; 2 J. & V. 238, §§ 21, 22; and in the later revisions were found as 1 R. L. 440, §§ 21, 22, and 1 R. S. 745, §§ 11, 10. 1 N. Y. L. 1909, ch. 52, §§ 229, 230; 1 Stim. Amer. Stat. L. §§ 2060, 2061; Alexander v. Loeb, 230 Ill. 454; 1 Taylor, Landl. & T. §§ 526-530. In California, the amount thus recoverable is treble the rental value or rent, as the case may be. 1 Stim. Amer. Stat. L. $2060, (3), § 2061, (2). It seems that the damages occasioned by the tenant's wrongful holding would be recover- i "The chief differences between these provisions of the statute seem to be that in the former the notice which proceeds from the landlord must be in writing; but in the latter, proceeding from the tenant, it may be a mere verbal notice; and that the one imposes double rent as a penalty, and not as rent; while the other treats the party as tenant, and recognizes him as such, which the former does not.": It is sometimes provided by the former of these statutes- where the notice proceeds from the landlord that no equitable defence or relief shall exist against any demand accrued or recovery had under their provisions.2 But their benefit may be waived by the land 66 1 These enactments are penal in character; and, therefore, are strictly construed. It has been held, accordingly, that a tenant from week to week is not within the purview of the first section here quoted; and probably the same is true in New York of a tenant from month to month or from any other "period to period." Lloyd v. Rosbee, 2 Camp. 453; § 658, note (a), supra. A tenant's holding over, that brings him under these penalties, must be wrongful-without legal right; and not maintained in good faith, nor for any cause, such as sickness in his family, for which he is not responsible. 'Every holding over without legal right is wrongful and unlawful in such sense as to entitle a plaintiff in ejectment to the damages which may be proved and recovered under the general rules set forth in the Code sections adverted to. These are the ordinary damages for which provision has been made by those sections. But I think that section 200 of the Real Property Law can be invoked only where the holding over is more than merely wrongful or unlawful in the sense that it is not justified by legal right. Under the latter section it must be shown to be deliberate, intentional, obstinate, unreasonable, or perverse to justify a claim for double damages. Unless we take this view of the statute, there is no reason for its existence." Werner, J., in Barson v. Mulligan, 191 N. Y. 306, 328. Also Herter v. Mullen, 159 N. Y. 28; Hall v. Ballantine, 7 Johns. 536; Bremen v. City of New York, 80 App. Div. 251; Preiser v. Weilandt, 48 App. Div. 569; Weber v. Rogers, 41 Misc. 662. While by the first section here quoted the notice by the landlord is required to be in writing, this is not true of the other section; but notice by the tenant may be oral. Fowler, Real Prop. L. of N. Y. (2d ed.) p. 636. 1 2 Taylor, Landl. & T. § 529, citing Soulsby v. Neving, 9 East, 310. It has been held, also, that the latter statute -where the tenant serves the notice applies only to cases in which the term is indefinite and so to be ended by notice from either party; that is, to estates at will, from year to year, month to month, etc., or at sufferance; and not to estates for years. "Where the term is defi lord; and this occurs, for example, by his acceptance of rent on the old terms, after the notice to quit has been served, or his suing the tenant for use and occupation, for holding over" with the consent of the landlord." 1 § 669. Use of Force against a Hold-over Tenant. It was shown above that, by virtue of the statute of forcible entry and detainer, a person having a legal right of entry on land, such, for example, as the landlord of a hold-over tenant, is indictable for a breach of the peace, if he enter "with strong hand or a multitude of people." 2 It was also held at one time in England, contrary to the earlier rule, that a person, though a tenant wrongfully holding over or one otherwise on the land without right, who was thus forcibly entered upon or dispossessed, might maintain an action for assault and battery, or for trespass, against him who thus violated the statute. But that theory has been discarded there, and in some of the United States, such as Massachusetts, Rhode Island, and New Hampshire; and no civil action for such entry is given when no more force is used than is necessary to expel the person in wrongful possession. Other states, of which New Jersey, Pennsylvania, and probably New York are examples, still retain the civil remedy, as well as the criminal, and demand that, even between a holdover tenant and the landlord thus wrongfully deprived of his property, the latter shall resort to legal proceedings, and not to force, for its recovery. It is held everywhere, of course, that 1 Stevens v. City of New York, 111 N. Y. App. Div. 362; Wilgus v. Lewis, 8 Mo. App. 336. 2 § 634, supra. 8 Hillary v. Gay, 6 C. &. P. 284; Newton v. Harland, 1 M. & G. 644. Harvey v. Brydges, 14 M. & W. 437; Taunton v. Costar, 7 T. R. 431; Low v. Elwell, 121 Mass. 309; Lambert v. Robinson, 162 Mass. 34; Sterling v. Warden, 51 N. H. 217; Freeman v. Wilson, 16 R. I. 524; Allen v. Kelly, 17 R. I. 731; Chase's Cases on Torts (2d ed.), p. 200; 4 Amer. L. Rev. 429; 2 Taylor, Landl. & T. § 531. 5 Thiel v. Bull's Ferry Land Co., 58 N. J. L. 212; Sperry v. Seidel, 218 Pa. St. 16; Whitney v. Brown, 75 Kan. 678; Mosseller v. Deaver, 106 N. C. 494; Entleman v. Hagood, 95 Ga. 390. "The true owner of land, wrongfully held out of possession, may watch his opportunity and if he can regain his possession peaceably, may maintain it, and lawfully resist an attempt by the former occupant to retake possession ; nor will he be liable to be proceeded against under the statute of forcible entry and detainer. There can be no wrongful detainer by the true owner where the entry was both lawful and peaceable. But even though one has the right to the possession of the premises which are in the actual though wrongful possession of another, yet this confers no justification of a forcible entry, and if such entry be made, an action will lie on behalf of the person forcibly ejected for damages." Chaplin, Landl. & T. § 616, quoting from Bliss v. Johnson, 73 N. Y. 529; and citing, also, Wood v. Phillips, 43 N. Y. he who enters by force is to be held for damages in a civil action, whenever he uses more force than is needed to acquire possession.1 152: Bristor v. Burr, 120 N. Y. 427 ; O'Donald v. MacIntyre, 118 N. Y. 156; and Liabstadter v. Federgreen, 80 Hun (N. Y.), 245. See, also, Jackson v. Farmer, 9 Wend. (N. Y.) 201; Schrier v. Shaffer, 123 N. Y. App. Div. 545; Denver, etc. R. Co. v. Harris, 122 U. S. 597. 1 Last three preceding notes; Halsey v. Brown, 14 Conn. 270. |