had been given. The lease contained the usual clause of re entry. It was holden that the landlord, who had served a notice of repair, might maintain ejectment, before the expiration of the three months, for a breach of the general covenant to repair; for the notice was not any waver of the forfeiture. Where Notice to quit is not required. The doctrine relative to notices to quit is only applicable to those tenancies, where the time of quitting is not agreed upon between the parties; for, where a lease is determinable on 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 (18) — Neither is such notice necessary in a case where the possession is adverse', 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. But if the acts done by the tenant do not amount to a disavowal of a landlord's title, then the tenant is entitled to notice. A mortgagor in possession, being only tenant by sufferance, is not entitled to a notice to quit; and consequently if a mortgagor lets another person into possession, as tenant from year to year, such tenant is not entitled to a notice to quit either from the mortgagee, or his assignee, 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; after which B.'s executor took possession of the house; it was holden, that x Roe d. Goatly v. Paine, 2 Camp. N. P.C.520. y Doe v. Williams, Cowp. 622. z Throgmorton v. Whelpdale, H. 9. G 3. Bull. N. P. 96. Doe v. Pasquali, Peake's N. P. C. 196. a Keech v. Hall, Doug. 22. b Thunder d. Weaver v. Belcher, 3 East, 448. c Doe d. Broomfield v. Smith, 6 East, 530. (18) "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 Ld. Mansfield, C. J. in Right v. Darby, 1 T. R. 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. Where a person obtains possession of a house without the privity of the landlord, and afterwards a negociation takes place for a lease, upon the terms of which the parties eventually differ, a notice to quit is not necessary. 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. 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', 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. 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. 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 essoign 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, on each of them. The 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. d Doe d. Knight v. Quigly, 2 Camp. N. f Right d. Lewis v. Beard, 13 East. P. C. 505. 210. e Per Curiam, Hegan v. Johnson, g Bull. N. P. 98. 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. 2d, If there be several lessors, the demise stated in the declaration must be such as their title will warrant; as if the lessors of the plaintiff be joint-tenants or parceners (19), the declaration must allege a joint demise; if tenants in common, a several demise by each of their several parts (20). In the fatter h Bull. N. P. 107. Heatherly v. Weston, 2 Wils. 232. i Mantle v. Wollington, Cro. Jac. 166. S. P. Moor v. Thursden, Show. 342. (19) In an action of ejectio firma, 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 jointtenants 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 1 Rol. Ab. 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 for rent arrear. 45. a. Inst. (20) "Declaration in ejectment was of a joint demise of A. and B., and on the evidence it appeared that they were tenants in common; the plaintiff failed." M. 3 Jac. Blackasper's case. Noy, n. 43. Hal. MSS. See Noy, 13. cited in Hargrave's n. (7) But payment of rent to the agent of A. B. C. is an admission that the party holds under A. B. C. jointly, and will support a joint demise, unless it be expressly proved that they were entitled in a different manner. Doe d. Clarke and others v. Grant, 12 East, 221. See also Doe v. Read, 12 East, 57. In Roe d. Raper v.. Lonsdale, 12 East, 39. it was holden that a copyhold descending by custom to all the children equally of the tenant last seised, one of the joint-tenants might maintain ejectment on his single demise case the declaration must contain as many counts as there are tenants in common lessors of the plaintiff. But tenants in common may join in a lease to a third person, and then the declaration may state a demise by such lessee. 3d, The day, on which the demise is stated to have been made, must be some day after the title of the lessor of the plaintiff accrued; otherwise the plaintiff will be nonsuited; for not being entitled to the possession he cannot make a lease. Hence, in the case of a fine levied with proclamations, where an actual entry is necessary to complete the lessor's title, the demise must be laid on a day subsequent to the cutryk. But the surrenderce of a copyhold estate, after admittance, may maintain an ejectment against the surrenderor, on a demise laid on a day between the times of surrender and admittance; because, as against all persons, but the lord, the title of the surrenderee, after admittance, is perfect as from the time of the surrender, and shall relate back to it. So in ejectment by an administrator, the demise way be laid on a day after the intestate's death, but before administration granted; for the administration, when granted, will relate back, and shew the title to have been in the administrator from the death of the intestate. But the bargain and sale by the commissioners to the assignees of a bankrupt, of the bankrupt's freehold lands, does not relate to the act of bankruptcy so as to vest the title in the assignees from that time, and, therefore, in ejectment by the assignees upon a demise laid, after the act of bankruptcy but before the bargain and sale, it was adjudged ill". 4th, The demise may be for any number of years; this part of the declaration being a fiction, it will not be any objection that the lessor of the plaintiff had not power to grant a term of equal duration with that alleged. Hence, tenant from year to year, may declare on a demise for seven years". Care k Berrington v. Parkhurst, Str. 1086. 1 Holdfast v. Clapham, 1 T. R. 600. m Doe d. Esdaile v. Mitchell, 2 M. & S. 446. n Doe v. Porter, 3 T. R. 13. for his own share. In Doe d. Lulham v. Fenn, 3 Camp. N. P. C. 190. Lord Ellenborough, C. J. held, that in ejectment on the several demises of three persons, each demise being of the whole, the lessors of the plaintiff were entitled to a verdict, upon evidence, that they had jointly granted a lease to the defendant under which he had paid rent, but which had expired.-N. It was objected, that it must be taken that the lessors of the plaintiff were joint-tenants, and as there was not any joint demise, the plaintiff could not recover, but Lord Ellenborough overruled the objection. See Worrall v. Beck, M. 3 Geo. 2. cited 1 Wils. 1. should be taken that the term stated be long enough to admit of the plaintiff's recovering possession before it expires (21). 5th, If the ejectment be brought by a corporation aggregate (22), an infant, or for tithes, the declaration ought to state that the demise was by deed; and, in the case of the infant, it ought to appear that some rent was reserved; but it is not necessary that the deed should be proved. In ejectment for tithes the declaration ought to set forth the nature of the tither. 6th, With respect to the description of the thing demised, it may be observed, that regularly it ought to be made with such certainty, that the sheriff may know, from an inspection of the record, what he is to deliver possession of. But the strictness of this rule has been relaxed in ma y instances, on the ground that the sheriff is to take his information from the party recovering (23). 7th, The ejectment or o Carth. 390. This omission will be q Furley v. Wood, 1 Esp. N. P. C. 198 (21) But the courts have been very liberal in permitting plaintiffs to amend in this instance. In the case of Power d. Boyce and another v. Rowe, (in Ireland, Pasch. 1832.) the term expired, whilst the case was depending in the Exchequer Chamber; the judgment having been affirmed, a motion was inade to enlarge the term, and the court (Lord Redesdale, C. assisted by the chief justices) on the authority of Dickens v. Greenvill, Carth. 3. and Vicars v. Haydon, Cowp. 841. made an order to amend the record by enlarging the term. A writ of error was then sued, returnable in parliament, and upon the record so amended being transmitted, the plaintiff in error complained, by petition to the House of Lords, of the amendment made by the Court of Exchequer Chamber as an alteration of the record, and prayed a writ of certiorari to be directed to the Court of Exchequer C. to transmit the record in its original form. Upon debate, their lordships refused the writ, holding the amendment to have been properly made, and finally affirmed the judgments on the merits. See Lessee of Lawlor v. Murray, 1 Schoales and Lefroy's Rep. 81. n. (a.) (22) A corporation aggregate cannot make a lease for years without deed, in respect of the quality of the incorporation. 1 Inst. 85.a. (23) Ejectio firme of 30 acres of land in D. and S. The defendant was found guilty of 10 acres, and as to the residue, not guilty; and it was moved, in arrest of judgment, that it is uncertain in which of the vills this land lay, and therefore no judgment can be given, nor any execution. But the objection was overruled; and it was adjudged for the plaintiff; for the sheriff shall take his |