Where an Ejectment will not lie.-But an ejectment cannot be maintained for a Close, 11 Rep. 55. Godb. 53. Manor, without describing the quantity and nature of land therein, Latch, 61. Lit. Rep. 301. Hetl. 146. Messuage and tenement, Doe v. Plowman, 1 East's R. 441. (9) Messuage garden and tenement, Goodtitle v. Walton, Str. 834. Messuage or tenement, Goodright on d. Welch v. Flood, 3 Wils. 23. Messuage, situate in Coventry, in the parishes of A. and B. or one of them. Holden bad for uncertainty, after verdict, and that the words," or one of them," could not be rejected. De peciâ terræ, Moor, 702. pl. 976. De castro, villâ et terris, Yelv. 118. Ejectment will not lie for things that lie merely in grant, which are not in their nature capable of being delivered in execution, as an advowson, common in gross, Cro. Jac. 146. An ejectment will not lie for a pischary, Cro. Jac. 146. Cro. Car. 492. 8 Mod. 277. 1 Brownl. 142. contra per Ashhurst, J. 1 T. R. 361. Nor pro quodam rivulo sive aquæ cursu, called D. Yelv. 143. nor for Pannage, 1 Lev. 212. IV. In what Cases an Entry must be made on the Land before Ejectment brought. In some cases before an ejectment can be brought, some previous steps must be taken, in order to entitle the plaintiff' to the action; as an entry must be made on the lands in ques o Goodright d. Griffin v. Fawson, 7 Mod. 457. Svo. edit. 1 Barn. 150. S. C. (9) But after verdict the court will give leave (even pending a rule to arrest the judgment on this ground) to enter the verdict according to the judge's notes for the messuage only. Goodtitle d. Wright v. Otway, 8 East, 357. tion, or notice to quit must be given, &c. Under what circumstances these proceedings will be necessary, will appear from the following remarks: An actual entry is necessary, to avoid a fine levied with proclamations, according to the stat. 4 H. 7. c. 24.; and an ejectment cannot be brought until such entry has been made P. And by stat. 4 Ann. c. 16. s. 16. the action must be commenced within one year next after the making such entry, and prosecuted with effect. N. The plaintiff must lay his demise on a day subsequent to the day of the entry . But an actual entry is not necessary to avoid a fine at common law, without proclamations'; nor a fine, with proclamations, if all the proclamations were not made at the time when the ejectment was brought; nor a fine, which has no operation, as a fine levied by son of tenant at sufferance', or a fine levied by tenant for years"; nor to maintain an ejectment on a clause of re-entry for non-payment of rent* (10). Where tenant for life levies a fine with proclamations, although it is not any bar to those in remainder, yet a remainder man must make an actual entry, in order to avoid it, before he can maintain ejectment". An entry upon an estate generally, is an entry for the whole; if it be for less, it should be so defined at the time. In a case, where a party had a right of entry upon condition broken, and a stranger entered, and afterwards the plaintiff assented to such entry, and brought an ejectment laying the demise after the assent, it was holden sufficient. Where an ejectment is brought by a corporation aggregate, they must execute a letter of attorney to some person, em (10) To avoid a fine [i. e. a fine with proclamations, where all the proclamations have been made at the time when the ejectment is brought there must be an actual entry. In all other cases, the confession of lease, entry, and ouster, is sufficient." Per Lord Mansfield, C. J. in Oates d. Wigfall v. Brydon, 3 Burr. 1897. powering him to enter on the land; but a verbal notice to quit given by the steward of a corporation is sufficient. Where lands are in the possession of a receiver, under an appointment of the Court of Chancery, an ejectment cannot be brought for the recovery of such lands, without leave of the court. Such receiver is authorised to determine tenancies from year to year by a notice to quit. V. In what Cases a notice to quit must be given before Ejectment brought.-Requisites of Notice.-Waver of Notice.-Where Notice is not required. THE old tenancy at will being attended with many inconveniences, the inclination of the courts has of late been to make every tenancy a holding from year to year if they can find any foundation for it; as if the lessor accepts yearly rent, or rent measured by any aliquot part of a year; and it has been considered as more advantageous to the parties, that such demises should be construed to be tenancies from year to year, so long as it shall please both parties; for in that case one party cannot determine the tenancy, without giving a reasonable notice to quit to the other; with respect to which it may be laid down as a general rule, that half a year's (11) notice, expiring with the year of the tenancy, is a reasonable notice in all cases, except where a different period is esta b Roe d. Dean and Ch. of Rochester d Doe d. Marsack v. Read, 12 East, e See Richardson v. Langridge, 4 Taunt. 128. where the agreement was holden to be a tenancy at will; the premises being let so long as both parties liked, and a compensation reserved accruing de die in diem and not referable to a year or any aliquot part of a year. f 13 H. 8. 15. b. (11) By legal computation half a year contains 182 days; for the odd hours are rejected. 1 Inst. 135. b. But a notice served on the 28th of September to quit on the 25th of March, although the period contain only 179 days, has been holden to be a good notice. Doe d. Harrop v. Green, 4 Esp. N. P. C. 199. And Lord Ellenborough, in the same case said, that a notice on the 29th of September to quit at Lady-day following had been holden good, i blished, either by express agreement or the custom of particular places (12). If the tenant die, his personal representative, having the same interest in the land which the tenant had, will be entitled to the same notice; that is, half a year's notice ending with the year. So if an infant becomes entitled to the reversion of lands leased to a tenant from year to year, he cannot maintain an ejectment, unless he has given the tenant a proper notice to quit1. There is not any distinction between houses and land, in this respect. Half a year's notice to quit, ending with the year of the tenancy, must be given in both cases*. Neither will the circumstance of the rent being reserved quarterly vary the case, if the tenancy be from year to yeari (13). So if an house be let from year to year, to quit at a quarter's notice, the notice must be given to quit at the end of a quarter expiring with a year of the tenancy". But if the demise be for one year only, and then to continue tenant afterwards, and to quit at a quarter's notice, a quarter's notice ending at any time will be sufficient". So where premises are taken under an agreement by which the “ tenant is always to be subject to quit at 3 month's notice," this constitutes a quarterly tenancy, which may be determined by a three months' notice to quit, expiring at the same time of the year it commenced, or any corresponding quarter-day. But although the tenant under such an agreement enters in the middle of one of the usual quarters, if there appears to be no agreement to the contrary he will be presumed to hold from the day he enters, and the tenancy can only be determined by a notice expiring that day of the year, or some other quarter-day calculated from thence°. g Roe d. Brown v. Wilkinson, Hårg. h Doe d. Shore v. Porter, 3 T. R. 13. i Maddon v. White, 2 T. R. 159. k Right v. Darby, 1 T. R. 162. 1 Shirley v. Newman, 1 Esp. N. P. C. m Doe d. Pitcher v. Donovan, 2 Camp. o Kemp v. Derrett, 3 Camp. N. P. C. 510. (12) By the custom of London, a tenant at will, under 40s. rent, shall not be turned out without a quarter's warning. Dethik v. Saunders, 2 Sidf. 20. See also Tyley v. Seed, Skin. 649. (13) But where a house is taken by the month, a month's notice will be sufficient. Doe d. Parry v. Hazell, 1 Esp. N. P. C. 94. A demise, "not for one year only, but from year to year," inures as a demise for two years at least; and, consequently, the tenant cannot be ejected after a notice to quit at the expiration of the first year P. But where furnished apartments were taken " for 12 months certain, and six months' notice afterwards," it was contended, that the defendant, under the above taking, was not at liberty to quit till six months' notice had been given after the expiration of the first year; but Lord Ellenborough was clearly of opinion, that the defendant was only bound to remain the 12 months certain, and that he was at liberty to quit at the end of that period, by giving six months' previous notice. His lordship laid considerable stress upon the word certain, applied to the first twelve months, which shewed that every thing afterwards was uncertain, and depended on the notice. If a lessee, after the expiration of the lease, holds over and pays rent, the law presumes an agreement between the parties, that the tenant shall continue the possession according to the terms of the original demise, as far as those terms are consistent with a tenancy from year to year; in which case, if the landlord means to determine the tenancy, he must give the tenant half a years' notice to quit, corresponding with the time of the original taking. In this case the tenancy from year to year commences at the same time when the lease began'; and if the tenant assign the premises, the assignee will be tenant from year to year from the same time, and notice to quit must be given accordingly: e. g. if the original term began from Michaelmas, the notice must be to quit at Michael mas. The receipt of rent is evidence to be left to a jury that a tenancy was subsisting during the period for which that rent was paid; and if no other tenancy appear, the presumption is, that that tenancy was from year to year. A., being tenant for life', with remainder to the lessor of the plaintiff in fee, on 22d June, 1785, demised to defendant for twenty-one years, to commence from old Lady Day then past. On 30th September, 1785, A. died; defendant continued in possession, and paid rent to the lessor of the plaintiff for two years, on old Lady Day and old Michaelmas Day; before old Michaelmas Day, 1787, lessor of plaintiff gave de fendant notice to quit on old Lady Day then next. Adjudged, p Denn v. Cartwright, 4 East, 31. Thompson v. Maberly, 2 Camp. N. P.C. 573. r Doe d. Castleton v. Samuel, 5 Esp. s Doe d. Jordan v. Ward, 1 H. Bl. 97 |