9 Viner 326. (4) Or that he acknow ledged himfelf to be fo, because no man fhould be turned (D) Rules. 1. IT is ordered, that for the prevention of maintenance and brocage no attorney be leffee in ejectment. Ruled B. R. Mich. 1654. There is alfo a fimilar rule in the fame words in C. B. in the fame term. 2. The person who fwears to the fervice, muft fwear pofitively that fuch a one is tenant in poffetsion (a), and that he read the indorsement to him and acquainted him with the contents thereof; and upon this affidavit the plaintiff moves for judgment againft the cafual ejector, which is granted, unlefs the tenant enter into the common rule of confefling leafe, entry, and oufter. Bull. feffion, but Ni. Pri. 97. Efpinaffe's Ni. Pri. 442. cites Lil. Pract. Reg. 499. on a pofitive affidavit, on which he may charge the perfon that makes it with perjury. Runningt. Ejectmt. cites Barnard, K. B. 330. 429. If the declaration was ferved on the ch id or fervant of the tenant, the affidavit muft ftate that the fervice was afterwards acknowledged by the tenant. Runnington's Ejec. 67. out of pof Lord Manf field, in the cafe of Fairclaim v. Shamtitle, 3 Burr. 1303. fays, That this • cafe of "Good 3. If there be feveral perfons who claim title, the rules may be drawn generally, or particularly; generally, as that 7. S., who claims title to the premises in queftion, fhould be admitted defendant for fuch meffuages; and this puts a neceffity on the plaintiff to diftinguish by proof what tenements are in each tenant's poffeffion, otherwife he can have no verdict. But if the rule be drawn specially, that. fuperfedes the neceffity of proof that the lands are in his poffeffion. Bull. Ni. Pri. 97. Runnington Eject. 80. 4. After the landlords had obtained a rule to be made defendants with the tenants in poffeffion, and entered their appearance, the tenants themselves refufed to appear, or make any defence, upon which judgment was figned against the cafual ejector, and a writ of poffeffion taken out and executed. The landlord moved to fet it afide, infifting that the only reason for making the landlord a defendant, was to fecure a trial in all events, and to prevent the tenant from betraying poffeffion. But the court refused to fet afide the judgment, faying that the rule was, that the landlord "feems to fhould be made a defendant una cum the tenant in poffeffion, and ❝ have been therefore if they would not stand the fuit, the landlord could not "confider- be let in. Goodright v. Hart & ux., Eaft. 2 G. 2. Str. 830. "ed, and that this cafe certainly occafioned the claufe in the act of 11 G. 2. c. 10. relative to this fub"ject. As the parliament has contradicted it, one may venture to say it was hafty. Every reason of "private justice, public convenience, and every authority was the other way." "" right and "Hart " very little 5. In moving for judgment upon a declaration in ejectment delivered, or in cafe of no tenant, affixed on the premises, according to the act of 4 G. 2. c. 28. the court requires an affidavit that there was half a year's rent in arrear before declaration served; that the leffor of the plaintiff had a right to re-enter; that no fufficient diftrefs was found on the premises countervailing the arrears of of rent then due; that the premises were untenanted, or that the tenant could not be legally ferved with the declaration, (as the cafe is,) and that a copy of the declaration was affixed on the most notorious, and what part of the premises, or the court will not give a rule for judgment. 2 Crompton's Pract. 186. 6. The notice in ejectment was to appear on the effoign day of the term, and held ill, for it fhould be to appear the first day in full term, that being the appearance day. Holdfaft v. Freeman, Trin. 9 G. 2. 2 Str. 1049. 7. Tenant in poffeffion was tenant at will to infants, by order It was movof whofe guardian D. an attorney had appeared and pleaded for ed that the the tenant, and offered the tenant fecurity to indemnify him. tenant in poffeffion But per cur.-A defence cannot be made for the tenant without might fhew his confent; and the appearance and plea were withdrawn. caule why he should Roe ex dem. Cook v. Doe, Mich. 10 G. 2. Barnes, 39. not appear and defend the title, his landlord having tendered him an indemnity. But the court refused to make that rule, though they enlarged the time to appear. Right ex dem. Streak v. Wrong, East. 7 G. 2. Barnes, 173. But this was before the ftat. 11 G. 2. c. 1). fet afide a ejector, the notice to his 8. But now, by the ftatute 11 G. 2. c. 19. f. 12. reciting, that The court great inconveniences had frequently happened to landlords by upon terms tenants fecreting declarations in ejectment which have been de- regular judg livered to them, or by refufing to appear to fuch ejectment, or to ment against fuffer their landlords to take upon them the defence thereof, it is the cafual enacted, that from and after the 24th June 1738, every tenant to tenant havwhom any declaration in ejectment fhall be delivered for any ing neglectlands, tenements, or hereditaments in that part of Great Britain ed to give called England, dominion of Wales, or town of Berwick-upon- landlord, Tweed, fhall forthwith give notice thereof to his or her landlord who was an or landlords, or his, her, or their bailiff or receiver, under penalty of forfeiting three years' improved or rack rent of the premifes fo Troughton demised or holden in the poffeffion of fuch tenant, to the perfon of v. Roe, whom he or she holds, to be recovered by action of debt to be 7 G. 3. brought in any of his majesty's courts of record at Westminster, or Burr. 1996. in the county palatine of Chefter, Lancaster, and Durham refpectively, or in the court of grand feffions in Wales, wherein no effoin, protection, or wager of law fhall be allowed, nor any more than one imparlance. 9. Where a leffor obtains title under a devise over, which was in the nature of a condition, and entry had been made by a stranger in his name, but without his authority, the leffor may afterwards take an advantage of such entry of the stranger, by affenting thereto before the day of the demife, and it shall amount to an actual entry by the leffor, and be fufficient to fupport an ejectment. Fitchet v. Adams, Eaft. 13 G. 2. 2 Str. 1128. infant. Doe ex dem. Mich. cafe where iffues had 16 feveral 10. Ten declarations on the fame demife were delivered for ten But in the houfes in the occupation of ten perfons, and it being moved to have them confolidated into one iffue, upon a fuggeftion that the title was the fame, it was however refused to be done, for the leffor might have fued them at ten different times, and it would be obliging him to go on againft all, when perhaps he might be each con B3 ready been joined, and the de clarations in tained a large num ready in fome of them only. Smith v. Crabb, Hil. 14 G.2 ber of mes- Premifes II. In the declaration delivered to the tenant in poffeffion, the were laid to faid James instead of John was faid to enter by virtue of the demife, and the court refufed to amend it, for they confidered it as a Str. 1211. Twicken- process. Goodtitle v. Meyn:ott, Trin. 17 G. 2. lie in Ille worth and bam, or one of them, and the court refused to let the plaintiff amend by striking out the disjunctive words. Truetitle v. Ashburn, cited by Wright, J. in Goodtitle v. Meymott. It is no reafon at all against granting a new trial 12. The notice to appear to a declaration in an action of ejectment, must be to appear in the term next to that in which the declaration is. Armstrong ex dem. Warnboufe v. Thruftout, Trin. 25 & 26 G. 2. Sayer, 49. and be 13. The landlord obtained the common rule to appear made defendant with the tenant in cafe he should appear, and to The tenant appear and defend alone in cafe he should not appear. did not appear, his landlord did, and the cause was carried down to the affizes, where an agreement was entered into, in confequence of which the cause was not tried: after all which the defendant entered an appearance, and three juftices against Wright, J. were of opinion, that although judgment be not figned against the cafual ejector, the tenant is precluded from appearing to a declaration in an action of ejectment, unlefs he do appear before the time allowed to appear in is elapfed. Holt ex dem. Sampfon v. Ward, Trin. 28 & 29 G. 2. Sayer, 151. 14. Although the rule made upon the motion for judgment against the cafual ejector is, that if the tenant in poffeffion shall not appear within four days after the end of the term, judgment may be figned against the casual ejector, yet judgment ought not, according to the ufual practice of the court, to be figned before the afternoon of the fifth day after the end of the term. Hyde ex dem. Callyford v. Thruftout, Trin. 29 & 30 G. 2. Sayer, 303. 15. The court will not grant a new trial in ejectment where the verdict is agreeable to the true juftice of the cafe, as in fuch cafe it would be vain, and vexatious. Wright ex dem. Clymer v. Littler and another, Mich. 2 G. 3. Burr. 1256. that it is an ejectment cale; for though a new eje&ment may be brought, yet here will be a change of poffeffion, by which the defendant will be a fufferer; this objection against granting a new trial, because a new eject. ment may be brought, has been over-ruled again and again, per Lord Mansfield, in Goodtitle ex dem. Alexander and others v. Clayton and others, Eaft. 8 G. 3. Burr. 2224. S. P Good- 16. The plaintiff cannot recover in ejectment against his own title ex dem. covenant. Wright ex dem. Green v. Proctor, Eaft. 8 G. 3, Edwards V: Bailey, Burr, 2208, Cowp. 597. in which cafe Lord Mansfield has these words: " this is a fiftitious action to recover the 'pollellion. In fuch an action, if a man has made a folemn deed, covenanting that another fall enjoy the premises, and likewife, for further affurance, it shall never lie in his mouth to dispute the "title of the party to whom he has fo undertaken, no more than it fhall be permitted to a mortgagor "to difpute the title of his mortgagee. No man shall be allowed to difpute his own folema deed." So in a cafe where a leffor had, by an agreement in writing, articled to grant a leafe for 2 years, and the defendant had been in poffeffion under that agreement, (without any lease having been executed, or required to be executed by either party,) for 18 years, and then the landlord gave notice to quit, and brought his ejectment; but the court held, that the defendant was entitled to recover. Weakly ex dem. Yea, Bart. v. Backnell, Mich. 17 G. 3. Cowp. 473. This determination, however, was doubted by Lord Thurlow, C. in the cafe of Sir James Lowther v. Andover, that is, whether an executory contract be a defence to an ejectment; and which doubt was infifted on by counfel arguendo in the cale of Doe ex dem. Coore v. Clare, Mich. 29 G. 3. 2 Term Rep. B. R. 741. And in a note to that cafe, page 744. Lord Kenyon is faid to have declared it to be the opinion of all the Judges, that the rule in Weakley and Bucknell, Cowp. 473. at all events could not extend to the cafe of a purchafer; and vide poft letter (M), pl. . But in a fubfequent case it was the opinion of the court, that the intention of the parties, and the wording of the agreement, muft determine the effect of it. Roe ex dem. Jackson v. Ashburner, Hil. 33 G. 3. 5 Term Rep. B. R. 163. Vide poft. (O), pl. Tasker v. Blackft 17. Half a year's notice to quit poffeffion must be given to a S. P. Gullitenant at will, before the end of which time an ejectment will not ver ex dem. lie to turn him out of the farm; and the fame law was held in Burr. Eait, the cafe of an executor to a tenant at will. Parker, on the demife 6G. 3. of Edward Parker, Efq. v. Conftable, Mich. 10 G. 3. 3 Wilf. 25. But where a landlord had been admitted to defend instead of the tenant, and it was objected, that to entitle the plaintiff to recover he ought to have given the tenant notice to quit, it was answered, that the poffeffion was adverse, therefore no notice was neceffary; and Lord Mansfield said he was clearly of opi nion there was no occafion for a notice, for the poffeffion of the tenant was connected with that of the landlord, which was adverse. Due ex dem. Foster v. Williams, Trin. 17 G. 3. Cowp. 621. So where the mortgagor granted a leafe for leven years to the defendant, after the mortgage made, and the mortgagee brought ejectment against the leffee, it was determined, that no notice to quit was neceffary; for when the mortgagor is left in poffeffion the true inference to be drawn is, an agreement that he fhall poffefs the premises at will in the stricteft fenfe, and therefore no notice is ever given him to quit, and he is not even entitled to reap the crop as other tenants at will are, because all is liable to the debt, on payment of which the mortgagee's title ce fes, and the mortgagor has no power, exprefs, or implied, to let leafes not fubject to every circumftance of the mortgage. Keech ex dem. Warne v. Hall and another, Mich. 19 G. 3. Doug. 21. But where the tenant was tenant from year to year, and pending the year the landlord mortgaged the premises, the tenant is entitled to the fame notice from the mortgagee before he can be evicted as he was from the mortgagor, for as the mortgagee claims under a conveyance from the mortgagor, the former cannot be in a better fituation than the latter, and the leafe is the fame whether he be a mortgagee, a purchafor, or the affignee of a reverfion. Birch v. Wright, Mich. 27 G. 3. 1 Term Rep. B. R. 378. Where the notice to quit was in these words: "I defire you to quit poffeffion at Lady day next of, &c. or I shall infift upon double rent for the fame;" and it was infifted, that the leffor of the plaintiff ought not to recover, for that there was an alternative offered to the tenant, either to quit, or if he continued, to pay double rent; but Lord Mansfield, C. J., faid, that the addi tional words only prove the landlord's anxiety to get into poffeffion. It was an emphatical way of enforcing the notice, by informing the tenant of the legal confequences if he held over. But if the words had run thus; or elfe that you agreed to pay double rent, the ejectment could not have been supported. Doe ex dem. Matthews and others v. Jackson and another, Eaft. 19 G. 3. Doug. 175. And in a fubfequent cafe, where an action was brought for double rent, and the facts were, that the leffee of the plaintiff was tenant for three years, and that the plaintiff had given the defendant notice to quit at the expiration of the term, this the defendant did not comply with: after the expiration of that notice the plaintiff gave the defendant notice to quit at a day certain, or to pay double rent. It was objected, that the first notice was given only two months before the expiration of the term, and that even that had been waived by the fecond; that there was no difference between the two notices, the first was fimply to quit; the second, to quit or pay double rent, fo that the plaintiff did not mean to have double rent under the firft; the second alfo recognized the tenancy to continue. But per Lord Mansfield-Where a term is to end on a precife day there is no occafion for a notice to quit, because both parties are apprifed that, unless they come to a fresh agreement, there is an end of the leafe. Here the landlord, before the term is expired, told the tenant, "You know you are to quit," the meaning of that is, "If you do not quit I will infift on my "double rent:" and he gave him a fecond notice afterwards, wherein he faid, in fo many express words, what was before to be collected by intendment. Meffenger v. Armstrong, Mich. 26 G. 3. Term Rep. B. R. 53. On the 11th May 1781, the defendant took the premises, which were a house under a parol demife, the rent to commence at Midfummer following: on the 26th March 1785, the defendant was ferved with a notice to quit on the 29th September following, and the question being, Whether the leffor of the plaintiff was entitled to recover, the notice to quit not being given fo as to expire at the end of the year? And per Lord Mansfield, C. J.-If there be a leafe for a year, and, by confent of both parties, B4 parties, the tenant continue in poffeffion afterwards, the law implies a tacit renovation of the contract. They are fuppofed to have renewed the old agreement, which was to hold for a year; but then it is neceffary, for the fake 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. Now this is a notice to quit in the middle of the year, and therefore not binding, as it is contrary to the agreement. His lordship alfo obferved, that as to the cafe of lodgings, that depends on a particular contract, and is an exception to the general rule. And per Ahhurst, J.-There is no distinction in reafon, between houfes and lands, as to the time of giving notice to quit. It is neceffary that both should be governed by one rule. Right ex dem. Flower v. Darby and another, East. 26 G. 3. 1 Term Rep. B. R. 159. In the Cafe of Right and Darby, the counsel for the defendant cited three cafes, the first, Sykes, on leveral demifes of Murgatroyd, and another, v. › before Blackstone, J., at York Summer affizes, 1774, where J. M., being feifed for life, remainder to his wife for life, with remainder over, in 1772 agreed with the defendants to grant them a leafe for 14 years to commence from 13th February 1772, at a certain rent; the defendants entered under the agreement, but no leafe was granted; J. M. died in July 1773; at the latter end of the fame month his widow gave the defendants notice to quit on the 2d February next, and fome time after made a leafe to the other leffor of the plaintiff, to commence on the 2d February; fubfequent to this the accepted half-a-year's rent from the defendants which was due at Martinmas 1773. Black ft J. feemed to think, that if no notice to quit had been given, the acceptance of rent would have been fufficient evidence of an agreement between her and the defendants, that they should continue from year to year, and therefore a notice fubfequent to that acceptance of rent, must have been a half year's notice to quit on the 13th February, but the acceptance of rent was only evidence of fuch agreement and rebutted by the notice, and fo the plaintiff had a verdict. The fecond was Doe ex dem. Puddicombe v. Harris, at Dorchester Summer affizes 1784, before Eyre, baron, the demife was laid on the 30th March 1784; the plain iff proved a receipt of rent from the defendant, and that he gave him fix months notice to quit at Lady-day 1784; amongst other objections against the plaintiff's recovering the following was taken, that, fuppofing the defendant was tenant from year to year, it was not proved that he was tenant from Lady-day to Lady-day, and fo no tenancy was proved upon which notice to quit could operate; but Eyre, baron, in answer to this objection, faid, that as the defendant had fix months' notice to quit at Lady-day, he should prefume that he was tenant from Lady-day to Lady-day, unless the contrary was fhewn, and therefore the notice was fufficient. And another cafe before Lord Mansfield at Guildhall, in which Mr. Duncombe brought an ejectment against a tenant, but could not prove from what time the term commenced, the defendant proving it to be different from the time to quit mentioned in the notice: the plaintiff was nonfuited. I Term Rep. B. R. 161. Where the leffor of the plaintiff was an infant, and the defendant held as a tenant under a demise from year to year from the leffor's ancestor, it was held, that the defendant was entitled to the fame notice to quit from the infant as he must have had from the original leffor. Maddon, on feveral demifes, Baker and others v. White and others, Mich. 28 G. 3. 2 Term Rep. B. R. 159. 7. 7. being tenant for life, with remainder to the leffor of the plaintiff, made a leafe of the premifes to the defendant for 21 years, to commence from Old Lady-day, 5th April. On 30th September, in the fame year, J. 7. died. The defendant continued in poffeffion and paid rent to the leflor of the plaintiff, after the death of J. J. for two years, on Old Lady-day and Old Michaelinas-day. Before Old Michaelmas-day 1787, the leffor of the plaintiff gave the defendant notice to quit on Old Lady-day then next, and thereupon brought ejectment. An objection was made at the trial, that the notice to quit on the 5th April was bad, that it ought to have been on the 30th September, the end of the year, dated from the death of 7. 7., all the defendant's intereft derived from the leafe having ceafed on that event. There was a verdict for the defendant which was moved to be let afide, when the court were of opinion that the notice was proper, as payment of the rent was made on that day. It was alfo fair and juft, in the leffor of the plaintiff, to give the tenant notice to quit when his year ended, that the course of husbandry might not be disturbed. Roe ex dem. Jordan v. Ward, Hil 29 G. 3. 1 H. Black ft. 97. But where the leffor of the plaintiff, after having given the defendant notice to quit, which was not complied with, took a diftrefs for rent which became due after the expiration of the notice and brought his ejectment, laying the demife after the day up to which the rent diftrained for was due, the court held that the taking of the diftrefs was an act not to be qualified, and amounted to a confirmation of the tenancy; and the plaintiff was accordingly nonfuited. Zouch ex dem. Ward v. Willingall, Hil. 30 G. 3. 1 H. Blackft. 311. The defendant held from Michaelmas and was ferved with a notice to quit at Midfummer; but when he received the notice he made no objection as to the irregularity, but faid, I pay rent enough already, and it is hard to use me thus; and it was infifled for the plaintiff, that the defendant had waived taking advantage of the improper notice, and that he ought not, upon the trial, to be turned round upon fuch an objection. But the court were of opinion that the defendant had not waived the objection, and therefore a nonfuit was entered. Oakapple ex dem. Green v. Copous, Trin. 31 G 3. 4 Term Rep. B. R. 361. The defendant was tenant from year to year to the leffor of the plaintiff, and the question was, Whether the notice to quit, which had been ferved upon the tenant's maid fervant at his houfe, which was not fituated upon the premifes, and which notice had been explained to her at the time, was a fufficient notice to the tenant? And the court held that perfonal fervice was not neceflary; and Buller, J., obferved, that the servant, who was in the power of the mafter, was not called to prove that the did not communicate the notice to her maf ter, this was ample evidence on which the jury might have prefumed that the notice reached the tenant. Jones ex dem. Griffiths v. Marsh, Mich. 32 G. 3. 4 Term Rep. B. R. 464. |