tions, and cant. *854 An entry to avoid a ed under legal fictions, an actual entry was dispensed with.a avoid a It is observable, however, that an actual entry is still required fine with in order to enable the claimant to support this action, when- proclamaever a fine has been levied with proclamations, under 4 Hen. when the VII, c. 24, and an entry is requisite to rebut the defendant's possestitle; and whenever the possession is vacant. In all other sion is vacases the common consent rule to confess entry is sufficient. An entry to avoid a fine must be made by the party who claims the land or by some one appointed by him;" and the claimant must have a right to enter; for if the right of entry be taken away by the fine, he cannot recover in ejectment. The entry must be made animo clamandi. But if a party enters expressly to claim the premises as his own, it is not necessary for him to say what particular act adverse to his interest he means to defeat; he need not declare his object to be to avoid a fine. To render such entry available, the action must be commenced within one year after making the entry, and prosecuted with effect." Where a tenant for life levies a fine, although it is no bar to those in remainder, yet a remainder-man must make an actual entry in order to avoid it before he can bring ejectment. But where a tenant for life, with remainder to R. P. in fee, leased for her life and died in 1799, and the lessee continued in pòssession without paying rent, till his death, in 1805, when his son took possession, and continued without paying rent, and in 1807 levied a fine with proclamations; held, that the heir of R. P., the remainder-man, might maintain ejectment against the son, without an actual entry to avoid the fine, or a notice to determine the tenancy.j fine. vacant. *855 Where the premises are vacated and wholly deserted by the When the *tenant and his place of residence is unknown, the old mode of possesproceeding in ejectment must be pursued; a lease must be sion is sealed on the premises, an ouster actually made, and the parties to the suit must be real and not fictitious; for a declaration cannot be delivered, or an affidavit made of the delivery of it, and consequently the court cannot proceed to give judgment against the casual ejector. But in order to warrant proceedings as on * Ante, 826. As by 3 & 4 W. IV, c. 74, s. 2, fines and recoveries are abolished, and other modes of assurance substituted, the entry here referred to can only apply to fines levied previous to the 1st of November, 1834. * Adams, 93. Per Lord Mansfield, in Goodright d. Hare v. Cater, Doug. 477. An entry is not necessary to avoid a fine at common law without proclamations. Jenkins d. Harris v. Pritchard, 2 Wils. 45. 4 Co. Litt. 258. If done by a stranger, however, and the claimant afterwards assents, it will in some cases be sufficient. Doe d. Odiarne v. Whitehead, Burr. 704. 'Clarke v. Phillips, 1 Vent. 42. E Doe d. Jones v. Williams, 5 B. & Ad. 783. (27 Eng. C. L. 186.) 2 N. & M. 602, overruling 1 Saund. 319. F. n. 1. 4 Ann, c. 16. s. 16. i Compere v. Hicks, 7 T. R. 433. Doe d. Burrell v. Perkins, 3 M. & S. 271. * Doe d. Norman v. Rowe, 2 Dowl. 399. Of the mode of proceed ing when the possession is vacant. a vacant possession, they must be wholly deserted by the tenant, and it must appear that the claimant has been unable to find out where the tenant is to serve him with a declaration.a C. The manner of proceeding in these cases is as follows. A., the party claiming title, must enter upon the land before the first day of the term of which the declaration is to be entitled and whilst on the premises execute a lease of them to B., (any person who may accompany him,) at the same time delivering to him the possession by some one of the common modes. (some other person) must then enter upon the premises, and eject B. therefrom, and having done so, must remain upon them, whilst B. delivers to him a declaration in ejectment, founded upon the demise contained in the lease; and in all respects like the declaration in the modern proceedings, except that the parties to it are real instead of fictitious persons; B. being made the plaintiff, A. the lessor, and C. the defendant. To this declaration a notice must be added, signed by B.'s attorney, and addressed to C., requiring him to appear and plead to the declaration, and informing him that if he do not, judgment will be signed against him by default. When the landlord or person claiming title, does not wish to go through this ceremony himself, he may execute a power of attorney, #856 authorising *another to enter for him; and the proceedings are then the same as if he himself entered." In case of In case of vacant possession, no person claiming title will be admitted to defend the action. Therefore, if the right to the ' premises be disputed, the party who seals the lease, must, in the first instance, recover the possession, and the other party must afterwards bring a common ejectment against him, to try the title. When an ejectment is brought in an inferior court, there proceed- must be an actual entry, lease, and ouster, as in the case of ings in an vacant possession; for inferior courts have not the power of framing rules for confessing lease, entry, and ouster, nor the means, if such rules were entered into, of enforcing obedience to them.d inferior court. The defendant may remove an ejectment from an inferior to a superior court either by writ of certiorari or of habeas corpus; and if there be any special grounds, a certiorari will be granted as a matter of course, and when removed, the tenant Adams, 199. A very little matter has been held sufficient to keep possession, such as leaving beer in a cellar, or hay in a barn, id. n. Savage v. Dent, 2 Stra. 1064. Jones d. Griffiths v. March, 4 T. R. 464. Where part of the property for which an ejectment was brought, consisted of three unfinished houses, which were untenanted, and there was no property in them, the court refused to allow the service of the declaration by sticking it up on the outer door, but obliged the lessor of the plaintiff to proceed as upon a vacant possession. Doe d. Schovell (or Showell) v. Roe, 3 Dowl. 591. 2 C. M. & R. 42. Adams, 200. 2 Sell. Prac. 131. Id. B. N. P. 96. Rex v. The Mayor of Bristow, 1 Keb. 690. Sherman v. Cocke, id. 795. • Doe d. Sadler v. Dring, 1 B. & C. 253. (8 Eng. C. L. 69.) 'Patterson d. Gradbridge v. Eades, 3 B. & C. 550. (10 Eng. C. L. 178.) in possession is entitled to the same privilege of confessing lease, entry, and ouster, and defending the action, as if the plaintiff had originally declared in the superior court." A judgment in an action of ejectment in an inferior jurisdiction, is not within the meaning of the 19 Geo. III, c. 70, s. 11; and therefore if the defendant leaves the jurisdiction, the judgment cannot be removed into a superior court.b 1.—When notice to quit must be given.] WHENEVER there When is an existing tenancy from year to year, the landlord cannot there exmaintain ejectment against the tenant without having given ists a yearly tenanhim half a year's notice, expiring with the year of the tenancy; cy, six except where a different period is established, either by an months' express agreement between the parties, or by a particular local notice custom.(1) A tenancy at will in the ancient acceptation of must be the term, i. e. a holding at the will of the owner of the land, fore ejectgiven beis in modern times scarcely known, the inclination of the ment can courts, of late, being to construe every tenancy a holding from be brought year to year, unless a different tenancy be created by express agreement between the parties. A general occupation of land therefore, without any certain or determinable estate being limited therein, enures as a tenancy from year to year, determinable by a notice to quit. When a party has obtained possession of premises belong- When a ing to another, and the owner does any act which implies that yearly tehe intends to acknowledge him as tenant, a tenancy from year nancy is to year is created by such act, and the tenant will be entitled to regular notice to quit before he can be ejected. Thus, implied. B. N. P. 96. Farker d. Walker v. Constable, 3 Wils. 25. Tuttle v. (1) (As to notice to quit, see Jackson v. French, 3 Wend. 337. Jackson v. Salmon, 4 Wend. 327. Jackson v. Moncrief, 5 Wend. 26. Jackson v. Burton, 1 Wend. 341. Reynolds, 1 Verm. 80. Hancket v. Whitney, Ibid. 311. Clapp v. Beardsley, Ibid. 151. Catlin v. Washburn, 3 Verm. 25. Den v. Depue, 6 Halst. 409. Den v. Adams, 7 Halst. 99. Den v. Stockton. Ibid. 322.) if a person enters into an agreement for a lease, and is let into possession, and has paid the stipulated rent, he is a tenant from year to year. So where a party entered into possession of premises under an agreement for a lease at a stipulated rent, and occupied them more than a year, but paid no rent; the landlord afterwards delivered to him an account, charging him with half a year's rent, which he admitted to be due, and named the amount; held, that a yearly tenancy might *858 thereby be implied. So, if a landlord suffer his tenant to continue in possession after the expiration of his lease, and receive rent from him accruing subsequent to the period of such expiration, he becomes thereby his tenant from year to year, upon the condition of the original lease. So, although a lease granted by a tenánt for life, under a limited power of leasing, which exceeds his power, is void and not capable of being confirmed by the remainder-man, yet if the remainderman raise money as rent, after the death of the tenant for life, it is an admission of a tenancy from year to year and a notice to quit must be given before any ejectment can be brought.d And if on the determination of the title of the landlord the tenant continues to hold the premises under his successor, in the absence of any new contract, he will be considered to hold them on the same terms as under the original landlord."(1) Posses sion under an agree ment, is When a party is let into possession under a lease void by the statute of frauds payment and receipt of rent will not establish the lease, but it will create a tenancy from year to year, regulated by its covenants and conditions. The same principle prevails if a party comes into possession under an agreement or lease invalid from any other circumstance, or under a valid agreement for a future lease. The evidence receipt of rent is, in all cases, prima facie evidence of a yearly of a yearly tenancy." "Where parties enter into a mere agreement for a tenancy. future lease, they are tenants at will; but if rent is paid under the agreement, they become tenants from year to year." The intention to create a yearly tenancy may be inferred from other circumstances besides the receipt and payment of rent. Thus, where ejectment was brought on the demise of Doe d. Westmoreland v. Smith, 1 M. & R. 137. Mann v. Lovejoy, R. & M. 355. (21 Eng. C. L. 454.) Cox v. Bent, 5 Bing. 185. (15 Eng. C. L. 410.) Bishop v. Howard, 2 B. & C. 100. (9 Eng. C. L. 41) d Doe d. Martin . Watts, 7 T. R. 83. Doe d. Jordan v. Warde, 1 H. Bl. 97. Doe d. Tucker v. Morse, 1 B. & Ad. 365. (20 Eng. C. L. 398.) Hutton v. Warren, 2 Gale, 71. 1 Mees. & Wels. 461. 1 Gale, 38. 1 C. M. & R. 834. Buckworth v. Simpson, 'Doe d. Rigge v. Bell, 5 T. R. 471. Clayton v. Blakey, 8 T. R. 3. Doe d. Warner v. Browne, 8 East, 165. Doe d. Pritchard v. Dodd, 2 N. & M. 838. 5 B. & Ad. 689. (27 Eng. C. L. 157.) Per Littledale, J., in Hamerton v. Stead, 3 B. & C. 483. (10 Eng. C. L. 161.) (1) (Lesley v. Randolph, 4 Rawle, 126.) a an infant which was compromised, and the tenant in possession attorned to the infant, though the lessor of the plaintiff, on his *coming of age, did not accept of rent or do any act to confirm *859 the tenancy, yet as the former ejectment was brought at his suit and for his benefit, it was held, that he should not be allowed to consider the tenant as a trespasser, and bring a new ejectment without giving notice to quit So also where a feme covert lived many years separated from her husband, and during that time received to her separate use the rents of certain lands which came to her by devise after separation, it was presumed that she received the rents by her husband's authority, and the court held, that a notice to quit must be given by him before he could maintain ejectment.b after the So where a rector succeeded to the rectory upon the death A contiof the former incumbent, in April 1816. A. and B. were then nuance in in possession of the glebe lands, having been tenants of the possession former incumbent, and they continued in possession until after expiration December 1816, when the rector conveyed the lands to trus- of a term, tees for securing an annuity; held, that the latter could not is evimaintain an ejectment against A. and B. without giving them dence of a yearly a notice to quit, for the rector must be presumed to have consented to the continuance of their tenancy under the terms of their previous holding. tenancy. Where A. granted an annuity to B. out of certain lands, with power of distress and entry if the annuity should be in arrear, A. afterwards granted a lease for years of the lands to the defendant; the annuity having become in arrear, B. ap- Attornplied for it to the defendant, who thereupon entered into an ment. agreement to attorn and become tenant to B., and afterwards paid him rent; held, that this created a tenancy from year to year between B. and the defendant, determinable on the arrears of the annuity being paid, upon which the defendant's lease for years would revive.d A demise, "not for one year only, but from year to year," operates as a tenancy for two years certain at least, and therefore *cannot be put an end to at the end of the first year by six *860 months' previous notice. But where furnished apartments were taken "for twelve 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 twelve months certain, and that he was at liberty to quit at the end of that period, by giving Doe d. Miller v. Noden, 2 Esp. 530. Doe d. Leicester v. Biggs, 1 Taunt. 367. Doe d. Cates v. Somerville, 6 B. & C. 126. (13 Eng. C. L. 118.) 9 D. & R. 100. See Hutton . Warren, ante, 858. a Doe d. Bevan v. Boulter, 1 Nev. & Perry, 650. * Denn d. Jackling v. Cartwright, 4 East, 29. |