from Thomas v. Cook, 2 B. & A. 119, because, in that case, there was an actual change of possession. Besides, the Court of Exchequer have decided upon this very notice in Doe demise of Hudleston v. Johnstone, (1 M-Cleland v. Younge, 141,) that although it was assented to by the landlord, [*926 that did not entitle him to maintain an ejectment. It appeared that after the landlord had accepted the offer, he gave notice that the estate would be let by auction on the 6th of January, 1824, and that Johnstone attended the letting, and offered a rent of 40l. a year, but another person offered 521. a year, and was declared the tenant. Johnstone then proposed the same sum, but his proposal was rejected, and he refused to quit. It was contended that the tenant's offer to give up the possession at the end of the year, and the acceptance of that offer by the landlord, followed by the reletting of the premises, (which must be taken to have been with the tenant's consent,) amounted to a surrender by act and operation of law, within the statute 29 Car. c. 3.; and, secondly, that there was a mutual agreement to waive half a year's notice in writing, and adopt one by parol within that time; that the latter, therefore, was a reasonable notice, and that the law required nothing more; but it was held that the tenancy was not determined, there not having been either a sufficient notice to quit, or a surrender by operation of law.

[*927

Assuming, therefore, that the tenancy has not been determined, the question then is, whether the landlord is entitled to distrain for double rent under the statute 11 G. 2, c. 19, s. 18, in consequence of the tenant's having given a notice to quit, which was not binding either upon him or the landlord. The mischiefs intended to be remedied are specified in the recital of that section. The object of the legislature appears to have been to remedy the inconvenience resulting to landlords where tenants having power to determine leases by giving notice to quit, refuse to deliver up possession when the landlord has agreed with another tenant. The statute, therefore, contemplates a case where a landlord is put to inconvenience in consequence of the tenant's giving a notice to quit, by which the tenant had power to determine his lease. Now the tenant in this case had no power to determine his tenancy by the notice which he gave, and that must have been known to the landlord, and therefore, he could not sustain the inconvenience contemplated by the statute. This, therefore, was not a case within the mischiefs intended to be remedied. It is true that the enacting words of the section are larger and sufficient to comprehend the present case, but they must be construed together with the words of the recital, and effect must be given to all the words of the section: The enacting words are "that in case the tenant give notice of his intention to quit at a time mentioned in the notice, and does not deliver up possession, then he shall pay double rent." Now construing these words with reference to the mischief to be remedied, viz., the inconvenience resulting to landlords in consequence of tenants who have power to determine their leases by giving notice to quit, refusing to deliver up possession when the landlord has agreed with another tenant; the notice of the intention to quit, mentioned in the enacting part, must be a notice by the giving of which the tenant has power to determine his tenancy. There is no authority to show that a tenant is liable to double rent where his tenancy has not been duly determined by a valid notice to quit. In Timmins v. Rawlinson, 3 Burr. 1603, it was decided, that a lease by parol was a *holding over within the statute, and that a parol notice to quit by the tenant was sufficient to make him liable for double rent in case [*928 he held over; and although the notice there was to quit at the end of three months, no question was made as to the validity of the notice in that respect. Messenger v. Armstrong, 1 T. R. 53, is not in point, because that was an action for double the yearly value after notice given by the landlord, as appears by Selwyn's N. P. 712, n. In Farrance v. Elkington, 2 Campb. 591, a teuant, from year to year, gave his landlord notice to quit, as soon as he got

another situation, but did not quit, and Lord Ellenborough held, that he was not liable for double rent, and he intimated an opinion that the notice must be one binding upon the landlord. The statute 4 G. 2, c. 28, applies in terms to those cases only where the tenant holds over after the determination of his term. The statute 11 G. 2, c. 19, s. 18, is a statute in pari materia, and ought to be construed with reference to the enactments of the former statute. The former statute gives the landlord double the yearly value, if the tenant holds over after a notice to quit given by the landlord. The latter statute gives double the yearly rent, if he holds over after a notice to quit given by himself.

Parke, contra. It does not appear by the allegation in the plea, that the notice to quit was not a notice to quit at the end of half a year. The allegation is, that the notice was given less than six months before the 25th of March, 1824. But that may mean calendar months, and if so, there

*029] might be more than half a year's notice; and Doe v. Green, 4 Esp. N.

P. C. 198, is an authority to show that a notice for less than six calendar months is sufficient. But, assuming that it does sufficiently appear that less than half a year's notice was given, still that notice having been accepted and assented to by the landlord, was sufficient to determine the tenancy on two grounds; first, because the parties agreed to consider it a reasonable notice to quit; secondly, because it operated as a surrender by operation of law. But assuming that the tenancy was not determined, still the tenant having held over after having given a notice to quit, the landlord was entitled to distrain for double rent. At all events he is entitled to recover the single rent. As to the first point, the parol notice to quit in less than half a year having been accepted, and assented to by the landlord, is sufficient not to destroy the tenant's then subsisting term for the current year, but to prevent the commencement of a new term, which otherwise would commence at the beginning of the following year. The interest of the tenant in the premises for the current year, could only be determined by a surrender in writing, but it does not therefore, follow that a new interest for a second year may not be prevented from commencing, by a notice which both parties have agreed to consider reasonable. The nature of a tenancy from year to year, is thus explained by Lord Mansfield, in Right v. Darby, 1 T. R. 159. "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 *930] 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." In order to determine a tenancy from year to year, the law requires only that a reasonable notice should be given, Per Wilmot, J., Timmins v. Rawlinson, 3 Burr. 1609. Generally speaking, half a year's notice is deemed reasonable, but it is competent to parties to agree to determine the tenancy upon a shorter notice, and here they have so done. Shirley v. Newman, 1 Esp. 266, is expressly in point. There three months notice only was given, and the lessor neither expressed assent nor dissent, but he took the rent up to the time when the defendant quitted; and Lord Kenyon, held, that this was a waiver of a regular notice to quit, and an acquiescence on the part of the lessor. He said, that "in the case of a tenancy from year to year, no notice short of six months, and determinable with the year, was sufficient, but that by agreement the parties might dispense with the notice, and the acquiescence of the parties was presumptive evidence of such agreement." Secondly, in this case there was a surrender by operation of law. In the cases referred to on the other side, the notices given were to quit in the middle of the current year. But the tenant, having an existing interest at that time, could not surrender it except by notice in writing. This observation applies to Thomson v. Wilson,

2 Stark. 379, and Mollett v. Brayne, 2 Campb. 591. It is to be observed, however, that in Whitehead v. Clifford, 5 Taunt. 518, Gibbs, C. J., said, that it might be proper to consider the latter case when the like circum[*931 stances should arise. Suppose that the landlord and tenant had agreed at Christmas, that the landlord should demise to the tenant, for a quarter of a year, and that the tenant had accepted that demise, that would have operated as a surrender of the former term. Now here the notice given by the tenant, and accepted by the landlord, in point of legal effect, operated as a new demise from the landlord to the tenant, for a quarter of a year from Christmas to Lady-day, and, consequently, as a surrender of the former term. Thomas v. Cook, is expressly in point.

[*932

But assuming that the tenancy was not determined, still the tenant having given the landlord a notice to quit, and not having quitted in pursuance of it, was liable under the stat. 11 G. 2, c. 19, s. 18, to pay double rent; for here the tenant had the power to determine the tenancy, he gave the notice, and refused to deliver up the possession. It is a case, therefore, within the very words of the enacting part of the section, and this statute must be construed by itself, and not with reference to the enactments in the statute 4 G. 2, c. 28. There is a material distinction between the two statutes. The statute 4 G. 2, c. 28, requires that there should be a demand of possession, and a notice in writing by the landlord. The statute 11 G. 2, c. 19, s. 18, requires no such thing; and it recognises the party by the name of tenant, which the first statute does not. The latter statute also gives the landlord a right to distrain for double rent, which is a remedy applicable only to the relation of landlord and tenant. It therefore contemplates a continuance of the tenancy after the time when the notice to quit has expired. At all events, the defendant is entitled to the single rent; for it appears that the plaintiff continued to hold as tenant after an insuflicient notice to quit had been given; and the defendant may recover a part of the entire sum which he claims. BAYLEY, J. I am of opinion, that the notice to quit in this case was not sufficient to determine the tenancy from year to year, so as to enable the landlord to maintain an ejectment or to distrain for double rent under the statute of the 11 G. 2, c. 19, s. 18., and I am also of opinion that he is not, under this avowry, entitled to claim the single rent. The original tenancy is averred in the avowry to be not a tenancy for a year only, but from the 26th of March, for one year fully to be complete and ended, and so on from year year for so long time as the plaintiff and defendant shall respectively please. So that as soon as the last half year of each year had commenced, the tenant had an interest in the premises for one year and a half. The term, therefore, was to have continuance until some act were done to determine the tenancy. Now, the law requires that there must be half a year's notice to quit in order to determine such a tenancy. It has been contended, that the allegation in the plea that the notice was given less than six months before the 25th of March, 1824, may be taken to mean that it was given less than six calendar months, and therefore that it may have been given more than a half a year. But in legal proceedings, the word months mean lunar months, unless the contrary appear to be the meaning from the subject matter to which that term is applied. Six lunar months must necessarily be less than a half a year, and, therefore, there has not been the notice required by law to determine the tenancy. At the time when this notice was given the tenant had an interest for a year or more in the *land; and that could not be put an end to [*933 by a parol notice to quit at the expiration of three months. The statute of frauds, 29 Car. 2, c. 3, s. 3., says, "that no leases or estates, or interests either of freehold or terms of years, or any uncertain interest in any lands, tenements, or hereditaments shall be surrendered, unless it be by deed or note in writing, or by act and operation of law." It is said that although a paro! notice to quit at the end of three months may not of itself be sufficient

to

to determine a tenancy from year to year, yet that such notice having been given by the tenant, and accepted by the landlord, may operate as a surrender of the residue of the term by operation of law. And Thomas v. Cook, 2 B. & A. 119, has been relied upon as an authority in point. There Thomas had let a house to Cook as tenant from year to year; Cook underlet to one Perks, an under-tenant, commencing at Christmas, 1816, and at Lady-day, 1817, distrained upon the under-tenant for rent. Rent then being due from Cook to Thomas, he gave notice to the under-tenant not to pay the rent to Cook; and upon the latter's refusing to take the under-tenant's bill for the amount due, Thomas agreed to take it himself in payment of the rent due from Cook to him, saying that he would not have any thing further to do with Cook; and afterwards, in October, 1817, Thomas himself distrained the goods of Perks for rent in arrear. Now in that case there was not only a declaration by the original landlord that he would no longer consider Cook as his tenant, but there was an accptance by him of another person as his tenant, and that acceptance was assented to by Cook. The original tenant was not *934] only willing to yield up his interest in the premises, but the landlord was willing to accept it; and he did accept, for he treated Perks as his tenant, thereby showing that he considered the old term as at an end. The possession of the premises had been previously transferred to the undertenant. That case, therefore, only decided that where there had been a change of possession, and an agreement between the landlord and tenant that the former should accept the person in possession as his tenant from a given period, the law in order to effectuate the intention of the parties, would work a surrender of the original tenant's interest in the same way as it does when a lessee for a term of years, during the term, accepts from the lessor a new lease. In that case, as the second lease cannot be good unless there was a previous surrender of the first, and as the lessee by accepting the second lease admits the ability of the lessor to demise, the law, in order to effectuate the intention of the parties, that the second lease shall take effect, works a surrender of the first. In this case the tenant remained in possession of the premises, and no act was done by the landlord to show that he considered the old term to be at an end. It is said that the landlord adopted the notice to quit; but assuming that the assent of the landlord to such a notice would in any case be sufficient to make it binding upon him, it ought to be shown that notice of that assent was given to the tenant. For until that assent was notified to the tenant, the notice to quit was no more than a proposal made by the latter to quit at a certain time; by law he could not compel the landlord to accept. I am of opinion, however, that even if it had appeared upon the face of the pleadings that the landlord had assented by parol to accept the possession of the premises at the time mentioned in this notice to *935] quit, it would not have been such an acceptance of that notice to quit by the landlord as would have operated as a surrender of the tenant's interest. The notice given by the tenant being one which the landlord might treat as a nullity, it would continue inoperative until the landlord assented to it. When that assent was given, the effect of it would be to make the notice to quit operate as an agreement between the parties that the tenants should yield up his interest at the time mentioned in the notice. Assuming that the assent by the landlord to such a notice may make it operate as a surrender of the tenant's interest, (upon which I give no opinion,) it must operate as an actual surrender, by reason of the agreement of the parties, and not as a surrender by operation of law. But the statute of frauds requires that such a surrender should be by note in writing. I think, therefore, that if the landlord was will. ing, and intended to accept this notice to quit, he ought, in order to have made it binding on himself and on the tenant, to have expressed that assent in writing. Not having bound himself by an assent in writing to treat it as such, VOL. X.-109

4 D

I think the tenant was not bound to quit at the time specified in this notice, so as to entitle the landlord to maintain an ejectment.

Then the question is, whether, although the notice be not binding so as to entitle the landlord to bring ejectment, it is so far binding on the tenant as to make him liable to pay the double rent under the statute 11 G. 2, c. 19, s. 18. I am of opinion that that statute was intended to give the landlord a remedy for double rent in those cases only where the tenant has given a notice binding upon him to quit at the expiration of the time specified in the notice, and upon which the landlord might at that time have acted, and brought [*936 an ejectment. I think that the legislature did not intend to punish the tenant for his caprice, but to reimburse the landlord for any injury he might sustain by losing his bargain with a new tenant. The 18th section of the statute recites, "That whereas great inconveniences have happened, and may happen to landlords whose tenants have power to determine their leases, by giving notice to quit the premises by them holden, and yet refusing to deliver up the possession, when the landlord hath agreed with another tenant for the same. Now what inconvenience can result to a landlord from receiving a notice to quit in which he is not bound to acquiesce. The law does not warrant him to expect that the tenant will quit at the expiration of the time mentioned in such notice. Where tenants have power to determine their tenancy by giving a notice to quit, they are bound, in order to determine the tenancy, to give such a notice as the law requires, and if a landlord, without such a notice agrees to let his lands to another tenant, he does it at his own peril. It is true that the enacting words are carried beyond the recital, but I think that effect must be given to all the words of the clause, and that the enacting words must be construed with reference to the mischief intended to be remedied. The enacting words are, "That in case any tenant shall give notice of his intention to quit the premises by him holden, at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained, that then the said tenant, his executors, &c., shall from thence-forward pay to the landlord double the rent or sum which he should otherwise have paid." The fair construction of that clause appears to be, that it shall only apply in case the tenant shall give the notice con[*937 templated in the preamble viz., such a notice as the tenant has power to give in order to determine the tenancy, and so as to make it binding on the landlord to accept possession of the premises. If that were not so, the consequence would be, that if a tenant having twenty-one years by lease, gave notice that he would quit at the end of the first year of the term, he would be liable to pay double rent from that period, although the landlord could not, in contemplation of law, be injured by receiving a notice which he was not bound to act upon. It is supposed that the case of Timmins v. Rawlinson, 3 Burr. 1603, has established that a notice to quit, given less than half a year before the expiration of the time mentioned in such notice, is sufficient to entitle a landlord to maintain an action for double rent, but such a conclusion is not fairly to be deduced from that case. There the lease was not alleged to be from year to year, but for one year only, and if that be so, then the tenant was bound to quit at the end of that year, without any notice whatever. The only case which raises any degree of doubt upon the question is that of Shirley v. Newman, 1 Esp. 266. In that case Lord Kenyon seems to have thought that an agreement by the landlord to accept less than half a year's notice was sufficient to put an end to the tenancy; but the question upon the statute of frauds was not presented to his attention. There is also this essential difference between that case and this, that there the tenant had actually quitted possession of the premises. Upon the whole, therefore, I am of opinion that the interest of the tenant not having been determined by a valid notice to quit, and there being no surrender in writing, or by

[*938