CH. 178. writing to deliver up possession to the plt., but the deft. did not, but held over three months; plt. recovered a year's rent from June 24th, 1805, to June 24th, 1806, but no rent from June 24th to August 11, 1806, being the fraction of a quarter and double rent after August 11, 1806, when said demand was made. Several material points were decided in this case: 1. No notice to quit was necessary during said year, or at the end of it, to put an end to the tenancy: 2. Though the tenant held over several months, it was not implied or inferred by the court, the lessor assented to such holding over; therefore he had a right to demand possession about fifty days after the year or term ended; because, as Lord Ellenborough said, the lessor "not having in the mean time done any act to recognize the deft. as continuing to be his tenant;" and this seems to be the true principle, that is, the lessor must do some act implying at least his assent the lessee hold over, and not merely be silent, as it seems he was in this case, till August 11, 1806, that is, during the term, and for about fifty days after it ended; but in Messinger v. Armstrong, above, the court seemed to have inferred the lessor's assent from his silence, as to the lessee's holding over. In that case, Buller J. said, the moment the tenant continues possession over the year, he has a right to hold to the end of the year; and Lord Mansfield said, the law implied a tacit renovation of the contract. If so, why did not the law imply a tacit renovation of the lease, when Stokes thus held over, and Cobb was silent. The truth is, this presumption often made by the court, of a tacit ronovation of the lease or agreement, has no foundation; for if I expressly lease a piece of land to A for a year, to end April 1, both parties know it so ends; it is the lessee's duty by the very terms of his contract, then to give up the possession, and of course I have a right to expect, and he is a wrongdoer if he continue an hour after his lease ended. It is true, if I know he is holding over, my conduct may, or may not, afford evidence, I consent to renew the lease in England, New York, &c. so far as parol leases are valid; but there can be now no tacit renewal in Massachusetts, in its nature by parol, where a statute is express, that every tenancy is but one at will, where it is not sanctioned by writing signed; though otherwise in the province, as to leases not exceeding three years. See on this point American Precedents: 3. Stokes was viewed as a wrongdoer, and not as a tenant from June 24, to August 11, 1806, though it does not appear his continuing in possession was in that time objected to by Cobb: 4. It appears the lessor created double rent by demanding possession long after the term ended; but double rent only after the demand made. As to double rent in several of the United States, see Rent, Ch. 117, a. 5, s. 13. § 14. Tenant in common in Vermont may have a joint CH. 178. action of ejectment. Notice to a supposed purchaser; A Art. 33. agreed to sell land to B; one hundred dollars to be paid at the time of taking possession, and the residue at periods 4 Cranch, named. B took possession April 15, 1811, and then paid the 165, Hicks . one hundred dollars. A demised to D, who brought eject- Rogers. ment against B to recover possession. Held B was entitled to notice to quit before sued. 9 Johns. R. 330. by the lessor ther person § 15. General principles. In all land actions it is understood the plt. or demandant sues to recover possession in fact, of the thing sued for. it must then be of something of which the officer, on execution, can give possession either directly or indirectly of what then can he give possession, and so for what does ejectment or other land action lie, may often be a question, and in this respect the principle is the same in England and in the United States; then English decisions are useful here. It is a settled principle, that nothing can be sued for and recovered in these actions which cannot be touched and seen-quæ neque tangi nec videri possunt; because what cannot 10 Johns. R. be touched and seen, the officer, on execution, can give no 270.-Notice possession of to the plt., nor can he enter. Hence these actions to quit given never lie for incorporeal hereditaments, as above stated, as to his immethey are invisible, and not tangible; yet they are often recov- diate lessee, ered in these actions; and on two principles: 1. As appendent continuing to pay him rent or appurtenant to the lands recovered; because the officer pay annually, is gives possession of them to the plt. by giving him possession sufficient, of the land to which such hereditament belongs; this is the though anocase of ways, commons, streams of water, for the land cov- be in possesered by it is sued for and recovered. Hence if one own the sion; Jackwater and not the land under it, his only remedy, upon a dis- son v. Baker. turbance, is an action on the case; so as to any other incorpo- R. 335, one real hereditament he holds or has in another's lands, whereof agreeing to the other has the right of possession. See the authorities purchase is above, a. 14, s. 1, 2, &c. There is another principle. If A tice if he pay have a limited right in B's land, A's right often carries with it rent acceptsome actual tangible possession of the land itself; as where dur B owns the land, and A has a coal mine in it; thus A may re- Jam. 150.cover in ejectment or land action. It is not a bare profit ap- Noy. 121.prendre out of E's land; this mine includes a portion of the Salk. 255. land or soil itself deliverable on execution. So if A has a Cro. Car. grant of the prima tonsura, or the first crop of grass that an- 362, Ward v. nually grows on B's land, and it is withheld from him, A may 1 Wils. 14.have ejectment for the land itself; for this first crop is the 3 Wils. 30. best profit and grant of the property. So A is esteemed the 11 Co. 25.-proprietor of the land itself till the contrary be proved; for 401.--Dal. 95.—3 D. & E. 772, Rex v. Tolpuddle.-Salk. 256.-1 Burr. 366. 629 --5 Burr. 2673.--Noy. 37.-Cro. El. 854.-Cro. El. 818.--Cro. Car. 555.-Cro. Jam. 654.-Cro. Jam. 573.-4 Mod. 97-11 Co. 25. -10 Johns. entitled to no. 127.-Cro. 4 Mod.143.- Pettifer.- Hard. 303, Ch. 178. he has the frechold who has the best tonsure, and he who has Art. 33. the after pasture, bushes, &c. has "but the profits in the nature of a common"-A has the sole right of entry till the first crop is taken off. So it lies for the herbage, as the best profit, and the grantee of it has at all times a right of entry to take it. So a land action lies for pasture for one hundred sheep; that is, as much land as will pasture them; and the case of Coffin v. Coffin, Ch. 130, a. 4, s. 59, goes further; and 4 D. & E. 671; 5 D. & E. 329,-"prima tonsura is a tenement;" 3 D. & E. 775. So is a right to pasture twenty cows at £3 10s. per annum each, to be fed in certain fields a certain part of the year exclusively; 4 D. & E. 671; and see Burt v. Moore, Ch. 2, a. 5, s. 4; and in all these cases now, the plt. at his peril, is to shew the officer the thing of which he is to give him possession; 2 Stra. 1063; 1 Johns. C. 101; 1 Caine, 500; 1 Bin. 450; and in our land action, the jury may have a view of the thing. Ejectment lies for an orchard, because it is a word of known meaning, and the officer may well give possession of it on execution. So for a stable or cottage, for the same reason; so for a warehouse or chamber, or curtilage; so for a house; 3 Leon. 210; Noy. 109; 2 Stra. 795; Cro. El. 286; so of a close, if it have a known name, or is described; 11 Co. 55; Cowp. 349; Cro. Car. 435, 471; Salk. 254; 5 Bur. 2672; Cro. El. 186; 2 Stra. 834; 1 East, 441; 8 East, 357; 3 Mod. 238: lies for a part of a high way, that is, the land under it. See Goodtittle v. Acker; 2 Johns. 357; 2 Mass. R. 127; and see Ch. 228. Notes. Forms of declarations, pleas, &c. in land actions referred to declarations in ejectment; 10 Wentw. 41, three counts. Casual ejector's notice to the tenant in possession, 42. Declaration in ejectment on eight demises by tenants in common, eight counts, eight more counts and opinions; 10 Went. 43 to 48. Declaration for mesne profits; 48. Postea issues found, and executions; 48 to 50. Declaration in ejectment and trespass on several demises, and by different persons at different times-plea, retraxit, judgment, &c. 50 to 54. Declaration in trespass after judgment in ejectment by default for mesne profits in the nominal plt's. name, judgment, &c. ; 54, 55, 56. 10 Wentw. Index of references to various English authors, forms p. 1 to 10; American, see below. Formedon-English forms referred to; declaration in remainder by a minor; 10 Wentw. 167 to 175. Plea, a fine levied &c.; 175 to 177. Another declaration; 177 to 182. Four pleas; 182 to 188. Replications; 188 to 198. Demurrer and joinder; 198 to 200. Declaration in descender &c.; 200 to 202. Index of references in formedon; 203. Writ of right-English forms in, referred to; 10 Wentw. 204 to 222. Writ of assize; 213. Wentworth furnishes CH. 179. the few kinds of English writs in real actions, except Art. 1. dower &c. Process in real actions in Kentucky, act December 19, 1796, is as in England in effect, except the returns are by the laws of the state. All essoins, views, and vouchers are taken away after one imparlance, except the tenant plead non-tenure, joint-tenancy, or several tenancy, in abatement; and then (after such plea is overruled) he puts himself on the grand assize, and the mise is joined on the mere right, and tried the next court by sixteen jurors, summoned, tried, and sworn as in other actions; he has no excuse but non-summons. In ejectment the plt. may declare in his own name, and at once state his title &c., as in Massachusetts, deft. may plead not guilty or his title. The real proprietor may on motion be admitted as deft.; and act December 18, 1800. See judicial proceedings, Toulmin's Kentucky Laws, p. 189 to 270, many valuable provisions derived from Virginia, with some alterations and corrections. CHAPTER CLXXIX. GENERAL PLEAS IN BAR. ART. 1. General principles.. § 1. Having thus considered declarations and various matters as to them; pleas in abatement, and many incidental matters; and in the last chapter, the pleas proper in each action, I now come to consider general pleas in bar; that is, matters pleadable in bar of actions, generally or specially, not confined to one or two kinds of actions, but are applicable to actions generally; as acceptance of satisfaction, acquittance by accord, &c. ; or award, coverture in bar, duress, menaces, infancy, former judgment, never bailiff, receiver, executor or administrator, no effects as trustee, non damnifi catus, non est factum, not guilty, nul tiel record, payment, plene administravit, release, saved harmless, usury, act of limitations &c., special matters that excuse or justify the deft. in numerous cases, and in various kinds of actions. 10 Johns. R. 49: Plea in bar is, where the plea begins in CH. 179. abatement and concludes in bar; and if a demurrer to such Art. 2. plea concludes in bar, the judgment is final. 3 Inst. Cl. 212.-1 Saund. 236. 3 Ins. Cl. 214. 1 Cruise,274. --3 Ins. Cl. § 2. But it is not intended here to attend to every kind of general plea, found in the English bo ks and in our own; nor to every matter that will excuse or justify a deft. as to the charge made against him; but only such general bars and such special matter as a pleader may have occasion to attend to with some frequency; nor will it be necessary to dwell long on the matters in this chapter, because, as will be stated as I proceed, most of them have been already sufficiently treated of, or nearly so. Under this head of Pleadings, or General pleadings, many matters are briefly consid ered, or merely named, in order to preserve a general connected view of a system of pleadings, of which the synopsis placitorum contains the mere outlines; which outlines are intended to be enlarged upon under this head of pleadings directly, as will be seen in many instances, or by refer ence to branches of pleadings, naturally brought into view, and considered in different parts of this work. ART. 2. Acceptance of something in satisfaction. § 1. Whenever the plt. has a just demand against the deft. it is often in the plt's. power to accept something of him in satisfaction of that demand, and the deft's. consent to that purpose; and when this something is so delivered and accepted, and is a bar to the demand, the deft. may plead the matter in bar of it whenever it cannot so well be given in evidence; as where the plt. sues the deft. for rent or repairs &c., on account of his term for years in certain lands, the deft. may well plead actio non, admit the lease made to him, but also that at he surrendered all the residue of his term to the plt., and all his estate, right, and title. and interest therein, which surrender the plt. then and there. accepted; and hoc paratus. The plt. may reply, he did not surrender &c., and offer an issue if he can deny the surrender. on § 2. So, to an action for rent, the deft. pleaded, before it became due he assigned his term to A, by indenture, who entered, and was possessed &c., and that the plt. had notice thereof, and at, on -, accepted the said rent of the said A; hoc paratus. Is not of itself a waiver of notice to quit; confirms a voidable lease. § 3. So, to an action on a bond with a condition, the deft. -4 Do. 131. on oyer pleaded, he procured one J. to give his bill obligatory to the plt. for the same debt, £10, which bill the plt. , on, accepted in full payment and discharge of the £10, mentioned in the condition of the bond; hoc paratus. 217. at |