On the demise of a farm for one year certain, and then from year to year, so long as the parties should think proper, with liberty to determine the holding by notice to quit; and by the agreement, which was in writing, the lessee undertook to(g) keep the premises in repair. Upon the death of the lessee, his executors entered and occupied the premises, paying rent for several years; and in an action against them for not keeping the premises in repair, and for giving them up in bad condition, it was decided that the executors were personally liable, for by continuing the occupation, they became tenants from year to year to the landlord, upon the terms of the original holding; and it was laid down, that the relation of landlord and tenant was to be implied from the situation of the parties, where the reversioner abstains from giving notice to quit to the tenant in possession after a continuance of occupation.

Where, however, a tenant holds by lease, not under seal, for a term of years, with special stipulations, and the reversion is assigned (h) during the continuance of the lease, the benefit of the special contract is not transferred to the assignee by force of the Statute(i) of Reversions, which is confined to leases under seal, and no recognition of the stipulations of the subsisting demise can supply evidence of a new contract, so as to enable the new landlord to maintain an action of assumpsit for their breach; and it seems that such an action can only be supported in the name of the original lessor or his representatives.

By lease for twenty-one years, the lessees, as churchwardens of the parish, covenanted to yield up the premises at the end of the term, in as good condition as they were at its commencement: the lease expired on the 25th of December, 1828, and the premises being then out of repair, the reversion(j) subsequently became vested in a purchaser. The successive churchwardens continued to hold at the same rent, without any material alteration in the agreement until February, 1833, when possession was given up to the purchaser in pursuance of notice of quitting by the churchwardens. In an action by the purchaser, on an implied contract for not keeping the premises in repair, or not restoring them in their original condition, it was decided that an action for breach of an implied contract, arising out of a new tenancy from year to year, would not lie against the churchwardens, who were defendants in

(g) Buckworth v. Simpson, 5 Tyrw. 344; 1 Cro. M. & Rosc. 834, S. C. (h) Brydges v. Lewis, 2 Gale & Dav.

763.

(i) 10 Car. I. Sess. 2, c. 4, Irish, 32

Hen. VIII. c. 34, English, and see post, "Title," Use, and Occupation, No. 24.

(j) Johnson v. The Churchwardens of St. Peter, Hereford, 4 Ad. & Ell. 520; 6 Nev. & M. 106, S. C.

the suit, because they entered into possession after the lease had expired, and after the covenant had been broken, and could not be understood as accepting a demise, subject to an action for previous dilapidations; and it was also ruled, that the remedy must be confined to that party with whom the covenant was broken, and as the original lessor might recover for breach of the express covenant in the lease, the defendants could not be made liable for the same damage by breach of their implied undertaking.

A renewal of the tenancy will not necessarily be inferred from the mere continuance of a party in possession, after the expiration of a lease, or of a notice to quit given by the tenant, but will depend on the circumstances(k) under which the possession is continued, as whether possession is retained under some supposed right, or as a trespasser, or for the purpose of removing the property of the occupier from the premises.

26. The relation of landlord and tenant can only be constituted by contract express or implied(), and though such contract is to be inferred from payment of rent, yet every such implication is liable to be rebutted, as the mere payment of rent, unless made in the capacity of tenant(m) will not create a yearly holding.

In an action by one Strahan, for the use and occupation of a picture gallery, it appeared that Tahourdin, having pictures belonging to Walsh Porter as security for an alleged debt(n), deposited them in rooms which he hired from Strahan, at a yearly rent for that purpose. Upon Walsh Porter's death, administration of his effects was granted to Smith, who filed his bill in Chancery, and obtained an injunction restraining Tahourdin from disposing of the paintings. Pending the suit, rent was paid from time to time for the use of the gallery out of a fund in Court, on the petition of the administrator, and the pictures being ultimately given up by order of the Court to the administrator, he discharged all rent then due, and took a receipt from Strahan for one year's rent for the care of the pictures. Strahan, the owner of the gallery, then insisted that the administrator was his yearly tenant, and was bound to give a regular notice of quitting, or to pay rent up to the end of the current year; but it was decided that the relation of landlord and tenant never existed between the administrator and the owner of the gallery, the object of the administrator

(k) Jones v. Shears, 4 Ad. & Ell. 832; 6 Nev. & M. 428.

(1) Doe dem. Jackson v. Wilkinson, 3 B. & Cress. 413; 5 Dowl. & Ry. 273, S. C.

(m) Strahan v. Smith, 4 Bing. 91; 12 Moore, 289.

(n) Strahan v. Smith, 4 Bing. 91; 12 Moore, 289.

being solely to discharge Tahourdin's lien, and not to become responsible for the rent.

In order to establish a yearly holding by implication, it must be shewn that rent was received by the landlord from the tenant, or was paid by the tenant to some other person with the landlord's assent, or there must be some evidence of assent by the landlord to the continuance of the holding. Lord Leitrim being seised in fee, demised to one O'Brien for lives, who underlet to Tiernan for a term which expired in 1823 Tiernan had underlet to several persons, who, after the expiration of his lease, for several years applied part of their rents in discharge of Lord Leitrim's head-rent, and paid the residue to Tiernan; but it was not shewn that any rent was paid by Tiernan, after his lease expired(o), to O'Brien, who was his immediate landlord. Upon an ejectment by O'Brien, it was decided that the mere circumstance of the occupying tenants paying their rents to Lord Leitrim and to Tiernan, did not constitute any tenancy between Tiernan and O'Brien, as the occupiers could not hold immediately from both of them at the same time, and that neither notice to quit, nor demand of possession by O'Brien was necessary.

:

Where a party was let into possession under an agreement to purchase, subject to the payment of interest yearly on the price, until the purchase should be completed, which was to be carried into effect in three months the sale not being then completed, the vendee continued in possession on the same terms, but failing to pay the interest(p) an ejectment was brought, in which it was decided that the holding was strictly at will, and might be put an end to without notice to quit, because the contract for payment of interest was quite independent of the occupation of the estate, and was not by way of compensation for occupation of the premises. However, where it was stipulated, that until premises were assigned, the intended purchaser should pay the vendor at the rate of £100 yearly, by half-yearly payments, from the time of taking possession until the completion of the purchase; it was ruled that the relation of landlord and tenant was created (q) between the parties at a fixed yearly rent, payable halfyearly, to commence from the time of taking possession.

27. If a person enter into possession under a contract for a lease, with a provisional engagement to pay a fixed rent on the performance

(0) Jack dem. O'Brien v. Tiernan, 1 Jebb & Symes, 117.

(p) Doe dem. Tomes v. Chamber

laine, 5 Mees. & W. 14.

(9) Saunders v. Musgrave, 6 B. & Cress. 524; 9 D. & Ry. 529, S. C.

by the(r) landlord of certain preliminary stipulations, or subject(s) to a condition to be performed by the tenant, a yearly holding will not be construed to arise until payment of rent, or performance of the conditions. A tenant having entered under an agreement containing stipu lations for a future lease at a fixed rent, and an undertaking by the landlord to complete the house in a specified manner, the premises were not finished, and no rent being paid, it was decided (t), as the agreement itself did not constitute a demise, and there was no evidence of an absolute and unqualified promise to pay a rent certain, the landlord had no right to distrain. Where a party was put into possession under promise of a lease, provided he paid the landlord a sum of money then due to him out of the premises, it was ruled(u) that a yearly tenancy did not arise, as the tenant failed in complying with the preliminary stipulation of paying the money, and that notice to quit was therefore unnecessary.

28. The letting of lodgings does not give rise to so strong a presumption in favour of a yearly tenancy as other holdings. A tenant having taken possession of apartments in a dwelling-house at Michaelmas, subject to a rent payable half-yearly, and having paid half-ayear's rent at Lady-day, quitted the apartments in June, without giving any previous notice, but afterwards submitted to discharge the rent for the current year ending at Michaelmas: an action for use and occupation was brought for half-a-year's rent claimed to be due at the following Lady-day, but Lord Tenterden(v) held, that a tenancy for more than a year ought not to be inferred from the facts which were proved. If the defendant had continued to occupy the apartments after the commencement of a second year, there might have been ground for inferring a contract for a yearly tenancy: the tenant merely considered himself a tenant for one year, and no longer, and as there was no evidence of any express contract creating a tenancy for a longer period than one year, such a contract, which is contrary to the general usage in letting lodgings, ought not to be inferred.

A taking at a yearly rent, though it is to be paid weekly, is primá facie a yearly holding; and where a house was hired at twenty guineas

(r) Regnart v. Porter, 7 Bing. 451; 5 Moo. & P. 370; Mechelen v. Wallace, 6 Nev. & M. 316; 7 Ad. & Ellis, 54, note, S. C.

(s) Doe dem. Bingham v. Cartwright, 3 B. & Ald. 326; John v. Jenkins, 1 Cro. & Mees. 227; 3 Tyrw. 170, S. C.

(t) Regnart v. Porter, 7 Bing. 451; 5 Moo. & P. 370.

(u) Doe dem. Rogers v. Pullen, 2 Bing. N. C. 749; 3 Scott, 245, S. C.

(v) Wilson v. Abbott, 3 B. & Cress. 88; 4 Dowl. & Ry. 693, S. C.

a year, the rent to be paid weekly, and either party to be at liberty to determine the tenancy by giving three months' previous notice (w), commencing from any quarter-day, it was decided that the proviso did not prevent the interest from being a yearly holding, defeasible on the service of such a notice. However, a person hiring lodgings by the month, or by the week, if he enter upon a fresh month, or a fresh week, will become subject to rent for such new period, because the holding(x) can only be put an end to, on the expiration of the month, or of the week, but a previous notice of quitting, in the absence of any usage or agreement to that effect, cannot be implied as part of the

contract.

29. A holding from year to year, whether express, or raised by construction of law, is a chattel interest, and upon the death of the tenant(y) is transmissible to his personal representatives, who are entitled to the same notice to quit as the original tenant and if the lessor die, and his estate continue, the tenancy in like manner can only be dissolved by notice to quit. If, however, a lessor's estate be only for his own life, a yearly holding created by him will determine on his decease, and notice to quit will not be requisite; but any recognition(z) of a subsisting tenancy by the person next in remainder, or by his agent(a) or steward, will renew the tenancy, and render notice necessary. So persons deriving by assignment(b), either from the lessor or from the lessee, are bound to give, and are entitled to receive the same notice as the lessor or lessee would have been entitled to.

(c) The King v. Inhabitants of Herstmonceaux, 7 B. & Cress. 551; 1 Mann. & Ry. 426, S. C.

(z) Huffell v. Armitstead, 7 Carr. & P. 56, by Parke, Baron; but see Doe dem. Parry v. Hazell, 1 Espin, N. P. C. 94; Doe dem. Peacock v. Raffan, 6 Esp. N. P. C. 4.

(y) Doe dem. Shore r. Porter, 3 T. R. 13; Mackay v. Mackreth, 4 Doug. 213; 2 Chitty's Rep. 461, S. C.

(z) Doe dem. Tucker v. Morse, I Ad. & Ellis, 365; Lessee Daniel v. Tierney, 1 Jones, 258; Lessee Smith v. Byrne, Batty, 464; Cox v. Bent, 5 Bing. 185; 2 Moore & P. 281.

(a) Doe dem. Tucker v. Morse, 1 Ad. & Ell. 365.

(b) Birch v. Wright, 1 T. R. 478; Buckworth v. Simpson, 5 Tyrw. 344; 1 Cro. M. & Rosc. 834, S. C.