7 Thunder dem. Weaver v. Belcher, 3 East, 449.
8 Keech v. Hall, 1 Doug. 22.
9 Birch v. Wright, 1 T. R. 380.
10 Johnstone v. Hudlestone, 4 B. & C. 932; Gulliver v. Burr, 1 W. Bl. 596; Right v. Darby, 1 T. R. 159; Hewitt v. Adams, 7 Bro. P. C. 64; Doe v. Johnston, M'Clel. & Y. 141; Richardson v. Langridge, 4 Taunt. 128; if the notice be given for less than a half-year previous to the end of the year, a new term will have been entered upon before the expiration of the six months, during which the tenant is entitled to notice; and if it be given more than a half-year previous, it will be bad, because neither party can determine the tenancy before the end of the year.1 The tenant for years cannot, however, determine the lease by giving notice and quitting the premises, upon a breach of covenant by the landlord to repair, even although the premises be destroyed by fire;2 unless, indeed, the covenant be in the nature of a condition precedent.3
§ 1257. Where the tenancy is for less than a year, as in the case of weekly or monthly tenancies of lodgings, or furnished apartments, a notice to quit is unnecessary, unless there be an express agreement providing for such notice, or unless the statute or usage render it necessary.4 But where notice is requisite, and the time of the notice is not fixed, it must be equal to the term. Thus, if lodgings be taken by the week, a week's notice is necessary; if they be taken by the month, a month's notice is necessary.1 If, however, the lodgings be kept beyond the term for which they are let, a new term commences, for which the tenant is bound to pay full rent, whether he occupy them during the whole term or not.2 A tenant of lodgings is not justified in quitting without notice, merely from a fear, however reasonable, that his goods may be seized for his landlord's rent, if notice be required in order to determine the tenancy.3 Nor can he quit, upon the destruction of the premises by fire, unless there be an express provision in the lease, enabling him so to do; and if he does, he is liable for rent for the whole term.4
Bessell v. Landsberg, 7 Q. B. 638; Doe v. Matthews, 11 C. B. 675; 20 Eng. Law & Eq. 295.
1 The statutes in the different States in this country regulate the notice which is necessary to determine a tenancy at will or from year to year. The English rule, stated in the text, prevails in New York, Vermont, Kentucky, and Tennessee. See Jackson v. Bryan, 1 Johns. 322; Hanchet v. Whitney, 1 Vt. 311; Hoggins v. Becraft, 1 Dana, 30; Trousdale v. Darnell, 6 Yerg. 431; 4 Kent, Comm. 112. In Connecticut thirty days. Larkin v. Avery, 23 Conn. 304. In Pennsylvania, the time of notice is three months. Logan v. Herron, 8 Serg. & R. 459. So, also, in Indiana. Ind. Rev. L. 518. And in New Hampshire. Leavitt v. Leavitt, 47 N. H. 329. In Maine, notice must be given in reasonable time. Davis v. Thompson, 13 Me. 209; Currier v. Earl, Id. 216. By Rev. Sts. 1841, three months' notice was required. Gordon v. Gil-man, 48 Me. 473. In Massachusetts three months are allowed, and if the tenant refuse to pay rent, fourteen days' notice in writing is sufficient. Mass. Rev. Sts. ch. 60, § 26. See, also, Ellis v. Paige, 1 Pick. 43; Coffin v. Lunt, 2 Pick. 71; Baker v Adams, 5 Cush. 99; Sauvage v. Dupuis, 3 Taunt. 410.
2 Izon v. Gorton, 7 Scott, 537; Surplice v. Farnsworth, 7 M. & G. 577; Fowler v. Bott, 6 Mass. 63.
3 Salisbury v. Marshal, 4 C. & P. 65. 4 Huffell v. Armitstead, 7 C. & P. 56.
§ 1258. A notice may be either verbal or in writing, unless by the terms of the demise, or by statute, a written notice be required,5 or unless a power requires a party to determine a tenancy by writing.6 Where several persons are jointly interested, a notice to quit, if given by them in writing, must be signed by all.7 Where a notice is signed by some of several, who ought to join, a subsequent recognition of it by the rest will not make it good by relation.8 But it is otherwise where the notice is given by an agent under the authority of some only, and his authority is subsequently acknowledged by the others.9 It is not correct, however, as has been sometimes supposed from the case of Doe v. Goldwin,1 that a notice to quit given by an agent is void if it does not state that it is given by authority, or in the name of the principal.2 If one of two joint-tenants give notice to quit, it will be good in respect to his share; and he may, thereupon, recover it in ejectment.8 It is not, however, necessary that the notice, if in writing, should be personally served upon the tenant; it is sufficient if it be given to his wife4 or servant at his house; and in such case it will be good, although the tenant do not receive it within half a year of the expiration of the lease.5 Where there are two or more tenants who occupy under a joint demise, service of a written notice upon one is sufficient.6 So, if one tenant live on the premises, and the other live elsewhere, service upon one upon the premises is primÔ facie evidence that the notice reached the other.7
1 Doe d. Parry v. Hazeli, 1 Esp. 94; Doe v. Scott, 4 M. & P. 20; 6 Bing. 362; Coffin v. Lunt, 2 Pick. 72; Wilson v. Abbott, 3 B. & C. 89; Prindle v. Anderson, 19 Wend. 391. And see Prescott v. Elm, 7 Cush. 346; Rev. Sts. c. 60, § 26.
2 Huffell v. Armitstead, 7 C. & P. 56.
3 Rickett v. Tullick, 6 C. & P. 66.
4 Izon v. Gorton, 7 Scott, 537; ante, § 1273; Stockwell v. Hunter, 11 Met. 448; Fowler v. Bott, 6 Mass. 63.
5 Doe v. Crick, 5 Esp. 196; Doe v. Johnston, M'Clel. & Y. 141; Roe v. Pierce, 2 Camp. 96; Legg v. Benion, Willes, 43.
6 Legg d. Scot v. Benion, Willes, 43; Right d. Fisher v. Cuthell, 5 East, 491.
7 Doe v. Sybourn, 2 Esp. 677; Right v. Cuthell, 5 East, 491; 5 Esp. 149.
8 See Pickard v. Perley, 45 N. H. 188.
9 Right v. Cuthell, 5 Esp. 149; Goodtitle v. Woodward, 3 B. & A. 689. A general agent of a landlord may terminate a tenancy by a notice to quit given in his own name. It is not necessary to the validity of a notice given by a general agent that his agency should appear on the face of the document. Jones v. Phipps, Law R. 3 Q. B. 567 (1868), citing and qualifying Doe v. Goldwin, 2 Q. B. 143.
§ 1259. The notice must be given to the immediate tenant; and a lessor cannot give notice to a sub-lessee; nor can a sublessee give notice to the original lessor, because there is no privity of contract between them.8 But it is not necessary that a lessor should give notice to under-tenants; and if he give notice to his own immediate tenant, he may recover the premises in ejectment, against all the under-tenants.9 Where a corporation is tenant, notice to quit must be given to the corporation, and served upon its officers.10
1 2 Q. B. 143. The authority of an attorney, by whom a notice to a tenant at will that his landlord has leased the premises to another is signed, need not be known to the tenant. Mizner v. Munroe, 10 Gray, 290 (1858).
2 Jones v. Phipps, Law R. 3 Q. B. 567 (1868). And see Wilkinson v. Colley, 5 Burr. 2694; Doe v. Read, 12 East, 57.
3 Doe v. Chaplin, 3 Taunt. 120.
4 Hazeltine v. Colburn, 11 Foster, 466 (1855); Blish v. Harlow, 15 Gray, 316.
5 Jones v. Marsh, 4 T. R. 464; Doe v. Lucas, 5 Esp. 153; Doe v. Dunbar, Mood. & M. 10.
6 Doe v. Crick, 5 Esp. 196.
7 Doe v. Watkins, 7 East, 551.
8 Pleasant v. Benson, 14 East, 234. See Campbell v. Stetson, 2 Met 504.
9 Roe v. Wiggs, 2 Bos. & Pul. N. R. 330. 10 Doe v. Woodman, 8 East, 228.
§ 1260. The notice must be explicit and positive.1 It must not give the tenant an option of leaving the premises or entering into a new contract.2 But it need not be worded with the accuracy of a plea.3 A notice to quit a part of the premises only is bad. The court will, however, presume that the intention of the party is not to determine the tenancy in part, and will, if possible, give effect to the notice to determine the tenancy altogether.4
§ 1261. After the landlord has given notice, and the time has expired, he may waive it by doing some act inconsistent with the supposition that the tenancy is determined. Thus, if he receive rent after the expiration of the notice, it will operate as a waiver.5 But it is a question for the jury whether the money received be paid as rent; 6 and it must be proved that the rent so paid was actually received by the lessor personally, and not by his agent, without his knowledge.7
1 Leavitt v. Leavitt, 47 N. H. 329. See Granger v. Brown, 11 Cush. 191; Sanford v. Harvey, Id. 93; Dakin v. Allen, 8 Cush. 33; Elliott v. Stone, 12 Cush. 174; Currier v. Barker, 2 Gray, 224.
2 Doe v. Jackson, 1 Doug. 175; Doe v. Price, 9 Bing. 356; 2 M. & S. 464. See Steward v. Harding, 2 Gray, 335.
3 Doe v. Smith, 5 Ad. & El. 350. See Congdon v. Brown, 7 R. I. 19. The notice to he served by the landlord upon the tenant at will to determine his tenancy, need not specify the time within which the premises must be surrendered. If a time is specified in the notice served upon the tenant which elapses within less than one month from the time of service of the notice, it will not vitiate the notice. It is sufficient if the tenant has thirty days' notice in writing of the intention of the landlord to terminate the tenancy. Burns v. Bryant, 31 N. Y. 453 (1865).
4 Doe v. Church, 3 Camp. 71; Doe v. Archer, 14 East, 245.
5 Collins v. Canty, 6 Cush. 415; Hunter v. Osterhoudt, 11 Barb. 33.
6 Doe v. Batten, 1 Cowp. 243; Goodright v. Cordwent, 6 T. R. 219. If a lessee tenders money in payment of rent due, and requires that it shall be accepted as rent, and the lessor refuses so to accept it, but says that he will accept it as compensation for past occupation, and (each party still continuing to assert what is his own intention on the matter) takes up the money, it is questionable whether this amounts to a waiver of a previous right of re-entry on a forfeiture for breach of covenant. Croft v. Lumley, 6 H. L. C. 672 (1857).
7 Doe v. Calvert, 2 Camp. 387.
Demand of rent does not necessarily amount to a waiver of notice. It is a question for the jury.1
§ 1262. So, also, a notice to quit is waived by a subsequent notice, upon the ground that the latter notice is an acknowledgment of the existence of the tenancy at the time when it is given.2 But as the record notice is only a waiver of a former notice by implication, the court will not consider it as a waiver, wherever it is susceptible of a different interpretation, - as where the party expresses at the time his intention not to consider it as a waiver,3 or where the second notice is given after an ejectment is brought,4 or where the notice subjects the tenant to a penalty if he stay.5
§ 1263. The notice to quit, if valid, destroys the legal right of possession by the tenant and his under-tenants, and vests it in the landlord. But in case the tenant refuse to give up the possession, the landlord must resort to the action of ejectment, and cannot take the law into his own hands, and forcibly take possession. And even if the tenant leave, and lock up the premises, the landlord may not make a forcible entry.6