year and a half, to commence after the expiration of a lease which wants a year of expiring, is good; for it does not exceed three years from the making (s).

And, although the statute enacts that all leases by parol, for more than three years, shall have the effect of estates at will only, and they cannot create a term; yet such a lease enures as a tenancy from year to year (t). So a parol lease for seven years may be void as to the duration of the term, yet the contract may regulate the terms of the holding from year to year, in other respects; and therefore, if the tenant, under such a lease, entered at Candlemas, the landlord can only eject him at that period of the year (u).

Although the second section of the act renders valid a parol lease for less than three years from the making, yet, until entry by the lessee, there is a mere interesse termini, and if he refuse to take possession, no action lies to recover damages for not occupying or becoming tenant; nor can an action for use and occupation be maintained. For the fourth section applies to such a parol lease not rendered effectual by entry: it providing, that no action shall be brought whereby to charge the defendant upon any contract or sale of lands, or any interest in or concerning them, unless the agreement be in writing (x). "It may be said, that the second section of the statute has made a lease for less than three years from the making valid, and yet, that no action shall be maintainable upon it until it is made effectual as a lease by the entry of the lessee; but, first, the legislature might intend to make a distinction between those cases in which the complaining party was contented to confine himself to its operation as a lease, and sought nothing more than as a lease it would give him, and those in which he went further, and founded upon it a claim for damages, which might far exceed what he could claim

($) Bul. N. P. 177; Ryley v. Hicks, 1 Stra. 651; observed upon in Edge v. Strafford, 1 C. & J. 396.

(1) Clayton v. Blakey, 8 T. R. 3. Estates at will, though they may be created at the present day, are almost unknown in practice. A general letting, or holding, is impliedly a tenancy from year to year.

(u) Doe d. Rigg v. Bell, 5 T. R.

471. It may regulate the amount of rent, &c. De Medina v. Polson, 1 Holt N. P. R. 47.

(x) Inman v. Stamp, 1 Stark. R. 12. Edge v. Strafford, 1 C. & J. 391. These were special actions on parol agreements to take lodgings for less than three years, with counts for use and occupation.

under it in the character of a lease, or, secondly, this distinction might not have been contemplated, but may be the result of the true construction of the Statute of Frauds.” "The effect then of the Statute of Frauds, so far as it applies to parol leases not exceeding three years from the making, is this, that the leases are valid, and that whatever remedy can be had upon them, in their character of leases, may be resorted to; but they do not confer the right to sue the lessee for damages for not taking possession (y).”

3. Of a Tenancy from Year to Year.-Until the reign of Henry the 8th, a general letting of land, that is a demise without limit as to the period of holding, was held to create a tenancy, strictly at the will of the parties, and determinable at the pleasure of either. The injustice of this doctrine, and the injury it was calculated to occasion to agriculture, were in that reign perceived; and it was decided, that such a general letting or occupation should be considered a letting or holding from year to year, determinable by either party, only by a half year's notice to quit. This doctrine obtains at the present day, in the case of a house as well as land; although it is still competent to the parties to create by express agreement a tenancy strictly at will (2). But the rule that a general occupation is, in the absence of an express agreement, to be considered as a general taking from year to year, appears to be inapplicable in the cases of lodgings.

A. let apartments in his house to B., at a rent payable half yearly. B. took possession at Michaelmas, 1822, and at Ladyday, 1823, paid half a year's rent. In June of that year, B. left the apartments without giving any notice to quit, but at Michaelmas, 1822, he paid half a year's rent to that time. He refused to pay rent at Lady-day, 1824; and the court held, that, from these facts, a taking from year to year could not be implied (a). A demise not for one year only, but from year to year (b); or

(y) Per Bayley, J., in delivering the judgment of the Court, in Edge v. Strafford.

(2) 13 H. 8, 15 b; Parker v. Constable, 3 Wils. 25; Doe d. Warner v. Brown, 8 East, 165; Timmins v. Rawlinson, 3 Burr. 1603; Richardson v. Lengridge, 4 Taunt. 128. Rent is payable yearly, unless otherwise reserved; Com. Dig. Rent (B) 8. Gray v. Chamberlain, 4 C. & P. 260.

(a) Wilson v. Abbott, 3 B. & C. 88;

4 D. & R. 693, S. C. See post 278, as to notices to quit lodgings. It seems, also, that if there be a general letting of land for the purpose of crops, as liquorice, madder, &c., which do not arrive at maturity until the end of two years, the demise may be construed, or implied, to be a demise for two years; see Roe v. Lees, 2 Bla. R. 1171; Adams Ej. 3rd. ed. 138.

(b) Denn d. Jacklin v. Cartwright, 4 East, 31.

S

"for a year, and afterwards from year to year (c)," constitutes a tenancy for two years certain. Where there is a general letting "for three, six, or nine years," it is only in the tenant's option to determine the tenancy by notice, at either of those periods, unless otherwise expressed (d).

A tenancy from year to year is impliedly created, not only by an express general letting or occupation, but may tacitly arise in a variety of other instances.

If a remainderman receive for two years the same rent as was reserved by a lease granted by the tenant for life, deceased; and that at the times when such rent was, by the lease, made payable; the court will presume an agreement between the remainder-man and the lessee, that the latter should continue to hold, as a yearly tenant, on the terms of the original lease (e). And where a rector permitted a tenant of the former incumbent to continue in the quiet possession of the premises for eight months after his institution, it was decided that a presumption arose, that a new tenancy had been agreed upon; and that a notice to quit was therefore necessary (ƒ).

We have just seen, that although a parol contract for letting for more than three years, be void, under the Statute of Frauds, even if the tenant enter; yet such letting and occupation will amount to a tenancy from year to year (g).

So if a lessee hold over after the expiration of his term, and the lessor receive rent, or otherwise recognise the party as his tenant, there is tacitly created a tenancy from year to year; and in such case, it seems that the tenancy is impliedly upon the terms of the old lease, so far as they are applicable to a yearly holding; there being no express agreement to the contrary (h). And if at the end of a lease, containing a covenant to repair, the tenant verbally agrees to remain tenant at a higher rent, nothing more being expressed between the parties respecting the terms of the new tenancy; he is presumed to hold under the covenants of the former lease, so far as they are applicable to his new situa

(c) Birch v. Wright, 1 T. R. 378; Johnston v. Huddleston, 4 B. & C. 922. See, further, post.

(d) Denn v. Spurrier, 3 B. & P.

399.

(e) Roe d. Jordan v. Ward, 1 Hen. Bla. 97; Doe d. Martin v. Watts, 1 T. R. 83; Doe d. Tucker v. Morse, 1 B. & Ad. 365. In the latter case, the remainder man sent for and received culm, which was reserved by way of

yearly duty or rent in the lease.

(f) Doe d. Cates v. Somerville, 9 D. & R. 100; 6 B. & C. 126, S. C. (g) Ante, 256.

(h) Doe d. Hollingsworth v. Stennett, 2 Esp. R. 716; Boraston v. Green, 16 East, 71; Doe d. Rigge v. Bell, 5 T. R. 472, per Kenyon, C. J.; see Denn d. Brune v. Rawlins, 10 East, 261; Doe d. Foley v. Wilson, 11 East, 56; Pearse v. Sharr, 2 M. & R. 418.

tion; and is liable in assumpsit for not repairing, if the premises be not rebuilt on their being destroyed by fire (i). So where the defendant agreed by parol to rent a house as yearly tenant for the residue of a term, which was three years and three quarters, and having held it for three years and one quarter, he quitted; it was determined that the remaining longer than the three years was evidence of a contract to continue tenant for the residue of the term (k)

And it seems that if a tenant hold over, and the landlord give him a notice to quit, "or pay a specified advanced rent, and that his continuing to occupy will be considered as an agreement to pay such rent;" and he continue in possession after the expiration of the notice, without expressing any dissent; he impliedly becomes tenant at, and is liable to pay, the advanced rent (7).

If a party take and retain possession under an agreement for a future lease, and in expectation thereof (m); or, under an engagement to take a lease, procure attornments from some of the tenants, and receive rent from others (n); he may be sued for rent upon the common count for use and occupation, although he he has not paid rent, or been in any manner expressly recognised as a tenant. But no distress can in general be supported in these cases of implied tenancies, for the rent (o). If, however, the rent agreed to be reserved in the future lease has been paid, or even, it seems, there has been a promise to pay it, a yearly tenancy, subject to all the terms of the contemplated lease, is expressly created (p); and then a distress might be made for the

(i) Digby v. Atkinson, 4 Camp. 275. (k) Sauvage v. Dupuis, 3 Taunt.

410.

(1) Roberts v. Hayward, 3 C. & P. 432. The Court of C. P. sanctioned the decision at Nisi Prius.

(m) Doe d. Oldershaw v. Breach, 6 Esp. 106; Doe d. Bloomfield v. Smith, 6 East, 530; Hamerton v. Stead, 3 B. & C. 478; 5 D. & R. 206, S. C.; Cox v. Bent, 2 M. & P. 381; 5 Bing. 185, S. C.; Banister v. Usborne, Peake's Addl. C. 76. In the latter case, there was a covenant to grant a lease, when certain buildings were finished. The putting up a board for the purpose of letting the premises, is a sufficient assertion of the right of possession to ender the intended lessee liable for

use and occupation. See Sullivan v. Jones, 3 C. & P. 579.

(n) Neal v. Swind, 2 C. & J. 377. (0) Hegan v. Johnson, 2 Taunt. 148; Regnart v. Porter, 7 Bing. 451; Hamerton v. Stead, 3 B. & C. 478; 5 D. & R. 206, S. C. In order to support a distress, there must be a tenancy at a specific rent. Id., Dunk v. Hunter, 5 B. & Ald. 322.

(p) Mann v. Lovejoy, 1 R. & M. 355; Regnart v. Porter, 7 Bing. 453, per Tindal, C. J.; Doe d. Westmorland v. Smith, 1 M. & R. 137; Coupland v. Maynard, 12 East, 134; Doe d. Lloyd v. Powell,

& R. 35, S. C.;
P. 281; 5 Bing.

B. & C. 312; 8 D. Cox v. Bent, 2 M. & 185, S. C.

rent (q). And it seems, that at the expiration of the term contracted for, the tenancy from year to year, thus created, ceases without any notice to quit (r).

A new tenancy is not impliedly created merely by an agreement, for an increase of rent during a current holding (s).

If a party be let into possession, under a contract for the sale of premises, which, on account of a defect in the title, is not completed, the vendor cannot afterwards maintain an action for use and occupation, to recover rent upon an implied contract, for the period during which the purchaser had possession; at least he cannot if the purchaser had paid the purchase money when he entered, and the vendor had kept it during the purchaser's possession (†).

If there be a clause in a contract for the assignment or sale of a term, that " until re-assignment, the purchaser shall pay at the rate of 1007, per annum," the annual payment is to be regarded as a rent (u).

The payment of rent, as such, is primâ facie evidence of a contract of renting (x). Where A., who held premises under a lease, which expired at Midsummer, refused to give up possession at that time, and insisted upon a notice to quit; and afterwards continued in possession until Christmas, and paid rent at Michaelmas and Christmas; the court held that this was conclusive evidence of a tenancy. and that the landlord was entitled to recover a quarter's rent, due at Lady-day (y). And an occupier of a house, by submitting to a distress for rent, stated in the notice of distress to be due from him to the party distraining, tacitly acknowledges a tenancy under such party (≈).

But the payment of rent is not, per se, evidence of any particular holding, for or from any particular period. Thus, where in trespass the issue was whether the plaintiff was tenant of the defendant, under a demise "for one year, from the 23rd April, 1821, and thence afterwards from year to year;" it was held

(q) Doe v. Stratton, 3 C. & P. 164, S. C., in 1 M. & P. 183, and 4 Bing. 262:

(r) Doe d. Bedford v. Kendrick, Warwick Summer Assizes, 1810, Adams Ej. 3rd ed. 144. See ante, 258, 259.

(s) Kirtland v. Pounsett, 2 Taunt. 145, see per Littledale, J. Hamerton v. Stead, 3 B. & C. 483; Sugd. V. & P. 8th ed.

(1) Saunders v. Musgrave, 6 B. &

C 521.

(u) Right v. Durby, 1 T. R. 161; Right v. Bawden, 3 East, 260; Denn v. Rawlins, 10 id., 261.

(x) Wood v. Tate, 2 New. R. 247; Doe d. Jackson v. Ramsbotham, 3 M. & Selw. 516; Doed.Jackson v. Wilkinson, 3 B. & C. 413; 5 D. & R. 273, S. C.; Doe d. Bailiff and Burgesses of Clun v. Clarke, Peake's Addl. C. 239. (y) Bishop v. Howard, 2 B. & C. 100; 3 D. & R. 293, S. C.

(2) Panton v. Jones, 3 Camp. 372.