contract, for the period of five years from the first of April, 1841, at an annual rent of one hundred and twenty-five dollars, parable semiannually, on the first days of April and October in each year, and that the defendant went into possession, under the parol agreement, and the occupancy was continued until the twenty-first or twenty-second of July, 1844, when the defendant quit the possession of the store, and offered to give up the key and the possession to the plaintiff, which the plaintiff then declined to receive. The store remained vacant until the twenty-eighth of November, 1844, when the plaintiff leased it to another person, at an increased rent of ten dollars, who went into possession under his lease. The case further finds, that the rent had been semiannually paid, on the first days of April and October, until the time when the defendant quit the possession in July, 1844. The county court held, that the plaintiff should recover that portion of the half-year's rent falling due the first of October, 1844, which had not been paid; to which the defendant excepted.

Though in the court below the plaintiff claimed to recover rent to the time when he took possession by his tenant, that is, to the twenty-eighth of November, 1844, yet there is no exception on his part; and the county court in disallowing the rent to the extent claimed, probably proceeded upon the ground that the rent could not be apportioned. The correctness or incorrectness of such an opinion we are not now called upon to revise.

The only question now is, Has the defendant any ground upon which he can assign error? We think not. . It is true, the revised statutes, chapter 60, section 21, declare that all interests or estates in lands, created without any instrument in writing, shall have the force and effect of estates at will only; yet we think that this estate, when once created, may, like any other estate at will, by subsequent events, be changed into a tenancy from year to year. In the case before us the lessee entered into possession, and the possession was continued from year to year, until July, 1844, and the rents semiannually paid by the lessee and accepted by the landlord. From these facts a new agreement may well be presumed, and the estate, which was originally created by the statute as an estate only at will, expands into a holding from year to year.

This is the settled doctrine of the English courts, under their statute of frauds, which enacts, that all parol leases of land shall have the force and effect of leases or estates at will only. See Doe ex dem. Rigge v. Bell, 5 T. R. 471; Clayton v. Blakey, 8

Id. 3; Doe ex dem. Collins v. Weller, 7 Id. 478; Roe ex dem. Bree v. Lees, 2 W. Black. 1171. See also Schuyler v. Leggett, 2 Cow. 660; and People v. Rickert, 8 Id. 226, in which the courts of New York declared the law of that state to be the same. We think the words of our statute are satisfied by holding, that, in the first instance, the estate created in the present case was an estate at will, and only an estate at will, yet that it should inure, like other estates at will. and have the incidents common to an estate at will, one of which is its convertibility into a holding from year to year by the payment of rent. To go further, and hold that the estate, created under the statute as an estate at will, must ever remain such, would be to go beyond the statute, and evidently contravene its provisions, rather than obey them. The expression in the statute, "shall have the force and effect of estates at will only," evidently implies, as we think, that they should in every respect inure as a lease at will.

This question is not altogether new in this state. In the case of Hanchett v. Whitney, 2 Aik. 240, it was held, that an estate at will, created, under the statute then in force, by means of a parol lease, having run for a period of five years, was converted into a tenancy from year to year. The provision of the statute of 1797, then in force, was in effect the same as our present statute.

We do not discover, that the sixth section of chapter 60 of the revised statutes, page 312, to which the court have been referred, has any special bearing upon the question. The provision in that section, that any lease for more than one year shall not be good and effectual against any other person than the lessor and his heirs, unless the same has been acknowledged and recorded, answers to a like provision in the fifth section of the statute of 1797. The provisions of the statute are the same as to deeds, which remain unacknowledged and unrecorded.

I am aware that in Massachusetts, in the case of Ellis v. Paige et al., 1 Pick. 43, and in Hollis v. Pool, 3 Met. 351, it was held, that under their statute of 1793, a person entering under a parol lease for any certain time shall not, even after occupation and payment of rent, be treated as a tenant from year to year, but shall at all times be regarded as a tenant at will. The statute of Massachusetts is very similar in its phraseology to our statute of 1797. It enacts that parol leases shall have the effect of leases or estates at will only, and shall not, at law or equity, be deemed or taken to have any other or greater force and effect. Though the statute of that state, as well as the statute of this state,

AM. DEC. VOL. LII-6

is decisive against the creation of a tenancy from year to year in the first instance, yet I do not see, how the reasoning of the court in those cases applies against the growth of an estate at will, created under the statute, into a tenancy from year to year.

It is true, the English statute of frauds has an exception, as to leases not exceeding the term of three years; and this is dwelt upon by the court of Massachusetts, as a reason why the decisions of the courts in England, under their statute, should not furnish a rule for them. I must confess, that I do not see the force of the reasoning of the court, which would prevent an estate at will from being turned into a tenancy from year to year in Massachusetts, and allow it under the English statute. In the case of Hanchett v. Whitney, 2 Aik. 240, it was not supposed, that our statute of 1797 would have any other or greater effect, than the English statute, and that both alike, in the first instance, declared that the estate created by a verbal lease was only an estate at will, unless it came within the exception of the English statute, and that under our statute it might be turned into a tenancy from year to year, as well as in England. The court of Maine, in the case of Davis v. Thompson, 13 Me. 214, under a similar statute, have followed the Massachusetts cases; but no new views of the question are presented, and for myself 1 can not coincide with those cases.

It is said by Tindal, C. J., in Regnart v. Porter, 7 Bing. 453, that "if a party enters and pays rent, a new agreement may be presumed," and that this is the ground of turning the tenancy into a holding from year to year: See also Cox v. Bent, 5 Id. 185. In such case the tenant is entitled to six months' notice, ending with the expiration of the year; and without this the landlord. can not eject him. From this it could follow, that the defendant could not, at any time during the year, at pleasure, surrender the premises against the will of the landlord, and thus excuse himself from the payment of accruing rent.

But suppose we regard the continuing interest of the defendant in the store to be still only that of a tenant at will, does it follow, that the defendant could have the right at any time, without previous notice, to determine his estate, and thus excuse himself from all liability to accruing rents? And could he especially do it in this case, at least, until the six months' rent, to become due the first of October, 1844, had fully accrued? He had seen fit to hold over after the first of April, 1844, and could he determine his estate, while the next six months were running, and thereby acquire the right to apportion the six

months' rent then accruing? But for myself I do not deem it important to recur to this ground. I am fully satisfied to treat it as a tenancy from year to year.

It is no defense in this case that the defendant abandoned the possession of the store. If the tenancy remained undetermined, he is liable for rent, whether he in fact occupied the store or not: 3 Steph. N. P. 2724; Redpath v. Roberts, 3 Esp. 225. The plaintiff, however, can not claim rent from this defendant after his lease of the twenty-eighth day of November, 1844; and the county court limited his right to recover rent ending with the six months' rent due the first of October, 1844, and this, no doubt upon the ground that the plaintiff could not determine the tenancy, while the next six months were running, and thus acquire the right of apportionment. The plaintiff repossessed himself of the store by and through his new tenant.

The fact that the defendant, after having been in possession a few months, took a partner in the business carried on in the store, can not alter the case. No new agreement was made in relation to the occupancy of the store with the plaintiff. The partner of the defendant might well be considered, for the time being, as in under him, at least, as a quasi tenant. Besides, it appears that after about two years the partners dissolved their connection, and the store was again occupied by the defendant individually.

We then think the court below were right in their view of the law, and that, although the contract was modified, yet it was not entirely destroyed, and should govern the rights of the parties as to the amount of rent, and the times when the same became payable: See Schuyler v. Leggett, 2 Cow. 660.

The result is, the judgment of the county court is affirmed.

TENANCY AT WILL CHANGED INTO TENANCY FROM YEAR TO YEAR: Seo Duke v. Harper, 27 Am. Dec. 462. An estate at will is converted into a holding from year to year by the payment of rent: Silsby v. Allen, 43 Vt. 177, citing the principal case. But a tenancy at will will not ripen into one from year to year if it lacks the essential element of annual rent: Rich v. Bolton, 46 Id. 88, distinguishing the principal case. See the principal case cited in Hammon v. Douglas, 50 Mo. 437, in giving the technical reasons why an estate created by parol, having the force and effect of an estate at will under the statute of frauds, may be converted into a tenancy from year to year.

NOTICE TO QUIT, IN HOLDING UNDER LEASES VOID BY STATUTE OF FRAUDS: See the subject discussed in note to Stedman v. McIntosh, 42 Am. Dec. 132. A tenant from year to year can not quit at pleasure, and thus debar the landlord of all accruing rent; in such a tenancy a right to notice should, at least to some extent, be regarded as reciprocal: Hall v. Wadsworth,

28 Vt. 412. Where a tenant at will, before the expiration of the tenancy, quits the premises and offers to surrender the key to the landlord, and upon his refusing to receive it, throws it down, and after the tenant has left, the landlord takes it up and retains it, but the premises remain unoccupied during the remainder of the term, the landlord thereby waives no right as to notice, and the tenancy is not determined: Withers v. Larrabee, 48 Me. 573. And where such a tenant, under a verbal lease for five years, after occupying a year and a half, abandoned the premises, without giving the written notice required by the statute, and the premises remained unoccupied two years-the plaintiff knowing of the abandonment and refusing to accept possession-the defendant is liable for the use and occupation of the premises for the two years, and the liability for rent is not limited to the period at the expiration of which he could have surrendered, had written notice been given: Rollins v. Moody, 72 Id. 139, all citing the principal case.

BAXTER V. WINOOSKI TURNPIKE COMPANY.

[22 VERMONT, 114.]

TURNPIKE CORPORATION'S LIABILITY FOR INJURIES ARISING FROM WANT OF REPAIR OF ROAD is co-extensive with that of towns under charter making it liable for "all damages" to any person from whom toll is demandable, and damage must therefore not only be special but direct. TURNPIKE CORPORATION IS NOT LIABLE FOR GENERAL DAMAGES resulting from not attempting to travel highway, or from not being able to travel as expeditiously as otherwise, because of its insufficiency.

TRIAL MAY BE STOPPED if county court, in its discretion, is satisfied that no cause of action is stated in declaration, and none proved on trial, although declaration is traversed instead of demurred to.

PLAINTIFF MAY BE CONFINED TO PROOF OF SINGLE INJURY for insufficiency of highway, where he avers cause of action arose on a certain day and divers other days between that day and the commencement of suit. TURNPIKE CORPORATION IS NOT LIABLE for injuries caused to adjoining property by digging clay from highway, if ordinary care and prudence is exercised.

TRESPASS on the case against a turnpike corporation. The first and second counts in the declaration alleged that the defendants' road was the necessary and only means of communication of the plaintiff with the village of Burlington, to which, and other places adjacent, the plaintiff transported the produce of his land, being compelled for that purpose frequently to pass and repass along the road; and that owing to the defendants' neglect to repair the same, it was insufficient and dangerous for the purposes of travel, and at times wholly impassable, whereby the plaintiff was impeded, delayed, and wholly prevented from conveying his produce and transacting his necessary business, thereby suffering great loss and expense.