the agreement of the parties, who can also agree to waive the notice, and so to create a new tenancy (o). Where the landlord has given notice, but the tenant holds over, the landlord cannot waive the notice, and distrain for rent subsequently accruing; for there is no "agreed rent" to distrain for until a new tenancy arises (p). A waiver of notice will be presumed from a receipt of rent as such, subsequently to the expiration of the notice (q); but a mere demand is a question of intention, which must be left to the jury (r). So a second notice will operate as a waiver of the first (s), unless it be clear that it is not intended to have that effect (t). A good parol notice, however, will not be waived by a subsequent insufficient notice in writing (u). As is stated above, the parties may mutually agree to waive a notice to quit which has been given, but the tenant will not be allowed to take advantage of a mere indulgence on the part of a landlord, and treat it as a waiver (v). A disclaimer operates as a waiver of notice (w). (0) Blyth v. Dennett, 13 C. B. 180; Dendy v. Nicholl, 4 C. B. N.S. 381; Tayleur v. Wildin, 37 L. J. Ex. 173. (p) Jenner v. Clegg, 1 Moo. & R. 213; Alford v. Vickery, 1 Car. & M. 280. (q) Goodright d. Charter v. (r) Blyth v. Dennett, supra. 16 East. 53. (t) Doe d. Williams v. Humphreys, 2 East. 237; Doe d. Godsell v. Inglis, 3 Taunt. 54; Messenger v. Armstrong, 1 T. R. 53. (u) Doe d. Lord Macartney v. Crick, 5 Esp. 196. v. (v) Whiteacre d. Boult Symonds, 10 East. 13, 17; Doe d. Lord Macartney v. Crick, 5 Esp. 196; Doe d. Marquis of Hertford v. Hunt, 1 M. & W. 690. (w) See ante, 262. ន CHAPTER V. HOLDING OVER. PAGE 1. SMALL TENEMENTS ACT ... 275 3. DOUBLE VALUE 2. DESERTION BY TENANT 281 4. DOUBLE RENT ... PAGE 284 287 UPON the determination of the tenancy, the landlord is entitled to receive the full and complete possession from his tenant, who must therefore deliver up to his landlord the peaceable and quiet possession of the demised premises, together with all fixtures (a), except what he is entitled to remove; and also all growing crops, unless there be an agreement or custom (b) to the contrary (c). If the tenant holds over after the expiration of the notice to quit, whereby the landlord is prevented from delivering possession to a party to whom he had agreed to let the premises, the landlord can recover the reasonable damages and costs that he has sustained (d). Where it is impossible for the tenant to give up possession, by reason of the ill-will or obstinacy of his under-tenant, to whom he has let the whole or part of the premises, the original tenant will still be liable (e). The landlord, however, may discharge him by accepting the under-tenant as his (a) See Fixtures, p. 298. (b) See Emblements, p. 288. (c) Hyatt v. Griffiths, 17 Q. B. 505; Newson v. Smythies, 3 H. & N. 840, 28 L. J. Ex. 97; Caldecott v. Smythies, 7 C. & P. 808; Henderson v. Squire, L. R. 4 Q. B. 170. (d) Bramley v. Chesterton, 2 C. B. N.S. 592, 27 L. J. C. P. 23. (e) Harding v. Crethorn, 1 Esp. 57; Ibbs v. Richardson, 9 A. & E. 849. See also Christy v. Tancred, 7 M. & W. 127, 9 M. & W 438; Tancred v. Christy, 12 M. & W. 316; Draper v. Crofts, 15 M. & W. 166; Jones v. Shears, 4 A. & E. 832, 835; Gray v. Bompas, 11 C. B. N.S. 520; Waring v. King, 8 M. & W. 571. tenant. Where the tenant holds over, the landlord may enter on the demised premises peaceably and without action, if he can succeed in doing so (f); but if he break in forcibly, so as to endanger a breach of the peace, he may be liable to the risk of an indictment (g). It is safer, therefore, to sue in trespass for the recovery of damages, or in ejectment for the recovery of the premises. 1. SMALL TENEMENTS ACT. In order to save the landlords of small tenements the expense and delay of a proceeding by ejectment to recover possession, where a tenant refuses to quit on the determination of his interest in the premises, the statute 1 & 2 Vict., c. 74, s. 1, enacts, that "When and so soon as the term or interest of the tenant of any house, land, or other corporeal hereditaments held by him at will, or for any term not exceeding seven years, either without being liable to the payment of any rent, or at a rent not exceeding the rate of £20 a year, and upon which no fine shall have been reserved or made payable, shall have ended, or shall have been duly determined by a legal notice to quit or otherwise, and such tenant or (if such tenant do not actually occupy the premises, or only occupy a part thereof) any person by whom the same, or any part thereof, shall be then actually occupied, shall neglect or refuse to quit and deliver up possession of the premises, or of such part thereof respectively, it shall be lawful for the landlord of the said premises, or his agent, to cause the person so neglecting or (f) Taylor v. Cole, 1 Smith's L. C. 5th edit., 111. (g) R. v. Smyth, 1 M. & R. 155, judgment of Lord Tenterden. See Newton v. Harland, 1 M. & Gr. 664, where it was held that the landlord may be liable to an action at the suit of the tenant, but that point is not decided; Harvey v. Brydges, 14 M. & W. 437; Wright v. Burroughes, 3 C. B. 699; Davison v. Wilson, 11 Q. B. 890; Davis v. Burrell, 10 C. B. 825. refusing to quit and deliver up possession to be served (in the manner hereinafter mentioned) with a written notice in the form set forth in the schedule in this Act, signed by the said landlord or his agent, of his intention to proceed to recover possession under the authority and according to the mode prescribed in this Act; and if the tenant or occupier shall not thereupon appear at the time and place appointed, and show to the satisfaction of the justices hereinafter mentioned reasonable cause why possession should not be given under the provisions of this Act, und shall still neglect or refuse to deliver up possession of the premises, or of such part thereof of which he is then in possession, to the said landlord or his agent, it shall be lawful for such landlord or agent to give to such justices proof of the holding, and of the end or other determination of the tenancy, with the time and manner thereof; and where the title of the landlord has accrued since the letting of the premises, the right by which he claims the possession; and upon proof of service of the notice and of the neglect or refusal of the tenant or occupier, as the case may be, it shall be lawful for the justices acting for the district, division, or place within which the said premises, or any part thereof, shall be situate, in petty sessions assembled, or any two of them, to issue a warrant under their hands and seals to the constables and peace-officers of the district (h), division, or place within which the said premises, or any part thereof, shall be situate, commanding them within a period to be therein named, not less than twenty-one nor more than thirty clear days from the date of such warrant, to enter (by force if needful) into the premises, and give possession of the same to such landlord or agent: provided always that entry upon any such warrant (h) Jones v. Chapman, 14 M. & W. 124. shall not be made on a Sunday, Good Friday, or Christmas Day, or at any time except between the hours of nine in the morning and four in the afternoon provided also, that nothing herein contained shall be deemed to protect any person on whose application and to whom any such warrant shall be granted, from any action which may be brought against him by any such tenant or occupier, for or in respect of such entry and taking possession, where such person had not, at the time of granting the same, lawful right to the possession of the same premises : provided also, that nothing herein contained shall affect any rights to which any person may be entitled as outgoing tenant by the custom of the country or otherwise." A like remedy is given to the valuer under the Inclosure Acts in respect of encroachments, and recent inclosures of land subject to the provisions of those Acts (). By "The Charitable Trusts Act, 1860” (j), a like remedy is given to the trustees against a schoolmaster wrongfully holding over. By the 59 Geo. III., c. 12, ss. 24, 25, churchwardens and overseers of hereditaments belonging to the parish (k) can, in the mode therein provided, obtain a warrant from the justices for the possession of hereditaments belonging to the parish which are wrongfully held over (1), and the justices may inquire into the matter although a claim of title arises (m). (i) 15 & 16 Vict. c. 79, s. 13; Chilcote v. Youlden, 29 L. J. M. C. 197. (j) 23 & 24 Vict. c. 136, s. 13. As to land vested in the Secretary of State for War, see 22 Vict. c. 12, s. 5. (k) See ante, Part 1, c. 1, p. 20. () As to cottage allotments, see 2 & 3 Will. IV. c. 42, ss. 5, 11. (m) Ex parte Vaughan, 7 B. & S. 902, L. R. 2 Q. B. 114, 36 L, J. M. C. 17. |