fendant? I own I entertain no doubt that it was; and it seems to me that the evidence on the point goes much beyond what it has been assumed to be by my learned brothers. There was evidence that Mr. Newton had the management of the plaintiff's property, or in other words was his land agent; there was no cross-examination upon this point, and it was proved that he was the present agent and manager of the defendant, and he was present in Court at the trial, and not called as a witness. I myself entertain no doubt whatever that there was evidence to go to the jury that the letter was written by an agent of the defendant, and was evidence against him. It is said that there was no evidence that he was an agent to take or hire land for the defendant. I do not think that that is the question. If the letter be evidence against the defendant, the facts stated in it, and the further fact of the continued occupation of the land by the defendant himself, in my opinion afford evidence of a tenancy at will, and I think this conclusion arises upon the actual facts, and not upon any authority of Mr. Newton to take or hire land.

Then remains the question whether it makes any difference that the defendant was himself a tenant in common with the plaintiff of the property, and I think it does not, and that the question is the same as if the plaintiff had been sole owner. I therefore think the rule ought to be discharged. Further: if the decision turn upon the non-admissibility of the letter in evidence, I think there ought to be a new trial to give the opportunity of calling Mr. Newton, and ascertaining from him whether he wrote it without the authority of the defendant, to whom it was proved, by indisputable evidence, that he was land agent or steward.

BRAMWELL, B.:

I am of opinion that this rule should be made absolute. We have already decided that the letter of Mr. Newton is not an acknowledgment sufficient to prevent the effect of the Statute of Limitations. The remaining question is whether there was evidence of a tenancy at will at the date of or subsequent to that letter; I am of opinion there was not. I think there is no evidence of any authority in Newton to make the suggested offer contained in that letter, nor, in the alternative, to make the defendant tenant at will to the plaintiff. Nor, if there were, do I conceive the letter to be more than an expression of an expectation: I doubt whether the letter was admissible in evidence. But assuming it was, and was evidence of the facts mentioned in it, and that it showed the defendant was then in

LEY

v.

PETER.

[107]

LEY

V.

PETER.

[ *108 ]

[ *109]

possession, I think there was no evidence of a tenancy at will.
The facts would be that the defendant being in possession of
the premises continued there more than 20 years uninterrupted
by the plaintiff. I am of opinion this does not constitute a
tenancy at will, nor is evidence of it. To constitute a tenancy
at will, there must be a contract, the lessor must be bound as
well as the lessee. Now, I see nothing in this to prevent the
*lessor from treating the defendant as a trespasser at any time.
from the date of that letter down to the bringing of this action.
Indeed it does not appear there was any demand of possession
or determination of a tenancy at will before the bringing of
this action. Mere silence on the part of the plaintiff did not
constitute or make evidence of a tenancy at will. If it did, when
did the silence have that effect? At the end of a day-a week
-a month a year-or when? Where there is no duty to do
anything, mere lapse of time and nothing done, is no evidence
of anything. I do not dispute the authority of Littleton; on
the contrary, I admit and rely on it. For it is clear that
Littleton and his commentator alike suppose an affirmative con-
sent and not a mere negative or silent consent: see Mitcheson
v. Oliver (1). But further: to what, if anything, does the
plaintiff consent? Not to a tenancy as offered. In fact, not
to anything offered, but to the continuance of the state of things
as they existed. What was that state of things. Why, the de-
fendant is in possession and is receiving the profits. Now, to
the defendant's continuing in possession, the plaintiff's consent
is not necessary. Nor to his receiving the profits. It would be
necessary to his receiving them and not accounting for them,
or paying some rent for them; but no such consent as this is
given. The above remarks assume that the defendant was in
possession as though the title to the entirety was in the plain-
tiff. But in truth the defendant was as much entitled to the
possession as the plaintiff; his occupation of the land was
entirely lawful; he had no possession of the plaintiff's share
other than what was unavoidable. There is in this case, there-
fore, a want of any evidence of contract on the part of the
defendant. There is no estoppel on him to say his occupation
was unlawful, and so to admit it was lawful, and *so acknow-
ledge a tenancy. The case is not in the dilemma that either he
was wrongfully in occupation, or rightly by the will of the
lessor. I think therefore there is no evidence that either plain-
tiff or defendant was party to a tenancy at will, or proposed
tenancy at will. Upon no supposition was the defendant a tres-
passer. The case of Henderson v. Eason (2) in the Exchequer
(1) 103 R. R. 545 (5 El. & Bl. 419). (2) 85 R. R. 628 (17 Q. B. 701).

Chamber shows that account was not maintainable, and as use and occupation is an action of contract, that also was at no time maintainable.

WATSON, B.:

In this case, tried before Crompton, J., at the last Assizes for Cornwall, it appeared that the plaintiff was seized of an undivided 1-3rd part of a meadow, called "Barn Meadow." This one 1-3rd part had been held by one Thomas, the owner of the other undivided 2-3rds, under a lease made in 1765 and which expired in 1818. Thomas died in 1826. Peter, the father of the present defendant, succeeded, and at the time of his death was the owner of the 2-3rds; the defendant on the death of his father, in 1836, became entitled to the 2-3rds. He entered into possession thereof and so has remained to the present time. No evidence was given to show any possession or receipt of rents of this 1-3rd since the expiration of the lease in 1818, by the plaintiff or by those under whom he claims. No evidence respecting this 1-3rd, to show under what circumstances it was occupied if at all by Thomas, and by defendant's father, or by the defendant, was given; therefore it is clear that, but for the letter hereinafter mentioned, the plaintiff's claim would be barred by the operation of the Limitation Act, 3 & 4 Will. IV. c. 27, ss. 2 and 12: see Culley v. Taylerson (1). The letter was received in evidence by the learned Judge, reserving for the opinion of the Court the questions of the admissibility and effect of such letter. The first question is, was that letter receivable in evidence? The letter was in these terms (His Lordship read the letter).

To show that it was receivable in evidence, Mr. Millett was called, to whom the letter was directed, who proved that Newton (the writer of the letter) received the rents for Peter for many years, that he was an estate agent; witness had communicated with Newton as to matters connected with the manor and first saw Withyam and afterwards Newton, and had conversations with Newton as to a mine sett at Chiverton, and met Newton on the ground-only once: the sett was not granted: he appeared as representative of Peter, and had conversations with him on the subject: he conversed as to a right of turbary over Hallett Down. Newton received rents at the courts and paid Peter's proportions of the expenses. He met Newton on the ground

about Hallett Down.

Upon these facts I am of opinion that no evidence was given to prove Peter's authority to Newton to write this letter. No

(1) 52 R. R. 566 (11 Ad. & El. 1008).

LEY

2.

PETER.

[ *110]

LEY

ť.

PETER.

[111]

[112]

express authority was proved; no evidence given that the defendant ever heard of, or had any knowledge, or ever acted upon or recognised this letter. Then, was there anything to show that writing this letter by Newton was within the general scope of his authority? Newton was an estate agent, and received the rent for the defendant; and received rents at the manor court, and paid the expenses of the defendant there. There is certainly no authority in a receiver of rents to make admissions. Throughout the country land-owners are in the habit of employing estate agents and others to receive their rents, and to conduct such farming operations as repairing, draining, cutting timber and the like; but such an employment would not enable that agent without express authority to make *admissions in writing or otherwise as to his employer's title, or to bind him by proposals to purchase, or take on lease, the lands of another. To hold otherwise would be to place land-owners at the mercy of their receivers or farm agents. Even an attorney employed in a matter of business is not an agent to make admissions for his client except after action commenced and in matters relating to that action: Wagstaff v. Watson (1). And as to Newton negotiating respecting some right of turbary on behalf of the defendant, it is impossible to say that this would authorize him at any future time to make statements as to title, or to make an offer for the purchase of land.

Moreover, it is for the Judge to look at the letter to see whether it professes to be written by an agent, and by the authority of the defendant. It does not purport to be written by the defendant's sanction, or authority, but merely asking Millett whether a lease would be granted, defendant being in possession of 2-3rds, who, as he says, no doubt will accept a lease, and no doubt would pay rent for the past.

But assuming the letter admissible, what effect has it? It is clear-indeed all but admitted in argument-that it was not an admission of title to avoid the Statute of Limitations, within the 14th section of the 3 & 4 Will. IV. c. 27, for such an acknowledgment must be signed by the person in possession, and an acknowledgment of title in writing, signed by an agent, is not sufficient for that purpose. By giving effect to the letter, we should truly admit it as an admission of title when not properly signed. But it was contended that the letter itself, not answered or in any wise recognised by, or even known to the plaintiff, was evidence of a tenancy at will, and if so, the tenaney at will was determined at the death of Thomas and of the *defendant's father, and that a fresh tenancy at will was created (1) 4 B. & Ad. 339.

at the time of and by the act of writing the letter. I think
not. A tenancy at will, like any other tenancy, must be created
by the agreement of the parties, or it may arise from the
relation of the parties, where there is a will on both sides, that
one should hold the land of another, as in Littleton, s. 70: "Also
if a man make a deed of feoffment to another of lands and
deliver to him the deed, but not have livery of seisin, in this
case he to whom the deed was delivered may enter into the land
and occupy it at the will of him who made the deed." So, where
a purchaser of land before conveyance executed enters, &c.,
he is tenant at will to the intended vendor: Doe v. Chamber-
lain (1). In either case the feoffee or the purchaser holds the
lands at the will of the feoffor or vendor. And also when one
person occupies the land of another by his express permission,
without payment of rent, he is a strict tenant at will. Here,
the letter does not show that either Thomas or Peter, the defen-
dant's father, or the defendant, occupied the plaintiff's 1-3rd part
by the permission of the plaintiff; but merely that they occu-
pied their own 2-3rds, subject to an action of account to the
plaintiff for his 1-3rd, if they received more than their shares:
Henderson v. Eason (2). But was this letter proof of a tenancy
at will before or after the letter was written? Nothing was said
or done on either side to create such a tenancy. The defendant
was not let into possession of the plaintiff's 1-3rd, nor was
there any negotiation for the lease. In the case of Doe d.
Bennett v. Turner (3), where a tenancy at will was determined
by the entry of the lessor, after which the tenant remained in
possession, PARKE, B., in delivering the judgment of the COURT,
says, that "after the will determined *the defendant became
tenant at sufferance, and such tenancy at sufferance would con-
tinue until the parties created a new tenancy at will by fresh
agreement between them express or implied;" and he says slight
evidence would satisfy the jury for that purpose. On the second
trial of the same case, Turner v. Doe d. Bennett (4), to prove a
fresh tenancy at will, it was shown that after the termination of
the will the defendant signed an assessment, stating himself to
be tenant of the farm and the lessor of the plaintiff to be pro-
prietor, and from this it was left to the jury to infer and
they found that there was a fresh tenancy at will. Here there
is no act done by either party, except Mr. Newton expressing
in his letter that the defendant was in possession of 2-3rds,
and that he might take a lease for lives of the other 1-3rd.
Mr. Newton says, that no doubt defendant will pay rent for
(1) 5 M. & W. 14.
226, 233).

(2) 85 R. R. 628 (17 Q. B. 701).
(3) 56 R. R. 692, 698 (7 M. & W.

(4) 60 R. R. 850 (9 M. & W. 643).