1805. COLE against GOWER. [119] parish-officers are to call upon the father to give security, for [120] Tuesday, Under an agreement by a tenant of a DOE, on the Demise of STRICKLAND and Another, against SPENCE and Another. THIS HIS was an ejectment on a demise, laid the day after Old Lady-day last, brought to recover a farın in York farm" to enter shire, part of certain estates vested in trustees for charitable on the tillage uses, of which the defendants were tenants from year to mas, and on the year; and the single question was, Whether they had received a legal notice to quit? The tenancy commenced at Old Lady-day; and the defendants, by a written agreement, dated 17th of July, 1777, between them and the trustees, land at Candle house and all other the premisses at Lady-day following; and that when he left the farm, he should quit the same according to the times of entry as aforesaid ;" and the rent was reserved half-yearly at Michaelmas and Lady-day, held, that a notice to quit, delivered half a year before Lady-day, but less than half a year before Candlemas, was good; the taking being in substance from Lady-day, with a privilege for the incoming tenant to eater on the arable land at Candlemas, for the sake of ploughing, &c. agreed agreed to become tenants under the trustees for the farm, which was described as being then in their own occupation, " and to enter on the same premisses as follows; namely, on the tillage land at Candlemas last past, and on the house and all other the premisses at Lady-day following; and that whenever they (the defendants) left the said farm, they should quit the same according to the times of entry as aforesaid.” The defendants also agreed to pay the rent (117. 198.) halfyearly at Michaelmas and Lady-day. The notice to quit was dated and served on the 23d of August, 1803, to quit at the end of the year; and a receipt for half a year's rent due at Old Lady-day, 1804, was proved to have been taken by the defendants. On this evidence, the defendants counsel contended for a nonsuit at the trial, before Chambre, J. at the last York assizes, on the ground that the period between the 23d of August, when the notice to quit was served, and either New or Old Candlemus (a), the time for quitting the tillage land, was less than half a year. It was settled however, that the plaintiff should take a verdict, with liberty for the defendants to apply to enter a nonsuit. Such application was accordingly made in Michaelmas term last, and a rule nisi obtained; against which Park and W. Walton now shewed cause, and relied upon the case of Doe d. Dagget v. Snowdon (b), as in point; where the tenant having entered on the farm, on an agreement to hold the arable land from Old Candlemas, the pasture from Old Lady-day, and the meadow from Old Mayday, the rent being reserved half-yearly at Old Michaelmas and Lady-days, a notice delivered before Old Michaelmas to quit at Old Lady-day was holden to be sufficient. It was indeed said in the argument of Doe v. Calvert (c), that the case of Doe v. Snowdon, had been questioned by Lord Kenyon, in an ejectment tried before him at Stafford, in 1788, upon the demise of Lord Grey de Wilton; but a distinction was noticed by the Court between the two cases cited in giving judgment in the principal case, that it did not appear in Lord Grey de Wilton's case whether the notice to quit were given half a year before Lady-day, when the rent was (a) Old Candlemas is now the 14th of February. (c) 2 East, 382, 4. (6) 2 Blac. Rep. 1224. 1805. DOE against SPENCE. [ 121 ] payable, 1805. DOE against SPENCE. [ 122 ] payable, or not, so as to bring it within the rule laid down'in Doe v. Snowdon. Now here the notice was given above half a year before Old Lady-day, though not half a year before Old Candlemas. In Doe v. Snowdon, the Court said, That the true construction of such an agreement as this was, that it was an holding from Lady-day to Lacy-day, with a licence to the incoming tenant to enter the arable land at Candlemas, to prepare it for the Lent corn; and that the requiring so early a notice to quit to be given as on the 13th of August, would be only giving the tenant an opportunity to injure the land, by taking a second crop of hay from the meadows. And they referred to a case of Doe d. Earl of Egremont v. Clayton, at York summer assizes, 1798, where Mr. Justice Rooke held, that a notice to quit, given conform ably to the rule laid down in Doe v. Snowdon, was sufficient. Cockell, Serjt. in support of the rule. The case of Doc • v. Snowdon, turned upon the custom of the country, which may be let in as evidence of the holding where no express contract appears; but cannot govern case like the present, where the parties have committed the precise agreement be tween them to writing, which must speak for itself. Here there is no ambiguity in the contract; for the tenants were not only to enter on the different parts of the premisses at different times, which must therefore constitute a distinct holding of the respective parts from the respective times; but it was expressly stipulated, "That whenever the tenants left the said farm, they should quit the same according to the times of entry as aforesaid." The whole forms one entire contract, and no part can be expunged: neither can it be controlled by any supposed custom of the country in direct opposition to the terms of the contact: in this respect also it is distinguishable from the former case. [Lord Ellenborough, C. J. The agreement to quit, according to the times of entry, is no more than what the law would have implied if it had not been so expressed, and therefore cannot differ this case from that of Doe v. Snowdon. Le Blanc, J. The custom of the country would not make the tenant quit at a different time from that at which he entered.] The custom is not regular or general: it is different in different [123] parts of Yorkshire. It is considered merely in the nature of a privilege to enter on the arable before the rest of the farm; farm; but here it is stipulated for, and forms part of the contract. 1805. DOE against SPENCE Lord ELLENBOROUGH, C. J. The rule of law originally was, that reasonable notice to quit should be given where notice was necessary between landlord and tenant. What notice shall be deemed reasonable, has received a construction so long ago as the reign of Hen. 8th, in a case in the year books (a), that it shall be half a year's notice. Then the case of Doe v. Snowdon has decided, That the notice to quit shall refer to the substantial day of entry of the te nant, though he may have before entered on the arable land for the benefit of ploughing and preparing it; and, That the incoming tenant may have the privilege of entering upon him for the same purpose antecedent to the time of the notice; and there is a particular convenience in having it so; for if the landlord were bound to give his notice in August upon a Lady-day taking, the tenant would be warned of it time enough to enable him to lay up his pastureground after the first cutting, and take a second crop of hay, which would be very injurious to it, and which inconve nience will be avoided by the tenant's not having notice till Michaelmas of his tenancy being meant to be put an end to. Therefore, on the authority of that case, we may consider that the substantial time of entry by the tenant on the farm was at Lady-day, from whence the rent was made payable; [121] with a privilege to the tenant, on the one hand, to enter on the arable land before that period, for the purpose of preparing it; and, on the other hand, a stipulation by him when he quits the farm to allow the same privilege to the incoming tenant. Such appears to have been the general rule of construction laid down with respect to takings of this sort; and being convenient in itself, it is better to abide. by it. The particular terms of the agreement at first struck me as raising a distinction between this and the case of Doe v. Snowdon; but, upon further consideration, I think they (a) 13 Hen. 8, 15, b. 16. This is referred to in the MS. note of Throgmerton on the demise of Woadby v. Whelpdale, B. R. Hil. 9 Geo. 3, from whence the short note of that case mentioned in Bull. Ni. Pri. 96, is taken, which does not mention that point. The conclusion of the note of Lord Mansfield's judgment in the MS. 15, 13 H. 8, 15, b. half a year's notice so ancient as Henry 8th's time. Lodgings, three months notice sufficient. And tide Right v. Darby, 1 Term Rep. 162, 3. mean 1805. DOE against SPENCE. mean in effect the same thing, that the substantial time of entry, with respect to the duration of the tenancy, was at Lady-day, from whence the rent was to begin running, and not on the day which is anticipated by the privilege for entering on the arable land. GROSE, J. The entry of the incoming tenant on the arable lands at Candlemas, is merely for the privilege of ploughing at a time of the year when the land is of no use to the outgoing tenant; that is a known fact: and the case of Doe v. Snowdon has put a legal construction upon this sort of agreement; so useful and reasonable that I should be sorry to disturb it, especially after so long an acquiescence, when it has become the known rule of the country: and upon such a subject, it is most important that there should be some fixed reasonable rule to guide landlords and tenants. LAWRENCE, J. The rule of law is, that reasonable notice to quit shall be given, in order to determine a tenancy from year to year. The question is, What is reasonable notice? [125] and that was long ago decided to be half a year with respect to houses and farms; and it has been further considered as a substantial notice for half a year, if given with reference to the time of entry on the house and principal part of the farm; from which time the rent is calculated, though it were agreed that the incoming tenant should enter before on the arable land at a time when the actual tenant of the premisses could not be prejudiced by it: from Candlemàs to Ladyday being considered as a time when such land is of no use to the outgoing tenant, but only to the incoming tenant, who is to prepare it for the future crop. Then considering the case as the Court of C. B. did in Doe v. Snowdon, the agreement is no more than securing a liberty for the incoming tenant to enter on the ploughing land at Candlemas, the substantial taking and time of entry of the tenant being from and at Lady-day. There is nothing in the terms of the contract about the time for notice to quit to be given ; that question arises out of the true construction of the contract taken altogether. I know that in some counties it is stated in the agreement, That the incoming tenant shall have liberty to enter at such a time to plough the land; and, perhaps, that is the more cautious way of wording the con tract; |