
    
      John Floyd vs. Washington Floyd.
    
    Tenancy, from year to year, of a farm «sed for agricultural purposes, looks to the end of the calender year for its termination; and, if the landlord would determine it, he must, during the current year, give notice of his .intention to do so at the end of the year.
    Rent is not essential to a tenancy.
    
      The appellant will not, without a copy of the declaration, be permitted to raise questions, for the decision of which it is indispensable.
    In trespass vi et amis, counts for distinct trespasses, on land and goods, may be joined.
    
      Before Evans, J., at Newberry, Fall Term, 1850.
    This was an action of trespass, vi et armis, to land and goods. The report of his Honor, the presiding Judge, is as follows:
    “ One Charles Floyd was the former owner of the land. He was the brother of the plaintiff, and the nephew of the defendant. In 1845, Charles Floyd put the plaintiff to live on the land. From that time, until the trespasses complained of, he remained in possession of the house, yard, garden, out-houses, and a small potatoe patch. In the meantime Charles died, devising his estates to the defendant, his uncle. There was a controversy about the will, but it was established. There was some proof of a parol agreement, that, in consideration that John, who was an unthrifty man, would secure Charles for some liability as security, Charles agreed that John might occupy the house, out-houses, garden, and potato patch, during his life. Charles was in possession, and cultivated the other lands belonging to the plantation. Charles died in August, 1847; and, between that and the first of October, the defendant, who took immediate possession of his estate, being executor and sole devisee, ordered John off from the place two or three times. John refused to go. The controversy about the validity of the will was then pending. John said Charles put him there, and he would not go until he was ready. The defendant sent a paper, which, I suppose, was a notice to quit; but the witness did not say what it was, but John refused to read it. In the spring of 1848, the defendant again sent another paper by the overseer, which John refused to read. He was told by the overseer that the defendant wished him to go away, and John again refused to go. In the spring of 1849, the defendant told John, if he planted anything, he would plough it up, as he wanted the land to plant cotton. At the proper season for preparing the land to plant, the defendant and his overseer and negroes entered on the land. They pulled down the fences of the garden and potato patch, and ploughed up the land. They removed the out-houses and burnt them, and cut down the trees in the yard. All the land thus prepared was afterwards planted in cotton; and the plaintiff was thus dispossessed of everything except the dwelling house. On the day the cotton was planted, the defendant told John he might have the place, if he would give his note for $15. John refused; said he had rights, and that Charles had put him there as a tenant.
    “There were, in John’s possession, several head of cattle, which were called his, and fed by him as his property. All these cattle, except two cows and calves, the defendant drove off from the plaintiff’s house where he lived. There was proof that John’s property had been sold by the sheriff, and that defendant had purchased some or all of his cattle. The sale was in April, 1846. The cattle were driven off by defendant in the fall of 1848. There was no satisfactory proof that the cattle drove off by defendant were the same he had bought at sheriff’s sale, but I think it likely they were.
    “ It was also proved that John’s horse was in the habit of jumping over the fence into the defendant’s field. A negro boy was sent at night, who brought the horse to defendant, who kept him a few days. The boy was sent by defendant’s order. There was no proof where the horse was when taken by the negro. Defendant said his object was to keep him up, as John would not.
    
      “ The action was for all the matters above enumerated.
    “ In relation to the trespasses on the land, I charged the jury that John was a tenant at will to Charles, and, after his death, to the defendant; that a tenancy at will could not be terminated at the caprice of the landlord; that all tenancies at will were now regarded as tenancies from year to year; and that the landlord could only put an end to them by notice to quit at the end of the year. If, therefore, the notices proved were orders to quit immediately, the landlord had no right to give such order, and the tenant was not hound to obey. If the notice could he construed into one to quit at the end of the year, then the holding over was tortious, and the landlord might regain possession in any way he could without a violation of the criminal law. In this view the defendant was guilty of no 'trespass. The notice being vague and indefinite, I left it to the jury to construe the evidence.
    
      “ As regards the cattle, I told the jury that if the cattle driven off by the defendant were the plaintiff’s, then it was trespass; but, if they were the same cattle he had bought at sheriff’s sale, in 1846, then it was no trespass. I left this, on the evidence, to the jury.
    
      “ As to the horse, I told them it was a trespass to take another’s horse, and keep him from the owner’s possession and use, against his will; even if found in his field he had no right. The law directed what course one having a legal fence should pursue, where horses and cattle trespass on his fields, to get remuneration. There was no proof where the horse was taken from; if from plaintiff’s stable, or lot, it was a trespass; if from his field, it was a trespass to confine him, without notice to the owner; but it was a circumstance in mitigation of damages, that the plaintiff made no effort to keep him out, and the defendant’s fences were sufficient for ordinary purposes, and such as the law required.
    
      “ The jury gave a verdict of $500 for the plaintiff.”
    The defendant appealed, and now moved this Court for a new trial, on the following grounds:
    1. Because his Honor erred in charging the jury that, although the defendant had given the plaintiff notice several times to quit, moie than three months before the end of the year, yet, unless the notice was to quit expressly at the end of the year, it was not sufficient, and the defendant had no right to disturb the possession of the plaintiff.
    
      2. Because his Honor erred in charging that the plaintiff was entitled to three months’ notice to quit, after it had been proved that the plaintiff set up a title, or claimed a right to the land, in opposition to the defendant.
    3. Because his Honor erred in charging that the trespass for taking plaintiff’s horse, found in defendant’s field, and driving off some cows claimed by plaintiff, would maintain the action, although no trespass had been committed to plaintiff’s possession of the locus in quo.
    
    4. Because the verdict is in other particulars contrary to law and evidence.
    Fair, for the motion.
    Pope, contra.
   Curia, per

Wardlaw, J.

The grounds of appeal seem to have been taken in some misapprehension of the instructions which were given by the Circuit Judge.

He held that, by construction of law, a tenancy, for an indefinite time, of a farm used for agricultural purposes, was a tenancy from year to year, looking to the end of the calender year for its termination, and requiring previous notice of his intention to determine it at the end of the current year, to authorize the landlord so to determine it. It was then left to the jury to decide whether the frequent orders, or notices, given by the landlord' to the tenant, in the spring of several successive years, were' orders to quit immediately, in violation of the rights acquired by the tenant under the contract which the landlord had permitted to subsist from the beginning of the year to the spring, or were notices intended to have effect at the end of the year. In this there was no error.

The jury were also left to decide, from the evidence, whether the plaintiff had, by his acts, so disavowed the tenancy as to deprive himself of the right to notice, or whether his words concerning his rights and his being a tenant put there by his brother', were not consistent with the relation which, in fact, subsisted between him and the defendant. On this point the law and the evidence sustain the finding. Rent is not essential to the existence of a tenancy. (5 Co. 55.)

It is said for the plaintiff, and was understood by the Judge' on Circuit, that there were various counts in the declaration, all in trespass, vi et armis, some one of which covered whatever trespass on land, horse, orcows, the jury may have considered in estimating the damages they have found. There is no doubt that, for such distinct and diverse trespasses, counts may be joined. (1 Chit. PI. 193.) It is, however, said for the defendant, appellant here, that there was no separate count for trespass to goods, but that every count complained of a breach of the close, although some of them alleged, as aggravation, the taking thence of the horse and cows; and that, therefore, as it was not shown that the horse was taken from the close, damages may have been given for a trespass, which is not contained in any count. If this statement concerning the declaration was known to be correct, we will not say that good ground for a new trial would appear; but no copy of the declaration has been exhibited to this Court: it was the appellant’s duty, under the 83d rule of Court, to have brought up such copy, and we cannot permit him, without it, to raise questions, for the decision of which it is indispensable.

The motion is dismissed.

O’Neall, Evans and Withers, JJ., concurred.

Frost, J.

I dissent from that part of the opinion which affirms that a tenancy from year to year, implied by law from a tenancy at will, is determined at the end of the calendar year. The end of the year, with reference to the tenancy, is computed from the time of the tenant’s entry. If one enters on land, under a lease for one year, commencing the first of April, and holds over, it would be an arbitrary interference of the law with the contract of the parties, that the second year of the tenancy should not he determined till the first of January; and thus extend the term of the second year nine months beyond the period when, by reference to the time of entry, it would have ended.

Motion dismissed.  