
    Henry L. Bonsall v. James McKay.
    In a demise of lands or tenements, whether the renting he for a year or a less time, or at will, the landlord cannot determine it without giving the tenant three months’ notice in writing to leave.
    If the unlawful eviction of the tenant from the demised premises by the landlord, be attended on his part by circumstances of aggravation and the trespass be gross, the jury may award the plaintiff exemplary damages. * _ x
    Trespass for breaking and entering the close of the plaintiff and turning him out of the possession of the premises.
    The plaintiff had rented a house of the defendant in’the city of Wilmington in May, 1857, but whether for the residue of the year or for a shorter time, did not appear from the evidence; and had moved his family and furniture into it. The defendant having afterwards found a purchaser for the house, and entered into a contract to sell it, which was to be executed by the middle of August ensuing, called upon the plaintiff in July, and expressing his surprise that he had not yet got out of the house,' demanded the payment of the rent in advance, or security for it; and on the failure of the plaintiff to comply with the demand, he proceeded in a few days afterwards to turn him forcibly out of possession, by removing his goods from the house to the pavement, and locking the front door against him in his absence. On the return of the plaintiff, he had some difficulty in obtaining admission into the house, but effecting an entrance, he ordered the defendant out of it, and on his refusal to go, he took hold of him to put him out, which he resisted, when a scuffle ensued between them until they were separated by another person. The plaintiff shortly afterwards produced a roll of large notes in his hand, amounting to a hundred dollars, and offered to pay the defendant rent for the premises for a year in advance, which he refused to accept, saying that he did not want him to pay rent, but to get out of the house, and that he would never have got into it if he had not told him a falsehood; which the plaintiff denied, but in reply alleged that he had been disappointed in getting another house which he preferred and had expected to obtain before that time.
    The counsel submitted the case without argument to the jury, subject to the opinion of the Court on the points referred to in the charge.
   The Court,

Houston, J.,

charged the jury: That any contract or consent, by virtue of which one person enters into the possession of the lands or tenements of another, under an agreement to pay rent for the same, was a demise, and would establish the relation of landlord and tenant between them; and where no term or time was expressly limited between them, the demise or renting would be construed to be for a year, except of houses and lots usually let for a shorter term. But if in the present case there was a less time specified and agreed upon between the parties during which the renting of the premises in question was to continue, it wo.uld be a demise for that time. The jury might therefore find, if the facts proved would warrant it, that the renting in this case was for the residue of the year from the time the plaintiff entered into possession under an agreement with the defendant to pay rent; or, they might even find that it was only what is termed in law a tenancy at will, to endure so long only as it should suit the' will and pleasure of the defendant to permit the plaintiff to continue in possession as his tenant; provided the jury should be satisfied from the evidence, that such was the understanding and agreement between the parties, and the plaintiff was to pay rent for the properly during the time he so occupied it.

But whether, under the facts proved, it was a demise of the premises for a year, or a less time, or at will, it was not competent for the defendant to determine it without previously serving at least three months’ notice in writing upon the tenant, the plaintiff, to leave and deliver up the possession of the premises to him at the expiration of such notice. For without such notice, no landlord can proceed, even by legal process, to recover the possession of the premises from the tenant; much less, to turn him out of possession by force and violence, without process.

As to the other point suggested, whether it is allowable for the jury in such a case, provided their verdict should be for the plaintiff, to award him damages beyond the damages actually sustained by him, we can only state the rule to be, that where theré are circumstances of aggravation attending the trespass on the part of the defendant, and the trespass itself is .gross, the jury may in their discretion award exemplary damages, if in their judgment the circumstances- of aggravation are such as to require it; of the measure of which they were the sole judges.  