
    John H. Semmes et al. v. The States. James L. Barbour et al. v. The Same.
    
      On the Proofs.
    
    
      Buildings in Washington are leased to the Interior Department by formal written instruments for a term of years, the rent payable quarterly. After the expiration of the term, the lessee continued to occupy and pay the rent ■reserved, hut soithout an express renewal of the lease. Congress then enact that if the Secretary can procure afire-proof building, "Re shall rent the same to take effect as soon-as tlie piresont lotting- can belogally terminated,” with a proviso that the claimant's buildings he retained if “made fire-proof by the owners thereof, to tlie satisfaction of tlio Secretary of the Interior.” He, on the 2ith August, 1876, notifies the landlords that possession will he given up and the leases terminated on the 15th Sepiemhernext ensuing. (The current quarter would end on the 30th September.) But the landlords refuse to accept the surrender of.the premises and bring their action for the rent.
    
    I.The nature and origin of tenancy at sufferance, tenancy at will, and tenancy from year to year examined and stated.
    II.Tenancy at sufferance, as known to the common law, was in practical effect but an interregnum, during which the landlord had an election (which the tenant had uot) to determine whether he would oust the tenat or hold him to renewed obligations under the expired lease.
    III. The rules of the common law concerning real property were adopted by the State of Maryland and became applicable to the Maryland portion of the District of Columbia until changed by statute. (Act 4th July, 1864, 13 Stat. L., 383; Hot. Stat. D. C., § 680, 681.)
    IV. Tenancy from year to year in the District of Columbia, though not specifically named, was abrogated by the Act 4th July, 1864 (13 Stat.L., 383; Rev. Stat. D. 0., § 680, 681.)
    V.It is not the purpose of that-statute to work a change of contracts. Though it provides that tenancy by sufferance shall be terminated by a notice to quit of thirty days, it leaves unimpaired the landlord’s common-law right of ousting the tenant or bringing ejectment at the exi>iration of the lease.
    VI.In oases of holding- over, which at the common law would havehe.cn. tenancies by sufferance, the statute takes away the landlord’s common-law right of an election and turns them into substantially tenancies at will, to he terminated only by the notice prescribed.
    VII.The statute does not give the tenant who holds over the unconscionable advantage of terminating the holding at his pleasure by the. mere act of removing from .the premises. On the contrary, it leaves undisturbed the principle of the common law, that where a tenancy may he terminated by the landlord by notice to quit, a -reciprocal right is given and obligation imposed upon the tenant.
    VIII.The operation of the statutory notice to quit upon the rent will he according- to the principle of the common law in like cases; if the landlord’s notice takes effect after the beginning- of a month or quarter, the rent being payable monthly or quarterly, he will - not he entitled to recover rent for that fraction of the month or quarter; conversely, a tenant will he liable for the rent of the entire month or quarter wherein he terminates his holding.
    
      IX. A statute {Appropriation Act 15th August, 1876, 19 Stat. L., 162) -which says that the lease of certain buildings “ shall be continued if the said buildings shall be made fire-proof by the owners thereof lo the satisfaction of the said Secretary within six months from the passage of lids act, without disturbing the use of the said buildings,” vests a complete discretion in the Secretary. It does not itself constitute a lease, nor does it require the Secretary to continue the occupancy until the buildings he made fire-proof.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. On the 10th day of August, 1871, the claimants, being owners of certain real estate in the city ofWashin gton, in the District of Columbia,, designated as “ The Seaton House,” executed a written lease thereof to the United States, for the use of the Department of the Interior, for the term of four years from and after the 15th day of September, 1871, upon an annual rent of #10,000, payable quarterly, and with a condition in the lease providing for its renewal for any further and additional term or terms that the United States might in writing elect, and with a covenant that the premises should be surrendered, at the end of such term or terms, in as good order and condition as at the beginning of the tenancy, ordinary wear and. tear excepted, it being the lease annexed to and forming part of the petition.
    II. In pursuance of this lease, the United States entered on the premises, occupied them for the use of the Pension Bureau of the Department of the Interior, and held possession of them for the four years specified in the lease, .and' also, without any express renewal of the lease, continued to hold over and occupy the premises after the expiration of the said term.
    III. In 1874, during the continuance of the original lease, the time of the quarterly payment of the rent was changed by a supplemental agreement between the parties from the 15th June to the 30th June, and the rent was then paid up to the 30th June; and from that time until the 30th June, 1876, the rent was paid for quarters beginning on the 1st of July, October, January, and April, and ending on the last day of September, December, March, and June.
    IY. On the 24th August, 1876, the defendants, being then in the full occupation and enjoyment of the premises, gave the following notice to the claimants:
    
      “ Department oe the Interior,
    “ Washington, I). 0., August 24th, 1876.
    “James L. Barbour, Edmonia Semmes, and
    “Alexander H. Semmes:
    “Please to take notice that on tbe 15tb day of September, A. D. 1876, tbis department will quit possession and remove from tbe building known as Nos. 624, 626, and 628 Louisiana avenue, and Nos. 619, 621, and 623 C street, in tbe city of Washington, District of Columbia, and terminate tbe lease now existing between you and tbe Interior Department for said property.
    “ Yery respectfully,
    “CHAS. T. G-OEHAM,
    
      “Acting Secretary.”
    And on 25tb August, 1876, tbe claimants gave tbe following notice to tbe defendants:
    “Washing-ton, D .0.,
    
      “August 25th, 1876.
    “ Sir : In reply to tbe communication of the 24th inst., signed Chas. T. Gorham, Acting Secretary,’ notifying us that tbe Interior Department will quit possession and remove from tbe gTound and premises leased from us, and known as tbe Seaton House, and terminate tbe lease thereon, on the 15th day of September, A. D. 1,876, we respectfully notify you that we will not accept tbe surrender of said premises on said notice, neither will we consent to tbe termination of said lease otherwise than according to law.
    “Inviting youx attention to tbe act of Congress entitled Am act making appropriations for tbe legislative, executive, and judicial expenses of tbe government for tbe year ending June 30,1877, and for other purposes,’ approved August 15,1876, we hereby notify you that we shall claim all our legal rights under and by virtue of tbe provisions of said act relating to rent of buildings for tbe use of tbe Pension Office and Bureau of Education, as well as under tbe existing lease therein expressly mentioned and referred to.
    “We are ready and willing and have already prepared to. make said building ñre-proof, &c., and fully to comply with and perform all tbe requirements of the aforesaid provisions of law, so far as tbe same refers to tbe owners of tbe Seaton House or imposes any obligation or duty upon them, and we respectfully demand like compliance with tbe law on tbe part of tbe Secretary of Interior.
    “We are, respectfully, yours, &c.,
    “ JNO. H. SEMMES and “WILLIAM BRAWNEE.
    “To tbe Secretary oe Interior,
    “ Washington ID. (7.”
    
      Y. Notwithstanding this notification and the protests of the claimants, who refused to receive the surrender of the property, the premises were vacated by the government, in pursuance of the aforesaid notice, on the 15th day of September, 1876.
    YI. The defendants paid rent for the premises quarterly, at the rate of $10,000 a year, from September 15,1871, to September 15,1876, but paid no rent for any time after the last-mentioned day, when they removed from the premises.
    YII. The defendants, on the 15th September, 1876, tendered to the claimants the possession of the premises, and the claimants refused to accept the same; and the premises have continued vacant and unoccupied to the time of the bringing of this action.
    YIII. During the occupancy of the premises by the government, many changes and alterations were made in the buildings to accommodate them to the purposes and supposed necessities of the Pension Bureau; and some damage also seems to have been done beyond the ordinary wear and tear. It was agreed and stipulated by the parties on the trial that the damages so caused to the claimants by the defendants should stand at the sum of $7,275, and the court accordingly finds that amount.
    IX. Since the premises were vacated by the government,, damages have been occasioned to them, as to which it was agreed and stipulated upon the trial that the government would be liable for them under its lease to the extent and amount of $1,224.25, if such lease continues to be binding and operative as set up and claimed in the petition, but not otherwise; and the court, in pursuance of such stipulation, so finds the fact to be.
    
      Mr. M. F. Morris for the claimants:
    It is a well-settled rule of the common law, which is in force in this District, that, when a tenant for a term holds over, the landlord may elect to consider him as a tenant from year to year on the terms of the original lease. (Yrooman v. McKaig, 4 Md., 450; Filler v. Roberts, 13 S. & R., 60; Bacon v. Brown, 9 Conn., 334; Brown v. Knapp, 1 Pick., 332; Frotvty v. Wood, 2 Hill, S. O., 367; Gonioay v. Starlcweather, 1 Denio, 113; Be Young v. Buchanan, 10 Gill & Johns., 149; Bemphill v. Flynn, 2 Barr, 144; Taylor’s Landlord and Tenant, §S 65, 60; Bigby v. Atldn-son, 4 Camp., 275; Riggs v. Bell, 5 Term Itep., 471; Webber v. Shearmcm, 3 Hill, 547.)
    
      It is equally well settled, tbat a general letting for no determinate period of time, but by which an annual rent is reserved, payable quarterly or otherwise, is a lease from year to year, so long as both parties idease. (Taylor’s Landlord and Tenant, §§ 59-61; Lesly v. Randolph, 4 Eawle, 123; Squires v. Huff, 3 A. K. Marsh., 17; Sullivan v. Rnders, 3 Dana, 66; Hull v. Wood, 14 Mee. & W., 682; Nichols v. Williams, 8 Cowen, 75; Jackson v. Salmon, 4 Wend., 327; 4 Kent’s Comm., pp. 111-112.)
    ' And where the hiring is by the year, and the landlord suffers the tenant to remain, and the tenant continues to occupy the premises, it constitutes a tenancy from year to year upon the terms of the lease and subject to all its covenants. (Hujier v. United States, 4 C. Cls. E., 407, 414; Taylor’s Landlord and Tenant, §§ 58, 59) 61, 466; Salisbury v. Hale, 12 Pick., 416; Lemarue v. Dougherty, 35 Penn., 45; Desford v. Walbridge, 15 N. Y., 374; Hoofy. Ladd, 1 Or. Oir. C., 167.)
    . That all the parties to this lease understood the holding to be one from year to year is very plain from all the circumstances, as the payment of an annual rent in quarterly installments, and the statement of the Secretary of the Interior himself, in his annual report to Congress in December, 1875, as well as the very notice or pretended notice under which it was sought to terminate the tenancy. Now, a yearly tenancy cannot be terminated, under the common law, either by the lessor •or the lessee, against the will of the other party, except by a notice in writing of six months, to be given by the party proposing to terminate the lease. And a notice proposing to. terminate the lease within any shorter period is a mere nullity, and worthless for any purpose whatever. (Taylor’s Landlord and ‘Tenant’ §§ 467,469; 4 Kent’s Comm., pp. Ill, 112; Jackson v. Salmon, 4 Wend., 327; Webber v. Shearman, 3 Hill, 547; Leigh-ton v. Theed, 1 Ld. Eaym., 707; Doe v. Snowden, 2 Blacks., E., 3224; Doe v. Porter, 3 Term Eep., 13; Porter v. Constable, 3 Wils., 25; Right v. Darby, 1 Term Eep., 159; Pilis v. Paige, 2 Pick., 71; Logan v. Herron, 8 S. & E., 458,465; Johnstone v. Huddlestone, 7 D. & E., 411.)
    The notice to quit, whether given by one party or the other, must not only be given six months or more before the expiration of the year, but must also specify that it is to take effect at the end of the year or of the tenancy; and a notice not so worded is null and void. (Taylor’s Landlord and Tenant, §§ 475-477, 482; Logan v. Serrón, 8 S. & B., 458; Johnstone v. Suddlestone, 7D. &B., 411; Lamar v. McScmee, 10 Grill & Joins., 110; Mollett v. Brayne,-2 Gamp., 103; Doe y, Mihoard, 3 Mee. & W., 328; Timmins v. RciwUnson, Burr., 1603; 2 Man. & B., 439.)
    Tie notice given in tlis instance, on tie 24tl of August, 1876, of an intention to vacate tie premises and terminate tie lease on tie 15tl of September, 1876, being a notice of 22 days only, is utterly worthless for any purpose whatever..
    Tie only statutory provision in force in tie District of Columbia tlat can be supposed to lave any bearing on tlis subject is an Act of Congress of July 4,1864 (13 Stat. L., 383; Bev. Stat. IT. S. D. 0. §§ 680, 681.)
    But tlis act las no application to tie present case. Tie tenancy in question lere was one from year to year, and neither a tenancy at will nor a tenancy by sufferance. Tie lolding over was rigltful lere for two reasons: 1st. Because tie lessors recognized it and received rent on account of it, and sucl recognition at common law always amounts to tie creation of a tenancy from year to year, as shown; and, 2d. Tie lessees lad tie right, by tie terms of tie lease itself, to hold over for any sucl further term as they might elect. Even if it was originally a tenancy by sufferance, after tie termination of tie first term of four years provided for in tie lease, it is well-settled law tlat, “if tie lessor receives rent or tie lessee be permitted to continue on tie land for a year, tie tenancy by sufferance will be turned into a tenancy from year to year.” (Taylor’s Landlord and Tenant, § 65; Sollingsioorth v. Stennett, 2 Esp., 716; Rowan v. Little, 11 Wend., 619; Jaelcson v. Salmon, 4 Wend., 327.)
    But whatever doubt there might be, if any at all, upon this subject, is removed by tie Act of Congress of August 15,1876 (19 Stat. L., 162), which disposes of tie whole case.
    Tlat act provides tlat tie tenancy of these premises by tie United States should continue, if within six months thereafter tie owners should male them fire-proof, and tlat to terminate any lease whatever of tie premises nine months’ notice should be given by tie Secretary of tie Interior. It is too plain, therefore, for argument that tie tenancy could not legally lave been terminated at all within fifteen months after the passage of tlis act (August 15, 1876); tlat is, before-the 15tl day of November, A. D. 1877; and in tbe face of the readiness of the claimants to comply immediately with the act of Congress on their part it was certainly a high-handed assumption of power by an Acting Secretary of the Interior deliberately to ignore and disregard the provisions of that act.
    The tenancy, therefore, existing between the claimants and the United States has never been legally-terminated, or at least was not terminated prior to the filing of the petition in this cause.
    
      Mr. A. D. Robinson (with whom was the Assistant Attorney-General) for the defendants :
    The tenancy under the leases expired September 15, 1875. The leases provided how they should be renewed or extended if the defendants should so “ determine and in writing.” This was never done. Claimants admit there was no “express renewal.”
    The term having expired, the subsequent occupation made the government tenants at sufferance by the provisions of 13 Statutes at Large, 383, cited in claimants’ brief — not a common-law tenant at sufferance, but by statute, for the purpose of taking it out of the requirements of the common law.
    Leases and rentings in the District of Columbia stand entirely upon the statute, which is a tenaucy at sufferance, liable to be terminated at any time on thirty days’ notice by the landlord or reasonable notice by tenant, no matter whether any rent is paid or not. The paying and receiving rent makes no agreement as to time, and the law now under such circumstances makes no agreement for the parties. It still remains only a tenancy that may be terminated at any time. The payment of rent does not change it into a tenancy from year to year, and does not, like the common law in some cases, make a contract the parties never intended to make. (Ellis v. Paige, Pick., 45; Hollis v. Pool, 3 Met., 350; Kelly v. Waite, 12 Met., 300; Davis v. Thompson, 13 Me., 214; Whitney v. Swett, 2 Foster, 10, cited on this point in 2 Smith’s Lead. Gas., 195.)
   Nott., J.,

delivered the opinion of the court:

At the common law the landlord was entitled to possession at the expiration of a lease, and might oust the tenant or bring ejectment without notice to quit or demand for possession being first made. If, howeAer, tbe landlord suffered the tenant to remain in possession after the expiration of the term, the common law intervened by requiring that the tenant should not be subjected to an action in trespass (though he might be to an action in ejectment) unless an entry or demand were first made, and by declaring that as the tenant was in possession under lawful title, the continuance of possession should not be deemed unlawful until the landlord by some act, like an entry, should put the tenant in the wrong. This shadowy estate was termed tenancy at sufferance. Practically, its effects were that the landlord might obtain at pleasure — that is, without notice — possesssion of the premises, and might recover for the period of the holding over as for use and occupation a proportional part of the rent. Practically, it differed from the holding of a trespasser only in this, that the landlord by his acquiescence could at any time base upon it the relation of landlord and tenant, which he could not establish at will against a mere trespasser, and that the tenant could not be subjected to an action in trespass before entry or demand.

If, however, the landlord, continuing to suffer the tenant to retain the occupancy, recognized him as tenant by any act of consent, such as the payment and acceptance of rent, there arose against the landlord the presumption of a continued privity between him and his tenant, and'the common law again intervened and raised the estate from a tenancy at sufferance to a tenancy from year to year. As farm holdings originally furnished the chief subject-matter of this branch of litigation, and as in agricultural communities the transactions of men are carried on with fewer precautions than in mercantile business, farmers frequently continuing to hold, without the formality of a new lease, long after the original leases have expired, the common law in furtherance of justice and in tender regard of the weaker party, the tenant farmer, attached to these tenancies from year to year a condition not to be found in the original agreement. This condition was that neither'party should terminate the tenancy except by a notice of half a year. The rule was neither arbitrary nor artificial, being manifestly grounded on the sound reason that upon the one hand ho needless time should be prescribed, and, on the other that the farmer should receive such notice as would enable him to forego the planting of spring or fall crops that would inure to the benefit of his landlord. Like most of the principles of the common law when limited to the circumstances which called them into existence, this rule as applied to its primitive subject-matter was eminently wise and just.

There was, however, a class of cases in which the original lease did not furnish a foundation whereon to plant a tenancy from year to year; that is to say, cases wherein the original letting was not annual. As to such cases, the rule was that the continued tenancy, implied from the holding over of the tenant on the one side and the consent or recognition of the landlord on the other, should be deemed a tenancy at will. Hence the expression usually found in the books, that if consent can be inferred from any act of the landlord, “ a tenant at sufferance will become a tenant at will or from year to year."

But while it is somewhat heedlessly said that no tenancy at will or from year to year arises from the holding over of the tenant until there be a recognition of a continued tenancy by the landlord, as from the acceptance of rent, and that there is no privity between the parties, the inaction of the one being laches and the possession of the other wrongful, yet it by no means follows that the tenant at sufferance was released from any obligation of his lease, nor that he could set up this want of privity between his landlord and himself, nor that he could say that his possession was wrongful. On the contrary, if he held over but for a single day, he thereby assumed the risk of being held to the obligations of a tenant at will or from year to year, as might be determined from the nature of the previous lease. As we have recently had occasion to say in another case (Morgan et al. v. The United, States, ante, p. 319), the landlord might recover at the agreed rate (Cobb v. Stokes, 8 East, 358), either as rent Ibbs v. Richardson, 9 Ad. & E., 849), or for use and occupation (Christy v. Tancred, 7 Mee. & We., 127); and the tenant, unlike the landlord, had no election to determine whether he should be treated as a tenant or as a trespasser (Conway v. Starkweather, 1 Denio, 113); nor could he throw off the character of tenant, “however onerous it might be,” nor say that he held upon any other terms than those prescribed by the original lease (Schuyler v. Smith, 51 N. Y., 309); and though he voluntarily removed from the premises while his rights were still in the inchoate condition of a tenant at sufferance, yet nevertheless the landlord could hold him for the period past and subsequent as completely as if be bad become a tenant at will or from year to year (Id). In other words, tenancy at sufferance was-but an interregnum, during which the landlord bad an election to determine whether he would oust the tenant or hold him to renewed obligations under the expired léase.

In most of the States of this Union the common law became the law of landlord and tenant. Nevertheless in this country the great body of farmers hold their land in fee-simple, and the great body of tenants are to be found iu, city communities. It was inevitable, therefore, that statutes should sooner or later come to change the rules of the common law, and adapt the law of landlord and tenant to the wants and conditions of this new order of affairs. In New York, for instance, the statute law provides generally for the State at large that a tenancy at will or at sufferance may be terminated “by the landlord’s giving one month’s notice in writing to the tenant, requiring him to remove,” and specially for the city of New York (where the custom is to make the 1st of May the time when leases begin and terminate), that “ agreements for the occupation of lands or tenements,” “ which shall not particularly specify the duration of such occupation, shall be deemed valid until the first day of May” next ensuing (1 Rev. Stat. N. Y., p. 744, § 1-7).

The patient and .elaborate research of the learned counsel for claimant has shown with great clearness that the rules of the common law were adopted by the State of Maryland, and consequently became applicable to real property in this portion of the District of Columbia. But here as elsewhere a statute came to change the common law, and the principal question which we have now to determine is whether the statute controls the case. That statute is the Act áth July, 1804(13 Stat. L., 383; Rev. Stat. D. C., § 680, 681), and is in the following terms:

“ § 680. That a tenancy at will shall not arise or be created without an express contract or letting -to that effect, and all occupation, possession, or holdiug of any messuage or real estate without express contract or lease, or by such contract or lease the terms of which have expired, shall be deemed and held to be tenancies by sufferance.
“ § 681. All estates at will and sufferance maj- be determined by a notice, in writing, to quit, of thirty days, delivered to the tenant in hand, or to some person of proper age upon the premises, or, in the absence of such tenant or person, then such notice may be served by affixing the same to a conspicuous part of the premises, where it may be conveniently read.”

It is contended by tbe learned counsel for tke claimants that the statute leaves tenancies from year to year unimpaired in the full vigor of the common law. If it had stopped with the words “tenancies at will,” that construction would not be unreasonable. But when the statute, without, it is true, specially enumerating tenancies from year to year, specifically says “ all occupation, possession, or holding,” after a lease has expired, “ shall be deemed and held to be tenancies by sufferance,” it seems clearly intended to include in whatever change it effects every form of holding over, and leaves no room upon which the most liberal construction can found an exception. Tenancy at will arose at the common law by other processes than the holding over of the tenant, and the first line of the statute, as it includes, may be construed to refer to them. The second clause of the same section manifestly embraces all tenancies arising from or founded on the holding over of the tenant, whether they be tenancies at will or tenancies from year to year. Before the statute, if the tenant held over and the landlord recognized a continued relation between them, there arose, by implication of law, a continuance of the former lease, which might be either tenancy at will or tenancy from year to year, as the nature of the original lease required. It was the purpose of the statute not to strike out one or the other of these resulting leases, but (1) to abolish the common-law necessity of establishing by evidence the landlord’s recognition of or consent to the continuing tenancy; and (2) to reduce all cases of holding over to a common plane of legal certainty.

But the framers of the statute, by borrowing two well-defined terms from the common law, without due regard to the meaning that the common law attached to them, have not only brought together things incongruous, but have actually applied the terms in an exactly opposite sense to their common-law meaning.

In the first place, when the statute defines all cases of holding over as “ tenancies by sufferance,” it is,*if taken literally in its common-law sense, equivalent to saying that they should be no tenancies at all. As we have seen, tenancy at sufferance established no privity between the parties, conferred no right upon the tenant, was accounted the laches of the landlord, and amounted to a mere period of abeyance, during which the landlord might do what he pleased. And this was not ancient or obsolete common law; for tbe latest writer on landlord and tenant (Taylor, § 65) says: “A tenant at sufferance bas only a naked possession, stands in no privity to tbe landlord, cannot maintain an action of trespass against bim, is not entitled to notice to quit, nor is be liable to pay rent. For be bolds by tbe lacbes of tbe landlord, wbo may enter and put an end to tbe tenancy whenever be pleases.” We tbinb tbis is stated some-' wbat too broadly; but it shows very clearly that tbe statute never could have been intended to reduce all cases of tenancy by bolding over to tbe inchoate condition of tenancy at sufferance as defined by tbe common law. In tbe second place, it was a distinctive feature of tenancy at sufferance that tbe tenant bad no right to notice to quit, and that tbe landlord might oust bim ■or bring ejectment when be pleased, or might sue bim as a trespasser immediately upon a demand for possession. Here tbe statute expressly takes away that common-law right of tbe landlord. In tbe third place, it was a distinctive feature of tenancies at will that tbe landlord could not determine tbe tenancy at pleasure, but, while be might exercise bis will when be pleased, must do so by means of a reasonable notice to tbe tenant; which is precisely tbe nature of tbe tenancy which tbe statute here creates. In a word, tbe statute abolishes tenancies at will eo nomine, and immediately proceeds to create tenancies at will in substance; conversely it declares all tenancies by holding over to be tenancies “by sufferance,” and in tbe next section abolishes tenancies by sufferance and turns them into tenancies at will. Tbe question of interpretation is whether tbe statute shall be interpreted in accordance with tbe name or tbe thing— in accordance with tbe shadow or tbe substance.

Tbe framers of tbe statute rindoubtedly intended to do away with tbe necessity of introducing evidence to show tbe consent of tbe landlord in cases of continuing tenancy, and the distinction of notice in cases of tenancy at will and tenancy from year to year; and tbe well-known fact was probably in ikeir minds when draughting tbe statute that at common law tbe landlord might oust the tenant at sufferance without notice to quit; but Congress could never have intended to reduce all cases of a mutual continuing tenancy to tbe inchoate and one-sided condition of common-law tenancies at sufferance, nor to have reversed tbe condition of affairs by shifting all of tbe losses and obligations to tbe other party. What tbe first section of tbe statute means, is, 1st, that all implied tenancies at will are abolished except such as spring out of the holding over of a tenant; 2d, that all tenancies which would have been tenancies by sufferance at the common law are to be deemed tenancies at will; 3d, that the landlord may determine such tenancies at will by notice to quit in the form and manner prescribed by the succeeding' section.

The interpretation which we give to these provisions of the statute is this:

1. It is not the purpose of the statute to change the contracts which parties have made for themselves. It is not intended to turn tenancies for a year into tenancies for thirteen months; nor to enable the tenant who rents a building for .one month, by the mere act of holding over, to change his lease into a lease for two months. In other words, we have no doubt that the statute leaves unimpaired the landlord’s common-law right of ousting the tenant or bringing ejectment at the expiration of the lease.

2. But in cases where the tenant holds over with the assent of the landlord — cases which at common law would have been tenancies at sufferance — the statute takes away the landlord’s common-law right of an election and turns such cases into what the common law would have called tenancies at will; and these the landlord may, and may only, terminate by giving the notice to quit in the form and manner prescribed by the second section (§ 681).

3. The statute should not be construed to take away by implication the landlord’s common-law right to have such a tenancy terminated on the part of the tenant by reasonable notice; nor does it by implication give the tenant who holds over and enjoys the occupation the unconscionable advantage of terminating the holding at his pleasure by the mere act of removing from the premises. On the contrary, the statute, by a fair and reasonable implication, places both parties upon an equal footing, and leaves undisturbed the principle of the common law, that where a tenancy may be terminated by the landlord by notice to quit, a reciprocal right is given and obligation imposed upon the tenant of terminating it at his will by a like notice.

AYe are also of the opinion that the operation of the statutory notice upon the rent will be according to the well-established principle of tbe common law in like cases; that is to say, when the landlord delays giving notice, so that it will not take effect until after the beginning of a month or quarter, where the rent is payable monthly or quarterly, he will not be entitled to recover rent for the portion of the month or quarter into which by his laches he has permitted the tenant to continue; and, conversely, where a tenant in like manner delays giving notice, he will be liable for the rent of the entire month or quarter wherein he terminates his holding.

And in accordance with this interpretation we hold in this case that the tenancy of the defendants might have been and was terminated by the notice which they gave on the 24th August, 1876, but that their obligation to pay rent continued until the end of the current quarter; that is to say, to the 30th September, 1876.

An additional question is raised by the counsel for the claim-' ants, which is founded upon the following provision of the Appropriation Act 15 August, 1876 (19 Stat. L., 162), in relation to this building:

That if the Secretary of the Interior can procure a fire-proof building of suitable accommodations, for a rent not exceeding the sum hereby appropriated, he shall rent the same, to take effect as soon as the present letting can be legally terminated: And provided, That the lease of the present buildings shall be continued if the said buildings shall be made fire-proof by the owners thereof, to the satisfaction of the said Secretary, within six months from the passage of this act, without disturbing the use of the said building; and that any lease made for said building shall expire on nine months’ notice from the Secretary of the Interior.”

But the Supreme Court has determined that such a statute does not constitute a contract (Gilbert & Secor’s Oase, 8 Walt, 358), and we are fully agreed that the statute here vested a complete discretion in the Secretary of the Interior. It was for him to determine primarily whether the building could be made fire-proof without disturbing the defendants’ user of the premises, and next to determine whether the alteration would effect the desired change. The first of these questions he necessarily had to determine before the work was begun, and the second he could possibly determine then also. Be that as it may, the discretion was vested in him, he exercised it, and no court can review the wisdom of his decision.

It being conceded by tbe defendants tbat the claimants should recover for certain injuries done to the building, the judgment of the court is that the claimants recover:

For rent from the 16th to the 30th September, 1876, inclusive. $416 66

For damage done to the building beyond ordinary wear and tear... 7,275 00

Amounting in the aggregate to. 7, 691 66

Drake, Ch. J. was absent when this case was heard, and took no part in the decision.

In the case'of James L. Barbour et al., heard and decided at the same time, judgment for the claimants for $1,628.28 was «ordered to be entered upon the facts as above given.  