
    Delshman vs. Barry.
    A special finding of the Circuit Judge, in the absence of any showing to the contrary, will be presumed ¿0 have been made at the request of one of the parties to the suit, and will be taken as a part of the record.
    A leased lands of B for the term of one year, with the privilege of having the same three years, at the option of lessee; the latter covenanting “ at the end of said term to deliver up quiet possession of the premises.” The lessee continued in possession five days after the expiration of one year, when suit was brought to recover possession by lessor. Held, that the continuance in possession was sufficient notice of the intention of the lessee to remain in possession.
    Error to Branch Circuit.
   Opinion by

Christiancy, J.

A preliminary objection was urged for defendant in error, that the special.finding of facts by the Circuit Judge constituted no part of the record, and § $ 2436 and 2437, O. L., were cited, as well as the Laws of 1863, p. 183. By these acts the Circuit Judge is not indeed compelled to specify the facts found, and ‘his conclusions of law thereon, unless requested by one of the parties. But when the case is tried before him without a jury, it is competent and well for him, in making his written decision, to specify the facts found, and his conclusions of law thereon. If this were not so, and a request were necessary, the request would he presumed, in the absence of any showing to the contrary, in a qase where a written finding has been filed.

A question arose whether the lessee, in order to avail himself of the privilege of a longer term than one year under the lease, was bound to notify the lessor of such intention at the expiration of the first year, or before suit brought by the lessor to oust him. The lease was for the term of one year, with the privilege of having the same three years, at the same rent, at tbe option of the lessee. And the lessee covenanted, “ at the end of said term, to deliver up quiet possession of the premises.” When suit was commenced, he had continued in possession five days after the expiration of one year, without otherwise giving notice of. his intention to avail himself of the option of the longer term. The Court below held that his remaining over was not an exercise of the privilege, but that he must give notice when the next year commenced, or at least before suit was instituted.

Held, that the continuance in possession was sufficient notice in this case. This possession will be presumed to have been intended by the lessee as lawful, according to the agreement that he might hold longer than one year, rather than wrongful in violation of his engagement that, at the end of the term which he elected to take, he would deliver up peaceable possession.

Judgment below reversed, with costs, and judgment ordered for defendant.  