
    Bella Hart, v. Finney & Jones.
    The lease to Finney & Slawson expired the first of September, 1843. Slawsom retired from the firm, and Jones succeeded him, as partner with Finney, in April, 1843. They continued to occupy the premises until December, 1845, without any agreement with the plaintiff, but paying the rent reserved by the leases-Held, that they thereby became tenants from year to year, and liable for the rent of the whole year, upon which they had entered, but not for interest on that rent.
    A stranger, whose tenancy begins after the expiration of the written lease, is not chargeable with interest on rent in arrear.
    The general rule is, that interest cannot be recovered on rent which accrue on a parole demise.
    
      Tried before the Recorder, in the City Court of Charleston, October Term, 1846.
    This was an action of assumpsit for rent, or use and occupation by the defendants, of a certain store and premises on East-Bay, let to them by the plaintiff, in which was claimed the sum of $600, as due for three quarters, ending on the 1st of September, 1846.
    The testimony was as follows:
    
      W. If. Hart, sworn—Is the agent of the plaintiff, who owns the house on East-Bay. Since his father’s death, has acted for his mother, (the plaintiff;) proved the execution of a written lease of the premises in question, from plaintiff to Slawson & Co., dated 6th July, 1842; term commencing 1st September, 1842, ending 1st September, 1843, at $800 per ann-um, payable quarterly. The firm of Slawson & Co., was composed of one Slawson, and Finney, the defendant. Slawson & Co. occupied the premises until the firm was dissolved, by the withdrawal of Slawson; after which Finney continued to occupy, under the lease, paying rent. After the co-partnership of Finney & Jones was formed, and the original term expired, witness received the rent from Finney & Jones. The rent, under the lease to Slawson & Co., had been paid in advance. Finney, after the dissolution of Slawson & Co., and the formation of the co-partnership of Finney & Jones, desired that after the expiration of lease, the rent should not in future be required in advance. Finney & Jones occupied the premises, and paid rent, by notes of Finney & Jones. Finney & Jones continued in possession, rent was paid up to the (December) quarter, 1845. Finney & Jones continued to occupy afterwards, and after dissolution of Finney & Jones, which took place in or about January, 1845, Finney wished to give up possession, and tendered the keys; possession was declined by witness, and the keys sent back. The key was left at Jone’s; witness has received the key since the 1st of September, 1846. Finney made an effort to have the rent reduced.
    
      Cross-examined. Proves certain receipts to Finney & Jones for rent; does not know when partnership of Finney & Jones commenced; did not apply to Jones personally; Finney attended to the business exclusively; witness received the rent in cash and notes from Finney; the notes were those of Finney & Jones; Jones was frequently absent from the city.
    
      S. Valentine, sworn—-Some where between the 1st and 6th of October, 1846, witness, in company with Mr. Hart, met Mr. Jones, (one of the defendants;) said to Jones you must remove some things from the store, still remaining there. Jones said if they are in your way, I will remove them.
    
      Cross-examined. Witness was with Mr. Hart, the brother of the witness first sworn.
    Here the plaintiff closed.
    On the part of the defendants, certain statements were made by Mr. Richardson, and were received as evidence by consent.
    1. That Jones and Finney went into partnership, in April, 1843.
    2. That the partnership of Finney & Jones was dissolved in December, 1845.
    Defendant also introduced a certain letter from S. Hart to Finney, dated 5th February, 1846; also, several receipts for rent.
    
      In reply.—Mr. Hart recalled; proves Finney ⅛ note to Hart of 5th February, 1846, to which his note to Finney of the same date was a reply; witness never gave any intimation that he accepted Finney alone, or relieved Jones from the liability for the rent; proves his note of the 2d March, 1846, refusing to accept the key. The key was sent back to Jones with this note, and left at Jones’ store, where it remained until after the 1st ofSeptember, 1846. Finney has failed and made an assignment. Mr. Jones is one of his preferred creditors. Finney removed over to the opposite side of the Bay previous to 2d. March, 1846. There was a quarter due 1st March, 1846, which witness endeavored to get; witness wrote to Mr. Jones, then in New-York, on the subject; letter dated May 4th, 1846; witness saw Mr. Jones after his return; witness acted under Mr. Yeadon’s advice in staying proceedings until the term expired.
    Here the testimony closed, and the case was argued to the jury by the respective counsel.
    
      The defendant’s counsel urged as objection to the plaintiff’s right of recovery, the positions taken in the two first grounds, in his notice of appeal. As far as the cast presented questions of fact, such as the occupation of the premises by the defendants, the time of their occupation, and the amount paid on account of rent, it was submitted entirely to the jury. The Recorder instructed them that the original lease to Slawson & Co., (the term fixed by it having expired,) was no longer important, except as affording evidence from which to ascertain the terms of the agreement which was to be implied upon continued occupation of the premises after the expiration of the original term. That the contract by one partner, in hiring a store or place of business for the co-partnership, was one clearly within his authority and binding upon the co-partnership, and that Finney & Jones having entered into co-partnership, and having occupied the premises from and after the expiration of the original lease to Slawson & Co., were clearly liable as co-partners during such occupation; and that the fact of their having paid rent, whether by cash or their notes, seemed conclusive evidence, both of their occupation and liability. That where there was, as in this case, a hiring for a year, if the tenant continued in the occupation, with the consent of the landlord after the expiration of the year, it ordinarily amounted to a renewal of the lease for another time, at the same rent, and that the tenant, unless released, would be liable for the whole year’s rent: and he submitted to the jury whether the plaintiff had released Finney & Jones, in this case, by accepting the keys, and taking possession of the store before the ending of the term.
    He also ruled, that where there is an implied renewal of an original lease in writing, by which the rent was payable quarterly, the party was entitled to interest upon the rent accruing for the subsequent occupation, as he was or would have been upon the original lease. The jury found a verdict for the plaintiff, with interest.
    The defendants appealed, and moved for a new trial, on the following grounds:
    1. Because there being a written and sealed lease in existence, between the plaintiff and Slawson & Finney, which had not terminated when J. S. Jones became Finney’s co-partner, and which was never determined afterwards; Slawson & Finney continued to be tenants, and the defendants could not be made liable, either under that lease, or for use and occupation.
    2. Because, by express provision, the lease determined absolutely, on the refusal of Finney to pay one quarter’s rent.
    3. Because interest was allowed on the quarterly instalments of rent.
    4. Because the verdict was in other respects contrary to law and evidence.
    F. D. Richardson, for the motion.
    Yeadon, contra.
    
   Frost J.

delivered the opinion of the Court.

The lease to Finney & Slawson expired the first of September, 1843. Slawson retired from the firm, and Jones succeeded him, as partner with Finney, in April, 1843. They continued to occupy the premises until December, 1845, without any agreement with the plaintiff, but paying the rent reserved by the lease. It cannot be questioned that the defendants hereby became tenants from year to year. It is a condition of such tenancy that neither party can determine it before the end of the year; nor then without reasonable notice; which, by the custom of Charleston, is three months. Godard, v. Rail Road Co., 2 Rich., 346. Whenever the tenant enters upon a new year, he is bound for that year, and so on, as long as he may occupy. Dod, v. Monger, 6 Mod., 215; Martin v. Watts, 7 Term R., 83; 6 Term R., 296.

It is contended, the tenancy of the defendants did not commence on the first of September, 1843, when the lease to Finney & Slawson expired; but in April, 1843, when their occupation began. They then entered on the unexpired tenancy of Finney & Slawson. The deed of the plaintiff demising the premises to Finney & Slawson, was not annulled; and until the end of the term granted by it, the plaintiff could not create a new tenancy, and did not, by the mere receipt of the rent from the defendants. Finney & Slawson were liable to an action of covenant for the rent under the demise to them; and the voluntary payment by Finney & Jones of one quarter’s rent, could not be pleaded in bar of an action for rent which subsequently accrued. Finney & Jones could not make themselves tenants without the consent of the plaintiff, and vacate the security she had taken. If the defendants had been the assignees of Finney & Slawson, and had held over, their tenancy would commence on the day on which it commenced under the lease; and notice to quit on that day only would be good. Castleton, v. Samuel, 5 Esp. R., 173; Collins v. Weller, 7 Term R., 478. The defendants having entered on the third year, commencing the first of September, 1845, and having occupiedthe premises for four months, are liable to the plaintiff for the year’s rent.

The general rule is, that interest cannot be recovered on rent which accrues on a parol demise. In Dervill v. Stephens, 4 M’Cord, 59, which was an action for use and occupation, against a tenant, who held over after the termination of a written lease, it was held that interest was recoverable on the arrears of rent. The rule which was enforced against the original tenant, subjecting him not only to the express terms of the lease, but also to interest on arrears of rent, as a legal incident, cannot be extended to a stranger, whose tenancy begins after the written lease is expired.

A new trial is therefore granted, unless the plaintiff releases the interest.  