
    Lewisburg.
    Crawford v. Morris.
    (Absent Brooke, J.)
    1. Whether parcel or not of the demised premises, if not ascertained by the written contract, is always open to extrinsic evidence.
    2. P being the owner of two adjoining tenements, leased to M for one year one of them and the cellar under the other. During the year P sold both the tenements to S; and then S and M signed a memorandum for a lease for another year. This memorandum- provided for certain repairs to the tenement in possession of M; and that when the repairs were finished, M was to give 85 dollars yearly rent for it. Upon the question whether the cellar under the other tenement was embraced in the agreement. Held : That parol proof was admissible to shew that the tenement rented by M from S was the same that was rented by him from P, and that the cellar was indispensable to M for the business in which he was engaged; and this being shewD, the lease from P to M was admissible evidence to shew that the cellar under the other tenement was included in the lease from S to M.
    
    3. The agreement between S and M, provided as follows: “ M is to get the house at the price herein stated, for one year after his present year expires, and is to have the preference each succeeding year thereafter.” Held : This did not create a tenancy from -year to year, and so entitle the tenant to the legal notice to quit.
    4. In a joint action of trespass against several who plead jointly, if the jury find them guilty jointly, they should assess the damages jointly against all.
    5. If in such case the jury by mistake assess several damages, the plaintiff may cure the defect by entering a nolle prosequi as to some, and taking judgment against one.
    6. In such a case it is not correct for the Court to instruct the jury, that they may sever in the damages, and assess respectively what in their opinion each party found guilty ought to pay.
    7. In such a case the jury should assess against all who are found guilty, the amount which they think the most guilty should pay.
    8. In such a case therefore an instruction to the jury that they may sever the damages, is not an error of which a defendant can complain in an Appellate Court; though the plaintiff may.
    9. When a trial of a cause is had before a jury, and they cannot agree upon a verdict, or do agree upon a verdict which is set aside by the Court, and a new trial awarded, upon the new trial any opinion expressed by the former jury, or by the Court upon the former trial, is improper for the consideration of the jury.
    10. If an opinion or instruction of the Court given on a former trial is relied on before the jury on the second trial by the party in whose favour it was given, without asking for such opinion or instruction from the Court, and a verdict and judgment are rendered for him, the Appellate Court will consider the opinion or instruction so relied on ; and if it is erroneous, will reverse the judgment and award a new trial.
    
      John W. Pitman being the owner of two adjoining tenements in the town of Staunton, he in 1841, made an agreement with Benjamin Morris, by which he rented to Moms one of these tenements, and the front cellar under the other, for one year. In 1842 Pitman sold these tenements to John G. Sowers; Morris being in possession as tenant under his agreement with Pit-man. And in September of that year a memorandum for an agreement between Sowers and Morris was drawn up and signed by them, which provided for certain repairs to be made to the tenement he occupied, and that when the repairs were finished, Morris was to give 85 dollars yearly rent for it. And then this clause was added: “ B. Morris is to get the house at the price herein stated, for one year after his present year expires, (say 1st June 1843,) and is to have the preference each succeeding year thereafter.” This paper contained mere heads of an agreement which was to be afterwards drawn up, and it did not pretend to define what was embraced in it, except that it referred to the premises in the possession of Morris, but did not specially allude to the cellar under the other tenement.
    In 1843, John C. Sowers died, and Hugh John Graxoford qualified as his executor. He advertised the two tenements aforesaid to be sold in May 1844, when the tenement not occupied by Morris was purchased by Duvid A. Pitman. Morris not having received three months’ notice to quit at the end of the year, claimed that he was entitled to hold the cellar in this tenement until June 1845, and refused to surrender it; whereupon Crawford, with David A. Pitman, William Pitman and John J. Clarke, went into the cellar and removed therefrora the property of Morris into the cellar under the tenement which Morris occupied, and shut up the door between the' cellars, and delivered possession of the premises to the purchaser Pitman.
    
    In 1845, Morris instituted an action of trespass against Crawford, the two Pitmans and Clarke. The declaration set out a joint trespass, and the defendants appeared and plead jointly “not guilty;” and on this plea the issue was made up, and the cause was tried.
    The cause was first tried in November 1846. On this trial the defendants took two bills of exceptions to opinions of the Court. The first was to an instruction to the jury that the lease from Sowers to Morris created a tenancy from year to year, and entitled Morris to the requisite legal notice to quit. After this instruction was given, the jury found a verdict for the plaintiff for 270 dollars 84 cents damages. Thereupon Crawford, by his counsel, moved the Court for a new trial, on the grounds, first, that the verdict was contrary to the evidence ; and second, that the damages were excessive. And the counsel for the other defendants moved the Court to set aside the verdict as to them, because as to them it was founded in mistake; the jury having intended to acquit them, and to find damages only against Crawford. And the Court being satisfied that the verdict as to these parties had been qccasioned by the mistake of the clerk, who was requested to put it into form, did set it aside as to these parties, “ not because the Court doubted the propriety of the verdict finding all the defendants guilty, but because the jury did not intend so to find, but by mistake was made to speak that language.” — “ But the Court being of opinion that the verdict as to the defendant Crawford, was neither against evidence nor excessive, and the plaintiff insisting upon retaining in full force the verdict against him, though set aside and a new trial awarded as to the other defendants, refused to set aside the verdict and award a new trial as to him.” And to this opinion of the Court, Crawford excepted. Subsequently, however, the Court, for reasons which are not stated in the record, set aside the verdict as to Crawford as well as the other defendants.
    The cause came on again to be tried in June 1847, when the jury found the defendants guilty, and assessed the plaintiff’s damages as against Crawford at 300 dollars, and as against each of the other defendants at three dollars. And the plaintiff electing to take a judgment for the damages assessed against the defendant Crawford, and to enter a nolle prosequi as against the others, the Court gave a judgment against Crawford for 300 dollars and costs, and in favour of the others, with their costs.
    On this trial, the defendants took three exceptions to opinions of the Court. First. After the plaintiff had introduced in evidence the agreement between Sowers and himself, he offered in evidence the agreement between Pitman and himself, which was objected to by the defendants. The Court sustained the objection, but held that the plaintiff might examine parol evidence to prove that both agreements referred to the same property ; and upon proof of that fact by parol evidence, the agreement between Pitman and Morris might be read as evidence to the jury. To the introduction of this parol evidence, the defendants objected, but the Court overruled the objection. The plaintiff then introduced a witness, who proved that Soiuers told witness that he had leased the property to the plairitiff. That at that time the plaintiff was in the occupancy of the premises leased of Pitman, including the cellar under the adjacent tenement, in which the alleged trespass was committed. That the storehouse of the plaintiff, without said cellar, would have been unfit for the purpose of his business, and that said cellar was a necessary appendage to it as a store or grocery.
    Upon the introduction of this evidence, the Court permitted the contract between Pitman and Morris to be read as evidence of the extent of the premises intended to be leased and embraced by the memorandum of lease between Sowers and the plaintiff. To the opinion of the Court admitting the parol evidence, and the said last mentioned agreement, the defendants excepted.
    After all the evidence had been heard on both sides, and after the junior counsel of the plaintiff had opened the argument of the cause on his behalf, and the counsel for the defendants had concluded their arguments, and the senior counsel for the plaintiff had progressed for some time in his argument, that counsel informed the jury, that the right of the plaintiff to maintain the action, was an adjudicated question, because the Court, at a former trial of the cause, had given instructions to that effect to the jury which then tried the cause, which instructions he professed then to hold in his hand ; but which he had not moved the Court to give at the pending trial, and stated that he did not intend to move for. The counsel for the defendants objected to any allusions by the counsel for the plaintiff to any instruction or any statements of any opinion given or expressed by the Court at the former trial, unless the said counsel would then ask for the said instructions from the Court, so as to enable the defendants to except if the instructions were again given; and for the further reason, that the evidence, both oral and documentary, was not the same in all respects as that introduced at the former trial, and the Court might have changed its opinion on the questions. The Court, however, refused to interrupt the counsel in his argument, and permitted him to state to the jury and rely upon any instruction or opinion which the Court had given or expressed at the former trial, or on the motion for a new trial: And said that he would not require the plaintiff’s counsel to ask for instructions on the questions of law, which had been ruled by the Court at the former trial; or to call for a repetition of any opinion expressed by the Court on the motion for a new trial. But that the counsel for the defendants might, if they thought proper, after the plaintiff’s counsel had concluded, move any instructions they might wish, for the purpose of negativing any instruction or opinion given or expressed at the former trial. And with the leave of the Court, the counsel for the plaintiff did state to the jury and rely on the instructions given and opinion expressed by the Court at the former trial, holding in his hand at the time the paper which he said contained the same. The defendants again excepted to the opinion of the Court, and set out the two exceptions taken at the former trial, containing the instructions then given and the opinion then expressed.
    After the jury had retired to consider of their verdict, and been out for a part of two days, they came into Court, and enquired of the Court if it was lawful for them to assess separate damages against the defendants, or such of them as they should find guilty. In reply to which enquiry, the Court informed them, that if they could not agree on a verdict of joint damages, they might find a verdict severing the damages, and assessing against each of the parties found guilty, what they were of opinion each ought to pay; and that it would be for the plaintiff to elect for which assessment he would take a judgment: entering a nolle prosequi as to the rest. To this instruction the defendants excepted, and the verdict and judgment having been rendered as before stated, the defendant Crawford applied to this Court for a supersedeas, which was granted.
    
      The case was argued in writing by Stuart, for the ap ■ pellant, and Michie, for the appellee.
    For the appellant:
    1. The Court erred in instructing the jury, that they might in an action for a joint tort, assess several damages against the defendants. Hill, Sfc. v. Goodchild, 5 Burr. R. 2790, in which this point was adjudicated by the King’s Bench, after great deliberation. It was there held, that in an action for a joint tort, the jury could not sever in their damages. See also 2 Greenleaf Evi. sec. 277, and the numerous cases there cited.
    But even if such an irregular finding could be cured after verdict, the Court erred in instructing the jury to be guilty of such an irregularity.
    2. The Court erred in permitting the senior counsel in his closing argument, to refer to its opinions and decisions expressed or made at a former trial, unless they had been judicially repeated during the second trial. By so doing, the counsel had all the advantage of the judgment of the Court, without assuming any of the responsibilities that might attach to those opinions; and he took the other counsel by surprise, they having every reason to presume that he did not intend to rely on the opinion of the Court, or to hazard an instruction.
    3. Under the broad latitude allowed to the plaintiff’s attorney, he was allowed to rely on the fact (and he did rely on it) that a verdict had been found at the former trial against the defendant Crawford, and heavy damages had been assessed against him, and that a motion had been made for a new trial, on the grounds, first, that the verdict was contrary to evidence, and second, that the damages were excessive, and the Court had overruled the motion, thereby holding, that the verdict was in conformity with the testimony, and the damages were not too high. By this proceeding, all the,weight and authority of the opinion of the presiding Judge, were brought to bear upon the jury, upon those enquiries which are peculiarly the province of the jury, in the credibility and weight of testimony and the quantum of damages which ought to be assessed.
    4. The opinion of the Court, as referred to by the counsel for the plaintiff, upon the proper construction of the contract of lease from Sowers to Morris, was erroneous, and the Court having permitted the counsel to refer to it, and having thereby in effect repeated the instruction, it becomes open to examination. By that lease, it is stipulated, that “ B. Morris is to get the house at the price herein stated, for one year after this present year expires, (say 1st June 1843,) and is to have the preference each succeeding year thereafter.” This, the Court informed the jury, created a tenancy from year to year. At the time of this lease, viz. on the 7th September 1842, Morris was in possession under Pit-man, and his time under Sowers did not commence until 1st of June 1843.
    We contend that “the preference each succeeding year,” after the close of the year for which the lease was made, did not create a tenancy from year to year, It only imported, that if the property should be leased at all, and Morris would pay as good rent as any other person, he should have the preference over any other tenant. But it was obviously a conditional agreement. The term preference necessarily implies such a condition. It means, that if another tenant should present himself, and Morris would be willing to pay as much rent as that other, he (Morris) should be preferred to the other. It was, to say the most of it, one of those sort of engagements which the death of either party would terminate. According to the view of the Judge, there was no reciprocity in it, Morris was at liberty to hold on from year to year, but Sowers’s representatives could not require him to hold on. It is needless here to enlarge on the evils that would result from such a loose construction of a written contract.
    5. The Judge erred in permitting parol evidence to be given to explain and alter the terms of the written lease from Sowers to Morris, as set forth in the first bill of exceptions which was taken at the last trial. That lease was clear and distinct in its terms. And the Court also erred in permitting the contract between Pitman and Morris, to be given in evidence to the jury, as Sowers was no party or privy to said contract, and there was nothing in the evidence in any manner to connect him or his representatives with it, nor did it tend to shew what property had been leased by Sowers to Morris, nor could it properly be admitted for any such purpose.
    For the appellee :
    1. The memorandum between plaintiff and Sowers was vague, containing no description of the leased premises. During the continuance of plaintiff’s lease, Sowers had purchased the whole property of Pitman, plaintiff’s landlord. He thereby became bound to respect the plaintiff’s rights under the lease, and it is not perceived why the said agreement of lease between plaintiff and Pitman was not just as much evidence against Sowers's representatives, as it would have been against Pitman. It was certainly competent evidence, with other facts, to shew the boundary of the tenement; and the only error the Court committed, was in excluding it till the other evidence was introduced. See Pollard v. Lively, 4 Graft. 73.
    
      2. The defendant excepted, because the Court would not stop the counsel from arguing the cause in his own way; and especially from referring to decisions of the same Court previously made, as authority for his positions. This exception is interesting for its novelty. Counsel heretofore had thought it their privilege, to make the best argument they could before the jury, referring for their law to any decisions of any Court, or to no decisions at all, leaving their adversaries free to deny their propositions of law before the jury, or to ask instructions of the Court; and it is humbly hoped that this privilege will not now be abridged. But the defendant seems to think, that this unfortunate argument of counsel, revived a pair of exceptions taken at a former trial, and that though the points of law ruled then, were not renewed at the last trial, yet this Court, by virtue of an argument of counsel at the last trial, can lay hold on those exceptions, and if erroneous can reverse the judgment. It is submitted, however, that this Court cannot look into those old exceptions, and that for such cause, the decision can no more be reversed, than if the Court had refused to prevent the counsel, in argument, from insisting on any other proposition of law supposed by his adversary unsound. The course of the defendant was very clear. If he considered the law insisted on by the plaintiff’s counsel, incorrect, he should have moved instructions.
    3. The jury, after retiring to consider of their verdict, returned and enquired of the Court, if it was lawful for them to assess separate damages against the defendants. The Court replied, if they could not agree on a verdict of joint damages, they might find a verdict severing the damages, &c., but if they did, it would be for the plaintiff to elect for which assessment he would take judgment, entering a nolle prosequi as to the rest. The Judge has here stated the law to the jury just as it is laid down in Selwyn’s Nisi Prius, vol. 1st, p. 31, and the cases there quoted in note o, except that he did not tell them in so many words that such a verdict would be vicious. He told them, however, what was tantamount, that no judgment could be rendered in accordance with it, and that the plaintiff would not be permitted to take judgment but against one. This was, then, not an instruction to the jury that they should or ought to find such a verdict, but an enunciation of what was true, that they could or might, and a warning of the consequences. But suppose the Judge erred, who is injured by it; surely not the appellant. The plaintiff below might well complain, for he has been compelled to pay costs, and surrender damages as to the other defendants, who the jury find were trespassers and properly joined in the action. But of what does the appellant complain ? Why, that when, as the jury find, he committed wrong to the amount of 300 dollars, and the other trespassers three dollars each, a joint verdict was not found against all, whereby the others would have been punished for his wrong. He complains because gross injustice has not been done to his codefendants. Suppose the jury had put all the damages together and found a joint verdict for 309 dollars, a joint judgment would have followed, the whole might have been made out of the appellant, and he could not have had contribution. He is therefore benefitted, and on the authority of Davies v. Miller, 1 Call 127, the judgment should stand. See also Murrell v. Johnson's adm’rs, 1 Hen. & Munf. 450. The rule of reason and of. law is, that a party can only complain of a judgment which has, or may have operated injury to him.
   Baldwin, J.

Whether parcel or not of the demised premises, if not ascertained by the written contract, is always open to extrinsic evidence. In this case the memorandum of agreement between Sowers and Morris, designed to be preliminary to a more formal lease, does not describe the demised tenement, and other evidence is indispensable to determine even its locality, a matter, however, which was distinctly understood between the parties, and in regard to which there seems never to have been the slightest controversy. But a dispute has arisen, whether the cellar room in which the alleged trespass is charged to have been committed, was appurtenant to the leased tenement. That room is under an adjoining tenement, which, as well as the leased tenement, at one time belonged to Pitman, who rented the latter to Morris for a year, and with it the said cellar room of the adjoining tenement. Before the expiration of the year, Pitman sold both tenements to Sowers, who also before the expiration of the year, made the agreement with Morris above mentioned, by which the latter became the tenant' of Sowers for the succeeding year; and the written memorandum being silent as to the said cellar room of the adjoining tenement, the previous lease from Pitman to Morris was introduced by the plaintiff on the trial, with accompanying parol evidence, that the tenement rented by Morris from Sowers was the same tenement which he had previously rented from Pitman, and that the said cellar room of the adjoining tenement was indispensable to Morris for the purposes of the business in which he was engaged.

I think the evidence so introduced, both written and parol, was perfectly proper for the consideration of the jury, upon the question of fact, whether the parties to the lease from Sowers to Morris intended to embrace therein the said cellar room of the adjoining tenement, as parcel of or appurtenant to the demised premises; and therefore that there was no error in the decision of the Circuit Court on that point.

In a joint action of trespass against several, if the jury find the defendants guilty jointly, and especially if they have pleaded jointly, it is the duty of the jury to assess the damages jointly against all; for otherwise they depart from their own finding, which is that the defendants are equally guilty, and from the rule of law which makes joint trespassers liable for the amount which the most culpable ought to pay. In Hill &c. v. Goodchild, 5 Burr. 2790, Lord Mansfield, delivering the opinion of the Court, said : “ We hold that as the trespass is jointly charged upon both defendants, and the verdict has found them both jointly guilty, the jury could not afterwards assess several damages.” — “ We do not think that the present case calls for an opinion upon those cases where the defendants are charged jointly and severally, or where the defendants plead severally, or where a joint action is brought for two several trespasses, and the damages found severally, as being severally guilty. We do not meddle with any of these cases; there is a variety of opinions in the books relating to them. It is enough to found our present determination upon the present case. And the present case is, that the count is of a joint trespass; and the jury have found the defendants guilty of a joint trespass, and yet have severed the damages. We are of opinion, that in such case the damages cannot be severed.” And the judgment, which was in conformity with the verdict, was reversed. And in 1 Wms. Saund. 207 a, note, it is laid down broadly that, where several persons are jointly charged in an action of assault, battery and false imprisonment, or any other trespass, who either plead jointly, or sever in their pleas, or one suffers judgment to go by default, (for it is immaterial which is the case,) if the jury assess several damages, the verdict is wrong, and the judgment will be erroneous.” In conformity with this proposition is the opinion of the Court in Bohun v. Taylor, 6 Cow. R. 315; and so are the opinions of the Judges in Ammonett v. Harris & Turpin, 1 Hen. & Munf. 488.

But where the jury by mistake have assessed several damages, the plaintiff may cure the defect by entering a nolle prosequi as to some, and taking judgment against the other; for such actions being in their nature joint and several, as the plaintiff might therefore have originally commenced his action against one only, and proceeded to judgment and execution against him ; so he may after verdict against several, elect to take his damages against either of them. 1 Wms. Saund. 207 n.; 2 Bac. Ab. Dam. D 4; 1 Tidd’s Prac. 735.

It seems to me, however, that it can never be correct for the Court to instruct the jury, as was done in the present case, that they may sever in the damages, and . , .... . . . assess respectively what m their opinion each party found guilty ought to pay; for if such a practice be allowed to prevail, it must abrogate the rule, so well established, that the damages cannot be severed. In Brown v. Allen & Oliver, 4 Esp. N. P. C. 158, Lord Ellenborough instructed the jury that they could not sever the damages, and give more against one defendant than against the other; but that they should therefore take it as their rule in estimating the verdict against both, to find the amount which they thought the most culpable of the defendants ought to pay. It must, I think, be erroneous to instruct the jury to find a wrong verdict, upon which the plaintiff cannot take judgment in conformity therewith. Mitchell v. Milbank, &c. 6 T. R. 199.

And yet I think the judgment in this case cannot be reversed for that error. It cannot be treated as error to the prejudice of the appellant, who is not subjected beyond his legal responsibility; but must be regarded as rather to the prejudice of the plaintiff, who was entitled to a joint verdict against all the defendants for the whole amount of damage he had sustained, instead of an apportionment amongst them of the aggregate amount, part of which, too, he was obliged to relinquish in order to obtain any judgment for the rest.

When a trial of a cause is had before a jury, and they cannot agree upon a verdict, or do agree upon a verdict which is set aside by the Court, and a new trial awarded, the proceedings upon the former trial are functus officio, and improper for the consideration of the jury upon the new trial. Any opinion expressed by the former jury, or by the Court upon the former trial, is wholly irrelevant matter, and can only tend to mislead and confuse the jury. Can the former verdict of the jury, or any decision of the Court at the former trial, excluding evidence then offered as illegal, or admitting it as legal and proper, or instructing the jury as to the law of the case, be given in evidence to the jury upon the second trial ? jr¡very one wiH at 0nce admit that if such evidence of what occurred at the former trial were formally offered at the second trial, and objected to, it would be the duty of the Court to exclude it. Suppose in this case that the counsel for the plaintiff had offered to read to the jury the former verdict, or a bill of exceptions taken on the former trial, would it not have been competent for the defendant to object to it, and would it not have been the duty of the Court to reject it ? Yet this it seems is what was done substantially. The plaintiff’s counsel, as I understand the record, referred to the bills of exception taken at the former trial, as incontrovertible evidence of what could not with truth be denied, that the Court on the former trial had decided points conclusive as to the merits’of the cause; and as further evidence that a former verdict had been rendered for the plaintiff, which the Court had approved, both as to the plaintiff’s right to recover, and the amount of damages, but which was set aside on the ground of some irregularity.

To this irrelevant and improper matter, the defendant’s counsel objected, but the Court refused to exclude it from the consideration of the jury: And why ? Surely not because it was proper for the consideration of the jury: but because it was the duty of the defendant to move for instructions in opposition to this irrelevant and improper matter. What kind of instructions was the defendant expected to move for? Was it an instruction that the matter was irrelevant and improper, and that the jury should give no weight to it ? This in effect was what he did by his objection ; but that objection was overruled by the Court. It seems, therefore, that the defendant was expected to move for instructions upon the points of law which the Judge had already decided against him upon the former trial, as appeared from the former bills of exception, referred to with the acquiescence of the Court.

Instructions are moved for by a party with the view of affecting the verdict of the jury; but to move for them in the teeth of the known opinion of the Judge was to surrender the verdict; and there could be no motive for them but to prepare the cause for an appellate forum. Was this the duty of the defendant, or was it the duty of the plaintiff, who relied upon the opinion of the Judge in order to obtain a verdict, and at the same time sought, it would seem, to avoid responsibility in the Appellate Court? It seems to me that if the plaintiff relied upon the law of the case, as expounded by the Judge, he ought to have called for its exposition by the Judge to the jury, instead of relying upon its exposition by him to the former jury.

The opinion of a Judge sitting in a cause is not authority to be considered and weighed by a jury, but a judicial decision which the jury are bound to obey, and which the parties cannot controvert except in an appellate forum. It surely could not have been contemplated that the opinions of the Judge brought before the jury, and admitted to.have been given formerly in the very cause, and believed to be still adhered to, were to be the subject of discussion before the jury, and the correctness of them to be denied in argument. And of what avail could have been the argument of counsel against the known opinion of the Judge, if a re-argument had been allowable, after the concluding speech of the plaintiff’s counsel ?

/ The manifest object of the plaintiff’s counsel was to obtain a verdict, by force of the Judge’s opinions in their favour, which they succeeded by permission of the Court in getting before and urging to the jury. Ought not their client to be responsible for the correctness of those opinions ? If they were right, then the defendant has not been prejudiced: but if they were wrong, it is no answer to the error of practice and opinion to say that the defendant ought to have countervailed it, by moving for instructions on his part. The proper course of the Court, it seems to me, was to prevent the mischief; and there is no reason to believe that it would have been cured by the defendant’s moving for instructions; for the presumption is that if the Judge had changed his opinion of the law he would have said so, without waiting for a formal motion. And what practicable cure was there for the error of the Judge in permitting his opinion of the former verdict to be relied on ? No instruction could have been asked for on that point, except the one substantially asked for, that his opinion in regard to it was irrelevant and improper matter upon the new trial.

If such a practice should receive the sanction of this Court, I apprehend it will be resorted to upon every new trial. The former verdict will always be relied on; and so also will the opinions of the Judge upon the former trial. This can only tend to confusion and mischief. The plain and obvious preventive, it strikes me, is to hold that the former proceedings cannot be relied on at all; and so the rejection of them will confine the counsel to the legitimate evidence before the jury, and such instructions upon the law as either party may move for and obtain. The practice would be particularly objectionable in the County Court, where ttie Court is pften constituted of an even number of justices; and where countervailing instructions would of necessity fall upon an equal division of the Court.

This view of the case brings us to the question, whe\ ther the Circuit Court erred in its opinion declared at the first trial, and which it permitted to go to the jury on the last, in regard to the construction and legal effect of the lease from Soioers to Morris. Did that lease expire with the year for which it was made; or did it create a tenancy from year to year, and so require a notice from the landlord to the tenant to quit at the end of the year?

„ . ... , The tenancy from year to year is a qualified tenancy at will, introduced to obviate the inconveniences of that kind of estate; and the qualification requires the determination of the will to be prospective, to take effect at the end of a current year of the tenancy, and under a reasonable notice to quit, which, as regulated by our act of 1841, must be a notice of three months when the demised premises are situate in ail incorporated town, and of six months when situate in the country. Such a tenancy, unless provided for by the terms of the contract, being a mere modification of the ancient tenancy at will, can arise only where the duration of the tenancy is originally indefinite, or where being definite, the tenant with the consent of the landlord, holds over after the expiration of the term. If the length of the term be fixed by the contract, as where the lease is for a year, or a certain number of years, no notice to quit is necessary to dissolve the relation of landlord and tenant. Com. Lan. and Ten. 286, 6 Law Lib.; Cobb v. Stokes, 8 East 358. So if the tenant holds over by the laches of the landlord, after the term has run out, he will be merely tenant by sufferance; and the landlord may enter and put an end to the tenancy when he pleases. 4 Kent Comm. 117. In Messenger v. Armstrong, 1 T. R. 44, Lord Mansfield, delivering the opinion of the Court, said : “ Where a term is to end on a precise day, there is no occasion for notice to quit, because both parties are apprised that unless they come to a fresh agreement there is an end of the term.”

In the case before us, the lease was for a definite period, and there was no holding over with the consent of the landlord. The contract was for one year from a specified day, at the yearly rent (meaning the rent for the year) of 85 dollars, payable quarterly in advance. The “preference” which it gave to Morris “each succeeding year thereafter,” was no extension of the term, nor did it authorize him to continue it at pleasure. It was nothing more than the privilege of what is called jn comEnon parlance, “ the refusal;” and gave to Morris not the absolute but the preferable right to become the tenant for succeeding years; so that if Sowers should continue to rent out the property, Morris was to have it, upon such terms as the parties should agree upon, or any other person should offer. It did not restrain Sowers from taking possession of the property at the end of the year, and occupying it himself, or transferring it to a purchaser, or shutting it up and keeping it vacant.

If this view of the stipulated preference were not correct, still it could not have the effect of changing the demise for a year certain into a tenancy from year to year; for such a tenancy is still a modified tenancy at will, and may be determined by either party, upon due notice to the other. But here the privilege reserved of prolonging the tenancy at the end of the year certain, was reserved to the tenant, and not to the landlord : and if absolute, the landlord could not get rid of it by any notice to quit. It would, in truth, in that aspect, be in the nature of a covenant of renewal, dependent for its exercise, or the reverse, upon the will of the tenant, and in no wise upon that of the landlord. Now, a covenant of renewal supposes the expiration of a lease for a definite period, and provides for a new one of the like kind : and in the nature of things cannot occasion a tenancy from year to year, determinable by a notice to quit. And it is not conceivable that the “ preference” reserved in this case can be regarded as a covenant for renewal, from year to year, absolutely and indefinitely.

It seems to me, therefore, that the Circuit Court erred in its construction of the lease in question, which did not create a tenancy from year to year, but expired at the end of the year therein specified, though no notice to quit had been given to the tenant.

The other Judges concurred in the opinion of Baldwin, J.

The judgment was as follows:

It seems to the Court,

1. That upon the question whether the cellar room in which the alleged trespass is charged to have been committed, was appurtenant to the tenement leased by Soioers to Morris, the defendant in error, the Circuit Court did not err in admitting as evidence, for the consideration of the jury, the previous lease from Pitman, the vendor of Sowers, to Morris, after proof by parol evidence that the tenement demised by the one lease was the same with that demised by the other: nor in permitting it to be proved by parol evidence that said cellar room was indispensable to Morris, for the purposes of the business in which he was engaged.

2. That the Circuit Court did not err to the prejudice of Craioford, the plaintiff in error, in its instruction to the jury that they might sever in their damages, and assess respectively what in their opinion each defendant found guilty ought to pay: nor in suffering Morris after such severance to enter a nolle prosequi as to Crawford's co-defendants, and take judgment against him alone.

3. That the Circuit Court did err in permitting the verdict rendered at the former trial, and the opinion of the Court then expressed on the motion for a new trial, and the instruction given by the Court to the former jury, as to the construction and legal effect of the lease from Sowers to Morris, to be referred to and relied upon before the jury at the last trial, on the part of Morris, as matter proper for the consideration of the jury; this Court being of opinion that the said verdict, opinion and instruction, at the former trial, were improper and irrelevant matter for the consideration of the jury at the last trial; and that said instruction was erroneous in holding, that the lease from Sowers to Morris constituted a tenancy from year to year, and entitled the tenant to a notice to quit.

It is therefore considered by the Court, that the judgment of the Circuit Court is erroneous, and that the same be reversed and annulled, with costs to the plaintiff in error against the defendant in error; and that the verdict of the jury be set aside, and the cause remanded to the Circuit Court for a new trial to be there had of the issue joined, as between the present parties.  