
    Trousdale vs. Darnell.
    Actual violence need not be proved to give effect to- the third section of the act of 1821, ch. 14; but under this section, if the demandant has the right to possession, and it is the duty of the tenant to deliver it,, and notice has been given, and possession refused, the law will imply, force, for it is a wilful and forcible detainer.
    It is not necessary, to entitle the landlord to his remedy under the 3d section of the act of 1821, ch. 14, that he should commit a breach of the peace to get possession, or compel the tenant to commit it in holding him out.
    If a party agree to surrender premises when demanded, and upon demand made, refuse to surrender the possession, this will be a wilful and unlawful holding under the 5th section of the act of 1821, ch. 14. (Fer Peck, J.)
    When one is by agreement to surrender the premises upon demand, he is not entitled to notice to quit. (Per Peck, J.)
    To be entitled to six months notice to quit, the tenant should at least show some agreement to protect himself, either express or implied. (Per Peck, J.)
    This was a suit brought before three justices of the peace for a forcible detainer. The proceedings were all in accordance with the acts of assembly. The jury called by the justices of the peace upon the hearing before them found, that the premises were forcibly detained, and restitution was awarded to the plaintiff Trousdale. Darnell, the defendant, took the case to the circuit court by certio-rari, where the cause was re-tried before a jury. The bill of exceptions shows these facts, “that M’Clellan was in possession of the premises in dispute, holding for the owner Trousdale, who was absent. Darnell applied to him to rent the house; he was answered that the house was not for rent, that he, M’Clellan, was not authorized to let the premises, but was to hold them so as to sustain no injury. M’Clellan told Darnell that if he chose to come and occupy the premises, and would board him, M’Clellan, clear of any charge, and would deliver up possession to Trousdale when he returned and called for tjie same, he might enter. On this permission Darnell entered into possession of the premises, and continued there about seven months. Before Trousdale made demand of the premises, Darnell had planted some potatoes and other vegetables in the garden. Darnell refused to deliver the possession, and this action was commenced.”
    Upon the triabin the circuit court, the judge charged the jury, that "if Darnell had been guilty of any force, or had threatened to beat the person claiming possession, or had used any words or actions having a tendency to excite fear, thereby preventing plaintiff from getting possession, then the defendant was guilty of a forcible de-tainer. But if the plaintiff was not kept out by such force,’or by such acts as would excite fear and apprehension of danger, the defendant was not guilty of a forcible detainer. ” The jury found for the defendant Darnell, and the plaintiff moved for a new trial, which was refused. He excepted to the opinion of the court, and appealed in the nature of a writ of error to this court.
    
      A. B. Bradford, for plaintiff in error.
    The court in this case erred. 1st, In charging the jury in substance that the proof was not sufficient to authorize them to find the defendant guilty of a forcible detainer under the 2d section of the act of 1821.
    To constitute forcible detainer under the British statutes, it seems there must be a detainer with a strong hand, with unusual weapons or with menace of life or limb. 3 Bac. Ab. 249, 250, 252.
    The 2d section of the act of 1821, is in more general terms than any of the English statutes, and uses expressions defining how this offence may be committed beyond the sanction of any adjudicated case in the English courts, and therefore not controled by them, and enacts that it is not necessary to make-war, before one can be guilty of a forcible entry or detainer.
    2d. The court erred in charging that the defendant was not a tenant for life, year, or years, or claiming under a tenant of that character, and therefore could not be found guilty of an unlawful detainer.
    The counsel for plaintiff in error insists that this is a case clearly within the scope and meaning of the 5th section of the act of 1821, and of the construction placed by the court upon that section in the case of Love vs. Marshall. Mar. & Yerg. Rep. 259, 260.
    Parties may make an agreement for an indefinite time, according to their wishes to hold as a tenant; and this will be considered a tenancy at will, strictly so called. See 4 Taunt. 12S, Richardson vs. Langridge: 1 TermR. 162: 2 Chitty’s Black. 118, note 7, and the authorities there referred to. And notice to quit is not necessary. Chit, on Con. 101.
    
      J. Read, for defendant in error.
    The act of 1821-, ch. 14, contemplates three classes of cases.
    1. Forcible entry and detainer, as in the 2d section.
    2. Forcible detainer alone, as in the 3d section.
    3. Unlawful detainer, as in the 5th section.
    The two first named sections, to wit, the 2d and 3d, are declared by the 4th to include every kind of tenancy.
    The 5th section, which provides for unlawful detainer only, embraces the cases of tenants for life and years, and persons holding by, from or under, or by collusion with such tenants.
    The court, of course, seeing that this case did not fall within the 5th section, only charged the jury under the 3d section. The jury acquitted the defendant, and the only question is, whether defendant can be considered a tenant for years.
    As to a tenancy for years, see 2 Black. Com. 140-41; must be for a determinate period. 3 Kent’s Com. 85.
    
      ' As to a tenancy at will, see same book, 145. To have and to hold at the will of lessor, &c. 3 Kent’s Com. 109.
   Peck, J.

The principal question raised in the record is upon the charge of the court. It was the obvious design of the legislature to give, in our acts of assembly, all the rules governing forcible entries and detainers, or forcible detainers. We are not therefore to expect much aid from the adjudications of other countries.

The case before us is governed by the 5th section of the act of 1821, ch. 14, which provides, “that if any tenant for life, year or years, or other person who shall be in possession of any lands, tenements or hereditaments, by, from or under, or by collusion with such tenant, shall wilfully and without force hold over any lands, tenements or hereditaments after demand and notice in writing given for the delivery of possession thereof by the landlord, &c. then such person so holding over, shall be guilty of an unlawful detainer.”

It is obvious that the force contemplated by the 2d and 3d sections of the act are not intended to be made to apply to the case contemplated in the 5th section. If the facts of this case do not bring it within the provisions of the third section, it certainly is brought within the 5th section. Darnell held under a tenant, and held out, wilfully a.id with force, the landlord from his lawful right to possession. The use of arms, of terrifying words, force and strong hand, contemplated by the 2d and 3d sections to make a forcible entry unlawful, are to be taken separate from the forcible holding over under the 5th section. Darnell entered by courtesy and favor, agreeing that when the landlord wanted the premises he would surrender them. The breach of faith in not surrendering when requested to do so, though of itself not sufficient to constitute force under the 2d and 3d sections, nevertheless, is wilful and without force under the 5th section^ and makes the party so holding guilty of a forcible and unlawful detainer. Darnell’s cannot be construed such a tenancy as entitled him to six months notice to quit'. That applies, when one is in by such agreement, as that by a sudden end being put to the term, the tenant would be deprived of the fruits of his labor. To have the benefit of a six months notice to quit, the tenant should at least show some agreement to protect himself, either express or implied. The very opposite is the case before us. Darnell’s holding out Trousdale, works to him as great injury as landlord, if he cannot in this case be restored, as would be sustained, in a case where a tenant from year to year was suddenly turned out. It is certainly as reasonable that Darnell should be held to his express agreemenfto surrender the possession on demand made, as that by a rule of the courts made in favor of tenants, they should hold until indemnified for the labor bestowed on the premises, the time being uncertain. In this view a fair presumption arises that in such a case the necessity of six months notice to quit is taken away by the new rules introduced in the act, inconsistent with the existence of the rule allowing six months notice.

Butin any aspect of this case we think the charge of the court erroneous. The force need not be such to entitle the landlord to his remedy under the third section of the act of assembly, as that he must either himself commit a breach of the peace to get possession, or compel the tenant to commit it, in holding him out. When the landlord by his proof entitles himself to possession, the question for the jury is force or no force. When it is the right of the demandant to receive possession, the duty of the tenant to deliver it, and notice has been given without effect, the law implies the force, for it is a wilful, and in fact, forcible holding out him having the right of possession. Actual violence need not be proved to give effect to the third section of the statute. The judgment must be reversed, and the cause remanded to be tried conformably to the law laid down in this opinion.

Catron, Ch. J.

Green and Whyte, Judges, concurred with Peck, J. on the last point made by him in the above opinion, as the true construction of the 3d section of the act of 1821, ch. 14, and gave no opinion on the other points.

Judgment reversed.  