
    Windsor County,
    February Term, 1828.
    
      Henry Hanchet vs. Calvin Whitney.
    
    That 'notice to quit,in case of a tenancy from year to year, must be given-six ' .. calentlei months before the year expires — and it must point to the time when', the tenant most quit. . .
    That such notice must be given, .or. the action cannot be maintained..
    This was an action of ejectment for lands in IlarÜancl, in which' a new trial'was granted á yé'ar'ago. " Sitcb " trial was had, .ancl a,, verdict returned for the plaintiff; and the cause came up to tips court upon'a new bill of exceptions,insoms degree variant from the former one which has been reported : but the allusions to the facts, and charge of the court, are sufficiently intelligible without a full copy of the case.
    
      Everett and Cushman for the defendant. It was admitted that the defendant was tenant from year to year,- under Jonathan WMtney, from the fore part of April, and the only question is whether Calvin Whitney had legal notice to quit. — Action commenced 5th April, 1826, Jonathan Whitney conveyed to plaintiff 20th March, 1826. Defendant is son oí Jonathan Whitney, who was old and infirm, and he took care^ of him, and carried on. the farm.
    The evidence of Betsey Rogers proves — That in February, 1825, she lived at the house four weeks, and then said Jonathan frequently, when intoxicated, and at no other time, told the defendant to clear out, he would not have him there, and that he was intoxicated every day, but continued to live there as before.
    
    The evidence of L. Wood, proves — That in September, 1825, bn an occasion' of defendant’s scolding at said Jonathan, he told defendant to clear out — for he would not have him there-; and that he was not then intoxicated.
    It is also proved — That at other times,after 5th October, 1826, on occasion of quarrels, he used the same expressions ; and- after the quarrels were over,he continued to live with defendant as before : all which evidence was objected to,but was admitted by the court — That during the whole time said Jonathan lived with defendant, the said Jonathan was in habits of frequent intoxication, and when so, would frequently use the expressions testified to : but when sober,did continue to live with' him as before, not repeating such declarations — and that they had been always treated by the defendant as the effect of passion or intoxication.
    It has been decided in this case that the defendant must have six months notice to quit; and,of course, the only testimony,applicable to ,the case, is that of Rogers and Wood. The fact of the- intoxication puts Rogers’ testimony out of the question, and Hence, it is believed, the charge was erroneous, viz : (t that if Jura-dthan-knew what he said, and madehimself understood by the defendant,--defendant ought to have regarded it.” The testimony of 
      Wood was that the declarations were given in a quarrel. The son could not reasonably suppose they were in earnest., The court charged the jury further, “that said testimony was proper to confirm the idea of an actual intention to put an end to the tenancy.” The contrary conclusion is contended for. The evidence offered by defendant was proper and pertinent to shew how the declarations had been treated by the defendant, and acted upon by both parties; It is not probable that either party thought of the necessity, or knew the effect,of notice. The notice was, if notice at all — a notice to quit forthwith ; and not at the end of the year; It was the expression of a present intention, and so was that of February, 1825. — 1 T. R. 159, Right vs. Darby et al. The conduct of the parties was a waiver of notice, certainly of that of Feb. 1825, <3 T.R. 219, Goodright vs. Cordwent. But the court, charged, that what was testified to by Rogers was in sufficient season.
    
      Leland and Hubbard, for the plaintiff-. The defendant complains, That the court excluded testimony tending to prove that Jonathan Whitney was in the habit of frequent intoxication, and at those times, and no other, he told the defendant to clear out— That the court refused to charge the jury, that the defendant’!? possession was adverse to plaintiff’s, and consequently, the deed was void, — and that the notice proved, if any, must be considered as a notice to quit forthwith, &c.
    As to the question of intoxication, it was left to the jury, under the explanation of the court. And there was no evidence of an adverse possession to bring the case within the statute, but a holding under Jonathan Whitney. - .
    1. In a former trial of this cause, [Jlilc. R. 240.) the court settled this caserío be a parol tenancy from year to year, and that six months notice was necessary to be given to quit, before suit was brought. This case finds that the tenancy commenced on or about first of April 1821, and that notice to quit was given six months before'the first of April, 1826. -. .
    2. There is no specific time mentioned in the notice for-the de*-fendant to quit; nor was it necessary ; but the court charged the jury — That the general expressions of order to .quit, astestyfed by the witnesses, would, if believed by the jury, impart a notice, to 
      
      quit at the end of the-year, &e. It is suffi-ciont for- the plaintiff to- prove his having given six months notice to quit, and that tile* ejectment has been brought after that was expired.-— Woodjt, 171-2. — 2 Esp. R. 580, Doe, ox dem. vs. Sutler. It is not necessary- to-specify any par-: tieular day or timé, when- a tenant must quit: it is- sufficient that» notice is- given six months- before- suit brought — -Wooclf. 171;.— If no objection is made at the time, it isprima-,facie evidence- that it is intended for the end of the year,, and the tenant is- estopped, unless he can shew- the commencement of the tenancy at another •time. — 2 Gamp. R. 559, 647'.
    ; 3. • The charge of the court, as to- the legal effect of the- expressions- used in the notice, was correct. The jury find-the-fact-of notice, and the- time it was given. But the court are to decide upon., the legal effect of the notice, and what shall constitute- such legal notice. , The construction of; the words used- is a- question of law-. No particular-form- of words is essential, either- in a writen or parol notice.
    4. The court are to construe the effect-and- intention from the circumstances-of the case — 4. The words used are- general— 2. There being full six months before suit brought. — 3. A frequent repetition of similar language afterwards,to- a short time-before suit. — 4. That-no rent was paid-'or reserved-after- suit brought. 5. That Jonathan Whitney left the defendant before time expired or suit brought. — 6. The suit brought after the expiration of tho time at a proper and suitable season.
    5. What constitutes a reasonable- notice to- an- endorser of á bill óf ■ exchange, or promisory note, is a question of law — not of fact. The jury-find the fact, and the court decide upon the sufficiency. In this case, the jury have- found the facts of notice and time — and the-court must decide upon the sufficiency of the notice.,
   Hutchinson J.

delivered-the opinion of-the court; This action, which is ejectment for lands in Maryland, comes up. to-this court on the exceptions filed in- the- County Court upon a jury, trial there.

There is virtually, but one question-now- to be decided$, that is, whether the testimony adduced' to show a notice, to- quit was sufficient far that purpose -if believed' by the jury?

No {juestion is how made bat that the defendant, for four or five years. before the commencement of the action, had been tenant at will to his fa» ther of the premises in question 5 and according to the decision of this court in the samé cause a year ago, was entitled to no. ticé to quit before añ action could be maintained against him on account of his possession.

The testimony adduced, for the purpose of showing such notice, appears by the Case to be several instances in which the father of the defendant^ from whom the ¡plaintiff derives his title,- told tile defendant to clear out, to leave the premises: that he would not have him there, &c. and other similar expressions recited in the casei Some of these conversations being more than half a year before the -action w'as brought, and more than -half a year be-fóte tbe first of April, 1826 5 and- the jury having by -their verdict found these facts as testified, under the charge of the court, hy which they wére instructed that, if they believed these witnesses, it Was a sufficient notice to quit; the question -is narrowed down to this, whether these sayings Of Jonathan^'ihb father, amounted to sufficient notice-. - The Objections to'their sufficiency are, that they set no "time fit which the defendant must quit: and further, that they import an immediate quitting, and-allude to no future period whatever. The views of the County Court must have been, that a general annbhncing to the defendant -that he must quit thé premises, -ánd this more than half a ye'a-r before the end of the term. Would be good notice for him to quit-at -the -end of the year.

It is very important that this subject should be regulated by principles, practical in themselves, as well as conformable to law. The authorities cited by the defendant’s counsel, to which may be added 2 Phil. Ev. 182, and on; also, Norris’ Peake, 627, lay down the rule thatnotice must not only-be given half a year beforehand, but that notice must be to quit at a given time, which they call the end of the year. They say a -general notice to quit,at the end of the year, is not sufficient. The parties may differ about the time when the tenancy commenced, and when it should end. A time to quit béing méntioned in the notice, if a wrong time is named, the defendant' may disregard it wholly; for the landlord has no right to compel a tenant under a tenancy from year to year, to quit at any other timé than the end of the year. This is reasonable, and/for the encouragement of industry; as otherwise, the tenant’s crops might not be disposed of, and he would sustain an injury by quilting before the time in which he might well calculate to dispose of his crops, Upon this point the County Court erred in their instructions to the jury. But they correctly'refused to charge as requested about theylefendant’s adverse possession. There was no testimony tending to show his possession ad_ verse to Jonathan, his father, under whom he took possession by contract, and under whom the plaintiff claims.

Everett and Cushman, for defendant,

Leland and Hubbard, for plaintiff. .

With regard to the testimony excluded by the County Court— that part relating to Jonathan and Calvin’s continuing to live together after the affrays mentioned were 'over, if the defendant would infer from this a waiver by Jonathan of such notice as he had given,it might be proper to have admitted it; but such testimony was already before the jury, drawn from the plaintiff’s witnesses. That part which relates to Calvin’s always treating the father’s telling him to quit, &cc. as the effect of passion, was correctly excluded. If what was said by Jonathan, from time to time, did not amount to notice, this testimony must be unimportant. If it did amount to notice, the defendant must, at his peril, treat it as notice. It is no excuse for him to say he treated it as the effect of passion. The notice given might be the effect of passion, and yet be a regular notice to quit half a year hence, at the end of the year, and ata time certain. But what was claimed, as notice in this case,contained no fixed time for quilting, nor did it even refer, in general terms, to the end of the year. Therefore, a new trial is granted.  