
    SUSSEX CIRCUIT,
    NOVEMBER TERM, 1807.
    [*«] DEN ex dem. JOHN MACKEY against RICHARD MACKEY.
    In ejectment against tenant at will, he should have notice to quit before suit is brought. Proof of owner’s direction on his death bed that defendant should be permitted to possess the lands during his life, rejected.
    The title was admitted to be in the father of the lessors of the plaintiff. The lessor derived title from his father. It appeared in evidence, that the father about fifteen years ago, put the defendant, who was his brother, into possession. That the place, at the time the defendant went in possession, was improved; that the defendant had built a house and improved about half the land; had planted an orchard which was beginning to bear; that the father had been dead about nine years, and' the defendant had remained in possession ever since, improving the premises. The defendant offered to prove, that the father on his death bed directed his son, the lessor of the plaintiffs, to permit the defendant, who was poor, to live on the premises during his life; but the court rejected the testimony.
    It was then moved by
    
      Mr, I. H. Williamson, for the defendant,
    to nonsuit the plaintiff, for want of notice to quit. He cited 3 Wil. 25, that a tenant at will must have notice to quit; and said the courts in the State of New York in a similar case, had required notice. 1 Johnson’s Rep. 522; 2 Johnson’s Rep. 75, 444
    
    
      Mr. Maxwell, for the plaintiff:
    The death of the father of the lessor of the plaintiff was a determination of the tenancy at will; since which, the defendant was a tenant at sufferance. 2 Blac. Com. 145 — 6. That in cases of tenant at sufferance, no notice is necessary.
   [*«] Pennington, J.

— It is certainly a hard case to turn a man out of possession, circumstanced like the defendant, at any season of the year, and saddle him with a bill of cost without notice; he went into [308] possession by the consent of the owner, has continued in it fifteen years, improving the premises, under a reasonable expectation that he was to have it for life. Some of the cases requiring notice have gone on the ground of reservation of rent; but I do not know that this is the exclusive rule; and if it is, may not the improvement put on the premises come in place of the rent as being equally valuable.

On the whole, I think some notice should be given; that not being done, the plaintiff must be called.

Nonsuit.

Cited in Den, Bray, v. McShane, 1 Gr. 35; Den, McEowen, v. Drake, 2 Gr. 533; Den, Snowhill, v. Snowhill, 3 Zab. 447

Contra, Cox v. Baird, 6 Halst. 105.

Note. — The plaintiff’s counsel wished the case reserved; but it hath not since been heard of.  