#### DEN ON DEM. OF NATHAN A. STEDMAN vs. RODERICK McINTOSH.

Wiiere a person, who had a lease until a day certain, having had notice to quit, held over, and an action of ejectment had been brought against him by the lessor, and pending this action he quittedthe possession, and then the lessor sued him and recovered a certain sum for his use and occupation of the premises, during the time he held over — Held, that this was not a waiver of the notice, nor evidence of a new tenancy irom year to year.

If the money recovered in the last action had been recovered or received as •rent, it would have been evidence of a new tenancy.

Appeal from the Superior Court of Law of Chatham County, at the Spring Term, 1845, his Honor Judge Caldwell, presiding.

This action of ejectment was commenced on the 19th of November, 1842. On the trial the plaintiff gave in evidence an instrument of writing, executed by the plaintiff, in these words: “ I have this day agreed with Roderick McIntosh to let him occupy the house now in his occupancy on my lot, at the rate of fourteen dollars per annum, to commence on the 26th of October, 1841, he having settled with me for the rent up to that time; in case Mr. McIntosh shall desire to remove the house before October, 1842, he is to pay me only for the time he occupies the house, while on my lot, at the rate above mentioned. I hereby acknowledge that I put no claim *572to the house: all I contend for is the rent for the land. In witness whereof, I have hereunto set mv hand and sel.” This instrument was dated September 9th, 1841. It was admitted tjiat ¿[efendant was in possession of the premises mentioned in the declaration and referred to in the instrument of writing set forth; and it was proved, on the part of the plaintiff, that, in the month of July 1842, the lessor of the plaintiff told the defendant, that he wished him to leave the premises, as soon as he could, and he must leave at the end of his time ; to which the defendant replied, that he was as anxious to get away, as the lessor of the plaintiff was to get him away, and he would leave as soon as he could. It also appeared, that the defendant did not leave the premises in question, un-till the Fall of 1813, pending the present action.

The defendant then offered in evidence a warrant, sued out by the lessor of the plaintiff against the defendant, on the 4th of November 1843, and after the defendant had removed from the premises, for thirty dollars, on which the defendant confessed judgment for $> 22 25, on the 7th of that month; and the defendant also proved, that the same was sued out for the rent that had accrued in 1842 and 1843, on account of the occupancy of the premises in question by the defendant; and insisted, that it was evidence of a new tenancy created between the parties, and, therefore, the defendant ought to have had notice to quit, and further it was evidence of license for the year, during which this suit was brought.

This being the only contested point in the case, the Court charged the jury, that, whatsoever the law might be between landlord and tenant, when notice was given to quit, and thereafter rent was paid by the tenant and accepted by the landlord, the tenant being still in possession, it did not apply to this case, it appearing that there was a suit pending to recover the possession, when the warrant was sued out, and that the defendant had then left the premises.

The jury returned a verdict for the plaintiff, and, judgment being rendered accordingly, the defendant appealed.

*573 Badger for the plaintiff.

J. H. Hau'ghton for the defendant.

Nash, J.

When this was formerly before us, 4 Ired. 291, it was decided, that the defendant held the-premises under a special contract, which terminated his right to keep the possession on the 26th of October, 1842. The plaintiff had, in' duly 1841, given the defendant notice to quit, at the expiration of his time. On the last trial it appeared, the defendant quitted the premises in November 1843, after which, the plaintiff warranted him for the sum of $30, and judgment was confessed' by the defendant for the sum of $22 25, as rent accruing for the occupancy of the premises during 1842 and 1843. The warrant was dated November 1843. The defendant contended' that this was a Waiver of the notice to quit and an acknow-ledgement, on the part of the plaintiff, that, at the time this action Was brought, the defendant was his tenant.

The general principle is unquestionable, as stated by the' defendant’s counsel. Where a tenant, who has received no-. tice to quit, holds on, and his landlord receives rent eo nominee from him for the' time, for which he does so hold over, it is a waiver of notice, and the relation of landlord and tenant continues. Goodright v. Cordivent, 6 Term. 219, 220. So in the case Zouch v. Winingdale, a distress for rent accruing after the term of lease had expired was adjudged to be a waiver of the notice. In each of the above cases, the action in ejectment was brought after the'waiver of notice, and of course when the plaintiff had no right of entry. In the present case, at the time the action was commenced, the plaintiff had a clear right to enter. The term had expired, and the defendant was holding over. Does his subsequent action aud recovery by warrant waive the notice previously given, and reinstate the defendant in his position of tenant? Doe v. Batten, 1 Cow. 243, is much like the present. There the defendant, who was tenant from year to year, held over after notice to quit, and the plaintiff brought his action of ejectment. AP terwards and while this suit was pending, the plaintiff receiv*574ed from the defendant a quarter’s rent. Upon the fiial this was rhled by Lord Mansfield, to be a waiver of notice, and the plaintiff was nonsuited. Afterwards, upon a doubt sug-ggsteq py hjs Lordship, the case was argued at length, upon a rule for a new trial. After argument, the Court decided, that as the plaintiff, at the time he brought his action, had a clear right so to do, the subsequent receiving of rent was not in law a bar to the action ; but, if there were any doubt as to the intention of the parties, as to whether the acceptance of the rent was mutually intended, or understood as a waiver of notice, it was a matter of fact to be left to the jury. Lord Kenyon, in the subsequent case of Goodright v. Cordevent, denies this doctrine, and that, upon a consideration of the case of Doe v. Batten, and also the case of Lord Onslow v. Eaton, cited in the argument. But it is to be remarked, he does not deny the authority of the case cited by Lord Mansfield,tried at the Lancaster Assizes, when Mr. Justice Gould was at the bar. In that case, an ejectment was brought, and an action also for use and occupation of the same premises, for rent which accrued subsequent to the time of the demise. In that case it was argued, as here, that the action for use and occupation was founded on a supposed permission of the plaintiff to the defendant, to occupy; therefore, it was an acknow-ledgement, on the part of the plaintiff, that the defendant was his tenant, and, consequently, a waiver of his notice. It was held, the actions were brought for several demands, to both of which the plaintiff was entitled; consequently the one was no waiver of the other, for, after the recovery in ejectment, the plaintiff was entitled to the profits for use and occupation. This case could not have escaped the notice of Lord Kenyon, and, though he has no hesitation in denying the main proposition, as decided by Lord Mansfield, he does not deny the authority of this case. In the case before us, it is stated, that the money recovered by the plaintiff in his warrant was for use and occupation, as in the anonymous case. The money here was not recovered as rent eo nomine, but for damages, for the use and occupation of the premises. This is further *575shown, by the fact as disclosed in the case, that, at the time the warrant issued, the defendant had left the premises. The sum paid was $> 22 25 due for the time he actually occupied the premises at $ 14 per annum, which is the rent mentioned in the agreement. This sum, then, was recovered by the plaintiff; not as rent, for he would have been entitled to $28 for two years, but as damages during the time the defendant did occupy the premises.

• The argument for the defendant is, that the receipt of this sum is evidence, that there was a waiver of the notice and trespass, and that a new tenancy arose upon a lease from year to year. If the truth was, that this money was received as rent, we will not deny'the legal conclusion. But we think it a clear mistake to consider it as rent, although the parties called it so, and properly enough for the purposes of common parlance. But it was not rent, and could not have been received as such ; for as rent on that lease (if it existed, as supposed) it would not have been due until the 26th of October, 1843, and the sum would then have been $28, and not $22 25. This is conclusive, that the money was not demanded and paid as rent, properly speaking,"but as the damages, which the owner of the land had sustained by the defendant’s holding over for about 19 months.

We conclude then with the judge, who tried the cause, that, under the circumstances of this case, the warrant brought by the plaintiff was not a waiver of his notice to the defendant.

Per Curiam, Judgment affirmed.