403 CHAPTER THE SECOND. Of the Tenant's Duties upon the expiration of the bound to de WHEN the tenancy has expired, the lessee is bound The lessee is peaceably and quietly to deliver up to the lessor the posses- liver up the sion of the premises; together with all buildings, fixtures, &c., which he may have erected during the term; excepting such fixtures as have been already noticed. (a) premises. boundaries. The tenant is bound to preserve the boundaries, and if he To'preserve permit them to be destroyed so that his landlord cannot distinguish them from the tenant's, he shall restore the land specifically, or give other land of equal value, to be ascertained and fixed by a commission appointed by the Court of Chancery. (b) land added to the demised croachment. Where the lessee has encroached upon the waste, and To deliver up added his encroachment to the premises demised, it seems to be settled that the lessor shall have the benefit of it, and premises by enthat the lessee will be bound to deliver it up at the expiration of his tenancy, unless in order to prevent the conclusion of law that the encroachment is for the landlord's benefit, the tenant at the time of making it, shews by some clear act that he intends it for his own use. (c) Lord Kenyon appears, indeed, to have entertained a con (a) Supra, p. 234, 235. (b) Attorney General v. Fullerton, 2 Ves. & Bea. 263. Willis v. Parkinson, 1 Swanst. 9. (c) Vide Doe dem. Challnor v. Davies, 1 Esp. N. P. 462. Double value. trary notion, on the ground that the tenant might thereby make his landlord a trespasser; (d) but this opinion has not been acquiesced in by subsequent judges. (e) And Mr. Baron Parke is reported to have said, “it is clearly settled that encroachments made by a tenant are for the benefit of the landlord, unless it clearly appear, by some act done at the time of the encroachment, that the tenant intended the encroachment for his own benefit, and not to hold, as he held the farm, to which the encroachment was adjoining." (g) The tenant's neglect to deliver up the demised premises will subject him to penalties imposed by the legislature. By the statute, 4 Geo. II. c. 28, s. 1, it is enacted, "that in case any tenant or tenants for any term of life, lives, or years, or other person, or persons, who are, or shall come into possession of any lands, tenements, or hereditaments, by, from, or under, or by collusion with, such tenant or tenants, shall wilfully hold over any lands, tenements, or hereditaments, after the determination of such term or terms, and after demand made, and notice in writing given for delivering the possession thereof, by his or their landlords or lessors, or the person or persons to whom the remainder or reversion of such lands, tenements, or hereditaments shall belong, his or their agent or agents thereunto lawfully authorized; then and in such cases such person or persons so holding over shall, for and during the time he, she, and they, shall so hold over, or keep the person or persons entitled out of possession of the said lands, tenements, and hereditaments as aforesaid, pay to the person or persons so kept out of possession, their executors, administrators, or assigns, at the rate of double the yearly value of the lands, tenements, and hereditaments, so detained for so long time (d) Doe dem. Colclough v. Mulliner, 1 Esp. N. P. 461. (e) Vide Doe dem. Challnor v. Davies, 1 Esp. N. P. C. 461. Bryan dem. Child v. Winwood, 1 Taunt. 208. (f) Doe dem. Lewis v. Rees, 6 C. & P. 610. as the same are detained, to be recovered in any of his Majesty's courts of record by action of debt, whereunto the defendant or defendants shall be obliged to give special bail; against the recovering of which said penalty there shall be no relief in equity." A weekly tenant is not within the statute; (h) nor, consequently, it is presumed, is a monthly tenant. The question has been recently agitated, whether a quarterly tenant is within the statute, but the point was left undecided; Tindal, C. J., saying, "I do not affirm or deny that the statute of Geo. II. applies to a holding by the quarter." (i) The statute uses the words " wilful" holding over, and extends only to cases in which the tenant has been guilty of fraud or contumacy, and not to cases in which the tenant maintains possession bond fide, upon any fair ground of defence. Thus it is said to have been held by Lord Mansfield, that where there had been a treaty for a further term between the landlord and tenant, which afterwards went off, the tenant who had held over during the treaty was not within the meaning of the statute. (k) So where tenant in fee had made a lease for twenty years to A., and then made his will, by which he devised the premises so leased to B. for life, with power to make leases upon particular conditions, remainder over to C.; and A., after the death of tenant in fee, surrendered his lease to B., who thereupon, in the supposed execution of his power, made a new lease to A. and died, upon which C. entered, and received rent from A. down to the time at which the first lease would have expired, and then upon the ground that the new lease was not conformable to the power, and therefore void, gave notice to A. to quit the premises; whereas A. contended that the new lease was made conform (h) Lloyd v. Rosbee, 2 Campb. 453, et vide S. P. Sullivan v. Bishop, 2 C. & P. 359 (i) Wilkinson v. Hall, 3 Bing. 531. N. S. (k) Anon. 5 Esp. 215, 216. Who are not tenants within the statute. Notice includes demand. ably to the power, and drove C. to try the question upon an ejectment, by which C. recovered the possession of the premises; and then brought debt upon the statute for double value, for the time which A. had held between the date of C.'s notice and his having recovered the lands; the Court of Exchequer decided, that as there was no fraud or contumacy in the tenant, but the holding over was under a fair claim of right, the statute did not apply; and they ordered the postea to be delivered to the defendant. (7) Upon the words in the statute "demand made, and notice in writing given," it has been held, that the notice includes the demand; and consequently, though a demand ought to be stated in the declaration, proof of service of a notice in writing will be sufficient proof of a demand. (m) But a notice is necessary in all cases in which the landlord would avail himself of the statute; for though, where premises are demised for a term certain, no notice is required to put an end to the tenancy, (n) yet the tenant who holds over beyond the term can only be charged for double value from the time at which the notice was served. (o) The notice ought regularly to be given before the expiration of the term, and the landlord will then be entitled to recover double value as from the time at which the term expired. (p) It may, however, be given after the expiration; and if the landlord have done no act to acknowledge the continuation of the tenancy, he will be entitled to double value, as from the time of the notice or demand; but if the rent were before reserved quarterly, and such demand be made in the middle (1) Wright v. Smith, 5 Esp. 203. (m) Wilkinson v. Colley, Burr. 2694. (n) Supra, p. 33. (0) Cobb v. Stokes, 8 East, 358. (p) Cutting v. Derby, Bl. Rep. 1075. of a quarter, the landlord cannot recover single rent for the antecedent fraction of such quarter. (q) Where notice to quit is given to the tenant, a feme sole, and she afterwards marries, the landlord may maintain debt for double value against the husband, without serving another notice upon him. (r) A person appointed by the Court of Chancery to receive the rents and profits of an estate, is an agent lawfully authorized within the meaning of the statute. And, therefore, where a notice had been given by a receiver so appointed to receive the rents of an estate bequeathed in trust for infant children, it was held sufficient to enable the trustee and executor to recover double value against the tenant who held over after such notice. (s) But the administrator of an executor cannot sue for the double value of lands held over after notice to quit, under a demise from the testator, without taking out an administration de bonis non, even though the tenant have attorned to him. (t) On the death of the executor intestate, the representation to the original testator ceases, and the administrator of the executor is a stranger to the estate. An administration de bonis non is, therefore, necessary to restore the personal representation to the original owner. The landlord does not waive his right to sue for double value by bringing an ejectment against the tenant. The two remedies are perfectly independent of each other; and, therefore, although the lessor obtain possession of the premises demised by his ejectment, this does not affect his right to sue for the double value of the premises during the time for which the tenant held over, between the period of the (q) Cobb v. Stokes, sup. (r) Lake v. Smith, 1 N. R. 174. (s) Wilkinson v. Colley, Burr. 2694. (t) Tingrey v. Brown, 1 B. & P. 310. Right to douwaived by ejectment, ble value not |