was shewn, on the part of the plaintiff, to any of the
stipulations contained in the notice, and no circum-
stances occurred between the 3d of August, when the
notice was served, and the 9th of August, when the
alleged trespass was committed, to make the situation
of the parties different to what it had been on the former
day. The rent due was not paid. [Tindal C. J. The
plaintiff remained in possession.] It was not so left to the
jury. On the contrary, the plaintiff bargained for the pos-
session on a day subsequent to the notice. The jury were
told that a notice served on the tenant would, under the
circumstances, create a tenancy. It should have been
left to the jury whether Mewburn and Trotter, when
they served the notice, knew that the disputed land was
in possession of the plaintiff. [Bosanquet J. Did you ask
the learned Judge so to leave it to the jury? Erskine J.
The plaintiff had no other title to the possession than
under the demise from Mewburn and Trotter. Tin-
dal C.J. Res ipsa loquitur.] It was stated to the jury,
as a point of law, that the notice created a tenancy.
Rogers v. Humphreys (a) it was held, that where a lease
is made by the mortgagor subsequently to the mortgage,
the mortgagee may treat the tenant as a trespasser; but
that he cannot distrain or sue for rent, unless he has
accepted rent from the tenant or has given him notice to
pay rent, and the tenant has acquiesced. In Waddilove
v. Barnett (b) it was held that a notice by a mortgagee
to the tenant of the mortgagor, who had come into pos-
session under a lease granted subsequently to the mort-
gage, was a good defence to an action for use and occu-
pation brought by the mortgagor; but that was in the
nature of an eviction by the mortgagee. In both Pope
v. Biggs and Waddilove v. Barnett the question was, what
payments were protected by the notice, not whether the

(a) 4 Ad. & Ell. 299.; 5 Nev. & Mann. 511.

In

(b) 2 New Cases, 538.; 2 Scott, 763.

1840.

BROWN

v.

STOREY.

1840.

BROWN

ย.

STOREY.

relation of landlord and tenant was constituted. In Partington v. Woodcock (a), Patteson J. says, "I never could see how notice could make the mortgagor's tenant tenant to the mortgagee at the former rent." There was no evidence to be left to a jury of any demise for a year. The plaintiff cannot eke out his proof by referring to another allegation in the replication. (b) If there was any demise in this case, it would be a demise to hold during the residue of the term created by the mortgagor.

TINDAL C. J. I agree that the relation of landlord and tenant cannot be created without the consent of both parties. Here both tenant and landlord agreed that the former should remain in possession for a year. It has been settled ever since the case of Keech v. Hall (c), that a mortgagor cannot, without the privity of the mortgagee, create a tenancy, and the mortgagee may recover in ejectment without giving notice to quit, against a tenant who claims under a lease from the mortgagor, granted subsequently to the mortgage. No interest can pass to the tenant, and ejectment may be maintained

(a) 6 Ad. & Ell. 695.

(b) If the modo et forma put these allegations in issue, the replication was disproved, because the plaintiff never did hold as tenant to W. Brown, except by estoppel between W. Brown and the plaintiff, to which estoppel the defendants were neither parties nor privies. Again, the allegation that the copyholders agreed with the plaintiff to continue him tenant at the same rent, would imply that they adopted the terms of the demise by W. Brown; and so the plaintiff appears to have understood when he tendered

the rent agreeably to the original demise; whereas treating the notice as a demise from one year from the 1st of August, the plaintiff would be excused from the payment of any rent in respect of the occupation from Midsummer to the 1st of August.

The introductory part of the replication to the third plea, supposing it not to be surplusage, or mere matter of inducement, would be informal, as setting up a particular estate without shewing the commencement of that estate. Vide Com. Dig. tit. Pleader (E 19.). (c) 1 Dougl. 21.

without notice; but from the case referred to, and from many subsequent, it appears that mortgagees may adopt the act of the mortgagor in granting the lease; or at least he may create a tenancy from year to year, according to the terms of the lease. Here the evidence was, that after the assignment of the mortgage notice was given, by the assignees of the mortgagee to the plaintiff, to pay to them the rent then due, and thereafter to become due in respect of the premises comprised in the mortgage, which appears to import a consent that he should hold at least for one year. It is said that there was no agreement in fact, and that it was not left to the jury as a matter for their consideration, whether they would infer an agreement. The question was not left to the jury in precise terms, but without doubt it would have been so left if the counsel had supposed that the jury would hesitate to draw that inference. The plaintiff's only title to the possession was the lease from the mortgagor. From the parties in whom was the legal interest he receives a notice requiring payment of the rent due and accruing due. If he remained in possession without repudiating the notice, he seems to have been in possession under the old terms. Counsel might have required the learned Judge to leave it to the jury to consider whether the plaintiff acquiesced in the notice, because all parties must have assented. It is not clear, that upon the issue joined upon this replication (a) it was necessary to shew an attornment. In Hudson v. Jones (b), an avowant made title by grant of a reversion expectant on an estate for life to the plaintiff, unto which reversion there was a rent incident, ad quam quidem

(a) Suprà.

(b) 1 Salk. 90. That case occurred before the 4 & 5 Ann. c. 16., which renders attornment in all cases unnecessary, had come into operation. But

neither before nor since the
passing of that statute would the
rights of the parties in the prin-
cipal case, it is conceived, have
been affected by the law of at-
tornment. Post, 128 (a).

1840.

BROWN

V.

STOREY.

1840.

BROWN

v.

STOREY.

concessionem, the plaintiff (being the particular tenant) did attorn. The plaintiff pleaded non concessit modo et formâ. It was held, that under the issue the defendant could not set up want of attornment. It would therefore seem that no distinct act of assent need have been proved. I do not, however, put it on that ground: I think it to be plain that there is no reason for sending this case to a new trial.

BOSANQUET J. I am also of opinion that this verdict ought not to be disturbed. It was left to the jury to say, whether the notice was given in ignorance of the existence of the lease. It is said, that it ought to have been left to them to say, whether the plaintiff assented to a new tenancy. It is clear that there can be no demise without an assent by both parties. But if it had been wished to raise the point of want of assent, that should have been suggested to the learned Judge. If it had been, the jury could have found but one way.

ERSKINE J. The only question raised by the defendants' counsel was, whether the tenant, having elected to continue, the notice, if accepted by both parties, amounted to a demise for one year. It appeared that the plaintiff had tendered the rent accruing subsequently to the notice to Mewburn and Trotter. It was not suggested that the plaintiff had repudiated the offer of a tenancy contained in the notice. I was of opinion that Mewburn and Trotter, by their notice, had adopted the plaintiff as a yearly tenant at the rent he had paid under the lease. The parties who gave the notice were fully cognisant of all the circumstances.

(a) Before the 4 & 5 Ann. c. 16., an attornment was an acknowledgment by the owner of a particular estate that the

Rule refused. (a)

reversion had been lawfully conveyed' from the original reversioner to a new reversioner, and an acceptance by the tenant

1840.

BROWN

v.

STOREY.