dependent upon the position in which he is placed with respect to the defendant. When no privity Privity. has existed between the parties; that is to say, when neither the defendant nor those under whom he holds have been immediately or derivatively admitted into possession, either by the lessor of the plaintiff himself, or those under whom he claims, the lessor must establish a legal and possessory title to the premises, because it is by the strength of his own title, and not by the weakness of his adversary's, that he must prevail. But when there has been a privity between the parties, as when the relation of landlord and tenant has subsisted between them, or where the defendant has been admitted into possession pending a treaty for a purchase, or on other grounds, proof of title is not required, but instead thereof the lessor should prove that the defendant, or those under whom he holds,(o) were so admitted into possession, and that their right to the possession has ceased; together also when the privity is not between the immediate parties to the action, with the derivative title of the claimant from the party by whom the defendant was originally admitted into possession. (p) And the defendant will not be per

d. Winckley v. Pye, 1 Esp. 364. Where a witness on the voir dire stated, "that the lessor of the plaintiff had formerly assigned the premises in question to him, for the purpose of protecting him from impressment, that he had given back the deed to the lessor of the plaintiff, and never seen it since, and that he never had any possession or beneficial interest on the premises; it was held that he was incompetent, as he had a direct interest in supporting the plaintiff's action.-Doe d. Scales v. Bragg, R. & M. 87. In ejectment on several demises of two persons, although the evidence shows the title to be exclusively in one of them, the other cannot be compelled to be examined as a witness for the defendant.-Fenn d. Pewtriss v. Granger, 3 Camp. 177. The admission of a lessor in ejectment, on the several demises of two persons, are admissible, though the evidence shows the title to be exclusively in the other of them.-Norden v. Williamson, 1 Taunt. 378. The declarations of a deceased occupier of land, of whom he held the land, are evidence of the seisin of that person.-Peaceable d. Uncle v. Watson, 1 Taunt. 378. But it must be first shown that the land the deceased occupied, was the land now in the tenant's possession.- Id. A joint demise by husband and wife of land, of which he is seized in her right, is disproved by evidence of a receipt for rent given by the husband only.-Parry v. Hindle, 2 Taunt. 180. The nominal plaintiff in ejectment cannot recover upon a joint demise by persons who, upon the evidence, appear to be tenants in common.-Doe d. Pool v. Errington, 3 Nev. & M. 646. 1 Adol. & Ellis, 750.

(o) Barwick d. Mayor of Richmond v. Thompson, 7 T. R. 488.

(p) Doe d. Biddle v. Abrahams, 1 Stark. 305. Rennie v. Robinson, 1 Bing. 147.

Privity.

Proof of pri

vity.

Relation of landlord

and tenant.

mitted to rebut this evidence, by showing that the title of the claimant was originally defective and insufficient, for it would be contrary to good faith to permit a party to controvert the title of him by whom he has obtained possession; (2) but he is allowed notwithstanding to prove the nature of such title, and to show, that although originally a valid one, it expired before the commencement of the action, and that the land then belonged to another, for such a defence is not inconsistent with the terms of the original possession. (r)

When a privity exists, the claimant, instead of proving his title, must show the existence and termination of the privity; for a privity will not be presumed to exist without proof, but being proved the presumption is in favour of its continuance. Thus if the defendant be let into possession, pending a negotiation for a lease, proof must be given that he was so let into possession, and that the negotiation was broken off before the day of the demise in the ejectment. In like manner if he has become tenant at will of the premises, the lessor must show how he became so, and that the will was determined by demand of possession or otherwise.

When the relation of landlord and tenant regularly subsists between the parties, or those under whom they claim, which is commonly the case in ejectments of this nature, the tenancy may be determined three several ways as before shown. (s) When the tenancy is determined by efflux of time, if the demise be by deed or other writing, the lessor has only to prove the counterpart of the lease by one of the subscribing witnesses; and it is not necessary that he should have given notice to the tenant to produce the original lease to enable him so to do.(t) If there is no counterpart, notice to produce the original lease should be given, and then, but not otherwise, the claimant will be entitled,

(9) Doe d. Pritchett v. Mitchell, 1 B. & B. 11.

(r) See Phillips v Pearce, 5 B. & C. 433.

(s) See p. 363.

(t) Roe d. West v. Davis, 7 East, 363.

mise.

if the original lease be not produced to give secondary evidence of its contents. If the demise be by Parol deparol, the agreement may be proved by any person present at the making of it; but if it should appear on the trial by the witnesses on the part of the plaintiff, that a written agreement has at any time been drawn up between the lessor and the party under whom the defendant came into possession, it must be produced by the plaintiff. (u) It is not necessary for the lessor to prove, that he or those under whom he claims, has received the reserved rent within the last twenty years. (v)

tion of tenancy upon

When the tenancy is determined by the happening Determinaof a particular event, the lessor must of course also prove that the event upon which the tenancy is to contingency determine has happened.

by notice to

Where the tenancy expires by reason of a notice Expiration to quit, the lessor must prove the tenancy of the of tenancy defendant, the service of the notice and its con- quit. tents, (and if given by an agent the agent's authority,) and that the notice and the year of the tenancy expire at the same time. When also the notice is for a shorter period than half a year, or expires at any other period than the end of the year of the tenancy, it will be necessary to show the custom of the country where the lands lie, or an express agreement by which such notice is authorised.

The tenancy of the defendant is commonly ad- Tenancy commonly mitted, and may be proved when necessary, if no admitted. direct evidence can be given of the demise, by declarations on the part of the tenant, and the fact of payment of rent, (w) or the like.

notice.

The service of the notice and the authority to Service of serve it, will be proved by the person who delivered it to the tenant; but if there is a subscribing witness thereto, such subscribing witness must also be called, (x) although it should happen that he only

(u) Fenn d. Thomas v. Griffith.

(v) See Runn. Eject., appendix, 458.

Orrell v. Maddox.

(w) Notice should be given to the tenant to produce his receipts. (x) Doe d. Sykes v. Durnford, 2 M. & S. 62.

Notice by

agent.

Tenant being in possession.

Acknow

tenant, and

terms.

witnessed the signature of the landlord, and did not deliver the notice himself. The contents of the notice may be proved by a duplicate of the original, which should be compared with the notice actually served by the party serving it; but if this precaution is not taken, parol evidence may be given of its contents; and it is not necessary in either case to give the defendant notice to produce the original in his possession. (y)

When the notice is given by an agent, it must be shown that he was vested with his authority at the time the notice was given. And where two or more joint tenants, &c., are lessors of the plaintiff, and a notice to quit is given by one or more in the name of all, although they all afterwards join in an ejectment it will not be presumed from that circumstance that an authority was originally given by the parties, not joining in the notice to their co-tenants.(z)

When the tenant has been long in possession of the premises, it frequently becomes extremely difficult to prove the time of his original entry; but nevertheless some evidence must be given, from which the jury may presume that the time of the expiration of the notice and of the year of the tenancy are the same, or the plaintiff will be nonsuited.

If the tenant has been applied to by his landlord ledgment by respecting the time of the commencement of his assent to the tenancy, and has informed him that it began on a certain day, and in consequence of such information a notice to quit on that day is given at a subsequent period, the evidence is conclusive upon the tenant, and he will not be permitted to prove, that in point of fact the tenancy has a different commencement; nor is it material whether the information be the result of design or ignorance, as the landlord is in both instances equally led into error. (a) When also the tenant at the time of the service of the Jory v. Orchard, 2 B. & P. 41.

But where & notice to quit was given by the steward of a corporation, it was presumed, inasmuch as he was an officer of the corporation, that he had an authority to give the notice.-Roe d. Dean of Rochester v. Pearce, 2 Camp. 96.

(a) Doe d. Eyre". Lambley, 2 Esp. 635.

notice assents to the terms of it, he will be precluded from showing that it expires at a wrong time. But such assent must be strictly proved. (b)

objection

When a notice to quit upon any particular day is When no served upon the tenant personally, if he read its made to contents or they be explained to him without any notice. objection being made on his part as to the time of the expiration of the notice, it will be prima facie evidence of a holding from the day mentioned in the notice. (c)

rent.

In like manner a receipt for a year's rent up to a Receipts for particular day, is prima facie evidence of a holding from that day. (d) But if the notice be not delivered personally, or be not read over or explained to the party, no such presumption will arise, although a contrary doctrine was formerly maintained. (e) When also the notice is to quit generally at the expiration of the current year of the tenancy, &c., no presumption can arise as to the time of the commencement of the tenancy, from a personal delivery to the tenant.(ƒ)

(b) As, where the party made no objection to the notice at the time of its delivery, but said, "I pay rent enough already; it is hard to use me thus." In this case the tenant was not debarred from showing the actual commencement.-4 T. R. 461.

(e) Doe d. Leicester v. Biggs, 2 Taunt. 109. (d) Doe d. Castleton v. Samuel, 5 Esp. 174. (e) Doe d. Puddicombe v. Harris, 1 T. R. 161. 2 Camp. 387.

Doe d. Ash v. Calvert,

(f) But when a general notice was delivered on the 22nd of March, to quit at the expiration of the current year, and on the 16th of January following a declaration in ejectment was delivered to the tenant, laying the demise on the 1st of November, and the tenant, on the receipt of this declaration, made no objection to the notice to quit, nor set up any right to the possession of the premises, but said he should go out as soon as he could suit himself with another house; it was ruled by Lord Ellenborough, C. J., that the defendant's declaration, when served with the ejectment, was evidence to go to the jury, whether the holding was a Michaelmas holding, and the jury found a verdict for the landlord.-Doe d. Puddicombe v. Harris, 1 T. R. 161. Doe d. Ash v. Calvert, 2 Camp. 387. And in a case where the notice was delivered on the 27th of September, to quit "at the expiration of the term for which you hold the same," which notice was served personally upon the tenant, who observed, "I hope Mr. M. does not mean to turn me out." Holroyd, J., permitted the lessor to prove that it was the general custom in that part of the country, where the demised lands lay, to let the same from Lady-day to Lady-day, and that the defendant's rent was due at Michaelmas and Lady-day respectively, and directed the jury to presume that this tenancy, like other tenancies in that part of the country, was a tenancy from Lady-day to Lady-day-Doe d. Milnes v. Lamb, Nottingham Summer Assizes, 1817, MS. See Ad. on Ejectment, 277.