Opinion
Fall Sessions, 1841.
This was an appeal from the judgment of a justice of the peace, in an action of debt for use and occupation. Narr. in debt. Pleas, nil debet; payment; discount; accord and satisfaction; set-off to the amount of $49, balance of rent due from plaintiff to defendant. Replication to the plea of set-off; non-dimisit; surrender of the term on three month's notice and eviction; and replications and issues as to all the other pleas. Issue on the replication to the fifth plea.
The plaintiff below proved a debt of $35, and closed.
Laws, for plaintiff.
Bates, for defendant.
Mr. Bates, for appellant, under the pleas of payment and set-off, proposed to prove that Mrs. Anderson lived in a house of Graham's in the year 1838, at a rent of $35, and moved out of it without giving him notice, and the house was not occupied in 1839. And he claimed to set off the rent of 1839. He proved that Mrs. Anderson rented a house of Graham for 1838, at $35. It was vacant in 1839. The renting was for one year. He then closed; and
The plaintiff offered evidence of a parol notice by Mrs. Anderson to Graham, of her intention to quit, which was objected to.
Bates. — It is not competent to prove any notice except in writing. Digest 368, requires the notice to be in writing, whether it be the notice of the landlord to the tenant, or of the tenant to the landlord. The general principle of the law is. that where notice is required it must be in writing. Chitty's Gen. Prac. gives the form of notice by a tenant, and says it ought to be subscribed by the tenant. The landlord acquires rights under the notice, and is entitled to the written evidence of the notice. It relates to an interest in lands, and must be in writing. ( Digest 308.)
Laws, for respondent, admitted that the general practice and opinion of the bar on this subject have been, that the notice required to dissolve a tenancy must be in writing; but there has been no decision on the subject. The act of assembly requires the landlord's notice to be in writing, but it is not express as to the form of the tenant's notice. The omission would seem to imply an intended difference. Under the Stat. 11 Gco. 2, which provides that a tenant after notice not giving up, shall pay double rent, the decisions have been that a parol notice is sufficient, where the letting was by parol. (9 Law Lib. 47; 1 Cruise Dig. 196, 290; 3 Burr. Rep. 1603.)
Bates, in reply, relied on the obvious construction of our act of assembly, as requiring the notice to be in writing.
This question was waived for the present, and the plaintiff below proved that the defendant, after the expiration of the year 1838, had offered to rent the property, and had himself occupied the garden.
This is an appeal by Isaac Graham, defendant below, against Laurana Anderson, who was the plaintiff below, and who seeks to recover the sum of $35. It is agreed that this is due, but defendant claims a set-off to more than this amount, being the rent of a house and lot occupied by Mrs. Anderson as tenant to Graham. Mrs. Anderson occupied the premises in 1838, at a rent of $75; she quit the possession on the 1st of January, 1839: Graham claims rent for the next year, because written notice was not given to him three months before the expiration of the year. The respondent's counsel has insisted, that under our act of assembly a written notice by a tenant of his intention to quit is not necessary, and that he has proved a verbal notice. It is the opinion of a majority of the court that this notice by tenant should be in writing. This appears to be the meaning of our act of assembly, and such has always heretofore been its construction in practice, though it may be quite true that it has not heretofore received any judicial construction. But the case does not depend on that question, because there has been proof offered to show that Graham accepted the premises from the tenant; rented or offered to rent the same to another tenant for the year 1839, and himself tilled the lot and took the crop. If this be proved to the satisfaction of the jury, it would amount to either a waiver of the written notice or an eviction; for the whole being under one rent, an eviction of a part would be an eviction of the whole premises. If the notice was waived or the tenant evicted, she is not liable for the rent of 1839, and the verdict ought to be for the respondent for $35 and interest.
Verdict for plaintiff for $38.