without day, it is only by a mittimus that the detention can be justified. Abells v. Chipman, 1 Tyl. 377. 87. As evidence of a justice's judgment the plaintiff offered a copy of the original writ and of the officer's return and of the entries on the 78. Execution. Under the Statute of 1821, writ :-"Continued to September 24, 1845, at increasing a justice's jurisdiction from $53 to eight o'clock forenoon, at which time judg$100;-Held, that the execution should be ment on verdict of jury for plf. to recover made returnable in 60 days, unless the debt or of dft. four dollars damages and his costs"damages recovered, exclusive of the costs, exceeded $53. Allen v. Warren, 9 Vt. 203. IV. RECORDS. 79. The forms of proceedings of justices in making up their records should not be too strictly or severely examined, but should be most favorably construed. Story v. Kimball, 6 Vt. 541. McGregor v. Balch, 17 Vt. 562. certified by the justice to be "a true copy." Held to be a sufficient copy of the record of a judgment. Starbird v. Moore, 21 Vt. 529. 88. The mode of authenticating the record of a justice of the peace to be used in another State is, for the justice to certify his record, and then certify that he has no seal or clerk, but acts as clerk of his own court, and that the foregoing attestation is in due form; and such record is as conclusive to all intents, as a record 80. The record of a justice showed a con- of the highest court in the State. Redfield, J. in viction, and a penalty imposed, but did not Brown v. Edson, 23 Vt. 448. Starkweather v. show any costs taxed; but in the recital of the Loomis, 2 Vt. 574. Blodget v. Jordan, 6 Vt. 580. judgment in the mittimus, the costs were stated 89. A justice of the peace, although out of as taxed at a sum named. Held, on habeas cor- office but residing in the county for which he pus, that this was not a fatal defect, since the was appointed, is the proper one to certify mittimus showed sufficient matter by which his own records, and not the county clerk. the justice could amend his record. Howard, Carruth v. Tighe, 32 Vt. 626. ex parte, 26 Vt. 205. 81. A justice should certify in his record the fact that a demand pleaded in set-off was so pleaded, although he did not regard it as bona fide. Hall v. Crossman, 27 Vt. 297. V. ACTION AGAINST JUSTICE. 90. Held, that an indictment did not lie against a justice of the peace for doing an act, 82. A justice's record of a judgment which as justice, after his commission had expired; shows no appearance by either party, nor adju- but, arguendo, that a civil action would lie by dication by the justice, and contains no allu- a party injured. State v. Campbell, 2 Tyl. 177. sion to any writ, process, or declaration, and 91. Under a statute authorizing a suit by shows no award of execution, is not such evi- writ of capias against a non-resident of the dence of the judgment as the record contem- State, but not against a resident;-Held, that plated by the statute should furnish, and, if the a justice who signed such writ against a resijustice is alive, is not admissible. Nye v. Kel-dent was not liable for an arrest and imprisonlam, 18 Vt. 594;-though the justice may live ment thereon, where the party was described without the State. Wright v. Fletcher, 12 Vt. 431. in the writ as a non-resident, and the justice 83. The original minutes of a justice, made supposed such to be the fact. It is not a case upon and in connection with the original files, where the justice is required, at his peril, to and showing a judgment rendered, are sufficient know in advance, the facts limiting his jurisevidence of the judgment, when no other can diction; and sound policy requires us to extend be had, as, where the justice has deceased the same rule of construction in favor of the and has made no other, or formal record. jurisdiction of justices, which obtains as to Story v. Kimball, 6 Vt. 541. courts of general jurisdiction. Wright v. Hazen, 24 Vt. 143. 84. In such case, also, a certified copy of the original files and entries thereon, made by 92. A justice has the same right to the custhe county clerk, may be sufficient as evidence tody of papers or exhibits filed as evidence in of the record. Ellsworth v. Learned, 21 Vt. 535. a case before him, that any other court of record 85. But where the justice is alive, such has. He can retain them so long as they are original entries and files are not admissible to necessary for his consideration in determining make out a record. Strong v. Bradley, 13 Vt. the issues upon which they are evidence. If 9. Nye v. Kellam, 18 Vt. 594. 21 Vt. 532. he refuses to surrender them after such deter86. A justice being required by law to re- mination, where they were used simply as evicord his proceedings, copies of his records, by dence, he is liable in trover. Yates v. Pelton, him certified, are as valid evidence as those of 48 Vt. 314. the higher courts. He sends up no originals on 93. A justice is liable in trespass for an appeal, but certifies copies of his record, in- arrest upon a warrant issued by him before cluding the recognizances taken. Hubbard v. taking the oath of office prescribed by the Constitution. Courser v. Powers, 34 Vt. 517. Davis, 1 Aik. 296. 434 LAKE CHAMPLAIN.-LANDLORD AND TENANT, I., II. LAKE CHAMPLAIN. L. berlin v. Donahue, 45 Vt 50. Rich v. Bolton, 46 Vt. 84. 1. Boundary. Lands bounded on Lake 4. Leases for uncertain times are, prima Champlain extend to the edge of the water at facie, leases at will; it is the reservation of low water mark; and the same rule applies to annual rent that turns them into leases from lands near the lake bounded on a creek empty-year to year. Rich v. Bolton. ing into it, the waters of which ordinarily main- 5. Where a tenancy at will has run into a tain the same level and rise and fall with the tenancy from year to year, the landlord cannot waters of the lake. Fletcher v. Phelps, 28 Vt. maintain trespass qua. clau. against the tenant. 257. Jakeway v. Barrett, 38 Vt. 316. Austin Catlin v. Hayden, 1 Vt. 375. v. Rutland R. Co., 45 Vt. 215. II. DISPUTING LANDLORD'S TITLE. 2. Wharfing. The owner of land bounded by Lake Champlain has no common law right in Vermont, to appropriate, as his own, the bed 6. In ejectment for non-payment of rent, of the lake beyond low water mark. His right the tenant cannot set up a defense adverse to to build wharves, &c., into the lake beyond low the title of his landlord, nor deny his title. water mark, is not appurtenant to his ownership Robinson v. Hathaway, Brayt. 150. 7. One who holds under another cannot set up an adverse claim, until he has first surrendered up the possession to him; and all who of his land so bounded, but is only the right given him by statute. (G. S. c. 64, ss. 5, 6, 7.) Hence, where the defendant filled into the lake in front of the plaintiff's land, and built in any way obtain this possession of the tenant wharves and docks upon the made land;-Held, that the plaintiff could not maintain ejectment therefor. Austin v. Rutland R. Co. I. CHARACTER OF TENANCY. are tenants in his place, and are subject to the same rule, whether informed of that relationship, or not. Reed v. Shepley, 6 Vt. 602. 8. Where one goes into possession of land under another, or acknowledging the title of another, whether such possession is that of a tenant proper, a mortgagor, a trustee, or is under a contract of purchase, neither he nor his grantee can set up an adverse title or possession, nor does such possession become adverse, until and unless distinct knowledge or notice of such adverse claim is brought home to the party under whom the possession was taken, and is held. Greeno v. Munson, 9 Vt. 37. Bowker v. Walker, 1 Vt. 18. Tuttle v. Reynolds, 1 Vt. 80. Reed v. Shepley. Hall v. Dewey, 10 Vt. 593. Ripley v. Yale, 18 Vt. 220. Wires v. Nelson, 26 Vt. 13. Robinson v. Sherwin, 36 Vt. 69. 1. At will, or for years. A parol lease, with a stipulation to pay an annual rent, though 9. A tenant cannot dispute the title of his an estate at will only," under the statute, may landlord, nor acquire a title by adverse possesbecome an estate from year to year by subse- sion, until he has first, bona fide, surrendered his quent events;-as, by an entry into possession possession, or has by some unequivocal act reand paying the rent according to the stipula-pudiated the tenancy, and this was distinctly tion, and continuing in possession beyond the known to the landlord; and this extends to first year. Barlow v. Wainwright, 22 Vt. 88. mortgagor and mortgagee, trustee and cestui Hall v. Wadsworth, 28 Vt. 410. Silsby v. Allen, que trust, vendor and vendee, and to all cases 43 Vt. 172. 46 Vt. 88. where one goes into possession of the land of another, acknowledging his title. Greeno v. Munson. Stacy v. Bostwick, 48 Vt. 192. 2. Continuing in possession of a farm for several years under a parol agreement to support the owner, was treated as a tenancy from year to year, in Hanchett v. Whitney, 2 Aik. 240. S. C., 1 Vt. 311. 10. A tenant may repudiate his tenancy and set up an adverse claim in his own right, and, by making this known to his landlord, but in 3. An agreement to pay rent is an essential no other way, the statute of limitations begins element of a tenancy from year to year. Cham- to run in his favor from that time. Greeno v. Munson. North v. Barnum, 10 Vt. 220. Hall title he could maintain trespass against the deendant for any after entry upon the premises. Pierce v. Brown, 24 Vt. 165. v. Dewey, 10 Vt. 593. 16 Vt. 124. 19 Vt. 163. 22 Vt. 623. 24 Vt. 174. 28 Vt. 613. 31 Vt. 177. 19. In ejectment by a corporation against 11. Though a tenant may, by claiming in one who entered as their tenant, the defendant his own right and apprising his landlord thereof, cannot, under the general issue, deny or comso far throw off his tenancy as to commence an pel the plaintiffs to prove their corporate adverse possession, which may ripen into a title, capacity, nor object to the formality of the yet for all other purposes the original relation lease under which he held. Grammar School has its legal effect as to the landlord's rights. v. Burt, 11 Vt. 632. The tenant is still restrained from disputing the 20. A religious society leased to the defendtitle under which he entered. Hall v. Dewey. ant the first settled minister's right in the town, 12. In an action for use and occupation, the and afterwards brought ejectment founded defendant cannot dispute the title of his land- upon a provision of forfeiture. The plaintiffs lord, nor that of the assignee of the landlord; produced on trial no evidence of title except and while he occupied, he is bound to pay the the lease. Held, that this was sufficient, and rent, and cannot object that the assignment of that the defendant could not object that the the lease to the plaintiff was fraudulent and care and management of such lands were given void as to the creditors of the lessor. Steen v. by statute to the selectmen of the town. ConWardsworth, 17 Vt. 297. gregational Soc'y. of Newport v. Walker, 18 Vt. 600. 13. No case has been found where this principle of repudiating a tenancy, without sur rendering the possession, has been extended to an action for the rent, so as to excuse the tenant from paying rent, or for use and occupation for the full term of the occupation, under the contract by which he made his entry. Redfield, C. J., in Sherman v. Champlain Tr. Co., 31 Vt. 178. III. TERMINATING TENANCY. 21. Notice to quit. In order to terminate a tenancy from year to year, so as to entitle the lessor to possession, or the lessee to exemption from the payment of rent, six months' notice of the termination of the tenancy, and looking to 14. A tenant in possession under the right the end of the year, is necessary. Hanchett v. owner was held not concluded by his acknowl- Whitney, 2 Aik. 241. S. C., 1 Vt. 311. Barlow edgement of tenancy to the plaintiff, made v. Wainwright, 22 Vt. 88. Hall v. Wadsworth, under a mutual misapprehension, or misrepre- 28 Vt. 410. Silsby v. Allen, 43 Vt. 172. sentation of the plaintiff's title. Swift v. Dean, 11 Vt. 323. 22. A tenancy at will, which is such in fact, may always be determined by any act or decla15. One who receives possession of land ration inconsistent with the continued volunfrom another may set up an adverse claim of tary relation of landlord and tenant, any assertitle to it, if that is consistent with the contract tion of title to the possession-as, notice to under which he obtained possession; otherwise, quit; threat of legal means to recover possesnot. Ripley v. Yale, 19 Vt. 156. sion; anything which amounts to a demand of 16. Though a tenant cannot dispute his possession, although not expressed in precise landlord's title, yet he may show that it has and formal language; the bringing of an action expired by matter ex post facto; and this will to obtain possession, which fails, &c. Chambe a defense to an action of covenant for non- berlin v. Donahue, 45 Vt. 50. Rich v. Bolton, payment of rent, or of ejectment predicated 46 Vt. 84. upon a forfeiture. Orleans Co. Grammar School v. Parker, 25 Vt. 696. 23. A tenant at will, though he may have occupied for several years, is not entitled to six 17. A tenant in possession cannot surrender months' notice to quit, but only to reasonable his possession to a third person, without con- notice, and such as determines the will of the sent of his landlord, so as to defeat the posses- landlord; and, where emblements are in quession of the landlord. Swift v. Gage, 26 Vt. tion, such as will protect the tenant in his 224. rights. Rich v. Bolton. 18. Where the plaintiff, a tenant of the de- 24. One took a lease of a slate quarry for a fendant, a mortgagor, took a deed of assign- term of years and occupied the quarry, paying ment of the mortgage from the mortgagee after as rent the price per square, stipulated in the condition broken, and exhibited the mortgage lease, for the slate quarried. He afterwards, deed and assignment to the defendant, notify- without consent of the owner, took possession ing him that he held the premises under that of and worked a part of the quarry outside the mortgage;-Held, that this was a repudiation limits fixed in the lease, and for several years of the tenancy and a dissolution of that re- accounted to the owner for the slate quarried, lation; that his possession thereafter was ad- in the same manner as for that embraced in verse, and that by force of such possession and the lease. Held, under the circumstances of the case, that the occupation and use of this under a lease;-Held, that the defendant was additional parcel had not expanded into a ten- not entitled to time to redeem, i. e., to pay the ancy from year to year, so as to require a six rent, &c., under Sec. 76 of the judiciary act months' notice to quit, but only such notice as of 1797. Rockingham v. Hunt, Brayt. 66. was reasonable to enable him to quarry the 31. That the receiving of rent, eo nomine, slate he had uncovered. Sheldon v. Davey, 42 accruing after a forfeiture, is a waiver of the Vt. 637. forfeiture, applies only to cases where the for 25. The plaintiff and defendant, adjoining feiture was known at the time; and, in ejectland owners, by written agreement established ment for rent under G. S. c. 40, s. 14, can only a division line between them, subject to be apply to the receipt of such rent after suit changed on the establishment of the true line brought. Maidstone v. Stevens, 7 Vt. 487. "on proper and lawful authority and manner," 32. The right to re-enter for non-payment and, if the line should be so changed, each of rent is not incident to the estate of the lessor, should pay to the other a specified yearly rent at common law, but must be reserved by deed; per acre for the land of the other occupied by and all the conditions, or stipulations, annexed him, as it should prove. In ejectment, wherein thereto must be complied with. Smith v. Blaisthe true line was found and it appeared that dell, 17 Vt. 199. the defendant had been occupying the plaintiff's 33. Where there was a parol lease for one land-Held, that as both parties claimed title year, and an express promise by parol to pay to the land, the defendant was not tenant of therefor a certain sum, and most of the premthe plaintiff so as to be entitled to six months' ises were, during the year, consumed by fire, notice to quit, but that his occupation was but the lessee continued to occupy the rest under a license, and he was entitled to reasona- through the year;-Held, that he was liable, ble notice of the plaintiff's intention to institute in assumpsit for use and occupation, for the a suit to settle the disputed line; and that, for full rent agreed. Voluntine v. Godfrey, 9 Vt. want of this, the plaintiff could not recover. 186. Bishop v. Babcock, 22 Vt. 295. 26. -when not necessary. A disclaimer of tenancy, or denial of the owner's title, dispenses with the necessity of notice to quit. Tuttle v. Reynolds, 1 Vt. 80. Clapp v. Beardsley, Ib., 151. 27. Where a defendant in ejectment denies on trial the plaintiff's title and his own tenancy, or requires proof thereof, he cannot insist on want of notice to quit, as a defense. Catlin v. Washburn, 3 Vt. 25. 34. A conveyance by a lessor to a lessee of the leased premises, is not a release of a claim for the rent already accrued. Johnson v. Muzzy, 42 Vt. 708. 35. The fact that a tenant of leased premises is also a mortgagee of the same, with condition broken, and has obtained a decree of foreclosure, but where the time given for redemption has not yet expired, does not of itself, without other notice of an intention to terminate the relation of tenant, absolve him from payment of the stipulated rent. Ib. 28. Notice to quit is never necessary, unless the relation of landlord and tenant subsists; 36. An under-tenant, who has paid his rent nor, where the party in possession repudiates to the lessee, is not liable for rent to the lessor, such relation, is notice to quit, or demand of unless he attorned to the lessor during his occupossession, necessary. Chamberlin v. Dona-pancy. Way v. Holton, 46 Vt. 184. 37. Surrender. If a tenant discontinues hue, 45 Vt. 50. 29. The defendant went into possession of his possession, this should be treated as a surthe plaintiff's land with the plaintiff's consent, render to his landlord. Warner v. Page, 4 Vt. but with no agreement as to paying rent, and 291. so occupied for near 14 years. He built a barn 38. The lease of premises at a certain quaron the premises and repaired the house. He terly rent provided that, on failure to pay the declined and refused to settle and pay rent. rent at the day, the lessor should have full right Held, that after such refusal, he could not claim and liberty to take immediate possession withthat he was holding under an implied liability out "law" or hindrance. The lessor demanded to pay reasonable annual rent; that if the re-payment of a quarter's rent, which the lessee pairs were made in compensation for the use, claimed (and so the fact was) he had already they were not a payment of a yearly rent, but paid; whereupon the lessor told him to quit, rather payments in gross for the whole occupancy; and that the defendant was a mere tepant at will, and so not entitled to six months' notice to quit. Rich v. Bolton, 46 Vt. 84. IV. RENT. 30. In ejectment for non-payment of rent unless he paid the rent; and thereupon the lessee did quit the premises, which remained thereafter unoccupied. Held, that this constituted a surrender and acceptance of the possession and terminated the lease, and that the lessee was not liable for rents thereafter. Patchin v. Dickerman, 31 Vt. 666. 39. If a lease gives the lessee a right to enter and possess the premises, it is, I think, defendant was entitled to the last crop. Willey his business to get into possession; and it is v. Conner, 44 Vt. 68. not incumbent on the lessor to put him in. The 47. Where the lessee of land agreed, by way lessee has as perfect and effectual a remedy to of rent, to "deliver" to the lessor a certain dispossess the wrong-doer, after the execution share of the products at a time and place named ; of the lease, as the lessor had before that time.—Held, that he was bound to sever such share Bennett, J., in University of Vt. v. Joslyn, 21 from the mass and to deliver it as agreed ;Vt. 52. So held in Underwood v. Birchard, 47 that until after delivery the lessor had no interVt. 305. est in severalty in the crops. Manwell v. Manwell, 14 Vt. 14. V. TENANT'S RIGHT. 48. H leased his farm and stock to D for the term of two years, for which D agreed, 40. Unless under special circumstances, a among other things, to "deliver" to H one-half tenant cannot make necessary repairs at the of all the crops, except that fed to the stock, expense of the landlord, without his express the produce to be divided by weight and measconsent and authority. Brown v. Burrington, ure. After gathering the hay and crops, D, 36 Vt. 40. 41. Erections made by a tenant which he has a right to remove, must be removed before the expiration of his term—or, perhaps, in a reasonable time thereafter. Preston v. Briggs, 16 Vt. 124. together with A, drew them away and consumed them. Held, that under this contract, the title to the hay and crops did not become vested in H without delivery, and that he had no such title as enabled him to sustain trover, or an action on the case for an injury to any 42. A tenant has no right to remove from a reversionary interest, against D and A. Hurd farm manure made from the crops which grew v. Darling, 14 Vt. 214. 16 Vt. 377. But see upon it, and which good husbandry requires 28 Vt. 4. 21 Vt. 181. should be expended upon it, although he was the owner of the crops. Wetherbee v. Ellison, 19 Vt. 379. 23 Vt. 311-12. VI. LETTING ON SHARES. 43. The court cannot assume that it was 49. An agreement between the owner of necessarily bad husbandry, for a tenant to carry land and the occupier, that the latter shall raise off the greater portion of the hay, for a single a single crop upon shares, does not amount to year, from the farm where grown. This is a a lease of the land, but the parties have a joint question of fact for the jury. Wing v. Gray, interest in the crop before a severance of the 36 Vt. 261. shares. Bishop v. Doty, 1 Vt. 37. 44. The particular contract. Since a 50. A contract in writing, not sealed, agreelease is good against the lessor without acknowl-ing to let a farm for five years, or so long as edgment, if the lessee goes into possession the parties should agree and be satisfied; and under it and conforms to its terms, the rights terminable upon one month's notice by either of the parties are to be regulated by it as a party, and taken after the usual custom of written contract. Lemington v. Stevens, 48 farmers, that is, the produce of the farm to be Vt. 38. equally divided by weight and measure between 45. The plaintiff was in possession of prem- the parties, was held not to be a lease, but that ises under a written lease from the defendant, it gave the parties a common interest in the not acknowledged, when the defendant con- growing crops, as in case of a letting for a veyed the premises to another party, not re- single crop. Aiken v. Smith, 21 Vt. 172. serving the plaintiff's right, and claiming that 51. In the ordinary case of letting a farm he had forfeited it. In an action of assumpsit by the owner to one who performs the labor for breach of the contract;-Held, that it was and receives a share of the products of the no defense to the action, that the grantee of the land had notice of the plaintiff's title, and might be compelled to confirm it in equity. Staples v. Flint, 28 Vt. 794. farm and the stock, the general result of such a contract is to make the parties joint owners or tenants in common of the increment. But the parties may, by their contract, vest the property in the increment, either in the one, or in the other. Frost v. Kellogg, 23 Vt. 308. 46. The defendant took a lease of land, on which there was a growing hay crop, for five years from July 18, 1863, and gathered that 52. The taking of a field to plant, cultivate crop, and, before the 18th of July, 1868, gath- and harvest on shares does not amount to a ered and removed the hay crop of that year, lease of the land, nor divest the owner of his making six hay crops during the term. The legal possession, nor create any estate in the county court having found that it was good land, but gives the taker a right and authority husbandry to gather the last crop at the time it to enter upon the land for the purpose of carrywas gathered, and no custom being shown to ing out his contract. Warner v. Hoisington, control the terms of the lease ;-Held, that the 42 Vt. 94. |