Hutchinson v. Potter

The opinion of this court was delivered by Burnside, J. If the inquest had found, as they ought to have done, under the written lease that the defendant was to give up quiet and peaceable possession of the premises loithout further notice, there would have been nothing in the exceptions. The finding would have been legal. But this fact not being found, it is impossible to support this proceeding, as § 12, act 21st March, 1772, Dunlop’s Dig. 73, expressly requires that the demand had been made of the lessee or other person in possession to leave the premises three months before the application. The three months’ notice being for the benefit of the tenant, he may waive it in his written lease; but when the fact is so, it ought to be found by the inquest. In this case the tenant has no merits. The paper-book shows that his lease had expired before this proceeding commenced, and that he covenanted to deliver up the possession without further notice. We are constrained to quash the proceeding, but we will not award restitution. Proceedings quashed.