Den ex dem. Hankinson v. Blair

The opinion of the court was delivered by Hornblower, C. J. There seems to have been no serious dispute, or difficulty about the title in this case. The defence relied on by the defendant, was, that he had not had a lawful notice to quit. Two notices had in fact been proved : one of which it was admitted was insufficient; but the other, which was a three months’ notice, it was insisted, was a good and legal notice. Some slight evidence of a disclaimer, was given on the trial, and the Judge in charging the jury, left it to them to determine whether the tenant, by what he had said, had intended to disclaim his landlord’s title, and very properly told them, that if he had done so, he had forfeited his right to a notice to quit. If the Judge had overruled both of the notices, this charge would have been right, and the finding of the jury against the defendant, must in that case, have been founded on the fact of a disclaimer. But the Judge afterwards told the jury, they must consider the second notice to quit, as a good and sufficient one ; and that he should reserve the question of its legality, for consideration at bar. Hence the jury had no opportunity of passing on the question of disclaimer, for the plaintiff was entitled to recover on the notice to quit, whether the defendant had or had not disclaimed his landlord’s title. The verdict must therefore be set aside, and a new trial granted, because the notice to quit ought to have been for six months or half a year, as was recently decided in this court, in Den ex dem. McCowen v. Drake, 2 Green’s R. 523. Costs must abide the event. Ryebson, J. having been of counsel, gave no opinion. • New trial granted.