of rent accruing subsequently to the expiration of the notice. It has been held, however, in respect to this, that the acceptance of rent accruing as aforesaid, is not of itself a waiver of the notice, but only matter of evidence to be left to the jury to determine with what views and under what circumstances the rent is paid and received. The rent must be paid and received as rent; that is to say it must be paid and received in such a way and under such circumstances as to satisfy the jury of an intention to continue the tenancy, or the notice will remain in force. (Doe v. Bather, 1 Cowp. R. 243. Doe v. Colvert, 2 Campb. R. 387. Goodright v. Cordwent, 6 Term R. 219.) Where one having an estate in remainder after the expiration of an estate for life, gave notice to the tenant to quit on a certain day, and afterward accepted half a year's rent accrued due before the expiration of the notice to quit; the court held such acceptance to be only evidence of a holding from year to year, which was rebutted by the previous notice to quit; and therefore the notice remained good.' (Sykes v. 1 Term R. 161, cited by Gibbs, counsel.) Demand of rent accruing subsequently to the expiration of the notice is not necessarily a waiver of the notice. The circumstances must be such as to prove the intention of the parties to continue the tenancy or sufficient to constitute a new contract. The payment and receipt of rent; or a distress for such rent by the landlord, and acquiesced in by the tenant, would doubtless be sufficient to establish a waiver of the notice. (Blyth v. Dennet, 13 Com. B. R. 178. Same Case, 76 Eng. C. L. R. 178.) But it has been held that after verdict in ejectment for not quitting pursuant to regular notice, a distress by the landlord for the rent due after verdict, does not waive the notice to quit. (Doe v. Darby, 8 Taunt. 266. Holmes v. Davies, 3 R. 538. Same Case, 4 Eng. C. L. R. Moo. R. 581. Same Case, 4 Eng. C. L. R. 553.) In respect to the payment and receipt of rent as a waiver of the notice, the supreme judicial court of Massachusetts held unqualifiedly that "the acceptance of rent as rent, for a time subsequent to the expiration of the notice, is an admission of the continuance of the tenancy, and a waiver of the notice." (Collins v. Conty, 6 Cush. R. 415.) And the supreme court of New York held also that "the unqualified acceptance of rent after the expiration of the notice to quit, is a waiver of the notice;" but further decided that where there are circumstances creating a doubt as to the quo animo it is received, or as to the bona fides of the tenants, the question should be submitted to the jury; and it was intimated that though it is not the absolute duty of a judge to leave the question to a jury where there are no qualifying circumstances, yet that it would not be amiss to do so. (Prindle v. Anderson, 19 Wend R. 391.) The doctrine is very old that the mere reception of rent accrued before the time for the termination of the tenancy, is not a waiver of the notice, or a renewal of the lease; for the lessor has the right to that absolutely, whether the tenancy is terminated or not (Coke Litt. 211, b; Jackson v. Sheldon, 5 Cow. R. 456. Jackson v. Allan, 2 ib. 230. Hunter v. Osterhoudt, 11 Barb. R. 33.) And perhaps the mere reception of a sum of money by a lessor, to which he is entitled, whether the tenancy exists or not, may of itself have no tendency to prove his assent to its continuance; the act would seem equally consistent with the existence or termination of the tenancy. (Vide Currin v. Boston & Maine Railroad, 34 N. H. R. 506; Norris v. Merrill, 43 ib. 213.) The cases simply show that the payment of rent after the expiration of a notice to quit, is evidence of the intention of both parties that a tenancy should be taken as subsisting. But the payment and acceptance of rent accruing after the expiration of the notice to quit undoubtedly amounts to a waiver of a notice, though a demand of such rent does not necessarily operate as a waiver; and it seems to be a question for the jury, and not for the court, whether under the circumstances of the case, the notice has been waived. (Vide Blyth v. Dennett, 16 Eng. L. & Eq. R. 429. Same Case, 13 Com. Bench R. 178.) In the case cited from Cowper, Lord Mansfield expresses an opinion generally, that the intent of the parties is to go to the jury; but he afterward assumes that a proper case must be made out for them; and speaking of the landlord, he says: "This circumstance (the payment of rent), it is insisted, is in fact a declaration on his (the landlord's) part, that he departs from the notice. he had given, and is an acknowledgment that he still considers the defendant as his tenant. But let us suppose that the landlord had accepted this rent under terms, or made an express declaration that he did not mean to waive the notice, and that notwithstanding his acceptance or receipt of the rent, he should still insist upon the possession; or suppose any fraud or contrivance on the part of the tenant in paying it, clearly, under such circumstances, the plaintiff ought not to be barred of his right to recover; but all these facts ought to be left to the consideration of the jury." (Doe v. Balton, 1 Cowp. R. 243.) But the notice to quit may be waived by other acts of the landlord, than the receiving of rent. In all these cases, however, the facts are all open to explanation, and the particular act will, or will not be a waiver of the notice, according to the circumstances which attend it. For example, a distress taken for rent accrued after the expiration of a notice to quit, is held to be a waiver of the notice. Lord Loborough, C. J., said there could be no question of intention left to the jury, as the taking a distress was an act not to be qualified, and an express confirmation of the tenancy, and Gould, J., said: "In the mere acceptance of rent, the quo animo is to be left to the jury agreeably to Lord Mansfield's doctrine in the case in Cowper. But I agree with my lord chief justice, that the distress was in this case an act not to be qualified, and amounted to a confirmation of the tenancy." Wilson, J., expressed the same opinion. (Zouch v. Wil linggale, 1 H. Black. R. 311, 312.) It has been before stated that after verdict against a tenant for not quitting pursuant to notice, a subsequent distress by the landlord, for rent due after verdict, does not waive the notice to quit; and the case is quite pertinent under this head. (Doe v. Darby, 8 Term R. 538.) A similar doctrine was recognized by the supreme court of North Carolina, in a case where an action of ejectment was brought against the tenant by the lessor, after the expiration of the notice to quit, and pending the action the defendant gave up the possession, then the lessor sued the tenant and recovered against him for the use and occupation of the premises during the time he held over after the expiration of the notice to quit. The court held that this was no waiver of the notice. (Stedman v. McIntyre, 5 Iredell's R. 571.) In a case in the king's bench of England, where a landlord gave a notice to quit different parts of a farm at different times, which the tenant neglected to do in part, in consequence of which the landlord commenced an ejectment; and before the last period mentioned in the notice had expired, the landlord, fearing that the witness by whom he was to prove the notice, would die, gave another notice to quit at the respective times in the following year, but continued to proceed with his ejectment; the court held that the second notice was no waiver of the first. (Doe v. Humphreys, 2 East's R. 237.) And where a second notice was given "to quit the premises which you held under me, your term therein having long since expired," the court considered the paper as a mere demand of possession, and not a recognition of a subsisting tenancy. (Doe v. Inglis, 3 Taunt. R. 54.) But in the court of king's bench, in ejectment against a lessee of tithes for holding over, after the expiration of a notice to quit, it was held that some evidence must be given to show that such lessee did not mean to quit the possession; as by his declaration to that effect, or even his silence when questioned about it; or by showing that the defendant, who claimed by assignment from the original lessee, had entered into the rule to defend as landlord; and it was decided that a second notice to the defendant to quit at Michaelmas, 1811, was a waiver as to him of a former notice given to the original lessee, from whom he claimed by assignment, to quit at Michaelmas, 1810. The counsel for the landlord, in the course of his argument, laid down the rule that the giving a person a notice to quit does not operate to create a tenancy in him; when Lord Ellenborough, C. J., replied: "It does not necessarily do so, but it is generally considered as an acknowledgment of a subsisting tenancy; and if a party obey the notice, how can he be deemed a trespasser, on account of a prior notice to another person. Nothing appears to show that the defendant had knowledge of any notice to quit other than the one served upon him ;" and Bailey, J., observed that the second notice gave the defendant to understand that if he quit at Michaelmas, 1811, he would not be considered as a trespasser. (Doe v. Palmer, 16 East's R. 53.) Mr. Adams remarks that it may be collected from this case in East, that if a tenant, having underlet the premises, receive from his landlord a notice to quit, and the landlord afterward give to the under-tenant a notice to quit expiring at a subsequent period, he is precluded from recovering in an ejectment against such undertenant, upon a demise anterior to the time of the expiration of the notice so given by him to the under-tenant. And if, after the expiration of a regular notice, the landlord should give to the same tenant a second regular notice, in the usual form, to quit at the termination of the next, or any subsequent year of the tenancy, without referring therein to any claim for double value, and without having taken any steps in the intermediate time to enforce the first notice, it may be doubted whether such second notice will not also amount to a waiver of the first." (Adams on Eject. 152, 153; and vide Doe v. Miller, 2 Carr. & Pa. R. 348.) In another case decided in the court of king's bench, where a landlord of premises about to sell them gave his tenant notice to quit on the 11th of October, 1806, but promised him not to turn him out unless the premises were sold; and not being sold till February, 1807, the tenant refused on demand to deliver up possession, and an ejectment was brought against him to recover possession, the court held that the promise of the landlord, which was performed, was no waiver of the notice, nor operated as a license to be on the premises otherwise than subject to the landlord's right of acting on such notice if necessary; and that therefore, the tenant, not having delivered up possession on demand after a sale, was a trespasser from the expiration of the notice to quit. Lord Ellenborough, Ch. J., said in respect to the sale: "I cannot construe the language of this correspondence on the part of the landlord, as constituting a new tenancy between him and the defendant after the time of the notice to quit, or as a waiver of that notice; nor was it a license for the purpose now insisted upon. The landlord was willing indeed to let the defendant remain on the premises till a sale, and he was anxious at the same time to retain, and did reserve to himself, all his rights under the notice to quit with which he was armed in order to enforce obedience to that notice if it should be necessary. * Here the landlord has kept his promise, and did not turn out the tenant before he had sold the premises; but the tenant has broken his engagement by not delivering up the possession after the sale, and now ungratefully holds out against his landlord. It was for the tenant to choose whether he would continue to hold on and to expend his money and labor on the premises under such an insecure sort of agreement, but having chosen to run the risk, he must take the consequences.' Grose, Le Blanc and Bayley, JJ., severally expressed their views in respect to the case, and concurred in the main with the view taken by the lord chief justice. (Whitraen v. Symonds, 10 East's R. 13.) When a regular notice to quit had been given, terminating at Michaelmas, 1835, and previous to August, 1835, the landlord agreed to permit the tenant to continue tenant for another year, "provided he could not obtain a tenant for the farm at the rent it appeared to him to be worth, by the 1st of August, and the tenant had refused to allow a party who had applied for the farm * * |