5. The thirty days' notice, to terminate a tenancy at will, is valid
when given by either party, if it expires upon a pay-day of rent.
Wilson V. Prescott, 62 â 115.
6. A notice by the landlord is valid if when the thirty days expires
any rent previously due remains unpaid, although the notice expires
between pay-days. lb.
7. Where a tenant at will of a wharf and store thereon, left upon
the wharf, after the expiration of a notice by him to terminate the
tenancy, a cargo of ashes, which it was not practicable to remove at
that time, it was held not to amount to a continued use of the prem-
ises, or waiver of the notice. Jb.
8. After the legal TEEiirN^ATiON of a tenancy by the landlord and
a peaceable entry by him, he may remove the tenant from the prem-
ises, using such force as will justify a plea of molliter manus impos-
uit, and if the tenant after reasonable opportunity neglects to remove
his goods, the landlord may remove them, with due care, to some near
and convenient place. Stearns v. Sampson, 59 â 568.
9. Lease foe Life. A lease of land, made to a person, "to hold
for the term of the life" of the lessee, and the life of her husband,
and of another person named, is not terminated by the death of the
lessee before that of the other persons named therein. Flagg v.
(c) Mights and liabilities of the parties generally.
10. Where by the terms of the lease the lessor retained a right of
occupation of the barn, for the storage of hay, he may maintain tres-
pass quare clausum against a stranger for entering and taking away
the hay. Jordan v. Staples, 57 â 353.
11. A TENANT AT WILL has no estate which is assignable. Bingley
T. Buffum, 57â381.
12. At the expiration of a tenancy, fixtures erected by the tenant
go to the landlord, unless the tenant, before surrendering possession,
has removed them. lb.
13. Removal of Fixtures. The right of removal is the right of
the tenant who erects the fixtures, not of a subsequent tenant. lb.
14. If the tenancy is at wiU or for an uncertain period, then ten-
LAifDLOED AND TENANT. 335
ants not knowing when their rights will terminate, will have a'reason-
able time after such termination to remove fixtures erected by them.
Sullivan v. Carberry, 67 â 530.
15. If the tenant in such case does not remove his fixtures within a
reasonable time after his rights in the premises have been terminated,
he can not hold the landlord as a trespasser for taking possession of
16. If a landlord, without determining a tenancy at will, forcibly
enter upon the demised premises ten days after rent-day, and hold
them against the tenant, he thereby becomes a trespasser. Cunning-
ham, V. Horton, 57 â 420.
17. When a tenancy has been legally terminated by the landlord,
he may peacefully enter the premises, whether he conceal or disclose
his intention in entering to be for the purpose of removing the tenant.
Stearns v. Sampson, 69 â 568.
18. An allegation of an assault with force and arms upon the
female plaintiff is not sustained by evidence that the defendant, a
landlord, a reasonable time after legally terminating the plaintiff's
tenancy, peaceably entered the premises, requested the plaintiffs to
quit and remove their furniture, and upon their refusal, burst open an
inner door wrongfully fastened, took out doors and windows on a
cold day, brought a blood hound into the house and made a great
noise in the premises for several days. lb.
19. If a tenant, when he quits the premises, leaves them in an
untenantable condition he is liable for the injury in a special action
adapted to the facts of the case. Wilson v. Prescott, 62 â 115.
20. A tenant at will may maintain trespass quare clausum against
his landlord for a forcible entry upon him before the tenancy is ter-
minated. Marden v. Jordan, 65 â 9.
21. The objection that trespass quare clausum will not lie by a
mortgager against a mortgagee is not maintainable when the mort-
gager is in possession under such an agreement as creates the relation
of landlord and tenant between them. lb.
22. Liability oi' Ownek. Under R. S., c. 14, Â§ 16, the "owner"
of land is liable for the expenses of removing a nuisance therefrom,
although a tenant for a term of years caused the nuisance, and con-
tinued to be the "occupant" of the premises under his lease when the
nuisance was removed. [Walton, Babeows, and Danfoeth, J. J.,
dissenting.] Bangor v. Bowe, 57 â 436.
23. If a tenant hires the lower portion of a building, the landlord
retaining the possession and care of the upper portion, and the land-
lord does not exercise common care and prudence in the management
of that portion of the building which is under his especial supervision
he becomes liable to the tenant for damages sustained on that account.
Toole V. BecMtt, 67 â 544. See also Simonton v. Boring, 68 â 164.
24. The plaintiff hired the lower portion of a building of the
defendant, the upper portion remaining in the possession and care of
the defendant. Through the neglect of the defendant in the care
of the roof a quantity of rain came through and injured the goods of
the plaintiff. Held, that the defendant was liable for the damage. lb.
25. There seems to be no case where the owner of real estate has
been exonerated from the consequences of his neglect to keep the
336 I,AOT)LOED AND TENAJra.
access to a place of business reasonably safe, because the property
may be in possession of his tenant. Campbell v. Portland Sugar
26. When, by verbal agreement, premises are let by the month, for
a specified rent to be paid monthly, and at the same time and as a
part of the contract, the landlord agrees to make certain repairs, the
agreement to make the repairs is not binding upon the landlord,
although the hirer occupies the premises, pays the rent, and an injury
results from the neglect of the landlord to make the repairs. G'Leary
V. Delaney, 63â584. See Post, 29.
II. THE LEASE.
27. The plaintiffs, being tenants at will of a store under the defend-
ants, mortgaged to them a building, annexed to and connected with
the store, which was owned by the plaintiffs as personal property ;
held, that a description of the mortgaged property as "a building and
appurtenances," would not have the effect to surrender or transfer to
the defendants the right which the plaintiffs had to occupy the store.
Goodenow v. Allen, 68 â 308.
28. The plaintiff leased a farm for the term of one year, the lessee
to pay therefor "one-half of all the proceeds raised or grown thereon,
and to cut and put into the barn all the hay." The lessor was to fur-
nish all the grass seed, "to have the right to cut off the stock in the
winter to the amount of hay that the place may furnish for their
keeping, to furnish all the hay, if any is wanting to keep out the
stock, and if any hay is left, the lessor to have the same." Held, that
the hay was not included in the "proceeds," and all belonged to the
lessor. Jordan v. Staples, 57 â 352.
29. The owner of a building leased an upper story for the term of
ninety-nine years, covenanting that he, his executors and assigns
would keep in good repair the outside of the building, and that the
covenants, grants and conditions therein contained should be binding
on the respective parties and their legal representatives. Subse-
quently, the lessee assigned the lease to the plaintiff, and afterward
the lessor conveyed the building, subject to all his liabilities to the
lessee for the hall, to the defendant. The plaintiff, after notice to the
defendant to make necessary repairs, and neglect on his part, made
them, and brought assumpsit for the cost of the same. Held, that the
action was maintainable. Rising Sun Lodge v. Buck, 58 â 426.
30. Where a lessor covenants that, in connection with the demised
premises, and without any additional rent, the lessee may occupy and
improve an adjacent lot for a specified purpose, excepting only such
portions as the lessor may sell or use for building, which sale or use
is to terminate the tenant's right to such additional privilege, the
tenant's possession of the adjacent lot, if it has been taken for the
purpose specified, is sufficient to enable him to maintain trespass
quare clausum against the lessor for an entry thereon for a purpose
not mentioned in the lease and against the will of the lessee. Bryant
V. Sparrow, 62 â 546.
31. To CoNTiisnTE AT THE Will of the Lessee. The plaintiff
leased a building to the defendant "for five years and as much longer
as he desired," at a specified rate per year. The defendant regularly
paid his rent, and occupied the building during the five years, and for
LANDLOED AND TENANT. 337
several years thereafter, when the plaintiff gave him a written notice
to quit, and upon his refusal, brought process of forcible entry and
detainer. Held, that, as between the parties, the plaintiff was
estopped by his agreement from maintaining the process, and that if
the defendant paid the rent he was entitled to possession of the build-
ing as long as he desired. Sweetser v. McKenney, 65 â 225.
32. A written instrument, under seal, after leasing certain premises
therein described, at a specified rent, for one year, contained these
words : "we further agree to lease to said Young said premises . . .
at the price and conditions named, so long as he wishes to occupy the
same, the said Young agreeing to take good care of the premises, and
not suffer them to go to waste more than the natural use of the same."
Held, (1) not merely an agreement for a lease, but a lease after the
expiration of the tenancy ; (2) that the remaining in possession by
the tenant after the expiration of the year was an election to continue
the tenancy, and (3) that the tenant had the right to remain upon the
conditions named in the lease as long as he wished to occupy the
premises. Holley v. Young, 66 â 520.
33. An instrument under seal was given by a married woman to
her husband, running as follows : "I hereby sell, transfer, and make
over to him all the wood . . . now standing and growing upon all
the wild lands I have and hold in the county of Washington, together
with the grass, cranberries, blueberries, and all other fruit, if any
which may be found or grown thereon for the space of ten years from
the date hereof . . . giving him and his assigns full power and author-
ity to enter said lands for the purpose of enjoying the property herein
sold and conveyed, and to control and manage the same as he may
see fit." Held, that in addition to an executory sale of the blueberries
which might be grown upon the land, the writing amounted to a lease
of the land, giving the husband a sufficient estate for the growing and
supporting of the successive annual yields of berries thereon, and the
title to them. Freeman v. Underwood, 66 â 229.
34. Verbal Lbase. A verbal lease of land is not only sufficient to
establish the relation of landlord and tenant but as to the amount o f
rent, and the times when it shall become payable is binding upon the
parties. Cameron v. Little, 62 â 550.
III. ACTIONS FOE USE AND OCCUPATION.
35. When a person occupies real estate under a contract for the
purchase of it, which is ultimately carried into effect, and there is no
express promise on the part of the purchaser to pay rent, an action
for use and occupation cannot be maintained. Dennett v. Penobscot
Fair Ground Co., 57 â 425.
36. The defendant conveyed to the plaintiff a farm by deed, condi-
tioned, that unless the plaintiff should pay certain notes, the deed
should be void. The notes not being paid at maturity, the defendant
took possession of the farm and leased it. Subsequently the plaintiff
paid the notes and entered into possession of the farm. Held, that
the plaintiff could not recover for the rent received by defendant, or
for use and occupation. Bartlette v. Jones, 60 â 246.
37. In an action for use and occupation, in which the defendant is
shown to have been in possession of the premises, and the title
338 LAl^TDLOED ANB TBNAJ>fT â LABCBNT.
is in the plaintiff, the correct doctrine seems to be, that a contract
may be implied as long as it is left to mere implication to determine
whether the occupation was with or without the assent of the owner.
Page v. McGlinch, 63â472.
38. "When, under a tenancy of any nature, it is agreed that the rent
shall be paid at regular stated periods, and the landlord voluntarily
terminates the tenancy between such periods, he can recover nothing
for the occupation after the last regular rent day. Cameron v. Lit-
39. A tenant who remains in possession after the termination of
the lease is liable for rent. Bonney v. Foss, 62 â 248.
40. Estoppel. A tenant at will who gives his landlord thirty days
notice to terminate the tenancy, stating that he shall surrender the
premises on the day specified for its termination, but who does not,
in fact, surrender the premises and afterwards remains in possession,
claiming title thereto, is estopped to deny the title of his landlord.
Longfellow v. Longfellow, 61^590.
41. The doctrine of estoppel, such as exists by the relation of land-
lord and tenant, applies to a building situated upon leased land. Ry-
der V. Mansel, 66â167.
42. Although a tenant without a surrender or eviction, or some-
thing equivalent thereto, can not show that the title of his landlord
was not a valid one when he entered under him, he can show that
such valid title has been legally extinguished or determined, so that
it no longer exists. Lb.
43. Where the building hired is situated upon leased land, so that
the rightful possessor of the house becomes entitled to use and enjoy
the possession of the soil, and the tenant, after going into possession
under a verbal lease from the owner of the house, upon which there
is an outstanding mortgage, purchases the mortgage upon his own
account, and forecloses it as one upon personal property, he may,
without surrendering possession, show these facts and will not be liar
ble for rent after his title becomes absolute by foreclosure, nor can the
landlord after that time, evict him by process of forcible entry and
l.'The allegation in one count of the larceny of several articles at
the same time and place does not render the indictment bad for
duplicity. iState v. Stevens, 62 â 284.
2. An indictment for the larceny of bank bills, describing the
number, denomination of the bills stolen, and the value of each, need
not set forth the names of the banks by which they are issued, or
assert their genuineness. Lb.
8. It is not competent for a person on trial for larceny to introduce
evidence of his declarations, made after the property came into his
possession, that he obtained it by finding. State v. Pettis, 63â124.
4. In a complaint for larceny the allegation of ownership is sustain-
ed by proof that the person named had the goods in his possession
by loan from or contract for purchase with the owner. Lb.
LAW AND EACT. 339
5. An indictment alleging that the defendant "feloniously did steal,
take and carry away, against the peace of the State, and contrary to the
form of the statute in such case made and provided" certain described
property, "of the goods and chattels" of a person named is sufficient.
State V. Leavitt, 66 â 440.
See Embezzlement, p. 195.
LAW AND FACT.
I. WHAT ARE QUESTIONS OF LAW.
II. WHAT ARE QUESTIONS OF FACT.
I. WHAT ARE QUESTIONS OF LAW.
1. When there is no dispute as to the precise spot on the face of
the earth where an alleged crime was committed, and it ajDpears by
ancient charters, legislative enactments, and judicial records, that the
political authorities and courts have heretofore claimed and exercised
jurisdiction over the locality in question, the question of jurisdiction
18 one for the court and not for the jury. State v. Wagner, 61 â 178.
2. When a domestic judgment is put in issue it is to be tried by
the court, notwithstanding it is a question of fact. Sawyer v. Garce-
3. Fraud. When there is no evidence tending to show fraud, the
court may decline to submit that question to the jury. Jones v.
Â£urnham, 67 â 93.
4. Negligence. When the facts are clear and unequivocal, and
there is no question of motive or intent to be judged of, and no
attendant circumstances or exigencies to be weighed, what consti-
tutes negligence is a question of law. Kellogg v. Curtis, 65 â 59.
Grows V. Maine Central R. B. Co., 67 â 100.
5. Whether an ordinance or by-law of a town is reasonable or not
is a question of law for the court. Jones v. Sanford, 66 â 585.
6. The court, will however exercise with caution its power to declare
such by-law invalid. lb.
7. What is a eeasonable time is a question of law. Portland v.
Water Company, 67 â 135.
8. Whether there is any evidence in support of an action is a ques-
tion of law. Hazen v. Jones, 68 â 343.
9. On the trial of the respondent for sending to the complainant a
threatening letter of the following tenor, "Freeport, Sept 31 you may
if you pleas you can enclose ten dollers in an letter and cend it to
Joseph Boothby Yarmouth me or els you will be enbited next tuesday
or complained of me no fool demacratt head quarters," the presiding
judge ruled as a matter of law upon the interpretation to be given the
letter. Held, correct. State v. Patterson, 68 â 472.
10. Whether an alteeation of an instrument is material or not is
a question of law for the court. Belfast Bank v. Uarriman, 68 â 522.
340 LAW AND PACT.
II. WHAT AEE QUESTIOKS OF FACT.
11. The question of the ebasoktable trsE of the water by a mill
owner is for the jury. Phillips v. Sherman, 64 â 171.
12. Where a question as to the ownership of personal property
depends upon oral as well as written evidence, the decision of it is
properly left to the Jury. Boody v. Goddard, 57 â 602.
13. Verbal Conteacts. While it is a general rule that the terms
of a verbal contract are to be settled by the jury, the law will infer
certain elements as growing out of particular contracts, or impose
specific duties in connection with them, although the contract is verbal
and nothing is said in relation to the elements or duties. SaUou v.
14. Sale. When a seller verbally proposes to sell his goods at cost,
and at the same time names a price as the cost, and the proposition is
acceded to by the purchaser, whether the transaction amounts to a
sale at the price stated by the seller as the cost, or is a sale at the real
cost to the seller, although a sum different from the price named, is to
be determined by the jury, not by the court. Willard v. Mandall,
15. Libel. In a prosecution for libel the defendant has the right
to have the jury determine whether or not the publication is libelous.
But he may waive this privilege. State v. Goold, 62 â 509.
16. In an action for a libel, if the alleged libelous publication does
not name the plaintiff, the jury are to determine whether he was the
person intended in it. Powers v. Cary, 64 â 9.
17. In an action for a libelous publication, while it may be the duty
of the judge to say whether the publication is capable of the meaning
ascribed to it by the plaintiff when he has done that, whether that
meaning is the true one, and if not what the true meaning is, is to be
left to the jury. lb.
18. Delivery. When the question at issue is, whether goods pur-
chased by one who, at the time of the purchase, does not disclose to
the seller the name of any purchaser except himself, were actually
purchased for himself, or for an undisclosed principal, it is erroneous
for the presiding judge to instruct the jury that a delivery of the
goods by the seller to a carrier directed to the apparent purchaser
was a delivery to him, for this decides the question of fact which
should be submitted to the jury. State v. Intoxicating Liquors, 63
19. Judgments. When a foreign judgment is put in issue, it is to
be tried by the jury. Sawyer v. Garcelon, 63 â 25.
20. When the record of a judgment is introduced in evidence, the
force, effect, and inferences to be drawn from the facts established by
it are for the jury. State v. Gorham, 67 â 247.
21. Negligence. Whether a person, injured by a locomotive at a
railroad crossing, was or not, at the time of the collision, in the exer-
cise of ordinary care, is a question for the jury to determine from the
evidence, under proper instructions. Webb v. P. db K. JR. H. Co.,
22. The SFEPiciENCT of the evidence in support of an action is a
question of fact. JTazen v. Jones, 68 â 343.
LIBEL AND SLANDER. 341
LIBEL AND SLANDER.
I. ACTIONABLE WORDS. SPECIAL ALLEGATIONS.
II. EVIDENCE, PRACTICE, ETC.
I. ACTIONABLE WORDS. SPECIAL ALLEGATIONS.
1. In an action of slander, where the words "you swore to a lie, and
I can prove it," are relied on as imputing to the plaintiff the crime of
perjury, there must be an averment in the declaration that the words
were spoken with reference to some proceeding before some specified
court, tribunal, or officer created by law, or in relation to some spec-
ified matter or thing where an oath is authorized by law ; and the
allegation must be supported by proof or the action is not maintain-
able. Small V. Clewley, 60 â 262.
2. In such case the general averment, that the defendant intended
thereby to charge the plaintiff with the crime of perjury is not suffi-
3. An allegation "you have committed the crime of perjury," when
supported by proof, will sustain an action of slander. lb.
4. No action can be maintained for words spoken of a person with
reference to his occupation, unless the declaration contain a distinct
averment that they were spoken of and concerning him, and of and
concerning his occupation. Powers v. Gary, 64 â 9.
5. There is a well settled distinction between written or printed
and verbal slander in respect to its actionable character. Much, which
if spoken, would not be actionable without averment of extrinsic
facts or allegation and proof of special damage, when written or
printed is in itself a substantial cause of action. Tillson v. Hobbins,
6. In an action for written or printed slander, though no special
damage is alleged, and no averment of such extrinsic facts as might
be requisite to make the article published import a charge of crime
against the plaintiff are made, the action is nevertheless maintainable
if the published matter is such as, if believed, would naturally tend
to expose the plaintiff to public hatred, contempt or ridicule, or
deprive him of the benefits of public confidence and social intercourse.
7. A publication, "The Hurricane Vote. Again we have to chron-
icle most atrocious corruption, intimidation and fraud in the Hurricane
island vote, for which Davis Tillson is, without doubt, responsible, as
he was last year," is actionable without extrinsic averments to com-
municate its precise import, and without any allegation of special
8. In the absence of special averments it is presumed that the
words alleged to be actionable were used in their ordinary and popu-
lar sense. Wing v. Wing, 66 â 62.
9. All the words spoken, so far as is necessary to ascertain the
meaning of the person who utters them, must be considered together.
The sense of actionable words may be so far qualified by subsequent
words spoken in the same connection that the words taken together
are not actionable. lb.
342 LIBEL AND SLAISTDEE.
10. The words "A. W. stole windows from B. J.'s house," do not
impute the crime of larceny, but amount to the accusation of a tres-
pass upon real estate only. lb.
11. Words can not be regarded, upon demurrer to the declaration,
as actionable unless they can be interpreted as such with at least
reasonable certainty. lb.
12. In case of uncertainty as to the meaning of the expressions of
which the plaintiff complains, he must make the meaning certain by
means of proper colloquium and averment. lb.
13. A statement in a libelous article that the writer had been
informed that the plaintiff was "arrested for drunkenness," is not an
assertion that he was in fact drunk, but only that he was arrested
upon a charge of drunkenness. Stacy v. Portland Publishing Co., 68
14. The additional words of the article : "A ten dollar note quieted
the affair," is, at most, a statement that the charge subsided or the
arrest was abandoned for the sum named. lb,