At .what time it must be served. At com mon law it must be given six calendar months before the expiration of the lease; 1 Term 159 ; Nichols v. Williams, 8 Cow. (N. Y.) 13; Hanchet v. Whitney, 1 Vt. 311; Den v. McIntosh, 26 N. C. 291, 42 Am. Dec. 122; Rising v. Stannard, 17 Mass. 287; see Logan v. Herron, 8 S. & R. (Pa.) 459; God ard's v. R. Co., 2 Rich. (S. C.) 346; and three months is the common time under statutory regulations; and where the letting is for a shorter period the length of notice Is regulated by the time of letting; 6 Bing, 362 ; Howard 'v. Merriam, 5 Cush. (Mass.) 563; Anderson v. Prindle, 23 Wend. (N. Y.) 616. Where a tenant under a lease for a term assents to the termination of his lease and continues to hold from day to day under a new arrangement, he is not entitled to a month's notice to quit; Lane v. Ruhl, 94 Mich. 474, 54 N. W. 175; a tenant or sub tenant holding over is not entitled to notice to quit ; Frank v. Taubman, 31 Ill. App. 592. Difficulties sometimes arise as to the period of the commencement of the tenancy ; and when a regular notice to quit on any par ticular day is given, and the time when the term began is unknown, the effect of such notice, as to its being evidence or pot of the commencement of the tenancy, will depend upon the particular circumstances of its de livery ; if the tenant, having been applied to by his landlord respecting the time of the commencement of the tenancy, has informed him it began on a certain day, and in conse quence of such information a notice to quit on that day is given at a subsequent period, the tenant is concluded by his act, and will not be permitted to prove that in point of fact the tenancy has a different com mencement ; nor is it material whether the information be the result of design or Igno rance, as the landlord is in both instances equally led into error; Ad. Ej. 141; 2 Esp. 635; 2 Phil. Ev. 186. 'In like manner, if the tenant at the time of delivery of the notice assent to the terms of it, it will waive any irregularity as to the period of its expiration; but such assent must be strictly proved; 4 Term 361. When the landlord is ignorant of the time when the term commenced, a notice to quit may be given not specifying any particular day, but ordering the tenant in general terms to quit and deliver up the possession of the premises at the end of the current year of his ten ancy thereof, which shall expire next after the end of three months from the date of the notice. See 2 Esp. 589. Where a notice
to quit is necessary, the day named therein must be the day of, or corresponding to the day of, the conclusion of the tenancy ; Fin kelstein v. Herson, 55 N. J. L. 217, 26 Atl. 688.
What will amount to a waiver of the no tice. The acceptance of rent accruing sub sequently to the expiration of the notice is the most usual means by which a waiver of it may be produced ; but the acceptance of such rent is open to explanation; and it is the province of the jury to decide with what views and under what circumstances the rent is paid and received ; Ad. Ej. 139; 2 Camph. 387. If the money be taken with an express declaration that the notice is not thereby intended to be waived, or ac companied by other circumstances which may induce an opinion that the landlord did not intend to continue the tenancy, no waiver will be produced by the accept ance; the rent must be paid and received as rent, or the notice will remain in force; Cowp. 243. The notice may also be waived by other acts of the landlord; but they are generally open to explanation, and the particular act will or will not be a waiver of the notice, according to the circumstances which attend it; 2 East 236; 1 Term 53. It has been held that a notice to quit at the end of a certain year is not waived by the land lord's permitting the tenant to remain in possession an entire year after the expira tion of the notice, notwithstanding the ten ant held by an improving lease,—that is, to clear and fence the land and pay the taxes; 1 Sinn. 333. In cases, however, where the act of the landlord cannot be qualified, but must of necessity be taken as a confirma tion of the tenancy, as if he distrain for rent accruing after the expiration of the notice, or recover in an action for use and tion, the notice of course will be waived;1 Ad. Ej. 144; 1 H. Bla. 311; Prindle v. An derson, 19 Wend. (N. Y.) 391.
A tenant becomes a trespasser at the ex piration of the time specified in a due no tice to quit; and the landlord has a right during the tenant's absence to re-enter and take possession, and eject the tenant's goods and to keep the possession so obtained; Free man v. Wilson, 16 R. I. 524, 17 Atl. 921. A tenant at will, after a notice to quit, has a reasonable time in which to vacate the prem ises; Amsden v. Blaisdell, 60 Vt. 386, 15 Atl. 332.
See LANDLORD AND TENANT; LEASE.