#### *The State, ex. rel. James Biggers,*v. *William Steuart.*

The writ of *Certiorari,*to remove the record from an inferior jurisdiction, is designed to correct errors of law, and not errors of fact. It is not a substitute for an appeal.

A tenant who, after the expiration of the first year, continued to hold over, without any new contract, except that implied bylaw, even into a second year, and refused to give his note, (as he had done for the rent of the first year,) or to pay rent — was held not to be entitled to the usual notice to quit.

If a tenant, either by acts or declarations, disavow his tenancy, he is not entitled to notice to quit.

It is proper to submit to the jury to determine whether the declarations of a te nant amount to a renunciation of the tenancy.

The record of the finding of a Court of Magistrates and freeholders, assembled under the Acts of 1812 and 1817, “ shall be final and conclusive to the parties, in respect to the facts to be decided by it.”

*Before*Evans, J. *at York, Spring Term,*1850.

This was an application for a writ of *Certiorari*to correct the errors of a court of magistrates and freeholders, assembled under the Acts of 1812 and 1817; cause was shown from which the following facts appeared — that for the year 1848, James Biggers, the landlord, rented to William Steuart *30a plantation, at the rent of $40. For this a sealed note was given, expressing on the face of it, that it was for rent.— Steuart continued to occupy the premises for the year 1849, and up to the 5th March, 1850, without any new contract, except that implied by law. On the day last mentioned he was summoned to show cause why he should not be dispossessed and the premises restored to the landlord. The cause shown were 1st, that he was not a tenant; 2nd, that he was a'tenant from year to year; 3rd, that he was tenant at will, and if either of the two last, he was entitled to notice, which had not been given. The fact of tenancy was established by the note above mentioned. The question discussed before the Court below, was whether the tenant was entitled to notice. In the course of the .trial, one Latta was examined by Steuart’s counsel to prove -certain admissions of Biggers, made in a conversation between them on the day of the trial, in which Biggers said that Steuart had refused to give a note or to pay rent for this year. The magistrate, Moore, charged the jury .that Steuart was entitled to three months’ notice. It was objected by Biggers’ counsel that the decision of the Court below was final and conclusive by the letter of the Acts above referred to.

The Circuit Judge thought there was no doubt about the legal principles involved. 1st. That the Court does posssss the power, by Certiorari, to correct the errors in law of inferior tribunals, in a case within their jurisdiction.

2nd. That under our decisions, where a tenant holds over without the assent of the landlord, after the expiration of the express contract, he was a tenant from year to year, and as such, entitled to -three months’ notice to quit.

3d. But if the tenant disavow his tenancy, then he is not entitled to notice. That -there are some exceptions to this, but a refusal to .pay-rent to the landlord himself is not one of them. Bnt'for the'fact that Biggers had said, in the conversation above mentioned, that Steuart had refused to give his note or to pay rent for this year, that he should have ordered the writ. It was insisted that the jury below had decided the case on the ground that Steuart, by law, was not entitled to notice. That if so, they decided wrong. But that as they might have found for the landlord on the fact that the tenant had disavowed his tenancy, he refused the writ. His Honor had no means of knowing on what ground they decided, and said he could not assume they had decided - on the legal ground against the charge of the magistrate, and against what seems to be the settled law of the land, and especially as this was made a point in the case and argued to the jury.

GROUNDS OP APPEAL.

1st. Because his Honor-erred in holding that the testimony *31of Latta, if passed on by the jury, was a fact which went to show that the tenant had disavowed his tenancy, and if so, that no notice was necessary.

2nd. Because, even supposing that the verdict of the jury had been rendered on Latta’s testimony, yet his testimony did not establish such an act of disavowal as dispensed with notice.

3rd. Because it is manifest, from the whole history of the case, that the verdict of the jury was rendered on the ground that under the Act of 1817, no notice was necessary.

4th. Because’, as the ground chiefly relied on upon the trial before the magistrates and freeholders was, that notice was not necessary, it might have been well assumed that the verdict of the jury was rendered solely on this ground, and that therefore, the motion of defendant ought to have been granted, to correct the error of law committed.

5th. Because it is manifest, from the charge of the presiding magistrate to the jury, that the questions of fact as to notice and disavowal were not relied on upon the trial, and that the verdict of the jury could not have been rendered on the question of fact.

6th. Because, even supposing the testimony of Latta had been submitted to the jury as a question of fact, yot it did not, in law, establish a disavowal,- and therefore, the motion made for the defendant should have been granted.

7th. Because Ins Honor erred in holding, that by the Act of 1812, the finding of the jury was conclusive on the questions of fact.

*Witherspoon,*for the motion.

*Williams and, Beattie,*contra.

*Curia, per*Frost, J.

The appellant’s case, as the facts may be collected from the affidavits and the statements of counsel, is, that Biggers rented a piece of land to Steuart for the year 1848, at a rent of forty dollars, for which Steuart gave his note. Steuart continued to occupy the premises until March, 1850, when Biggers having demanded from Steu-art a note for the year’s rent, Steuart “refused to give a note or to pay for rent this year.” On this evidence, the court of magistrates and freeholders, proceeding under the Acts for such cases provided, ordered that Steuart should restore to his landlord possession of the demised premises. It is to redress the supposed illegality of this or tier that the writ of *Certiorari*has been applied for.

In the case of *The State*v. *Swift and Prioleau,*this writ is said to be a common law remedy to correct the errors of law in inferior jurisdictions. It is not a substitute for an appeal ; its office is not to correct errors in fact, but in law. It might be sufficient to remark, that no illegality or usurpation *32of authority is apparent in the proceeding or in the order whjch has been made j and ¡t ¡s not the proper function of a writ of *Certiorari*to remove the record, from an inferior ju-rjsc[¡ct¡oa jnt¿ this Court for consideration whether a new trial should be granted on the evidence. By the Acts under which the magistrates and freeholders were empowered to proceed, it is provided that the record of the finding by the magistrates and freeholders “ shall be final and conclusive to the parties in respect to the facts to be decided by it.”

That the tenancy is-determined, is one of the principal facts to be found by the record, as necessary to warrant an order for the restitution of possession to the landlord. The finding of this fact by the record, is conformable to law and th13 evidence. Steuart was a tenant from year to year. The tenancy, it was acknowledged, could only have been determined at the end of the current year, by due notice from the party, desiring to determine it, to the other party. But notice is unnecessary to either party who denies the tenancy. If tenant lor a term of years attorns to a stranger or pays rent, or surrenders possession of the premises to an adversary claimant, he thereby disavows tenancy to the landlord, under whom he entered, and ejectment may be brought against him without notice. Ejectment, without notice, will also lie against a tenant from year to year who disclaims his tenancy by acts or declarations. In *Doe, dem. Williams*v. *Pasquali,*Ld. Kenyon says, notice to quit is only necessary when a tenancy is admitted on both sides; and if a defendant denies the tenancy, there can be no necessity for notice to end that says ^as no existence. It has been held, that a refusal to pay rent is not a disclaimer. That may be so. Such refusal may not be inconsistent with an acknow-ledgement of tenancy. The rent'may not be due, or the amount disputed. Payment may be refused because the landlord has not complied with the terms of the demise ; and for the purpose of coercing his compliance. But if the. refusal imports the denial of liability to payment, that is a denial of the tenancy. The tenant must then maintain the possession adversely to his landlord, either in his own right or in the right of another person. In *Williams*v. *Jeffers,*it was decided to have been properly submitted to the jury to determine whether the declaration of the tenant amounted to a renunciation of the tenancy. The finding of the magistrates and freeholders may well be sustained on this ground, though contrary to the law propounded by the magistrates at the trial.

The motion is dismissed.

Evans, Wardlaw and Withers, JJ. concurred.

*Motion refused.*