Joseph Morris, defendant below, appellant, v. John H. Burton, plaintiff below, respondent

Joseph Morris, defendant below, appellant, v. John H. Burton, plaintiff below, respondent. If after a tenant has given three months' notice in writing of his intention to deliver up the demised premises to his landlord at the end of the year, another person in the meanwhile enters into possession of them by the permission of his wife, the husband being present and having knowledge of the entry, though he refused his permission, he will be presumed to have permitted it and assented to it, and if the sub-tenant holds over, he will be liable for double rent. A motion for leave to amend the declaration is too late after the Court has announced its opinion on a motion for a nonsuit. Appeal from the judgment of a justice of the peace, in an action of debt for rent. Burton, the plaintiff below, had rented a house and lot to one Henry E. Hill, by paroi, whose unexpired term for the year 1851 was sold at constable’s sale, and bought by Morris,' the defendant below. Three months before the expiration of the year, the defendont gave notice in writing to the plaintiff of his intention to give up the premises at the end of the year. In the meanwhile, however, another person, without the consent of Morris, but by the permission of his wife, moved into the property and held over through the ensuing year. Morris paid the rent for 1851, but refused ,to pay it for 1852, and this action was brought to recover double rent for the latter year. The pronarr alleged that both Morris and the person who had come into possession of the premises by the permission of his wife, held over for that year, but the action was against Morris alone. W. Saulsbury, for the defendant, moved a nonsuit, because it was provided by the statute, that if the tenant, or any one coming into possession under him, should hold over after due notice served, then either of them, at the election of the landlord, should be liable for double rent. But in the present case the declaration alleged that both the defendant and the person whom it was alleged had come into possession under him, had held over; and because it was not proved that that person had come into possession of the' premises with the consent or permission of the defendant, hut by the permission of his wife, which she had no authority to grant, so as to bind her husband, particularly as it had been proved that the defendant himself had refused to assent to it. E. D. Cullen, for the plaintiff: Morris, the defendant, was the tenant, and gave the notice of his intention to- deliver up the property at the end of the year; and it was his duty to deliver it up, or to see that his sub-tenant, who came into possession under him, did so, pursuant to the notice, for the plaintiff, as landlord, had nothing to do with the sub-tenant, as she was the tenant of the defendant, and not of the plaintiff, although either of them would be liable to the landlord, at his election, to double rent, for holding over after the expiration of the year. The narr, it was true, alleged that both held over; but the plaintiff, in the exercise of the election conferred upon him by the statute, had brought his action against the defendant only. As to the objection that the sub-tenant entered by the permission of his wife and without the consent of the defendant himself, it was of no avail, for he must be presumed to have acquiesced in it; because if he did not mean to assent to it, why did he not insist on her removing either before or at the end of the year? By failing to do so, he became liable for her, as one coming into possession under him. 10 Wend. 79; 2 Stark Ev. 57; 1 Esp. Rep. 142; 5 Cow. 123; 14 East, 234. [MAJORITY — The Court Harrington, Ch. J.,] The Court overruled the motion for a nonsuit, and the plaintiff’s counsel then applied for leave to amend the narr by striking the name of the sub-tenant from the averment, which alleged the holding over after notice; but the Court declined to grant the leave, upon the.ground that the application was too late, after the Court had announced its opinion on a motion for a nonsuit. The Court, Harrington, Ch. J., charged the jury: That if the person spoken of as the sub-tenant in this case came into possession of the premises with the knowledge and consent of the defendant, then she came in under him, and although a wife has no power, as such merely, to rent her husband’s property, if a person goes into possession by her permission, the husband being present and having knowledge of it, will be presumed to assent to it, and a person so entering will be considered as having come into possession under him. The defendant alone in this case had the power to prevent such occupancy, and if he permitted it, he assented to it; and if, three months before the expiration of the year 1851, written notice had been given by the defendant to the plaintiff of his intention to deliver up the premises to him at the end of it, and either the defendant, or the person coming into possession under him, held over and failed to deliver them up at that time, then the defendant would be liable to the plaintiff for double rent for the following year.