SD1045. Alexander W. Aikman to Samuel Moulton-Barrett (brother)
Published in The Brownings’ Correspondence, 4, 358 (in part).
Spanish Town,
21st September, 1839
Dear Sir,
I have received your favor of the 17th inst. covering the Dedimus which issued with your Commission for the purpose of administering the customary oaths on your appointment. The return of the Dedimus does not state that you have taken the oath of office as an Assistant Judge of Common Pleas, but which should appear. I believe it is proper that this latter oath should be administered in Court therefore I return the Dedimus that such return may be then made before it is sent back to the Governor’s Secretary.
With respect to the first of the questions you have put viz. in the subject of rent I consider that a magistrate associating himself with another under the Act of 33 Chas 2d Ch 6 in cases under 4s/. and the Courts of Common Pleas in cases under £20. can legally adjudicate and award damages for the use and occupation of premises and this although no notice to quit has been served. This Action proceeds upon the ground that the proprietor or landlord is entitled to a reasonable remuneration for the use and occupation of his land. A mere application for rent at a certain rate would not fix the terms upon which the tenant was to occupy, unless it was mutually agreed to, or unless the party had received before or at the 1t August 1838 a three month’s notice, or after that a reasonable notice, that he would be required to pay such rent, and continued in possession after the determination of that Notice, in which case he would be deemed to have assented to pay that rent. In all other cases where a tenancy has subsisted the proprietor or landlord is entitled to such value as the premises are bonâ fide worth and no more. As there are conflicting opinions on the subject of rent accrued for the three months from the 1st of August 1838 you will exercise a just discretion in declining to adjudicate on any cases commencing before the 1st November 1838.
Reasonable notice must be considered with reference to the tenancy, a week’s notice if a weekly tenancy, and a month or quarter’s notice if holding for those periods of time[,] Six months where a yearly tenancy, the notice must determine in the corresponding day of the week, month, quarter, or year when the tenancy commenced. Where rent has been accepted the mode of payment may tend to shew the nature of the tenancy in the absence of positive agreement[.] The situation of the Master and lately enfranchised apprentices (where no agreement on payment of rent) would properly be deemed a tenancy at will having the incidents of that estate, namely: to be determined by any Notice, but then the party would be entitled to enter to reap the crop he had sown.
Whilst however the question of rent is open to difference of construction, I would rather advise You to obtain the opinion of the Attorney General than rely alone upon that I have given.
With respect to the other question: As Mr Waddell only held Cornwall House for the life of your uncle, and could not plead ignorance of the period of the determination of his estate, I think your Father is entitled to a reasonable remuneration for the use and occupation of the premise from your Uncle’s death. As however Mr Waddell has been permitted to remain without any notice that he would be charged with rent, I should not advise your demanding the bygone arrears, but to call upon him to pay you a certain sum as rent for the future or to deliver up the premises. If there has been no new agreement or acceptance of rent since your Uncle’s death, he is a mere tenant at sufferance and can be required to quit on demand allowing a reasonable time for the removal of his furniture. If a tenancy has been created the rules as to notice to which I have before alluded will apply, and you must give him such legal notice before you can alter the terms of his tenancy. I hope that I have made these points clear and satisfactory to you.
I am Dear Sir
Yours truly
Alex W Aikmann
Saml M. Barrett Esq
Cinnamon Hill
Little River
Address, on integral page: Saml M. Barrett Esqr / Cinnamon Hill / Little River P.O.
Publication: None traced.
Manuscript: Eton College Library.
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