(dissenting). The statute of summary process necessarily puts a great power in the hands of every justice of the peace. It makes his judgment final, by denying any appeal, unless some error of law has been committed in the progress of the cause; but in that event it gives the right to resort to a writ of error.
This remedy by writ of error is defined and regulated by the common law. It is one strioti juris. Any error, whether great or small, apparent on the record, and which entered into the judgment, is fatal to the judgment. Stalker v. State, 9 Conn., 341, 344; Selleck v. Rusco, 46 id., 370, 373.
The defendants requested the court to charge the jury, among other things, as follows:—
“ One who enters into the possession of real estate under an agreement for one year or more, who continues in possession, paying a yearly rent therefor, which is accepted as such, becomes a tenant from year to year; and if such tenant be suffered by the landlord to continue in possession without any new arrangement, he must be taken to assent to the continuance of the old arrangement on the original terms. * * *
“ So after the expiration of a lease for one month, if the tenant hold over with the consent of the landlord, the law considers him as holding for another month upon the same terms as for the first month. If, therefore, you shall find that the letting was from month to month, and the defendants held over the possession of the premises after the first day of July, with the consent of the landlord, for another month, then the law considers this as a holding for the further term of one month, notwithstanding that subsequently, on the 2d of Au*442gust, 1894, the landlord gave the defendants written notice to leave the premises on the 20th day of August, 1894; and the plaintiff cannot recover in this action.
“ Mere holding over, of and by itself, is no evidence of the continuance of the relation of landlord and tenant; but if the tenant holds over and the landlord consents to his holding, this is evidence and sufficient evidence to justify you in finding that the relation of landlord and tenant did continue for the term of at least another month.
“ If the plaintiff agreed with Miller & Strickland that they could occupy these premises for one year from May 1st, 1887, and the defendants purchased the rights of Miller & Strickland, and are occupying said premises as their successors, with the knowledge and consent of the plaintiff, holding over the possession of said premises, they hold said premises and have the right to occupy the same for the same term of time as agreed upon in the original lease.”
These instructions were refused, and instead, after charging the jury that if they found that no time was agreed upon in May, 1887, the letting would be, under our statute, one from month to month, and would terminate at the end of any month, the following language was used: —
“ The defendants claim it was a lease for one year; that holding over after the expiration of the year renews the lease for another year; but I say to you that merely holding over is not evidence of alease for another year; that you must find some other evidence, showing a meeting of minds on a new lease for another year. Otherwise, if no term is agreed on, it is simply a letting from month to month.”
This was a misstatement of the defendants’ claims as to a material point, that of the necessity of the landlord’s consent to make a holding over operate as a renewal of the term; and it also failed to inform the jury what would be the result if they found that such consent was in fact given.
In one part of the bill of exceptions, the instructions requested are given as above stated. In another, they are referred to" by way of narration in connection with the statement of the defendants’ evidence, as follows: “And they *443asked the court to say to the jury that even if it was found by them to he a monthly letting, still if the defendants occupied said premises during July, 1894, as tenants with the knowledge and consent of the plaintiff, that the relation of landlord and tenant continued between them during said month of July, and that the plaintiff could not recover in this action upon the allegations in his complaint.” The opinion of the majority of the court lays some stress on the addition of the words “upon the allegations in his complaint ; ” and infers from them that the defendants had in mind, and put before the justice of the peace, only a question of variance, depending on the difference between the date of the notice to quit, and the day of its service. I do not think such inference warranted by the record. The plaintiff could, of course, recover, if at all,-only on the allegations of his complaint. These stated a letting for a month, in June 1894. The defendants set up a letting for a year from May 1st, 1894. Both parties relied, in fact, on a letting to the defendants’ predecessors in title in 1887, ever since which they or the defendants had been in possession. The plaintiff’s own books showed that he had charged rent to the defendants up to September 1st, 1894, although he testified that he had intended to charge it only to August 1st. Under this condition of things, I think the jury could not pass intelligently on the merits of the cause without specific instructions as to the effect of a holding over, with the landlord’s consent, both as to a lease for a month, and a lease for a year. The instructions requested by the defendants, and which have been quoted above, seem to me correct in substance and adapted to the case.
I think also that there were substantial errors in the exclusion of testimony.
On these points, I dissent from the opinion and judgment of the court. I concur in holding that there was no error in the rulings respecting the plea in abatement, the order for a bond, the denial of a jury of twelve, and the form of the notice to quit.
In this opinion ToEEANCE, J., concurred.