REITTEMAN V. BRANDENBURG. Filed October 1, 1884, LANDLORD AND TENANT-HOLDING OVER-NOTICE TO INCREASE RENT.-A tenant of demised premises, holding over after the expiration of his term, is presumed in law to hold over as tenant at the same rent he had previously paid, if no new agreement is made. But if he has notice from the landlord that if he retains possession he must pay a higher rent, specified as to amount at the time, he must be deemed to assent to pay such increased rent. ERROR to the county court of Arapahoe county. The opinion states the facts. James H. Brown, for the plaintiff in error. "from HELM, J. The tenancy averred and proven by plaintiff in the court below was for a single month; it was not a tenancy month to month," within the meaning of section 1,493 of the general statutes: the provisions therefore, of this section, regarding a change in the terms of lease, have no application to the contract now under consideration: Stopple Kamp v. Mangeot, 42 Cal., 316. If plaintiff's action had been brought under this provision it could not be maintained; for the notice served upon defendant was not a proper compliance therewith. It is not, and was not intended to be a "notice to quit" under section 1,504 of the general statutes. Plaintiff contends that in view of the proviso embodied in the latter statute no notice was necessary to terminate the tenancy existing in this case. His position is that this tenancy was, by contract, to end on a day certain, viz.: July 31st, that thereafter he was entitled to the possession without notice; that he then had the right independently of statute, to let the premises to another, or relet them to defendant on such terms as defendant and himself might mutually agree upon; and that his notice to defendant on the twenty-first of July was in the nature of a proposition which, by defendant's consent and acquiescence, became binding upon him as a new contract for the month of August. We are inclined to agree with plaintiff in error in these conclusions. There is no dispute but that the original entry and continued possession of defendant was that of a tenant; and the relation of landlord and tenant existed between the parties during the month of August. The notice in this case was not formal as a proposition for a new contract, but it was sufficient to advise defendant that if he held over after the expiration of the lease, he must pay an increased rental. He made no objection whatever to the increase proposed, quietly remained in possession during the month of August, and must be held to have accepted the conditions of the new contract. The law on this subject is, in our judgment, correctly stated as follows: "A tenant of demised premises, holding over after the expiration of his term, is deemed in law to hold over as tenant at the same rent he had previously paid, if no new agreement is made. But if he has notice from the landlord that if he retains possession he must pay a higher rent, specified as to amount at the time, he must be deemed to assent to pay such increased rent:" Mack v. Burt, 5 Hun., 28 cases cited. See, also, Higgins v. Holligan, 46 Ills., 173; Hunt v. Bailey, 39 Mo., 257; Griffin v. Kinsley, 75 Ills., 41; Hoff v. Baum, 21 Cal., 121; Roberts v. Howard, 14 E. C. L. R., 648. A difference will be observed among some of the foregoing cases upon an allied question not here presented. In Hunt v. Bailey, it seems to be held that if upon receipt of the notice the tenant objects to the terms increasing his rent and indicates an intention not to pay, although he continues to hold the possession of the premises without any further correspondence with his landlord, he will not be liable for such increase. While in Griffin v. Kinsley, the court declare, that by such continued possession after objection, he will be deemed to have changed his mind and acceded to the new condition. No such objection was made by defendant, until the month expired; and therefore we are not now required to express an opinion upon this particular question. The situation of defendant in the case before us is analogous to that of one who "contemplating entering into possession of the lands of another, to occupy for use, is informed by the lessor that he can do so upon terms stated and the party thereafter * * * makes entry, occupies and uses the land." Upon principle, the same rule should govern both cases; but this court has said in the latter case, that "it is a good acceptance of the terms proposed, and he will become thereby bound, under an implied contract, to pay the sum named:" Dickson v. Moffat, 5 Colo., 114. As already suggested, by the pleadings and proofs, we are advised that plaintiff is treating defendant as a tenant, under an implied contract of rental; upon the expiration of the lease for July, plaintiff elected not to regard defendant as a trespasser, but to continue the tenancy under the conditions theretofore proposed. Entertaining these views it follows that we must reverse and remand the cause. IN RE GARVEY ON HABEAS CORPUS. Filed October 6, 1884. SUPREME COURT Junges-PoWER OF TO ISSUE WRITS IN VACATION.-The judges of the supreme court cannot, acting singly or in vacation, issue any of the writs enumerated in section 3, of article VI, of the constitution, or hear or determine the matters arising thereon. HABEAS CORPUS-PRISONER DENIED SPEEDY TRIAL.--A prisoner who has not been brought to trial within the time required by section 8, of the habeas corpus act, may apply to be discharged on habeas corpus. THE SAME DETENTION OF PRISONER FOR FIVE TERMS.-A prisoner who is held in custody for five successive terms of court, without being tried, is entitled to be discharged on habeas corpus. PETITION for a writ of habeas corpus. The opinion states the facts. Wells, Smith & Macon, for the petitioner. D. F. Urmy, Attorney-General, for the people. STONE, J. The petitioner, who is imprisoned to answer to an indictment for manslaughter, now pending in the criminal court_of Arapahoe county, prays to be discharged of his imprisonment under the provisions of the eighth section of the habeas corpus act, general statutes, p. 535, which is in the words following: "If any person shall be committed for a criminal, or supposed criminal matter, and not admitted to bail, and shall not be tried on or before the second term of the court, having jurisdiction of the offense, the prisoner shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court, at the second term, shall be satisfied that due exertions have been made to procure the evidence for, or on behalf of the people, and that there are reasonable grounds to believe that such evidence may be procured at the third term, they shall have power to continue such case till the third term. If any such prisoner shall have been admitted to bail for other than a capital offense, the court may continue the trial of said cause to a third term, if it shall appear, by oath or affirmation, that the witnesses for the people of the state are absent, such witnesses being mentioned by name, and the court shown wherein their testimony is material." The facts stated in the petition, and shown by the records, to bring the case within the provisions of the statute, are that, in March, 1881, the petitioner was indicted for murder; that, before he was subjected to trial, the law of murder, as to him, was repealed; that, at the September term of the district court of Arapahoe county, the prisoner was tried, upon said indictment, for murder, found guilty thereof, and, by said court, sentenced to the penitentiary for life. That thereafter, petitioner prosecuted a writ of error out of the supreme court, to reverse the judgment aforesaid, and that said judgment was, at the April term, 1883, of said supreme court, reversed, upon the ground that, owing to the repeal of the law of murder, as aforesaid, the petitioner, could be prosecuted and punished for manslaughter only, under said indictment, and thereupon the said cause was remanded to the said district court with directions to proceed according to law. That thereafter, at the April term, 1883, of the said district court, the petitioner was, without any trial whatsoever, sentenced to imprisonment in the penitentiary for the term of eight years for manslaughter, and was imprisoned accordingly. That thereafter, at the December term, 1883, of the supreme court, the petitioner applied to be discharged from said last mentioned imprisonment under the habeas corpus act; and thereupon, by the judgment of the said supreme court, it was held that the said last mentioned judgment of the said district court was void for want of a trial and verdict upon said indictment, but, inasmuch as it appeared that petitioner stood legally indicted of a felony, it was ordered that he be discharged from imprisonment in the penitentiary, and to be remanded to the custody of the sheriff of Arapahoe county, unless he should give bail in a sum fixed by this court: In re Garvey, 3 West Coast Rep., 1. It is further shown that, being so remanded in pursuance of the order of the supreme court as aforesaid, the petitioner was again brought to the bar of said district court, whereupon afterwards he interposed his motion to be discharged, for that, although committed for a criminal matter and not having given bail, he had not been tried on or before the second term of the court having jurisdiction of the offense, such delay not happening on the application of said petitioner, and that thereupon he was entitled to be set at liberty in pursuance of the eighth section of the habeas corpus act. That afterwards, on or about the fourth day of May, 1884, the said district court, without determining petitioner's said motion, transmitted the record of the indictment and proceedings aforesaid into the criminal court of said Arapahoe county, a court having concurrent jurisdiction of said offense, and that the motion aforesaid, coming on then to be heard, was denied by said criminal court, wherefore the petitioner applies to be set at liberty upon the present writ of habeas corpus by this court. The present application of the petitioner was first made to me, as one of the judges of this court at chambers, in vacation, the latter part of June last, and a question then arose touching the jurisdiction of the judges of this court, or either of them, to act upon such application in vacation, and having declined to entertain jurisdiction in the matter the application was renewed to the court upon its convening at the present session. The same question, respecting applications for this and other writs of original jurisdiction, has been frequently raised before us at chambers, and as frequently ruled upon by the judges, but as no record is made of such proceedings in vacation, no written opinion declaring such ruling has ever been filed by the court, and hence, although this question is not a material one in the determination of this application, since it is presented to the court, yet we deem it not out of place to pass upon the question here, in order that it may furnish a referable guide hereafter. The points, therefore, to be passed upon in order are: First-May the judges of the supreme court, or either of them, entertain jurisdiction to hear and determine such matters in vacation? Second-Does the writ of habeas corpus lie as the proper remedy in this case? Third-Ought the petitioner to be discharged or set at liberty upon the state of facts presented? Upon the first question there is very little authority to guide in reaching a conclusion, aside from the language of our state constitution bearing thereon. Section 2 of article VI of the constitution declares that "The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only." following, reads as follows: * * And section 3, "It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same." This language confers jurisdiction, in respect of remedies under the several writs enumerated, upon the court only by express terms, and not upon the judges thereof, and therefore if the judges possess any such power it is by implication from the foregoing language. That no such implication arises has been uniformly held by the judges of this court ever since the organization thereof under the state constitution. This court, as expressed by the language of the constitution above quoted, is constituted to be primarily and essentially a court of appellate jurisdiction. Constitutions are instruments of limitation, chiefly as to the powers thereby conferred, and had it been the intent of the framers of our constitution to confer jurisdiction in respect of the writs mentioned, upon the judges of this court to act singly and out of term, such intent, as in the constitutions of many of the other states, should have been clearly expressed. The question of most difficulty to be answersed is that, inasmuch as the legislature has by statutory provisions (section 1,609, general statutes) conferred this authority upon the judges, and since the constitution does not expressly declare that the justices in vacation shall not exercise this power, and that the legislature retains all legitimate powers not expressly forbidden, may it not legally confer such power upon the justices? If this question be answered in the negative, as we think it should be, it is chiefly because the enumeration by the constitution of certain powers to be exercised by the court, and other language contained in that instrument, by clear implication, forbids the exercise of such authority by the justices out of term. In the case of ex parte Bollman, 4th Cranch, 75, under a statute giving the right to justices of the supreme court of the United States to issue the writ, but not to the court, it was held, (Johnson, J. dissenting) that the court might do so if in the exercise of its appellate powers; but that the converse of this proposition would legally follow, is far from conclusive. We incline to think that the writ of habeas corpus, while ancient and existing as a common law writ before its enactment, as the statute of 31 Car. II, is not now issued by courts or judges except the power so to do is expressly given by statute. And in the case of ex parte Bollman, supra, it is said by chiefjustice Marshall that "courts which originate in the common law, possess a jurisdiction which must be regulated by a common law, until some statute shall change their established principles, but courts which are erected by written law and whose jurisdiction is defined by written law, cannot transcend that jurisdiction: * for the meaning of the term habeas corpus, resort may unquestionably * * |