bolt, the executor of Sir George Moore, brought his bill to be reimbursed against Porter, according to his covenant on the assignment, on which he could not recover at law, by reason that Sir Charles Rich could not at law have recovered of Sir George Moore, for want of an attornment. Porter, by answer, set forth the agreement made with Sir Charles Rich, for surrendering his term, and delivery of the key, and his acceptance of it, &c. and therefore insisted he ought not to be charged, and the court now, upon the hearing of the cause, was of opinion, that the agreement was well proved, and a good discharge, and Porter not liable to answer any rent after that time: and though the court had decreed otherwise against Sir George Moore, yet Porter, being not party to that suit, was not bound thereby, and therefore, without any regard to that decree, they were to judge upon the case then before them, and saw no reason to relieve the plaintiff.

As the section we are upon, makes an express exception of surrenders, which take effect by operation of law, a knowledge of what constitutes a surrender in law seems necessary to a right understanding of this branch of the statute. The science of law, whether derived from statute or custom, is a science of rules rendered flexible to the varying wants and relations of mankind, in a state of society more or less complex, by a multitude of exceptions and controuling distinctions; the statute of frauds, framed in an era of social and political advancement, has much of this modified character, and will, therefore, be very superficiallyunderstood, unless the boundaries of its application are as well known, as its *positive enactments. When we are told, therefore, that all virtual surrenders, or such as have their operation by construction or consequence of law upon the acts of the parties, remain as they stood at common law, we require also to be instructed with respect to the true notion to be entertained of a surrender at law. In the case of Magennis v. Macèullough,(r) above cited, the Chief Baron, in considering the surrender by cancelling as out of the exception, construed the words by act or operation of law, to intend only that virtual surrender which is wrought by the taking of a new lease or interest, which, being in writing, is of equal notoriety with a surrender in writing. And this.exposition and limitation seems to agree with the cases and authorities. If a lessee for life or years accepts a new lease in writing,

(r) Gilb. Eq. Rep. 236.

of a surrend

from the lessor, the original lease is forthwith surrendered by That the prooperation of law. And as this effect seems capable of being per example produced in two ways, viz. by implication or construction, and er in law, is, where the by the technical consequence of merger by union of estates, it lessee acwill be proper, therefore, to have regard to these distinct consequences.

cepts a new lease, in writing, before the end of the existing

lease.

ties.

A surrender in law of a lease in possession is implied in the acceptance of a new lease from the reversioner; for if the lessee accept a new lease from his lessor, he admits and affirms his lessor's ability to make such new lease, which could not be done by him, if the old lease stood in his way. Upon this principle, if a lessee for twenty years, or any greater number, takes a new lease of these exfor ten or any smaller number, to take place during the period of their reasons amples, with the first, the first term of twenty years is thereby determined,(s) and variebecause the lessee having made a lease for a longer duration, was incompetent to contract for another lease in possession, while the former remained unsurrendered; the surrender, therefore, of the longer lease is implied from the necessity of the thing, and the surrender of the whole is implied, because the contract was entire, and incapable of being divided or avoided *for part, and left [255] standing for part. And though such second lease were made to commence in futuro,(t) as an interesse termini, to take effect during the first lease in possession, and not in reversion, the same consequence by construction must take place, for it equally imports an admission and affirmance of the lessor's ability to make a new contract. And upon the same reasoning, if before the statute of frauds such second lease were made by parol,(96) it would operate as a surrender of the first.

But looking to the same principle of construction, it seems clear that since the statute, such parol lease, if for more than three years, being incapable of conveying any interest beyond an estate at will, would not afford a ground for the implication of a

(s) Cro. Jac. 84, Gybson v. Searles, 2 Roll. Abr. 496. (t) 2 Roll. Abr. 496; and Cro. El. 605, Hutchins v. Martin.

*

(96) 2 Roll. Abr. 496. The note to the 11th edit. of Coke Litt. does not seem to be correct in supposing it necessary, in order to produce this surrender by implication, that the second contract should be of as high a nature as the first. Vide note 296.

ке

surrender; for as the interest is built upon intention, it seems to follow, that if such lease does not pass an interest according to the contract and intention of the parties, the acceptance will be no surrender in law of the subsisting lease; upon which point the judges seemed to agree, in the case of Wilson v. Sir Thomas Sewell,(u) relying upon the authority of Lloyd v. Gregory, which they cited from Sir William Jones's Reports.(97)

It should be observed, however, that although a lease, not by deed, granted to take effect during a subsisting antecedent lease, and falling short of it in extent and duration, if given to a stran*[256] ger, is necessarily void, as has been shown at the *beginning of this chapter; yet that, if it be given to, and accepted by the prior lessee himself, it will operate as a virtual surrender of his subsisting lease, and take effect in him by substitution; for it is only considered as void in law, because of the subsisting lease, which absorbs all that it affects to give; the removal, therefore, of that interest out of the way, makes room for it to operate; and, to set up that as an obstacle, the removal of which is supposed between the parties interested in the new grant as well as the old interest, would be to contradict the intention where the law allows intention to govern the construction.

The reader should be reminded also, that in this last supposed case of a new lease to the lessee made by writing, without deed, and for a term of shorter duration than the subsisting lease, as no reversion can be supposed to be carried by it, but only an interesse termini, nothing is passed which can merge the possession of the first lease; the surrender of it can, therefore, only be wrought by implication from intention; whereas, if the second lease, though of shorter duration than the first, had been. made by deed poll, or indenture, inasmuch as such a conveyance was capable of carrying the reversion to which the rents and services might be incident, it seems that there would be room for considering the first lease as merged in the reversion; for an union of the reversion, with the possession, though for ever so short a time, seems in law to merge the subordinate interest.(x) But if the second lease, though made by deed, is not

(97) 405, 406, and see 2 Roll. Abr. 495, (F.) pl. 7, where the same case is referred to by the name of Fludd v. Gregory.

to commence till the first is expired, no merger will take effect, as appears by the anonymous case in Anderson's Reports,(v) where a lessor lets his lands to A for life, and two years over; and afterwards let the same lands to B for forty years, to commence after the death of A, and the end of the term of twenty years; and B intermarried with A, and A died, so that the term of twenty years was left in B; yet as the term of forty years was not to commence till the first lease was ended, there was no merger by union of the terms.

*[257] If the lessor grant the re

version to the lessee,

broken.

*But if a lessee takes a second lease from his lessor, to commence before the expiration of the first, though the second lease is of less duration than the first, and is, moreover, made subject to a condition, which is afterwards broken, so that the lease upon condi tion, the first becomes void, yet the first lease is irrecoverably merged and lease is mergone by the acceptance of the second, as appears by Coke Litt. ged, and not capable of 2186. where it is said, that if a man make a lease for forty years, restitution, though the and the lessee afterwards takes a lease for twenty years, upon condition is condition, that if he do such an act, that then the lease for twenty afterwards years shall be void, and afterwards the lessee break the condition, by force whereof the second lease is void, nevertheless the lease for forty years is surrendered, for the condition was annexed to the lease for twenty years, but the surrender was absolute. So it is, if a man make a lease for forty years, and the lessor grant the reversion to the lessee upon condition, and afterwards the condition is broken, the term is absolutely surrendered; for a condition may be annexed to a surrender, and revest the particular estate, because the surrender is then conditional; but when the lessor grants the reversion to the lessee upon condition, there the condition is annexed to the reversion, and the surrender is absolute.

But the doctrine of merger supplies a principle to which only And even if certain instances of these surrenders in law can be reduced: the the second lease be void, implication of intention from the acts of the parties, is the only yet a surrenlegal foundation which will support them in all their extent. In der of the subsisting Mellows v. May,(z) the case upon the special verdict in trespass lease may be was thus: Ralph Mellows and his wife, being lessees for life of lands, effected by it. the lessor, by indenture between himself and the said lessees, and J, their son, let the same lands to the husband and wife and son,

(y) And. 32. (z) Cro. El. 873.

[258]

habendum a die datus, for their lives, and made livery two days And there were two quesafterwards secundum formam charta.

tions, viz. whether the second lease were good or void; and if void, whether it was a surrender of the first lease.

It was resolv. ed by all the court, that the second lease was void, forasmuch as it was *habendum a die datus, and the livery made so long after it would not help it.(98) But yet they agreed, that it was a surrender of the first lease, though itself was void; for the acceptance of the indenture in contracting, and the agreement to And have a new lease, made a surrender of the first lease. Walmsley said, that if a lessee for life or years takes a lease at will, a surrender would be wrought upon the same principle.

But if such But yet, according to the case of Watt v. Maidwell,(a) if such second lease, second lease be void, not by reason of its own infirmity, but the though not

intrinsically disability of the lessor, it will not operate a surrender of the first void, be in lease. Thus, therefore, where a man made a lease for forty-one

effectual by

lessor's inability, it will not operate

as a surrend. er of the first lease.

reason of the years by indenture, dated the 14th November, 1616, to A, to commençe from the annunciation, which should be in the year 1619, and, afterwards, in the same year, by another indenture, bearing date the 3d of December, made a lease to B for 99 years, to commence from the annunciation then last past, by virtue whereof B entered and was possessed, and then the lessor, by another indenture, made the 16th of November, 1617, made another lease of the same lands to A, to commence from the 17th of November, 1619, for forty-one years, which was accepted by A, who, after the commencement of his term, entered and was possessed, and made his will and died, and his ex

(a) Hutton, 104.

(98) This, however, does not appear to be law at the present day. The courts have determined, that if livery be made by the lessor after the date of the deed, it shall controul the express day in the deed, and make such lease habendum a die datus good. For it shall not be understood to pass till the livery, and then it might commence presently, and would not be a freehold granted to commence in future. See the case of Freeman on dem. Vernon v. West, 2 Wils. 165. And the same effect will be produced if such livery after the day is made by attorney, ibid. Therefore, the distinction in this respect to be found in the Touchstone, 215, seems not to hold with reason or law. Et vid. Palm. 30; Dean and Chapter of Worcester's case.