hold, but as the grant was made by covin of the lessor, it was held that the lease for years continued in esse as to him, though not as to a stranger; and otherwise the lease for years nolens volens would have been destroyed: the law respecting occupancy has been altered in this respect by the Statute of Frauds (g), but the case referred to illustrates the doctrine of merger.

An estate for a person's own life being considered(h) of a higher degree than an estate pur auter vie, the latter estate is capable of being merged in the former, but an estate for a person's own life will not merge in, or be absorbed by an estate pur auter vie. A term for years will merge in an immediate reversion for years, or may be(i) surrendered to a person having such a reversion, and it is immaterial whether the reversionary term be longer or shorter(k) than the immediate term: if a person seised in fee demise for ninety-nine years, and then grant his estate in reversion for one year, or for any number of years, a surrender by the lessee for ninety-nine years to the owner of such reversionary term, during its continuance, will destroy and annihilate the term of ninety-nine years.

9. A term for years coming to a person as executor, or in right of his wife, will not merge(7) in a freehold estate, which the party had in his own right before the term vested in him by such act of law: nor will a term of years held in auter droit, be merged by a subsequent descent of the reversion: but a purchase of the immediate reversion by a person possessed of a term for years in right of another, will produce a merger of the term.

10. A surrender can only be made by a person having an estate in possession, and, therefore, a lease for years cannot be surrendered (m) before its commencement, or before the entry of the lessee: an interesse termini cannot be made the subject of an express surrender, because until the lessee for years enter, there is no reversion in the lessor, in which the estate of the lessee can be absorbed, but though an interesse termini(n) cannot be surrendered, it may be assigned or released. A lease for years created in December, 1799, to commence from Mi

(g) 7 Will. III. c. 12, s. 9, Irish; 29 Car. II. c. 3, s. 12, English; 1 Vict. c. 26, s. 6, Eng. & Irish.

(h) Preston on Merger, 225; Lewis Bowles's case, 11 Rep. 83, B.; Anon. Owen, 38.

(i) Hughes v. Robotham, Poph. 30; Cro. Eliz. 302; Burton v. Barclay, 7 Bing. 745; 5 Moo. & P. 785.

(k) Stephens v. Bridges, 6 Madd. Rep.

66; Chaloner v. Davies, 1 Ld. Raym.

402.

(1) Platt v. Sleep, 1 Bulstr. 118; Cro. Jac. 275; Anon. 4 Leon. 37, case 102; Prest. on Merger, 279–285–309.

(m) Perk. ss. 599, 600, and 601; 2 Ro. Abr. 494, Surrender, C. plac. 5, 6, and 7; Shepp. T. 303; Bac. Abr. Leases, S. 2.

(n) Hennings v. Brabazon, 1 Lev. 45,

chaelmas, 1809, was ruled neither to be merged nor annihilated by an estate in the same lands(o) devised to the lessee for his life, where the lessee had conveyed away such life-estate before Michaelmas, 1809, so as to prevent him from having both estates, by way of present interest, at one and the same time.

A surrender must pass a present interest, and cannot be made to take effect(p) from a future period : hence, a notice in writing given by a yearly tenant of his intention to quit at a future day, which happens to be ineffectual(q) for the purpose of putting an end to the holding, though accepted by the landlord, cannot operate as a surrender, if the tenant refuses to quit at the appointed period : but an executory agreement by a tenant to give up possession of demised premises to his landlord at a future period, though ineffectual as a surrender, may(r) operate as a license, and afford a defence to an action of trespass for acts done under it. It is to be observed, however, that a lease may be determined before its regular expiration, by notice given(s) in pursuance of a proviso for that purpose contained in the instrument: such clauses are commonly termed clauses of surrender, but it is clear that a notice by a lessee of his intention to give up the possession at a future day, cannot operate as a surrender, nor can there be a valid surrender without acceptance by the surrenderee: a proviso of this nature is to be considered rather as a conditional limitation, by means of which the lessee may put an end to his holding without the landlord's acceptance, and the requisite notice under such a clause takes effect in the same manner as an ordinary notice of giving up possession by a yearly tenant, and does not require any stamp. A landlord having distrained for rent, the lessee signed an instrument, undertaking to give up possession of the demised premises to the lessor on or before the end of a week, in consequence of such distress being relinquished: the tenant (t), in pursuance of this agreement, sold some of the furniture on her own account, and admitted the lessor's servant to work in the garden: possession having been refused at the appointed time, the landlord entered and nailed up the doors and windows, and it was decided in an action of trespass brought by the tenant, that such executory instrument con

(0) Doe dem. Rawlings v. Walker, 5 B. & Cress. 111; 7 D. & Ry. 505, S. C.

(p) Parson's case, 3 Dyer, 374, B. note 18.

(q) Doe dem. Murrell v. Milward, 3 Mees. & W. 328; Weddall v. Capes, 1 Mees. & W. 50, overruling Aldenburgh

v. Peaple, 6 Carr. & P. 212.

(r) Carrington v. Roots, 2 Mees. & W. 248-254.

(s) Cadby v. Martinez, 11 Adol. & Ell. 720; 3 P. & Dav. 386, S. C.

(t) Feltham v. Cartwright, 5 Bing. N. C. 569; 7 Scott, 693.

stituted a license, which could not be revoked, having been given for good consideration, and then acted on.

An interesse termini interposed between two estates will not prevent merger from taking effect: where lands were demised by indenture for ten years to commence immediately, and the same lessor afterwards by deed granted the same premises to a stranger for ten years, to commence at the ensuing Michaelmas, the first lessee having purchased the reversion in fee(u) before Michaelmas, it was adjudged that the first term was merged in the fee, notwithstanding the grant of the reversion intervening between the estate in fee and the first lease for years, and it was held that the second or intervening lessee might enter after Michaelmas, and enjoy his term in possession.

A surrender can only be made to a person entitled to an estate in reversion immediately (v) expectant on the particular estate, and, therefore, sequestrators appointed by a court of equity are not competent to take the surrender of a lease, as they have no estate in which it can be merged.

11. The acceptance of a new lease of the same premises by the tenant in possession from the reversioner(w), either to commence presently, or at a future day, during the continuance of the previous demise, causes an implied surrender of the prior lease, because it is impossible that the original contract can subsist, if the latter demise take effect according to the intention of the parties. If a lessee for twenty years accept a lease from the immediate reversioner for three years, to begin on the expiration (a) of the first ten years of the original term, the whole term for twenty years is immediately surrendered, because the lessee for twenty years could not surrender the last ten years, saving to himself the first ten years; and by the second demise, it is acknowledged that the lessor had power to grant such new lease, during the period comprised in the original lease. So if a lessee for his own life, or for the life of another, accept(y) a new lease from the lessor, to commence immediately (2), though made only for years, such acceptance will cause a surrender in law of the freehold lease, by reason of the inconsistency between the two estates. Though an interesse ter

(u) 2 Dyer, 112, A. pl. 49; Northen's case, Hetley, 55; Prest. on Merger, 121. (v) Cornish v. Searell, 8 B. & Cress. 471; 1 M. & Ry. 703, S. C.

(w) Bac. Abr. Leases, S. 3, title "Surrenders in Law;" Ive's case, 5 Rep. 11, B.; Ive v. Sams, Cro. Eliz. 521; Co. Litt. 338, A.; Thursby v. Plant, 1 Saund. 236, B. note 9.

mini cannot be made the subject of an express surrender, it may be extinguished by the acceptance of a new lease; for if a lease for years be made to commence(a) at the ensuing Michaelmas, and the lessee before Michaelmas accept a new lease of the same lands for years, either to begin presently or at Michaelmas, such new lease will operate as a surrender in law of the former lease.

Where a lease by indenture for twenty-one years was made determinable at the end of the first seven or fourteen years, upon notice for that purpose, and a memorandum not under seal, but signed by both parties, was endorsed on the lease about six years after its execution, that the lessee should have the premises for twenty-one years from that time absolutely, the Court held that the memorandum(b) did not operate as a surrender of the lease, because the object of the endorsement was merely to take away from the lessor the power of determining the first lease, which had not been effectually done.

12. Leases, either for life(c) or for years(d), though created by indenture, might, by the common law, have been surrendered by acceptance of a parol demise of the same premises from the lessor for years or at will: by the Statute of Frauds every actual or express surrender of a lease must be made by writing under the hand of the party, but surrenders by act and operation of law, being wholly excepted out of the Statute, it follows that leases for life or for years may be the subject of implied surrender, if the owner(e) accept from the lessor, or immediate reversioner, any new lease of the premises warranted by the Statute, and inconsistent with the original demise. Demises for a period not exceeding three years, made by parol, being authorized by the Statute, a lease by indenture for lives, or for years, consequently may be surrendered by the acceptance of an express demise(ƒ) by parol from the lessor for any term not exceeding three years.

13. The acceptance of a new lease will not cause an implied surrender of an existing lease, unless such new lease pass an interest according (g) to the contract and intention of the parties: and although

(a) Co. Litt. 338, A.

(b) Goodright dem. Nicholls v. Mark, 4 M. & Selw. 30.

(c) Lord Salisbury's case, Year Book, 19 Hen. VI. fo. 33, B., case 67, by Markham; Perk. sect. 583; Bennet v. Westbeck, Poph. 137; Mellows v. May, Cro. El. 874; Moor, 636; Timbrell v. Bullock, Style, 446; 2 Ro. Abr. 496, pl. 11.

(d) Whitley v. Gough, 2 Dyer, 140, B.; Com. Dig. Surrender (I. 1).

(e) Thursby v. Plant, 1 Saund. 236, B. & C. notes 9 and N. & M.

(f) Thomas v. Cook, 2 B. & Ald. 122, by Holroyd, J.; 2 Stark. N. P. C. 410, S. C.; Timbrell v. Bullock, Style, 446, by Rolle, Ch. J.

(g) Davison dem. Bromley v. Stanley, 4 Burr. 2210; Wilson v. Sewell, 4 Burr. 1975; 1 W. Bla. 617, S. C.; Roe dem. Ld. Berkeley v. The Archb. of York, 6 East, 86; Watt v. Maydewell, Hutton, 104; Fulmerston v. Steward, Plowd.

the acceptance of a new lease by parol for three years, or for a less period, may operate as a surrender of an existing lease for a longer duration, yet an acceptance of a lease by parol for a term exceeding three years, cannot have such an operation, because it does not pass an interest according to the contract and intention of the parties, whether it be considered as having the effect of a demise at will, or from year to year. Where a new lease was granted by tenant for life under a leasing power, and was avoided by the remainder-man, it was decided(h) that as the new lease was not warranted by the power, and did not take effect according to the contract and intention of the parties during any period, the original lease was not surrendered by operation of law.

14. The doctrine on the subject of surrenders by implication of law, is not applicable to the express surrender of a prior lease by deed under seal, and where a surrender of a lease was made by deed, to the intent that the first estate should merge so as to enable(i) the reversioner to grant a new lease of the same premises, and such new lease was accordingly granted, although the latter lease was afterwards avoided, it was ruled that the former lease, which had not then expired, was not revived, in consequence of its express surrender by deed. A new lease, however, containing a recital of the surrender of a former lease, does not amount to an express surrender within the meaning of the Statute of Frauds, which requires the surrender itself(j) to be made by deed or note in writing, and such recital can only be considered as constituting a surrender by operation of law. If the lessee of lands for a term of years(k) accept a new lease by indenture from his lessor of part of the same lands, it will operate as a surrender only for such part and not for the whole, because there is no inconsistency between the two(1) leases for any more than that part which is doubly leased; and though a contract for years cannot be so divided or severed as to be avoided for part of the years and to subsist for the residue, either by act of the party or by act of law, yet the land itself may be divided or severed, and one or two acres of the demised premises may be surrendered either expressly or by act of law, and the lease for the residue stand good, because the contract for the residue of the land

106, A., 107, B.; Thursby v. Plant, 1 Saund. 236, B. note 9.

(h) Roe dem. Ld. Berkeley v. The Archb. of York, 6 East, 86; 2 Smith, 167, S. C.

(i) Doe dem. Bishop of Rochester v. Bridges, 1 B. & Adol. 847-860.

(j) Roe dem. Ld. Berkeley v. The Archb. of York, 6 East, 86; 2 Smith, 167, S. C.

(k) Fish v. Campion, 2 Ro. Abr. 498, Surrender, M.

(1) Bac. Abr. 217, Leases, S. 3.; Turberville v. Stokton, 3 Lev. 117.