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remains entire, whereas, in the other case, the contract for the whole would be divided, which the law will not allow.

15. It is manifest that a tenancy created by parol or implied by law from payment of rent, may be surrendered by any of the means which would cause the surrender of a lease by indenture for a term of years, but it remains to take notice of certain modes of surrender by act and operation of law which chiefly relate to holdings by parol.

An express surrender of a holding by parol, or of a tenancy from year to year, is not valid (m) unless made by deed or note in writing, signed by the party, and in order to constitute a surrender by act and operation of law, there must be some unequivocal act rescinding the contract, or there must be a change in the possession(n) of the demised premises, but it is indifferent whether such change be effected by giving up the possession to the landlord or to any other person on his behalf with his concurrence. A tenancy from year to year created by parol is not determinable by the tenant on a mere verbal (o) permission to quit given by the landlord, although the tenant leaves the premises accordingly, but if the tenant give up the possession in pursuance of such a parol license, and the lessor accepts it, the license(p), coupled with the fact of the change of possession, operates as a surrender by impli cation of law, and the landlord cannot recover(g) any rent from the original tenant becoming due after his acceptance of the possession or any proportional part of the current gale's rent. In an action of debt for rent, a plea, alleging that before the rent accrued due the landlord(r) agreed to discharge the tenant from further rent, in consideration of his giving up possession of the demised premises, and that possession had been delivered in pursuance of the agreement, was held a valid excuse for refusing to pay the rent claimed, though reserved by a lease in writing.

Upon the decease of a yearly tenant, his widow, and her family, continued to reside on the farm with the landlord's assent; the widow paid rent for several years at the same rate which her husband had done during his life, and took receipts for the rent, which were passed to the representatives of the deceased tenant; the landlord having de

(m) Doe dem. Read v. Ridout, 5

Taunt. 519.

(n) Johnston v. Hudlestone, 4 B. & Cress. 939, by Holroyd, J.

(0) Mollett v. Brayne, 2 Campb. N. P. C. 103; 2 Mann. & Ry. 439, note A., S. C.; Thomson v. Wilson, 2 Stark. N. P. C. 379.

(p) Grimman v. Legge, 8 B. & Cress.

324; 2 M. & Ry. 438; Whitehead t. Clifford, 5 Taunt. 518; Brown v. Burtenshaw, 7 D. & Ry. 603.

(q) Gore v. Wright, 8 Ad. & Ell. 118; 3 Nev. & P. 242, S. C.; Doe dem. Philip v. Benjamin, 9 Ad. & Ell. 644; 1 P. & Dav. 440, S. C.

(r) Gore v. Wright, 8 Ad. & Ell. 118; 3 Nev. & P. 242, S. C.

manded possession, after some negotiation the farm was given up by the widow and her son to the landlord's agent(s), when she and her son were restored to the possession expressly in the character of care-takers. Upon the trial of an ejectment brought by the landlord a nonsuit was entered, which the Queen's Bench set aside, because the fact of a new possession being accepted from the landlord by the widow in consideration of her relinquishing a possession which she previously held, afforded evidence of a surrender by act and operation of law.

None but a person having authority to dispose of demised premises can effect a surrender by operation of law, and therefore the act of an executor de son tort in giving up possession to the landlord immediately after the lessee's death(t), in consideration of the rent then in arrear being abandoned, is not sufficient to conclude the same party after he has obtained rightful administration, nor to confer a right of possession on the landlord who entered under such agreement. A yearly tenant having given a parol notice at Christmas of his intention to quit at Ladyday ensuing, the landlord accepted the notice, and the tenant afterwards bid at an auction for the farm, but, being unsuccessful, refused to quit at Lady-day, and it was decided(u) that the notice to quit being for a less period than six months, although accepted by the landlord, yet not being accompanied with possession, did not amount to a surrender by operation of law.

If a yearly tenant abandon the demised premises, without giving notice of his intention to quit, and the landlord enter and demise them to another tenant before any rent accrues due, without authority from the original lessee, the subsequent letting dispenses (v) with the necessity of a surrender, and will defeat any claim against the original tenant for compensation from the time of his quitting whilst the premises remained unoccupied; however, if a yearly tenant leave apartments without notice, he will continue(w) answerable for the rent, unless a determination of the holding be shewn by express evidence, and he will not be discharged from liability, though the landlord has posted bills (w) on the windows for the purpose of letting the premises, or has lighted fires(x) in the rooms, nor though the keys were left at the land

(s) Jones dem. Lord Lorton v. Murphy, 2 Jebb & S. 323; and see Peter v. Kendal, 6 B. & Cress. 703.

(t) Doe dem. Hornby v. Glenn, 1 Ad. & Ell. 49; 3 Nev. & M. 347, S. C.

(u) Johnston v. Hudlestone, 4 B. & Cress. 922; 7 D. & Ry. 411; Doe dem. Huddleston v. Johnston, M'Cl. & Y. 141. (v) Hall v. Burgess, 5 B. & Cressw.

322; 8 D. & Ry. 67; Walls v. Atcheson, 3 Bing. 462; 11 Moore, 379; 2 Carr. & P. 268, S. C.; Whitehead v. Clifford, 5 Taunt. 518.

(w) Redpath v. Roberts, 3 Espin. N. P. C. 225; Graham v. Whichelo, 1 Cro. & Mees. 188; 3 Tyrw. 201.

(x) Griffith v. Hodges, 1 Carr. & P. 419.

lord's residence and were lost(y) or mislaid by him, nor will the mere receipt of rent from a third person(2), and not from the lessee, warrant any presumption of a surrender of the lease; and if, under such circumstances, the landlord let to another person, having given previous notice of his intention to do so on account of the former occupier and for his benefit, then the landlord(a) may entitle himself to recover from the original tenant any loss which shall be sustained by means of such new letting.

16. A transfer by a tenant holding from year to year of the possession of his holding to another person, and the acceptance of such third person by the landlord as his immediate tenant, with the assent of the original tenant, amounts to a surrender of the pre-existing interest by act and operation of law, and discharges the original tenant from any liability for rent accruing due after such change. One Thomas demised a dwelling-house to Cook from year to year, who underlet to Perkes a distress being made by Cook for his rent, Perkes offered a bill in payment, which was refused, when Thomas(b) interposed, took the bill in payment, and accepted Perkes as his immediate tenant: upon the trial of an action for use and occupation brought by Thomas against Cook, the jury found that Cook had assented to the substitution of Perkes in the tenancy, and the Court held that Cook was discharged from further liability for rent, as the circumstances constituted a surrender by act and operation of law. A sole tenant from year to year, during the continuance of his tenancy, entered into an equitable(c) agreement in writing with his landlord for a lease to be granted to him and to another person jointly, and both tenants having entered and occupied under the contract, it was ruled that the agreement for a lease, coupled with the fact of possession, caused an implied surrender of the original holding by operation of law. In order to produce an implied surrender by the substitution of a new tenant, the unequivocal assent(d) of all parties interested must be established, and the transac

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8 Taunt. 270; 2 Moore, 262; Phipps v. Sculthorpe, 1 B. & Ald. 50; Lloyd v. Crispe, 5 Taunt. 257; Stone r. Whiting, 2 Stark. N. P. C. 235; Sparrow v. Hawkes, 2 Espin. N. P. C. 505; Taylor v. Chapman, Peake's Add. Cases, 19; Harding v. Crethorn, 1 Espin. N. P. C. 57.

(c) Hamerton v. Stead, 3 B. & Cress. 478; 5 D. & Ry. 206, S. C.

(d) Graham v. Whichelo, I Cro. & M. 188; 3 Tyrw. 201; Matthews v. Sawell, 8 Taunt. 270; 2 Moore, 262, S. C.

tion must be entirely free from fraud. A landlord, at the request of his tenant who held from year to year, agreed to substitute another person as tenant in his place(e), but the original tenant did not communicate the fact to the landlord that the new tenant had compounded with his creditors, and it was ruled that the suppression was fraudulent and vitiated the surrender, so as to render the original tenant liable for the rent.

Where a tenancy is created by an instrument in writing not under seal, the acceptance of a new tenant by the landlord, under circumstances affording evidence of an agreement to discharge the original tenant, will operate as a surrender, by act of law, of the original holding. A tenant having entered under an instrument in writing not under seal, by which certain premises were demised to him at a yearly rent, before the expiration of his term, assigned his interest to another person and paid his rent to the lessor up to the time of the assignment, which was in the middle of a quarter: the assignee(ƒ) subsequently paid rent for the part of the premises which he occupied, and the landlord received the residue of the rent from persons occupying the rest of the premises, and advertised the whole of the concerns for sale: the landlord brought an action against the original lessee for an arrear of rent, and the Court held that the facts, taken collectively, amounted to a surrender of the term by operation of law. The same principle equally applies to leases by indenture for years, or for lives, which may be surrendered by the parol substitution of a new tenant with the consent of all parties interested if a lessee by indenture give up his lease, and by his desire the landlord grants a new lease of the premises(g) to a third person who enters into possession, the effect is the same as if the first lessee had taken the new lease in his own name, and is an implied surrender, by operation of law, of the original demise: and where parties holding under a freehold lease owed an arrear of rent, and in consideration(h) of payment of such arrear by a third person, the landlord, with the consent of the lessees, accepted such third person as tenant of the premises, who accordingly entered into possession: upon an ejectment by the original lessee against the new tenant, it was ruled that such a dealing was an implied surrender of the freehold lease, by operation of law, though the new tenant only acquired a yearly holding.

(e) Bruce v. Ruler, 2 Mann. & Ry. 3. (f) Reeve v. Bird, 4 Tyrw. 612; 1 Cro. M. & Rosc. 31; Williams v. Sawyer, 3 Brod. & B. 70; 6 Moore, 228.

(g) Walker v. Richardson, 2 Mees.

& W. 882; Gore v. Wright, 8 Ad. & Ell. 118; 3 Nev. & P. 242, S. C.

(h) Lessee Lynch v. Lynch, Exch. Hil. 1843; 6 Irish Law Rep. 131.

17. If there be an agreement to purchase, and the intended purchaser is thereupon let into possession, such possession amounts at law(i) to a bare tenancy at will: it is not, however, the agreement, but the letting into possession that creates(j) such tenancy; and where the purchaser is already in possession as tenant from year to year, it must depend upon the intention of the parties to be collected from the agreement, whether a new tenancy at will is created or not, and from what time. If the true construction of an agreement for purchase be, that from the date or from any other certain time the intended purchaser was to be absolutely a debtor for the purchase money, paying interest on it, and was to cease to pay rent as tenant from year to year, a tenancy at will would probably be created after that time, and the acceptance of such new demise at will would then operate as a surrender of the interest from year to year by operation of law; but if the agreement for purchase be conditional, provided a good title should be made out, and to pay the purchase money when that should have been done and the estate conveyed, there is no room for implying any agreement to hold as tenant at will in the meantime, the effect of which would be absolutely to surrender the existing term, whilst it would be uncertain whether the purchase would be completed or not; and, therefore, a party who occupied a dwelling-house as a yearly tenant, having(k) agreed to purchase the interest in the premises for a sum of £100, the purchase money to lie out by paying four per cent., the Court held that the contract was subject to an implied condition of making out a good title, and did not cause a surrender of the previous tenancy by operation of law. A tenant of a ferry holding at a yearly rent, entered into a new agreement, by which he became servant, as boatman to the proprietor, instead of tenant, and it was ruled(?) that a new relation was constituted between the parties, operating as a surrender by implication of law of the tenant's interest in the ferry.

A mere license to occupy part of the demised premises will neither operate as a surrender nor suspend the rent. Where a person leased for years rendering rent, and the lessee demised to another to hold at will, and the tenant at will licensed the first lessor to enter upon part of the premises, who entered and continued to occupy by force of the license for half a year(m); a rent-day having occurred during that period, it was

(i) Right dem. Lewis v. Beard, 13 East, 210.

(j) Doe dem. Gray v. Stanion, Tyrw. & Gr. 1065-1071; 1 Mees. & W. 695700; Daniels v. Davison, 16 Vesey, 252.

(k) Doe dem. Gray v. Stanion, Tyrw.

& Gr. 1065; 1 Mees. & W. 695, S. C. (1) Peter v. Kendal, 6 B. & Cress. 703.

(m) Dorrell v. Andrewes, 1 Ro. Abr. 938, G. pl. 3; see ante, 205.

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