If an estate be surrendered, the whole estate is determined without other ceremony; and as to the parties themselves, it will be determined to all intents. (a)

By the Statute of Frauds and Perjuries (29 Car. II. c. 3.) it is provided, that no leases, estates, or interests, either of freehold or term of years, shall be surrendered, unless it be by deed or note in writing, signed by the party so surrendering or their agents thereunto lawfully authorized by writing, or by act and operation of law. s. 3.

It was held that a lease for years cannot be surrendered by cancelling the indenture without writing; because the intent of the statute was to take away the manner they formerly had of transferring interests in lands, by signs, symbols, and words only; and therefore, as a livery and seisin on a parol feoffment was a sign of passing the freehold, before the statute, but is now taken away by the statute, so the cancelling a lease was a sign of a surrender before the statute, but is now taken away, unless there be a writing under the hand of the party. It has also been held, that the statute does not make a deed absolutely necessary to a surrender; for it directs it to be made either by deed or note in writing, which note in writing, though not a deed, must, it is conceived, be stamped, according to stat. 23 Geo. III. c. 58. s. 1., which imposes a duty on" any conveyance, surrender of grants or offices, release," &c., and the surrender of a lease is the surrender of a grant, and is, as it were, a re-demise. (b)

It seems that this provision of the Statute of Frauds extends to leases by parol.

Where a landlord said to his tenant (who held under a parol demise) in the middle of a quarter, "you may quit when you please," and the tenant accordingly left the premises a few days afterwards, it was ruled by Lord Ellenborough, C. J. that the tenant was notwithstanding liable for the rent, for that the tenancy was not determined by such parol licence; for there was a subsisting term, which by the Statute of Frauds could only be determined by a note in writing or by operation of law; and on a motion for a new trial the Court of King's Bench confirmed his direction, (c) And, although the authority of this case was afterwards doubted

(a) Com. Dig. tit. Surrender. (L. 1.) Co.

Lit. 338.

(b) n. 1. to Co. Lit. 338.

(c) Mollett v. Brayne, 2 Camp. 103.

by Gibbs, C. J. in the Court of Common Pleas. (a) Yet it was recognized and confirmed in a subsequent case by Lord Ellenborough, C. J. sitting at nisi prius, (b) who held that the defendant being tenant to the plaintiff of certain rooms in his house, at a rent payable quarterly, a mere parol agreement in the middle of a quarter to determine the tenancy is not binding. If the tenant abandon the premises without notice, the landlord is not precluded from recovering the subsequent rent, by putting up a bill at the window, and endeavouring to procure another tenant. (c) But where the landlord in the middle of a quarter accepted from the tenant the key of the house demised, upon a parol agreement, that upon her then giving up possession the rent should cease, and she never afterwards occupied the premises, it was held that an action for use and occupation could not be maintained against the tenant, for the time subsequent to his accepting the key. (a)

A lessee for years having agreed with the lessor to surrender his lease, delivered up the key, which the lessor accepted, but he afterwards refused to take a surrender of the lease. It was decreed that the lessee should be discharged of the rent. (d)

Where A. being tenant from year to year, underlet the premises to B. and the original landlord, with the assent of A., accepted B. as his tenant, but there was no surrender in writing of B.'s interest, and rent being subsequently in arrear the landlord distrained on B.'s goods, held that these circumstances constituted a valid surrender of 4.'s interest by act and operation of law. (e) It seems also, that an agreement between a landlord and a tenant from year to year that another tenant shall be substituted in his place, who is accordingly substituted, operates as a surrender of the tenant's interest. (f)

Where premises had been let to B. for a term determinable by a notice to quit, and pending such term C. applies to 4. the landlord, for leave to become the tenant instead of B. and upon A. consenting, agrees to stand in B.'s place, and offers to pay rent: it was held that (though B.'s term had not been determined by a notice to quit or a surrender in writing), A. might maintain an (a) Whitehead v. Clifford. 5. Taunt. 518, and see Grimmau v. Legge. 8 Barn. & Cress. 324.

(b) Thomson v. Wilson. 2 Stark. 379,
(c) Redpath v. Roberts. 3 Esp. Rep.

225.

(d) Natchbolt v. Porter, 2 Vern. 112. (e) Thomas v. Cook. 2 Stark. Ní. Prí. 408. 2 B. & A. 119. S. C.

(f) Stone v. Whiting. 2 Stark. 235,

action for use and occupation against C. and that the latter could not set up B.'s title in defence to the action. (a)

But where tenant from year to year underlet part of the premises, and then gave up to his landlord the part remaining in his own possession, without either receiving a regular notice to quit the whole, or giving notice to quit to his sublessee, or even surrendering that part in the name of the whole (supposing that any thing short of a regular notice to quit, from the landlord to his immediate tenant, would, after such subletting, have determined the tenancy in the whole) yet the landlord cannot entitle himself to recover against the sublessee (there being no privity of contract between them) upon giving up half a year's notice to quit in his own name, and not in the name of the first lessee; for as to the part so underlet, the original tenancy still continued undetermined. (b)

But where a party having under a written agreement taken premises for seventeen years, at a yearly rent and entered, and in 1813 the landlord contracted to sell the fee to a third person, who thereupon bought from the tenant the residue of the term, and without the assent of the landlord put in a new tenant, who occupied two years, when the contract for the sale of the fee was rescinded. It was held that inasmuch as the landlord had not assented to the change of the tenancy, there had been no surrender of the original tenant's interest, and that he was notwithstanding the circumstances still liable to the landlord for the rent from 1813 to the end of the term. (c) ·

As to what estate a surrender may operate upon, it was once doubted whether years could merge in years; but it seems to be now settled, that if a term in reversion be greater than a term in possession, the greater would merge the lesser, as ten years may be surrendered and merge in twelve or fourteen years. (d)

Even though the reversion were for a less number of years, yet the surrender would be good, and the first term merged; as if one were the lessee for twenty years, and the reversion expectant thereupon were granted to one for a year, who granted it over to the lessee for twenty years, this would work a surrender for the twenty

(a) Phipps v. Sculthorpe, 1 Barn. and Ald. 50,

(b) Pleasant lessee of Hayton v. Benson, 14 East. 234.

(c) Matthews v. Sawell. 8 Taunt. 270, 2 Moore. 262. S. C.

(d) Bac. Abr. tit. Leases. (S. 2.) Hughes v. Robotham. Cro. Eliz. 30.

years' term, as if he had taken a new lease for a year of his lessor : for the reversionary interest coming to the possession merges it, and the number of years is not material, for as he may surrender to him who hath the reversion in fee, so he may to him who hath the reversion for any lesser term. (a)

It was held therefore, that where lessee for twenty years makes a lease for ten years, and the lessee for ten years surrenders to his lessor, viz. to the lessee for twenty years, that this is good, and the lessor shall have so many of the years as were then to come of his former term of twenty years, that is, as it seems, so many years as were to come of his reversion shall now be changed into possession. (b)

Whether a lease for years in possession may be surrendered so as to be merged in a lease in remainder, be the term in remainder greater or lesser than the term in possession, seems to be no where settled: an estate for life however cannot, it is conceived, be sur rendered to or merge in a reversion, if it be only for years, but this is held otherwise elsewhere. (c)

Surrenders in law, or implied surrenders, are excepted in the Statute of Frauds, and remain as they did at common law, if the lease, which is to draw out such surrender, be in writing pursuant to that statute. (d)

As to the surrender in law of leases in possession, this is wrought by acceptance of a new lease from the reversioner, either to begin presently, or at any distance of time during the continuance of the first lease the reason why such acceptance of a new lease amounts to a surrender and determination of the first is, because otherwise the lessee would not have the full advantage that he had contracted for by acceptance of the second lease, if the first should stand in the way and consume any of those years comprised in the second lease for which reason, and to enable the lessor to perfect and make good his second contract, the lessee must be supposed to waive and relinquish all benefit of the first. (e)

If therefore lessee for life, or years, take a new lease of him in

(a) Bac. Abr. tit. Leases. (S. 2.) Challoner v. Davis, 1 Ld. Raym. 400-402. (b) Hughes v. Robotham. Poph. 30. (c) Bac. Abr. tit. Leases. (S. 2) Hughes v. Robotham. Cro. Eliz. 30.

(d) Shep. Touch. 301. and Com. Dig.

tit. Surrender. (L. 1.) Perk. 68. stat. 29. C. 2. c. 3.

(e) Bac. Abr. tit. Leases. (S. 3.) Ive v. Sams. Cro. Eliz. 521. Hutchins v. Martin. Cro. Eliz. 605.'

reversion, of the same thing in particular contained in the former lease for life or years, this is a surrender in law of the first lease; for this purpose it is not necessary that the surrenderor be in possession, for if a lease be to commence at Michaelmas next, and the lessee take a new lease before Michaelmas, this is a surrender in law of the first lease. (a)

So, if lessee for years accept a new lease from the guardian in socage. (b)

So, if lessee for twenty years take a lease for ten years, to begin at Michaelmas, there is no doubt but that the term of twenty years is surrendered or determined presently; for by the lessee's acceptance he allows the lessor able to let the land during the other lease, and indeed by such acceptance the lessor hath power to make a new lease during the former, and at the time of the lease making. (c)

Where a lease was granted for twenty-one years, with a proviso that it should be determinable by the lessee or lessor at the end of the first seven or fourteen years, and a memorandum was indorsed six years after the execution of the lease, "of its being agreed between the parties previously to the execution, that the lessor shall not dispossess nor cause the lessee to be dispossessed of the said estate, but to have it for the term of twenty-one years from this present time;" which memorandum was signed by the parties and stamped with a lease stamp, but not sealed; it was held that the memorandum did not operate as a new lease and a surrender of the first lease. (d)

If there be two lessees for life, or years, and one of them take a new lease for years, this is a surrender of his moiety; whereby it appears that a surrender in law may be made of some estates which cannot be surrendered by a surrender by deed; for potior est disposito legis quam hominis. (e)

But the reversion of the surrenderee must be an immediate reversion. (f)

If therefore A. let to B. for ten years, who lets to C. for five years, C. cannot surrender to A. by reason of the intermediate in

(a) Shep. Touch. 301.

(b) Com. Dig. tit. Surrender. (L. 1.) (c) Bac. Abr. tit. Leases. (S. 3.) Ive v. Sams. Cro. Eliz. 521. Hutchins v. Martin. Cro. Eliz. 605.

(d) Goodright d. Nicholls v. Mark. 4 M. & S. 30.

(e) Shep. Touch. 302.

(f) Paramour v. Yardley. Plowd. 539

541.