ever, the second is merely voidable, it seems that as the lessee takes some interest, though defeasible, it operates as

a surrender. (Roll. Ab. supra.) surrender.-(Roll.

2. Instances of the second kind frequently occur in respect of parol demises from year to year. If the tenant underlet, or assign his interest to another, and the landlord accept the latter as his tenant, as by receiving the rent as landlord, the first is discharged; his tenancy and interest in the lands ipso facto ceases.-(Sparrow v. Hawkes, 3 Esp. 505; Stone v. Whiting, 2 Stark. 235; Phipps v. Sculthorpe, 1 B. & A. 50; Thomas v. Cook, 2 B. & A. 119.)

The principle of this doctrine is well known, and brought into daily practice in the case of an assignment of a lease. If the lessor accept rent from the assignee, the action of debt cannot be afterwards sustained against the lessee. The privity of estate being gone, he is no longer chargeable as tenant of the lands, and were there no express covenant he would not be liable at all, for the covenant implied from the words "yielding and paying" is co-extensive only with the occupation and enjoyment. The difference between this and the case of a parol tenancy is therefore obvious. In the first place, there is in the latter no contract to outrun the privity of estate. When that is gone, all is gone. And in the next place, a contract under seal cannot be discharged before breach, but by a contract of equal solemnity. So that if the lessor were expressly to agree by parol, upon receiving rent from the assignee to discharge the lessee, the agreement would be of no effect. But if the demise were not under seal, such an agreement, coupled with the acceptance of the assignee as tenant, would amount to a surrender by operation of law, and the original lessee would be discharged notwithstanding he had undertaken to pay rent during the whole

term.

Hence, whether the tenancy were created by a written agreement or by parol only, the acceptance of a new tenant under circumstances amounting to evidence of an agreement to discharge the original lessee, will constitute a surrender by act and operation of law. This is strikingly illustrated by the case of Reeve v. Bird, 1 C. M. & R. 31. The plaintiff sued in assumpsit for the breach of an agreement to repair.

The agreement, which was in writing, amounted to a demise for seven years from Midsummer 1826, of a messuage, three cottages, a stable, yard and garden, and the defendant agreed to pay rent during the term and to keep the premises in repair. The stable and yard were occupied by the defendant; the dwelling-house by one Prince, and the cottages by three different tenants. The defendant paid rent for the whole till January, 1832, when becoming embarrassed, he agreed to assign the premises to one Bullock. At this time he paid to the plaintiff the rent up to Christmas, and a further sum intended to cover the period during which he continued tenant before the assignment to Bullock. Prince remained in possession of the dwelling-house, and paid his subsequent rent to the plaintiff's agent, from whom he took a receipt as for the rent of premises held of the plaintiff. Bullock also paid the rent of the stable and yard to the plaintiff. During the year 1832, the tenants of two of the cottages left, and the plaintiff's agent let them to other parties and received the rents. In the month of August in that year, the whole of the premises were advertised by the plaintiff to be let or sold. There was no evidence of the premises being out of repair previous to January, 1832. Under these circumstances the Court held there was clear evidence of a surrender of the term by act and operation of law in January, 1832, and consequently, that the defendant was not liable.

So if a lessee consents to give up his lease, and that the lessor shall grant a new lease to a third party, and that is done, the effect is the same as if he took a new lease to himself; the first is surrendered.-(See Walker v. Richardson, 2 M. & W. 882.) And where two tenants holding adjoining lands, under different landlords, agreed to exchange, and took possession of each other's accordingly, and the agent to both landlords upon being informed thereof assented to the arrangement, in was holden that the original tenancies were surrendered, and each became the tenant of the other's landlord, though no rent had been actually paid by him, (Bees v. Williams, 2 C. M. & R. 581. See further on this point Woodcock v. Nuth, 8 Bing. 170; Graham v. Whichelo, 1 C. & M. 188;

1 The pleadings in this case do not appear correct.

Matthews v. Sawell, 8 Taunt. 270; Rex v. Banbury, 1 Ad, & Ell. 136.)

3. Another familiar instance of a surrender by operation of law is, where the tenant and landlord agree to put an end to the tenancy in the middle of the term, and possession is accordingly given up and accepted. This species of surrender differs from the last only in circumstance; the principle of both is, that the tenant gives up and the landlord resumes possession. Hence, the agreement must be actually executed, and, therefore, though the tenant or landlord accept an irregular notice to quit, irregular from its expiring at a wrong period, or from its being given too short a time, yet if at the expiration of such period either the one refuses to quit or the other to accept possession, the agreement is void. In the case of Doe v. Johnstone, (M'Clel. & Y. 141,) the tenant gave a three months' notice to quit instead of half a year, which however was accepted by the landlord, and the premises were put up to be let by auction. The tenant attended the sale and bid, but the premises were knocked down to a higher bidder. The tenant then refused to quit, upon which the landlord brought an ejectment, and contended first, that the offer to quit, and acceptance thereof, followed by the reletting of the premises, amounted to a surrender by operation of law, and secondly, that as there was a mutual agreement to waive a half year's notice, and adopt one for a shorter period, the latter was a reasonable notice, which was all the law required, But it was holden that the facts did not amount to a surrender, and that an agreement to take a shorter notice than the law requires, not being part of the original contract, cannot make that notice good. The landlord subsequently distrained for double rent, and failed on the same ground. (Johnstone v. Huddlestone, 4 B. & C. 922.) It will be observed that the one ingredient wanting to constitute a surrender of the second class, was the consent of the tenant to the second letting. The bidding was adverse to him, and this circumstance nullified all that had taken place before. (See Doe v. Milward, 3 M. & W. 328; Brown v. Burtenshaw, 7 D. & R. 603.) In another case the landlord and tenant having quarrelled, went before a magistrate, and upon

his recommendation came to a mutual resolution to put an end to the tenancy, the landlord agreeing to receive a proportion of rent for so much of the second quarter as had then elapsed. The defendant accordingly quitted the premises, but the landlord refused to accept either the rent or the key, and it was holden there was no surrender. (Thomson v. Wilson, 2 Stark. 379.) But if he had accepted possession the cases of Whitehead v. Clifford, 5 Taunt. 518, and Grimman v. Legge, 8 B. & C. 324, show that the tenancy would have been legally determined. (See Mollet v. Brayne, 2 Camp. 104.)

mas.

Still it is not necessary that the quitting and taking possession should be concurrent acts. It is sufficient to bar his claim for any further rent, if the landlord enter before the next payment falls due. In Walls v. Atcheson, 3 Bing. 462, the defendant quitted at the end of the first quarter some apartments which he had hired by the year from MichaelIn January the landlord let them to another person, and continued to let them until July, when being unable to procure another tenant, he sued the defendant for the balance of the year's rent. The court held, that having precluded the defendant from occupying the apartments by letting them to another person, he must be taken to have rescinded the agreement; that if he had meant, as it was alleged, to let them on behalf of the defendant, he should have given notice thereof. (Hall v. Burgess, 5 B. & C. 332, S. P.) A mere attempt to let by putting a bill in the window is not enough. (Redpath v. Roberts, 3 Esp. 225.) Where the landlord, about a fortnight after the tenant had quitted, caused a fire to be lighted in the kitchen, and used it for the purpose of roasting a hare, Abbot, C. J. ruled that as it was proper a fire should be lighted, the making such a use of it was not such a taking of possession as deprived the landlord of his rent. (Griffith v. Hodges, 1 C. & P. 419.)

From the case of Gore v. Wright, (17 L. J. Q. B. May, 1838,) it would appear doubtful whether cases of this kind can properly be pleaded as a surrender. There, in answer to an action of debt for rent on a demise, the tenant pleaded an agreement between him and the plaintiff, that he should quit at a given period and should thenceforth be discharged from

the payment of rent; that he did accordingly quit, and that the landlord accepted and had ever since retained possession, and concluded that thereby the term was surrendered. Issue being taken on the quitting by the defendant and the acceptance of possession by the landlord, and found for the defendant, the plaintiff moved for judgment non obs. veredicto, on the ground that the plea amounted to a surrender, and as it was not alleged that there was any note in writing, the surrender was not valid. After taking time to consider, Lord Denman, C. J. gave judgment for the plaintiff. "The motion was made," said he, "on the ground that the plea showed no valid surrender of the term. We do not, however, consider it to be a plea of a surrender, but only as showing an excuse for the party's not paying the rent claimed in the declaration, and we take it to be a valid plea for that purpose." Perhaps the judgment proceeded on the form of the plea. It is not easy to see why the facts should not be pleaded as a surrender. The only difference which strikes the mind upon a consideration of the cases between a surrender in pais, and a surrender by act and operation of law is, that the former is executory, and the latter executed; in the one, the delivery of possession is symbolical; the surrender is complete though the tenant remain in possession, and hence it is required to be in writing; in the other, there must be an actual delivering up. The gist of the one is the agreement, of the other the execution of it.

It is now settled that a tenant from year to year has an interest which goes to his executors, and that they stand precisely in the same situation as the deceased as to giving and receiving notice to quit. (Doe v. Porter, 3 T. R. 13.) And in case of bankruptcy the interest is one which the assignees may claim, and which if they do not the bankrupt may deliver up pursuant to the 6 Geo. 4, c. 16, s. 75. (Slack v. Sharp, 3 N. & P. 390.)

It was determined by the House of Lords in Hewitt v. Adams, 1782, that a composition for tithes conveyed an interest analogous to a tenancy of land, and that the like notice was required to determine it. This doctrine has been established by many subsequent decisions. Hence if a lessee of tithes enter into a composition, and afterwards assign over or grant