that it should be contemporaneous with the agreement, if it was adopted by him at any time a.

SECTION III.

ASSIGNMENT OR SURRENDER OF TITLE.

By sect. 3. "no leases, estates, or interests, either of freehold or term of years, or any uncertain interest, not being copyhold or customary interest, of, in, to, or out of, any messuages, manors, lands, tenements, or hereditaments, shall be assigned, granted, or surrendered, unless it be by deed or note in writing signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law."

It has been held, that the assignment of a parol lease from year to year was void, under this section, unless made in writing; and that a parol agreement between the landlord and tenant, to determine such tenancy in the middle of the quarter was not binding, or a sufficient surrender of the tenancy, though the tenant did quit according to the agreement. But if both parties act on such notice, that is, if the tenant quit, and the landlord takes possession, it operates as a determination of the tenancy d.

Assignsurrender

ment or

of interest in land to

be in writ

ing.

Parol lease

from year

to year.

sufficient surrender.

The mere cancelling a lease is not a sufficient surrender of What is a the term thereby created. But where a mortgagee wrote on the mortgage-deed, "received of A. B. for principal and interest, and I do release and discharge the within premises from the term of 500 years; it was held to be a sufficient surrender; for, at common law, a lease by deed might be surrendered by parol, and the statute only required that the surrender should be in writing £.

Shippey v. Derrison, 5 Esp.

Botting v. Martin, 1 Campb.

Mollett v. Brayne, 2 Campb. 103. Thompson v. Wilson, 2 Stark. 379. Johnstone v. Hudlestone, 4 B. & C. 922.

d Whitehead v. Clifford, 5 Taunt. 518. Grimman v. Legge, 8 B. & C.

324.

e Roe v. the Archbishop of York, 6 East, 86. Doe v. Thomas, 9 B. & C. 299. Wootley v. Gregory, 2 Y. & J. 536.

1 Farmer v. Rogers, 2 Wils. 26.

Substitution of one tenant for another.

The taking a new lease by parol, to commence during the existence of a former demise, operates as a surrender of the old one. If a lessee for years accept a new lease by parol, when the first lease was by indenture, it operates as a surrender in law b. A verbal agreement to lease a ferry for a year may be put an end to by a verbal agreement before the expiration of the year. A mere agreement for an increase of rent in the middle of the year creates a new tenancy d. Where A., by parol, let a house to B., who under-let it to C., and then A., with B.'s assent, accepted C. as his tenant, and received rent from him, it was held to be a surrender by operation of law e.

There are many cases in which it has been decided, that where one tenant is substituted for another by the consent of all the parties, it operates as a surrender in law. But there must be a clear substitution, and acceptance by the landlord of the new tenant, and merger of the old tenant's interest; and though taking rent from the new occupier is evidence of these facts, it is not conclusive 8.

A., the tenant of a house, three cottages, and a stable and yard, let at an entire rent, for a term of seven years, before the expiration of the term, assigned all the premises to B. for the remainder of the term, the house and cottages being in the possession of under-tenants, and the stable and yard in that of A.; the landlord accepted a sum of money as rent up to the day of the assignment, which was in the middle of the quarter. B. took possession of the yard and stable only; the occupiers of the cottages having left them after the assignment, and before the expiration of the term, the landlord re-let them ; A. paid no rent after the assignment, but the landlord received rent from the under-tenants; before the expiration of the

term, the landlord advertised the whole of the premises to be let or sold: held, that this was a surrender by operation of law of all the premises. So where the plaintiff was tenant to A. of one close; K. was tenant to B. of another close; the plaintiff and K. verbally agreed to exchange their holdings; "the plaintiff to have B.'s land, and pay K.'s rent; K. to have A.'s land and pay plaintiff's rent." On the same day each took possession of the other's land. K. undertook to communicate their bargain to C., who was the agent of both A. and B.; he did accordingly, some days afterwards, communicate it to him, and C. expressed his concurrence; held, that this was evidence to go to the jury of a surrender by K. to B. of his interest in B.'s close b. A. demises to B., who under-lets to C. In the middle of both terms it is agreed between A. and B., that B.'s tenancy shall cease, and between A. and C., that C. shall hold under A. for a longer term; this arrangement enures as a surrender from B. to A., and a new demise from A. to C. c

But where a yearly tenant agreed, by parol, with his landlord to quit, without giving due notice, and the premises were re-let by auction, at which the tenant attended and bid, but the new tenant was not let into possession, as the old tenant refused to quit; held, that it did not amount to a surrender by operation of law d. Unless there be a written demise to the new tenant, or he takes possession, there is no surrender of the prior tenancy.

SECTION IV.

SEC. 4. enacts" that no action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, de

fault, or miscarriage of another person, or to charge any person upon any agreement made upon consideration of marriage; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in, or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized."

SECTION V.

A promise by an executor or administrator to pay the debt of the deceased, to

render him personally liable, must

be in writing. Consideration for the promise.

PROMISE BY AN EXECUTOR.

A PROMISE, to render an executor or administrator personally liable for the debt of the testator or intestate, must be in writing, and signed by him; and if there be no assets, such promise, even though reduced into writing, is but nudum pactum, unless it be founded on a sufficient consideration. The common law requires that there should be a sufficient consideration to support the promise, and the statute adds a little further requisite, namely, that the promise should be in writing 2.

The leading case on this subject is Rann v. Hughes, which was an action of assumpsit against an administratrix, on a promise made by her to pay the debt of the intestate, after verdict for the plaintiff, upon which judgment was entered against the defendant, de bonis propriis, which was reversed in the Exchequer chamber; and on a writ of error in the House of Lords, the judges having been consulted, gave their unanimous opinion that the defendant was not liable; as there was no sufficient consideration to support the demand against her in her personal capacity, for she derived no advantage or convenience from the promise which she made, it being a promise generally to pay upon request what she was liable to pay upon request in another right; and though the pro

a 1 Saund. 211.

mise was reduced into writing, (which might be presumed after verdict,) yet that did not obviate the objection of nudum pactum; for by the law of England all contracts which are merely written, and not specialties, require a consideration to support them, and the statute of frauds did not take away the necessity of a consideration in this case; the statute was made for the relief of personal representatives, and others, and did not intend to draw them further than by the common law they were chargeable a.

SECTION VI.

PROMISE TO ANSWER FOR THE DEBT, DEFAULT, OR MISCARRIAGE

OF ANOTHER.

engagement to pay

the debt of

another

must be in writing.

A PROMISE to pay the debt of another, or a demand for which A collateral another is liable, is not binding unless it be in writing; but to bring a case within the statute, and render the promise void for want of writing, there must be a debt or legal liability on the part of the third party, and the defendant's engagement must be collateral; for if credit be given to the defendant only, and the third party be not at all trusted, the statute does not apply.

Where the plaintiff was induced to send goods to another in consequence of the defendant's saying, "if you do not know him you know me, and I will see you paid; " held a collateral promise, and therefore void, not being in writing. So where the defendant undertook that if the plaintiff would lend his horse to J. S., the latter would re-deliver it. So where the defendant said, "I will pay you if J. S. will not," and the goods were afterwards delivered d. So where the defendant said, "you may send the goods to A., and I will take care that the money shall be paid at the time," and it appeared that the plaintiff had sent a bill of parcels to A., charging him as the