of kin or a creditor may sue on such bond in the name of the ordinary, and the Court of King's Bench will direct the ordinary to permit his name to be used, in an action thereon, on the application of a party properly entitled. It may be assigned as a breach in an action on a bond, that the administrator has not delivered a true and perfect inventory," or that he has not made a true and just account; and either of these breaches will be incurred without any citation. But it is no breach of the conditions of such bond "to refuse to distribute among the next of kin, the surplus of the intestate's estate, after payment of debts," &c., without the previous decree of the court directing the administrator to do so. Nor is it a ground of forfeiture that the administrator has not paid the debts of the intestate. Where an administrator converted assets of the intestate to his own use, and became a bankrupt before he had exhibited his inventory, or made his account, and the ecclesiastical court discharged him from the suit there, he having received his certificate as a bankrupt; the court of Exchequer held, that his *malfeasance in converting to his own use the intestate's assets *1014 was a breach of the clause of the condition "well and truly to administer" them, and that the sureties were liable for the amount of the assets misapplied. It is not a sufficient answer to the assignment of the breach for not exhibiting an inventory on a certain day, "that there was no court on that day." The defendant must also plead that he was ready, &c.; for he must show that he had done all that could be done on his side towards a perfect performance; and such a defence must be specially pleaded. Where the creditors of the intestate brought an action against the sureties, on the administration bond, without the permission of the archbishop, and upon oyer craved the Ecclesiastical Court refused to give the bond to the plaintiffs; the court of Common Pleas refused an application that an authenticated copy of the bond, or the production of the bond itself in the Ecclesiastical Court to the attorney of the defendants should be a sufficient oyer; as the granting of such an application would deprive the Ecclesiastical Court of its jurisdiction, on deciding whether the action should be brought or not, or of insisting on an indemnity.j a 248. Archbishop of Canterbury v. House, Cowp. 141. Greenside v. Benson, 3 Atk. Greenside v. Benson, supra. Archbishop of Canterbury v. Willis, 1 Salk. 316. S. P. 1 Lutw. 882. 1 Salk. 315. • Canterbury (Archbishop of) v. Tappen, 8 B. & C. 151. (15 Eng. C. L. 174.) 1 Salk. 316. Canterbury (Archbishop of) v. Robertson, 1 C. & M. 691. 3 Tyr. 390. b Canterbury (Archbishop of) v. Willis, 1 Salk. 172. Canterbury (Archbishop of) v. Robertson, supra. Canterbury (Archbishop of) v. Tubb, MSS. C. P. E. T. 1837. OBSERVATIONS ON THE STATUTE 29 CAR. II, c. 3. THIS celebrated statute, the provisions of which have been the theme of much commendation, is said to have been the *1016 joint *production of Sir Mathew Hale, Lord Nottingham, Sir Leoline Jenkius, and the Lord Keeper Guilford. The Lord Nottingham used to say of this statute, that "every line of it was worth a subsidy." Lord Keeper Guilford's Life, by R. North, p. 108. In Chaplin v. Rogers, 1 East, 194, Lord Kenyon said that "it is one of the wisest laws in our statute book." See also Chater v. Becket, 7 T. R. 204. Roberts on the Statute of Frauds, Preface xix. Evans's Statutes, Part II. Chitty's Statutes, 366. This statute is said to have been drawn by Lord Hale, per Lord Ellenborough, C. J., in Wain v. Warlter, 5 East, 17. But in Wyndham v. Chetwynd, 1 Burr. 418, Lord Mansfield, expressed a doubt of this. And in Ruffhead's Edition of the Statutes, it is said, that it is scarcely probable that Lord Hale drew it, because the statute was not passed until after his death in 1676. See Ash v. Abdy, 3 Swans. 664. See Wynn's Life of Sir Leol. Jenkins, Vol. I. p. 3. The Lord Keeper Guilford had also a great share in penning this statute, as well as Sir Matthew Hale, 1 Ch. Stat. 366. The language and composition of the act have certainly no claim to particular commendation. Next to those acts relating to the settlement of the poor, it has been productive of more litigation in settling its construction, than any in the whole range of the statutes. It was stated by Mr. Barrington, forty years ago, to be a common notion in Westminster Hall, that it had not been explained at a less expense than 100,000l. Id. object of it is, the prevention of perjury, by requiring evidence in writing of the various contracts therein mentioned. It does not in any degree affect the nature of the contract, or dispense with any evidence of consideration which was previously required. It would be inconsistent with the object of this treatise to discuss the different clauses of this statute. Little more, therefore, is proposed, than to refer briefly to those provisions of the statute, and the various decisions thereon, which fall within the design of this work. SECTION II. SECTIONS 1 AND 2-LEASES. in land to be deemed By sect. 1, for the prevention of many fraudulent practices, Parol which are commonly endeavored to be upheld by perjury and leases of subornation of perjury, it is enacted, "that all leases, estates, interests interests of freehold, or term of years, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, leases at or hereditaments, made or created by livery and seisin only, will. or by parol, and not put in writing, and signed by the parties *1017 so making or creating the same, or their agents, thereunto lawfully authorised by writing, shall have the force and effect of leases, or estates only at will, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect; any consideration for making any such parol leases, or estates, to the contrary notwithstanding." Sect. 2, excepts from the operation of the preceding enact- Except ment, "all leases not exceeding the term of three years from leases not the making thereof, whereupon the rent reserved to the land- exceeding lord during such term shall amount unto two third parts, at the least, of the full improved value of the thing demised." the term of three years. ment is It has been held, that a parol agreement respecting an ease- An agreement in the land of another, is not within the meaning of the ment for first section; as where the defendant agreed, by parol, that the an easeplaintiff should have the liberty of stacking coals upon a close not within belonging to him for seven years, and that during that period the statute the plaintiff should have the sole use of that part of the close; held, that the agreement was binding, for as it was for an easement only, and not for an interest in land, it did not amount to a lease. (1) The purchase of a standing crop of growing grass Wood v. Lake, Say, 3. Webb v. Paternoster, Palm. 71. But in Hewlins v. Shippam, 5 B. & C. 221, (11 Eng. C. L. 207,) it was decided that a freehold easement in (1) (A right of way can be passed by deed only, and not by parol. Collam v. Hocker, 1 Rawle, 108. It may be questionable whether a parol license to overflow land by the erection Crop of is not within the first section; for construing the first section growing by the second, it meant to vacate parol leases conveying a greater interest in land than for a term of three years, and upon which a rent is reserved.a grass. A lease for Though the statute says that interest of freehold, or terms more than for years created by parol, shall have the force and effect of three leases, or estates at will only, yet it has been held that a lease years will enure as a by parol, though for more than three years, will enure as a tenancy tenancy from year to year;(1) the yearly tenancy commencing from year on the same day with the parol lease, and that it will require to year. a regular notice to determine the interest, as in other similar holdings. Where there was a parol agreement for a lease for seven years, the tenant to enter at Lady day and quit at Candlemas; it was held, that the landlord could not eject him, except at Candlemas, for though by the statute the lease was void as to the period of its duration, yet it would regulate the terms on which the tenancy subsisted in other respects. *1018 From what day a parol lease is to be computed. A verbal lease for two or three years is good. Agree A lease for three years, to be valid without writing, must be computed from the day of the agreement, and not from a future day. But a lease by parol, to commence at a future day, for less than three years from the time of making it, is good. Thus a lease by parol for a year and an half, to commence after the expiration of a lease which wants a year of expiring, is good, for it does not exceed three years from the making. A verbal agreement to take ready furnished lodgings for two or three years is valid as a lease for not exceeding three years. letting, without reference to time, creates a strict tenancy at will.h A Where a party enters under a mere agreement for a future ment for a lease, he is a tenant at will only; if he pay a yearly rent he future becomes a tenant from year to year, such tenancy being deterlease. minable on the execution of the lease according to the agree the land of another, could not be created without deed; and the court said in reference to the above cases, that the objection that the right lay in grant, and therefore could not pass, was not taken. See also Fentiman v. Smith, 4 East, 107. Harrison v. Parker, 6 East, 154. In the former case, it was held that a title to have water flow in a tunnel over the plaintiff's land, could not pass by parol licence without deed. Crosby v. Wadsworth, 6 East, 602. Clayton v. Blakey, 8 T. R. 3. a Rawlins v. Turner, 1 Ld. Raym, 736. 'B. N. P. 173. But it is within the 4th section. Id. Richardson v. Langridge, 4 Taunt. 128. Doe v. Bell, 5 T. R. 471. Ryley v. Hicks, 1 Stra. 651. of a dam is within the statute of frauds. Per Kennedy J. in M'Kellin v. M'Ilhenny, 4 Watts, 322. All the cases agree that a permanent interest in the land itself can be transferred only by writing. A license is an authority to enter upon the lands of another and do a particular act or series of acts, without possessing any interest in the lands; it is founded in personal confidence; is not assignable, and is valid, though not in writing, but the conferring of a right to enter upon lands and to erect and maintain a dam as long as there shall be employment for the water power thus erected is more than a license; it is the transfer of an interest in lands, and to be valid must be in writing. Mumford v. Whitney, 15 Wend. 380. See Noyes v. Chapin, 6 Wend. 461.) (2) (M Dowell v. Simpson, 3 Watts, 129.) ment. And though no rent be paid, the relation of landlord and tenant subsists, the party having entered with a view to a lease, and not with a view to a purchase." of a lease, An indorsement on the draft of a lease, signed by the lessee, Indorseand requesting the lessor to let the premises to some other per- ment on son, as it would be inconvenient for him, the lessee, to perform the draft his agreement respecting them, was held sufficient to satisfy when sufthe statute, for it was a writing under his hand expressing that ficient. he had entered into the agreement, and it was not necessary *that it should be cotemporaneous with the agreement, if it *1019 was adopted by him at any time. SECTION III. ASSIGNMENT OR SURRENDER OF TITLE. surrender By sect. 3, "no leases, estates or interests, either of freehold Assignor term of years, or any uncertain interest, not being copyhold ment or or customary interest, of, in, to, or out of, any messuages, ma- of interest nors, lands, tenements, or hereditaments, shall be assigned, in land to granted, or surrendered, unless it be by deed or note in writ- be in writing signed by the party so assigning, granting, or surrendering ing. the same, or their agents thereunto lawfully authorised by writing, or by act and operation of law." year. It has been held, that the assignment of a parol lease from Parol year to year was void, under this section, unless made in wri- lease from ting; and that a parol agreement between the landlord and year to 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." The mere cancelling a lease is not a sufficient surrender of What is a the term thereby created. (1) But where a mortgagee wrote on sufficient the mortgage-deed, "received of A. B. for principal and inte- surrender. rest, and I do release and discharge the within premises from 2 Stark. Ev. 342. See ante, 858, et seq. Shippey v. Derrison, 5 Esp. 190. с Botting v. Martin, 1 Camp. 190. a Mollett v. Brayne, 2 Camp. 103. Thomson v. Wilson, 2 Stark. 379. (3 Eng. C. L. 391.) Johnstone v. Huddlestone, 4 B. & C. 922. (10 Eng. C. L. 471.) Whitehead v. Clifford, 5 Taunt. 518. (1 Eng. C. L. 173.) Grimman v. Legge, 8 B. & C. 324. (15 Eng. C. L. 229.) Roe v. The Archbishop of York, 6 East, 86. Doe v. Thomas, 9 B. & C. 299. (17 Eng. C. L. 380.) Wootley v. Gregory, 2 Y. & J. 536. (1) (Rowan v. Lytle, 11 Wend. 616. Schieffelin v. Carpenter, 15 Wend. 400.) |