*1020

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."

*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. 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. 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.f

Substitu- There are many cases in which it has been decided, that tion of one where one tenant is substituted for another by the consent of tenant for all the parties, it operates as a surrender in law.

another.

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.h

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 *1021 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 plain

Hamerton v. Stead, 3 B. & C. 478. (10 Eng. C. L. 159.) See Whitcher v. Hall, 5 B. & C. 269. (11 Eng. C. L. 224.)

• Com. Dig. Surrender, 1. See 1 Saund. 236, b.

Peter v. Kendal, 6 B. & C. 703. (13 Eng. C. L. 301.)

• Doe v. Kendrick, Ad. Eject. 129.

Thomas v. Cooke, 2 B. & A. 119. 2 Stark. 408. (3 Eng. C. L. 405.)

See Walls v. Atcheson, 3 Bing. 462. (13 Eng. C. L. 52.) Mathews v. Sewell, 8 Taunt. 270. (4 Eng. C. L. 101.) Stone v. Whiting, 2 Stark. 235. (3 Eng. C. L. 331.) Phipps v. Sculthrope, 1 B. & A. 50.

Graham v. Whichelo, 1 C. & M. 188.

Reeve v. Bird, 1 C. M. & R. 31. 4 Tyr. 612.

tiff 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. 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.b

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. 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, default, *or miscarriage of another person, or to charge *1022 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 authorised.”

• Bees v. Williams, 2 C. M. & R. 581. 1 Tyr & G. 23. 1 Gale, 332. Rex v. Banbury, 3 Nev. & M. 292. 1 Adol. & Ellis, 136. (28 Eng. C. L. 57.) Huddlestone v. Johnson, 1 M'Clel. & Y. 141.

d Taylor v. Chapman, Peake Add. 19.

VOL. II.-17

A promise

ecutor or

administrator to

pay the

to render

Consider

ation for

the promise.

SECTION V.

PROMISE BY AN EXECUTOR.

A PROMISE, to render an executor or administrator personalby an ex- ly 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 debt of the common law requires that there should be a sufficient considedeceased, ration to support the promise, and the statute adds a little furhim perther requisite, namely, that the promise should be in writing."(1) sonally li- The leading case on this subject is Rann v. Hughes, which able, must was an action of assumpsit against an administratrix, on a probe in writ- mise made by her to pay the debt of the intestate, after verdict ing. 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 Jiable; 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 re*1023 quest in another right; and though the *promise 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 collateral en

SECTION VI.

PROMISE TO ANSWER FOR THE DEBT, DEFAULT, OR MISCARRIAGE
OF ANOTHER.

A PROMISE to pay the debt of another, on a demand for which another is liable, is not binding unless it be in writing;(2)

a Saund. 211.

(1) (Harrington v. Rich, 6 Vermont, 666.)

Rann v. Hughes, 7 T. R. 350. n.

(2) (The mischief produced by the want of a provision in our act of assembly, similar

but to bring a case within the statute, and render the promise gagement void for want of writing, there must be a debt or legal liability to pay the debt of on the part of the third party, and the defendant's engagement another must be collateral; for if credit be given to the defendant only must be in and the third party be not at all trusted, the statute does not writing. 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."(1) 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. 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 *debtor, and had written a letter to the defendant terming the *1024 promise a guarantee; held to be within the statute.d

So a promise by the indorser of an unpaid note to indemnify the holder, if he will proceed to enforce payment against the other parties, is within the statute."(2) Where the plaintiff supplied clothes to the crew of a ship, on a promise made by the lieutenant (the defendant) "to see him paid at pay-table;" held a collateral engagement, for from the nature of the case, the probability was that the plaintiff relied on the power of the defendant over the fund out of which the men's wages were to be paid, and gave credit to that fund rather than to the defendant.f

Where the defendant in consideration that the plaintiff would An origidischarge out of custody a person taken on a ca. su. at the suit nal undertaking of the plaintiff, promised to pay the debt on a certain day, or need not render that person; held that the promise was not within the be in wristatute, for the plaintiff's consent to discharge the debtor out ting. of custody operated as an extinguishment of the debt; the promise therefore by the defendant was not a collateral, but an original promise, the consideration for which was the discharge of the debt. So where plaintiff at the defendant's request

a Matson v. Wharam, 2 T. R. 80.

Buckmyre v. Darnall, 2 Lord Raym. 1085. Salk. 27.
Jones v. Cooper, Cowp. 227.

Rains v. Storry, 3 C. & P. 130. (14 Eng. C. L. 238.)
Winckworth v. Mills, 2 Esp. 484.
Goodman v. Chase, 1 B. & A. 297.

'Keate v. Temple, 1 B. &. P. 158.

to that in the statute of frauds, by which a parol promise to pay the debt of another is void, has induced the courts to lean against a recovery wherever the precise terms of the promise are not explicitly shown by clear and satisfactory proof. Per Gibson, C. J., in Sidwell v. Evans, 1 Penn. R. 385.)

(1) (Skinner v. Conant, 2 Vermont, 453.)

(2) (A promise by one to indemnify another for becoming a guarantor for a third person is not within the statute. Chapin v. Merrill, 4 Wend. 657.)

debt of an

Promise advanced some money to pay workmen who had been emto pay the ployed in the garden of an infant, it was held the undertaking of the defendant was not within the statute, for it was not a infant, need not collateral, but an original promise, as the infant could not be be in writ- liable for the debt. A promise by the defendant to execute a bail bond on a writ to be sued out against A., in consideration of the plaintiff forbearing to arrest A., on a writ already sued out, is not a promise to answer for the debt of another and need not be in writing.b

ing.

Agree

ment to pay the

debt of

Where the defendant in a chancery suit with the consent of the plaintiff, undertook to pay the plaintiff's solicitor his bill of costs, in consideration of the suit being discontinued another. held, that as the plaintiff, not being released by his attorney, had still continued to be liable for the bill of costs, this was an agreement by the defendant to pay the debt of another within sec. 4, of the statute of frauds, and ought to have been in writing.c

If the third

So where the plaintiff brought an action of assault against a party be third party, and the defendant, in consideration that the plainnot a debt- tiff would withdraw the record and not proceed to trial, proor, the promise need mised to pay him 50l. and the costs of the suit; held not to be not be in within the statute, and that the defendant was liable, though writing. the promise was not in writing; for the third party was not a *1025 debtor, the cause was not tried, and he did not appear to be guilty of any default or miscarriage; there might have been a verdict for him, if the cause had been tried; it was an original promise founded on a new consideration. But where A. had ridden the plaintiff's horse without his leave, and thereby caused his death, it was held, that a promise by the defendant to pay the plaintiff the damage which he had sustained in consideration of the plaintiff forbearing to sue A. was void, not being in writing. "The case of Read v. Nash," said Abbott, C. J., " is very distinguishable from this; for there it did not appear that the defendant had ever committed the assault, or that he had ever been liable in damages, and the case was expressly decided on the ground that it was an original, and not a collateral promise. But the wrongful riding the horse of another without his leave and license, and thereby causing his death, is clearly an act for which the party is responsible in damages, and therefore falls within the meaning of the word 'miscarriage." "e

⚫ Harris v. Huntbach, 1 Burr. 373.

Jarmin v. Algar, 2 C. & P. 249. (12 Eng. C. L. 114.) R. & M. 348.
Tomlinson v. Gell, 1 W. W. & Dav. 229. 1 Nev. & Perr. 558.

Read v. Nash, 1 Wills. 305.

• Kirkham v. Marter, 2 B. & A. 613. See a very able comment on these cases in 1 Saund. 211. b. 5th Ed., wherein it is contended that Read v. Nash has been overruled by Kirkham v. Marter. It is stated in 2 Stark. Ev. 344, that Read v. Nash was on a demurrer to a declaration which did not allege that any assault had been committed; and Wilmot, J., observed in 3 Burr. 1890, that the defendant was himself originally liable, and that it was not a promise to pay the debt of another. However