that the grant of a license to stack hay upon land did not amount to a lease of the land; and although it was said in that case, that such a license, provided the grant were for a time certain, was irrevocable, yet it did not follow, that an interest in the land did thereby pass. As the agreement, in the present case, was only for an easement and not for an interest in the land, it did not amount to a lease; and, consequently, it was, notwithstanding the statute, good for seven years. Foster, J., concurred in opinion, that the agreement did not amount to a lease; but he inclined to be of opinion, that the words in the statute, "any uncertain interest in land," extended to this agreement, and consequently that it was not good for more than three years. Lee, C. J., and Denison, J., were of opinion that these words related only to interests which are uncertain as to the time of their duration. After consideration; it was holden, that the agreement, though by parol, was good for seven years. This authority, however, appears questionable, on the ground that an easement cannot be granted even for a term of years without deed (k). Although the parol grant of an easement cannot be enforced, yet it may operate as a license, and may be set up as a defence to an action of trespass (1). [Shall have the Force and Effect of Leases at will ONLY.] Notwithstanding these words, a lease by parol, for a longer term than three years, will enure as a tenancy from year to year. In an action against a tenant (m), for double rent, for holding over after the expiration of his term, and a regular notice to quit, the first count in the declaration stated a holding under a certain term, determinable on the 12th of May then last past; and other counts stated a holding from year to year, determinable on the same day. It appeared in evidence, that the defendant had held the premises for two or three years, under a parol demise for twenty-one years from the day mentioned, to which the notice to quit referred. It was contended, at the trial, that the holding should have been stated according to the legal operation of it, as a tenancy at will; and as there was not any count adapted to that statement, the plaintiff ought to be nonsuited. Rooke, J., however, considering that it amounted to a tenancy from year to year, overruled the objection, and plaintiff obtained a verdict. On motion to set aside the verdict, on the ground of a misdirection, Lord Kenyon, C. J., said, that the direction was right, for such holding now operates as a tenancy from year to year. The meaning of the statute was, that such an agreement should not operate as a term; but what was then considered as a tenancy at will has since been properly construed to enure as a tenancy from year to year. If a landlord lease for seven years by parol (n), and agree that the tenant shall enter at Lady Day and quit at Candlemas, though the lease be (k) Bird v. Higginson, 4 Nev. & M. 505; and see Williams v. Morris, 8 M. & W. 488. (1) Wood v. Manley, 11 A. & E. 34; 3 P. & D. 5. (m) Clayton v. Blakey, 8 T. R. 3. void by the statute of frauds, as to the duration of the term, the tenant holds under the terms of the lease, in other respects; and therefore the landlord can only put an end to the tenancy at Candlemas. 3rd Section." And moreover, that no leases, estates, or interests, either of freehold, or terms 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 (o) of law." The mere cancelling, in fact, of a lease (p), cannot be considered as either a deed or note in writing within the meaning of this clause, and, consequently, will not be a surrender. A parol assignment of a lease from year to year is void under this clause (q). So a parol surrender of a lease (r). An insufficient notice to quit, accepted by the landlord, does not amount to a surrender by operation of law; and there cannot be a surrender to operate in futuro (s). For the statute 7 & 8 Vict. c. 76, ss. 3 & 4, relating to partitions, exchanges, assignments, leases and surrenders in writing, see ante, pp. 494 n., 506, 624. II. Fourth and seventeenth Sections relating to Agreements, p. 845 ; On the Effect of Parol Evidence of a Variation or Waiver of a Written Agreement, p. 874. 4th Section." 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 to charge the defendant, upon any special promise, to answer for the debt, default, 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." This section was intended for the relief of personal representatives and others, and it was not thereby intended that they should be charged further or otherwise than by (0) Thomas v. Cook, 2 B. & A. 119. 6 East, 86; Doe d. Courtail v. Thomas, 9 (g) Botting v. Martin, 1 Campb. 318. (r) Matthews v. Sawell, 8 Taunt. 270; 2 Moore, 262, S. C. (s) Johnstone v. Hudlestone, 4 B. & C. 922, cited by Parke, in Doe d. Murrell, v. Milward, 3 M. & W. 332. common law they were chargeable. Before the statute, a promise made, with reference to any of the subjects mentioned in this section, would not have made the party promising liable, unless such promise had been founded on a sufficient consideration (t). The same rules since the statute, with this addition, that such promise, and the consideration (u) on which it is founded, must be in writing, and be signed by the party to be charged, or his agent. It is not, however (x), necessary that such consideration should appear in express terms; it would undoubtedly be sufficient in any case, if the memorandum is so framed that any person of ordinary capacity must infer from the perusal of it, that the consideration stated in the declaration, and no other, was the consideration upon which the undertaking was given. If an action is brought for the non-performance of the promise, it is not necessary that it should be stated in the declaration (y), that the agreement was in writing; it will be sufficient for the plaintiff to produce a written agreement in evidence at the trial (4); but if such agreement be pleaded in bar of another action, it must be shown, on the face of the plea, that it was in writing; for, otherwise, it would not appear, that it was an agreement whereon an action might be maintained (z). The objection (a), that there is no contract in writing, need not be pleaded specially, but may be set up under non assumpsit. The word 66 action," duly interpreted, embraces every suit in equity (b). Having premised that the preceding remarks apply to each of the clauses in this section, and that they are introduced in this place for the sake of avoiding repetition, I shall proceed to consider the several clauses separately. No Action shall be brought to charge any Executor or Administrator, upon any special Promise to answer Damages out of his own Estate.]-The leading case on this clause is that of Rann v. Hughes (c). It was stated in the declaration, "that disputes had (t) Barrell v. Trussell, 4 Taunt. 117. (u) Wain v. Warlters, 5 East, 10; recognized in Saunders v. Wakefield, 4 B. & A. 595, and Jenkins v. Reynolds, 3 B. & B. 14; although Ld. Eldon, in Exp. Minet, 14 Ves. 189, and in Exp. Gardom, 15 Ves. 286, had questioned the authority of Wain v. Warlters, according to the remark of Dallas, C. J., in Boehm v. Cambbell, 8 Taunt. 682. But see the observations of Best, C. J., on the two cases in Chancery in Morley v. Boothby, 3 Bingh. 113. See also Clancy v. Piggott, 2 A. & E. 481. (x) Hawes v. Armstrong, 1 Bingh. N. C. 761; and see Raikes v. Todd, 8 A. & E. 846; 1 P. & D. 138; Kennaway v. (y) Anon., Salk. 519; 3 Burr. 1890; per Yates, J., S. P. (z) Case v. Barber, T. Raym. 450. (a) Eastwood v. Kenyon, 3 P. & D. 276; 11 A. & E. 438; Buttemere v. Hayes, 5 M. & W. 456, ante, p. 124; see Fricker v. Thomlinson, 1 M. & Gr. 772. (b) Per Lord Eldon, C., Cooth v. Jackson, 6 Ves. 31. (c) Rann and another, Executors of Mary Hughes, v. Isabella Hughes, Administratrix of John Hughes; D. P. 14 May, 1778; 4 Bro. P. C. p. 27, Tomlin's ed.; 7 T. R. 350, n. (4) A plea of tender to the action will supersede the necessity of this proof; for by payment of money into court upon that plea the defendant admits the cause of action. Middleton v. Brewer, Peake's N. P. C. 15. arisen between the testatrix and the intestate, which had been referred to arbitration; that the arbitrator awarded, that the intestate should pay to the testatrix a sum of money on a day appointed; that afterwards the intestate died, possessed of effects sufficient to pay the sum awarded; that at the time of the death of the testatrix, the sum awarded remained unpaid, by reason of which the defendant, as administratrix, became liable to pay the plaintiffs, as executors, the said sum, and, being so liable, the defendant, (not saying as administratrix,) in consideration thereof, promised to pay the same. Pleas.-1. Non assumpsit. 2. Plene administravit. 3. An outstanding debt, on bond, and plene administravit præter. The replication took issue on all the pleas. Verdict for the plaintiffs on the first, issue and damages assessed: on the other issues, for the defendant. The plaintiffs entered judgment for the damages assessed and costs, against the defendant generally. On a writ of error in the Exchequer Chamber, it was assigned for error, that the defendant was impleaded as administratrix of the intestate, yet judgment was given against her generally, and without any regard to her having goods of the intestate in her hands to be administered. The Court of Exchequer Chamber reversed the judgment. Upon a writ of error from this judgment, in the House of Lords, the following question was put to the judges: Whether sufficient matter appeared upon the declaration to warrant, after verdict, the judgment entered up against the defendant in error in her personal capacity? Skynner, C. B., delivered the unanimous opinion of the judges:-1. That there was not a sufficient consideration to support this demand, as a personal demand against the defendant: inasmuch as the defendant did not derive any advantage from the promise, for it was a promise generally to pay upon request, what she was liable to pay upon request in another right, and the promise was not founded on any consideration of forbearance, or the like, which might have supported it. 2. That the promise not being founded on any consideration, the circumstance of its being in writing (which might be presumed after verdict,) would not assist the case; for by the law of England, an agreement merely written, and not being a specialty, required a consideration. 3. That the statute of frauds had not taken away the necessity of a consideration; for that statute was made for the relief of personal representatives; and did not intend to charge them further, than by common law they were chargeable. Or to charge the Defendant upon any special Promise to answer for the Debt, Default, or Miscarriage of another Person].-In order to bring a case within this clause of the statute, it is essentially necessary that the person, on whose behalf the promise is made, should be liable, as well as the promiser; or, as it is sometimes expressed, (though the propriety of the expression has been questioned,) (5) that the promise should be collateral, and not original. (5) "Many of the doubts upon this statute have arisen from making This distinction will be illustrated by the following cases, which are arranged under two divisions: first, cases within the statute; secondly, cases not within the statute. 1. Cases within the 2nd Clause of the 4th Section.-In an action upon the case, the plaintiff declared, that the defendant, in consideration that the plaintiff would let his gelding out to hire to J. S.(d), promised the plaintiff that J. S. should re-deliver the gelding, but that J. S. never did re-deliver him. It was objected, that the plaintiff had not any remedy against the party upon the contract, for not re-delivering the gelding, except by an action of trover upon the subsequent tort, in case of demand and refusal; and, therefore, as such remedy accrued from a wrong, subsequent to the contract, the present case was not within the meaning of the statute; but the court overruled the objection, observing, that the party was also liable in detinue upon the original delivery or bailment, the bailment having been such as in its nature required a re-delivery; and if the bailee will not re-deliver the thing bailed, the only adequate remedy is an action of detinue against the bailee; consequently, this promise of the defendant's, that J. S. should re-deliver the horse bailed, for which there was a remedy against J. S. upon the bailment, was a collateral promise, and, therefore, a promise to answer for the act and default of another, within the statute. A. had wrongfully, and without the license of B., ridden his horse, and thereby caused his death; it was holden (e), that a promise by a third person to pay the damage thereby sustained, in consideration that B. would not bring any action against A., is a collateral promise within the statute of frauds, and must be in writing. The defendant, in consideration that the plaintiff would not sue J. S. (f), promised to pay the plaintiff the money due from J. S.: this was holden to be within the statute, for there was not any consideration stated for which the plaintiff had promised not to sue; and if there had, J. S. could not have availed himself of this agreement between the defendant and plaintiff, but the debt would still have subsisted, and, consequently, the promise was collateral. J. S. was indebted to the plaintiff in a sum of money (g), for the recovery of which the plaintiff had commenced an action; whereupon the defendant, in consideration that the plaintiff would stay his action against J. S., promised to pay the plaintiff the money owing to him by J. S. This was holden to be clearly within the statute; on the ground that there was a debt of another still subsisting, and a promise to pay it. So also, if plaintiff (h) become bail for a stranger, in consideration of defendant's request, and of defendant promising to (d) Buckmyr v. Darnall, Ld. Raym. 1085; Salk. 27, B. R.; 6 Mod. 248, S. C. (e) Kirkham v. Marter, 2 B. & A. 613. (f) Rothery v. Curry, Bull. N. P. 281. (g) Fish v. Hutchinson, 2 Wils. 94. (h) Green v. Cresswell, 10 A. & E. 453; 2 P. & D. 430; questioning the decision in Thomas v. Cook, 8 B. & C. 728. use of the word collateral, which is not a word used in the statute." Bull. N. P. 281. |