would seem that this rule equally applies, whether the cancelled deed relates to things lying in livery, or to those which lie only in grant.' Neither will the fact of the deed being found cancelled in the possession of the lessor, furnish in itself any presumption of an actual surrender by deed or note in writing; though it may be a circumstance fit for the consideration of the jury, if coupled with proof that the lessee has been out of possession for a series of years, or that the lessor's papers have been destroyed, or that other occurrences have happened, which might account for, or excuse, the non-production of the written surrender."

§ 924. Though the doctrine of surrender by operation of law was originally confined to cases where the tenant accepted from his lessor a new interest, inconsistent with that which he previously had, it has by modern decisions been considerably extended, and is now applied, not only to the case where the second lease is granted to the lessee himself, or to the lessee and his wife, or to the lessee and a stranger, but to any act done by the landlord, which creates a new interest in a third party, inconsistent with the tenant's former interest; provided the tenant and third party concur in such act, and the former actually gives up possession in consequence of it. Thus, a demise by the lessor to a stranger, with the assent of the lessee, if coupled with an actual change of possession, is a surrender by operation of law of the lessee's interest, at least if it be merely a chattel interest.

6,7; 4 Kent, Com. 104; Roberts on Frauds, 251, 252; id. 248, 249; Holbrook v. Tirrell, 9 Pick. 105.

Bolton v. Bp. of Carlisle, 2 H. Bl. 263, 264; Walker v. Richardson, 2 M. & W. 892.

: Doe v.

Thomas, 9 B. & C. 288, 298-300; 4 M. & Ry. 218, S. C.; Walker v. Richardson, 2 M. & W. 882; ante, § 120.

3 Shep. Touchst. 301; Hamerton v. Stead, 3 B. & C. 478.

4 Thomas v. Cook, 2 Stark. R. 408; 2 B. & A. 119, S. C.; Stone v. Whiting, 2 Stark. R. 235; Dodd v. Acklom, 6 M. & Gr. 672; Lynch v. Lynch, 6 Ir. Law R. 131; Walker v. Richardson, 2 M. & W. 882; Davison v. Gent, 26 L. J., Ex., 122; 1 H. & N. 744, S. C. Grimman 7. Legge, 8 B. & C. 324; 2 M. & R. 438, S. C.; Bees v. Williams, 2 C. M. & R. 581; Graham v. Whichelo, 1 Cr. & Mee. 188; Reeve v. Bird, 1 C. M. & R. 31; 4 Tyr. 612, S. C.; Hall v. Burgess, 5 B. & C. 332; Nickells v. Atherstone, 10 Q. B. 944; M'Donnell v. Pope, 9 Hare, 705.

⚫ Cases cited in last note. In Doe v. Wood, 14 M. & W. 682, M., tenant

Whether the same doctrine would apply to a case where the former lessee had a freehold interest may admit of some doubt. In Lynch v. Lynch' the Irish Court of Exchequer held that it would, but that decision has been much shaken, if not overruled, by Lord St. Leonards, in the case of Creagh v. Blood. Although a parol licence to quit, even when followed by an actual quitting, will not of itself operate as a surrender of the tenant's interest; yet if the tenant, in pursuance of such a licence, gives up possession, and the landlord accepts it, the licence, coupled with the change of possession, will amount to a surrender by operation of law, and the landlord will not be able to recover any rent becoming due after his acceptance of the possession.1

3

§ 925. It is true that this doctrine has been questioned by Lord Wensleydale, who has suggested that the cases on which it rests may be supported on the ground, that the occupation of the premises by the landlord's new tenants might "have the effect of eviction by the landlord himself, in superseding the rent or compensation for use and occupation during the continuance of that occupation." Several of the cases may certainly be explained in this manner; and one was expressly decided on a somewhat similar ground; but in Thomas v. Cook, which is the leading authority on the subject, this point was neither suggested in argument, nor alluded to by the Court; and in Lynch v. Lynch, which

6

from year to year to B., died, leaving his widow in possession. A., some time after, took out administration, but the widow continued in possession, paying rent to B. within A.'s knowledge, and A. not objecting. Held, that these facts did not amount to a surrender on A.'s part by operation of law, and, consequently, that A., on proof of M.'s tenancy and death, and his own title as administrator, could recover in ejectment against the widow.

16 Ir. Law R. 131. 23 Jones & Lat. 133, 161. Mollett v. Brayne, 2 Camp. 103, per Lord Ellenborough. See also Doe v. Milward, 3 M. & W. 328, and Johnstone v. Huddlestone, 4 B. & C. 922. Grimman v. Legge, 8 B. & C. 324; 2 M. & R. 438, S. C.; Dodd v. Acklom, 6 M. & Gr. 672; Whitehead v. Clifford, 5 Taunt. 518. See Cannan v. Hartley, 19 L. J., C. P., 323; 9 Com. B. 634, S. C.

5 Lyon v. Reed, 13 M. & W. 309, 310.

Gore v. Wright, 8 A. & E. 118; 3 N. & P. 243, S. C.

7 2 Stark. R. 408; 2 B. & A. 119, S. C.

8 6 Ir. Law R. 131.

was much discussed in Ireland, the point could not have been taken at all, it being an action of ejectment brought by the former lessees for life, against the party who, with their consent, had been substituted in their place by the landlord. Moreover, the Court of Queen's Bench,' and, very recently, the Court of Exchequer also,' have declared their dissent from the line of argument advanced by Lord Wensleydale, and have confirmed the rule laid down in Thomas v. Cook.

§ 926. On the whole it is submitted that this rule is good law; and that confined, as it is, to cases where an actual, and, consequently, a notorious shifting of possession has occurred, no real danger need be apprehended from its continuance. Its adoption, where reversions or incorporeal hereditaments are disposed of, which pass only by deed, or its extension to cases where corporeal estates are dealt with by the consent of the tenant, but where no actual change of possession has taken place, would certainly let in all the dangers for avoiding which the statute was passed; and here Lord Wensleydale is quite right in observing, that if this were the law, it would very seriously affect titles to long terms of years; mortgage terms, for instance, in which it frequently happens that there is a consent, express or implied, by the legal termor to a demise from the mortgagor to a third person. However, as this is not the law at present, and as little reason exists for supposing that it will ever become the law, nothing further need be said on the subject.

§ 927. A surrender by operation of law may also be effected under the provisions of particular Acts of Parliament. For instance, the Bankrupt Law Consolidation Act empowers a bankrupt lessee to relieve himself from all responsibility under his

1 Nickells v. Atherstone, 10 Q. B. 944, 950, 951.

2 Davison v. Gent, 26 L. J., Ex., 122; 1 H. & N. 744, S. C.

4 Id. 310, as to estates lying in grant; Doe v. Johnston, M'Clel. & Y. 141, as to the assent of the tenant, when not coupled with change of possession; recognised in Dodd v. Acklom, 6 M. & Gr. 679, 682. In Walker v. Richardson, 2 M. & W. 882, there was a lease of tolls, but the point that this was a right which lay in grant was never taken.

lease, by simply delivering it up' to the landlord within fourteen days after notice given to him that his assignees decline it; and if the assignees do not elect whether they will decline or accept the lease, they will be compelled by the Court to do so, and in case they decline the same, to deliver it to the landlord. The same rule prevails with regard to agreements for a lease, and to agreements for the purchase of any estate or interest in land."

It seems, though the point is not without doubt, that where the bankrupt holds under a demise not in writing, the offering possession is a delivery within the statute. Slack v. Sharpe, 8 A. & E. 366; 3 N. & P. 390, S. C. ; Briggs v. Sowry, 8 M. & W. 729, 739, 741. 212 & 13 Vict. c. 106, § 145, enacts, that "if the assignees of the estate and effects of any bankrupt having or being entitled to any land either under a conveyance to him in fee, or under an agreement for any such conveyance, subject to any perpetual yearly rent reserved by such conveyance or agreement, or having or being entitled to any lease or agreement for a lease, shall elect to take such land, or the benefit of such conveyance or agreement, or such lease or agreement for a lease, as the case may be, the bankrupt shall not be liable to pay any rent accruing after the issuing of the fiat or filing of the petition for adjudication of bankruptcy against him, or to be sued in respect of any subsequent non-observance or non-performance of the conditions, covenants, or agreements in any such conveyance or agreement, or lease or agreement for a lease; and if the assignees shall decline to take such land, or the benefit of such conveyance or agreement, or lease or agree. ment for lease, the bankrupt shall not be liable if, within fourteen days after he shall have had notice that the assignees have declined, he shall deliver up such conveyance or agreement, or lease or agreement for lease, to the person then entitled to the rent, or having so agreed to convey or lease, as the case may be ; and if the assignees shall not (upon being thereto required) elect whether they will accept or decline such land or conveyance, or agreement for conveyance, or such lease or agreement for a lease, any person entitled to such rent, or having so conveyed or agreed to convey, or leased or agreed to lease, or any person claiming under him, shall be entitled to apply to the Court, and the Court may order them to elect, and deliver up such conveyance or agreement for conveyance, or lease or agreement for lease, in case they shall decline the same, and the possession of the premises, or may make such other order therein as it shall think fit."

§ 146 enacts, that "if any bankrupt shall have entered into any agreement for the purchase of any estate or interest in land, the vendor thereof, or any person claiming under him, if the assignees shall not (upon being thereto required) elect whether they will abide by and execute such agreement, or abandon the same, may apply to the Court, and the Court may thereupon order them to deliver up the agreement, and the possession of the premises, to the vendor or person claiming under him, or may make such order therein as such Court shall think fit."

2

Somewhat similar provisions are also contained in the Acts respecting Insolvent Debtors, and in the "Irish Bankrupt and Insolvent Act, 1857." So, under the Act for regulating Benefit Building Societies, the trustees of any such society may indorse on any mortgage given to them by a member a receipt in full, and such receipt will have the effect of vacating the security, and of vesting the property comprised therein in the party entitled to the equity of redemption, without any re-conveyance.'

§ 928. With respect to assignments by operation of law, these may be effected in a variety of ways. For instance, when a lessor dies intestate, the reversion vests in his heir-at-law, and when a lessee dies intestate, the lease vests in his administrator, by operation of law. Nay, as against himself, even an executor de son tort may be treated as the assignee of a lease; and in all these cases, when an action is brought against the heir, or administrator, or executor de son tort, it will be sufficient to charge in the declaration that the reversion or lease respectively came to the defendant "by assignment thereof then made." So, on a woman's marriage her chattels real may be said to be assigned to her husband by operation of law. When any person is adjudged a bankrupt, his

1 1 & 2 Vict. c. 110, § 50, enacts, that "in all cases in which any such prisoner (that is, any person imprisoned for debt, who has petitioned the Insolvent Debtors' Court) shall be entitled to any lease or agreement for a lease, and his assignee or assignees shall accept the same, and the benefit thereof, as part of such prisoner's estate and effects, the said prisoner shall not be, or be deemed to be, liable to pay any subsequent rent, to which his discharge, adjudicated according to this Act, may not apply, nor be in any manner sued after such acceptance in respect or by reason of any subsequent non-observance or non-performance of the conditions, covenants, or agreements therein contained: Provided that in all such cases as aforesaid it shall be lawful for the lessor, or person agreeing to make such lease, his heirs, executors, administrators, or assigns, if the said assignee or assignees shall decline, upon his or their being required so to do, to determine whether he or they will or will not accept such lease or agreement for a lease, to apply to the said Court, praying that he or they may either so accept the same, or deliver up such lease or agreement for a lease, and the possession of the premises demised or intended to be demised; and the said Court shall thereupon make such order as in all the circumstances of the case shall seem meet and just, and such order shall be binding on all parties." * 20 & 21 Vict., c. 60, §§ 271, 272.

3 6 & 7 Will. 4, c. 32, § 5.

4 * Paull v. Simpson, 9 Q. B. 365; Derisley v. Custance, 4 T. R. 75.