there should be a previous caution, and that he should be told that what he says, if he chooses to say anything, will be taken down, and may be used against him at his trial. If, then, the true principle be that, in order to make the statement of the prisoner legal evidence on his trial, it must appear clearly to the Judge who tries the case that the statement was made freely and voluntarily (and, according to the case of The Queen v. Baldry, it is not sufficient unless this requirement be satisfied), is there any ground, in the present instance, for saying that the Judge who tried the case was satisfied that the statement was made freely and voluntarily? I do not think there is. Upon these grounds, it appears to me that the evidence in question should not have been admitted; and that, it having been admitted, the conviction is wrong, and should be quashed. The majority of the Court being of opinion that the conviction should be affirmed Per Curiam-Conviction affirmed. E. T. 1864. THE QUEEN v. JOHNSTON. M. T. 1864. LAMBERT v. M'DONNELL. (Exchequer.) Nov. 3, 5. Upon the sur- THIS was an action of ejectment on the title, and was tried before render to the head landlord, O'Brien, J., at the Spring Assizes 1864, for the county of Kilkenny. of a farm, held under a lease A. Lambert sen., father of the plaintiff, in the year 1828, made a for lives, upon the day of the lease of a farm to John Bryan, for three lives. Upon the decease of surrender, he defendant, a sub-yearly te nant of a house upon the farm, informed the John Bryan, his son D. Bryan went into possession of the farm. Upon Bryan's farm stood a house, in which the defendant, who was a ploughman, at weekly wages, in the employment of A. Lambert of the surren- sen., lived, and for which he paid £1 a-year rent to Bryan. Upon der by his im mediate lessor, the 6th of November 1849, by deed of surrender, indorsed upon the and the de fendant acqui- lease of 1828, D. Bryan surrendered all the lands comprised in that esced in it. The defend lease, except the defendant's house, to A. Lambert sen. At the ant, who was ploughman, at trial, A. Lambert jun., the plaintiff, thus detailed what occurred with weekly wages, to the land- reference to that cabin, upon the day of the surrender of the farm:— lord, agreed to "I went to defendant upon the 6th of November 1849, and I told continue in possession of "him that Daniel Bryan had given up possession of the farm, and I He said he hoped the house, as caretaker, un- "asked him was he satisfied? til some other He said yes. house could be "we would not charge him rent, as Bryan did, as he (defendant) procured for him by the " was a poor man. I told him that, instead of charging him rent, landlord. No demand of "my father and I would leave him in the house as a caretaker, until "such time as we could provide him with a house elsewhere; and I "asked him was he satisfied to take it on those terms? He said he M'Donnell was possession was was; and that he would do anything we wished. Upon an ejectment on the title, by the plaintiff-Held, that the agreement entered into by the parties amounted to a surrender, in law, by the defendant; his occupation of the house being inconsistent with the possession of any estate in the premises. * Coram FITZGERALD, HUGHES, and DEASY, BB. "then my father's ploughman, and was ploughing that day. Within M. T. 1864. a year after he asked me, when I was going to give him the slate "house I promised him? I said we would give it to him as soon as 16 we should have it built." The defendant was dismissed, by A. Lambert sen., from his employment in 1851, and was taken back in 1854. A. Lambert sen. died in the year 1856. In 1857 his heir, A. Lambert jun., the plaintiff, asked the defendant to go into another house, which he pointed out. He said he would not take it. A. Lambert sen. paid the defendant five shillings per week; the plaintiff paid him six shillings per week. In September 1862, the plaintiff offered the defendant another house, much better than the house in dispute. Upon his refusal to accept it, the plaintiff dismissed him, and demanded possession. His Lordship left two questions to the jury-first, whether the defendant had been a yearly tenant of the house to D. Bryan, at the date of the surrender? secondly, whether the defendant, at the time of the surrender by Bryan, agreed to remain in the house in question, as caretaker to A. Lambert sen. and the plaintiff, until such time as they could provide him with a house elsewhere? jury found, on both questions, in the affirmative; and his Lordship directed a verdict for the defendant, reserving leave to the plaintiff to move to change it into a verdict for himself. The A conditional order to change the verdict, pursuant to the leave reserved, having been obtained— M. O'Donnell (with whom was J. Flood) now showed cause. The surrender of the land by Bryan did not affect M'Donnell's interest; and the only evidence of a surrender by the latter was a parol agreement to become, at some future time, a tenant to the plaintiff Creagh v. Blood (a); Crowley v. Vitty (b); Foquet v. Moore (c); Doe d. The Earl of Egremont v. Courtenay (d); Lynch v. Lynch (e). (a) 1 Jon. & Lat. 133. VOL. 15. (b) 7 Exch. 319. (e) 6 Ir. Law Rep. 131. 18 L Exchequer. LAMBERT v. M'DONNELL. M. T. 1864. LAMBERT v. J. E. Walsh (with whom was P. F. White), contra. The acceptance of the custody of the house by M'Donnell was a surrender by him, to A. Lambert sen., of his tenancy from year to M'DONNELL. year to Bryan: Gybson v. Searl (a), cited in Com, Dig., tit. Surrender (I); Earl of Arundel v. Lord Gray (b); Peter v. Kendal (c); Nicholls v. Atherstone (d); Jones d. Lord Lorton v. Murphy (e); and the cases collected in The Duchess of Kingston's case (f). Nov. 5. FITZGERALD, J. This was an ejectment on the title, to obtain possession of a house situate in the county of Kilkenny. It appeared at the trial that, in the year 1828, the plaintiff's. father demised a parcel of land, on which was the house in question, to a person named Bryan. The lease was for a life which must be taken to be still in existence. Subsequently to this demise, the defendant became tenant from year to year, of the house only, to Bryan, at a rent of £1 yearly. As such tenant, the defendant was in occupation of the house in the year 1849, and was at the same time in the employment of the plaintiff's father as a ploughman, at weekly wages. In this state of things, Bryan, on the 6th of November 1849, by a writing endorsed on his lease, surrendered his estate in the premises demised by the lease of 1828 to the plaintiff's father. This put an end to Bryan's estate in the premises, as between him and the plaintiff's father; but did not of course determine the sub-interest of the defendant, which the jury has found to have been subsisting at the time of the surrender. In virtue of the surrender, the plaintiff's father, through the plaintiff, obtained possession of the demised premises, except the house; and on the same day on which possession was so taken, the plaintiff, acting for his father, had an interview with the defendant. He apprised the defendant of what Bryan had done, (a) Cro. Jac. 177. (e) 2 Jebb. & Sy. 323. (b) Dyer, 200, pl. 62. (d) 10 Q. B. 944. (f) 2 Smith, L. C., 5th ed., 713. Exchequer. and asked him whether he acquiesced in it? To this the defendant M. T. 1864. replied that he did so; and hoped that he should not now be obliged to pay rent for the house as he had hitherto done. LAMBERT v. It was then, as the jury has found, agreed between the defendant M'DONNELL. and the plaintiff, acting for his father, that the defendant (then being the ploughman of the plaintiff's father) should continue in possession of the house as caretaker, until some other house could be procured for him by the plaintiff's father. The defendant did continue, and has so continued, in possession, until the present time, paying no rent, and with the exception of a short interval, during which he did not act as ploughman, receiving his weekly wages as ploughman, from the plaintiff's father during his lifetime, and from the plaintiff since his decease. The defendant on two occasions applied for another house; but the plaintiff's father and the plaintiff on those occasions were not prepared to give him one; but they recognised the agreement, by again promising to get him such. Finally, in the year 1862, the plaintiff, having offered the defendant another house, which he refused to accept, dismissed him from his employment as ploughman; and afterwards, having demanded possession of the house in question, brought the present ejectment. The question is whether, in this state of facts, there was a surrender in law by the defendant, to the plaintiff's father, of his interest in the house subsisting at the time of Bryan's surrender. I am of opinion that, assuming the agreement found by the jury to have been acted on, it would amount to a surrender in law, because the defendant's occupation of the house as caretaker for the plaintiff's father, by agreement between them, would be inconsistent with his having an estate in the premises. The whole difficulty in the case seems to me to be, whether we can hold the agreement to have been acted on; which involves two considerations-whether there was evidence that it was so acted on; and, if there was, whether we can act on that evidence without a finding of the jury to that effect. I am of opinion that there was such evidence, in the continued payment |