that evidence that the plaintiff had paid rent to the defendant was not sufficient proof of such demise (a). The payment of rent, even qua rent, is open to explanation, and is not conclusive proof of a tenancy. Thus, where T., holding pictures of P's., as a surety for an alleged debt, hired rooms of the plaintiff, in which to deposit them; and P. having died, the defendants, his administrators, contested T.'s claim by a suit in Chancery; and pending the suit, in order to prevent the pictures from being distrained, they petitioned the court to satisfy the plaintiff's rent out of certain funds paid into court in the course of the cause; upon T.'s claim having been disallowed by the court, and the pictures ordered to be delivered to the defendants, who, in order to obtain them, paid rent to the time of delivery; it was held, that these circumstances did not constitute the defendants, tenants to the plaintiff (b). The payment of an unvaried rent to the lord of a manor, for land in the manor, is presumed to be a payment for quit rent, and is evidence of title to the rent only, not the land (c).

A mortgagee is of course bound by existing tenancies, created before the mortgage. In regard to tenancies subsequently created, by agreement between the mortgagor and third persons, the mortgagee is not bound, unless he recognise such tenancies by receiving rent, or by other acts decisively shewing his adoption of them (d).

The mere demand of rent and threat of a distress, would not, it seems, evidence a tenancy under the mortgagee; but they would amount to an admission that the tenant's possession was at that time lawful, so that an ejectment could not be brought on a demise, laid in the declaration to have been previously made; and it seems that proof of a demand of possession, or a disclaimer by the tenant of the mortgagee's title, would also be necessary (e). But the mere receipt of interest up to a given day, does not amount to a recognition by the mortgagee, that the mortgagor or his tenant was lawfully in possession, until the time when such interest was paid (f).

(a) Phillips v. Mosely, 1 C. & P. 262. (b) Strahan v. Smith, 12 Moor, 289; 4 Bing. 91, S. C.

(c) Doe d. Whittick v. Johnson, Gow. 173.

(d) Doe d. Fisher v. Giles, 5 Bing. 421; 2 M. & P. 749, S. C.; Warne d. Keech v. Hall, Dougl. 21; Thunder v. Belcher, 3 East, 449; Doe d. Sheppard v. Allen, 3 Taunt. 78. mortgagee's right to rents due from the mortgagor's tenants; Pope v. Biggs,

As to the

9 B. & C. 245.

(e) Doe d. Whitaker v. Hales, 7 Bing. 322; 5 M. & P. 132, S. C. As to disclaimer, see Doe d. Calvert v. Frowd, 4 Bing. 557; 1 M. & P. 480, S. C. And a notice by A. to quit at a future time, land "which you now hold or rent under me," prima facie, admits a tenancy; Barton v. Corby, M'Clel. & Y. 278.

(f) Doe v. Cadwallader, 2 B. & Ad.

473.

If the tenant take possession and occupy, under a written memorandum for a present demise, which he never signed, it seems that he shall be presumed to hold upon the terms specified in such agreement. But if the landlord, in such case, fail to fulfil his part of the agreement in a material point, the jury, in an action for use and occupation, may ascertain the value of the premises, without regarding the amount of rent reserved by the written contract (g).

If the tenant be evicted (h) by the landlord from the whole or part of the premises, he may treat the tenancy as, ipso facto, wholly void and determined. But if he retain possession of the remainder of the premises, in the event of a partial eviction, he shall be liable; not upon the agreement, but upon the quantum meruit, for a fair value of that portion of the tenement which he retains (i).

4. Of the Statute of Frauds relative to the assignment and surrender of terms, &c.-The third section of the Statute of Frauds, 29 Car. 2, c. 3, enacts, 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 (k), signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorised by writing; or by act and operation of law.

By virtue of this clause, a parol assignment of a lease from year to year is void (7). It has also been determined upon this section, that a tenancy from year to year, created by parol, is not determined by a parol licence from the landlord to quit in the middle of a quarter, and the tenant quitting the premises accordingly (m). But if, in such case, both parties act upon such parol notice or licence to quit, that is, the landlord himself take posses

(g) Tomlinson v. Day, 2 B. & B. 680; 5 Moore, 558, S. C.

(h) When a claim to rent by a party having the superior title, and payment to him, amount to eviction; Supsford v. Fletcher, 4 T. R. 511; Taylor v. Zamira, 6 Taunt. 527; Pope v. Biggs, 9 B. & C. 256, per Parke, J.

(i) Smith v. Raleigh, 3 Camp. 513; Burn v. Phelps, 1 Stark. R. 94; Tơm

linson v. Day, 2 B. & B. 681; 5 Moore, 558, S. C.; Griffith v. Hodges, 1 C. & P. 419; Pope v. Biggs, 9 B. & C. 252.

(k) It will be observed that a written memorandum, without a deed, is suffi

cient.

(1) Botting v. Martin, 1 Camp. 318, and 2 Moore R. 270, S. C. cited.

(m) Mollett v. Brayne, 2 Camp. 103; Thompson v. Wilson, 2 Stark R. 379.

sion, so as to render it impossible for the tenant to use or occupy the premises, the tenancy is thereby legally determined (n). And it seems that the tenant's removal of his goods with the landlord's assent, and the delivery of the key to the landlord, and his acceptance thereof, amount to a surrender in law (o). And if, during a letting from year to year, the landlord, with the assent of his tenant, who quits the premises, accept and treat a third person as his, the landlord's, tenant, this amounts to a valid surrender of the original tenant's interest by act and operation of law. But in such case, the express consent of all parties to the change of tenancy seems necessary (p). And unless there be a written demise to the new tenant, (the third person), or he take possession, it appears that no surrender of the prior tenancy is effected by legal operation (q). Where a tenancy is thus determined in the middle of a quarter, whilst the rent is current, the tenant, (without express agreement,) is not liable for a proportion of the current quarter's rent from the preceding quarter day, to the day of quitting (r). And where a tenant from year to year, by a Lady-day holding, agreed by parol with his landlord's agent, to quit at the ensuing Lady-day, which was within half a year; 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; it was held that this did not amount to a surrender by operation of law (s). And where a defective parol notice to quit was given, and the landlord verbally assented to it, yet the notice was holden inoperative; it not being in writing, and there not being any sufficient surrender by operation of law (t).

The mere cancellation of a lease, without a written surrender,

(n) Whitehead v. Clifford, 5 Taunt. 518; Grimman v. Legge, 8 B. & C. 324; 2 M. & R. 438, S. C.; Brown v. Burthenshaw, 7 D. & R. 603.

(0) Grimman v. Legge, ubi suprà. (p) Thomas v. Cook, 2 B. & Ald. 119; Phipps v. Sculthorpe, 1 id., 50; Mathews v. Sewell, 2 Moore, 262, 270; 8 Taunt. 270, S. C.; Stone v. Whiting, 2 Stark R. 235; Hamerton v. Stead, 3 B. & C. 478; 5 D. & R. 206, S. C.; Walls v. Acheson, 11 Moore, 379; 3 Bing. 462, S. C. There must be a clear case of substitution and acceptance of the new tenant, and merger of

the old tenant's interest; and it seems that the merely taking rent from the new occupier, will not suffice; Graham v. Whichelo, 1 C. & M. 188.

(q) Taylor v. Chapman, Peake's Addl. Cases, 19.

(1) Hall v. Burgess, 5 B. & C. 332; Grimman v. Legge, ubi supra; Walls v. Atcheson, 2 C. & P. 268, S. C., in 3 Bing. 462, and 11 Moore, 379.

(s) Doe d. Huddlestone v. Johnston, 1 M'Clel. & Y. 141.

(t) Johnston v. Huddlestone, 4 B. & C. 922; 7 D. & R. 411, S C.

does not amount to a surrender by operation of law (u): and where a lease appeared to have the names of the parties torn off, it was decided that this was neither a surrender by construction of law, nor primâ facie evidence of a written surrender (x). The acceptance of a new lease for a term, to commence during the existence of a former demise, is a surrender of the first term (y).

5. Of the tenant being estopped from disputing his landlord's title. The general rule is, that a tenant is estopped from disputing his landlord's title (z). Therefore, the tenant of glebe land is not allowed, in an action for use and occupation, to shew a simoniacal presentation of the plaintiff, his landlord (a). And where the defendant came in under the plaintiff, he cannot set up as a defence, that the plaintiff's title has expired; unless he solemnly renounced such title at the time, and attorned to the party having the title (b). And if the lessee be estopped, so is his assignee (c). And a tenant cannot, in an action for use and occupation, dispute the title of his landlord's assignee: if a due conveyance from the landlord, and notice thereof to the tenant, be proved, and he remain in possession, the estoppel holds in favour of the assignee, if it would obtain in favour of the landlord (d). And it holds in favour of a reversioner whose interest was the same as that of a tenant for life, deceased, to whom the defendant was tenant (e). But where the plaintiff is not the person who originally let the premises to the defendant, the plaintiff can only recover rent from the time he had the legal title in him, although he may have had the equitable estate long before (ƒ). A tenancy shall not be implied under a party who has not the legal estate (g)

(u) Roe d. Berkeley v. York, 6 East, 86; 2 Smith, 166, S. C.; Wootley v. Gregory, 2 Y. & J. 536.

(x) Doe d. Courtail v. Thomas, 9 B. & C. 288.

(y) See Woodf. by Harrison, 242 to 245; Hamerton v. Stead, 3 B. & C. 478; 5 D. & R. 206, S. C.

(2) See, in general, Alchorn v. Gomme, 2 Bing. R. 54; Gravenor v. Woodhouse, 7 Moore, 298; Parry v. House, Holt N. P. R. 492, n.; Woodf. by Harrison, 169, 171. In case of churchwardens, ante, 232,233.

(a) Cooke v. Loxley, 5 T. R. 5; Lewis v. Willis, 1 Wils. 314; Bul. N. P. 139.

(b) Balls v. Westwood, 2 Camp. 11;

see Burne v. Richardson, 4 Taunt. 720; post 266, note (q); Rogers v. Pitcher, 6 Taunt. 202; 1 Marsh. 541, S. C.; Gravenor v. Woodhouse, 1 Bing. 38; see Hopcraft v. Keys, infrà.

(c) Taylor v. Needham, 2 Taunt. 278; see Doe d. Williams v. Morris, 6 B. & C. 41; 9 D. & R. 30, S. C.

(d) Rennie v. Robinson, 1 Bing. 147; 7 Moore, 539, S. C.

(e) Doe v. Whitroe, 1 D. & R. N. P. R. 1.

(f) Cobb v. Carpenter, 2 Camp. 13, n.; and cases, supra, note (b).

(g) Morgell v. Paul, 2 M. & R. 303; Cornish v. Scarell, 8 B. & C. 471, 475.

In general, the payment of rent, though it impliedly admits a tenancy, and consequently a title to demise, is not conclusive, but only strong primâ facie evidence against the tenant, of the landlord's title (h). If the rent has been paid under a misrepresentation or mistake, the tenant is not estopped from resisting further payment, after discovering such misrepresentation (i). And the payment of rent by a lessee to a lessor, after the title of the latter has expired, and after the lessee had notice of an adverse claim, does not amount to an acknowledgement of title in the lessor, or to a virtual attornment; unless, at the time of payment, the lessee knew the precise nature of the adverse claim, or the manner in which the lessor's title has expired (k). So, the effect of an attornment may be destroyed by the non-claim of rent for several years, and by shewing a strong ground to suspect the title of the party to whom the attornment was made; particularly if it was not given voluntarily, but to prevent the continuance of an ejectment (7).

In Cornish v. Searell (m), it appeared, that A., being tenant of premises, under a lease from B, a sequestration issued against the latter out of Chancery. A. then signed the following instrument;

"I hereby attorn, and become tenant to C. and D., two of the sequestrators named in the writ of sequestration, issued in the said suit in Chancery, and to hold the same for such time, and on such conditions, as may be subsequently agreed upon." It was held, that this was an agreement to become tenant; and that the defendant not having received possession of the premises from C. and D., might dispute their title; and that the lease not being proved to have been surrendered, was an answer to the action. Mr. Justice Bayley observed, "It has been said, that the defendant having agreed to become tenant to the plaintiff's, cannot dispute their title. If the defendant had received possession from them, he could not have disputed their title. In Rogers v. Pitcher (n), and Gravener v. Woodhouse (o), the distinction is pointed out between the case where a person has actually received

(h) Fenner v. Duplock, 2 Bing. R. 10; 9 Moor, 38, S. C.

(i) Rogers v. Pitcher, 1 Marsh. 541; 6 Taunt. 202, S. C.; Gregory v. Doidge, 3 Bing. 474; 11 Moore, 394, S. C.

(k) Fenner v. Duplock, 2 Bing. 10;

9 Moore, 38, S. C.

(1) Gravenor v. Woodhouse, 7 Moor,

289.

(m) 8 B. & C. 471.
(n) 6 Taunt. 202.
(0) 1 Bing. 38.