upon the conditions and agreements contained in the same lease, and by which A. and B. bind themselves to execute a lease similar to such abandoned lease, is itself a valid lease (n).

If the most proper and authentic form of words, whereby to describe and pass a present lease for years, be made use of, yet if upon the whole deed or instrument there appear no such intent, but that they are only preparatory and relative to a future lease to be made, the law will rather do violence to the words than break through the intent of the parties (o).

A. agreed that "B. the mills, &c. should enjoy, and engaged to give him a lease for the term, &c., and at the rent, &c." By another part of the agreement "an additional piece of land was to be purchased by A., to be added to the land demised." It was held that this amounted only to an agreement for a lease (p). And where it appears that there is no present power to lease, and the instrument contemplates a future state of things, it will be considered a mere agreement for a future lease, and not an actual demise; as where it was agreed that a lease should be granted when the intended lessor should have obtained a lease to himself under a then subsisting agreement between himself and the owner of the premises (q); and an express proviso that the instrument shall not be construed or taken to operate as a lease or actual demise will restrain its operation as such, though it might otherwise amount to a present demise (r).

It is reported to have been decided that an agreement by A. to grant, and B. to take, a lease, for a certain term, at a fixed rent, is per se only a contract for a future demise (s).

If strong circumstances of inconvenience would arise from an instrument being construed as a present demise, that fact may indicate that the intention of the parties was that it should be an agreement only; such as a stipulation that out of the rent mentioned, a proportionate abatement should be made in respect of

certain excepted premises; and a stipulation that the tenant "should hold, under all usual covenants, &c." for it may be disputed what are usual covenants (t).

So where a landlord and tenant, between whom there was a subsisting tenancy, agreed in writing for a letting of the farm upon different terms, the amount of the rent to be settled by valuation, and the tenant to find sureties for his paying the rent; but the amount was not settled and the sureties were not given; it was held that the instrument, although it contained words of present demise, did not operate as a lease, or alter the terms of the existing tenancy (u).

A. agreed "to let premises to B. on lease, with a purchasing clause, for twenty-one years at 631. per year;" B. to enter any time on or before a particular day, &c. It was held that this was only an agreement for a lease, the court saying there were no words of demise, that the commencement of the tenancy was left uncertain, and that the words as to purchasing showed that the letting was to be by a particular instrument containing such a clause (x).

Where there is a sufficient demise of premises, the law implies a promise by the party demising to give possession to his tenant'; and assumpsit lies against the party letting for the breach of such promise (y). And on a demise of apartments on the second and third floors of a house, the tenant has impliedly a right to the use of the door bell, the knocker, the skylight on the staircase, and the water-closet, unless it be otherwise stipulated at the time of the demise (z).

2. When the Demise must be in Writing under the Statute of Frauds. We may here notice the first and second sections of the statute of frauds, 29 Car. 2, c. 3, which was passed to prevent

(t) Morgan d. Dowding v. Bissell, 3 Taunt. 65; Colley v. Streeton, 3 D. & R. 522; sed vide ante, 315, note (c). It is observable that in these cases, the terms of the future lease were not ascertained at the time; where the terms, though not stated, can be collected at once from an instrument referred to by the agreement, as a former lease, &c., the above objection does not apply; see Doe d. Pearson v. Ries, 8 Bing. 178; 1 Moo. & S. 264, S. C.

(u) John v. Jenkins, 1 C. & M. 227. Though it might have been otherwise had the valuation taken place, and the sureties been found; Chapman v. Bluck, ante, 316, note (7).

(x) Dunk v. Hunter, 5 B. & Ald. 322; Clayton v. Burthenshaw, ubi supra. See Brown v. Warner, 14 Ves.

156.

(y) Coe v. Clay, 3 M. & P. 57; 7 Bing. 440, S. C.

(2) Underwood v. Burrows, 7 Car. & P. 26.

the perjury and uncertainty occasioned by allowing leases to be granted by parol, except in certain subordinate instances (a).

The first section provides that all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of, any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised by writing (b), shall have the force and effect of leases or estates at will only; and shall not at law or in equity have any greater effect, notwithstanding any consideration for making such parol leases or estates.

The second section excepts all leases (i. e. demises) not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount unto two third parts, at the least, of the full improved value of the thing demised.

The effect of these sections is, that a tenancy, which is to endure beyond three years from the agreement, cannot be created by a parol contract, and therefore a parol lease for three years, to commence in futuro, is inoperative (c); but a lease by parol for a year and a half, to commence after the expiration of a lease which wants a year of expiring is good, for it does not exceed three years from the making (d).

And although the statute enacts that all leases by parol for more than three years shall have the effect of estates at will only, and they cannot create a term; yet such a lease enures as a tenancy from year to year (e). So a parol lease for seven years may be void as to the duration of the term, yet the contract may regulate the terms of the holding from year to year in other respects; and therefore, if the tenant under such a lease entered at Candlemas, the landlord can only eject him at that period of the year (f). And the tenant would be bound by an undertaking

(a) Ante, 66, and note (i).

(b) But a demise may be made by letters from which the intent of the parties can be collected, and need not necessarily consist of one instrument; Chapman v. Bluck, ante, 316.

(c) Rawlin v. Turner, 2 Lord Raymond, 736; 12 Mod. 610, S. C.

(d) Bul. N. P. 177; Ryley v. Hicks,

1 Stra. 651; observed upon in Edge v. Strafford, 1 C. & J. 396.

(e) Clayton v. Blakey, 8 T. R. 3. Estates at will, though they may be created at the present day, are almost unknown in practice. A general letting or holding is impliedly a tenancy from year to year, post, 321.

(f) Doe d. Rigg v. Bell, 5 T. R.

to repair contained in such void demise (g). In Lord Bolton v. Tomlin it appeared that at a letting of lands, the terms of letting were read from a printed paper, and a party present agreed to take certain premises from Lady-day then next, when the lease of the then tenants would expire. No writing was signed by the parties or their agents, but there was at the foot of the printed. paper a memorandum, also read over to the future tenants, stating that the parties had agreed to let and to take, subject to the printed terms, the name of the farm, and the rent, and that the letting was for one year certain from Lady-day, and so from year to year till notice to quit; some of the terms were special, having relation to husbandry. The new tenants entered at Lady-day, and paid rent: it was held (assuming the first transaction not to have been a demise), that there was a valid demise by parol, under stat. 29 Car. 2, c. 3, s. 2, when the tenant entered, and that a demise rendered valid by that section might contain the same special stipulations as a regular lease, and that on the trial of an action by the landlord against the tenant for breach of them, the paper above-mentioned might be referred to, to refresh the memory of a witness as to such stipulations (h).

Although the second section of the act renders valid a parol lease for less than three years from the making, yet until entry by the lessee there is a mere interesse termini, and if he refuse to take possession upon such verbal letting, no action lies to recover damages for not occupying or becoming tenant; nor can an action for use and occupation be maintained. For the fourth section applies to such a parol lease not rendered effectual by entry, it providing that no action shall be brought whereby to charge the defendant upon any contract or sale of lands, or any interest in or concerning them, unless the agreement be in writing (i). "It may be said, that the second section of the statute

471. It may regulate the amount of rent, &c.; De Medina v. Polson, 1 Holt, N. P. R. 47.

(g) Richardson v. Gifford, 3 Nev. & M. 325; 1 Ad. & E. 52, S. C.; Beale v. Sanders, 3 Bing. N. C. 850; 5 Scott, 58, S. C.; there the defendants held as assignees under a void lease, and paid rent, and not having re-assigned, were held liable to repair until the end of the term, according to the covenants of the lease. And where there is an agreement in writing, the

tenant must take possession before he can be sued for use and occupation; Jones v. Reynolds, 7 Car. & P. 335; Woolley v. Watling, 7 Car. & P. 610. (h) Lord Bolton v. Tomlin, 5 Ad. & E. 856.

(i) Inman v. Stamp, 1 Stark. R. 12; Edge v. Strafford, 1 C. & J. 391. These were special actions on parol agreements to take lodgings for less than three years, with counts for use and occupation.

has made a lease for less than three years from the making valid, and yet that no action shall be maintainable upon it until it is made effectual as a lease by the entry of the lessee; but first, the legislature might intend to make a distinction between those cases in which the complaining party was contented to confine himself to its operation as a lease, and sought nothing more than as a lease it would give him, and those in which he went further, and founded upon it a claim for damages, which might far exceed what he could claim under it in the character of a lease; or secondly, this distinction might not have been contemplated, but may be the result of the true construction of the statute of frauds." "The effect then of the statute of frauds, so far as it applies to parol leases not exceeding three years from the making, is this, that the leases are valid, and that whatever remedy can be had upon them, in their character of leases, may be resorted to, but they do not confer the right to sue the lessee for damages for not taking possession (k)."

3. Of a Tenancy from Year to Year.-Until the reign of Henry the 8th a general letting of land, that is a demise without limit as to the period of holding, was held to create a tenancy strictly at the will of the parties, and determinable at the pleasure of either. The injustice of this doctrine, and the injury it was calculated to occasion to agriculture, were in that reign perceived; and it was decided that such a general letting or occupation should be considered a letting or holding from year to year, determinable by either party only by a half-year's notice to quit. This doctrine obtains at the present day in the case of a house as well as land, although it is still competent to the parties to create by express agreement a tenancy strictly at will (1).

(k) Per Bayley, J. in delivering the judgment of the court in Edge v. Sirafford, 1 C. & J. 391.

() 13 H. 8, 15 b; Parker v. Constable, 3 Wils. 25; Doe d. Warner v. Brown, 8 East, 165; Timmins v. Rawlinson, 3 Burr. 1603; Richardson v. Langridge, 4 Taunt. 128; Cunlip v. Rundle, 4 Mod. 9; R. v. Follingley, Cald. 569. A person who holds rent free by the permission of the owner is a tenant at will, R. v. Collett, Russ. & Ry. C. C. 498; as a minister placed in possession by trustees for the congregation, Doe v.

Y

Jones, 10 B. & C. 718; Wilkinson v. Malin, 2 Tyr. 544; post, 342. Rent is payable yearly, unless otherwise reserved; Com. Dig. Rent, (B) 8; Gray v. Chamberlain, 4 C. & P. 260. Under an agreement for the quarterly payment of rent, the first payment becomes due at the end of the first quarter, and a custom to pay rent in advance cannot be imported into it; Doe d. Mitchell v. Weller, 1 Jurist, 622. Where a lessor on the 8th Sep. agreed to let a house to lessee for seven years, at an annual rent payable quarterly, the first payment to be made