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Smith, 1 Drew. & Sm. 384. field, 2 Jur., N. S. 177 ; Brewer v.

(o) Dilkes v. Broadmead, 2 Giff. Pocock, 23 Beav. 310.
113 ; 29 L. J., Ch. 310 ; 30 Id. 268. (7) Chap. XIV.

471



*294 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 13.

for the jury whether the defendant occupied as assignee of
the lease or upon a fresh taking (r).

Wrongs to property committed by testator or intestate. —
Formerly an executor or administrator could not be charged
in any case for any personal wrong done by the deceased,
and therefore no action could be brought against him for
any such cause ; as for cutting down trees, or for suffering
his cattle to eat up the plaintiff's grass; but by 3 iSt 4 Will.
4, c. 4, s. 2, such actions may be brought against executors
within six months after administration commenced in respect
of wrongs committed by the deceased within six months
before his death.

(r) Drury Lane Theatre v. Chapman, 1 C. & K. 14.

472



♦CHAPTER VIII.

DETERMINATION OF TENANCY.



[*295]



SECT. PAQK

1. The Modes of Termination . 295

2. When the Term is limited

conditionally 290

3. Surrender 29G

(a) By express Terms when

deed necessary . . . 296

(b) By Operation of Law . 299

(c) Operation of 305

(d) By whom and to whom

made 307

4. Merger 308

5. Forfeiture 310

(a) How incurred generally 310

(b) Construction of Proviso

for Re-entry .... 312

(c) Who may avail them-

selves of a Forfeiture . 317

(d) Entry of Lessor ... 319

(e) Demand of Rent ... 319

(f ) Waiver of Forfeiture . . 322



SKCT. PAOB

6. Relief against Forfeiture . 320

(a) Before Conveyancing

Act 320

(b) Under Conveyancing

Act 328

(c) For Non-payment of

Rent 331

7. Notice to quit 332

(a) Nature and Operation of 332

(b) When necessary . . . 334

Under Agricultural

Holdings Act . . 335

(c) When unnecessary . . 338

(d) By whom and to whom

given 342

(e) Form and Service of . 345

(f) Waiver of Notice ... 355

8. Exercise of Option to deter-

mine Lease 357

9. Disclaimer 360

10. Death 363



Sect. 1. — The Modes of Termination.

Enumeration. — A lease for years may be determined in
various ways, viz.: — 1. By effluxion of time, on the expira-
tion of the term granted.^ 2. By the happening of some

1 Leases for terms certain expire •without notice. — Logan r.
Herron, 8 S. & R. (Pa.) 459; Clark v. Smith, 25 Pa. St. 137; McCarthy v.
Yale, 39 Cal. 586; Neumeister v. Palmer, 8 Mo. App. 491 ; Clapp v. Paine, 18
Me. 264; Stockwell v. Marks, 17 Id. 455; Lithgow v. Moody, 35 Id. 214;
Preble v. Hay, 32 Id. 450 ; Hauxhurst v. Soniers, 38 Cal. 563 ; Jackson v.
Parkhurst, 5 Johns. (N. Y.) 128 ; Jackson v. M'Leod, 12 Id. 182. They are
for life, for lives, for years, for months, for weeks, for days, &c. A lease may
provide for a tenancy at will after expiration of a term. Van Rensselaer's
Heirs r. I'enniman, 6 Wend. (N. Y.) 509.

From year to year ; limited. — A tenancy from year to j'car may be
limited to expire at a time certain. This will result if parol lease is made for
a term of years. Doe d. Parkinson v. Ilaubtman, Bert. (N. B.) 645.

473



*295 DETERMINATION OF TENANCY. [Ch. VIII. S. 1,

event upon which the term is limited conditionall3^ 3. By
a surrender. 4. By merger. 5. B3' forfeiture and re-entry
or ejectment pursuant to some proviso or condition in the
lease, for breach of covenant, &c. 6. By a notice to quit,
wJiere the tenancy is from y«ar to year, or for other like
period (greater or less) ^ determinable by notice.^ 7. By a



"Where a seal is required, a written lease (not under seal) will have the
same effect as oral lease, terminating without notice at end of period.
Caverliill v. Orvis, 12 C. P. (Ont.) 392.

^ Shorter periodical tenancies ; how terminated. — These are from
quarter to quarter, Witt v. Mayor of N. Y., Kuhertson (N. Y.) 4il ; from
month to month, Anderson r. Prindle, 19 ^yend. fN. Y.) 391 and 23 Id. 616;
Gruenewald v. Schaales, 17 Mo. App. 324 ; McDevitt v. Lambert, 80 Ala. 536 ;
Gunn V. Sinclair, 52 Mo. 327 ; Prickett v. Ritter, 16 111. 96 ; Huyser v. Chase,
13 Mich. 98; Woodrow v. Michael, Id. 190; from ireek to week {per Wal-
worth, Chan., in Anderson v. Prindle, 23 Wend. (N. Y.) 616, 619), &c.

Notice to terminate them is, at common law, usuall}' equal to the intervals.
Statutor}' notices are sometimes shorter, but it is usually held must terminate
with tlie periods.

2 Termination of tenancies at -will. — By the common law they are deter-
minable without notice, see post, sec. 7, note, "Tenancy at will; notice to
quit," &c., other than a reasonable informal one necessary to enable lessee to
comfortably remove his family and effects, and harvest his crops.

Statutory notices are, however, now generally required. See post, ch. 8,
sec. 7, (c), note, "The shorter tenancies."

In Maine these tenancies can only be determined by the statutory notice
or by mutual consent. Rev. Sts. Ch. 94, sec. 2; Cunningham c. Horton, 57
Me. 420 ; but see Sullivan v. C.arberry, 67 Id. 531. The statute is very sweep-
ing, and (if taken literally) would exclude termination by alienation, death,
eviction, &c., as well as prevent limiting such tenancies upon conditions.

In Massachusetts a statutorj' notice is provided, but it is held tiiat parties
may agree upon a different one. May v. Rice, 108 Mass. 150 ; Davis v. Murphy,
126 Id. 143; distinguishing Batclielder v. Batclielder, 2 Allen, 105; or may
limit the tenancy on conditions, Creech v. Crockett, 5 Cush. 133 (for special
purpose) ; Ashley v. Warner, 11 Gray, 4-3, 45 (so long as he kept a good
school) ; Hollis v. Pool, 3 Met. 350 (till sale) ; Lyon v. Cunningham, 136
Mass. 5.32, 541 {per Field, J.) ; Elliott v. Stone, 1 Gray, 571 (to pay rent in
advance or leave, held a limitation terminating without entry; but sec contra,
Elliott V. Stone, 12 Cush. 174, Sliaw, C. J., giving the opinion in both cases),
the happening of wliich will i])so facto determine the tenancy, or tiic tenancies
may be limited to e.xpire at a given time without notice, Morton, J., in Davis
V. Murpliy, 126 Mass. 143, 144 ; Sliaw, C. J., in Elliott v. Stone, 1 Gray, 671,
574. Such limitations on tiie tenancy do not make it any greater than a ten-
ancy at will.

See further as to comlitional limitations, post, sec. 2, note, and sec. 5, note,
" Forfeiture clauses."

Tenan(;ies at will arc terminated in following among other ways besides by
notice to (piit, to wit: by death of huMHord, .Toy v. McKay, 70 Cal. 445; Reed
V. Reed, 48 Me. 388; deatli of lessee, Keating v. Moises, 2 Manitol)a, 47;

474



Cn. VIII. S. 2.] TERM LIMITED CONDITIONALLY. *296

notice to determine the term at the end of the first seven or
fourteen years thereof, or at some other specified period,
l)ursuant to a power in the lease. 8. By a dischiimer of the
reversioner's title, where the tenancy is only from year to
year, or other less period, and not for a term of years. 9. By
death of the party on wliose life the lease depends, as in the
case of a lease for lives. ^

By effluxion of time. — When the term of years granted by
a lease expires by effluxion of time, the lessee or his assigns
ought thereupon to quit possession (a).



* Sect. 2. — When the Term is limited conditionally? [*296]

Conditional limitations and conditions. — Sometimes the
term itself is limited conditionally, ex. gr, for forty years if

(o) For the consequence of " Holding Over," see Chap. XIV., post.

Robie V. Smith, 21 Me. 114; alienation by landlord, Emmes v. Feelej', 132
Mass. 346 ; Curtis v. Calvin, 1 Allen (Mass.) 215 ; Howard v. Merriam, 5
Cush. (Mass.) 563, 574; McFarland v. Chase, 7 Gray (Mass.) 462; Esty v.
Baker, 50 Me. 325; Nelson v. Cook, 12 Q. B. U. C. 22; written lease for
term certain by landlord to third party, Groustra v. Bourges, 141 Mass. 7
(and it matters not what were lessor's motives) ; Merger Doe d. Cliff v. Conn-
away, Bert. (N. B.) 574, 578, 579 (as where lessee acquires the reversion) ;
lessee making a sub-lease (at option of lessor), Reckhow v. Schenck, 43 N. Y.
448; Cook v. Cook, 28 Ala. 660, 668 {per Walker, J.); alienation by lessee,
Little V. Palister, 4 Greenl. (Me.) 209; by disclaimer or inconsistent acts
directly or impliedly disaflSrming lessor's title, Campbell v. Procter, 6 Greenl.
(Me.) 12 (pointing out the property as his own to be levied upon) ; Bennock
V. Whipple, 12 Me. 346 (receiving a deed from a stranger) ; Ware v. Wad-
leigh, 7 Greenl. (Me.) 74; Currier v. Earl, 13 Me. 216; Bryant v. Tucker, 19
Id. 383 ; and (also at election of lessor) by voluntary waste, Daniels v. Fond,
21 Pick. (Mass.) 367.

1 Termination by total destruction. — It is, also, held in America that
tenancies may be terminated by total destruction of demised thing. Stockwell
V. Hunter, 11 Met. (Mass.) 448 (lease of basement, whole building burned) ;
Graves v. Berdan, 26 N. Y. 498 (lease of basement and chamber, whole
building burned) ; Kerr v. Merchants' E.x. Co., 3 Edw. Ch. (N. Y.) 315; and
Winton v. Cornish, 5 Ohio, 477 ; and Womack v. McQuarry, 28 Ind. 103; and
Alexander v. Dorsey, 12 Ga. 12 (all cases of leases of apartments in buildings
which were wholly destrojcd by fire).

If any part of the demised thing is not destroyed, as (in case of lease of
v/hole building) where land remains, the tenancy continues, and tenant
remains liable for rent. See post, ch. 10, sec. 7, note, " Destruction of demised
buildings by fire."

2 Terms limited conditionally expire w^ithout notice. — Examples :
So long as lessee remains postmaster, Easton v. Mitchell, 21 III. App. 189
(expired with expiration of commission) ; so long as lessee shall keep fur-

475



*296 DETERMINATION OF TENANCY. [Cu. VIII. S. 2.

the lessee, or some other person or persons therein named
shall so long live. In such case the term will determine at
the end of the forty years, or on the death of the person or
persons named, which shall fii'st happen (6). Where a cer-
tain term of years is granted provided the lessee shall so
long continue to occupy the premises personally, it will cease
whenever he parts with the possession, even by compulsion
of law, as by his becoming bankrupt (c). It was held in an
old case that a lease for twenty-one years, if the lessee con-
tinue so long in the service of the lessor, was not determined
by the death of the lessor (c?) ; and in another old case, that
if a lease of a house was made to a widow for forty years,
sub conditlone quod si tamdiu vixerit sola et inhabitaverit, the
term passed to her executor upon her death unmarried
within the term (e) : but these rulings seem hardly to be
correct, the first because the contract of service terminates
with the death of the master, and the second because the



(6) Cole Ejec. 402 ; Hughes and (d) Wrenford v. Gyles, Cro. Eliz.

Crowther's case, 13 Co. R. 66; Brud- 643; Nov, 70.
nell's case, 5 Co. R. 9. (e) Hardy v. Seyer, Cro. Eliz. 414.

(c) Doe d. Lockwood v. Clarke, 8
East, 185.

nace and buildings on premises, Cook v. Bisbee, 18 Pick. (Mass.) 527 (but if
buildings are burned, lessee has right to rebuild them) ; during the existence
of said clut), Alexander v. ToUeston Club, 110 111. 65 (continued notwith-
standing subsequent incorporation of the club) ; so long as he " kept a good
school," Ashley v. Warner, 11 Gray (Mass.) 43 ; lease of ferry for season of
1855, Eraser v. Drynan, 4 Allen (N. B.) 74 (terminates with tlie freezing of
the river (Miramiciii), or at least upon Dec. 31, 1855) ; during continuance
of partnersiiip, Russell v. McCartney, 21 Mo. App. 544 ; to firm for firm pur-
poses, Johnson v. Hartshorne, 52 N. Y. 173, 177 (terminated by dissolution of
firm tliough five years' lease) ; for specified business purposes, Horner v.
Leeds, 25 N. .7. L. 106; Hurd v. Gushing, 7 Pick. (Mass.) 169, 174; so long
as tlie land should be occupied and overflowed as a mill pond, Kerr v. Bearin-
ger, 29 Q. B. U. C. 340.

To tliese sliould be added leases with purchase options, Knerr v. Bradley,
105 Pa. St. 190; Forge v. Reynolds, 18 C. P. U. C. 110; Sutherland v.
Buchanan, 9 Chy. (Ont.) 135, purcliMse covenants, Stewart v. Long I. R. R.
Co., 102 N. Y. 601 ; Bostwick v. Frankfield, 74 N. Y. 207, and forfeiture
clauses. See post, sec. 5, notes.

Tenancies may be limited upon will of lessor, Folts v. Huntley, 7 Wend.
(N. Y.) 210, or upon will of lessee. Ffliiiger v. Lewis, 32 Pa. St. 307. See
ante, sec. 1, notes, for examples of limitations upon tenancies at will and from
year to year.

476



Ch. VIII. S. 3.] SURRENDER (liY EXPRESS TERMS). *297

meaning of the parties appears to have been that the lease
should be for the life of the widow.

Devise of house rent free, &c. — Where the testator ap-
pointed the defendant to be his agent, " to live rent free in
my house as long as he continued agent, that is, as long as
he does the business honestly and to the satisfaction of the
trustees," it was held that the direction of the testator was
only a recommendation to the trustees to continue the de-
fendant as agent, and that they might eject him from the
house, unless the defendant could prove the dismissal to be
malicious (/)•

Re-entry. — Upon the breach of any condition the lessor or
his assigns may re-enter or maintain an ejectment, without
any express proviso for re-entry (//). A proviso in a lease
with no penalty annexed is a condition ; but if a penalty is
annexed it is a covenant (1i).



Sect. 3. — Surrender.

■ (a) Surrender by express Terms.

What is a surrender. — A surrender is the yielding up
an estate for life or years to him who has the imme-
diate estate in reversion or remainder, wherein the
* estate for life or j-ears may merge, by mutual agree- [*297]
ment (i). The party making the surrender is called
the surrenderor, and the party to whom it is made the sur-
renderee. It differs from a release in this respect, that the
release operates by the greater estate descending upon the
less ; whereas a surrender is the falling of a less estate into
a greater (k). The proper operative words of a surrender
are "surrender and yield up"(^). If a lessee reserve to
himself any interest in or part of the estate, it is no sur-

(/) Belaney v. Kelly, 24 L. T. 738. (/) 1 In.st. 337 (b) ; Smith L. & T.

{g) Harrington v. Wise, Cro. Eliz. 303 (2nil ed.).

48(3, cited 8 B. & C. 316; Earl of {k) Smith v. Maplehack, 1 T. R.

I'embroke v. Sir H. Berkeley, Cro. 441 ; Williams r, Saw3'er, 3 B. & B. 70.

Eliz. 384, 560; Knight ;•. Mory, Id. (/) Smith L. & T. 304 (2nd ed.)'.

00 ; see post. Sect. 5, " Forfeiture." Sec Forms of Surrenders, post, Appeii-

(A) Simpson v. Titerell, Cro. Eliz. di.x B, Sects. 30, 31, 32, 33.
242.

477



*297 DETERMINATION OF TENANCY. [Cn. VIII. S. 8.

render (m) ; nor does a surrender, it seems, operate as such
unless accepted by the reversioner (n).

Surrenders must be in vrriting, and if for more than three
years by deed. — Every surrender, by the act of the parties,
must be in writing, and every surrender of a term of more
than three years must be by deed.^ This is the effect of the
thu-d section of the Statute of Frauds, and of the third sec-
tion of 8 & 9 Vict. c. 109, the hiter enactment providing that
if a deed be necessary for the creation of the term, a deed is
requisite to its surrender (o).

By the Statute of Frauds (29 Car. 2, C. 3), S. 3, " no IcaseS,
estates or interests, either of freehokl or of term of years, or
any uncertain interest not being copjdiokl or customary in-
terest, of, in, to or out of any messuages, manors, lands, ten-
ements or hereditaments, shall be assigned, granted or sur-
rendered, 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 of law."

By 8 & 9 Vict. c. 106, s. 3, "A surrender in writing of an
interest in any tenements or hereditaments, not being a copy-
hold interest, and not being an interest which might by law
have been created without writing (j**), made after the 1st
day of October, 1845, shall be void at law unless made hy
deecir

No surrender by mere cancellation. — It has been held that
a lease caniiot be surrendered b}' mere cancellation (</) ; and
it has been held also, where a lease appeared to have had the
names of the j)a]'ties torn off, that tliere was neither a sur-

(m) Com. Dip. tit. Surrender (H.) ; three years from the making thereof

Bac. Abr. tit. Leases (S. 8) ; Co. Lit. wiieroupoii tlic rent reserved unto tiie

337. hindlord sliail amount imto two-thirds

(n) Coles i\ Evanson, 19 C. B., N. S. parts at least of tiie full improved

382. value."

(o) iSeo McGartli v. Shannon, 17 Ir. (7) lioe v. Arehbishop of York, H

R., C. L. 128. East, 8(5; Ld. Ward v. Lumley, 5 H.

{p) I. e. by Sect. 1 of the Statute & N. 87, (550; 29 L. J., Ex. 322.
of Frauds, " a lease not exceeding

' III United States usually rex('ei)t wlicrc lease is under seal) neither assign-
ment nor .surrender need be. hi Canadian I'rovinees the rule is otherwise.

478



Cii. VIII. S. 3.] SURRENDER (l5Y EXPRESS TERMS), *298

render by operation of law, nor prima facie evidence of a
surrender by deed or note in writing (r).

Conditional surrender. — A lessee may surrender upon con-
dition, and if the condition be broken, the particular estate
is revested (s) ; therefore, if a lessee for years surrender his
whole term to the original lessor upon condition,
* he may, upon non-performance of the condition, [*298]
re-enter and revive the term (t}.

When may surrender be made. — The lessee cannot before
entry merge the term by a surrender, because till entry
there is no term and no reversion wherein the possession
may be merged ; but if the lessee enter and assign, the as-
signee may before entry surrender his term to the lessor (m).
But it is not necessary that the surrenderor of a lease, to
begin at a future day, should be in possession in order to
make a surrender before the period of commencement : thus,
if a lease be to commence at ?iliehaelmas next, and the lessee
take a new lease uncler seal before Michaelmas, it is a sur-
render in law of the first lease (a;). As to surrender of
leases in futuro or future interests, there is this distinction
to be observed, that a lessee for years of a term to begin
at a day to come cannot surrender it by an actual surren-
der before the day of the term begin, but he may by a sur-
render in law (?y). Whenever a deed purporting to be a
surrender cannot operate as such, it will probably take effect
as an assignment or as a release of the right to the term, uf
res magis valcat quam pereat.

Requisites of good surrender. — In order to make a good
surrender of lands by deed, and to make them pass by
such a surrender, these things are requisite: — 1. That tlie
surrenderor be a person able to surrender, and that he
have an estate in possession of the thing surrendered at the
time of the surrender made. 2. That the surrender be tf>
him who has the next immediate estate in remainder or



(r) Doe d. Courtail v. Thomas, 9 (m) Bac. Abr. tit. Leases (S. 2).

B. & C. 288. (x) Shep. Touch. 302.

(.s) Co. Lit. 218 b. (//) Id. 304 ; Ive v. Sims, Cro. Eliz.

(/) Lh)y(i y. Lanj^fonl, 2 Mod. 17G; 521 ; Hutchins v. Martin, Cro. Eliz.

Uao. Abr.' tit. Leases (S. 3). 605.

479



*299 DETERMINATION OF TENANCY. [Ch. VIII. S. 3.

reversion, and that there be no intervening estate coming
between. 3. That there be a privity of estate between
the surrenderor and the surrenderee. 4. That the surren-
deree have a higher and greater estate in the thing surren-
dered than the surrenderor hath, so that the estate of the
surrenderor ma}^ be drowned therein. 5. That he have the
estate in his own right, and not in the right of another.
6. That he be sole seised of this estate in remainder or re-
version, and not in joint-tenancy (2). 7. That apt, or at all
events sufficient, operative words be used (a). Those com-
monly employed are "surrender, grant, and yield up," or
" assign and surrender." But no particular words are essen-
tial (6). Where a deed is not required by 8 «fe 9 Vict. c.
106, s. 3 (f), any instrument in writing duly signed, and
expressing an immediate purpose of giving up the estate
on the part of the tenant, if accepted by the landlord, will
be sufficient (<i). But such acceptance would seem to be

necessary (e).
[*299] * Instances of surrenders. — A written instrument in

this form : — " We do hereby renounce and disclaim,
and also surrender and yield up all right, &c.," a tenancy
from year to year being in existence, has been held a surren-
der and not a disclaimer (/). A written request by the
tenant to his landlord to re-let the premises to some other
person may, when acted on, amount to a surrender by act
and operation of law (^). A written notice given b}'- the
tenant of his intention to quit at a time when he believed
his tenancy to expire, but which is afterwards discovered
not to be the time, does not operate as a surrender (A).

(s) Shep. Touch. 303 ; 2 Blac. Com. (^ Per Bylcs, J., in Colics i-. Evan-

.33G ; but sec contra, Shcp. Touch. 308. son, 19 C. B., N. S. 382.

(a) Post, note {(I). (/) Doe d. Wyatt v. Stagg,5 Bing.

(J>) See usual Forms of Surrenders, N. C. 504.

post, Ai)pin(li.\ B., Sects. 30-33. (7) Nickclls i'. Atherstone, 10 Q.

(c) Ante, 274. B. 044.

Id) Farmer v. Bogers, 2 Wils. 2C>; (h) Lypn i-. Reed, 13 M. & W. 285;

Smith V. Maplehaek, 1 T. K. 441; Doe d. Miirrell v. Milwanl, 3 M. &

Wedflall V. Capes, 1 M. & W. 50; \V. 328; Bessell v. Landsberg, 7 Q.

Harrison v. Blackburn, 17 C. B., N. S. B. G38.
079, G80.

480



Ch. Vm. S. 3.] SUIIUENDER (bY OPERATION OF LAW). *299



(b) Surrender hy Act and Operation of La^v.

Surrender by acceptance of a new lease. — Surrenders by
" act and operation of law,'' ^ or implied surrenders, are ex-
cepted in the Statute of Frauds (i), and are not affected by

(«■) Ante, 274; Sliep. Touch. iJOO; Com. Dig. tit. Surrender (L. 1) ;
Perk. c. 9.

^ Surrender (by operation of la^v) results from abandonment with con-
sent. Aniory r. Kannoffsky, 117 Mass. 351 (new tenant taken) ; 'J'albot v.
Wliipple, 14 Allen (Mass.) 177 (lessor resumed possession) ; Kandall v. Rich,
11 Mass. 494 ; and Matthias v. Pace, 3 Russ. & Geld. (N. S.) 360 (keys given
up, premises relet) ; Philip v. McLaughlin, 24 N. B. 532 (delivery to third
party at request) ; Elliott r. Aiken, 45 N. H. 30 (delivery and acceptance of
key) ; Boehm v. Rich, 13 Daly (N. Y.) 62 ; Vandekar v. Reeves, 40 Hun (N.
Y.) 430; and Schieffelin v. Carpenter, 15 Wend. (N. Y.) 400, 407 {per Nelson,
Ch. J.) ; Hesseltine v. Seavey, 16 Me. 212, 214 {per Shepley, J.) ; Vegely v.
Robinson, 20 Mo. App. 19!); Forbes v. Smiley, 56 Me. 174; Wallace v. Ken-
nelley, 47 N. J. L. 242; Smith v. Niver, 2 Barb. (N. Y.) 180; Randall v. Rich,

11 Mass. 494. In several of above cases leases were under seal.

An unaccepted abandonment is not a surrender. Auer v. Penn, 99 Pa.
St. 370; Gillis v. Morrison, 22 N. B. 207; Withers ;.•. Larrabee, 48 Me. 570;
Lucy V. Wilkins, 33 Minn. 441 (cases of delivery up of key without accept-
ance of possession) ; Williams v. Ackerman, 8 Or. 405 ; Doty v. Gillett, 43
Mich. 203; Conn. Mut. Life Ins. Co. v. U. S., 21 Ct. of Claims, 195; Rollins
V. Moody, 72 Me. 135; Thomas v. Sanford Steamship Co., 71 Id. 548.

Authorized by statute. — In New York the statutes give right to sur-
render if premises become imtenantable without fault of lessee. Laws of
1860, chap. 345. Tliis right may be waived in lease. Butler v. Kidder, 8?
N. Y. 98. Fears that premises innij become untenantable are not sufficient.
Tallman v. Gashweiler, 13 Daly (N. Y.) 555. Defects in plumbing, causing
overflow, odors, St. Michael's P. E. Church v. Behrens, 13 Id. 548, damages,
Vann v. Rouse, 94 N. Y. 401, or escape of sewer gas, Bradley v. De Goicouria,

12 Daly (N. Y.) 392, have been held sufficient.

Justifiable abandonment -without consent. — Lessee may abandon if
lease was taken tln-cnigh material, false, fraudulent representations if he exer-
cise the right seasonably. Conklin v. White, 17 Abbott's N. C. (N. Y.) 315,
317 {per Hyatt, J.) (house not as represented) , Lawrence v. Burrell, 17 Id.
312 (defect in flues, chimneys, &c.) ; Jackson v. Odell, 12 Daly (N. Y.) 345,
354 (abandonment after several months' occupancy) ; Wallace r. Lent, 1
Daly, 481 (failure to disclose existence of deleterious smells).

A tenant cannot abandon premises, on account of gases and odors from



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