delivered the opinion of the Court as follows. It is not necessary to inquire whether the defendant Chase is estopped to deny that he was a lessee jointly with Turner, during the term of three months for which the written lease was given, and to prove that he was merely a surety for Turner during that time; because he claims no exemption from liability to pay the rent mentioned in the lease; and the amount of it has been brought into Court on the common rule for the plaintiffs’ use. — Is he then estopped by the lease to shew the facts on which he relies for his defence after the expiration of ñ? We know of no principle by which he can be thus estopped. Manifest injustice would be the consequence, if he were. If a man take a lease of his own land under seal for one year, he shall not be estopped to claim the land and assert his tjtle to it after the termination of the lease. Co. Lit. 47. h. We are, then; in forming our opinion, to consider the facts which the defendant offered to prove; as proved: and if Chase be not liable, the present action against the defendants jointly, cannot be maintained. — Now it appears that Chase has never for a moment occupied the premises jointly or severally; not even during the term of the written lease. On what principle, then, should he be holden as the surety of Turner, when he never consented to be such, except for the above named three months ? — It is not necessary to consider the authorities particularly, which have been cited by the plaintiffs’ counsel; because they are deemed by us not to apply to the present case. The principle relied on, to charge Chase with the rent after the expiration of the three months, may be effectual to charge Turner; because he actually held over the original term and continued his possession for the term mentioned in the writ; but it cannot charge Chase. It is applicable only to a lessee or lessees having a beneficial interest in the premises leased, continuing to hold over after the end of the term. The proof of assent arising from a continued possession and claim of interest, does not exist in the present case in respect to Chase; and therefore the action cannot on this principle be supported. It is true there is an agreement on the part of Chase and Turner in the written lease, that the premises shall be delivered up to the lessors at the end of the term, — and it appears that instead of being so delivered *46up they were continued in possession of Turner. Still in this action of debt, no damages could be recovered for this breach of the contract, if any have been sustained, even if there were any count in the writ for this purpose. In every view of the subject we are satisfied the action cannot be maintained, except for nominal damages and costs as the parties have agreed.

Defendants defaulted.

Judgment for one cent damage.