Clemens v. Broomfield

delivered the opinion of the court.

1. The instrument produced by the plaintiff as a lease to the defendant, Broomfield, appears to be signed and sealed only by the defendant, and on its face, it has no language'or expression purporting to be the language of Clemens. It contains no grant from him of any interest in the premises demised ; and although Broomfield recites that he had leased the premises from Clemens, this may as well mean that the demise was by parol as by written lease. -The instrument produced is not itself a lease. Marlow v. Wiggins, 3 Gale & Dav. 504. Richardson v. Gifford, 1 A. & E. 55. Although a lease may be made in a very informal manner, and by almost any words that show the intention of the parties, yet the lessor makes no written lease until he has signed the paper.

2. The present case stands as a parol lease by Clemens, and if it is contended that it was a demise for five years, it can, at most, only operate as a lease from year.to year, under our statute of frauds. The instrument produced contains no express covenant on the part of Broomfield to pay the rent during the term. The case, therefore, is to be regarded, in a suit brought as this is, to recover part of the rent of the third year, as a tenancy, from year to year, with the tenant bound to pay the rent for the current year, as the result of his occupying the premises. In such tenancy, a surrender by operation of law takes place when, by the consent of both parties, another person becomes tenant of the premises, and the landlord collects rent from him. Bees v. Williams, 2 Crompt. Mees. & Ros. 581. Hall v. Burgess, 5 Barn. & Cress. 333. Thomas v. Cook, 2 Barn. & Ald. 119. Hamerton v. Stead, 3 Barn. & Cress. 478. Matthews v. Sawell, 8 Taunt. 270.

3. The present case came to the Circuit Court by appeal *122from a justice of the peace, and the trial was before the court. The court did not make a decision in writing, as is required by the code, in 'cases of trial by the court without a jury, but determined the question of law in the form of instructions given and refused. We have already, in at least two cases at this term, expressed the opinion that the cases which come by appeal from justices of the peace, are not regulated by the code, in respect to finding facts by the court, when the trial is without a jury; and that the old practice of hypothetical instructions, or declarations of the law by the court, is the practice still to be pursued in such cases.

In the present case, the views of the law taken by the Circuit Court, in giving instructions and refusing those asked by defendant, do not correspond with those expressed in this opinion in relation to a surrender. The declaration or instruction asked by the defendant, marked B, ought to have been made by the court, as a declaration of the law applicable to the case. So the instructions given by the Circuit Court give a different effect to the written instrument which was in evidence, from that which this Court thinks it entitled to.

The judgment is, with the concurrence of the other judges, reversed, and the cause remanded.