Lammott v. Gist , 2 H. & G. 433 ( 1828 )

Martin, J.

delivered the opinion of the Court. We think Baltimore county court erred in receiving parol evidence for the purpose it was offered, as stated in the first bill of exceptions. Gist held the property .leased, under Shade, and that tenancy could not be determined by a parol license to quit the premises. The agreement was, that the lease should be surrendered, and the rent discharged, and is embraced within the statute of frauds, which provides, that no lease or term of years, or any uncertain interest, of or in any messuages, lands, tenements or hereditaments, shall be surrendered, unless by deed, or note in writing, or by act or operation of law. The release of the rent, and the surrender of the property, form one agreement — they cannot be separated; and to make the agreement available, it ought to have been in writing. Botting v Martin, 1 Campb. 317. Mollet v Brayne, 2 Campb. 103. Thomson v Wilson, 3 Serg. & Lowb. 391.

In the second bill of exceptions, there was a prayer by the avowant, that the court would instruct the jury, he was entitled to recover. If the parol evidence received by the court, assisted in the first bill of exceptions, had been legal, this prayer might have been important, and then it would have been proper to consider the objections relied on in the argument, one of which was, a variance between the agreement offered in evidence, and that set out in the pleadings. But as this court has decided, the parol evidence of the agreement, stated in the first bill of exceptions, ought not to have been received by the court, that evidence must be rejected; and being rejected, the cause stood only on the pleadings and the evidence offered by the avowant. The pleadings do not controvert that Lammott was the bailiff of Shade, and it was proved by testimony the rent was due.

We dissent from the opinions expressed by Baltimore county court, as stated in both bills of exceptions.

JUDGMENT REVERSED, AND TROCEDENDO AWARDED: