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(5) An express surrender effectuates the clear and unambiguous intention of the lessee to "surrender and yield up" his lease-hold to the lessor. It is therefore a matter of intention of the parties and not a matter of implication of the law. But in an implied surrender, an intention to surrender is not expressed. It is inferred by the law. An implied surrender is an act of the law and takes place independently of, and in some cases even in spite of, the intention of the parties. The law infers such surrender from the act and conduct of the parties. "Thus it is properly applied to cases where the owner of a particular estate has been party to some act having some other object than that of a surrender, but which object cannot be effected whilst the particular estate continues, and the validity of which act he is by law estopped from disputing." (See Lyon v. Reed, (1844) 13 M and W 285 and Bessell v. Landsberg, (1845) 7 QB 638.

(6) A familiar instance of a surrender by operation of law is when the tenant takes a new lease from the landlord to commence during the term of the old lease. Here the tenant does not express his intention to surrender and determine the old lease. But by his taking a new lease, the law infers a termination of the existing lease. The reason that the landlord has no power to grant the new lease except upon the footing that the old lease is surrendered; and the tenant, being a party to the grant of the new lease, is estopped from denying the surrender. This is how surrender by operation of the law comes about. It is essential to such surrender that the new lease should be valid and take effect at once as a lease. No implied surrender can therefore arise on the acceptance by the tenant of a new lease which is void. The implied surrender will be taken to be subject to an implied condition that the surrender is to be void, if the new lease happens to be void. The law is laid down by Coleridge, J. in Doe d. Earl of Egremont v. Courtenay , (1948) 11 QB 702.

"that where the new lease does nor pass an interest according to the contract, the acceptance of it will not operate a surrender of the former lease; that, in the case of a surrender implied by law from the acceptance of new lease, a condition ought also to be understood as implied by law, making void the surrender in case the new lease should be made void, and that, in case of an express surrender, so expressed as to shew the mention of the parties to make the surrender only in consideration of the grant, the sound construction of such instrument, in order to effectuate the intention of the parties, would make that surrender also conditional to be void in case the grant should be made void."