The opinion of the Court was by
Whitman C. J.— This is an action of assumpsit, in which the plaintiff counts upon a special agreement, on the part of the defendant, to pay rent for a certain dwelling-house, owned by the plaintiff; and also upon a general indebtedness for the rent of the same tenement. The cause comes before us upon exceptions taken to the instructions to the jury, upon the trial in the District Court. The evidence detailed in the exceptions tended to show, that the son of the defendant had hired the house, and that she lived in the family with him ; that, while he was moving his furniture into the house, the plaintiff called upon the defendant, and told her they should not go in, unless she would be accountable for the rent; that she, after some hesitation, finally promised, verbally, to see the rent paid. From the manner in which the cause was put to the jury it is manifest, that they must have found, that the son was the lessee, and that the defendant’s promise was but collateral to his undertaking to pay rent. This being but a parol promise to pay the debt of another, and not in writing, was void under the statute of frauds. Cahill v, Bigelow, 18 Pick. 369.
And if the evidence had tended to show, that the defendant was the lessee of the plaintiff, no recovery against her could be had upon any special verbal agreement to pay rent. The statute in force at the time of the alleged agreement, provided, that no action should be maintained “ upon any contract for the sale of lands, tenements or hereditaments, or any interest *398in, or concerning the same, unless the agreement, upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith.” All verbal demises, therefore, create but tenancies at will. Ellis v. Paige & al. 1 Pick. 43.
If the defendant could have been proved to have been the lessee and tenant at will, and had actually enjoyed the use of the tenement for a length of time, an action for use and occupation might have been sustained against her to recover a reasonable amount of rent therefor. But the evidence fell, evidently, very far short of proving any such tenancy. It may be that the Judge erred, and probably he did, in saying, that the son, at the time of the demise, was entitled to three months notice to quit. As the law then stood, no such notice was necessary to give the lessor a right to resume possession. Davis & al. v. Thomson, 1 Shepl. 209. But the remark was immaterial. The cause having been decided as it evidently must be, if a new trial were granted, the exceptions are overruled, and judg'ment on the verdict is affirmed.