[releases to one of them, he shall be sole seised, and shall keep out his former companion; which is the same in effect as if the disseisee had entered, and thereby put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee (p).] And here we may observe, with respect to the four last species of release, that the fee may be conveyed by them all, without the use of words of inheritance (q): in which respect they differ from releases to enlarge the estate; and indeed from feoffments also, and from grants; for as to all these, it is a general rule (though subject to exception in particular cases) that an estate of inheritance cannot be created without the word heirs (r).

VII. [A Confirmation is of a nature nearly allied to a release (s). Sir Edward Coke (t) defines it to be a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased; and the words of making it are these, "have given, granted, ratified, approved, and confirmed" (u). An instance of the first branch of the definition is, if tenant for life leaseth for forty years, and dieth during that term; here the lease for years is voidable by him in reversion: yet if he hath confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable but sure (x). The latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of release which operates by way of enlargement.] It is to be observed that a confirmation (like a release, and for the same. reason,) has always been effectual without livery of seisin, even though a freehold estate be the subject (y). Moreover

(p) Co. Litt. 278 a. (q) Ibid. 9 b.

(r) Litt. s. 1; Co. Litt. 8 b; vide sup. p. 242.

(s) As to confirmations, see Co. Litt. 295 b, 308 b.

(t) Co. Litt. 295 b.

(u) Litt. ss. 515, 531. As to confirmations, see also Reeves's Hist. Eng. Law, vol. iii. pp. 354, 355. (x) Litt. s. 516. (y) 2 Bl. Com. 326.

a deed is essential to the validity of a conveyance of this kind (2); though there may be a confirmation implied by law from circumstances, as well as a confirmation by deed (a).

VIII. [A Surrender, (sursum redditio, or rendering up) is of a nature directly opposite to a release; for as that operates by the greater estate's descending upon the less, a surrender is the falling of a less estate into a greater (b). It is defined as a yielding up of an estate for life or years to him that hath an immediate reversion or remainder; wherein the particular estate may merge or drown, by mutual agreement between them (c).] And accordingly it is held, that the surrenderee must have such an estate, that the estate surrendered may be capable of merging in it; [so that tenant for life cannot surrender to him in remainder for years (d).] A surrender [is done by these words, "hath surrendered, "granted, and yielded up,"] or the like (e). And though the estate surrendered be for life there was not, at common law, any occasion for livery of seisin (f); [for there is a privity of estate between the surrenderor and the surrenderee; the one's particular estate and the other's remainder are one and the same estate; and livery having been once made at the creation of it, there is no necessity for having it afterwards.] Nor was either deed or other writing required to effect the surrender of land (g). But by the Statute of Frauds, (29 Car. II. c. 3,) s. 3, no lease (except of copyhold) shall be surrendered unless by operation of

ii.

(z) Shep. Touch. by Preston, vol. p. 312.

(a) See Co. Litt. 295 b; Doe v. Jenkins, Bing. 469; Jenkins v. Church, Cowp. 482; Ludford v. Barber, 1 T. R. 86; Doe v. Archer, 1 Bos. & Pul. 531.

(b) As to surrender, see Co. Litt. 373 b.

(c) Ibid. 337 b; Burton v. Barday,

7 Bing. 757.

(d) Perk. s. 589.

(e) 2 Roll. Ab. 497.

(f) See Farmer v. Rogers, Wils. 26; Co. Litt. 338 a; Shep. Touch. 307; Sleigh v. Bateman, Cro. Eliz. 487.

(g) Co. Litt. 338 a; Shep. Touch. 307.

law-for a surrender, like a confirmation, may be implied by law from circumstances (h),—or unless by deed or note in writing, signed by the party or his agent lawfully authorized by writing (i). And now by the statute 8 & 9 Vict. c. 106, (s. 3,) a surrender in writing of an interest in any tenement or hereditament,-not being a copyhold interest, and not being an interest which might by law have been created without writing,-made after the 1st October, 1845, shall be void at law unless made by deed. It is laid down that, upon a surrender, no entry is required to complete the title of the surrenderee, except for the purpose of bringing an action for any trespass committed; so that if a tenant for life or years surrender at a place off the land, to him in reversion, and the latter agree to it, he has the land in him without further ceremony (k).

As to the effect of this conveyance, we may also remark that if a lessee for life or years make a lease for years, reserving rent, and then surrender his estate to him in reversion, the estate for years made out of the estate so surrendered will continue notwithstanding the surrender; but the under-tenant, at common law, was held discharged (in general) from the rent and other covenants of such under lease for the reversionary estate to which they were annexed has ceased to exist (1). And hence in the case of renewable leases, it was in the power of such under lessees (by refusing to surrender notwithstanding they had cove

(h) Shep. Touch. 301; Bac. Ab. Leases (S.) 3. See also as to surrenders in law, Davison v. Stanley, 4 Burr. 2210; Phipps v. Sculthorpe, 1 Barn. & Ald. 50; Dodd v. Acklom, 6 Man. & G. 672. And the cases cited in the judgment in Nickells v. Atherstone, 10 Q. B. 944.

(i) See Roe v. Archbishop of York, 6 East, 86; Gore v. Wright, 8 Ad. & El. 118. A mere cancellation of the lease is, of itself, no

surrender; (Doe v. Thomas, 9 Barn. & Cress. 288;) but may, under particular circumstances, be evidence of one. (Walker v. Richardson, 2 Mee. & W.882.) As to the effect of such cancellation, see also Lord Ward v. Lumley, 5 H. & N. 87, 656.

(k) Shep. Touchstone, 307, 308; Thompson v. Leach, 2 Vent. 198. (1) Lord Treasurer v. Barton, Moore, 94; Webb v. Russell, 3 T. R. 402.

nanted to do so), greatly to prejudice their immediate landlords, the first lessees. But now by the statute 4 Geo. II. c. 28, it is provided in the particular case of a lease surrendered for the purpose of renewal, that the new lessee shall (without a surrender of the under-lease) have the like remedy as to the rent and covenants, and the under-lessee shall hold, as if the original lease had been kept on foot; and the chief landlord shall have the like remedy, by distress or entry on the lands and hereditaments comprised in such under-lease, for the rents and duties reserved by the new lease, (so far as they exceed not those reserved by the original lease,) as he would have had if such original lease had been kept on foot (n). And by 8 & 9 Vict. c. 106, (s. 9,) it is provided more generally, that when the reversion expectant on a lease (made either before or after the passing of that Act of any tenements or hereditaments of any tenure) shall, after the 1st October, 1845, be surrendered or merge, the estate which shall, for the time being, confer as against the tenant under the same lease, the next vested right to the same tenements or hereditaments, shall, (to the extent and for the purpose of preserving such incidents to, and obligations on, the same reversion, as but for the surrender or merger thereof, would have subsisted,) be deemed the reversion expectant on the same lease.

IX. An Assignment of land or real estate is properly a transfer, or making over to another, of a person's whole interest therein, whatever that interest may be; but it is more particularly applied to express the transfer of an estate for life or years. And an assignment for life or years differs from a lease only in this, that by a lease a man grants an interest less than his own, reserving to himself a reversion; by an assignment, he parts with the whole property, and the assignee consequently stands in the place of the

(n) See Doe v. Marchetti, 1 B. & Ad. 715. As to the renewal of leases

of crown lands, see 8 & 9 Vict. c. 99, s. 7.

assignor (o). Thus where a lease is assigned, the assignee becomes liable to the landlord or reversioner, for the future performance of the covenants made by the lessee: and he remains so, until the assignee assigns over in his turn to another person (p). And this liability attaches to him even without entry (q). Yet he is not liable by force of the assignment, except on such covenants as run with the land (r), a term that has been explained in a former chapter (s). And, on the other hand, he is entitled, during the same period, to enforce against the reversioner any covenants running with the land, which the lease contains in favour of the lessee; and in case the reversioner conveys his interest to another, then to enforce them also for the future against the grantee of the reversion (t). It is to be observed, however, that if the transfer of the term be for a single day short of the residue of the term, no liability or claim on the original covenants can arise between these parties: for it is then an under-lease and no assignment; and the alienee not coming precisely into the place of the alienor, is in no privity with the reversioner (u). No deed or other writing was necessary, at common law, to the validity of an assignment (x); though in the case of a lease for life, it could not be effected without livery of seisin (y); but now by the Statute of Frauds, (29 Car. II. c. 3,) the same provision as to the necessity of a deed or written instrument is made, with respect to an assignment, as before mentioned in the case

(0) 2 Bl. Com. 326.

(p) Taylor v. Shum, 1 B. & Pul. 21; Harley v. King, 2 C. M. & R. 18; 1 Gale, 100; Wolveridge v. Steward, 3 Tyr. 637. The original lessee, however, is not discharged from liability by an assignment over, but remains liable on his covenants; (Barnard v. Godscall, Cro. Jac. 309.) (q) Williams v. Bosanquet, 1 Brod. & Bing. 248.

(r) Whitton v. Peacock, 2 Bing.

N. C. 411.

(s) Vide sup. p. 498.

(t) 32 Hen. 8, c. 34; Thursby v. Plant, 1 Saund. by Wms. 230 b; Wright v. Burroughes, 3 C. B. 685.

(u) Holford v. Hatch, Doug. 182; Baker v. Gostling, 1 Bing. N. C. 19. (x) Noke v. Awder, Cro. Eliz. 373, 436; Moore, 419, S. C.

(y) Earl of Derby v. Taylor, 1 East, 502.