he would not be entitled to distrain without an express authority reserved by the deed. With this explanation, the different cases on the subject may be reconciled. In one case, where the lessee conveyed his whole estate, reserving to himself the rent, with a power of re-entry for non-payment, it was held to be not an assignment, but an underlease, on which debt for rent might be maintained, although it could not be distrained for. (d) In a subsequent case, where a lessee for years granted the whole of the term to J. S., it was held in support of a plea of non-tenuit, that J. S. was the assignee of the term, although in the deed of assignment the rent was reserved to the assignor, with a power of re-entry for non-payment, and although new covenants were introduced. (e) In a still later case, where T. W., being possessed of a term, which was to expire on the 11th November, let the premises orally from the 11th September to the 11th November for 2701., payable immediately, it was held, that having parted with the whole of his term, he was not entitled to distrain, still it was a lease of which parol evidence might be given, and not an assignment, which must have been in writing. (ƒ) In a recent case, in avowry for rent in arrear, it was pleaded, that by the demise in the avowry mentioned, the avowant demised and granted the premises to the plaintiff for all the residue of the avowant's term and interest therein, and that the avowant had not any reversionary interest, after the expiration of the term granted to the plaintiff in replevin. It was urged that there was a repugnancy in the plea, which admitted the tenure, but shewed an assignment. But the Court said they could not distinguish the case from Preece v. Corrie, and therefore, held the plea good. (g) (d) Poulteney v. Holmes, Str. 405, et vide Baker v. Gosling, 1 Bing. N. S. 19. (e) Palmer v. Edwards, Doug. 187. n. [59.] S. P. Parmenter v. Webber, 8 Taunt. 593. (f) Preece v. Corrie, 5 Bing. 25. (g) Pascoe v. Pascoe, 3 Bing. N. S. 898. If lessor grants a term exceeding his lease. If a termor for years make a lease for a period exceeding his term, it will operate as an assignment;-as if a lessee for three years demise the premises for four years, he will not thereby gain any tortious reversion; but the demise will amount to an assignment. (h) But if a lessee for lives grant all his estate and interest to A. and his executors, this will not be an assignment; because a grant to a man and his executors cannot convey a freehold. (i) The distinction between an assignment and a lease depends upon the quantity of interest which passes, and not upon the extent of the premises transferred. Where, therefore, the lessee of a house for seven years demises part of the house to another for the whole of his term, this is not an underlease, but an assignment pro tanto; and so, on the other hand, where the lessee of a house for seven years demises the whole of the house for seven years all but one day, this is an underlease and not an assignment. (k) An assignment, therefore, creates no new estate; but transfers an existing estate into new hands: a lease, or underlease, creates a perfectly new estate. When a lease is made to commence before the expiration of a subsisting lease, it is called a concurrent lease; when made to commence after the determination of another lease, it is a lease in reversion, (1) or it may be a lease of the reversion, that is, a grant of the reversion carrying the rent. The form of demises remains now to be considered :—1. (h) Hicks v. Downing (alias Smith v. Baker,) Ld. Raym. 99. S. C. 1 Salk. 13. action cannot in general be assigned at law. But where a lease is made with a bond conditioned for the (i) Earl of Derby v. Taylor, East, performance of covenants, and the 502. (k) Crusoe dem. Blencowe v. Bugby, supra. (1) Winter v. Loveday, Com. Rep. 39. A bare right or chose in lessee assigns the lease, he may also assign the bond so as to give the assignee the benefit of it, provided it be before breach of covenant. Anon. Godb. 81. Where the parties lie under no special directions as to the form and extent of the demise: 2. Where they lease under the enabling and disabling statutes: and 3. Where they lease under the directions of a power. (m) SECTION I. OF THE FORM OF ASSIGNMENTS AND LEASES IN GENERAL, The distinction between things which lie in livery, and things which lie in grant, rendered a different mode of conveyance necessary in their alienation. Things lying in livery, as they were of a tangible nature, might be easily transferred from one hand to another: thus land might be passed by a symbolical delivery; and this being always made in the presence of witnesses, no other form or evidence was necessary to authenticate the transfer. But things lying in grant were incapable of this mode of conveyance: their abstract nature made it impossible for any formal possession to be transferred: and a deed was always necessary for their alienation, the delivery of which deed immediately passed the property, and therefore a demise by parol of a right of hunting and shooting, although together with a messuage, is void; but an action for use and occupation might be maintained, if the count or declaration be properly framed. (n) Things lying in livery, might at common law have passed without deed. And as a feoffment might be made by mere word of mouth, so a fortiori, might a lease for life. There needed only the ceremony of livery of seisin to pass the free (m) As to assignments in law, ride infra. (n) Bird v. Higginson, 4 Nev. and Man. 505. A demise of things lying in grant must be by deed. Demise of livery might things lying in in general be made by parol. But now de mises for more than three years must be in writing. hold; so that where a man said to another, "I do here demise to you my house for the term of your life,” this was a sufficient demise; and, provided livery were afterwards made, would enure to pass a life estate. (0) Livery of seisin, in deed, or in law, was the usual means of passing a freehold: though it was not necessary, when the freehold passed by matter of record, or under the statute of uses; or by surrender, release, confirmation, &c. (p) But leases for years required no livery; they were, and still are, considered mere chattel-interests, arising from the contract between the parties, and passing only an interest in the land, and not the freehold. (q) Leases for years, or assignments thereof, might therefore, by the common law, have been made by deed, or parol. To remedy the evils arising from parol demises, the Statute of Frauds enacts "that all leases, estates, interests of freehold, or terms of years, or any uncertain interests of, in, "to, or out of any messuages, manors, lands, tenements, or "hereditaments, made or created by livery and seisin only, 66 66 or by parol, and not put in writing and signed by the par"ties so making or creating the same, or their agents there"unto lawfully authorised by writing, shall have the force "and effect of leases or estates at will only, and shall not "either in law or equity be deemed or taken to have any "other or greater force or effect; any consideration for 66 66 making any such parol leases, or estates, or any former law or usage to the contrary notwithstanding.” (r) "Except, nevertheless, all leases not exceeding the term. (0) Sharp's case, 6 Rep. 26. b. S. C. (Sharp v. Sharp) Cro. Eliz. 482. (p) Shep. Touch. 210. And see Vin. Abr. Feoffment (B). (q) Ibid. and vide supra. "of three years from the making thereof, whereupon the "rent reserved to the landlord during such term shall "amount unto two-third parts at the least of the full im"proved value of the thing demised." (s) And "no leases, estates, or interests, either of freehold "or terms of years, or any uncertain interest, not being copyhold or customary interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, "shall be assigned, granted, or surrendered, unless it be by "deed or note in writing, signed by the party so assigning, granting, or surrendering the same, or their agents there 66 unto lawfully authorised by writing, or by act and operation " of law." (t) and surrenders At present, therefore, all leases for a longer term than Assignments three years, and all assignments and surrenders, must be by must be in deed, or by note in writing signed by the parties or their writing, authorised agents: and though where the term to be created does not exceed three years, and the rent amounts to twothirds of the annual value, a parol lease is still sufficient; yet the statute absolutely requires that in all cases an assignment should be in writing; and the exception as to leases not exceeding three years, does not extend to an assignment; therefore, where a parol assignment was made of a lease from year to year, which had been granted by parol, it was held to be void under the statute. (u) It is not, however, necessary that an assignment should be by deed; (v) but it must be stamped pursuant to the 55 Geo. III. c. 184. But a lease for lives must be created by deed, and be attended by the usual solemnities for granting or limiting estates of freehold (that is) by livery of seisin, bargain, (s) Sect. 2. (t) Sect. 3. This statute is in force in the island of St. Kitt's in the West Indies, vide Beckett v. Harden, 4 M. and S. 1. (u) Bolting v. Martin, 1 Camp. 318. Preece v. Corrie, 5 Bing. 25. (v) Farmer dem. Earl v. Rogers, 2 Wils. 26. Beck dem. Fry v. Phillips, Burr. 2827. although lease commences by parol. |