1st, Every particular vested estate is capa ble of enlargement. Therefore the estate of tenant for years (c), for life, and either for his own life or pur autre vie (d), or in tail(e,) and either in his own right, or in the right of his wife (ƒ), or even, it is apprehended, of a testator; and even the estate of a tenant at will (g), or of a copyholder (h), or, according to the better opinion, of a cestui que trust, holding at the will of the trustees (i), or of a mortgagor holding at the will of the mortgagee, of tenant by statute merchant, elegit, or the like (k), may be enlarged by release. But tenant at sufferance has no estate, nor is there any privity remaining; and as a consequence, he is not capable of a release to operate in enlargement of an estate (). In short, a person who merely has the possession, or holds by sufferance, is inaccurately denominated a tenant. Tenants in dower and by curtesy, being those husbands and wives who have actual es

(c) Litt. s. 459, 465.

(d) Co. Litt. 273. b.

(e) Shep. Touch. 323.

(f) Co. Litt. 273. b. 299. a.

(g) Litt. 460.

(h) Watkins's Copy. 36. a.

(i) Ib. 462, 463. and the commentary.

(k) Co. Litt. 270. b. 273. b. Shep. Touchst. 322.

(4) Co. Litt. 271. Butler v. Duckmanton, Cro. Jac. 169.

Note. The authorities which are cited, merely afford principle, and are not directly in point.

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tates, are capable of such release. They have a notoriety of possession, and privity of estate with the releasor. Each of these

tenants has an estate of freehold. It is at the same time observable, that before the title of dower is perfected by execution or endowment, the dowress has not any estate (m), she has merely a title of dower. That title may, by way of extinguishment, be released by the dowress; but while she has any interest short of an estate, she is not, in respect of such interest, capable of a release: nor can she convey by lease and release till she becomes tenant. In other words, till she has an estate in dower: she may release her right or title of dower to the terre-tenant, and such release operates by way of extinguishment, and not of conveyance, and a lease and release may operate in this mode. Tenant by the curtesy has an estate immediately on the death of his wife, without any further ceremony, provided the seisin of his wife continued in him and his wife in her right till her death (n). It is also agreed that a release to a tenant in tail may operate by way of enlargement (o), or more accurately speaking, by way of accession of estate.

(m) Gilbert on Tenures, 26. Roe v. Power, New Rep. 1. And that there must be an estate upon which the release is founded, see Co. Litt. 273. a.

(n) Litt. s. 394. and the Commentary.

(0) 2 Roll. Abr. 400. Shep. Touch. 322.

The effect of a release is in most cases to occasion a merger of the particular estate to be enlarged, when the estate to be enlarged, and the estate granted by way of enlar ement, are immediate to each other. But the grant to a tenant in tail of an immediate estate, will not operate to enlarge the estate-tail as against the issue. This proves that it is not a necessary circumstance to the operation of a release, that it should occasion the absolute merger of the particular estate intended to be enlarged, or the union or consolidation of the two interests.

Notwithstanding the acceptance of the release, the estate-tail will in point of right, and perhaps, indeed probably, in point of estate, remain a distinct interest, on the same principle that an estate-tail will remain a distinct interest,' so long as the heirs in tail are within the protection of the statute ́de donis, although the tenant in tail acquires the fee by the original grant, or by subsequent purchase or descent (p). From subsequent observations it will also be collected, that there are other instances in which the release. may have full effect, without causing the merger of the particular estate intended to be enlarged. These cases more fully prove that the release is, in point of

(p) Wiscot's Case, 2 Rep. Symonds v. Cudmore, 4 Mod. 1.

law, no more than a grant to a person, having a particular estate; and that it takes its denomination from the connection and privity between the parties to the conveyance, rather than from any peculiar operation.

Littleton's reasoning, as applied to à release to a tenant for years, or at will, pervades the whole series of cases; and ought to have been introduced into the division which shews the origin and foundation of this assurance.

The material sections of Littleton are in these terms :

Litt. s. 459. "Also if a man letteth to another his land (q) for term of years, if "the lessor release to the lessee all his

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right, &c. before that the lessee had "entered into the same land by force of the

same lease, such release is void, for that "the lessee had not possession (r) in the land at the time of the release made, but

only a right to have the same land by "force of the lease; but if the lessee enter "into the land and hath possession of it (s), "by force of the said lease, then such release "made to him by the feoffor (t), or by his

(q) Being in possession must be understood.

(r) A vested estate.

(s) And consequently an estate.

(4) Should be by the lessor.

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heir, is sufficient to him by reason of the privitie, which by force of the lease is "between them, &c."

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Sec. 460.

"In the same manner it is,

as it seemeth where a lease is made to a man to hold of the lessor at his will, by

force of which lease the lessee hath pos"session: if the lessor, in this case make a "release to the lessee of all his right, &c. "this release is good enough for the privity "which is between them; for it shall be in "vain to make an estate by a livery of seisin

to another, where he hath possession of "the same land by the lease of the same man before, &c."

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Sec. 461.

"But where a man of his own "head occupieth lands or tenements (u), "at the will of him which hath the free"hold, and such occupier claiming nothing "but at will, &c. if he which hath the free"hold will release all his right to the occu

pier, &c. this release is void, because "there is no privitie between them by "the (v) lease made to the occupier, nor by "other manner, &c." (w)

(u) Claiming to hold the same. (v) Read" a."

(w) This doctrine is correct in principle, but questionable in its application to the fact: for why may not a man claiming to be tenant at will become tenant at will by the admission of the Owner, and his consent to treat him as tenant? And why is not the release to the occupier evidence of an admission that he holdeth at will? Besides, if the occupier doth not hold as