subject from the rules of the common law. That these expressions tend to confound is sufficiently obvious from the observation of Mr. Woodeson, and from the difficulty he has experienced in reconciling,with principle, the practice, as applied to conveyances by release of reversions and remainders. If a gentleman of Mr. Woodeson's acknowleged attainments and experience, could be led into a difficulty by expressions of this sort, how is it to be expected that students should, in the early part of their studies, be able to understand, in their technical sense, phrases of such doubtful or ambiguous meaning? Any one, except a lawyer, might read the Commentaries of Blackstone on this subject, and without any imputation on his judgment arrive at the conclusion, that no one except a person who had the actual possession of the land, was capable of a release in enlargement of his estate. The pointed language of Littleton and of Lord Coke, taken substantively and without the context, might be considered as leading to the same conclusion. Littleton, however, meant nothing more than to mark the difference between an interesse termini, and a term for years. The former is merely an interest in the land, and not an estate, while the latter is an actual estate. (w)

(w) Co. Litt. 270. a. 46. b. and Litt. S. 58.

The interest, while executory, does not admit of enlargement. (y) It may be released, (z) or assigned, (a) but cannot be surrendered; (b) though certain acts are said to amount to a surrender in law; nor (it is said) confirmed, (c) but this is at least doubtful; (d) nor is it an impediment to a surrender, or merger, of a prior interest, in a more remote interest.

On this subject of possession, some of the expressions of Lord Coke are not more definite. His context, however, relieves the question from all difficulty. From this writer, (e) and also from Sheppard's Touchstone, (f) Sheppard's Abr. (g) and Mr. Butler's Annotations, (h) and still more clearly from first principles, it is to be collected that an estate is capable of enlargement although that estate is a reversion or remainder, and consequently does not confer a right to the immediate possession. In the succeeding division some further observations will be introduced illustrative of the origin and history of the lease and relcase, as parts of the same assu

rance.

(y) Co. Litt. 46. b.
(z) 270. b.

(a) Co. Litt. 46. b.

(b) Co. Litt. 338. a. Shep, T. 301.

(c) Co. Litt. 296. b.

(d) Shep. T. 311.

(e) Co. Litt. 270. a.
(f) 322.

(g) 157.

(h) Note 3 on Co. Litt. 270. ağ

2dly. Of the principles on which this assurance depends.

The difficulty respecting this assurance, as a substitute for a feoffment, vanishes when its distinguishing characteristics are examined. In its principles it is founded on the rules of the common law, (i) and consists of two parts.

1st. An assurance creating an estate to be enlarged, and

2dly. An assurance,granting another estate in enlargement of the estate thus created, for the purpose of being enlarged.

The practice of a lease and release as parts of the same assurance, is founded on the rule that a particular estate, already vested, may be enlarged by the release, of the person who has a reversion or remainder expectant on that estate; so as the two estates are connected in privity, (k) in such manner as will afterwards be noticed. Since convenience dictated the use of the lease and release as parts of the same assurance, so in modern practice, the object of the lease for a year, is to create an estate which shall certainly be attended with the requisite privity, and confer an interest which admits, beyond all doubt, of being enlarged.

(i) Barker v. Keate, 2 Mod. 251.
(k) Co. Litt. 273. a.

To a valid feoffment, it is necessary that livery shall be made (1) by the feoffor, either in person or by attorney; (m) and such livery must be made to the feoffee, (n) in person or by attorney; and an attorney who is to give or receive livery, must be appointed by deed. (0) Assurances intended to be made by feoffment, frequently failed of effect on account of some error attending the ceremony of livery. Besides the operation of the assurance is suspended till livery of seisin has taken place. As the livery is the essential part of the assurance, (p) no seisin or estate passes till livery of that seisin is made.

The owners of lands lying at a distance from their residence, were greatly embarrassed by this suspense in transactions respecting their property. It may reasonably be supposed, that no purchaser would pay his purchase money; or mortgagee advance the intended loan; till his title was placed on a solid and certain footing, beyond the power of the seller or mortgagor, to defeat the intended sale or mortgage, by livery in the mean time, to some other person or by a

revocation of the authority he had executed, or by any other accident, as the death of the grantor or grantee. Nor were the inconveniences much less when the grant was of a reversion, or remainder, expectant on a particular estate, in a stranger. By the common law and till the statute for the amendment of the law, (q) attornment of the particular tenant was essential to the validity of the grant: (r) and the tenant might in many cases, withhold attornment: or the grantor or grantee might die, before attornment had taken place. Each of these events would defeat the grant; for unless attornment was obtained in the life time of the grantor and also of the grantee, (s) the grant became inoperative, and failed of effect. Besides there was a notoriety attending livery, or attornment, which must have been distressing in transactions of delicacy, which required secrecy; and in giving the history of this assurance, it is said, this conveyance was at first only purposely contrived by Serjeant Francis Moore at the request of the Lord Norris, to the end that some of his kindred or near relations should not take notice by any search of public records what

(q) 4 Ann. cap. 16, sect. 9.

(r) Litt. s. 567.

($) Co. Litt. 309. a. 315 a. Sir Rowl. Heyward's case, 2 Co. 35.