While the estate of A. continued, and attornment was necessary, he was the proper person to attorn to the grant of B.; but when A. no longer retained the estate, the principles of tenure required that there should be the attornment of C. If this were so, there would be privity of estate between B. and C.; at least for some purposes, although there was the want of privity of contract. Therefore, though no authority for the point may be found, there seems good reason to suppose, that a release from B. to C. would be good after the impediment arising from the estate of A. was removed and indeed the case in Sheppard's Touchstone seems a sufficient anthority for this purpose.

The observations respecting rents, covenants, &c. must be understood of the common law. By a statute, 4 Geo. 2. c. 28. remedy is given in certain cases for rents against under-lessees, notwithstanding a surrender, and the acceptance of a new estate, for the purpose of renewing their leases.

4. Of the Want of Privity, because the Estate is determined.

4thly, For the sake of illustration of the general principles which govern this doc

trine, and to preserve the order of arrangement, it may be observed, that the possession which a person formerly tenant for years has by sufferance, and who is, without much attention to technical accuracy, denominated a tenant by sufferance, cannot be enlarged by a release. The reason is obvious: he has a mere naked possession ; and no estate; no privity. So after the determination of the interest of any other particular tenant, such quondam tenant has not any estate capable of enlargement.

Concluding Observations.

Whenever any difficulty arises in giving effect to an instrument, as a release, for want of privity of estate, or for want of any prior estate, it will be proper to consider whether the instrument intended as a release may not operate in some other mode, viz. as a surrender, appointment, grant, or covenant to stand seised, a confirmation, or a release of right. Whenever circumstances will admit of its operating in either of these modes, the decisions of modern times; indeed the general rules of construction, and the principles of law; justify the expectation that the operation of the instrument may be supported, in either of those modes, which ever will give effect to the general

or immediate object of the parties to change the title from the intended releasor to the intended releasee.

The complex doctrine involved in the learning on releases, strongly enforces the prudence of adhering to the practice of making a lease for a year, as the foundation for a release, instead of relying, as is sometimes done, from motives of economy on a release to the assignee of a mortgage term, or some ancient estate, long since created; so that the release could operate in that mode only, under the common law learning, applicable to releases, without the aid of those more simple rules, to which a lease and release, as parts of the same assurance, owe their origin and introduction into practice.

In practice, it should never be forgotten, that one of the great advantages of a lease for a year, as part of the same assurance with a release, is, that the lease for a year, enables the releasee to give from his own title deeds, certain evidence that he had, at the date of the release, an estate capable of enlargement by release.

Of the Form of the Lease for a Year.

In order to a review of the form of the lease, it will be in course to consider,

1st, The date.

2dly, Who are the proper parties.

3dly, The consideration on which the lease must be grounded.

4thly, Who may be the grantor. 5thly, The formal words of grant. 6thly, Who may be the grantee.

7thly, of what parcels there may be a bargain and sale, and the cautions to which attention must be paid in describing the parcels.

8thly, The habendum.

9thly, The reservation of rent.

10thly, The declaratory clause; shewing the intention with which this assurance is made.

1. Of the Date.

The lease for a year is generally dated on the day next before the day of the date of the release. It is ordinarily also executed by each person, grantor in the lease, before the execution by that person of the indenture of release ground

ed on the lease. This is the correct practice, and should be observed, as closely as circumstances will admit.

The material point is, that the lease for a year should give a vested estate, capable of enlargement, and be subsisting at least in legal intendment as a vested estate, prior to the execution of the deed of release. This is evident from all the preliminary observations, in which the nature and objects of this assurance have been considered.

Of course, no objection can arise from the circumstance that the lease for a year is dated at a more distant period than one day prior to the date of the release.

Sometimes,

indeed, even in modern practice, there is an interval, in point of date, of a day between the day of the date of the lease, and the day of the date of the release, instead of having the lease and release dated on successive days. This happens from the caution of not dating the deed of lease or release on a Sunday. But a deed dated or even executed on a Sunday, is binding, and free from all well founded objection. The statute for the better observance of the Lord's day,(?) applies to process and proceedings of the

(1) 29 Charles 2d, Ch. 7.