purposes for others. year, no action will lie, but as the statute has not declared the id for some lease void, any use may be made of the lease by either party, though not except that of maintaining an action upon it. The lessee, therefore, in case he enters in virtue of the lease, may use it for the purpose of showing he is no trespasser, and after he has enjoyed the leased premises for the term, he will be liable for the rent, not upon the express contract, but upon the contract implied by law, from his use and occupation of the premises; and in such action, either party, we apprehend, may avail himself of the express contract, to show the amount of the rent to be recovered; and the same principle has been applied to the clause of the English statute of frauds, in relation to verbal leases, by the courts of that country. II. WHO MAY BE LESSOR AND LESSEE.* III. FORM AND NATURE OF A PRESENT DEMISE. ཇ. HUNT V. HAZLETON, ET AL. Aug. T. 1830, 5 N. H. Rep. 216. Per Cur. Richardson, C. J. The grant of the term is alleg- It may be by parol. ed to have been by a writing under the hand of the lessor, but is not alleged to have been by deed. But this is of no importance, as it is well settled, that a valid lease of lands for years, may be made by a writing not under seal. 2. WILCOX V. WOOD, Oct. T. 1832, 9 Wend. N. Y. Rep. 346. * All persons seized in fee simple, fee tail for life, or for years, of land, may grant leases for any term commensurate with their respective interests. Executors and administrators may dispose of terms for years in right of the testator; Roe v. Summerset, 2 Blk. Kep. 692. Any one, as is observed in 12 Petersdorff's Abr 1 02, (note) possessed of a certain quantity of interest may alienate the whole or any part of it, unless restricted from so doing by agreement with the party from whom he derives the interest or estate, or by the terms upon which he takes it. In fact, the tenant has it as a right, incident to his tenancy, to make a sub-tenancy, in order to do which, it is by no means necessary to have the first landlord's assent. It is well settled that a tenant at will can make no leases, nor can a tenant at sufferance. There can be no such thing as an under tenant to a tenant at will; Layton v. Field, S Salk. 222. Infants and married women may take leases. An alien merchant, whose nation is at peace with this country, may take a lease; 2 Show. 135; 1 Saund. 6; 4 East. 103. lease from the 1st of May until the first of May follow ing the 1st day is ex cluded. centuries, been vacillating between two opposite constructions, where a deed is to commence from the date, or from the day of the date. Sometimes holding, that the day of the date is inclusive, and sometimes exclusives. Lord Mansfield's doctrine was, that there is no difference between these two forms of expressions, and whether the day of the date is included or excluded, depends upon the subject matter of the instrument, and the intention of the parties; Cowp. 714. In this state, in questions of computation of time, arising under our rules, our statutes, and upon promissory notes, we hold, that the day of the date is excluded, upon the same principle, if the lease is to hold, from and after the first day of May, it would seem to follow, that the first day is excluded. Where the lessee as IV. ASSIGNMENT OF LEASES, 1. FULTON, ET AL. v. STUART, 2 Ham. 221, Ohio Cond. Rep. 329. The declaration set forth, that the demised premises, except signs part thirty feet of vacant ground, by assignment of one Munson, the ises for the original lessee, came to the defendant, who occupied them, and whole term averred the non-payment of rent. of the it is but an undertak ing and no action on the lease will lie against the assignee. Demurrer and joinder. Per Cur. It seems to be settled, that where the lessee assigns his lease for any shorter period of time than that for which the lease was granted, the lessor cannot sustain an action of covenant against the assingee upon the lease; because, this is considered not an assignment of the whole term, but an underletting. The principle applies with at least equal force to the case of an assignment or underletting of a part of the premises only. If the lessee constitute two under tenants, by assigning one third of the leased premises to one, and one third to another, retaining one third himself, the lessor may have three disticnt actions; in apportioning the rent the aggregate given against each, might amount to more or less than the amount reserved, and the parties in either case, would be without remedy. If the lessee underlet or assign the whole premises in unequal quantities, to different persons, the lessor will be driven to as many actions against different persons, to recover his rent, instead of having one action against the lessee. For the separate assignee of a part can neither be charged with the whole rent individually, nor jointly, with one or more of his co-tenants. 2. A condition JACKSON V. HARRISON, Aug. T. 1819, 17 Johns. N. Y. Rep. 66. The lessor demised to the tenant for seven years, on con- not to under dition that he should not assign over, or otherwise part with the let does not indenture, or the premises thereby leased, or any part thereof to an assign any person. extend to ment of the whole or The tenant underlet the part of the premises for the period of part of the two years. Per Cur. Van Ness, J. These words must be construed to mean an assignment of the premises, or part of them, for the whole term, and no forfeiture is incurred by letting for a shorter period; under leases not being considered as coming within the terms of the condition or proviso. And his honor referred to Cruisoe v. Bugby, 3 Wils. 234. 3. HOWLAND, ET AL. V. COFFIN, Oct. T. 1831, 12 Pick. Mass. R. 125. S. P. HOWLAND V. COFFIN, 9 ib. 52. premises for part of the term. lie by the One Brownell demised the premises to Randolph, and the de- Debt will fendant purchased Randolph's right, and the plaintiffs purchased assignee of the reversionary interest of Brownell. And the question was, agaignee of the lessor whether an action of debt would lie between the assignnee of the lessee. the reversion and the assignee of the term. Per Cur. Wild, J. We entertain no doubt, notwithstanding the dictum in Walker's case, 3 Co. Rep. 22, that the action is well maintained. The defendant took the term subject to all the advantages and disadvantages attached to it by the terms of the lease. The covenant for the payment of the rent ran with the land, and by the assignment of the term, became binding on the defendant. 4. JACKSON V. HARSEN, May T. 1827, 7 Cowen's N. Y. Rep. 323. taches to all succeed to Per Cur. Woodworth, J. The law seems to be well settled, And the re that when the relation of landlord and tenant is established, it lation at attaches to all who may succeed to the possession, through or who may under the tenant, either immediately or remotely; and a pur- the posses chaser who enters under an absolute conveyance in fee, from the sion. tenant, is considered as entering as the tenant of the lessor, although he may not have known that his grantor held or derived his possession from the lessor. And a conveyance by the tenant cannot operate as the basis of an adverse possession, but the VOL. VI. 52 And ex tends to a pre-emp sale. And after the assign ment the les see contin ues liable on his cove nants for the acts of his assignee And the as signee is on ly liable in respect of his posses sion. rule does not extend to the relation arising by mere operation of law. 5. JACKSON, EX DEM. V. GROAT, May T. 1827, 7 Cow. N. Y. Rep. 285. S. P. JACKSON V. SILVERNAIL, 15 Johns. N. Y. Rep. 278; JACKSON V. SCHUTZ, 18 ib. 174. The lessee covenanted, that if he or his executors, administrators or assigns, should be minded to sell or dispose of their estate, it should be lawful for them to do so, first giving the preemption to the lessor, his heirs or assigns; and on every such sale or assignment, should pay to the lessor, his heirs or assigns a tenth part of the purchase money-otherwise the lease and estate granted, should cease, &c. The lessee assigned and paid the tenth, and his assignee assigned and refused to pay it. Per Cur. Sutherland, J. The only question is, whether the pre-emption of tenth sale are confined to the first assignment only. The validity of these covenants have been established; they extend to every alienation. The term assigns clearly embraces every purchaser by voluntary sale, as well as upon exe cution.. 6. JACKSON V. BROWNSON, NOV. T. 1810, 7 Johns. N. Y. Rep. 227. Ejectment. Brownson took a lease for life of the land from Phillip Schuyler, containing a covenant that he should not assign without the permission of Schuyler. He assigned part of the premises, with his consent. Held by the court, that it did not amount to a surrender; that Brownson remained responsible for the acts of his assignee on the covenants. Van Ness, J. The lessee covenants for himself, his heirs, and assigns, and he is, therefore, liable for every act of his assignee, amounting to a breach of any of the covenants or conditions in the lease. To this point the cases are numerous and decisive; Brett v. Cumberland, Cro. Jac. 521; Bachelor v. Gage, Cro. Car. 188; Norton v. Ackland, Cro. Car. 580. 7. FARMERS' BANK V. MUTUAL INS. SOC. ET AL. Dec. T. 1832, 4 Held by the court, Tucker, J. that the assignee was only liable in respect of his possession, and is not liable for rent in arrear before his title accrued. V. TERMINATION OF. 1. RANDALL V. RICH, Nov. T. 1814, 11 Mass. Rep. 494. Termina Held by the court, Parker, C. J. that a lease of a dwelling- tion of house under seal, is determined by the delivery of the key, and the receipt of it by the lessor, and putting another tenant in the house. It is a symbolical delivery of possession. 2. COLEMAN V. MARBERLY, ET AL. Spring T. 1827, 3 Munroe's of a new Per Cur. Boyle, C. J. It is a principle well settled, that if a Acceptance lessee accept a new lease from his lessor, to commence before lease. the expiration of the first, the acceptance of the new lease, as it admits the ability of the lessor to make such new lease operates in law as a surrender of the first; and therefore it is held, that if a lessee for twenty years, or any greater number, takes a new lease for ten or a smaller number, to take place during the period of the first, the term of twenty years is thereby determined. 3. CHALMERS, ET AL. . VIGNAUD'S SYNDIC, Feb. T. 1824, 14 Held by the court, Martin, J. that a lease at will is determin- Or tender ed by a tender of the keys, after legal notice. 4. VAN RENSSALAER'S HEIRS V.PENNIMAN, May T. 1831, 6 Wend. N. Y. Rep. 569. of the keys. der. Per Cur Savage, C. J. It seems to be well settled, that if a By surren lessee accepts a new lease of the same premises during the term in the first lease, the first is deemed to be virtually surrendered. The reason is, that the acceptance of the new lease admits the capacity of the lessor to make a new lease, which he would not have without a surrender of the first. See 12 Johns. Rep. 357. VI. CONSTRUCTION OF. ད. SMITH V. MEANOR, Sept. T. 1827, 16 Sergt. & Rawle's Penn. Rep. 375. A right of There was this provision in the lease; that if the tenant should re-entry in |