reason, no livery is required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes since the reversion of the lessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate; and where there is already a possession, derived from such a privity of estate, any farther delivery of possession would be vain and nugatory.

15 WEND. (N. Y.), 405-407. Before the statute of frauds and perjuries, any form of words without writing, whereby an intention appeared to surrender up the possession of the premises to the lessor or reversioner, was sufficient for that purpose. This was called a surrender in fact. There was also a surrender in law. It was effected by the acceptance of a new lease of the premises from the lessor, for the whole or a part of the time embraced in the former one, because it necessarily implied a determination and surrender of that lease; otherwise the lessor would be unable to make the second, or the lessee to enjoy it, and it was therefore but reasonable to presume both parties intended to waive and relinquish the benefit of the first one. The second lease before the statute referred to of course need not have been in writing to operate an effectual surrender of the first one. The statute of 29 Car. enacted "that all leases, estates, interests of freehold or terms of years, or any uncertain interests of, in, to or out of any lands, &c., made or created by livery and seisin only, or by parol, and not put in writing, &c., shall have the force and effect of leases or estates at will only," &c., excepting leases not exceeding the term of three years from the making thereof. And also, "no leases, estates or interest, either of freehold or term of years, or any uncertain interest, &c., of, in, to or out of any messuages, &c., shall be assigned, granted or surrendered, unless by deed or note, in writing, or operation of law." Our statute (2 R. S., 134, § 6) provides that "no estate or interest in lands, other than leases for a term not exceeding one year, &c., shall hereafter be created, granted, assigned, surrendered,

&c., unless by act or operation of law, or by deed or conveyance in writing," &c., § 8.

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It is stated by Baron Gilbert, 4 Bacon's Abr., 210, that since the statute of frauds the new lease must be in writing in order to operate as an implied surrender of the old one, for it is then of equal notoriety with a surrender in writing. This position is also adopted by Serjeant Williams, in his notes upon the case of Thursby v. Plant, 1 Saund. 236, n. b. But as surrenders by operation of law are expressly excepted out of the statute, as a necessary consequence they are left as at common law; and there it is clear it need not be in writing to have the effect to surrender the old one, even if by deed. 2 Starkie's Ev. 342; 20 Viner, 143, L. pl. 1, n.; 1 Saunders, 236, n. c. I am inclined therefore to think that a valid parol lease, since the statute, might produce a surrender in law within the reason and principle upon which this doctrine is founded. The true rule seems to be that laid down by Mr. Starkie, 2 Starkie's Ev. 342, as follows: The taking a new lease by parol is by operation of law a surrender of the old one, although it be by deed, provided it be a good one, and pass an interest according to the contract and intention of the parties; for otherwise the acceptance of it is no implied surrender of the old one.-Per Nelson, J., in Schieffelin v. Carpenter (1836).

CHAPTER VII.

DEDICATION.

3 KENT COM., 450. Dedications of land for public purposes, as for charitable and religious uses, and for public highways and village squares, enure as grants, and may be valid, without any specific grantee in esse at the time, to whom the fee could be conveyed. And if a street be designated by public commissioners, duly authorized, as passing over certain lands, and the owner subsequently conveys part of the land as lots, bounding them on such a street, this is held to be a dedication of the land, over which the street passes, to the public use, and on opening the street the purchaser can only obtain a nominal sum as a compensation for the fee. But it has been an unsettled question what length of time was requisite to create the presumption of a valid dedication of a highway to the public. The true principle on the subject, to be deduced from the authorities, I apprehend to be, that if there be no other evidence of a grant or dedication than the presumption arising from the fact of acquiescence on the part of the owner, in the free use and enjoyment of the way as a public road, the period of twenty years, applicable to incorporeal rights, would be required as being the usual and analogous period of limitation. But if there were clear, unequivocal and decisive acts of the owner, amounting to an explicit manifestation of his will to make a permanent abandonment of the road, those acts would be sufficient to establish the dedication within any intermediate period.

II. Title by Operation of Law.

CHAPTER I.

DESCENT.

GLANVILL, VII., c. 3. Of heirs some are next of blood, some are more remote. Heirs next of blood are those who

are begotten of the body of the ancestor, as a son or a daughter. On failure of these the remoter heirs are called to the inheritance, for instance the grandson or granddaughter descending in a direct line from a son or a daughter without limit. Next the brother and sister and their descendants. Next the uncle both on the father's and the mother's side, and the aunt in like manner and their descendants. When, therefore, any one who holds an inheritance dies, if he has an only son, it is without reserve true that that son is the successor of his father in the whole inheritance. If he has left more sons than one, then there is a distinction whether he was a knight, or a tenant of a knight's fee, or a free socman. Because if he were a knight or a tenant by knight service, then according to the law of England the first-born son succeeds his father in the whole inheritance, so that none of his brothers can demand of right any share therein. If, however, he be a free socage tenant, then the inheritance shall be divided between all the sons, however many they be, in equal shares, if that socageland has been subject by ancient custom to division, saving, however, to the eldest son the chief messuage in consideration of the dignity due to his seniority. He must, however, make its value good to the others out of other property. But if there is no ancient custom of division, then the first

born son according to the custom of some places will get the whole inheritance, while according to the custom of other places the youngest son is the heir. Further, if any one leaves an only daughter his heiress, then what has been said above as to an only son applies to the daughter without any distinction. But if he has left more daughters than one, then the inheritance shall be divided equally among them, whether their father was a knight or a socman, saving, however, to the eldest daughter the chief messuage according to the above-mentioned rule. And it should be observed that if any one of the brothers or sisters, amongst whom the inheritance is divided, dies without an heir of the body, then the share which belonged to the deceased shall be divided amongst the other survivors. . . If, moreover, any one has a son and heir, and besides a daughter or daughters, the son succeeds to the whole; hence it follows that if any one has had more wives than one, and a daughter or daughters by each of them, and at last by the latest wife an only son, that son alone takes the inheritance of his father, because, speaking generally, it is true that a woman never shares with a man in any inheritance, unless there may be some special practice in a particular borough existing by virtue of long usage in that borough. If, however, any one has had several wives, and by each of them a daughter or daughters, all the daughters shall share equally in the father's inheritance, in the same way as if they had all been by the same mother. And when any one dies without a son or daughter as heir, if he has grandsons or granddaughters, children of a son or a daughter, then there is no question but that the grandchildren succeed in the same way as has been before laid down concerning the succession of a son or daughter, and that the same rules apply. For lineal descendants are always preferred to collaterals. But when any one dies leaving a younger son and a grandson the son of a pre-deceased eldest son, there often arises a great question as to the law, which of the two should be preferred to the succession, that is to say, whether the younger son or the