#### Clarissa Prescott *against*De Forest.

Where a person having hired a house for a year, lets out to another a part of the house, for the cannotf there ménfn°0aSthat his51TM renta“ $JeUfxp¡ration oí^the ^year, making- the hired the house year, and? aiwas? custom hld^no^ever" ?iona5Y estate in tile premiaes> to c’>r only remedy is tSe rent.°n for

havinga “no interest,nal'iisíenMt^and ^purolSer^t su'rh sale ao* quires no proPerty> them, and the tenant may maintain trover against-him.

IN ERROR, on *certiorari*to a Justice’s Court.

This was an action of trover, brought in the Court below, 0 . by the plaintiff in error, against the defendant in error, r . , „ . D r The material facts in the case are as follows : on the 1st oi *February,*1817, *Stewart*leased a house in *Pearl Street,*in the city of *Mew- York,*to *Samuel Satterlee, for*one year, from the 1st of *May,*1817 ; *Satterlee*then leased part of the house, retaining the front part as a store, to the plaintiff, for the annual rent of 1,000 dollars, payable quarterly, for the same term at which he had taken it. On the 1st of *February,*1818, *Satterlee*obtained a new lease of the house, for a year from the first day of the ensuing *May.*On the 2d of *March,*1818, the plaintiff having only paid *Satterlee*32 dollars of her rent, he distrained her goods, upon the premises, and sold them at public auction, in due form of law. The defendant was a purchaser of several articles ■*- of furniture at this sale, and there had been a demand and refusal ot them before suit brought.

It was proved, that the plaintiff had said, that *Satterlee*had a right to distrain her goods for the rent, and expressed gratitude for his forbearance ; but at the time of the demise from *Satterlee*to her, nothing was said as to the right to distrain, and there was no agreement that he should have that right. It was also proved by two constables, and ° r j 9 another witness, that they had each known *one*instance in . w *tT r*• 1 • 1 . the city oí *Mew-York,*m which the party distraining for rent, , , . . , , - i V °. , had no reversionary interest in the leased premises, and that no objection was taken on that account. The plaintiff objected to all evidence of this kind, but the objection was overruled. A verdict and judgment were taken for the defendant below.

Platt, J. delivered the opinion of the Court.

The lease from *Satterlee*to the plaintiff, for a part of the house, for the whole term, must be deemed an assignment, and not *160an underletting. There was no privity of estate between the plaintiff and *Satterlee,*but a privity of contract merely.

The plaintiff did not hold as tenant to *Satterlee,*but as tenant *° *Stewart,*the original lessor and reversioner. The right of distress is incident to, and inseparable from the reversion 5 under such an assignment of the whole term, *Stewart*had a right to distrain on the assignee, and a double right of distress cannot exist in *Satterlee,*and in Stewart, unless there was an express agreement for that purpose between the assignee and *Satterlee. Stewart,*by reason of the privity of contract and estate, may sue the plaintiff, or distrain her goods, for the rent due to him ; but, *Satterlee*having a privity of contract only, without privity of estate, and without express power to distrain, can only sue upon the contract. ( *Woodfall L. & T.*285. 286. 196. 2 *Wils.*375. 1 *Term Rep.*441.) There is no difference, in this respect, between an assignment of the whole of the demised premises, or a lease or assignment of the whole term, in a part of the premises. Nor can the second lease to *Satterlee,*for the year ensuing, that is, from the 1st of *May,*1818, to the 1st of *May,*1819, make any difference in the case. That was a lease to commence *in futuro,*and cannot operate as an assignment of the reversion, which still remained in *Stezoart.*By granting, on the 1st of *February,*the new lease to commence on the 1st of *May*following, *Stewart*did not transfer, or lose his right of distraining for the rent, under the old lease. And whether the new lease for the ensuing year, was granted to *Satterlee*or a stranger, could make no difference in the rights of the parties, in relation to the first lease.

The plaintiff’s declaration, that *Satterlee*had a right to distrain, must be ascribed to her ignorance of her legal rights, and cannot vary the rule of law. The evidence of custom in *New-York,*was futile, and ought not to have been received. The witnesses, on that point, failed to prove any custom in regarcj to distress for rent in such cases ; but if they had proved it, we cannot allow any custom in this state, to control the general rules of the common law. Where a custom is of such antiquity, that we cannot trace its origin, it is co-eval with the common law itself; and then it *161forms an exception to the general rule; because, there is ground to presume that they are of equal authority, and that the same power which established the rule, also made the exception. If *Satterlee.*had no right to distrain and sell the goods, it necessarily follows, that the defendant, though a *bona fide*purchaser for valuable consideration, acquired no title. It was an unauthorized sale, and transferred no right. I am, therefore, of opinion, that the judgment ought to be reversed.

Judgment reversed. *»*