#### Livingston *against*Potts.

Where a lesfor life, *orpur*cepts T’new grant in fee 0af mises,ame this" ac'tuai^surrai is1' of the old lease, ris a surrender in law, surrender of former lease alight of com-other iattndsth0ef no6such°r’right is granted by lease, the tinguished by See *¿.ving*Broecftj’ ante* p. 14.

THIS was an action of trespass, *quare clausum*fregit,. which was tried at the *Columbia*circuit, in September, 1816. The plaintiff derived his title to the *locus in quo,*which was a piece of uninclosed wood land, situate in the manor *Livingston,*from his father *Robert*Livingston, who was fbe proprietor of the whole manor; the defendant’s trespass consisted in cutting and carrying away several loads of r ° ° *J*fire wood. The defendant, having pleaded the general issue, with notice of justification, produced a lease from *Robert Livingston*to *Jerry Stever,*executed the 10th of *June,*1788, for two lives, of a farm in the manor of *Living-slon>*“ w>lh estovers for fencing and buildings for the said farm) and fuel for one family, from such parts of said manor as are or shall, from time to time, remain waste and unimproved.” The lease came to the defendant by regular assignment, and one of the lives was still *in esse.*To repel the defendant’s justification, it was proved, on the part of the plaintiff, that *Walter T. Livingston,*who had become entitled to the reversion of the farm leased to *Stever,*on the 1st of *May,*1809, executed to the defendant a new lease of the farm for three lives, excepiing ten acres, which were reserved to the lessor. The new lease contained twelve acres of wood land, not included in the former lease ; and *W. T. Livingston*also conveyed to the defendant, in fee simple, twelve acres of the premises comprised in the lease of *Stever.*On the twelve acres conveyed to the defendant in fee, his house stands ; and it was on that part of the farm that the house of *Stever*formerly stood. The wood cut by the defendant was burned in his house on the land which had been conveyed to him in fee.

*29Á verdict was found for the plaintiff, subject to the opinion Of the Court.

*E.*Williams, for the plaintiff.

*Van Burén,*(Attorney General,) contra.

See the last case of *Livingston*v. *Ten Broeclc.*

*Per Curiam.*

The twelve acres of woodland included in the new lease to the defendant, are not stated to be waste and uninclosed ; therefore, they do not appear to be part of the commons out of which the estovers might originally have been taken, under the lease to Stever: so that the question which arose in the case of *Livingston*v. *Ten Broeck,*does not arise here. We are, however, clearly of opinion, that accepting a new lease, by deed, from the reversioner, for the same premises, operated as a surrender in law of the old lease. Besides, the defendant not only accepted a new lease, but took a conveyance, in fee simple, of twelve acres of the premises included in the old lease. Sir *Edward Coke, (Co. Litt.*338. a.) says, that if the lessee for years take a new lease for years, &c., it is a surrender in law of the former lease : and in the note, (note 296.) on this text, the reason is given ; “ for the first lease and the second lease cannot subsist together; and the parties by making a contract of as high a nature, for the same thing, tacitly consented to dissolve the former ; for without the dissolution of that, the lessor could not grant to the lessee that interest which was already passed from the lessor to the lessee by the first lease.” The plaintiff is, therefore, entitled to judgment.

Judgment for the plaintiff.