tered into a new agreement. This is the only mode of reconciling the intention with the terms of the agreement. However this relinquishment of the former contract is not a surrender in the technical sense of that term. It is rather an implied release, or waiver of the former agreement, than a sur render arising under that agreement. The inconsistency of the two agreements is the ground for presuming that the former contract has been abandoned and annulled. On similar ground an inconsistent covenant, as a covenant not to sue at any time, as distinguished from a covenant not to sue for a particular time, amounts to a release, unless there be an apparent intention to the contrary. (f)

The case of Goodright v. Searle, (g) is also a case of extinguishment, not of merger.

That the conclusion may be drawn on which a surrender is implied, it must be impossible that the several contracts should operate in the terms in which they are expressed. It is, necessary, therefore, that some part of the time for which the parties have stipulated by the first lease, should be comprised in the time limited by the second lease; so that it may appear that the parties must have intended that the right of

(f) Aloff v. Scrimshaw, 2 Salk. 573. Shep. T. 251. Clayton V. Kynaston, 2 Salk. 573.

(g) 2 Wils. 29.

enjoyment for some part at least of the period for which the lands are held, under the terms of the former lease, shall be held under the stipulations of the new lease. This is the point of inconsistency which alone affords the necessary degree of presumption. When this circumstance occurs, it is immaterial whether the second lease is to commence immediately, or from a future time, and also whether, in point of duration, it is to be more or less extensive than the former term. The inconsistency is equally manifest; and the law feels equal necessity for the same conclusion. Sometimes it has been supposed that the first lease would be avoided, notwithstanding the demise, intended to be made by the second lease, is void, and never has any operation. The principle on which this opinion was formed, proceeded on the idea that the second contract disclosed evidence of a change of intention, from which an agreement might be implied, that the former contract should cease to be binding on the parties; and on the same reasoning, that a will may be revoked by an informal or an inefficient conveyance denoting a change of intention.

However, in Davison on the demise of Bromley v. Stanley, (g) Lord Mansfield ruled

(g) 4 Burr. 2210.

Whitting v. Gough, Dyer 140. Lloyd v. Gregory, Sir William Jones, 405.

that the acceptance of a second good lease would operate as a surrender of the former : but he declared the reason did not hold in the case of accepting a new void one, that the lessee cannot enjoy; that there was no inconsistency in the acceptance of a new good lease being a surrender of the former. But the accepting a new void lease, which the lessee was not to enjoy, could not shew an intention to surrender the other, and that therefore the reason why this should be an implied surrender totally failed; and that he was very clear the acceptance of this new lease, which did not pass an interest according to the contract, could not operate as a surrender of the former ; and the principle was followed in Roe on the demise of Earl Berkely v. Archbishop of York. (i)

(i) 6 East, 86.

CHAP. XI.

That the more remote Estate must be as large as, or larger than, the more immediate Estate; and, under this head, the Gradation of Estates will be examined.

THIS is the most important head for consideration. For it is an indispensable circumstance, that the more remote estate should be larger than, or at least as large as, the preceding estate. (a) A case in Brooke's Abridgment, (b) is an illustration of this point. A man leased for a term of years, and afterwards took an interest for term of life, to take effect immediately: there the lease for years is extinct; but where one leases to I. N. for term of life, and twentyyears over, there he shall have both estates; for in the other case both are in him at the same time and together. (11 Hen. 4. 34.)

(a) 1 Inst. 54. b.

(b) Bro. Abr. Exting.

These cases exemplify the general proposition, and shew its application.

They establish also the alternative to the proposition, by affording the example of a case to which the doctrine of merger does not apply. In the first instance, the estate for years was merged, because the more remote estate was for life, and because an estate for life is larger than an estate for years; and in the second instance, the estate for years, was a continuing interest, because this term was the more remote estate, and an estate for life is larger than an estate for years.

So where land was given to husband and wife, and to the heirs of the husband; the husband made a lease for years, and died: the wife entered and inter-married with the lessee and it was moved,-If the interest of the lessee was extinct by the inter-marriage. And it was held that it was not; for it was but a possibility, and not an interest. Cited by Coke, (c) and agreed to by the whole court. On this case it is observable that the several estates were vested in different rights.

Besides, after the entry of the wife, her estate was prior to the term; for the term was, as against her, derived out of the inhe

(c) 3 Leon, 157, 8.