Co. Lit. 36. 2 Bl. Com, 307. ro Mod. 333. 1 Str. 1. S. C. 2 Bl. Com. 308. to be now as necessary as fealing, though it has sometimes been held that the one includes the other. The lease must alfo be delivered, either by the parties themselves, or their certain attorney or attornies, which delivery is also expreffed in their atteftation "fealed and "delivered." Almost any manifeftation, however, of the party's intention to deliver, if accompanied by an act importing the fame, will conftitute a delivery. If the date be falfe or impoffible, the delivery afcertains the time of it. If another perfon feals the deed, yet if the party delivers it himself, he thereby adopts the fealing, and, by a parity of reason, the figning alfo, and makes them both his own. Every deed fhall be intended to be delivered on the day it bears date, unless the contrary be proved. The laft requifite is the atteftation or execution of the lease in the prefence of witneffes, though this is necessary. rather for the preservation of the evidence, than to con flitute the effence of the deed. Ever since the reign of Henry VIII. the witneffes have usually fubfcribed their atteftation, either at the bottom or on the back of the deed: but fuch actual fubfcription by the witneffes is not required by law, though it is prudent for them fo to do in order to affift their memory when living, and to fupply their evidence when dead. A fubfcribing witness to any inflrument may be compelled to give evidence respecting it: for the perfon by fubfcribing his name as a witnefs, undertakes to give evidence at a proper time and in a proper manner. A lease by deed may be avoided or rendered of no effect, if it wants either 1. proper parties and a proper subject matter; 2. writing (or printing) on paper or parchment duly ftamped; 3. fufficient and legal words properly difpofed; 4. reading, if defired, before the execution; 5. fealing, and, by the ftatute of Frauds, in most cafes, figning alfo; or 6. delivery. Without thefe effentials, it is void ab initio. It may alfo be avoided by matter ex Bull. N. P. 267. poft facto: as 1. By erasure, interlineation, or other alteration in any material part. If a deed be altered by a ftranger, in a point not material, this does not avoid the deed; but otherwife, if it be altered by a stranger in a point Cro. Car. 399. material, material, for the witneffes cannot prove it to be the act of the party, where there is any material difference: an im material alteration, however, does not change the deed, and confequently the witneffes may atteft it without danger of perjury. But if the deed be altered by the party him. felf, though in a point not material, yet it avoids it, [unless a memorandum thereof be made at the time of the execution and atteftation. 2 Bl. Com. 308.] for the law takes every man's act moft ftrongly against himfelf. So, if there be feveral covenants in a deed, and one of them be altered, this deftroys the whole deed; for it cannot be the fame, unless every covenant of which it confifts be the fame also. 2. By breaking off, or defacing the feal. 3. By delivering 2 Bl. Com. 308. it up to be cancelled; that is, to have lines drawn over it in the form of lattice work or cancelli, though the phrafe is now used figuratively for any manner of obliterating or defacing it. 4. By the difagreement of fuch whofe concur- ibid. 309. rence is neceffary in order for the deed to ftand: as the husband where a feme-covert is concerned; an infant, or a perfon under durefs, when thofe difabilities are removed; and the like. 5. By the judgment or decree of a court of judicature. This was antiently the province of the court of Star Chamber, and now is that of the court of Chancery; and is exercised when it appears that the deed was obtained by fraud, force, or other foul practice, or is proved to be an abfolute forgery; in any of which cafes, the deed may be avoided either in part, or totally, according as the cause of avoidance is more or lefs extenfive. If a deed begin "This indenture witneffeth," &c. and Co Lit. 229. in truth the parchment or paper is not indented, this is no indenture, because the words cannot make it indented. But if the deed be actually indented, and there be no words of indenture in the deed, yet it is an indenture in law; for it may be an indenture without words, but not by words without indenting. All the parts of an indenture make but one deed, and each part is of as great force and effect as all the parts together fo they are efteemed the mutual acts of the refpective parties, each of whom may be bound by either party of the fame. 1 Efp. R. 158. Cro. Eliz. 658. 1 Efp. R. 89. 2 Wilf. 26. 5 Bur. 2827: fame, for the words of the indenture are the words of each party! A deed-poll is faid to be a deed teftifying that only one of the parties to the agreement hath put his feal to the fame, where fuch party is the principal or only perfon whose confent or act is neceffary to the deed: it is therefore a plain deed without indenting, and is used when the vendor, for example, only feals, and there is no need of the vendee's fealing a counter-part, because the nature of the contract is fuch as to require no covenant from the vendee. Every deed that is pleaded fhall be intended to be a deedpoll, unless it be alledged to be indented. A deed-poll is the fole deed of him that makes it; and the words thereof shall be said to be his words, and bind him only. The leafe need not be proved in an action of debt for the performance of covenants therein, judgment and suggestion of damages to be affeffed on the writ of enquiry; for the party is eftopped to fay that the leafe was not duly executed. Whenever a lease is pleaded as an indenture, it must be fo alledged. A party who has executed a lease shall not be permitted to acknowledge it; but it must be proved by the subscribing witness. Of a Leafe by Writing without Deed. A lease for a term of years may be created by writing without deed. The ftatute 29 Car. 2. c. 3. /. 3. enacts, that "No leafes, eftates, or interefts either of freehold or term. of years, or any uncertain interest (not being copyhold or customary intereft) of, in, to, or out of any meffuages, &c. fhall be affigned, granted, or surrendered, unless by deed or note in writing, figned by the party so affigning, granting, or furrendering the fame, or their agents thereunto lawfully authorized by writing, or by act and operation of law." In the cafe of Fry and Philips, one Jones granted a leafe for 99 years, if three perfons should fo long live. The executrix of the grantee affigned to one Peninton by indorsement on the lease in these words, "I affign all my title, &c, "to Mr. Thomas Peninton for fix guineas;" which writing was 66 was neither fealed, delivered, nor ftamped. Peninton en tered, and exactly in the fame manner affigned to one Fry, who entered and was poffeffed; but in 1756 gave up the poffeffion. The executrix of the grantee was then dead. Her.executor had never entered or done any act of ownership; but in 1770 he regularly affigned to Fry: at that time, however, Philips was in poffeffion under a grant from Jones, made by him on Fry giving up the poffeffion: The queftion for the opinion of the court was, "Whether any thing paffed to Fry by the laft affignment made to him by "the executor of the executrix of the grantee, which executor himself never was in poffeffion ?" which question the court did not determine; because, upon the whole of the cafe, Fry had a right. Lord Mansfield told the counfel that a point had occurred to the court which had not been mentioned in the argument. If the indorsement by the executrix carried a legal intereft in the term to Peninton, from Elizabeth French, and Peninton's indorsement to Fry had a like effect, then Fry had the whole leafe in him; and by the statute of Frauds, 29, C. 2. c. 3. s. 3. it may be affigned by a note in writing; and fuch a note in writing need not be either fealed, delivered, or ftamped, as a deed muft. His Lordship mentioned a cafe in the Common Pleas, Trinity term, 1755, between Farmer and Rogers, in which it was refolved," that by the ftatute of Frauds and Perjuries a lease for any term of years may be created by writing without deed, and that the fame may be furrendered by deed or note in writing: and the court held that there was no occafion for any stamp duty upon the note or indorsement, it not being by deed: [which however is now rendered neceffary, it should feem, by ftat. 23 G. 3. c. 58.] So, in the prefent cafe, the legal intereft in this term might be affigned by a note in writing. Mr. Juftice Afton was of the fame opinion. Elizabeth French, by writing under her. hand, indorfed on the back of the indenture, affigned to Peninton. This writing was neither fealed, delivered, nor ftamped. Peninton entered and then affigned in the fame manner to Fry. The executor of Elizabeth French had nothing to convey.-Lord Mansfield. The court must take the 1 ST. R. 3. 2 Bl. Rep. 1171. rz Mod. 610. 2 Ld. Raym. Bull. N. P. 177. Bull. N. P 84, the whole of what is ftated in the cafe, and upon the whole of the cafe the plaintiff has a right. Of a Leafe by Parol Demife. A lease may likewise be made by parol demife, or verbal contract with refpect to which, by the before-mentioned ftatute, 29 C. 2. c. 3. commonly called The Statute of Frauds and Perjuries, several things must be evidenced by writing, of which, before that ftatute, parol evidence had been fufficient. By that ftatute, all leafes, eftates of freehold, or term of years, created by parol and not put into writing and figned by the parties making the fame, or their agents thereunto lawfully authorized by writing, fhall have the effect of eftates at will only; except leafes not exceeding three years from the making, whereupon the rent referved amounts to two thirds of the improved value; and no fuch estate or intereft fhall be granted or furrendered but by deed, or note in writing. The meaning of the ftatute was, that fuch an agreement fhould not operate as a term. A parol agreement, therefore, to leafe lands for four years, creates only a tenancy at will: but what was confidered as a tenancy at will at the time when the aft paffed, has been fince properly conftrued to enure as a tenancy from year to year. So, a general parol demife at an annual rent, where the bulk of the farm is enclosed, and a small part of it lies in the open common fields, is only a leafe from year to year, and not for fo long as the ufual course of hulbandry extends. A leafe for three years, to commence in futuro by parol, is not warranted by the statute of Frauds. But a lease by parol for a year and a half, to commence after the expiration of a lease which wants a year of expiring, is a good lease within the statute; for it does not exceed three years from the making. If land be leafed to A for a year, and fo from year to year as long as both parties fhall agree, this is a lease for two years certain; and if the leffee hold on after two years, he is not a leffee at will, (as the old opinion was) but for a year |