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.