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 another witness, that they had each known one instance in the city of New York, in which the party distraining for rent 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 an 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 to Stewart, the original lessor and reversioner. The right of distress is incident to, and inseparable from, the reversion; 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. Wood-fall 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 Stewart. 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.

(1846). The landlord's remedies for rent at present depend on the circumstance of the case, but one or more of the following courses are usually open to him: (a) Action of debt; (b) on contract; (c) covenant, express or implied, the latter if rent is reserved, but there is no express agreement for its payment; (d) re-entry or ejectment if the right of re-entry is expressly reserved; (e) summary proceedings to recover the land in the cases provided for in such statutes as that of New York Code Civ. Proc. §§ 2231 - 2265; (f) under some circumstances an action for use and occupation. See N. Y. R. P. L., § 190. - Ed.

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 regard 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 coeval with the common law itself; and then it forms 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.

(3.) Is Estopped to DENY His Landlord's Title.

Denio, C. J., in

Vernam V. Smith

15 New York, 327. - 1857.

It was a good plea, at common law, in an action of debt for cent, by virtue of a parol demise, of upon a lease not under the seal of the lessee, that the plaintiff had nothing in the tenements at the time of the lease; Co. Littt. by Thomas, 415; Sylli-van v. Stradling) 2 Wils. 217; and the reason of this is, according to

Lord Coke, that "in every contract there must be quid pro quo, and therefore, if the lessor hath nothing in the land, the lessee hath not quid pro quo, nor anything for which he should pay a rent." If the lease be made by deed indented, then both parties are concluded, and this plea cannot be interposed. The lessee in that case is bound by a technical estoppel, by deed, to deny that the term passed by the lease. Further exceptions to the rule of the common law, have been created by the modern doctrine of equitable estoppel, arising out of circumstances unconnected with a deed. Thus, it has been very often decided that in debt or assumpsit for use and occupation, the defendant cannot deny the title of the lessor. Lewis v. Willis, 1 Wils. 314; Cooke v. Loxley, 5 Term. R. 4; Phipps v. Schul-thrope, 1 Barn. & Aid. 50; Fleming v. Gooding, 10 Bing. 549; Dolby v. Iles,II Adolph. & Ellis, 335; Curtis v. Spitty, 1 Bing. N. C. 15; Agar v. Young, 1 Carr. & Marsh. 78. The action for the use and occupation is given by statute, and it arises where there has been an enjoyment by the defendant of the plaintiff's lands or tenements, under a demise or agreement not made by deed. Stat. 11 Geo. II., ch. 19, § 14; 1 R. S. 748, § 26. The statutes do not declare that the defendant in this action shall be precluded from pleading nil habuit in tenementis; but inasmuch as the action is given for the use and occupation, which presupposes an entry and enjoyment of the premises, the courts have constantly held that the defendant was estopped from showing that the lessor was not the owner of the land. The judges have applied the equitable principles referred to in the construction of the statute. "I cannot help thinking," said Lord Chief Justice Willes, "but that they, the Legislature, intended to take away the plea of nil habuit, etc., as if they had said, after the tenant has enjoyed the land by a demise or permission of the landlord, he shall not be permitted to pry into the title, and pick holes in settlements and wills." Syllivan v. Stradling, supra. Lord Ken-yon, in Cooke v. Loxley, said that the rule precluding the tenant in this class of actions from contesting the title of the landlord, was not a mere technical rule, but one founded in public convenience and policy.