THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LlNOOLNHlNNAKCUr LONDON, W C.-A PLATT ON LEASES, r A TREATISE LAW OF LEASES; :srotm& anlr Jlac^&entjS* BY THOMAS PLATT, ESQ., OF Lincoln's inn, barrister-at-law ; AUTHOR OF "a PRACTICAL TREATISE ON THE LAW OF COVENANTS. METUIT QUI SPEKAT. IN TWO VOLUMES. VOL. I. LONDON: A. MAXWELL AND SON, 32, BELL YARD, LINCOLN'S INN ; AND HODGES AND SMITH, GRAFTON STREET, DUBLIN. MDCCCXLVII. D LONDON: BRADBl'ItV AND RVANS, PRINTRRS, WHITEFRIABS. T mi 5? u. PREFACE. If the value of a work depended on the interest of the subject selected, the one now submitted to the Profession might fear- lessly compete for favourwith its many distinguished predecessors; for few there are who pass through life unaffected by the dis- cussions contained in it^ either directly as principals, or indirectly in a representative character. But I am aware that neither the importance of a theme nor its practical utility can supply the defects of imperfect analysis or inadequate illustration. With this principle in xievr at the commencement and during the progress of my task, I earnestly applied myself to the branch of Law investigated in these pages. To perform my duty, I have exerted my best powers, neither shrinking from labour, nor yielding to anxiety or fatigue. The result in print, how- ever, assures me that I proposed to myself a standard beyond my reach ; and T am painfully sensible of the difference between design and execution. From these remarks, it will appear, that whatever errors may be discovered in my work are traceable to want of judgment, and not to indolence. In extenuation, I can only say, that, in possession of more learning than has fallen to my lot, I should have produced a better book. At the same time, I trust that my endeavours will not be wholly futile ; that they may at least put the Reader in the way of obtaining further G9SS43 LAW VI PREFACE. information from the Reports and Statutes referred to, the only legitimate basis of a treatise of this nature. To anticipate an objection which I cannot but foresee, it may be well to state, that I have thought it more advisable in a few instances to examine under one head the several subordinate and collateral bearings of my subject, than to distribute them under separate divisions of the work. This will be particularly observable in the Chapter on the Reddendum, where not only the considerations pecuharly appropriate to that division, but the ramifications incident to it, such as the suspension and apportionment of rent, the efi'ect of the statutes of limitation on the lessee's hability to pay rent, and the rehef afforded in Equity, have also been discussed. A similar course has been pursued in the Chapter on Renewals. The convenience of the plan compensates for a departure from a more logical arrangement. The general rules for the construction of a Lease, and the law relating to its alteration by erasure, cancellation, and the like, as well as to its being duly executed, being common to all deeds, have not been specifically noticed, as they offer nothing particularly applicable to, or illustrative of, the doctrine under consideration. Some perhaps may think that needless care has been taken to distinguish the various modes of spelling the names of the same cases. To me, however, it appears, that, in an arduous Profession like the Law, every aid to economise time and trouble should be rendered available. One person may be familiar with H case by one name, say, Hilman v. Hore, (as in Carth. 247 ;) another, with the same case by another name, say, Holman v. lloarc, (as in '<'> Salk. 152;) and as each would search for it only in its appropriate place in an alphabetical list of Cases, one ()(■ the two would Ix' disappointed, unless it were entered PREFACE. VU under both. It has, therefore, been deemed advisable to notice the variations whenever the change or transposition of a letter would assign to the word a different position in the list. The utmost caution, however, is insufficient to prevent such occasional mistakes as Chaundflower for Chanudfiower, (as in Vol. II., p. 312, n. (w), and Corfe for Corpe, (as in Vol. II., p. 229, n. (i) ). It is hoped that they are few and far between. Those discovered are corrected in the Table of Cases prefixed to this volume, where the proper names will be found. With much the same object, and to prevent confusion and mistake, the Reports, instead of being referred to by their initial letters, (as B. and A., for Barnewall and Alderson,) have, in general, the first syllable at least of the Reporters' names men- tioned ; the utility of which will be obvious from the following comparison, which shows how many different Reporters, by a sin- gular coincidence, are recognised by the same initials, thus : — B. & A. may signify either B. & B. B. N. C. C. & M. {Barnewall & Alderson, or Barnewall & Adolphus ; {Broderip & Bingham, or Ball & Beatty ; r Brooke's Novel Cases, < or [ Bingham's New Cases ; {Crompton & Meeson, or Carrmgton & Marshman ; r Carrington & Payne, C & P. „ „ j "or D. &C. D. P. C. D. & W. Craig & Phillips ; Deacon & Chitty, or Dow & Clai-k ; Dow's Parhamentary Cases j or Bowling's Practical Cases ; Drury & Warren, [ Drui'y & Walsh ; rSir William Jones, J J Sir Thomas Jones, " " I or, [^ Jones, Irish Exchequer VUl PREFACE. r Moody & Malkin, M. & M. may signify either Montagu & MacArthm* ; -\. M. & R. M. & S. Pha. R. & M. S. & S. r Manning & Ryland, ■< or [ Moody & Robinson ; {Maule & Selwyn, or Moore & Scott ; ("Phillips, i or L Phillimore ; {Ryan & Moody, or Russell & Myhie ; {Simons & Stuart, or Sausse & Scully ; and, probably, additions to tbese may easily be made. The Abbreviations adopted in this Work will succeed the Table of Cases. In citing the Reports, I have not contented myself with noticing the first page of the book containing the case quoted, but have usually also pointed out the particular place in which an authority for the proposition in question is to be found ; a plan by which reference will be greatly facilitated. The difficulty of procui'ing good Precedents of Leases is greater than can be conceived. They are often prepared by persons not very conversant with Conveyancing, and are pro- portionably loose and unsatisfactory. Those contained in the Appendix to this work have been selected from a large number, as best calculated, from their various objects, to prove of practical serWcc. In preparing the detached Forms, I have aimed at a middle course, and, while divesting them of much of the abundant I)lirascology by which they have hitherto been characterised, liavc endeavoured to preserve the technical style and cantilena so dr.siral)Ic in all formal Instruments. It is scarcely necessary PREFACE. IX to add that a variety of Forms, not in the first part of the Appendix, will be found amongst the Precedents. My reasons for omitting to supply some short Precedents under the Act of 8 & 9 Vict. c. 1 24, ^' to facilitate the granting of certain leases," lie in a narrow compass. The first and prin- cipal one is, that I believe leases of the description alluded to are, and will continue, almost wholly unknown in practice. With great submission to those who entertain a dififerent opinion, I cannot think that a good system which renders reference to a foreign instrument necessary to the construction of the one by which parties profess to be bound; their own being in fact but a brief abstract of a document to which they can rarely have access otherwise than through the agency of their professional adviser, and being comprised in terms which are to signify much beyond their ordinary import. I doubt whether the diminution of expense will, after all, be so great as the advocates for the Act anticipate ; for the length of a quali- fication, where necessarily introduced, will, in a great degree, counterbalance the sa\dng effected by the adoption of the Statutory form. Suppose, for example, a party to take a lease on the understanding that he is to pay rent, and to repaii" during the term, and to yield up possession of the premises in repair at the end of the term, without reference to accidents by fire : In this case, he would, in compliance with the Statute, covenant "to pay rent," (as in column I., No. 1.,) "and to repair," (as in column I., No. 3,) " and" (varying the style) " that he will leave premises in good repair," (as in column I., No. 10;) but, on referring to column II. of that number, it appears that those words signify that he is not to leave them in good repaii" under all circumstances, but is to have the benefit of an exception of "reasonable wear and tear X PREFACE. and damage by fire," which would be clearly inconsistent with the former general covenant to repair. The Draftsman would, therefore, be put to the alternative of declaring, in some form of words, that the covenant to yield up in repair should not be construed to contain the exception, or of setting out the covenant at full length without the exception ; thus presenting a sad medley of ordinary and statutory forms in the same deed. It is fortunate, however, that they who desire their leases to be prepared in conformity with the Act, which, together with the abridged Forms, is inserted in the Appendix, Vol. II., p. 577, et seq., will find in it ample directions for their guidance. The real evil to be complained of is not so much the length of the usual clauses, as the severe pressure of the stamp duties, .from which even the Counterpart and Duplicate are not exempt. An analytical Table of Contents, with corresponding pages, and a copious verbal Index, by rendering the work accessible in its detail, have been considered sufficient to supersede a marginal abstract throughout the work. And now I dismiss a subject which has engaged my attention for some years in the intervals of business, and cannot but feel that, although in the toil of this life our endeavours fail of success, the mind finds a secret reward in the consciousness of an attempt to be useful. , ^ . ;, . THOMAS PLATT. 4, Stone Buildings, Lincoln's Inn, 'dOthJunc, 1847. ANALYSIS. INTRODUCTORY REMARKS, i. 1 lart m dFirst. OF THE DEFINITION AND GENERAL NATURE OF A LEASE, i. 9 Distinguished from an assignment, i. 9 iPatt tf^t Second, OF THE SUBJECTS OF DEMISE, i. 24 Land, i. 24 Incorporeal hereditaments, i. 24 Chattels, i. 26 lait if)t Cf)trtr. OF THE CONTRACTING PARTIES ; AND OF THEIR CONTRACT OR AGREEMENT, i. 28 CHAP. I. — Who may be lessors, i. 28 Sect. I. — With reference to personal capacity, i. 28 I.— Infants, i. 28 At common law, i. 28 By statute, i. 34 11 Geo. 4 & 1 Will. 4. c. 65 ; i. 34 II. — Persons of unsound mind, and their Committees, i. 37 At common law, i. 37 By statute, i. 38 11 Geo. 4 & 1 Will. 4. c. 65 ; i. 38 5 & 6 Vict. c. 84; i. 41 III. — Weak and aged persons, i. 44 XU ANALYSIS. OF THE CONTRACTING PARTIES, kc.—{conti7me(l).' CHAP. I, — Who may be lessors — {contmued). Sect. I. — With reference to personal capacity — {continued). IV. — Persons intoxicated, i. 45 V. — Persons deaf, dumb, and blind, i. 46 VI. — Persons under duress, i. 47 VII. — Outlaws, i. 47 VIII.— Feme sole, i. 47 IX. — Feme covert, i. 48 At law, i. 48 In equity, i. 48 Sect. II. — With reference to estate; and herein of leases by estoppel, i. 49 I. — Owner of interesse termini, i. .50 Disseisee, i. 50 Heir before entiy, i. 50 Bargainee before enrolment, i. 50 Dowress before assignment of dower, i. 50 Disseisor, i. 51 Abator, i. 51 Intruder, i. 51 Cestui que use before entry, i. 51 Remainder-man and Reversioner, i. 51 II. — As to leases by estoppel, i. 52 III. — Tenant in fee-simple, i. 65 IV. — Tenant in tail, i. 65 At common law, i. 65 By statute of 32 Hen. 8. c. 28 ; i. 66 3 & 4 Will. 4. c. 74 ; i. &Q 11 Geo. 4 & 1 Will. 4. c. 65, as to infant and lunatic tenants in tail, i. 93 v.— Tenant for life, i. 93 Tenant by the curtesy, i. 93 Tenant in tail after possibility of issue extinct, i. 93 Tenant in dower, i. 93 Tenant for life and Remainder-man, i. 93 VI. — Tenant for term of years, i. 101 Distinction between ^underlease and assign- ment, i. 101 VII. — Tenant from year to year, i. 103 VIII. — Tenant at will, i. 104 IX. — Copyholder, i. 105 X. — Tenant at sufferance, i. 105 XI. — Tenant by Elegit; Statute Merchant; Statute Staple; and Recognizance in nature of a Statute Staple, i. 122 xn. — Cestui que trust, i. 123 ANALYSIS. Xlll OP THE CONTRACTING PARTIES, kc— (continued). . CHAP. I. — Who may be lessors — [continued). Sect. III. — With reference to number and connection, i. 124 I. — Joint-tenants, i. 124 Where they concur in leasing, i. 125 Where either separately leases his own share, i. 127 Effect of severance of tenancy, i. 128 Effect of lease on tenancy, i. 128 II. — Tenants in common, i. 131 Their right to join or sever in leasing, i. 131 Their right to join or sever in action, in respect of their demise, i. 132 If action in the realty, i. 132 Ejectment, i. 132 Avowry, i. 132 Waste, i. 132 If action in the personalty, i. 132 Debt, i. 133 On their joint demise, i. 133 Taking derivatively, i. 134 On their separate demise, i. 134 Covenant, i. 134 If cause of action entire, i. 134 If cause of action separate, i. 135 Taking derivatively, i. 135 Usual mode of leasing, i. 136 III. — Coparceners, i. 137 Their right to join or sever in leasing, i. 137 Effect of severance in leasing, i. 138 IV. — Husband and wife, i. 138 At common law, i. 138 By statute of 32 Hen. 8. c. 28, i. 152 3 & 4 Will. 4. c. 74 ; i. 158 Summary, i. 163 V. — Mortgagor and mortgagee, i. 163 When granted by mortgagor before mortgage, i. 163 Wlien granted by mortgagor alone after mortgage, i. 164 Effect of notice given by mortgagee to lessee, i. 165 When granted by mortgagee alone, i. 173 When granted by mortgagee and mortgagor to- gether, i. 173 Usual practice, i. 174 XIV ANALYSIS. OF THE CONTRACTING PARTIES, kc— {continued). CHAP. I. — Who may be lessors — {continued). Sect. IV. — With reference to office I, — Corporations in general, i. 176 Ecclesiastical or spiritual ; i. 176 Temporal or lay, i. 176 Eleemosynary, i. 176 Civil, i. 176 Sole, i. 177 Aggregate, i. 177 II. — The Crown and its officers, i. 184 (a) 1. — With reference to hereditaments lying within the ordering and survey of the Exchequer in England or Wales ; in Ireland ; and in the islands of Man and Alderney, i. 185 2. — With reference to hereditaments in Scotland, i. 204 3. — With reference to hereditaments within the ordering and survey of the Chancellor and Council of the Duchy of Lancaster, i. 208 4. — With reference to hereditaments parcel of the Duchy of Cornwall, i. 217 At common law, i. 218 By statute of 1 & 2 Will. 4. c. 6 ; i. 218 1 & 2 Vict. c. 101 ; 1. 220 6. — With reference to hereditaments purchased by, or descended or devised to, the Crown, i. 221 6. — With reference to hereditaments forfeited or escheated to the Crown, or taken by the Crown by reason of their having been purchased by, or to the use of, or in trust for, an alien, i. 222 7. — With reference to other requisites and matters of form connected with Crown leases, i. 230 III, — Ecclesiastical and eleemosynary corporations, i. 238 At common law, i. 238 By statute of 32 Hen. 8. c. 28 (enabling), i. 239 1 Eliz. c. 19 (restraining), i. 239 1 Jac. 1. c. 3 (restraining), i. 240 13 Eliz. c. 10 (restraining), i. 241 ■ 14 Eliz. c. 14 (explanatory), i. 241 c. 11 (enabling), i. 242 18 Eliz. c. 11 (restraining), i. 244 5 Geo. 3. c. 17 (enabling), i. 247 13 Geo. 3. c. 81 (restraining), i. 249 41 Geo. 3. c. 109 (inclosurc — en- abling), i. 249 : and 6 & 7 Will. 4. c. 11.5; i. 249 (a) Aud see Tiible of Addcmla in this Volume, ANALYSIS. XV OF THE CONTRACTING PARTIES, kc— (continued). CHAP. I. — Who may be lessors — {continued). Sect. IV. — With reference to office — (continued). III. — Ecclesiastical and eleemosynary, &c. — (continued). By statute of 6 Will. 4. c. 20 (restraining — re- newal), i. 251 6 & 7 Will. 4. c. 64 (explanatory) i. 256 4 & 5 Vict. c. 39 (enabling — aug- mentation), i. 256 5 Vict. Sess. 2. c. 27 (enabling — farming), i. 257 5 & 6 Vict. c. 108 (enabling — building), i. 254. 269 18 Eliz. c. 6 (restraining — universi- ties, &c. — corn rent), i. 282 39 Eliz. c. 5 (restraining — hospitals, &c.), i. 283 21 Jac. 1. c. 1. (restraining — perpe- tual), i. 283 22 Car. 2.C. 11 (enabling — Newgate market), i. 283 Principal results of these enactments, i. 284 Necessity for consecration or induction, &c., of lessor, i. 288 Sufficiency of parson being parson de facto, i. 290 As to confirmation of ecclesiastical leases, i. 292 When granted by Archbishop or Bishop, i. 293 Dean, i. 297 When solely seised, i. 297 When seised jointly with Chapter, i. 297 Prebendary, i. 300 Archdeacon, i. 301 Canon, i. 301 Parsons and vicars, i. 301 Perpetual curate, i. 304 Confirmation by construction of law, I 304 When by corporation aggregate, i. 304 Time of confirmation, i. 304 Duration of, i. 307 Apportionment of, i. 308 Effect of non-residence, i. 309 ■ resignation, i. 310 Evidence — Enrolment, i. 310 Recommendations of Select Committee on Church Leases, in 1839, i. 310 Resolutions of Ecclesiastical Commissioners for England, in April, 1845, i. 311 XVI ANALYSIS. OF THE CONTRACTING PARTIES, kc— {continued). CHAP. I. — Who may be lessors — {continued). Sect. IV. — With reference to office — {continued). V. (rt) — Municiiml corporations, i. 312 At common law, i. 312 By statute of 5 & 6 Will. 4. c. 76 (restraining), i. 312 5 & 6 Vict. c. 104 (explanatory), • i. 318 6 & 7 Will. 4. c. 104 (extending powers), i. 319 2 & 3 Will. 4. c. 69;(elections), i. 319 VI. — Churchwardens and overseers, and others connected with the management of the poor, 1. 320 At common law, i. 320 By statute of 59 Geo. 3. c. 12 ; i. 320 1 & 2 Will. 4, c. 42; i. 325 1 & 2 Will. 4. c. 59; i. 325, n. {b) 2 Will. 4. c. 42; i. 326 4 & 5 AVill. 4. c. 76 (New Poor Law Act), i. 327 5 & 6 Will. 4. c. 69; 1. 328 5 Vict. Sess. 2. c. 18; i. 381 VII. — Queen Consort, i. 332 At common law, i. 332 By statute of 39 & 40 Geo. 3. c. 88; i. 333 viii. — Duke of Cornwall, i. 333 At common law, i. 333 By statute of 5 Vict. Sess. 2. c. 2; i. 334 7 & 8 Vict. c. 65; i. 337 IX. — Master of the Rolls; i. 343 Powers conferred by 12 Car. 2. c. 36 ; confirmed by 13 Car. 2. stat. 1. c. 14; i. 343 17 Geo. 3. c. 59 ; i. 343 6 & 7 Will. 4. c. 49 ; i. 344 Rolls estate vested in Queen by 1 Vict. c. 46, a.s part of the land revenues of Crown, i. 344 X. — Trustees in general, i. 345 XI. — Trustees of charities, i. 347 XII. — Executors and administrators, i. 366 Difference between, i. 366 Joint executors, i. 367 Joint administrators, i. 367 Administrator ratione minor is o'tatls, i. 368 38 Geo. 3. c. 87 ; i. 368 Administrator dtircoite absentia, i. 368 (n) By mistake for iv. ANALYSIS. XVU OF THE CONTRACTING PARTIES, kc— (continued). CHAP. I. — Wno MAY BE LESSORS — (continued). Sect. IV. — With reference to office — (continued). XIII. — Guardians, i. 371 1. By nature, i. 371 2. For nurture, i. 371 3. In socage, i. 371 4. Testamentary, 1. 378 5. By election, 378 6. By appointment of Lord Chancellor, i. 378 Effect of lease for a term exceeding infant's mi- nority, i. 380 Usual practice, 1. 381 XIV. — Assignees of bankrupts, i. 382 6 Geo. 4. c. 16 ; i. 382 XV. — Assignees of insolvents, i. 382 1 & 2 Vict. c. 110; i. 382 5 & evict, c. 116 (Protection from process),!. 383 7 & 8 Vict. c. 96 ; i. 383 XVI. — Committees of lunatics, i. 384 XVII. — Lords of manors, as to wastes, i. 384 13 Geo. 3. c. 81 ; i, 384 XVIII. — Allotment Wardens, 1. 385 8 & 9 Vict. c. 118 ; i. 385 XIX. — Receivers, i. 389 XX.— Bailiffs, i. 390 XXI. — Agents, i. 390 XXII. — Donees of power of leasing, i. 394 1st. As to the nature and design of the power, i. 394 2ndly. As to the instrument creating the power, i. 395 3rdly. As to the rules for the construction of the power, i. 397 4thly. As to the exercise or execution of the power, i. 399 1. As to the parties by whom, and, where consent is required, with whose consent, the power is to be exercised, i. 399 2. As to the time of exercising the power, i. 404 3. As to the instrument, and mode of execution, and attestation, 1. 406 4. As to the parcels, i. 411 5. As to the term authorised, and the period of its commencement, i. 424 Effect of excessive execution, i. 436 At Law, i. 436 In Equity, i. 437 VOL. I. c XVIU ANALYSIS, OF THE CONTRACTING PARTIES, Sic— {continued). CHAP. I. — Who may be lessors — {continued). Sect. IV. — With reference to office — {continued). XXII. — Donees of power of leasing — {continued). Commencement of term, i. 442 1st. With reference to powers that simply authorise leases in possession ; or au- thorise leases in possession, and con- tain also terms prohibiting leases in reversion, i. 442 Distinction between — Leases in possession, i. 442 Leases in reversion, i. 443 Reversionary leases, i. 444 Leases of the reversion, i. 444 Concurrent leases, i. 444 2ndly. As to leases under powers that authorise leases in possession or reversion, i.450 3rdly. As to leases under powers that authorise leases generally, but are silent as to the period of commencement, i. 454 6. As to the rent to be reserved, i. 465 7. As to the right of re-entry on non-payment of rent, &c., i. 493 Where period of indulgence allowed, i. 493 Extension of, i. 493 Abridgment of, 494 Where power silent as to indulgence, i. 494 Where conditional on insufficiency of dis- tress, i. 506 Where conditional on rent being lawfully demanded, i. 511 8. As to execution of a counterpart by lessee, with covenant for payment of rent, &c., i. 513 9. As to the exemption from punishment for waste, i. 514 10. As to other covenants and conditions required by the power, i. 615 Where power requires all usual and reason- able covenants, i. 515 Where power refers to covenants, &c., con- tained in another instrument, i. 515 Where power refers to covenants, &c., usual in the country, i. 516 Where power is silent, i. 617 11. As totheeflcctof thcexecutionofthepower,i.519 12. Ah to the conHe(iucnccs of a defective exe- cution of the power, i. 522 6thly. As to the extinguishment and suspension of the powci-, i. 525 ANALYSIS. XIX OF THE CONTRACTING PARTIES, kc— (continued). CHAP. II. — Who may be lessees, i. 528 Sect. I. — With reference to personal capacity, i. 623 I. — Infants, i. 528 II. — Persons of unsound mind, i. 530 11 Geo. 4 & 1 Will. 4. c. 65 ; i. 530 III. — Feme sole, i. 530 Effect of marriage, i. 530 IV. — Feme covert, 1. 531 V. — Aliens, i. 531 Alien merchants, friendly, i. 531 Alien artificers, 32 Hen. 8, c. 16 ; i. 551 Alien enemies, infidels, i. 534 Denizens, i. 534 Naturalized aliens, i. 534 VI. — Outlaws, i. 534 VII. — Attainted persons, i. 535 VIII. — Papists, i. 535 11 & 12 Will. 3. c. 4 (Allegiance and Supre- macy, &c.), i. 535 18 Geo. 3. c. 60 ; i, 535 10 Geo. 4. c. 7 (Removal of Disabilities), i. 536 II. — With reference to estate, i. 537 Copyholder, i. 537 III. — With reference to number and connection, i. 537 I. — Joint tenants, i. 537 II. — Tenants in common, i. 540 III. — Husband and wife, i. 540 Husband's exclusive power, 1. 540 Rights of wife surviving, 1. 540 IV. — With reference to office, i. 541 I. — Corporations in general, i. 541 II.— The Crown and its officers, i. 543 Leases taken in names of Commissioners of Woods, Forests, Land Revenues, Works, and Buildings, under 10 Geo. 4. c. 50, and 2 & 3 Will. 4. c. 1, 1.544 Provisions of acts, i. 544 et seq. 3 & 4 Will. 4. c. 69 (Scotland), i. 548 5 & 6 Will. 4. c. 68 (Scotland), i. 548 III. — Ecclesiastical bodies, i. 549 IV. — Churchwardens and overseers, and others connected with the management of the poor, i, 551 c2 XX ANALYSIS. OF THE CONTRACTING PARTIES, kc— {continued). CHAP. III. — Of leases between particular individuals, i, 559 By Principal to Steward or Agent, i. 559 By Client to Attorney, i. 559 By Ward to Guardian, i. 559 By Cestui que trust to Trustee, i. 559. By Mortgagor to Mortgagee, i. 659 CHAP. IV. — Of the contract or agreement, i. 567 Sect. I. — With regard to the signature, i. 568] II. — In what cases equity dispenses with signature on the gi'ound of part performance, i. 571 III. — Of the form of the agreement, distinguishing herein an agreement for a lease, from an actual lease, i. 570 IV. — Of the effect and consequences of the agreement, i. 611 I.— At law, i. 611 II. — In equity, i. 621 V. — Of the admissibility of parol evidence to explain or annul the written agreement, i. 640 OF THE TERM OF THE LEASE, i. 652 CHAP. I. — As TO leases at will, i. 652 II. — As TO leases for any aliquot part of a year ; FOR A YEAR ; or from YEAR TO YEAR, i. 657 III. — As TO LEASES FOR AN ABSOLUTE TERM OP YEARS, i. 668 IV. — As TO LEASES FOR A TERM OF YEARS DETERMINABLE WITH A LIFE OR LIVES, OR ON ANY OTHER EVENT, i. 670 V. — As TO LEASES FOR A TERM, WITH THE GRANT OF AN ACCESSIONAL TERM ON AN EVENT, i. 673 VI. — As TO LEASES FOR LIFE OR LIVES, i. 678 VII. As TO RENEWABLE LEASES, i. 703 Sect. I. — Of the nature of " Tenant Right " of Renewal, i. 703 II. — Of the express contract for renewal, i. 706 I. — As to the renewal being optional or compulsory, i. 706 ^. — As to the quantity of interest contracted for, i. 707 III. — As to the acts of the parties being received in evi- dence in aid of construction, i. 725 IV. — As to the liabilities at law of the lessor, and persons claiming through or under him, i. 731 v. — As to the rights at law of the lessee, and persons claiming through or under him, i. 733 VI. — As to the liabilities in equity of the lessor, and per- sons claiming through or under him, considered particularly with reference to specific performance of the contract to grant a renewal, i. 735 ANALYSIS. XXI OP THE TERM OF THE LEASE— (cowimwerf). CHAP. VII. — As TO RENEWABLE LEASES — {continued). Sect. II. — Of the express contract for renewal — {continued). VII. — As to the rights in equity of tlie lessee, and persons claiming through or under him, 1. 747 VIII. — As to the relief given in equity against the tenant's laches in applying for a renewal, i. 751 HI. — As to trusts being grafts on renewed term, i. 762 IV. — As to the obligation of tenant for life to renew, i. 770 V. — As to fines for renewals, and contribution, i. 774 VI. — As to the surrender of existing interests as a preliminary step to renewal, i. 787 OF THE INSTRUMENT OF DEMISE, ITS ESSENTIAL AND FORMAL PARTS, ii. 1 CHAP. I. — Of leases by writing, parol, and deed, ii. 1 II. — Of the Date, ii. 10 III. — Parties, ii. 12 IV. — Recitals, ii. 17 V. Testatum, ii. 19 VI. — Parcels, and clauses of reversion and estate, ii. 25 VII. — Exceptions and reservations, ii. 37 VIII. — Habendum, ii. 47 Sect. I. — As to its operation with regard to the parcels, ii. 48 II. person, ii. 48 III. estate, ii. 49 I. — As to certainty of commencement, ii. 50 In interest or enjoyment, ii. 50 In computation of time, ii. 50 By reference to an event certain, ii. 51 By reference to a contingency, ii. 51 1st. — As to leases commencing in 2'>'rcvsenti, ii. 53 1. In immediate possession, ii. 63 Effect of words from the day of the date, &c., ii. 54 2. Concurrent : Lease of rever- sion, ii. 57 2udly. — As to leases infutwo, ii. 59 1. Reversionary lease, ii. 59 2. Lease in reversion, ii. 69 New or old style, ii. 66 Holding by deed, ii. 66 Holding by parol, ii. 67 II. — As to certainty of duration, ii. 68 1st. By express enumeration of years, ii. 69 2ndly. By reference to a certainty, ii. 70 3rdly. By matter expostfado, ii. 72 XXll ANALYSIS. OF THE INSTRUMENT OF DEMISE, kc— (continued). CHAP. VIII. — Of the habendum — [continued). Sect. III. — As to its operation with regard to the estate — {continued). ui. — As to certainty of end, ii. 75 Collateral determination, ii. 75 IV. — As to its operation" with regard to the premises of the lease, ii. 77 Where a ceremony is requisite to estate in premises, but not to habendum, ii. 79 Where a ceremony is requisite to both, ii. 80 Where a ceremony is not requisite to either, ii. 70 Diflference between express and implied estate in pre- mises, ii. 81 CHAP. IX. — Of the reddendum, ii. 82 Sect. I. — Its nature and object, i. 82 II. — Out of what property the rent issues, ii. 85 III. — Of the form of the reddendum, ii. 86 I. — With reference to the person who is to have the rent, and the period during which it is to be paid, ii. 88 II. — With reference to the place of payment, ii. 100 III. — With reference to the amount and kind of rent, ii. 100 IV. — With reference to the time of payment, ii. Ill Days of grace, ii. 116 V. — With reference to payment in case of fire, &e., ii. 119 IV. — Of the general rules for construing the reddendum, ii. 126 V. — Of the suspension, extinguishment, and apportionment of rent by circumstances independent of the original contract, ii. 127 1. — As to a total suspension or extinguishment, ii. 127 Act of lessor, ii. 127 Act of stranger, ii. 129 II. — As to apportionment, ii. 130 Ist. With reference to the land demised, and the estate therein, ii. 130 1. By the act of God, ii. 130 2. By the act of law, ii. 131 3. By the act of the parties, ii. 132 4. By the act of strangers, ii. 135 '2ndly. With reference to time, ii. 138 At common law, ii. 138 By statute, ii. 140 11 Geo. 2. c. 19;ii. 140 4 Will. 4. c. 22 ; ii. 143 Srdly. With reference to the mode of effecting the apportionment, ii. 146 ANALYSIS. Xxiu OF THE INSTRUMENT OF DEMISE, kc— (continued). CHAP. IX, — Of the reddendum — (continued). Sect. VI. — Of the statutes of limitation relating to rent, ii. 147 21Jac. I.e. 16;ii. 147 3 & 4 Will. 4. c. 27 ; ii. 148 3&4 AYill. 4. c. 42;ii. 148 VII. — Of relief in equity against payment of rent, ii, 151 CHAP. X. — Of the covenants, ii. 155 Sect. I. — What covenants are usual, ii. 155 Where lessor seised in fee, ii. 155 Where lessor himself only a lessee, ii. 161 II. — Of the covenant to pay rent, ii. 162 III. — Of the covenant to pay taxes, &c., ii. 169 IV. — Of the covenant to repair, and j-ield up in repair, ii. 182 («) In general, ii. 182 In case of fire, ii. 191 Kind and extent of repairs, ii. 196 What a breach, ii. 206 Eemedy for, at law, ii. 209 Remedy for, in equity, ii. 209 Damages for, ii. 212 Power of entry to lessor to see condition of premises, ii. 216 Covenant by lessee to repair on notice, ii. 216 V. — Of the covenant to insure, ii. 220 Performance of, at law, ii. 220 Performance of, in equity, ii. 224 As to its running with the land, ii. 226 VI. — Of the covenant to restrain trading on the premises ; or to use them in a particular way, ii. 229 Nature of, ii. 229 What a breach, ii. 231 Waiver of, ii. 236 Relief in equity against breach, ii. 237 Injunction to restrain, ii. 237 VII. — Of the covenant in restraint of assignment without license, ii. 238 Whether usual or not, ii. 328 What a breach, ii. 250 Distinction between voluntary and involuntary as- signments, ii. 250 Taking as executor or administrator, ii. 251 Taking by marriage, ii. 251 Taking by patent from Crown on outlawry, ii. 251 Taking as assignee of bankrupt, ii. 252 Taking byjudgment under warrant of attorney, ii. 252 Assignee of insolvent, ii. 254 Devisee, ii. 257 Advertisement for sale, ii. 258 (a) And see Table of Addenda prefixed to Vol. 1. XXIV ANALYSIS. OF THE INSTRUMENT OF DEMISE, kc.~{contmued). CHAP, X. — Of the covenants — (cmtinued). Sect. VII. — Of the covenant in restraint of assignment, &c. —(continued). Mortgage by deposit, ii. 258 Underlease, ii. 259 Agreement, ii. 260 Assignment of part, ii. 260 Letting lodgings, ii. 261 Occupation, ii. 262 On whom binding, ii. 263 Lessee, ii. 264 Executors and administrators, ii. 264 Assignee : — or. Whether the covenant runs with the land, ii. 267 Covenant and condition distinguished, ii. 267 Proof of breach, ii. 276 License, ii. 276 VIII. — Of covenants relating to agriculture and mining, ii. 279 IX. — Of the covenants for quiet enjoyment, ii. 284 Express and implied, distinguished, ii. 284 Object of covenant, ii. 288 General and qualified, distinguished, ii. 291 General rules for construction, ii. 292 Whether words of restriction or qualification attached to a preceding covenant be applicable also to a subsequent covenant otherwise in general terms, ii. 295 Whether words of restriction or qualification attached to a subsequent covenant be applicable also to a preceding covenant otherwise in general terms, ii. 303 Against whose acts a qualified covenant extends, ii. 309 In case of an exception, ii. 314 Assignment of breach, ii. 315 CHAP. XL — Of the proviso for re-entry on nonpayment of RENT, OR NONPERFORMANCE OF COVENANTS, ii. 317 To whom reserved, ii. 317 Construction, ii. 320 Condition and covenant distinguished, ii. 324 Necessity for demand of rent at common law, ii. 333 1st. — As to the place of demand, ii. 333 1. Where no particular place is appointed, ii. 333 2. Where particular place is appointed, ii. 333 2ndly. As to the time of the demand, ii. 336 3rdly. As to the amount of the demand, ii. 338 Operation of 4 Geo. 2. c. 28, ii. 339 Proviso to Huperscde necessity for actionw of ejectment, ii. 345 CITAP. XII. — Of THE counterpart anh duplicate of the lease, ii. 348 ANALYSIS. XXV OF THE DURATION OF THE LIABILITY OF THE COVENANTING PARTIES; AND OF THE EFFECT OF TRANSMISSION BY ACT OF LAW, OR ALIENATION BY ACT OF THE PARTY, OF THE REVERSION, OR THE LEASE, u. 349. CHAP. I. — Of the relative rights and liabilities op lessor AND lessee, ii. 351 I. — Privity of estate, ii. 351 II. — Privity of contract, ii. 351 1. Personal, ii. 351 2. In respect of estate, ii. 351 CHAP. II. — Of the effect produced on the tenancy by the death of the lessor, ii. 357 Sbot. I. — As to his executors or administrators, in point of right, ii. 359 II. liability, ii. 359 III. — As to the lessor's heir, in point of right, ii. 360 IV. liability, ii. 363 V. devisee, in point of right and liability, ii. 365 CHAP. III. — Op the effect produced on the tenancy by the DEATH OP THE LESSEE, ii. 366 Sect. I. — As to his executors or administrators, in point of right, ii. 366 II. liability, ii. 366 1. On testator's covenant to pay rent, ii. 367 2. On other covenants of testator, ii. 372 As to executor's right to an indemnity against future rent, and breaches of covenant, ii. 376 III. — As to lessee's heir, in point of right and liability, ii. 381 IV. devisee or legatee of the term, in point of right and liability, ii. 381 CHAP. IV. — Of the effect produced on the tenancy by the lessor's assignment during life of his REVERSION : CONSIDERED WITH REFERENCE AS WELL TO THE RIGHTS AS THE LIABILITIES OF THE ASSIGNEE, ii. 382 At common law, ii. 382 By statute of 32 Hen. 8. c. 34; ii. 383 8 & 9 Vict. c. 106; ii. 395 CHAP. V. — Op the effect produced on the tenancy by the lessee's ASSIGNMENT DURING LIFE OF HIS TERM ; CON- SIDERED WITH REFERENCE AS WELL TO THE RIGHTS AS THE LIABILITIES OP THE ASSIGNEE : AND OF THE PRIN- CIPLES ON WHICH COVENANTS RUN WITH THE LAND, ii. 400 I. — Where the assignee is bound without being ex- pressly named, ii. 401 II. — Where the assignee is not bound unless expressly named, ii. 405 XXVI ANALYSIS. OF THE DURATION OF THE LIABILITY, kc.—icontinvAiJ). CHAP. V. — Effect of assignment by lessee — [continued). III. — Where the assignee is not bound although ex- pressly named, ii. 408 Who comprised in the term assignee, ii. 419 As to the covenant for indemnity on assignment of lease, ii. 427 CHAP. VI. — Of the effect produced on the tenancy by the BANKRUPTCY OF THE LESSEE, ii. 433 VIL — Of the effect produced on the tenancy by the acts PASSED FOR the RELIEF OF INSOLVENT DEBTORS, ii. 453 VIII. — Of the effect produced on the tenancy by the lessee's ASSIGNING HIS PROPERTY TO TRUSTEES FOR THE BENEFIT OF HIS CREDITORS, ii. 459 OF THE DETERMINATION OF THE LEASE, AND ITS CONSE- QUENCES, ii. 460 CHAP. I. — Of THE DETERMINATION OF THE LEASE BEFORE ITS REGULAR EXPIRATION BY EFFLUXION OF TIME, ii. 460 Sect. I. — By express power conferred by the instrument of demise, ii. 461 II. — By forfeiture ; and herein of waiver, ii. 467 I. — Under the proviso for re-entry, ii. 467 1. As to the lessor's waiver, ii. 468 2. As to the relief at law and in equity from forfeiture occasioned by nonpayment of rent, ii. 468 3. As to relief in equity from forfeiture for breach by the lessee of other covenants than for the pay- ment of rent, ii. 482 II. — By tortious alienation, ii. 492 III. — By disclaimer, ii. 494 III. — By surrender and merger, ii. 499 I. — By act of the party, or express, ii. 501 II. — By operation of law, or implied, ii. 505 IV. — By bankruptcy or insolvency, ii. 516 CHAP. II. — Of the determination of the lease by effluxion of TIME, and of the EFFECT OF HOLDING OVER, ii. 517 4 Geo. 2. c. 28 (double yearly value), ii. 522 11 Geo. 2. c. 19 (double rent), ii. 525 1 Geo. 4. c. 87, (ejectment), ii. 525 1 & 2 Vict. c. 74 (summary remedy in tenancies of small value), ii. 530 9 & 10 Vict. c. 95, (the like ; new small debts act,) ii. 534 ANALYSIS. XXVU ^art tfie ©tflfjtf). OF THE PREPARATION, CUSTODY, PRODUCTION, STAMPING, AND REGISTRATION OF LEASES; AND OF INDORSEMENTS, ii. 539 CIIAP. I. — Of the preparation of the lease and counterpart, ii. 539 II. — Op the custody and production of the lease and counterpart, ii. 541 III. — Op the stamping of the lease and counterpart, and also of agreements for leases, ii. 545 Sect. I. — As to the stamp duties in respect of leases by the Crown, ii. 545 II. — As to the stamp duties on leases or tacks of lands, &c., not belonging to the Crown, ii. 548 On what leases, ii. 548 Regulated by consideration expressed, ii. 553 Penal rents, ii. 556 Cumulative stamps, ii. 557 Instrument referred to — Schedule, ii. 560 Counterpart and Duplicate, ii. 562 Limit of folios, and progressive duty, ii. 563 Exemptions, ii. 563 On bonds for securing payment of rent, ii. 563 III. — As to the stamp duties on agreements for leases, ii. 564 Under 55 Geo. 3. c, 184 ; ii. 564 7 & 8 Vict. 0. 21 ; ii. 565 On license to demise copyholds, ii. 568 CHAP. IV. — Of the registration of leases, ii. 569 When necessary, ii. 569 Effect of registration, ii. 571 At law, ii. 571 In equity, ii. 571 Memorial and contents, ii. 572 Stamp duty on, ii. 575 CHAP. V. — Of indorsements on leases, ii. 576 A TABLE OF THE FORMS AND PRECEDENTS, &c. &c. CONTAINED IN THE APPENDIX. I. 8 & 9 VICT. c. 124 ; ii. 577. An Act to facilitate the granting of certain Leases. II. COMMON FORMS. I. RECITALS. 1. Of a contract for the grant of a lease, ii. 584 2. Of a lease according to its form, ii. 584 3. effect, ii. 585 4. Another form, ii. 585 5. Of an assignment according to its form, where the lease has been previously recited in the deed in preparation, ii. 586 6. Of an assignment according to its effect, where the lease has been previously recited in the deed in preparation, ii. 586 7. Another form, ii. 587 8. Of an assignment according to its form, where the lease has not been pre- viously recited in the deed in preparation, ii. 587 9. Of an assignment according to its effect, where the lease has not been pre- viously recited in the deed in preparation, ii. 587 10. Another form, ii. 588 11. That demised premises vested in assignee after divers mesne assignments, the lease having been previously recited in the deed in preparation, ii. 588 12. Of a contract for the purchase of a lease, ii. 589 13. Of license to assign a lease, ii. 689 14. Of renewals, (concise,) ii. 589 15. Of a surrender of a lease, the lease having been previously recited in the deed in preparation, ii. 589 XXX TABLE OF FORMS AND PRECEDENTS. II. TESTATUM, CONSIDERATIONS. 1. Of rent and covenants, ii. 590 2. Of a money payment, and rent and covenants, ii. 590 3. Of expense in building, and rent and covenants, ii. 690 4. Of a surrender of a lease previously recited, ii. 590 5. not previously recited, ii. 591 6. ' ' wliere surrender made by assignee, whose title has not been recited, ii. 591 III. OPERATIVE WORDS. 1. In ordinary leases, ii. 591 2. In leases under powers, where the power has not been previously recited in the deed in preparation, ii. 591 3. In leases under powers, where the power has been previously recited in the deed in preparation, ii. 592 4. In an assignment, ii. 592 5. In a surrender, ii, 592 IV. PARCELS. 1. Fixtures in Schedule, ii. 592 2. Tolls of a market, ii. 593 3. Grant of a right of way to follow the general words, ii. 593 4. Liberty to use water on certain days, ii. 593 5. Another form, ii. 594 6. In an assignment or surrender of a lease, the lease having been previously recited, ii. 594 7. Where lease, not recited, referred to in parcels, ii. 694 General words, ii. 595 V. EXCEPTIONS AND RESERVATIONS. 1. Reservation of passage of water, &c., ii. 595 2. Exception of timber, and reservation of liberty to lessor to enter and cut same, ii. 595 3. Exception of mines, and reservation of liberty to lessor to work same, ii. 596 4. Reservation of right of hunting, &c., ii. 596 5. Exception of a house, and reservation of right of way, trees, &c., and mines, and right of sporting, and liberty to sue trespassers in the lessee's name, on his Ijcing indemnified, ii. 596 C. Exception or reservation of waifs, &c., ii. 597 Clause of " reversion," ii. 597 Clause of " estate," on an assignment or suiTcndcr of a lease, ii. 597 TABLE OF FORMS AND PRECEDENTS. XXXI VI. HABENDUMS. 1. For a term of years certain, ii. 598 2. to be computed from a day prior to the lease, ii. 598 3. For years, determinable on the decease of the lessee, ii. 598 4. survivor of three lives, ii. 598 5. For a term of years, determinable by notice or otherwise, ii. 698 6. To three as joint-tenants for years certain, ii. 599 7. tenants in common for years certain, ii. 599 8. For the life of the lessee, ii. 599. 9. For the joint lives of three; the lease to determine on the death of either, ii. 599 10. For lives; the lease to determine on the death of the survivor, ii. 599 11. To several successively for their lives, ii- 600 12. In a lease for years, determinable on the death of the survivor of three lives, to commence on the death of the existing tenant, ii. 600 VII. REDDENDUMS. 1. Commonest form, ii. 600 2. AVhcre lessor is owner of the fee, ii. 601 3. for a term of years, ii. 601 4. In a lease for years, determinable on the death of a person, ii. 601 5. With an exception in case of fire, ii. 601 6. Rents varying in amount, ii, 602 7. Distinct reddendums for different premises comprised in the same lease, ii. 602 8. Of a proportional part of rent on determination of lease by lessor's re-entry under the proviso, ii. 602 9. In leases under powers, ii. 603 10. Of money during the first year, and corn for the residue of the term, ii. 603 11. Of a wheat and malt rent to a college, or of money in lieu thereof, ii. 603 12. Of a money rent varying with the average price of corn for a given number of years, ii. 603 13. Of additional rent in case demised premises shall be used for trade, ii. 604 14. Of one rent in time of peace, and augmented rent in time of war, ii. 605 15. Another form, ii. 605 16. Of rent in moieties, and additional rent for every acre converted into tillage, ii. 606 17. Of sums paid by lessor for premiums of insurance, on lessee's neglect to insure, ii. 606 18. Of sums paid by lessor for painting and repairs, on lessee's default, ii, 607 19. To tenant for life, and reversioner for the time being, a certain rent for lands to be built on ; a certain rent for pasture land, subject to increase on such land being used for any other purpose than pasture ; lease being made under a power, ii. 607 XXXll TABLE OF FORMS AND PRECEDENTS. 20. Monthly, of one-eighth of coals landed, &c., or one-eighth of money to be produced by sale thereof, ii. 608 21. Of a peppercorn, ii. 608 22. On a lease by husband and wife, under the statute of 32 Hen. 8. c. 28; ii. 609 23. Of redeemed land-tax in ecclesiastical lease, ii. 609 VIII. COVENANTS. Liens. 1. By lessee with lessor, ii. 609 2. By two lessees jointly and severally with lessor, ii. 609 3. By lessee, mth husband and wife seised in right of the wife, ii. 610 4. By each of two lessors, to the extent of a moiety of damages, ii. 610 5. By each of two lessees, on an assignment of their respective leases, by one deed, as to the lands comprised in his lease, ii. 610 By Lessee. 1. To pay rent, ii. 680 2. To pay taxes and rates, &c., ii, 580 3. To repair, ii. 580 4. To paint outside every year, ii. 581 5. To paint and paper inside every year, ii. 581 6. To insure from fire, to show receipts, and rebuild in case of fire, ii. 581 7. To permit lessor to view state of repairs, and to repair according to notice, ii. 582 8. Not to use demised premises as a shop, ii. 582 9. Not to assign without leave, ii. 582 10. To leave demised premises in good repair, ii. 582 11. To insure future buildings when covered in, and to increase insurance when completed, ii. 611 12. To lay out a given sum in repairs, and produce vouchers, ii. 612 13. To pay share of expense of repairing ways, &c., the amount to be recoverable as rent in arrear, ii. 612 14. Another form, ii. 612 1 5. To procure supply of water for demised premises from a particular company, ii. 613 16. By lessee of a public-house to purchase his porter of lessor, and that lessee's underlessee or assignee shall enter into a similar covenant, ii. 613 17. That lessor and his tenants shall have watercourse through demised premises, ii. 614 18. Not to obstruct lights by building, ii. 614 19. In a building lease, not to permit thorouglifarc over premises, ii. 614 20. Not to assign premises or underlet them for a longer term than a year, without giving lessor a right of pre-emption, ii. 614 21. To leave assignment or underlease at office of lessor's solicitor for registry, ii. 615 22. To keep orchards fully plantcl, and preserve same from injury by cattle, in a lease in Devonshire, ii. 615 J TABLE OF FOKMS AND PRECEDENTS. XXXUl 23. To keep lawn and garden in order, and preserve fruit trees and flowers, ii. 616 24. Not to convert old meadow into tillage, nor mow -without manuring same, except where well flooded, the lands lying in the county of Devon, ii. 616 25. Not to make hedges, except under certain conditions, in a lease of lands in Devonshire, ii. 616 26. To provide reed for thatching, on a certain allowance being made to him, ii. 617 27. That lessor may, in last year of term, enter on part of demised premises to prepare next wheat crop, ii. 617 28. To employ the clerk of lessors (a municipal company) to prepare deeds, on lessee's assigning or underletting, or, in default, to pay penal rent, ii. 617 By Lessor. 29. For lessee's quiet enjoyment, ii. 583 30. To find lessee rough timber for repairs, ii. 618 31. To rebuild or repair in case of fire, ii. 618 32. To lay out a given sum in repairs in case of accidental fire ; on the grant of a lease in reversion, ii. 618 By Assignor and Assignee. 33. Covenants for title in an assignment of leaseholds, confined to the acts and defaults of the assignor, ii. 619 34. Covenant by assignee of a lease for future pajTnent of rent and performance of covenants, and for the assignor's indemnity, ii. 620 IX. PROVISOES AND DECLARATIONS. 1. For lessor's re-entry on lessee's nonpayment of rent or nonperformance of covenants, ii. 583 2. For lessor's re-entry on nonpayment of rent after demand or notice ii. 621 3. That lessor shall not re-enter for a forfeiture without notice of breaches, and lessee's neglect to remedy them, ii. 622 4. For lessor's re-entry into that part only of premises in respect of which lessee shall make default in payment of rent or performance of covenants ; dis- tinct rents being reserved for distinct premises demised, ii. 622 5. For lessor's re-entry on lessee's nonpajTnent of rent or nonperformance of covenants, framed so as to enable lessor to re-enter without ejectment, ii. 623 6. For suspension or apportionment of rent, on premises becoming uninhabitable from fire, ii. 623 7. Another form, ii. 624 8. For cesser of term in case of fire, the tenant having the option of gi'S'ing up possession, or of repairing and continuing tenant, ii. 624 9. For apportionment of rent on sun-ender by lessee of part of demised premises, ii. 625 10. Between vendor [lessor] and purchaser, for apportionment of rent on a sale of the reversion of part of the demised premises, ii. 625 VOL. I. d XXXIV TABLE OF FORMS AND PRECEDENTS. 11. For determination of lease at the end of first fourteen years, at option of lessee, ii. 62 6 12. For determuiation of lease by either at the end of first three or five years of the term, on giving notice to the other, ii. 626 13. In lease for lives, or for years determinable with lives, that proof of lives being in existence shall lie on lessee, ii. 627 14. To enable underlessee to pay his rent to original lessor, ii. 627 15. That, on lessee's default, lessor may insure, and recover premises as rent in arrear ; insurance moneys recovered to be expended in repairs, ii. 627 X. CONCLUSIONS OF LEASES. 1. In a lease between private individuals, when executed by both, iL 628 2. In a lease by corporation, ii. 628 3. In lease by rector, with confirmation of bishop, dean, and chapter, ii. 628 XL INDOESEMENTS ON LEASES. 1. Memorandum of livery of seisin to be indorsed on a feofiment, ii. 628 2. Memorandum of execution of a counterpart by a lessee, to be indorsed on a lease made under a power requiring a counterpart, ii. 629 3. Attestation, lease being executed by attorney, ii. 629 4. Memorandum on a lease executed bj' attorney, in order to preserve evidence of the lessor being alive after execution of the deed, ii. 629 6. Another form, lease being made with livery, ii. 630 XII. POWEES CONNECTED WITH LEASES. 1. Of leasing for a term not exceeding twenty-one years, ii. 630 2. Short form of a power to trustees to lease, ii. 631 3. lease, immediately following the limitation of an estate for life, ii. 631 4. Power of leasing for mining or building purposes, ii. 632 6. Power to give and to receive livery of seisin, ii, 643 XllL TEUSTS. Trusts to renew leases on such terms as trustees shall think reasonable ; to sur- render subsisting lease ; to mortgage for raising fines, &c. ; and to pay ijitcrcBt and rent out of income and profits, ii. 643 TABLE OF FORMS AND PRECEDENTS. XXXV III. PRECEDENTS. I. — Agreement for a lease for a year, and so on from year to year, (very concise form), ii. 644 II. — Agreement for a lease of copyhold lands, where the license of the lord of the manor is required, ii. 645 III. — Terms for letting a farm in the county of Somerset, (not special), ii. 646 IV. — Another Precedent (special), ii. 649 V. — Agreement for the grant of a lease on completion of buildings to be erected ; the instrument specifying the particulars of the build- ings, and the covenants to be contained in the lease when granted ii 656 VI. — Agreement for the grant of a lease by the Mayor and Commonalty and Citizens of the City of London, and the Wardens and Commonalty of the mystery of Mercers of the City of London, to the Corpo- ration of the Assurance Company, of certain parts of the (then intended) New Eoyal Exchange ; with provisions adapted to that peculiar property, ii. 667 VII. — Lease of a coifee-house in London, under a power, the lessee cove- nanting to pay rent, rates, and taxes ; to repair ; to paint the inside every seven, and the outside of the premises every four years ; not to assign without license ; not to carry on certain trades ; and to insure. Proviso for lessor's re-entry on nonpayment of rent, and covenant for lessee's quiet possession, ii. 675 VIII. — Lease for ninety-nine years, determinable on the death of the survivor of three persons, with right of perpetual renewal, ii. 681 IX. — Lease of a copyhold messuage and piece of land, with the license of the lord of the manor ; the lessee entering into the common cove- nants to pay rent and taxes, to repair, and not to prejudice lessor's interest ; the lessor covenanting for the lessee's quiet enjoyment, and indemnity against copyhold outgoings, &c., ii. 684 X. — Underlease, by a mortgagee and mortgagor, of a house and premises in the city of Loudon, held under the Dean and Chapter of St. Paul's Cathedral ; with a provision for pajTnent of the rent to the mort- gagor, with power of distress, till notice by the mortgagee ; indemnity d2 XXXVl TABLE OF FORMS AND PRECEDENTS. against claims of original landlord. The lessee covenants to pay renewal fine and expenses ; the lessor covenanting to assign or underlet to the lessee the renewed term for securing the advance and interest, ii. 685 XI. — Lease of a cotton-mill, machinery and gear, &c., for a term of years, at a yearly rent, subject to suspension in case of fire : the lessee cove- nanting to pay an additional rent for the use of a culvert, and also an annual chief rent, to lay out a given sum in repairs, and to keep repaired, damage by fire excepted. The lessors to have option of purchasing, at end of term, machinery erected by lessee ; and to accept payment of rent by bills of exchange, ii. 690 XII. — Underlease by three joint tenants, of a house in the Regent's Park, with the use of foot and carriage-way, and ornamental gardens, in com- mon with neighbourhood, besides ordinary covenants to pay rent, &c. ; covenant by underlessee to contribute proportion towards expenses of maintaining roads and ornamental garden, and watch- ing and police ; to insure ; to paint in a mode prescribed, at specified periods ; with power to underlessors to do work on default, and recover expenses as rent. Power of entry to underlessors to take schedule of fixtures, to see condition of premises, and to repair adjoining premises. Powers to park gate-keepers to exclude carts, &c. ; and other provisions adapted to general benefit of the neighbourhood. Power to underlessee to determine lease at end of first five, seven, or fourteen years of term, ii. 694 XIII. — Lease by sur\nving trustee, granted under an order of the Court of Chan- cery, of a farm in the county of Norfolk ; reserving to lessor all brick-earth, fish, timber, trees, &c., hunting, hawking, shooting, &c., for eight years, at a fixed rent ; and an additional rent for every acre of pasture converted into tillage, or used contrary to good hus- bandry. Proviso for lessor's re-entry on lessee's nonpayment of rent, &c. ; becoming bankrupt or insolvent, &c. Covenant by lessor to keep buildings in repair, and set out rough timber; to allow bushes, &c., for firing. Power to lessee to dig clay and marl. Lessor to make lessee allowance for thrashing and dressing last year's crop on premises, &c. Covenant by lessee to pay rent and taxes — to reside in farm-house — to keep premises repaired — to perform carriage work for lessor — to find beer for workmen — to supply wheat-straw — to scour ditches, &c., clip liedgcs, preserve trees, &c. ; to bring actions against trespassers, &c. ; to cultivate land according to four-course system, &c., and to consume muck on premises, &c. Arrangements as to incoming tenants, and various other provisions applicable to farming in tliat county, ii. 706 XIV. — Ijcaso liy tenant for life, under a power, of a farm in the county of Berks, at rents varying every fourth year of the term, calculated on average price of corn for i)receding four years, and an additional rent for TABLE OF FORMS AND PRECEDENTS. XXXVll every acre of pasture converted into tillage. Covenants applicable to the cultivation of a fiirm in that county. Lessee to give up any twenty acres, on receiving six months' notice, and annual allowance for same ; to provide food and lodging for lessor's steward and attendants, not exceeding eight persons, on holding court ; and stable room for horses ; allowance to be made to lessee. Lessor to find timber for repairs, and to pay moiety of expense of repairs, except windows and thatching, ii. 718 XV. — Agricultural provisions contained in a lease of lands in the Isle of Ely, ii. 724 XVI. — Lease of a farm in the county of Londonderry, in Ireland, with appro- priate clauses for its management ; and power to the lessee to cut bog or turf for domestic consumption. Power to the lessors to resume any part, on notice, and payment of compensation ; to be settled in case of dispute by referees. Proviso for re-entry on the lessee's not paying rent, continuing to reside, assigning or underletting, build- ing, digging, offending against revenue laws, or becoming bank- rupt or insolvent, &c., ii. 729 XVII. — Lease for twenty-one years, by trustees of a term of years, under a will, of a furnace and iron-works, of land, and of mines of coal and iron- stone, reserving a surface rent, and royalties varying with the pro- ductions of the mine, and the different qualities and market value of the minerals ; with stringent clauses for the due working of the mines, &c., adapted to an extensive undertaking, ii. 740 XVIII. — Lease of lands in the county of Somerset by trustee of a term, mort- gagee, and mortgagor, and of a coal mine underneath ; with the usual powers for working same ; reserving a fixed surface rent for a part of the term, and augmented rent for the remainder, and a royalty of one-eighth of the gross moneys for which coal shall be sold, and a proportionate part on determination of the term before its effluxion by time ; mth a covenant to raise all the coal within the first twenty-five years, or to pay for coal unwrought at a valua- tion. Power to lessee to determine lease at end of first twenty-five, thirty-five, or forty-five years of term ; and lessee to have right of pre-emption on sale by mortgagor. [A concise precedent, the lessee's object being rather to sink a shaft to work under adjoining property, than to obtain the coal under the lands demised, ii. 782] XIX. — Lease of a lead mine in the North Riding of the county of York, by trustees under a power ; reserving, by way of royalty, a fifth of the smelted lead, before extraction of the silver ; with power of distress to the lessors. The lessors to have a right of purchasing the machinery and engines, &c., at the end of the term ; and the lessees to have a right of determining the lease on a given day. With appropriate clauses for the due working of the mine, ii. 792 XXXVlll TABLE OF FORMS AND PRECEDENTS. XX. — Lease of furniture to accompany lease of a dwelling-house, ii. 806 XXI. — Form of lease prescribed by the act of 5 & 6 Will. 4. e. 69, entitled " An Act to facilitate the Conveyance of Workhouses, and other Property of Parishes and of Incorporations or Unions of Parishes of England and Wales," ii. 807 XXII. — Form of lease for railways, or of encroachments in the royal forests, granted by the Commissioners of Woods and Forests, under 10 Geo. 4. e. 50, ii. 808 XXIII. — Assignment of a lease for years; Variations, where fixtures are included in the assignment, ii. 808 XXIV. — Surrender of a lease by an assignee on a purchase by the reversioner: with variations applicable to a surrender by indorsement on the lease, ii. 810 XXV. — Confirmation, by one of three trustees under a will, of a lease granted by his two co-trustees only : by indorsement on the lease, ii. 811 XXVI. — Declaration and covenant by the assignee of a lease with the lessor, on his licensing an assignment, ii. 813 XXVII. — License by lord of manor to copyhold tenant to demise, by way of lease, but not of mortgage, a particular tenement, ii. 816 XXVIII. — License by lord of manor to copyhold tenant to demise all his copyhold tenements, ii. 816 , XXIX. — Memorial of a lease for registration, ii. 817 XXX. — Afiidavit to be substituted for personal attendance on registration, ii.818 XXXI. — Form of notice of owner's intention to apply to justices to recover pos- session under the act of 1 & 2 Vict. c. 74, to facilitate the recovery of possession of tenements after due determination of the tenancy, ii. 818 XXXII. — Form of complaint before two justices under 1 & 2 Vict. c. 74, ii. 819 XXXIII. — Form of warrant to peace ofiiccrs to take and give possession under 1 & 2 Vict. c. 74, ii. 819 XXXIV. — Table of sums to be paid by the lessees of the Crown for their propor- tion of the cxponscH attending the preparing, engrossing, and passing of their leases, exclusive of the expense of enrolling the name in the office of Land Revenue Records and Enrolments, ii. 820 TABLE OF CASES CITED OR REFERRED TO IN THIS WORK. Note. — Tlic letter " v. " always follows the name of the plaintiff; the word " and ,' that of the defendant. A. and Chute, i. 395 V. Cooper, ii. 83 and Coras, ii. 313, 316 V. Ferguson, ii. 182 and Gorton, ii. 5 and Ratcliff, ii. 314 and Squib, i. 25 and Stebbing, i. 307 Abbot V. Sorrel, ii. 331 Abbott and Fuller, ii. 180 and Playters, i. 775-6 Abel and Doe dem. Wilson, ii. 464 Abercrombie v. Hickman, ii. 370. 456 Abingdon (Lord) v. Butler, i. 748 Abney v. Miller, i. 763 Aburgaveny's (Lord) case, i. 129 Acheson v. Fair, i. 763 Ackland v. Lutley, i. 669 ; ii. 56. 111. 118 and Malpas, i. 124 and Norton, ii. 352-3 V. Pring, ii. 372 Acklane and Norton, ii. 352-3, 355-6 Acklom and Dodd, ii. 503 Acton and Bowman, ii. 421 and Byrne, i, 440. 523 and Cage, ii. 512. 514 and Gage, ii. 512, 514 ■ and Gray, ii. 512, 514 Adams, Mre., ii. 442 and Belfield, i. 537 and Doe dem, Barney, i. 173 ; ii. 318 V. Gibney, ii. 163, 285-6. 360 ■ and Greenaway, ii. 259 ■ and Lewis, i. 293 and Ponsonby, ii. 108 and Rowley, ii. 1 63. 416. 418 and Saffyn, i. 22-3 Adams and Southcott, i. 537 and Wrottesley, ii. 60. 506 Adamson and Oakley, ii. 35 Addenbrooke and Foley, i. 134, 729 ; ii. 168. 205. 284 Adderley v. Clavering, i. 775 Adkins and Smith, i. 553 Administratrix of Penry v. Brown, ii. 202 Adwick and Ross, i. 687 Agard v. King, i. 657 and Ballard, i. 108 Agborow a7id Smalman, i. 127, 129. 143. 148 Agburrough and Smalman, i. 146 Agus and Warner, ii. 83 Ainsley and Pindar, ii, 120-1. 183 Alchin, Mre. of, ii. 110 Alchorne v. Gomme, i. 61, 173 Alcock V. Cooke, i, 33. 216-7, 231-2 237 and Goleborn, i. 525 Aldenburgh v. Peaple, ii. 507 Alder v. Fouracre, i. 764 Alderman v. Neate, i, 323. 599. 609. 729; ii. 156 , &c., of Grantham and Gozna, 1,312.351. 364 Alderson and Raine, i. 23 Aldridge v. Howard, ii. 100. 280 Alexander v. Alexander, i. 437 , Com. Eglinton and Por- tington, i. 44 and Doe dem. Scholefield, i. 511 ; ii. 333. 336. 340. 342-3 Alfo V. Henning, ii. 87. 271. 382, 391. 399 Allaley and Dean, ii. 200 Allan V. Backhouse, i. 779 V. Bower, i. 623 Allason v. Stark, i. 322-3-4 xl TABLE OF CASES. Allen V. Allen, i. 29 V. Babbington, ii. 292 and Bateman, i. 140-1 t. Bennet, i. 570 mid Compton, ii. 186] and Doe dem. Sheppard, ii. 236. 468-9. 470 V. Harrison, ii. 336 V. Hilton, i. 753 and Hunt, ii . 313 a7id Perryn, i. 528 ; ii. 13. 72. 510. 515 a/ic?Porry,i.528; ii. 13. 72.510. 515 and Steward, ii. 328 V. Thorn, ii. 309 Allin and Newton, ii. 129 Allison V. Stark, i. 322-3-4 Allsop and Doe dem. Robinson, ii. 571 Alsop and Bellingham, i. 50. 125. 128 V. Pine, i. 434 Alston a7id Bentham, ii. 140 Ameers Ofid Fisher, ii. 352. 354-5. Aniey and Doe dem. Thomson, i. 612 ; ii. 182. 521 Amhurst aiid Bawdes, i. 569, 576 Amyot a7id Browne, ii. 146 Anderson v. Bailey, ii. 432 and Lord Ormond, i. 570-1. 622 and Ormond (Lord), i. 570-1 . 622 and Sweet, i. 752. 757. 761 Anderton and Newman, i. 26-7; ii. 85 Andover atid Lowther, i. 613 Andrew's case, ii. 9. 285. 313. 364 Andrew r. Hancock, ii. 177-8. 181 V. Pearce, ii. 360. 387. 416 and Trevillian, ii. 518 Andrews, Ex parte, i. 763 and Cromwell (Lord), ii. 337 ■ and Doe dem. Palmer, ii. 386. 448. 455. and Dorrt'l, ii. 128 ■ andhord Cromwell,'ii. 337 V. Mowbray, i. 559 V. Needham, i. 51 and Waller, ii. 169-70 Annandale v. Pattison, ii. 560 Annas and Danne, i. 404 Annesley, Ex parte, i. 322. 558 Anon. 1 And. 25. pi. 56; ]$en]. 36. pi. 61. Aliens, i. 531. 633 1 And. 46. Crown Leases, i. 232 1 And. 47. Ecclesiastical Leases, i. 3'i9 Anon. 1 And. 122, case 170. Haben- dum— Commencement, ii. 51 1 And. 137. Covenant for Quiet Enjoyment, ii. 289 1 And. 151,casel99. Leasefor Years determinable, i. 671. Lease for Lives, i. 680 2 And. 16. Joint-tenants, i. 127 Bendl. 35. pi. 143. Haben- dum — Commencement, ii.64 Brownl. and G., 31. Husband and Wife, i. 540 1 Brownl. «7Jf7G., 82. Liabi- lity of Lessee's Executor, ii. 367. 1 Bulstr. 177. Habendum — Commencement, ii. 55 Bunb. 53. Tenant for Life, and Remainder-man, i. 95 Bunb. 53. Determination of Lease — Improvements, ii. 520 Gary, i. 30. Power, i. 395 — ■ Gary, i. 45. Duchy of Lan- caster — Leases, i. 217 2Ch.Ca.i.207. Renewal,i.704 2 Ch. Ca. i. 207. Renewal- Executors, i. 763 Clayt. 123. pi. 218. Parcels, ii. 27 Clayt. 140. pi. 253. Tenants in common — Estoppel,!. 132 Comb. 211. Taxes, ii. 171 Com. 228. Covenant for Quiet Enjoyment, ii. 316 Cowp. 128. Infant, i. 29 Cro. Eliz. 7. Copyholder, i. 537 Cro. Eliz. 61. Husband and Wife, i. 540 Dal. 26. Estoppel, i. 53 ■ — Dal. 44. Properties of Lease, i. 23 Dal. 44. pi. 30. Reddendum— Suspension, ii. 130 Dal. 46. Tenant at will, i. 104 Dal. 52. pi. 25. Surrender, ii. 514 Dal. 72. Tenant for Life, i. 100. 101 Dal . 74 . pi . 58 . Surrender, ii . 507 Dal. 83. pi. 29. Restraint on Assignment, ii. 251.257.265 1 Dow. and Ry. i. 435, n. Hold- ing over — Notice, ii. 529 Dy. 6, a. pi. 1. Restraint on Assignment, -ii. 238. 251. 268. 271 Dy. 14, a. pi. 69. Liability of Lessor's Heir, ii. 363 TABLE OK CASES. xli Anon. Dy. 19, a. pi. 110. Excep- tion — Woods, ii. 42 Dy. 23, b. Executor, i. 367 Dy. 24, a. pi. 151. Lease for a Year, &c., i. 66(). Lease for Lives, i. G79 Dy. 26, a. pL 167. Haben- dum — Commencement, ii. 57 Dy. 26. b. pL 170. Agents, i. 393 Dy.33,a.pl. 10. Repairs — Fire, &c., ii. 188, Reddendum — Flood, ii. 122 Dy. 45, a. pi. 1. Reddendum, ii. 88-9. 90. Restraint on Assignment, ii. 238. 250 • Dy. 45, a. b. Lessor's Heir — Rights, ii. 362 Dy. 58. Ecclesiastical Leases, i. 293 Dy. 61. Ecclesiastical Leases, i. 300 1 Dy. 66, a. pi. 8. Restraint on Assignment, ii. 265 lDy.69. Ecclesiastical Leases, i. 238 Dy. 7z. Ecclesiastical Leases, "i. 308 1 Dy. 79, a. pi. 48. Excep- tions — Trees, ii. 42 Dy. 87, b. pi. 104. Proviso for re-entry — Demand, ii. 336 2 Dy. 112, a. pi. 49. Surren- der — Interesse Termini, ii. 504 2 Dy. 133, a. Ecclesiastical Leases, i. 307-8 Dy. 142, a. pi. 50. Redden- dum, ii. 117 2 Dy. 152, a. pi. 7. Restraint on Assignment, ii. 251. 265 2 Dy. 159. Husband and Wife, i. 142. 147-8. 150 2 Dy. 160. b. pi. 43. Lease for Lives, i. 684. Haben- dum, ii. 78 2 Dy. 187, a. Joint-tenant, i. 127. 129 2 Dy. 209. Duchy of Lan- caster Leases, i. 216 2 Dy. 22], b. Ecclesiastical Leases, i. 291 Dyv233. Ecclesiastical Leases, i. 294 2Dy.246,a. Tenantintail,i.77 2 Dy. 247, b. pi. 77. Duration of Liability — Lessee, ii. 352. 354 Anon. 3 Dy. 255, a pi. 4. Covenant for Quiet Enjoyment, ii. 295 3 Dy. 261, b. pi. 28. Haben- dum — Commencement, ii. 68 3 Dy. 271, b. Tenant in tail, i. 74 3 Dy. 279, a. Tenant in tail, i. 77 3 Dy. 286, a. pi. 43. Haben- dum — Commencement, ii. 55 3 Dy. 312, b. pi. 89. Haben- dum — Commencement, ii. 62 3 Dy.324,a. pi. 34. Repairs- Fire, ii. 186. Liability of Lessee's Executor, ii. 374 3 Dy. 333, b. Subject of De- mise, 24 3 Dy. 334, b pi. 32. Restraint on Assignment, ii. 269 3 Dy. 338. Ecclesiastical Leases, i. 309 3 Dy.352. Crown Leases,!. 233 3 Dy. 356. Ecclesiastical Leases, i. 301.302 3 Dy. 361, a. pi. 8. Lease for Lives, i. 684 3 Dy. 367. Executor, i. 367 3 Dy. 376, b. marg. Haben- dum — Commencement, ii. 57. 61. 62 3 Dy. 376. b. pi. 27. Redden- dum — Construction, ii. 126 Freem.Ch.85,case93. Power, i. 395, 396 Freem. Ch. 115. Forfeiture — Relief in Equity : New Lease, ii. 482 Freem. Ch. 224. Tenant in tail, i. 85. Husband and Wife, i. 155. Power, i. 410. 437. 446-7 Freem. Ch. 253, case 320. Assignment of Term — Mort- gage, ii. 423 Freem. Ch. 310. Tenant in tail, i. 91. 93 Godb. 47, case 58. Proviso for Re-entry, ii. 328 Godb. 101, pi. 117. Copy- holder, i. 537 Godb. 102. Tenant in tail, i. 80. Husband and Wife, i. 154 Godb. 120,case 140. Covenant running with Land, ii. 410 Godb. 171, case 236. Copy- holds, i. 106 Godb. 270, pi. 378. Assignee of Reversion, ii. 398 xlii TABLE OF CASES. Anon. Godb. 283, pi. 404. i. 133 Godb. 333. Covenant for Quiet Enjoyment, ii. 309 Hutt. 16. Lunatics, i. 3S. Bailiff, i. 390 Hutt. 102. Infant, i. 28. Hus- band and Wife, i. 142. 145. 1.50 Jenk. 262. Tenants in Com- mon, i. 134 Jenk. 274, pi. 94. Liability of Lessee's Executor, ii. 377 Jenk. 279, case 1. Lease for Years determinable, i. 671 T. Jo. 109. Assignment — Fraud, ii. 417 Keilw. 65, pi. 6. Lease at will, i. 654 1 Leon. 47, pi. 61 ; 4 Leon. 82, pi. 175. Aliens, i. 531 1 Leon. 156. Estoppel, i. 59 1 Leon. 158. Guardians, i. 375 1 Leon. 227, case 308. Ha- bendum — Commencement, ii. 65 2 Leon. 47. Tenants in com- mon, i. 134 2 Leon. 220. Infant, i. 32 3 Leon. 1. Assignee of Re- version of part of Premises, ii. 392 3 Leon. 17. Ecclesiastical Leases, i. 304 3 Leon. 32. Infants, i. 528. Testatum, ii. 21 3 Leon. 33, case 60. Haben- dum, ii. 48. 65 3 Leon. 34. Party to Deed, i. 683 3 Leon. 51, pi. 72. Repairs, ii. 211 3 Leon. 71, pi. 109. Covenant for Quiet Enjoyment, ii. 289 3 Salk. 196. Infants, i. 28 4 Leon. 4. Husband and Wife, i. 150 4 Leon. 17. Properties of Lease, i. 23 4 Leon. 30, pi. 83. Surrender, ii. 508 4 J..eon. 37. Surrender, ii. 512-13 Lofft, 275. Habendum — Com- mencement, ii. 54-5 Lofft, 460. Covenant for Quiet Enjoyment, ii. 312 Mo. 7. Tenant in duwcr, i. 97 Anon. Mo. 8 ; Dal. 7. Lease or Agreement, i. 598. 599. Testatum, ii. 23 _. — - Mo. 8, pi. 27. Copyholds, i. 106 Mo. 8, pi. 32. Lease for Lives, i. 685. 687 Mo. 11, pi. 40, Restraint on Assignment, ii. 250-51. 265 Mo. 20. Estoppel, i. 57-8 Mo. 21, pi. 71. Restraint on Assignment, ii. 251 Mo. 26, pi. 87. Habendum, i. 78. Lease for Lives, i. 684-5 Mo. 34, pi. 110. Tenants in common — Waste, i. 132. Coparceners, i. 137 • Mo. 40, pi. 127. Tenants in common — Waste, i. 132 Mo. 44, pi. 136. Restraint on Assignment, ii. 265 Mo. 45. Crown Leases, i. 234 Mo. 49. Lease or Agreement, i. 598 Mo. 50, pi. 150. Reddendum, ii. 86. Mo. 54, pi. 157. Surrender, ii. 514 Mo. 66. Ecclesiastical Leases, i. 308 Mo. 70, pi. 191. Bailiff, i. 390. Agent, i. 391-2 Mo. 71, pi. 194. Tenant in common, i. 131 Mo. 87, pi. 218. Proviso for Re-entry, ii. 328 Mo. 93, pi. 230. Lease or Assignment, i. 10. Undei'- lease — Privity, i. 102. Ap- portionment of Covenant, ii. 271. Assignee of part of Reversion, ii. 391 Mo. 114, pi. 25,5. Redden- dum — Apportionment, ii. 133. 146 Mo. 159, pi. 300. Covenants running with Land — Re- newal, ii. 402. 406 Mo. 171, pi. 304. Sunender, ii. 513 Mo. 184, pi. 329. Copyholds, i. 106. 110 Mo. 247, pi. 388. Accessional Term, i. 676 Mo. 733. Habendum — Com- mencement, ii. 55 Mo. 846. Tenant in tail, i. 85 1 Mod. 180. Habendum — Commencement, ii. 65 TABLE OF CASES. xliii Anon. 1 Mod. 185. Liability of Les- see's Executor, ii. 367 2 Mod. 317. Exception — Trees ii. 44 4 Mod. 148. Taxes, ii. 172 6 Mod. 57, case 68. Renewal — Trustee, i. 762. 766 6 Mod. 239. Feme covert, i. 630 9 Mod. 43. Husband and Wife, i. 156 . 11 Mod. 42. Testatum, ii. 23 11 Mod. 45. Lessor's Heir — Rights, ii. 361 12 Mod. 73. Reddendum, ii. 83.87 12 Mod. 384, case 643. Co- venant running with Land — Repair, ii. 406 12 Mod. 610. Lease at will, i. 654 ; for a Year, i. 660. Statute of Frauds, ii. 4 2 Mol. 342. Reddendum— Lunacy, ii. 110 Ow. 31. Parcels, ii. 34 Ow. 33. Ecclesiastical Leases, i. 305 Ow. 45. Aliens, i. 533-4 Ow. 49. Lease or Agreement, i. 583. 598 Poph. 4. Husband and Wife, i. 1.39. 155. Habendum— Commencement, ii. 50 Poph. 188. Copyholder, i. 111. 112 1 Ld. Raym.96. Reddendum — Stranger, ii. 97 1 Ld. Raym. 737. Haben- dum — Commencement, ii. 51 1 Rol. 12. Power, i. 521 2 Rol. 109. Livery of Sei- sin, i. 692. 694 3 Salk. 3. Forfeiture— Waiver, ii. 470 3 Salk. 120. Date, ii. 10 3 Salk. 196. Infant, i. 29 3 Salk. 223. Testatum, ii. 23 Sav. 58. Crown Leases, i. 231 Sav. 70. Crown Leases, i. 236 2 Show. 77. Reddendum, ii. 117 2 Show. 202. Covenant for Quiet Enjoyment, ii. 292 1 Sid. 447, pi. 9. Redden- dum — " Yielding and Pay- ing," ii. 87. Payment of Rent — Implied Covenant, ii. 163. Lessee's Liability, ii. 355 2 Sid. 2. Tenants in common, i. 132 Anon. Skin. 159. Blind, i. 46 Skin. 367. Assignment of Reversion — Privity, ii. 386 Sty. 67. Covenant for Quiet Enjoyment, ii. 313 1 Vent. 38. Repairs — Fire, ii. 186 1 Vent. 41. Properties of Lease, i. 23 1 Vent. 58. Assignee of part of Reversion, ii. 391 1 Vent. 98. Enabling Sta- tute — Tithes — Tenant in tail, i. 72. 1 Vent. 236. Liability of Lessee's Executor — Privity of Contract, ii. 367. 372 1 Vent. 248. Proviso for Re- entry, ii. 331 1 Vent. 332. Proviso for Re- entry, ii. 331 2 Vent. 46. Covenant for Quiet Enjoyment, ii. 315 2 Vent. 214. Repairs, ii. 200. 206 5 Vin. Ab. 522, pi. 38. Agree- ment — Part Performance, i. 571. Parol Evidence, i. 645 5 Vin. Ab. 523, pi. 40. Agree- ment — Part Performance, i. 575 1 Wils. 75. Forfeiture— Re- lief at Law, ii. 475. 477 Winch, 32. From Year to Year, i. 659. 665 M. T. 31 H. 8. Reddendum, ii. 91 — V. Hopkins, i. 145 Anscomb a7id Attree, ii. 564 Ansell and Meres, i. 640 V. Robson, ii. 438 Ansfield v. White, ii. 171 Antrim v. Duke of Buckingham, i. 405. 445. 447 Antrobus v. Davidson, ii. 377 and Morrice, i. 82-3. 247. 287. 465 ; ii. 82-3 Anworth v. Johnson, ii. 182 App Rees and Owen, i. 75. 685. 692-3 Appleton r. Binks, i. 391 Appowel T. Monnoux, ii. 85-6. 105. 130. 318. 391-2. 397 Aprice v. Hayes, i. 232-3 Archbishop of Canterbury anc? Bedin- field, i. 290 Archbishop of Canterbury and Roe dem. Earl of Berkeley, i. 287 Archbishop of Dublin r, Bruerton, i. 293 xliv TABLE OF CASES. Archbishop of Dublin (lessee) r. Eaton, ii. 466 Archbishop of York and Roe dem. Berkeley (Earl of), ii. 502 Archbishop of York and Roe dem. Earl of Berkeley, i. 54. 407. 486; ii. 502. 509 Archbold and Magrane, i. 371. 707. 709. 741. 761 Archdeaken and Pearson, ii. 377 Archer's case, ii. 494 Archer and Doe dem. Potter, i. 94-5. 524 and Doe dem. Rodd, ii. 464. 466 and Glover, ii, ] 16-17 dem. Hankey r. Snapp, ii. 475 and Poole, ii. 186 Arden and Mallam, ii. 112-13 Ardes v. Watkins, ii. 392 Ards V. Watkin, ii. 131. 135. 271. Ardwick and Rosse, i. 687 Arge V. Watkins, ii. 131 Arkingsal t. Denny, i. 306 Arkwright v. Cole, ii. 431 Arlett i: Ellis, i. 384 Armitage and Cardigan (Earl of), ii. 44-5 and Earl of Cardigan, ii. 41. 44-5 and Jenkins, ii. 352. 354, 368. 371 and Pilling, i. 95. 575. 578. 745 and Senior, ii. 518 Annitt v. Breame, ii. 10 Armorer and Wilson, ii. 38 Armote r. Bream, ii. 10 Armstrong and John, i. 759. 762 and Messenger, ii. 517. 524 Arnitt and Naylor, i. 345 Arnold c. Bidgood, i. 368 and Lee, ii. 392. 397 r. Revoult, i. 140. 145 and Smith, ii. 184. 406 and Yardley, ii, 374 Arnote t. Bream, ii. 10 Arnott and Colchester, i. 787 Amshy r.Woodward, i. 102; ii. 329. 330. 468 Arran (Countess of) r. Crispe, ii. 171 Arrowsmith ^///r/ Iladon, i. 109 and Hall, i. 93. 95-6. 100. 109. 112. Arthur aw^/ Quarrington, ii. 283 (tnd JVlcNaniara, i. 628 V. VandfTbank, ii. 352. 354 V. Vandcrpl;ink, ii. 352. 354 and Vyvyan, ii. 87. 164. 365. 382. 402-3-4 Arthur and Warren, ii. 44 Arton and Boarman, ii. 421 Arundel (Corporation of) e. Holmes, i. 317 (Earl of) V. Lord Gray, ii. 507 (Mayorof)^. Holmes, i. 318; ii. 544 Asby and Doe dem, Mayhew, ii. 212. 477 Ascough's case, i. 3 ; ii. 127. 133-4 Ascough and Evans, i. 291 . 294-5-6 Ascue and Vaughan, i. 294-5-6 Ascuith and Evans, i. 294-5-6' Ascuithe and Evans, i. 291. 294-5-6. 463 Ash and Haths, ii. 54-5 Ashburner and Doe dem. Jackson, i. 583. 598. 602. 610. 730-1 ; ii. 23 Ashers and Warren, ii. 44 Ashfield V. Ashfield, i. 28. 32. 107. 110, 112 Ashley and D'Abridgcourt, i. 391-2 Ashton and Aylett, i. 48-9 V. Bretland, i. 707. 709. 741-2. 744 F. Martyr, ii. 289 Ashurst V. Mingay, ii. 352. 354-5. 386 and Simkin, i. 654. 657. and Simpkin, i. 654. 657 ; ii. 518. 521.528 Ash well and Lake, ii. 561 Ask and Hatter, i. 694 ; ii. 54-5 and Wood, i.27 Askwith and Darcy, ii, 198 a7id Evans, i. 291. 294-5-6 Assheton and Price, i. 486. 622. 635 Astley's, (Sir John,) leases, i. 493 Aston and Brandon, ii. 255 and Burman, ii. 421 and Ever, i. Ill r. Pitcher, i. 239 and Woodward, ii. 507 Astree v. Ballard, i. 21-2 Astry V. Ballard, i. 21-2 Atcheson and Walls, ii. 503 Athowe V. Heming, ii. 87, 271. 382. 391. 399 Atkins and Farneham, i. 31 and Hunter, i. 559-60-61 V. Mountague, i. 218 and Watson, ii. 175 Atkinson v. Baker, i. 691 V. Coatsworth, i. 56. 60 ; ii. 4 V. Cornish, i. 368 and Digby, ii. 190. 192. 228. 427. 520-1 V. Pilsworth, i. 712. 725 and Roupe, i. 156 Atlee and Fane, ii. 278. 474-5 TABLE OF CASES. xlv Attoe V. Hemmings, ii. 87. 271. 382. 391. 399 Att.-Geu. V. Backhouse, i. 349. 350. 361-2-3 2>.Baliol College,!. 352.362. 524. 562; ii. 177 r. Bishop of Ely, i. 704 r. Brooke, i. 349. 351-2-3. 361.708-9 and Casberd, ii. 423 V. Corporation of Cashel, i. 349 V. Corporation of Newcastle, i. 283. 320 V. Countess of Portland, ii. 54 T. Crook, i. 357 V. Cross, i. 348-9. 355. 357. 358-9-60-1.363. 733 V. Dixie, i. 347-8. 359 V. Dixon, ii. 136. 147 r. Earl of Clarendon,!. 359 V. East India Company, i. 349 V. Ellison, i. 350 V, Foord, i. 349. 362 — V. Freeman, i. 47 V. Glyn, i. 184. 242 . I". Gradyll, i. 526 V. Green, i. 347. 350-1. 361.363 V. Griffith, i. 347. 349. 353. 357. 361-2-3. 440. 525. V. Hungerford, i.348. 352-3. 3.55. 357. 359 ». KeiT, !. 320. 348. 353. 362 V. Lady man, i. 350 V. Lewin, i. 321. 324-5 V. Lord Foley, ii. 520. 655 V. Lord Gore, or Gower, i. 312. 358 r. LordHotham, i. 59.349. 361 V. Magwood, i. 359-60-1 V. Mayor of Rochester, !. 358 V. Morgan, !. 349. 363 V. Moses, i. 238. 349. 365. 442 r. Owen, i.345-6. 348-9-50. 353. 361. 363. 424. 668 V. Pargeter, i. 349. 363 V. Pembroke Hall, i. 357 i\ Price, i. 357 V. Smith, i. 351. 710 V. South Sea Company, i. 349. 353 V. Talbot, i. 347 and Taylor, i. 235 Att.-Gen. v. Warren, i. 349. 351. 353 355. 357-8. 710 V. Whiteley, i. 361 V. Wilson, !. 358 V. Wray, i. 365. 442 Attree v. Anscomb, ii. 564 Attwood V. Barham, i. 575. 636 Atwood V. Lamprey, ii. 177 Audle and Ellis, i. 26 Audley v. Audley, i. 491 and Glinister, ii. 316 Audly and Glimston, ii. 316 Auriol V. Mills, ii. 163. 352-3-4-5. 433 Austen and Hungerford, i. 109 Austin and Day, ii. 129 V. Miller, ii. 369 V. Millet, ii. 369 and Regina, ii. 88 and Webb, i. 53. 57-8-9. 165. 174 Aveline v. Whisson, ii. 9 Aveling v. Knipe, i. 538 Avery and Wood, ii. 189 Awder and Noke, i. 60; ii. 291. 420 V. Nokes, i. 60 ; ii. 420 Awdwick atid Roos, i. 687 Aylesford's, (Earl of,) case, i. 575 Aylesworth and Halswell, ii. 65 Aylet V. Dodd, ii. 108 Aylett V. Ashton, i. 48-9 Aylewood and Usher, i. 538 Ayliffe and Peyton, i. 535 Aylmer v. Hide, ii. 371 Aylward v. Kearney, i. 566 Aynesley v. Wordsworth, ii. 140-1 Ayray's case, i. 183 Ayscough and Evans, i. 463 B. BABBINGTON and Allen, ii. 292 Bacheloure v. Gage, ii. 163.352.355. 356 Bacon v. Gyrling, ii. 39 t'. Waller, ii. 55 Back a7id Wilks, i. 62. 391 ; ii. 16 Backhouse and Allan, i. 779 a7id Att.-Gen., i. 349-50. 361-3 Baden v. Flight, ii. 116 Badger i\ Ford, i. 384 Baggott V. Oughton, i. 418-19-20 Baglehole, Ex parte, ii. 268 Bagott and Blakeney, i. 562-63.626. 745 Bague and Hope, ii. 371 Bailes v. Wenman, i. 671 xlvi TABLE OF CASES. Bailey and Anderson, ii. 432 «Mc7 East London Water- works Company, i. 178 and Goodtitle, dem. Edwards, i. 613 owc?Keppell, ii. 238. 389. 404. 409-10-11-12. 415 and Waters, i. 766 Bailiff of Ipswich v. Martin, ii. 135. 369. 421 Bails and Kirke, i. 673 Baily a7id Drue, ii. 96. 359. 369 V. Man, i. 246 V. Mum, i. 246 V. Munne, i. 246 Baker and Atkinson, i. 691 V. Bayley, i. 687-8 'y.Gostling,i.l6.17.18; ii.358. 563 V. Greenhill, ii. 170 V. Hacking, i. 90 V. Harris, ii. 429 and Heath, ii. 109. 165 V. Holtpzaffell, ii. 120. 125 and Holtzapffel, ii. 123. 125. 194-5 1}. Hucking, i. 21. 90. 100 ■ and Levy, i. 37 and Milfox, i, 107-8 and Munifas, i. 107-8 V. Olibeare, ii. 482 and Rimes, ii. 114 and Rymes, ii. 114 and Smith, i. 20. 102 and Wade, i. 376-7-8 and Wheeler, i, 10 V. Willoughby, ii. 509 Balder v. Blackborn, i. 378 Balders and Readshaw, ii. 180 Baldwin's case, ii. 79-80-1. Baldwin r. Bridges, i. 762 and Dawson, ii. 281. 388. . T. Cocke, Coke, or Cooke, i. 671 Bale and Manlove, i. 764 Bales and Kyrke, i. 673 Balfe and Kine, i. 575 Balfour and Welland, i. 608. 727 Baliol College anc?Att.-General,i. 352. 362.524.562; ii.l77 Ball V. Cullimore, i. 654-5 awl Hall, ii. 541 and King, dera. Poe, i. 47 and Partridge, i. 177-8 Ballard v. Agaid, i. 108 and Astree, i. 21-2 Ballet and Muscot, ii. 316 r. Sprainger, i. 778 Balls r. Margrave, ii. 164. 396. 543 and Patrick, i. 177-8 Balls V. Wells, i. 24. 71-2 ; ii. 391-2. 400. 402. 405-6. 410. 415 Bampton and Winne, i. 1 77. 180. 789 Banbery and Cole, i. 133 Bancks and Doe dem. Bryan, i. 287 ; ii. 327-8-9. 471 Banister's case, i. 306 Bank of England a?^(^ Yarborough, ii.2 Banks v. Brown, i. 74. 692 ; ii. 54 and Doe dem. Cawood, i. 585 Bantry (Earl of) and Nugent dem. Keane, ii. 277 Banyster v. Trussell, ii. 353 Barber v. Fox, ii. 363 and Ludford, i. 58. 62. 94-5 Barbor and Shaw, i. 104 Barclay atid Burton, ii. 58. 271. 391. 394. 423. 515 and Hill, 636 ; ii. 210. 211. 216. 278. 477. 483. 484. 486-7-8- 9-490 Barefoot and Hopwood, ii. 169. 171 Barford v. Stuckey, ii. 12 Barham and Attwood, i. 575. 636 Barker v. Damer, ii. 383. 386 V. Dormer, ii. 383. 386 V. Fletwell, ii. 127 V. Fox, ii. 363 V. Hodgson, ii. 188 V. Holder, ii. 488 and Ireland, i. 300 V. Keat, i. 23 and Roberts, ii. 518-19 V. Talcot, ii. 359 Barlow and Devereux, ii. 355-6. 459 and Rex, i. 230 V. Rhodes, ii. 34-5 Barnard and Buck, ii. 371 V. Godscall, ii. 352-3. 355-6 and Kemp, i. 231 Barnby and Hamson, i. 132. 136 Bamett and Waddilove, i. 164-5 Barnewall and Kingsland (Lord), i. 561 and Lord Kingsland, i. 561 Bamfather v. Jordan, ii. 416 V. Lee, ii. 174 Baron and Pearse, i. 425 Barrett v. Blagrave .ii, 237 T. Duke of Bedford, ii. 172 V. Pearson, i. 760 . r. Ralph, i. 17 and Smith, i. 177. 312 Barrey and Taunton, ii. 251. 257 Barrow and Collins, ii. 183 Barry and Hill, i. 24 and Morris, i. 125 V. Nugent, i. 600 V. Stanton, ii. 257 Barse and Cross, i. 395 TABLE OF CASES. xlvii Bartholomew and Drybutter, i. 149 Bartlett v. Wright, ii. 27. 31 a7id Paddon, ii. 15U Barton and Doe dem. Higginbotham, i. 1G4. 169-70-1 T. Fitzgerald, ii, 300 and Flight, ii. 160-1-2. 229-30 and Harbin, i. 127. 155 ; ii.50. 96 V. Le Seignor Thre'r, ii. 394 ■ and Oglander, i. 139 and Signior Thre'r, i. 788 Bartram and Hudson, i. 628 Barwick's case, i. 233. 678, 691-2; ii. 52. 55 Barwick and Say, i. 46 Barwicke v. Foster, ii. 116-17-18. 126. 139 Basset v. Basset, i. 493 Bassett v. Lewis, ii. 64 V. Williams, ii. 64 Bateraan v. Allen, i. 140-1 and Doe dem. Freeman, i. 12. 18. 102; ii. 319 V. Murray, i. 752. 757. 761 and Murray, i. 761 a7id Sleigh, ii. 504 Bates V. Dandy, i. 156 and Stedman, i. 127. 137 Bath's (Bishop of) case, i. 652. 668 ; ii. 62-3-4. 68-9-70-1-2. 328 Batten and Doe dem. Cheny, ii. 468. 525 Baugh a7id Blunden, i. 21. 105 V. Haynes, i. 74. 75. 81-3. 480 Bawdes v. Amhurst, i. 569. 576 Baxter dem. Abrahall v. Browne, i. 699 ■ V. Earl of Portsmouth, i. 37 V. Doudswell, i. 688 V. Dowdswell, i. 688 Bayley and Baker, i. 687-8 V. Corporation of Leominster, i. 706, 754 V. Homan, ii. 212 and Pilkington, i. 22. 770 V. Warburton, i. 69. 401. 432. 627. 678. 692 Baylie and Child, ii. 51 V. Hughes, ii. 312 Baylis v. Dineley, i. 30. 32. 528 Baylor and Nagle, i. 45 Bayly and Drew, i. 157. 369; ii. 96. 359 V. Munday, i. 83. 246 V. Murin, i. 83. 246 r. Offord, ii. 112 T. Tyrrell, i. 628 Baylye and Drue, ii. 96. 359. 369 Baynes v. Belson, i. 395. 454. 463 Baynham v. Guy's Hospital, 1. 008. 708. 711-12. 719. 726. 734. 754 Baynton v. Bobbet, ii. 129 Beak and Mayn, ii. 53 Beal v. Brasier, ii. 393 and Taylor, ii. 215 Beale and Brasier, ii. 393 V. Sanders, ii. 190. 521 and Saunders, i. 157 r. Taylor, ii. 215 Bearcroft and Geary, i. 23 Beaufort (Duke of) v. Berty, i. 374 Beaumont v. Boulsbee, i. 560 and Villers, i. 140 Beauvoir atid Rhodes, i. 561. 563 Beavan v. Delahay, ii. 190. 521 Beaver v. Lane, i. 140. 145 Beazely a?id Walford, i. 569 Beck dem. Hawkins v. Welsh, i. 91 Beckett v. Bradley, i. 59 Beckwith's case, i. 134 Bedborough andCnmmiag, ii. 178. 181 Bedell's case, i. 396-7 Bedell v. Constable, i. 374. 376-378-9. 436. Bedford's case, i. 84 (Earl of) case, i. 308 Bedford v. Brutton, ii. 164 (Duke of) V. Trustees of Bri- tish Museum, ii. 238. 413 Bedinfield v. Archbishop of Canter- bury and Pickering, i. 290 Beeche a?id Knight, i. 74 ; ii. 86. 104 Beely v. Purry, ii. 386 Belasyse v. Burbridge, i. 659 Belcher v. Mcintosh, ii. 196-7 V. Sikes, ii. 302 and Thunder dem. Weaver, i. 122; ii. 4. 164. 170 Belfield v. Adams, i. 537 Belford v. Foord, i. 51. 309 Belfour r. Weston, ii. 120-1. 183 Bell atid Dawson (lessee), ii. 30 and Doe dem. Rigge, i. 373 ; ii. 190. 521 and Hay don, i. 619 and Jack dem. Dawson, ii. 29 and (lessee) Dawson, ii. 30 v. Nangle, i. 706 and Partridge, ii . 2 dem. Smyth v. Nangle, i. 704. 713. 731 Bellamie and Walker, ii. 277 Bellamy and Cooks, i. 53. 55 and Diamond, i. 31 and Fish, ii. 62-3. 328 and Hooks, i. 53. 55 Bellasis r. Burbriche, i. 23. 659. 661. 662. 665 ; ii. 422 r. Burbrick, i. 23. 656 ; ii. 422 xlviii TABLE OF CASES. Bellasis and Southern, ii. 144 Bellingham v. Alsop, i. 50. 125. 128 Belson and Baynes, i. 395. 454. 463 Benbow and Wade, ii. 5 Benbuiy and Worledge, i. 109 Benecke, Ex parte, ii. 434. 441. 446. Benett anc? Knight, i. 582. 612. 653 Benjamin andDoe dem. Phillip, i. 605. 611 Bennett's case, ii. 499 Bennett and Allen, i. 570 and Burnham, i. 405 V. Colley, i. 781 • and Dent, i. 559 V. Gawdy, i. 50 and Hughes, ii. 296 and Knight, i. 582. 612. 653 r. Robins, i. 389 V. Womack, ii. 161. 173. 248 Benson a7id Doe dem. Hall, ii. 67 V. Gibson, ii. 107. 108 and Pleasant, dem. Hayton. i. 104 and Sanders, ii. 430 Bent and Cox, i. 582. 590. 653 Bentham v. Alston, ii. 140 Bentleya?«c? Flight, ii.185.387.425-6-7 and Poole, i. 583. 585. 586. 599. 600. 602-3. 605 a?i6? Rawstorne, i. 106. 115. 752 Bettison and Doe dem. Bromley, i. 483-4. 514. 516. 703 ; ii. 192 Betty and Hall, i. 617 Bere and Partridge, i. 164 Bergin and (lessee) Sharp, ii. 326 and Sharp (lessee), ii. 326 Berkeley?-. Hardy, i. 391-2-3 ; ii. 13. 99 Berkhampstead Free School, Ex parte, i. 347. 358 Berkley and Foote, i. 53 ; ii. 10. 50. 64-5 Bernard v. Bonner, ii. 606. 507 and Tempany, ii. 192, 218 Berney v. Moore, ii. 482 Berrie and J3o\vles, i. 70. 97 Berrey v. Lindley, ii. 521 Berrington v. Parkhurst, i. 50 Berris v. Bowyer, i. 50 Berry and Petrie, i. 134 T, Riche, i. 447 V. Taunton, ii. 257. 2.59 V. White, i. 75. ,397. 406. 436. 447. 452-3-4. 462-3-4. 493. 520. 522. 525 ; ii. .02 Bertie and Falkland (Lord), i. 30 and Lord Falkland, i. 30 Berty and Beaufort (I)uke of), i. 374 and Duke of Heaufort, i. 374 Berwick'H cahe, i. 233 Bery and King, i. 100 Bessie and Harris, i. 436 Boston and Browning, i. 146 ; ii. 86. 330 Betesworth v. Dean and Chapter of St. Paul's, i. 725 Betford?;. Ford, i. 51. 309 Betsworth v. Dean and Chapter of St. Paul's, i. 725 Bettison v. Elways, i. 70 Bettisworth's case, ii. 32. 33 Bevan and Doe dem. Goodbehere, ii. 252. 258-9. 265. 268 Beverley's case, i. 37 Beverley v. Lincoln Gas Light Com- pany, i. 178 Beverlye and Vincent, ii. 128 Be vis and Whitchurch, i. 572 BickerstafF and Hayes, ii. 9. 285. 292. 312-13-14 Bickford and Warn, ii. 316 Bickley and Hare, i. 288. 291 Bicknell v. Hood, i. 586 Biden v. Loveday, i. 694 Biddulph and Earl of Shelbume, i. 741 and Shelbume (Earl of), i. 741 Bidgood and Arnold, i. 368 Biggs and Pope, i. 164-5. 169. 171. 172 ; ii. 100. 129 and Swanton, ii. 225. 475. 480 Bill dem. Stroud v. Holt, i. 239 Billing and Pye, ii. 331 Billinghurst v. Speerman, ii. 367. 368. 370 Billingsby v. Hercy, ii. 39 Billingsley v. Hersey, i. 27 and Hersey, ii. 39. 45 Billingsly v. Hersey, ii. 39. 45 Billingworth v. Spearman, ii. 367 Binks and Appleton, i. 391 Birch and Doe dem. Nash, ii. 329. 468 V. Stephenson, i. 61 ; ii. 26. 108. 109 V. Wright, i. 104. 164. 170. 656 661. 662. 664 Birchall v. Smethurst, ii. 324 Birchman r. Noright, i. 29 Bird T. Higginson, i. 177-8 ; ii. 1. 2 Bircham aiul Ireland, ii. 288. 292 and Withers, i. 134 Bird andTioe dem. Wetherell, ii.220. 231-2 and Harper, ii. 87. 164. 382. 402. and Reeve, ii. 503 liirkbeck and Harker, ii. 548 liirkhead and Sangster, ii. 172 Birton and Starkey, i. 181 TABLE or CASES. xlix Bis V. Holt, i. 239 Bisco (lessor, De Strode) v. Holte, i. 239 Bishop of Bath's case, i. 652. 668 ; ii. 62-3-4. 68-9-70-1-2. 328 Bath and Wells and Dyke, i. 79. 81 Carlisle, ii. 502 Chester and Wivel, i. 307 ■ Coventry and Sale, i. 287 Ely and Attorney-General, i. 704 Hereford v. Scory, i. 77-8. 287. 293 Lincoln and Chapter of Southwell, i. 287 Litchfield v. Fisher, i. 294. 296 London atidRex, i. 288.290 Ossory's case, i. 288 Oxford V. Wise, ii. 172 Raphoe v. Hawkesworth, ii. 404 Salisbury's case, i. 76. 287. 293 Salisbury and Davenant, i. 84; ii. 171-2 Sarum and Davenant, i. 84 Winchester v. Wright, i. 24 Bishop V. Goodwin, ii. 166 V. Howard, ii. 521 and Sullivan, ii. 523 Bishopric of Waterford a7id Lismore (case of), 294 Bissell and ^Morgan dem. Dowding, i. 583. 592 ; ii. 156 Black (lessee of) v. Davis, ii. 386 Blackasper's case, i. 131 Blackborn and Balder, i. 378 and Chinneiy, ii. 422 • and Mansfield (Earl of), ii. 200 ■ and Pym, ii. 186 Blackburne and Earl of Mansfield, ii. 200 Blacker v. Mathers, ii. 239 Blackerby and Schellinger, i. 25 Blackman and Ponesley, i. 21. 105 . or Blakeman and Pouseley, i. 21. 105. 164. 170 — or Blakeman «w(7Powseley, i. 21. 105. 164. 170 Blackston v. Heap, i. 157 ; ii. 394 Blackwell and Davis, ii. 377. 380 Blagrave and Barrett, ii. 237 and Carvick, i. 58 Blake v. Blake, i. 769 V. Foster, i. 56. 58. 62-3. 123. 139 and Hastings, ii. 353 VOL. L Blake and Moore, i. 628 Blakeman and Ponesley, i. 164. 170 Blakeney v. Bagott, i. 562-3. 626. 745 Blakesley v. Whieldon, ii. 158 Blakeway and West, ii. 202. 277 Blakey and Clayton, ii. 4 Blamire a7id Carlisle (Mayor of), ii. 415 ' and Mayor, &c., of Carlisle, ii. 396. 415 Bland's case, ii. 88. 90. 92. 94-5. 97-8 Bland v. Inman, ii. 88. 90. 92. 94-5. 97-8 Blandford v. Marlborough, ii. 171. 172 Blandy, Ex parte, ii. 434. 441. 446 and Cooper, i. 60 Blatchford v. Mayor, &c., of Ply- mouth, ii. 290 Blaxton i: Heath, i. 129. 139. 157 Blemmer Hasset v. Humberstone, i. 537 Bliss V. Collins, ii. 130-1-2. 146 and Doe dem. Boscawen, ii. 270. 471 Blogg and Holmes, i. 528-9 Blomberg and Vivian, i. 243 Blore V. Sutton, i. 95. 404. 408-9-10. 577-8 Blount r. Pearman, ii. 557-8 Bloxam v. Walker, ii. 312 r. Warner, ii. 312 Bluck and Chapman, i. 598-9. 603. 729-30-1 ; ii. 3. 23 and Doe dem. Colnaghi, ii. 329 Blunck a7id James, ii. 410. 412-13 Blunden's case, ii. 117 BlundeniJ. Baugh, i. 21. 105 and Brown, ii. 199 Boardman v. Mostyn, i. 575. 623. 625. 634. 636 ; ii. 241. 250 Boarman v. Arton, ii. 421 Boase v. Jackson, ii. 557-8 Boast and Doe dem. Topping, ii. 530 Bobbet and Baynton, ii. 129 Boddy V. Hargrave, ii. 369 Bodinner and Jones, ii. 128 Bodkin and Vesey, i. 762 Boen and Yates, i. 37 Bole and Smith, i. 74. 78. 467 ; ii. 55 Bolland and Simmons, ii. 377 Bolls V. Winton, i. 395 Bolton r. Bishop of Carlisle, ii. 502 V. Canham, ii. 367, 370 V. Cannon, ii. 367. 370 and Chesterfield, ii. 186 (Duke of) ?'. Deane, i. 702 (Lord) r. Tomlin, ii. 4. 5 Bond and Doe dem. Earl of Darling- ton, ii. 323 1 TABLE OP CASES. Bond V. Cartwright, i. 128 ; ii. 9G V. Hopkins, ii. 278. 475 and Townley, i. 758. 762 Bonner and Bernard, ii. 506-7 Bonnett r. Sadler, ii. 232 Bonnye's case, i. 237 Bonoyon v. Palmer, i. 127 Boodle r. Cambell, ii. 100. 129 Boorome and Futter, i. 232. 234-5 Boot V. Wilson, ii. 433 Booth and Cooke, i. 608. 708. 715. 719. 725-6. 728 and Flight, ii. 230 Boraston's case, ii. 70 Boraston -". Green, ii. 521 Bord V. Cudmore, ii. 386 Boroughes's case, i. 235 ; ii. 100. 333. 334. 336 Boroughs V. Windsor, ii. 257 Bosanquet and Williams, i. 22-3 ; ii. 375. 423 Boteler and Salter, i. 689 Botfield and Bradburne, i. 133-4-5 ; ii. 402 Botheroyd v. Woolley, ii. 142. 144 Boulcot and Doe dem. Hunter, ii. 567 Boulsbee and Beaumont, i. 560 Boulton and Breers, i. 436 V. Canon, ii. 356. 370. 416 Bourdillon v. Dalton, ii. 434-5 Bourke and O'Hara, i. 757 Bourman v. Acton, ii. 421 Bousfield and Doe dem. Robinson, i. 106-7 Bousher t:. Morgan, i. 24 Bovenden and Clerke, ii. 116. 118 Boverton v. Evans, i. 55 Bowditch and Doe dem. Darke, ii. 344 Bowe's case, i. 655 Bowen or Bowin and Smyth, i. 28. 31 and Pariy, i. 437 and Pawcy, i. 437 and Smith, i. 28. 31 V. Whitmore, ii. 482-3-4 Bower a7id Allan, i. 623 and Doe dem. Ashforth, i. 234 V. Majoi", ii. 496 Bowers v. Cator, i. 579 and Perry, i. 50 Bowes T. East London Waterworks Company, i. 94-5. 346. 405. 410. 445.488. 523-4-5 and Perry, i. 50 Bowin and Smith, i. 31 Bowles's case, i. 69. 97 Bowles V. lierrie, i. 70. 97 a7id Smith, i. 70. 74. 78, 300. .302 ; ii. .55 V. Stewart, i. 766 Bowi-ing V. Stevens, ii. 563 Bowser v. Colby, ii. 259. 329. 477. 480-1-2 Bowyer and Berris, i. 50 and Perry, i. 50 Boycott and Keane, i. 31 Boyes v. Hewetson, ii. 386. 402 Boyland v. M^arner, i. 393. 442 Boyle v.Lysaght, i. 703. 707. 757. 761 V. Olphants, ii. 43 Boys and Fisher, i. 182 Bozoun's case, i. 232. 234-5 Bozoun and Hennings, i. 673 Brabason and Hemming, i. 673 Brace and March, ii. 354. 356 and Marsh, ii. 354. 356 Bracebridge v. Buckley, ii. 210. 477. 483-4. 486. 488-9-90 V. Cook, ii. 513 Bradburn and Lord Hatherton, ii. 83 Bradburne and Botfield, i. 133-5 ; ii. 402 and Hatherton (Lord), ii. 83 Bradbury and Thompson, ii. 445. 447 V. Wright, ii. 171 Braddyll and Duck, ii. 554-5 Bradford's (Lord) Committee, Ex parte, i. 39. 401. 403 Bradley and Beckett, i . 59 and Martyn, ii. 201 Bradshaw's case, i. 670 ; ii. 316 Bradshaw and Salman, ii. 316 Bradstreet and Shannon, i. 31. 86. 394. 398. 408-9. 447. 486. 490. 524. 577-8. 613 Bragg and Jennings, i. 29. 48. 50 ' 1). Nightingale, ii. 219 V. Wiseman, ii. 285-6. 360 Brags and Burleigh, ii. 394 Brain and Cox, i. 24 Bramah and Wheeler, ii. 434-5. 438-9 Bramston r. Robins, ii. 174. 178 Brandling and Newmarch, i. 24 Brandon v. Aston, ii. 255 V. Brandon, i. 389 and Flint, ii. 210. 281 Brandwood a7id Whitfield, ii. 174 Branscombe and Wheeler, i. 169 Brashier v. Jackson, i. 590 Brasier and Beal, ii. 393 r. Beale, ii. 393 Braughton (T^ady) and Rex, i 26 Jhay and Ingram, ii. 154 J5rayne awr/ Mollett, ii. 503 Braythwayte v. Hitchcock, i. 611 Breach mid Doe dem. Oldershaw, i, 612 ami Knight, i. 74 ; ii.86. 104 Bream and Armote, ii. 10 TABLE OF CASES. Bream and Arnote, ii. 10 Breame and Armitt, ii. 10 Brebner and I'aton, i. 614 Brecli, or Breach and Knight, i. 74 ; ii. 8(5. 104 Brecknock, &c., Canal Company v. Pritchard, ii. 18(5-7 Breedon and Williams, ii. 100 Breers v. Boulton, i. 436 Bremer v. Palmer, ii. 566 Bremridge and Remnant, ii. 370. 373 Brenton a7id Rowe, i. 217. 221 Brereton v. Evans, i. 48. 55. 57 Bretland and Ashton, i. 707. 709. 741-2. 744 Brett v. Cumberland, i. 140. 145. 230. 732 ; ii. 5. 87. 103. 352.355-6. 382. 386. 398 and Scribblehill, ii. 20 and Stribblehill, ii. 20 Bretter, Ex parte, ii. 544 Brewer and Rakestraw, i. 764 V. Hill, i. 24. 102 ; ii. 259 405 dem. Lord Onslow v. Eaton, ii. 469 Brewster r. Kidgell, ii. 170-1 V. Kidgil, ii. 170 V. Kitchell, ii. 171 V. Kitchin, ii. 171 • '*'. Parrot, ii. 509 Briant and Farley, ii. 305. 376 Bridge and Pigot, ii. 111. 126 Bridgeman v. Green, i. 44 Bridger, Mre., ii. 441 Bridges and Baldwin, i. 762 ayid Doe dem. Bishop of Ro- chester, i. 84. 282 ; ii. 509-10 and Doe dem. Murray, i. 84. 282 a7id Green, ii. 225-6. 483. 490 and Grove, i. 106 and Harvey, ii. 346 ».Hitchcock,i.713.715-16.719 and Stephens, ii. 515 Bridgewater's (Earl of) case, i. 68 Bridgham v. Frontee, i. 533 Bridgland v. Shapter, i. 24 ; ii. 2. 27 Bridgman v. Lightfoot, ii. 374 Briggs V. Sowiy, ii. 450-1 and Sutherland, i. 570. 573. 575 ; ii. 539-40 Bright, Ex parte, ii. 441 Brindley, Mre., i. 164 and Doe dem. Kensington, _ ii. 469 a7id Doe dem. Lord Ken- sington, ii. 469-70 and Doe dem. Rankin, ii. 217. 473 Bringloe jj.Goodson, i.526; ii. 107. 398 Brisbane v. Dacres, ii. 177 Briscoe and Huddleston, i. 570 Brisden v. Hussey, i. 375 Bristol (Dean and Chapter of) v. Clerke, i. 304 Bristow V. Bristowe, ii. 387. 391 V. Wood, ii. 238. 413 Bristowe and Bristow, ii. 387. 391 Britain and Doe dem. Coleman, i. 382 Britten v. Britten, ii. 358 V. Perrott, ii. 358 Brittin v. Vaux, ii. 416 Britton v. Cole, i. 534 Broad and Doe dem. Winnell, ii. 209. 279 Brocking «. Cham, ii. 312 Brockhurst and Whitbread, i. 576 Brocks V. Phillips, i. 533-4 Brodie v. St. Paul, i. 571. 643 Brodrick and Hooper, ii. 233 Bi'ogden and Clow, ii. 215 Broke v. Smith, ii. 576 Broking v. Cham, ii. 312 Brome v. Hore, ii. 398 Bromefield r. Williamson, ii. 427 Bromehill and Cooke, i. 525 Bromfield v. Chichester, i. 733. 762-3. 7(34. 766 Bromley and Harland, ii, 503 Brook (Earl) v. Bulkeley, i. 741-2. 746 V. Goring, i. 232 and Grosvenor, i. 531 and Jenney, ii. 44 and Perring, i. 598. 611 Brooke and Attorney-General, i. 349. 351-2-3. 361. 708-9 V. Hewitt, i. 630. 634 a?«c? Parker, i. 763. 765.767-8. 769-70 Brookes and Doe, ii. 67 V. Humphreys, ii. 315 Brookesby and Cave, ii. 313 Brookman v. Hales, i. 766 Brooks v. Foxcroft, i. 57. 132 Broom v. Hore, ii. 135 and Page, i. 632 ; ii. 364 Broome v. Mordant, i. 143 V. Robinson, ii. 435 Broughton v. Conway, ii. 303 (Lady) and Rex., i. 26 Brown and Administratrix of Penry, ii. 202 and Banks, i. 74. 692; ii. 54 V. Blunden, ii. 199 V. Brown, ii. 293 and Burton, ii. 30 flW(?Church,ii.87. 157, 159-60. 161. 240. 244. 248-9-50. 255. 259-60. 270 e2 lii TABLE OF CASES. Brown and Cox, ii. 265 V. Crump, ii. 182 and Denbyn, i. 540 and Drant, ii. 565 and Elliott, i. 538 V. Goldsmith, ii. 38 a)id Lord Southampton, ii. 13. 99. 381 V. McFarran, ii. 6, 429 and Parry, 437 and Penry's Administratrix, ii. 202 V. Petre, i. 696 r. Quilter, ii. 120-1-2. 124-5. 183. 193-4. 289 and Shury, i. 129; ii. 85. 91-2. 96. 126 and Southampton (Lord), i. 381 ; ii. 13. 99 V. Storey, i. 164-5. 171 and Sury, i. 24; ii. 90-1-2 V. Tighe, i. 668. 703. 707-8. 718-19. 723. 728 Browne v. Amyot, ii. 146 and Baxter dem. Abrahall, i. 599 Dunnerv, i- 540 and Hill, ii. 314 V. Joddrell, i. 37 and Kenney, i. 563 V. O'Dea, ii. 20 V. Raban, ii. 160. 239. 243. 247-8-9 T. Warner, i. 103. 583 Browning v. Beston, i. 146 ; ii. 86. 330 and Seaman, ii. 313 V. Wright, ii. 293-4. 296-7. 300. 303. 305-6-7-8 Brownlow and Chandos (Dowager Duchess of), ii. 402 and Dowager Duchess of Chandos, ii. 402 Brudnell's case, i. 537-8-9. 670-71. 680. 687 Brudnell v. Roberts, i. 61-2. 94 ; ii. 360. 363 Bruen v. Nowlen, ii. 151 Bruerton and Archbishop of Dublin, i. 293 and Dublin (Archbishop of), i. 293 V. Rainsford, i. 23 lirummell v. IMacpherson, ii. 269-70 Brunton r. Hall, ii. 39 Brutton and Bedford, ii. 164 Bryant and Harries, i. 754. 759 and Laythorp, i. 570 Brydges and Doe dem. Brook, ii. 217 and Harvey, ii. 346 Buck T. Barnard, ii. 371 Buckeridge v. Ingram, i. 778 Buckingham (Earl of) v. Drury, i. 31 Buckland r. Hall, i. 633-4. 636 ; ii. 163. 352. 416 Buckle and Reynolds, ii. 128 Buckler's case, ii. 48. 78. 81 Buckley and Bracebridge, ii. 210. 477. 483-4. 486. 488-9-90 and Holmes, ii. 414 and Kitchin, i. 133 ; ii. 271 402 a7\d Knight, ii. 416 V. Lanauze, i. 776. 770 V. Nightingale, ii. 364 r. Pirk,ii.l84. 369-70-1. 374. 402 and Wall, i. 382 Buckly and Kightly, ii. 416 and Kitchen, ii, 389. 392 and Twyford, i. 691 V. Williams, ii. 315 Bucknell and Doe dem. Hughes, i. 165. 169. 171 and Right dem. JefFerys, i. 54-5 and Weakly dem. Yea, i. 582. 613 Buckney and Cartwright, ii. 83 Buckworth v. Simpson, i. 664 ; ii. 370. 387. 556 Budbery and Gallies, ii. 410 Bufkyn v. Edmunds, ii. 334 Bulcock and Harrison, ii. 172 Bulkeley and Brook (Earl), i. 741-2. 746 and EarlBrook, i. 741-2. 746 and Rex dem. Hall, i. 446. 525-6 and Roe dem. Hall, i. 405 Bulkley and Keely, ii. 416 Bulkly and Kighly, i. 654 ; ii. 416 Bullard and Rhodes, ii. 32. 183 Bull V. Sibbs, ii. 369 V. Wheeler, ii. 374 V. Winter, ii. 374 V. Wyatt, i. 694 ; ii. 64 Bullen V. Denning, ii. 40. 45 Buller V. Doddington, ii. 21 Bullock V. Dibley, i. 116 V. Dommitt, ii. 186 and Croke, i. 21 and Solme, ii. 33 and Timln-ell, ii. 127. 507 Bunkley and Kitchin, i. 133 ; ii. 392 and Knight, i. 133 Bunkly a7id Kitchen, ii. 389. 392 and Knight, ii. 392 Bunny v. Wright, i. 239. 293 l^urbidgc (Did Delasyso, i. 659 lUubrick and Bellasis, i. 23. 656; ii. 422 TABLE OF CASES. liii Burbricke and Bellasis, i. 23. 659. 661-2. 66.5 ; ii. 422. Burdett r. Withers, ii. 196 Burgh and Harper, ii. 87. 164. 382. 403 Burket and Spendlowes, i. 238. 308 Burleigh v. Brags, ii. 394 Burleton r. Humfrey, ii. 267 Burman r. Aston, ii. 421 Burn F. Phelps, ii. 129 Burne t. Cambridge, i. 131-3 V. Madden, ii. 107-8 ■ and Thomas, i. 782 Burnell awf/Earl of Inchiquin, i. 724 ; ii. 83 and Inchiquin (Earl of), i. 724 ; ii. 83 Burnett v. Lynch, i. 517. 732-6-9 ; ii. 285. 352. 355-6. 376. 428-9 Burnham r. Bennett, i. 405. Burr and Gulliver dem. Tasker, i. 658 Burrell v. Harrison, ii. 183 V. Jones, i. 391-2 and Williams, ii. 285-6 Burron and Low, i. 687-8 Burrough and Doe dem. Lord Egre- mont, i. 506 r. Taylor, i. 235 ; ii. 100. 333. 336 Burroughs and Long, ii. Ill Burrowes r. Gradin, i. 164. 169 Buny and Windsor, ii. 257 Burt and Doe dem. Freeland, ii. 31 Burtchell and Shee, ii. 32 Burtenshaw a?irf Clayton, i. 589, 611; ii. 23. 558-9. 566 Burton v. Barclay, ii. 58. 271. 391. 394. 423. 515 r. Brown, ii. 30 r. Horton, ii. 257-8 Burwell r. Harrison, ii. 183 Bush V. Calls, ii. 40 V. Cole or Coles, ii. 40 Bushell V. Lechmore, ii. 127-8. 133 Buskin r. Edmunds, ii. 334. 386 Bustard v. Coulter, ii. 21 aw? Smith, ii. 116-17 Butcher's case, ii. 93 Butcher and Doe dem. Lord Grant- ley, ii. 234 and Doe dem. Simpson, i. 94-5. 524 and Harflet, ii. 219 and Richmond, ii. 93. 95 Butler fl«f/ Abingdon (Lord), i. 748 and Carden, ii. 108 V. Dodson, ii. 21 r. Fincher, i. 178. 691-2. 694; ii. 54 Butler r. Laurenson, i. 570 and Lord Abingdon, i. 748 r. Lord Portarlington, 762 V. Mulvihill, i. 4.j V. Fowls, i. 408. 622 and Salter, i. 689 and Stewkley, ii. 37-8 and Stukeley, ii. 28. 37-8. 78. 81. 249 c Swinerton, i. 540 ; ii. 309-11 Butt, Mre., ii. 447 Button T. Wrightman, i. 184 Bye and Whitton, ii. 97. 154 and Wooton, ii. 154 Byrne v. Acton, i. 440. 523 and Lessee Newton, i. 671 and Newton (lessee), i. 671 Byron and Doe dem. Wyatt, i. 102 ; ii. 476. 482 CABEL mid Scovel, ii. 79 Cabels and Leversage, ii. 79 Cacyffyr and Mawle, ii. 367-8-9-70 Cadby v. Martinez, ii. 467 Cadee v. Oliver, i. 148 Cadwallader and Doe dem. Rogers, i. 171 Caffin and Milward, ii. 172 Cafiyn and Hancock, i. 608. 728. 732 Cage V. Acton, ii. 512. 514 Calcraft and Wadman, ii. 278. 477. 481. 484. 487 Cale and Dowse, ii. 199. 203. 387.391 Calis and Bush, ii. 40 Callinan and Lysaght, i. 165 Calthorp v. Heyton, ii. 289 Calvert and Doe dem. Allan, i. 437. 443. 445. 447 Calvin's case, i. 531. 534 Caly V. Joslin, ii. 367. 369 Cambell's case, ii. 131 Cambell and Boodle, ii. 100. 129 Cambridge and Burne, i. 131-3 Campbell v. Leach, i. 394. 398. 407-8. 436-7. 446. 4.50. 493 f. Lewis, ii. 291. 315. 402 and Lewis, ii. 402 V. Sandys, i. 689 Campden v. ]Moreton,ii. 124. 192.194 Campion and Fish, ii. 133. 506 V. Thorp, i, 414. 467. 470-1 and Vivian, ii. 212-13. 356 Candle and Clarke, ii. 61 Canham v. Bolton, ii. 367. 370 V. Rust, ii. 387. 416 Cannon and Bolton, ii. 367. 370 Uv TABLE OF CASES. Canon «??«? Boulton, ii. 356. 370. 416 Capel and Stephens, ii. 63 V. Wood, i. 770-1. 773 Capenhurst v. Capenhurst, ii. 51. 71 Capes and Weddall, ii. 504. 507 Caponhurst v. Capenhurst, ii- 51. 71 Caps and Sydenham, i. 73 Cara and Lenial, ii. 101. 115 and Llemall, ii, 101. 115 Carden v. Butler, ii. 108 and Osborn, i. 156. 375. 377 Cardigan (Earl of) y. Armitage,ii.44-5 V. Montagu,i.427. 466. 470. 516 Cardross and Hamilton, i. 32 Cardwell v. Lucas, i. 56 ; ii. 396 Carewa?ic?Doe dem. Wyndham,ii. 322 and Lion, ii. 101. 115 Carlisle (Mayor of) v. Blamire, ii. 415 Carmarthen (Mayor, &c,, of) v. Lewis, i. 178 Carnegie v. Waugh, i. 34 Caroon's case, i. 532-3 Carpenter v. Colins, i. 393 V. Collins, i. 393 Carrick v. Young, i. 639 Carter v. Claycole, i. 76. 78. 247. 304 V. Cleypoole, i. 78 V. Crumwell, i. 78. 304 V. Cummins, ii. 122 V. Dean and Chapter of Ely, i. 177-80 and Doe dem. Mitchinson, ii. 238. 2.50. 254-5 Carter's lessee v. Tash, ii. 512 Carter v. Warne, ii. 435. 459 Carteret (Lord) v. Paschal, i. 156 Cartwright's case, i. 128 Cartwright <;. Buchney, ii. 83 and Doe dem. Bingham, ii. 566 and Denn dem. Jacklin, i. 661. 665 V. Pinckney, ii. 83. 95. 506 Carill and Lowther, i. 568 Came and Hangon, ii. 101. 115 and Langan, ii. 101. 115 and Lanyon, ii. 101. 115 Carney and Forbes, ii. 108 Carr and Coulston, ii. 289 Carre and Llemall, ii. 101 Carroll and Savage, i. 576 Carstairs and Kearsey, ii. 442 Carter and Franklin, ii. 129. 180 awc/Wil.sonilem.Eyre, i.l73.246 Cartwright and liond, i. 128 ; ii. 96 and IMght dem. I'lowden, i. 677 ; ii. J 2. 23. .'JO. 69 Carvick r. Hlagravc-, i. 58 Cary r. Mildmay, ii. 474 Casbard and Hellier, ii. 87. 367-8-9. 370 Casberd v. Attorney-General, ii. 423 Case of Churchwardens of St. Sa- viour, South wark, i. 234 Duchy of Lancaster, i. 33 Ecclesiastical persons, i. 240-1 Proxies, i. 294 The Queensbury Leases, i. 66. 437 Case V. Stephens, ii. 172 Casebert and Helier, ii. 87. 367-8-9. 371 Cass aw(? Noble, ii. 213. 315 V. Rudele, i. 391 Casson and Withes, ii. 64 Castilion v. Smith's Executors, ii. 373 Cater and Pistor, i. 117 Catesby and Mountford, ii. 312 Catesby's case, i. 657 Cator and Bowers, i. 579 and Goodright dem. Hare, ii. 331. 338. 340 and Hare, ii. 421 and Jackson, i. 95 Cattell t. Gamble, ii. 553 Cattle V. Gamble, ii. 553 Cavan(Lady)v. Pulteney,i.66; ii. 310 (Countess Dowager of) v. Doe dem, Pulteney, i. 483 Cave V. Brookesby, ii. 313 V. Halford, i. 21 and Smith, i. 231 and Smyth, i. 231 Cavel and Scovel, ii. 79 Cawdor and Doe dem. Lewis, ii. 496. 498 Cawood and Wilkinson, ii. 374 Cawsy and Cornish, ii. 54-6. 371 Cecil's case, i. 676 Cecil V. Salisbury, i. 30. 35 Ceely and Richards, i. 114. 594 Celey and Hare, ii. 23 Chadwick and Kirkham, i. 711 Chafyn de Meere's case, i. 297-8. 300 Chalener and Hedd, i. 107. 155 Challoner v. Davies, i. 131 V. Ware, ii. 338 Cham and Brocking, ii. 312 a7id Broking, ii. 312 Chamberlaine's case, ii. 504 Chamberlain v. Chamberlain, i. 370 and Cox, ii. 415 Chambers and Doe dem. Bank of England, i. 178-9 V. Mason, i. 233 ; ii. 103 and Mason, i. 233-4 ; ii. 66. 103 and Smith, ii. 285 TABLE OF CASES. Iv Champeinoii v. Champernon, ii. 171 Champion's ca«e, i. 300. 304 Champion v. Rigby, i. 5G0. 562-3 a)id Vivian, ii. 212. 3G1 Champney, Mre., ii. 2G8 Chancellor i: Poole, ii. 5. 416. 423 Chandflower v. Waterhouse, ii. 312 Chandler a7id Prince, i. 396 Chandos (Dowager Duchess of) v. Brownlow, ii. 402 Changeur, Mre., i. 631 Chantflower v. Priestly, ii. 312 Chantrell v. Randall, ii. 61 Chanudflower v. Prestley, ii. 312 Chaplain and Southgate, ii. 314 Chaplin and Doe dem. Whayman, i. 126 and Sutton, ii. 142 and Tatem, ii. 402 Chapman v. Bluck, i. 598-9. 603. 729-30-1 ; ii. 3. 23 V. Towner, i. 592-3. 599. 611 ; ii. 461 and Somerville, i. 710 Chappel i: Whitlock, i. 425-6 Chapter of Southwell v. Bishop of Lincoln, i. 287 &c. of Southwell and London, ii. 34 Chard and Harbin, i. 155 and Herbin, i. 127 ; ii. 50 Charles v. Rowley, i. 752 Charlewood v. Duke of Bedford, i. 569 Charlton v. Driver, i. 785 Chartwell and Whitlock, i. 127-8. 598; ii. 23. 51 Chauncey v. Tahourden, ii. 474 Chaworth v. Phillips, ii. 388. 394 Chedington's (rector of) case, i. 676 ; ii. 51. 69. 71-2-3 Cheetham v. Hampson, ii. 182 and Leeds, ii. 120-1. 124. 195. 215 Chelsea Water-works Company v. Cowper, ii. 377 Cheney anc? Williams, i. 636 ; ii. 237. 260 Chenhalls and Roe dem. Larkin, ii. 552 Cherbourn ». Rye, ii. 128 Cherlyn and Pearce, ii. 561 Chesterfield v. Bolton, ii. 186 Cheyne's case, ii. 512 Chichester atid Bromfield, i. 733. 762-3-4. 766 -' and Evelyn, i. 528 and Rawe, i. 733. 762-3-4. 766, 768-9 — and Smith, i. 764 Chickeley's ca.se, ii, 402 Child V. Baylie, ii. 51 and Cooker, ii. 14 and Fenny dem. Easthani, i. 115. 594. 596 and John, ii. 114 Childes v. Wescot, i. 140-1 Chinnery v, Blackburn, ii. 422 and Muskerry, i. 429-30. 471. 479. 492. 515 Chinsley v. Langley, ii. 229. 231 Chisholm (ind Wilson, i. 599 Chivers and Wood, ii. 336 Choat and Moores, ii. 185. 425. 427 Chomley and Cony, ii. 10 Christie and Senhouse, ii. 159 Christy and Tancred, ii. 522 • V. Wilcox, ii. 416 Church w. Brown, ii. 87. 157. 159-60-1. 240. 244. 248-9-50. 255. 259-60. 270 (lessee) v. Donnell, i. 411 and Jenkins dem. Yate, i. 93. 95. 524 Churchwardens of Rugeley and Doe dem. Marquis of Anglesea, ii. 234. 333 Churchwardens of St. Peter and John- son, ii. 191. 386. 521 Churchwardens of St. Saviour's (South- wark), case of, i. 234 : ii. 507 Churchwardensof St. Saviour's (South- wark), r. Smith.-, ii. 416 Chute V. , i. 395 and Holman, ii. 359 and Selby, ii. 289-90 Cibel V. Hill, ii. 127 City of London r. Mitford, i. 706. 708. 753-4. 760 ; ii. 470 V. Nash, ii. 206. 209 V. Pugh, ii. 108 V. Richmond, ii. 414. 416-17 Clanricarde and Hamilton, i. 390 Clare and Doe dem. Coore, i. 1 14. 594. 611.613 Claridge a)id Hollis, ii. 539 Clark's case, i. 184. 300 Clark, Mre., ii. 441 and Doe dem. Lockwood, i. 672 ; ii. 252. 260 V. Hume, ii. 435. 438 and Jervoise, i. 346 T. Smith, i. 434. 438 • and Stacy, i. 80 Clarke i\ Candle, ii. 61 and Cranston, ii. 171 and Doe dem. Grundy, i. 320 V. Grant, i. 648. 651 ' ff;/f7 Machell, i. 65. 77. 84 Ivi TABLE OF CASES. Clarke v. Moore, i. 408. 593. 596. 612. 629 V. Peppin, i. 613 and Smith, i. 439 and Stokes, i. 76-7 a7id Ward, i. 325 Clarkson v. Lord Scarborough, i. 409 ; ii. 142 Clavering and Addevley, i. 775 V. Reed, ii. 164 V. Westley, ii. 164. 352. 415. 417 Clay and Coe, ii. 288 and Hungerford, i. 173 Claycole and Carter, i. 76. 78. 247. 304 Clayton's case, ii. 10. 55 Clayton, Ex parte, i. 42 • V. Blakey, ii. 4 V. Burtenshaw, i. 589. 611 ; ii. 23. 558. 559. 566 V. Gregson, ii. 206. 284 and Simpson, i. 136. 733. 734 ; ii. 233. 402 Clay worth and Cooke, i. 45 Clement v. Henley, ii. 12 Clements v. Scudamore, i. 688 Clerk V. Clerk, i. 127. 130 and Dormer, i. 27 and Jones, i. 26 and Machel, i. 65 and Matchel, i. 65 and Stacy, i. 80 Gierke v. Bovenden, ii. 116. 118 a7id Dean and Chapter of Bris- tol, i. 304 Clermont (Lord) r. Marquis of Down- shire, i. 712 Cleycole and Carter, i. 78 Cliff and Gamock, ii. 43 Clifford and Whitehead, ii. 503 Clifton and Gerrard, ii. 168 a}id Hornby, ii. 37-8 and Walmesley, i. 726 ; ii. 168 Clinan v. Cooke, i. 393. 577. 622-3. G41. 644 Clinton v. Hooper, i. 150. 152 and Stampe, ii. 42. 44 Clip.sham and Eccleston, i. 134 Cloak V. Hooper, ii. 288 Close V. Wilberforce, ii. 184. 430 Clo.ssey and Glover, i. 231 Clow V. Brogden, ii. 215 Clun's case, ii. 112. 116-17-18-19. 136. 139 Clun V. Fisher, ii. llfi-17-18 Chines, Ex ])artc, ii. 440-1 Clutton V. Fleming, i. 785 Cobb V. StokeH, ii. 517. 523. 525 Cobbold and Salter, ii. 369-70 Cochin V. Heathcote, ii. 78 Cochrane r. Robinson, ii. 376-8 Cock and Cockson, ii. 402. 406 Cocke, Coke, or Cooke, and Baldwin, i. 671 Cockell and Doe dem. Higgs, i. 320. 322 and Doe dem. Hobbs, i. 320. 322 Cocks, Ex parte, ii. 258. 268 V. Darson, i. 38 Cockson V. Cock, ii. 402. 406 Codd and Verlander, i. 569, 622 Coe V. Clay, ii. 288 Cofield's case, ii. 99 Coggins a)id Russell, ii. 464-5 Coghil V. Freelove, ii. 367-8. 371 Coke and Fountain, ii. 512 a7id Treackle, ii. 163. 417 Colbourne v. Mixstone, ii. 506 Colby and Bowser, ii. 259. 329. 477. 480-1-2 Colchester v. Arnott, i. 787 Cole's case, ii. 40 Cole and Arkwright, ii. 431 V. Banbery, i. 133 and Britton, i. 534 or Coles and Bush, ii. 40 and Combes, i. 662 and Emott, i. 27 ; ii. 85. 137 and Pordage, ii. 5 V. Robins, i. 45 V. Suiy, ii. 92. 97 and Sury, ii. 92. 96 a7id Thoroughgood, i. 46 V. Wall, i. Ill V. White, i. 575 Colegi-ave v. Manby, i. 751. 766. 781 Coleman v. Painter, ii. 288 V. Sherman, ii. 285 • V. Sherwyn, ii. 9. 285 V. Winch, ii. 364 «. Winne, ii. 364 Coles V. Trecothick, i. 393. 650 Colins and Carpenter, i. 393 College de Manchester v. Trafford, ii. 64. 69 Collett V. Hooper, i. 404. 526 Colley and Bennett, i. 781 V. Streeton, ii. 214 and Wilkinson, ii. 523-4 Collier a/id Fox, i. 76. 245 Collinge and Cosser, ii. 160-1. 229 and Naylor, ii. 200. 205 Collins and Bliss, ii. 130-1-2. 146 V. Barrow, ii. 183 and C'arpenter, i. 393 a7id Dorrell, ii. 38 TABLE OF CASES. Ivii Collins V. Harding, i. 26. Ill ; ii. 82. 8.-;-6. 132-3 , Mre., ii. 434-5. 440. 44(5 V. Plumb, ii. 397 and liobson, i. 041. 640 • V. Sillye, ii. 260. 264 Collison V. Lettsom, ii. 410 Collyer and Countess of Devon, ii. 352. 354 and Fox, i. 447 Colman and Doe dem. Bligh, i. 512 Columbell and Cooper, i. 104 Combes's case, i. 32-3. 105. 381. 391-2. 404 ; ii. 16 Combes v. Cole, i. 662 and Roper, i. 619-20. 731 Combs and Hall, ii. 27 Comerford and Lucas, ii. 185. 209. 424. 426-7 Committee of Lord Bradford, Ex parte, i. 39. 401. 403 Commons v. Marshall, i. 433 Company of Corn Exchange, Win- chester, V. Gillingham, ii. 564 Compton V. Allen, ii. 186 and Ford, i. 640 ; ii. 556 and Kitchin, i. 133 ; ii. 271. 389. 392. 402 and Smith, ii. 306-7-8 Conan v. Kemise, ii. 184. 271. 402 421 Conesbie v. Husky, i. 155 Coney and Sucklinge, ii. 338 Congham v. King, ii. 184. 271. 402. 421 Congleton (Mayor of) v. Pattison, ii. 230. 402. 405-6. 408-9-10 Conington and Iveson, i. 391 Const a)id Ward, ii. 172-3. 177 Constable's case, ii. 91 Constable and Bedell, i. 374. 376. 378-9. 436 Conway and Broughton, ii. 303 and Petit, ii. 92. 114 Cony V. Chomley, ii. 10 Conyers (lessee) v. Greene, ii. 543 Cooch V. Goodman, i. 51. 178. 182 ; ii. 9. 15. 396. 563 Cook and Bracebridge, ii. 513 V. Earl of Arundel, ii. 364 V. Harris, ii. 422 V. Younger, i. 83. 480 Cooke and Alcock, i. 33. 216-17. 231-2. 237 V. Booth, i. 608. 708. 715. 719. 725-6. 728 V. Bromehill, i. 525 V. Clavworth, i. 45 and Ciinan, i 393. 577. 622-3, 641. 644 Cooke V. Cooke, i. 389 and Hockin, ii. 102 and Thomas, ii. 352. 354-5. 503. 507 and Wooton, ii. 360 Cooker v. Child, ii. 14 Cooks V. Bellamy, i. 53-4-5 Coombe v. Greene, ii. 215. 218 Coomber r. Howard, ii. 113 Coonibes v. Dutton, i. 188. 199 ; ii. 463 Coombs and Fryer, i. 83. 480. 514 ; ii. 399 Cooper's case, i. 145 Cooper V. Blandy, i. 60 V. Columbell, i. 104 V. Denne, 1. 524 and Denne, i. 524 a?id Doe dem. Williams, ii. 496. 498 and Meld, ii. 48 and Monk, ii. 120-1. 187 V. Robinson, ii. 50. 53. 147 V. Young, ii. 129 Coopers' Company aiid Wildey, ii. 177 Cooth V. Jackson, i. 572 Cope and Dakin, i. 287 ; ii. 329 ajid Glover, ii. 382. 393 and Hunt, ii. 128 and Keen, i. 69. 90 and Knevytt, ii. 10 Copeland v. Stephens, i. 22-3 ; ii. 434-5 V. Watts, ii. 502 Copland v. Laporte, ii. 185 Copley and Gilby, i. 391 ; ii. 12. 397 T. Hepworth, i. 603 Coppin and Thrustout dem. Levick, i. 368 Copping V. Slaymaker, ii. 276 Corbet's case, ii. 506. 509 Cordell and Savell, ii. 72 Corder v. Drakeford, ii. 559 and Mason, ii. 277 Cordrye and Royston, ii. 371 Cordwent and Goodright dem. Chai*- ter, ii. 468 Corker v. Ennys, i. 526 Cormel v. Lisset, ii. 367. 369. 372 Corn Exchange Company, Winches- ter, V. Gillingham, ii. 564 Cornish and Atkinson, i. 368 r. Cawsy, ii. 54-5. 371 V. Cowsye, ii. 54 and Ferguson, ii. 73 V. Gest, i. 137 V. Mew, i. 778 Cornwall v. Lisset, ii. 367, 372 hiii TABLE OF CASES, Cornwall and Thrale, ii. 383. 386 Corpe mul Van, i. 648; ii. 160. 162. 229-30 Corporation of Arundel v. Holmes, i. 317 of Cashel and Attorney- General, i. 349 of Coventry and Wil- mot, i. 180 of Leominster and Bay- ley, i. 706. 754 of Newcastle and Attor- ney-General, i. 283. 320 of Queenborough and Marshall, i. 180. 572 Corrie and Onslow, ii. 163. 252. 268. 417. 449 awrfPreece, i. 13. 15. 17-18; ii. 83. 423 Corry v. Corry, i. 408 Corns V. , ii. 313. 316 Cory V. Cory, i. 45 Cosser v. CoUinge, ii. 160-1. 229 Costar aiid Taunton, ii. 517 Costard v. Winder, i. 290 V. Wingate, i. 290 Coster V. Cowling, ii. 567. 559 Costigan v. Hastier, i. 74 Costrike v. Mason, i. 656. 659. 665 Cother v. Merrick, i. 80 ; ii. 88. 93 Cottel and Curtise, i. 537 Cotton's case, i. 2 Coulston V. Carr, ii. 289 Coulter and Bustard, ii. 21 Countess of Arran v. Crispe, ii. 171 of Devon v. Collyer, ii. 352. 354 Dowager of Cavan v. Doe dem. Pulteney, i. 483 of Portland and Attorney- General, ii. 54 of Shaftsbury and Eyre, i. 373 of Shrewsbury's case, i. 656 of Sussex V. Wroth, i. 50. 454-5. 459-60 of Sussex's case and Wroth, i. 460 Courthope and Gibson, ii. 435 Coventry r. Coventry, i. 434. 459 Cowell rmJ Jodderell, ii. 352. 354 Cowling and Coster, ii. 557. 559 Cowpor and Chelsea Water-works Company, ii. 377 and Lane, i. 28-9. 31 V. Pollard, ii. 312 and Slilps, i. 95. 410. 524 CowsyH and Cctrnisli, ii. 54 Cox r. Bcnl, i. 582. 590. 653 Cox V. Brain, i. 24 V. Brown, ii. 265 V. Chamberlain, ii. 415 and Reeve, i. 69. 90 Coxe's case, i. 540 Coxe V. Day, i. 404. 406.494. 507-8-9. 511 Coyne (lessee of) v. Smith, i. 12. 18 Coyte and JeiFery, i. 85 Craddock and Lake, i. 538 Cragg v. Holme, i. 45 Cragh and Steed, i. 156 Cramporn v. Freshwater, i. 105 Crampton and Oldroyd, i. 24 Crane t. Taylor, i. 242. 246 Cranley n. Kingswell, ii. 336 Cranmer's case, i. 673 Cranston v. Clarke, ii. 171 Crawshay v. Maule, i. 538 Crayford r. Crayford, ii. 296 Creed and Doe dem. Newnham, i. 467 and Gubbins, i. 566 and Jack dem. Wheatley, i. 429. 436-8 ; ii. 11 and Schrieber, ii. 238. 413 Creswick and Reeves, i. 771. 775. 780 V. Saunders, ii. 386 Crethom and Harding, ii. 518 Crew and Furnival, i, 708. 711-12. 714-15. 719. 725. 731. 734. 741 ; ii. 402 Crispe «. Price, ii. 33 and Countess of Arran, ii. 171 V. Frier, ii. 89 and Lloyd, ii. 265, 274. 277 Crocker v. Kelsey, i. 70 Crockerell v. Owerell, i. 655. 657. 660. 767 Croft and Folkinghani, ii. 156. 159. 240. 245. 248. 250 V. Howell, i. 183 Crofts V. Pick, ii. 455 Croke v. Bullock, i. 21 Croker v. Kelsey, i. 70 Crompte and Martin, i. 133-4 Crompton and Leeds, ii. 269 — • V. Smith, ii. 112 Cromwell (Lord) v. Andrews, ii. 337 V. Grumsden, ii. 10 V. Grunsden, ii. 10 Crook and Attorney-General, i. 357 Crooke's case, i. 48 Croom /,'. Talbot, ii. 85. 137 CJrop V. Ilambledon, ii. 336 Cropp's case, ii. 1 19. 336 (Jropp V. Hambleton, ii. 119 Crosbie v. Tooke, i. 632. 636 TABLE OF CASES. lix Cioss and Attorney-General, i. 348-9. 355. 357-8-9-60-1. 363. 733 V. Barse, i. 395 V. Faustenditch, i. 21. 395 and Hogg, ii. 81 and Nicholls, ii. 552. 556 V. Powell, ii. 5 Crosse v. Young, ii. 313 Crouch and Doe dera. Jones, ii. 189 V. Fastolfe, ii. 336 Crowther and Hughes, i. 670-1 Crump and Brown, ii. 182 Crunipton and Paget, ii. 172 Crumwell and Carter, i. 78. 304 V. Grunsdale, ii. 10 Crusoe dem. Blencowe v. Bugby, i. 10 ; ii. 250-1-2. 254. 258-9. 268 Cudliff r. Rundle, ii. 37. 41 Cudlip V. Rundall, ii. 37-8. 41. 46 V. Rundell, ii. 37 V. Rundle, ii. 37-8. 41 Cudmore and Bord, ii. 386 and Simonds, i. 93 and Symonds, i. 77. 84-5. 93 CuUimore and Ball, i. 654-5 Cumberland andV,iei,\. 140. 145. 230. 732 ; ii. 5. 87. 163. 352. 355-6. 382. 386. 398 Cumberford's case, i. 414 Cumin v. Richardson, ii. 250 Camming v. Bedborough, ii. 178 181 Cummins and Carter, ii. 122 Curling v. Mills, i. 599 Currie v. Goold, ii. 177. 181 Curry v. Stanley, i. 706. 784-5 Curteene and DobitofFe, i. 70 Curteis and Marsh, ii. 260. 468-9 Curtes and March, ii. 260. 468-9 and Marshe, i. 142 Curtis V. Hunt, ii. 377 V. Spitty, ii. 135. 271 . 351. 355. 400. 421 V. Wheeler, i. 19. 102. 104 Curtise v. Cottel, i. 537 Curwood and Doe dem. Weatherhead, ii. 277 Cush and Stretton, ii. 217. 333. 337 and Swetman, ii. 217. 333. 337 Cushe and Stweton, ii. 217. 333. 337 Custance and Derialey, ii. 363-4 Cuthbertson and Grey, ii. 407 Cuthell and Right dem. Fisher, i. 126 ; ii. 462 Cutler and Snow, i. 434. 528 Cuts and Swelnam, ii. 217 Cutter V. Powell, ii. 122. 125 Cutting V. Derby, i. 132. 134. 136 ; ii. 143. 523. 524 Cuyler and White, 391. 393 D. D'ABRIDGCOURT «.Ashley,i. 391-2 Dacres and Brisbane, ii. 177 (Ladv) V. Hazel, i. 395 Dakin v. Cope, i. 287; ii. 329 Dale and Sacheverel, ii. 39 and Westerdell, ii. 423 Dale's (Utty) case, i. 96. 687 Dallison and Wigglesworth, ii. 518 Dallman v. King, ii. 147. 215. 218 Dalston v. Reeve, i. 71 ; ii. 127. 129 Dalton and Bourdillon, ii. 434-5 and Pilkinton, ii. 117 Daly V. Duggan, i. 622 Damer and Bai'ker, ii. 383. 386 Damion and Humphry, ii. 331 Damyon and Umphery, ii. 331 Danby and Elliott, i. 50 and Wheeler, i. 287 Dancastell and Vochell, ii. 128 Dancer v. Hastings, i. 389 Dandy and Bates, i. 156 Daniel v. Uply, i. 401 V. Waddington, i. 129. 671 Daniels v. Davison, i.636. 703. 743-4 Dann v. Spurrier, i. 95. 410. 573 ; ii. 62-3. 68. 75. 461 Dannage and Newman, i. 680 Dannah and Wright, i. 571 Danne v. Annas, i. 404 Danvers and Hunt, ii. 289-90 Darby and Right dem. Flower, i. 657; ii. 517 Darcy v. Askwith, ii. 198 Dare and Plaxton, ii. 541-2 Dark, Re, ii. 442 Darlington (Earl of) v. Pulteney, i. 66. 85. 155. 434 Darrell v. Whitchot,i. 704. 762-4 Darson and Cocks, i. 38 Darwin attd Russell, i. 717 Davenant v. Bishop of Salisbury, i. 84; ii. 171-2 V. Bishop of Sarum, i. 84 Davey and Roberts, ii. 328-9-30 David «w(? Doe dem Bridgman,ii. 256. 265 Davids and Goodright dem. Walter, ii. 468. 470 Davidson and Antrobus, ii. 377 Davie v. Drew, i. 369 ; ii. 359 V. Drewiy, i. 369 ; ii. 359 V. Sacheverell, ii. 313 Davies and Challoner, i. 131 and Doe dem. Williams, ii. 256. 265 r. Fitton, i. 641. 648 Ix TABLE OP CASES. Daviess. Manington, i. 28-9. 31 V. Moreton, ii. 278. 484 V. Stacey, ii. 102 Davis and Black (lessee of), ii. 386 V. Black well, ii. 377-80 and Doe dem. Webb, ii. 340 V. Eyton, ii. 331 V. Florence, i. 732. 742-4 • and Harris, i. 34 V. Hone, i. 785-6 and Hone, i. 785-6 r. Jones, ii. 201 and Lessee of Black, ii. 386 V. Oliver, i. 753 and Owen, i. 37 and Roe dem. West, ii. 475-6. 481 V. Taylors' Company, i. 717 V. West, ii. 477. 480-1. 485 Davison dem. Bromley v. Stanley, ii. 509-10 and Daniels, i. 636. 703. 743-4 Davy V. Matthew, ii. 318. 382. 387 Dawson v. Baldwin, ii. 281. 388 (lessee) v. Bell, ii. 30. V. Dyer, ii. 292 V. Fowle, i. 320 and Frame, i. 572. 576-7 V. Linton, ii. 178 V. Massey, i. 561. 563-4 Day V. Austin, ii. 129 awe? Coxe,i.404, 406. 494.507-9. 511 and Doe dem. Cox, i. 450 ; ii. 10. 54. and Doe dem. Parsley, i. 23. 50 and Hawkins, ii. 376-7. 380 and Roe dem. Copley, ii. 567 and Sacheveril, ii. 44-5 and Smith, ii, 60. 377 a7id Tomlinson, ii. 136 and Wood, i. 56. 59 ; ii. 216 Daykin a?id Rigley, ii. 539 Dayrell v. Hoare, i. 423 Deakin and Doe dem. Lloyd, i. 696 Dean v. Allaley, ii. 200 Dean and Chapter of Bristol r. Clerke, i. 304 Dean and Chapter of Bristol a7id Saund(!rs, i. 181 Dean and Chapter of Ely a7id Carter, i. 177. 180 Dean and Chapter of Ely v. Steward, ii. 26 Dean and Chapter of Ely v. Stewart, i. 180; ii. 2(;. 209 Dean and Chapter of Feme's case, i. 294-5 Dean and Chapter of Gloucester's case, ii. 334 Dean and Chapter of Norwich and Waller, i. 692-3 Dean and Chapter of Norwich and Walter, i. 693 Dean and Chapter of Rochester v. Pierce, i. 177-8-9 Dean and Chapter of St. Paul's and Betesworth, i. 725 Dean and Chapter of St. Paul's and Betsworth, i. 725 Dean and Chapter of Westminster's case, i. 77; ii. 52. 59-60 Dean and Chapter of Windsor's case, ii. 184. 402 Dean and Chapter of Windsor v. Go- ver, i. 21. 71-2 Dean and Chapter of Windsor v. Gower, i. 71-2 Dean and Chapter of Windsor and Hyde, ii. 184. 402 Dean and Chapter of Worcester's case, i. 74-5. 81. 83. 247. 480-1 Dean and Chapter of York v. Middle- borough, i. 242 Dean and James, i. 655. 658. 763. 766-7-8. 770 V. Marquis of Waterford, i. 760. 761 Deane awe? Bolton (Duke of), i. 702 and Duke of Bolton, i. 702 V. Izard, i. 572 and Seago, i. 640 ; ii. 1 95 Decharms r. Horwood, i. 127. 137 Deere and Parry, ii. 558 Deering v. Farrington, ii. 9. 98. 285 Delahay and Beavan, ii. 190. 521 Delap (lessee) v. Leonard, ii. 333 Dembyn v. Brown, i. 540 De Minckwitz v. Udney, i. 634 Denbigh and Hall, ii. 10. 11 Denby v. Moore, ii. 177-8. 181 Den dem. Peters v. Hopkinson, ii. 67 Denew v. Deverell, i. 618 Denham and Nixon, ii. 212 Denison and Druce, i. 139. 156-7 Denn dem. Jacklin v. Cartright, i. 661. 665 dem. Warren r. J'earnside, i. 536; ii. 54 Denne v. Cooper, i. 524 and Cooper, i. 524 Dennett and Descarlett, ii. 477. 484 Denning and Bullen, ii. 40. 45 Denny and Arkingsal, i. 306 V. Eakenstall, i. 306 and Knsdun, i. 70. 81. 239 and Hamilton, i. 764. 782 TABLE OF CASES. Ixi Dent r. Bennett, i. 559 Denton ii. Richmond, ii. 107-8 and Talentine, i. 70. 72 Derby anrf Cutting, i. 132. 134. 136; ii. 143. 523-4 (Earl of) V. Taylor, i. 10. 102. 670; ii. 391. 402. 493 Derisley v. Custance, ii. 363-4 Derrison and Shippey, i. 569-70 Derry and Doe deni. Hughes, i. 587 Desart (Lord) v. Goddard, i. 577 Desbrough and Vandenanker, i. 629 De Scarlett v. Dennett, ii. 477. 484 D'Esterre and Wheeler, i. 622. 691 Deverell and Denew, i. 618 V. Lord Bolton, i. 616 Devereux v. Barlow, ii. 355-6. 459 Deveuille and Griffin, i. 44 De Veulle and Griffin, i. 44 Devon (Countess of) v. Collyer, ii. 352-4 Dew aiid Dowell, i. 447. 570. 629. 636 ; ii. 472 Diamond v. Bellamy, i. 31 Dibley and Bullock, i. 116 Dickenson and Farewell, ii. 85. 137. 414 Dicons and Sutton, i. 59. 64 Digby v. Atkinson, ii. 190. 192. 228. 427. 520-1 Diggeso»f7 Pluck, i. 13. 15. 16. 17. 18 Diggles and Gretton, ii. 422 Dighton and Thomlinson, i. 401. 408 V. Tomlinson, i. 401 and Tomlinson, i. 401 Dignam and Dowell, ii. 420 Dikes, Ex parte, i. 38 Dillon and Mulvany, i. 764 and Powell, i. 569-70 Dimmock's case, i. 50. 306 Dineley and Baylis, i. 30. 32. 528 Dinsdale v. lies, i. 656 Dixie and Attorney-General, i. 347-8. 359 Dixon and Attorney-General, ii, 136. 147 and Doe dem. Webb, ii. 75. 461 V. Harrison, i. 139 Dobie and Fagg, ii. 416-17-18 and Hill, ii. 440 Dobinson and Philpott, i. 125 Dobitofte v. Curteene, i. 70 Dr. Harscot's case, i. 290. 296 Dod and Hamond, ii. 312 r. Monger, i. 660. 668 Dodd V. Acklom, ii. 503 and Aylet, ii. 108 and Doe dem. Pritchard, i. 679. 680 : ii. 23 Doddington's case, i. 234-5 ; ii. 27 Doddington and liuller, ii. 21 Dodemede and Valiant, ii. 417 Dodson and Butler, ii. 21 Doe dem. v. Slight, ii. 543 dem. Abdy v. Stevens, ii. 319. 322 dem. Allan r.Calvert, i. 437. 443. 445. 447 dem. Antrobus v. Jepson, ii. 321 dem. Ashford v. Bower, i. 234 dem. Aslin v. Summersett, i. 125-6-7 dem. Bank of England v. Cham- bers, i. 178-9 dem. Barber v. Lawrence, ii. 318 dem. Barker I'. Goldsmith, ii. 318 dem. Barney v. Adams, i. 173 ; ii. 318 dem. Bartlett v. Rendle, i. 77. 422. 423. 470-71 dem. Bayntum v. Watton, ii. 54-5-6 dem. Beadon r. Pyke, i. 104 dem. Beard v. Roe, ii. 529 dem. Bedford v. White, ii. 320 dem. Bingham v. Cartwright, ii. 566 dem. Bish v. Keeling, ii. 230-31 dem. Bishop of Rochester t. Bridges, i. 84. 282 ; ii. 509-10 dem. Blake v. Luxton, i. 687 dem. Bligh v. Colman, i. 512 dem. Boscawen v. Bliss, ii. 270. 471 dem. Bradford (Earl of) v. Roe, ii. 528 dem. Bridger v. Whitehead, ii. 221 dem. Bridgman v. David, ii. 256. 265 dem. Bromley v. Bettison, i. 483. 484. 514. 516. 703 ; ii. 192 dem. Bromfield v. Smith, i. 529. 585. 602. 682 ; ii. 517 dem. Brook v. Brydges, ii. 217 ?'. Brookes, ii. 67 dem. Bryan v. Bancks, i. 287 ; ii. 327-8-9. 471 dem. Bryant v. Wippell, i. 132 dem. Bullen v. Mills, i. 60 dem. Burne v. Saunders, i. 599 dem. Calvert v. Frowd, i. 657 ; ii. 496. 498-9. 521 dem. Calvert v. Reid, ii. 410 ■ dem. Cardigan r. Roe, ii. 529 dem, Castleton u. Samuel, ii. 521 dem. Cawood t. Banks, i. 585 dem. Chadborn nGreen, i. 664-5. 667 Ixii TABLE OF CASES. Doe dem. Chandless v. Robson, ii. 327-8. 333 dem. Cheeie v. Smith, ii. 250. 252 dem. Cheny v. Batten, ii. 468. 525 dem. Clark v. Spencer, ii. 455 dem. Clarke r. Smarridge, i. 657-8 dem. Coleman v. Britain, i. 382 dem. Collins v. Weller, i. 96. 143. 410. 524 dem. Colnaghi v. Bluck, ii. 329 dem. Coore r. Clare, i. 114. 594. 611. 613 dem. Copleston v. Hiern, i. 435. 454-5. 464 dem. Courtail r. Thomas, ii. 502. 506 dem. Cowper v. Verney, i. 522. 524 dem. Cox v. Day, i. 450; ii. 10. 54 dem. Da Costa r. Warton, i. 613 dem. Dagget p. Snowdon, ii. 67 dem. Dalton v. Jones, ii. 208-9 322 dem. Darke v. Bowditch, ii. 344 dem. David v. Williams, ii. 497 dem. Davis v. Elsam, ii. 235. 319 dem. De Rutzen v. Lewis, ii. 319 dem. Dillon v. Parker, ii. 495 dem. Douglas v. Lock, i. 83. 423. 466-7. 470. 475. 481. 494. 510; ii. 41. 43 dem. Ducket v. Watts, i. 50 dem. Duke of Norfolk v. Hawke, ii. 252 dem. Dymoke «. Withers, i. 428. 518; ii. 207 dem. Earl of Bradford v. Roe, ii. 528 dem. Earl of Darlington v. Bond, ii. 323 dem. Earl of Egremont v. For- wood, ii. 511 dem. Earl of Egremont v. Graze- brook, i. 468 dem. Egremont (Earl of) v. Pal- mer, ii. 541 dem. Earl of Egremont v. Pul- man, ii. 348 dem, i'larl of Egremont v. Ste- phens, i. 471. 515-16 dem. F-arl of Jersey v. Smith, i. 397. 493. 505. 507-8; ii. 333-4. .336. .339-40. 344. 477 Doe dem. Earl of Shrewsbury v. Wil- son, i. 82.414.466. 471.473. 480. 505. 509. 511; ii. 342 dem. Ellerbrock v. Flynn, ii. 495 dem. Ellis v. Sandham, i. 515; ii. 120. 161. 192 dem. Evans v. Evans, ii. 255. 473 dem. Fisher v. Giles, i. 165 dem. Flower v. Peck, i. 150 ; ii. 221. 226. 469-70 dem. Forster ?%Wandlass,ii.328. 330. 340-41 dem. Freeland v. Burt, ii. 31 dem. Freeman v. Bateman, i. 12. 18. 102 ; ii. 319 dem. Gaskell v. Spry, ii. 230. 235 dem. Gatehouse v. Rees, ii. 468. 472 dem. Glover v. Maberly, ii. 212 dem. Goodbehere v. Bevan, ii. 252. 258-9. 265. 268 dem. Graves v. Wells, ii. 495-6 ■ dem. Gray v. Stanion, ii. 496-7. 510 dem. Green v. Fidler, i. 603. 606. 611 dem. Griffith v.Pritchard, ii. 255. 468. 471. 473 dem. Griffiths v. Lloyd, i. 470. 483 dem. Grimes v. Gooch, ii. 20 dem. Grubb v. Grubb, ii. 496-7 dem. Grundy r. Clarke, i. 320 dem. Hall v. Benson, ii. 67 dem. Harries v. Morse, i. 475. 477 dem. Harris r. Masters, ii. 331. 338. 342. 475-6 dem. Hartridge v. Gilbert, i. 403. 418 dem. Hayes r.Sturges, i. 367. 408 dem. Hayne v. Redfern, i. 229. 236 dem. Hemmings v. Durnford, ii. 471 dem. Henniker v. Watt, ii. 87, 317. 325. 327 dem. Henry r. Gustard, ii. 476 dem. Higginbotham r. Barton, i. 164. 169-70-1 dem. Higginbotham r. Hobson, ii. 554-5 dem. Higgs r.Cockell, i. 320. 322 dem. Higgs r. Terry, i. 320-1-2 dem. Hillingworth v. Stennett, ii. 4 dem. Hinde v. Vince, ii. 67 TABLE OF CASES. Ixiii Doe dem. Hindly "• Rickarby, ii. 27G dem. Hitchins v. Lewis, ii. 344. 477-8 dem, Hobbs v. Cockell, i. 320. 322 dem. Hodsden v. Staple, i. 613 dem. Holland v. Worsley, ii. 260 dem. Hollingsworth v. iStennett, i. 653-4 dem. Hughes v. Bucknell, i. 165. 169. 171 dem. Hughes v. Deny, i. 587 dem. Hull v. Wood, i. 653 ; ii. 504 dem. Hunter v. Boulcot, ii. 567 dem. Ive v. Scott, ii. 221 dem. Jackson v. Ashburner, i. 583. 598. 602. 610. 730-1 ; ii. 23 dem. Jackson v. Hiley, i. 321-2-3 dem. Jackson v. Ramsbotham, i. 61 dem. Jersey v. Smith, i. 398 dem. Jersey and Smith, i. 466. 474. 479; ii. 111. 116. 144. 338 dem. Johnson t\ Russell, ii. 329. 331 dem. Jones ^^ Crouch, ii. 189 dem. Jones v. Williams, i. 164 dem. Kensington (Lord) v. Brindley, ii. 469 dem. Kettle v. Lewis, ii. 553. 555 dem. Knight and Nepean, i. 695 dem. Knight v. Rowe, ii. 224 dem. Lawton i\ Radcliffe, i. 483 dem. Lewis v. Cawdor, ii. 496-8 dem. Lloyd v. Deakin, i. 696 dem. Lloyd v. Powell, ii. 257 dem. Lockwood v. Clarke, i. 672 ; ii. 252. 260 dem. London Dock Company 'o. Knebell, ii. 319 dem. Lord Egremont v. Bur- rough, i. 506 dem. Lord Egremont t\ Ste- phens, i. 413. 423 dem. Lord Grantley v. Butcher, ii. 234 dem. Lord Kensington v. Brind- ley, ii. 469-70 dem. Lord Say andSele v. Guy, i. 370 dem. Lumley v. Earl of Scar- borough, i. 54 dem, Marlow v. Wiggins, i. 9 ; ii. 16, 23, 566 Doe dem. Marriott i\ Edwards, i. 53 dem. Marquis of Anglesea v. Churchwardens of Rugeley, ii. 234, 333 dem. Marquis of Anglesey v. Roe, ii, 530 dem, Martin r. Watts, i. 96. 524 dem. Maslin v. Roe, ii. 424 dem. Matthews r. Jackson, ii. 624 dem. May hew r. Asby, ii. 212. 477 dem, Mitchinson v. Carter, ii. 238. 250. 254-5 dem. Monck r. Geekie, i. 664 ; ii. 521 dem. Morecraft v. Meux, ii. 216. 468. 487 dem. Morgan r. Powell, i. 25. 592. 596. 598. 610. 730 ; ii. 2 dem. Morris v. Roe, ii. 643 dem. Mount r. Roberts, i. 450 dem. Murray r. Bridges, i. 84. 282 dem. Murrell r. Milward, ii. 507 dem. Muston r. Gladstone, ii. 224. 468. 472 dem. Muston r. Gladwin, ii. 468. 472 dem. Nash r. Birch, ii. 329. 468 dem. Newnham v. Creed, i. 467 dem. Norton r. Webster, i. 320. 331 dem. Nunn v. Luffkin, i. 115. 594 dem. Oldershaw v. Breach, i. 612 V. Oxenham, i. 436. 465 dem. Palk v. Marchetti, i. 788 ; ii. 319. 322 dem. Palmer v. Andrews, ii. 386. 448. 455 dem. Parsley r. Day, i. 23. 50 V. Payne, ii. 276 dem. Pearson r. Ries, i. 16. 18. 692. 599. 607. 610. 728. 730 dem. Pemberton r. Edwards, i. 682 dem. Pemberton r. Roe, i. 672 ; ii. 529 dem. Perfect r. Smith, i. 612 dem. Phillip r. Benjamin, i. 605, 611 dem. Phillips r. Phillips, ii. 667 dem. Phillips v. Roe, ii. 528 dem. Pitt r. Hogg, ii. 258 Ixiv TABLE OF CASES. Doe dem. Pitt.r. Laming, ii. 222. 258. 261-2-3 dem. Pitt v. Shewin, ii. 220. 221 dem. Pittman r. Sutton, ii. 197. 224 dem. Potter r. Archer, i. 94-5. 524 dem. Pritchard r. Dodd, i. 679. 680 ; ii. 23 dem. Pulteney and Cavan (Countess Dowager of), i. 483 dem. Pulteney and Countess Dowager of Cavan, i. 483 dem. Pulteney r. Lady Cavan, i. 445 dem. Rains r. Kneller, ii. 87. 321. 345 dem. Rankin v. Brindley, ii. 217. 473 dem. Rawlings t. Walker, i. 22 ; ii. 507. 511 dem. Reece i\ Robson. i. 450 ; ii. 11 dem. Richardson v. Thomas, i. 239. 304 dem. Rigge v. Bell, i. 373 ; ii. 190. 521 dem. Robinson r. Allsop, ii. 571 dem. Robinson r. Bousfield, i. 106-7 dem. Roby v. Maisey, i. 164 dem, Rodd t. Archer, ii. 464. 466 dem. Rogers t. Cadwallader, i. 171 dem. Rogers v. Rogers, i. 486 dem. Rudd t. Golding, ii. 323. 337 dem. Rutzen v. Lewis, ii. 473 dem. Scholefield r. Alexander, i. 511 ; ii. 333. 336. 340. 342. 343 dem. Scott r. Miller, ii. 469 dem. Sheppard v. Allen, ii. 236. 468-9-70 dem. Shore v. Porter, i. 658 dem. Simpson v. Butcher, i. 94-5. 524 dem. Slade r. Nepean, i. 695 dem. Smelt r. Fuchau, ii. 344 dem. Smith r. Galloway, i. 234 ; ii. 28 dem. Sore r. Eykins, ii. 277 dem. Southouse r. Jenkins, i. 85 dem. Spencer r. Godwin, ii. 33. 32 J dem. SpicfT r. Lea, ii. 67 dem. Strode v. Seton, i. 56 Doe dem. Sutton r. Harvey, i. 398. 453. 484 dem. Taylor r. Johnson, ii. 469 dem. Tennyson r. Lord Yarbo- rough, i. 77-8 dem. Thomas r. Field, ii. 523. 530 dem. Thomson r. Amey, i. 612; ii. 182. 521 dem. Tilt r. Stratton, i. 613. 657; ii. 517 dem. Timmis t. Steele, i. 691 ; ii. 77 dem. Tindal r. Roe, ii. 529 dem. Topping r. Boast, ii. 530 dem. Tresidder r. Tresidder, i. 106. 110-1-2 dem. Trustees of Schools, &c., of Worcester v. Rowlands, ii. 199. 209. 212. 214 dem. Tucker v. Morse, i, 96. 542 ; ii. 521 dem. Vaughan r. Meyler, i. 471. 494. 507-8 ; ii. 131. 136 dem. Vickery v. Jackson, ii. 206 dem. Walker t. Groves, i. 602. 611 dem. Watson v. Roe, ii. 529 dem. Watts v. Roe, ii. 530 dem. Weatherhead r. Curwood, ii. 277 dem. Webb r. Dixon, ii. 75. 461 dem. West v. Davis, ii. 340 dem. Westmoreland v. Smith, i. 612 dem. Wetherell v. Bird, ii. 220. 231-2 dem. Whaymanr. Chaplin, i. 126 dem. Wheeldon v. Paul, ii. 144. 336 dem. Whitaker r. Hales, i. 171 dem. Whitehead r. Pittman, ii, 496-7 dem. Whitfield v. Roe, ii. 476 dem. Williams r. Cooper, ii. 496. 498 dem. Williams r. Davies, ii. 256. 265 dem. Williams v. Matthews, i. 470-1 ; ii. 136 dem. Williams r. Pasquali, ii. 496. 498-9 dem. Willis v. Perrin, ii. 67 dem. Willson r. Phillips, ii. 264. 464-5 dem. Wilmot r. Giffard, i. 475. 477-8 dem. Wilson r. Abel, ii. 464 TABLE OF CASES. Ixv Doe dem. Winnall v. Broad, ii. 209. 279 dem. Wood v. Morris, i. 113 dem. Woodmass v. Mason, i. 179 dem. Wright v. Smith, i. 587 ; ii. 348. 562 dem. Wyatt v. Byron, i. 102 ; ii. 476. 482 dem. Wyatt v. Stagg, ii. 367. 504 dem. Wyndham v.Carew, ii. 322 dem. Wyndham v. Halcombe, i. 413. 434 dem. Wythe v. Rutland, i. 477. 505 Dolittle and Phillips, ii. 475 Dolphin and Eyre, i. 766 Dommitt and Bullock, ii. 186 Donellan v. Read, ii. 82-3 Donne v. Hart, i. 156 Doianell and Church (lessee), i. 411 a7id lessee Church, i. 411 Donnithorne aiul Enys, ii. 50. 53 Donton and Michell, ii. 5. 95. 387 Doolan, Re, i. 740 and Sheppard, i, 707 Dormer's case, ii. 338. 342 (Lord) ejectment, ii. 495 Dormer and Barker, ii. 383. 386 v. Clerk, i. 27 Dorrel v. Andrews, ii. 128 Dorrell r. Collins, ii. 38 Doudswell and Baxter, i. 688 Doughty B. Stiles, i. 122 Douglas V. Horsfall, i. 639 V. Shank, ii. 54 Douse V. Earle, ii. 198. 203. 387. 391 Dove V. Williot, ii. 60 Dowager Duchess of Chandos v. Brown- low, ii. 402 Dowdenay v. Oland, ii. 289 Dowdswell and Baxter, i. 688 Dowell V. Dew, i, 447. 570. 629. 636 ; ii. 472 V. Dignan, ii. 420 Dowling V. Mill, i. 626. 707-8. 721. 745 Downes r. Turner, ii. 475 Downing and Hicks, i. 10. 17. 18.20. 102 V. Seymour, ii. 512 and Smith, i. 45 Downingham's case, i. 110-11-12 Downling and Hicks, i. 10.17. 18. 20. 102 Downs and Quadring, i. 373 Dowse's case, ii. 78 Dowse V. CaJe, ii. 199. 203. 387. 391 and Sutton, ii. 78 VOL. L / Dowson and Merceron, ii. 271. 421 Dowtie's case, ii. 28 Doyly V. Pearsall, i. 156 Drake, Ex parte, ii. 259 V. Mayor of Exon, i. 629 V. Munday, i. 584. 598; ii. 23. 87 and Souter, i. 616-7-8 Drakeford and Corder, ii. 559 Drant v. Brown, ii. 565 Draper's case, i. 156 Drew r. Bayly, i. 157. 369; ii. 96. 639 a7id Davie, i. 369 ; ii. 359 T. Power, ii. 20 Drewry and Davie, i. 369 ; ii. 359 Driver and Charlton, i. 785 Drohan v. Drohan, i. 370 Druce v. Denison, i. 139. 156-7 Drue T. Baily, ii. 96. 359. 369 V. Baylye, ii. 96. 359. 369 Drury a7id Buckingham (Earl of), i. 31 V. Drury, i. 31 and Earl of Buckingham, i. 31 Dryborough a7id Robinson, ii. 566 Drybutter v. Bartholomew, i. 149 Dublin (Archbishop of) v. Bruerton, i. 293 Dublin, Archbishop of (lessee), r. Ea- ton, ii. 466 Dubois V. Trant, i. 368 Duchess of Hamilton v. Mordaunt, i. 492 Duchess of Norfolk, Mre., i. 41 ; ii. 539 Duchy of Lancaster case, i. 33. 216 Duck V. Braddyll, ii. 554-5 Duckenfield v. Whichcott, ii. 138 Duckworth dem. Tubley v. Tunstall, ii. 475 Dudley v. FoUiott, ii. 312 and Ward (Lord) v. Robin.s, ii. 556 DufFoy and Theobalds, i. 2. 533 Dugar V. Norton, i. 376 Duggan and Daly, i. 622 and Jones dem. Leader, i. 596. 599 Dugworth V. Radford, i. 117. 537 Duke of Beaufort v. Berty, i. 374 and Maule, ii. 266 Duke of Bedford and Barrett, ii. 172 and Charlwood, i. 569 r. Trustees of Bri- tish Museum, ii. 238. 413 Duke of Bolton v. Deane, i. 702 Duke of Buckingham and Antrim, i. 405. 445. 447 \xvi TABLE OF CASES. Duke of Buckingham and Marquis of Antrim, i 445. 447 Duke of Chandos and Jalabert, ii. 259 ■ and Jollibert, ii. 259 Duke of Leeds and Pugh, i. 450. 693 ; ii. 54-5-6 Duke of Manchester and Mitchel, i. 389 Duke of Marlborough and Earl of Shaftesbury, i. 775-6. 779 Duke of Marlborough v. Lord Go- dolphin, i. 688 Duke of Marlborough and Shaftes- bury (Earl of), i. 775-6. 779 Duke and Northcote, ii. 260. 265-6. 278. 484 Duke of Northumberland's case, ii. 28 Duke of Northumberland r. Erring- ton, ii. 293 Duke of Roxburghe v. Robertson, ii. 279-80 Duke of Somerset v. Fog well, i. 24 ; ii. 1 and Gourlay, i. 636-7 ; ii. 258 Dulwich Hospital and Taylor, i. 180. 357. 710. 745 Dumbell, Mre,, ii. 452 Dumper v. Syms, ii. 130. 269 Dumpor's case, ii. 130. 240, 269-70 Dunk v. Hunter, i. 582. 588. 606 Dunlapp and Lyddall, ii. 367. 369. 374 Dunnage ■». White, i. 45 Dunnery and Browne, i. 540 Dunsdale v. Isles, i. 656 Dunton and Machel, ii. 95. 367. 387. 397 and Michell, ii. 5. 387 Duplock and Fenner, i. 61 Duppa V. Mayo, ii. 143. 144 Durham and Sunderland Railway Co. T. Walker, ii. 6. 40-1. 44 Dumford and Doe dem. Hemmings, ii. 471 r. Lane, i. 389 Duthelly and Raw, i. 733. 762-3-4. 766 Dutton and Coombes, i. 188. 199 ; ii. 463 and Tracy, i. 48 Dwyer and Trant, i. 761 Dyer and Dawson, ii. 292 and Price, i. 647-8. 650 ; ii. 76, 461 and Savery, i. 689 Dyke v. Bishop of Bath and Wells, i. 79. 81 r. Sweeting, ii. 364 Dymmock's case, i. 50. 306 E. EAGLETON t». Gutteridge, ii. 653 Eakenstall and Denny, i. 306 Eales and Green, ii. 186, 197 Earith and Palmer, ii. 169 Earl of Arundel and Cook, ii,.364 V. Lord Arundel, ii. 507 ^. Lord Gray, ii. 507 Earl of Aylesford's case, i. 575 Earl of Bedford's case, i. 308 Earl of Besborough and Garrett, i. 625 Earl of Bridgewater's case, i. 68 Earl Brook v. Bulkeley, i, 741. 742. 746 Earl of Buckingham v. Drury, i. 31 Earl of Cardigan v. Armitage, ii. 41. 44-5 V. Montagu, i. 427. 466. 470. 516 Earl of Clarendon and Attorney-Ge- neral, i. 359 Earl of Darlington v. Pulteney, i. 66. 85. 155. 434 Earl of Derby v. Taylor, i. 10. 102. 670; ii. 391. 420. 493 Earl of Egremont v. Keene, ii. 405 Earl of Inchiquin v. Burnell, i. 724 ; ii. 83 Earl of Kinnoul and Hinchcliffe, ii. 34 Earl of Leicester's case, i. 678. 692 Earl of Litchfield and Sandwich, Earl of, i. 765 Earl of Mansfield v. Blackburne, ii, 200 Earl of Portsmouth and Baxter, i. 37 Earl of Ross t. Worsopp, i, 752. 761 Earl of Salisbury and Finch, i, 742 Earl of Sandwich v. Earl of Litchfield, i, 765 Earl of Scarborough and Doe dem. Lumley, i. 54 Earl of Shaftesbury r. Duke of Marl- borough, i. 775. 776. 779 Earl of Shelburne t. Biddulph, i. 741 Earl of Shrewsbury «. Gould, ii. 281 Earl of Strafford v. Lady Wentworth, ii. 139-40. 144 Earlea«(iDouse,ii.l98. 203,387. 391 East V. Harding, i. 106 TABLE OF CASES. Ixvii East India Company and Attorney- General, i. 349 East India Company and Hodgson, ii. 315 East India Company and Hotham, i. 735 East India Company v, Vincent, i. 95. 524 East London Water-works Company V. Bailey, i. 178 East London Watei--works Company and Bowes, i. 94-5. 346. 405. 410. 445. 488. 523-4-5 East London Water-works Company and Thresher, ii. 200. 204 East r. Ryal, i. 358. 363 and Sawier, i. 233-4 and Sawyer, i. 233-4 Skidmore v. Vaudstevan, ii. 12. 99 r. Thornbury, ii. 177. 181 Eastabrook atid Friend, i. 101 Eastcourt v. Weeks, i. 20. 107 Easterby v. Sampson, ii. 389. 403. 406 aw(? Sampson, i. 136; 11.365. 389. 397. 403. 406 Eaton and Archbishop of Dublin, les- see, ii. 466 College case, i. 183 and Dublin, (Archbishop of), lessee, ii. 466 V. Jaques, 11. 375. 422 and lessee, Archbishop of Dub- lin, 11. 466 V. Lyon, i. 608. 707. 726. 734. 752-3-4-5; 11. 483.486.490 and Brewer dem. Lord Onslow, 11. 469 Ecclesiastical persons, (case of,) i. 240. 241 Eccleston v. Clipsham, 1. 134 Echard a?id Phillips, 11. 377 Edge and Oldham, Mre., 1. 632 V. Pemberton, 11. 209. 279 V, Stratford, ii. 4. 5. 7. 75 Edglngton atid Morris, 11. 34-5 Edmonds and Tusking, 11. 334 Edmunds and Bufkyn, Ii. 334 and Buskin, 11. 334. 386 and Living, 11. 386 Edridge, Mre., 11. 491 Edwards andDoe dem. Marriott, 1. 53 and Doe dem. Pemberton, i. 682 and Green, 1. 676 ; ii. 12 and Giene, 11. 12. 69 and Hollls, 1. 572 V. Jones, 1. 174 V. Lewis, i. 762. 766 Edwards and Marriott,!. 165 and Moore, i. 578 V. Morgan, Ii. 163. 352 3-54. 386. 398 a7id Morgan, 11. 180 V. Omellhallum, 1. 53. 58 a7id Palmer, i. 11.17. 18.102; 11.271.423 and Perry, 11. 312. 314 V. Rees, 11. 168 V. Slater, 1. 525 Edwin and Wooton, 11. 90 and Wotton, 11. 90 Eeles V. Lambert, 11. 22. 377 Egglngton and Steiglitz, 1. 393 Egmont a?id Vernon, 11. 378 Egremont (Earl of) v. Keene, ii. 405 Eicke and Rawson, i. 170 Eigburrow and Smaleman, 1. 127. 129 Ekins and Palmer, 1. 56-7-8-9. 63-4 Eliot's case, 1. 46 Eliot v. Nutcomb, 11. 335 and Stephens, 1. 50 Eliott and Kirton, 1. 528-9. 540 Elkins and Uthwatt, 1. 553 EUard v. Lord Llandaff, 1. 523. 626-7. 748 Ellesdon and Trethewy, 11. 21 Elliot and Evans, 1. 169-70-1 V. Jekyl, 1. 688 Elliott V. Brown, 1. 538 V. Danby, 1. 50 V. Watklns, ii. 209 Ellis V. Audle, 1. 26 and Arlett, 1. 384 and Grant, 11. 151 V. Ruddle, 1. 26 Ellison and Attorney-General, 1. 350 Elme and Morris, 1. 389 Elmer's case, 1. 72. 245 Elmor v. Geale, 1. 72. 245 Elsam a7id Doe dem. Davis, ii. 235. 319 Elsworth and Norris, 11 . 5 Eltham parish v, Warreyn, 1. 361 Elways a7id Bettison, 1. 70 Elworthy v. Tanner, i. 767 and Tanner, 1. 767 Ely (Dean and Chapter of) t. Stew- ard, 1. 180 ; 11. 26. 209 Emett, Re, 1. 763 Emott V. Cole, 1. 27 ; 11. 86. 137 Emsley and Sowden, 1. 320 England dem. Syburnw. Slade, i. 61 and Watson, i. 696 Ennys a7id Corker, 1. 526 and Vincent, 1. 526 Ensden v. Denny, 1. 70. 81. 239 Enys V. Donnithorne, 11. 50. 63 /2 Ixviii TABLE OF OASES. Erington and Read, ii. 492 Erish V. Rives, i. Ill Erneleye v. Walrond, ii. 319. 327 Errington and Duke of Northumber- land, ii. 293 and Northumberland (Duke of), ii. 293 Escott and Weakdem. Taylor, ii. 77 Essex aiid Tisdale, ii. 23. 312. 314. 598-9 Evans, Mre., i. 36 V. Ascough, i. 291. 294-5-6 V. Ascuith, i. 294-5-6 V. Ascuithe, i. 291. 294-5-6. 463 I'. Askvrith, i. 291. 294-5-6 V, Ayscough, i. 463 and Boverton, i. 55 and Brereton, i. 48. 55. 57 and Doe dem. Evans, ii. 255. 473 V. Elliot, i. 169-70-1 and Greenwood, i. 777. 779 a7id Harris, i-. 663. 665 V. Jackson, i. 346. 371 and Petty, i. 107 and Richardson, ii. 277 and Sackvill, ii. 359. 368-9 r7»f/ Smalpiece, ii. 251. 253. 265. 268 and Stone, ii. 423. 429 V. Thomas, i. 598 ; ii. 23 V. Vaughan, i. 425. 670. 677 ; ii. 310 V. Walshe, i. 735. 782 Eve and Kimpton, ii. 191. 521 Evelyn v. Chichester, i. 528 V. Raddish, ii. 207. 213 Ever r. Aston, i. Ill Everard and Phillips, i. 740 ; ii. 266 Eversley and Streetman, ii. 217 Evie's case, ii. 97 Ewer V. Moyle, ii. 131-2-3 Ewre V. Strickland, ii. 5 Exton and Holman, i. 99. 695-6 Eykins and Doe dem. Sore, ii. 277 Eyre v. Countess of Shaftsbury, i. 373 V. Dolphin, i. 766 and Pike, i. 19. 55. 103 V. Woodfine, i. 535 Eyres and Mulcarry, ii. 328 Eyton and Davis, ii. 331 F. FABIAN V. Wingston, ii. 338 Fagg V. Dr)lii(,', ii. 416-17-18 Fair and Aclieson, i. 763 Faithful and Warman, i. 609 Falkland (Lord) v. Bertie, i. 30 Falstaffe's case, ii. 85 Fancy V. Scott, ii. 40 Fane v. Atlee, ii. 278. 474-75 V. Minshaw, i. 530 V. Spencer, i. 617 Fareley's case, i. 117 Farewell v. Dickenson, ii. 85. 137. 414 Farington's case, i. 128. 681 Farley v. Briant, ii. 365. 376 and Holder, i. 117 Farmer dem. Earl V. Rogers, ii. 3. 501. 504 and Farrowes, ii. 612 Farneham v. Atkins, i. 31 Farnsworth and Surplice, i. 614 ; ii. 220 Farr and Rede, ii. 328. 335 Farrand ««(? Moor, ii. 251. 253 265. 268 Farrant v. Olmius, ii. 107-8 Farren and Simons, ii. 129. 231. 237 Farrer and Reresby, i. 358. 361 Farrington and Deering, ii. 9. 98. 285 Farrowes v. Farmer, ii. 512 Fastolfe and Crouch, ii. 336 Faulder v. Silk, i. 37 Faustenditch and Cross, i. 21. 395 Fawcett v. Hall, i. 13. 16. 17. 18. 56. V. Whitehouse, i. 764 Fearnside and Denn dem. Warren, i. 536 ; ii. 54 Fearon and Winder, ii. 563 Featherston and O'Reilly, i. 762 Featherstonhaugh v. Fenwick, i. 630. 764 Feely and lessee of Walsh, i. 16. 18 «w(? Walsh (lessee of), i. 16. 18 Feerby v. Lorkings, ii. 75 Feild and Layton, i. 654. 660 Feilder v. Studley, ii. 305 Fenndem. Matthews v. Smart, ii. 328 and Pannel, i. 367 and Willand, i. 367 Fenner v. Duplock, i. 61 V. Hepburn, i. 610 Fenny dem. Eastham v. Child, i. 115. 594. 596 Fenton v. Holloway, i. 45 'v. Reilly, i. 623 Fenwick and Featherstonhaugh, i. 630. 764 Ferguson v. , ii. 182 ■V. Cornish, ii. 73 Fergusson and Upton, ii. 429 Fermor and Ferrers, ii. 512 Fernandes and Hemingway, ii. 407 Ferrers v. Fermor, ii. 512 TABLE OF CASES. 1j Ferrers and Huning, i. 8G Fetherston and O'Reilly, ii. 482 Fidler and Doe dem. Green, i. 603. 606. 611 Field and Doe dem. Thomas, ii. 523. 530 and Lay ton, i. 654. 660 and Thomson, ii. 116. 336 Fildes V. Hooker, i. 615. 627 Finch's (Sir Moyle) case, i. 368 Finch V. Earl of Salisbury, i. 742 • V. Riseley, ii. 328 V. Risley, i. 232. 236 V. Throckmorton, i. 236 ; ii. 328 Fincher and Butler, i. 178. 691-2. 694 ; ii. 54 Finlay and Flood, i. 625. 630. 646. 648 Firman v. Lord Ormonde, i. 734. 752-3. 757. 760 Fish V. Bellamy, ii. 62-3. 328 Fishe V. Campion, ii. 133, 506 Fisher's case, i. 21. 105 Fisher v. Ameers, ii. 352. 354-5 and Bishop of Litchfield, i. 294. 296 V. Boys, i. 182 aiid Chin, ii. 116-17-18 and Litchfield (Bishop of), 2D4. 296 v. Maguire, ii. 182 and Tyler, i. 141. 692 and Umble, ii. 55 V. Wigg, ii. 78 Fitch, Re, ii. 110 ■ and Raymond, ii. 357-8. 362 Fitton and Davies, i. 641. 648 Fitzgerald and Barton, ii. 300 and Hogan, i. 12. 13. 18 V. Lord Portarlington, i. 628. 745 ; ii. 104 v. O'Connell, 1. 17. 18. 758 and Tailour, ii. 55 ■ — and Taylor, ii. 55 V. Vicars, i. 622 Fitzgibbon v. Scanlan, i. 762-3 Fitzmaurice v. Waugh, i. 34 Fitzpatrick iJ. Hawkesworth, i. 671. 681 Fitzwilliam's case, i. 309. 397. 462 Fleming's lessee v. Neville, ii. 571 Fleming and Glutton, i. 785 v. Gooding, i. 60 and St. John's College, i. 689 IK Snook, ii. 280 Fletcher, Ex parte, ii. 434-5. 440. 446 and Hurd, ii. 309 • and Sapsford, i.l72 ; ii. 100 Fletcher v. Stevenson, ii. 379 Fletwell a7id Barker, ii. 127 Flexney and Killick, i. 762 Flight and Baden, ii. 116 V. Barton, ii. 160-2. 229-30 tJ.Bentley,ii. 185.387.425-6-7 V. Booth, ii. 230 and Manning, ii. 352. 355. 451 and Nouaille, ii. 203. 417 Flint V. Brandon, ii. 210. 281 Flood V. Fmlay, i. 625. 630. 646. 648 V. Wilson, ii. 543 Flower v. Rigden, i. 3 Florence and Davis, i. 732. 742. T44 and Tanner, i. 732. 742. 744 Floyd V. Langfield, i. 10 Flynn and Doe dem. EUerbrock, ii. 495 Foach and Lydiatt, i. 351. 357. 710 Fogwell and Duke of Somerset, 1. 24 ; ii. 1 (Duke of) and Somerset, i. 24 ; ii. 1 Foley V. Addenbrooke, i. 134. 729 ; ii. 168. 205. 284 a)id Moore, i. 608. 708. 711. 719. 727 a7id Paget, ii. 150 Foljambe and White, i. 615-16. Folkingham v. Croft, ii. 156- 159, 240. 245. 248. 250 FoUiott and Dudley, ii. 312 Foord's case, i. 51. 309 Foord and Attorney-General, i. 349. 362 and Belford, i. 51. 309 V. Wilson, ii. 293. 297 Foot V. Marriott, i. 415. 419 Foote and Tritton, i, 351, 708. 715, 718 V. Berkley, i. 53 ; ii. 10. 50. 64-5 Forbes v. Carney, ii. 108 and Stannard, ii. 285. 293. 298. 300 Ford and Badger, i. 384 and Betford, i. 51. 309 r. Compton, i. 640 ; ii. 556 and Lewknor, ii. 39. 44 and Talbot, ii. 467 V. Tiley, i. 619. 731 Forde «»f/ Kenny, i. 722 Forester and Gable, i. 28 Forrester's case, i. 28. 31 Forster v. Graham, i. 527 V. Hale, i. 578 Forte V. Vine, ii. 314. 315 Ixx TABLE OF CASES. Forth and Lewyn, ii. 288 and Rex, i. 294 Forwood and Doe dem. Earl of Egre- mont, ii. 611 Foster's case, ii. 377 Foster, Mre., ii. 434. 441. 446 ««rf Barwicke, ii. 116-17-18. 126. 139 and Blake, i. 56. 58. 62-3. 123. 139 V. Grayham, i. 527 and Lord Willoughby, i. 309 V. Mapes, ii. 312. 314. 316 V. Marchant, i. 38 T. Mayes, ii. 312 onr/ Norman, ii. 305. 315 V. Pierson, ii. 312. 315 V. Spencer, ii. 39 V. Spooner, ii. 39. 44 and Willoughby, i. 309 ; ii. 29 and Wood, i. 27 Foundling Hospital and Macher, ii. 237. 269-70. 274. 277. 484 Fountain v. Coke, ii, 512 Fouracre and Alder, i. 764 Fourdrin v. Gowdey, i. 531-2. 534 Fowle «Hf/ Dawson, i. 320 V. Freeman, i. 570 V. Welsh, ii. 314 Fox and Barber, ii. 363 and Barker, ii. 363 «. Collier, i. 76. 245 V. Collyer, i. 447 and Hitchcock, ii. 269. 324. 468-9 V. Prickwood, i. 445. 464. 521 and Staniforth, i. 583. 588. 606 V. Swann, ii. 257-8. 328 V. Whitchcocke, ii. 269. 324. 469 a«rf Whitchcocke, ii. 116-7.269. 324. 468-9 and Whitchcot, ii. 269. 324. 468-9-70 Foxcroft aw(/ Brooks, i. 57. 132 and Lester, i. 571-2 Frame v. Dawson, i. 572. 576-7 and Merrill, ii. 9. 285 Frampton v. Stiles, i. 70 Francis v. Wigzell, i. 48 Frank and Rich, ii. 367-8-9. 371 Frankelen's case, i. 404 Frankfort (Lord) v. Thorjje, i. 706. 784 Franklin ». Carter, ii. 129. 180 Eraser v. Skey, ii. 285. 315 Freelove and Coghilj, ii. 367-8. 371 Freeman and Attorney-General, i. 47 and Fowle, i. 570 Freeman and Malins, i. 45 V. Marquis of Waterford, i. 760-1 V. Stacy, ii. 148 dem. Vernon v. West, i.450. 692-3 ; ii. 54 Freke v. Thomas, i. 368 French v. Macale, ii. 108. 278. 475 and Maude, i. 304 and Maund, i. 304. 307 and Mawde, i. 304. 307 Frenche's case, i. 306. 537 Freshfield v. Reed, i. 404 Freshwater and Crampom, i. 105 Frevin v. Paynton, ii. 368-9 Friend v. Eastabrook, i. 101 Frier an^Crispe, ii. 89 Frith and Oakes, ii. 97 Frogate and Sacheverel, i. 48. 55, 126. 492 ; ii. 88. 90-1-2-3. 95-6. 98. 362. 386 Frontee and Bridgham, i. 533 Frontin v. Small, i. 62. 391 ; ii. 16. 97 Frosel v. Welch, i. 105 Frowd and Doe dem. Calvert, i. 657 ; ii. 496. 498-9. 521 Fruen v. Porter, ii. 368-9 Fruin v. Paynter, ii. 368 Fry and Wilkins, ii. 5. 156. 367. 376. 396. 415. 428. 449. 452 Frver v. Coombs, i. 83, 480. 514 ; ii. 399 Fryett dem. Harris r. Jeffreys, ii. 472 Fuchau and Doe dem. Smelt, ii. 344 Fulham v. Fulham, i. 231-2 Fuller ti. Abbott, ii. 180 and Lapp, (lessee of), ii. 103 and Lessee of Lapp, ii. 103 Fulwood's case, i. 542 Funucan and Goodtitle, i. 418. 522 and Goodtitle dem. Clarges, i. 395. 397. 405. 415. 420-1. 424. 446-7. 517 Furley dem. Mayor, &c. of Canterbury r. Wood, i. 177. 179 ; ii. 66-7 Furnival r. Crew, i. 708. 711-12. 714-15. 719. 725. 731. 734. 741 ; ii. 402 Furser v. Prowd, ii. 336 Fuiy T. Smith, ii. 570-1 Fussell and Walsh, ii. 409 Futter T. Boorome, i. 232. 234-6 Fyson and Tuck, ii. 354. 434. 451 GABLE V. Forester, i. 28 Gage V. Acton, ii, 512. 514 TABLE OF CASES. Ixxi Gage and Bacheloure, ii. 163. 352. 355-6 Gainsford v. Griffith, ii. 285. 293-4. 304-5 Gallies v. Budbery, ii. 410 Galliers and Roe dem. Hunter, ii. 238. 252. 255-6. 260 Gallimore and Moss, i. 104. 164. 656 Galloway and Doe dem. Smith, i. 234 ; ii. 28 Gaily and Wey, ii. 386 Gamble and Cattell, ii. 553 Gamock v. Cliff, ii. 43 Gamon v. Vernon, ii. 135. 271. 421 Gardiner v. Norman, i. 140. 145 V. Williamson, i. 27 ; ii. 86. 137 Gardner v. Lachlan, ii. 12 Garland and Pope, i. 653 ; ii. 161 Garnance and Moodie, i. 116; ii. 131. 468 Garnish and Pigot, i. 29. 32. 372-3. 380. 393 Garnon and Moodie, ii. 131 and Moody, i. 116; ii. 131. 468 Garrard v. Grinling, i. 648 Garret and Wigson, i. 407 Garrett v. The Earl of Besborough, i. 625 Garth and Rickman, i. 70. 289. 309 Gartside v. Isherwood, i. 44. 560 Garvan and Roach, 373. 379 Gaskell v. King, ii. 180 Gaslight and Coke Company v. Tur- ner, ii. 165 Gawdy and Bennett, i. 50 Gay and Hillaiy, ii. 517 Geale and Elmor, i. 72. 245 Geary v. Bearcroft, i. 23 Gee and Paget, i. 76. 425; ii. 139. 140-1 Geekie and Doe dem. Monck, i. 664 ; ii. 521 Geering and Weatherall, i. 630. 632. 636 ; ii. 249. 252. 255. 265. 268. 274 Gells and Rowls, ii. 172 Gennet and Necton, ii. 377 atid Norton, ii. 377 George v. Pritchard, i. 616 Germain v. Orchard, i. 653 ; ii. 81 Germin v. Orchard, ii. 81 Germons and Wood, i. 116 ; ii. 131. 468 Gerrard v. Clifton, ii. 168 V. Norris, 105 V. O'Reilly, ii. 107 and Warwick, i. 395 Gest and Cornhh, i. 137 Gibbins v. Howell, i. 36. 389 Gibbs and Jesus' College, i. 542 Gibney and Adams, ii. 163. 285. 286. 360 Gibson and Benson, ii. 107-8 V. Courthope, ii. 436 and Gore, i. 37. 45 1'. Kirk, i. 178 and Lake, i. 538 and Whatman, ii. 238. 413 a7id Wither, ii. 331 Giddings v. Giddings, i. 766 Gie V. Rider, i. 301-3 ; ii. 509-10 Gifford and Doe dem. Wilmot, i. 475. 477-8 aiid Richardson, ii. 186 Gilbert and Doe dem. Hartridge, i. 403. 418 Gilby V. Copley, i. 391 ; ii. 12. 397 Gildea and Lord Lucan, ii. 405 Giles and Doe dem. Fisher, i. 165 V. Hooper, ii. 171 and Moyse, i. 129 and Warneford, ii. 672 Gilham and Martin, ii. 209, 279 Gill afid Reeves, i. 613 Gillingham and Company of Corn Exchange, Winchester, ii. 564 Oilman v. Hoare, i. 56-58 Gladding or Gladen and Stepping, ii. 309 Gladstone and Doe dem. Muston, ii. 224. 468. 472 Gladwin and Doe dem. Muston, ii. 468. 472 Glanville v. Payne, i, 76 Glimston v. Audley, ii. 316 Glinister t. Audley, ii. 316 Glover v. Archer, ii. 116-17 V. Clossey, i. 231 V. Cope, ii. 382. 393 and Hacket, ii. 288 and Humble, ii. 352. 386. 398 and Lancashire, ii. 316 and Pen, ii. 324 and Penn, ii. 289. 314 Glyn a?id Attorney-General, i. 184. 242 Goddard's case, ii. 10 Goddard and Desart (Lord), i. 577 and Herreyong, i. 306. 309 ; ii. 506 r. Keate, ii. 185. 417. and Lord Desart, i. 577 and Wright, ii. 197. 217 Godden and Page, ii. 436 and Palmer, ii. 129 Godfrey Wade's case, i. 91 Ixxii TABLE OF CASES. Godolphin and Marlborough (Duke of), i. 688 Godsall and Haydon, ii. 128 and Barnard, ii. 352-3. 355-6 Godwin and Doe dem. Spencer, ii. 33. 321 Golding and Doe dem. Rudd, ii. 323. 337 Goldsmith and BrowTi, ii. 38 and Doe dem. Barker, ii. 318 Goleborn v. Alcock, i. 525 Goman v, Salisbury, ii. 650 Gomme and Alchorne, i. 61. 173 Gooch a7id Doe dem. Grimes, ii. 20 Good V. Hill, ii. 39 Goodal and Kemp, i. 64 Goodale and Middlemore, ii. 402 Goodall and Middlemore, ii. 382 Goodcheapea?2(?Varnis,ii. 352-3-4-5-6 and Ventrice, ii. 352. 353-4-5-6 Goodgaine v. Wakefield, ii. 54 Gooding a7id Fleming, i. 60 V. Gooding, i. 447 Goodman and Cooch, i. 51. 178. 182 ; ii. 15. 396. 563 Goodright dem. Carter v. Straphan, i. 149-50 dem. Charter v. Cord went, ii. 468 dem. Hall v. Richardson, i. 663. 665 ; ii. 50. 72-3. 75. 461 dem. Hare t. Cator, ii. 331. 338. 340 dem. Nicholls v. Mark, ii. 77. 501. 576 dem. Stevenson v, Noright, ii. 476 dem. Walter v. Davids, ii. 468-70 ■ dem. Wynne r. Hum- phreys, i. 94-5. 524 Goodson and Bringloe, i. 526 ; ii. 107. 398 Goodtitle dem. Adeane v. Prentice, i. 524 dem. Clarges r. Funucan, i. 395. 397. 405. 415. 420-1. 424.446-7. 517 dem. Duke of Norfolk v. Notitlo, ii. 529 dem. Edwards v. Bailey, i. 613 • dem. Est wick V. Way, i. 583. 699. 601 ; ii. 648 • dem. Faulkner r. Morse, i. 67. 68 Goodtitle v. Funucan, i. 418. 522 dem. Galloway r. Herbert, ii. 4 ■ T. Holdfast, ii. 475 dem. Jones v. Jones, i. 613 dem. Norfolk (Duke of) v. Notitle, ii. 629 V. Pettoe, i. 395-6 Goodwin and Bishop, ii. 166 and Harris, ii. 367 V. Longhurst, i. 109-11-12 Goodwin and Hams, ii. 418 Goold and Currie, ii. 177. 181 • and Nicholls, ii. 177 Gordon and Storer, ii. 12. 99 V. Trevelyan, i. 622 Gore V. Gibson, i. 37. 45 V. Lloyd, i. 592. 598 T. Wright, ii. 135. 503 Goring and Brook, i. 232 . and Mantz, ii. 196-7 V. Warner, ii. 252. 268 Gorton v. , ii. 5 r. Smart, ii. 232 Gostling and Baker, i. 16. 17. 18 ; ii. 358. 563 Gostwick's case, ii. 257 Gostwicke v. Mason, i. 656. 659 Gough, Mre., ii. 442 and Whitley, ii. 507. 509 Gould and Earl of Shrewsbury, ii. 281 Gouldsworth t. Knights, i. 554 ; ii, 395 Gourlay v. Duke of Somerset, i. 636-7 ; ii. 258 Gover and Dean and Chapter of Windsor, i. 21. 71-2 Governor &c. of Bedford Level and Redshaw, i. 709 Governors of Christ's Hospital v. Har- rild, ii. 172 Gowdey and Fourdrin, i. 531-2-4 Gower and Dean and Chapter of Windsor, i. 71-2 Gozna v. The Alderman &c. of Gran- tham, i. 312. 351. 364 Grace, Ex parte, i. 764-5 Gradin a?ifZ Burrowes, i. 164. 169 Gradyll and Attoi-ney-General, L 526 Graham and Forster, i. 527 and Harris, i. 401 r. Lord Londondeny, i. 771. 778 r. Wade, ii. 176 Graham's (Lady) case, i. 404 Grancw r. Parker, i. 673 TABLE OF CASES. bcxiii Grange and Hill, ii. 114. 126. 144. 336. 387 V. Tiving, i. 400-1. 520. 525 Granger v. Gravenor, ii. 260 Grant, Ex parte, i. 700 Mid Clarke, i. 648. 651 T. Ellis, ii. 151 and Higgins, i. 306 ; ii. 34 Grantham and Roe dem. Duke of Bolton, i. 394 Gravenor and Granger, ii. 260 ' T. Parker, i. 673 and Parker, i. 673 Gray v. Acton, ii. 512. 514 and Hatton, i. 570 and Hinde, ii. 155. 287 Grayham and Foster, i. 527 Grazebrook and Doe dem. Earl of Egremont, i. 468 Great Western Railway Company and Storer, ii. 210 Gree t. Studley, i. 200 ; ii. 51 Green and Attorney-General, i. 347. 350-1. 361. 363 and Boraston, ii. 521 V. Bridges, ii. 225-6. 483. 490 and Bridgnian, i. 44 and Doe dem. Chadborn, i. 664-5. 667 r. Eales, ii. 186. 197 V. Edwards, i, 676 ; ii. 12 and Grescot, ii. 416 and Jones, ii. 107. 474 and Kirby, ii. 336 a7ul Lely, i. 660-1-2 T. Lord Listowel, ii. 376 and Prince, i. 77. 86. 395-6 fl/if/ Skipwith, i. 52. 61 ; ii. 26 Greenaway t. Adams, ii. 259 Greenbank and Hearle, i. 399 Greene's case, ii. 468-9-70 Greene and Coombe, ii. 215. 218 and Heale, i. 433 and Hele, i. 433 and lessee Conyers, ii. 543 Greenhill and Baker, ii. 170 Greenslade r. Tapscott, ii. 109. 261-2 Greenvil and Pollard, i. 445. 447 Greenwood's case, 133-4 Greenwood r. Evans, i. 777. 779 V. Tyber, i. 141. 143. 538. 685-6. 691-2-3 T. Tyler, i. 538. 685. 691-2 and Tyler, i. 692-3 and Woodroff, i. 69 ; ii. 315 Greene and Conyers (lessee), ii. 543 Gregory v, Harrison, i. 112 Gregory and Lloyde, i. 528 ; ii. 66. 509 r. Maior, ii. 312 r. Mayo, ii. 312 V. Mighell, i. 572. 575. 578 ; ii. 182 and Wootley, ii. 394. 502 Gregson and Clayton, ii. 206. 284 Greenfield r. Strech, i. 392 Grene v. Edwards, ii. 12. 69 Grescot t. Green, ii. 416 Gretton v. Diggles, ii. 422 Grevett and Title, i. 655 Grey v. Cuthbertson, ii. 407 r. Mannock, i. 687 Grierson and O'Brien, i. 436. 488 Griffin's case, i. 653 Griffin t. Deveuille, i. 44 — T. De Veulle, i. 44 T. Griffin, i. 758. 762. 764 V. Stanhope, i. 77 ; ii. 317. 576 Griffith aHfZ Attorney-General, i. 347. 349. 353. 357. 361-2-3. 440. 525 and Gainsford, ii. 285. 293-4. 304-5 T. Griffith, i. 389-90 and Pendred, i. 748. 753 Griffiths and Saunderson, i. 640 Grigg «wfZ Major, ii. 312 Grindal's case, i. 238. 309 Grimman v. Legge, ii. 603 Grinling a7id Garrard, i. 648 Grissell v. Robinson, ii. 539 Grobham How and Timberley, i. 655 Grogan and Lawless, i. 759 V. Magan, ii. 386 Grosvenor v. Brook, i. 531 and Salter, i. 181. 288. 543 Grove v. Bridges, i. 106 r. Watt, i. 561. 563 Grover and Tippin, i. 71 Groves and Doe dem. Walker, i. 602. 611 aw£?Hare,ii. 120-1.123-4.166. 192-3-4-5 Grubb and Doe dem. Grubb, ii. 496-7 Grubbam a^id Stone, ii. 1 Gi-umbrell r. Roper, i. 72. 242. 246 Grumsden and Cromwell, ii. 10 Grunsdale and Crumwell, ii. 10 Grute V. Locroft, i. 127-8. 155 ; ii. 50 Gubbins r. Creed, i. 566 Gudge and Kavanagh, ii. 336. 345. 518 Gulliver dem. Tasker r. Burr, i. 658 Gulwel and Russell, ii. 40 Gustard and Doe dem. Henry, ii. 476 Gutteridge and Eagleton, ii. 553 r. Munyard, ii. 196. 232 Ixxiv TABLE OF CASES. Gutteridge and Simpson, i. 367 Guy and Doe dem. Lord Say and Sele, i. 370 Guy's Hospital and Baynham, i. 608. 708. 711-12.719. 726. 734. 754 Guyon and Thompson, i. 636 ; ii. 221. 224-5 Gwillim r. Stone, i. 613-14. 617. 621 Gwynne x. Mainstone, ii. 70 Gybbe c. Searl, i. 390 ; ii. 507-8 Gybson t. Searl, i. 390. 537 ; ii. 38. 507-8 Gyles and Woodward, ii. 107-8 and Wrenford, i. 672 Gyrling and Bacon, ii. 39 H. HACK V. Leonard, ii. 482. 485-6. 488 Racket v. Glover, ii. 288 Hackett v. Hobart, i. 435 V. McNamara, i. 370-1. 709. 741 Hacking and Baker, i. 90 Hadon v. Arrowsmith, i. 109 Haig V. Homan, ii. 423 Hakewill and Wollaston, i. 17. 18; ii. 83. 368-9. 375. 416 Halcombe a^id Doe dem. Wyndham, i. 413. 434 Hale and Forster, i. 578 and Regina, i. 108 and Shee, ii. 255 Hales and Brookman, i. 766 and Doe dem. Whitaker, i. 171 Haley v. Rownd, i. 298 Hall V. Arrowsmith, i. 93. 95-6. 100. 109. 112 r. Ball, ii. 541 V. Betty, i. 617 a7id Buckland, i. 633-4. 636 ; ii. 163. 352. 416 and Brunton, ii. 39 V. Combs, ii. 27 V. Denbigh, ii. 10. 11 and Fawcett, i. 13. 16. 17. 18. 56 and Keech, i. 170. 614 and Keech, dem. Warne, i. 164 and Nurstie, ii. 352. 355. 386-7. 391 V. Peart, i. 234-5 ; ii. 27 V. Sebright, ii. 23 V. Smith, i. 744 V. Trussol, ii. 353 and Wilkinson, i. 131. 134. 1 75. 728-9 ; ii. 523-4 Hall and W^ootcn, ii. 316 IJalls and Keble, ii. 63 Halswell v. Ayleworth, ii. 65 Hambledon and Crop, ii. 336 Hambleton and Cropp, ii. 119 Hamerton v. Stead, i. 582. 611 Hamilton v. Cardross. i. 32 V. Clanricarde, i. 390 and Kane, i. 752-3. 757 V. Denny, i. 764. 782 (Duchess of) v. Mordaunt, i. 492 Hamlen v. Hamlen, i. 107. 113. 594. 612 ; ii. 282. 500. 509-10 Hamley v. Hendon, ii. 403 Hammond and Spragg, ii. 177-8 V. Toulmin, ii. 121. 353. 433 Hamond v. Dod, ii. 312 Hampson and Cheetham, ii. 182 Hanbury v. Litchfield, i. 669. 744 Hancock and Andrew, ii. 177-8. 181 V. Caffyn, i. 608. 728. 732 Hand, Mre., ii. 258. 268 Hangon v. Came, ii. 101. 115 Hankey, Ex parte, i. 164 Hannan v. South London Water-works Company, ii. 487. 490 Hannay and Taynton, i. 369 Hansaker and Kirby, ii. 315 Hanson and Henn, ii. 154 V. Norcliffe, ii. 328 and Saunderson, ii, 177-8 V. Stephenson, ii. 434. 438 Harbert v. Parry, ii. 257. 265 Harbin v. Barton, i. 127. 155 ; ii. 50. 96 V. Chard, i. 155 V. Loby, i. 127 ; ii. 96 Harcourt v. Pole, i. 455-6 Harenham and Sharpner, i. 127 Harding's case, ii. 131. 133 Harding and Collins, i. 26. Ill ; ii. 82. 85-6. 132-3 V. Crethorn, ii. 518 and East, i. 106 V. Wilson, ii. 34-5 Hardman v. Johnson, i. 766. 768-9 Hardy and Berkeley, i. 391-2-3 ; ii. 13. 19 and Paulin, i. 53 and Sawer, i. 672 and Sawyer, i. 672 and Sayer, i. 672 T. Seyer, i. 672 Hare v. Bickly, i. 288. 291 T. Cator, ii. 421 T. Celey, ii. 23 r. Groves, ii. 120-1. 123-4. 166. 192-3-4-5 and Havergil, i. 113 V. Okelie, ii. 23 TABLE OF CASES. Ixxv Hare v. Savil, ii. 100. 116 Harflet v. Butcher, ii. 219 Hargrave's case, ii. 369 Hargrave and Boddy, ii. t369 Harker v. Birkbeck, ii. 548 Harland v. Bromley, ii. 503 mid Newton, ii. 517-18 Harleston and Heaton, ii. 55 Harley v. King, ii. 331. 386. 398. 418. 517 Harnett v. Yeilding, i. 440. 708 Harper v. Bird, ii. 87. 164. 382. 403 V. Burgh, ii. 87. 164. 382, 403 Harridge and Jevons, i. 533 Han-ies v. Bryant, i. 754. 759 Harrild a7id Governors of Christ's Hospital, ii. 172 Harrington v. Pole, ii. 36 v. Wise, i. 598-9 ; ii. 87. 113 V. Wyes, i. 598-9 ; ii. 87 V. Wyse, ii. 87. 113 Harris and Baber, ii. 429 V. Bessie, i. 436 and Cook, ii. 422 V. Davis, i. 34 ■ ■ V. Evans, i. 663. 665 ' V. Goodwin, ii. 367 V. Goodwyn, ii. 418 V. Graham, i. 401 V. Jays, i. 288 V. Jones, ii. 196 V. Kemble, i. 625 ■ and Mills, ii. 376. 430 V. Morrice, i. 24 ; ii. 137 V. Parker, ii. 101 and Parker, ii. 101 and Rolfe, ii. 224 226. 483. 487. 490 V. Tremenheere, i. 559-60-1. 562-3 and Walker, ii. 416 V. Wing. ii. 509 and Wing, i. 231-2 ; ii. 509 Harrison's case, ii. 127-8. 377 Harrison and Allen, ii. 336 V. Barnby, i. 132. 136 V Bulcock, ii. 172 •— — — and Burrell, ii. 183 — and Burwell, ii. 183 and Dixon, i. 139 • atid Gregory, i. 112 V. Lord North, ii. 122 — and Norris, ii. 144 V. Prendergast, i. 757 and Roe dem. Gregson, i. 103; ii. 251. 259. 265. 277. 468. 470 Harrison and Wallis, i. 140. 540 Harscot's (Dr.) case, i. 290. 296 Hart atid Donne, i. 156 V. Windsor, i. 183. 196. 614 ; ii. 220. 285-6 Hartley v. Pehall, ii. 410 and Phillips, i. 583 Hartly v. Wilkinson, i, 579 Hartpole atid Ward, i. 397. 489. 569. 560. 562-3 Hartwell and Whitlock, i, 127-8. 598 ; ii. 23. 50 Hartshorne v. Watson, i. 19 ; ii. 329. 331.416.517 Harvey v. Bridges, ii. 346 V. Biydges, ii. 346 and Doe dem. Sutton, i. 398. 453. 484 and Hicks, ii. 65 and Norton, i. 157. 369 ; ii. 96. 359 ' mid Oswald, ii. 468 Harvie v. Oswell, ii. 468 Harvy v. Oswald, ii. 468. 470 V. Thomas, i. 141 Hai-wood atid Jacomb, i. 367 Hassel's Executrix, ii, 352. 354. 356 Hastings v. Blake, ii. 353 and Dancer, i. 389 V. Wilson, ii. 435-6 Hastier and Costigan, i. 174 Has well and Hay ward, i. 598 Hatch and Holford, i. 10. 102 ; ii, 164. 259. 391 Hatherton (Lord) v. Bradburn, ii. 83 Haths V. Ash, ii. 54-5 Hatter v. Ash, i. 694 ; ii. 54-5 Hatton V. Gray, i. 570 and Mayor &c. of London, i. 26 and Walker, i. 103 ; ii. 196 Haugh, Mre., ii. 441 Havergil i\ Hare, i. 113 Haw v. Ogle, i. 31 Hawes v. Loader, ii. 377 Hawke and Doe dem. Duke of Nor- folk, ii. 252 Hawker and Wickham, i. 423 Hawkes v. Orton, ii. 316 Hawkesworth and Bishop of Raphoe, ii. 404 and Fitzpatrick, i. 671. 681 and Raphoe (Bishop of) ii. 404 Hawkins, Ex parte, ii. 441 V. Day, ii. 376-7. 380 r. Holmes, i. 568. 577 r. Kelly, ii. 139-40 Ixxvi TABLE OF CASES. Hawkins and Shecomb, i. 454. 4G1. 463 V. Sherman, ii, 6. 416 and Slocomb, i. 454-5. 461 V. Warre, ii. 566 Hay and Henderson, ii. 156. 159-60. 239-40-1. 244-5. 247-8-9 V. Palmer, ii. 139 Hayes and Aprice, i. 232-3 V. Bickerstaff, ii. 9. 285. 292. 312-13-14 and Stanley, ii. 309. 312 and Williams, ii. 45 Haydon v. Bell, i. 619 V. Godsale, ii. 128 Haylev and Roe dem. Bamford, i. 732-3-4 ; ii. 319-20. 363. 365. 389. 397. 402. 461 Hayne v. ]\Ialtby,ii. 129 Haynes and Baugh, i. 74-5. 81. 83. 480 Hayward v. Haswell, i. 598 Hazel and Lady Dacres, i. 395 Heal andW ooion, ii. 315 Heald and Legh, ii. 42-3 Heale v. Greene, i. 433 and Wotton, ii. 315 Heap and Blackston, i. 157 ; ii. 394 V. Livingston, ii. 422 Heaphy v. Hill, i. 629 Heane v. Rogers, ii. 452 Hearing and Style, i. 60 ; ii. 285 Hearle v. Greenbank, i. 399 Hearn and WooUam, i. 640. 643-4. 648. 651 Hearne v. James, ii. 566 Heath v. Baker, ii. 109. 165 and Blaxton, i. 129. 139. 157 and Walsal, i. 140 Heathcote and Cochin, ii. 78 Heatherley dem. Worthington v. Weston, i. 131-2 Heaton v. Harleston, ii. 65 and Little, ii 331 Hebbert v. Thomas, ii. 42 Hedd V. Chalener, i. 107. 155 Hedger and Mayor of London, ii. 210 Hedges and O'Herlihy, i. 572. 577. 622. 626. 630. 634. 636 Medley v. Joans, ii. 10 H(,-gan V. Johnson, i. 582. 612 Ileidon v. Ibgrane, i. 234-5 Hele V. Greene, i. 433 awl, AV'ooton, ii. 6. 315 and Wotton, i. 147 ; ii. 315 Heller V. Casebert, ii. 87. 367-«-9. 371 Hellier v. Casbard, ii. 87. 352. 367. 368-9-70-1 and Leigh, i. 301. 303 Helmore and Ho^jkins, ii. 11 Helsham v. Langley, i. 390 Helyar's case, i. 20 Heming and Ai\io\fe, ii. 87, 271. 382. 391. 399 Hemingway v. Fernandes, ii. 407 Hemming ^^ Brabason, i. 673 Hemmings and Attoe, ii. 87.271.382. 391. 399 Henderson v. Hay, ii. 156. 159-60. 239-40-1. 244-5. 247-8-9 Hendon and Hamley, ii. 403 Henley and Clement, ii. 12 Henn v. Hanson, ii. 154 Henniker v. Turner, i. 134. 136 Henning and Alfo, ii. 87. 271, 382. 391. 399 Hennings v. Brabason, i. 673 V. Paucharden, i. 692. 694 Henstead's case, i. 48. 125-6. 142, 655 Henston and Snelgar, i. 131 Hepburn and Fenner, i. 610 Hepworth and Copley, i. 603 Herbert and Goodtitle dem. Galloway, ii. 4 t!. Munday, i. 301 and Parry, ii. 251. 258 Herbin v. Chard, i. 127 ; ii. 50 Hercy and Billingsby, ii. 39 Hereford (Bishoj) of) v. Scory, i, 77. 78. 293 Herlakenden's case, ii. 43 Hermitage and Jenkins, ii. 352. 354. 368. 371 V. Tomkins, i. 53-4 Herregong v. Goddard, i. 306. 309 ; ii. 506 Hersey and Billingsley, i. 27 ; ii. 39. 45 Hesse v. Stevenson, ii. 296, 305. 308 Hewetson and Boyes, ii. 386. 402 Hewitt and Brooke, i, 630. 634 and Legh, ii. 279 Heyton and Calthorp, ii. 289 Hcyward's case, ii. 106 Hickes and Stanfill, i. 659. 665 and Stanfitt, i. 659. 665 Hickman and Abercrombie, ii. 370. 456 Hicks V. Downing or Downling, 10. 17. 18. 20. 102 V. Harvey, ii, 55 and OIley, ii. 10. 11. and Ryley, ii. 4 and Stomfil, i. 20. 659 ; ii, 51 Hide and Aylmer, ii. 371 TABLE OF CASES. Ixxvii Hide V. Le Dean and Canons de Windsor, ii. 184. 402 V. Whistler, ii. 42 and Williams, ii. 189 Hiern and Doe dem. Copleston, i. 435. 454-5. 464 Higgins V. Grant, i. 306; ii. 34 V. Rosse, i. 746 Higginson and Bird, i. 177-8; ii. 1. 2 Highain and Plesant, i. 583 Hiley and Doe dem. Jackson, i. 321-2-3 Hill V. Barclay, i. 636; ii. 210-11. 216. 278. 477. 483-4. 486. 487-8-9-90 V. Barry, i. 24 and Brewer, i. 24. 102 ; ii. 259. 405 V. Browne, ii. 314 and Cibel, ii. 127 V. Dobie, ii. 440 and Good, ii. 39 V. Grange, ii. 114. 126. 144. 336. 387 a)id Heaphy, i. 629 and Hyde, ii. 174 and Muskett, ii. 323 V. Saunders, i. 56. 59. 62. 139. 143. 153. 377. 380 V. Waldron, i. 731 and Walrond, i. 731 Hillard and Lewis, ii. 288 Hillary v. Gay, ii. 517 Hills V. Hills, i. 671. 687 ; ii. 98 Hilman v. Hore, i. 55. 57. 62 Hilton and Allen, i. 753 HinchclifFe v. Earl of Kinnoul, ii. 34 Hinchman v. Hes, i. 656 Hind and Leigh, ii. 235-6 and Seers, ii. 266 Hinde v. Gray, ii. 155. 287 Hindle and Parry, i. 140. 143. 146 — V. Pollitt, ii. 279 Hinsworth Hospital and Watson, i. 357-8. 710 Hitchcock and Braythwayte, i. 611 ■ a}id Bridges, i. 713.715-16. 719 r. Fox, ii. 269. 324. 468-9 Hoare atid Dayrell, i. 423 and Gilman, i. 56. 58 and Holman, i. 57 ~ and Philpot, ii. 163. 252. 268. 272. 417 Hobart and Hackett, i. 435 and Windsmore, i. 538. 683. 684 ; ii. 49 and Winsmore, i. 684. 686 Hobday atid Wilson, ii. 371 Hobling, Mre., ii. 434. 441. 446 Hobson and Doe dem. lligginbotham, ii. 554-5 Hoby V. Roebuck, ii. 32. 82-3 Hocicett a)id Phimmer, i. 145 Hockin v. Cooke, ii. 102 Hock worthy (Inhabitants of) and Regina, ii. 559 Hoddesdon and Jackman, i. 105-6 Hodgens and Lessee of Warrington, ii. 342 Hodges V. Horsfall, i. 623 V. Newcomen, i. 304 and Turner, i. 111. 112 Hodgeskins v. Tucker, i. 300. 302. 306-7 V. Whood, i. 21 Hodgkin a7id Mount, ii. 64 Hodgkins v. Robson, ii. 127. 132-3. 134 V. Thomborough, ii. 132. 133-4 Hodgkinsonne v. Whood, i. 21 Hodgson and Barker, ii. 188 V. East India Company, ii. 315 and Kendray, i. 391 and Roe dem. Parry, i. 373. 376. 378-9-80 r. Thomborough, ii. 127. 132-3-4 Hodson V. Sharpe, i. 59 ; ii. 571 Hogan V. Fitzgerald, i. 12. 13. 18 and Jack dem. West, ii. 144. 336 Hogg V. Cross, ii. 81 and Doe dem .Pitt, ii. 258 Holder and Barker, ii. 488 V. Farley, i. 117 V. Taylor, ii. 9. 285. 288 Holdfast and Goodtitle, ii. 475 Holding V. Pigott, ii. 518 Holditch V. Mist, ii. 353 Holford atid Cave, i. 21 V. Hatch, i. 10. 102; ii. 164. 259. 391 Holgate T. Kaye, ii. 137 Holland v. Hopkins, ii. 104-5 and Littler, ii. 277 HoUis V. Claridge, ii. 539 V. Edwards, i. 572 V. Whiteing, i. 572 Holloway and Fenton, i. 45 and Marshall, ii. 368. 378 and Sutton, i. 59. 64 Holman v. Exton, i. 99. 695-6 V. Chute, ii. 359 V. Hoare, i. 57 Ixxviii TABLE OF CASES. Holman and Swaine, i. 531 ; ii. 506 V. Tuke, ii. 359 Holmden and Lomax, i. 218 Holme a7id Cragg, i. 45 Holmes and Arundel (Corporation of), i. 317 (Mayor of), i. 318 ; ii. 544 Holmes v. Blogg, i. 528-9 V. Buckley, ii. 414 a7id Corporation of Arundel, i. 317 and Hawkins, i. 568. 577 and Lord, i. 762 and Mayor of Arundel, i. 318 ; ii. 544 and Poultney, i. 10. 11. 13. 16. 17. 18. 102; ii. 83.423 V. Seller, ii. 312 and Young, i. 370 Holt a7id Bell dem. Stroud, i. 239 a?jfZBis, i. 239 T. Holt, i. 762-3 and Oldershaw, ii. 146 V. Roper, i. 234; ii. 66 Holte and Bisco, lessor de Strode, i. 239 Holtpzaffell and Baker, ii. 120. 125 Holtzapffel v. Baker, ii. 123. 125. 194. 195 Homan a7id Bayley, ii. 212 Home v. Thompson, ii. 480 and Watson, ii. 174. 176 Hone V. Davis, i. 785-6 and Davis, i. 785-6 Honeycomb dem. Halpen v.Waldron, ii. 571 Hood and Bicknell, i. 586 anf/ Omelaughland, i. 52. 165 Hoodie v. Winscomb, ii. 344 Hook and Irish, ii. 61 Hooker and Fildes, i. 615. 627 Hooks V. Bellamy, i. 53. 55 Hooper v. Brodrick, ii. 233 and Clinton, i. 150. 152 and Cloak, ii. 288 and Collett, i. 404. 526 and Giles, ii. 171 Hope V. Bague, ii. 371 Hopkins and Bond, ii. 278. 475 r. H el more, ii. Ill and Holland, ii. 104-5 Hopkinson and Den dem. Peters, ii. 67 V. Lee, i. 135 Hopton, Ex parte, ii. 450 Hopwood V. Barefoot, ii. 169. 171 Horde and Taylor dem. Atkyns, i. 394. 397. 406. 470. 489. 517. 522. 656. 726 ; ii. 53 Hore and Brome, ii. 398 and Broom, ii. 135 and Hilman, i. 55. 57. 62 Horman and Haig, ii. 423 Hornby v. Houlditch, ii. 352-3. 355-6 Horneby v. Clifton, ii. 37-8 Hornidge v. Wilson, ii. 370. 373-4 Hornsley and Sympson, i. 404 Horsefall v. Mather, ii. 182 V. Testar, ii. 218 Horseley v. Rush, i. 393 Horsfall atid Douglas, i. 639 and Hodges, i. 623 Horton and Burton, ii. 257-8 V. Horton, ii. 251. 257 and Milner, ii. 306. 308 and Whitlock, i. 127-8. 598 ; ii. 23. 51 Horwood and Decharms, i. 127. 137 Hosier v. Powell, i. 433. 493. 522 V. Read, i. 648 Hoskins and Trenchard, ii. 303 Hotham v. East India Company, i. 735 Hotley V. Scott, i. 493. 506-7-8-9 ; ii. 55-6. 318 Houlditch and Hornby, ii. 352-3. 355-6 House V. Laxton, ii. 10 Hovenden v. Lord Annesley, ii. 495 How V. Kennett, ii. 434. 446. 459 and Lucas, ii. 275 V. Stile, ii. 512 V. Whitfield, i. 404. 406 ; ii. 419 and Whitfield, i. 404 ; ii. 419 Howard's case, ii. 54-5 lessee v. Sherwood, ii. 521 Howard and Aldridge, ii. 100. 280 and Bishop, ii. 521 and Coomber, ii. 113 and Moles worth, i. 518 ; ii. 541 - V. Wood, i. 26 Howell and Croft, i. 183 and Gibbins, i. 36. 389 V. Richards, ii. 288. 296. 298. 301 and Tottell, i. 24 ; ii. 1 Howgil and Humberton, ii. 417 Howlet V. Strickland, ii. 215 Howse V. Webster, ii. 367-8 Hoyle V. Livesey, i. 637 Hozier v. Powell, i. 433. 493. 522 Hubbard and Windsmore, i. 538. 684 Hucking and Baker, i. 21. 90. 100 Huckle V. Wye, ii. 419 Huddleston v. Briscoe, i. 570 TABLE OF CASES. Ixxix Huddlestone and Johnstone, i. 657. 664 ; ii. 506 Hudson V. Bartram, i. 628 V. Hudson, i. 367 ■ V. Snellgar, i. 131 Hughes, Ex parte, ii. 452 and Baylie, ii. 312 V. Bennett, ii. 296 V. Crowther, i. 670-1 V. Hughes, i. 389 and Lord Penrhyn, i. 778 V. Richman, ii. 280. 402 V. Robotham, ii. 515 Hulbord and Windsraore, i. 684 H umber stone and Blemmer H asset, i. 637 Humberton v. Howgil, ii. 417 Humble v. Glover, ii. 352. 386. 398 V. Hunt, i. 310 V. Oliver, ii. 352. 386. 398 Hume and Clark, ii. 435. 438 V. Kent, ii. 468-9-70 Humphreston's case, i. 28-9. 32 Humphrey and Burleton, ii. 267 Humphreys and Brookes, ii. 315 and Goodright dem. Wynne, i. 94-5. 524 and Rogers, i. 164-5. 167. 170. 493. 521-2 Humphry v. Damion, ii. 331 Hundred of Gaw^try and Norris, ii. 65 Hungerford's case, i. 217. 234-5 Hungerford and Attorney-General, i. 348. 352-3. 355. 357. 359 V. Austen, i. 109 V. Clay, i. 173 Huning v. Ferrers, i. 86 Hunt V. Allen, ii. 313 V. Cope, ii. 128 and Curtis, ii. 377 -P. Danvers, ii. 289-90 and Humble, i. 310 and Morgan, ii. 289 — awf^Pitt, i. 156 V. Singleton, i. 246 Hunter v. Atkins, i. 559-60-1 and Dunk, i. 582. 588. 606 Huntley's case, i. 134 ; ii. 91. 132 Huntley v. Roper, ii. 132 Huntington and Rowe, ii. 64. 101 Hnrd v. Fletcher, ii. 309 and Salisbury dem. Cooke, i. 117 Hurleston v. WoodrofFe, ii. 33-4 Huron anc^ Norton, i. 391 Hussey and Brisden, i. 375 and Revell, i. 735. 782 Hutchins v. Martin, ii. 507 V. Scott, ii. 114 Hutchinson and Lord Ormond, i. 560 Hutton V. Warren, ii. 279. 518. 520-1 Hyde«. Dean and Chapter of Windsor, ii. 184. 402 V. Hill, ii. 174 and Skinner, i. 715-16. 733 L IBGRAVE and Heidon, i. 234-5 Iggulden V. May, i. 608. 703. 707-8. 711-12. 714. 721. 724. 727 ; ii. 9. 87. 285. 293 lies and Dimsdale, i. 656 — and Hinchman, i. 656 Inchiquin (Earl of) v. Burnell, i. 724 ; ii. 83 Inglish V. Macdougall, ii. 354 Ingram v. Bray, ii. 154 and Buckeridge, i. 778 and Tothill, ii. 154 V. Tothill, ii. 90 and Trevill, ii. 154 Inhabitants of Chawton and Regina, i. 664-5 Inhabitants of Chipping Norton and Rex, i. 177-8 Inhabitants of Eastbourne and Rex, i. 533 Inhabitants of Gamlingay and Rex, ii. 56 Inhabitants of Hockworthy and Re- gina, ii. 569 Inhabitants de Little Dean and Rex, ii. 4 Inhabitants of North Bedburn and Rex, ii. 541 Inhabitants of North DufBeld and Rex, i. 177-8 Inhabitants of Oakley and Rex, i. 373. 377 Inhabitants of Preston and Rex, ii. 657 Inhabitants of Ridgwell and Rex, ii. 548 Inhabitants of Shenington and Rex, i. 372-3 Inhabitants of Toddington and Rex, i. 373 Inman and Bland, ii. 88. 90. 92. 94-5. 97-8 V. Stamp, ii. 5 Innes and Jackson, i. 493 Ipswich (Bailiffs of) v. Martin, ii. 135. 421 Ixxx TABLE OF CASES. Ireland v. Barker, i. 300 V. Bircham, ii. 288. 292 Iremonger v. Newsam, ii. 351-2. 354. 355. 367 Irish V. Hook, ii. 61 Irwin and MoUoy, ii. 20 Isaac, Mre., i. 701 Ischam v. Morrice, i, 50. 53. 58. 64 ; ii. 7 Isham a7id Norris, i. 50. 56. 58. 64 and Panton, i. 659. 665 Isherwood and Gartside, i. 44. 560 V. Oldknow, i. 407. 429. 436. 477. 488. 493. 522 ; ii. 100. 383. 386. 397 Isles a7^d Dunsdale, i. 656 Isteed V. Stoneley, i. 732-3-4 ; ii. 164. 388. 402 Ive's case, i. 464 ; ii. 42. 507-8 Ive r. Sams, ii. 42. 507 Iveson V. Conington, i. 391 Ivie and Warburton, i. 60 ; ii. 416 Izard and Deane, i. 572 JACK dem. Croker v. Orpen, ii. 325. 466 Dawson v. Bell, ii. 29 V. Mclntyre, ii. 30 Wheatley v. Creed, i. 429. 436.438; ii. 11 West V. Hogan, ii, 144. 336 Jackraan v. Hoddesdon, i. 105-6 Jackson and Boase, ii. 557-8 atid Brashier, i. 590 v. Cator, i. 95 and Cooth, i. 572 and Doe dem. Matthews, ii. 524 and Doe dem. Vickery, ii. 206 and Evans, i. 346. 371 V. Innes, i. 493 V. Mordant, i. 142-3. 150 t. Neal, i. 109. IM and Rich, i. 641. 645 V. Saunders, i. 761 V. Vernon, ii. 422 V. Welsh, i. 764 Jacomb v. Harwood, i. 367 Jalabert v. Duke of Chandos, ii. 259 James' case, i. 63-4 James r. Blunck, ii. 410. 412-13 r. Dean, i. 665. 658. 763. 766-7-8. 770 James and Hearne, ii. 566 v.Landon, i. 33. 48, 5.5. 59. 63-4 ; ii. 356. 517 and London, i. 63-4 — atid Nokes, ii. 9. 285. 312. 420 and Oxley, i. 19. 103-4 and Pitt, i. 183 and Salvin, ii. 221 and Servante, i. 135 Jane and Paradine, ii. 120-1. 186. 188 Jaques and Eaton, ii. 375. 422 Jay V. Ryder, i. 301. 303 ; ii. 509-10 Jays and Harris, i. 288 Jeakill v. Linne, i. 23 ; ii. 130 JefFereys t\ Small, i. 538 Jeffery v. Coyte, i. 85 and Spratt, i. 616 Jeffrey's case, ii. 172 Jeffreys and Fiyett dem. Harris, ii. 472 and Walker, i. 753 Jekyl and Elliot, i. 688 and Williams, i. 688 Jekyll and Wind, i. 2 Jenison v. Lord Lexington, i, 10 ; ii. 95 Jenkins r. Armitage, ii. 352. 354. 368, 371 and Doe dem. Southam, i. 85 V. Hermitage, ii. 352. 354. 368. 371 and John, i. 591. 598 r. Kemishe, i. 436 r. Portman, ii. 185. 425 and Woodhouse, ii. 310. 312 dem. Yate v. Church, i. 93. 95. 524 Jenner v. Morgan, ii. 139 Jenney v. Brook, ii. 44 Jennings r. Bragg, i. 29. 48. 50 V. INIajor, ii. 540 Jepson and Doe dem. Antrobus, ii. 321 Jerman v. Orchard, i. 653 ; ii. 81 Jermin and Willis, i. 178. 184; ii. 328. 334 Jermyn, Ex parte, i. 43. 751 Jemegan and Willis, i. 44 Jerritt v. Weare, i. 20 ; ii. 312 Jervis and Peles, ii. 303 Jervoise v. Clarke, i. 346 arid Rubery, i. 706. 732. 734. 754 Jessop V. King, i. 761 and Netherton, ii. 360 Jesus' College v. Gibbs, i. 542 Jevons V. Harridge, i. 533 Jew r. Thackwell, ii. 137 r. Thirkwell, ii. 137 TABLE OF CASES. Ixxxi Jewel's case, i. 70. 72 Jewell r. , i. 60 Jewson r. Moulson, i. ir)6 Joans and Hedley, ii. 10 Jobson V. Michael, i. 290 Jocelyne and Kale, ii. 367. 369 Jodderell v. Cowell, ii. 352. 354 Joddrell and Browne, i. 37 John V. Armstrong, i. 759. 762 r. Child, ii. 114 and Jenkins, i. 591. 598 Johnson's case, i. 306 Johnson and Anworth, ii. 182 V. Churchwardens of Saint Peter, ii. 191. 386. 521 andV^oe dem. Taylor, ii.4G9 and Hardman, i. 766. 768-9 and Hegan, i. 582. 612 V. Jones, i. 169. 172 ; ii. 100 and Marshe, i. 236 ; ii. 328 T. Mason, i. 60 V. Medlicott, i. 45 V. Procter, ii. 286. 307 and Procter, ii. 286. 307 c. Saint Peter, Hereford, Churchwardens, &c., ii. 521 V, Smart, i. 110. 112 a7id Story, i. 32. 131. 137 and Walton, ii. 186 Johnstone r. Hudlestone, i. 657. 664 ; ii. 506 JoUibert v. Duke of Chandos, ii. 259 Jones, Ex parte, ii. 151 V. Bodinner, ii. 128 and BuiTell, i. 391. 392 r. Clerk, i. 26 dem. Cowper v. Verney, i. 428. 469. 495. 606. 518 ; ii. 468 and Davis, ii. 201 and Doe dem. Dalton, ii. 208-9. 322 and Edward, i. 174 and Goodtitle dem. Jones, i. 613 T. Green, ii. 107. 474 and Harris, ii. 196 a??f7Johnson,i.l69. 172; ii.lOO V. Jones, i. 636 ; ii. 156. 241. 245. 247. 270. 273 T. King, ii. 360-1 and King, ii. 357. 360-1 dem. Leader r. Duggan, i. 596. 599 and Morphett, i. 575-6-7-8 rtWfZ O'Neil, i. 703. 757. 761 and PJiillips, ii. 153 r. Powell, i. 705 T. Reynolds, i, 591. 599; ii. 3. 23 VOL. L Jones V. Sutton, i. 35. 404 and Sutton, i. 35. 404 V. Thomas, i. 5.59. 563 ; ii. 232 V. Thome, ii. 232 Jordan and Barnfather, ii. 416 V. Sawkins, i. 641 V. T wells, ii. 129. 315 V. Wikes, i. 146 Jorden and Wilkes, i. 146 Joslin and Caly, ii. 367. 369 Josselin v. Josselin, ii. 116 Jourdain v. Wilson, ii. 402 Joyce and Willingham, i. 366. 629. 632. 634 Joynes v. Statham, i. 643. 644. 647 Judd and Lidgbird, ii. 363 Judson and Pinero, i. 603 Jurdain i). Steere, i. 125. 131 Justice Windham's case, ii. 68 K. KALE V. Jocelyne, ii. 367. 369 Kalloway and Short, ii. 214. 286 Kane v. Hamilton, i. 752-3. 757 ■3U — V. Murray, i. 761 Kavanagh v. Gudge, ii. 336. 345. 518 Kaye and Holgate, ii. 137 Keane v. Boycott, i. 21 Kearney and Aylward, i. 566 Kearsey v. Carstairs, ii. 442 Keat and Barker, i. 23 Keate and Goddard, ii. 185 417 Keating v. Keating, i. 366. 370 V. Sparrow, i. 757. 761 Keble v. Halls, ii. 63 and Parrot, i. 458 Keech r. Hall, i. 170. 614 V. Sandford, i. 762-3 dem. Wame r. Hall, i. 164 Keeling and Doe dem. Bish, ii. 230. 231 V. Morrice, ii. 184. 419 Keen v. Cope, i. 69. 90 Keene and Earl of Egremont, ii. 405 Keightly r. Buckly, ii. 416 Kelly a^id Hawkins, ii. 139-40 and Lowther, ii. 12 Kelsey and Crocker, i. 70 Kemble a7id Harris, i. 625 Kemishe and Jenkins, i. 436 Kemise and Conan, ii. 184. 271. 402. 421 Kemp V. Barnard, i. 231 V. Goodal, i. 64 and Loader, ii. 199 Kemshead and Orgill, ii. 353 Kendal v. Mickfeild, ii. 48. 77 I Ixxxii TABLE OF CASES. Kendal and Peter, i. 24 ; ii. 1 Kendray v. Hodgson, i. 391 Kennett mnl Mow, ii. 434. 446. 459 Kenney ?'. Browne, i. 563 Kenny v. Forde, i. 722 Kensey i\ Richardson, i. 105. 111. 112 Kensington (Lord) r. Phillips, i. 622 Kenson r. Reading, ii. 37 Kent (tnd Hume, ii. 468-9-70 Keppell V. Bailey, ii. 238. 389. 404. 409-10-11-12. 415 Ker r. Lord Dungannon, i. 559-60-1 Kernan and Molony, i. 659. 561 Kerne's case, i. 734 KeiT and Attorney-General, i. 320. 348. 353. 362 Kerslake v. White, ii. 34 Ketch V. Sandford, i. 766 Ketsey's case, i. 528-9 Kettle V. Mason, i. 96 Kevan and Sobrean, i. 288 Key and Sharp, ii. 393 Keyly v-. Bulkley, ii. 416 Kidder v. West, ii. 32 Kidgell and Brewster, ii. 170-1 Kidgil and Brewster, ii. 170 . Kidgly and Salter, ii. 12. 99 ^ Kidley and Salter, ii. 99 Kighly V. Bulkly, i. 654 ; ii. 416 Kilbys and Skinner, ii. 315 Killick V. Flexney, i. 762 Kimpton v. Eve, ii. 191. 521 Kine t. Balfe, i. 575 King and Agard, i. 657 V. Bery, i. 100 and Congham, ii. 184. 271. 402. 421 and Dallman, ii. 147. 215. 218 and Gaskell, ii. 180 and Harley, ii. 331. 386. 398. 418. 517 and Jessop, i. 761 T. .Tones, ii. 357. 360-1 and Jones, ii. 360-1 dem. Poe r. ]?all, i. 47 and Rees dem. Powell, i. 508 ; ii. 343 (The) ; Sec Rex and Thornhil, ii. 251. 268. 271. 273 and Waring, ii. 521 Kingdon v. Nottle, ii. 211. 357. 360. 361-2 Kingman and Reynold, i. 391-2 Kingsland (Lord) v. Barnewall, i. 561 and l>lunket, i. 623 Kingswoll (tnd Cranley, ii. 336 Kirilyside r. Thornton, ii. .356 Kinnersley v. Orpe, i. 10. 197. 217 ; ii. 259 Kirby v. Green, ii. 336 V. Hansaker, ii. 315 Kirk and Gibson, i. 178 Kirke v. Bails, i. 673 Kirkham v. Chadwick, i. 711 Kirkman v. Reignold, i. 683. 687 ; ii. 49 Kirton v. Eliott, i. 528-9. 540 Kitchen v. Buckly, ii. 389. 392 V. Bunkly, ii. 389. 392 Kitchin and Brewster, ii. 171 V. Buckley, i. 133; ii. 271. 402 V. Bunkley, i. 133 ; ii. 392 V. Compton, i. 133 ; ii. 271. 389.392.402 Kitchingham and Sail, ii. 360. 402 Knapp and Pearson, i. 636 Knebell and Doe dem. London Dock Company, ii. 319 Kneller and Doe dem. Rains, ii. 87. 321. 345 Knevett v. Pool, i. 95; ii. 521 Knevytt r. Cope, ii. 10 Knight's case, i. 9. 74. 236; ii. 82. 86. 104-5. 130. 332 Knight V. Beeche, i. 74 ; ii. 86. 104 V. Benett or Bennett, i. 582. 612. 653 — ?'. Breach, i. 74 r\ Brech or Breech, i. 74; ii. 86. 104 V. Buckley, ii. 416 V. Bunkly, ii. 392 V. Mory, ii. 257 v. Peachy, ii. 417 Knights and Gouldsworth, i. 554 ; ii. 395 Knipe and Aveling, i. 358 T. Palmer, i. 38. 41. 390 ; ii. 6 Knivan and O'Brian (Renant), i. 288 and Revan O'Brian, i. 288 Knowles v. Powel, i. 534-5 and Vonhollen, ii. 20 Kooystra v. Lucas, ii. 34 Kyrke r. Bales, i. 673 L. LACY r. Lear, ii. 517 Lackland atid Gardner, ii. 12 Lacon t. M(;rtins, i. 575. 764 Lady Braughton and Rex, i. 26 Broughton and Rex, i. 26 TABLE OP CASES. h Lady Cavan and Doe dem. Piilteney, i. 445 Cavan v. Pulteney, i. G6 Dacres r. Hazel, i. 395 Fraser and Progers, i. 26 Graham's case, i. 404 Montague's case, i. 107. 113. 594 St. John and Pyot, i. 13G ; ii. 200. 206. 207. 271. 302 Wentworth and Eaii of Straf- ford, ii. 139-40. 144 hadynmnand Attorney-General i. 350 Lainson r. Tremeere, i. 56. 60 Lake v. Ashwell, ii. 561 V. Craddock, i. 538 T. Gibson, i. 538 and Pledgard, i. 3 V. Smith, ii. 523 and Wood, ii. 23-24 Lamb a7id Turner, ii. 213 Lambard and Stevenson, ii. 135-6. 164. 271. 352. 355. 402. 421 Lambert and Eeles, ii. 22. 377 T. Norris, ii. 82-3 Lambeth i\ Norris, ii. 82-3 Laming and Doe dem. Pitt, ii. 222. 2.58. 261-2-3 Lammas and Sheers, 1. 21 Lament and Petrie, ii. 548 Lampet's case, i. 69. 96. 156 Lamplugh ctiid Shortridge, ii. 361 Lamprey and Atwood, ii. 177 Lanauze and Buckley, i. 766. 770 Lancashire v. Glover, ii. 316 Lancaster v. Lucas, i. 307-8 Landon and James, i. 33. 48. 55. 59. 63-4 ; ii. 356. 517 Lane's case, i. 231. 537 Lane and Beaver, i. 140. 145 V. Cowper, i. 28-9. 31 a7id Durnford, i. 389 V. Newdigate, ii. 209. 211 and Smyth, i. 537 and Trevilian, i. 90 Langan v. Carne, ii. 101. 115 Langcastle and Reynell, ii. 369 Langfield and Floyd, i. 10 Langford a?id Lloyd, ii. 82 and Loyd, i. 10 ; ii. 135. 506 Langhorne v. Merry, ii. 331 Langley and Chinsley, ii. 229. 231 a7id Helsham, i. 390 Langridge and Richardson, i. 654 Lanning 4'. Levering, ii. 289. 312 Lant r. Norris, ii. 203 Lanyon v. Carne, ii. 101. 115 Lapierre v. Mcintosh, i. 533 Laporte and Copland, ii. 185 Lapp, lessee of, v. Fuller, ii. 103 Large 's case, ii. 253 Lassels and West, ii. 132 Laude a7id Lawson, i. 642 Launse and Rede, ii. 85. 414 Lawford Charity, Mre., i. 359-60 Lawless v. Grogan, i. 759 Lawnsc and Read, ii. 85. 137. 414 Lawrence and Doe dem. Barber, ii. 318 V. Maggs, i. 776 a7id Trevivian, i. 57-8-9. 64 V. Twentiman, ii. 188 Lawrenson v. Butler, i. 570 Lawse and Rede, ii. '85 Lawson v. Laude, i. 642 Lawson and Nightingale, i. 762. 770. 773. 775. 778 V. Piggot, i. 490 Laxton a7id House, ii. 10 Laythorp v. Bryant, i. 570 Layton v. Feild or Field, i. 660 Lea a7id Doe dem. Spicer, ii. 67 Leach and Campbell, i. 394. 407. 408. 436-7. 446. 493 V. Thomas, ii. 182 and Thompson, i. 31-2. ii. 5 Leadbetter a^fZ Southall, ii. 172 Leaper v. Wroth, i. 461-2 Lear a7id Lacey, ii. 517 V. Leggett, ii, 252 Lechmore a7id Bushell, ii. 127-8. 133 Le Dean and Canons de Windsor and Hide, ii. 184. 402 Ledger and Sands, i. 447. 454 493 Lee's case, ii. 513 Lee, Ex parte, i. 324 V. Arnold, ii. 392. 397 and Barnfather, ii. 174 and Hopkinson, i. 135 V. Norris, i. 51 V. Lord Vernon, i. 704-5. 765 Leech v. Leech, ii. 502 Leeds r. Cheetham, ii. 120-1. 124. 195. 215 V. Crompton, ii. 269 Lees V. Lord Stafford, ii. 269 V. Nuttall, i. 391 and Roe dem. Bree, i. 653 V. Stafford (Lord), ii. 269 Leeson and Nicholls, ii. 181 Leftley v. Mills, ii. 143 Legal V. Miller, i. 647. 651 Legat's case, i. 234 654. 398. 450. 37 Ixxxiv TABLE OF CASES. Legg V. Stradwick, i. 657. 660 V. Stradwick, i. 657. 660-1-2 Leggatt and Soward, ii. 196 Legge and Grimman, ii. 503 Leggett and Lear, ii. 252 Legh V. Heald, ii. 42. 43 r. Hewitt, ii. 279 Legingham and Porphyry, i. 106 Leicester's (Earl of) case, i. 678. 692 Leigh's case, ii. 46 Leigh V. Hellier, i. 301. 303 T. Hind, ii. 235-6 and Phillipson, ii. 120 r. Shaw, ii. 46 Leighton v. Theed, i. 654. 660 Le Keux v. Nash, ii. 163. 416-17 Lely V. Green, i. 660-1-2 Leman and Yaw, ii. 174 and Yeo, ii. 174 Le Mast. andWard des Waxchandlers and Necton, ii. 377 Le Neve v. Le Neve, ii. 572 and Norris, i. 704 Lenial v. Cara, ii. 101. 115 Lenne atid Tayloi', ii. 10 Lenthall and Meade, i. 26 V. Thomas, i. 105. 114. 594 Leonard and Delap (lessee), ii. 333 and Hack, ii. 482. 485. 486. and Lessee Delap, ii. 333 and Willson, ii. 184. 376. 430 Lepur V. Wroth, i. 460. 643 Lernard's case, ii. 253 Le Seignor Thre'r v. Barton, ii. 394 Lesley s case, i. 765 Lessee Archbishop of Dublin v. Eaton, ii. 466 — of Black V. Davis, ii. 386 Church V. Donnell, i. 411 Conyers v. Greene, ii. 543 of Coyne v. Smith, i. 12. 18 Dawson v. Bell, ii. 30 Delap V. Leonard, ii. 333 of Fleming v. Neville, ii. .'371 of Lapp V. Fuller, ii. 103 of Lord Netterville v. Mar- shall, i, 433 Lynch v. Lynch, ii. 499 Newton v. Byrne, i. 671 Sharp V. Bergin, ii. 326 Studdart v. Neylan, ii. 61 of Walsh V. Feely, i. 16. 18 of Warrington v. Hodgens, ii. 342 Lester v. Foxcroft, i. 571-2 Lettsom and Collison, ii. 410 Leversage v. Cables, ii. 79 Levett V. Withrington, ii. 288 Levingston and Heap, ii. 422 Levington and Lucy, ii. 357 Levinston and Lucy, ii. 357 Levy V. Baker, i. 37 Lewes v. Ridge, ii. 387-8. 416 Lewin a«(? Attorney-General, i. 321. 324-5 Lewis V. Adams, i. 293. and Bassett, ii. 64 T. Campbell, ii. 402 and Campbell, ii. 291. 315. 402 and Carmarthen (Mayor &c. of), i. 178 and Doe dem. De Rutzen, ii. 319 and Doe dem. Hitchins, ii. 344. 477-8 and Doe dem. Kettle, ii. 553. 555 and Doe dem. Rutzen, ii. 473 and Edwards, i. 762. 766 V. Hillard, ii. 288 andMayor, &c., of Carmarthen, i. 178 V. Pead, i. 44 and Sherborne, i. 183 and Tunno, i. 636 Lewknor v. Ford, ii. 39. 44 Lewson v. Piggot, i. 490 Lewyn v. Forth, ii. 288 Lichden v. Winsmore, ii. 513 Lidgbird v. Judd, ii. 363 Liebenrood v. Vines, ii. 283 Liford's case, ii. 42. 44 Liford a7id Stampe, ii. 42. 44 Lightfoot and Bridgman, ii. 374 Lilley v. Whitney, ii. 81 Limbert and Lindsay, ii. 455 Lincoln Gas Light Company and Be- verley, i. 178 Linder v. Pryor, ii. 233 Lindley a7id Berrey, ii. 521 Lindsay v. Limbert, ii. 455 V. Lynch, i. 577-8. 624 Line v. Stephenson, ii. 285 ■ and Threadneedle, ii. 81 and Thredneedle, i. 76 Lineham and Thredneedle, i. 245 Lingen, Re, i. 700-1 Linne and .leakill, i. 23 ; ii. 130 Linton and Dawson, ii. 178 Linum and Threadneedle, i. 76. 18 TABLE OF CASES. Ixxxv Lion V. Carew, ii. 101. 115 Lismore and Bishopric of Wateiford, case of, i. 294 Lisset and Cormel, ii. 367. 369. 372 and Cornwall, ii. 367. 372 Litchfield (Bishop of) v. Fisher, i. 294. 296 Litchfield and Hanbury, i. 669. 744 Little «. Heaton, ii. 331 and Moyses, i. 629 Littler v. Holland, ii. 277 Liverpool Waterworks Company and Sparks, ii. 477 Livesey atid Hoyle, i. 637 Living V. Edmunds, ii. 386 Llemall v. Cara, ii. 101. 115 V. Carre, ii. 101 Llewelyn v. Williams, ii. 54-5 Lloyd V. Crispe, ii. 265. 274. 277 and Doe dem. Griffiths, i. 470. 483 and Gore, i. 692. 598 V. Langford, ii. 82 and Powell, i. 632. 634 ; ii. 252. and Rees dem. Chamberlain, i. 694 ; ii. 23 and Roper, ii. 128 v. Rosbee, i. 657 ; ii. 523. 528 and Target, ii. 419 V. Tomkies, ii. 313-14 V. Wilkinson, i. 309. 676 ; ii. 51.'69. 71-2-3 Lloyde v. Gregory, i. 528 ; ii. 66. 509 Loader and Hawes, ii. 377 V. Kemp, ii. 199 Loby and Harbin, i. 127 ; ii. 96 Lock and Doe dem. Douglas, i. 83. 423. 466-7. 470. 475. 481. 494. 610 ; ii. 41. 43 Lock V. Lock, i. 771. 778 V. Wright, ii. 5 Locroft and Grute, i. 127-8. 155 ; ii. 50 Lofield's case, ii. 48. 106 Loftus's case, i. 139. 157 ; ii. 96 Lomax v. Holmden, i. 218 London v. Chapter, &c., of Southwell, ii. 34 V. James, i. 63-4 V. Southwell (Chapter of, &c.) ii. 34 (City of) V. Mitford, i, 706. 708 ; ii. 470 V. Nash, ii. 207. ; V. Pugh, ii. 108 r. Richmond, ii. 414. 416-17 London (Mayor, &c.,) v. Hatton, i. 26 V. Hedger, ii. 210 V. Tench, i. 436 and Birmingham Railway Company v. Winter, i. 180 Long V. Burroughs, ii. Ill V. Nethercote, ii. 386 V. Rankin, i. 406. 434. 520. 526 Longhurst and Goodwin, i. 109. 111. 112 Lord Abingdon v. Butler, i. 748 Aburgaveny's case, i. 129 Annesley and Hovenden, ii. 495 Arundel and Earl of Arundel, ii. 507 Bolton and Deverell, i. 616 V. Tomlin, ii. 4. 5 Cadogan and Montford (Lord), i. 751. 779. 781 Carteret v. Paschal, i. 156 Clermont v. Marquis of Down- shire, i. 712 Cromwell v. Andrews, ii. 337 Dacre and Reece, i. 351. 707. 718-19 and Rees, i. 350. 707. 718-19 Darnley and Shore, i. 757 Desart v. Goddard, i. 577 Dormer's Ejectment, ii. 495 Dudley and Ward v. Robins, ii. 556 Dungannon and Ker, 1. 559. 560. 561 Falkland v. Bertie, i. 30 Foley and Attorney-General, ii. 520. 655 Frankfort v. Thorpe, i. 706. 784 ■ Godolphin and Duke of Marl- borough, i. 688 Gore, or Gower, and Attorney- General, i. 312. 358 Gray and Earl of Arundel, ii. 507 Harewood and Milner, i. 688 Hastings atid Newdigate, i. 100. 101 Hatherton v. Bradburn, ii. 83 Hotham and Attorney-General, i. 59. 349. 361 Howard de Walden and Mas- ter, &c., of St. Cross Hospital, ii 101 Ixxxvi TABLE or CASES. Lord Howard de Walden and St. Cross Hospital (Masters, &c., of), ii. 101 Kennington v. Phillips, i. 622 Kerry and Monroe, i. 59 — — Kingsland v. Barnewall, i. 561 and Plunket, i. 623 Lexington and Jenison,. i. 10 ; ii. 95 Listowel and Green, ii. 376 Llandaff and Elland, i. 523. 626. 627. 748 Londonderry and Graham, i. 771. 778 Lucan v. Gildea, ii. 405 Milsington v. Lord Mulgrave, i. 751 V. Lord Portmore, 1. 751 Montfort v. Lord Cadogan, i. 751. 779. 781 Mulgrave and Lord Milsington, i. 751 JMuskeny and Magrath, i. 752-3. 761 and Sheehy, i. 431 Netterville (lessee of) v. Mar- shall, i. 433 Newborough and Wynne, i. 389. 390 Norris's case, i. 74 North and Harrison, ii. 122 Ormond t. Anderson, i. 570-1. 622 V. Hutchinson, i. 560 Ormonde and Firman, i. 734. 752-3. 757. 760 Penrhyn r. Hughes, i. 778 Portarlington and Butler, i. 762 and Fitzgerald, i. 628. 745 ; ii. 104 Portmore and Lord Milsington, i. 751 lianelagh and Lovat, i. 636 ; ii. 278. 475. 477. 480. 484 Rockingham v. Oxenden, ii. 144 — V. I'enrice, ii. 143 Scarborough «»rfClarkson,i. 409 ; ii. 142 Selsey r. Rhoades, i. 659-60-1. 562-3 Southampton v. Brown, i. 381 ; ii. 13. 99 Stafford and Lees, ii. 269 Stanhope v. Skeggs, ii. 255 Taukerville v. VVliitfield, i. 493 V. VVingficld, i. .506 Lord Tenterden and Reid, ii. 367, 374 Uxbridge v. Staveland, ii. 278. 403. 409. 474 Vernon and Lee, i. 704-5. 765 WiUoughby v. Foster, i. 309 Windsor's case, i. 689 Yarborough «^^dI Doe dem. Ten- nyson, i. 77-8 V. Holmes, i. 762 Lorkings and Feerby, ii. 75 Lory and Handle, i. 696 Lougher v. Williams, ii. 184. 360-1-2 Lovat V. Lord Ranelagh, i. 636 ; ii. 278. 475. 477. 480. 484 Love and Preston, i. 96 Loveday and Biden, i. 694 , Lovedaz, Loveden, Loveder, Lovedore, or LoveduiT, and Win- ter, i. 72. 246. 414. 416. 423-4. 432. 443. 451. 454. 461-2. Loveden and Vere, ii. 156. 241. 245. 247. 249, 265 Lovejoy and Mann, i. 612. 657 Lovelace and Midgley, i 133-4. 136; ii. 386 V. Reynolds, i. 27 ; ii. 86 Lovering fl«f/Lanning, ii. 289. 312 Low v. Burron, i. 687-8 and Smith, i, 29. 32-3. 53. 55. 372 Lowe V. Peers, ii. 108 V. Swift, i. 408-9. 428. 577 Lower and Weale, i. 53. 57-8-9 Lowther v. Andover, i. 613 r. Carill, i. 568 V. Kelly, ii. 12 V. Troy, ii. 509 Loyd V. Langford, i. 10 ; ii. 135. 506 Lubbenham and Rex, i. 52 Lucan (Lord) v. Gildea, ii. 405 V. Mertins, i. 764 Lucas, Ex parte, i. 632 ; ii. 449 and Cardwell, i. 56 ; ii. 396 V. Comerford, ii. 185. 209. 424. 42()-7 V. How, ii. 275 and Kooystra, ii. 34 and Lancaster, i. 307-8 Luckin v. Rushworth, i. 763-4 Lucy V. Levington, ii. 357 V. Levinston, ii. 357 Ludford v. Barber, i. 58. 62. 94-5 Ludwell v. Newman, ii. 288 Luff kin and Doe dem. Nunn, i. 115. 594 V. Nunn, i. 115. 594 Lugar and Webb, i. 767. 770. 778. 7H6 TABLE OF CASES. XXXVU Lunn and Manning, ii. 171 Luter and Melvvick, i. 105. Ill Luthur and Mel wick, i 1U5. Ill Lutley and Ackland, i. GGD ; ii. 56. 111. 118 Lutterel v. Weston, i. 112. 594 V. VVestorne, i. 112 Lutwich V. Mitton, i. 23. 51 ; ii. 7 atid Mitton, ii. 7 V. Piggot, i. 75. 432 Luxmore v. Robson, ii. 190 and Robson, ii. 190 Luxton a7id Doe dem. Blake, i. 687 Lyddall v. Dunlapp, ii. 367. 369. 374 Lydiatt v. Foach, i. 351. 357. 710 Lyn V. Wyn, i. 443 Lynch and Burnett, i. 517. 732 ; ii. 6. 9. 285. 352. 355-6. 376. 428-9 — and Lindsay, i. 577-8. 624 , Lessee v. Lynch, ii. 499 Lyneham and Thredneedle, i. 76 Lynham and Threadneedle, i. 81 Lynum and Threadneedle, i. 81 and Thredneedle, i. 76 Lyon, Ex parte, ii. 452 OMfZ Eaton, i. 608. 707. 726. 734. 752-3-4-5 : ii. 483. 486. 490 V. Reed, ii. 19. 499. 502-3. 505-6. 508 Lysaght and Boyle, i. 703. 707. 757. 761 V. Callinan, i. 165 M. MABERLY a7id Doe dem. Glover, ii. 212 and Thompson, i. 667 Mabie's case, ii. 38 Macale atid French, ii. 108. 278. 475 Mac Alpine v. Swift, i. 752-3. 757 Mac Cullogh and Magennis dem. Close, ii. 499. 502. 506 Macdonald a7id Ramsay, ii. 353 Macdonell v. Welder, ii. 55 r. Weldon, ii. 55 Macdonnell and Robinson, ii. 553. 555 Macdougal attd English, ii. 354 Mc. Farran and Brown, ii. 6. 429 Machel v. Dunton, ii. 95. 367. 387. 397 Machell v. Clarke, i. 65. 77. 84 Macher i'. Foundling Hospitiil, ii. 237. 269-70. 274. 277. 484 Machil V. Clerk, i. 65 Machin and Rames, i. 29 Mc. Intosh a7id Belcher, ii. 196-7 and Lapiene, i. 533 Mc. Intyre and Jack dem. Dawson, ii. 30 Mc. Kane and Wildridge, ii. 377 Mackay v. Mackreth, i. 104. 658. 734; ii. 358 Mc. Kay and Moore, ii. 20 Mackenzie and Neale, i. 27. 635 ; ii. 58. 86. 127. 133. 136-7 Mackintosh and Scott, ii. 237 Mc. Laren and Wallace, i. 134 Mc. Namara aw(i Hackett, i. 370-1. 709. 741 V. Arthur, i. 628 Mackreth and Mackay, i. 104. 658. 734 ; ii. 358 and Waring, i. 97 ; ii. 520 Mack William's case, i. 91 Macpherson and Brummell, ii. 269. 270 Madden and Burne, ii. 107-8 Maddon dem. Baker v. White, i. 31 Magan atid Grogan, ii. 386 Magdalen College case, i. 240-1 Magennis dem. Close v. Mac Cullogh, ii. 499. 502. 506 Maggs and Lawrence, i. 776 Magi-ane v. Archbold, i. 371. 707. 709. 741. 761 Magrath v. Lord Muskerry, i. 752-3. 761 Maguire and Fisher, ii. 182 ■ and Seignorett, ii. 55 Magwood a7id Attorney-General, i. 359-60-1 Main's case, i. 619. 731. 735; ii. 189 Mainstone and Gwynne, ii. 70 Mainwaring and Whistler, ii. 209 Maior and Gregory, ii. 312 Maisey a7id Doe dem. Roby, i. 164 Major and Bower, ii. 496 V. Grigg, ii. 312 -= and Jennings, ii. 540 Maldon's case, i. 698-9 ; ii. 23 Malines and Smith, ii. 133 Malings and Smith, ii. 146 Malins v. Freeman, i. 45 Mallam v. Arden, ii. 112. 113 Mallet V. Mallet, i. 74. 90 Mallory's case, ii. 92. 114 Malory atid Pain, ii. 92 Malpast'. Ackland, i. 124 Malster and Ruwden, i. 72 Maltby and Hayne, ii. 129 and Meux, i. 631. 03S Ixxxviii TABLE OF CASES. Man and Baily, i. 246 and Watkinson, i. 239 Manby and Colegrave, i. 751. 766. 781 V. Scott, i. 48 Manchester College I'.Trafford, ii. 64. 69 Mande v. French, i. 304 Manlove v. Bale, i. 764 Manington and Davies, i. 28-9. 31 IMann v. Lovejoy, i. 612. 657 Manners and Rex, i. 373 Manning r. Flight, ii. 352. 355. 451 V. Lunn, ii. 171 and Parker, i. 58 Mannock and Grey, i. 687 Mansfield (Earl of) v. Blackburn, ii. 200 Mantle v. WoUington, i. 131-2 Mantz V. Goring, ii. 196-7 and Young, ii. 196-7 Mapes and Foster, ii. 312. 314. 316 Maplebank«wc? Smith, i. 11. 18. 102; ii. 82-3. 501. 504. 506 March v. Brace, ii. 354. 356 V. Curtes, ii. 260. 468-9 V. Russell, ii. 380 Marchant and Foster, i. 38 Marchetti and Doe dem. Palk, i. 788 ; ii. 319. 322 Margrave a7id Balls, ii. 164, 396. 543 Mark atid Goodright dem. NichoUs, ii. 77. 501. 576 Markby, Re, ii. 145 Marke v. Johnson, i. 236 ; ii. 328 ]Marlar v. AVright, i. 75. 245 Marlborough and Blandford, ii. 171-2 (Duke of) V. Godolphin, i. 688 Marler v. Wright, i. 75. 245 Marlow v. Thompson, ii. 566 and Wad ham, ii. 354-5 Marquis of Antrim r. Duke of Buck- ingham, i. 445. 447 of Bute V. Thompson, ii. 167 of Downshire and Lord Cler- mont, i. 712 of Nortliampton'scase, i.456. 463 of Salisbury and Regina, ii. 2 of Town.shend r. Stangroom, i. 642. 648 of \Vatf;rf(ird awl Dean, i. 760- 1 Marquis of Waterford and Freeman, i. 760-1 Marriot and Foot, i. 415. 419 Marriott v. Edwards, i. 165 and Spencer, ii. 310 and Taster, i. 766. 768 Marrow v. Turpin, ii. 352. 354 Marsh v. Brace, ii. 354. 356 V. Curteis, ii. 260. 468-9 v. Wells, i. 767 Marshall and Commons, i. 433 V. Corporation of Queen- borough, i. 180. 572 V. Holloway, ii. 368. 378 and lessee of Lord Netter- ville, i. 433 and Nind, ii. 293-4. 296-7. 301. 303-4 and Sneezum, ii. 561 and Stroud, i. 37 Marshe v. Curtes, i. 142 Mart and Steele, i. 450 ; ii. 10. 11 Martin and BailiiF of Ipswich, ii. 135. 421 V. Crompe, i. 133-4 V. Gilham, ii. 209. 279 and Ipswich, BailiiF of, ii. 135.421 V. Mitchell, i. 570 and Smith, ii. 32 Martinez and Cadby, ii. 467 Martins and Hutchins, ii. 607 Martyr and Ashton, ii. 289 V. Bradley, ii. 201 Marum and Mulhallen, i. 565 Marwood and Saunders, i. 21-2 ; ii. 39 Mascal's case, ii. 184. 271. 361 Masham and Peters, i. 436 Mashiter and Sutton, ii. 380 Mason v. Chambers, i. 233-4 ; ii. 66. 103 and Chambers, i. 233 ; ii. 103 V. Corder, ii. 277 and Costrike, i. 656. 659. 665 and Doe dem. Woodmass, i. 179 and Gostwicke, i. 656. 659 and Johnson, i. 60 and Kettle, i. 96 r. Mason, ii. 237 and Rowles, i. 2 V. Tredway, ii, 504 Massey and Dawson, i. 561. 563-4 Master, &c., of Hems worth Hospital and Watson, i. 351. 357. 703-4. 710 Master, &c., of St. Cross Hospital v Lord Howard do Walden, ii. 101 TABLE OF CASES. Ixxxix Masters and Doe dem. Harris, ii. 331. 338. 342. 475-6 Matchel v. Clerk, i. 65 Mather and Horsefall, ii. 182 Mathewes v. Weston, i. 105. 113 Mathews and Blacker, ii. 239 V. Whetton, i. 105. 113 Mathuris v. Westroray, ii. 387. 402 Matthew and Davy, ii. 318. 381. 387 Matthews and Doe dem. Williams, i. 470-1 ; ii. 136 and Moody, i. 763. 767. 786 V. Sawell, ii. 500. 503 Matures v. Westwood, ii. 387. 402 Maule and Crawshay, i. 538 V. Duke of Beaufort, ii. 266. Maund's case, ii. 336 Maund v. French, i. 304. 307 Maunde and Walter, ii. 146 Maundrell, Ex parte, ii. 442 Maunsell r. O'Brien, i. 762. 765 Mawde v. French, i. 304. 307 Mawle V. Cacyffyr, ii. 367-8-9-70 Maxwell and Strickland, ii. 48. 81. 282 r. Ward, i. 706-7-8. 712. 727. 752. 754-5 759 May and Iggulden, i. 608. 703. 707-8. 711-12. 714. 721. 724. 727 ; ii. 9. 87. 285. 293 a7id Mellows, i. 692 ; ii. 54. 506. 507-8-9 V. Trye, i. 746 Maydew v. Yeaxly, ii. 38 Maydewell and Watt, ii. 506. 509 Mayes and Foster, ii. 312 Mayn v. Beak, ii. 53 and Scot, i. 731. 735 Maynewaring and Miller, i, 97. 139. 147 ; ii. 64 Mayo and Duppa ; ii. 143-4 and Gregory, ii. 312 Mayor of Arundel v. Holmes, i. 318 ; ii. 544 Mayor, &c., of Carlisle v. Blamire, ii. 396. 415 Mayor, &c. of Carmarthen v. Lewis, i. 178 Mayor of Congleton v. Pattison, ii. 230. 402. 405-6. 408-9-10 Mayor of Exon and Drake, i. 629 Mayor, &c., of London v. Hatton, i. 26 Mayor of London r. Hedger, ii. 210 ^ V. Tench, i. 436 Mayor, &c., of Plymouth a)id Blatch- ford, ii. 290 Mayor of Rochester and Attorney- General, i. 358 Mayor of Stafford v. Till, i. 178. 180 Mayor v. Steward, ii. 431 Mayowe's case, i. 96 Meade and Lenthall, i. 26 Meale ajul Seagood, i. 572. 574-5-6-7 Medlicott and Johnson, i. 45 V. O'Donel, i. 560-1-2 and Toole, i. 572. 578 Medwin v. Sandham, i. 515; ii. 161. 192 Meek and Paul, ii. 562 Meeley v. Webber, ii. 141 Mees and Royston, ii. 369. 371 Meld V. Cooper, ii. 48 Mellows, V. May, i. 692 ; ii. 54. 506. 507-8-9 Melwich v. Luter, i. 105. Ill V. Luther, i. 105. Ill Merceau and Preston, i. 640-41 Merceront'. Dowson, ii. 271. 421 Meres v. Ansell, i. 640 Merrick and Cother, i. 80 ; ii. 88. 93 Merrill v. Frame, ii. 9. 285 Merry and Langhome, ii. 331 Mertins and Lacon, i. 575. 764 and Lucan, i. 764 Messenger r. Armstrong, ii. 517. 524 Metcalfe r. Rycroft, ii. 99 Meux and Doe dem. Morecraft, ii. 216. 468. 487 V. Maltby, i. 631. 638 Mew and Cornish, i. 778 Meyer and Nesbitt, i. 638 Meyler and Doe dem. Vaughan, i. 471. 494. 507-8 ; ii. 131. 136 Meymott and Turner, ii. 517 Michael and Jobson, i. 290 Michell V. Donton, ii. 5. 95. 387 v. Dunton, ii. 5. 387 Alickfeild and Kendal, ii. 48. 77 Middleborough and Dean and Chap- ter of York, i. 242 Middlemore v. Goodale, ii. 402 V. Goodhall, ii. 382 Midgley v. Lovelace, i. 133-4. 136 ; ii. 386 Mighell and Gregory, i. 572. 575. 578; ii. 182 Mildmay's case, i. 395-6-7 Mildmay and Cary, ii. 474 V. Standish, i. 395 Miles and Tompson, ii. 188 Milfox V. Baker, i. 107-8 Mill and Dowling, i. 626. 707-8. 721. 745 Miller and Abney, i. 763 and Austin, ii. 369 xc TABLE OF CASES. Miller and Doe dem. Scott, ii. 469 and Legal, i. 647. 651 V. Maynewaring, i. 97. 139. 147 ; ii. 64 T. Pratt, ii. 37 and Swinnerton,i. 112 ; ii. 133. 393 Milles V. Milles, i. 751. 782 V. Sherfield, ii. 377 Millet and Austin, ii. 369 Milliner v. Robinson, i. 100-1. 137 Mills r, Auriol, ii. 352-3-4-5. 433 and Auriol, ii. 163. 352-3-4-5. 433 and Curling, i. 599 and Doe dem. Bullen, i. 60 V. Harris, ii. 376. 430 atid Leftley, ii. 143 and Parsons, i. 397 V. Whitewood, i. 375 Milner v. Horton, ii. 306. 308 V. Lord Harewood, i. 688 V. Myer, ii. 346 Milsington (Lord) v. Lord Mulgrave, i. 751 r. Lord Portmore, i. 751 Milward v. CafRn, ii. 172 . and Doe dem. Murrell, ii. 507 Mingay a}id Ashurst, ii. 352. 354-5. 386 Minns and Spatchurst, ii. 112 Minshal a7id Payne, i. 530 Minshall and Vane, i. 530 Minshaw a)id Fane, i. 530 Mist and Holditch, ii. 353 Mitchel V. Duke of Manchester, i. 389 Mitchell and Martin, i. 570 . and Steele, 525 Mitford a7id City of London, i. 706. 708. 753-4.760; i'i.470 • and London (City of), i. 706. 708; ii. 470 Mitton V. Lutwich, ii. 7 and Lutwich, i. 23. 51 ; ii. 7 Mixstone and Colborne, ii. 506 Mocattu and Wafer, ii. 278. 483-4 Moggridge v. Thackwell, i. 230 Mohun and Orby, i. 82-3. 397. 465-6. 490. 492. 517; ii. 101 Moles V. Thornton, i. 179 Molesworth v. Howard, i. 518; ii. 541 Mi»llett V. Hrayno, ii. 503 Molony r. Kornan, i 559. 561 Molloy V. Irwin, ii. 20 Monger a)id Doc, i. 660. 668 Monk V. Coopor, ii. 120-1. 187 Monk V. Noyes, ii. 197 Monnins v. Monnins, ii. 474 Monnoux awJAppowel, ii. 85-6. 105. 130. 318. 391-2. 397 Montagu and Earl of Cardigan,!. 427. 466. 470. 516 Montague's (Lady) case, i. 107. 113. 594 Montague and Atkins, i. 218 Montefiore and Wheeler, i. 23 Montford (Lord) v. Lord Cadogan, i. 751. 779.781 Montgomery's case, i. 54. 289 Montgomery and Thomas, ii. 378 Monroe v. Lord Kerry, i. 59 Moodie v. Garnance, i. 116; ii. 131. 468 V. Garnon, ii. 131 and Moule, ii. 367. 369-70 and Paul, ii. 367. 369-70 Moody V. Garnon, i. 116; ii. 131. 468 V. Matthews, i. 763. 767. 786 Moor V. Farrand, ii. 251. 253. 265. 268 afid Wallgrave, ii. 117 Moore and Berney, ii. 482 V. Blake, i. 628 a7id Clarke, i. 408. 593. 596. 612 629 and Denby, ii. 177. 178. 181 V. Edwards, i. 578 V. Foley, i. 608. 708. 711. 719. 727 V. McKay, ii. 20 V. Musgrave, ii. 53 and Richardson, i. 781 and Stokes, i. 568 Moores v. Cheat, ii. 185.425. 427 Moravia and Parkins, ii. 567 Mordant atid Broome, i. 143 and Jackson, i. 142-3. 150 Mordaunt and Duchess of Hamilton, i. 492 More's case, ii. 251. 253. 265 Moreton and Campden, ii. 124. 192. 194 and Davies, ii. 278. 484 Morgan and Attorney-General,!. 349. 363 and Bousher, i. 24 dem. Dowding v. Bissell, i. 583. 592 ; ii. 156 V. Edwards, ii. 180 and Edwards, ii. 163. 352. 354. 386. 398 r. Hunt, ii. 289 and Jonner, ii. 139 V. Rhodes, i. 632. 636 TAULE OF CASES. XCl Morgan v. Slaughter, ii. 151). 240. 245 247-8 Morley v. Polhill, ii. 301-2 Morphett v. Jones, i. 575-G-7-8 Morrice v. Antrobus, i. 82-3. 247. 287. 465 ; ii. 82-3 and Harri.s, i. 24 ; ii. 137 and Iseham, i. 50. 52. 58. 64 ; ii. 7 and Keeling, ii. 184. 419 and Pearse, ii. 330. 356 Morris v. Bany, i. 125 and Doe deni. Wood, i. 113 V. Edgington, ii. 34-5 V. Elme, 1.389 V. Preston, i. 551 —V. Smith, ii. 283 'and Smith, ii. 151. 154 and Staines, ii. 5-6. 87. 120. 128-9. 136. 163. 183. 352. 355. 376. 428. 430 or Morrison and Tirlot, i. 531 Morrison a^ul Tremeere, ii. 211. 369. 370. 373 and Tuerloote, i. 531 Morse and Doe dem. Harris, i. 475. 477 and Doe dem. Tucker, i. 96. 524 ; ii. 521 and Goodtitle dem. Faulkner, i. 57-8 V. Tucker, ii. 365 Mortimer v. Orchard, i. 624 i V. Shortall, ii. 333 Mory and Knight, ii. 257 Moseley v. Virgin, ii. 209 Moses and Attorney-General, i. 238. 349. 365. 442 Moss V. Gallimore, i. 104. 164. 656. and Neave, i. 61 Mostyn and Boardman, i. 575. 623. 625. 634. 636 ; ii. 241. 250 Moule V. Moodie, ii. 367. 369. 370 Moulson and Jewson, i. 156 Mount V. Hodgkin, ii. 64 Montague and Walter, ii. 189 and Waterer, ii. 189 Mountford v. Catesby, ii. 312 Mountjoy's case, i. 77. 79. 82-3-4. 138. 417. 470-1. 480-1. 493 ; ii. 86 Mowbray and Andrews, i. 559 Moyle and Ewer, ii. 131-2-3 Moyle (Sir) Finch's case, i. 368 Moyse v. Giles, i. 129 Moyses v. Little, i. 629 Mulcarry v. Eyres, ii. 328 Mulhallen ?\ Marum, i. 565 Mully i\ ^V^ebber, ii. 141 Mulvany v. Dillon, i. 764 Mulvihill and Butler, i. 45 Mum a7id Baily, i. 246 Munday and Bayly, i. 83. 246 and Drake, i. 584. 598; ii. 23.87 and Herbert, i. 301 Munifas v. Baker, i. 107-8 Munne and Baily, i. 246 Munns and Nervin, ii. 295 Munyard and Gutteridge, ii. 196. 232 Murcott and President, &c., of Saint John's College, Oxford, i. 535 Murin and Bayly, i. 33. 246 Mun-ay v. Bateman, i. 761 and Bateman, i, 752. 757. 761 and Kane, i. 761 Muscot V. Ballet, ii. 316 Musgrave and Moore, ii. 53 Musgrove and Playfair, i. 123 Muskerry v. Chinnery, i. 429-30. 471. 479. 492. 515 Muskett V. Hill, ii. 323 Myer and Milner, ii. 346 Myers and Welch, ii. 436 N. NAGLE r. Baylor, i. 45 Nangle and Bell, i. 706 and Bell dem, Smyth, i. 704. 713. 731 V. Smith, i. 704. 713 and Smyth, i. 713 Nash and City of London, ii. 206. 209 and Le Keux, ii. 163. 416-17 a7id London, City of, ii. 207 T. Palmer, ii. 314 V. Turner, i. 60 Nashe and Read, i. 447 Nation v. Tozer, ii. 367. 369. 374-5 Naylor v. Arnitt, i. 345 V. Collinge, ii. 200. 205 Neal and Jackson, i. 109. Ill V. Viney, ii. 559 Neale r. Mackenzie, i. 27. 635 ; ii. 58. 86. 127. 133. 136-7 V. Wyllie, i. 103 ; ii. 214 Neate and Alderman, i. 323. 599, 609. 729 ; ii. 156 Neave v. Moss, i. 61 Necton v. Gennet, ii. 377 V. Le Mast. &Ward. des Wax- chandlers, ii. 377 Nector v. Gemiet, ii. 377 XCll TABLE OF CASES. Needham and Andrews, i. 51 and Taylor, i. 60 Nelson and Stead, i. 49 Nepean v. Doe dem. Knight, i. 695 • and Doe dem. Slade, i. 695 Nervin r. Munns, ii. 295 Nesbitt T. Meyer, i. 638 • V. Tredennick, i. 762. 764-5 Nethercote and Long, ii. 386 Netherton v. Jessop, ii. 360 Netterville (lessee of Lord) v. Mar- shall, i. 433 Neville and Lessee of Fleming, ii. 671 Neving and Soulsby, ii. 525 NewbeiTie v. Rathbone, i. 666. 679 Newbery and Wrathbone, ii. 666. 679 Newcomen's case, i. 306 Newcomen and Hodges, i. 304 Newdigate and Lane, ii. 209. 211 V. Lord Hastings, i. 100. 101 Newman v. Anderton, i. 26-7 ; ii. 85 r. Dannage, i. 681 and Ludwell, ii. 288 aiid Penruddock, ii. 504 . V. Rogers, ii. 477 Newmarch v. Brandling, i. 24 Newport Pond School and Wright, i. 361 Newsam and Iremonger, ii. 351-2. 354-5. 367 and Rankin, i. 13. 16. 18 and Smith, ii. 104. 106. 114. 126 Newton v. AUin, ii. 129 lessee v. Byrne, i. 671 • V. Harland, ii. 517-18 V. Osborn, ii. 87. 163. 364 and Proctor, ii. 315 and Sunderland, ii. 200 and Wheeler, i. 569 V. Wilmot, ii. 42 Neylan and Lessee Studdart, ii. 61 Nicholas v. Pullin, ii. 312 Nicholls V. Cross, ii. 552. 556 V. Goold, ii. 177 t. Leeson, ii. 181 Nicholson and Rex, i. 24 and White, ii. 198 Nightingale and Bragg, ii. 219 a7id liuckley, ii. 364 V. Lawson, i. 762. 770. 773. 775. 778 Nind V. Marshall, ii. 293-4. 296-7. 301. 303-4 Nino a7id Witchcot, ii. 289 Nixon, Ex parte, ii. 442 V. Denham, ii. 212 Noble V. Cass, ii. 213. 315 Noke V. Awder, i. 60 ; ii. 291. 420 v. Windham, i. 29 Nokes's case, ii. 9. 99. 285-6. 308. 312. 420 Nokes and Awder, i. 60; ii. 420 V. James, ii. 9. 285. 312. 420 Nonnes and Sherewood, ii. 391-2 NorclifFe and Hanson, ii. 328 Norfolk, (Duchess of), Mre., i. 41 ; ii. 539 and Smith, ii. 358-9. 369 Noright and Birchman, i. 29 and Goodright dem. Steven- son, ii. 476 Norman v. Foster, ii. 305. 315 and Gardiner, i. 140. 145 Norris's (Lord) case, i. 74 Norris v. Elsworth, ii. 6 and Gerrard, i. 105 V. Harrison, ii. 144 V. Hundred of Gawtry, ii. 55 V. Isham, i. 50. 53. 58. 64 and Lambert, ii. 82-3 and Lambeth, ii. 82-3 and Lant, ii. 203 and Lee, i. 51 V. Le Neve, i. 704 and Tilney, ii. 369. 373. 402. 419 North's case, i. 184 North Bedburn (Inhabitants of) and Rex, ii. 541 Northampton's (Marquis of) case, i. 456. 463 Northcote v. Duke, ii. 260. 265-6. 278. 484 V. Ward, i. 25 Northumberland's (Duke of) case, ii. 28 Northumberland (Duke of) I'.Erring- ton, ii. 293 Norton, Ex parte, ii. 446 V. Ackland, ii. 352-3 — V. Acklane, ii. 352-3. 355-6 and Dugar, i. 376 V. Gennet, ii. 377 V. Harvey, i. 157. 369 ; ii. 96. 359 V. Huron, i. 391 Norwood and Sanders, ii. 39 Notitle and Goodtitle dem. Duke of Norfolk, ii. 529 Nottle and Kingdon, ii. 2 11. 357. 360. 301-2 Nouaille r. Flight, ii. 203. 417 Nowlen and Bruon, ii. 161 TABLE OF CASES. XClll Noyes and Monk, ii. 197 Nudigate's case, i. 100-1 Nugent dem. Atkins v. Sealy, i. 489. 517. 656 ; ii. 376 ami Barry, i. 600 dem. Keane v. Ban try (Earl of),ii. 277 Nunn and Luffkin, i. 115. 594 Nurse and Paul, ii. 273. 416 Nurstie v. Hall, ii. 352. 355. 386-7. 391 Nusam a«(Z Smith, ii. 104, 106. 114. 126 Nutcomb and Eliot, ii. 335 Nuttall and Lees, ii. 391 0. OABLE V. Perrot, i. 458 Oakes v. Frith, ii. 97 and Smith, i. 681 Oakley v. Adamson, ii. 35 O'Brian (Renant) j}. Knivan, i. 288 O'Brien and Maunsell, i. 762. 765 V. Grierson, i. 436. 488 O'Connell and Fitzgerald, i. 17-18. 758 O'Dea and Browne, ii. 20 Odell V. Wake, ii. 435 O'Donel and Medlicott, i. 560-1-2 O'Ferrall v. O'Ferrall, i. 770. 772 Offord and Bayly, ii. 112 Ofley V. Hicks, ii. 10. 11 Oglander v. Barton, i. 139 Ogle and Haw, i. 31 Ognell's case, i. 535 O'Hara v. Bourke, i. 757 O'Herlihy v. Hedges, i. 672. 577. 622. 626. 630. 634. 636 Okelie and Hare, ii. 23 Oland's case, i. 655 Oland and Dowdenay, ii. 289 Olderoon v. Pickering, i, 690 Oldershaw v. Holt, ii. 146 Oldfield T. Plowden, i. 308 Oldford and Plowden, i. 308 Oldham, Mre., ii. 449 a7id Edge (Mre. of), i. 632 V. Pickering, i. 690 Oldison V. Pickering, i. 690 Oldknow and Isherwood, i. 407. 429. 436. 477. 488. 493. 522 ; ii. 100. 383. 386. 397 Oldroyd v. Crampton, i. 24 Olibeare and Baker, ii. 482 Oliver and Davis, i. 753 and Cadee, i. 148 Oliver and Humble, ii. 352. 386. 398 Olmius and Farrant, ii. 107-8 Olphants and Boyle, ii. 43 Oraelaughland v. Hood, i. 52. 165 Omelhallum and Edwards, i. 53. 58 O'Neil V. Jones, i. 703. 757. 761 Onslow V. Corrie, ii. 163. 252. 268. 417. 449 Opee r. Thomasius, i. 77. 84. 444. 458. 464 Opey r. Thomasius, i. 444. 458. 464 Opie ■». Thomatius, i. 445. 458. 464 Opy r. Thomasius, i. 77. 84. 444. 458. 464 Orby V. Mohun, i. 82-3. 397. 465-6. 490. 492. 517 ; ii. 101 Orchard and Germain, i. 653 ; ii. 81 and Germin, ii. 81 and Jerman, i. 653 ; ii. 81 and Mortimer, i. 624 O'Reilly and Gerrard, ii. 107 T. Featherston, i. 762 V. Fetherston, ii. 482 V. Thompson, i. 576 Orgill V. Kemshead, ii. 353 Ormond (Lord) v. Anderson, i. 570. 571. 622 V. Hutchinson, i. 560 Orpe and Kinnersley, i. 10. 197. 217 ; ii. 259 Orpen and Jack dem. Croker, ii. 325. 466 O'Rourke r. Percival,i. 440.523.570. 576. 625. 627 Orton and Hawkes, ii. 316 Osbom v. Garden, i. 156. 375. 377 and Newton, ii. 87. 163. 364 V. Wise, i. 24 Osborne c. Sture, ii. 115 Osbourn v. Rider, ii. 10. 54-5 Oswell and Harvey or Harvie, ii. 468 Oswold and Harvie or Harvy, ii. 468. 470 Oughton and Baggott, i. 418-19-20 Overton v. Sydal, i. 309 ; ii. 352. 354. 368. 386 Owen's case, ii. 513 Owen t. App Rees, i. 75. 82. 685. 692-3 and Attorney-General, i. 345. 346. 348-9-50. 353. 361. 363. 424. 668 V. Davis, i. 37 V. Price, i. 75. 685. 692-3; ii.54 V. Rees, ii. 64 V. Sadler, ii. 493 r. Williams, i. 766. 768 XCIV TABLE OF CASES. Owerell and Crockerell, i. 655. G57. 660. 767 Oxenden and Lord Rockingham, ii. 144 and Rockingham ii. 144 Oxenham and Doe, i. 435. 455 Oxley r. James, i. 19. 103-4 P. Re, PADDTNGTON Charities, 324-5 Paddon v. Bartlett, ii. 150 Page's case, i. 531 Page V. Broom, i. 632 ; ii. 364 V. Godden, ii. 436 V. Parr, ii. 127 and Robinson, i. 650 V. Stedman, i. 127. 137 and Stedman, i. 127. 137 Paget V. Crumpton, ii. 172 V. Foley, ii. 150 V. Gee, i. 76. 425 ; ii. 139-40. 141 Pain V. Malory, ii. 92 Painter and Coleman, ii. 288 and Sturgeon, i. 583 Palmer and Bonoyon, i. 127 and Bremer, ii. 566 and Doe dem. Egremont (Earl of), ii. 541 V. Earith, ii. 169 V. Edwards, i. 11. 17-18. 102; ii. 271.423 V. Ekins, i. 56-7-8-9. 63-4 V. Godden, ii. 129 and Hay, ii. 139 and Knipe, i. 38. 41. 390 ; ii. 6 and Nash, ii. 314 and Pullen, i. 127. 131-2 r. Thorp, i. 51 ; ii. 52 V. White, i. 575. 578 V. Young, i. 764 Paucharden and Hennings, i. 694 Pannel v. Fenn, i. 367 Panton v. Isham, i. 659. 665 Paradine v. Jane, ii. 120-1. 186. 188 Paramour v. Yardley, i. 370 Pargoter and Attorney-General, i. 349. 363 Parker r. Ikooke, i. 763. 765. 767-8. 769-70 and Doc dem. Dillon, ii. 495 and Granew, i. 673 V. Gravenor, i. (i73 692. Parker and Gravenor, i. 673 v: Harris, ii. 101 — — — and Harris, ii. 101 V. Manning, i. 58 and Propert, ii. 160-1. 229 and Scavage, ii. 54-5 V. Smith, i. 622-3. 628 and Stillingfleet, i. 543 V. Webb, ii. 164. 352. 354-5. 386. 402 Parkhurst and Berrington, i. 50 Parkins v. Moravia, ii. 567 Parkinson's case, i. 177 Parks and Smith, ii. 475 Parmenter v. Webber, i. 11. 17-18. 102 ; ii. 83. 423 Parnell v. Stewart, ii. 428 Parr and Page, ii. 127 Parrot and Brewster, ii. 509 V. Keble, i. 458 Parry v. Bowen, i. 437 .- V. Brown, i. 437 V. Deere, ii. 558 V. Harbert, ii. 257. 265 V. Herbert, ii. 251. 258 V. Hindle, i. 140. 143. 146 and Taylor, ii. 30 Parsons v. Mills, i. 397 and Reid, ii. 329 and Stubbs, ii. 178 and Zouch dem. Abbot, i. 29. 31. 48. 375 Partington and Pomery, i. 398. 415. 420-1 V. Woodcock, i. 168. 383. Partridg and Wells, i. 105-6. 111-12 Partridge v. Ball, i. 177-8 ; ii. 2 V. Bere, i. 164 Paschal and Lord Carteret, i. 156 Pascoe V. Pascal, i. 17 Paslowe and Whistler, ii. 42 Pasquali and Doe dem. Williams, ii. 496. 498-9 Paternoster and Web, ii. 23 Paton V. Brebner, i. 614 Patten and Wallace, i, 759. 761 Pattison and Annandale, ii. 560 and Mayor of Congleton, ii. 230. 402. 405-6. 408-9. 410 Patrick v. lialls, i. 177-8 Paul's lessee v, Paul, ii. 42 Paul and Doe dem. Wheeldon,ii. 144. 336 V. Meek, ii. 562 V. Moodie, ii. 367, 369-70 r. Nurse, ii. 273. 416. and Paul's lessee, ii. 42 Paulin V. Hardy, i. 53 Pawcy r. Bowen, i. 437 TABLE OF CASES. xcv Payne and Doe, ii. 270 and Glanville, i. 76 V. Minshal, i. 530 Payntei" and Fruin, ii. 368 Paynton (md Frevin, ii. 368-9 Peach and Pilkington, i. 533 Peachy and Knight, ii. 417 Peacock and Whitton, i. 110; ii. 393. 395 Pead and Lewis, i. 44 Peaple and Aldenburgh, ii. 507 Pearce and Andrew, ii. 300. 387. 416 V. Cherlyn, ii. 561 and Phillips, i. 320 PeaiTOan and Blount, ii. 557-8 Pearsall and Doyly, i. 156 Pearse v. Baron, i. 425 V. Morrice, ii. 330. 356 Pearson v. Archdeaken, ii. 377 and Barrett, i. 760 V. Knapp, i. 636 , Mre., ii. 434. 441. 446 Peart and Hall, i. 234-5 ; ii. 27 Peck and Doe dem. Flower, i. 150 ; ii. 221. 226. 469-70 Peele, Ex parte, ii. 98. 397 Peers and Lowe, ii. 108 Pegge T. Skinner, i. 37. 640 Pehall and Hartley, ii. 410 Peles V. Jemes, ii. 303 Pelham and Shelly, i. 389 Pembeiion and Edge, ii. 209. 279 and Peto, ii. 515 ■ — V. Piatt, ii. 313 — and Thomas, ii. 437 a7id Walsh, i. 27 ; ii. 85 Pemble r. Sterne, i. 73-4 Pembroke Hall and Attorney-Gene- ral, i. 357 Pen V. Glover, ii. 324 Pendred v. Griffith, i. 748. 753 Penhallow and Smartle, i. 436 Penley v. Watts, i. 102 Penn v. Glover, ii. 289. 314 Pennant's case, ii. 328. 330-1. 468-9. 470. 517 Penning v. Plat, ii. 313 Penrice and Lord Rockingham, ii. 143 Penrhyn v. Hughes, i. 778 Penruddock r. Newman, ii. 504 Penry's administratrix r. Brown, ii. 202 Pentland r. Stokes, i. 588. 592. 610 Peppin and Clarke, i. 613 Percival and O'Rourke, i. 440. 523. 570. 576. 625. 627 Percy's case, ii. 39 Perkins v. Perkins, ii, 499 V. Waller, i. 21 Perrin and Doe dera. Willis, ii. 67 Perring v. Brook, i. 598. 611 Perrot and Oable, i. 458 Pen-ott and Britten, ii. 358 PeiTy V. Bowes, i. 50 V. Bowers, i. 50 V. Bowyer, i. 50 V. Edwards, ii. 312. 314 Perryn v. Allen, i. 528 ; ii. 13. 72. 510. 515 Peter v. Kendal, i. 24 ; ii. 1 Peters v. Masham, i. 436 Peterson and Rolfe, ii. 107-8 Petit V. Conway, ii. 92. 114 Peto V. Pemberton, ii. 515 Petre and Brown, i. 696 Petrie v. Bury, i. 134 V. Lament, ii. 548 Pettoe and Goodtitle, i. 395-6 Petty V. Evans, i. 107 Peyton v. Ayliffe, i. 535 Phelps, Ex parte, i. 762 and Burn, ii. 129 Philips v. Echard, ii. 377 Phillip and Rees dem. Perkins, i. 78 ; ii. 136 Phillips and Brocks, i. 533-4 and Chaworth, ii. 388. 394 and Doe dem. Phillips, ii. 567 and Doe dem. Willson, ii. 264. 464-5 V. Dolittle, ii. 475 V. Everard, i. 740 ; ii. 266 V. Hartley, i. 583 V. Jones, ii. 153 and Lord Kensington, i. 622 V. Pearce, i. 320 and Smith, i. 633 and Welbie, ii. 112 Phillipson v. Leigh, ii. 120 Philpot V. Hoare, ii. 163. 252. 268. 272. 417 Philpott T. Dobbinson, i. 125 Phimmer v. Hockett, i. 145 Phipps V. Sculthorpe, ii. 503 Phrazier and Prodgers, i. 26 Pick and Croft, ii. 455 Pickard r. Sears, ii. 224 and Twynam, ii. 271. 274. 333. 335. 386. 392. 421 Pickering and Canterbury (Arch- bishop of) and Beding- field, i. 290 and Olderson, i. 690 and Oldison, i. 690 XCVl TABLE OF CASES. Pickering r. Vowles, i. 703-4. 762-3. 766. 773 Pierce and Dean and Chapter of Rochester, i. 177-8-9 Pierson and Foster, ii. 312. 315 V. Shore, i. 762 Pig and Wilson, ii. 83. 95. 506 Piggot and Lawson, i. 490 and Levvson, i. 490 and Lutwich, i. 75. 432 Pigot's case, i. 395 Pigot V. Bridge, ii. 111. 126 V. Garnish, i. 29. 32. 372-3. 380. 393 Pigott and Holding, ii. 518 V. Thompson, ii, 98 Pike V. Eyre, i. 19. 55. 103 andWhiie dem.(Earlof Hovvth), i. 489 Pilkington v. Bayley, i. 22. 770 V. Peach, i. 533 V. Shaller, i. 102 ; ii. 184. 423 Pilkinton v. Dalton, ii. 117 Pilkney and Wilston, ii, 83. 95. 506 Pilling V. Armitage, i. 95. 575. 578. 745 Piisworth and Atkinson, 1. 712. 725 V. Pyet, ii. 77 Pirn and Western, i. 638 Pimm and Weston, i. 638 Pincent and Thomkins, or Tompkins, ii. 113 Pincomb v. Thomas, ii. 42 Pindar v. Ainsley, ii. 120-1. 183 and Whitfield, ii, 141 Pine and Alsop, i. 434 r. Pine, i. 395 Pinero v. Judson, i. 603 Pinkeny and Winston, ii. 83. 95. 506 Pinkney and Cartwright, ii. 83. 95. 506 and Winton, ii. 83. 95, 506 Pinsent and Tomkins, ii. 113 anc? Whitway, i, 732 ; ii. 352. 354. 356 Piott and St. John, ii. 206 VuVand liuckley, ii. 184. 369-70-1. 374. 402 Pistor v. Cater, i. 117 Pitcher and ,'\ston, i. 239 and Tongue, ii. 163. 416 V. Tovey, ii. 166. 367. 416-17 and Tovey, ii. 416 Pitt V. Hunt, i. 156 V. James, i. 183 and Reynolds, ii. 224. 477.483 r. Smith, i. 45 Pitt V. Snowden, i. 389 Pittman and Doe dem. Whitehead, ii. 496-7 Plant and Thursby, ii, 352. 354-5. 386-7. 391. 398 Plat and Penning, ii. 313 Piatt and Pemberton, ii. 313 V. Plommer, ii. 393 V. Sleap, ii. 331. 513 Playfair v. Musgrove, i. 123 Playters v. Abbott, i. 775-6 Plaxton V. Dare, ii. 541-2 Pleadall's case, i. 63-4 Pleasant dem. Hayton v. Benson, i. 104 Pledgard \i. Lake, i. 3 Plesaunt v. Higham, i. 583 Plommer and Piatt, ii. 393 Plowden and Oldfield, i. 308 V. Oldford, i. 308 Pluck V. Digges, i. 13. 15-16-17-18 Plumb and Collins, ii. 397 Plummer atid Webb, ii. 281. 518-19 Plunket V. Kingsland, i. 623 V. Lord Kingsland, i. 623 Pocklington and Smith, i. 175; ii. 285. 287 Pole and Harcourt, i. 455-6 and Harrington, ii. 36 Polhill and Morley, ii. 361-2 Pollard and Cowper, ii. 312 V. Greenvil, i. 445. 447 and Walrond, i. 298-9 Pollitt and Hindle, ii. 279 Pomery v. Partington, i. 398. 415. 420-1 Pomfret t. Ricroft, ii. 32, 159. 183. 285 V. Roycroft, ii. 285 Ponesley v. Blackman, i. 21. 105 V. Blakeman, i. 164. 170 Ponsonby v. Adams, ii. 108 Pool and Knevett, i. 95 ; ii. 521 V. Pool, ii. 363 Poole V. Archer, ii. 186 V. Bentley, i. 583. 585-6. 699. 600. 602-3. 605 and Chancellor, ii, 6. 416. 423 V. Warren, ii. 524 Pope r. Biggs, i. 164-5. 169. 171-2; ii. 100, 129 V. Garland, i. 653 ; ii. 161 and Sanders, i. 116. 752; ii. 468. 479. 483-4-5. 487. 489-90 V. Skinner, ii. 54-55 and Woods, ii. 214 Popham and Rattle, i. 425 Pordage v. Cole, ii. 5 Porphyry t*. Legingham, i. 106 TABLE OF CASES. XCVll Poriy V. Allen, i. 528 ; ii. 13. 72. 510. 515 Porter and Doe dem. Shore, i. G58 and Fruen, ii. 368-9 and Regnart, i. 582. 589. 611. 653 ; ii. 101 V. Shephard, ii. 76. 463 - V. Swetnam, ii. 86-7. 164. 402 Portington v. Alexander, Com' Eg- linton, i. 44 Portman and Jenkins, ii. 185. 425 Pory V. Allen, ii. 13. 72. 510. 515. 528 Potkins's case, i. 658. 665 ; ii. 51 Potter and Stephens, i. 236 Poultney v. Holmes, i. 10. 11. 13. 16. 17. 18. 102; ii. 83.423 Poulton and Rose, ii. 396 Pouseley v. Blackman, or Blakeman, i. 21. 10.5. 164. 170 Powel a?id Knowles, i. 534-5 Powell and Cutter, ii. 122. 125 and Cross, ii. 5 and Doe dem. Lloyd, ii. 257 and Doe dem. Morgan, i. 25. 592. 596. 598. 610, 730; ii. 2 r. Dillon, i, 569-70 and Hosier, i. 433. 493. 522 aitd Hozier, i. 433. 493. 522 and Jones, i. 705 V. Lloyd, i. 632. 634 ; ii. 252 and Williams, ii. 140 Power and Drew, ii. 20 atid Turner, ii. 561 Powis and Butler, i. 408. 622 V. Smith, i. 134 Powseley v. Blackman or Blakeman, i. 21. 105. 164. 170 Powtrel's case, i. 85. 139 Pratt and Miller, ii. 37 V. Thomas, ii. 560 V. Vizard, ii. 539 Predyman v. Wodry, i. 231. 542 Preece v. Corrie, i. 13. 15. 17. 18 ; ii. 83. 423 Prendergast and Harrison, i. 757 Prentice and Goodtitle dem. Adeane, i. 524 and Tinckler, ii. 180 President, &c. St. John's College, Ox- ford V. Murcott, i. 535 Prestley and Chanudflower, ii. 312 Preston, (Inhabitants of) and Rex, ii. 557 V. Love, i. 96 V. Merceau, i. 640-1 ■ and Morris, i. 551 Price V. Assheton, i. 486. 622. 635 VOL. I. Price and Attorney-General, i. 357 and Crisp, ii. 33 V. Dyer, i. 647-8. 6.50 ; ii. 75. 461 and Owen, i. 75. 685, 692-3. ii. 54 r. Simpson, i. 368 V. Thomas, ii. 560 — ~r. Williams, i. 310; ii. 116. 540 Prickett, Ex parte, i 41 ; ii. 539 and Whitfield, ii. 252 Prickwood and Fox, i. 445. 464. 521 Prideaux and Roe dem. Brune, i. 75, 96. 245. 425. 427. 432. 437. 443. 447. 524 Priestly «>kZ Chantflower, ii. 312 Prince's (The) case, i. 217. 218. 333. 368 Prince v. Chandler, i. 396 V. Green, i. 77. 86. 395-6 and Roe dem. Goatly, ii, 216 ■ V. Sympson, i. 368 Pring and Ackland, ii. 372 Priour and Veale, i. 25-6 Pritchard and Brecknock, &c. Canal Company, ii. 186-7 a7id Doe dem. Griffith, ii, 255. 468, 471. 473 and George, i. 616 Proctor r. Johnson, ii. 286. 307 atid Johnson, ii, 286, 307 V. Newton, ii. 315 and Right dem. Green, ii, 23 Prodgers v. Phrazier, i. 26 Progers v. Lady Eraser, i. 26 Properti'. Parker, ii. 160-61. 229 Provost, &c. of Queen's College, Ox- ford, (case of ), i. 184 Prowd and Furser, ii, 336 Proxies (Case of), i. 294 Pryor and Linder, ii. 233 Pugh and City of London, ii. 108 and Duke of Leeds, 1.450.^693; ii. 54-5-6 and London, (City of,) ii. 108 V. Ryal, i. 358. 363 Pullen V. Palmer, i. 127. 131-2 Pullin and Nicholas, ii. 312 Pulman and Doe dem. Earl of Egre- mont, ii. 348 Pulteney and Cavan (Lady), i. 66 ; ii. 310 and Earl of Darlington, i. 66. 85. 155. 434 and Lady Cavan, i. 66. 310 Pure dem. Withers v. Sturdy, ii. 475. 477 XCVlll TABLE OF CASES. Puifrey's case, ii. 410 Puny and Beely, ii. 386 Purvis V. Rayer, i. 616. 619 Pye V. Billing, ii. 331 Pyet and Pilsworth, ii. 77 Pyke and Doe dem. Beadon, i. 104 Pym V. Blackburn, ii. 186 Pyot V. St. John (Lady), i. 136 ; ii. 200. 206-7. 271. 392 Q. QUADRING V. Downs, i. 373 Quantock, Ex parte, ii. 441 Quarrington r. Arthur, ii. 283 Queen (The) ; /SceRegina Queensbury Leases (Case of the), i. 2. 66. 437. 483 ; ii. 378 Quilter and Brown, ii. 120-1-2. 124-5. 183. 193-4. 289 R. RABAN and Browne, ii. 160. 239. 243. 247-8-9 Radcliffe and Doe dem Lawton, i. 483 V. Warrington, ii. 486 Radford and Dugworth, i. 117. 537 and Yong, i. 139 ; ii. 512 Radler and Shopland, i. 390 Raine v. Alderson, i. 23 Rainforth and ^\^ildbor, ii. 517 Rainsford and Bruerton, i. 23 Rakestraw v. Brewer, i. 764 Raleigh, Mre., ii. 446 and Smith, ii. 128 Rames v. Machin, i. 29 Ramsay t. Macdonald, ii. .353 Ramsbottom and Doe dem. Jackson, i. 61 V. Tunbridge, ii. 566 Randal and Sweeper, i. 598 and Chantrell, ii. 61 V. Russell, i.733. 766. 768-9. Handle v. Lory, i. 696 Rankin and Long, i. 406. 434. 520. 526 V. Newsara, i. 13. 16. 18 Raphoe (Bishop of) v. Hawkesworth, ii.404 Raslileigh and Roe dem. Heal, i. 693 — V. Williams, ii.315 Ratcliff r. , ii. 314 H;.tbbon»; H7id Newberrio, i. 666. 679 Rattle V. Popham, i. 425 Raw V. Duthelly, i. 733. 762-3-4. 766 Rawc V. Chichester, i. 733. 762-3-4. 766. 768-9 Rawling and Tempest, i. 585. 612 Rawlins v. Turner, ii. 4 Rawlyns's case, i. 53. 57-8. 64; ii. 57. 127. 134. 332.541 Rawson v. Eicke, i. 170 Rawstorne v. Bentley, i. 106. 115. 752 Rayer and Purvis, i. 616. 619 Raymond v. Fitch, ii. 357-8. 362 Rayner r. Stone, ii. 209. 283 Read and Donellan, ii. 82-3 i\ Erington, ii. 492 and Hosier, i. 648 V. Lawnse, ii. 85. 137. 414 V. Nashe, i. 447 Reading and Kenson, ii. 37 Readshaw v. Balders, ii. 180 Rector of Chedington's case, i. 676; ii. 51. 69. 71-2-3 Rede v. Farr, ii. 328. 335 V. Launse, ii. 85. 414 V. Lawse, ii. 85 Redfern and Doe dem. Hayne, i. 229. 236 Redpath v. Roberts, ii. 503 Redshaw r. Governor, &c. of Bedford Level, i. 709 Reece v. Lord Dacre, i. 351. 707. 718. 719 Reed and Clavering, ii. 164 and Freshfield, i. 404 and Lyon, ii. 19. 499. 502-3. 505-6. 508 r. Ward, i. 534 V. Warner, i. 534 V. Wilmot, ii. 556 Rees dem. Chamberlain r. Lloyd, i. 694 ; ii. 23 and Doe dem Gatehouse, ii. 468. 472 and Edwards, ii. 168 V. LordDacre,i. 350. 707 . 718-19 and Owen, ii. 54 dem. Perkins v. Phillip, i. 78 ; ii. 136 dem. Powell v. King, i. 508 ; ii. 343 Reeve r. Bird, ii. 503 T. Cox, i. 69. 90 and Dalston,i.71 ; ii. 127.129. Reeves, Mre., ii. 450 V. Creswick, i. 771. 775. 780 V. Gill, i. 613 and Walker, ii. 417. 422 Regina r. Austin, ii. 88 r. Hale, 108 TABLE OP CASES. XCIX Kegina v. Hockworthy (Inhabitants of), ii. 559 V. Inhabitants of Chawton, i. 064-5 V. Inhabitants of Hockworthy, ii. 559 V. Marquis of Salisbury, ii. 2 V. Weston, i. 473 V. Winter, ii. 23 V. York, i. 318 Regnart v. Porter, i. 582. 589. 611. 653 ; ii. 101 Reid a?id Doe dem. Calvert, ii. 410 V. Lord Tenterden, ii. 367. 374 V. Parsons, ii. 329 Reignold and Kirkman, i. 683. 687 ; ii. 49 and Wood, i. 20 Reilly and Fenton, i. 623 Remnant and Bremridge, ii. 370. 373 Rendle and Doe dem. Bartlett, i. 77. 422-3 470-1 Reresbie's case, i. 58 Reresby v. Farrer, i. 358. 361 Reuan 'Brian v. Knivan, i. 288 Revell V. Hussey, i. 735. 7S2 Revoult and Arnold, i. 140. 145 Rex V. Barlow, i. 230 ?j. Bishop of London, i. 288. 290 V. Broughton (Lady), i. 26 V. Forth, i. 294 dem. Hall v. Bulkeley, i. 446. 525-6 V. Inhabitants of Chipping Nor- ton, i. 177-8 V. Inhabitants of Eastbourne, i. 533 «. Inhabitants of Gamlingay, ii. 56 V. Inhabitants de Little Dean, ii. 4 V. Inhabitants of North Bed- burn, ii. 541 V. Inhabitants of North Duf- field, i. 177-8 r. Inhabitants of Oakley, i. 373. 377 V. Inhabitants of Preston, ii. 557 V. Inhabitants of Ridgwell, ii. 548 V. Inhabitants of Sherrington, i. 372-3 -''. Inhabitants of Toddington, i. 373 V. Lady Broughton, i. 26 Rex V. Lubbenham, i. 52 V. Manners, i. 373 V. Nicholson, i. 24 V. North Bedburn (Inhabitants of), ii. 541 V. Preston (Inhabitants of), ii. 557 V. Ridgwell (Inhabitants of), ii. 548 V. Robinson, ii. 251 V. St. Bartholomew's Hospital, ii. 172 V. St. Luke's Hospital, ii. 172 V. Sutton, i. 377-8. 380 V. Thorp, i. 372 T. Topping, ii. 256 V. Vice-Chancellor, &c., of Cam- bridge, i. 177 V. Williams, i. 538 Reynel's case, i. 26 Reynell v. Langcastle, ii. 369 Reynold v Kingman, i. 391-2 Reynolds v. Buckle, ii. 128 and Jones, i. 591. 599 ; ii. 3. 23 and Lovelace, i. 27 ; ii. 86 V. Pitt, ii. 224. 477. 483 Rhoades attd Lord Selsey, i. 559-60. 561-2-3 Rhodes and Barlow, ii. 34-5 V. Beau voir, i. 561. 563 V. Bullard, ii. 32. 183 and Morgan, i. 632. 636 • and Webb, ii. 540 Rich V. Frank, ii. 367-8-9. 371 V. Jackson, i. 641. 645 V. Rich, ii. 303 i\ Sydenham, i. 45 Richards v. Ceely, i. 114. 594 and Howell, ii. 288. 296. 298. 301 Le Taverner's case, i. 27 ; ii. 85. 120. 130-1 V. Sely, i. 114. 594 ?'. Turvey, ii. 416 Richardson, Ex parte, ii. 98. 397 and Cumin, ii. 250 V. Evans, ii. 277 V. Gifford, ii. 186 a«cZ Goodright dem. Hall, i. 663. 665 ;ii. 50. 72-3. 75. 461 ayid Kensey, i. 105. 111. 112 V. Langridge, i. 654 V. Moore, i. 781 V. Sydenham, i. 744 and Turner, ii. 434-5. 439 h 2 TABLE OV CASES. Richardson and Walker, i. 24. 184. 287 ; ii. 503 and Warren, i. 618. 627 Riche and Berry, i. 447 a«c? Wilson, i. 145 Richman and Hughes, ii. 280. 402 Richmond v. Butcher, ii. 93. 95 anrfCity of London, ii.414. 416-17 and Denton, ii. 107-8 and London (City of), ii. 414. 416-17 Rickarby and Doe dem. Hindley, ii. 276 Ricketts v. Weaver, ii. 358 Rickman v. Garth, i. 70. 287. 309 Ricroft and Pomfret, ii. 32. 159. 183. 285 Rider and Gie, i. 301. 303; ii. 509-10 and Osbourne, ii. 10. 54-5 Ridge and Lewes, ii. 387-8. 416 Ridgwell (Inhabitants of) and Rex, ii. 548 Ries and Doe dem. Pearson, i. 15. 18. 592. 599. 607. 610. 728. 730 Rigby and Champion, i. 560. 562-3 Rigden and Flower, i. 3 Right dem. Basset v. Thomas, i. 397. 412. 522; ii. 7 dem. Fisher v. Cuthell, i. 126; ii. 462 dem. Flower v. Darby, i. 657 ; ii. 517 dem. Green v. Proctor, ii. 23 dem. Jeiferys v. Bucknell, i. 54-5 dem. Plowden v. Cartwright, i. 677 ; ii. 23. 50. 69 Rigley v. Daykin, ii. 539 Rimes v. Baker, ii. 114 Ripley v. Waterworth, i. 688 Risden r. Tuffin, i. 668 Riseley and Finch, ii. 328 Risley and Finch, i. 232. 236 Rives and Plrish, i. Ill Rivis V. Watson, ii. 131 Roach V. Garvan, i. 373. 379 V. Wadham, ii. 395. 415 Roberts v. Barker, ii. 518-19. and Brudnell, i. 61-2. 94 ; ii. 360. 363 ?•. Davey, ii. 328-9-30 and Doe dem. Mount, i. 450 and Redpath, ii. 503 and Roe dem. Brudnell, i. 58 and Trever, ii. 23 and Veal, ii. 61 atid Wliitley, i. 132 378 53. 553. Robertson and Duke of Roxburghe, ii. 279-80 V. St. John, i. 745 Robins and Bennett, i. 389 and Bramston, ii. 174. 178 and Cole, i. 45 and Lord Dudley and Ward, ii. 556 Robinson and Broome, ii. 435 and Cochrane, ii. 376 and Cooper, ii. 50, 147 V. Drybrough, ii. 566 and Grissell, ii. 539 V. Macdonnell, ii. 555 and Milliner, i. 100-1 137 V. Page, i. 650 and Rex, ii. 251 V. Rosher, ii. 427 and Stowell, ii 277 and Strutt, ii. 561 . and TardifF, i. 781 Robotham ajid Hughes, ii. 515 Robson and Ansell, ii. 438 ^. Collins, i. 641. 645 and Doe dem. Chandless, ii. 327-8. 333 ■ — and Doe dem. Reece, i. 450; ii. 11 a7id Hodgkins, ii. 127. 132-3 1.34 and Luxmore, ii. 190 272-3. Rochester (Dean and Chapter of) v. Pierce, i. 177. 179 Rock and Woods, ii. 104. 196 Rockingham (Lord) v. Oxenden, ii. 144 V. Penrice, ii. 143 Roe dem. Bamford v. Hayley, i. 732. 733-4 ; ii. 319-20. 363. 365. 389. 397. 402. 461 dem. Bendall r. Summerset, i. 367 dem. Berkeley (Earl of ) t. Arch- bishop of York, ii. 502 dem. Bree r. Lees, i. 653 dem. Brudnell v. Roberts, i. 58 dem. Brune r. Prideaux, i. 75. 96. 245. 425. 427. 432. 437. 443. 447. 524 dem. Copley r. Day, ii. 567 dem. Dingley v. Sales, ii. 260 and Doe dem. Beard, ii. 529 and Doe dem. Bradford (Earl of), ii. 528 TABLE OF CASES. CI Roe and Doe dem. Earl of Bradford, ii. 528 and Doe dem. Cardigan, ii. 529 and Doe dem. Masliii, ii. 424 atid Doe dem. Marquis of Angle- sey, ii. 530 and Doe dem. Morris, ii. 543 and Doe dem. Pemberton, i. 672 ; ii. 529 a7id Doe dem. Phillips, ii. 528 and Doe dem. Tindal, ii. 529 and Doe dem. Watson, ii. 529 a?id Doe dem. Watts, ii. 530 and Doe dem. Whitfield, ii. 476 dem. Duke of Bolton v. Grant- ham, i. 394 dem. Earl of Berkeley v. Arch- bishop of Canterbury, i. 287 dem. Earl of Berkeley v. Arch- bishop of York, i. 54. 407. 486 ; ii. 502. 509 dem. Goatly v. Paine, ii. 216 a)id Goodtitle dem. Norfolk (Duke of), ii. 329 dem. Gregson v. Harrison, i. 103 ; ii. 251. 259. 265. 277. 468 470 dem. Hall v. Bulkeley, i. 405 dem. Heale v. Rashleigh, i. 693 dem. Hunter v. Galliers, ii. 238. 252. 255-6. 260 dem. Jordan w. Ward, i. 94. 96 ; ii. 521 dem. Larkin v. Chenhalls, ii. 552 dem. Parry v. Hodgson, i. 373. 376. 378-9-80 dem. West v. Davis, ii. 475-6. 481 V. Williamson, i. 20 Roebuck and Hoby, ii. 32. 82-3 Rogers and Doe dem. Rogers, i. 486 and Farmer dem. Earl, ii. 3. 501. 504 and Heane, ii. 452 V. Humphreys, i. 164-5. 167. 170. 493. 521-2. a7id Newman, ii. 477 andStone, i. 587 and Tanfield, i. 74. 77. 471 Rolfe V. Harris, ii. 224. 226. 483. 487. 490 V. Peterson, ii. 107-8 Rolph and Barrett, i. 17 Rook V. Worth, ii. 186 Roos V. Adwick, i. 687 242. a?id 412. Roos V. Awdwick, i. 687 Roper V. Combes, i. 619-20. 731 and Grumbrell, i. 72. 246 and Holt, i. 234 ; ii. 66 a?id Huntley, ii. 132 V. Lloyd, ii. 128 Viscountess Baltinglass Tristram dem. Gore, i. 417. 420. 512 Viscountess Baltinglass and Tustian dem. Gore, i. 412. 417. 420. 512 Rosbee and Lloyd, i. 657 ; ii. 523 528 Rose V. Poulton, ii. 396 Rosher and Robinson, ii. 427 Ross (Earl of) v. Worsopp, i. 752. 761 Rosse's case, i. 687 Rosse V. Ardwick, i. 687 and Higgins, i. 746 Rossiter v. Walsh, i. 391. 560 ; ii. 333 Roswell's case, i. 85 Rothwell's case, i. 53. 57-8 Roupe V. Atkinson, i. 156 Rowden v. Maltster, i. 72 Rowe V. Brenton, i. 217. 221 and Doe dem. Knight, ii. 224 V. Huntington, ii. 64. 101 V. Williamson, i. 20 Rowell V. Walley, i. 778 Rowlands and Doe dem. Trustees of Schools, &c. of Worcester, ii. 199. 209. 212. 214 Rowles V. Mason, i. 2 Rowley v. Adams, ii. 163. 416.418 and Charles, i. 752 Rowlinson and Timmins, i. 653-4 Rowls V. Gells, ii. 172 Rownd and Haley, i. 298 Roxburghe (Duke of) v. Robertson, ii. 279-80 Roycroft and Pomfret, ii. 285 Roydler and Shoplane, i. 376 and Shopland, i. 390 Royston v. Cordrye, ii. 371 V. Mees, ii. 369. 371 Rubery v. Jervoise, i. 706. 732. 734. 754 V. Stevens, ii. 367. 369-70 Rudde r. Tucker, ii. 462 Ruddish and Evelyn, ii. 207. 213 Ruddle and Ellis, i. 26 Rudele and Cass, i. 391 Rudge V. Thomas, i. 310 Rumford Market case, i. 762-3. 766 Rumsey and Waters, i. 70 Cll TABLE OF CASES. Rundall and Cudlip, ii. 37-8. 41. 46 Rundell and Cudlip, ii. 37 Rundle and CudlifF, ii. 37. 41 and Cudlip, ii. 37-8. 41 Rush and Horseley, i. 393 Rushden's case, i. 23 ; ii. 132. 135. 352. 354. 383 Rushworth and Luckin, i. 763-4 Rusky and Conesbie, i. 155 Russell V. Coggins, ii. 464-5 T. Darwin, i. 717 and Doe dem. Johnson, ii. 329. 331 V. Gulwel, ii. 40 and Marsh, ii. 380 and Randall, i. 733. 766. 768. 769 V. Stokes, i. 124. 175 ; ii. 415 and Stokes, i. 124. 175 ; ii. 394. 415 and Webb, i. 124. 175. 788 ; ii. 87. 383. 386. 394-5. 415. 512 and Western, i. 570 Rust and Canham, ii. 387. 416 Rutland v. Doe dem. Wythe, i. 477-8. 480. 505 Ryal and East, i. 358. 363 and Pugh, i. 358. 363 Rycroft and Metcalf, ii. 99 Ryder «MC? Jay, i. 301. 303 ; ii. 509-10 Rydler and Shopland, i. 122. 376. 390 Rye and Cherbourn, ii. 128 and Witton, ii. 83. 154 Ryley v. Hicks, ii. 4 Rymes v. Baker, ii. 114 S. SACFIEVEREL v. Dale, ii. 39 Sacheverel v. P'rogate, i. 48. 55. 126. 492 ; ii. 88. 90-1-2-3. 95-6. 98. 362. 386 Sacheverell and Davie, ii. 313 V. Walker, i, 126 ; ii. 92. 362 Sacheveril «. Day, ii. 44-5 Sackvill V. Evans, ii. 359. 368-9 Sadler and Bennett, ii. 232 and Owen. ii. 493 Saffyn's case, i. 22-3 SaflTyn v. Adams, i. 22-3 Sail /;. Kitcliingham, ii. 360. 402 St. Aiil)yn, Ex parte, i. 700 St. IJartholomew's Hospital awe? Rex, ii. 172 St. Cross Hospital (Master, &c. of) V. Lord Howard de Walden, ii. 101 St. George and Trench, i. 771 St. John's College v. Fleming, i. 689 St. John r. Piott, ii. 206 a7id Robertson, i. 745 V. St. John, i. 48 St. Lawrence and Webb, i. 44 St. Luke's Hospital and Rex, ii. 172 St. Paul and Brodie, i. 571. 643 St. Peter, Hereford, (Churchwardens, &c., of) and Johnson, ii. 521 St. Philip's Bridge Company, Mre., ii. 151 St. Saviour's, Southwark, (Church- wardens of) V. Smith, ii. 416. 507 Sale V. Bishop of Coventry, i. 287 Sales and Roe dem. Dingley, ii. 260 Salisbury's (Bishop of) case, i. 76. 293 Salisbury aiid Cecil, i. 30. 35 dem. Cooke v. Hurd, i. 117 and Goraan, i. 650 Salman v. Bradshaw, ii. 316 Salmon and Taylor, i. 391 Salmond and Shubrick, i. 746 ; ii. 188 Salter v. Boteler, i. 689 V. Butler, i. 689 V. Cobbold, ii. 369-70 V. Grosvenor, i. 181. 288. 543 V. Kidgly, ii. 12. 99 V. Kidley, ii. 99 Salvin v. James, ii. 221 Sampson v. Easterby, i. 136; ii.365. 389. 397. 403. 406 and Easterby, ii. 389. 403. 406 Sams and Ive, ii. 42. 507 Samuel and Doe dem. Castleton, ii. 521 Samyne and Tudor, i. 156 Sanders andBenle, ii. 190. 521 ■ T. Benson, ii. 430 T. Norwood, ii. 39 V. Pope, i. 116. 752 ; ii. 468. 479. 483-4-5. 487. 489-90 Sandford and Keech, i. 762-3 and Ketch, i. 766 Sandhara and Doe dem. Ellis, i. 515; ii. 120. 161. 192 a7id Medwin, i. 516 ; ii. 161. 192 Sands v. Ledger, i. 447. 454. 493 Sandwich (Earl of) r. Earl of Litch- field, i. 765 Sandys and Campbell, i. 689 Sangster r. Birkhead, ii. 172 Sant and Tong, i. 46 TABLE OF CASES. cm Sapsford v. Fletcher, i. 172 ; ii. 100 Saunder's case, i. 21-2. 370 ; ii. 39 Saunders v. Beale, i. 157 and Creswick, ii. 38G V. Dean and Chapter of Bris- tol, i. 181 and Doe dem. Burne, i. 599 atul Hill, i. 56. 59. 62. 139. 143. 153. 377. 380 and Jackson, i. 761 V. Marwood, i. 21-2 ; ii. 39 Saunderson v. Griffiths, i. 640 V. Hanson, ii. 177-8 Savage v. Carroll, i. 576 Savell V. Cordell, ii. 72 Saverne v. Smith, i. 107. 155. Savery v. Dyer, i. 689 Savil and Hare, ii. 100. 116 Sawell and Matthews, ii. 500. 503 Sawer v. Hardy, i. 672 Sawier v. East. i. 233-4 Sawkins and Jordan, i. 641 Sawyer v. East, i. 233-4 V. Hardy, i. 672 and Williams, ii. 505-6 Say V. Barwick, i. 46 — V. Smith, ii. 72. 75 Sayer v. Hardy, i. 672 Scanlan and Fitzgihhon, i. 762-3 Scarles v. Stransom, ii. 360 Scavage v. Parker, ii. 54-5 Schellinger v. Blackerby, i, 25 Schrieber v. Creed, ii. 238. 413 Scory and Bishop of Hereford, i. 77-8. 287. 293 Scot V. Mayn, i. 731. 735 V. Scot, ii. 336. 338 Scott, Exparte, ii. 434 and Doe dem. Ive, ii. 221 and Fancy, ii. 40 and Hotlev, i. 493. 506-7-8-9 ; ii. 55-6. 318 a7id Hutchins, ii. 14 ■ and Manhy, i. 48 V. Mackintosh, ii. 237 Scotsford and Shelbury, ii. 129 Scovel V. Cabel, ii. 79 V. Gavel, ii. 79 Scribblehill v. Brett, ii. 20 Scudamore and Clements, i. 688 V. Stratton, i. 733. 773. 775 V. Vandenstene, ii. 12. 99 Sculthorpe and Phipps, ii. 503 Seago V. Deane, i. 640 ; ii. 195 Seagood v. Meale, i. 572. 574-5-6-7 Sealy n7id Nugent dem. Atkins, i. 489. 517. 656 ; ii. 376 Seaman's case, ii. 62. 68 Seaman v. Browning ii. 313 Searl and Gybbe, i. 390 ; ii. 507-8 and Gybson, i. 390. 537 ; ii. 38. 507-8 Searles and Swan, ii. 286. 360 Sears and Pickard, ii. 224 Sebright and Hall, ii. 23 Seddon r. Senate, ii. 314 Seers v. Hind, ii. 266 Seignorett v. Maguire, ii. 55 Selbie and Shute, ii. 289 Selby V. Chute, ii. 289-90 Seller a7id Holmes, ii. 312 Sely and Richards, i. 114. 594 Selsey (Lord) v. Ilhoades, i. 559-60-1. 562-3 Senate and Seddon, ii. 314 Senhouse v. Cristie, ii. 159 Senior v. Armitage, ii. 518 Serjeants' (The) case, 304 Sei'les V. Stransham, ii. 286 Servante v. James, i. 135 Seton and Doe dem. Strode, i. 56 Severne and Smiths, i. 155 Sewell and Wilson, i. 232, 343. 375. 522; ii. 509. 511 Seyer and Hardy, i. 672 Seymor's case, i. 65 Seymour and Downing, ii. 512 Shadbolt v. Woodfall, ii. 380 Shaftesbury (Earl of) v. Duke of Marlborough, i 775-6 779 Shaller and Pilkington, i. 102 ; ii. 184. 423 Shank and Douglas, ii. 54 Shannon v. Bradstreet, i. 31. 86. 394. 398. 408-9. 447. 486. 490. 524. 577-8. 613 Shapter and Bridgland, i. 24 ; ii. 2. 27 Sharington's case, i. 395 Sharp (lessee) v. Bergin, ii. 326 V. Key, ii. 393 Sharpe and Hodson, i. 59 ; ii. 571 and Slack, ii. 139. 142. 446. 450 Sharpner t. Hardenham, i. 127 Shaw V. Barber, i. 104 and Leigh, ii. 46 V. Shaw, i. 376-7-8-9. 381 V. Summers, i. 454-5-6 and Ward, i. 389 Shecomb v. Hawkins, i. 454. 461. 463 Shee T. Burtchell, ii. 32 i\ Hale, ii. 255 Sheehy v. Lord Muskerry, i. 431 Sheers v. Lammas, i . 21 Shelburne (Earl of) v. Biddulph, i. 741 Shelbury v. Scotsford, ii. 129 CIV TABLE OF CASES. Shelley's case, i. 129 Shelly V. Pelham, i. 389 Shephard and Porter, ii. 7G. 463 Sheppard i\ Doolan, i. 707 Sherborne v. Lewis, i. 183 Sherewood v. Nonnes, ii. 391-2 Sherfield and Mills, ii. 377 Sherman, Ex parte, ii. 268 and Coleman, ii. 285 and Hawkins, ii. 6. 416 Sherwooda?«(i Howard's lessee, ii.521 Sherwyn and Coleman, ii. 9. 285 She win and Doe dem. Pitt, ii. 220-1 Shippey v. Derrison, i. 569-70 Shipwith V. Steed, i. 143 Shop land v. Radler, i. 390 V. Roydler, i. 390 v. Rydler, i. 122. 376. 390 Shoplane v. Roydler, i. 376 Shore r. Lord Darnley, i. 757 and Pierson, i. 762 Short r. Kalloway, ii. 214. 286 Shortall a?id Mortimer, ii. 333 Shortridge v. Lamplugh, ii. 361 Shrewsbury's (Countess of) case, i. 656 Shrewsbury (Earl of) v. Gould, ii. 281 Shubrick v. Salmond, i. 746 ; ii. 188 Shulter's case, i. 46 Shum and Taylor, ii. 163. 416-17 Shury t. Brown, i. 129 ; ii. 85. 91-2. 96. 126 Shute and Selbie, ii. 289 Shuttleworth and Wigg, ii. 180 Sibbs and Bull, ii. 369 Sicklemore r. Symonds, ii. 354 Signior Thre'r v. Barton, i. 788 Sikes and Belcher, ii. 302 Silk and Faulder, i. 37 Sills and Southwark Bridge Company, i. 177-8 Sillye and Collins, ii. 260. 264 Simkin v. Ashurst, i. 654. 657 Simmons v. Holland, ii. 377 Siraonds r. Cudmore, i. 93 V. Smith, ii. 361 Simons t. Farren, ii. 129. 231. 237 and Toovey, ii. 564 Simpkin r. Ashurst, i. 654. 657 ; ii. 518. 521. 528 Simpson a7id Buckworth, i. 664 ; ii. 370. 387. 556 r. Clayton, i. 136. 733-4 ; ii. 233. 402 . r. Gutteridge, i. 367 and I'rice, i. 368 V. Titt.-rell, ii. 327 Singleton a7id Hunt, i. 246 Sir Edward Turner's case, i. 156 Sir John Astley's leases, i. 493 Sir Marmaduke Wivell's case, i. 307 Sir Moyle Finch's case, i. 368 Sir William More's case, ii. 251. 253. 265 Skeggs a7id Lord Stanhope, ii. 255' and Stanhope, ii. 254-5. 264 Skey and Fraser, ii. 285. 315 Skinner, Ex parte, i. 359-60 —— and Hyde, i. 715-16. 733 V. Kilhys, ii. 315 and Pegge, i. 37. 640 • and Pope, ii. 54-5 Skipwith n. Green, i. 52. 61 ; ii. 26 Skurro atid Soprani, ii. 15. 129. 396 Slack V. Sharpe, ii. 139. 142. 446. 450 Slade and England dem. Tyburn, 1. 61 Slater and Edwards, i. 525 V. Stone, ii. 219 Slaughter and Morgan, ii. 159. 240. 245. 247-8 Slaymaker and Copping, ii. 276 Sleap and Piatt, ii, 331. 513 Sleigh T. Bateman, ii. 504 Slight and Doe dem. , ii. 543 Slingsby's case, i. 134. 539 Slocomb r. Hawkins, i. 454-5. 461 Smaleman v. Eigburrow, i. 127. 129 Small's case, i. 75 Small and Frontin, i. 62. 391 ; ii. 16. 97 and Jeffreys, i. 538 and White, i. 44 Smalman v, Agborow, i. 127. 129. 143. 148 v. Agburrough, i. 146 Smalpiece v. Evans, ii. 251. 253. 265, 268 Smarridge and Doe dem. Clarke, i. 657-8 Smart and Fenn dem. Matthews, ii- 328 and Gorton, ii. 232 and Johnson, i. 110. 112 V. Williams, i. 164 Smartle v. Penhallow, i. 436 V. Williams, i. 164 Smethurst and Birchall, ii. 324 Smith V. Adkins, i. 553 V. Arnold, ii. 184. 406 and Attorney-General, 1. 351. 710 V. Baker, i. 20. 102 V. Barrett, i. 177.312 V. Bole, i. 74. 78. 467 ; ii. 55 V. Bowen, i. 28. 31 V. Bowin, i. 31 TABLE OF CASES. cv Smith V. Bowles, i. 70. 74. 78. 300. 302 ; ii. 55 ■ and Broke, ii. 576 V. Bustard, ii. 116. 17 V. Cave, i. 231 V. Chambers, ii. 285 V. Chichester, i. 764 and Churchwardens of St. Sa- viour's, Southwark, ii. 416 and Clark, i. 434. 438 V. Clarke, i. 439 V. Compton, ii. 306-7-8 anrf Coyne (lessee of), i. 12. 18 awe? Crompton, ii. 1 12 V. Day, ii. 60. 377 and Doe dem. Bromfield, i. 529. 585. 602. 682 ; ii, 517 and Doe dem. Cheere, ii. 250. 252 c. Doe dem. Jersey, i. 466. 474. 479. 495 ; ii. 111. 116. 144. 338 and Doe dem. Jersey, i. 398 a/id Doe dem. Perfect, i. 612 and Doe dem. Westmoreland, i. 612 and Doe dem. Wright, i. 587 ; ii. 348. 562 V. Downing, i. 45 and Earl of Jersey, i. 397. 493. 505. 507-8 ; ii. 333-4. 336. 339-40. 344. 477 and Fury, ii. 570-1 and Hall, i. 744 and Lake, ii. 523 and lessee of Coyne, i. 12. 18 V. Low, i. 29. 32-3. 53. 55. 372 V. Malines, ii. 133 V. Malings, ii. 146 V. Mapleback, i. 11. 18. 102 ; ii. 82-3. 501. 504. 506 V. Martin, ii. 32 r. Morris, ii. 151. 154 and Morris, ii. 283 and Nangle, i. 704. 713 V. Newsam, ii. 104. 106. 114. 126 V. Norfolk, ii. 358-9. 369 V. Nusam, ii. 104. 106. 114. 126 V. Oakes, i. 681 and Parker, i. 622-3. 628 ■ V. Parks, ii. 475 V. Phillips, i. 633 and Pitt, i. 45 V. Pocklington, i. 175 ; ii. 285. 287 and Powis, i. 134 V. Raleigh, ii. 128 Smith and Saverne, i. 107. 155 and St. Saviour's (Southwark, Churchwardens of), ii.416. 507 and Say, ii. 72. 75 V. Simonds, ii. 361 and Sparkes, i. 102 ; ii. 185. 423 V. Spooner, ii. 328. 342. 470 and Throgmorton dem. Miller, i. 29 V. Trinder, i. 7^6. 82. 154 V. Turner, i. 572. 574 and Vernon, 732-4 ; ii. 226-7. 388. 402-3. 408. 413 V. Walton, ii. 67 and Warren, i. 29. 543 and Webber, ii. 477. 482. 485. 486 V. Wilson, ii. 206. 284 and Wilson, ii. 552. 556 and Wright, i. 484 ; ii. 523 Smith's Executors and Castilion, ii, 373 Smiths V. Severne, i. 155 Smyth, Ex parte and Mre., i.39. 66. 93-4. 404. 409 ; ii. 139. 142 V. Bowen or Bowin, i. 28. 31 • V. Cave, i. 231 ■ V. Lane, i. 537 V. Nangle, i. 713 V. Smyth, i. 44 Snapp a?w? Archer dem. Hankey, ii. 475 Sneezum v. Marshall, ii. 561 Snelgar v. Henston, i. 131 Snellgar and Hudson, i. 131 Snook and Fleming, ii. 280 Snow v. Cutler, i. 434. 528 Snowden and Pitt, i. 389 Snowdon and Doe dem. Dagget, ii. 67 Sobrean v. Kevan, i. 288 Solme V. Bullock, ii. 33 Somerset (Duke of) v. Fogwell, i. 24 ; ii. 1 Somervill v. Chapman, i. 710 Soprani v. Skurro, ii. 15. 129. 396 Sorril and Abbot, ii. 331 Soulsby V. Neving, ii. 525 Souter V. Drake, i. 616-17-18 South London Water- works Company and Hannam, ii. 487. 490 South Sea Company and Attorney- General, i. 349. 353 Southall V. Leadbetter, ii. 172 Southampton (Lord) v. Brown, i. 381 ; ii. 13. 99 Southcott i\ Adams, i. 537 Southern r. Bellasis, ii. 144 CVl TABLE OF CASES. Southgate v. Chaplin, ii. 314 Southwark Bridge Company v. Sills, i. 177-8 Southwell (Chapter of, &c.) and Lon- don, ii. 34 Seward v. Leggat, ii. 196 Sowden v. Emsley, i. 320 Sowry and Briggs, ii. 450-1 Spark's case, i. 104. 111-12 Spark i\ Spark, i. 673-4 Sparke v. Sparke, i. 528 ; ii. 72 Sparkes v. Smith, i. 102 ; ii. 185. 423 Sparks v. Liverpool Water-works Company, ii. 477 Sparrow and Keating, i. 757. 761 Spatchurst v. Minns, ii. 112 Spearman and Billingworth, ii. 367 Speerman and Billinghurst, ii. 367-8. 370 Spencer's case, i. 27 ; ii. 85. 184. 226. 400-1-2. 405. 407-8. 413-14. 419 Spencer and Doe dem. Clark, ii. 455 and Fane, i. 617 a-tid Foster, ii. 39 V. Marriott, ii. 310 Spendlowes v. Burket, i. 238. 308 Spitty and Curtis, ii. 135. 271. 351. 355. 400. 421 Spooner and Foster, ii. 39. 44 and Smith, ii. 328. 342. 470 Spragg r. Hammond, ii. 177-8 Sprainger and Ballet, i. 778 Sprake's case, i. Ill Spratt V. Jeffery, i. 616 Spry and Doe dem. Gaskell, ii. 230. 235 Spurrier and Dann, i. 95. 410. 573 ; ii. 62-3. 68. 75. 461 Spyve T. Topham, ii. 21 Squib V. , i. 25 Squier and Tooker, i. 583 Stacey and Davios, ii. 102 Stacy r. Clark, i. 80 V. Clerk, i. 80 and Freeman, ii. 148 Stafford (Lord) and Lees, ii. 269 (Mayor, &c. of) v. Till, i. 178. 180 Stagg and Doe dem. Wyatt, ii. 367. .504 Staines r. Morris, ii. 5. 6. 87. 120. 12K-9. 130. 163. 183. 352. 355. 376. 428. 430 Stamp and Inman, ii. 5 Stampe r. Clinton, ii. 42. 44 V. Liford, ii. 42. 44 Standish and Mildmay, i. 395 Stanfill V. Hickes, i. 659. 665 Stanfitt v. Hickes, i. 659. 665 Stangroom and Marquis of Towns- hend, i. 642. 648 Stanhop's case, i. 55 Stanhope and Griffin, i. 77 ; ii. 317. 676 V. Skeggs, ii. 254-5. 264 Staniforth v. Fox, i. 583. 588. 606 • and Tarleton, ii. 221 Stanion and Doe dem. Gray, ii. 496-7. 510 Stanley and Curry, i. 706. 784-5 and Davison dem. Bromley, ii. 509-10 V. Hayes, ii. 309. 312 V. Towgood, ii. 196 Stannard v. Forbes, ii. 285. 293. 298. 300 Stanton and Barry, ii. 257 Stapilton v. Stapilton, i. 91 Staple a7id Doe dem. Hodsden, i. 613 Stark and AUason, i. 322-3-4 and Allison, i. 322-3-4 Starkey v. Birton, i. 181 and Theed, ii. 172 Starkie, Mre., i. 42 Statham and Joynes, i. 643-4. 647 V. Trustees of Liverpool Docks, i. 752 Stavelanda«c?Lord Uxbridge, ii. 278. 403. 409. 474 Stead and Hamerton, ii. 582. 611 V. Nelson, i. 49 Stebbing v. , i. 307 Stedman v. Bates, i. 127. 137 V. Page, i. 127. 137 and Page, i. 127. 137 Steed V. Cragh, i. 156 and Shipwith, i. 143 Steele and Doe dem. Timmis, i. 691 ; ii. 77 V. Mart, i. 450 ; ii. 10. 11 V. Mitchell, i. 525 V. Wright, ii. 121. 123. 183. 194 Steere and Jurdain, i. 125. 131 Steffenoni and Wootton, i. 533 ; ii. 393. 399 Steiglitz V. Eggington, i. 393 Stennett and Doe dem. Hillingworth, ii. 4 an£^ Doe dem. Hollings worth, i. 653-4 Stephens v. Bridges, ii. 515 ■ — V. Capel, ii. 63 and Case, ii. 172 TABLE OF CASES. evil Stephens and Copeland, i. 22-3 ; ii. 434-5 and Doe dem. Earl of Egre- mont, i. 471. 515-16 and Doe dem. Lord Egre- mont, i. 413. 423 V. Eliot, i. 50 V. Potter, i. 236 Stephenson and Birch, i. 61 ; ii. 26. 108-9 and Hanson, ii. 434.438 a7id Line, ii. 285 • V. Stephenson, ii. 387 Stepping V. Gladding, or Gladen, ii. 309 Sterne and Pemble, i. 73-4 Stevens and Bowring, ii. 563 and Doe dem. Abdy, ii, 319. 322 and Rubery, ii. 367. 369-70 Stevenson and Fletcher, ii. 379 and Hesse, ii. 296. 305. 308 V. Lambard, ii. 135-6. 164. 271. 352. 355. 402.421 Stevs'ard r. Allen, ii. 328 and Dean and Chapter of Ely, i. 180 ; ii. 26. 209 and Mayor, ii. 431 . v. Wolveridge, i. 517 ; ii. 87. 376. 430 and Wolveridge, i. 517 ; ii. 376. 428. 430 Stewart and Bowles, i. 766 ayid Dean and Chapter of Ely, i. 180 ; ii. 26. 209 and Parnell, ii. 428 Stewkley v. Butler, ii. 37-8 Stibbert and Taylor, i. 94. 523. 708. 743-4 Stile's case, i. 70 Stile and Howe, ii. 512 Stiles V. Cowper, i. 95. 410. 524 and Doughty, i. 122 and Frampton, i. 70 Stillingfleet v. Parker, i. 543 Stockdale's case, i. 235 Stockton and Tuber\il, ii. 506 Stokes V. Clarke, i. 765. 767 and Cobb, ii. 517. 523. 525 ■ V. Moore, i. 568 and Pentland, i. 588. 592. 610 . V. Russell, 1. 124. 175 ; ii.394. 415 and Russell, i. 124. 175 ; ii. 415 Stomfil V. Hicks, i. 20. 659 ; ii. 51 Stone r. Evans, ii. 423. 429 r. Grubbam, ii. 10 Stone and Gwillim, i. 613-14. 617. 621 and Rayner, ii. 209. 283 V. Rogers, i. 587 and Slater, ii. 219 V. Theed, i. 762. 770. 778-9 r. Whiting, ii. 503 Stoneley and Isteed, i. 732-3-4; ii. 164. 388. 402 Storer v. Gordon, ii. 12. 99 V. Great AV^estern Railway Company, ii. 210 Storey and Brown, i. 164-5. 171 Story V. Johnson, i. 32. 131. 137 Stowell r. Robinson, ii. 272-3. 277 Stradling and Wills, i. 572. 575-6-7. 579 Stradwick and Legg, i. 657. 660 Strafford and Edge, ii. 4. 5. 7. 75 (Earl of) V. Lady Went- worth, ii. 139-40. 144 Strahan t. Thomas, ii. 150 Stransham and Series, ii. 286 and Swan, ii. 286. 360. 364 Stransora and Scarles, ii. 360 Straphan and Goodright dem. Carter, i. 149-50 Stratford Bridge Improvement Act, Mre., i. 322. 558 Stratton and Doe dem. Tilt, i. 613. 657 ; ii. 517 and Scudamore, i. 733. 773. 775 Strech and Grenefield, i. 392 Streetman v. Eversley, ii. 217 Streeton and Colley, ii. 214 Stretton t. Cush, ii. 217. £33. 337 Stribblehill v. Brett, ii. 20 Strickland and Ewre, ii. 5. and Howlet, ii. 215 and Maxwell, ii. 48. 81. 282 Stroud V. Marshall, i. 37 Strudwick and Legg, i. 657. 660-1-2 Strutt V. Robinson, ii, 561 Stubbs V. Parsons, ii. 177-8 'V. Wroth, i. 767. 786 Stuckey and Barford, ii. 12 Studdart (lessee) v. Neylan, ii. 61 Studley and, Feilder, ii. 305 and Gree, i. 200 ; ii. 51 and Vane, ii. 338 Stukeley v. Butler, ii. 28.37-8.78. 81. 249 Sturdy and Pure dem.Withers, ii. 475. 477 Sture and Osborne, ii. 115 Sturges and Doe dem. Hayes, i. 367. 408 CVIU TABLE OF CASES. Sturges and Turney, i. 140. 142 Sturgion v. Painter, i. 583 Stweton V. Cushe, ii. 217. 333. 337 Style V. Hearing, i. 60 ; ii. 285 Styles ?>. Wardle, ii. 10. 11 Sucklinge v. Coney, ii. 338 Sugg and Wheadon, i. 683 ; ii. 49 Sullivan v. Bishop, ii. 523 Summers and Shaw, i. 454-5-6 Summerset and Roe dem. Bendall, i. 367 Summersett and Doe dem. Aslin, i. 125-6-7 Sunderland and Durham, ii. 6. 40-1. 44 V. Newton, ii. 200 Surplice v. Farnsworth, i. 614 ; ii. 220 Suiy V. Brown, i. 24 ; ii. 90-1-2 V. Cole, ii. 92. 96 and Cole, ii. 92. 97 Sussex (Countess of) v. Wroth, i. 50. 454-5. 459-60 Sutherland v. Briggs, 1. 570. 573. 575 ; ii. 539-40 Sutton, Ex parte, i. 631 and Blore, i. 95. 404. 408-9. 410. 577-8 V. Chaplin, ii. 142 V. Dicons, i. 59. 64 and Doe dem. Pittman, ii. 197. 224 • V. Dowse, ii. 78 V. HoUoway, i. 59. 64 V. Jones, i. 35. 404 and Jones, i. 35. 404 V. Mashiter, ii. 380 and Rex, i. 377-8. 380 V. Temple, i. 614 and Yervel Poor, i. 361 Sutton's case, i. 26. 59. 63-4. 95 Swaine v. Holman, i. 531 ; ii. 506 Swan V. Searles, ii. 286. 360 V. Stransham, ii. 286. 360. 364 Swann a7id Fox, ii. 257-8. 328 Swanton v. Biggs, ii. 225. 475. 480 Sweeper v. Randal, i. 598 Sweet V. Anderson, i. 752. 757. 761 Sweeting and Dyke, ii. 364 Swelnam v. Cuts, ii. 217 Swetman v. Cush, ii. 217. 333. 337 Swetnam and Porter, ii. 86-7. 164. 402 Swift and Lowe, i. 408-9. 428. 577 aw/ Mac Alpine, i. 752-3. 757 Swinerton and Butler, i. 540 ; ii. 309. 310-11 Swinnerton v. Miller, i. 112 ; ii. 133. 393 Sydal and Overton, i. 309 ; ii, 352. 3,54. 368. 386 Sydenham v. Caps, i. 73 and Rich, i. 45 ' and Richardson, i. 744 Sym's case, i. 130. 139. 157. 537 Symonds v. Cudmore, i. 77. 84-5. 93 and Sicklemore, ii. 354 Symons v. Symons, 1. 36. 93. 404. 408-9 ; ii. 142 Sympson v. Hornsley, i. 404 and Prince, i. 368 V. Titterell, ii. 327 Syms and Dumper, ii. 130. 269 T. TAHOURDEN and Chauncey, ii. 474 Tailour v. Fitzgerald, ii. 55 Talbot and Attorney-General, i. 347 and Croom, ii. 85. 137 V. Ford, ii. 467 V. Tipper, i. 492. 520 Talcot atid Barker, ii. 359 Talentine v. Denton, i. 70. 72 Tancred v. Christy, ii. 522 Tanfield v. Rogers, i. 74. 77. 471 Tankerville (Lord) r. Whitfield, i. 493 (Lord) v. Wingfield, i. 506 Tanner v. Elworthy, i. 767 and Elworthy, i. 767 V. Florence, i. 732. 742. 744 Tapscott and Greenslade, ii. 109. 261-2 Tardiff r. Robinson, i. 781 Tash and Carter's lessee, ii. 512 Target v. Lloyd, ii. 419 Tarleton v. Stainforth, ii. 221 Taster v. Marriott, i. 766. 768 Tate and Wood, i. 177-8 Tatem v. Chaplin, ii. 402 Tattersall and Whitehead, ii. 215 Taunton v. Barrey, ii. 251. 257 and Berry, ii. 257. 259 V. Costar, ii. 517 Taunton's case, ii. 257 Taylor dem. Atkyns v. Horde, i. 394. 397. 406. 470. 489. 517. 522. 656. 726 ; ii. 53 V. Attorney-General, i. 235 V. Beal, ii. 215 and Beale, ii. 215 and Burrough, i. 235 ; ii. 100. 333. 336 and Crane, i. 242. 246 TABLE OF CASES. CIX Taylor and Derby (Earl of), i. 10. 102. (i7U; 391. 402. 493 V. Dulwich Hospital, i. 180. 357. 710. 745 and Earl of Derby, i. 10. 102. 670; ii. 391. 420. 493 V. Fitzergald, ii. 55 and Holder, ii. 9. 285. 288 V. Lenne, ii. 10 V. Needham, i. 60 ■ V. Parry, ii. 30 V. Salmon, i. 391 V. Shum, ii. 163. 416-17 and Hibbert, i. 94. 523. 708. 743-4 V. Young, ii. 450-1 ■ and Young, ii. 450 V. Zamira, i. 172 ; ii. 100, 129 Taylors' Company and Davis, i. 717 Taynton v. Hannay, i. 369 Tempany v. Bernard, ii. 192. 218 Tempest v. Rawling, i. 585. 612 Temple and Sutton, i. 614 V. Temple, i. 540 V. Viscountess Baltinglass, i. 512 Tench and Mayor of London, i. 436 Terry and Doe dem. Higgs, i. 320. 321-2 Testar and Horsefall, ii. 218 Tew V. Thackwell, ii, 137 Thackwell and Jew, ii, 137 and Moggridge, i. 230 and Tew, ii. 137 Theed and Leighton, i. 654, 660 V. Starkey, ii. 172 . and Stone, i. 762. 770. 778-9 Theobalds v. Duffoy, i. 2. 533 Thetford v. Thetford, i. 148 Thirkwell and Jew, ii. 137 Thomas v. Burne, i. 782 V. Cooke, ii, 352. 354-5. 503, 507 and Doe dem. Courtail, ii. 502. 506 and Doe dem. Richardson, i. 239. 304 and Evans, i, 598 ; ii. 23. and Freke, i. 368 and Harvy, i. 141 and Hebbert, ii. 42 and Jones, i, 559. 563 ; ii, ,232 and Leach, ii. 182 and Lenthall, i. 105, 114. 594 Thomas v. Montgomery, ii. 378 V. Pemberton, ii. 437 . and Pincomb, ii. 42 and Piatt, ii. 560 and Price, ii. 560 and Right dem. Basset, i. 397.412. 522 ; ii. 7 and Rudge, i. 310 and Strahan, ii. 150 V. Ward, ii. 324 Thomasius and Opee, i. 77. 84. 444 ««t?Opie, i. 77.84. 444. 458. 464 and Opey, i. 444. 458. 464 and Opy, i. 77. 84. 444. 458. 464 Thomatius and Opie, i. 445, 458, 464 Thomkins v. Pincent, ii. 113 Thomlin.son r. Dighton,i, 401. 408 Thompson v. Bradbury, ii. 445. 447 T. Guyon, i. 636; ii, 221. 224-5 and Home, ii. 480 V. Leach, i. 31-2. 37 ; ii. 5 r. Maberley, i. 667 and Mario w, ii. 566 and Marquis of Bute, ii. 167 a7id O'Reilly, i. 576 and Pigott, ii. 98 r. Thompson, ii. 377 V. Tra£Ford, i. 72. 246. 464 Thomson v. Field, ii. 116. 336 V. Wilson, ii. 503 Thomson's case, i. 80. 155 ; ii. 126 Thorn and Allen, ii. 309 V. Woolcombe, i. 15. 16. 18 ; ii. 394 Thornborough and Hodgkins, ii. 132. 133-4 and Hodgson, ii. 127. 132-3-4 Thornborough's case, i. 295 Thornbury and East, ii. 177. 181 Thorne and Jones, ii. 232 Thornhil v. King, ii. 251. 268. 271. 273 Thornton and Kinlyside, ii. 356 and Moies, i. 179 Thorogood and Wheeler, i. 22 Thoroughgood v. Cole, i. 46 Thoroughgood's case, i. 46-7 Thorp and Palmer, i. 51 ; ii 52 and Rex, i. 372 Thorpe and Campion, i. 414. 467. 470. 471 and Frankfort (Lord), i. 706. 784 ex TABLE OF CASES. Thorpe and Lord Frankfort, i. 70fi. 784 Thrale v. Cornwall, ii. 383. 386 Threadneedle v. Line, i. 81 V. Linum, i. 76. 81 V. Lynham, i. 81 V. Lynum, i. 81 Thredneedle r. Line, i. 76 V. Lineham, i. 245 V. Lyneham, i. 76 V. Lynum, i. 76 Thresher v. East London Water- works Company, ii. 200. 204 Throckmorton atid Finch, i. 236 ; ii. 328 Throgmorton dem. Miller v. Smith, i. 29 V. Whelpdale, ii. 496 Throwgood v. Turnor, i. 46 Thrustout dem. Levick v. Coffin, i. 368 Thunder dem. Weaver v. Belcher, i, 122 ; ii. 4. 164. 170 Thursby v. Plant, ii. 352. 354-5. 386-7. 391. 398 Thurston's case, i. 51 Tighe and Brown, i. 668. 703. 707-8. 718-19. 723. 728 and Winslow, i. 733. 767. 786 Tiler's case, i. 692-3-4 Tiley and Ford, i. 619. 731 Till and Mayor of Stafford, i. 178. 180 Tilney r. Norris, ii. 369. 373. 402. 419 Timberley v. Grohham-How, i. 655 Timbrell v. Bullock, ii. 127. 507 Timmins v. Rowlinson, i. 653-4 Tinckler v. Prentice, ii. 180 Tipper and Talbot, i. 492. 520 Tippin V. Grover, i. 71 Tirlot V. Morris, or Mon-ison, i. 531 Tisdale v. Essex, ii. 23. 312. 314. 598-9 Title V. Grevett, i. 655 Titterell and Simpson, ii. 327 and Sympson, ii. 327 Tiving and Grange, i. 400-1. 520. 525 Tomkies and Lloyd, ii. 313-14 Tomkins and Hermitage, i. 53-4 V. Pinsent, ii. 113 Tomlin and Lord Bolton, ii. 4. 5 and Palmer (Ijord), ii. 4. 5 Tomlin.son's case, i. .309 Tomlinson t. Day, ii. 136 V. Dighton, i. 401 f/vd Dighton, i. 401 Tompkins v. Pincent, ii. 113 Tompson r. Miles, ii. 188 Tompson v. Trafford, i. 72.246; ii. 507 Tong T. Sant, i. 46 Tongue v. Pitcher, ii. 163. 416 Tooke and Crosbie, i. 632. 636 Tooker v. Squier, i. 583 Toole V. Medlicott, i. 572. 578 Toovey v. Simon.s, ii. 564 Topham and Spyve, ii. 21 Topping and Rex, ii. 256 Torriano v. Young, ii. 182. 190. 521 Tothill V. Ingram, ii. 154 and Ingram, ii. 90 Tottell V. Howell, i. 24 ; ii. 1 Toulmin and Hammond, ii. 121. 353. 433 Tovey v. Pitcher, ii. 416 and Pitcher, ii. 166. 367.416. 417 Towgood and Stanley, ii. 196 Town, Ex parte, ii. 110 Towner and Chapman, i. 592-3. 599. 611 ; ii. 461 Townley v. Bond, i. 758. 762 Townsend's case, i. 688 Townshend (Marquis of) v. Stan- groom, i. 642. 648 Tozer and Nation, ii. 367. 369. 374-5 Tracy v. Button, i. 48 Trafford and College de Manchester, ii. 64. 69 and Manchester College, ii. 64. 69 and Thompson, i. 72. 246. 464 and Tompson, i. 72. 246 ; ii. .507 Trant and Dubois, i. 368 V. Dwyer, i. 761 Travel v. Travel, i. 401 Treackle v. Coke, ii. 163. 417 Trecothick and Coles, i. 393. 650 Tredennick and Nesbitt, i. 762. 764-5 Tredway and Mason, ii. 504 Tremeere and Lainson, i. 56. 60 V. Morison, ii. 211. 369-70. 373 Tremenheere and Harris, i. 559-60. 561-2-3 Trench v. St. George, i. 771 Trenchard v. Hoskins, ii. 303 Treport's case, i. 56-7-8. 100-1 Trcsiddcr and Doe dem. Tresidder, i. 106. 110-11-12 Trethewy v. Ellesdon, ii. 21 Trevelyan and (Jordon, i. 622 Trever v. Roberts, ii. 23 Trevezant and Wiight, i. 603. 610 ; ii. 23 TABLE OF CASES. CXI Trevil v. Ingram, ii. 1/54 Trevilian v. Lane, i. 90 Trevillian v. Andrew, ii. 518 Trevivian v. Lawrence, i. 57-8-9. G4 Trezevant and Wright, i. G03. 610 ; ii. 23 Trinder and Smith, i. 76. 82. 154 Tristram dem. Gore v. Roper, Vis- countess Baltinglass, i. 412. 417. 420. 512 Tritton v. Foote, i. 351. 708. 715. 718 Troy and Lowther, ii . 509 Truepenny's case, i. 671 Trussel's case, ii. 353 Trussel and Banyster, ii. 353 Trussell and Hall, ii. 353 Trustees of British Museum and Duke of Bedford, ii. 238. 413 of Liverpool Docks and Statham, i. 752 Trye and May, i. 746 Tubervil r. Stokton, ii. 506 Tuck V. Fyson, ii. 354. 434. 451 Tucker and Hodgeskins, i. 300. 302. 306-7 and Morse, ii. 365 and Rudde, ii. 462 Tudor i\ Samyne, i. 156 Tuerloote v. Morrison, i. 531 Tuffin and Risden, i. 668 Tuke a7id Holman, ii. 359 Tunbridge and Ranisbottom, ii. 566 Tunno v. Lewis, i. 636 Tunstall and Duckworth dem. Tubley, ii. 475 Turner and Downes, ii. 475 and Gas Light and Coke Com- pany, ii. 165 and Hodges, i. 111-12 and Henniker, i. 134. 136 r. Lamb, ii. 213 I'. Meymott, ii. 517 and Nash, i. 60 V. Power, ii. 561 and Rawlins, ii. 4 V. Richardson, ii. 434-5. 439 ' and Smith, i. 572. 574 and Wentworth, i. 100 Turner's (Sir Edward) case, i. 156 Turney v. Sturges, i. 140. 142 Turnor and Throwgood, i. 46 Turpin and Marrow, ii. 352. 354 Turvy and Richards, ii. 416 Tusking v. Edmonds, ii. 334 Tustian dem. Gore v. Roper, Vis- countess Baltinglass, i. 412. 417. 420. 512 Twells and Jordan, ii. 129. 315 Twentiman and Lawrence, ii. 1 88 Twogood and Wheeler, i. 23 Twyford v. Buckly, i. 691 Twynam v. Pickard, ii. 271. 274. 333. 3.55. 386. 392. 421 Tyber and Greenwood, i. 141. 143. 538. 685-6. 691-2-3 Tyler 1'. Fisher, i. 141. 692 V. Greenwood, i. 692-3 and Greenwood, i. 538. 685. 691-2 Tyrrell a«(Z Bayly, i. 628 U. UDNEY and De Minckwitz, i. 634 Uply and Daniel, i. 401 Umble i\ Fisher, ii. 55 Umphery v. Damyon, ii. 331 Underhay v. Underhay, ii. 80 Upton V. Fergusson, ii. 429 U.sher V. Ayleward, i. 538 Uthwatt V. Elkins, i. 553 Utterson v. Vernon, i. 727 Utty Dale's case, i. 96. 687 Uxbridge (Lord) v. Staveland, ii. 278. 403. 409. 474 V. VALLIANT V. Dodemede, ii. 417 Van V. Corpe, i. 648 ; ii. 160. 162. 229-30 Vandenanker v. Desbrough, i. 629 Vandenstene and Scudamore, ii. 12. 99 Vanderbank and ArthuY, ii. 352. 354 Vanderplank and Arthur, ii. 352. 354 Vandicoote's case, ii. 367 Vane v. Minshall, i. 530 V. Studley, ii. 338 Vardy, Ex parte, ii. 447 Varnis v. Goodcheape,ii. 352-3-4-5-6 Vaudstevan arid East Skidmore, ii. 12. 99 Vaughan, Ex parte, ii. 491 u. Ascue, i. 294-5-6 and Evans, i. 425. 670. 677 ; ii. 310 Vaux and Brittin, ii. 416 Veal V. Roberts, ii. 61 and Wood, ii. 209 Veale r. Priour, i. 25-6 ! Ventrice v. Goodcheape, ii. 352-3-4-5 I 356 ex 11 TABLE OF CASES. Vere v. Loveden, ii. 156. 241. 245. 247. 249. 265 Verlander v. Codd, i. 569. 622 Verney and Doe dem. Cowper, i. 522. 524 and Jones dem. Cowper, i. 428. 469. 495. 506. 518 ; ii. 468 V. Verney, i. 762. 770-1. 775. 778 Vernon v. Egmont, ii. 378 a7id Ga.mon, ii. 135. 271. 421 and .lackson, ii. 422 V. Smith, i. 732. 734 ; ii. 226. 227. 388. 402-3. 408.413 atid Utterson, i. 727 V. Vernon, ii. 140 Vesey v. Bodkin, i. 762 Vicars and Fitzgerald, i. 622 Vice-Chancellor, &c. of Cambridge and Rex, i. 177 Villers v. Beaumont, i. 140 Vince and Doe dem. Hinde, ii. 67 Vincent v. Beverlye, ii. 128 and East India Company, i. 95. 524 V. Ennys, i. 526 Vine and Forte, ii. 314-15 Vines and Liebenrood, ii. 283 Viney atid Neal, ii. 559 Virgin and Moseley, ii. 209 Viscountess Baltinglass and Temple, i. 512 Vivian v. Blomberg, i. 243 V. Campion, ii. 212-13. 356 V. Champion, ii. 212. 361 Vizard and Pratt, ii. 539 Vochell V. Dancastell, ii. 128 Vonhollen i\ Knowles, ii. 20 Vowles and Pickering, i. 703-4. 762. 763. 766. 773 Vyvyan v. Arthur, ii. 87. 164. 365. 382. 402-3-4 W. WADDILOVE V. Barnet, i. 164-5 Waddington awe? Daniel, i. 129. 671 Wade V. Baker, i. 376-7-8 V. Benbow, ii. 5 and Graham, ii. 175 Wade's case, i. 91 ; ii. 143. 338 Wadham v. Marlow, ii. 354-5 a7id Roach, ii. 395. 415 Wadley v. Wadley, i. 778 AVadman d. Calcraft, ii. 278. 477. 481. 484. 4H7 Wafer v. Mocato, ii. 278. 483-4 Wake and Odell, ii. 435 Wakefield and Goodgaine, ii. 54 Wakeman and Waker, i. 415 V. Waker, ii. 292. 415 and Walker, i. 415 Waker v. Wakeman, i. 415 and Wakeman, ii. 292. 415 Waldron and Hill, i. 731 and Honeycomb dem. Hal- pen, ii. 571 Walford v. Beazely, i. 569 Walker t. Bellamie, ii. 277 and Bloxham, ii. 312 and Doe dem. Rawlings, i. 22; ii. 507. 511 t\ Harris, ii. 416 V. Hatton, i. 103 ; ii. 196 V. Jeffreys, i. 753 V. Reeves, ii. 417. 422 V. Richardson, i. 24. 184.287; ii. 503 and Sacheverell, i. 126 ; ii. 92. 362 V. Wakeman, i. 415 — V. Walker, i. 643. 645 Walker's case, ii. 127. 133. 146. 351. 352. 334-5-6.386.416. 517 Wall V. Buckley, i. 382 and Cole, i. Ill Wallace v. Mc. Laren, i. 134 V. Patten, i. 759. 761 Wallenger and Wiseman, ii. 392 Waller v. Andrews, ii. 169-70 and Bacon, ii. 55 T. Dean and Chapter of Nor- wich, i. 692-3 and Perkins, i. 21 Walley and Rowell, i. 778 V. Walley, i. 770 Wallgrave v. Moor, ii. 117 Wallis r. Harrison, i. 140. 540 Walmesley and Clifton, i. 726 ; ii. 168 Walls V. Atcheson, ii. 503 Walrond and Ernelye, ii. 319. 327 V. Hill, i. 731 V. Pollard, i. 298-9 Walsal V. Heath, i. 140 Walsby and Williams, i. 393 Walsh (lessee of) v. Feely, i. 16. 18 V. Fussell, ii. 409 V. Pemberton, i. 27 ; ii. 85 and Rossiter, i. 391. 560 ; ii. 333 Walshe and Evans, i. 735. 782 Walter r. Dean and Chapter of Nor- wich, i. 693 i\ Maunde, ii. 146 TABLE OF CASES. CXIU Walter v. Mountague, ii. 189 Walton V. Johnson, ii. 186 and Smith, ii. 67 V. Waterhouse, ii. 186 Wandlass and Doe dem. Forster, ii. 328. 330. 340-1 Wankford v. Wankfovd, i. 367 Warburton a7td Bayley, i. 69. 401. 432. 527. 678. 692 T. Ivie, i. 60 ; ii. 416 Ward V. Clarke, i. 325 V. Const, ii. 172-3. 147 V. Hartpole, i. 397. 489. 559. 560. 562-3 and Maxwell, i. 706-7-8. 712. 727. 752. 754-5. 759 and Northcote, i. 25 and Reed, i. 534 and Roe dem. Jordan, i. 94. 96 ; ii. 521 V. Shaw, i. 389 and Thomas, ii. 324 Wardle and Styles, ii. 10. 11 Ware and Challoner, ii. 338 Waring v. King, ii. 521 V. Mackreth, i. 97 ; ii, 520 Warman v. Faithfull, i. 609 Warn r. Bickford, ii. 316 Wanie and Carter, ii. 435. 459 Warneford ik Giles, i. 672 Warner v. Agus, ii. 83 and Bloxam, ii. 312 and Boyland, i. 393. 442 and Browne, i. 103. 583 and Goring, ii. 252. 268 and Reed, i. 534 and White, ii. 224. 483 Warner's case, i. 320 Warre and Hawkins, ii. 566 Warren v. Arthur, ii. 44 V. Ashers, ii. 44 and Attorney-General, i. 349. 351. 353. 355. 357-8. 710 and Hutton, ii. 279. 518. 520-1 and Poole, ii. 524 r. Richardson, i. 618. 627 V. Smith, i. 29. 543 WarrejTi and Eltham Parish, i. 361 Warrington, lessee of, v. Hodgens, ii. 342 • and RadclifFe, ii. 486 Wamnger and Wiseman, ii. 392 Warton (i7id Doe dem. Da Costa, i. 613 Warwick, Ex parte, ii. 441 r. Gerrard, i. 395 Waterford and Lismore (Case of Bi- shopric of), i. 294 VOL. T. Waterer v. Mountague, ii. 189 Waterhouse and Chantflowor, ii. 312 and Walton, ii. 186 Waters v. Bailey, i. 766 V. Rumsey, i 70 and Weigall, ii. 121. 124. 191-2. 215 Waterworth atrd Ripley, i. 688 Watkin and Ardes, ii. 131. 135. 271. 392 Watkins and Arge, ii. 131 atui Elliott, ii. 209 Watkinson v. Man, i. 239 Watson, Mre., ii. 441 V. Atkins, ii. 175 V. England, i. 696 awe? Hartshorne, i. 19 ; ii. 329. 331. 416. 517 V. Hinsworth Hospital, i. 357. 358. 710 ». Home, ii. 174. 176 V. Master, &c., of Hemsworth Hospital, i. 351. 357. 703-.4 710 a)id Rivis, ii. 131 Watt and Doe dem. Henniker, ii. 87. 317. 325. 327 V. Grove, i. 561. 563 and Grove, i. 561. 563 V. Madgewell, ii. 506. 509 Watton and Doe dem. Bayntun, ii. 54-5-6 Watts and Copeland, ii. 502 and Doe dem. Ducket, i. 50 and Doe dem. Martin, i. 96. 524 and Penley, i. 102 Waugh and Carnegie, i. 34 and Fitzmaurice, i. 34. Way and Goodtitle dem. Estwick, i. 583. 599. 601 ; ii. 548 and Wyndham, ii. 45 Weak dem. Taylor v. Escott, ii. 77 Weakly dem. Yea v. Bucknell, i. 582. 613 Weale v. Lower, i. 53. 57-8-9 Weare and Jerri tt, i. 20 ; ii. 312 Weatherall v. Gearing, i. 630. 632. 636; ii. 249. 252. 255. 265. 268. 274 Weaver and Ricketts, ii. 358 Web V. Paternoster, ii. 23 Webb V. Austin, i. 53. 57-8-9. 165. 174 V. Lugar, i. 767. 770. 778. 786 ajid Parker, ii. 164. 352. 354-5. 386. 402 V. Plummer, ii. 281, 518-19 CXIV TABLE OF CASES. Webb V. Rhodes, ii. 540 V. Russell, i. 124. 175. 788 ; ii. 87. 383. 386. 394-5. 415. 512 V. St. Lawrence, i. 44 Webber and Medley, ii. 141 atid iMully, ii. 141 and Parmenter, i. 1 1, 17. 18 ; ii. 83. 423 V. Smith, ii. 477. 482. 485-G Webster and Doe dem. Norton, i. 320. 331 and Howse, ii. 367-8 Weddall v. Capes, ii. 504. 507 Weeks and Eastcourt, i. 20. 27 Weisjall v. Waters, ii. 121. 124. 191-2. 2i5 Welbie v. Phillips, ii. 112 Welch and Frosel, i. 105 V. Myers, ii. 436 Welder atid Macdonell, ii. 55 Weldon and Macdonell, ii. 55 Welland a7id Balfour, i. 608. 727 Weller «»(? Doe dem. Collins, i. 96. 143. 410. 524 Wells a?id Bally, i. 24. 71-2 ; ii. 391. 392. 400. 402. 405-6. 410. 415 and Doe dem. Graves, ii. 495. 496 and Marsh, i. 767 V. Partridg, i. 105-6. 111-12 Welsh and Beck dem. Hawkins, i. 91 and Fowle, ii. 314 a7id Jackson, i. 764 Wenman and Bailes, i. 671 Wentworth v. Turner, i. 100 West, Ex parte, ii. 110 V. Blakcway, ii. 202. 277 ajtd Davis, ii. 477. 480-1, 485 a)id Freeman dem. Vernon, i. 450. 692-3 ; ii. 54 a7id Kidder, ii. 32 V. Lassels, ii. 132 "West Retford Church and Poor Lands, Mre., i. 324 Westcot and Childes, i. 140-1 Westerdell v. Dale, ii. 423 Western v. Pim, i. 638 V. Russell, i. 570 Westfaling v. Westfaling, i. 688 Westley awe? Claverinc;, ii. 164. 352. 415. 417 Westminster's (Dean and Chapter of) case, i. 77 ; ii. 52. 59. 60 Weston and Belfour, ii. 120-1. 183 rmrZ Ileatherley dem. Worth- ington, i. 131-2 Weston and Lutterol, i. 112. 594 and Mathewes, i. 105. 113 V. Pimm, i. 638 and Regina, i. 473 Westorne and Lutterel, i. 112 Westroray and Mathuris, ii. 387. 402 Westwood and Matures, ii. 387. 402 Wey V. Gaily, ii. 386 V. Yally, ii. 386 Whalley, Ex parte, i. 701 Whatman v. Gibson, ii. 238. 413 Wheadon v. Sugg, i. 683 ; ii. 49 Wheeler v. Baker, i. 10 V. Bramah, ii. 434-5. 438-9 ■- V. Branscombe, i. 169 and Bull, ii. 374 and Cmtis, i. 19. 102. 104 V. Danby, i. 287 .e, D'Esterre, i. 622. 691 V. Montefiore, i. 23 ■ r. Newton, i. 569 V. Thorogood, i. 22 V. Twogood, i. 23 Whelpdale and Throgmorton, ii. 496 Whetton and Matthews, i. 105. 113 Whichcott and Duckenfield, ii. 138 Whieldon and Blakesley, ii. 158 Whisson and Aveline, ii. 9 Whistler and Hide, ii. 42 V. Mainwaring, ii. 209 V. Paslowe, ii. 42 Whitbread v. Brockhurst, ii. 576 VVhitchcocke v. Fox, ii. 116-17. 269. 324. 468-9 and Fox, ii. 269. 324. 469 Whitchcot v. Fox, ii. 269. 324. 468. 469-70 Whitchot and Darrell, i. 704. 762. 764-5 Whitchurch v. Bevis, i. 572 • White a7id Ansfield, ii. 171 and Berry, i. 75. 379. 406. 436. 447. 452-3-4. 462-3-4. 493. 520. 522. 525 ; ii. 52 and Cole, i. 575 V. Cuyler, i. 391. 393 and Doe dem. Bedford, ii. 320 and Dunnage, i. 45 dem. Earl of Howth v. Pike, i. 489 V. Foljambe, i. 615-16 and Kerslake, ii. 34 and Maddon dem. Baker, i. 31 V. Nicholson, ii. 198 and Palmer, i. 575. 578 ?'. Small, i. 44 r. \Varner, ii. 224. 483 I TABLE OF CASES. cxv White V. White, i. 704. 770-1. 773. 774-5-6-7-8-9 and Winn, i. 59. 84 ; ii. 196 Whitehead v. Clifford, ii. 503 . a7id Doe dem. Bridger, ii. 221 V. Tattersall, ii. 215 Whitehouse mid Fawcett, i. 764 Whiteing and HoUis, i. 572 Whiteley and Attorney-General, i. 361 Whitewood and Mills, i. 375 and Willis, i. 375 ; ii. 506. 515 Whitfield V. Brandwood, ii. 174 V. How, i. 404 ; ii. 419 and How, i. 404. 406 ; ii. 419 and Lord Tankerville, i. 493 V. Pindar, ii. 141 V. Prickett, ii. 252 and Tankerville (Lord), i. 493 Whiting and Stone, ii. 503 Whitley v. Gough, ii. 507. 509 V. Roberts, i. 132 Whitlock and Chappel, i. 425-6 V. Chartwell, i. 127-8. 598. ii. 23. 51 V. Hartwell, i. 127-8. 598 ; ii. 23. 50 V. Horton, i. 127-8. 598 ; ii. 23. 51 Whitlock's case, i. 75. 124. 174. 247. 425-6. 443. 451. 456. 492-3. 520. 522 ; ii. 99. 397 Whitmore and Bowen, ii. 482-3-4 Whitney and Lilley, ii. 81 Whittington, Ex parte, ii. 442 Whitton V. Bye, ii. 97. 154 V. Peacock, i. 110; ii. 393. 395 Whitway v. Pinsent, i. 732 ; ii. 352. 354. 356 Whood and Hodgeskins, i. 21 and Hodgkinsonne, i. 21 Wickham v. Hawker, i. 423 Wigg and Fisher, ii. 78 V. Shuttleworth, ii. 180 and Wilson, ii. 352. 367. 369. 371. 374 Wiggins and Doe dem. Marlow, i. 9 ; ii. 15. 23. 566 Wigglesworth v. Dallison, ii. 518 Wigson v., Garret, i. 407 Wigzell and Francis, i. 48 Wikes and Jordan, i. 146 Wilberforce and Close, ii. 184. 430 Wilcock's case, i. 105. 113 Wilcox and Christy, ii. 416 Wildbor v. Rainforth, ii. 517 Wildey v. Cooper's Company, ii. 177 Wildman v. Wildman, i. 139 Wildridge v. McKane, ii. 377 Wilkes V. Jorden, i. 146 Wilkins v. Fry, ii. 5. 156. 367. 376. 396. 415. 428. 449. 452 Wilkinson v. Cawood, ii. 374 V. Colley, ii. 523-4 V. Hall, i. 131. 134. 175. 728-9 ; ii. 523-4 and Hartly, i. 579 and Lloyd, i. 309. 676 ; ii.51. 69. 71-2-3 V. Wilkinson, ii. 238 and Willet, i. 375 Wilkinson's case, i. 671 Wilks V. Back, i. 62. 391 ; ii. 16 WiUan V. WiUan, i. 708 Willand t\ Fenn, i. 367 Willet V. Wilkinson, i. 375 Williams, Ex parte, ii. 434. 441. 446 and Basset, ii. 64 t'.Bosanquetji. 22-3 ; ii. 375 423 V. Breedon, ii. 100 and Buckly, ii. 315 V. Burrell, ii. 285-6 V. Cheney, i. 636; ii. 237. 260 a}id Doe dem. David, ii. 497 a7id Doe dem. Jones, i. 164 V. Hayes, ii. 45 V. Hide, ii. 189 V. Jekyl, i. 688 and Llewelyn, ii. 54-5 V. Lougher, ii. 184. 360. 361-2 and Owen, i. 766. 768 V. Powell, ii. 140 and Price, i. 310 ; ii. 116. 540 and Rashleigh, ii. 315 and Rex, i. 538 V. Sawyer, ii. 505-6 and Smart, i. 164 and Smartle, i. 164 V. Walsby, i. 393 Williamson and Bromefield, ii. 427 and Gardiner, i. 27 ; ii. 86. 137 and Roe, i. 20 — a}id Rowe, i. 20 Willingham v. Joyce, i. 366. 629. 632. 634 CXVl TABLE OF CASES. Williot and Dove, ii. 60 Willis V. Jermin, i. 178. 184 ; ii. 328. 334 V. Jernegan, i. 44 V. Whitewood, i. 375 ; ii. 506. 515 Willouglibv and Baker, ii. 509 '- V. Foster, i. 309 ; ii. 29 Wilmot r. Corporation of Coventry, i. 180 and Newton, ii. 42 • and Reed, ii. 556 Wills, Ex parte, i. 170 V. Stradling, i. 572. 575-6-7. 579 Willson V. Leonard, ii. 184. 376. 430 Wilson V. Armorer, ii. 38 rt?i^ Attorney-General, i. 358 and Boot, ii. 433 V. Chisholm, i. 599 andDoe deni. Earl of Shrews- bury, i. 82. 414. 466. 471. 473. 480.605. 509. 511; ii. 342 dem. Eyre v. Carter, i. 73. 246 and Flood, ii. 543 and Foord, ii. 293. 297 and Harding, ii. 34-5 and Hastings, ii. 435-6 V. Hobday, ii. 371 and Hornidge, ii. 370. 373-4 and Jourdain, ii. 402 V. Pig, ii. 83. 95. 506 — V. Riche, i. 145 r. Sewell, i. 232. 343. 375. 522; ii. 509.511 V. Smith, ii. 552. 556 and Smith, ii. 206. 284 and Thomson, ii. 503 V. Wigg,ii. 352. 367. 369.371. 374 V. Woolfryes, i. 56 ; ii. 15 Wilston r. Pilkney, ii. 83. 95. 506 Winch and Coleman, ii. 364 Winchester (Bishop of) v. Wright, i. 24 Wind V. Jekyll, i. 2 Winder and Costard, i. 290 r. Fearnn, ii. 563 Windham and^ Noke, i. 29 Windham's (.Tustice) case, i. 69. 134; ii. 61. 68 Windier r. Fearon, ii. 56.3 Windsmoro r. IIo))art, i. 538. 683-4; ii. 49 V. Hubbard, i. .038. 684 ■/•. Hulbord, i. 684 Windsor and. Boroughs, ii. 257 r, Burry, ii. 257 Windsor (Dean and Chapter of) v. Gower, i. 71-2 and Hart, i. 614 ; ii. 183. 196. 28.5-6. 614 (Dean and Chapter of) v. Gower, i. 24. 71-2 Windsor's (Dean and Chapter of) case, ii. 184. 402 (Lord) case, i. 689 Wing V. Harris, i. 231-2 ; ii. 509 and Harris, ii. 509 Wingate and Costard, i. 290 Wingfield and Lord Tankerville, i. 506 Wingston and Fabian, ii. 338 Winn r. White, i. 59. 84 ; ii. 196 Winne r. Bampton, i. 177. 180. 789 and Coleman, ii. 364 Winscomb and Hoodie, ii. 344 Winslow V. Tighe, i. 733. 767. 786 Winsmore v. Hobart, i. 684. 686 and Lichden, ii. 513 Winston v. Pinkney, ii. 83. 95. 506 Winter and Bull, ii. 374 — ■ and London and Birmingham Railway Company, i. 180 r. Loveday, Lovedaz, Love- den, Loveder, Lovedore, or Lovedurr, i. 72. 246. 414. 416. 423-4. 432. 443. 451. 454. 461-2 and Regina, ii. 23 Winter's case, i. 74 ; ii. 85-6. 105. 130. 318. 333. 388. 391-2. 397 Winton and Bolls, i. 395 r. Pinkney, ii. 83. 95. 506 Wippell and Doe dem. Bryant, i. 132 Wise and Bishop of Oxford, ii. 172 and Harrington, i. 598. 599 ; ii. 87. 113 and Osborn, i. 24 Wiscot's case, i. 141 Wiseman and Bragg, ii. 285-6. 360 and Wallenger, ii. 392 and Warringer, ii. 392 Witchcot V. Nine, ii. 289 Wither v. Gibson, ii. 331 Withers v. Bircham, i. 134 and Burdett, ii. 196 aw(? Doe dem. Dy moke, ii.428. 518 ; ii. 207 . V. Casson, ii. 64 Withrington and Levett, ii. 288 Witton V. Bye, ii. 83. 154 Wivel r. IMshop of Chester, i. 307 Wivell's (Sir Marmaduke) case, i. 307 Wodry and Predyman, i. 231. 542 TABLE OF CASES. CXVll WollastouiJ.Hake\vill,i.l7.18;ii.83. 3G8-9. 375. 41(i Wollington and Mantle, i. 131-2 Woiveridge ??. Steward, i. 517 ; ii. 376. 428. 430 a«L TITLES. Xevile and Manning's Reports Nevile and PeiTy's Reports New Reports, (Bosanquet and Puller's,) Noy's Reports Owen's Reports Palmer's Reports Parker's Reports Peake's Nisi Prius Cases Peake's Additional Cases Peere Williams's Reports Perkins's Profitable 13ook Perry and Davison's Reports Phillips's Reports Plowden's Commentaries or Reports Pollexfen's Reports Popham's Reports Powell on Mortgages, by Coventiy Precedents in Chancery Preston on Abstracts Preston on Conveyancing Price's Reports Privilegia Londini Queen's Bench Reports, (Adolphus and Ellis's,) Raymond's (Lord) Reports Raymond's (Sir Thomas) Reports Real Property Reports Reeves's History of the English Law Reports in Chancery Reports tempore Finch Reports tempore Hardwicke, by West . Ridgeway's Parliamentary Cases • Ridgway, Lapp and Schoales, (King's Bench, Ireland,) • Rigge on Registration . Robinson on Gavelkind . Robinson and Maclean's Reports . Rolls of Parliament . Rolle's Reports . Rolle's Abridgment Roper's Law of Husband and Wife Rose's Reports . Russell's Reports Russell and Mylne's Reports Ryan and Moody's Reports Salkeld's Reports Sanders on Uses, by Sanders and Warner Saunders's Report.9 Saunders and Lawes's Reports, (Bail Court,) Sausse and Scully's Reports, (Rolls, Ireland,) Savile's Reports Sayer's Reports , Schoales and Lofroy's Reports, (Chancery, Ireland,) Scott's Reports Scott's New Reports Scriven on Copyholds Select Cases in Cliancerv ABBREVIATIONS, ETC. CXXXVll AflnUEVIATIONS. Selw. N. P. Shep. Touch. Shep. Touch, by Prest. Show. Show. P. C. Sim. Sim. & Stu. Skin. . Smith, Sra. & Bat. . Smythe, . Spelm. Glos. Stanf. Prerog. . Stark. Steph. Com. Stva. ... Sty Sugd. Pow. Sugd. Vend. & Purch. or, V. & P. Swanst. Taml. Taunt. Term Rep. . Tils, on Stamps, Times Newsp. Toll. Ex. . Toth. . Turn. & Russ. Tyrw. Tyrw. & Gra. Vaugh. Vent. Vei-n. . Vern. & Scriv. Ves Ves. Jun., for the first 2 Vols., and afterwards, Ves Ves. & B. Vin. Ab. . Wall, by Lyne, VVatk. Conv. \Vatk. Cop. West's App. Ca. . Wightw. . Willes Will. Wol. & Hodg. Wilm. . Wils. Wils. Ch. . Wils. Exch. Wils. on Reg. Winch, . Winch Entr. FULL TITLES. . Selwyn's Nisi Prius . Sheppard's Touchstone . Sheppard's Touchstone, by Preston • Shower's Reports . Shower's Parliamentary Cases . Simons's Reports . Simons and Stuart's Reports . Skinner's Reports . Smith's Reports . Smith and Batty's Reports, (King's Bench, Ireland,) • Smythe's Reports, (Common Pleas and Exchequer Chamber, Ireland,) . Spelman's Glossarium Archaiologicum • Stanford's Prerogatives of the Crown . Starkie's Reports • Stephen's Commentaries • Strange 's Reports . Styles's Reports . Sugden's (Sir Edward) Powers > Sugden's (Sir Edward) Vendors and Purchasers . Swanston's Reports . Tamlyn's Reports . Taunton's Reports . Term Reports, (Durnford and East,) . Tilsley on Stamps . Times Newspaper . Toller's Executors . Tothill's Reports . Turner and Russell's Reports . Tyrwhitt's Reports . Tyrwhitt and Granger's Reports . Vaughan's Reports . Ventris's Reports . Vernon's Reports . Vernon and Scriven's Reports, (Ireland,) .Vesey's Reports Vesey junior's Reports Vesey and Beames's Reports , Viner's Abridgment Wallis's Reports by Lyne, (Chancery, Ireland,) Watkins on Conveyancing Watkins on Copyholds West's Appeal Cases Wightwick's Reports Willes's Reports Willmore, Wollaston, and Hodges's Reports . Wilmot's Reports , Wilson's Reports, (King's Bench,) , Wilson's Reports, ^Chanceiy,) . Wilson's Reports, (Exchequer,) Wilson on Registration Winch's Reports Winch's Entries CXXXVIU ABBREVIATIONS, ETC. ABBREVIATIONS. Wing. Max. Woodd. Vin. Lect. Woodf. Landl. & Ten. or, L. & T., by Harr. . The abbreviation of the Year Books will be found in p. cxxix, sup. Yelv. Yo Yo. & Col. Exch. . Yo. & Col. Y. C. . Yo. & Jerv. FULL TITLES. .Wingate's Maxims .Wooddeson's Vinerian Lectures Woodfall's Landlord and Tenant, by Harrison Year Books .Yelverton's Reports .Younge's Reports .Younge and Collyer's Reports, (Exchequer,) .Younge and Collyer's Reports, (Vice Chancellor,) .Younge and Jei-vis's Reports ADDENDA. Vol. I. p. 9, note (c?),acM,Coochv.Goodman,2Q,.B.580.590; S.C.2Ga.&Dav,159. „ 58, „ (t), „ Gouldsworth v. Knights, 12 Mees. & Wei. 337. „ 96, „ (a), „ Story v. Johnson, 2 Yo. & Col. Exch. 586. 606. „ 174, line 31, after the words "in gross " add, "unless altered by 8 & 9 Vict, c, 106, as to which see Reddendum, Vol. JI. p. 98-9." „ 186 et seq. The act of 8 & 9 Vict. c. 99, should be read in connection with the division relating to leases by the Crown and its officers : — Sect. 1 enables the Commissioners of Woods, Forests, &c., to lease any portion of the shore of the sea, or of navigable rivers, or of lands derelict or gained from the sea, for any term not exceeding ninety- nine years, without taking a covenant for erecting buildings, where lessees shall engage to construct embankments or docks, &c. Sect. 2 enables the Commissioners to grant leases to per- sons who, in ignorance of title of Crown, have built on Crown lands, with reference only to the value of the land as building groimd. Sect. 3 confirms leases previously granted for building at different rents for different portions of the term, instead of at one uniform rent. Sect. 4 empowers the Commissioners to grant^future build- ing leases at different rents for different portions of the temi. Sect. 5 provides that license or waiver of forfeiture by Commissioners shall extend only to the particular breach, and not prevent proceeding for subse- quent breach. Sect. 6 enables the Conunissioners to accept surrender, and to gi'ant separate leases of hereditaments sui'- rendered, at apportioned rents. Sect. 7 provides that such surrenders shall be within 4 Geo. 2. c. 28, relating to the surrender of underleases. [As to which, see this Vol. p. 787]. Sect. 8 enables the Commissioners to reUeve tenants from forfeiture for non-insurance ; and to designate persons in whose names, instead of those of com- missioners, insurances are to be made. „ 318, note (;•), add, Simpson v. Ready, 12 Mccs. & Wcl. 736; S. C. 1 Dowl, &Lown. 1024. Cxl ADDENDA ET CORRIGENDA. Vol. II. p. 1 'J6, add the case of Payne v. Haine, or Hayne, relating to the constniction of a covenant to repair, (noticed in Vol. II. p. 196,) wliich has appeai'ed (Law Jour., Exch. PI, H. T. 1847 ; Law Times, Vol. VIII. pp. 123. 414,) during the progress of these sheets tlirough the pi'ess. The tenant agreed, at the expiration of the tenancy, to deliver up the premises in good repair, order, and condition. Baron Piatt, who tried the cause, directed the jm-y to consider the state of the premises when the tenant came into possession, and stated that it was sufficient for liim to leave them in as good condition as he found them ; but a rule nisi for a new tinal was afterwards made absolute ; Baron Aldersou observing, that, in Stanley v. Towgood, the rule laid down is, that you ai'e not to take into consideration the con- dition of the premises at the time of the demise, but only the class of the premises, as, for instance, whether it is an old or a new house. The leai-ned Baron adjuiitted that it is a rule very difficult in application. CORRIGENDA. Vol. I. p. xxxiv, line 8,/o7- "premises" read " premiums." „ 27, note (y), for « Chap. VIII.," read " Chap. IX." „ 238, line 9, for " would," read " could." „ 312, „ 26,/or"V."?'ead«IV." „ 590, note (J), dele « infra." „ 655, „ (w), in 2 Dick, dele " 2." Vol. II. p. 197, note {f),for « 1 Co. & Dav.," read " 1 Ga. & Dav." „ 329, „ (x),for « Walton, 6 Bing. N. C," read « Watson, 4 Bing. I^.C „ 333, „ (r),/or « Roe dem.Chandless," reacZ "Doc deui. Chandless." „ ; 662, „ (/),/o?'«p. 647," read" p. 550." \' A TREATISE ON THE LAW OF LEASES. INTRODUCTORY REMARKS. i GLANCE at tlie early history of tenures discloses many important features of distinction between the ancient and present condition of a lessee for years ; and it is interesting, if not instructive, to trace the gradual amehoration of his state, and the steps by which his existing rights and privoleges have been developed and secured. The period when terms of years were first granted can scarcely be fixed with certainty; but, if unknown to the Anglo-Saxons, there is eveiy reason to believe that they were of common occurrence for some time anterior to the reign of Edward the First; as the statute of 6 Edward 1. c. 11 («), refers to a letting for a term of years apparently as an ordi- nary event ; and the statute De Viris Religiosis {b) imposed (a) The term in the Act, si home Tomlins, " if a man Uase his tenement haul sun tenement a terme de anuz, is for term of years." translated, as well in the Statutes of the (b) 7 Edw. 1. Stat. 2. c. 1. "Quo. Jae. 6(». Wheeler r. Part I.] PROPERTIES OF A LEASE. 23 lessor {o), nor will it qualify the owner to maintain an action of trespass (j'j), or ejectment (g). Even a lessee by bargain and sale under tlie statute of uses cannot maintain trespass till entry (r) . The lessee may enter notwithstanding the death of the lessor during the term, whether he, the lessor, be sole or joint tenant (*). After the lessee's entry, the deed becomes available from the time of its execution (/), and the lessee the absolute owner of the premises for the term granted (?<). The lessee's entry, however, in the case of a lease for years, is not necessary to entitle the lessor to sue for rent; as rent becomes due by the lease, and not by the entry; and, there- fore, he need not aver occupation; but it is otherwise in the case of a lease at Avill, where the rent is only due in respect of occupation {x) . We now proceed to consider the lease with reference to the subjects of demise. ThorogoodjCro. Eliz. 127 ; S.C.,uora. Barker v. Keat, 2 Mod. 249. 251. Wheeler v. Twogood, 1 Leon. 118. Geary v. Beareroft, Cart. 57. 66. Bruertou t\ Rainsford, Cro. Eliz. 15. (s) Lit. s. 66. Copelaud r. Stephens, Copeland v. Stephens, sup. 1 Barn. & Aid. 593. 606. (o) Saffyn's case, sup. Lit. s. 459. (t) Copeland v. Stephens, sup. Co. Lit. 46, b. 270, a. (w) Raine v. Alderson, 6 Scott, 691. (p) Plowd 133, cites 22 E. 4. 13. 699 ; S. C. 4 Bing. N. C. 702 ; 1 Am. 14. Bro. Trespass, 365. 5 Mod. 384. 329. And see Plowd. 142. 37 H. 6. 18, a. (x) Rushden's case, 1 Dy. 4, b., Saffyn's case, or SafFyii v. Adams, sup. cites 18 H. 6. 1. A. Bellasis r. Bur- Wheeler V. Montefiore, 2 Q. B. 133. brick, or Burbriche, Holt, 199; 1 Salk. 142; S. C. 1 Ga. & Dav. 493. Doe 209 ; 1 Ld.Raym. 170. Anon., 1 Vent, dem. Parsley t;. Day, 2 Q,. B. 147.156; 41. Anon., 4 Leon. 17. 18. Jeakill S. C. 2 Ga. & Dav. 757. v. Linne, Hetl. 54. Anon., Dal. 44. (5) Saffyn's case, or Saffyn t'. Adams, pi. 30. Williams v. Bosanquet, 1 sup. Brod. & Bing. 238. 257 ; S. C. 3 J. B. (?•) Lutwich V. Mitton, Cro. Jac. 604. Mo. 500. ^att tijt ^tton'O. OF THE SUBJECTS OF DEMISE. nnHE subjects of demise are various^ and, generally speaking, comprehend incorporeal as well as corporeal heredita- ments (a) . Thus, not only land, but advowsons {b), corodies (c), estovers {d), ferries (e), fisheries (/), franchises [ff), rights of common {h), rights of herbage (i), rights of Avay {k), tithes (/), tolls (m), and other things of a similar kind, may be leased for lives or years. (a) Shep. Touch. -268. (6) Anon., 3 Dy. 323, b. pi. (30). ('■) Bro. Ab. tit. Leases, 40. Bacon on Leases, 8. (d) Ibid. (e) Ilex V. Nicholson, 12 East, 330. Peter v. Kendal, b" Barn. & Cres. 703. (/) The Bishop of Winchester v. Wright, 2 Ld. Raym. 105C. The Duke of Souiorsct V. FogwcU, 5 Barn. & Cres. 875 ; S. C. « Dow. & Ry. 747. ([/) The Duke of Somerset v. Fog- vveLl, sup. (/(.) Sury V. Brown, Latch, .99. (i) Tottel V. Howell, Noy, 54. 17 E. 4. G. Sury v. Brown, sup. Ilill v. Barry, Hay. & Jo. 088. (k) Newniarch v. Brandli ng, 3 Swanst. ;*!). Osl)orn v. Wise, 7 Car.& Pa. 761. (0 Bally V. Wells, Wilm. 341; S.C. 3 WiJH. 25. The Dean and Chapter of Wind.sor f. (Jover, 2 Saund. 302. Houhiicr ('. Morf;aii, 2 Anstr. 404. Hrewcr y. Hill, 2 Anstr. 413. Cox v. Brain, 3 Taunt. 95. And see 6 & 7 W. 4. c. 71, An Act for commutation of tithes, in England and Wales, by the 88th section of which the lessee in occupation of tithes commuted under the act is empowered to smTender and make void his lease, so far as it may relate to the tithes ; and the commis- sionei's arc empowered to du*ect what compensation shall be given to the im- mediate lessor, and what allowances shall be made by the lessee, in consi- deration of the nonfuliilment of any conditions contained in the lease, and what deductions shall be made from the rent thenceforth payable in respect of the hereditameuts included in the lease. (»i) Oldroyd v, Cramptou, 4 Bing. N. C. 24. Bridgland v. Shaptei", 5 Mees. & Wei. 375. Harris v. Mor- ricc, 10 Mees. & Wei. 260. Walker V. Richardson, 2 Mees. & Wei. 882. Tart. 11. J OK THE SUBJECTS OF DEMISE. 25 A demise of minerals before they are woii is a demise of the realty (w). Offices merely ministerial are also subjects of demise ; and our early reports give examples of leases of the office of printing (o), of post-master (/>), of rcgistership of policies of assurance in London (70. And see Baylis v. Dincley, 3 infants' estates where it appeared to be Mau. &. Selw. 477. 481. for their good. On reference, how- (m) In 1 Eq. Ca. Ab. 280. jil. 1, ever, to Vernon, I cannot find the marg., Lord Holt is stated to have proposition. Cecil?-. Salisbury, 2 Vern. HJiid ill his argument of the case of 224-.'), is, without doubt, the case in- Lord Falkland v. Bertie, 2 Vcrn. M2, tended. that the Oturt of C'liancery would de- Ch. I. S. 1.] WHO MAY BE LESSORS : INFANTS. 31 an infant covild not avoid a lease which was for his own benefit, freely owned himself of the same opinion {n) . " Lord Mansfield/' said he, "in the case of Drury v. Dniry(o), laid it down as a general principle, that if an agreement be for the benefit of an infant it shall bind him; and Lord Hard- wicke afterwards adopted this rule." But, notwithstanding Mr. Justice Buller's remarks, it seems to be the prevailing opinion of the profession that the infant is never precluded from disputing the lease on attaining twenty-one {p) ; an opinion fortified by the fact of the lessee's inability to avoid the lease in any case on account of the infancy of the lessor (9), and the inadmissibility of the infant's plea of non est fac- tum {r). Notwithstanding a passage to the contrary in Coke {s), it appears that an infant's lease for life or Kves made by feofi:'- ment and personal livery of seisin, whether containing a reservation of rent or not, or beneficial or disadvantageous to him, is voidable only (/). The infant may enter during his infancy to revest his possessory right for the sake of the profits, and elect to confirm the feofiinent on attaining his majority (m). A lease by livery derived through the medium of a power of attorney given by an infant is inoperative {x). (w) Maddon dem. Baker v. White, Blac. 515. These cases wei^e prior to 2 Term Rep. 159. 161. the late rule of court, Hil. Term, (o) 5 Bro. P. C. 570 ; Toml. Ed. 4 W. 4., 5 Barn. & Adol. viii., which vol. 3, p. 492, being the case of the Earl declares that the plea of non est of Buckingham v. Diiiry. factum shall operate as a denial of the {p) 2 Prest. Couv. 248. execution of the deed in point of fact {{/) Forester's case, 1 Sid. 42 ; S. C. only ; and that it can only be impeached 1 Keb. 1 . Davies v. Manington, 2 Sid. by a special plea setting forth the cause 109. Smith, or Smyth, v. Bowen, or ofinvahdity. Bowin, 1 Mod. 25 ; S. C. 1 Vent. 51 ; (g) Co. Lit. 273, a.; but see Lit. s. 2 Keb. 581. Zouch dem. Abbot v. 547. Co. Lit. 45, b. 308, a. Parsons, 3 Bm-r. 180G. And see (t) Lane v. Cowper, Mo. 105, 7th Shannon ^\ Bradstreet, 1 Scho. & Lef. point. Zouch dem. Abbot r. Parsons, 58. Farneham v. Atkms, 1 Sid. 446. 3 Burr. 1808. Perk. s. 12. Haw V. Ogle, 4 Taunt. 10. (it) Zouch dem. Abbot v. Parsons, (r) 5 Co.- 119, a. Cro. EUz. 127. sup. Thompson r. Leach, Holt, 357. Poph. (a;) 3 Burr. 1804. Diamond r. Bel- 178. Zouch dem. Abbot ?•. Parsons, 3 lamy, Bendl. 137, the first page of that Burr. 1805. Keane v. Boycott, 2 H. number: the paging throughout the 32 OF THE CONTRACTING PARTIES. [Part III. One of the consequences of the lease being voidable is, that it may be confirmed after the infant has attained his age of twenty-one(i/). The act of confirmation may be by deed (2"), by parol (a), or inferred from conduct, acceptance of rent for instance {b). In a case before Lord Hardwicke (c), a party had devised some land and houses built thereon to his six children, the mother, acting as guardian to the chil- dren, who were all infants, demised the premises on a building lease for forty-one years; her eldest son, who was about nineteen years of age, joined with her in making the lease, and covenanted that the lessee should have quiet enjoyment, and that the rest of the children, when of age, should confirm the lease ; the children all arrived at age, and accepted the rent for above ten years after the youngest came of age ; and after such acceptance brought an ejectment against the lessee ; who filed his bill to have the lease established. The lease being clearly a beneficial one for the infants, a decree was made to establish it during the residue of the term ; and the Lord Chancellor ordered that the plaintiff should have his costs at law and in equity, considering that it was against conscience to bring an ejectment after these transactions. So if a party takes a lease of an infant's lands, and the infant, on coming of age, mortgages the property to the lessee by deed referring to the lease, this will amount to a confir- mation (c?). And slighter circumstances such as the words of congratulation "God give you joy of your lease"(e), have been held equally efficacious. The privilege of avoiding or confirming the lease is exer- cisable by the lessor, or his heirs in case of his death during volume is very faulty. Combos's case, S. C. Latch, 199 ; Godb. 364; Noy, 92 ; 9 Co. 76, b. Pigot v. Garnish, Cro. Bendl. Iff!?. And see Smith v. Low, 1 Eliz. 678. 734. Thompson r. Leach, Atk.4a9. Hamilton t'. Cardross, 8 Bro. Holt, 357. Humphreston's case, 2 P. C, Index, p. 3.59, tit. • 'onfirmation, Leon. 218. . Toml. ed. (y) Lit. s. .547. Baylis v. Dineley, (c) Smith v. Low, 3 Atk. 489. 3 Man. & Sclw. 477. 481. (d) Story v. Johnson, 2 Yo. & Col. (i) Anon. 2 Leon. 220-L Exch. .587. 607. (fi) 4 Leon. 4. pi. 1.5. (c) 4 Leon. 4. pi. 15. (//) Ashficld r. Ashficld, W. ,Jo. 157; Ch. 1. s. I.] WHO MAY BE LESSOllS: INFANTS. 33 infancy, but not by strangers ; and, if avoided, it is annulled ab initio (/). An infant's lease cannot operate by way of estoppel, for estoppels must be mutual (y). In some places, where the common law yields to the influ- ence of particular custom, a person seised of lands holden in socage may at the age of fifteen grant an unavoidable lease (h) . If an infant of that age can grant a lease of gavelkind lands descended to him, which is not clear, it must be for a free- liold interest, the custom requiring a feoffment, and livery propria manu (i) . The Crown, being unaffected by the strict rules of the com- mon law, cannot avail itself of a plea of infancy to avoid its lease {k) ; for, as Bacon observes (/), the politic rules of go- vernment have thought it necessary that he Avho is to govern and manage the whole kingdom should never be considered as a minor, incapable of governing himself and liis own affairs. In like manner, it has been held that a lease made by an infant parson, and confirmed by the patron and ordinary, was perfectly valid; for, having, though improperly, been instituted and inducted, he was rightful parson till deprived, and as competent to act in his corporate capacity as a person of full age {m). Where the tutors and curators of an infant, in the name and on behalf of the infant, executed a tack of a salmon (/) 3 Burr. 1805. {k) Case of the Duchy of Lancaster, {g) James v. Landon, Cro. EHz. 37. Plowd. 212 ; S. C. 2 Dy. 20.0, b. pi. 22. Smith V. Low, 1 Atk. 489. And see Jenk. Cent. 224, case, 84. Bro. Ab. post, p. 52, et seq., as to Estoppels. tit. Age, pi. 34. Alcock v. Cooke, 5 (h) Co. Lit. 45, b. 21 E. 4. 24, pi. Bing. 340 ; S. C. 2 Mo. & Pa. 625. 10. Combes's case, 9 Co. 76, b. (?) Bacon on Leases, 12. {i) Robins. Gav. 280, cites Co. Copyh. (m) Bro. Ab. tit. Age, pi. 34. 64.80, s. 33. Seep.65. of Hawkins's Ed. 1764. 3 Bac. Ab. 367. Now, however, in the This privilege is expressly excepted Church of England a candidate must from the late Act of 8 & 9 Vict. c. 106, be twenty-three years of age before he which enacts, s. 3, that a feoffment made can be ordained deacon, or have any after the 1st of Octr. 1845, other than share in the ministry ; and full twenty- a feoffment made under a custom by an four before he can be ordained priest, infant, shall be void at law, unless evi- and permitted to administer the com- denced by deed. munion. VOL. I. D 34 OF THE CONTRACTING PARTIES. [Part III. fishery in Scotland to another, and thereby bound and obhged the infant to warrant peaceable possession to the lessee, and the lessee bound and obliged himself to pay the rent to the infant, it was held that the infant might main- tain an action of debt in his own name for arrears of rent, although he was no party to the tack, nor was it proved that he had attained his majority {n). /. t^ /^^A,*^ The probabilities of future litigation on this branch of our tc.^.C/i.vrii. /^i. subject are greatly diminished by a late act of parliament (o), entitled "An Act for consohdating and amending the laws relating to property belonging to infants, femes covert, idiots, lunatics, and persons of unsound mind," the 17th section of which provides, that, where any person being an infant under the age of 21 years is or shallbe seised or possessed of or entitled to any land in fee or in tail, or to any leasehold land for an absolute interest, and it shall appear to the Court of Chan- cery to be for the benefit of such person that a lease or underlease should be made of such estates for terms of years, for encouraging the erection of buildings thereon, or for re- pairing buildings actually being thereon, or the working of mines, or otherwise improving the same, or for farming or other purposes, it shall be lawful for such infant, or his guar- dian in the name of such infant, by the direction of the Court of Chancery, to be signified by an order to be made in a sum- mary Avay upon the petition of such infant or his guardian, to make such lease of the land of sucli persons respectively, or any part thereof, according to his or her interest therein respectively, and to the nature of the tenure of such estates respectively, for such term or terms of years, and subject to such rent and covenants, as the said Court of Chancery shall direct (/v) ; but that in no such case shall any fine or premium be taken; and that in every such case the best rent that can be obtained, regard being had to the nature of the lease, shall be (w) Carnegie v. Waugli, 2 Dow. & (^)) The; Court Jictod undei* this Ry. '277. Fitzmaurice v. Waiigli, 3 provision in Harris r. Davis, 1 Holt's Dow. & Ry. -ir.S. Eq. Rep. 2.'t4. (o) 11 (!eo. \. »i I W. I. C-. i;.'). Ch. I. s. I.] WHO MAY BE LESSORS: INFANTS. 35 reserved upon such lease ; and tliat the leases and covenants and provisions therein shall be settled and approved of by a Master of the said Court; and that a counterpart of every such lease shall be executed by the lessee or lessees therein to be named ; and that such counterparts shall be deposited for safe custody in the Master's office until such infant shall attain twenty-one; but with liberty to proper parties to have the use thereof, if requii-ed, in the meantime, for the purpose of enforcing any of the covenants therein contained; provided that no lease be made of the capital mansion house and the park and grounds respectively held therewith for any period exceeding the minority of any such infant."' The 31st section provides, " that every surrender, and lease, assignment, conveyance, or other disposition, respectively granted and accepted, executed and made, by \drtue of this act, shall be and be deemed as valid and effectiial to all intents and purposes as if the person by whom, or in whose place, or on whose behalf, the same respectively shall be granted or accepted, executed and made, had been of full age, and had granted, accepted, made, and executed the same." By the 36th section, the powers and authorities given by the act to the Court of Chancery in England are extended to all land mthin any of the dominions, plantations, and colonies, belonging to her Majesty, except Scotland. The pro\dsions of the act relative to the renewal of leases where the reversioner is an infant will be found in a futiu'e chapter. Until this statute was passed, the Court could not grant leases to bind an infant after his infancy {q) ; and although in Cecil V. Sahsbury (r), we find it said, that building leases lor sixty years of infants' estates, where for their benefit, had often been decreed, yet it does not appear that that case ha? been followed in practice. (7) Sutton V. Jones ; Jones v. Sutton, 15 Vcs. 584. 588. (r) Cecil v. Salisbury, 2 Vcrn. •2"24-5. n 2 86 OF THE CONTRACTING PARTIES. [Part III. In a case decided before the enactment, where an estate was settled on A, for life, with remainder to B., an infant, the A^ice Chancellor refused a motion, at the instance of the receiver in the cause, for a reference to the Master to inquire whether it would be beneficial to the parties in the suit that the receiver should make leases of the premises, the object of it being to enable the receiver to make leases which would bind the infant remainder-man, saying, that he recollected no in- stance in which the Com't had assumed such a jurisdiction (s) . In the matter of Evans {t), a case affecting the construction of the 17th section of the Act, the petitioners were five infant sisters, upon whom had descended certain estates, of which their brother William, an infant of the age of seven years on the 14th of June, 1833, died seised in fee, leaving his father and mother living ; and it was held that, as the infant peti- tioners had not then an indefeasible estate of inheritance, their estate being liable to be defeated by the birth of a son, or affected by the bii'th of a daughter or daughters of the father and mother, they were not seised of or entitled to the land in fee within the meaning of the Act, although they might ultimately acquire such an estate {u). We may add, that, upon the administration of the real property of an infant, the Court wiU not delegate to the Master the power of appro^dng leases of the estate : the order will be for him to receive proposals for leases, and to report his opinion upon the same to the Court {x). Leases by guardians will be discussed hereafter (y). (s) Gibbins r. Howell, 3 Madd. 469. act provides, that it shall not extend (t) Mrc Evans, "2 Myl. & K. 318. to any descent taking place on the (m) But now, as by 3 & 4 W. 4. death of any person before the 1st of c. 106. s. 6, evei'y lineal ancestor is Janu.ary, 1834. rendered capable of being heir to any (.'/•) Synions ik Sj-mons, 2 Yo. & Col. of his issue, in preference to collateral Exch. 1. y>tT8ons claiming through him, the (.?/) Post, Sect. IV. Who may be land would, in tiic case cited, ascend lessors with reference to office. to the father. The 1 1th section of the Cll. I. s. I.] AVHO MAY UK LKSSOKS : LUNATICS, ETC. 37 II. — Persons of unsound mind, and their Cunimiitees. It was formerly held tliat every lease made by a person lion compos mentis was voidable only [a) ; but a later decision {h), establishing a distinction between a lease for years, and one granted for a freehold interest, declares the former to be absolutely void ; and, in consequence of the relaxation of the ancient rule which prohibited a person from stultifying or blemishing himself (c), the grantor of a chattel lease might, when sane, till lately plead non est factum, and give the lunacy or idiotcy in evidence {d). Now, hoAvever, he can only impeach it by a special plea setting forth the cause of invalidity, the plea of no7i est factum operating as a denial of the execution of the deed in point of fact only (e). A freehold lease made by feoffment by a person non compos mentis in person is voidable only, on account of the solemnity and notoriety of the transfer by livery of seisin (/) ; and may be set aside by his heir {g), or, after office found that the lessor was an idiot a nativitate, by the Crown (h) . If livery be made in pursuance of a letter of attorney, the demise cannot be supported (i). A lease made during a lucid interval is not impeachable on the ground of previous or subsequent insanity {k). The committee of a lunatic, being considered merely as a (a) Beverley's case, 4 Co. 123, b. Baxter v. Earl of Portsmouth, 5 Barn. Co. Lit. 247, a. & Cres. 170. Browne v. Joddi-ell, 1 (6) Thompsons. Leach, 3 Mod. 301; Mood. & Malk. 105. Levy v. Baker, S. C. 12 Mod. 173 ; Com. 45 ; Comb. 1 Mood. & Malk. 106, n. 438. 468 ; Holt, 357 ; Carth. 435 ; 1 (e) Reg. Gen. Hil. Term, 4 W. 4. Ld. Raym. 313 ; 2 Salk. 675 ; 3 Salk. 5 Barn. & Adol. p. viii. And see Gore 300 ; 1 Eq. Ca. Ab. 278, pi. 3 ; Show. v. Gibson, 13 Mees. & Wei. 623—6. P. C. 150. (/) Thompson v. Leach, sup. (c) Ibid. Beverley's case, sup. (//) Beverley's case, sup. Stroud V. Marshall, Cro. Eliz. 398, and (A) Ibid. 2 Bla. Com.i291, where the progress (i) Show. P. C. 153. 3 Mod. 304. of this notion is traced. {k) 1 Dow, P. C. 177-8. Owen v. [d) Yates v. Boen, 2 Stra. 1104 ; Davis, 1 Yes. 82. Pegge v. Skinner, and see Faulder v. Silk, 3 Campb. 12(). 1 Cox, 23. 38 OF THE CONTRACTING PARTIES. [Part III. bailiflF, and having an estate but during pleasure^ could never make leases of the lunatic^s lands without special order of the Court of Chancery (/) ; nor could that Coiu-t, unaided by the Legislature, enable him to grant an absolute interest ; for the lunatic, on his recovery, might eject the lessee {m) ; and even such interest as it could confer was never recognised as a legal as distinguished from an equitable estate (n). The statutes 29 Geo. 2. c. 31, and 11 Geo. 3. c. 20 (o), being confined to leases on renewals, afforded but a partial remedy for the evil ; and it was not until the 43rd year of the reign of King George the 3rd (p), that the Lord Chancellor could direct the committee to make a demise for years independent, in point of duration, of the lunatic^s restoration to sanity. The late act ((/), by which these statutes have been repealed, has in- corporated and consolidated their various provisions, and enacted (r), that where any person being lunatic is or shall be seised or possessed of any land either for life or for some other estate, with power of granting leases and taking fines, reserving small rents on such leases, for one, two, or three lives in possession or reversion, or for some number of years deter- minable upon lives, or for any term of years absolutely, such poAver of leasing, which is or shall be vested in such person being lunatic, and lia^dng a limited estate only, shall and may be executed by the committee of the estate of such person, under the direction and order of the Lord Chancellor, entrusted by virtue of the King's sign manual with the care and com- mitment of the custody of the persons and estates of persons fourul idiot, lunatic, or of unsound mind. Til is superintending authority was originally conferred on (I) Cocks V. Darson, Hob. 215. & 1 W. 4. c. 65, in which thcii- provi- Anon., semb. S. C, Ilutt. 16. Foster sions are incorporated. V. Marchant, 1 Vern. 262 ; S. C. 1 E) -IS Geo. 3. c. 75, s. 4, repealed Ca. Ab.277. pi. 4 ; 326, pi. 13. Knipe hy 11 Geo. 4 & 1 W. 4, in which its ('. Palmer, 2 Wils. 130. provisions arc incoi'porated. (/«) Kx parte Dikes, 8 Ves. TJ. (q) 1 1 Geo. 4 & 1 W. 4. c. 65. (>^) Knipe r. Palmer, 2 Wils. 130. (/•) Sect. 23. {<>) Botli since I'epcaled by 1 1 Geo. 4. Cli. I. s. I.] WHO MAY BE LESSOKtJ : LUNATICS, ETC. 39 the Lord Chancellor in 1808 (s), previously to which time the committee could not execute the lunatic's power (^). If the consent in ^mting of a person who afterwards be- comes a lunatic be required to the valid execution of a power of leasing given to another, the court will not delegate the privilege of consenting to the committee (m). By section 24 of the late Act {x), it is provided, that where any person being lunatic is or shall be seised or possessed of or entitled to any land in fee or in tail, or to any leasehold land for an absolute interest, and it shall appear to the Lord Chancellor entrusted as aforesaid to be for the benefit of such person that a lease or underlease should be made of such estates for terms of years for encouraging the erection of buildings therein, or for repairing buildings actually being thereon, or otherwise impro\dng the same, or for farming or other purposes, it shall be lawful for the Lord Chancellor en- trusted as aforesaid to order and direct the committee of the estate of such lunatic to make such lease of the land of such persons respectively, or any part thereof, according to his or her interest therein respectively, and to the nature of the tenui'e of such estates respectively, for such term or terms of years, and subject to such rents and covenants, as the Lord Chancellor entrusted as aforesaid shall dii*ect. By section 27, That when any person Avho shall have con- tracted to let any land shall afterwards become lunatic, and a specific performance of such contract, either wholly, or so far as the same shall remain to be performed, shall have been decreed by the Court of Chancery, either before or after such lunacy, it shall be lawful for the committee of the estate of such lunatic, in the place of such lunatic, by the direction of the Lord Chancellor entrusted as aforesaid, to be signified by an order to be made on the petition of the plaintiff or any of the plaintiffs in such suit, to convey such land, in pursuance (s) By 43 Geo. 3. c. 75. s. 3. (u) Ex parte Smyth ; Mre Smyth, 2 (t) Ex parte The Committee of Lord Swanst. 393. Bradford, Ca. temp. Hardw. by West, (x) 1 1 Geo. 4 & 1 W. 4. c. 65. 133. 40 OF THE CONTRACTING PARTIES. [Part III. of such decree^ to such person and in such manner as the said Lord Chancellor entrusted as aforesaid shall direct; and that the purchase money or so much thereof as remains unpaid^ shall be paid to the committee of such lunatic. By section 31, That every surrender and lease granted and accepted, executed and made, by virtue of the act shall be deemed as valid and legal as if the person by whom, or in whose place, or on whose behalf, the same respectively shall be granted or accepted, executed and made, had been of full age, unmarried, or of sane mind, and had granted, accepted, made, and executed the same; and that every such surrender and lease respectively made and accepted by or on the behalf of a feme covert shall be valid without any fine (y) being levied by her. By section 36, That the powers and authorities given by the act to the Court of Chancery in England shall extend to laud within any of the dominions, plantations, and colonies, belonging to the CroAvn, except Scotland. By section 38, That the powers and authorities given by the act to the Courts of Chancery and Exchequer in England shall and may be exercised in like manner and are thereby given to the Courts of Chancery and Exchequer in Ireland, with respect to land in Ireland. By section 39, That the powers and authorities given by tlie act to the Lord Chancellor of Great Britain entrusted as aforesaid shall extend to all land within any of the dominions plantations and colonies belonging to the Crown, except Scotland and Ireland. By section 42, That the powers and authorities given by tlie act to the Lord Chancellor of Great Britain entrusted as aforesaid shall and may be exercised in like manner by and are thereby given to the Lord Keeper or Commissioners of tlic Great Seal of Great Britain for the time being entrusted as aforesaid. ('/) I'iiif.s liavo been abolislicd by the Act of 3 & 4 W. 4. c. 74, and muie Biinjilu niodcti of ubburuiicc biibstituted. C'h. I. s. I.J WHO MAY BE LESSORS : LUNATICS, ETC. 41 And by the second section, The provisions of the act relating to a lunatic are declared to extend to and include any idiot or person of unsound mind, or incapable of manag- ing his affairs, unless there be something in the subject or context repugnant to such construction. It was formerly the practice of the court to refer it to a Master to consider and report whether it would be for the benefit of the lunatic to make a lease; and, if it would, the committee received directions for that purpose {z), the committee paying the expenses of the inquiry, to be allowed on passing his accounts; and the lessee, the expenses of the lease (a). But by a recent Act of Parliament (6), after noticing the expediency of altering and amending the practice and course of proceeding under commissions in the natm'c of writs de lunatico inquirendo, the Lord Chancellor [c) was empowered (f/), to appoint two persons to be "The Commis- sioners in Lunacy" (e), and it was declared and enacted (/) that it should be lawful for the Lord Chancellor to order and direct that any of the inquiries and matters connected with the persons and estates of lunatics usually referred to the Masters in ordinary of the High Com-t of Chancery, should be referred to such commissioners, or one of them. And the Lord Chancellor was empowered (^) from time to time to make such orders as to him should seem fit and proper for regulating the form and mode of proceeding before and by the said commissioners, and the practice in matters of lunacy. In pursuance whereof. Lord Lyndhurst, C, has ordered (A) (3) Knipe v. Palmer, 2 Wils. 131. persons fovuid idiot, lunatic, or of un- (a) Ex parte Prickett; Mre The sound mind ; Sect. 17. Duchess of Norfolk, 3 Swanst. 130. {d) Sect. 1. Qj) 5 & 6 Vict c. 84. (e) Now called " Masters in Lu- (c) The words "Lord Chancellor" nacy," 8 & 9 Vict. c. 100, s. 2 ; and include the Lord Keeper or Lords they are mvested with all necessary Commissioners for the Custody of the powers of uiquiry by sect. 96. Great Seal, or other the person or (f) Sect. 3. persons for the time being entrusted (^) Sect. 7. by virtue of the Queen's sign manual (/t) See Orders of 27 Octr., 1842, with the care and commitment of the No. 2. 3 Beav. Ixix. custody of the persons and estates of 42 OF THE CONTRACTING PARTIES, [Part III, that all the inquiries and matters connected with the persons and estates of lunatics theretofore usually referred to the Masters in ordinary of the High Court of Chancery (except inquiries under or by virtue of the Act of 1 W. 4, c, 60 {i), and except where the Lord Chancellor shall from time to time otherwise specially direct), shall be hereafter referred to the Commissioners (now Masters) in lunacy for the time being. And (j) that the Commissioner (now Master) shall be at liberty, without special order, to receive any proposal or conduct any inquiry as to managing, setting, or letting the estate, or otherwise respecting the person or property of any lunatic, and may report thereon as he shall see fit ; but that such report shall be submitted for confirmation as was then done with respect to such reports when made upon special reference. It would appear, however, that the report will not always be adopted because no one objects to its confirmation. In a late case(^), decided before the passing of the act of 5 & 6 Vict. c. 84, the Master having reported that it was expedient to grant building leases for nine hundred and ninety-nine years of part of the luiiatic^s estate, the Lord Chancellor, on a petition to confirm the report, although no party opposed it, refused to make the order, and directed the Master to review his report. AppUcation was lately (/) made to the Lord Chancellor to sanction a lease by the committee of a lunatic tenant in tail for an absolute term of twenty-one years ; and it was con- tended, that, as by the 24th section of 1 W. 4. c. 65, the Lord Chancellor might direct the committee to make such leases of the lands of the lunatic according to his interest therein, and the nature of the tenure of the estate, and for (/) Entitled " An Act for amending certain cases." the laws respecting coHveyanccs and (j) No. 1 3 of Orders, sup. transfers of estates an. Turnor, Mo. (m) Co. Lit. 42, b. Shultcr'.s case, 14 fi; S. C.,iiom. Tlioroughgocxl c. Cole, 12 Co. ftl), a. 1 AikI. 12.'). See also Aiiou. Skin. 1.5.9. (n) Hliot'H ease, Cart. .5;i. Perk. 3.25. {p) Co. Lit. 42, b. Perk, s. 25. {<>) Simlter's case, 8up. Aiul see Toiig v. Saiit, 1 Dy. .')6, a., anrl note MariKcr's cnw, 2 Co. :?, a.; S. C. Mo. (K'.), Vaillaiit's ed., I7!)4. Com. Dig. )H2. Throughgood'H cane, 2 Co. .'), a.; Capacity, (D. 4.) Ch. I s. I.] WHO LESSORS : PERSONS UNDER DURESS, ETC. 47 VI. — Persons under duress. A lease made by a party under duress is not void, but voidable only by him when he recovers his free agency {q) ; but he cannot plead non est factum, for it is his deed at the time of the action brought, and ought to be avoided by special pleading (r) . VII. — Outlaws. A lease made by an outlaw before an inquisition taken, will prevent the Queen's title, if it be made bona fide, and upon good consideration ; but not if it be in trust for the outlaw himself. But no conveyance made after the inquisi- tion will take away or discharge the title of the Crown (s). Against all others the outlaw's lease is good {t) . It is observable, however, that if a lessor be outlawed in a civil action, and the lands demised be found by inquisition, which is estreated into the Exchequer, and the lands there- upon granted in custodiam, he cannot maintain an ejectment against the tenant for the nonpayment of rent of those lands (u) . VIII. — Feine sole. A feme sole is competent to lease her lands, provided she be not at the time labouring under any particular disability, such as unsoundness of mind, or the like. And if she make a lease at will, and afterwards marry, the tenancy will not be ((/) Throughgood's case, 2 Co. .0, b. Ante, p. 31, n. (»■). o Co. 119, a. 2 Inst. 483. Shep. (s) Attorney-General v. Freeman, Touch. 233, Prest. cd. Perk. s. 16. Hardr. 101. (*•) 5 Co. 119, a. And see as to the (<) Shop. Touch, by Prest. 232. plea of non est faclmuf Reg. Gen. Hil. (w) King dem. Poe v. Ball, Ridgew. Term, 4 W. 4., 5 Barn. & Adol. viii. Lapp. & Scho. 94. 48 OP THE CONTRACTING PARTIES. [Part III. determined without some express act by the husband to defeat it () 3 H. 6. 5.'i. 22. Manby v. Scott, 258. Aylett v. Ashton, 1 Myl. cSc Cr. 1 Sid. 120 ; S. C. 1 Mod. 124-5 ; 1 Kob. 105. 6;». 80. 87. 206. 337. 361. 38.3. 42.9. Cii.l.s.li.TWiio lessors: — oavner of interesse ter>iini,etc. il) covert has power, and the Coiu't has jimsdictiou, over the rents and profits, no case has given effect to her contracts against the corjms of lier separate estate [g) . The means l)y which the lands of a married woman may- be demised, being discussed at length in the chapter on leases by husband and wife {h) ; and the mode of obtaining renewals of leases granted by her previously to marriage, being noticed in the chapter on renewals {i) ; it will be unne- cessary to do more in this place than refer the reader to those parts of the work. Section II. — With reference to estate; and herein of LEASES BY ESTOPPEL. I. — Owner of interesse termini — Disseisee — Heir before entry — Bargainee before enrolment — Doivress before assignment of dower — Disseisor — Abator — Intruder — Cestui que use before entry — Remainder-man and Reversioner. It has lately been enacted {k) that, after the 1st day of October, 1845, a contingent, an executory, and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments, of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry, whether imme- diate or future, and whether vested or contingent, into or upon any tenements or hereditaments in England, of any tenure, may be disposed of by deed. But it is yet to be decided whether the term dispose of applies to the leasing powers of the persons whose interests are enumerated in the Act. , (g) Per M. R. in Aylett v. Ashton, (/() Post. 1 Myl. &Cr. 105. 112. But see Stead (i) Post. V. Nelson, 2 Beav. 245. (/c) 8 & 9 Vict. c. lOG, s. 6. VOL. I. E 50 OF THE CONTRACTING PARTIES. [Part III. Previously to its passing, in order to create a lease, to operate in prcesenti{l), it was essential that the lessor should be in possession of the premises, or have an interesse ter- mini (m), at the time of the demise. A party having a naked right of entry only could not grant a present lease {n) . Thus, a disseisee, until he revested his seisin by entry, and continued in the seisin (o), could not support the character of lessor, so as to pass a present interest {p). So, a demise by an heir in the interval between an abatement by a stranger and his own re-entry could not be sustained {q) . But the rule did not extend to the state of an heir at law before entry, his possession in law, no other having a posses- sion in deed, clothing him with sufficient power to grant a lease (r). It must not be forgotten that leases granted on or be- fore the 1st of October, 1845, are not affected by the act referred to. A bargainee of a freehold estate before enrolment still laboui's under the disability noticed; nor will subsequent enrolment within the period limited by the statute {s) impart, by the doctrine of relation, validity to the lease {t). The law is the same with regard to a dowress, who is incapable of demising her portion of the land recovered in a (I) See, as to leases operating by (r) Com. Dig. Seisin, (A. 2.) Shep. estoppel, po.st, p. 52. Touch. 26.0. (m) Doe dem. Parsley v. Day, 2 Q,. (s) Six lunar months, 27 Hen. 8. B. 147.156. Co. Lit. 46, b. Shep. c. 16. 2 Inst. 674. Shep. Touch. 223. Touch. 26.0. (0 Bellingham v. Alsop, Cro. Jac. (w) Ben-ington V. Parkhurst, 2 Stra. .52; S. C. No}', 106. Dymmock's case, 1086 ; S. C. Andr. 125 ; 4 Bro. P. C. Cro. Jae. 408 ; S. C.nom. Dimmock's .35. "5 ; Toml. cd. vol. 4, p. 85; Jour. case, Hob. 136. Iseham r. Mon-ice, vol. 25, p. 257. Doc dcm. Ducket r. Cro. Car. 109. 110, 4th resolution; Watts, 9 East, 20, n. S. C, nom. Norris v. Isham, Hetl. 81. (o) See Doe dem. Ducket v. Watts, Bennett v. Gawdy, Carth. 178. Perry 9 East, 20, n. i>. Bowes, Bowers, or Bowyer, 1 Vent. (p) Jennings v. Bragg, Cro. Eliz. 360 ; S. C. T. Jo. 1.06 ; Skin. 30 ; S.C, 447 ; S. C. cited, 3 Co. 35, b. And see nom. Ben-is v. Bowyer, 2 Show. 156. Stephens v. Eliot, Cro. Eliz. 484. Elliott r. Danby, 12 Mod. 3. It is Countess of Sussex v. Wroth, 3 Leon. submitted that Mr. Preston's position 144. Shop. Touch. 260. to the contrary, 3 Prost. Abst. 00-1, («7) Plowd. 137, a. 142. cannot be supported. C'li. I. s. II.] WHO MAY BE LESSOR: DISSEISOR, ETC. 51 writ of dower {u) until seisin be delivered to her by execu- tion {.v). But a possession, however short, and whether it be a possession in fact, or in law {y) or rightful, or tortious, as in the case of a disseisor [z), or, as it seems, an abator, or an intruder upon the possession of the lessee of the Queen, who is not herself disseisable (a), AviU warrant a lease for years, which will avail against all persons, except the party ha\ang the right of possession {b), by whose re-entry the lessee's estate may be defeated (c), and the lessee absolved from the per- formance of covenants dependent upon the enjoyment of the premises {d) ; though a lease by a disseisor, being voidable only, and not void, is capable of confirmation (e) ; and the disseisee may apportion his confirmation, where the disseisor's tenant for years has underlet, by ratifying the one lease, and not the other, or by confirming the whole or part of the land, for all or any number of the years (/) . The possession conferred by the statute of uses [ff] is suffi- cient to enable the cestui que use to grant a lease without a previous entry into the lands demised(/«). And it is clear that a person having a present right to the future enjoyment of an estate, as a remainder-man or rever- sioner, expectant either upon an estate for years, for life, or in tail, may make a lease, which will take effect in possession on the determination of the preceding estate ii). (w) The writ of right of dower was v. Goodman, 2 Q. B. 580 ; S. C. 2 excepted fi'om the sweeping operation Ga. & Dav. 15.9. of the 3Gth section of the Hmitatiou (r) Belford v. Foord, or Betford v. act of 3 & 4 W. 4. c. 27. Ford, Cro. Eliz. 447, and 472, being (.t) Shop. Touch. 269. the second page of that number ; S. C, {y) Plowd. 137, a. 142. nom. Foord's case, 5 Co. 81, a, b.; (2) Lee V. Norris, Cro. Eliz. 331. 3 Dy. 383, b.; 1 And. 47. Thurston's case, Ow. 16. (/) Ibid. (a) Thurston's case, sup. Lee v. (g) 27 Hen. 8. c. 10. Norris, sup. (A) But he cannot maintain trespass (6) Ibid. Vin. Ab. tit. F>state, (R. till entry ; Lutwich v. Mitton, Cro. Jac. a. 5) pi. 3. 604. Cai't. 66. Other cases ante, p. (c) Mo. TjO. pi. 150. 2 Vent. 68. 23, n. (?•)• ((/) Andrews r.Needham, Cro. Eliz. (j) Jenk. Cent. 267. case, 77. Pal- ^56; S. C. Nov, 75. But see Cooch mer r. Thorpe, Cro. Eliz. 152. E 2 53 OF THE CONTRACTING PARTIES. [Part III. II. — As to Leases by Estoppel. It has been stated {k), that, in order to create an effectual lease to operate inprcesenti, it was essential, wdth reference at least to demises made on or before the 1st of October, 1845, that the lessor should be in possession of the premises at the time of the demise. It is not, however, to be understood that the lease of a party out of possession was totally inopera- tive ; for a demise of this description derived a new feature from the doctrine of estoppel, of which I shall here attempt a succinct explanation, with an assurance to the reader of its being, in Lord Cokeys phrase, an excellent and curious kind of learning (/), well deserving his attentive consideration. An estoppel is, properly speaking, an impediment or bar raised by law upon a man's own deed to his averring or proving an}i;hing in contradiction to what he has once so solemnly and deliberately avowed (m). It is sometimes also termed a conclusion, from its determining, finishing, closing, or shutting up the mouth, so that the party cannot speak, plead, or claim, anything contrary to his deed {n). Estoppels, having a tendency to prevent the investigation of the truth (o), are considered odious in law {])) ; and the reasons why they are allowed seem to be, that no man ought to allege anything but the truth for his defence, and what he has alleged once is to be presumed true, and, therefore, he ought not to contradict it ; for allegans contraria non est audiendus ; and, secondly, that as the law cannot be known till the facts arc ascertained, so neither can the truth of them be found out but by CAddence ; and, therefore, it is reason- able that some evidence should be allowed to be of so high {h) Ante, p. fjO. (o) Rex v. Lubbcnham, 4 Term (/) Co. Lit. 3.52, a. Rcj). 2,'i4. (m) 2 Bla. Com. 2.9,5. Co. Lit. 352, a. {j,) Co. Lit. 36.5, b. 2 Ld. Raym. Com. Dig. Estoppel, (A). 15.53. Skipwith v. Green, 8 Mod. 311. (n) Co. Lit. 37, a. 170, a. 313. Bac. Ab. Joint-tenants, (H) 1. Ch. I. S. II.] WHO MAY BE LESSORS : ESTOPPEL. 53 and conclusive a nature as to admit of no contradictory proof (i/). Hence, a lease by indenture (r) by a person having no estate whatever {s), as an heir apparent ; by a party claiming under an executory devise (/), or contingent remainder {u); or by a person having a wrongful estate only in the premises {x); would operate by way of estoppel and conclusion against him on his obtaining a vested or rightful interest, whether by purchase {y) or descent {z) . A mortgagor is similarly cir- cumstanced, and will be precluded by estoppel from claiming the land after redemption in opposition to his own lease {a) . So, if one having no interest in the premises, by indenture make a lease for years to B., reserving a rent, and afterwards by indenture demise the same land to C. for forty years, C. shall have the rent by the same means by which he has the reversion, i. e., by estoppel {b) . If a party lease lands in which he has no estate, and after- wards acquire an estate, the lease which before operated by estoppel only, becomes a lease in interest (c) . It is, however, in all cases requisite that the premises forming the subject of demise be particularly specified or referred to ; for a demise by A. of all his lands in Dale, not being at the time owner of any lands there, to B. for years, will fail, on account of its generality, to create an estoppel (q) Co. Lit. 352, a. note (1). 3 Com. Dig. 274, Estoppel, (B). (r) See post, p. 55, as to the neccs- (x) Paulin v. Hardy, Skin. 2. 62. sity for an indenture. (i/) See the cases cited in note (.s), (s) Mo. 20. pi. 69. 1 Rol. Ab. 874. sup. pi. 9. Rothwell'scase, Hetl. 91. Anon. (z) Smith «. Low, 1 Atk. 489. Plowd. Dal. 26. pi. 4. Foote v. Berkley, 434. Plowd. 527. 545. Rawlyns's case, 4 («) Edwards v. Omellhallum, March, Co. 53, a., 4th resolution. Iseham v. 64. Omelaughland v. Hood, 1 Rol. Ab. Morrice, Cro. Car. 109; S. C, nom. 874. pi. 10. 876.pl. 5. Webb r. Austin, Norris v. Isham, Hetl. 81. Hermitage 8 Scott's N. R. 419 ; S. C. 7 Man. & V. Tomkins, 1 Ld. Raym. 729. Smith Gra. 701 ; Law Jour. N. S. vol. 13. V. Low, 1 Atk. 489. Co. Lit. 47, b. p. 203, C. P. And see Doe dem. Mar- 3 Term Rep. 371. riott v. Edwards, 6 Car. & Pa. 208. (<) Cooks,- or Hooks, i'. Bellamy, 1 (b) Jenk. Cent. 254, case, 46. Plowd. Keb. 530. 628. 708 ; S. C. 1 Sid. 187. 433. Webb r. Austin, sup. (it) Weale v. Lower, Pollexf. 51. (c) Webb r. Austin, sup. 54 OF THE CONTRACTING PAKTIES. [Part III. agaiust liim^ on Lis subsequent acquisition of an estate in Dale(f/). But should it appear upon the face of tlie indenture that the lease is made by one who has not an interest (and who really has not) to make a lease^ and he afterwards purchases the landj the rule of estoppel will not prevail (e) . And, for the same reason, where a chiu'ch in the incumbent^s lifetime was appropriated infuturo to a body corporate, and the said body, reciting this, made a lease in the life of the incumbent, the lease was held to be void; it appearing by the deed that the corporation had nothing (/). But where a party seised of au estate in Dale, falsely reciting that he had nothing in that manor, made a lease to B. by indenture for years, the recital was held to be void, and the lease good by estoppel; for the law rejects a false recital which makes a contradiction {y) . Whether a deed incapable of operating in the way intended may conclude the party by falling within the doctrine under consideration is not decided. The point arose in the case of Roe V. The Archbishop of York {h), where a demise was made by tenant for life, and expressed to be in pursuance of a power of leasing ; but, as the Court held the lease to be void for informality as an execution of the power, they did not deem it necessary to enter into the question of estoppel. There seems to be reason for contending that if the lease could have derived its validity from the lessor's ownership, the doctrine of estoppel could not apply, as it is a rule that a lease shall not work by way of estoppel when it may pass an interest [i) . (fT) Jenk. Cent. 255, case, 46. (/) Jenk. Cent. 255, case,46. Mont- (c) Hermitage v. Tomkins, 1 Ld. gomery's ease, 2 Dy. 244, a. ; 1 Co. Itayin. 729. Jenk. Cent. 255, case, 46. 155. a. 2 Barn. & Adol. 281. Cooks V. Bellamy, 1 Keb. 531. Co. ([/) Jenk. Cent. 255, case, 4G. Lit. 352, b. And see Right dem. Jcf- (A) Roc dem. Earl of Berkeley v. lerys r.Buckuell, 2 Barn. & Adol. 278 ; The Archbisliop of York, 6 E.ast, 8G ; and Doe dem. Lunilcy v. Earl of Scar- S. C. 2 Smith, 166. borough, 3 Adol. (Si Ell. 2; S.C.i Nev. (/) 2 Brest. Coiiv. 130. & Man. 721. Ch. I. S. II.] WHO MAY BE LESSORS : ESTOPPEL. 5u One of the rules connected with tliis learnmg requires every estoppel to be reciprocal, and binding on both parties {k) ; hence, a stranger can neither take advantage of, nor be bound by, an estoppel (/). Infants also (m), and married women (w), on account of their legal disability, and persons contracting with them, are exempt, for want of mutuality from the operation of the doctrine ; and, accordingly, if one takes a lease by indentm^e of his own land from an infant or feme covert, he is not bound by estoppel from disputing the demise (o). So, if husband and vrife declare against a party in debt for rent on a lease made by the feme and her former husband, the defendant may plead the sole seisin of the former husband, without being estopped by the lease (/j). So, on the other hand, if a man and his wife make a lease, reserving a rent to himself and his wife, and his heirs, he may bring debt for the rent, and declare as on a lease made by himself alone, and the resen^ation to himself. In each case the lease being void as to the wife, want of mutuality prevents an estoppel ((7) . And as the Crown is not bound by estoppel, a man taking a lease of his own land by patent from the King is not estopped from showing it (r) . The ride Avhich requires reciprocity in cases of estoppel obviously involves the necessity for a lease by indenture; for, according to Littleton {s), Coke {t), and other authori- ties {n), if a lease be made by deed-poll, the lessee is not estopped to say that the lessor had nothing at the time of the lease made ; and the reason why a deed indented will, {k) Co. Lit. 352, a. 161. But Boverton i-. Evans, 1 Rol. (I) Ibid. Right deni. JefFerys v. Ab. 872. pi. 6, semb. cont. Bucknell, 2 Barn. & Adol. 278. (r) Stauhop's case, 1 Rol. Ab. 871. («i) James v. Laudon, Cro. Eliz. 37. pi. 3. Smith V. Low, 1 Atk. 489. (s) Lit. s. 58. (w) Sacheverel v. Frogate, 1 Vent. (<) Co. Lit. 47, a. b. ;'>G3, b. 161. James r. Landon, Cro. Eliz. 37. (w) Hilmaa v. Hore, Carth. 247-8. Brereton v. Evans, Cro. Eliz. 700. Cooks, or Hooks, v. Bellamy, 1 Keb. (o) James t). Landon, sup. 530. 628. 708. Plowd. 421. 433-4. {p) Brereton v. Evans, Cro. Eliz. Pike r. Eyre, 9 Barn, & Cres. 909. 914; 700. S. C. 4 Man. & Ry. C6l. {q) Sacheverel v. Frogate, 1 Vent. 56 OF THE CONTRACTING PARTIES. [Part III. but a deed-poll will not, conclude tlie taker, is, because the latter is tlie deed of the feoffor, donor, and lessor only ; while the former is the deed of both parties, and concludes, there- fore, the taker, as well as the giver (a^) . rani ^^T^- Upon the same principle, it should seem, that, to enure by- way of estoppel, the indenture must be executed by both lessor and lessee (y), an indenture executed by the one and not the other being equivalent to a deed-poll {z) ; though, for this purpose, a lease executed by the lessor only, and a coun- terpart by the lessee, are considered as one indenture («). But it has been determined that if a bond be given for the performance of the coA^enants contained in a certain inden- ture, the obligor is estopped from denying the existence of the indentui'e (6). And in a late case (c), Avhere a lessee gave a bond for the payment of the yearly rent of 170/., recited in the condition to be reserved in the lease, the lessee was held to be estopped from showing that the rent reserved by the lease was in fact 140/., and not 170/. If an interest (which, it appears (:\\; S. C. in C. P., 2 Bing. 112; 9 1 Salk. 275, where Holt, C. J., said, Mo. 238 ; 1 Car. & Pa. 80. Wilson tliat a lease for years might operate Cu. 1. s. II.] WHO MAY BE LESSORS : ESTOPPEL. 57 one deed cannot so enure to two intents (/) . Therefore, if a tenant pur autre vie leases for twenty-one years, and, after having purchased the fee, the cestui que vie dies, the lessor may avoid his lease ; because an interest passed for the life of the cestui que vie {g). So, if A., tenant for life, and B., remainder-man in fee, join in a lease, the lessee cannot, in the lifetime of A., recover in ejectment declaring upon the demise of both; for the lease during A.'s life is his demise, and must be so pleaded ; nor can the deed work an estoppel, on account of the interest that passed to the lessee {h). So, if two join in a lease, and one only has any interest in the premises, it enures by way of confirmation from the other, and not by way of estoppel (i) . An estoppel is not confined to the parties to the lease, but, being annexed to the estate, runs with the land, and is bind- ing alike on all persons claiming under them (k) . The heir of the reversioner, being privy in blood, and taking the estate subject to the burthens under which his ancestor enjoyed it, is bound by the estoppel where that ancestor, having no estate in the premises (/), or only a contingent remainder {m), made a lease by indenture, and afterwards purchased the fee of the land demised, and died. It is also said («), though the position cannot safely be relied and take effect as to part by estoppel, (j) Brereton v. Evans, sup. Brooks and as to the residue by passing a real v. Foxcroft, Clayt. 137. interest, was very plain i'rom the com- (Jc) Trevivian v. Lawrence, Holt, mou case of concui-rcnt le^^ses, which 282 ; S. C. 6 j\Iod. 25G ; 1 Salk. 270 ; were all of them good as to part by cited, 2 Ld. Raj-m. 1551. Rawlyns"s estoppel, and a rent reserved thereon; case, 4 Co. 53, a. Co. Lit. 352, a. S. C, nom. Hilraan v. Here, Carth. Weale v. Lower, PoUexf. Gl. Good- 247 ; S. C, nom. Holman v. Hoare, 3 title dem. Faulkner v. Morse, 3 Term Salk. 152. And see Ale. & Nap. 254, n. Rep. 371. Webb v. Austui, 8 Scott's (/) Brereton v. Rvans, Cro. EUz. N. R. 419 ; S. C. 7 Man. & Gra. 701 ; 700-1. 0. Bridgm. by Ban. 544. Law Jour. N. S. vol. 13, p. 203, C. P. (. pi. (17). 7 Co. .0, a, of Darlington v. Pulteney, 2 Vcs. jnn. Case of the (iueensbury leases, I Bli. r>()2 ; S. C. 3 Vcs. 3!i4. P. C. 4 '.8. Ch. I. S. II.] WHO MAY BE lessors: TENANTS IN TAIL. 67 utter uiicloing of the said fermors ;" it was enacted, that, for reformation thereof, all leases thereafter to be made of any manors, lands, tenements, or other hereditaments, by writing indented under seal, for term of years, or term of life, by any person or persons being of full age of twenty-one years, haring any estate of inheritance either in fee-simple or in fee-tail, in their own right, or in the right of their churches or wives, or jointly with theii' wives, of any estate of inheritance made before the coverture or after, should be good and effectual in the law against the lessors, their wives, heirs, and successors, and every of them, according to such estate as should be comprised and specified in every such indenture of lease, in like manner and form as the same should have been if the lessors thereof, and every of them, at the time of the making of such leases, had been lawfully seised of the same lands, tenements, and hereditaments, comprised in such indentui'e, of a good, perfect, and pure estate of fee-simple thereof to their own only uses. It was provided, however, that the act should not extend to any leases to be made of any manors, lands, tenements, or hereditaments, being in the hands of any fermor or fermors by vii'tue of any old lease, unless the same old lease should be expii'ed, surrendered, or ended, within one year next after the making of the said new lease ; nor should extend to any grant to be made of any reversion of any manors, lands, tenements, or hereditaments, which had not most commonly been let to ferm, or occupied by the fermors thereof, by the space of twenty-one years next before such lease thereof made ; nor to any lease to be made without impeachment of waste ; nor to any lease to be made above the number of twenty-one years or three lives at the most from the day of making thereof ; and that upon every such lease there should be reserved yearly during the same lease, due and payable to the lessors, their heirs and successors, to whom the same lands should have come after the deaths of the lessors, if no such lease had been thereof made, and to whom the reversion thereof should appertain, according to their estates and F 2 68 OF THE CONTRACTING PARTIES. [Part III. interests, so mucli yearly farm or rent, or more, as had been most aceustomably yielclen or paid for the manors, lands, tenements, or hereditaments, so to be let, within twenty years next before such lease thereof made ; and that every such person and persons to whom the reversion of such manors, lands, tenements, or hereditaments, so to be let should apper- tain as aforesaid, after the deaths of such lessors, or their heirs, should and might have such like remedy and advantage to all intents and purposes against the lessees thereof, their executors and assigns, as the same lessor should or might have had against the same lessees. So that if the lessor were seised of any special estate tail of the same hereditaments at the time of such lease, the issue or heir of that special estate should have the reversion, rents, and services, reserved upon such lease after the death of the said lessor, as the lessor himself might or ought to have had if he had lived {x) . The restrictions under which tenants in tail are by this statute enabled to lease have been virtually, though not ex- pressly, relaxed by the late act for the abolition of fines and recoveries, and for the substitution of more simple modes of assurance {y). But, as the enactment of Henry the 8th is still in full force with regard to existing leases made by tenants in tail under its authority, and may also operate upon such demises as are not sanctioned by the statute of William the 4th, it is of great importance that its provisions be understood ; for which purpose it is intended in this place to enter into a detailed examination of its construction. And, as some of the requisites prescribed by it extend ahke to leases gi'anted by tenants in tail, by ecclesiastical corporations, and by husbands and wives seised in right of their wives, it (.r) Soon after tlie great fire of Lon- Car. 2. e. 11. s. 79, by indenture under don, all persons seised of or interested their respective hands and seals, to in any house or houses burnt or de- demise the ground or soil of such Htroycd by reason of the said fire, in burned or demolished houses, without tnil, for life or lives, or years deter- any fine or fines, and at the most im- iniiiable upon life, with remainder to proved annual rent, to any person or their iieirs or issue male or female, or persons that would rebuild thereon, to thfiir first or other son or sons, for any term of years not exceeding daugiiter or daughters, in tail, or other fifty yeara. like estiitc, were empowered by 22 (y) .3 & 4 W. 4. e. 74. Cii. I. S. II.] WHO MAY BE lessors: TENANTS IN TAIL. 69 is proposed, with a view to prevent repetition, to notice such of them as affect indiscriminately, or illustrate the law connected with, these several classes of lessors, reserving for separate consideration the particular clauses exclusively applicable to the various persons subject to its operation. Whether it was the intention of Parliament to secure the enjoyment of the lessee against the eviction as well of the reversioner or remainder-man, as of the issue in tail, after the lessor's decease, cannot at this distance of time be ascertained. The words in the act appear to be sufficiently comprehensive for the purpose ; and within a twelvemonth after it was passed the question was agitated, and apparently decided in favor of the lessee {z) ; but the right of the reversioner and remain- der-man to eject the lessee of the tenant in tail, on the decease of the latter without issue inheritable to the estate tail, has since been incontrovertibly established («), on the ground that as the interest is derived from the estate tail, it can endure no longer than the continuance of the principal estate [b). In modern practice, however, by means of powers of leasing, to which attention will be given in a future part of this work (c), the imperfect operation of the act in this particular has found an adequate remedy, independently of the statute, 3 & 4 W. 4, c. 74. To avail himself of the enabling act of 32 Hen. 8, the lessor must be seised of a vested estate tail; for if a gift be made to a husband and wife, and the heirs of the body of the survivor, a lease made pending the contingency of survivorship will not bind the issue {d) . And it appears that neither a tenant in tail after possibility of issue extinct, whose estate for most pur- poses corresponds with that of a mere tenant for life (e), nor a (£) Earl of Bridgewater's case, Dy. (6) 8 Co. 34, a. Bayley v. War- 4!5, b. burton, sup. («) 8 Co. 34, a. Windham's case, (c) Post, as to leases by donee of Noy, 6. WopdrofF r. Greenwood, Noy, power. 56. B. N. C. pi. 370. Reeve v. Cox, (cZ) Larapet's case, 10 Co. 51, a, Noy, 66. Dy. 48, b. n. Keen v. Cope, Co. Lit. 26, a. But see 8 & 9 Vict. Cro. Eliz. 602. Co. Lit. 44, a. 45, b. c. 106. s. 6, ante, p. 49. Bayley v. Warburton, Cora. 494. (e) Bowles's case, 11 Co. 79, b. 80, a.. 70 or THK CONTRACTING PARTIES. [Part III. widow tenant in tail ex provisione viri (/), is within its scope. But the circumstance of the reversion being in the Crown will not prevent a tenant in tail from leasing by virtue of the act {(/) . The lease must also be made by indenture under seal by a party of full age. A parol lease {h), or lease by deed poll, will not answer the purpose (i). But it was said by Sir H. Gwillim, that the mere defect of the form of indenting the deed would not affect its validity, for it might even be done in court ; and that such a trifling omission would not furnish a ground for exception {k) . It is laid down by Lord Coke {/), that the lease must be of lands, tenements, or hereditaments, manurable or corporeal, which are necessary to be letten, and whereout a rent by law may be reserved, and not of things that He in grant, as ad- vowsons, fail's, mai'kets, franchises, and the like, whereout a rent cannot be reserved. It appears, however, that tithes, though incorporeal, might be demised for years within the act; for, notwithstanding Lord Coke's authority to the contrary [m), little doubt is entertained of the validity, at common law, of a reservation of rent on a lease for years by ecclesiastical persons of their tithes in) . The rent ran with the reversion in favor of the successor, and was recoverable by an action of debt from an S. C,, nom. Bowles /■. Berric, 1 Rol. after, only requires a deed, not an in- 177. Co. Lit. 28, a. denture. (/) Crocker, or Croker, v. Kelsey, (A;) 4 Bac. Ab. 7tli Ed. Leases,(E.)2. Cro. Jac. 688; S. C. W. Jo. CO; Hutt. n. (a), p. 687. But see Co. Lit. 143, b. 84 ; J. Bridgm. 27 ; 2 Rol. 4, 90. 4.98 ; 229, a. Stile's case, 5 Co. 20, b. ; S. C, Bcndl. 143. Bettison v. Ehvays, Skin. uora. Frampton r. Stiles, Cro. Eliz. 472. 31.36; S. C. 2 Show. 193. Waters v. (0 Co. Lit. 44, b. 47, a. 142, a. Rumscy, 3 Keb. 333. And see Jewel's case, 5 Co. 3, a. Smith (.7) 6. Bridgm. by Banii. 106. r. Bowles, 2 Rol. Ab. 451. (0). (/t) All leases I'cquirod by law to be (?k) Co. Lit. 47, a. ill writing, of any tenements or hei-edi- («) Talentine v. Denton, Cro. Jac. taiiieiit.s, must now bo made by deed. 111. 112; S. C. Mo. 778; cited, T. See 8 & Viet. c. 106. s. 3. See fur- Raym. 167. Rickman v. Garth, Cro. tlicr on tiiis subject, post, Part V. Jac. 173. Dobitofte v. Curtocnc, Cro. Chap. r. Jac. 4.52-3. Ensden v. Denny, Palm. (i) Co. Lit. 44, a. The late act of 105. See, however, the preamble of 3 «c 4 W. I, c. 7t, to be n<)\'icw\ lie re- the act, 5 Geo. 3. c. 17. Ch. I. s. II.] WHO MAY 15K lessors: TENANTS IN TAIL. 71 assignee of the lease (o). And lay impropriators derived under the statute, 32 Hen. 8. c. 7 (/?), rights of ownership over their tithes similar to those exercisable by them over their cor- poreal hereditaments. Thus, it appears that spiritual owners of tithes, at common law, and, after the statute just named, lay tenants in tail of tithes, or husbands seised of tithes in right of their wives, or jointly with theii' wives, could lease the same for years so as to bind the successor, issue in tail, or sur- vi-\dng wife, by virtue of the act, 33 Hen. 8. c. 28. StiU, as an action of debt was not maintainable at common law for rent reserved on a freehold lease during its continuance [q), the inability of the persons within the last named act to lease their tithes for a life or lives continued, until removed, as to lay persons, by a statute of Queen Anne (r), which gave the remedy of an action of debt for arrears of rent upon free- hold demises ; and, as to spiritual persons, by the act, 5 Geo. 3. c. 17 («), which enacted, that aU leases for one, two, or three, life or lives, or any term not exceeding 21 years, then already granted, or which should thereafter be granted, of any tithes, tolls, or other incorporeal hereditaments, solely and without any lands or corporeal hereditaments, by any archbishop or bishop, master and fellows, or other head and members, of colleges or halls, deans and chapters, precentors, prebendaries, masters and guardians of hospitals, and every other person and persons who were enabled by the several statutes then in being, or any of them, to make any lease or leases for one, two, or three, life or lives, or any term or number of years not exceeding 21 years, of any corporeal heredita- ments, should be as good and effectual against the persons granting the same, -and their successors, as any leases made or to be made by them of any corporeal hereditaments by (o) Ibid. Tippmr.Grover,T.Raj'm. {2>) 32 Hen. 8. c. 7. s. 7, confinneJ 18. The Dean and Chapter of Wmd- and enlarged by 2 & 3 Ed. 6. c. 13. sor V. Cover, or Gower, 2 Saund. 302 ; {q) 3 Bla. Ck)m. 232. And see the S. C. T. Raym. 1 94 ; 1 Vent. 98 ; 1 cases cited ante. Lev. 308 ; 2 Keb. 688. 727. 737. 775. (?•) 8 Anne, c. 14, s. 4. Dalston i;. Reeve, 1 Ld.Raym,77. Bally (.s) 5 Geo. 3. c. 17. r. Wells, 3 Wils. 32; S. C. Wilm. 341. 72 OF THE CONTRACTING PARTIES. [Part III. virtue of tlie statute, 32 Hen. 8. c. 28, or any other statute then in being; provided (/) that leases should not be granted for larger terms than were allowed by the local statutes of the several foundations. And the act empowered {u) the lessors to recover by an action of debt all arrears of rent on leases made or to be made, as landlords might on leases for years. Whether advowsons, fairs, markets, franchises, and other incorporeal hereditaments of the like nature, are demisable under the enabling statute of Hen. 8th^ is not clear {x). In JeweFs case [y) it was laid down, that a lease by a bishop of a fair, parcel of the possessions of his bishopric, with all profits thereof, (whether for hfe or lives, or for years, was deemed immaterial,) was not available against his successor, since neither lessor nor successor had any remedy by distress or assize for the rent reserved. But the case of Talentine v. Denton {s), confirmed by much later decision (a), is of a dif- ferent complexion. Leases of copyholds, as they pass by surrender, and not by indenture, are not within the act {b), unless, perhaps, the demise be made with the license of the lord (c) . The 2nd section of the act prohibits its application to re- versionary leases, unless the old lease be expired, surrendered, or ended, within one year next after the making of the new lease. For this pm'pose, a surrender in law is sufficient {d). The act docs not, in general, admit of a conditional surren- der (e) ; but the tenant may safely retain a power over his old estate until the new one be granted, by adopting the pre- (<) Sect. 2. (b) Rowden v. Malstcr, Cro. Car. 44. (it) Sect. 3. Gilb. Ten. 166. ed. 1730. Winter v. (x) Chambers on Leases, p. 24ii. Loveder, Comb. 371. And see Anon. (y) Jewers case, 5 Co. ?>, a. 1 Leon. 4. (z) Talentine v. Denton, Cro. Jac. (c) Gilb. Ten. 167. Watk. Cop. HI. 112 ; S. C. Mo. 778 ; cited, T. vol. 2, p. 194. n. (g). 3rd cd. Raym. 1 67. And see Tlie Dean and (d) Thompson, or Tompsou, v. Traf- Chapter of Windsor v. Gover, or ford, Poph. 8 ; S. C. 2 Leon. 188. Gower, 2 Saund. 304 ; S. C. T. Raym. Plowd. 106. And see Grnmbrell v. 1.04; 1 Lev. 308; 2 Kcb. 688. 727. 737. Roper, 3 Barn. & Aid. 711., 77.'). Anon. 1 Vent. f>8, scmb. S. C. (c) Elmer's case, .'i Co. 2, a.; S. C, («) Rally V. Wells, 3 Wils. 25. 32 ; nom. Elmor v. Gcalc, Mo. 253. S. f. Wilin 311. Cm. I. s. II.] WHO MAY BE lessors: TENANTS IN TAIL. 73 caution of a condition to avoid tlie surrender on tlie lessor's refusal or omission to grant the latter at tlie time specified ; because whether the conditional surrender be good or no^ on the grant of the new lease^ the surrender becomes absolute, both in deed and in law ; the lessee's former interest is ended without the necessity of any further act on his part, and the terms of the statute are complied with (/) . Where a tenant in tail made a lease for life to a feme covert, whose husband surrendered it, and then the tenant in tail made a lease for three lives, and died, and the wife after the decease of her husband entered, and died, the court held that the issue could not avoid the lease for three lives {g) . The lands must also have been most commonly letten to ferm or occupied by the fermors thereof for the space of twenty years next before the lease thereof made. The object of this clause was to prevent the parties enabled by the act from demising their mansion houses and demesne lands so as to bind their successors, and thus diminish ancient hospitality {h) ; and the better construction of it seems to be, that it consists of two parts in the disjunctive, and if either of them be observed, it is sufficient to support the lease. The words are, that " the act shall not extend to any lease of any manor, lands, &c. which have not most commonly been letten to ferm ; " this is the first part of the disjunctive, and is general ; the other part is, " or occupied by the fermors thereof by the space of twenty years," and it is said that the most natural and genuine meaning of the clause is, that the lands to be leased must either be such as have been most commonly letten, that is, such as are not reputed part of the demesnes ; or such as have been occupied by the fermors thereof by the space of twenty years (i) . The words " most commonly letten, &c." seem to be satis- fied if the lands have been demised, at one time, or at several times, for the greater part of the twenty years next preceding (/) Wilson dem. Eyre v. Carter, Lease, E. Rule, 6. And see Pemble 2 Sti-a. 1201. - V. Sterne, T. Raym. 1G5 ; 1 Lev. 212 ; {;/) Sydenham v. Caps, Mo. 783, 1 Sid. 316. 416; 2 Keb. 213. 230. 325. (/i) 4 Cru. Dig. 70. 4tli cd, 440. 448. 460. 464. 484. 52,5. (0 4 Cru. Dig. 70. Bac. Ab. tit. 74 OF THE CONTRACTING PARTIES. [Part III. the intended lease {k). And it is immaterial whether the letting has been for life, or lives, or years, or at will, at common law, or by copy of court roll (/) . In order to bring the lands within the term " commonly letten," the previous demises must have been by persons ha\dng an estate of inheritance ; and it has accordingly been held that a lease for twenty years by the guardian in chi- valry (m) of an infant tenant in tail of lands never before demised ; or by the dowress of tenant in tail ; or by the husband tenant by the curtesy of an estate tail; was not such a letting as would enable the issue in tail, when of age, to lease under the statute {n) . A lease made without excepting trees, such exception having been made in all former leases, will not bind the suc- cessor ; for, by the omission of the exception, not only the trees, and the profits of the trees, pass, but the soil itself passes to the lessee ; and, consequently, as more is let than usual, the lease is not protected bj^the statute (o). But if distinct premises be comprised in the lease, of which some only have been let for the greater part of twenty years before, with several reservations, and several words in the habendum, the instrument is tantamount to a distinct lease of each distinct set of parcels, and operates as a valid demise of those lands which the tenant in tail is empowered by the statute to lease (p) . The lease must not be made without impeachment of waste; and, hence, a lease for life, remainder for life, was not warranted by the statute, because it was dispunishable (/.•) Mallet r. Mallet, Cro. Eliz. 707. (u) Anon. 3 Dy. 271, b. pi. (28). Ami see Pemble v. Stcme, sup. Co. Co. Lit. 44, b. Lit. 44, b. (o) Smith v. Bole, or Bowles, Cro. (0 Co. Lit. 44, b. Dean and Chap- Jac. 458; S. C. .*? Bulstr. 290; cited, tcr of Worcester's case, fi Co. 37, a. b. 3 Mau. & Sclw. 108. Baugh V. Ilaynes, Cro. Jac. 76. T. Jo. ( p) Tanficld v. Rogers, Cro. Eliz. 29. Banks v. Brown, Mo. 75!) ; S. C. 340; S.C. Ow. 11.0. See also Winter's Noy, 110. The Loi-d Norris's case, case, 3 Dy. 308, b. Knight's case, or Noy, lOG. Knight v. Breech, Brech, Breach, or (»i) Cuardianshi]) in Chivalry was Bccche, 5 Co. 54, b. ; S. C. 1 And. 173; jibolislu'd by the Statute, 12 Car. 2. Mo. l.'J9; 3 Leon. 124; Gouldsb. 15. c. 24. Ch. I. S. ll.j WHO MAY BE lessors: TENANTS IN TAIL. 75 of waste (.'i, .5th point. {.i) Co. Lit. 44, b. Mountjoy's case, ('/•) Mountjoy's case, 5 Co. 5, b., .'ith sup., 5th resolution. reHohition, And see 1 Co. 13.0, a. (t) Morrice v. Antrobus,lIardr. 325. (H. l.s. II.] WHO MAY BE lessors: TENANTS IN TAIL. 88 nnd covenant, would not bind the successor; becansc the liusband's covenant, from its being inoperative against the wife, did not amount to a reservation {u). Nor does anj'^ necessity appear to exist for reser\ing the rent payable on the identical days on which it has been accustom ably paid; for, if it be reserved yearly, whether it be made payable yearly at one time, or half yearly, the words of the act will be satisfied, although the tenants may have formerly made their pajTnents quarterly {x) . So, it is suffi- cient if the ancient rent be made payable on four days, or within twenty days after; as the successor, whose advantage in this respect was the object of the statute (?/), would be benefited by the death of the lessor after the four days, and within the twenty {z). A variation of the reservation in words only, as of eight bushels, instead of a quarter, of wheat, will not invalidate the lease; because both the old and new reservations are the same in quality, value, and nature («) ; but a reservation of silver in lieu of gold, it appears, would produce that effect [b). Prudence, therefore, demands in almost all cases a strict adherence as well to the usual form as to the substance of the reservation, lest a departure from the established mode should lead to controversy, or, perhaps, prove fatal to the lease. It should seem that the rent first reserved immediately after the passing of the act must be deemed the ancient rent, unless the amount has been increased, after which the rent cannot again be reduced to its former standard (c) . (m) Morricey.Antrobus,Hardr.325. 244; 3 Keb. 46. 107. 193. The late (a:) Dean and Chapter of Worcester's apportionment act of 4 W. 4. c. 22, case, 6 Co. 37. 38., 4th resolution. does not seem to apply to this case. Baugh V. Haynes, Cro, Jac. 76. Cook («) Mountjoy's case, 5 Co. .5, b., 5tli V. Younger, Cro. Car. 17. And see resolution. Doe dem. Douglas r. Lock, 2 Adol. & (6) Ibid. 2 Veru. 544. Gilb. Eq. Ell. 705. 737 ; S. C. 4 Nev. & Man. Rep. 60. 807. Fryer v. Coombs, 11 Adol. & (c) Orby r. Lord Mohun, 2 Vern. Ell.' 403. ^ 543 ; S. C. GiJb. Eq. Rep. 45 ; Free. (y) Baugh v. Haynes, sup. Ch. 257 ; 1 Eq. Ca. Ab. 343. pi. 5 ; (s) Bayly r. Munday, 2 Lev. 61; Freem. 2.01 ; 3 Rep. in Ch. 102. Mor- S. C, nom. Bayly r. Muinn, 1 Vent. rice v. Antrobus, Ilai'dx'. 325. G 2 84 OF THE CONTRACTING PARTIES. [Part III. Care must be taken in every lease made subsequently to the redemption of the land tax, by any bishop or other eccle- siastical corporation, in pui'suance of the power for that purpose contained in the land tax redemption aet {d), to reserve not only the ancient and accustomed yearly rent, but also the annual amount of the land tax redeemed ; it having been determined (e) that an omission to do so will render the lease voidable at the option of the successor. With regard to leases existing at the time of the redemp- tion, the statute enacts (/), that such land tax shall be consi- dered as yearly rent payable to such bishop, &c., his and their successors, over and above the reserved rent, if any, and shall be recovered and paid as such. A bishop is not bound by covenants contained in his pre- decessor's lease unless they have been usually inserted in former demises (g) . The statute of Henry the 8th, having an enabling, and not a restraining operation, did not deprive the tenant in tail of any power exercisable by him over his estate at common law ; and, hence, a lease not conformable to its provisions is still eflfective against the lessor himself during his life; for he cannot avoid his own deed (h). Nor is it absolutely de- termined by his death, provided he leave issue inheritable to the estate tail, as to whom it is voidable only {i) ; (d) 42 Geo. 3. c. llfi. s. 6.0. powers should be had for the recovery (e) Doe dem. Murray, Lord Bishop thereof, as for the recovery of such of Rochester, v. I3ridges, 1 Barn. & rent when in arrear. Adol. 847. By the 88th section of the (/) Sect. 88. act it was declared that the land tax («/) Davenant v. The Bishop of redeemed should in all future demises Sarum, or Salisbury, 2 Lev. 68; S. C. be added to the ancient and accus- 1 Vent. 223 ; 3 Keb. 69. tomod yearly rent, and be reserved (/<) Mountjoy's case, .5 Co. 5, a., 1st and made payable and recoverable as resolution; S. C. Mo. 197. . such; and that where the lands should (t) Opee, or Opy, v. Thomasius, 1 be rleinised to an under-lessee, who Sid. 261; S. C. 1 Lev. 167; T. Raym. should bo bound by any covenant or 132; 1 Keb. 778. 910. Machell v. agreement to pay tiie land tax cluarged Clarke, 2 Ld. Raym. 778. 780; S. C. thereon, then the amount of such land 2 Salk. 619 ; 7 Mod. 18, Bedford's tax should bo considered as I'ent re- case, 7 Co. 7, b. Symonds v. Cud- served or made payable on such last- more, 1 Show. 370. 373 ; S. C. 3 Salk. mentioned demise ; and that the same 33.5. Winn v. White, 2 W. Blac. 842. Ch. I. s. II.J WHO MAY BE lessors: TENANTS I N TA I L. 85 but as against remainder-men or the reversioner it is void(/t). If a woman tenant in tail make a lease for years not war- ranted by tlie statute^ and die, leaving her husband and issue by him sui'A'iving, the issue cannot avoid it during the life of the tenant by the curtesy, although he surrender his estate to the issue (Z) , The lease, if voidable, and not void, may be confirmed {m), either expressly, or impliedly, as by receipt of rent in), or a distress and avowry (o), or any other act that can amount to a recognition of the tenancy; and if the lease be to A. for life, with remainder to B. for life, acceptance of rent from A. will enure to confirm the estate to B (^>) : The issue cannot, by professing ignorance of his title, prevent his acceptance from operating as a confirmation, it being his duty to inform himself; and if he omit to do so, he cannot take advantage of his own neglect [q). But unless the party accepting the rent be entitled at the time, his acceptance will not amount to an affirmance of the lease (r). The lease, if originally void as to the issue, does not admit of confirmation. Therefore, where tenant in tail, having enfeoffed another to the use of himself and his heirs, made a lease for years, and died, it was held that acceptance of the rent by the issue did not amount to a confirmation ; for the issue was remitted to an estate tail by descent ; and the lease, being made by the father, then tenant in fee-simple, \i. e., by discontinuance,] was void as to the issue [s). It is observable that equity will not interpose in favor of the lessee in a mere case of noncompliance with the provi- sions of the statute {t) . But if tenant in tail, during the life (it) Sup. p. 69. n. (ct). (ij) Jeffery r. Coyte, Cro. Eliz.252. {I) Powtrel's case, Ow. 83 ; S. C. {q) Doe dem. Southouse v. Jenkins, Dal. 65 ; 1 Dy. 46, b. marg. sup. (??i) See the cases in note [i), p. 84. (r) 3 Salk. 3. («) Doe dem. Southouse v. Jenkins, (s) Anon. Mo. 846, pi. 1143. 5 Bing. 469; S. C. 3 Mo. & Pa. 59. (<) Roswell's case, 1 Rol. Ab. 379. (o) Symonds v. Cudmore, Cai'th. pi. 6. Earl of Darluigton v. Pulteney, 260. Cowp. 260. 267. Anon. Freem. Ch. 86 OF THE CONTRACTING PARTIES. [Part III. of his father, tenant for life, suffer the lessee of his father to expend money in repairing and improving the demised pre- mises, the court mU decree the tenant to hold undisturbed for the residue of his term {u) . Such are the requisites of the statute of Henry the 8th, and such is the judicial interpretation it has received. We novi^ proceed to show the alterations effected with regard to leases of tenant in tail by the recent act for the abolition of fines and recoveries {x) . The 15th section provides that "after the 31st day of December, 1833, every actual tenant in tail (y), whether in possession, remainder, contingency, or otherwise, shall have fidl power to dispose of, for an estate {z) in fee-simple abso- lute, or for any less estate, the lands (a) entailed, as against all persons claiming the lands entailed by force of any estate tail which shall be vested in, or might be claimed by, or which, but for some previous act, would have been vested in, or might have been claimed by, the person making the dis- position at the time of his making the same, and also as against all persons, including the King's most excellent Majesty, his heirs and successors, whose estates are to take effect after the determination or in defeasance of any such estate tail, saving always the rights of all persons in respect of estates prior to the estate tail in respect of which such 224, case, 296. Shannon f. Bradstrcot, and also to any interest, charge, lien, 1 Seho. & Lef. 52. 71. But sec Prince or incumbrance, m, upon, or affecting, V. Green, Toth. 193, numbered 225 by lands, either at law or in equity, mistake. Sect. 1. (u) Huning v. Fei'rcrs, Gilb. Eq. (a) The word lands extends to Rep. (35. manors, advowsons, i-ectories, mes- {x) ;i & 4 W. 4. c. 74. suages, lands, tenements, tithes, rents, (y) In the constniction of the act, antl hereditaments, of any tenure, (ex- thc expression actual tenant in tail ccyit coi)y of court roll,) and whether means exclusively the tenant of an corporeal or incorporeal, and any un- cstate tail which shall not have been divided share thereof, but when ac- barred, and such tenant shall be companied by some expression includ- flecmt^d an actual tenant in tail, al- ing or denoting the tenure by copy of though the estate tail may have been court roll, extends to manors, mes- diveHt<;d or turned to a right. Sect. 1. suages, lands, tenements, and heredi- (i) The word estate extends to an tamcnts, of that tema-e, and any luidi- «Htate in c'liiity as well as at law, vided share thereof Sect. 1. Cji. I.s. II.J who may J5E LESSORS; TENANTS IN TAIL. 87 disposition sliall be made, and the rights of all other persons, except those against whom such disposition is by this act authorized to be made.^^ And it was further enacted {b) that " every disposition of lands under this act by a tenant in tail thereof shall be effected by some one of the assurances (not being a will) by which such tenant in tail could have made the disposition if his estate were an estate at law in fee-simple absolute ; pro- vided nevertheless that no disposition by a tenant in tail shall be of any force either at law or in equity imder this act unless made or evidenced by deed ; and that no disposi- tion by a tenant in tail resting only in contract, either express or implied, or otherwise, and whether supported by a valuable or meritorious consideration, or not, shall be of any force at law or in equity under this act, notwithstanding such dispo- sition shall be made or evidenced by deed ; and if the tenant in tail making the disposition shall be a married woman, the concurrence of her husband shall be necessary to give effect to the same; and any deed which may be executed by her for effecting the disposition shall be acknowledged by her as hereinafter directed" (c). " Provided {d) that no assurance by which any disposition of lands shall be effected imder this act by a tenant in tail thereof (except a lease for any term not exceeding twenty- one years to commence from the date of such lease, or from any time not exceeding twelve calendar months from the date of such lease, where a rent shall be thereby reserved which at the time of granting such lease shall be a rack rent, or not less than five-sixth parts of a rack rent,) shall have any operation under this act unless it be enrolled within six calendar months after the execution thereof; and if the assurance by which any disposition of lands shall be effected under this act shall be a bargain and sale, such assurance, although not enrolled within the time prescribed by the act passed in the twenty-seventh year of the reign of his Majesty (/<) Sect. 40. (f) See sect. Ji). (c?) Sect. 41. 88 OF THE CONTRACTING PARTIES. [Part III. Kiug Henry the Sth^ intituled ' For Enrolment of Bargains and Sales/ shall, if enrolled in the Court of Chancery within the time prescribed by this clause, be as good and valid as the same would have been if the same had been enrolled in the said court within the time prescribed by the said act of Henry the 8th." It seems, therefore, 1, that a lease for years not exceeding twenty-one years, to commence from the date of such lease, or from any time not exceeding twelve calendar months from the date of such lease, Avhere a rent shall be thereby reserved, which, at the time of granting such lease, shall be a rack rent, or not less than five-sixth parts of a rack rent, may be granted by a tenant in tail, without enrolment under the statute of 3 & 4 W. 4. c. 74, and without its conforming to the provisions of the act of 33 Hen. 8. c. 28 (e). 2, That leases for any other term granted by a tenant in tail will be supported against the issue in tail, reversioner, and remainder-men, if made by deed, and enrolled according to the requisitions of the fines and recoveries aboHtion act. 3, That no lease not authorized by that act, expressly, or impliedly, as in the case of the exception just noticed, will be binding upon the issue in tail, unless it comply with the terms of the statute of Henry the 8th. A lease for three lives, for instance, which, for want of enrolment, may fail of effect under the act of William the 4th, may be established under the former one of Henry the 8th. Leases for twenty- one years, or less, but not reserving five-sixth parts of a rack rent, may likewise be supported under the old act, though inoperative under the new one, provided the rent reserved be the accustomed rent. If the tenant in tail making the lease be a married woman, the concurrence of her husband is necessary to give it effect, and any deed which may be executed by her for effecting the disposition must be acknowledged by her as her act and deed (c) Sec also sections 2.5 & 26 of 3 & leases made by tenants in tail indepen- •( W. 4. e. 74, which seem to recognize dently of the statute of Hem*y the 8th. Ch. I. S. II.] WHO MAY BE LESSORS: TENANTS IN TAIL. 89 before a Judge of one of the superior courts at Westminster, or a Master in Chancery, or before two of the perpetual Commissioners, or two special Commissioners, to be respec- tively appointed as in the act is provided; such Judge, &c., having pre\iously examined her, apart from her husband, touching her knowledge of such deed, and ascertained that she freely and voluntarily consents to such deed (/) . But the general enabhng clause does not extend the powers of tenant in tail ex provisione viri ; for it is enacted by the 16th section, " that where under any settlement made before the passing of this act any woman shall be tenant in tail of lands within the provisions of an act passed in the 11th year of the reign of his Majesty King Henry the 7th {g), intituled ' Certain alienations made by the wife of the lands of her deceased husband shall be void,' the power of disposi- tion hereinbefore contained as to such lands shall not be exercised by her except with such assent as, if this act had not been passed, would, under the provisions of the said act of King Hemy the 7th, have rendered valid a fine or common recovery le^ded or suffered by her of such lands [h]." Tenants in tail of the gift of the Crown, and tenants in tail after possibility of issue extinct, are also excluded from the operation of the act, by the eighteenth section, which enacts, " that the power of disposition hereinbefore contained shall not extend to tenants of estates tail who, by an act passed in the 34th and 35th years of the reign of His Majesty King Henry the 8th {i), intituled 'An Act to erabar feigned recovery of lands wherein the King is in reversion,' or by any other act, are restrained from barring their estates tail, or to tenants in tail after possibility of issue extinct." (/) Sections 40. 79. 80. The clauses (h) i. e., with the assent of the heirs of the act relative to conveyances by next iiilieritable to the woman, or of married women will be more fully set liim or them that next after the death out in a future division, concerning of the same woman shall have estate of leases by husband and wife. inheritance in the lands. ig) 1 1 Hen. 7. c. 20, confirmed by (i) 34 & 35 Hen. 8. c. 20. 32 Hen. 8. c. 36. s. 2. 90 OF THE CONTRACTING PARTIES. [Part III. And by the twentieth section it is provided, " that nothing in this act contained shall enaljle any person to dispose of any lands entailed in respect of any expectant interest which he may have as issne inheritable to any estate tail therein/' Pre\iously to the late act for the Hmitation of actions and siuts relating to real property [k) a common law lease for lives by tenant in tail, Avhether made with or without war- ranty, would effect a discontinuance, unless it conformed to the pro^dsions of the statute of Henry the 8th (/), and consequently deprive the remainder-man of his right of entry ; but it was otherwise if the statute was complied with, though the lease was accompanied with warranty {m) . And upon this ground it appears to have been necessary in an avowry for rent under a lease made by a tenant in tail for hves, to aver, in pursuance of the statute 32 Hen. 8. c. 28, that the land had been demised, and that it was the ancient rent wliich had been reserved for the greater part of twenty years next before the making of the lease; nor could the neglect of averment be cured by any con- fession in the pleadings on the other side (n). So, if a lease for lives were made by a tenant in tail, (who afterwards died without issue,) and by the reversioner or remainder- man in fee, with livery, it discontinued both estate tail and remainder or reversion (o) ; but if made by tenant for life and remainder-man in tail, a discontinuance was not effected (p). The practical importance, however, of the laAv relative to warranties by tenant in tail is now determined by a clause in the late fines and recoveries abolition act (q), which pro- vided, "that all warranties of lands, which after the 31st day of December, 1833, shall be made or entered into by any (Z) :} & 4 W. 4. c. 27. Noy, 6C. (I) Baker v. Hucking, or Hacking, (w) Mallet v. Mallet, Cro. Eliz. 707. Untt. 12G ; S. C. Cro. Car. 3«7. 40,5 ; (o) Maker v. Hucking, or Hacking, W. .Jo. .'J.5«. Co. Lit. ;{.".."!, a. sup. (ni) Keen v. C()]>c, Cro. I'^liz. OOJ ; ( y*) Trivilian /•. Lane, Ci'o. Eliz. .'jCi. cile.l Vaugli. :{i!;',. lleuve v. Cox, (ry) .{ & 4 W. 4. c. 74. s. 14. Ch. I. s. 11. J WHO MAY BE LESSORS: TENANTS IN TAIL. !)1 tenant in tail thereof, shall be absolutely void against the issue in tail, and all persons whose estates are to take effect after the determination or in defeazance of the estate tail." And the same remark applies to the law of discontinuance, the distinction between real and possessory actions for the recovery of land having been almost wholly exploded by the late act for the limitation of actions and suits relating to real property, and for simplifying the remedies for trying the rights thereto (r), the thirty-sixth section of which enacted, " that no action real or mixed (except a writ of right of dower, or writ of dower undo nihil habet, or a quare impedit, or an ejectment,) and no plaint in the nature of any such writ or action, (except a plaint for fi'eebench or dower,) shall be brought after the thirty-first day of December, 1834; though it was provided (s), that when, on the first of June, 1835, any person whose right of entry to any land should have been taken away by any descent cast, discontinuance, or Avarranty, might main- tain any such writ or action in respect of such land, such writ or action might be brought after the said first day of June, 1 835, but only within the period during which, by virtue of the provisions of the act, an entry might have been made upon the same land by the person bringing such writ or action if his right of entry had not been so taken away. And it was further enacted {t) that no descent cast, dis- continuance, or warranty, which might happen or be made after the thirty-first day of December, 1833, should toll or defeat any right of entry or action for the recovery of land. Under the old law, a fine levied, or recovery suff'ered, by a tenant in tail had the effect of confirming a voidable lease granted by him («) ; and a clause productive of the like (r) 3 & 4 W, 4, c. 27. 276. And see 1 Co. ()2, a. 2 Co. 52, b. (s) Sect. 3S. Godfrey Wade alias Machwilliam's (<) Sect. 39. case, Wiuch, 41. Anon. Freem. Ch. (m) Stapilton v. Stapilton, 1 Atk. i). 310. Beck deni.. Hawkins v. Welsh, 1 Wils. 92 OF THE CONTRACTING PARTIES. [Part III. effect is contained in the fines and recoveries abolition act, where it is provided {x), " that when a tenant in tail of lands under a settlement shall have already created, or shall here- after create, in such lands, or any of them, a voidable estate in favor of a purchaser for valuable consideration, and shall afterwards under this act, by any assurance, other than a lease not requiring inrolment, make a disposition of the lands in which such voidable estate shall be created, or any of them, such disposition, whatever its object may be, and whatever may be the extent of the estate intended to be thereby created, shall, if made by the tenant in tail with the consent of the protector (if any) of the settlement, or by the tenant in tail alone if there shall be no such protector, have the eflFect of confirming such voidable estate in the lands thereby disposed of, to its full extent as against all persons, except those whose rights are saved by this act ; but if, at the time of making the disposition, there shall be a protector of the settlement, and such protector shall not consent to the dispo- sition, and the tenant in tail shall not \\ithout such consent be capable under this act of confirming the voidable estate to its full extent, then and in such case such disposition shall have the efi'ect of confirming such voidable estate so far as such tenant in tail would then be capable under this act of confirming the same without such consent ; provided always, that if such disposition shall be made to a purchaser for valuable consideration who shall not have express notice of the voidable estate, then and in such case the voidable estate shall not be confirmed as against such purchaser and the persons claiming under him.^' Formerh^, if tenant in tail with an immediate reversion or remainder in fee to himself made a lease to commence after the determination of an existing lease, and died before the commencement, and his issue in tail levied a fine to the use of liimsolf in fee, whereby the base fee acquired by the fine {x) ',\ & 4 W. 4. c. 74. 8. ."$1!. And voidable estates where the tenant in Bce sect. fi2, as to the confirmation of tail becomes bankiiipt. Ch. I. S. 11. J WHO MAY BE LESSORS: TENANTS FOR LIFE, ETC. 93 merged in the reversion in fee, and the issue in tail became seised in fee, as if the tenant in tail had died without issue ; the reversionary lease could not be avoided, being derived out of the reversion in fee, which the lessor had at the making of the lease (y) . But now, by virtue of the statute (z), if a base fee in any lands and the remainder or reversion in fee in the same lands unite in the same person, without any intermediate estate, the base fee, instead of merging, as heretofore, becomes ipso facto enlarged into as large an estate as the tenant in tail, with the consent of the protector, if any, might have created by any disposition under the act, if such remainder or rever- sion had been vested in any other person. It remains to add, that, by virtue of a late act of parlia- ment (a), leases of the lands of infant tenants in tail, and lunatic tenants in tail, may be made by the direction of the Court of Chancery in the former case, and of the Lord Chancellor in the latter; but as the particulars of this act are fully set out in the chapters respectively treating of leases by infants {b), and by persons of unsound mind and their committees (c), it will be unnecessary to repeat them in this place. V. — Tenant for life — Tenant by the curtesy — Tenant in tail after possibility of issue extinct — Tenant in dower — Tenant for life and Remainder-man. As a party cannot confer on another a larger estate than he himself possesses, it follows, that a lease at will (d), or from year to year (e), or for years (/), granted by a tenant for (y) SjTnonds, or Simonds, v. Cud- sections 1 7 and 24. more. Holt, 666 ; S. C. 1 Salk. 338; 3 (6) Ante, p. 34. Salk. 335; Carth. 257 ; Skin. 284. 317. (c) Ante, p. 38. 328 ; 4 Mod. 1 ; 1 Show. 370 ; Freem. {d) Ex parte Smyth, 1 Swanst. 355. K. B. 503; 1^ Mod. 32. Anon. Freem. (c) Ibid. Symons v. Symons, 6 Ch. 310. Madd. 207. (s) 3 & 4 W. 4. c. 74. s. 39. (/) Hall v. Arrowsmith, Poph. 105. (a) 11 Geo. 4 & 1 W. 4. c. 65. Jenkins dam. Yate r. Church, Cowp. 94 OF THE CONTRACTING PARTIES. [Part HI. liis own life, or tenant pur autre vie, unless it be authorised by an express power {(j), must expire on the death of the lessor in the one case {h), or of the cestui que vie in the other {i) . Dealing for his own estate, he cannot be under- stood as meaning to affect the interest of another [k) ; and so inflexible is the rule, that a tenant pur autre vie who has granted an absolute term of years may, at law, take advan- tage of the death of the cestui que vie, and evict the lessee without the ordinary notice in ejectment (/), though he (the lessor) be also seised of the reversion by a purchase effected since the demise (m) ; nor can the lessee avail himself of the doctrine of estoppel, an interest having originally passed by the lease {n) . On the other hand, the liability of a lessee of tenant for life ceases with the determination of the estate by the death of the lessor ; nor is he estopped from showing that the estate has so determined (o). But if a tenant for life, seised also of the remainder in fee expectant on an intervening estate tail in the premises, make a lease, the demise, though defeated by his death as to his life estate, may ultimately take effect for the residue of the term out of his remainder in fee, by the decease of the tenant in tail without issue, and without ha\ing acquired the fee b}^ a proper mode of assurance {p). The death, however, of the tenant for life does not deter- mine the right of his lessee to the emblements {q) ; and though the lessee be ousted by a disseisor, and the lessee of the disseisor sow the land, and then the tenant for life die, 482. Roe dem. Jordan v. Ward, 1 H. («) Co. Lit. 47, b. Blac. 97. Ludford v. Barber, 1 Term (Z) 1 Swanst. 357. Rep. 9.5. Doe dcm. Siini)son v. But- (I) Ludford v. Barber, 1 Term cher, ] Dougl. 50. Goodright dem. Rep. 95. Wynne ■!;. Humjjhreys, cited 1 Dougl. (m) Co. Lit. 47, b. Bacon on Leases, 52. Doe dem. Potter v. Archer, 1 p. 127. 1 Rol. Ab. 878. pi. 8. Bos. & Pul. 5;j]. Bowes v. East Lon- (n) Ibid. And see, as to Estoppel, don Waterworks Company, 3 Madd. ante, p. 52. 375 ; S. C. Jacob, 324. (o) Brudnell v. Roberts, 2 Wils. 1 43. (r/) Ex j)arte Smytli, sup. As to (p) Taylor v. Stibbert, 2 Ves. jun. leaHCH Vjy tenants for life with power of 437. 442. And see 3 & 4 W. 4. c. 74. l(!awiiig,Heopo8t, Sect. IV.of (;h. I.Pt. L s. 40. (//) Sec the cases in note ( /'), sup. (f/) Co. Lit. 55, b. Ch. I. s. II.] WHO MAY BE LESSORS: — TENANTS FOR LIFE, ETC. 95 the emblements belong to his lessee ; for the law preserves his right as if he had re-entered (7-) . And if a tenant for life grant a lease for years, and then surrender or forfeit his estate, the lease will remain good during his life, if the years so long continue {s) . The lease of tenant for life, once determined, is incapable of being continued or revived, as an interest cognisable at law, by any act of confirmation by the succeeding owner ; as was particularl}^ exemplified in the case of Ludford v. Barber {t). A tenant for life and the reversioner in fee, then an infant, were parties to a lease for years, which at the time was executed by the tenant for life only. After his decease, during the term, the reversioner, ha\ing then attained his majority, and having executed and confirmed the lease for the remainder of the term, commenced an action of covenant for nonpayment of rent ; but the coui't, deeming the confirmation inoperative, as the lease became absolutely void on the death of the tenant for life, gave judgment in favor of the defendant. And various authorities are to the same effect {u) . A different rule, however, prevails in equity, if the remain- der-man has encouraged an expenditure by the lessee on improvements, in confidence of his continuing tenant ; or has suffered him to rebuild, and does not by his answer deny that he had notice of the lessee's proceedings. Under these circum- stances, he will be prevented from controverting the lease {x). And, even at law, subsequent acceptance of rent, or other acknowledgment of tenancy, may amount to a new demise by f [ ()•) Knevett v. Pool, Cro. Eliz. 463, Dougl. 52. Doe dem. Potter v. Ar- the fii-st page of that number; S. C, cher, 1 Bos. & Pnl. 531. Bowes v. nom. Sir Henry Knivet's case, 5 Co. East London Waterworks Company, 85, a.; Goulds. 143. 3 Madd. 375; S. C. Jacob, 324. (s) Sutton's case, 12 Mod. 557-8. (a:) Stiles r. Cowper, 3 Atk. 692. (t) Ludford v. Barber, I Tei-m. Rep. And see East India Company v. Vin- 86. Hall V. Arrowsmith, Poph. 105. cent, 2 Atk. 83. Jackson v. Cator, 5 (w) Jenkins dem. Yate v. Chui-ch, Ves. 688. Dann v. Spurrier, 7 Ves. Cowp. 482. Doe dem. Simpson v. 231. 235-6. Pilling v. Ai-mitage, 12 Butcher, 1 Dougl. 50. Goodright Ves. 78. 85. Blore v. Sutton, 3 Meriv. dem. Wynne r. Humphreys, cited, 1 237. 247. Anon. Bunb. 53. 96 OF THE CONTRACTING PARTIES. [Part III. the remainder-man from year to year (y), the lessee being a mere tenant by suflPerance in the interval (z). If the confirmation be made in the lifetime of the tenant for hfe, the lease will continue in force for the remainder of the term, and after his decease will be deemed the lease of the reversioner or remainder-man himself («) . But should the lease, in lieu of being made for a term of years absolute, be granted for years determinable on the decease of the tenant for life, the act of confirmation will be nugatory, as the term must necessarily determine ■with the period originally marked out for its continuance (b) . It is said, indeed (c), that if a man make a lease to another for twenty-one years if the lessee shall so long live, and the lessor and lessee join in a grant by deed of the term to another, and afterwards the lessee die within the term, the grantee shall enjoy the land during the residue of the term absolutely. But to reconcile this, says Bacon (d), with the preceding case, it must be intended that in the assign- ment no notice is taken of the express limitation affixed to the lease ; but that they joined in an assignment of the lease for the residue of the twenty-one years, and then it may well be construed to amount to a confirmation by the lessor for that time, as the lessor may confirm the land to the lessee for any longer time, and thereby enlarge his estate or interest. There is no objection to the lease of a tenant pur autre vie being made to commence after his death (e) . If a party take possession of a house under an agreement for a long term, and, after having laid out considerable (y) Doe dem. Martin v. Watts, 2 (a) Hall v. Arrowsmith, Poph. 105. Tcnn Rep. 83; S. C. 2Esp. 501. Roe Mayowe's case, 1 Co. 147, b. ; S. C, dem. Jordan v. Ward, 1 H. Blae. 97. nom. Kettle r. Mason, Poph. .'50; Lane, Roe dem. Brune r. Prideaux, ] East, 38. Lit. s. 529. Co. Lit. 301, a. 187-8. Doe dem. Collins v. Woller, 7 {h) Ibid. Term Rop. 478. Doe dem. Tucker v. (c) In Lanipct's case, 10 Co. 49, a. Morse, 1 Barn. & Adol. 3(;5. (tZ) 3 Bae. Ab. 398. Bacon on (z) Ibid. Preston v. Love, Noy, Leases, p. 127. 120. Roe dem. Jordan t>. Ward, 1 n. (c) Utty Dale's case, Cro. Eliz. Biac. 99. 182. Ch. I. s. II.] WHO lessors: — tenants by the curtesy, etc. 97 sums in repairs and improvements, discover that the lessor was tenant for life only^ it seems tliat he has no lien on the estate for the expenditure (/) . Tenants by the curtesy (^), and tenants in dower (^), though their estates are quodam modo a continuance of the estate of their wives, or husbands_, are, for the purposes of leasing, considered simply as tenants for their own lives ; and, conse- quently, their demises determine on their deaths, without the possibility of being confirmed at law by the succeed- ing owner of the reversion (i). Their lessees holding over, unless recognized by the succeeding owner as tenants from year to year (j), are merely tenants by sufferance (A'); but they are entitled, under the circumstances before noticed (/), to the equity of being quieted in their possession for the remainder of their term. Tenants in tail after possibility of issue extinct are simi- larly circumstanced [m). If tenant in dower lease for years, and marry, her second husband^s executors are entitled to the arrears of rent due at his death [ri). We may here notice two legislative pro\'isions for removing the difficulty of proving the death of tenant for life, or of cestui que vie. The statute of 19 Car. 2 (o), after reciting that divers lords of manors and others had used to grant estates by copy of court roll, for one, two, or more life or lives, according to the custom of their several manors, and had also granted estates by lease for one or more life or lives, or else for years determinable upon one or more life or lives, and that it had often happened that such person or persons for whose life or lives such estates had been granted had gone beyond the seas, or so absented themselves for many (/) Waring r. Mackreth, Forr. 129. Qi) Miller r. Majaiewaring, sup. {g) Miller v. Maynewaring, W. Jo. il) Ante, p. 95. 354 ; S. C, more fully reported, Cro. (w) Bowles's case, 11 Co.79,b.80,a.; Car. 397. S. C, nom. Bowles r. Ben'ie, 1 Rol. (A) Bro. Ab. tit. Acceptaunce, pi. 14. 177. Co. Lit. 28, a. Bro. Ab. tit. Lease, pi. 1 9. (») Anon Mo. 7. pi. 25. (i) Miller v. Maynewaring, sup. (o) 19 Car. 2. c. 6. (i) Ante, p. 96. VOL. I. H 98 or THE CONTRACTING PARTIES. [Tart III. yearSj that the lessors and reversioners could not find out whether such person or persons were alive or dead ; by reason whereof such lessors and reversioners had been held out of possession of their tenements for many years, after all the lives upon which such estates depended were dead, in regard that the lessors and reversioners, when they had brought actions for the recovery of their tenements, had been put upon it to prove the death of their tenants, when it was almost impossible for them to discover the same ; it was enacted (p), that if the person or persons for whose life or lives such estates had been or should be granted should remain beyond the seas, or elsewhere absent themselves in this realm, by the space of seven years together, and no sufficient proof should be made of the lives of such person or persons in any action commenced for recovery of such tenements by the lessors or reversioners, in every such case the person or per- sons upon whose life or lives such estate should depend should be accounted as naturally dead. And by the fifth section it was provided, that if any person should be evicted out of any lands by virtue of the act, and afterwards if such person or persons upon whose life or lives such estate should depend should retiu'n from beyond seas, or should, on proof in any action to be brought for recovery of the same, be made appear to be living or to have been living at the time of the eviction, then the tenant who was outed, his executors, &c., might re-enter for the life or lives, or so long term as the said person or persons upon whose life or lives the said estate should depend should be living ; and should upon action to be brought against the lessors, rever- sioners, or tenants in possession, or other persons who since the time of the said eviction received the profits of the lands, recover for damages the full profits with interest for and from the time that he was outed and held out of the same by the said lessors, reversioners, tenants, or other persons who after the said eviction received the pro- ( p) Sect. 2. Ch. T. s. II.] WHO MAY BE lessors: TENANTS FOR LIFE^ ETC. 99 fits of the said lands, as well in the case when the said person or persons upon whose life or lives such estate or estates did depend were dead at the time of bringing the action, as if the said jjerson or persons were then living. It appears that remainder-men were included within the equity of this statute {q), though it extended in terms to lessors or reversioners only. But that consideration is ren- dered comparatively unimportant by a subsequent act, directed to a similar end, but more extensive, speedy, and efficient, in its operation, passed in the reign of Queen Anne (/•). This act, after reciting that divers persons, as guardians and trustees for infants, and husbands in right of their wives, and other persons, having estates or interests de- terminable upon a life or lives, had continued to receive their rents and profits of such lands after the determination of their said particular estates or interests, and that the proof of the death of the persons on whose lives such particular estates or interests depended, was very difficult, and that several persons had been, and might be, thereby defrauded, enacted [s], that any person who hath, or shall have, any claim to any remainder, reversion, or expectancy, after the death of any person within age, married woman, or other person whatsoever, upon affidavit that he hath cause to believe that such minor, &c., is dead, and that the death IS concealed by such guardian, &c., may once a year move the Lord Chancellor, and he is empowered to order the party concealing, or suspected to conceal, such person, to produce him to the persons and in manner therein men- tioned ; and that, in case of refusal or neglect, the person so concealed shall be taken to be dead ; and that it shall be lawful for the person claiming any interest in the remainder, reversion, or otherwise, to enter upon the lands accordingly. The second section provides, that if it shall appear to the court, by affidavit, that the cestui que vie is or lately was at some certain place beyond the seas, the party prosecuting the (7) Holman r. Exton, Carth. "246^. (r) 6 Anne, c. 18. (*) Sect. I. h2 100 OF THE CONTRACTING PARTIES. [Part III. order may send over persons to view such cestui que vie ; and in case of tlie refusal or neglect of the party concealing, or suspected of concealing, to produce the cestui que vie, in manner therein mentioned, the cestui que vie shall be taken to be dead ; and that the party claiming may enter on the lands accordingly. The thii'd section pro\ides, that if it shall afterwards appear upon proof that the cestui que vie was alive at the time of the order, then the party having the estate determinable on the life may re-enter, and recover the mean profits. The fourth section provides, that if the person holding the estate determinable on life shall prove to the Court of Chancery that he has used his utmost endeavours but with- out effect to procure such cestui que vie to appear, and that the cestui que vie is or was li\ing at the time of the return to the order of the court made and filed, then it should be lawful for such person to continue in possession. And the fifth section enacts, that persons holding over after the determination of the particular estates shall be deemed trespassers, and be liable to an action for damages for mean profits accordingly. As a court of equity Avill not render its assistance to a man who seeks to dis-affirm his own lease, if tenant for life make a lease of coal mines, he cannot support a bill with the remainder-man for an injunction to restrain the lessee from taking the coal, although he allege that the lease was made by mistake, and was a forfeiture of his life estate. If the remainder-man complain he must file a bill alone {t). If tenant for life and remainder-man in fee concur in making a lease for years, the deed during the life of the former operates as his lease, and the confirmation of the latter ; ])ut, after the death of tenant for life, it is the lease of the remainder-man (u) ; for, says Lord Coke {a:), seeing the (/) Wcntworth v. Turner, .3 Ves. li. 2 Dy. 234, b. ; S. C, Anon. Dal. 72. (m) Trei)ort's case, 6 Co. 14, b. Kin;? pi. .52. Milliner v. Robinson, Mo. G82. r. Bory, Poph. .57. Baker r. Ilucking, 6 East, 102-.3. Hall r. Arrowsmith, • Ilutt. 120. Nudigate'.s case, Mo. 72 ; Poph. 10.5. S.(/.,nom. Newflipater. Lord Hastings, (x) Co. Lit. 4.5, a. Cir. I. s. II.] WHO MAY BE LESSOKS: TENANTS FOR YEARS. 101 lessors have several estates^ the law shall construe the lease to move out of both their estates respectively, and every one to let that which he laAvfully may let; and, therefore, a declaration in ejectment on a lease by a tenant for life and remainder-man must be framed with great caution : if the tenant for life be living, the plaintiff must declare on a demise by him ; if not, on a demise made by the remainder- man ; but in no case on the joint lease of tenant for life and remainder-man (y). The like remarks apply to a defendant, who cannot object to a declaration on the ground of its not alleging a joint demise [z). If a husband be tenant for life, with remainder to his wife, her mere concurrence in the lease cannot operate as a con- firmation (a) ; although she may pass an interest out of her remainder by pursuing the course prescribed by the fines and recoveries abolition act (b) . VI. — Tenant for Term of Years. Persons holding terms for years may, in like manner, create subordinate interests by way of underlease; and it may not be superfluous to remind the reader in this place of a distinction already noticed (c) between interests of that description and assignments. By an underlease a new and partial estate only is vested in the underlessee, a reversion being left in the lessor {d), the duration of which is immaterial, as it may be for a year, a month, a day, or an hour. If rent be reserved, a power of distress need not be contained in the deed, such power being (y) Milliner v. Robinson, Mo. 682. (a) Friend v. Eastabroolv, 2 W. Blac. Treport's ease, sup. King v. Bery, 1152. sup. (6) 3 & 4 W. 4. c. 74. s. 77, &c. ; (2) Nudigate's case, Mo. 72 ; S. C, and see Sect. III. of this Chapter, as to nom. Newdigate v. Lord Hastings, 2 leases by husband and wife. Dy. 234, b.; where Brown and Dyer (c) Ante, p. 9, cCsc^., where the cases considered the plea bad ; Weston and on this subject are examined. Walshe, e cortim; S.C, Anon. Dal. 72. (d) Ibid, pi. 52. \{)-Z Ol' THE CONTRACTING PARTIES. [rART III. incident to the demise at common law (e). But as no privity exists between the imderlessee and the original lessor, the covenants entered into between the latter and the original lessee, though they be covenants which run with the land, as to pay rent, to repair, &c., cannot affect, either by Avay of right or liability, the underlessee personally (/). The land, however, is not discharged by the underlease from the claims of the original lessor, who, notwithstanding the subdemise, may proceed to distress or eviction, if the rent be in arrear, or a forfeiture be incurred by his lessee (g). An assignment, on the other hand, transfers, as we have seen (/<), the whole interest of the lessee to the assignee; for, if the lessee retain the smallest reversionary interest, the instrument, though professing to be an assignment, will not operate otherwise than as an underlease (i) : nor, provided the whole interest be conveyed, will the essence of the deed as an assignment be destroyed by its reserving a rent to the assignor, and a power of re-entry for nonpayment [k), or by its assuming, by the use of the word demise, or in any other respect, the character of a lease (/). In the case of an assignment, the assignee is personally liable to the covenants which run with the land; and the premises still remain liable to the landlord's right of distress for arrears of rent. But this part of our subject will be more fully discussed hereafter (m) . If a lessee, on granting an underlease, desire to protect (c) Lit. s. 213. Co. Lit. 141, b. (i) Earl of Derby ?'. Taylor, 1 East, 142, a. Cui-tis V. Wheeler, 1 Mood. & o02. Maik. 49;i (/.•) Palmer v. Edwards, 1 Dougl. (/) IloUord V. Hatch, 1 Dougl. !»:}. ia7, n. [f 59]. Doe dem. Freeman Brewer v. Hill, 2 Aiistr. 413. 419. v. Bateman, 2 Barn. & Aid. 16!). But Anon. Mo. 93. pi. 230. Earl of Derby see I'oultney v. Holmes, 1 Stra. 405 ; V. Taylor, I East, 502. Sparkes v. and ante, p. 9, ct scq. Sniitli, 2 Vera. 275 ; S. C. 1 Eq. Ca. (I) Hicks v. Downing, or Downling, Ab. 47. pi. 6. Pilkington v. Slialler, 2 alias Smith v. Baker, 1 Ld. Raym. 99; Vern. 374; S. C. 1 Eq. Ca. Ab. 47. S. C. 1 Salk. 13. Doe dem. Freeman t>l. 'i. Doe dem. Wyatt v. Byron, 1 v. Bateman, sup. Smith v. Mapleback, Man. Gra. & Sc. 623. G2(>. 1 Term Rep. 441. Parmenter v. (;/) AniHby v. Woodward, (> Barn. (Sc Webber, It Taunt. 593 ; S. C. 2 J. B. Cres. 519; S. C 9 Dow. \ Ry. 536. Mo. 656. (/') .\ntr, p. 9, ry. (in) Post, Part the Sixth. Ch. I. s. II.] WHO lessors: TENANTS FROM YEAR TO YEAR. 103 himself from the consequences of a breach by the underlessee of the covenants contained in the original lease, he must be careful to take from the underlessee covenants corresponding with those contained in that lease, or a covenant of indem- nity against such breach ; as an omission in this particular will prevent his recovering from the underlessee the costs incurred by him, the lessor, in defending an action for a breach brought against him by the original lessor (n) . It is observable, however, that Lord Abinger, C.B., in the case of Walker v. Hatton (o), said, that he was by no means clear that, even if there had been a covenant to indemnify, the costs would have been recoverable, as that would only extend to costs necessarily incurred. The underlessee sometimes stipulates for a clause to pro- tect him from paying his rent till production by his lessor of the superior landlord's receipt for the cliief rent, with a provision that if the chief rent be not paid within a specified time after it shall become due, the miderlessee may pay it, and that the superior landlord's receipt shall be a good dis- charge [p). VII. — Tenant from Year to Year. A tenant from year to year cannot confer by way of underlease an interest exceeding his own in point of diu'a- tion. A demise by him to another, also to hold from year to year, is, in legal operation, a demise from year to year diu'ing the continuance of the original tenancy of the inter- mediate landlord (^), and is properly so described in pleading, although at the time of making the contract no such qualifi- cation is mentioned (r). But it seems that the interest of (n) Penley v. Watts, 7 Mees. & 2 Term Rep. 425. Wei. 601. Walker v. Hatton, 10 (q) Pike v. Ep-e, 9 Barn. & Cres. Mees. & Wei. 249, wherein Neale v. 909; S. C. 4 Man. & Ry. 661. Browne Wyllie, 3 Barn. & Cres. 533, was de- v. W^arucr, 14 Ves. 412. Oxley v. clared not to be law. James, 13 Mees. & Wcl. 209. 212. (o) Walker v. Hatton, sup. ()) Pike r. Eyre, sup. Oxley r. (^)) Roe dem. Gregson v. Harrison, James, sup. 104- OF THE CONTRACTING PARTIES. [Pakt III. tlie underlessee cannot be defeated by the mesne lessee's surrendering his estate in the premises to the lessor {s) : nor can the underlessee's interest be determined by the original lessor's giving him a notice to quit : the notice should be given either by such lessor to his lessee ; or by the mesne lessee to the underlessee (/) . It is clear that a tenant from year to year underletting from year to year, acquu'es such a reversion as w ill entitle him to distrain for rent in arrear {u) . And if a tenant from year to year grant a lease for twenty-one years, his executor may maintain an action of covenant upon it against the underlessee, though the breach be committed after the mesne lessor's death {v). VIII. — Tenant at Will. A tenant at will, from the peculiar nature of his estate, is disqualified from granting a lease available against any one but himself (x) ; for the demise would amount to a determina- tion of the will (y) . The operation, however, of such a lease upon the estate of the original lessor, being the owner of the freehold, has been the subject of some contrariety of opinion. In the Year Book, ]2 E. 4 {z), it is laid down, and confirmed by subse- quent authorities (a), that the lease would cause a present disseisin, unless it were made to commence in futuro [b). But Dyer and Manwood, in opposition to the opinion of Harper, agreed that a lease by tenant at will would not (s) Pleasant deni. Hayton v. Ben- Spark's case, Cro. Eliz. 676. son, 14 East, 234. Co. Lit. 3.38, b. Qj) Ibid, Shaw v. Bai-bor, Cro. And see Doc dem. Beadon v. Pyke, 5 Eliz. 830. Birch v. Wright, 1 Term Mau. & Selw. 146. Hep. 382. 2 Wils. 132. Ilardr. 47- (0 Ibid. (s) 12 E. 4. 12. pi. 5. {u) Curtis i;. Wheeler, 1 Mood. & (a) Anon. Dal. 46, pi. 1. Shaw v. .Malk. 41)3. Oxley r. James, 13 Mces. Barbor, sup. Spai'k's case, sup. Cooper Ik Wol. 2()!». 212. V. Columbcll, Noy, 56. (v) Mackay V. Mackrctli,2Cliit. 401. (i) Cooper v. ColumbolJ, sup. (x) Moss r. (Jalliniorr, 1 Dougl. 283. Cii. I. s. II. J WHO lessors: TENANTS AT WILL, ETC. 105 operate as a disseisin^ but was void ; and they denied 12 E. 4. 12 to be law (c). These decisions are scarcely to be reconciled ; but, in all probability, the entry of the lessee of tenant at will would, in accordance with cases {d) of later occurrence than those before cited, be determined, at the present day, to operate by way of disseisin, or not, at the election of the freeholder. And should he refuse to treat the lease and entry as a dis- seisin, the lessee, it is apprehended, would stand in the relation of a new tenant at will, until converted into a tenant from year to year by acceptance of rent or other acknow- ledgment of a yearly tenancy. As copyholders are, even at this day, but tenants at will, though according to the custom of the manor, their leasing capacity may be noticed in the next division. IX. — Copyholders. A copyholder, whatever quantity of interest he may have, is restrained by the peculiar nature of his tenure from demising his copyhold for more than a year, unless autho- rised by the custom of the manor (e), or the express license of the lord (/). And of this poor privilege of leasing even for a year, which is allowed by the general custom of the king- dom {g), it is said {h), he may be deprived by a particular custom to the contrary. (o) The authority for this assertion 351. Kensey v. Richardson, Cro. EHz. has unfortunately been mislaid. 728. Cramporn v. Freshwater, Brownl. [^d) Blunden v. Baugh, Cro. Car. 133. 302; S. C. W. Jo. 315. Gerrard v. (/) Kensey v. Richardson, sup. Non'is, Latch, 53. Fisher's case, Jackman v. Hoddesdon, sup. Latch, 75. Powseley, or Pouseley, v. ([/) Mathewes v. Weston, W. Jo. Blackman, or Blakeman, Ci-o. Jac. 249; S. C, noin. Mathews r. Whetton, 659; S. C. Palm. 201; 2 Rol. 284; Cro. Car. 233. Leuthall r. Thomas, 2 S. C, nora. Ponesley v. Blackman, J. Keb. 2G7. Molwich v. Luter, or Lu- Bridgm. 12. 3 Mod. 196. Lit. s. 588. ther, 4 Co. 26, a.; S. C. Cro. Eliz. (e) WeUsj;. Partridg, Cro. EHz. 469. 102. Frosel v. Welch, Cro. Jac. 403. 6 Vin. Ab. 118. Wilcock's case, 2 Combes's case, 9 Co. 75, b. Danv. Ab. 195. pi. 9. 1 Rol. Ab. 508, (h) 1 Prest. Abst. 202. 1. 5. Jackman v. Hoddesdon, Cro. EHz. 106 OF THE CONTRACTING PARTIES. [Part III. In some manors, the custom authorises a lease for three years without hcense {i) ; in others, a lease for life and forty years over {k) ; or from three years to three years to the term of twenty-one years (/). In the manor of Highbury, in the County of Middlesex, it appears that the custom warrants the granting of a lease for any term not exceeding twenty- one years (m). And in the manors of Stepney and Hackney, in Middlesex, there is a custom that the copyholders may grant leases without license from the lord for any term not exceeding thirty-one years and four months, in possession, so that such leases be presented to the homage, and entered on the rolls, at the first or second general court met after the making thereof (^^). A custom also that, on payment of ten years^ rent, the lord shall license to let for ninety-nine years, and that on his refusal the tenant may lease without license, has been adjudged good (o) . But a custom that a copyholder for life shall lease for the life of another cannot be maintained (p) . A lease for a longer term than is authorised by the custom or by license occasions a ground of forfeiture of the copy- holder's estate (g'), which the lord may enforce or waive at his option (r). The rule is the same whether the lease be by in- denture or parol [s), or made to commence in futuro {t), and even though the lessee neglect to enter [u), or die before entry [x). But the lessee has a title against every one but the lord {y) ; and, therefore, if a copyholder lease the copyhold (t) Wells V. Partridg, sup. Wil- (/•) Doe dcm. Robinson v. Bousfield, cock's case, sup. 1 Carr. & Kir. 5 ')(! ; S. C. C Q. B. 492. (Ic) Anon. Mo. 15. pi. 27. (.v) Jacknian v. Iloddcsdon, Cro. (/) Sci-iv. Cop. 544, 3rd ed. Eliz. 351. East v. Harding, Cro. Eliz, [in) Kawstorne v. Bontley, 4 Bro. 498 ; S. C. Mo. 392. C. C. 415. (0 Ibid. Harding V. Turpin, Hetl. (n) Scriv. Cop. 544. 3rd ed. 122. {n) Grove v. Bridges, cited in For- {u) Anon. Mo. \M. pi. 329. I»liyry v. Leginghani, 2 Kcb. 344. (.'-) East v. Harding, sup. (y)) Anon. God)). 171, case 23G. (y) Doe deni. Tresidder v. Tresid- Anoii. Mo. fi. pi. 27. Com. Dig. Copy- der, 1 Q. B. 4](i; S. C. 1 Ga. & Dav. hold, (K. 3.), 70. Doe deni. Robinson v. Bousfield, Ui) Anon. Mo.n!4. pi. 3'29. 3 Atk. ill. 1 Cnrr. & Kir. 55H ; S. C. G Q. B. 492. Cji. 1. s. 11. 1 WHO MAY BE LESSORS: COPYHOLDERS. 107 for a term of years exceeding the period allowed by the custom, a prior tenant from year to year holding over after due notice from the lessee to quit, cannot resist an ejectment on the ground of the lessee^s want of title from the invalidity of the lease [z] . So, under a custom authorising a lease for twentj^-ouc years, the copyholder cannot make a lease for that term to commence from a day to come («). In the case of a feme copyholder, hoAvever, a forfeiture occasioned by her husband's unauthorised lease will not affect her after his decease {b). And so, if an infant copyholder make a lease not warranted by license or custom, a forfeiture may be avoided by his refusal to confirm it on attaining his majority (c). No one but the lord at the time the forfeiture accrues can take advantage of it : if he die before entry or seizure, his right does not devolve on the remainder-man or rever- sioner {d) . The license, being only an authority, cannot extend beyond the interest in the manor of the lord who grants it (e) ; and, therefore, a lease granted under a license will cease on the lord's death, if he be only tenant for life ; or on the deter- mination of his term, if he be tenant for years (/); but, as the demise is eff"ected under the authority of the lord for the time being, the remainder-man or reversioner of the manor cannot enter on the copyhold for a forfeiture (^). It is apprehended that the law is the same though the lord granting the license be merely tenant at will, as he may dispense with a forfeiture, not only as to himself, but as to ( z) Doe dem. Robinson v. Bousfield, (d) Lady Montague's case, Cro. Jac. sup. 301; S. C, nom, Hamleu v, Ilamlcn, (a) 0. Bridgm. by Bann. 97. 1 Bulstr. 189. Eastcourt v. Weeks, 1 (6) Savei-ne v. Smith, Palm. 383 ; Salk. 186-7. S. C. Cro. Car. 7; Bendl. 131. 147, the (e) Petty v. Evans, 2 Brownl. 40. second page of that number. 2 Rol. 1 Rol. Ab. 511, Copiliold, (K). pi. 2. 344. 361. Hedd v. Chalener, Cro. Eliz. Mimifas v. Baker, 1 Keb. 25. 149. (/) Ibid. (c) Ashfield v. Ashfield, W. Jo. 157; (rj) Milfax v. Baker, 1 Lev. 26; b.C, S. C. Latch, 19.Q; Godb. 364; Noy, 92. nom. Mimifas v. Baker, 1 Keb. 25. 108 OF THE CONTRACTING PARTIES. [Part III. the reversioner or remainder-man also (A) ; but a lord by tort or disseisin has not the same power (i) . The circumstance of the license not extending beyond the lord's interest in the seigniory, observes Mr. Serjeant Scriven {k), renders it expedient that, in all settlements of manors of which copyholds are holden, but more particularly w^lien the property has been usually let on long leases, or is likely to become improveable by buildings or otherwise, a power should be inserted authorising the person in possession of the manor for the time being, (however limited liis inte- rest,) to grant hcenses to demise for such period of time, and under such restrictions, as circumstances may seem to require ; taking the usual fines, and conforming in all respects to the custom of the manor. A steward cannot, virtute officii, grant a license to demise, though in full court, and in the name of the lord, unless there be express words in his patent to enable him to do so, or special authority be given him by the lord, or by some particular custom ; this doctrine is supported by Sir Edward Coke (/), and C. B. Gilbert (m), but is denied by Kitchen [n). No instance is to be found of a mandamus to the lord of a manor to grant a copyholder a license to demise (o). It is said to have been decided that he may be compelled to do so in equity [p] ; but the authority cited is by no means satis- factory (g). In the case last quoted, facts were stated to show that the tenant had a right to demise for any term not exceeding three years, without license, and that, for a longer tenn, the lord for every license to demise was entitled to 4ard, (i Yin. Ab. Sei-jt. Hawkins, p. 101-2. 210, Copyhold, (Y. o). (m) (Jill). Ton. 333, and 5tli cd. by (5) Regina r. Hale, sup. Ch. I. s. II.] WHO MAY BE lessors: — COPYHOLDERS. 109 license, a court of equity will decree him to grant it accordingly (r) . A memorandum of tlie grant of a license is usually entered on the Court rolls. Generally speaking, the lord^s license must be strictly pursued. And, accordingly, it is held, that a copyholder, under a license to demise for twenty-one years from a time past, cannot make a lease to commence at a future day {s) ; or, if a condition precedent he annexed to the license, an efficient grant cannot be made until the condition be per- formed {t). A condition subsequent has a different opera- tion {u) . But the copyholder is not bound to grant for the exact term specified in the license. Though he cannot demise for a longer, he may for a shorter period ; for instance, a Hcense to demise for twenty-one years authorises a lease for any less interest {v) . So, where a copyholder for life is licensed to make a lease for twenty-one years, if he the copyholder shoidd so long live, he may demise for the twenty-one years, or a shorter term, absolutely ; for the restriction is no more than what the law implies, the lease without any such limitation being determined by the lessor's death. It is otherwise, when the license prescribes that the lease shall be limited to five years, if a stranger shall so long live {x) ; or if the copj''- holder be seised in fee ; for then the license must be strictly pursued, lest the heir should be prejudiced by the continuance of the lease after his ancestor's death (y). If the license has been once exercised and exhausted, a new demise cannot be made without a new license : and, therefore, it seems, that if a copyholder, having a license to lease for twenty-one years from Michaelmas then next, make ('/•) Hungerford v. Austeu, Nels. 49. 535. Worledge ?». Benbury, Cro, Jac. (,s-) Jackson v. Neal, Cro. Eliz. 395. 436. And see O. Bridgm. by Bann. 97. (x) Worledge v. Benbury, sup. O. (t) Hallt'. Arrowsmith, Poph. 106 ; Bridgm. by Bann. 20.5. Haddon v. S. C, nom. Haddon v. Arrowsmith, Arrowsmith, or Hall r. Arrowsmith, Cro. Eliz. 461 ; S. C. Ovv. 72. sup. (m) Ibid. 0/) Ibid. {r) Goodwin i'.Longhurst,Ci'o. Eliz. 110 OF THE CONTRACTING PARTIES. [Part III. a lease accordingly, and before Michaelmas make another lease of the same lands for twenty-one years to commence at Michaelmas then next, the second lease, though void in interest, but good by estoppel, Anil work a forfeiture, the license being satisfied by the first (;r). This was the opinion of Anderson, C.J.; but C. B. Gilbert questions its propriety; ^^for," says he («), "the lease was void in point of interest, and only worked by way of estoppel between the parties; and if no interest passed, how could it be a forfeiture ? Yet had the first lease been surrendered, the second lease would have taken effect, and then the land had been charged with a lease without license ; but till that happened, the land was charged with nothing in point of interest : and this is not like the case of a futiu-e lease ; for there the land is bound presently ; and though this may happen to be a charge, yet the supposi- tion is foreign, and ought not to be intended to work a forfeiture." Though the lease be voidable by the lord of the manor, the lessor cannot take advantage of its not being warranted by license {b) . A license is not necessary to an underlease or an assign- ment by the lessee (c) . By custom, a license to demise, though not in terms extend- ing to the copyholder's assigns, may run with the land, and be exercised by his surrenderee (fi?) . By the late act (e) for enabling ecclesiastical corporations aggregate and sole to grant leases for long terms of years, each lease granted under its provisions by any corporation, cither aggregate or sole, of any lands or houses, mines, minerals, quarries, or beds, of copyhold or customary tenure, oi' of any watercourses, ways, or easements, in, upon, over, (2) Anon. Mo. 184. pi. .320. .^)08. pi. 14. («•/) Gilb. Ten. 219. 220. (d) Whitton v. Peacock, 3 Myl. & (h) Downingham's case, Ow. 17. 18. K. .325. .3.3.5. Ashficld V. AHhficld, W. Jo. ],57; S.C. (e) .5 & 6 Vict. c. 108. See further, \jiiU-h, ]'.)'.); Noy,f)2; Goflb..3fi4. Doe a.s to the provisions of thi.s act, Sect. IV. dein. Tresidder v. Trcsidder, 1 Q,. H. of fliia Chajitor, relating to leases by 4H;; S. CI. 1 (in. f^ Dav. 70. Ercksiastical corporations. ((•) Jolinson T. .Smart, ] Kol. A)). Ch. I. S. 11.] WHO MAY BE lessors: COPYHOLDERS. Ill or under, any such lands, where the copyhold or customary tenant thereof is not authorised to grant or make leases or grants for the term of years intended to be created by sncli lease without the license of the lord of the manor, must be made with the consent of the ecclesiastical commissioners for England, and also of the lord for the time being of the manor of which the same lands, &c., shall be holden ; and such con- sent shall amount to a valid license to lease the same lands, &c., for the time for which the same shall be expressed to be demised by such lease (/) . The consent is to be testified by such person being made a party to such deed, and duly exe- cuting the same {g) . And where the consent of the lord for the time being of any manor is required, and he or she shall be a minor, idiot, lunatic, or feme covert, or beyond seas, the guardian, com- mittee, husband, or attorney, as the case may be, of such lord, but in case of a feme covert not being a minor, idiot, or lunatic, or beyond the seas, with her consent in writing, may execute the instrument by which such consent is to be tes- tified, in testimony of the consent of such lord ; and such execution is, for the purposes of the act, directed to be deemed and taken to be an execution by the lord of the manor [h) . We find in the books, that a copyholder's demise confers a common law interest, capable of supporting an action of eject- ment («). It is certain that the lessee need not be admitted, as he does not become tenant to the lord {k). But upon what principle the copyholder can transfer a portion of the interest (/) Sect. 20. S. C, nom. Sprake's case, Mo. 569. ((/) Sect. 21. Kensey v. Richardson, Cro. Eliz. 728. Qi) Sect. 24. Tui-ner v. Hodges, Hetl. 126; S. C. (i) Melwich v. Luter, or Luther, 4 Lit. 233; Hutt. 101. Erish v. Rives, Co. 26, a. Cole v. Wall, Cro. Eliz. Cro. Eliz. 717. Downingham's case, 224; S. C. 2 Bulstr. 328. Jackson v. Ow. 17. 18. Doe dera. Tresidder r. Neal, Cro. Eliz. 3.94. Wells v Par- Tresidder, 1 Q. if. 416 ; S. C. 1 Ga. & tridg, Cro. Eliz. 469, the first page of Dav. 70. But see Anon. Poph. 188, that number. Goodwin v. Longhurst, and Ever v. Aston, Mo. 271. Cro. Eliz. 535. Collins v. Harding, Cro. (Ic) Watk. Cop. 3rd ed. by Vidal, Eliz. 62.3. Spark'sca-se, Cro. Eliz. 676; vol. 1, p. 368. 466. 112 OF THE CONTRACTING PARTIES. [Part III. which is generally admitted to reside in the lord, is not very clear. They who endeavour to explain it by alleging that the demise is valid against all persons but the lord(/), advance an argument which appears to disprove rather than prove their position; for, by admitting the continuing legal interest in the lord, they in effect deny the copyholder's power of passing a portion of it to another. The current of authority, however, in support of the right of a copyholder's lessee to maintain an ejectment at common law is too strong to be resisted. In the case of a license, the lease, perhaps, in strictness, occasions a forfeiture, though the lord cannot seize or enter, being precluded by his license, which operates as a confirm- ation of the lease (m), or a dispensation with the forfeiture. And, hence, if a copyholder make a lease for years with license, and die without heirs [n), or forfeit his copyhold (o), the lord cannot disturb the possession of the lessee. The custom, or hcense, ought to be specially shown in the declaration, in an action of ejectment brought by the lessee of a copyholder {p). It is amusing to trace the ingenious devices resorted to at various periods for evading the required license, and for pre- ser\dng at the same time the copyholder's estate from for- feiture. In one case ((/), a copyholder made a lease for a year, excepting the last day, and so from year to year, excepting the last day of every year, as long as he lived; but he paid the pe- nalty of his artifice by the forfeitm'e of his copyhold ; it being held, without argument, that it was a certain lease for two years, with the exception of two days, and, therefore, in effect a lease for more than one year. Williams, J., quaintly said (r), (0 Hall V. An-owsmith, Cro. Eliz. Smart, 1 Rol. Ab. 518. pi. 14. 4fil-2. Goodwin v. Longhurst, Cro. (o) Swinnerton r. Miller, Hob. 177. Eliz. .535. Spark's case, Cro. Eliz. 670. (p) Wells v. Tartridg, Cro. Eliz. 469. Ashfield V. Ashficld, W. Jo. 157; S.C. Kensey v. Richardson, Cro. Eliz. 728. Godb. .364. Downingham's case, sup. Gregory r. Harrison, Mo. 679. And Doc dem. Trcsidder v. Tresidder, sup. see Uoo dem. Tresiddcr v. Trcsidder, (»i) Anon. Poph. 188. sup. (n) Tunicr v. Hodges, Hutt. 101; (r/) Luttercl v. Weston, or Wes- S. C. Ilotl. 126; Lit. 233. See also torne,Cro. Jac. 308; S.C. 1 Bulstr.215. Anon. I'opli. 188, and Johnson v. (r) 1 Bulstr. 215. Ch. I.S. II.] WHO MAY BE LESSORS: COPYHOLDERS. 113 that the lessor had made a snare for another, and had catched himself in the same. In another {s), a copyholder made, on the same day, three distinct leases for a year each, leaving an interval of two days between the termination of the one and the commencement of the next succeeding lease; but this plan was not more successful than the last : he forfeited his copyhold, the com't deeming the transaction a fraudulent evasion of the law. It was further held, that the circumstance of the lord^s accepting a surrender from the lessor, without notice of the lease, did not amount to a waiver {t) . In like manner, it has been determined, that if a copyholder empowered by the custom to lease for three years, lease for three years, and so from three years to three years, till nine years, a forfeitm'e is the consequence, as the lease is for six years at the least («-). The reader will perceive that the forfeiture in these cases was the result of an interest being actually granted by the copyholder without Kcense, and exceeding the period allowed by the custom of the manor. But if the excess be not actually granted, but rest merely in contract, a forfeiture will be avoided. This distinction, founded as it is on sound prin- ciple, and first propounded by the court in Lady Montague's case (v), has the sanction of later authority to give it the force of a well-established rule. In the case alluded to (.r), a copyholder demised his copy- holds for a year only, according to the custom of the manor, and covenanted that the lessee should enjoy the lands from year to year during ten years ; and it was held, that, although a lease foB a year by a copyholder warranted by the custom, and so from year to year during ten years, would clearly work (s) Mathews r. Whetton, Cro. Car. (v) Lady Montague's case, Cro. Jac. 233; S. C.,nom. Mathewes r. Wheston, 301; S. C, nom. Hamlen v. Hamlcn, 1 W. Jo. 249 . Bulsti". 1 89. And see Havergil ?•. Hare, (t) Ibid. 3 Bulstr. 252. Doe dem. Wood v. Mor- (w) Wilcock's case, 2 D.anv. Ab. 1 95. ris, 2 Taunt. 52. pi. 9, tit. Copyhold. 1 Rol. Ab. 508, (x) Lady Montague's case, sup. 1.5. VOL. I. I 114 OF THE CONTRACTING PARTIES. [Part III. a forfeiture ; j^et, as the grant of the copyholder in the case in question, being for a year only, with a covenant for the enjoyment for a longer time, did not amount to an actual demise beyond the year, the lord could not enter for a for- feiture. So in Lenthall v. Thomas {y), where a copyholder let the lands in question to A. C, by articles of agreement, with pro- mise and covenant to hold for a year, according to the custom of the manor, and so from year to year for five years, it was resolved that the lord could not enter for a forfeiture. To the same effect is the case of Doe dem. Coore v. Clare {z). On the trial, a paper writing was produced, on an agreement stamp, under the hand and seal of T. Tidd, of whom the lessor of the plaintiff purchased, by which, after reciting that the said T. Tidd had agreed with the defendant, that, in case he should become entitled to the premises, which were copy- hold, after the death of M. S., the then tenant for life, he would immediately on her decease let the same to the defend- ant, on the terms and conditions thereinafter mentioned, it was Avitnessed that the said T. Tidd did thereby agree to demise and let, &c., to hold, fi'om the decease of the said M. S., for the full term of twenty-one years ; and he cove- nanted, on the death of M. S., and on his becoming entitled, to procure a license to let the premises; and for quiet enjo}^- ment ; and the court were of opinion that the instrument in question was an executory agreement only, and not a lease, for two reasons, first, because, if it were held to be a lease, a forfeiture would be incurred, in opposition to the intention of the parties, who, they said, had cautiously guarded against it by the insertion of a covenant that a license to lease should be procured from the lord -, and, secondly, because the stamp was conformable to the nature of an agreement for a lease, and not adapted to an absolute lease (a) . iy) LenthaU v. Tliomns, 2 Kcb. 267. (a) As to tlic stamp affecting the Hut sec Jlicliards v. Cecly, or Scly, .'! constniction of the iiistrunient, see Kerb. (VM; S. C. 2 Mod. 82. post, Part the fourth, Ch. VII, rehit- (c) Doe dem. Coore t'. Clare, 2 Term ing to renewable leases. Rop. TM). Ch. I. s. II.] WHO MAY BE LESSORS : COPYHOLDERS. 115 To these succeeded the case of LufTkin v. Nunn {b) . There, a copyholder in 1795 demised his copyhold to J. S., to hold for one whole year, and, at the end of the said term of one year, from year to year, for and during the term of thirteen years more (in all fourteen years), if the lord would give license and consent, and so as the same should not become forfeited or liable to be forfeited. The lease contained a covenant for quiet enjoyment during the term aforesaid; and many covenants and provisoes applicable only to a lease for several years ; and it was held, that the demise conferred an interest for one year certain, and no more, as the obtaining of the lord^s license (which was afterwards refused) consti- tuted a condition precedent to the grant of a farther estate. It appeared that the lord of the manor, in 1802, purchased the lessor's copyhold, and took a surrender to the use of a trustee for himself, and such trustee was allowed to recover in ejectment against the copyholder's tenant after six months' notice to quit, although he had notice of the terms of the demise when the pui'chase was effected, and although there was an exception in the contract of purchase of all subsisting leases, and the lord afterwards accepted quit rent from the tenant. And Lord Eldon, C, also concm-ring in the decision that there was no lease at law fiu-ther than from year to year, decreed that there was no equity upon the circumstance of the lord's having purchased his tenant's interest with notice of the demise, and the express exception of all subsisting leases, or agreements for leases (c). And, finally, the distinction has been confirmed by the decision of Fenny dem. Eastham v. Child {d), where freeholds and copyholds were demised by the same deed, to hold so much as was freehold for twenty-one years, provided the lessors so long lived, and so much as was copyhold for the term of three years under the same proviso; reddendum, (6) Luffkin v. Nunn, 1 New Rep. (c) 11 Ves. 170. 163; S. C.~ nom. Doe dem. Nunn r. (d) Fenny dem. Eastham r. Child, Luffkin, 4 East, 221 ; S. C. 1 Smith, 2 Mau. & Selw. 255. And .see Raw- 90 ; II Ves. 170. storae v. Bentley, 4 Bro. C. C. 415. I 2 116 OF THE CONTRACTING PARTIES, [Part III. during the said term of twenty-one years, the yearly rent of 3U. lOs. ; and by the indenture, (after several covenants,) reciting that it was thereby agreed that, for the said yearly rent of 31Z. 10^., and under the said covenants, the defendant might hold the premises, as well copyhold as freehold, for the term of twentj'-one years to commence as aforesaid as if that demise had been so made, but that the copyholds were not grantable for any longer term than three years successively, the lessors covenanted with the defendant, that they would within three months next before the expiration of the said term of three years, under the hke covenants, and without any increase of rent, execute to the defendant a new lease of the said copyholds for three years, to commence after the expiration of the former term of three years, and so toties quoties until the term of twenty-one years was expired ; and it was agreed that until such new lease should be executed, the defendant should quietly enjoy both freeholds and copy- holds for the term of twenty-one years ; the court again recognized the difference between an actual demise, and a covenant ; and decided that the instrument in question ope- rated, as to the copyholds, as a lease for three years only, with an executory contract for the remainder of the term ; observing that it was a covenant for such a lease as might be, and not a lease for such an estate as could not be granted; and that a contrary construction would create a forfeiture of the lessor's estate, which was never contemplated by the parties. From these cases it will be seen how anxiously the courts in construing such doubtful instruments avail themselves of slight words or circumstances to prevent a forfeiture, which, according to the authorities (e), is considered odious in law. We may here notice that the previous admission of the copyholder is not essential to the validity of his demise (/). Unless there be a special custom to the contrary, the husband's lease will take precedence of the widow's free- (c) Moody V. Gamon, Mo. 848; S.C., nom.Wood v. Gcniioiis, Cro. Jac. S. C. 1 Rol. 330. .'?()7; S. C, nom. .3.00. Sanders r. Pope, 12 Ves. 2.90. Moodic V. Gamancc, 3 15ulstr. l.'')3; (/) Bullock v. Dibley, Mo. 596. Cn. I. s. II.] WHO MAY BE LESSORS : COPYHOLDERS. 117 bench; for lie comes midcr the custom, aud by the lord's license, as well as the feme {g). By articles of agreement under hand and seal, after re- citing an agreement for letting certain copyhold premises to one Price for twenty-one years from the 25th of March, 1820 ; that it had been agreed that the defendant should be accepted as tenant in lieu of Price ; that the plaintiff was wiUing to let them to him as soon as a license for the purpose should be granted to him by the lord of the manor, but not before ; the plaintiff, in consideration of the covenants and agreements thereinafter contained on the part of the defendant, covenanted, that, when and so soon as a license should have been pro- cured by the plaintiff from the lord of the manor, he would lease the premises to the defendant for the residue of the term of twenty-one years, to be computed from the 25th of March, 1820; and the defendant covenanted thenceforth during the residue of the said term to pay the rent, and during the term thereby agreed to be granted to pay all taxes, and from time to time during the term to be granted as afore- said to repair the premises ; and the plaintiff also covenanted for quiet enjoyment during the remainder of the term : the defendant entered into, and retained undisturbed possession of, the premises tiU the term expired by effluxion of time ; but, as the lease was never granted, nor license obtained, he con- tended that he was not liable to an action of covenant for not keeping the premises in repair : but it was held, that the parties evidently intended to covenant with each other, independently of the lease to be afterwards granted; and that the defendant, having had the full benefit which he could have enjoyed under the lease, could not dispute his liabihty on the covenant because the lease was not granted (/«). Tlie anomahes connected with this branch of the law did not escape the vigilance of the Real property commissioners, Avho, considering the impediments thrown in the way of im- {{)) Fareley's case, Cro. Jac. 3C ; Salisbuiy deru. Cooke v. Hurd, Cowp. S. C, nom. Holder v. Farley, Mo. 75!!. 481. Dugworth T. Radlord, W. Jo. -Ki-i. (A) I'iator I'.Cater, yMeea.&W.315, 118 OF THE CONTRACTING PARTIES. [Part HI. provement by the present system, recommended (i) that a power should be given to the copyhold tenant to grant a lease at rack rent for twenty-one years, out of his own interest, without the license of the lord ; a recommendation, however, that has not been adopted. By the late act, passed in consequence of their suggestions {k), lords of manors and their tenants were empoAvered to enter into an agreement for the commutation of the lord's rights for the payment of an annual sum by way of rent-charge on the lands in respect of which the commutation or enfranchise- ment might be made. And it was provided (/), that every tenant or occupier who should pay any such rent-charge, or any expenses legally chargeable under the act upon the land of which he should be such tenant or occupier, should be entitled to deduct the amount from the rent payable by him to his landlord, and should be allowed the same in account with his said landlord. And a right of distress was given [m) to the person entitled to the rent-charge in case it should be in arrear for twenty- one days after any half-yearly day of payment, ten days' notice in writing being given or left at the usual or last known resi- dence of the tenant in possession ; provided that not more than two years' arrears should at any time be recoverable by distress. By another act [n) made to amend and explain the act of 4 & 5 Vic. c. 35, an enfranchisement may be made, either wholly or in part, for the consideration of a grant of an annual rent in fee to be thenceforth charged on and issuing out of the lands enfranchised; and any commutation or enfranchise- ment may be made, either wholly or in part, for the consider- ation of a conveyance of lands parcel of the same manor as the lands commuted or enfranchised, and subject to the same uses and trusts as the lands commuted or enfranchised shall (t) 3r(l Real property report, p. 1 9. such rights, and for facilitating the (/•) 4 & 5 Vict. c. 35, entitled " An enfranchisement of such lands, and for .ict for the commutation of certain the improvement of such tenures." manorial rights in respect of lands of (/) Sect. 45. cni)yhold and customary tonuro, and (?») Sect. 47. in respect of other lands subject to {n) H Vict. c. 23. Ch. I. S. II.] WHO MAY BE lessors: — COPYHOLDERS. 119 be subject to at the time of such commutation or enfranchise- ment (o); and the annual rent so granted shall be a rent- ser^dcc, and thenceforth parcel of and appendant and appur- tenant to the same manor as the lands enfranchised (j)) . If the person for the time being seised in possession of such annual rent^ or entitled to the receipt thereof, shall be so seised or entitled for a particular estate, (Avhether such estate shall have been subsisting at the time of the eufran- cliisement of such lands or not,) it shall be laAt^ul for him, whether he shall be so seised or entitled in actual possession, or in remainder or reversion expectant on the determination of any estate for a term of years, to divide and apportion such annual rent, and to declare what part and proportion thereof shall be thenceforth severally charged upon each of the respective pai'cels of such lands between which such apportionment is intended to be made, and after such appor- tionment such annual rent shaU be chargeable upon and payable out of such lands only, and in such parts and pro- portions only as shall be so declared. Provided nevertheless, that it shall not be lawful for any person so seised or entitled in respect of an undivided share only of such annual rent to divide and apportion such annual rent, unless the person for the time being enabled either by the act or otherwise to divide and apportion the same, as respects the other undivided share thereof, shall join in dividing and apportioning such annual rent {q) . If the person seised of such lands in possession, or entitled to the receipt of the rents, issues, and profits thereof, shall be so seised or entitled for a particular estate, (whether such estate shall have been subsisting at the time of the enfran- chisement of such lands or not,) it shall be lawful for him, whether he shall be so seised or entitled in actual possession, or in remainder or reversion expectant on the determination of any estate for a term of years, and with the consent of the Copyhold commissioners, to concur in any division or appor- (o) Sect. 1. (p) Sect. 2. (fj) Sect, 4. 120 OF THE CONTRACTING PARTIES. [I'aiit III. tionment of such annual rent, and to agree what part and proportion thereof shall be thenceforth severally charged upon each of the respective parcels of such lands between which such apportionment is intended to be made : Provided never- theless that it shall not be lawful for any person so seised or entitled in respect of an undivided share only of such lands to concur in or agree to any such division or apportionment, unless the person for the time being enabled either by the act or otherwise to concur in such division or apportionment as respects the other undi\ided share of such land shall concur in or agree to such apportionment (r). It is further provided {s) that a sub-lessee under any sub- lease, his executors, administrators, or assigns, shall not, in consequence of any charge under the act, either with an annual rent, or in consequence of any apportionment under the act either of an apportioned annual rent, or of any rent reserved in any lease, be liable to the payment of any greater sum of money than he would have been subject or liable to if such charge or apportionment had not been made. If, at the time of the conveyance under the act, in consi- deration either whoUy or in part of the commutation or enfranchisement of any lands held by copy of court roll, there shall be subsisting in the lands so conveyed any lease, (not being an underlease), the lessee under such lease, his executors, administrators, and assigns, shall pay, observe, and keep, to and with the person to whom such lands shall be so conveyed, or other the person for the time being seised of or entitled to such lands expectant on the determination of such lease, and his executors or administrators, the rent, reservations, covenants, conditions, and agreements, respect- ively reserved and contained in such lease, or such and so many or such part of the rent, reservations, covenants, con- ditions, and agreements, respectively reserved and contained in such lease, as arc or ought to be tlicnceforth respectively paid, observed, and kept, in respect of the lands so conveyed; (r) Se(H. o. (.1) Sect. 8. Cu. I. s. II.] WHO MAY BE LESSORS : COPYHOLDERS. 121 and the person to whom such lands shall be so conveyed, or otlier the person so for the time being seised of or entitled, shall and may from time to time make or bring all such distresses, actions, suits, or entries, for non-payment of such rent or reservations, or for non-performance of the covenants, conditions, and agreements, in such lease respectively reserved and contained, as could, in case such conveyance had not been made, have been made or brought by the person making such conveyance, or other the person for the time being seised of or entitled to the reversion expectant on the deter- mination of such lease; and that in all such distresses, actions, suits, and entries, the rent, reservations, covenants, conditions, and agreements, in such lease reserved and con- tained on the part of the lessee, his executors, administrators, or assigns, shall be deemed and taken to be annexed to an immediate reversion vested in the person to whom such lands shall be so conveyed, or other the person for the time being so seised of or entitled to such lands (/). And if at the time of any commutation or enfranchisement under the act of 4 & 5 Vic. c. 35, or under the act of G & 7 Vic. c. 23, of any lands, there shall be subsisting in such lands any lease, (not being an underlease,) the lessee under such lease, his executors, administrators, and assigns, shall pay, observe, and keep, to and with the person for the time being seised of or entitled to the lauds so commuted or enfranchised, and his executors or administrators, the rent, re- servations, covenants, conditions, and agreements, respectively reserved and contained in such lease, or such and so many or such part of the rent, reservations, covenants, conditions, and agreements, respectively reserved and contained in such lease, as "are or ought to be thenceforth respectively paid, observed, and kept, in respect of the lands so commuted or enfranchised; and the person for the time being seised of or entitled to the lands so commuted or enfranchised shall and may from time to time make or bring all such distresses, actions, suits, or (0 Sect. .0. 122 OF THE CONTRACTING PARTIES. [Part 111. entries^ for non-payment of such rent or reservations, or for non-performance of the covenants, conditions, and agreements, in such lease respectively reserved and contained, as could have been made or brought by the person who would for the time being have been entitled to the lands so commuted or enfranchised in case such commutation or enfranchisement had not been made ; and in all such distresses, actions, suits, and entries, the rents or reservations, covenants, conditions, and agreements, in such lease reserved and contained on the part of the lessee, his executors, administrators, or assigns, shall be deemed and taken to be annexed to an immediate reversion vested in the person for the time being seised of or entitled to the lands so commuted or enfrancliised {u) . X. — Tenant at Sufferance. A mere tenant at sufferance has no demisable estate; at least as against any one but himself (.2?) . XI. — Tenant by Elegit ; Statute Merchant ; Statute Staple ; and Recognizance in nature of a Statute Staple. The lease of tenant by elegit, statute merchant, statute staple, and tenant in possession under a recognizance in the nature of a statute staple, partake of the precarious nature of tlic Icssor^s interest, and is determinable at law by payment of the sum for which the lands were originally extended. But equity has sometimes adopted a different rule. In an early case (y), one Hudson gave a judgment for 400Z. to the defendants, who were executors of one Short, to secure a debt of 220^. due from Hudson to Short. Hudson afterwards devised certain premises to the plaintiff, and died; and after his death tlie executors of Short extended a moiety of the (m) Sect. 10. Belcher, 3 East, 451. (a) Sliopland v. Ilydler, Ci'o. Jac. (y) Doughty v. Stiles, Rep. temp. .1% A'fff. Thunder dcm. Weaver v. Finch, 11 o. (11. 1. s. 11.] WHO MAY BE LESSORS : CESTUI QUE TRUST. 123 lands so devised^ and leased the same for seven years at a yearly rent of 25/. The plaintiff exhibited his bill against them to be relieved against the judgment, and to redeem the lease, and to bring the executors to an account ; but it was held that the lease ought not to be impeached. The executors, however, were decreed to account for certain goods sup- plied by, and money received of, Hudson by their testator, and for the profits of the lands before the lease, and for the rent of 25/. per annum after it. And it was further decreed, that, on paying what was due to the defendants, they should acknowledge satisfaction on the judgment, and release and convey the extended premises to the plaintiff, free from all incumbrances made by them, except the lease. Under a fieri facias, the debtor's term for years remains in him until an actual assignment by the sheriff; and, therefore, a piu'chaser of it cannot make a vahd lease of the legal estate before such assignment {z). XII. — Cestui que trust. A cestui que trust, having only an equitable estate is, of com-se, incapable, without the concurrence of his trustee, of conferring a legal interest (a) . His demise may operate by way of estoppel {b), or give a good title in equity ; but such a tenancy is too precarious to be relied on ; for the lessee, being deemed at law a mere trespasser as against the trus- tee (c), is liable to eviction at law without previous notice to quit ; and must seek for redress in equity. It is the better opinion that the statute 1 Rich. 3. c. 1. is now destitute of aU operation whatever {d). For the pm-pose of security, therefore, both trustee and (s) Playfair v. Musgi-ove, 14 Mees. Term Rep. 487. 492. & W. 239; S. C. 3 Dowl. & Lown. 72. {d) 1 Rich. 3. c. 1. See the 1st (ft) As to- leases by trustees, sec Chap, in Sanders on U-ses, and parti- post Sect. IV. of this Chapter. cularly p. 45, 4th cd. ; and p. 42, oth (h) See as to Estoppel, ante, p. 52. ed. by Sanders and Warner ; and (c) Plowd. 349. Blake v. Foster, 8 Gilb. on Usts, by Sugd. p. 67, n. 124 OF THE CONTRACTING PARTIES. [ParX 111. cestui que trust should concur in a demise, as in the case of a mortgagor and mortgagee (e) . The trustee should " demise and lease/' and, on the part of the cestui que trust, words of demise sliould be inserted, as well as words of consent and approbation. If there be several cestuis que trust, the con- cuiTence of all should be obtained ; for if a trustee under a will concur with some but not all of the cestuis que trust in making a lease, which recites part only of the trusts, the lessee cannot hold in opposition to the other cestuis que trust, not parties to the lease : the circumstance of the recital rendering it incumbent on him to make further inquiry, he is considered as having had notice of the title of the other claimants under the will (/). The rent should be reserved generally during the term, without specifying to whom ; leaving the law to give it its due approj)riation [y) . And the covenants, to make them run with the land, should be entered into with the trustee {h) . Section III. — With reference to number and CONNECTION. I . — Joint-tenants. Joint-tenants, holding (according to the technical phrase) per my et per tout (i), enjoy a singular and anomalous species of tenure. . During their joint ownership they constitute but one tenant of the whole land, and are then said to be seised per tout; but, for the purposes of alienation, each has an exclusive right to and dominion over a moiety ; and in this sense, adopting Lord Coke's exposition {k), which is more (') Post, Sect. III. of this Chapter. 393. Stokes v. Russell, 3 Term Rep. (/) Malpas V, Aekhind, 3 Russ. 273. fi78. Russell v. Stokes, 1 II. Biac. ^Ai'l. (()) Whitlock's case, 8 Co. (li), li. (*) Lit. s. 2»«. 2 lila. Com. 1«2. 7 1, a. (/) Co. Lit. 186, a. {h) Wehh V. Russell, 3 Term Ri'i). Ch. I. S. III.] WHO MAY BE LESSORS : — JOINT-TENANTS. 125 simple and intelligible than Littleton's (/), or Blaclcstone's(m), must be understood the expression that joint-tenants are seised or possessed per my. To illustrate this position : Tf there be two joint-tenants, and one of them make a lease of the whole land at one time, and the other make a lease of the whole land at another time of the same day, the moiety only of each joint-tenant will pass. Each of them, being seised per my et per tout, may make a lease of the whole, but no more than his moiety will be affected by it. The terms granted, as they arise from the several interests of several persons, will be several and dis- tinct, though the same in point of duration [n). Joint- tenants may, therefore, join in demising their estate, or either of them may demise his own undivided share to a stranger, or to his companion (o) . So, where there are more than two, either of them alone may grant his share singly, or concur with any other or others in granting their shares jointly. If two of three, for instance, join in a lease, two undivided thirds of the land will pass {p) . Joint-tenants usually concur in demising, with one red- dendum ; the lessee's covenants being entered into with them and their heirs and assigns, or their executors, administrators, and assigns, according to the nature of the reversion ; but without any words of severance. We may consider the quality of a lease ; first, where joint- tenants concur in granting it ; and, secondly, where either of them separately leases his own portion. 1. Where they concur, the lessee's interest continues notwithstanding the decease of either of the lessors, and the whole rent is payable to the survivor {q). So, if the lease be at will, the death of one of the lessors does not operate as a countermand of the tenancy, even for a moiety. All survives (/) Lit. s. 288. (;)) Philpott r. Dobbinson, 3 Mo. & (m) 2 Bla. Com. 182. Pa. 320. (ii) Morris v. BaiTy, 1 Wils. 1 . And (5) Henstead's ca.se, .5 Co. 1 0, h. see Bellingham v. Alsop, Cro. Jac. 53. Doe dem. Aslin v. Summersett, 1 Barn. (0) Co. Lit. 186, a. Jurdain r. & Adol. 1.3.->. 14 0. Steere, Cro. Jac. 83. 126 OF THE CONTRACTING PARTIES. [Part III. to the other ; and, if the lessee continue his possession, the surnvor may maintain an action for the whole rent on account of the privity (r). If two or more joint-tenants make a lease by parol, or deed-poll, reserving rent to one of them, the reservation will enure to both in respect of the joint reversion (5) . If, however, the lease be by indenture, reser^dng rent to one, the other will be precluded by estoppel from disputing the reservation it). But if one joint-tenant in fee take a lease for years from a stranger by deed indented, and die, the survivor will not be bound by the conclusion or estoppel; because he claims above and not under it (m). Though the title as well as the estate of joint-tenants is undi\dded, yet each has his own particular portion. Theii' joint demise operates to a certain extent as a demise by each of his share ; and, therefore, one of several joint-tenants who had joined in a demise from year to year, on giving due notice to quit, may recover his several share in ejectment on his several demise, without the concurrence of his co-tenants {x) . But the true character of a tenancy from year to year under a joint demise by joint-tenants is not that the tenant holds of each the share of each so long as he and each shall please, but that he holds the whole of all so long as he and all shall please. It is competent, therefore, to either of the lessors to put an end to the tenancy as to the whole (y) ; and an ejectment may be maintained on the joint demise of all the lessors, though the notice to quit be given by one of them only [z). In the case of Right v. Cuthcll («), where the premises in question had been demised for a term of twenty-one years, subject to a proviso, that, in case cither landlord or tenant, (»•) Hcn.9tead's case, sup. (x) Doe dem. Whayman v. Chaplin, (a) Sacheverel v. Frogatc, 1 Vent. .3 Taimt. 120. Doe dem. Aslin t'. Sum- ICl ;S. C.,nom. Sacheverell i;. Walker, mersett, 1 Bax-n. «Sc Adol. 1.35. Frcom. K. B. Ifi. Lit. 3.346. Co. Lit. (y) Doe dcm. Aslin v. Summersett, 4 7, a. 1 92, a. sup. (<) Sacheverell). Frogatc, or Walker, (c) Ibid. Hup. Co. Lit. 47, a. lf)2, a. 214, a. (a) Right dcm. Fisher r. Cuthell, 5 Lit. 8. 346. Esp. 14.0 ; S. C. r, East, 491. (?t) Co. Lit. IJir., a. Ch. 1. S. III.] WHO MAY BE LESSORS: JOINT-TENANTS. 127 or their respective heirs, executors, &c., shoukl be desirous at the expiration of the first seven or fourteen years of the term to determine the lease, and should give six montlis^ previous notice in writing under his or their respective hand or hands to or for the other or others, or for the heirs, executors, &c., of the other or others of them, the term should cease ; and the lessor died, ha^dng appointed Fisher, Nash, and Hj'rons, his executors, it was held that notice given to the tenant by Fisher and Nash, on behalf of themselves and Hyrons, who was abroad, to quit the premises at the end of the first fourteen years of the terra, was not sufficient. It will be observed that in this case the specific mode of putting an end to the term required the concurrence of all the joint- tenants, and that this mode was not pursued, a circumstance which distinguished it from Doe dem. Aslin v. Summersett(i). If an entire rent be reserved on a joint demise, one of the lessors alone cannot maintain an action of debt for it (c). He may distrain ; but then he must avow in his own right, and as bailiff to his co-tenant, to whom he is accountable [d). Payment, however, to one is payment to all (e). 2. One joint-tenant, as we have seen, may lease his share of the estate, in opposition to the express wish of his companion. And, as each of several joint-tenants in fee, or for their hves, has an estate not only for his own life, but for his companion's too, he may grant a lease for years of his own share to commence at a future day, nay even after his death (/), Qj) 1 Barn. & Adol. 141. 2 Rol. 446. 474. 485. Anon. 1 And. (c) Co. Lit. 180, b. Lit. s. 311. 16. Sharpner i-. Hardenham, Mo. 3.95. {d) Bonoyon v. Palmer, 5 Mod. 71 ; Grute v. Locroft, Cro. EUz. 287; S. C. S. C, nom. PuUen v. Palmer, 5 Mod. cited, Mo. 395. Cart. 155. Clerk v. 1 50 ; Carth. 328 ; 3 Salk. 207. And Clerk, 2 Vem. 323. Whitlock v. Hor- see Stedman r. Bates, 1 Ld. Raym.64; ton, Ci'o. Jac. 91 ; S. C, nom. Wliit- S. C. 1 Salk. 390 ; S. C, nom". Sted- lock v. Hartwell, Godb. 146; Mo. 77G; man v. Page, or Page v. Stedman, 5 S. C, nom. Whitlock v. Chartwell, Mod. 141; Carth. 364. See also De- Noy, 14. Smaleman v. EigbuiTow, 3 charms v. Horwood, 10 Bing. 526. Bulsti'. 273; S. C, nom. Smalman r. (c) Ibid. Agborow, Cro. Jac. 417; J. Bridgm. (/) Harbin r. Barton, Mo. 395 ; 42-3; 1 Rol. 401. 441. Anon. 2 Dy. S. C. Goldesb. 187; S. C, nom. Harbin. 187, a. Ilerbin v. Chard, Poph. 96. V. Loby, Noy, 157; cited, Cro. Jac. 91 ; 3 Salk. 204. Lit. s. 289. 128 OF THE CONTRACTING PARTIES. [Part ITT. the term in the meantime existing in interest, though not in possession [g] . And the same rule prevails in the case of joint-tenants for years [h). In this respect a lease is distinguishable from a debase, which is no present binding disposition upon the devisor him- self, as he may revoke his will ; and, therefore, the devise, not taking effect till his death, comes too late to prevent the sur- vivorship, which is preferred as the elder title (e). So, all grants or charges by one joint-tenant out of the land fall off with his life, and cannot affect the survTiVor ; because being- no immediate disposition of the land itself, that land comes whole and entire to the sur\dvor under the first title, and, consequently, overreaches all intermediate charges or grants thereout by the other joint-tenant who is dead {k). A joint-tenant, however, cannot, unless empowered by the late act to amend the law of real property (/), make a valid lease at law for more than his moiety, or other aliquot share ; although he should prove the survdvor (m) . But he may, by way of contract in equity, bind the portion which he has the possibility of taking by survivorship. If the deed, though purporting to be the lease of all, be executed by only one of the joint-tenants, it operates on the share of that one only, who may maintain an action for pay- ment of his share of the rent reserved to all(7z), or distrain for the same in any part of the land (o) . One of the peculiarities attending the relation of joint- tenants for life renders it necessary to guard against a sever- ance, the effect of which is to constitute a tenancy in common, and thus destroy the interest which each co-tenant previously had in the land for his companion's life, as well as his own [p] ; (f/) Grute V. Locroft, sup. sop, Cro. Jac. 52-3. (/t) Co. Lit. 184, b. 18o, a. (n) Cai'twTight's case, or Bond v. (i) Bacon on Leases, p. 1.31. Cai'twright, cited, 1 Vent. 136. 162. 2 (^•) Ibid. Lit. 9. 289. Keb. 795. And see Co. Lit. 102, a. (0 8 & .0 Vict. c. 1 06. 8. 6, set out (o) 3 Bulsti-. 1 33. ante, p. 49. (^)) Farington's case, 1 Dy. 07, a. (m) Whitlock V. Morton, Hartwell, 2 P. Wms. 740. Co. Lit. 191, a. or Chnrtwoll, sup. Bcllingliam r. Al- Cii. I. 3. III.] WHO MAY BE lessors: JOINT-TENANTS. 129 and, therefore, if one of two joint-tenants for life lease for years to commence after his death, and the co-tenant by sur- rendering sever the joint-tenancy, the lease will determine by the death of the lessor [q). So, if one of two joint-tenants for life make a lease for sixty years, if he and his com.panion live so long, it will determine by the death of either ; although, after the lease, the lessor surrender his moiety, and take back a new estate (r). But it seems that if one of two joint-tenants for their lives lease for years, and after- wards convey his share to his co-tenant, the latter cannot defeat the lease on the death of the lessor, for, as to the lessee, he is under the joint-tenant of whom he purchased {s). The marriage of a feme sole, joint-tenant with another, will not sever the tenancy ; and, accordingly, a lease for years made by her and her husband will continue in operation after her decease against the surviving joint-tenant [t) ; nor can a husband sever the joint-tenancy of a lease granted to him and another, by assigning a moiety to his wife (m). If one of two joint-tenants for lives make a lease of his moiety, reserving rent to himself and his heii's, the term will continue after his death; but the lessee will hold dis- charged of rent ; for the surviving joint-tenant claims from the original feoffor, and paramount the lease and the reser- vation [x), and the heirs cannot claim it, having no reversion or interest in the land [y] ; but Bacon {z) adds a quare, whether the executors or administrators cannot maintain an action of debt or covenant, either upon the covenant (5) 3 Salk. 206. S. C. Prec. Ch. 124; 1 Eq. Ca. Ab. (r) Daniel v. Waddington, Cro. Jac. 293. pi. 2. 377; S. C. 1 Rol. 300; 3 Bulstr. (.t) Anon. 2 Dy. 187, a. J.Bridgm. 130. 44. Blaxton v. Heath, Poph. 145. (s) Lord Aburgaveny's case, 6 Co. Daniel v. Waddington, 3 Bulstr. 133. 78, b. Shelley's case, 1 Co. 96, a. ; S. C. Mo. (<) Smalnian v. Agborow, Cro. Jac. 139. Shmy v. Brown, 3 Bulstr. 330. 417; S. C, nom. Smaleman v. Eigbm-- Co. Lit. 185, a. 318, a. row, 3 Bulstr. 272. 1 Rol. 401. 441. (.?/) Bacon on Leases, p. 131; Bac. J. Bridgm. 42-3. Ab. tit. Leases, (I) 5. (?0 Moyse v. Giles, 2 Vera. 385; (z) Ibid. VOL. I. K 180 OF THE CONTRACTING PARTIES. [Part III. in law, or express covenant, for payment of the money, if there be any. To obviate any question on the subject in the case of a lease by one joint-tenant in fee, the joint-tenancy shouhl previously be severed, by which means the rent will sur- vive to the heir or devisee of the reversion after the lessor's death. The effect produced on the joint-tenancy by the lease of one only of the tenants depends, in the first place, on the quantity of estate enjoj^ed by the lessors, and, in the second, on the quantity of estate granted to the lessee. If A. and B. be joint-tenants in fee, and one of them lease to C. for hfe, a freehold interest, the jointm^e is severed during the lease, and C. and B. for the time will hold as tenants in common («), and A. and B. will resume their joint-tenancy on the determination of C.'s lease in the life- time of A. and B. {b). But if A. lease to C. for years, a chattel interest only, it appears that the jointure is neither absolutely severed nor suspended for the term ; but A. andB. will continue joint-tenants as before (c). So, if they join in a lease to two persons, habendum the one moiety to the one for life, and the other moiety to the other for life, the reversion is severed, being dependent on several freeholds {d). And the same effect was formerly produced by a joint demise to an abbot and a secular man for the term of their lives (e). On the other hand, if there be joint-tenants for years, the underlease of one so effectually severs their tenancy, as to render it incapable of revival, though the underlease deter- mine during their joint lives. For the remainder of their o\vn term, as well after the conclusion of the underlease, as during its continuance, they hold the reversion as tenants in common (/). The reason assigned is, because a term for a (a) Lit. 8. 302. Co. Lit. 192, a. (d) Co. Lit. 191, b. 192, a. (h) Co. Lit. 193, a. 214, a. (e) Ibid. (c) Co. Lit. 1«5, a. 2 Prcst. Abst. (/) Sym's case, Cro. Eliz. 33. Co. r>H. But 800 Clerk v. Clerk, 2 Vern. Lit. 192, a. 199, a. Lit. .s. 319. .32.3, cont. Ch. I. s. III.] WHO MAY BE LESSORS: TENANTS IN COMMON. 131 small number of years is in contemplation of law as higli an interest as one for a greater number {g). A lease by one joint-tenant of liis share to his co-tenant operates quodam modo as a severance, or rather extinguish- mentj of the jointure for the time (A). If there be three or more, tlie lessee would hold the share demised to him as tenant in common with the others (%], II. — Tenants in common. Tenants in common are considered as holding several free- holds, or other distinct interests, according to tlie quantity of their estates, the only unity among them being that of pos- session {k). The rule of smndvorship does not constitute an ingredient in their tenure. On the decease of either of the lessors, the reversion of his share, according to the nature of his estate, will descend to his heir, or devolve on his executor, and carry with it the title to the rent in respect of that share ; the lessee and the sm*- vivors or survivor holding in common during the continuance of the lease (/) . Each tenant in common, therefore, may grant his undi- vided share for any interest commensurate with his own, either to a stranger, or his companion (m), or two, three, or more, or all, of several tenants in common may concur in one lease, which, however, will operate as the distinct demise of each tenant of his part, and not as the joint demise of all (w) ; and should be so stated in pleading (o). ((/) Co. Lit. 192, a. v. Henston, Cro. Jac. 611 ; S. C, nom. Qi) Co. Lit. 186, a, Hudson v. SneUgar, 2 Rol. 212. Story (i) Jui'dain v. Steere, Cro. Jac. 83. v. Johnson, 2 Yo. & Col. Exch. 586. JBlackasper's case, Noy, 1 3, semb. S. C. 596. (A) Co. Lit. 189, a. Lit. s. 292. (to) Bac. Ab. Joint-tenants, (H) 1. Pullen v. Palmer, 3 Salk. 207. Burne Mantle v. Wollington, Cro. Jac. 166. V. Cambridge, 1 Mood. & Rob. 539. Heatherley dem. Worthington r. Wes- (Z) Co. -Lit. 199, a. Wilkinson i-. ton, 2 Wils. 232. Bm-ne v. Cambridge, Hall, 1 Bing. N. C. 713. 718; S. C. 1 I Mood. & Rob. 539. Scott, 675; 1 Hodg. 170. (o) ChaUoner r. Davies, ) Ld.Raym («0 Anon. Mo. 71. pi. 194. Snclgar 400-4. K 2 132 OF THE CONTRACTING PARTIES. [Part TIT. Tliere is no estoppel in such case, because an interest passes from each lessor {p). A declaration in debt by the survivor of two tenants in common alleging that he and the deceased were seised of the entirety of the premises demised cannot be supported {g) . A reservation of a rent of 20^. to the lessors will entitle them to only one sum of 205. (r). We may here add a few words respecting the right of tenants in common to join or sever in action in respect of their demise. If the action be in the realty, like ejectment, tenants in common cannot be joined as plaintiffs ; for, being brought in respect of the title to the land, and that title being several, the action follows its natm'e, and must be several {s). So, they must sever in an avowry for rent, which, like the old assize [t], is in the realty {u) ; unless the rent be in its nature indivisible, as a horse or a hawk (*'). And, in like manner, they could not join in a writ of waste against their lessee during the continuance of the term, as in that form of action the land wasted would have been recoverable (y) ; though it was otherwise if the term had expired, when damages only could be obtained {z). The authorities are not uniformly consistent as to the right of tenants in common to join or sever as plaintiffs, where the action is in the personalty, as in cases of debt or covenant. (/>) Bac. Ab. Joint-tenants, (II.) I. therley dem. Worthington t. Weston, 1 Tlol. Ab. 877. 1. 48. .52. Bunie v. 2 Wils. 232. Cambridge, 1 Mood. & Rob. r.39. 541. (<) Abolished by 3 & 4 W. 4. c. 27. Brooks V. Foxeroft, Clayt. 137. Anon. s. 36. Clayt. 140. pi. 2,03. Sec, as to leases («) Lit. s. 317. Tullcn v. Palmer, by estoppel, ante, p. .52. 3 Salk. 207. Anon. 2 Sid. 2. Harrison (l) Bume V. Cambridge, sup. v. Barnby, 5 Term Rep. 249. Whitley ('•) Co. Lit. 1.07, a. v. Roberts, M'Clel. & Yo. 107. («) Lit. 8. 314. Co. Lit. 197, b. (x) Lit. s. 314. Co. Lit. 197, b. 200, a. Keilw. 114, a. case, 49. Cut- (y) Anon. Mo. 34. pi. 110. Anon, ting v. Derby, 2 W. Blac. 1 077. Moore Mo. 40. pi. 127. The vn-it of waste V. Fursdcn, 1 Show. 342. Mantle v. was abolished by 3 & 4 W. 4. c. 27. ■Wellington, Cro. Jac. 1 06. Doe dem. s. 36. Bryant V. Wippell, 1 Esp. 360. Hea- (z) Anon. Mo. 40. pi. 127. (a. 1. s. III.] WHO IMAY UE lessors: TKNANTS IN COMMON. 133 We may first notice the action of debt; and afterwards that of covenant. Littleton expressly denies their right to distinct actions of debtj stating, that " if two tenants in common make a lease of their tenements to another for a term of years, rendering to them a certain rent yearly dm'ing the term, if the rent be behind, &c., the tenants in common shall have an action of debt against the lessee, and not divers actions, for that the action is in the personalty ^' {a) ; and this opinion appears to have been entertained by the court in the case of Kitchin v. Buckley [b], notwithstanding a remark to the contrary in Siderfin (c). The more numerous, as well as the more modern authori- ties, however, are of a different tendency, and appear to war- rant the following distinctions : — If tenants in common concur in a joint demise for years, with a reddendum of an entire rent to them, they may be co- plaintiffs in an action of debt for recovering the rent {d) ; or each may bring a distinct action for his undivided share (e) . In other words, they may join or sever at their election. If the lease be for life they must sever (/) . But although they may be co-plaintiffs on their joint demise, yet, as a joint lease by tenants in common is in effect a demise of their separate shares, the survivor of two lessors, tenants in common, cannot maintain an action of debt against the lessee for the whole rent, declaring on a joint demise {g) . (a) Lit.s. 316;citedby Parke,B., in Raym. 341. Bui-ne v. Cambridge, 1 Bradburne v. Botfield, 14 Mees. & Mood. & Rob. 539. Wei. 567. (e) Huntley's case, 3 Dy. 326, a.; (b) Kitchin and Knight -y. Buckley, S. C. 1 And. 21; Beul. 226. Anou. or Buukley, T. Raym. 80; S. C. 1 Lev. Godb. 223. pi. 404. Midgeley v. Love- 109; 1 Keb. 565. 572; S. C, nom. lace, sup. Martin v. Crompe, sup. Kitchin v. Compton, 1 Sid. 157. And Harrison v. Baruby, 5 Terra Rep. 249. see Cole v. Banbery, 1 Sid. 49, and Powis v. Smith, 5 Barn. & Aid. 851; Greenwood's case, Clayt. 28. S. C. 1 Dow. & Ry. 490. Bui'ue v. (c) 1 Sid. 402. Cambridge, sup. {(l) Anon. Godb. 283. pi. 404. (/) Anon. Godb. 283. pi. 404. Midgeley v. Lovelace, Carth. 289; S. C. {(/) Burne v, Cambridge, sup. Holt, 74. Martin v. Crompe, 1 Ld. 134 or THE CONTKACTING PARTIES. [Tart III. Tenants in common taking their estates derivatively by devise or purchase must sever {h). If one of two tenants in common bring an action of debt for his share of the rent, he must not declare for the amount, as a specific sum, but the demand must be for a moiety of the whole rent (i) ; though the necessity for so declaring does not extend to an action of covenant {k) . If, however, tenants in common make several demises of their undivided shares, either by distinct instruments, or the same instrument, they must sever in action; for a joint action can only be maintained on a joint demise or contract (/). Actions of covenant are governed by difi'erent principles. If the cause of action be one and entire, tenants in common, being covenantees, must join, although the covenant be entered into with them and each and every of them (m) . If the covenantees can sue jointly, they are bound to do so (n). And where several tenants in common concurred in a joint demise, and took a joint covenant for payment of the rent, and two died, it was held that the survivors might maintain an action of covenant for the entire rent, though the covenant was to pay it to the lessors according to their several and respective rights and interests therein (o) . So, in a late case {p), where A. and B. were seised in fee of the legal estate of an undivided fourth of certain heredita- (7t) Huntley's case, sup. Midgeley S. C. Anon. Jenk. 262, case, 63; S. C, '/;. Lovelace, sup. Wilkinson v. Hall, nora. Becliwith's case, 3 Leon. 160; 1 Bing. N. C. 713 ; S. C. 1 Scott, 675; Anon. 2 Leon. 47, semb. S. C. Wind- 1 Hodg. 170. And .see Cutting V. Derby, ham's case, 5 Co. }!, a. Eccleston v. 2 W. Blae. 1077 ; and Greenwood's Clipsham, 1 Saund. 153; S. C, 2 Keb. ease, Clayt. 28. 338. 339. 347. 385, Withers v. Bir- (4 Lit. 8. 314. Co. Lit. 197, b. cham, 3 Barn. & Cres. 254; S. C. 5 Martin v. Crompe, 1 Ld. Raym. 341. Dow. & Ry. 106. Foley v. Adden- Midgeley v. Lovelace, sup. Henniker brooke, 4 Q,. B. 197 ; S. C. 3 Ga. & V. Turner, 4 Barn. & Cres. 157. 159 ; Dav. G4. S, C. 6 Dow. & Ry. 72. (n) Foley v. Addenbrooke, 4 Q. B. (k) Henniker V. Turner, sup. 197. 208; S. C. 3 Ga. & Dav. 64. (I) Powis V. Smith, 5 Barn. ^: Aid. Pctric v. Bury, 3 Ban». & Cres. 353. 851; S. C. 1 Dow. & Uy. 490. Wil- (o) Wallaces. M'Laren, 1 Man. & kinson v. Hall, 1 Bing. N. C. 713; S. C. Ry. 516. 1 Scott, 675; 1 Hodg. 170. (p) Bradburnc v. Botfield, 14 Mees. (m) Slingsby's case, 5 Co. 18, I.. ; \: Wei. 559. Cii. 1. s. 111.] WHO MAY BE LESSORS: TENANTS IN COMMON. 135 meuts and mines, in trust for C. and licr husband; and D. was seised of another undivided fourth ; and E. was seised of tlie legal estate of the remaining undivided moiety, in trust for F. and G. ; and by indentm^e A. and B., C. and her husband, D., and E., and F. and G., according to their several and respective estates, rights, and interests, demised to the defendant the here- ditaments and mines for a certain term, with a reddendum to the several persons above named respectively, and to their respective heirs and assigns, according to their said several and respective estates, &c., the yearly rents thereinafter men- tioned; and the lessee covenanted with the same persons, and each and every of them, their and each and every of their heirs, executors, administrators, and assigns, (amongst other things,) to keep the premises in repair, and the same so repaired to de- liver up, at the end or other determination of the term, to the lessors (naming them) and their heirs and assigns respectively; it was held that this was a joint covenant, on which none but all the covenantees, or the survivors during their hves, or the survivor of them, could sue, for the name of no one cove- nantee could be rejected. Parke, B., said (9), that Hopkinson V. Lee (r) was precisely in point, and good law. If the cause of action be separate and distinct, tenants in common, covenantees, must sue severally, though the covenant be joint in terms; but the several interest and several ground of action must distinctly appear, as in the case of covenants to pay separate rents to tenants in common upon demises by them (s). Whether one of several tenants in common, lessors, can sue on a covenant with all to repair, appears to be unde- cided. That aU can sue is perfectly clear {t). Tenants in common, not being themselves the covenantees, but taking their reversion derivatively from the lessor, may elect to join or sever in suing on the covenants Avhich run (5) 14,Mees. & Wcl. 564. & Cres. 410; S. C. 5 Man. & Ry. 299. (r) 14 Law Jour. N. S. Q. 13. 101. (<) Bradburne v. Botfield, 14 Mees. (s) Sec cases in note (/«), p. 134, & \V. 559. 574. sup. and Servante i\ James, 10 Barn. 136 OF THE CONTRACTING PARTIES. [PaUtIII. with the laud («). And if one of two tenants in common bring an action of covenant for non-payment of his share of the rentj he need not declare, as in debt, for a moiety of tlie whole rent, but may demand the specific sum due {v) . If a house and land be let together, and the reversion of the house be granted to A. for years, and of the land to him in fee, by separate deeds, he need not, though holding distinct reversions, bring more than one action against the lessee for breach of the covenants contained in the lease {a^) . Where tenants in common concur in granting a lease, eacli of them usually demises according to his respective estate and interest, the instrument containing one habendum of the whole estate, but a separate reddendum to each of the lessors, and a separate covenant for payment of the rent. But, as under a lease in this form the lessors, as we have seen {y), mi^^ bring separate actions of debt for their respective portions of the rent, or of covenant for damages in respect of their several shares, a coui'se of proceeding harassing to the lessee, without a corresponding advantage to the lessors, it seems better that the demise should be joint, with one reddendum of the entire rent to the lessors, simply, which will not prevent their taking it as tenants in common, the rent following the reversion [z], and a covenant with them for payment, in which case they may join in an action of covenant, or sue separately in debt, at their option {a). If a lessor devise the reversion of the lands demised to two persons, as tenants in common, and the lessee pay the M'hole rent to one of them, after express notice from the other not to do so, he may be distrained upon by the latter for his moiety so paid over {b). (u) Midgelcy v. Lovelace, Holt, 74 ; Derby, 2 W. Blac. 1077. S. C. Carth. 2f!.9. Simpson v. Clayton, (y) Henniker v. Turner, sup. 4 Bing. N. C. 758; S. C. 6 Scott, 4G9. (x) Pyot v. St. John, Cro. Jac. :\29; And see Sampson v. Easterby, 9 liarn. S. C, affirmed in error, 2 Bulstr. 102. ti. Cres. .505 ; S. C. 4 Man. & Ry. 422; (y) Ante, p. 1 35. judgment affirmed in Kxcli. Chanib., (.:) Lit. s. 314. Co. Lit. 1!'7, a. (i Hing. GH; 1 Cronipt. •) Co. Lit. 167, a. The writ of (/!) 3 & 4 W. 4. c. 74. C'h. I. s. 111.] WHO MAY BE lessors: HUSBAND AND WIFE. 139 sooucr is she relieved by his deatli from the restraints of marriage thau her title to the enjoyment of the estate revives. Over the lands of which the feme was possessed for a chattel interest only, the husband has an exclusive and abso- lute disposing power, as against his surviving wife (m) ; though, on his failing to deal with them in his lifetime, they will belong to his widow in preference to his personal represen- tatives [x) . If he die before her, he cannot pass them by his will (y) ; but if he survive her, they become his own absolute property {z) . The husband^s power of leasing his wife^s freehold estates is also subject, at common law, to restrictions which dis- qualify him from ensuring the continuance of his demise beyond the period of their joint Uves (a), unless he become entitled as tenant by the curtesy, in which case the lessee may remain in possession during the remainder of the term, subject to sooner determination by the death of the lessor (6). If the wife die first without issue by him, so that he is not tenant by the curtesy, it is the better opinion that he can, under a lease at common law, maintain debt or covenant, or avow for rent accruing due in the interval between the wife's death, and the entry of her heir (c). Before the statute of 3 & 4 W. 4. c. 74, the only common law mode of securing the lessee's enjoyment against the acts of the surviving wife was to obtain an assurance from her and her husband by a fine or recovery {d) . (u) Co. Lit. 46, b. 300, a. b. 351, a. Mo. 238; affirmed in error, 4 Barn. & Druce v. Denison, 6 Ves. 394. Wild- Cres. 529. man i;. Wildman, 9 Ves. 177. Oglan- (6) Powtrel's case, Ow. 83; S. C. der V. Barton, 1 Vern. 396. Yong v. Dal. 65; 1 Dy. 46, b. mai-g. Miller v. Radford, Hob. 3. Dr. & Stud. lib. 1. Mayuewai-iiig, W. Jo. 354; S. C.,uiorc c. 7. 18th ed. by Muchall, p. 21. fiUly reported, Cro. Cai\ 397. Dixon (.t) Ibid. Anon. Poph. 4. 5. Blax- v. Harrison, Vaugh. 46. ton V. Heath, Poph. 145. Sym's case, (c) 9 H. 6. 43. 21. Bro. Ab. tit. Cro. Eliz, 33. Loftus's case, Cro. Eliz. Avowrie, pi. 123. Bro. Ab. tit. Dette, 278. Druce v. Denison, 6 Ves. 396. pi. 7. Vaugh. 46. Bac. Ab. tit. (y) Ibid. Plowd. 418. Co.Lit.351,a. Leases, (C.) 1. But see Jenk. Cent. (0 Co. Lit. 300, a. b. 351, a. 293, case, 39. 1 Dy. 28, b. 29,' a. (a) Jenk. Cent. 293, case, 39. Blake" (d) Now abolished by 3 & 4 W. 4. r. Foster, 8 Term Rep. 487. Hill v. c. 74. Husband and wife may pass Saunders, 2 'Bing. 112; S. C. 9 J. B. the wife's land in the city of Loudon 140 OF THE CONTRACTING PARTIES. [Part III. During the coverture, however, a lease by husband and wife of her lands is so far the husband's only, that he alone may sue the lessee on the covenants (e) ; nor is it a variance though the lease prove, on production, to be made by the husband and wife (/). Considerable contrariety of opinion prevailed before the enabhng statute, and perhaps still exists {g), in cases not complying with the provisions of that act, or of the act for the abolition of fines and recoveries (A), as to the effect produced on the lessee's interest by the death of the husband in the wife's lifetime; the question being, whether the lease be- comes Aoid on that event, or voidable only, and therefore capable of confirmation. The early cases, teeming with distinctions founded on no sohd or rational principle, tend to involve the point in much obscurity. In the first place, the authorities concur in stating, that, at common law, a lease for years by parol by the husband alone, or by the husband and wife, of her freehold lands, though available during the husband's hfe, was void, not voidable only, as against the wife surviving ; and, therefore, that her acceptance of rent after her husband's death would not estop her from evicting the lessee (i) ; and Dyer [h) notes that such was the common opinion of all the judges at that day. The reason alleged was, that the wife was not a party (/) by bargain and sale em-oUed, the wife 142 ; S. C. 7 Dowl. Pr. Ca. 395 ; 2 being first separately examined by the Horn & Hurl. 65. mayor or other officer. 1 Com. Dig. {g) Chamb, on Leases, 221. Com. 505, tit. Baron & Feme, (G. 4.) 2 Inst. Landl. & Ten. 40. 1 Rop. Husb. & G7:i. Hob. 225. 34 & 35 Hen. 8. c. 22. W. 91. And a similar custom is said to prevail (A) 3 & 4 W. 4. c. 74, noticed post, in Norwich, and some other cities, p. 15>i. boroughs, and corporate towns. Ibid. (i) Walsal v. Heath, Cro. Eliz. 656; 1 Prest. Abst. 336. S. C. Sav. Ill; 1 Leon. 192. 204. (e) Bret v. Cumbei'land, Cro. Jac. Bateman v. Allen, Cro. Eliz. 437-!!. 399; S. C. 1 Rol. ,"559; 3 Bulstr. 163. Childes v. Wescot, Cro. Eliz. 481. Beaver V. Lane, 2 Mod. 217. 1 Leon. 204. Parry v. Hindle, 2 (/) Arnold v. Revoult, 1 Brod. & Taunt. 1«1. Bing. 443; S. C. 1 J. B. Mo. C6. But {I) Turney v. Sturges, 1 Dy. 91, b. »ee cont., Gardiner v. Nomian, Cro. Villers r. Beaumont, 2 Dy. 146, b. Jac. 617, the first page of that number. (Z) Bro. Ab. 96, Barre, pi. 27, cites Wallis V. Han-i8on, 5 Mees. & \Vd. 21 H. 6. 24. 5. Cu. I. S. ITT.] WHO MAY BE LESSORS: HUSBAND AND WIFE. 141 or privy {m) to the lease ; and tliat a woman during cover- ture could not agree without deed; for the agreement could not be proved by simple surmise^ but by matter in deed (») ; though, in declaring upon a lease by husband and wife, it Aras unnecessary to state that the demise was by deed, the court assuming that fact without express alle- gation (o) . Tlie right of the sur\dving wife to resume the possession, where the lease was originally void [p], was not confined to the wife, but extended to parties claiming under her. Thus, where husband seised in right of his wife made a parol lease alone, and afterwards he and she le\ded a fine, and died, it was held that the conuzee might avoid the lease; for, being made by the baron only, it was void against the feme, and no acceptance could make it good {q) . The point still retains some degree of practical importance, notwithstanding the operation of the act, 32 Hen. 8. c. 28, on the leases by husband and wife of her lands of inheritance, and the act for abolishing fines and recoveries {r). Parol leases, being unaffected by those statutes, which, we shall see {s), enabled without disabling, retain their common laAV efficacy, except so far as they are altered by the statute of frauds {t) ; and as that statute {u) converts all estates granted by parol, except leases not exceeding the term of three years, whereon at least two thii'd parts of the full improved value (m) 26 H. 8. 2. 2. 1 Bro. Ab. Cui 1 Rol. 402. J. Bridgm. 45. in vita, 1 . (?■) The enabling act does not ex- (h) 15 E. 4. 18. 4. 1 Bi'o. Ab. Ac- tend to cases where the husband is ceptaunce, pi. 6. Shep. Touch. 280. 1 seised in right of his wife of an estate Dy. 91, b. Greenwood v. Tyber, Cro. of freehold not of inlieritance. See Jac. 564; S. C, nom. Tyler v. Fisher, post, p. 154; and the Fines and Reco- Palm. 29. veries abolition act requires the wife's (o) Bateman v. Allen, Cro. Eliz. conveyance to be by deed. See post, 438. 1 Dy. 91, b. marg. Cliildes v. p. 158. Wescot, Cro. Eliz. 481; S. C, nom. («) See post, pages 152. 158. Wiscot's case, 2 Co. 60, b. 61, a.; (t) 29 Car. 2. c. 3. The 3rd section cited, Cro. Car. 527. Plowd. 431, a. of the late act to amend the law of real (p) Contra, where the lease was property, 8 & 9 Vict. c. 106, affects voidable, see post. only leases required by law to be in (q) Harvy v. Thomas, Cro. Eliz. 21 6 ; writing. S. C. 1 Leon. 247 ; cited, 2 Co. 77, b. («) Sect. 2. 142 OF THE CONTRACTING PARTIES. [Part III. is reserved, into estates at will, the cases above cited arc still applicable to sucli leases as fall within the exception of that act. In the second place, supposing the demise to be by deed, and made by both husband and wiie, the cases from a very early period, while they show that it was not absolutely deter- mined by his death, though originally granted at will [x], admit a confirmatory power in the surviving wife. Thus we find, that where baron and feme joined in a lease of lands of the feme, and she accepted rent accrued due after her hus- band^s death, she could not afterwards enter and enjoy the lease, because she had affirmed its continuance by her own act {y). The circumstance of the lease being granted for years {z), or for life {a), made no difference. Nor was it necessary that a rent should be reserved, for the surviving wife might affirm the lease by bringing an action of waste, or accepting fealty {b). So, Dyer, in his report of the case of Turney v. Stm^ges (c), notes, that the common opinion among all the judges at that day was, that if husband and wife made a lease for a term of years before the statute, 32 Hen. 8. c, 28, by parol, reserving rent to them, and afterwards the wife accepted the rent of the termor when she was sole, this would not estop her from avoiding the lease, if it was not by indenture, because her assent was necessary to the commencement of the lease, and this ought to have been by deed. From Avhich case we may infer, that such a lease by indenture, to which she was a party, Avas confirmable by the surviving wife, and therefore, voidable only. And the like point was shortly afterwards determined by Dyer, Stamford, and Browne, in opposition to the opinion of Brooke (^. {x) Henstead's case, 5 Co. 10, b. Keilw. 10, a. Rol. AV). tit. Estate, (Z.) pi. 5. Co. (z) 10 H. 6. 24. pi. 8.3. [B.] Lit. 5.5, b. («) Ibid. F. N. B. 7th ed. 446. (y) Bro. Ah. Acceptaunce, pl.6. 10. (!>) Anon. Hutt. 102. J.acltson v. .3 II. G. .5:5. 22. Bro. Ab. Ilesccit, 70. Mordant, Cro. Eliz. 112. MarHbo v. CurtoH, 2 And. 42. 1 Rol. (r) Turney v. Sturrres, 1 Dy. 91, b. AI). fit. Baron and Feme, (Y.) pi. 2. 3. ((/) Anon. 2 Dy. l.fi.O. pi. (;u;). Cir. I. S. III.] WHO MAY BE LESSORS; HUSBAND AND WIFE. 14-0 So, Avhere husband and wife being seised to them and the heirs of the husband of certain lands, granted a lease for years, the court held that it was the lease of the feme till she disagreed (e) . Besides other cases to the same effect (/), in a compara- tively recent one decided in the court of King's Bench {g), and in one of still later occurrence in the court of Common Pleas (//), the same doctrine was maintained. The report of the latter case represents Mr. Justice Lawrence to have said, that if the demise was by the deed of the husband and wife, it would have determined by the husband's decease, unless the wife had aftcrw^ards confirmed it. The meaning of this passage is obvious, though not very clearly, perhaps not accu- rately, expressed. It is not true that the lease would deter- mine on the husband's death, unless afterwards confirmed ; for it is a well-established principle, that an interest actualh^ void or determined cannot be continued or revived by subse- quent confirmation. Nor is the converse true; for the interest of the lessee, if confirmable, or, in other words, voidable, and not void, which the sentence admits, would not be determined by the husband's decease, although the widow should refuse to confirm it ; to avoid it, she must enter (i), or pursue some course equivalent to entry, such as bringing trespass {k), and then, and not before, will the lease be at an end (/). The words of the learned judge were probably misreported. Some of the cases, however, draw a distinction between leases granted by the husband and wife, and leases granted by the husband alone of her lands ; and treat the former as capable of confirmation, and therefore voidable only; the latter, as incapable of confirmation, and therefore void. (e) Jackson v. Mordant, Cro. Eliz. {h) PaiTy v. Hindle, 2 Taunt. 180. 112. Broome v. Mordant, Ibid. Snial- See also Hill r. Saunders, 2 Bing. 112; man v. Agborow, Cro. Jac. 417 ; S. C. S. C. 9 J. B. Mo. 238; 4 Barn. & Cres. 1 Rol. 401. 441 ; J. Bridgm. 42. 529. (/) Shipwith V. Steed, Cro. Eliz. (0 Smalman v. Agborow, Cro. Jac. 769. Greenwood v. Tyber, Cro. Jac. 417. 563; S. C. Palm. 29. (/.) Bac. Ab. tit. Leases, (C.) 1. (f/) Doe dem. Collins v. Weller, 7 (?) Jaelison v. Mordant, Cro. Eliz. Tenn Rep. 478. 112. Bx-oome v. Mordant, Ibid. 144- OF THE CONTRACTING PARTIES. [Part III. Thus we see in 7 Ass. 12 pi. 18 {m), that baron leased certain lands [of which he and she were seised] in right of the wife for term of years, and died, and the wife, after the death of the baron, and during the term, gave the same with livery of seisin to the plaintiff, and it was held that the feoffee held by good title, and that the estate in the term was defeated. The report adds, " Sic Nota, as soon as the baron died, the term of the termor was determined ; for the wife was always f de frankf ." So, according to Brooke^s Abridgment (w), it was said by Paston, that if husband alone leased lands of the wife for life, she should not have waste after his death, for she was no party to the lease, and hence it followed that the wife by acceptance of rent, where she was no party to the lease, should not be bound, if it was upon a lease for years, but might enter ; but, if it was upon a lease for life, she was put to a cui in vitd (o). Again, taking the cases in chronolo- gical succession, we find in Brooke's Abridgment (jo), that if baron and feme joined in a lease of the land of the wife, rendering rent, and after his death she accepted the rent, she should be bound; but that it was otherwise where the baron alone made a gift or lease, reser^dng rent, and he died, and the wife accepted rent ; there she should not be bound : Nota diversitie quod nullus contradixit. So it appears in the same Abridgment {q), that if husband and wife made a feoffment in fee of the lands of the wife, rendering rent to them and the survivor, her acceptance of rent after her hus- band's death would bar her of her cui in vitd ; but that if the baron alone made a feoffment in fee of her land, reserving rent, lier acceptance after his death would not bar her; (r/i) The Index to the vol., tit. claiming beneficially after her death, Baron and Feme, and Bro. Ab. tit. with a right of entry, and consequently Lca-ses, pi. 24, refer, erroneously, to 7 with the power of bringing a possessory Ass. pi. 19. as distinguished from a real action. (m) Bro. Ab. tit. Barre, pi. 27. 21 The distinctions, however, are now H. 6, 24. .5. abolished. Sec 3 cSc 4 VV. 4. c. 27. s. .36. (o) This was before the passing of (p) Bro. Ab. Acceptaunce, pi. 6. the act of 32 Hen. 8. c. 28. s. 6, ex- 15 E. 4. 18. 4. pluiiied by 34 & 3.') Hen. 8. c. 22, (7) Bro. Al>. Cui in vita, pi. 1. 2G wjiicli invested her, and Ihe jicrsons H. 8. 2. 2. Ch. I. s. III.] WHO MAY BE LESSORS: HUSBAND AND WIFE. 145 because she was not i^rivj to the lease. The words of Brooke, translated, arc: — if the baron alone make afeoffmoDt or lease with reservation, and the wife accept the rent, this shall not bind her, for she was not privy. To these may be added the case of Gardiner v. Norman (r). Husband and wife signed and scaled a lease by indentm'e of her land, and joined in executing a letter of attorney to a third party to deliver the deed upon the land in their names. An action having been brought by the husband, the defen- dant took an exception to the declaration, on the ground of its proceeding as upon a lease by th-e husband, and not by him and wife. It was held, however, that, as the ^vife was incapable of making a letter of attorney {s), the delivery by the attorney was void as to the wife, and so the lease was the husband's only; but that, had the deed been dehvered on the land by the husband and wife, it would have been a good lease for both, and the plaintiff ought to have declared accord- ingly (/) ; that, as it was, the lease, being the husband's only, was not voidable, but void against the wife ; and, therefore, that the declaration was good. It is evident that the reason advanced in support of the supposed distinction between leases by the husband alone, and leases by the husband and wife, is opposed to every principle of law which regulates the rights and powers of husband and wife during coverture ; and it is yet to be shown how a woman disabled by marriage from transferring her estate, or binding herself at law (w) by contract, otherwise than by matter of record, can alter the quality of a lease granted of her lands during coverture, by simply concurring (r) Gardiner v. Norman, Cro. Jac. also 3 Bulstr. 13. 617, (the first page of that number). (<) But see cont., as to the necessity And see Anon. Hutt. 1 02. 3 Leon. 7"2. for joining her as plaintiff in an action, 4 Leon. 74. Bret v. Cumberland, Cro. Jac. 399 ; (s) Gardmer r. Nonnan, sup. Wil- S.C. 1 Rol. 359; 3 Bulstr. Ifi3. Beaver son v. Riche, Yelv. 1; S. C. 1 Brownl. v. Lane,2 Mod.217. Arnold i-.Revoult, & Gold. 134. Phimmer v. Hockett, 1 Brod.&Bing.442; S.C.4 J.B.M0.C6. Noy, 133. 2 Brownl. 248. But see (u) As to her conti-acts in equity cont. Anon. r. Hopkins, Cro. Car. 165, with relation to her separate estate, and Cooper's case, 2 Leon. 200. See see ante, p. 48. VOL. I. L 146 OF THE CONTRACTING PARTIES. [Part TII. with her husband in the deed of demise. It is apprehended that the distinction woukl receive but little consideration at the present day. Indeed, we are not destitute of authority (even of later date than that of an opposite tendency) to show that a lease of the wife's land, though not executed by her, is not void, but voidable only, on her husband's death. The position has more than once been ui'ged in argument {v) without contradiction. So, in Broooke's Abridgment (a?), it is stated, that if tenant in tail, or a man seised in right of his wife, lease lands for a term of years, and die, and the wife, or the issue in tail, accept rent, the lease is affirmed good. It is right, however, to notice, that this passage in Brooke differs from the Year Book, 21 H. 7. 38. pi. 47, of Avhicli it professes to be an abridgment, in an important particular. Conesby there said, " that a lease which was void could be made good by matter ea? post facto ; as if tenant in tail lease lands for years, rendering rent, and die, and the issue in tail accept the rent ; or if a lease be made by baron and feme of the lands of the feme, rendering rent ; by acceptance of rent, the feme and the issue in tail have made the lease which was void good." According to Brooke's Abridgment, the lease in question Avas made by the husband alone ; but the Year Book expressly recognises the vrife as a party; and it is rather singular that Conesby made no distinction between a voidable and a void interest, as appears from his declaration, that a lease which was void could be made good by matter ex post facto {y). Later authorities, however, bearing more expressly on the point, are entitled to greater confidence. Thus, in Jordan ?;. Wikes [z), the husband alone had made a lease of his wife's lands for the purpose of trying the title; and the court clearly held, that it was voidable only by her after his death, and not void. From a modern case (a) also we may collect that Lord («) By Scrjt. Gawdy, in Browning (x) Acceptauncc, pi. 10. r. BcHton, riowd. 137, and afterwards (y) And sec 10 H. G. 24. pi. 83. [B]. confirnied by Sir Tliomas Coventry, (c) Jordan v. Wikos, Cro. Jac. 332; Solicitor-Gonernl, in Smalnian r. Ak- .S. C, noni. Wilkes v. Jorden, Hob. .5. binToii^h, 1 Rol. 402. (a) Parry v. llindlc, 2 Taunt. 180. Ch. I. S. III.] WHO MAY HE lessors: HUSBAND AND WIFE. 147 Mansfield's opinion was, that a demise by the husband alone, seised in right of his wife, was not determined by his death. His lordship's words^ were : — " A husband seised in right of his wife may, and usually does, demise alone during the coverture [b) : when he dies, all the rent accrued up to the time of his decease does not go over with the reversion to the wife; it is assets in the hands of the husband's executors. The wife has nothing to do with the demise or the rent." Now, as the reversion survives to the widow on the husband's decease, and as a reversion cannot subsist vdthout a tenancy, and as a tenancy by sufferance is not sufficient for the pur- pose (c), it seems to follow that the estate of the lessee of the husband is voidable only on his death; for if it were actualh^ void, the determination of the tenancy would be a deter- mination of the reversion {d) . An attempt to reconcile these jarring decisions woidd prove a fruitless task, and in all probability render confusion more confused. A late eminent writer (e), however, has suggested the possibility of reconciling them, by distinguishing between leases for life and years ; and he urges, that as, in the former case, the estate commences by livery, it can only be avoided by entry, but that in the latter the lease is absolutely Aoid and determined by the husband's death: but it is submitted, that this conclusion is not justified by the authorities. On the whole, perhaps, we may conclude, that a lease not pursuant to the enabling statute, or the fines and recoveries abolition act, by the husband alone, or by the husband and wife, of her lands, whether it be for life, or years, instead of being determined on his death in her lifetime, will continue in operation until avoided by her; and that any act of confirmation by her, or by an after-taken husband (/), or (b) This assertion is questionable. the ease of Miller r. Maynewai'ing, The lease is never made by the hus- W. Jo. 354; S. C.,more fully reported, band alone, if he professes to demise Cro. Car. 397, oth resolution. in pursuance of the enabling statute of (e) Serjt. WilUams ; see his note to Henry the 8th. Wotton v. Hele, 2 Saund. 180.1 80,a. b. (c) Dy. 28,b. (/) Anon. 2 Dy. 159, a. pi. (3G). (d) This reasonmg is supported by 3 Salk. 3. 148 OF THE CONTRACTING PARTIES. [Part III. '' persons claiming in privity to lier {g), will confer on the lessee an estate absolute and unavoidable for the remainder of his term. The opinion of many distinguished members of the profession {h), moreover, favours this conclusion, which was evidently entertained, on a balance of authorities, by the learned author (^) of the title Leases in Bacon's Abridg- ment {k); although it must be admitted that some of the mar- ginal cases there cited do not warrant that opinion. The lease, on being determined by the widow, is deemed to have been void as against her ab initio {I) ; and after the avoidance the lessee may plead non dimiserunt to an action counting on the demise of husband and wife (m). The priAilege of electing to confirm or avoid the lease, though exerciseable by an after-taken husband [n], or by parties claiming in privity to the wife (o), her heir for instance, is not capable of delegation [p). Nor can a party claiming paramount the wife exercise it. Accordingly, where husband and wife, in right of the wife, being joint-tenants with a third person, by indenture demised the moiety of the land for years, and the wife died in the life- time of her husband, it was held, that the surviving joint- tenant could not distui'b the lease, as he derived his title to the premises paramount the feme, and not under her {q) . Whether the principle of confirmation by the survi\'ing wife extends to the case of a demise by way of mortgage has been the subject of different opinions (r). There are two ((f) Smalman v. Agborow, Cro. Jac. (o) Smalraan v. Agborow, Cro. Jac. 417; S.C. 1 Rol.401.441; J. Bridgni. 417; S.C. 1 Rol. 401. 441; J. Bridgm. 42; SBulstr. 272. 42 ; 3 Bulstr. 272. (li) 1 Prest. Abst. 33.5. 4 Bytli. {p) Cadee v. Oliver, 3 Leon. 153; Conv. by Jann. 327; and Sweet's cd. S. C. Cro. Eliz. 152. vol. 4, p. 243. Com. Landl. & Ten. 41. (7) Smalman v. Agborow, snp. 3 Woodf. Landl. & Ten. 1.9. 3rd cd. by Mod. 300. Harrison. And see post, p. 151. (?•) Roper, in his Treatise on " Hus- (t) L. C. B. Gilbert. band and Wife," is in favonr of the {If) Bac. Ab. Leases, (C.) 1. wife's capacity to confirm. The late {I) Thetford v. Thetfoi-d, 1 Leon. Mr. Jacob, the Editor of the last im- 102; S. C. .Sav. 10.'); cited, 3 Co. 27, b. pression of that work considers Mr. (m) n)id. Roper's conclusion questionable; and (n) Anon. 2 I)y. 15!t, a. pi. (3(i). thinks that the decisions are not in- 3 .Sulk. :'.. cf>nsi«tent. Mr. Coventry, on the other Cil. I. S. III. J WHO MAY BE lessors: HUSHAN1) ANU WIFE. 119 cases on the subject {s). In the first, husband and wife, seised in right of the wife in fee of a share of the New River Water, by deed, without fine, made a lease for 1,000 years, by way of mortgage, reserving a peppercorn rent. On the death of the husband, the wife received the profits, and paid the interest. The mortgagee, having brought a bill to fore- close the wife, insisted that the lease was not actually void, but voidable by her after her husband's death, and that her payment of interest, when discovert, amounted to an election on her part to affirm the lease. " In this case,'' said the Master T)f the Rolls, " there ought to have been a fine, it being the inheritance of the wife; if there had been a rent reserved, the acceptance of such rent by the wife, when discovert, Avould have affirmed the lease; but here is no acceptance, and the lease is of an incorporeal thing, out of which rent could not well be reserved {t) : wherefore, the lease expiring by the death of the husband, the mortgage is also thereby deter- mined, and nothing remaining to foreclose. And though the court \nll not narrowly look into the title, yet when all this is admitted on both sides, and appears upon the opening, why should I pronounce a vain decree ? " The bill Avas dis- missed without costs. This decision requires a word or two of comment. In the first place, it is not clear whether the remark, " that if there had been a rent reserved, the accept- ance of such rent by the wife, when discovert, would have affirmed the lease," was intended to apply to the case of a lease by way of mortgage, or to the case of a common demise; nor, supposing it to apply to the case of a mortgage, and assuming the possibility of reserving a rent out of the property in question, whether acceptance of a peppercorn, the only rent usually reserved on a demise by way of mort- gage, would have operated as a confirmation. The words " but here is no acceptance, and the lease is of an incorporeal hand, declares that the authorities are Wins. 127 ; S. C. 2 Eq. Ca. Ab. 132. conti'adietory. Sec Pow. Mortg. by pi. 4. Goodright dcra. Carter v. Stra- Coventry, vol. 2, p. 723. n. (Q,). phan, Cowp. 201 ; 1 Dougl. 53. u. [17-]- (s) Di')butter v. Bartholomew, 2 P. (f) See as to this, ante, p. 27. 150 OF THE CONTRACTING PARTIES. [Part 111 thing, out of which rent could not well be reserved," seem to imply the necessity of a rent being reserved, in order to enable the sui'vi^ing wife to confirm the lease ; but that pro- position cannot be maintained, if, in accordance Avith some authorities (^«), the power of the surviving wife to confirm a lease on which rent has not been reserved be admitted. Acceptance of rent, though perhaps the best, is not the only evidence of an intention to give stability to a voidable estate; various other acts, such as a distress {x), the prosecution of an action of waste (y), or even expressions, as, " God give you joy of your lease "(-j); '^I am content to accept the rent" (a), being deemed equivalent to acceptance. If the Master of the Rolls rested his judgment, as he appears to have done, on the necessity of a reservation of rent, the foundation of it is scarcely secure. The case, though an authority that payment of interest alone would not amount to a confirmation of the demise, seems to justify a conclusion that the mortgage would have been supported against the wife, had it consisted of a corporeal hereditament, accompanied by her acceptance of rent, when discovert ; and thus to admit the principle, by acknowledging her competency to confirm under any circumstances. In the other case upon the point {b), decided half a cen- tury afterwards in the court of King's Bench, the facts were as follow: — By indenture dated in 1737, Elizabeth Carter and her husband demised, by way of mortgage, the pre- mises in question, of which he and she were seised in her right, for the term of 99 years, at a peppercorn rent. Three exhibits were produced, all subsequent to the death of Charles Carter, the husband. The first M^as an account stated, con- sisting, among other articles, of a receipt for rent of one of (m) Anon. Hutt. 102. Jackson v. (z) Anon. 4 Leon. 4. Mordant, Cro. Eliz. 112. («,) Anon. Dy. 15.'), a. \>]. (3()). (.r) Doe ) Goodvij^ht doni. Carter v. Stra- IJani. & Adol. 420. pli.in, Cowp. 201 ; 1 Doufjl. .'>;3.n. 1 17]. (y) Anon. Hutt. 102. The writ of And nee Clinton ?•. llo..|ior, 1 Yes. jun. wahU' was alKdihlied by ;j & 4 W. 4. 177. <•. 27. K. -Mi. Ch. 1. S. III.] WHO MAY BK LESSORS: HUSBAND ANUWIFK. 151 the houses, from 1755 to 17(50, out of which was deducted an article for interest due, a balance struck, and the account signed by EHzabeth Carter. The second was as follows : — 23 May, 1763. I do hereby surrender the possession of a house belonging to me at Heading, late in the occupation of Mr. Collins, but now empty, to Mr. Thomas Sanders and Mr. William Smith, executors of Mr. William Greening, deceased, the mortgagee thereof. Signed, Elizabeth Carter : witness, John Lewis. The third ran thus: — 23 May, 17G3. Mr. Miles, I do hereby direct you to attorn tenant for youi' house and shop at Reading, from Lady-day last, to Mr. Thomas Sanders and Mr. William Smith, executors of Mr. William Greening, the mortgagee of the said premises, and to pay them all rent that shall become due for the same from that time : and I desire you will pay the rent that was due at Lady-day last to the same person as you formerly paid your rent to for my use : Signed, Elizabeth Carter : witness, John Lewis. — Lord Mans- field, who delivered the judgment of the court, after observ- ing, that in strictness a fine was the proper method for a married woman to part with her right, and animadverting on the injustice of the wife^s attempt to set aside the mortgage, continued thus : — " Mr. Wallace at the trial put it upon the footing of leases by husband and wife, reserving rent or no rent, which the authorities say are not void, but only void- able by the wife after the husband^s death, and if she ratifies them she is bound. It was answered that those authorities were by way of exception to the general rule of law, which says, the deed of a married woman is void, and they were allowed of for the sake of agriculture and tillage : that this, it is true, is a lease for 99 years, and a century ago the court would not have seen fui'ther ; but now, it is said, the court must look further, and see the real intent of the deed, namely, that it was a mortgage. We are all of opinion that the answer is a good one, and that the exception to the general rule was allowed of for the advancement of agricul- ture and tillage. We are also of opinion, that the court ought to look into the substance of the deed, and to see with the 152 OF THE CONTRACTING PARTIES. [Part HI. same eyes as the rest of the world : it is in substance a mort- gagCj though in form a lease for 99 years. But we think we have good authority to say, that the wife is nevertheless bound by it, and that her subsequent acts set up this mort- gage against her." Thus the cases appear to be consistent ; and as Drybutter v. Bartholomew admitted the wife's power to confirm ; and as judgment was given against the Avife in the case of Goodright dem. Carter v. Straphan, on the ground of her redeUA^ery of the mortgage deed operating as a con- firmation, we may perhaps conclude that the demise by hus- band and wife of her freehold lands by way of mortgage, by simple deed, without an instrument of record, is a voidable and not a void interest in the mortgagee on the death of the husband in the lifetime of the wife. The student may be cautioned in this place against the adoption of a too prevailing notion, usually the result of indo- lence, that these discussions are rather speculative than useful. Though the enabhng statute, to which we may now direct our attention, materially extended the leasing powers of husband and wife over the wife's freehold estates, he will not fail to perceive that questions relating to such of their leases as are not in conformity with that statute, or the act for the abolition of fines and recoveries (c), and they are numerous, must be referred for solution to the common law : and hence we perceive the application of the cases already cited in this division to the purj)oscs of modern practice. We now proceed to the consideration of the enabling statute {d), so far as it is applicable to leases granted by husband and wife. That statute enacted, " that all leases thereafter to be made of any manors, lands, tenements, or other hereditaments, by writing indented under seal, for term of years, or for term of life, by any person or persons being of full age of tAvcnty-onc years, having any estate of inheritance cither in fcc-simplc, or in fee-tail, in tlieir own right, or in the right of their wives, or jointly with tlieir wives, of any (c) :5 .(v I W. t. c. 7t. ('0 •'5- Hl'h. fi. c. -JfL Cii. I. .s. Ill.j WHO MAY BE LESSORS : HUSBAND AND WIFE. 153 estate of inheritance, made before the coverture or after, should be good and effectual in the law against the lessors, their wives, heirs, and successors, and every of them, according to such estate as was comprised and specified in every such indenture of lease, in like manner and form as the same should have been if the lessors thereof and every of them, at the time of making of such leases, had been lawfully seised of the same lands, tenements, and hereditaments, comprised in such indenture, of a good perfect and pure estate of fee- simple thereof to their own only uses," on the observance of the same conditions as by the act in question were imposed upon tenants in tail (e) and ecclesiastical persons ; the third section of the act providing, that the wife be made a party to every such lease which thereafter should be made by her husband, of any manors, lands, tenements, or hereditaments, being the inheritance of the wife ; and that every such lease be made by deed indented in the name of the husband and his wife, and she to seal the same ; and that the ferm and rent be reserved to the husband and to the wife, and to the heirs of the wife, according to her estate of inheritance in the same ; and that the husband shall not in any^vise alien, dis- charge, grant, or give away, the same rent reserved, nor any part thereof, longer than diu-ing the covertui^e, without it be by fine (/) levied by the said husband and wife ; but that the same rent shall remain, descend, revert, or come, after the death of such husband, unto such person or persons, and their heirs, in such manner and sort as the lands so leased should have done if no such lease had been thereof made." Leases, therefore, made in pursuance of this statute will continue in operation during the term, notwithstanding the death of the wife, whose heir, though entitled to the rent, cannot eject the lessee, or enter into possession without being guilty of a trespass {g) . (c) As to which, see ante, p. 66, {()) Hill r. Saundei's, "2 Bing. 112; et seq. S. C. 9 J. B. Mo. 238 ; in error, 4 Barn. (/ ) Fines were abohshcd by 3 & 1 & Cres. 529. W. 4. c. 74. 154 OF THE CONTRACTING PARTIES. LFaRT III. The construction of the conditions imposed by the act alike on husbands and wives, tenants in tail, and ecclesias- tical bodies, having undergone investigation in a preceding page [h), it will only be necessary to point out in this place such few peculiarities of the statute as exclusively affect demises by husbands and wives. The statute does not extend to cases where the husband and wife are seised in her right of an estate of freehold not of inheritance (i) . The vahdity, therefore, of leases derived under such estates must be referred to the rules of the com- mon law, or to the powers conferred by the late act for aboHshing fines and recoveries (k), to which attention will shortly be more particularly directed. If a husband purchase land to him and his wife and their heirs, it seems that a lease for years made by him alone will bind the surviving wife. Such a lease is rendered effective by the body of the act, and does not fall within the words or intent of the proviso (/) . Where lands were given to husband and wife and the heirs of their two bodies, and the husband died leaving issue by the wife, and she made a lease of the lands according to the statute of 32 Hen. 8, it Avas doubted whether the lease was good against the issue, as the statute said that the lease should be good against the lessor and his heirs, and the issue did not claim as heir to the wife only, but as heir of both husband and wife ; but Windham and Rhodes, Justices, agreed that the lease should bind the issue by the statute (m). As the act does not authorise demises of copyhold lands as against the lord, a lease by the husband of a feme copyholder in fee for a term not warranted by the custom, nor by the lord^s license, will operate as a forfeiture (/t) Ante, p. G(), ct scq. Ilnbart donbtcil. (i) Co. Lit. 44. Hargr. n. (2). (m) Anon. Godb. 102. pi. 119. The (k) ',', & 1 W. 4. c. 74. doubt mentioned in the text was cn- (l) Sniilli r. Trinder, Cro. Cur. 22, tcrtained by Fenncr, J. per Yelverton, Harvey, and Croke ; Ch. I. S. III.J WHO MAY BE LESSORS: HUSBAND AND WIFE. 155 during the husband^s life ; reversible, however, by the sui-- viving wife (n) . So, if a husband seised of a manor in right of his wife lease a copyhold, parcel thereof for years, by indenture, and die, the copyhold quality of the lands demised will not be destroyed as to the wife ; her right to demise by copy reviving on her husband's death (o). Care must be taken to reserve the rent conformably to the mode required by the act. Where a coparcener in tail, and the husband of a deceased coparcener, being tenant by the curtesy, jomed in demising the lands entailed, reserving the rent to them and their heirs, it was held that the lease was not protected by the statute, as the rent was not reserved to the donee of the estate tail and the heirs of her body inherit- able thereto (p) . A mere contract by the husband for a lease of his wife's freehold lands will not be enforced against her surviving, whatever may be the consideration {q). Leaseholds for years of which the husband is possessed in right of his wife, being unaffected by the enabling statute, are subject, as we have seen (r), to his common law power of alienation. His right to dispose of the term, either abso- lutely, partially, or conditionally, is unquestionable (5) . He may confer by demise an immediate interest and possession ; or may underlet for a term to commence even after his death {t) ; and the lessee will be entitled to the term in exclusion of the surviving wife ; though she will be entitled to that part of the term of which the husband makes no disposition (u) . (n) Hedd v. Chalener, Cro. Eliz. Co\vp. 260. 267. Anou. Freem. Ch. 149. Saverne v. Smith, Cro. Car. 7 ; Rep. 224, case 29G. 1 Scho. &Lef.71. S. C. 2 Rol. 344. ,361 ; Palm. 383; (?•) Ante, p. 139. Bendl. 131; S. C, nom. Smiths v. Se- (s) Ante, p. 139. vcrne, Bendl. 147, the second page of (t) Anon. Poph. 4. Harbin v. Chai'd, that nmnber. Poph. 96-7. Harbin v. Barton, Mo. (o) Couesbie v. Rusky, Cro. Eliz. 395. Giiite i;. Locroft, Cro. Eliz. 287; 459, the second page of that number. S. C. cited. Mo. 395 ; 1 Co. 155, a.; {p) Thomson's case. Latch, 45. Cart. 155. (7) Earl of Darlington v. Pultcney, («) Ante, p. 139. 156 OF THE CONTRACTING PARTIES. [Part III. In like manner, the husband may dispose of the trust of a term created in favour of the wife before marriage, unless the trust move from him, or be created with his privity and con- sent [v), in which case his consent should be testified by his execution of the deed of trust (.r). In a case in Modern reports (y), a husband possessed of a term in right of his wife, and divorced a mensa et toro, was, on the urgent request of counsel, restrained by injunction from disposing of it; so that the merits of the case might come before the court. Of a mere possibility of survivorship, as if lands be de- mised to husband and wife for their lives, remainder to the survivor of them for years, he cannot dispose so as to bind the wife surviving {z). So, if a woman be guardian in socage, a lease by her and her husband of the infant's land is void- able by her on his decease {a). It is not definitively settled whether a contract by the husband for a lease of his wife's term is, as against her sur- viving, tantamount in equity to an actual legal disposition. In Steed v. Cragh (b), indeed, it was expressly declared that the husband's contract was such a lien as would bind the right in whose hands soever it might come, and would be good against the wife surviving ; but as no trace of that case is dis- coverable in the Registrar's book, its authority has been ques- tioned (c) . The point was agitated before Lord Eldon, and liis impression was clearly in favour of the validity of the con- tract {(l). After expressing a wish that a search should be made for precedents, his lordship observed, that if the ques- (v) Sir Edward Turner's case, 1 Hardr. 496 ; and Doyly v. Pearsall, Vem. 7; S. C. 1 Er^. Ca. Ab. .58. pi. 2. Freem. Ch. Rep. 138, cont., which I'itt V. Hunt, 1 Vern. 18; S. C. 1 Eq. cannot be supported. Ca. Ab. 58. pi. :',; 2 Ch. Ca. 73. Bates (.r) Pitt v. Hunt, sup. V. Dandy, 2 Atk. 207-8. Jewson v. (y) Anon, i) Mod. 43. Moulson, 2 Atk. 42. Tudor v. Samync, (s) Lampet's case, 10 Co. 51, a. '2 Vern. 270 ; S. C. 1 Eq. Ca. Ab. .58. Poph. 5. Co. Lit. 3.51, a. 1)1.4. Prec. Cii. 4 1 .'). Lord Carteret («) Osborn v. Carden, Plowd. 293. ?;. I'aschal, 3 P. Wnis. 201. Draper's (/^) Steed v. Cragh, !) Mod. 42; case, 1 Ereeni. Cii. Rep. 2!). Roupc S. C. 2 E(i. Ca. Ab. 37. V. AtkiuHDM, Runb. If)2. Donne v. (') See (i Ve.s. 403. n,i)-l, •_' Uuss. ^ Myl. ;;fiO. I Jut .sec ('/) Druce V. Dcnison, (i Vcs. 385. Ch. I. s. III.] WHO MAY HE lessors: HUSBAND AND WIFE. 1.57 tion were untouched by decision, he apprehended that analogy to other cases would make out that an assignment in equity was for this purpose as good as an assignment at law. But he said that without prejudice. Where the husband having a term of years in right of his wife underlets, and dies during the underlease, it is well understood, though the cases on the subject are confused and contradictory (e), that his executors, and not the Avife, are entitled to the rent for the residue of the lease, particularly if it be specially reserved to him and his executors (/), notwithstanding the reversion survives to the wife [g) . The words of Lord Coke are, " If a man be possessed of a term of forty years in right of his wife, and make a lease for twenty years, reser^dng a rent, and die, the wife shall have the residue of the term, but the executors of the husband shall have the rent ; for it was not incident to the reversion, for that the wife was not a party to the lease" {h). Whether the circumstance of the wife's being a party to the lease would make any difference, as the concluding words of the passage just quoted seem to intimate, is not stated. In a modern work of deserved celebrity (i) it is stated, " that if the wife be party to the lease, and the rent be expressly limited to her and the husband and the survivor, the wife sui'vi^vdng the husband is clearly entitled ; and probably the same rule would be held to apply, if the wife were a party to (e) Loftus's case, Cro. Eliz. 279. that the rent was gone ; but that it was Perk. s. 8.'54. Blaxtont'. Heath, Poph. agreed by them all tliat the executors 14.5; S. C, nom. Blackston v. Heap, of the husband should not have it; and Godb. 27.*). According to Popham's that Montague held that the wife report of this case, it appears that should have it. And see Norton v. Montague, C. J., Crook, and Houghton, Harvey, 1 Vent. 259. Drew r, Bayly, thought that the wife should not have 2 Lev. 100. 1 Rol. Ab., Bai-on and the rent ; and of the same opinion was Feme, (G.) pi. 11. Druee v. Denison, Hobert, C. J. of the Common Pleas ; 6 Ves. 385. .394. and that Crook said that this was a (/) Blaxton v. Heath, Poph. 145. special reservation, [being to the bus- {g) Sym's case, Cro. Ehz. 33. band, his executors and assigns,] and, (h) Co. Lit. 46, b. Saunders v. therefore, the executors should have Beale, 2 Vera. 62-3 ; S. C. 1 Eq. Ca. it, and not the wife. Godbolt, on the Ab. 69. pi. 9. other hand, reports that Houghton (t) 4 Byth. Prcc. by Jarni. 328 ; and Crook, Justices, against Montague, and Sweet's cd. vol. 4, p. 243. C. J., (Doddridge being absent,) thought 158 OF THE CONTRACTING PARTIES. [Part III. the leasCj and the reservation were general, and not expressly to her or the husband ; for it may be concluded that it was for this pui'pose alone that the husband could have required her concurrence.^^ The learned writer, however, quotes no case in support of this position. He adds " that if the reser- vation were expressly to the husband, this would exclude all inference in favour of the wife; and the rent, though she were a party, would undoubtedly belong to the husband.^' The late act " for the abolition of fines and recoveries, and for the substitution of more simple modes of assvirance" (k), has fiu'ther tended to facilitate alienation by married women, by relieving them of the conditions formerly essential to their conveyances. By this act it is declared (1), that, after the 31st day of December, 1833, it shall be lawful for every married woman, in every case, except that of being tenant in tail (m), by deed to dispose of lands of any tenm-e, and also to dispose of, release, sm-render, or extinguish, any estate which she alone, or she and her husband in her right, may have in any lands of any tenure, as fully and effectually as she could do if she were a feme sole ; save and except that no such disposition, release, sui'render, or extinguishment, shall be valid and effectual unless the husband concur in the deed by which the same shall be effected, nor unless the deed be acknowledged by her as by the act is directed ; provided always that the act shall not extend to lands held by copy of court roll of or to which a married woman, or she and her husband in her right, may be seised or entitled for an estate at law, in any case in which any of the objects to be effected by the present clause, could, before the passing of the act, have been effected by her in concurrence with her husband by smTcnder into the hands of the lord of the manor of which the lands may be parcel. And it is further enacted {n), that the powers of disposition (Jc) 3 & 4 W. 4. c. 74. by the 40th section of the act; and sec (I) Sect. 77. ante, p. 87. (w) For wliich iirovihion is niatle («) .Sect. 78. Ch. I. s. 111.] WHO MAY BE LESSORS: HUSBAND AND WIFE. 150 given to a married woman by the act shall not interfere with any power which, independently of the act, may be vested in, or limited, or reserved to her, so as to prevent her from exer- cising such power in any case, except so far as by any dispo- sition made by her under the act she may be prevented from so doing, in consequence of such power having been suspended or extinguished by such disposition. And further (o), that every deed to be executed by a mar- ried woman for any of the purposes of the act (except such as may be executed by her in the character of protector for the sole piu^pose of giving her consent to the disposition of a tenant in tail) shall, upon her executing the same, or after- wards, be produced and acknowledged by her as her act and deed before a judge of one of the superior courts at West- minster, or a master in Chancery, or before two of the perpetual commissioners, or two special commissioners, to be respectively appointed as by the act is provided. And fui'ther {p) that in those cases where, by reason of residence beyond seas, or ill health, or any other sufficient cause, any married woman shall be prevented from making the acknowledgment required by the act before a judge, or a master in Chancery, or any of the perpetual commissioners, it shall be lawful for the court of Common Pleas at West- minster, or any judge of that court, to issue a commission specially appointing any persons therein named to be com- missioners to take the acknowledgment by any married woman to be therein named of any such deed; pro\dded always that every such commission shall be made returnable within such time to be therein expressed as the said court or judge shall think fit. Section 84 pro^ddes, that when a married w^oman shall acknowledge any such deed, the judge, master in Chancery, or commissioners, taking such acknowledgment shall sign a memorandum, to be indorsed on, or written at the foot, or in the margin, of such deed, which memorandum, subject to any alteration which may from time to time be directed by the (o) Sect. 79. (p) Sect. 83. 160 OF THE CONTRACTING PARTIES. [Part III. court of Common Pleas, shall be to the following effect, vide- licet: "This deed, marked [here add some letter or other mark for the pm'pose of identification] was this day produced before me [or us] and acknowledged by therein named to be her act and deed, previous to which acknowledgment the said was examined by me [or us] separately and apart from her husband touching her knowledge of the contents of the said deed and her consent thereto, and declared the same to be freely and voluntarily executed by her." And the same judge, master in Chancery, or commissioners, shall also sign a certificate of the taking of such acknowledgment, to be written or engrossed on a separate piece of parchment, which certificate, subject to any alteration which may from time to time be directed by the court of Common Pleas, shall be to the following effect, videlicet : — " These are to certify that on the day of , in the year one thousand, eight hundred and , before me the undersigned Sir Nicholas Conyngham Tindal {q), Lord Chief Justice of the court of Common Pleas at Westminster [or before me Sir James Parke, knight, one of the justices of the court of King's Bench at Westminster, or before me the undersigned James William Farrar, one of the masters in ordinary of the court of Chancery, or before us A. B. and C. D., two of the perpetual commissioners appointed for the for taking the acknowledgments of deeds by married women pursuant to an act passed in the year of the reign of his Majesty King William the 4th, intituled an act [insert the title of the act] or before us the under- signed A. B. and C. D., two of the commissioners specially appointed pursuant to an act passed in the year of the reign of his Majesty King William the 4th, intituled an act [insert the title of the act] for taking the acknowledgment of any deed by the wife of ] appeared personally the wife of and produced a ccrtfiin indenture marked [here add the mark] bearing date the day of and made between [insert the names of the parties] :iii(l acknowledged the same to \w. lun' act and deed, and I (7) His lonlslii]. (lic.l (i .July, Ifl-lfi. Cll. 1. S. Ill] WHO MAY BE lessors: HUSBAND AND WIFE. IGl [or we] do hereby certify that the said was at the time of her acknowledging the said deed of full age and competent understanding, and that she was examined by me [or us] apart from her husband touching her knowledge of the con- tents of the said deed, and that she freely and voluntarily consented to the same. And it is further enacted (r), that every such certificate of the taking of an acknowledgment by a married woman of any such deed, together with an affidavit by some person verifying the same, and the signature thereof by the party by whom the same shall purport to be signed, shall be lodged with some officer of the court of Common Pleas at West- minster, to be appointed as by the act is mentioned, and such officer shall examine the certificate, and see that it is duly signed either by some judge or master in Chancery or by two commissioners appointed pursuant to the act, and duly verified by affidavit, and shall also see that it contains such statement of particulars as to the consent of the married woman as shall from time to time be required in that behalf; and that if all the requisites in the act in regard to the certificate shall have been complied with, then such officer shall cause the said certificate and the affidavit to be filed of record in the said court of Common Pleas. And further («), that when the certificate of the acknow- ledgment of a deed by a married woman shall be filed of record, the deed so acknowledged shall, so far as regards the disposition, release, surrender, or extinguishment, thereby made by any married woman whose acknowledgment shall be so certified concerning any lands comprised in such deed, take effect from the time of its being acknowledged ; and the subsequent filing of such certificate shall have relation to such acknowledgment. And further {t), that the officer of the coui't of Common Pleas with whom such certificates shall be lodged, shall make and keep an index of the same, and such index shall contain (r) Sect. 85. (s) Sect. 86. (t) Sect. 87. VOL. I. M 163 OF THE CONTRACTING PARTIES. [Part III. the names of the married women and their husbands alpha- betically arranged, and the dates of such certificates, and of the deeds to Avhich the same shall respectively relate, and such other particulars as shall be found convenient, and every such certificate shall be entered in the index as soon as may be after such certificate shall have been filed. And further {u), that after the filing of any such certificate, the officer with whom the certificate shall be lodged shall at any time deliver a copy, signed by him, of any such certificate to any person applying for such copy, and every such copy shall be received as evidence of the acknowledgment of the deed to which such certificate shall refer. And it is further enacted {v), that if a husband shall, in consequence of being a lunatic, idiot, or of unsound mind, and whether he shall have been found such by inquisition or not, or shall from any other cause, be incapable of executing a deed, or of making a surrender of lands held by copy of court roll, or if his residence shall not be known, or he shall be in prison, or shall be lining apart from his wdfe, either by mutual consent or by sentence of divorce, or in consequence of his being transported beyond the seas, or from any other cause whatsoever, it shall be lawful for the court of Common Pleas at Westminster, by an order to be made in a summary way upon the application of the wife, and upon such evidence as to the said court shall seem meet, to dispense with the concurrence of the hvisband in any case in which his concur- rence is requu'cd by the act, or otherwise, and all acts, deeds, or surrenders, to be done, executed, or made by the wife in pursuance of such order, in regard to lands of any tenure, shall be done, executed, or made by her in the same manner as if she were a feme sole, and when done, executed, or made by her, shall, (but without prejudice to the rights of the husband as then existing indcpendcntl}'- of the act,) be as good and valid as they would have been if the husband had concurred; provided always that the present clause shall not (it) Sect. »(!. (r) Sect. !»1. Ch. I. S. III.] WHO lessors: MOUTOAGOR AND MORTGAGEE. 1 03 extend to the case of a married woman where under the act the lord higli chancellor^ lord keeper, or lords commis- sioners for the custody of the great seal, or other the person or persons intrusted with the care and commitment of the custody of the persons and estates of persons found lunatic, idiot, and of unsound mind, or his Majesty^s court of Chancer}'^, shall be the protector of a settlement in lieu of her husband. Thus it appears, 1st, that, by virtue of this act, leases may be made by a married woman, being tenant in fee, for life, or years (x), for any term consistent with her estate, as if she were a feme sole, provided the deed be sanctioned by the concurrence of the husband, and acknowledged by her on a separate examination; 2ndly, that leases incapable of effect under this act may still be valid under the enabling statute of Henry the 8th, on compliance with the conditions there enumerated ; and, 3rdly, that, in the event of the provisions of both these acts being disregarded, the principles of the common law must be the test of the validity of leases made during coverture by the husband, or the husband and wife, of the vvife's freehold lands. The law relative to the renewal of leases where a feme covert is the reversioner, and to leases under powers granted to a feme covert, will be found in the chapters which respec- tively treat of Renewals (y), and Leases under powers {z). v. — Mortgagor and Mortgagee. We may now consider the eflPect of a lease, 1st, when granted by a mortgagor before the mortgage ; 2ndly, when granted by a mortgagor alone after the mortgage; 3rdly, when granted by the mortgagee alone; and, 4thly, when granted by the mortgagee and mortgagor together. 1st, A tenant under a lease made prior to a mortgage can- (x) As to leases by married women Chap. VII. being tenants in tail, see ante, p. 87. (s) Post, Section IV. of this Chapter, (y) See post, Part the Fom-th, M 2 ]64 or THE CONTRACTING PARTIES. [Part III. not be turned out of possession by the mortgagee^ otherwise than by virtue of the proviso for re-entry on non-payment of rent, or non-performance of covenants, the mortgagee, as assignee of the reversion, having no other rights than those exerciseable by the mortgagor (a) . But, to secure to himself the benefit of the rent and covenants, the mortgagee should give the lessee notice of the mortgage, and require payment of the rent ; and he is entitled as well to rent which has fallen due since the mortgage and remains unpaid to the mortgagor, as to rent accruing due after the notice {b) . Until notice, the lessee is justified in paying his rent to the mort- gagor {c). 2ndly, As to leases granted by the mortgagor alone after the mortgage. Whether the estate of a mortgagor in possession be an estate at will {d), at sufferance (e), or of a peculiar nature, constituting him the receiver, agent, or bailiff, of the mort- gagee (/), or his tenant or trespasser at election (g), it is unnecessary in this place to inquire ; for, independently of that consideration, it is settled, that the mortgagor has no power, expressed or implied, to make leases otherwise than subject to eveiy circumstance of the mortgage {h) ; and, con- (a) Moss r. Gallimore, 1 Dougl. 279. (e) Thunder dem. Weaver v. Bel- Birch r. Wright, 1 Term Rep. ."^78. cher, 3 East, 449. Partridge v. Bere, Rogers v. Humphreys, 4 Adol. & Ell. 5 Barn.& Aid. 604; S.C. 1 Dow.&Ry. 299; S.C. 1 Har. & Wol. 625. Bur- 272. Doedem.Roby r. Maisey,8Barn. rowes V. Gradin, 1 Dowl.& Lownd. 213. & Cres. 767. Pope v. Biggs, 9 Barn. & (6) Ibid. 4 Amie, c. 16. s. 10. Cres. 245. 253; S.C. 4 Man. & Ry. 193. Pope V. Biggs, 9 Barn. & Cres. 245 ; (/) Birch v. Wright, 1 Term Rep. S. C. 4 Man. & Ry. 193. Ex parte 383. Pope v. Biggs, 9 Barn. & Cres. Hankey, Mre Brindloy, 1 Mont. & 258; S. C. 4 Man. & Ry. 193. Wad- Maear. 247. dilove v. Barnett, 2 Bing. N. C. 538. (c) Ibid. 544. Doe dem. Jones v. Williams, 5 {(I) Smartle v. William,s, 1 Salk. Adol. & Ell. 291. 297 ; S. C. G Nev. & 245; S. C. 3 Lev. .387; Holt, 47« ; Man. 816. S. C, nom. Smart v. Williams, Comb. (r/) Doc dem. Roby r. Maisey, sup. 247. Poncsley, Pouseley, or Powsclcy, Doe dem. Iligginbotham v. Barton, 11 V. Blackman, fir Blakeman, J. Bridgm. Adol. & Ell. 307. 314 ; S, C. 3 Per. & 12; S. C. Cro. Jac. 659 ; Palm. 201 ; Dav. 194. Bindl. 103; 2 Rol. 284. Kecch dem. (h) Keech dem. Warne v. Hall, 1 \V;irii(! r. Hall, I Dougl. 21-2. Moss Dougl. 21. Brown f. Storey, 1 Scott's V. fJaliimoio, 1 Dougl. 282-3. N. R. 9 ; S. C. 1 Man. & Gra. 117. Ch. I. S. III.] WHO lessors: MORTGAGOR AND MORTGAGEE. iG5 scquently, though a lease made by the mortgagor alone after the mortgage may be binding by estoppel (i) on him, and all persons afterwards claiming under him ; yet the tenant under such a lease may, as a general rule, be ejected by the mortgagee without a notice to quit ; for he cannot be in a better condition than the mortgagor himself, who is subject to eviction at the mortgagee's caprice without previous warijing {k). He will, however, be protected in paying rent to the mortgagor until he receive notice from the mortgagee to pay it to him [1) . Where a party mortgaged his estate, and afterwards made a second mortgage, whereby he assigned all his right and interest in the premises both at law and in equity, having leased them to another in the interval, it was held that the lessee might avail himself of such second mortgage as a defence to an action of ejectment by the mortgagor, without showing that any interest was in arrear, or that the mortgagee had made any claim on him ; for in doing so, he did not set up anything adverse to his landlord's right to grant the lease, but merely showed that he had subsequently parted with his title (m). There has been much discussion, of late, as to the effect of notice of the mortgage given by the mortgagee to the party in possession as tenant to the mortgagor after the mortgage, accompanied with a demand of rent. It originated in some remarks which fell from the court in the case of Pope v. Biggs {n), where it was held, that notice by a mortgagee to a tenant of the mortgagor, the tenancy having commenced (i) Omelaughland v. Hood, 1 Rol. phreys, 4 Adol. & Ell. 299 ; S. C. 1 Hai-. Ab. 874. pi. 10. 876. pi. 5. Webb v. & Wol. 625. Austin, 8 Scott's N. R. 419; S. C. 7 (l) Pope v. Biggs, 9 Barn. & Cres. Man. & Gra. 701 ; Law Join-. N. S. 245. 251; S. C. 4 Mau. & Ry. 193. vol. 13, p. 203, C. P. As to leases by (_m) Doe dem. Marriott v. Edwards, estoppel, see ante, p. 52. 5 Barn. & Adol. 1065; S. C. 3 Nev. & (k) See the cases, sup., and Doe Mau. 193. dem. Fisher i;. Giles, 5 Bing. 421; S. C. (n) Pope v. Biggs, sup. See also 2 Mo. &-Pa. 749. Doe dera. Hughes Lysaght'j;. Callinan, Hayes, 141. 151, V. Buclmell, 8 Car. & Pa. 566. Brown and Waddilove i-.Baruett, 2 Biug. N C V. Storey, I Scott's N. R. 9 ; S. C. 1 538; S. C. 2 Scott, 763. Man. & Gra. 117. Rogers v. Hum 166 OF THE CONTRACTING PARTIES. [Part III. subsequently to the mortgage, to pay the rent to him (the mortgagee) in discharge of his interest, with an intimation that, in default, he would pursue such remedies as were allowed by law for recojering the same, and payment accord- ingly, were a good defence to an action by the assignees of the mortgagor, who became bankrupt, against the tenant for iise and occupation. It appeared that there was an arrear of rent, fallen due since the mortgage, when the notice was delivered, and that other rent subsequently became due, and it was contended by the plaintiff, that, assuming the defendant to be justified in paying to the mortgagee the rent which became due after the notice, he was, at all events, liable to pay to the mortgagor the rent which had previously accrued due. The court, however, determined otherwise; and Bay ley, J., in delivering his judgment, said, " I have no doubt that, in point of law, a tenant who comes into possession under a demise from a mortgagor after a mortgage executed by him may consider the mortgagor his landlord so long as the mortgagee allows the mortgagor to continue in possession and receive the rents ; and that payment of the rents by the tenant to the mortgagor, without any notice of the mortgage, is a valid payment. But the mortgagee by giving notice of the mortgage to the tenant, may thereby make him his tenant, and entitle himself to receive the rents." — " Here the mortgagee, by giving notice of the mortgage to the tenants, has put an end to the right of the mortgagor to receive the rents. At common law, the attornment of the tenant would have been necessary to entitle the mortgagee to the rents ; but the effect of the statute 1< Anne, c. 16. ss. 9, 10, is to place a tenant, as soon as he has notice of the mortgage deed, in the same situation as if he had attorned to the mortgagee, with this exception, that he is not to be prejudiced by any act done by him as holding under the grantor, until he has had notice of the mortgage deed. That being so, as the attornment at common law would have related back to the time of the grant, it foUoAvs that all the rents due from the tenant, not actually paid oAcr to the mortgagor, belong of Ch. I. s. III.] WHO lessors: MOKTGAGOR and MOllTGAGEE. 167 right to the mortgagee." So, Littledale, J., after observing that the mortgagor had no right to do anything without the consent of the mortgagee, and that the latter, although he might suffer the mortgagor to receive the rents for a time, might give notice to the several tenants not to pay them to the mortgagor, and thereby determine the authority of the latter to receive them, and that any tenant who paid rent to him after that notice would do so at his peril, proceeded thus : " It is said that this may be true as to future rents ; but that it is not so as to by- gone rents. The same prin- ciple, however, applies to both. The mortgagee cannot, indeed, distrain or maintain any action for the by-gone rents which accrued due before he gave notice to the tenants, be- cause, before that time, there was no privity between him and the tenants. But the notice, by force of statute 4 Anne, c. 16, operates as an attornment of the tenants, and when they attorn they become tenants to the mortgagee, and at common law that attornment would have related back to the grant, so as to entitle the mortgagee to all the rents from the time when the deed was executed. A new tenancy is then created as between mortgagor and mortgagee, and the latter becomes entitled to all the by-gone rents." — "It seems to me, therefore, that the mortgagees, by giving notice of the mortgage to the tenants, entitled themselves to receive the by-gone as well as the future rents." Indeed, throughout the whole judgment of the court it appears to have been assumed that the former tenancy continued, the mortgagee standing in the place of the mortgagor. But this doctrine has been frequently impugned, and can- not now be relied on. The language of Lord Denman in Rogers v. Humphreys (o), is wholly opposed to it. If (said his Lordship) there be a lease, and such lease is prior to the mortgage, the mortgagee has the same rights against the lessee, and those claiming under him, that the mortgagor had, and no other than he had, and his remedy must be on the (o) Rogers V. Humphreys, 4 Adol. & Ell. •39<). .",13 ; S. C. 1 Hai\ & Wol. 625. 168 OF THE CONTRACTING PARTIES. [Part III. lease as assignee of the reversion, as long as the lease is in existence, and the tenant acknowledges his title ; but if the lease be subsequent to the mortgage, then the mortgagee may treat the lessee, and all those who may be in possession, as wrong-doers, and may bring an ejectment, but he cannot distrain, or bring any action for the rent they have con- tracted to pay, as there is no relation of landlord and tenant between them, unless they choose to pay the rent to the mortgagee, and he accepts it : in that case there is a re- lation of landlord and tenant created between the mortgagee and the tenants, and the remedy of the mortgagee will depend upon the particular circumstances of each case : no notice is necessary to be given by the mortgagee that he means to proceed against such tenants where they come in subsequent to the mortgage, because in such case their title is wrongful as against the mortgagee ; but there may be cases where, in consequence of the conduct of the mortgagee, notice may become necessary. To the same effect is Partington v. Woodcock (p), where an insolvent debtor being in possession of certain premises, demised them to another for years, who, on being sued by the insolvent for rent, pleaded, that, after the plaintiff's discharge under the insolvent debtor's act, and after the making of the demise, (the plaintiff having been authorised and permitted by the assignee to remain in possession, and make the demise,) and before the rent became due, the defendant received from the assignee a notice and requisition to pay the rent under the demise to him, and that, in default, legal proceedings would be taken by the assignee to recover ; and it was held that the plea was bad, the assignee not being entitled under the old demise, and no new tenancy between the lessee and assignee having been shown. And on Pope V. Biggs being cited, Patteson, J., said, that he never coidd see how notice could make the mortgagor's tenant tenant to the mortgagee at the former rent ; that there might, indeed, (;-; I'artington v. Woodcock, G Adol. & Ell. G,')0; S. C. 5 Ncv. & Man. 072 ; 1 Mar. & Wol. 2G2. Cii. I. s. Ill] WHO lessors: MORTGAGOR AND MORTGAGEE. 169 be a new tenancy created at the old rent, where fresh notice was given, and the rent paid accordingly; and Littledale, J., whose opinion in Pope v. Biggs has already been noticed {q), also observed, that if the lease were made subsequently to the mortgage, he saw no remedy the mortgagee coidd have against the tenant, on non-payment of the rent, but to bring ejectment. So, in a case at nisi prius (r), before Patteson, J., it was decided, that a mortgagee, by consenting to take as his tenant a party claiming under a lease posterior to the mort- gage, instead of tm^ning him out of possession, did not esta- blish the lease ; but made the tenant his lessee from year to year only. To the same effect also is Evans v. ElUot (s), where it was held that a mortgagee, by giving notice to a tenant holding under a lease made by the mortgagor only after the execution of the mortgage, to pay his rent to him (the mortgagee), and not to the mortgagor, did not entitle himself to distrain as for rent accruing under the lease, such notice not constituting the relation of landlord and tenant between the mortgagee and lessee. In this case the naked point was presented to the court, and they were unanimously of opinion that, by the mere fact of notice that the mortgage money remained unpaid, the mortgagee could not forthwith cause the tenant to hold of him. Pope v. Biggs {t), therefore, so far as it advances a different doctrine, is overruled. And it has also been held very lately, that payment of rent by a mortgagor's tenant to the mortgagee, under an authority from the mortgagor, will not create the relation of landlord and tenant between the tenant and the mortgagee {u). Hence also it would seem that a lease made by a mortgagor (q) Sup. p. 167. Adol. & Ell. 307. Jolinson v;. Jones, 9 (r) Doe dem. Hughes v. Bucknell, Adol. & Ell. 80!) ; S. C. 1 Per. & Dav. 8 Car. & Pa. 566. 651 ; and Bui-rowes v. Gradin, 1 Dowl. (s) Evans, i;. Elliot, 9 Adol. & Ell. & Lownd. 213. 34-2; S. C. 1 Per. & Dav. 256. 1 (0 Pope v. Biggs, sup. p. 165. Willm. Wol. & Hodg. 744. And see (w) Wheeler i». Branscombe, 5 Q. B. Doe dem. Higginbotham v. Bai'ton, 11 373; S. C. 1 Dav. & Meriv. 406. 170 OF THE CONTRACTING PAllTIES. [Part III. subsequently to the mortgage is void as against the mort- gagee {x). But in Evans v. ElKot {y), adverting to an argu- ment that the mortgagee might always treat both the mortgagor, and all who claimed under him, as trespassers, and that, for that reason, the mortgagor's lessee could not become the tenant of the mortgagee under the old lease, Lord Denmau said, that, though he believed that his learned brothers were disposed to assent to the proposition, he wished to guard himself against being understood to adopt it as universal ; for he considered that a mortgagee might so bind himself by his own conduct as to be precluded from treating the mortgagor's lessee as a trespasser ; and declared himself by no means prepared to admit that a jury would not be warranted in inferring a recognition of the tenant's right to hold from the mere circumstance of the mortgagee's know- ingly permitting the mortgagor to continue the apparent owner of the premises, as before the mortgage, and to lease them out, exactly as if his property in them continued. There is no doubt, however, that if the mortgagee require the rent to be paid to him, and it be paid accordingly, the relation of landlord and tenant may arise between the parties {z) ; or, at all events, the mortgagee may be entitled to sue the tenant for use and occupation {a) . And where the attorney of a mortgagee, Avho was also attorney of the mort- gagor, applied to the tenant in possession under the mortgagor for payment of his rent, in order to satisfy the interest on the mortgage, with a threat of distress in case of non-payment, it was held that the mortgagee could not maintain an eject- ment against the tenant as a trespasser, laying the demise at (.c) Sec also Kcech v. Hall, 1 Dousl. 2 Rol. 284; Palm. 201. Cro. Car. 304. 21. Birch v. Wright, I Term Rep. Skin. 424. Doe dem. Higgiiibotham 378. .3(30. Thunder dera. Weaver v. v. Barton, 11 Adol. & Ell. 307; S. C. Belcher, 3 East, 44.9. Ex parte Wills, 3 Per. cSc Dav. 1,94. Rogers v. Hum- 2 eo.\, 233. phvcys, 4 Adol. c9 ; Bcndl. 103 ; Ell. 451 ; S, C. 2 Nev. & Per. 423. Cu. I. s. III.] WHO lessors: — mortgagor and mortgagee. 171 a period anterior to the application (h) ; though the mere receipt by the mortgagee from the mortgagor of interest on the mortgage will not preclude the mortgagee from ejecting the mortgagor's tenant, declaring on a demise prior to the receipt (c). In the case last cited, Littledale, J., hinted a doubt as to the propriety of the judgment in Doe dem. Whitaker v. Hales {d) ; but Lord Denman subsequently declared (e) that, notwithstanding that doubt, the case appeared to him to be well decided. If, after notice and demand, the tenant continue in posses- sion, a jury may fairly infer a new tenancy from year to year between him and the mortgagee, at the old rent (/). But if the judge, not being required at the trial to leave it to the jury to say whether the tenant assented to the new tenancy, omit to do so, the omission cannot support a motion for a . new trial on the ground of misdirection {(/) . After such notice and demand, the tenant is justified in paying to the mortgagee as well such rent as may have fallen due since the mortgage, and remain unpaid to the mortgagor, as that which may thereafter become due. This was decided in the case of Pope v. Biggs [h), the court considering the mortgagee's demand to be equivalent to an eviction of the tenant by title paramount, which, of course, would be an answer to the mortgagor's claim (i). So, in Doe v. Barton {k), Lord Denman said that the mortgagee was entitled to the profits of the land, and that the tenant was right in paying him those profits, whether strictly called rent or not. That, as he might eject the lessee, and after- wards let to him, it seemed absurd to require him to go through the form of an ejectment in order to put the lessee (6) Doe dem. Wliitaker v. Hales, 7 (/) Brown v. Storey, 1 Scott's N. R. Bing. 322; S. C. 5 Mo. & Pa. 132. 9 ; S. C. 1 Man. & Gra. 117. Doe (c) Doe dem. Rogers v. CadwaJlader, dem. Hughes v. Bucknell, 8 Car. & '2 Barn. & Adol. 473. Pa. 566. (c^ Doe dem. Whitaker v. Hales, (g) Brown v. Storey, sup. sup. - (/t) Pope V. Biggs, sup. p. 1 65. (e) Evans v. Elliot, t) Adol. & Ell. (i) Ibid. 342. 355 ; S. C. 1 Per. & Dav. 256 ; (l) Doe dem. Higginbotham v. Bar- 1 Willm. Wol. & Hodg. 744. ton, sup. 172 OF THE CONTRACTING PARTIES. [Paut III. into the very position in which he would stand by paying his rent to the mortgagee (/) . Though the tenant cannot dispute his landlord's (the mortgagor's) title to demise, he may show that such title was defeasible, and that it has been defeated {m) . In the case of Johnson v. Jones {n), the plaintiff in replevin, to an avowry for rent due in respect of premises held by the plaintiff as tenant to the defendant, pleaded, that, before the defendant had anything in the premises, one Ann Griffith, being seised in fee, mortgaged them in fee to J. Clement ; that default was made in pajnnent ; that the equity of redemp- tion descended to Da\id Griffith, who leased them to the defendant for twenty-one years, who made the demise to the plaintiff mentioned in the avo'svTy ; that after the rent became due from the plaintiff as tenant to the defendant, the heir of the mortgagee, to whom the premises had descended, demanded payment thereof from the plaintiff, and threatened in case of non-payment to put the law in force, wherefore the plaintiff did then necessarily and unavoidably pay the said mortgagee the said sum of 14/. so in arrear, " and so the plaintiff says that no part of the said sum of 14/. of the said rent was, or is, in arrear, as in the avowry," &c. This plea was demuiTcd to, on the ground that it attempted to deny the title of the defendant ; that it showed no power in the mortgagee to compel payment, and that it amounted to riens in arret'e. But it was held that the plea Avas not one of nil habuit, nor of eviction, but of payment ; that the plaintiff did not deny his holding as tenant to the defendant ; but showed that the lease was made subject to a prior charge, namely the mortgage, which he was compelled to pay ; and that the facts stated in the plea showed an authority in law justifying payment to a third party. It is to be observed that these cases are distinguishable (/) Sec also Himilai- remarks made {n) .Johnson -v. Jones, 9 Adol. & Ell. hy Tarkc, J.,in Pope v. Bi^Ks, •') Barn. 809 ; S. C. 1 Per. .S;; Dav. Col. And tV Cres. 2.'j()-l ; S. C. 4 Man. is. Ky. 193. see Sapsford v. Fletcher, 4 Term Rep. {ill.) I'oiie V. Biggs, sup. .'ill. Taylor 1'. Zamii'a, (J Taunt. 5"J4. Ch. I. s. III.] WHO lessors: — mortgagor and mortgagee. 173 from Alchorne v. Gomme (o), where the tenant had not only voluntarily attorned to the mortgagee^ but expressly denied the title of his lessor^ (the mortgagor) . 3rdl3\ As to leases by the mortgagee alone. Where a mortgage has become absolute, the mortgagee, being the unconditional legal owner of the premises, may alone grant leases for any term, regard being had to the quantity of estate conferred by the mortgage, which cannot be impeached at law by the mortgagor ; but, before foreclosm'e of the equity of redemption, a mortgagee cannot make a lease of the property in mortgage, which will be binding in equity upon the mortgagor after redemption ; unless it be necessary to avoid an apparent loss, in which case equity ^ill not permit the lessee to be disturbed [p] . 4thly. In order, therefore, to insure the permanency of a lease of lauds in mortgage, the concui'rence of both mort- gagee and mortgagor must be obtained. The former, to pass the legal estate, should ^'demise and lease,^^ and the latter, to affect his estate, should "grant, demise, and lease, and also ratify and confirm," care being taken to avoid the unskilful error of making the mortgagee the only demising party, with the consent and approbation of the mortgagor. When granted by mortgagee and mortgagor, the lease operates, during the continuance of the mortgage, as the demise of the former, and the confirmation of the latter ; but after the mortgage is paid oflF, as the demise of the latter, and confirmation of the former {q) . Where a mortgagor and his mortgagee for a term of years concurred in a deed by which the former demised and leased, and the latter ratified and confirmed, the premises unto a third party for the residue of the term, at a certain yeai'ly rent, reserved to the mortgagor, his executors, administrators, or assigns, and which the lessee covenanted to pay to the (o) Alchoi-ne v. Gomme, 2 Bing. 54 ; (5) Doe dem. Barney v. Adams, 2 S. C. 9 J. B. Mo. 130, Crompt. & Jerv. 232 ; S. C. 2 Tynvli. (,p) Hungerford v. Clay, !) Mod. 1 ; 289. S. C. 2 Eq. Ca. Ab. 610. 174 OF THE CONTRACTING PARTIES. [Part III. mortgagor_, his executors, administrators, and assigns ; but it was declared that nothing in the deed contained should tend to disqualify, abridge, lessen, alter, defeat, impeach, annul, or determine, the estate or interest of the mortgagee in the premises, which it was also declared should remain a security for his principal and interest, it was held that the mortgagee, and not the mortgagor, was entitled to the rent reserved by the lease ; though the lessee was entitled to his term exempt from the mortgage (r). A mortgagor cannot enforce a specific performance of a contract to take a lease, without first redeeming the mort- gage, or obtaining the mortgagee's concurrence in the lease (*) ; though a pai'ty claiming under such a contract cannot compel the mortgagor to pay off the mortgage to give effect to the lease (t). But in a very recent case {u), where a mortgagor contracted to sell a shop and dwelling house, stated in the particulars of sale to be held by a tenant under a lease at a certain yearly rent, the lease having in fact been granted by him after the mortgage, without the concurrence of the mortgagee, it was held, that, as the mortgagee was willing to concur in any conveyance, the mortgagor could make a good title, as by a re- conveyance by the mortgagee to the mortgagor, that Avhich before was only a lease by estoppel, would be converted into a lease in interest. It is a common practice to reserve the rent to the mort- gagee during such part of the term as the mortgage shall be outstanding ; and, after it shall have been discharged, to the mortgagor for the remainder of the term, if any ; Imt, as rent reserved to a mortgagor would be but an annual sum in gross, it is better to reserve it generally during the term, leaving the law to carry it to the person legally entitled (<27) . Where tlie mortgagee and mortgagor concur in the grant, (r) Edward v. Jones, 1 Col. 247. 00 Webb r. Austin, 8 Scott's N. R. (») Costigan v. Hastier, 2 Sclio. & 41.0; S. C. 7 Man. & Gra. 701 ; Law J.of. HiO, Jour. N. S. vol. 1,3, p. 20^, C. P. (/) Ibi.l. (.»•) Wliitlod{\scaso,8Co. ().0,b. 71,a. Cii. I. s. III.] WHO lessors: — mohtgagou and mortgagee. 175 the covenants on the lessee's part shoukl be entered into with the mortgagee, with a view to their running with the land. If entered into with the mortgagor, they are merely covenants in gross, and of no value at law to an assignee of the mortgage (y) . In an action lately brought by a lessee on an implied cove- nant arising out of a demise {z), against a mortgagee and his mortgagor, who, together with the trustee of a term, were demising parties in the lease, the court held that the plaintiff was bound to prove a joint demise by the two defendants, and that, as one of the defendants was entitled to an equity of redemption only, and, therefore, incapable of making a legal demise, a covenant by him could not be implied (a), A demise by the mortgagee to the mortgagor will not suspend the condition; for the pajonent of the mortgage- money does not arise from the profits of the land ; and the condition is collateral [b). In a late case (c), where a mortgage was made subject to redemption on re-payment of the money and interest on the 5th of June, 1833, and it was agreed that the mortgagee should not be entitled to call it in before the 5th of December, 1840, if the interest were regularly paid; with a proviso that it should be lawful for the mortgagor quietly to hold and enjoy the premises, and receive the rents thereof, till 'default in payment of the principal money, or the interest thereof, it was held that the proviso operated as a re- demise to the mortgagor till the 5th of Dec. 1840, provided the interest in the meantime were regularly paid. (2/) Webb V. Russell, 3 Term Rep, (a) Smith v. Pocklington, 1 Crompt. 393. Stokes v. Russell, 3 Tei-m Rep. & Jerv. 445; S. C. 1 Tyrw. 309. 679. Russell n Stokes, in error, Exch. (?0 Jenk. Cent. 254, case 46. Wil- Chamb. 1 H. Blae, 562. kinson v. Hall, 3 Ring. N. C. 508 ; (2) The late act of 8 & 9 Vict. S. C. 4 Scott, 301. c. 106. s. 4, which deprived the word (c) Wilkinson r. Hall, 3 Ring. N. C. grant of its operation as a covenant in 508 ; S. C. 4 Scott, 301. law, did not extend to the word demise. 3 76 OF THE CONTRACTING PARTIES. [Paut IIT. Section IV. — With reference to Office. I. — Corporations in general. Before entering upon an examination of the powers of leasing enjoyed by particular corporations, it will be con- venient to offer some remarks respecting corporations in general, and as a few pre\ious words explanatory of the dif- ferent kinds of corporations may tend to assist the student in this intricate and important branch of our subject, no apology will be offered for their introduction in this place. Corporations are either spiritual or temporal, according to the object of their institution. Spiritual or (as they are also denominated) ecclesiastical corporations are such as are devoted to the service and interest of the church, the com- ponent members being of the ecclesiastical order [d) . Temporal (termed also lay) corporations may be subdivided into two classes; eleemosynary, and civil. The former are constituted for the perpetual distribution of the free alms or bounty of the founder; such, for example, are hospitals for the maintenance and relief of the poor, sick, and impotent ; and they retain their temporal character, though composed of ecclesiastical persons, and partaking in some things of the nature, privileges, and restrictions, of ecclesiastical bodies (e). Civil corporations are established for a variety of secular purposes. The Queen, for instance, is made a corporation to prevent in general the possibility of an interregnum, or vacancy of the throne, and to preserve the possessions of the crown entire. Other civil corporations have at various times been erected for the good government of a town or particular district, under the name of mayor and commonalty, bailiff and burgesses, and other similar denominations (/) ; and it (d) 1 Bla. Com. 470. Municipal Corporations Act, 5 & 6 (e) 1 Ula. Com. 471. W. 4. c. 7f>, as \vc shall see hereafter, (/) 1 Ilia. Coin. 470. By the late the eorporate Ijodies emunerated in Cii. 1. s. IV.] WHO LKSSORs : — cokporatioxs in general. 177 appears to be now fully established, whatever doubts may formerlj'" have existed on the subject, that the universities of Oxford and Cambridge rank as civil and not as eleemosynary bodies {(/). All corporations are either sole or aggregate {h). The former consists of one person only and his successors. In this sense the Queen is a sole corporation. So is an arch- bishop, a bishop, an archdeacon, a j^arson, and a vicar ; so are some deans and prebendaries [i), distinct from their several chapters [k). The latter consist of many persons united together in one society ; such as the dean and chapter , of a cathedral church, the head and fellows of a college, and the mayor, aldermen, and burgesses of a city (/) . A corporation cannot make a valid legal demise except by f^c /^rj^/^u /kz^vA deed (m), sealed with their common seal(w). Therefore, ^'^^ '^ ^ where certain persons were constituted a corporation for building a bridge, &c.j with power to use a common seal, and five of them, describing themselves as five of the members of a committee appointed for managing and carrying on the affairs of the company, demised the toll-house, tolls, &c., under their own seals, but not that of the corporation, it was held that the instrument could not be supported (o). On the other hand, where a lease was made by a corporation, (the master and governors of an hospital,) and sealed with their common seal, it was held that the survivors, though indivi- schedules (A) and (B) to that act are 1 Esp. 198. Rex r. Inhabitants of now denominated " The mayor, alder- Chipping Norton, 5 East, 239. 242. men, and burgesses." Southwark Bridge Company v. Sills, 2 {g) Parkmson's case, Carth. 93 ; Car. & Pa. 371. S. C. 3 Mod. 265. Skin. 494. 1 Ld. (»i) Smith v. Barrett, 1 Sid. 162. Raym. 6. Rex v. Vice-Chancellor &c. Patrick r. Balls, Carth. 390 ; S. C, of Cambridge, 3 Burr. 1656. nom. Partridge r. Ball, 1 Ld. Raym. (A) 1 Bla. Com. 469. 136. Wood v. Tate, 2 New Rep. 247. (i) The membei-s of chapter, ex- Wimae r. Bampton, 3 Atk. 475. Fur- cept the dean, are now styled " Ca- ley dem. Mayor of Canterbury r. Wood, nons"; 3 & 4 Vict. c. 113. s. 1. 1 Esp. 198. Carter r. The Dean and (it) 1 Bla. Com. 469. Chapter of Ely, 7 Sim. 211. 227. Bird (J) Ibid.- r.Higginson, 6 Adol.& Ell.824-7; S.C. (»;i) Dean and Chapter of Rochester 1 Har. & Wol. 61. V. Pierce, 1 Campb. 466. Furley dem. (o) Rex r. The Inhabitants of North Mayor &c. of Canterbury r. Wood, Duffield, 3 Mau. & Selw. 247. VOL. I, N 178 OF THE CONTRACTING PARTIES. [Part Jll. dually named as parties to the deed, could not maintain an action of covenant against the lessee (p). If a plaintiff in ejectment declare on a demise by a corpora- tion, without setting forth that it was by deed under their common seal, the error will be cured by verdict (g). A corporation affixes its seal through the medium of a party deputed to perform that office (r) ; the instrument, when sealed, needs, in general, no dehvery {s) ; but if a cor- poration appoint an attorney to enter and make delivery of a lease upon the land, the lease is not complete until dehvery, although the corporation may have put their seal to it {t) . Though a corporation lease cannot be supported unless it be under their common seal, the lessee, by his entry and enjoyment, where corporeal hereditaments are the subject of demise, may become a tenant from year to year {u) ; and the corporation may distrain for the rent (x) . And, whether the subject be a corporeal (?/) or an incorporeal (^r) hereditament, they may maintain an action either of debt {a) or assumpsit [b) for use and occupation ; for such an action does not neces- sarily suppose any demise ; it is enough that the defendant {p) Cooch V. Goodman, 2 Q. B. 580; ford v. TiU, 4 Bing. 75; S. C. 12 J. B. S. C. 2 Gale & Dav. 159. Mo. 260. {q) Partridge v. Ball, 1 Ld. Raym. (~) Mayor and Burgesses of Car- 136; S. C, nom. Patrick v. Balls, marthen v. Lewis, 6 Car. & Pa. 608. Carth. 3.00. Bird v. Higginson, 6 Adol. Sec Rex v. Inhabitants of Chipping & Ell. 824-7; S. C. 1 Har. & Wol. 61. Norton, 5 East, 239. Rex v. Inhabit- (r) Doe dem. The Bank of England ants of Noi-th Duffield, 3 Man. & V. Chambers, 4 Adol. & Ell. 410; S. C. Sclw. 247. Mayor and Burgesses of 6 Nev. & Man. 539 ; 1 Har. & Wol. Stafford r. Till, sup. 749. («) Dean and Chapter of Rochester (s) Butler v. Fincher, 1 Rol. 229. v. Pierce, sup. Beverley v. The Lin- 231, per Coke ; but see cont., per coin Gas Light and Coke Company, 6 Gawdy, 2 Leon. 98. Perk. s. 132. Adol. & EU. 829. 838 ; S. C. 2 Nev. & Rol. Ab. Faits, (I) pi. 4. 5. Per. 283. 291. And see Gibson v. (f) Willis V. .Jcrniin, Cro. Eliz. 167 ; Kirk, 1 Q,. B. 850 ; S. C. 1 Gale & Dav. S. C. 2 Leon. 97. 252. (m) Wood V. Tate, 2 New Rep. 247. (I) Mayor and Burgesses of Car- Vin. Ab. Corporation, (K) pi. 1 1. 41. marthen r. Lewis, sup. Southwark (.r) ll)id. Bridge Company v. Sills, sup. Mayor (y) Dean and Chapter of Rochester and Bm'gcsscs of Stafford v. Till, sup. r. I'ieroo, 1 Campb. 466. Southwark East London Water Works Company F{ridg(! Company r. Sills, 2 Car. & Pa. v. Bailoy, 12 J. B. Mo. 532. 536; S. C. 371. Mayor an.l IbirtrosHos of Staf- 4 Bing. 283. 287. Ch. I. s. IV.] WHO lessors: — corporations in general. 179 use and occupy the premises by the permission of tlic plaintiff; and a corporation^ as well as an individual^ may, without deed, permit a person to use and occupy premises of which they are seised (c) . It is not necessary to prove the seal of a corporation in the same manner as the seal of an individual, by producing a witness who saw the seal affixed ; though where an instru- ment having a seal affixed to it, purporting to be a corporate seal, is produced in evidence, it is necessary to proA^e it to be the seal of the corporation, if there be any doubt about it {(I) ; otherwise, any instrument with a seal to it might be pro- duced in coiu't as an instrument sealed by the corporation (e) . If there be an attesting witness to the affixing of the seal, it is questionable whether he should not be called to prove the deed (/). In the case last cited, the seal of the bank of England was affixed to the parchment of an indenture of feoffment by a piece of paper, on which was written : — " Sealed by order of the court of directors of the governor and company of the bank of England, 12th Dec. 1833 : John Knight, secretary;" and it was contended that Knight was an attesting witness, and ought to be called ; but the court regarded the writing as a memorandum merely that the seal was impressed by order of the corporation, and not as an attestation. In a case of ejectment at nisi prius {g), Lord Kenyon held that the common seal of the city of London proved itself. In an ejectment by a corporation, it is never expected that their demise by deed to the nominal plaintiff should be proved [h). Sir L. Shadwell, V. C, has declared it to be the clear law of the land, that eleemosynary and ecclesiastical corporations (c) Dean and Chapter of Rochester SO.'i. 307 ; S. C. 3 Esp. 4. ■!'. Pierce, sup. (/) Doe dem. The Bank of England {(l) See, however, the late act to v. Chambers, sup. facilitate th'e admission in evidence of (y) Doe dem. Woodmass v. Mason, certain official and other documents, 1 Esp. 53. 8 & 9 Vict. c. 113. (//) Furley dem. Mayor &c. of Can- (e) Moies v. Thornton, 8 Tei-mRcp. terhury v. Wood, 1 Esp, 198. n 2 180 • OF THE CONTRACTING PARTIES. [Part III. are not bound hj anything in the shape of an agreement regarding their lands, unless it be evidenced by a deed or writing with their corporate seal affixed to it {i). And his Honor, therefore, held, that an entry signed by the dean and five of the prebendaries {k) of Ely (who constituted a majority of the body) in their corporation books, of the terms of an arrangement to accept a party as their lessee, was not an agreement which would bind them (/). But in an earlier case (m). Sir John Leach, V. C, said, that he was inclined to think that, if a regular corporate resolution passed for granting an interest in a part of the corporate property, and upon the faith of that resolution expenditure was incurred, both principle and authority would be found for compelling the corporation to make a legal grant in pur- suance of that resolution. In this view Alderson, B., has since seemed to concur {71) ; and in a recent case (0), where the London and Birmingham Railway Company had con- tracted by their agent for the purchase of a piece of land, and had entered upon, and proceeded to construct then* rail- way over it. Lord Cottenham, C, overruled an objection that, as the agent was not appointed under their corporate seal, the company were not bound by his acts. " It is not very easy," said his lordship, ''to reconcile all the cases on the subject ; but the case of the JMayor of Stafford v. Till {p) is very similar to the present, as to the circumstances of the parties to the contract; there the court of Common Pleas thought that the corporation were entitled to support an assumpsit for use and occupation against a tenant, who, though he did not hold of them by deed, had had actual (i) Carter v. Dean and Chapter of 1 T. Wms. G55 ; S. C. 2 Eq. Ca. Ab. Ely, 7 Sim. 211. 227. lOa. pi 2. Dean and Chapter of Ely {k) See ante, p. 177. n. (v'). v. Stewart, 2 Atk. 44-.'"); S. C. Barnard. (l) Carter v. Dean and Chapter of Ch. 170. Winne r. Bampton, .'5 Atk. Ely, sup. 4 7;{. 47«. (7/i) M.arshall v. The Corpoi-ation of (o) The London and Birmingham Queenhorough, 1 Sim. & Stu. 520. Railw.ay Company v. Winter, 1 Cr. & {'II) Wilmot V. The C<)rj)oration of Phil. 57. Cov.ntry, 1 Yo. & Col. Exeh. 518. (^)) 4 Bing. 75; S. C. 12 J. B. Mo. And see Taylor r. Dulwich iliis])ital, 2(i0. ClI. I. S. IV. J WHO LICSSOIIS : CORPORATIONS IN GENERAL. 181 enjoyment of their land. So here, the plaintiffs have not only been acting on the contract by entering into possession of the property, but have actually destroyed the property enjoyed by the defendant previously to the contract, by making their railway over it. If, therefore, it were necessary for the defendant to file a bill against these plaintiffs, I have no doubt but that they would be compelled specifically to per- form the contract. ^^ In the case of Saunders v. The Dean and Chapter of Bristol ((/), the dean and chapter made a church lease for forty years, and the dean and most of the prebendaries were changed ; the succeeding dean and chapter then brought an ejectment against the lessee, who filed his bill against them, and likewise against the former dean and chapter, praying that the present dean and chapter might make such lease as they could by law, and that the former dean and chapter might refund such part of the fine in proportion as a fine upon a lease for twenty-one years would have borne to a fine upon a lease for forty years. The Lord Chancellor said that the question relating to the merits of the cause was such a one as he never knew to be determined ; and that the proper direction, therefore, to be given was, that the injunction should be continued to the hearing, on the plaintiffs consenting to deliver possession on the hearing, and to account as the court should direct. A corporation sole, as a bishop or a parson, cannot, in his politic capacity, make a lease to himself in his individual capa- city (/•) : nor can one member of a corporation aggregate make a lease of corporate lands to another member; thus a dean cannot make a lease to his chapter ; nor can the chapter to the dean, for they are integral parts of the same corporation, and must concur in every corporate act {s). And, for the same reason, if a corporation consist of two bailiffs and burgesses, one of the bailifi's and the burgesses cannot, in {q) Saunders v. The Deau and Chap- 30;3-4. tcr of Bristol, Barnard. Cli. 323. (6) Ibid. And see Starkcy v. Bii'ton, (r) Salter v. Grosvenor, ii Mod. Cro. Jac. 234. 182 OF THE CONTRACTING PARTIES. [Part III. their politic cliaracter, make a lease of tlieir corporate estate to the other bailiff in his individual character {t). But tliere is no objection to a lease being made by the dean and chapter to one of the prebendaries, for a prebendary is not an integral part of the body politic {u) . If a lease be made professedly by a corporation, the court cannot judicially notice that no such corporation exists (x). In framing leases by corporations care should be taken to state their title of incorporation correctly, as an omission or alteration in any material particular may prove a fatal objec- tion. The municipal corporations mentioned in the schedules (A) and (B) to the act of 5 & 6 W. 4. c. 76, have now, as we have seen {y), one uniform style of " The Mayor, Aldermen, and Burgesses" of their respective boroughs ; and very little attention will suffice to ensure accm-acy ; but, in earlier days, the avoidance at law of corporation leases on account of defective descriptions of tlieir name of incorporation was of frequent occurrence. We may give a few examples, taken indiscriminately, and without regard to the kind of corpo- ration. On reference, however, to the reports cited, it will be seen that attempts to subvert leases on this ground were received with marked disapprobation in courts of law ; and as early as the time of King James the 1st lessees in such cases were relievable in equity {z). Leases have been declared to be void. Where the corporation was ) ( The lease was gi-anted by the founded by the name of, S I name of, The Warden and Scholars Domus Gustos Domus sive Collegii de sive Collegii Scholarium de Mer- Merton in Oxonia et Scholares ton in Universitate Oxoniae («). ejusdem domus (a). The Guild of St. Nicholas and our The Guild of our Lady the Virgin Lady the Virgin Mary, &c. (b). and St. Nicholas (/). (<) Ibid. (a) Fisher v. Boys, cited 1 Leon. (m) Ibid. 1C2; 10 Co. 125, a. ; Hob. 125. But (x) Coocb v. Goodman, 2 Q. B. 51)0; according to Moore's report of the S. C. 2 Gale & l)av. 1. '>,'). case, (Mo. 2G6) the variaucc was not (y) Ante, p. 17 and < Decanus et Capital. Ecclesiae Ca- thedralis St. et individua Tri. Carl. 07). Masters and Governors and Com- monalty of the Mystery of Cooks (70. Minister Dei, pauperis domiis de Donnington (i). Praepositus et Scholares Aulte Re- ginae de Oxon(^). name of, Decanus Ecclesiae Cathedralis S. Trin. in Car. et totum Capit. de Ecclesiae pr{edict(^). Master and Wardens of the Craft and Mystery of Cooks (/;)• Thomas Letherland, Yeoman, Mi- nister of the Almshouse of God of Donnington, besides Newberry, in the county of Berks, and the Almsmen, confreres of the same house («). Prseposit' Sociorum et Scholarium Aulae vel Collegii Reginae in Universitat' Oxon Rectoriae Ec- clesiae de Charlton super Ote- more Patroni (k) . (c) Eaton College case, 1 And. 23. pi. 47 ; S. C. Benl. 45 ; but according to Mo. 13. 14, the objection was not considered fatal to the lease. And see 1 Leon. 159, Ai-g". (d) Eaton College case, 2 Dy. 150, a. pi. (85); S. C. Jenk. Cent. 214, case 54. (c) Eaton College case, 1 And. 23. pi. 47 ; S.~ C. Mo. 13; Benl. 45. (/) Jenk. Cent. 233, case 6. Ig) Cited, 1 Leon. 159. 161. 163, for the word " Trinity " imports St. et individ.; S. C. cited, 10 Co. 122, b.; Jenk. Cent. 235, case 10. (h) Croft V. Howell, Plowd. 537 ; cited, 1 Leon. 159. (0 Pitt V. James, Hob. 121 ; S. C. Mo. 865. Shci'borne v. Lewis, Mo. 539, semb. S. C. in an earlier stage ; S. C. Goulds. 120. pi. 7. (k) Ayray's case, 1 1 Co. 1 8, b. 184 OF THE CONTRACTING PARTIES. [Part III. The Dean and Chapter Ecclesiie Cathedralis Christi in Academiti Oxon ex Fundatione Reg. H. 8(/). The Dean and Chapter of the Ca- thedral Church of Christ, &c. Oxford of the foundation of King Henry the 8th(/). The Master, Brothers, and Sisters, of the Hospital of the blessed Maiy Virginis {m). The Dean and Chapter of St. Mary in Exon {n). The Provost, Fellows, and Scholars of Queen's College in Oxford, Guardians of the Hospital or Maison de Dieu in Southamp- ton (o). But these examples will suffice. The lease of a corporation granted for charitable purposes does not require enrolment under the statute, 9 Geo. 3. c. 36, the property being already in mortmain [p) . The Master, Brothers, and Sisters, of the Hospital beatai Maria; {m) . The Dean and Chapter of St. Mary de Exon(M). Prsepositus, Socii, et Scholares Collegii Reginalis in Oxonia, Gardianus Hospitalis, &c. (o). II. — The Crown, and its Officers. In consequence of the diminution of the land revenues of the crown by the improvident grants of preceding monarchs, it was found necessary in the reign of Queen Anne to impose a legislative restraint on the jlemising poAver of herself and successors {q) ; and numerous acts of parliament have, at dif- ferent periods, modified and regulated its exercise. Sir William Blackstone lamented the misfortune of the statute having been made too late, after almost every valuable pos- session of the crown had been granted away for ever, or else upon very long leases ; thovigh (he observed) it might be of some benefit to posterity, when those leases came to expire (r) . {I) Button V. Wriglitman, Poph. 5G. 4 Leon. 85. (ir/i) Clark's case, 4 Leon. 1 1 . («) Willis V. Jennin, 1 Cro. Eliz. 1 07 ; .S. C. 2 Leon. 97. North's case, Mo. :iGl. (r>) The case of the Provost and Scholars of Queen's College in Oxford, (p) Walker v. Richardson, 2 Mecs. & Wcl. »82; S. C. Mur. cSc llm-l. 251. The Attorney-General v. Glyn, 12 Sim. 84. ((/) 1 Anne, stat. 1. c. 7. ss. 5. (i. {)•) \ Bla. Com. 287. and preamble 1 Lcoii. l.'M; S. C, almost verbatim, (o sect. 5 of 1 Amio, stat. 1. c. 7. J Cil. I. s. IV.] WHO lessors: THK CROWNj AND ITS OFFICERS. 185 Until the reign of King George the 1th, crown leases of lands within the ordering and survey of the court of Exchequer were made in the name of the king or queen regnant, and passed under the great seal or Exchequer seal; but the delay, inconvenience, and expense, incident to this mode of proceeding (s) suggested the expediency of delegating the management of property within that ordering and survey to the commissioners of the woods, forests, and land revenues of the crown. This alteration was effected by the statute 1 & 2 Geo. 4. c. 52, the provisions of which have since been considerably extended and improved luider the sanction of parliament. I propose, therefore, an examination of the powers of leasing granted to the commissioners, before I enter upon those still retained and exerciseable by the crown ; and although this arrangement may involve a viola- tion of logical propriety, I prefer it as being calculated to present the subject to the reader in one uninterrupted view. With the same design, I have comprehended in this chapter several topics connected with the main subject, which, in accordance with strict analysis, ought to be distributed under various divisions of the work. The subject may be treated, 1st, With reference to hereditaments lying within the ordering and survey of the Exchequer in England or Wales, in Ireland, and in the Islands of Man and Alderney. 2ndly, With reference to hereditaments in Scotland. 3rdly, With reference to hereditaments within the ordering (s) These leases were formerly pre- annual value of the estates an annuity pared by the Clerk of the Pipe, at au equal to the expense thus incurred, average expense, where lands were See 4th Report of the commissioners demised, of about 601. each ; and of of woods, forests, and land revenues, about 50/. each where houses were let. p. 18. (1823). The charges which had This expense, accordhig to the then been reduced, ui 1 820", to nearly one- system of management was borne en- fourth of theu- former amount, are now tii'ely by the crown; for, although the defrayed by the lessees. See 5th Re- passing of the leases through the dif- port of the commissioners, p. 10.(1 1!2()). ferent offices, was nominally paid for A table of the sums payable by the by the lessees, it was in fact a charge lessees for their proportion of the ex- upon the crown, the practice being, in penses attouduig the demise will be setting the rents, to deduct from the found in the Appendix to this Work. 186 OF THE CONTRACTING PARTIES. [Part III. and survey of the chancellor and council of the duchy of Lancaster. 4thly, With reference to hereditaments parcel of the duchy of Cornwall. Sthly, With reference to hereditaments purchased by, or descended, or devised, to the crown. 6thly, With reference to hereditaments forfeited or es- cheated to the crown, or taken by the crown by reason of their having been purchased by, or to the use of, or in trust for an ahen. And, 7thly, may be added some remarks relative to other requisites and matters of form connected with crown leases. I consider it unnecessary to take notice of such acts as have been passed for the leasing of particular pieces of ground, such as the site of Carlton Palace (/) and the like. 1st, With reference to hereditaments lying within the ordering and survey of the Exchequer in England ; heredita- ments in Ireland ; and in the Islands of Man and Alderney. By the 10 Geo. 4. c. 50 (w), which is the principal statute now bearing on the subject, several acts of parhament are repealed in express terms {cv). The second section repeals all other acts theretofore passed relative to his Majesty^s woods, forests, parks, chases, and to the land revenue of the crown in England and in Ireland, or either of them, so far as the same are inconsistent with, or repugnant to, the powers and provisions of 10 Geo. 4. The repeal, however, of these acts did not revive any act thereby repealed, nor annul nor prejudice any lease or thing made or done by virtue of any such act {y) ; and it was pro^ddcd {z), that in case any contract (<) 7 Geo. 4. c. 77. i) Geo. 4. c. 70. 46 Geo. 3. c. 151. 48 Geo. 3. c. 73. (m) 10 Geo. 4. c. 50. 50 Geo. 3. e. 65. 52 Geo. 3. c. 161. (x) The following acts connected 54 Geo. 3. c. 70. 56 Geo. 3. c. Ki. with the subject wore repealed, except 1 Geo. 4. c. 71. 1 & 2 Geo. 4. c. 52. HO far as they related to h(;reditanients 7 & 8 Geo. 4. c. 66. 7 & 8 Geo. 4. within thJ. IG. (r) HI (ico. 4. c. .W. s. ft. 2 W. J. (e) Sec Cooinbi-s v. Dutton, .5 Mces. I. ». 1. \ Wcl. Wi); and post, p. Ii)8. (./) 2 W. 4. c. 1. S3. 2. :i. 10 duo. I. Cil. I. S. IV.] WHO lessors: THE CROWN, AND ITS OFFICERS. 1 89 any three of tliem, unless express provision to the contrary be made by such future act (/) . The powers of leasing conferred on the commissioners of woods and forests, &c., are defined by 10 Geo. 4. c. 50. Other incidental matters are directed by the statute of Wil- liam the 4th. Previously to making, or entering into any agreement for making, any lease, a survey of the premises proposed to be leased, and an estimate of the value thereof, must be taken and made by a surveyor or surveyors to be appointed by the commissioners : and the surveyor or surveyors must certify by a report in writing under hand, and verified by oath, the true value of the premises surveyed [g) ; except in cases where from the nature of the premises^ or from any cu'cumstances relative thereto, the value cannot be known or ascertained by means of a survey ; or where the value of the premises shall be previously known to be so inconsiderable that it shall not be deemed expedient to incur the expense of a survey; or where such premises, being in Ireland, shall have been previously surveyed and valued under the direction of any commissioners appointed by the Lord Lieutenant of Ireland to inquire into the state of the crown lands in Ireland, at any time since the year 1830, and a report of such sm'vey and valuation shall have been made on oath, and shall pre- viously to such lease or agreement being made, have been deposited in the office of the commissioners of woods and forests, &c.; in any of which cases the commissioners may make such lease or agreement, without a survey or estimate [K). The authority of the lord high treasurer, or the commis- sioners of the treasury, for the time being, to be signified by some warrant under hand, must also be obtained, before a valid lease can be granted. And such authority may be given either generally for any particular class of cases, or for any particular lease, and either without any condition or (/) 10 Geo. 4. c. 50. s. 16. 2 W. 4. (,7) 10 Geo. 4. c. 50. s. 61. c. 1. s. 10. (k) 10 Geo. 4. c. 50. s. 62. 190 OF THE CONTRACTING PARTIES. [Tart HI. restriction, as to the lord high treasurer or commissioners of the treasury may seem meet (i) . The term allowed to be granted depends upon the object of the lease, or the nature of the property demised. Generally speaking, the commissioners of the woods, &c., may lease, or enter into any contract for leasing, the premises to any person, or body politic, corporate, or collegiate, for any term not exceeding thirty-one years from the time of making the lease or agreement for a lease (k). But where the premises are tenements or hereditaments, the greater part of the yearly value of which shall at the time of making the lease or agreement consist of any building or buildings; or where the premises are land proper for the erection of any houses or other buildings, with or without gardens, yards, curtilages, or other appurtenances, to be used therewith, and where the lessee or intended lessee shall covenant or agree to erect a building or buildings thereon of greater yearly value than such land; or where the premises are land proper for gardens, yards, curtilages, or other appurtenances to be used with any other house or other building erected or to be erected on any ground belonging either to the crown (/), or to any other proprietor, or proper for any other purpose calculated to afford convenience or accommodation to the occupiers of any such house or building; in these cases, the commissioners are authorised to make any lease, or agreement for a lease, for any term not exceeding ninety -nine years, from the time of making such lease or agreement (/»). It is pro\ided {n), however, that no land proper for gardens, yards, curtilages, or other appurtenances, to be used with any house or other building (greeted or to be erected on any ground belonging to llie crown, or proper for any other purpose calculated to afford convenience or accommodation to the occupier or occupiers of any such house or building, shall, under the (i) Sect. GO. words "The Crown" will, with fow (/■:) .Sect. 22. exceptions, be hereafter used. (/) The words of the act are, "His (m) 10 Geo. 4. c. .50. s. 2.".. Majf!Rty, his heirs or successors," in (n) Sect. 24. lieu of which, for brevity's sake, tlic> I Ch. I. S. IV.] WHO lessors: THE CROWN, AND ITS OFFICERS. 191 pro\4sions of the act (10 Geo. 4. c. 50) authorising the same to be demised for any term not exceeding ninety-nine years, be demised, or agreed to be demised, for any term which shall extend beyond the duration of the subsisting lease or leases of the house or building to which the same shall be intended to be attached. It is also provided (o), that these powers of leasing shall not extend to the demising or leasing of any of the royal forests, parks, or chases, in England, or any part or parcel thereof. Many purprestures, encroachments, and trespasses, having been made upon the soil of the crown within the boundaries of some of the royal forests Avithout any effectual interruption, it was considered that in some cases it would be expedient to permit the persons to continue in possession, and in others to make compensations for the surrender of such possessions, and it was therefore enacted (^j), that in all cases of purpres- tures or encroachments in any of the royal forests, which purprestures or encroachments shall appear to have been inclosed, or used, and occupied, by the person then in pos- session thereof, or by any person under whom the same are claimed to be held, without any effectual interruption by or on the part of the crown for any period not less than ten years, it shall be lawful for the commissioners to make com- pensation in money, in consideration of the removal of any such encroachment, or to grant to the person in possession a lease for any term not exceeding three lives or thirty-one years either of such encroachments or pui'presture, or any other part or parts of the forest in lieu thereof; provided that there shall be reserved in every such lease, such annual rent to be paid to the crown as under all the cii'cumstances of the case shall by the commissioners be deemed reasonable and proper. (o) Sect. 25. See ss. 96 and 97, no- commissioners to eonfinn the title to, ticed post. and to gi*ant leases of, encroachments (p) 10 Geo. 4. c. 50. s. 96. See also in the forest of Dean, in the county of 1 & 2 Vict. c. 42, which empowers the Gloucester. 192 OF THE CONTRACTING PAKTIES. [Part HI. The commissioners are also authorised {:3 except under circumstances to be noticed shortly {x). And, in estimating the amount of rent to be reserved, the commis- sioners may take into consideration the surrender of any existing lease of the property comprised in the lease to be granted, or of any part thereof; and the acceptance of any such surrender shall not be considered as the taking of a fine within the meaning of the last clause {y). In leases of any land or ground, tenements, or heredi- taments, where, at the time of granting such leases, (or, if such leases shall be granted in pursuance of a previous agreement, at the time when such agreement shall have been made,) there shall not be any substantial buildings upon the land to be demised, and the lessees shall agree to erect on such land any buildings of greater yearly value than the land demised, or agreed to be demised, it shall be lawful to reserve, during any period not exceeding the first three years of the term, a nominal rent, or such other rent only as to the commissioners shall seem fit {z). And in leases to be granted for any term not exceeding ninety-nine years, under the power in that behalf given, of any land or grovind, tenements, or hereditaments, where, at the time of granting such lease, (or, if such lease shall be granted in pursuance of a previous agreement, at the time when such agreement shall have been made,) there shall be any substantial buildings upon the land to be demised, and the buildings thereupon shall not require, or shall not be intended or agreed to be rebuilt, it shall be lawful for the commissioners to take a fine on the granting of such leases, provided that such fine be not taken in lieu of any further part than one third of such annual sum as shall appear to them would have been a rea- sonable rent or consideration for such leases in case no fine had been taken, the remainder of such annual sum being reserved by way of rent ; and the amount of the fine to be so taken shall not be less than the sum to which (.r) Infra, in this page. (y) 10 Geo. 4. c. 50. s. 29. (2) Sect. 30. VOL. I. O 194- OF THE CONTRACTING PARTIES. [Part HI. the portion of the annual sum in lieu of which it shall be taken would have amounted dm'ing the term to be granted, deducting a discount, to be computed by way of compound interest, at no higher rate than the highest legal rate of interest in England, if the property to be demised shall be in England or Wales, or than the highest legal rate of interest in Ireland, if the property to be demised shall be in Ireland («). If the lease be of mines, collieries, or quarries, the com- missioners may reserve either an annual rent in money, or any annual rent in money and such share of the produce in kind, or such rent or duty upon the quantity or value of such produce, as they shaU think proper (b) . Leases of [tlie profits of prse and post fines arising within the principahty of Wales and county palatine of Chester (c),] the profits of tolls, markets, and fairs, tithes, fisheries, ferries, and other articles of uncertain produce, may be granted at such rent only, or at such rent and for such fine, as to the commissioners shall seem proper [d) . The amount of rent in leases of encroachments on the royal forests, and of part of the royal forests for railways, tramroads, &c., rests, as we have seen (e), in the discretion of the commissioners. All rents must be reserved and made payable to her Majesty, her heirs and successors, clear of all taxes and assessments (/). Every lease must contain a proviso or condition for re- entry on non-payment of the rent, or non-performance of the lessee's covenants {(/) . The lessee must execute a counterpart (h) . And there must be no exemption of the lessee from punishment for waste, except in leases of mines, minerals, quarries, or collieries, and in leases to be made under the («) Sect. .31. (c) Ante, p. 191-2, ss. .Ofi. .07. {h) Sect. .33. (/) Sect. 27. (c) The profits within the brackets (f/) Sect. 27. wore al)(.liHh('(l ],y .3 & 4 W. 4. c. 74. {/i) Ibid. ('/) Sect. .32. Cii. 1. s. IV.] WHO lessors: — the crown, and its officers. 195 power given by the act of leasing for a term not exceeding ninety-nine years {i), in which case the lessee may be made dispunishable for waste, if the commissioners shall think proper {k) . The receivers under the act, whom the commissioners are authorised to appoint (/), are empowered, by themselves or deputies^ to distrain for rent in arrear from any lessee, occupier, or tenant, of premises which shall be in the collec- tion, receipt, or management, of such receivers respectively ; and the goods distrained to impound, sell, and dispose of: But every receiver is required, in making or causing to be made any such distress, and in relation to any question of law or otherwise which may arise thereupon, to conform to all such orders and regulations as shall be given him in that behalf by the commissioners (m). If any lessee, occupier, or tenant, of premises of which the annual rent shall exceed 50/., shall be in arrear for, or hold in his custody, any rent or mesne profits, or other produce, due or belonging to the crown, arising from any part of the crown possessions or land revenues, for the space of three calendar months after he shall have been applied to, either personally or by letter from the receiver, without papng over the same to such receiver, the defaulter shall be charged with interest for such arreai*, to be calculated after the rate of 5/. for every 100/. by the year, upon the sum in arrear, from the time at which the same became due, up to the day on which the same shall be actually paid; and such interest shall be added to the rent or mesne profits or other profits or produce so in arrear, and shall be recovered and received by the same ways and means as rents are by the act made recoverable, together with all costs and expenses to be sus- tained in the recovery thereof {n) . But power is given to the commissioners, where they shall think it expedient, but with the consent of the lord high (i) See ante, p. ],00. (m) Sect. !)n. (I) 10 Geo. 4. c. 50. s. 27. (w) Sect. !)1. (/) Sect. 12. o 2 190 OF THE CONTRACTING PARTIES. [Part HI. treasurer, or the commissioners of the treasury, to make any composition or agreement with any person for any arrears of rent; and, after payment of any sum agreed upon, the crown will be barred from suing for, or in any manner recovering, any such arrears so compounded for (o). A particular form of a lease of railways, or of encroach- ments in the royal forests, is prescribed by the act ; though the commissioners are authorised to adopt any other which they may deem more expedient. The form proA^ded by the act will be found in the Appendix to this work. It was also declared, that leases, and contracts for leases, and countei-parts, made or entered into by the commis- sioners under the authority of the act, should be exempt from the biu'then of any ad valorem or other stamp duty whatsoever, under any then present or future act, unless the same should be specially subjected thereto by such future act {p). Every lease of premises in England or Wales must, M'ithin six months (signifjdng lunar months) after date, be enrolled at the lessee's expense, in '' The office of land revenue records and enrolments" ((/), in the order of time in which each deed shall be brought into the office for that purpose, and the keeper of the records and enrolments must certifj^, or cause to be certified, under his hand, or the hand of his deputy or assistant for the time being, upon the instrument, when enrolled, the fact of its having been so enrolled (r) : And a minute or docket of every such lease must be entered and preserved by the commissioners of the woods and forests, &c., in their office {s). Should the enrolment of any deed or other instrument, or minute or docket, before the keeper of the records and enrol- ments, or the entry of any deed or other instrument iu the office of the commissioners, l)e omitted or delayed beyond (o) Sect. f),3. (?•) 10 Geo. 4. c. TjO. s. ()4. 2 W. 4. ( p) Sect. 77. c. ] . 8. 2.3. ('/) 10 Geo. 4. c. .50. s. G3. 2 W. 4. (s) 10 Geo. 4. c. 50. s. C3. 2 W. 4. c. I. .SH. Ki. 1.5. 21. 22. This office is c. 1. s. 22. situate in Spring Gai'dciis. Cu. 1. s. IV. J WHO lessors: — the ckown, and its oei'iceus. 197 the period provided, the commissioucrs are authorised, for any reasonable cause to them shown for tlie omission or delay, to permit such enrolment or entry nunc pro tunc, which, when made under such authorit}^, will be as valid as if made within the period limited for that purpose (/) , Where any deed or other instrument which shall appear to have been made or executed under the authority of any act passed relating to the possessions and land revenues of the crown shall have written thereon a memorandum of its having been enrolled in the office of records and enrolments, and such memorandum shall purport to be signed by the keeper of the records and enrolments, or by any person acting as his deputy or assistant, such memorandum shall, iu the absence of evidence to the contrary, be sufficient proof of the deed or other instrument having been duly made, or executed, and of its having been duly enrolled, and of the provisions of the act having been duly complied with ; and such memorandum shall be receivable in evidence without proof of the handwriting of the signature thereto {u). The enrolment of any deed or instrument pursuant to the provisions of the act of 2 W. 4. c. 1, has the same effect as enrolment pursuant to 10 Geo. 4. c. 50 [x). If the premises lie in Ireland, the commissioners must cause duplicates of all leases to Ije transmitted to the office of record in Ireland in which the original rentals or rent rolls of the crown rents shall be preserved ; and every such duplicate shall be there preserved, and remain of record among the other records and muniments preserved in the office {y). And not only shall the original lease by which any hereditaments in Ireland shall be demised under the act, but also such duplicate, or a copy of sucli duplicate, attested by the officer for the time being in whose custody the same shall remain, (and which copies the officer is to (t) 10 Geo. 4. c. 50. s. 68. 2 W. 4. c. 113, Au act to facilitate the admis- c. 1. s. 27. sjon in evidence of certain official and (it) 10 Geo. 4. c. 50. s. 67. 2 W. 4. other documents, c. 1. s. 26. And see Kinncrsley v. {ic) 2 W. 4. e. 1. s. 28. Orpc, 1 Doiigl. 56; and 8 & 9 Vict. (//) 10 (Jeo. 4. c. 50. s. 70. ]98 or THE CONTRACTING PARTIES. [Part 111. grant to any person applying for the same, on payment of a fee of 1*. for every such copy, and if the same shall consist of more than seventy-two words then a further fee of 1*. for every seventy-two w^ords over the first seventy -two words,) shall be admitted in all courts of law and equity as evidence of the title of the lessees, and all persons claiming under them, to the hereditaments to Avhich such leases shall respect- ively relate (.sr). The commissioners are also empowered («) to give any notice, make any claim or demand, and to depute any person to make any entry, which shall be requisite or expedient, v,ith a \iew either to comj^el any tenant, lessee, or occupier, of the premises, to quit or deliver up the possession thereof, or to compel the performance of any covenant, contract, or engagement, in relation thereto, or to recover possession on non-performance of any covenant, contract, or agreement, or to compel the payment of any sum of money which ought to be paid in respect thereof, and to give any other notice, make any other claim or demand, and depute any person to make any other entry, which may be requisite or expedient, touching any of the said possessions or land revenues ; and every such notice, claim, or demand, given or made in w riting under the hands of the commissioners, or any two of them, for such purposes, and every entry which shall be made by any person or persons so deputed upon any of the said estates or possessions, will be effectual to all intents, and will have the like force as if respectively given or made by the crown ; and all such notices, claims, demands, or entries, are respectively to be taken to have been given and made by or on behalf of the crown. With reference to this section it has lately been decided {d), tliat wlierc a lease, dated 18th October, 1825, granted by the commissioners of the woods and forests, contained a clause that if the commissioners for the time being should be desirous of (l(;t(;rniiiiiiig tlie demise, and should give the lessee one (::) 10 ) Couuibes /,'. Duttoii, 5 Mccs. & («) Sect. 92. W.l Miil. I I Cu. I. S. IV.] WHO LESSORS: THE CROWN, AND ITS OFFICERS. 199 calendtir month^s notice in writing, under their liand.s, the demise should cease, a notice given by two of the commis- sioners for the time being was sufficient. Provision is made by the act as well for the indemnity of the lessees, as of the commissioners. With regard to the former, it is declared (c), that no person, or body politic, corporate, or collegiate, claiming under any deed or instrument by which any lease shall be made, or pm-port to be made, by the commissioners, and shall be duly enrolled, shall be bound to inquire whether the commissioners were duly authorised by the lord high treasurer, or the commissioners of the treasury, to make the same; or whether a survey shall have been made ; or whether, in cases of leases in Ireland, a duplicate of the instrument shall have been duly transmitted to Ireland ; or whether the provisions of the act in other respects shall have been complied with ; or whether such lease shall in fact have been authorised by the act, or within its provisions ; but that every instrument by which any lease shall purport to be made under the authority of the act shall, after due enrol- ment, be effectual as against the crown for the purposes for which the same shall have been executed. And to prevent any question as to the liability of persons paying money under the act, it is enacted {d), that no person, body pohtic, corporate, or collegiate, paying any money under the authority of the act, shall be bound to see to its apphcation, or be answerable for its misapplication or non- application. As to the commissioners, it is provided (e), that nothing contained in the act, or to be contained in any contract, lease, or instrument, thereby authorised, shall extend to charge the person of any of the commissioners executing any such contract, lease, or other instrument, or his heirs, executors, or administrators, or his lands, tenements, goods, or chattels, with or for the performance of any of the covenants, conditions, or agreements, therein contained ; but (c) 10 Geo. 1. c. 50. s. 73. {. s. 4. now abolished, 3 &1 W. I.e. 27.8. 3(i; (/•) 10 Geo. 4. c. "jO. s. I'M). the post fines, now also al)olishcd ; Cii. I. s. iv^] WHO LESSORS: — the crown, and its officers. 203 and county palatine of Lancaster, or either of them ; but that all and singular the said several powers and provisions, so far as the same related to or concerned the said duchy and county palatine, should remain in full force; and that the said manors, messuages, &c., of and belonging to the said duchy should continue to be granted and demised by the crown, for the like terms, estates, and interests, and the rents and revenues thereof to be received and applied under the order and direction of the chancellor and council and other officers of the duchy, to the like purposes, and in like manner, as before the passing of the act. Leases of lands parcel of this duchy will form the 3rd division of our inquiry. So the crown is empowered {s), out of the possessions and land revenues of the crown to which the act relates, to grant to any body or bodies politic or corporate, or any person or persons whomsoever, and their heirs and successors (/) re- spectively, for such estate or interest therein as to the crown shall seem meet, any building proper to be used as, or con- verted into, or any ground proper for the site of, any church or chapel, with or without a cemetery or burial ground thereto, or any ground proper for a cemetery or burial-ground to any church or chapel, and any house with its appui'tenances, and with or without a garden thereto, proper for the residence of the spiritual person who may serve such church or chapel, or any ground proper for the site or sites of any such residence, or of any parochial or district school : and such body or bodies politic or corporate, or any person or persons, and their heirs, successors, executors, or administrators (w), have full capacity to hold the same. And whenever it shall please the crown to make such grant, the lord high treasurer, or the commissioners of the treasury, are to issue a Avarrant under hand to any such body, &c., which warrant shall be exempt from stamp duty, and shall, if the same shall relate to (s) 10 Geo. 4. c. 50. s. 45, which ministrators " appear to have boon ropcalod 7 & 8 Geo. 4. c. ()6. omitted by accident. (0 Tlie words "executors and nd- («) See note (/), sup. 204 OF THE CONTRACTING PARTIES. [Part 111. England and Wales, be enrolled as before mentioned (.r); and, if the same stall relate to a grant in Ireland, shall be enrolled in tlie office of record in Ireland in which the rentals or rent rolls of the Qneen's rents shall be preserved ; and the enrol- ment of the warrant shall be certified at the foot or on the back thereof by the proper officer under hand ; and the warrant when so enrolled shall be returned with such certifi- cate of enrolment to the grantee of the premises ; and after such enrolment the grantee or grantees named in such war- rant, and his or their heirs, successors, executors, or adminis- trators (i/), shall be adjudged to be in the actual seisin or possession of the premises specified in the warrant, and shall enjoy the same, either absolutely and in perpetuity, or for such limited estate, term, or interest, and under and subject to such reservations of rent, or other acknowledgments, condi- tions, or restrictions, and upon such trusts, and for such purposes, as shall be specified in such warrant. But it is pro- vided that nothing in the act contained shall extend to enable the crown to grant more than five acres in any one grant for any of the purposes aforesaid, or to grant any premises in any one instance which shall exceed in value the sum of 1,000/. By a recent act (~), the Bolls estates are vested in the Queen as part of the possessions and land revenues of the crown, and are placed \vithin the ordering and survey of the court of Exchequer in England, and made subject to the provisoes, powers, and authorities, contained in the acts 10 Geo. 1', c. 50, and 2 W. 4. c. 1, and to all such other pro- visions, powers, and authorities, in every respect as the other possessions and land revenues of the crown within the ordering and survey of the said court of Exchequer are subject to. 2. With reference to hereditaments in Scotland. Ill a late session of parliament an act (a) was passed, which (r) Tlic mode of ciu'olment iiro- (//) Sec ante, p. 20.'>. n. (0- Bcribufl by H) Geo. i. c. .'iO, was ul- (:) 1 Vict. c. 16. s. 2. As to leases t^Tcd, a.s wc liave «een, by 2 W. 1. c. 1 . by tlic Master of the Rolls, see post. See ante, ]>. \<.)(',. („) 2 & :j W. 4. c. 112. Cii. 1. S. IV.] WHO LESSORS: —THE CROWN% AND ITS OFFICERS. 205 authorised the placing of tlie hereditary hmd revenues of the crown in Scotland under the management of the commis- sioners of the land revenues of the crown in England and Ireland. And it was pro^dded, that it should be lawful for the lord high treasurer, or the commissioners of the treasury of the United Kingdom of Great Britain and Ireland, for the time being, or any three or more of them, by warrant under hand, to order and direct, that, from and after the time to be mentioned in such warrant, all the revenues, debts, duties, and profits, appertaining, or which thereafter should apper- tain, to the crown, within Scotland, and all honors, castles, manors, lands, tenements, and hereditaments, in Scotland, which then did or thereafter should appertain to the croM n by wtue of any attainder, outlawry, seizure for any crime, or cause of forfeiture, debt or duty, or upon any extent, com- mission, or otherwise, or by ^drtue of the royal prerogative, or by any other right or title whatsoever ; and all the rents, issues, and profits thereof, or any of them ; and also all and every the goods, chattels, debts, credits, rights, titles, and personal estates, within Scotland anyways accruing or belong- ing, or Avhich thereafter should belong, to the crown by force or virtue of the royal prerogative, or of any attainder, extent, inquisition, debt, duty, or forfeitui'e, or by any other right, title, ways, or means whatsoever, and all the remedies and means for recovering the same, or the possession thereof, and all accounts relating thereto, [and also all and every for- feitures and penalties which had been incurred, or should or might incui', or become anyways due and payable, in Scot- land, by force or vii-tue of any penal or other laws or statutes whatsoever (5) ;] and also all fines, issues, forfeitui-es, or penalties, of what natm'e or kind soever, happening, arising, or accruing, to the crown within Scotland, save and except such as were then under the management of the commis- sioners of his Majesty ^s customs and excise respectively, should be under the management of the commissioners for (6) The part within brackets was siUjspquently repealed by 3 & 4 VV. 4. c. 69. s. 1. 206 OF THE CONTRACTING PARTIES. [Part III. the time being of liis Majesty's woods, forests, land revenues, works, and buildings, in England and Ireland, and then- suc- cessors, acting under or by virtue of tlie acts, 10 Geo. 4. c. 50, and 2 W. 4, c. 1; and that from the time to be mentioned in such warrant the duties theretofore performed, and the powers theretofore exerciseable, by the barons of the court of Exche- quer in Scotland, about the management of such heredita- ments and revenues respectively, should be performed by the commissioners of the woods and forests, &c., and their suc- cessors; and that all acts, deeds, bonds, contracts, agree- ments, and other instruments, relating to such hereditaments and revenues respectively, in which the said barons in Scot- land were named, should apply to the commissioners for the time being of woods and forests, &c., as if such commissioners had been originally named in and made parties to such acts, deeds, bonds, contracts, agreements, and other instruments, instead of the barons of the Exchequer. This act being found insufficient for the purposes for which it was made, recourse was again had to the legislature, who in the next session of parliament passed another act (c) to enlarge and extend the powers of the commissioners in relation to the management and disposition of the land revenue of the crown in Scotland. By this statute it was provided (f/), that the commissioners should have and exer- cise all the powers and authorities whatsoever, with regard to his Majesty's land revenue, lands, teinds, feu retour, and other duties and casualties in Scotland under their manage- ment and control, as were contained in the Act of 10 Geo. 4. c. 50, M'ith respect to his Majesty's land revenue in England; and (e) that all the provisions in that act contained, either expressly or by reference to other acts, relating to the selling, leasing, exchanging, and general administration, of the pos- sessions and land revenues of the crown in England, and all other the powers, provisions, and authorities, in that act given to the commissioners, should, so far as the same were appli- (r) .1 & 4 W. 'J. c. G.O. (./) Sect. 2. (-) Sect. 3. Cn. I. S. TV.] WHO LESSORS: THE CROWN, AND ITS OFFICERS. 207 cable, extend to the act now under notice, except that in all cases in which the sanction of the court of Exchequer in England was by 10 Geo. 4, made necessary, the sanction and authority of the court of Session in Scotland should be suffi- cient with respect to the possessions and land revenues of the crown in Scotland. And, in Heu of the enrolment directed by 10 Geo. 4, the commissioners are to cause duplicates of aU leases granted by them by the authority of the act under notice, of any lands or other heritable property or subjects of the crown in Scotland, to be transmitted to the office of Chancery of Scotland, there to be recorded or registered, and to be there preserved and recorded among the other records and muni- ments relating to the lands or other property or subjects of the crown preserved in such office ; and a minute or docket of every such lease is to be entered and preserved by the commissioners in their office (/). The 8th section provides, that not only the original deed or other document, but also the duplicate thereof, to be so transmitted, or a copy or extract of such duplicate, attested by the officer for the time being in whose custody the same shall remain, (and which copies the officer is required to grant on payment of a fee in the act mentioned,) shall be admitted in all courts as evidence of the right and title of the lessees and all persons claiming under them. And by the 20 th section it is enacted, that aU the powers and pro\dsions in the act contained shall extend to the lands, revenues, and other property and subjects of the Prince and Steward of Scotland. Doubts having arisen as to the powers of the commissioners of the treasury in relation to the recovery, management, superintendence, and disposition of the interests of the crown, as ultimus hc&res, and in cases of bastardy, in Scotland, it was enacted {g), that all powers for the ascer- taining and recovering, and for the management, superin- (/) Sect. 7. ((/) 5 & G W. 4. c. 58. s. 1. 208 OF THE CONTRACTING PARTIES. [1'aiuIII. tendence, and care, of all rights and interests of the crown, in Scotland, as ultimus heeres, or in cases of bastardy, or by- reason of any forfeiture whatsoever, should be vested in the lord high treasm'cr, or the commissioners of the treasury, or any thi'ee or more of them, for the time being, in the same manner, and to the same extent, as such poAvers were vested in the lord high treasurer, or the commissioners of the treasury, for the time being, prior to the passing of any of the acts, 6 Geo. 4. c. 17 ; 10 Geo. 4. c. 50 ; 2 W. 4. c. 1 ; 3 & 3 W. 4. c. 112; and 3 & 4 W. 4. c. 69 {h). The second section declares that all the former acts of the commissioners of the treasury in relation to such rights and interests in Scotland shall be valid. By the third, a power is conferred on the crown, out of the possessions and land revenues of the crown in Scotland, to grant any building or land for churches, &c,, similar to that conferred by 10 Geo. 4. c. 50. s. 45 (i) ; such grants to be carried into effect by charters and other instruments, according to the law and practice of Scotland, and not otherwise ; and a minute or docket of every such grant or warrant is to be entered and preserved by the commissioners of woods and forests, &c., in their office [k) ; and in every report to be made by them to the crown and ParHament concerning the land revenue of the crown, they are to certify every grant made by \ii'tue of the act since their last preceding report, and to whom and for what purpose the same shall have been made, and what land shall be comprised therein, and aU other particulars relating thereto (/) . 3. With reference to hereditaments within the ordering and survey of the chancellor and council of the duchy of Lancaster. Hereditaments belonging to the crown in right of the (A) All these acts are noticed sup., Lancaster on forfeiture, &c. except G 000.4. c. 17, which is re- (/) Sec ante, p. 203. fon-c(l to i)ost, p. 22.",, relalinjr to llie (/) Sect. 4. diHjioHition of leaneliold jn-eniises taken (/) Sect. 5. liy llic crown in ri^rJit o|' tlie (hicliv of Ch. I. s.iv.] "WHO lessors: — tup; crown, and its officers. 200 duchy of Lancaster, though excepted from 10 Geo. 4. c. 50 (m), and unaffected by 2 W. 4. c, 1, and the other acts noticed in the preceding divisions, are still subject, as to their demisable properties, to various statutory restrictions. The act of Queen Anne («) yet affects them partially. By the fifth section it was enacted, that all and every lease or other assurance by her Majesty, her heirs or successors, under the seal of the duchy and county palatine of Lancaster, of any manors, messuages, lands, tenements, rents, tithes, woods, or other hereditaments, (advowsons of churches and vicarages only excepted,) belonging or to belong to, or in trust for, her Majesty, her heirs or successors, in possession, reversion, remainder, use, or expectancy, in right of the duchy or county palatine of Lancaster, should be void (o), unless the same should be for some term not exceeding one-and-thirty years or three lives, or for some term of years determinable upon one, two, or three lives ; and unless such lease or assur- ance respectively should be made to commence from the date or making thereof; and if such lease or assurance should be made to take effect in reversion or expectancy, that then the same together with the estate or estates in possession in the premises should not exceed three lives, or the term of thirty-one years in the whole; and unless such lease or assurance should be so made that the tenant should be liable to punishment for waste ; and unless there should be reserved the ancient or most usual rent, or more, or such rent as had been reserved, yielded, and paid, for the premises therein contained, for the greater part of twenty years before the making thereof; and where no such rent should have been reserved or payable, that then upon every such lease or assurance there should be reserved a reasonable rent, not being under the third part of the clear yearly value of the premises comprised in such lease ; and unless such respective rents should be made payable to her Majesty, her heirs or (wi) Sect. loO. facias, or other proceeding, to deter- (w) 1 Aune, stat. 1. c. 7. b. 5. mine or make void the same. Sect. 7. (o) Without any inquisition, scire VOL. I. P 210 OF THE CONTRACTING PARTIES. [i^ART III. successors, wlio should make such lease, and to her or their heii's or successors, dui'hig the Tvhole term or time of the continuance thereof. But this clause has undergone considerable modification, and must be considered as applicable to such leases only as are not provided for by the statutes to which we now direct our attention. By the statute 48 Geo. 3. c. 73, it was enacted (/*), that where any land or ground belonging, or thei'eafter to belong, to the crown {q) within the ordering and survey of the duchy of Lancaster, should be deemed by the chancellor of the duchy of Lancaster for the time being fit and proper for gardens, yards, curtilages, and other appurtenances, to be used and enjoyed with any house or houses or buildings erected or to be erected upon ground belonging either to the crown, or to any other proprietors, it should be lawful for the crown to demise or grant such land or ground to any person or persons, or to any bodies politic or corporate, under the seal of the duchy and county palatine of Lan- caster, for any term or estate not exceeding ninety-nine years, to be computed from the date or making of any such lease or grant respectively; or if any such lease or grant should be made to take effect in reversion or expectancy, then that the term and estate thereby to be granted, together with the term or estate, terms or estates, in possession, of and in the same lands and ground, should not exceed ninety-nine years, computed from the date or making thereof. But it was provided (/•), that no land or ground for garden, yard, curtilage, or other appurtenance, to be used and enjoyed with any houses or buildings holden or to be holden under any lease from the crown, should be demised for any term or estate exceeding in duration the term or estate for which the houses or buildings to which such land or groimd should be 80 attached as garden, yard, curtilage, or other .appur- tenance, should be lioldcn. ( /') 48 Goo. 'A. c. 73. s. 1 . (7) The words arc " His majesty liis heirs or succesaors." (/•) Hei-t. 'J. Ch. 1. s. IV.] WHO lessors: THE CKOWX, AND ITS OTl ICEKS. 211 The first section of this act (48 Geo. 3. c. 73) was enlarged by the 3rd section of 52 Geo. 3. c. 161 {s), which, after noticing the expediency of extending it to ground calculated to afibrd accommodation or convenience to the inhabitants of any house or building, although the same ground might not be demised Avith, or attached to, any such house or building, or let as a garden, yard, or curtilage thereto, enacted, that where any land belonging, or thereafter to belong, to the crown within the ordering or survey of the chancellor and council of the duchy of Lancaster should be deemed by the chancellor of the duchy of Lancaster for the time being proper to be let and used for, or appropriated to, any purpose calculated to afford convenience or accommodation to the occupiers or inhabitants of any house or houses erected or to be erected upon ground belonging either to the crown, or to any other proprietor or proprietors, it should be lawful for the croAvn to demise such laud to auy person or persons, or to any body or bodies politic or corporate, under tbe seal of the duchy and county palatine of Lancaster, for any term or estate not exceeding ninety-nine years, to be computed from the date or making thereof, ■oath all such powers, privi- leges, and authorities, as might be thought fit and requisite for the effecting or promoting the object and intent of such demise; so as there should be reserved upon every such demise such annual rent or rents as should be deemed by the chancellor of the duchy of Lancaster for the time being a reasonable consideration for every such demise, and without taking any fine for the same. Another section of the act, 48 Geo. 3. c. 73, provided (/), that where any new edifice or building should be erected, or agreed to be erected, on ground belonging to the crown, or held under any lease from the crown, for the enlargement of, and to be united to, and occupied with, any house or other building held under any other lease from the crown, it should be lawful to grant a new lease for any term not (s) 52 Geo. 3. c. 161. s. .'5. (/) 48 Geo. .3. c. 73. s. 20. p 2 212 OF THE CONTRACTING PARTIES. [Part III. exceeding ninety-nine years, as well of the ground on which such new edifice or building should be erected, or agreed to be erected, as of all or any part of any other tenements or hereditaments contained in such leases; provided that the greater part of the yearly value of the tenements and heredi- taments so to be granted should consist of the buildings thereon, or of ground set apart and appropriated for building, or for necessary gardens, yards, curtilages, or other appur- tenances, as in the act is mentioned. It is observable that 52 Geo. 3. c. 161, does not contain any pro\ision corresponding with this, nor any words which can tend to its repeal. The sixth section of the statute of Anne, which authorised leases for fifty years, or three lives, for the purpose of repairing or re-edifH'ing buildings, was in effect repealed by 52 Geo. 3. c. 161 {u) ; and many important provisions were then substi- tuted. By this statute, enlarging the provisions of 48 Geo. 3. c. 73, it was enacted (x), that when any land belonging to the crown within the ordering and survey of the chancellor and council of the duchy of Lancaster, fit for the erection of houses or other buildings thereupon, or for the necessary yards, curtilages, and other appurtenances, to be used and enjoyed therewith, and {y) should be by their order directed to be appropriated to that use, or where the lessee should agree and covenant to erect buildings thereon of greater yearly value than the land to be leased; or Avhere the greatest part of the yearly value of any tenements or here- ditaments belonging to the crown should at the time of making any lease thereof consist of any building or buildings thereupon ; in such cases it should be lawful for the crown to demise tlie land so directed to be set apart, or the tene- ments or hereditaments of the description last aforesaid, to any person, or to any body politic or corporate, under the seal or seals of the duchy and county palatine of Lancaster, for any term or estate, so as such term or estate should not («) .52 Goo. ."1. c. Uil. of the word and, wliich is in the (.c) Sect. 1 . statute. (y) Tlif sonwe rfcjuircs tlic omission I Cii. l.s. ]V.J WHO lessors: THE CllOWN, AND ITS Ol'l'ICEUS. 21-i exceed ninety-nine years, or three lives, to be computed from the date or making of any such lease ; or if any such lease should be made to take effect in reversion or expectancy, then that the term and estate thereby to be granted, together with the term or estate, terms or estates, in possession, should not exceed ninety -nine years, or three lives, computed from the date or making thereof; and so as the respective rents thereinafter specified or {z) reserved for the same, that is to say, where there should happen to be any substantial building or buildings upon the groimd to be demised, or that {a) the building or buildings thereupon should not require, or not be intended and agreed to be rebuilt, there should be reserved to his Majesty, his heirs and successors, an annual rent or rents not being less than two third parts of such annual sum as should be deemed by the chancellor and council of the duchy a reasonable rent or consideration for such building or buildings and ground respectively, for the term and estate intended to be granted, and so as there should be paid to the use of his Majesty, his heirs and successors, a fine or fines to the amount of the remaining part of such annual sum, subject to a discount, which should not be computed at a higher rate than the highest legal interest at the time of making any such lease ; and that when there should happen to be no substan- tial building upon the land so to be demised, or that [b] the building or buildings thereupon required or should be intended {c) and agreed to be forthwith rebuilt, or other new buildings to be erected {d) upon such land, then there should be reserved such annual rent or rents as should be deemed by the chancellor and council of the duchy to be a reasonable rent or consideration for such land and old buildings respect- ively, for the term and estate intended to be granted, without taking any fine for the same ; and so as in every lease of land and buildings of the description therein last aforesaid there (2) So ia the statute: q. should be? quire or should be intended ? («) So in the statute : q. where ? (d) So in the statute : q. or other (6) So in the statute: q. when? new buildings should be intended aiid (c) So in tlie statute: q. should re- agreed to be erected? 214 OF THE CONTRACTING PARTIES. [Part III. should be contained a covenant or condition on the part of the lessee for the erecting of proper and substantial houses or other buildings thereon Avithin a reasonable time to be in such cases Kmited for that purpose^ and such other covenants for keeping buildings in repair^ and doing all such other acts, as the chancellor and council of the duchy should think reasonable ; and so as every such rent should be reserved to be paid free of all taxes and assessments whatsoever, for the whole of the term to be granted, except such rent, or such pai't thereof, during such part of such term, as the chancellor and council of the duchy should think fit to be allowed, not exceeding in any case the term of three years, and so as every such lessee should duly sign, seal, and deliver, a counterpart of his lease ; and that every such lease should be good, any thing contained in the act of Queen Anne to the contrary notwithstanding. Timber on lands proposed to be demised may be made the subject of treaty. The act of 19 Geo. 3. c. 45 (e), after reciting that divers lands and tenements parcel of the duchy were held for terms of life or j^ears, wherein all timber and other trees were excepted and reserved to the crown ; and that parts of the lands so held would, if planted for the pro- duction of wood and timber, produce a greater profit than in a course of husbandry ; and that if the lessees were to be benefited by raising and planting trees for timber and other purposes thereon, they might be encouraged so to do, to the great utility of the public ; enacted, that it should be lawful for the chancellor and council of the duchy, by their order, to be made in court of revenue, to authorise the sur- veyors of the woods for the south and nortli parts respect- ively of the duchy for the time being to treat with such lessees for securing to them, their executors, administrators, and assigns, sucli a fair allowance of all moneys which should at any time during the term arise by sale of timber or other trees, or wood, within the lands so held, as should be agreed upon Ixtwccu the surveyors and the lessees; and also for (c) 1!) Goo. ;{. c. '\h. fis. 14. 1.5. Cii. I. s. IV.] WHO LESSOKS: THE CKOWNj AND ITS OEFlCEilS. 215 allowing unto such lesseeSj at the end of their respective leases, a like fair allowance in money for all timber and other trees which should be then left growing upon their respective farms, according to the value of such timber and other trees ; and it was declared that such agreement, being confirmed by order of the said chancellor and council, should be effectual to all intents and purposes whatsoever. There may be some doubt as to the enrolment of leases of lands parcel of the possessions of the duchy of Lancaster. The first mention that I can discover of anything relative to the point occurs in the statute48 Geo. o.c. 73 (/), which provides for nunc pro tunc enrolments, by enacting that in all cases where the enrolment of any lease or assignment, or minute or docket thereof, before the auditor of the land revenue, or the auditors of the duchy of Lancaster, or the entry of any lease or assign- ment, or minute or docket of any lease or assignment, in the ofiice of the surveyor general or auditors of the duchy, had been or should be omitted or delayed beyond the period limited in any such lease, it should be lawful for the chan- cellor of the duchy, or the sui'veyor-general, for any reason- able cause to them or either of them shown for the omission or delay, to authorise and permit the making of any such enrolment or entry nunc pro tunc ; and that the same respec- tively Avhen made under such authority should be as valid as if made within the period limited for that purpose. The next act of parliament [g), which extends to duchy lands, provided {h), that every agreement and lease thereby authorised, together with a map or plan of the land demised thereby, should be enrolled in the office of the auditor of the land revenue, or a minute or docket thereof entered and pre- served in the office of the commissioners of the woods and forests, or in the office of the surveyor-general of the w'oods and forests for the time being. The office of auditor of the land revenue was abolished by an act of Will. 4 (i), under whose provisions aU books of entry, (/) 48 Geo. 3. c. 73. s. f). (/() Sect. 10. (iinraster Loascs, Plowd. Cll. 1. S. IV.] WHO lessors: THE CROWN, AND ITS OFFICERS. 217 possession, without reciting one then in existence under a pre- vious grant by the crown, and enrolled, the second lease will be void; for when the King's grant cannot take effect accord- ing to its terms, the court concludes that he has been deceived, and the gi'ant is therefore void : but this doctrine is applicable only to cases where the preceding lease has been enrolled; for otherwise the subject cannot with certainty know of its existence. And, therefore, if an individual grants a lease, and the reversion comes to the king, who afterwards grants it over, without reciting the prior lease, the grant is good (w) . At a very early period the court of Chancery refused an injunction in favour of a party who, upon untrue surmises, obtained a duchy lease, which was sought to be set aside at law by the grantee of the reversion from the crown (o) . Where a duchy lease contained a proviso that the lease and all assignments thereof should be enrolled within three months from the date with the auditor of the duchy, or otherwise should become void, a memorandum or certificate on the margin of the lease, signed by the auditor, was held to be proper evidence of the fact of enrolment {p). An underlease, not being an assignment, would not in such case require enrolment {q). 4. With reference to hereditaments parcel of the duchy of Cornwall. The eldest son of the crown, as soon as bom, succeeds, with- out a specific grant, to the title of the duke of Cornwall (r), and takes, by right of inheritance, a fee-simple in the possessions attached to that dignity {s) . On the eldest son's death with- (n) Alcock V. Cooke, sup. (r) The Prince's case, 8 Co. 16, b. (o) Cary, 45. And see Hungerford's 1 Bulstr. 133. 1 Bla. Com. 224. And case, 1 Leon. 30. see Rowe v. Brenton, 8 Barn. & Cres. ( p) Kinnersley v. Orpe, 1 Dougl. .56. 737. 756 ; S. C. 3 Man. & Ry. 1 33. 223. And see Rpwe v. Brenton, 8 Barn. & (s) The Prince's case, 8 Co. 27, a., Cres. 737. 756 ; S. C. 3 Man. & Ry. 3rd point. 21 Jac.l.c 29. 10 Geo. 2. 133. 223. ' e. 29. s. 9 33 Geo. 3. c. 78. (5) Kinnersley v. Orpe, sup. 218 OF THE CONTRACTING PARTIES. [Part III. out issue, the title and estates, by virtue of a charter granted by King Edward the 3rd (t), and confirmed by parlia- ment (i«), devolve on the King's next son (a?). Lord Coke's position to the contrary (y) is considered unsound {z). But, on the death of the eldest son leaving issue, the dukedom and inheritance, it seems, revert to the crown, it being requisite that the next son of the crown should also sustain the relative character of heir apparent to the throne (a), which cannot be the case during the existence of issue of his late elder brother (^). Nor can the eldest son of the eldest son succeed, because he is not the King's eldest son(c). The possessions of the duchy in like manner vest in the crown until the birth of a son (d). Leases granted by the crown when invested with the pos- sessions of the duchy were determinable at common law by an after-born son {e) ; but at various periods this obstacle to a secure tenancy has been removed by parliament (/) ; and an act passed in the reign of the late King, William 4th (g), provided, that during such time as the duchy of Cornwall should remain vested in his Majesty, it should be lawful for him from time to time, by warrant under his sign manual, to be countersigned by any three or more of the commissioners of the treasury, to authorise such of the regular olSicers of the duchy who by vii'tue of their several appointments were (I) Com. Dig. Roy, (G). the Duchy of Cornwall lands, though (u) The Prince's case, sup. the Prince of Wales, his grandson, (x) Lomax v. Holmden, 1 Ves. 294. (afterwards George the 3rd,) was then 1 Bla. Com. 224. n. (10) by Christian. of age. Frederick, the son of Geoi-ge Collins's proceedings on Baronies, p. the 2nd, died 20th March, 1750. 148. (d) Com. Dig. Roy, (G). (y) 8 Co. 30, a. (c) Ibid. Atkins v. Mountaguc, 1 (z) Sec authorities in note (x), sup. Ch. Ca. 215. (a) Tlic Prince's case, 8 Co. 26, b., (/) 1 Car. 1. c. 2. 13 Car. 2. st. 2. 2nd point. c. 4. 22 Car. 2. c. 7. 25 Car. 2. c. 3. (/y) Christian's note (10) to 2 Bla. 12 & 13 W. 3. c. 13. 1 Anne, st. 1. Com. 224. Rot. Piu-1. 12 Ed. iv. c. 7. s. «. 6 Anne, c. 25. 12 Anne, No. 14. c, 22. 24 Geo. 2. c. 50. 33 Geo. 2. (c) The Prince'8 case, 8 Co. 30, a. r. 10. IGeo. 3.c. 11. 3 Geo. 4. c. 78. Tliis will account for tlic act of parlia- 5 Geo. 4. c. 78. mcnt in W.'.-O, ?,2 Geo. 2. c. 10, which (f/) 1 & 2 W. 4. c. 5. • nablod King George the 2nd to demise Ch. I. s. IV.] WHO lessors: — the crown, and its orriciiRs. 219 concerned in the general superintendence of the revenues and affairs of the duchy, being not more than five, and not less than three in number, to demise or lease, in his Majesty's name, and on his Majesty's behalf, by deed under the hands and seals of any two or more of them, all and every the manors, messuages, &c., parcels of the possessions of the duchy, or annexed to the same; provided that the lessees should execute a counterpai-t of the lease : and all such leases were declared to be good and effectual against the King, his heirs and successors, and against all other persons that should at any time thereafter have, inherit, or enjoy, the duchy by force of any act of parliament, or by other limitations what- soever. And it was provided {h), that every such lease in possession shoidd be made for three lives, or fewer, or for thirty-one years, or under, or for some term of years deter- minable upon one, two, or three lives, and not above ; and if any such lease should be made in reversion or expectancy, then that the same, together with the estates in possession, should not exceed three lives, or the term of thirty- one years, and should not be in any wise dispunishable of waste ; and so as there should be reserved the ancient or most usual rent or more, or such rent as had been reserved, yielded, or paid, for such of the premises as should be contained therein, for the greater part of twenty years next before the making of the lease, and should be reserved to such as should have the in- heritance or other estate of the duchy : and where no such rent had been reserved or payable, that then upon every such lease or grant there shoxild be reserved a reasonable rent, not being under the twentietb part of the clear yearly value of the manors, &c., contained in such lease. It was also enacted (i), that it should be lawful for the officers of the duchy to be named in his Majesty's warrant, by deed under the hands and seals of any two or more of them, to demise any lands, &c., parcel of the duchy, or annexed- to the same, for any term of years not exceeding the (A) 1 & 2 W. 4. c. .5. s. 1. (0 1 & 2 W. 4. c. o. s. 2. 220 OF THE CONTRACTING PARTIES. [Part 111. term of ninety-nine years^ expressly for the pui'pose of improving the same by erecting substantial buildings thereon, or for the iiurpose of improving waste lands by cultivation, or otherwise; provided that the lessee should execute a counter- part of such lease ; and that upon all such leases improved annual ground rents should be reserved and made payable ; and that in all such cases of leases for terms exceeding thirty-one years, or exceeding the usual term determinable upon three lives, no fines or other consideration should be taken fm-ther or other than the improved annual ground rents by the act directed to be reserved. And further (k), that the terms and conditions of all leases to be made under the provisions of the act should be previously approved by the commissioners of the treasury, or any three or more of them. And (/) that all covenants, conditions, reservations, and agreements, contained in every such lease should be good and effectual, as well for and against them to whom the reversion of the said manors, &c., should come, as for and against them to whom the interest of such leases should come respectively, as if the King at the time of making such covenants, conditions, reservations, and agreements, had been seized of an absolute estate in fee-simple in the same manors, &c. The fifth section contains a general saving to all persons, bodies politic and corporate, their heirs and successors, executors, administrators, and assigns, (other than the King, his heirs and successors, and other than the Duke and Dukes of Cornwall for the time being, and his and their heirs, theii' lessees, and all persons that should thereafter have, inherit, and enjoy, the said duchy of Cornwall by force of any act of parliament, or other limitation whatsoever,) of all such rights, titles, estates, &c., as they had or ought to have had before the making of the act, in as ample a manner as if the act had not been made. This act was in the present reign (m) revived and continued (k) Sect. ;j. (/) Sect. 4. (w) 1 & 2 Vict. c. 101. Ch. 1. S IV.] WHO LKSSORS: THE CROWN,AND ITS OFFICERS. 221 for the time during which the duchy shoukl remain vested in her Majesty ; and on its provisions depends the stabihty of duchy leases granted by the late King or present Queen. The powers of leasing enjoyed by the present Duke of Cornwall (whom God long preserve in health and happiness!) "will bethe subject of future discussion. The enrolment of a lease of lands parcel of the duchy of Cornwall is primary evidence of such lease, whether it be granted by a Duke of Cornwall, or by the crown when there is no duke (w) . 5. With reference to hereditaments purchased by, or descended, or devised to, the crown. Lands purchased by the crown out of the privy purse, or moneys not appropriated to any particular service, are not subject to the operation of 10 Geo. 4. c. 50, and 2 W. 4. c. 1. The doubts formerly entertained whether purchases of this description did not fall within the restrictions imposed by the acts of 1 Anne, st. 1. c. 7, 1 Geo. 3. c. 1, and 34 Geo. 3. c. 75, were removed by an act passed in the reign of George the 3rd (o), by which it was declared that none of the provi- sions and restrictions of those acts should extend to the purchases in question (/>). And {g) that it should be lawful for the King, his heirs and successors, by any instrument under the royal sign manual, attested by two or more w it- nesses, to grant estates so purchased, whether of freehold, copyhold, customary, or leasehold tenure, and whether con- veyed or assured to, or otherwise vested in, his Majesty, his heirs or successors, or to or in any person or persons in trust for him, his heirs or successors, to any person or persons, for any estate or estates, or for any intents or purposes, as any of his subjects might grant their estates : and his trustees were directed to convey the same as he should direct. Lands which devolve on the crown by the gift or devise of, (n) Rowe v. Brcnton, 8 Barn. & (o) 39 & 40 Geo. 3. c. 88. Cres. 737. 70.'; ; S. C. 3 Man. & Ry. ( p) Sect. 1. 13.3. 218. " (q) Sect. 4. 222 OV THE CONTRACTING PARTIES. [1'art 111. or by descent^ or otherwise, from, any ancestors, or any other person or persons, not being Kings or Queens of this realm, are in like manner capable of free alienation, as if the same belong to private individuals (r). But as the act last referred to did not extend to estates to which the King was entitled at the time of his accession to the crown, an act passed in the reign of George the 4th {s) proAdded, that all the powers given to the King, his heii's and successors, by 39 & 40 Geo. 3. c. 88, over the manors, mes- suages, &c., purchased or to be purchased by him or them, or coming to him or them in manner in that act mentioned, should be extended to all manors, and messuages, &c., whether of freehold, or copyhold, or customary, or leasehold tenm'e, whereof his Majesty, or any person or persons in trust for him, at the time of his accession, or whereof his heirs or successors, or any person or persons in trust for them, at the time of their respective accessions, was, were, or should be, seised and possessed, and which before such acces- sion he or they respectively might have legally granted, sold, given, or delivered. 6. With reference to hereditaments forfeited, or escheated to the crown, or taken by the crown by reason of their ha\'ing been pm'chased by, or to the use of, or in trust for an alien. Lands taken by the crown by waj'^ of escheat or forfeiture are exempt from the operation of the acts 10 Geo. 4. c. 50, and 2 W. 4. c. 1. By the act of Queen Anne(^) also it was declared that notliing therein contained should disable her Majesty, her heirs and successors, to make any grant or restitution of any estate or estates thereafter to be forfeited for any treason or felony whatsoever, or to disable her Majesty, her heirs and successors, to grant, demise, or assign, any lands, tenements, or hereditaments, which should be seized or taken into her or their hands ujwn any outlawry, at (>•) ScctH. 1 aiwl 1. (. ) 1 (!w). 1. f. Hi. (/) 1 Anno, st. 1. v. 7. s. «. Ch. I. S. IV.] "iVIIO LESSOKS: THE CROWNj AND ITS OFFICERS. 223 the suit of her or their subjects, as had been usual, or any estate whatsoever which was or should be seized, extended, or taken into execution, for any debt owing or to be due to the crown, as she or they should think fit. The provisions of this act were extended by the 39 & 40 Geo. 3 {u). After reciting that divers lauds, &c., had become, and might become, vested in his Majesty, his heirs and suc- cessors, by escheat or otherwise, in right of the crown, which, in the hands of subjects, would be chargeable with trusts, or applicable to certain purposes, and that his Majesty, his heirs or successors, might be desirous that the same should be applied accordingly, notwithstanding any right to hold the same discharged thereof, but that by reason of the pro\dsions of the act of Anne, and the act of 34 Geo. 3 {x), doubts might be raised whether his Majesty, his heirs or successors, could direct such application thereof; and also after reciting that divers lands, &c., as well freehold as copyhold, had escheated, and might escheat, to his Majesty, his heirs or successors, for want of heirs of the persons last seised thereof, or entitled thereto, or by reason of some forfeiture, or otherwise, although not forfeited for treason or felony ; and that it was expedient to enable his Majesty to direct the execution of any such trusts or purposes, and to make any grants of any such lands, &c., it was enacted (y), that it should be lawful for his Majesty, his heirs and successors, by warrant under the sign manual, to direct the execution of such trusts, and to make any grants of such escheated lands to any person or persons, either for restoring the same to any of the family of the person or persons whose estates the same had been, or of rewarding any person or persons making discovery of any such escheat. A question having arisen whether the powers given by this act extended to hereditaments which had or might come to the crown in right of the duchy of Lancaster, or by reason that the same had been pm^chased by, or for the use of, any («) 39 & 40 Geo. 3. c. «8. s. 12. (,r) .'^4 Goo. H. c. 7.5. ()/) 59 Si 40 Geo. 3. c. 88. s. 12. 224 OF THE CONTRACTING PARTIES. [Part III. alien or aliens, it was enacted [z], that in all cases in which his Majesty, his heirs or successors, had, or should, in right of his crown, or of his duchy of Lancaster, become entitled to any freehold or copyhold manors, messuages, &c., either by escheat for want of heirs, or by reason of any forfeiture, or by reason that the same had been purchased by, or for the use of, or in trust for, any alien or aliens, it should be lawful for his Majesty, his heirs and successors, by warrant under the sign manual, or under the seal of the duchy or county palatine of Lancaster, according to the nature of the title to such manors, messuages, &c., respectively, to direct the execution of any trusts, and to make grants of such manors, messuages, &c., to any person or persons, for the purpose of restoring the same to any of the family of the person or persons whose estates the same had been, or of rewarding any person or persons making discovery of any such escheat, or of his Majesty's right and title thereto. The statute 6 Geo. 4 («) extended the provisions of these acts to leasehold premises vested in the crown by reason of any forfeiture, or by reason of their having been purchased by, or for the use of, or in trust for, an alien. And the act of parliament (b) which, at the commencement of the present reign, transferred several of the hereditary rates, duties, payments, and revenues of the crown to tlie consolidated fund, expressly reserved (c) to the Queen her right of disposing of or leasing any freehold or copyhold pro- perty to which her Majesty, or any of her royal predecessors, had or should become entitled either by escheat, forfeiture, or by reason that the same had been or should be purchased by, or for the use of, or in trust for, any alien, subject never- theless to all such restrictions and regulations as were in force by virtue of any act in relation thereto at the time of the decease of King William the 4th, With regard to lands in Ireland, it was enacted by (z) 4 7 Geo. :J. sess. 2. c. 24, ami 5.0 (h) 1 & 2 Viot. c. 2. Geo. .1. c. .04. (r) ScM't. 12. (") C Geo. 4. e. 17. H. 1. Ch. I. s. I V.J WHO lessors: — the crown, and its officers. 225 10 Geo. 4 (cl), that his Majesty, his heirs and successors, should have and enjoy the same powers with respect to any manors, messuages, &c., in Ireland, whether freehold or leasehold, which had since the passing of the act of 7 & 8 Geo. 4. c. 68 {e), or within two years prior thereto, or thereafter should, become vested in his Majesty, his heirs or successors, by escheat, or forfeitui'e, or by reason of their having been purchased by, or for the use of, or in trust for, any alien or aliens, as by the acts of 39 & 40 Geo. 3. c. 88, 47 Geo. 3. c. 24, 59 Geo. 3. c. 94, and 6 Geo. 4. c. 17, were given with respect to manors, messuages, &c., in England. It was pro\'ided, however, by 10 Geo. 4 (/), that the pro^d- sions therein contained should not extend to any estates or possessions in Ireland which might be seized into the hands of the crown on writs of outlawry or other process between subject and subject, nor to any rents usually called custodiam rents reserved on leases granted under the Exchequer seal of such estates or possessions, nor to the prse fines or post fines, or other fines, or moneys payable on writs of entry, and writs of covenant, or on levjdng fines, or suffering com- mon recoveries, in Ireland (^), nor to the lighthouse duties payable in Ireland. And the statute, after reciting that it might be thereafter thought advisable to make some alterations with respect to the said custodiam rents, prse and post fines, and other fines, in Ireland, and that it was desirable, that, in the meantime, no gift, grant, or alienation thereof should be made, by which such alteration might be impeded or prevented, declared (A), that no gift, grant, alienation, lease, or other assurances whatsoever, should at any time thereafter be made by the King, his heu-s or successors, of the said custodiam rents, or of the said prse and post fines, or other fines, or moneys, or (d) 10 Geo. 4. c. 50. s. 127. poses relating thereto." (e) 7 & 8 Geo. 4. c. 68, entitled "An (/) 10 Geo. 4. c. 50. s. 133. A ct for the management and improve- (ff) Fines and recoveries in Ireland ment of the land revenues of the were abolished by 4 & 5 \V. 4. c. 92. Crown in Ireland, and for other pnr- (/*) 10 Geo. 4. c. 50. s. 134. VOL. I. Q 226 OF THE CONTRACTING TAHTIKS. [Part HI. of any of tliem, but tliat all such gifts, grants, alienations, leases, or other assurances, should be ipso facto void, without any sch'e facias, inquisition, or other proceeding, to deter- mine or make void the same {i) . But great alteration was made with regard to escheated or forfeited trust estates by 4 & 5 W. 4. c. 23, which pro^ddes [k), that no land (/) vested in any person upon any trust, or by way of mortgage, shall escheat or be forfeited to the crown, or other person, by reason of the attainder or conviction for any offence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or survive to his co-trustee, or descend or vest in his representative, as if no such attainder or conviction had taken place. And, after reciting the expe- diency of relieving persons beneficially entitled to property already so escheated or forfeited, it is enacted (m), that Mhere before the passing of the act any person possessed of land as a trustee shall have died without an heir, or been convicted of an offence whereby it has escheated or been forfeited, or become subject to escheat or forfeiture, the land shall be subject to the order, control, and disposition of the court of Chancery, for the use of the party beneficially inte- rested, in such manner, under the provisions of the acts of 11 Geo. 4., & 1 W. 4. c. 60 {n), as if such person so dead without heir, or so convicted, were out of the jurisdiction of, or not amenable to, the process of the court, without ha\dng been so con\dcted : Provided that the act should not extend to any land then vested in any person by virtue of any grant made subsequently to the time when such escheat or forfeiture first occurred, or to any land which more than twenty years prior to the passing of the act had been actually vested in (i) See 4 & 5 W. 4. c. 92, sup., (m) Sect. 6. ]). 225. n. (g). (m) Entitled " An Act for amending (/.•) 4 & 5 W. 4. c. 23. s. 'd. the laws respecting conveyances and ({) Extending to any manor, mes- transfers of estates and funds vested Huage, tenement, hereditament, or real in trustees and mortgagees ; and for j)roi)crty, whetlier freeiiold, customary- enabling courts of equity to give effect liold, coj)yholil, or of any tenure what- to their decrees and orders in certain over. Sect. 1 . cases." Cii. I. s. IV.J WHO lessors: THE CROWN, AND ITS OFFUCERS. 227 possession or reduced into possession by the party entitled tliercto by virtue of any such escheat or forfeiture. At a very early period it was customary for the crown to grant leases of lands escheated and seized into its hands imder inquests of office to the party whose lands were seized, or other person claiming against the seizure (o) ; and the statute 36 Ed. 3 {jj) seems to have established the right of such claimant to a lease in preference to all others. " If there be any man/' says the act, " that will make claim or challenge to the lands so seized, that the escheator send the inquest into the Chancery within the month after the lands so seized, and that a writ be delivered to him to certify the cause of his seisin into the Chancery, and there he shall be heard without delay to traverse the office, or otherwise to show his right, and from thence sent before the king to make a final discussion, without attending other command- ments. And in case that any come before the chancellor, and show his right, by any showing by good evidences of his ancient right and good title, the chancellor, by his good discretion and advice of counsel, (if it seem expedient to him to have counsel,) shall let and demise the lands so in debate to the tenant, yielding thereof to the King the value, if it pertain to the King, in the manner as he and other chan- cellors before him have done in times past of their good dis- cretion, so that he find surety that he shall do no waste nor destruction till it be judged." This statute, however, did not preclude the King from granting such lands to strangers before the return of the inquisition, and before the party forfeiting could make his claim [q). To prevent, therefore, this oppressive encroach- ment on the rights of the subject, the legislature again interfered, and pro^^ded {r), '^that no lands nor tenements seized into the hand of the King upon such inquest taken before the escheators or commissioners should be let or (o) Staiif. Prerog. 67, b. (r) 8 Hen. 6. c. 16. Ami see 18 ( f) .",6 Ed. 3. Stat. 1. c. 13. Hen. 6. c. 7. (f/) Stanf. Prerog. fi8,b. 1 2 East, 11-1. Q 2 228 OF THE CONTRACTING PARTIES, [Part TIT. granted to ferm by the chancellor, or treasurer of England, or any other the King's officer, until the same inquests and verdicts should be fully returned in the Chancery or in the Ex- chequer; but that all such lands and tenements should remain in the hands of the King until the said inquests and verdicts should be returned, and by a month after the same return, unless he or they who should feel them grieved by the same inquests or putting out of their lands or tenements should come into the Chancery {s), and proffer themselves to traverse the said inquests, and then offer to take the same lands or tenements to ferm ; and if they should do so, that then the same lands or tenements should be committed to them, if they should show good evidence proving their traverse to be true after the form of 36 Edw. 3 ; to hold until the issue taken upon the same traverse should be found and discussed for the King, or for the party, finding sufficient surety to pur- sue the said traverse with effect, and to render and pay to the King the yearly value of the lands whereof the traverse should be so taken, if it should be discussed for the King. And that if any letters patents of any of the lands or tenements should be made to the contrary to any other person, or let to ferm within the said month, after the said month of return they should be holden for none." Ten years afterwards, another act(/) was passed, which, after reciting that last noticed, and stating, " the which good statute and ordinance divers persons devising to subvert, and by their subtilty to serve as for no purpose, have sued to obtain such gifts and grants and ferms by the King's letters patents before any inquisition or title found for the King of the same, pretending such gifts and grants not comprised nor remedied by the said statute, notwithstanding that it is in like mischief of the said statute," provided, that no letters patents should be made to any person or persons of any lands or tenements before inquisition of the King's title in the same (s) Tills was because when an office Rep. 52, a. 12 East, 111. was necessary to entitle the King, the (t) Hi Hen. 6. c. 6. And see 2.3 cointnission issued out of Chancery, .'> lien. 6. c. 17. 2 Dy. liH, b. pi. (CC). ClI. I. S. IV.J WHO LESSORS: THE CROWN, AND ITS OFFICERS. 229 should be found in the Chancery or in his Exchequer returned, if the King's title in the same should not be found of record, uor within the month after the same return, if it should not be to him or them which should tender their traverses ; and that if any letters patents should be made to the contrary, they should be void and holden for none. Notwithstanding the statute of 8 Hen. 6. c. 16, it appears that " divers escheators and commissioners {u) which had taken such inquests after the death of the King's subjects, of their covin, to the intent to put them that had cause of traverse to the verdicts of the said inquests from the ferm of the premises, wovild in the time of vacation put into the Chancery or into the Exchequer their said offices by them taken, because the month should pass before the beginning of the term next ensuing, by reason whereof they that should of right have had the ferm upon their traverse, according to the trvie intent of the said statute, were put from the same ferms contrary to right and good conscience :" it was therefore enacted (a), that from thenceforth, after such office found afore any escheator or commissioner, and put into Chancery or the Exchequer, if any person or persons which would tender a traverse to the same office, and desire to have the lands contained in the same office to ferm, and find surety, and show evidence to the chancellor of England for the time being according to the statute of 8 Hen. 6, should come into the Chancery within three months next after the same office so put into the Chancery or Exchequer, that he should be then by the said chancellor thereto admitted, and that all other patents or grants thereafter to be made thereof within the said three months ended should be void. The object of the legislature, therefore, plainly was, in all cases in which the King's title did not appear upon record to open the possession to whoever covdd claim against the King till the final decision of the right; and that any grant to obstruct- him should be void (y). (it) 1 Hen. a. c. 10. s. 2. (y) Doe dem. Hayne v. Redfcrn, 12 (.t) Sect. 3. East, 111. 112. 230 OF THE CONTRACTING PAKTIES. [Part III. The lease made to the traverser was not of any certain duration; but_, according to the terms of the statute^ donee discussum fuerit. And^ therefore^ where the traverse was found against him that tendered it, the lease became void without ftu'ther process [z). With respect to the security required on the traverse of an inquisition [a], it was the usual com'sc of the court to take it to the value of two years' profits of the land, because it was supposed that in that time the right of the crown and party woidd be determined {b). As it frequently happened that tenants for years in pos- session of lands seized under inquisitions of office were deprived of their terms in consequence of their interests not being found in the inquisitions, and as they had no means at common law of recovering their interests during the King's possession, either by way of traverse, monstrans de droit, or otherwise, on account of their being a chattel, and not a free- hold, it was enacted [c], that where any such office or inqui- sition should be found, omitting such interests, the tenant for term of years should enjoy his term in such manner as he could have done in case there had been no such office or inquisition found, and as he lawfully would have done in case such lease had been found in such office or inquisition. Where a party makes discovery of an escheat, it is the ordinary rule for the crown to grant him as good a lease as it can give {d). 7. With reference to other requisites and matters of form connected with crown leases. In former times, as we have seen (e), letters patent under the great seal were the ordinary medium of conveyance or demise by the crown (/). The great seal, however, was M(jt indispensable, for it was the frequent usage of the court (.';) Stauf. Prerog. 68, a. b. ((/) Mop;gridge^•.Thack^VL•ll,7 Vcs. 71 . («) Sec ante, p. 22ft. & 22f). (c) Ante, p. ]«,'). (//) lU;x ^;. IJavlow, Buiib. 25. (/) Brott t^. Cuiiiborhiud, 3 Bulstr. (') 2 »t 3 lid. (i. e. It. m. 1. 3. KM. Mo. 47(i. pi. 61il. Cu. 1. s. IV. J WHO lessors: — the cuown, and its officers. 2:31 of Exchequer, tliough in contravention of the common hiw, by which no grant of any land by the King was available or pleadable but under the great seal, to make such leases under their own seal, without any distinction between freehold and chattel terms {g). In pleading such leases under the Exchequer seal, the lessee was not obliged to allege any usage or prescription to warrant the practice {h), the customs of the King's coiu'ts, which of themselves constitute a new law, superseding in these respects the usual course of the common law {i), and being cognisable in every court at Westminster [k). Indeed, in every commission to make leases under the great seal, there used to be a special gi'ant that leases made by the commissioners under the seal of the Exchequer, &c., should be good j though, as Lord Coke observes [1), unless the leases were good for the causes mentioned by him, the clause in the commission would not remedy them. Much of the difficulty and expense attending the common law mode of granting crown lands under the gi'cat seal or Exchequer seal has, as we have seen, been abolished by the statutes cited in this di\ision ; but still, when granted by the King, it is not to be forgotten that leases demand the drafts- man's anxious care and attention. The lessee must be accurately named, as a misnomer will prove fatal to the lease (m). Generally speaking, it is necessary to recite existing leases which are of record [n) . If a new lease be granted even to the lessee in possession, his former one must be recited, {(j) Laue's case, 2 Co. 16, b. ; S. C, (I) Lane's case, 2 Co. 17, a. nom. Smith, or Smyth, v. Cave, 1 And. {m) 10 Co. 112, a. 191; 1 Leon. 170; Gouldsb. 34. Cro. (m) Wing v. Harris, Cro. Eliz. 231 ; Car. 528. Kemp v. Barnard, Cro. Car. S. C, nom. Han-is v. Wing, 3 Leon. 513. March, 55, pi. 85. Predyman 242; cited, Mo. 415. Fulliam «. Ful- V. Wodry, Cro. Jac. 109. Rol. Ah. ham, March, 206. Glover r. Clossey, Court, (IB) pi. 4. Prerogative, (C). 2 Rol. 180. Cora. Dig. Grant, (G. 10). and (E). pi. 3. p. 182. Anon. Sav. 58, case 126. 17 Vm. Ab. (^) Lane's case, sup. Rol. Ab. 108. Prerogative, (Q. b). Alcock r. Court, (B), pi. 4. Cooke, 5 Bing. 340-9; S. C. 2 Mo. & ((•) Ibid. Pa. 625. (k) Ibid. 232 OF THE CONTHACTING PAllTIES. [Part III. otherwise the grant will be void [o), and the first lease extinguished {p) . There are some exceptions to the rule ; for instance, if the King make a lease at will, and afterwards grant the same land to another, the lease at will need not be recited {q). So, if he lease a copyhold, and afterwards grant the same land to another (r) . The necessity for recitals of existing leases may also be dispensed with by an express clause in the patent (s). Where recitals are inserted, it is not necessary to particu- larise, by dates or otherwise, such leases of record as may be in esse, provided they be so noticed as to remove all appear- ance of deceit. Indeed, they may be referred to in very general terms. If, for example, the King grant the land without any recital of an existing lease, but with the words " notwithstanding it be in lease for life or years, of record or otherwise ^^; or if he grant the land, and further grant " the reversion of it dependent or expectant upon any estate for life or for years," in both these cases the grant is good(^). A mistake even of the date will not vitiate the grant {u) . Existing leases not upon record, which by intendment cannot be known nor discovered, need not be recited {w). And, therefore, if an indi\ddual grants a lease, and the rever- sion afterAvards comes to the King, who grants it to another, as the subject cannot with certainty be acquainted with the existence of the prc\dous lease, the want of its being recited •will not vitiate the King's grant {y). Great caution and accuracy are required in framing other ('y; Wing r. Harris, sup. r. Goring, Cro. Car. 197. Hob. 229. (/<)Ibi(l. But the law on this point (t) Bozoun's case, 4 Co. 35, b.; S.C, H diflorent where the lease is between nom. Futter v. Boorome, Godb. 35, Hubject and subject. Wilson v. Sewell, numbered 39 by mistake. 4 liurr. ]9«0; S. C. W. Blac, 617. («) Bro. Ab. Patent, pi. 96. (7) Com. Dig. Grant, (G. 10.). (:c) Ajn-ice r. Hayes, Hardx-. 498-9. ('/•) Com. Dig. Grant, (G. 10.). 2 Fulham v. Fu]liam,March, 206. 1 Co. Rol. Ab. Prerogative, (G). pi. 3. 15, a. Alcock v. Cooke, 5 Bing. 340, («) Fin(hr.Rih.lcy,Poph.25..30;S.C. 349; S. C. 2 Mo. cS: Pa. 625. 2 Leon. 134. Anon. 1 And. 46. Brook (v/) Alcock v. Cooke, sup. ClI. 1. S. IV.] WHO lessors: THE CKOWN, AND ITS OFFICERS. 233 recitals in leases by the King ; for^ generally speaking, if it appear on the face of the grant that he is mistaken or deceived either in matter of fact or matter of law, as in the case of false suggestion, misinformation, or misrecital of former grants, the lease is absolutely void (^) . To prevent deceit upon the crown, it was enacted, at an early period, that unless parties demanding lands or tenements of the King made express mention in their petitions of the value of the things demanded, the patent should be void («) . The difference is, where the king is deceived in his intent, and where he is mistaken in his information ; for if he grant the manor of D., "heretofore demised for 10/.,^^ where it was really demised for 20/., and 20/. be reserved, the grant is good [b] . But if the lease recite that the lands were let for a less sum than was actually paid for rent, and the smaller sum be reserved, the grant is void; the smallness of the value seeming to be the ground of the patent (c). It is also void if the grantee suggest that the land came to the King by forfeiture, when in fact it belonged to him in right of his cro^vn {d) . On the same principle, if the consideration, which is for the benefit of the crown, be it executed or executory, on record or not on record, be false or not duly performed, or if pre- judice may accrue to the crown by reason of non performance of it, as if a ncAv lease be granted in consideration of the surrender of a former one, and the alleged surrender be inoperative (e), or operative in part only (/), or conditional (//), or if the former lease were void (/<) ; in either of these cases the grant is void. But to render a new grant available, an (;) 2 Bla. Com. 348. Aprice r. S. C, nom. Bemvick's case, Mo. 393. Hayes, Hardr. 498. Anon. 3 Dy. 352. pi. (26). Sawier, oi' (a) 1 Hen. 4. c. 6. Sawyer, v. East, Lane, 74. 109 ; S. C. (6) Chambers r. Mason, Yelv. 48; 2 Rol. Ab. Prerogative, (N). pi. 4. S. C. Yelv. 42; Cro. Jac. 34. p. 188. (Q). pi. 1. p. 189. (c) Mason v. Chambers, Cro. Jac. 34 ; (/) Sawier, or Sawyer, v. East, sup. S. C. Yelv. 42. 47. {g) 2 Rol. Ab. Prerogative, (M). (cO 2 Rol. Ab. Prerogative, (N). pi. 6. pl- 3. (A) Barwick's case, 5 Co. 94, a. (() Barwick's case, 5 Co. 93, b. ; 234 or THE CONTRACTING PAllTIES, [Part 111. actual surrender of the existing interest by deed is not required ; a surrender in ' law by acceptance of a new estate being sufficient (i). So, if the King's grant recite a lease in possession, and afterwards grant the reversion, the grant will be nugatory, should it be shown that the supposed lease was void {k) ; or if the King grant a lease to B., to hold for twenty- one years after the end of the term granted to A., and A/s term had been pre\doasly forfeited to the crown, B/s lease cannot be supported (/). And it seems that a lessee under a lease obtained upon untrue surmises cannot find relief in Chancery even against the crown's grantee (m). If a sum of money form the consideration, or part of the consideration, and be acknowledged by the King to have been paid, it is not necessary for the grantee to prove payment in order to support the lease {n). So, it seems, if the lease be granted in consideration that the lessee shall repair, his neglect to do so Tvill not annul it, as the King may maintain an action of covenant against him for damages (o) . If the parcels be once described with sufficient certainty, the lease cannot be impeached by the addition of superfluous matter which proves untrue (p) ; as in the case of a demise of a manor by special name, with a superadded false description of its having lately been in the occupation of J. S. In this, and similar cases, the King is not deceived in his title, nor in the value which he intends to grant, nor in the restraint which, for his profit, he intends to make {g). But if the lease (i) The case of the Churchwardens pi. 7. Sawier, or Sawyer, t>. East, sup. of Sanit SaviourS()uthwark,10Co.66,b. (p) Lcgat's case, 10 Co. 113, a. (k) Bozouu's case, 4 Co. 35, b.; S. C, Heidon v. Ibgravc, 3 Leon. 162. And num. Futtcr v. Booromc, Godb. 35, see Anon. Mo. 45. pi. 137. Cro. Car. numbered 3.0, by mistake. 548. 1 Dy. 87. pi. (101). Hob. 171. (/) Holt V. Roper, 3 Leon. 5. Doddington's case, 2 Co. 32, b.; S. C, (/«) Cary, 45. And see Hunger- nom. Hall v. Peart, Poph. CO. Mason ford's case, 1 Leon. 30. v. Chambers, Cro. Jac. 34; S. C. Yelv. (m) The case of the Churchwardens 42.47. Plowd. 191,b. Doe dem. Ash- of Saint Saviour Southwark, 10 Co. forth v. Bower, 3 Barn. & Adol. 453. (')Cf, u. (i7, b., 3rd rosolution. 2 Rol. Hoc dem. Smith v. Galloway, 5 Barn. Ab. I'roiogative, (M). jd. H. iSc Adol. 43; S. C. 2 Nov. & Man. 240. (o) 2 llol. Ab. Prerogative, (M). (q) Ibid. Ch. I. b. IV.] WHO lessors: — the ckown^ and its officers. 235 be made of so many acres of an estate as were lately in the occupation of J. S.^ his occupation of the premises is of tlic substance of the description; and if J. S. never occupied them, the grant is void (r). If the King having a hundred acres of land in D. grant twenty acres generally, without describing them by the rent, occupation, or name, the grant is void ; and the grantee shall not have his election to take any twenty of the acres {s) ; though a different rule prevails in the case of a grant by a subject {t). In a late case {u), a lease granted by the crown of all mines in the province of Nova Scotia was held to include mines in the island of Cape Breton. Rents reserved on leases of crown lands are usually reserved to her Majesty, her heirs and successors, and made payable into the hands of her Majesty^s bailiff or receiver- general for the time being of the premises. Rents are reserved to the commissioners of the woods and forests only when so directed by particular acts of parliament. If a lease be made without appointing any place for payment, or any person to receive the rent, the lessee may, at his election, pay it at the Exchequer or to the baHiff or receiver (.r) . Though the clause reserve the rent payable " at the receipt of the Exchequer at Westminster,^^ it is not necessary that the receipt be held at Westminster, for if held at another place, the rent must be paid there ; as the law in this particular implies not only that which is expressed, viz., at Westminster, but more, viz., at whatso- ever other place the receipt may be kept. As to the proviso for annulUng the lease on non-payment (r) Bozoun's case, 4 Co. 35, a. 36, a.; Dav. 45, a. I W. Blac. 118. S. C, nom. Futter f . Boorome, Godb. 35, (t) Ibid. [or 39]; 2 Rol. Ab. Prerogative, (Z), (m) Taylor v. The Attorney-General, pi. 2. Heidon v. Ibgrave, 3 Leon. 162. 8 Sim. 413. Doddington's case, 2 Co. .32, b., 1st (.r) Boroughe's case, 4 Co. 73, b.; resolution ; S. C, nom. Hall v. Peart, S. C, nora. Burrough v. Taylor, Cro. Poph. 60. Plowd. 191, b. Eliz. 462, the second page of that (,v) Stockdalo's case, 12 Co. ()!}. (p) (irindaPs case, 4 Leon. 7<'!. (.v) Co. Lit. M, a. ('/) .Spendiowes v. Burket, Mob. 7. Cii. I. s. IV.] WHO LESSOllS: ECCLRSIAST: COHPOUATIONS. 239 The enabling statute of Henry the 8th {t) empowered all persons seized of any estate of inheritance in right of their churches, parsons and vicars excepted [u), to grant leases of their church-lands for twenty-one years or three lives at the most, upon the observance of certain conditions, which have already been enumerated and explained (^). Prebendaries, although seized in right of their prebends, and not in right of their churches {y) ; precentors {z) ; chancellors of cathedrals (a) ; and treasurers of churches ip) ; were allowed to avail themselves of the privileges conferred by the statute, which, it is observable, did not extend to ecclesiastical or eleemosynary corporations aggregate (e) . It has lately been doubted by the court of Queen's Bench whether a perpetual curate is within the act of 32 Hen. 8; ])ut the judges agreed that if he were within the first section, he was also within the exception contained in the fourth [d). The common law rights, however, of the persons thus enabled remained unaltered ; the statute invested them with a new power, but neither annulled nor abridged their former capacity to lease (e). With a view, therefore, to check the unreasonable advantage taken of that capacity by spiritual and eleemosynary bodies, to the impoverishment and injury of their successors, the restraining statutes were passed. By the first of these statutes (/), all gifts, grants, &c., by any archbishop or bishop of any hereditaments parcel of the (t) 32 Hen. 8. c. 28. case in the Exchequer being cited that (m) Sect. 4. leases made by the chanters of Pauls (a;) Ante, p. 66, e. eluding (sect. 151 ) the Queen's Majesty. {V) By the late act of 5 & G Vict. See post, p. 25!i. c.lO!i,archbiHhoi)HandbishopH,amongst (J) 11 Co. 75, b. Ch. I.S. IV.] WHO lessors: ECCLESIAST: COllPORATlONS. 211 The restrictions of the statute of 1 Eliz. c. 19, which appUed, as we have seen, to archbishops and bishops only, were ex- tended by 13 Eliz. c. 10 (m) to masters and fellows of col- leges, deans and chapters of cathedral or collegiate churches, masters or guardians of hospitals, parsons, vicars, or any others ha\dng any spiritual or ecclesiastical living, who were thereby restrained from leasing lands, &c., parcel of the possessions of such college, &c., " other than for the term of one-and-t\v^enty years or three lives, from the time as any such lease or grant should be made or granted, whereupon the accustomed yearly rent or more should be reserved, and payable yearly during the term." As this act contains no exception in favor of the Queen, leases made to the crown in contravention of its provisions, unless sav'ed by any of the enabling acts after mentioned, are as inoperative as leases to common persons [n) . The statute of 13 Eliz. c. 10, is not to be construed as making good any lease by any such college or collegiate church within the universities of Oxford or Cambridge, or elsewhere within the realm of England, for more years than are hmited by the private statutes of the same college (o) . The words " master or guardian of any hospital,'^ mentioned in the act of 13 Eliz. c. 10, s. 3, were afterwards declared [p) to be intended and meant of all hospitals, maisons dieu, bead- houses, and other houses ordained for the sustentation or relief of the poor, and to be so expounded, declared, and taken for ever. The act, indeed, has always been construed beneficially to prevent all inventions and evasions against its true intention {q) ; and whether the college be incorporated by the name of "master and fellows," or by the name of "warden and fellows," or "warden and scholars," or "warden, fellows, (m) 13 Eliz. c. 10. sect. 3. disabled by the act of 13 Eliz. c. 10. (n) Case of Ecclesiastical persons, See 5 Co. 15, b. 11 Co. 76, a. 6 Co. 14, a. Magdalen College case, (o) Sect. 4. 11 Co. 72, b. The general words of (i?) 14 Eliz. c. 14. the act of 18 Eliz. c. 11, did not enable (r/) 5 Co. 14, b. 11 Co. 76, a. Palm, such ecclesiastical persons to make 216. leases or estates to the crown as weie AOL. I, R 242 OF THE CONTRACTING PARTIES. [Part III. and scholars/' or " master, fellows, and scholars/' or " master and scholars/' or " provost, fellows, and scholars,'^ or by any other name of corporation, and whether it be temporal, as for the advancement of the liberal arts and sciences, or for the education of youth in good literatiu'e, or ecclesiastical, or mixed, is immaterial, for every such college is within the provision of the act : and, in Hke manner, the words " masters or guardians of hosj)itals,'' mentioned in the act, extend to every kind of hospital, whether it be incorporated by any other name, or be a sole corporation, or a corporation aggi'egate of many (r). And it has lately been held {s), that the recitals in the act of 13 Eliz. o. 10, do not limit the force of the subsequent enactment to cases in which the mischief by the alienation is done to the personal interest of the successor of the alienor; it being evident from the enactment that the legislature intended to apply the prohibition to the case of persons who were seised either as mere trustees, or in a great measure as trustees, and, among other persons, to the master or guardian of a hospital. In the succeeding year (/), it was deemed expedient to remove the restriction as to leases of any houses belonging to the persons or bodies politic or corporate mentioned in the act of 13 Eliz. c. 10, and any grounds to such houses apper- taining, where the houses were situate in any city, borough, toAvn corporate, or market town, or the suburbs of any of them ; the object of the legislature being to render those places more populous {u) ; and it was declared, that all such houses and gi'ounds might be demised, as by the laws of the realm, and the several statutes of the said colleges, cathe- dral churches, and hospitals, they lawfully might have been before the making of the statute of the 13tli of Eliz., or lawfully might have been if the said statute were not ; so tliat such house should not be the capital or dwelling-house (r) ] 1 Co. 7G, a. The Attorney- (.v) Dean and Chapter of York v. General v. Glyn, 1 2 Sim. 84. 87. Dean Middkborongh, sup. and Chapter of York V. Middleborough, ('.) 14Ehz. e. 11. Crane t'. Taylor, 2 Yo. & .lerv. 1 »G. Grumhrell v. Hob. 2Gf). Hciptr, .", liani. & AM. 711. ()') Per Twisdcn, J., 1 Vent. 245. Ch. I. s. iV.] WHO LESSORS: ECCLESIAST: CORPORATIONS. 243 used for the habitation of the persons therein aforesaid, nor have ground to the same belonging above the quantity of ten acres ; and provided () Sect. 19. Leon. 188. Denied to be law, 1 Vent. (q) Hunt V. Singleton, Ci'o. Eliz. 246; and per Holt, in Winter v. Lovc- 47.3. .064 ; cited, 3 Co. GO, a. Bayly den, 1 Ld. Rayni. iO'fl. V. Munday, 2 Lev. Gl; S. C, nom. (s) Crane v. T.aylor, Hob. 2GJ). 3 liayly v. Murin, 1 Vent. 244; S. C, Keb. 110. Horn. IJaily v. Munne, Mum, and Man, (/) Sect. 2. :'. K(,b. 4G. 107. 193. (m) Wilson dcni. Eyre v. Carter, 2 (r) Thompson V. Trafford, Po])li. it ; Stra. 1201. Grumbroll v. Roper, 3 S. C, nom. Tompson v. Tratt'ord, 2 Barn. & Aid. 711. Ch. I. s. IV.] WHO lessors: — ecclesiast: coupokations. 247 required by that act being in most respects applicable to demises by virtue of tlie statutes of Elizabeth {x) . With regard to the term allowed to be granted, the dis- tinction taken in Whitlock's case {y), between a particular power afiii'mative, and a general power restrained by a nega- tive_, has occasioned a difference in the construction of the enabling statute of 32 Hen. 8, and the restraining statutes of 1 Eliz. c. 19, and 13 Eliz. c. 10. The statute of Henry the 8th, as before noticed {z), by conferring a general power of leasing, with a subsequent clause of restraint, appears to warrant a lease for ninety-nine years determinable on lives ; but it is otherwise with the acts of Elizabeth, which avoid all leases by the persons mentioned, other than for the term of twenty-one years or three lives. A lease, therefore, for ninety-nine years determinable on lives, being neither for twenty-one years, nor tliree lives, is nullified by the first part of the clause, without being saved by the exception in the latter part («). Although the acts declare that leases other than for twenty-one years or three lives shall be void, a lease may be granted for any term within the extreme period, as for twenty years, or for two Kves {b) . Leases rendering the lessee unimpeachable for waste are within the intent and equity of the statutes of 1 and 13 Eliz., notwithstanding their silence as to waste. The object of the statute was to guard against unreasonable leases ', and it is clearly unreasonable that a tenant should at his pleasure commit waste and destruction (c). Doubts having arisen whether archbishops or bishops, masters and fellows, or any other head and members of colleges, or halls, deans and chapters, precentors, prebenda- ries, masters and guardians of hospitals, or other persons ha\'ing any spiritual or ecclesiastical promotions, had power to make leases of tithes or other incorporeal hereditaments only (.r) Co. Lit. 44, b. 45, a. Mon'ice («) Bac. Ab. Leases, (E) iiile, 4. V. Antrobus, Hardr. 325. (h) Carter v. Claycole, 1 Leon. 306. (y) Whitlock's ease, 8 Co. 69, b. (c) Co. Lit. 45, a. Dean and Chap- 70, b. tcr of Worcester's case, 6 Co. 37, a. {:) Ante, p. 75. Palm. 468. 248 OF THE CONTRACTING PARTIES. [Part III, which lay in grant, and not in livery, for one, two, or tliree^ lives, or for any term or terms of years not exceeding twenty- one years, although the ancient rent should be reserved, and all other requisites prescribed by the acts then in being to that end observed, by reason of there being, generally, no place wherein a distress could be had for such rent ; and also whether in cases of such leases for life or Hves there was any remedy in law for such ecclesiastical or other persons by action of debt or otherwise for recovering the rent reserved on such leases for life or lives, an act was passed in the reign of George the 3rd (d) for ob^dating all doubts touching the same, and enabling the said archbishops and bishops and others above mentioned to make vahd leases of such their incorporeal hereditaments, and to recover the rents reserved on any leases by them then already granted, or to be granted, for one, two, or three lives, and also to make good and effectual all such leases as had then already been granted by them, or any of them; and it was enacted, that all leases for one, two, or three, life or lives, or any term not exceeding twenty-one j'cars, then already made, or which should there- after be made, of any tithes, tolls, or other incorporeal hereditaments, solely, and without any lands or corporeal hereditaments, by any archbishop or bishop, &c., and every other person and persons who were enabled by the several statutes then in being, or any of them, to make any lease for one, two, or three, life or lives, or any term or number of years not exceeding twenty-one years, of any lands, tenements, or other coi-poreal hereditaments, should be as good against such archbishop and other persons granting the same, and their successors, as any lease then already made, or to be made, by any such archbishop and other persons having spiritual promotion, of any lands or other corporeal heredita- ments then was by virtue of the statute of 32 Hen. 8. c. 28, or any other statute then in being. The second section provided, that nothing in the act con- tained should extend to enable any master and fellows, or {(I) .') Geo. o. c. 17. Ch. 1. s. IV.] WHO lessors: — ecclesiast: corporations. 249 other head and members of colleges or halls, deans and chapters, precentors, prebendaries, masters and guardians of hospitals, or other ecclesiastical persons as therein aforesaid, to grant leases for any longer or other terms than by the local statutes of their several foundations they were respect- ively entitled to do. And the 3rd section enacted, that, in case the rent reserved by any lease then already made, or to be made, by any arch- bishop, and every other person and persons so enabled to make leases for one, two, or three, life or lives, or years, in pursuance of the several acts of parliament then ah'eady in being, or by the act under consideration, or any part thereof, should be unpaid by the space of twenty-eight days after any of the days whereon the same should be reserved, it should be lawful for such archbishop, and other persons so making such leases, or their executors, administrators, and successors respectively, to bring an action of debt against the lessee, his heirs, executors, administrators, or assigns, for recovering the rent which should then be in arrear to any such arch- bishop and other person or persons before mentioned, his or their executors, administrators, or successors, in the same manner and as effectually as any lessor or other person or persons might do for recovering of arrears of rent due on any lease for life or lives or years by the laws then in being. In a few years afterwards, it was enacted (e), that no rector or tithe-owner, in right of his rectory, vicarage, or curacy, or the lessee of either of them respectively, who should agree for or let his tithes of common field lands during the term of six years, or any part thereof, by \irtue of the act under notice, (13 Geo. 3. c. 81,) should receive any fine, foregift, gratuity, or compensation whatever, other than by half-yearly or yearly payments (/). The general inclosure act {g) enabled (/?) the rector or (e) 13 Geo. 3. c. 81, entitled "An pasture, in this kingdom." Act for the better cultivation, improve- (/) Sect. 23. ment, and regulation of the common {g) 41 Geo. 3. c. IdH. arable fields, washes, and commons of (h) Sect. 38. 250 OV THE CONTRACTING PARTIES. [Part III. vicar for the time being of any parish wherein lands in- tended to be inclosed should be situate, by indenture under his hand and seal, with the consent and approbation of the bishop of the diocese, and of the patron of the rectory or vicarage, to lease the land allotted to such rector or \icar by \ii'tue of the act, for any term not exceeding twenty-one years, to commence within twelve calendar months next after the executing the award ; so that the rent for the same should be reserved to the rector or vicar for the time being, by foiu' equal quarterly payments in every year ; and so that there should be also reserved and made payable to such rector or vicar the best and most improved rent that could reason- ably be had or gotten for the same, without taking any fine, foregift, premium, sum of money, or other consideration, for the making or granting any such lease ; and so that no such lessee by any such lease should be made dispunishable for waste by any express words to be therein contained; and so that there should be inserted in every such lease power of re-entry on non-payment of the rent thereby reserved, within a reasonable time to be therein limited, after the same should become due ; and so that a counterpart of such lease should be duly executed by the lessee. And the like provision is contained in the 31st section of the later act of 6 & 7 W. 4 (i). Whenever any lease granted by any rector, vicar, or other incumbent, under the powers or provisions of the act above noticed (k), by any means becomes forfeited or void, or is surrendered, before the expiration by effluxion of time of the term thereby granted, the rector, vicar, or other incumbent, for the time being is empowered (/), with the previous consent of the ordinary and patron, to grant a new lease of the lands so demised, for such term of years as shall, at the time of such avoidance, be unexpired of the original term, subject never- (/■) fi & 7 W. 4. c. 1 1.5, entitled "An (/■) 41 Geo. 3. c. 109. Act fur fiicilitatiiis tlio iiiclosurc of (/) 1 & 2 Geo. 4. c. 23. s. 4. And ojif-n and :ir;iMc fields in ICnj^land and see (i VV. 4. c. 20. k. 7. Wales." i Ch. I. S. IV.] WHO lessors: ECCLESIAST: CORPORATIONS. 251 tlieless to the provisions and conditions contained in such original lease, and then remaining unperformed and capable of having effect. In the reign of William the 4th, it was found expedient, with a view to ulterior alterations, to impose certain restric- tions on the renewal of leases by ecclesiastical persons, and it was provided (m), that, after the passing of the act, no arch- bishop, or bishop, ecclesiastical corporation sole or aggregate, dignitary, canon, or prebendary, or other spiritual person, nor any master or guardian of any hospital, should grant any new lease of any house, land, tithes, or other hereditaments, parcel of the possessions of his or their see, chapter, dignity, canonry, prebend, benefice, or hospital, by way of renewal of any lease which should have been previously granted of the same for two or more lives, until one or more of the persons for whose lives such lease should have been so made should die, and then only for the surviving lives or life and for such new life or lives as together with the life or lives of such sur- vivor or survivors should make up the number of lives, not exceeding three in the whole, for which such lease should have been so made as thereinbefore mentioned; and that, where any such lease should have been granted for forty years, no such archbishop, bishop, &c., should grant any new lease by way of renewal of the same, until fourteen years of such lease should have expired ; and that, where any such lease should have been made for thirty years, no such arch- bishop, bishop, &c., should grant any new lease by way of renewal of the same, until ten years of such lease should have expired ; and where any such lease should have been granted for twenty-one years, no such archbishop, bishop, &c., should grant any new lease by way of renewal of the same, or (in the case of archbishops or bishops) concurrently therewith, until seven years of such lease should have expu'cd ; and that, where any such lease should have been granted for years, no such archbishop, bishop, &c., should grant any lease by way of (ill,) 6 W. 4. c. 20. s. 1, which ivccivcd the royal asbeiit June "21, looO". 252 OF THE CONTRACTING PARTIES. [Part III. renewal of the same, or otlierwise, for any life or lives, any law, statute, or custom, to the contrary notwithstanding. It was further enacted {n), that whenever any archbishop, bishop, &c., should thereafter grant any renewed lease, such lease should contain a recital or statement, in the case of a lease for lives, setting forth the names of the several persons named as cestuis que vie in the then last preceding lease of the same premises, and stating which of such persons, if any, should be then dead, or for whose life that of some other person had been exchanged by virtue of the proviso thereinafter contained ; and in case of a lease for years, setting forth for what term of years the then last preceding lease of the same premises was granted, and hoAv much of such term had then expired, and how much remained to come and unexpired; and (o) that every such recital or statement should, so far as should relate to the validity of the lease so to be granted, be deemed and taken to be conclusive evidence of the truth of the matter so recited or stated. The third section declared, that every person executing any such lease or any counterpart thereof, knowing such recital or statement to be false, or wilfully introducing, or aiding or assisting in introducing, any such recital or statement into any such lease, knowing the same to be false, or preparing or ingrossing any lease or counterpart of a lease containing any such false recital or statement, knowing the same to be false, should be deemed guilty of a misdemeanor, and should, in addition to any punishment to which he might be liable, forfeit to any person suing for the same the sum of 500/., or, at the option of such person, five years' improved annual value of the hereditaments comprised in such lease. It was provided, however (/?), that where it should be certi- fied, in manner thereinafter mentioned, that for ten years preceding the passing of the act it had been the usual practice (such practice having in the case of a corporation sole commenced prior to the time of the person for the time (ii) Sect. 2. ('>) Tlic word (uui w not in tlie act. (^i) Sect. 4. ( u. I. s. IV.] WHO lessors: — ecclesiast: corpohatioxs. 253 being representing such corporation) to renew such leases for forty, thirty, or twenty-one years respectively, at shorter periods than fourteen, ten, or seven years respectively, nothing in the act contained should prevent any archbishop, bishop, &c., from granting a renewed lease conformably to such usual practice ; provided that such usual practice should be made to appear to the satisfaction of the archbishop of the province^ in the case of a lease granted by such archbishop, or by a bishop, and, in the case of a lease granted by any other corporation or person, to the satisfaction of such arch- bishop and also of the bishop having jurisdiction over such corporation or person, and should before the granting of such lease be certified in wi'iting under the hand of the archbishop in the one case, and of the archbishop and bishop in the other case; the certificate so signed by an archbishop only to be afterwards deposited in the registiy of such archbishop, and the certificate so signed by an archbishop and also by a bishop to be afterwards deposited in the registry of such bishop ; which certificate it was declared should be conclusive evidence of the facts thereby certified. It was also enacted [q), that nothing in the act contained should prevent any archbishop, bishop, &c., from exchanging any life or lives in being for which any lease should have been granted, and accordingly granting any renewed lease with a view to effectuate such exchange of a life or lives ; provided that the same should be approved of (in the case of an archbishop) by his majesty in council, or (in the case of a bishop) by the archbishop of the province, or (in the case of any inferior corporation or person) by the archbishop of the province and bishop of the diocese, such approbation, when required to be given by his majesty in council, to be testified by the president of the council certifying on the renewed lease to be granted such approbation, and in all other cases to be testified by the person or persons whose approval was thereby required certifying on such renewed lease his or their approbation of the same. (7) Sect. 5. 254 OF THE CONTRACTING PARTIES. [Part III. It was also enacted (r), tliat nothing in the act contained should prevent any grants or renewals of leases which might have been authorised by acts of parliament specially relating to the particular estates demised by such leases. And further (s), that nothing in the act contained should prevent a lease from being granted with a view to confirm any title or otherwise for the life or lives of the same person or persons, or for the lives or life of the survivors or survivor of them, or for the same term of years, and commencing at the same period, as the lease last granted for a life or lives, or a term of years respectively. It was further enacted (t), that every lease contrary to the act gi^anted since the first day of March, 1836, or which should be granted after the passing of the act, should be void to all intents and purposes whatsoever; provided that nothing in the act contained should be deemed to affect any lease granted or to be granted pursuant to any covenant or agree- ment entered into previously to the 1st day of March, 1836. The restrictions, however, imposed by this act have lately been somewhat relaxed by an act {u) for enabling ecclesias- tical corporations aggregate and sole (with some few excep- tions) to grant leases for long terms of years for the pur- poses of building and improvement, the fifth section of which empowers the corporations therein mentioned, with the consent thereby required, to confirm any lease, grant, or general deed, purporting to have been granted or made under the authority of the act, in any case in which for some technical error, informality, or irregularity in exercising the powers of the act, such lease, grant, or deed, shall be void- able or questionable, or to accept an actual or virtual sur- render of any lease or grant which shall have been made and executed, or which shall purport to have been made and executed, by virtue of the act ; and so far as regards any mines, minerals, quarries, or beds, watercoiu-scs, ways, (r) Sect. a. (w) 5 & fi Vict. c. ion, the provi- («) Sect. 7. isions of wliich arc set out at length, (0 Sect. 9. post, p. 260. Cii. I. s. iv.j AVHO lessors: — ecclesiast: corporations. 255 or other easements, which may be comprised in any such surrendered lease or grant, with such consent as thereinafter mentioned, to make any new lease or grant thereof in the same manner from time to time as if the powers of leasing therein contained had not been previously exercised ; and so far as regards any lands and houses comprised in any such sur- rendered lease which may have been granted for building or repairing purposes, in any case where, at the time when such surrender shall be accepted, one fourth part or more than one fourth part of the term originally granted shall remain unexpired, with such consent as therein mentioned, to make a new lease, or several apportioned leases, of the lands and houses comprised in such surrendered lease, for any time not exceeding the then residue of the term g-ranted, or men- tioned or intended to be granted, by such surrendered lease ; and so far as regards any lands and houses comprised in any such surrendered lease which may have been granted for building or repairing purposes, in any case where, at the time when such surrender shall be accepted, less than one fourth part of the term originally granted shall remain unexpired, with such consent as therein aforesaid, to make any new lease or grant thereof, in the same manner as far as may be applicable, as if the powers of leasing therein con- tained had not been exercised. And the 16th section declares, that any lease or leases may be granted under the powers of the act, on the surrender of any existing lease or leases which shall not have been granted under the provisions of the act, of all or any part of the premises proposed to be comprised in such new lease or leases, and may be granted either to the person or per- sons surrendering the existing lease or leases, or to any other person or persons whomsoever ; and each holder of any exist- ing lease or leases granted otherwise than under the provi- sions of the act, of any lands or houses, or of any mines, minerals, quarries, or beds, which, if not in lease, would be capable of being leased under the powers of the act, is thereby authorised to surrender such lease or leases with a 256 OF THE CONTRACTING PARTIES. [Part IIF. ^iew to the granting of a new lease or several new leases thereof, or of any part thereof, under the powers of the aet^ whether at the time of making such surrender the period at which such existing lease or leases may be legally or accus- tomably renewable shall or shall not have arrived. Doubts ha\iug been entertained on the 2nd section of the act of 6 W. 4. c. 20, as to the validity of leases granted since the 1st of March, 1836, or to be thereafter granted by any archbishop, bishop, &c., and not containing such recital as was thereby required, it was shortly afterwards enacted {v), that no lease granted or to be thereafter granted by any archbishop, bishop, &c., should be deemed to be void under the pro^dsions of the act of 6 W. 4, c. 20, by reason only of its not containing such recital or statement as therein mentioned ; provided that whenever any archbishop, bishop, &c., should thereafter grant any such renewed lease, and such lease should contain such recital or statement as in the act is mentioned, every such recital or statement should, so far as should relate to the validity of the lease so to be granted, be deemed to be conclusive evidence of the truth of the matter so recited. By a late act (/) Sect. 2(;. Cn. I. s. IV.] WHO LESSORS : — ecclesiast: corporations. 257 to convey the said land in fee-simple for such price as shall appear to the said commissioners to be the fall value thereof ; provided that the rent in the former case, or the purchase- money in the latter case, after reserving to the bishop or chapter, as the case may be, an annual payment, equal to the amount theretofore enjoyed in respect of the land so let or sold, shall be wholly applied to the purposes of the said act, the consent of the said commissioners being in all cases necessary to the particular application thereof; provided also, that, if it be deemed expedient with a view to the better effecting of sucb purposes, such rent or purchase-money, or any part thereof, may, with the like consent, be at any time reinvested in the purchase of land. Additional facilities have been conferred on the ecclesias- tical body by two acts of parliament passed in the present reign, the former of which (z) enables incumbents of eccle- siastical benefices to demise the lands belonging to their be- nefices on farming leases ; the latter [a] enables ecclesiastical corporations aggi'egate and sole, with some few exceptions, to grant leases for long terms of years for the purposes of building or improvement. But as the conditions connected with the exercise of the power are numerous and particular, it is necessary to state them in detail. By the former of these acts, after reciting that it would be advantageous to ecclesiastical benefices if the incumbents thereof were empowered, with such consent and under such restrictions as thereinafter expressed, to demise the lands of or belonging to the same for a term of years certain, for firming purposes, it was enacted [b), that it shall be lawful for the incumbent for the time being of any benefice, (the term "benefice" comprehending (c) every rectory, vicarage, perpetual curacy, donative, endowed public chapel, parochial chapelry, and district chapelry, the incumbent of which in right thereof shall be a corporation sole,) from time to time, by deed under his hand and seal, with the consent of the patron (2) 5 Vict. sess. 2. c. 27. (6) Sect. 1. («) 5 & 6 Vict. c. 108. (c) Sect. 15. VOL. I. S 258 or THE CONTRACTING PARTIES. [Tart 111. of sucli benefice^ and of the bishop of the diocese wherein the same is locally situated ; and, where the lands proposed to be leased are of copyhold or customary tenure^ with the consent also of the lord for the time being of the manor of which the same are holden, in any case where the lease proposed to be granted cannot according to the custom of the manor be effectually made without the license of the lord; such re- spective consents to be testified by the persons whose con- sents are by the act required respectively being parties to, and signing and sealing, such deeds before the execution thereof by such incumbent, to lease any part of the glebe lands or other lands of or belonging to such benefice, either with or without any farm-houses^ cottages, barns, or other agricultui-al build- ings or conveniences, parcel of or belonging to such benefice, to any person whomsoever {d), for any term of years not exceeding fourteen years, to take effect in possession, and not in reversion or by way of future interest ; so that there be reserved on every such lease, payable to the incumbent for the time being of such benefice, quarterly in every year during the continuance of the term thereby granted, the best and most improved yearly rent that can be reasonably gotten for the same, without taking any fine, foregift, premium, or other consideration, for granting such lease ; and so that no such lessee be made dispunishable for waste by any clause or words to be contained in such lease ; and so that the lessee do thereby covenant with the incumbent granting such lease, and his successors, for due payment of the rent thereby to be reserved, and of all taxes, charges, rates, assessments, and impositions whatsoever, payable in respect of the premises leased ; that he will not assign or underlet the hereditaments comprised in such lease, or any part thereof, for all or any part of tlie term thereby granted, without the consent of the bishop of the diocese for the time being, and tlic patron and incumbent for the time being of the said benefice, to be tes- tified l)y their respectively being parties to, and sealing and ('/) The word " person " being eon- and any corporation aggregate or sole, Btriied to incliule tlio Queen's Maje.sty, as well as a private individual; Sect. 15. Ch. I. s. IV.] WHO lessors: — ecclesiast: corporations. 259 delivering, the deed or instrument by which any assignment or underlease of the same premises, or any part thereof, may be effected; and that he will in all respects cultivate and manage the lands and hereditaments thereby leased according to the most improved system of husbandry in that part of tlie country where such lands and hereditaments are locally situ- ated, so far as such system may not be inconsistent with any express stipulation to be contained in such lease ; and that he will keep, and at the end of the term leave, all the lands comprised in such lease, together with the gates, drams, and fences of every description, and other fixtures and things thereupon or belonging thereto, in good and substantial repair and condition ; and that he will at all times diu-ing the continuance of the term keep the buildings comprised in such lease, or to be erected during the term upon the lands thereby demised, or on any part thereof, insured against damage by fire, in the joint names of the lessee, his executors or admi- nistrators, and of the incumbent of the benefice for the time being, in tliree-fourths at the least of the value thereof; and that he will lay out the money to be received by virtue of any sucli insurance, and all such other sums of money as shall be necessary, in substantially rebuilding, repairing, and rein- stating, under the direction of a surveyor to be for that purpose appointed by the incumbent of such benefice for the time being and such lessee, by some writing under their respective hands, such messuages or buildings as shall be destroyed or damaged by fire ; and so that there be inserted in every such lease a reservation, for the use of such incum- bent and his successors, of all timber trees and trees likely to become timber, and of all saplings and underwoods, and of all mines and minerals, except as is after in the act pro- vided (e) ; and also a power of re-entry in case the rent thereby to be reserved shall be unpaid for the space of twenty-one days next after the same shall become due, or in case the lessee shall be convicted of felony, or shall (c) Post, p. 260. 260 OP THE CONTRACTING PARTIES. [Part III. become a bankrupt, or shall take the benefit of any act or acts of parliament in force or after to l)e passed for the relief of insolvent debtors, or shall compound his debts, or assign over his estate and effects for payment thereof, or in case any execution shall issue against him or his effects, or in case siich lessee shall not from time to time duly observe and perform all the covenants and agreements on his part in such lease to be contained ; and so that the lessee in each such lease do execute the same or a coun- terpart thereof : Provided always, that any stipulation, covenant, condition, or agreement, in any such lease to be contained, on the part of the lessee, for the adoption and use of any particular mode or system of cultivation, or for the drainage, or subdividing, or embanking, or warping, (in those places where the system of improvement of land called "warping" is or may be practised,) of all or any of the lands comprised in such lease, or for the erection of any new or additional farm-houses, barns, or outhouses, or other farm-buildings, which the condition or local situation of the lands to be comprised in such lease may requii*e or render expedient, or for putting in repair any houses, edifices, or buildings, to be comprised in any such lease, or for making any substantial improvements on the premises, or for the reservation or payment of any additional rent or rents, or penalty, on breach of any of the covenants or agreements contained in any such lease, shall not be deemed to be a fine, foregift, premium, or consideration for the granting of such leases within the meaning of the act : Provided also, that nothing therein contained shall be construed to preclude the lessor in any such lease from covenanting that the lessee shall be entitled to have or take from ofi' the demised pre- mises, brick earth, stone, lime, or other materials, for the erection or repair of any buildings, or for the coustruction or rej)air of drains, or for any other necessary improvements, and sufficient rough timber, to be assigned bj^ the incumbent for th(! time being, or his agent duly authorised, for any of the purposes l)eforc mentioned, and for the making or repair of Ch. I. s. IV.] WHO lessors: — ecclesiast: corporations. 261 gates and fences : Pro\'idcd also, that the custom of the country as to outgoing tenants shall apply to each lease to be granted under the act, except so far as the lease shall contain any express stipulation to the contrary : Provided also, that the term to be granted by any such lease may be twenty years in any case Avhere the lessee shall covenant thereby to adopt and use any mode or system of cultivation more expensive than the usual course, or to drain and sub- divide, or embank and wai-p, at his expense, any part of the demised premises, or to erect, at his own expense, on the premises, any buildings, or to repair in a more extensive manner, and at a greater expense, than is usually required of lessees of farms, any buildings on the demised premises, or in any other manner to improve, at his expense, the demised premises or any part thereof. The authority given by the act is not to render valid any lease, unless the parsonage-house, or other the house of resi- dence belonging to the benefice, and all offices, outbuildings, yards, gardens, orchards, and plantations, to such parsonage- house, or other house of residence, adjoining and appurtenant, and which may be necessary or convenient for actual occupa- tion with such parsonage-house, or other house of residence, and also so much glebe land or other land of or belonging to the benefice, and situated the most conveniently for actual occupation by the incumbent, as, together with the site of such parsonage-house, or other house of residence, offices, and outbuildings, and with such yards, gardens, orchards, and plantations, shall amount to ten acres at least, if there shall be ten or more acres of such land situated within five miles from the pai'sonage, or other the house of residence, or if there shall be less than ten acres so situated, then the whole of such land, shall be reserved out of, or not be comprised in, such lease, and not be compi-ised in any subsisting lease for the time being which shall have been previously granted under the authority of the act : but in any case where the lands comprised in any lease so granted shall be situate five miles or vipwards from the parsonage-house, or other the 2CyZ OF THE CONTRACTING PARTIES. [Part III. house of residence^ or (in case there shall be no parsonage house or other house of residence) from the church or chapel of the benefice to which such lands shall belong, the provi- sion for the reservation of a stipulated number of acres of the glebe land, or other land, of or belonging to the benefice is not to be applicable (/). ^Tienever a lease is intended to be granted under the authority of this act, a competent land-surveyor is to be appointed by the bishop of the diocese, and the patron and incumbent of the benefice, by writing under their hands ; and such surveyor is to make a map or plan under an actual sur- vey of the lands proposed to be leased, and of the other lands belonging to the benefice, or of such part or parts of the said other lands as will sufficiently show to the bishop and patron the relative positions or local situations and quantities of the lands proposed to be leased, and of the lands (if any) intended to be reserved, and as will enable them to form an accurate judgment of the situation and convenience for actual occupa- tion of the lands intended to be reserved ; and the surveyor is to certify that the lands intended to be leased, and such buildings and other hereditaments (if any) intended to be leased therewith, are proper to be leased, and (in any case where the provision respecting the reservation of a stipulated number of acres may be applicable) that the lands intended to remain unlet are such part of the glebe land, or other land, belonging to the benefice, as is situated the most conveniently for actual occupation by the incumbent thereof; and the sur- veyor is also to make a valuation on actual survey of the lands and hereditaments proposed to be leased, and report what is the best yearly rent which ought to be reserved under the cir- cumstances, and to state the course of husbandly or manage- ment which ought in his opinion to be adopted by the tenant; and in any case where it is proposed that the lease shall con- tain special covenants on tlic part of the lessee for the drain- age, or subdividing, or embanking, or warping, of all or any (>)■ Uu; lands to be comprised in the lease, or for the erection (./•) Sect. 2. Cii. I. s. IV.] WHO lessors: — ecclesiast: coRroitATioNS. 2C3 of any new or additional farm-houses, barns, or outhouses, or other farm-buiklings, or for putting in repair any houses, edifices, or buildings, to be comprised in the lease, or for making any substantial improvement in the premises, the surveyor is to certify that in his opinion the covenants for those purposes are proper covenants to be entered into by the lessee under the circumstances of the case; and he is to state the amount by which the yearly rent ought in his judg- ment to be diminished in respect of the lessee entering into such covenants ; and in any case where it is proposed that the lessee shall be entitled to have from off the demised pre- mises brick earth, stones, lime, or other materials, or rough timber, he is also to certify that in his opinion the covenants on the part of the lessor for those purposes are proper to be entered into, and that he has taken the matter into his con- sideration in estimating the amount of rent to be reserved ; and such surveyor is in all cases also to report upon and state such other matters or things (if any) connected with such intended lease as he shall, by such bishop, patron, and incumbent, or any of them, be directed to report upon ; and the map, or plan, certificate, valuation, and report of the sur- veyor, are to be signed by him, and verified by his declaration to be made before any justice of the peace, and immediately upon the completion thereof respectively are to be delivered to the bishop. In all cases, however, in which there shall be in the possession of the bishop, or of the patron or incum- bent, or of the parish ofiicers of the parish in which such benefice may be comprised, any map or plan made under an actual survey of the parish, or of such part thereof as shall include the lands proposed to be demised, a copy of, or an extract from, such map or plan may be substituted for the map or plan by the act directed to be made by any such surveyor {(/). The receipt in writing of the incumbent by whom the lease shall be granted, acknowledging the receipt of the counter- part, or an attested copy where there shall be only one part (i/) Sect. 3. 2<34 OF THE CONTRACTING PARTIES. [Part III. of sucli lease, and signed by the incumbent, and indorsed on the lease, is to be conclusive evidence that the counterpart or lease (as the case may be) has been duly executed by the lessee, and also, where there shall be only one part of such lease, that the attested copy is a true and faithful transcript of the original lease ; and the execution of the lease by the bishop and patron, whose consents are made requisite, is to be conclusive evidence that the lease does not comprise any lands which ought not to be leased, and that a proper portion of the glebe land remains unleased, and that the rent reserved is the best and most improved rent that could be reasonably gotten at the time of granting the lease, and that all the covenants contained in the lease are proper covenants {h). No surrender of any lease which shall be made under the authority of the act is to be valid to any purpose whatsoever unless the bishop and the patron and incumbent respectively be made parties to and execute the deed or instrument by which such surrender shall be made ; and every such sui'render is to have operation from the time only when such deed or instrument shall have been executed by all the persons Avhose execution thereof is required (?') . All the powers, authorities, and duties, by the act given to, or imposed upon, the bishop of any diocese are, with respect to the several peculiars locally situated within such diocese, to be exercised and performed by the archbishop or bishop to whom such peculiars may respectively belong, and not by the Ijishop within whose diocese such peculiar shall be locally situated; but, with respect to all peculiars belonging to any other person than archbishops or bishops, such powers, authorities, and duties, are to be exercised and performed by tlje bishop of the diocese within which such peculiars shall be locally situate (k). Wlicnever the consent of the patron of the benefice, or of til.; loid ()(■ tin; manor, is retpiired, and the patron or the lord (ius the case may be) sludl be a minor, idiot, lunatic, or feme (h) Sect. 4. (/) Sect. .5. (k) Sect. 6. Ch. I. s. IV.] wuo lessors: — ecclesiast: coRroiiATioNS. 265 covertj or beyond seas, the guardian, committee, husband, or attorney, (as the case may be,) of such patron or lord (but in the case of a feme covert, not being a minor, idiot; or lunatic, or beyond seas, with her consent in writing,) may execute the instrument by which such consent is to be testified, in testi- mony of the consent of such patron or lord ; and such execu- tion is, for the purposes of the act, to be deemed to be an execution by the patron or by the lord (as the case may be) (/). Where the consent of the patron is required, and the patronage of the benefice shall be in the crown, the consent of the crown is to be thus testified : — if the benefice shall be above the yearly value of 20/. in the King^s books, the instrument by which such consent shall be testified is to be executed by the lord high treasurer, or first lord commis- sioner of the treasury, for the time being ; and if such benefice shall not exceed the yearly value of 20/. in the King's books, such instrument is to be executed by the lord chancellor, or lord keeper, or lords commissioners of the great seal, for the time being; and if such benefice shall be within the patronage of the crown in right of the duchy of Lancaster, such instru- ment is to be executed by the chancellor of the duchy for the time being; and the execution of such instrument by such person or persons is to be deemed, for the purposes of the act, to be an execution by the patron of the benefice (m) . Where the consent of the patron is required, and the right of patronage shall be part of the possessions of the duchy of Cornwall, the consent of the patron is to be thus testified : — ■ the instrument by which such consent is to be testified shall, whenever there shall be a duke of Cornwall, whether he be of full age, or otherwise, be under his great or privy seal; or if there be no duke of Cornwall, and such benefice shall be in the patronage of the crown in right of the duchy of Corn- wall, such instrument is to be execvited by the person or persons authorised to testify the consent of the crown ; and such instrument, being so sealed or executed, is to be deemed, (J) Sect. 7. (fli) Sect. 8. 266 OP THE CONTRACTING PARTIES. [Part 111. for the purposes of the act^ to be an execution by the patron of the benefice (w). Where the consent of the patron, or of the lord of the manor, is required, and the patronage of the benefice, or (as the case may be) the lordship of the manor, shall belong to any dean and chapter, or collegiate or other corporate body having a common seal, the consent of such dean and chapter, or collegiate or other corporate body, is to be testified by the seahng of the instrument by which such consent is to be testified Avith the common seal of such dean and chapter, collegiate or other corporate body (o). The person or persons (if not more than two), or the majority of the persons (if more than two), or the corpora- tion, who or which would for the time being be entitled to the turn or right of presentation to any benefice if the same were then vacant, are to be considered to be the patron thereof: provided, that, in case of the patronage being exer- cised alternately by different patrons, the person or persons (if not more than two), or the majority of the persons (if more than two), or the corporation who or which would for the time being be entitled to the second tm'n or right of presentation to any benefice, if the same were then vacant, shall, for the purposes of the act, jointly with the person or persons or corporation entitled to the first turn or right of presentation, be considered to be the patron thereof (ja). Whenever any person shall sustain any more than one of the characters of bishop, patron, lord of the manor, and incumbent, in respect of any benefice to which the provisions of the act extend, every such person shall or may at any time act in both or all of the characters which he shall so sustain, and execute and do all such deeds and acts as are by the act authorised to be executed and done, as efi'ectually as diff'crcnt persons, each sustaining one of those characters, could execute and do tlic same {q) . Whenever any lands or hereditaments proposed to be (/i) Sect. D. (o) Sect. 10. (p) Soct. 11. (q) Sect. 12. Ch. I. s. IV.] WHO lessors: — ecclesiast: corporations. 207 leased under the provisions of the act shall be vested in trus- tees for the incumbent, so that the net income, or three- fourth parts at the least of the net income, of such lands and hereditaments shall be payable for the exclusive benefit of such incumbent, all the powers of the act which, in case such lands and hereditaments had been legally vested in such incumbent for his sole and exclusive benefit, might have been exercised by such incumbent in relation to the same lands and hereditaments^ shall or may be exercised by the incumbent in the same or the like manner as the same might have been exercised by him in case the same lands and here- ditaments were legally vested in him; but, in order to give legal eflfect to any lease, the trustees are to be made parties thereto, in addition to the other parties whose concurrence is declared to be requisite to any such lease, and are to join in the demise; and the trustees are by the act directed and required at all times to execute any lease to which they may be made parties, with a view to give legal effect to any such lease, as soon as the same may be tendered to them for execution, after the same shall have been duly executed by the incumbent beneficially entitled to such premises and the bishop and patron, whose consents are declared to be requisite; and the fact that any such lease is executed by the said other parties, is to be a sufficient authority for the execution thereof by the trustees ; and it shall not at any time afterwards be necessary for such trustees, or for any other persons, to prove that such deed was executed by such other parties, or any of them, prior to the execution thereof by such trustees ; pro- vided that no trustee is to be compellable to execute any lease whereby he shall render himself in any way liable further than by a covenant for quiet enjoyment by any lessee against the acts of the trustee executing such deed (r) . The part of every lease granted under the act which shall belong to any incumbent, or, in case there shall not be more than one part of any such lease, an attested copy thereof, and every surrender to be made under the act, together with the (/•) Sect. 1.3. 268 OF THE CONTRACTING PARTIES. [Part III. writing by which a surveyor shall have been appointed, and the map or plan, or copy of, or extract from, a map or plan, (as the case may be,) certificate, valuation, and report, directed to be made before the granting of such lease, are, within six calendar months next after the date of such lease, to be deposited in the office of one of the registrars of the diocese wherein such benefice shall be locally situated, to be kept and preserved therein, except where the benefice shall be under the peculiar jurisdiction of any archbishop or bishop, in which case the several documents before mentioned are to be deposited in the office of the registrar of the pecu- Kar jurisdiction to which such benefice shall be subject ; and such registrars respectively, or their respective deputies, are, upon any such deposit being so made, to sign and give unto the incumbent a certificate of such deposit ; and such lease, or attested copy, and other documents so to be deposited, are to be produced, at all proper and usual hours, at such registry, to the incumbent of the benefice for the time being, or to the patron of such benefice for the time being, or to any person on their or either of their behalf, applying to inspect the same; and an office copy thereof, respectively certified under the hand of the registrar or his deputy, (and which office copy so certified the registrar or his deputy is in all cases, upon application in that behalf, to give to the incumbent for the time being,) is in any action against the lessee, and in all other cases, to be admitted and allowed in all courts whatsoever as legal evidence of the contents of sucli lease, or of any such other document, and of the due execution of the coiuitcrpart of such lease by the lessee, if tlierc shall be any counterpart, and of the due execution of tlie lease, and of every such other document, by the parties who on the face of such office copy sh?ll appear to have executed the same ; and every such registrar is to be entitled to the sum of 5*., and no more, for so depositing the docu- iiKMits directed to be deposited, and for certifying the deposit tlu;rc:of, and the sum of ^s., and no more, for each search and inspection, and the sum of (id., and no more, over and Ch. I. s. IV.] WHO lessors: — ecclesiast: corporations. 269 besides the stamp duty (if any), for each folio of seventy-two words of each office copy so certified {s) . The latter of the acts above referred to (t), after noticing that it would be advantageous to the estates of ecclesiastical corporations, aggregate and sole, and for the interests of the church, if such corporations were empowered to grant leases for long terms of years under proper reservations and restric- tions, enables (?/) any ecclesiastical corporation, aggregate or sole, except any college or corporation of vicars choral, priest vicars, senior vicars, custos and vicars, or minor canons, and except also any ecclesiastical hospital or the master thereof, from time to time after the passing of the act, with such consent and under such restrictions as thereinafter men- tioned, by any deed duly executed, to lease all or any part of the lands or houses of or belonging to such corporation in his or their corporate capacity, (except as thereinafter men- tioned,) and whether such lands or houses may or may not have been previously leased under the provisions of the act, for any term or number of years not exceeding ninety-nine years, to take effect in possession, and not in reversion or by way of future interest, to any person who may be willing to improve or repair the present or any future houses thereon, or any of them, or to erect other houses instead thereof, or to erect any houses or other buildings on any lands whereon no building shall be standing, or who shall be willing to annex any part of the same lands to buildings erected or to be erected on the said lands, or any part thereof, or other- wise to improve the said premises, or any part thereof; and with or without liberty for the lessee to take down any buildings which may be upon the lands in such leases respectively to be comprised, and to dispose of the materials thereof to such uses and purposes as sliall be agreed upon ; and with or Avithout liberty for the lessee to set out and allot any part of the respective premises to be comprised in any such- lease, as and for Avays, passages, sewers, drains, Avells, reservoirs, yards, or otherwise, for the use and conve- (s) Sect, 14. (0 5 & G Vict. c. 108. (it) Sect 1. 270 OF THE CONTRACTING PARTIES. [Part III. iiience of the respective lessees^ tenants, or occupiers of the premises, or for the general improvement of the premises; and also with or without liberty for the lessee to dig, take, and caiTj away, and dispose of, such earth, clay, sand, loam, or gravel, as it shall be found convenient to remove for eftecting any of the purposes thereinbefore mentioned ; so as there be reserved by every such lease the best yearly rent that can be reasonably obtained for the premises therein com- prised, payable half-yearly, or oftener; and so as every such lease be made without taking any fine, premium, or foregiffc, or anything in the nature thereof, for or in respect of the making the same; and so as in every such lease made for the pui'pose of ha\'ing buildings erected, there shall be con- tained a covenant on the part of the lessee to build, complete, and finish, the houses which may be agreed to be erected on the premises, if not then already done, within a time or times to be specified for that purpose, and to keep in repair during the term such houses ; and so as in every such lease made for the purpose of having buildings repaired or rebuilt there shall be contained a covenant on the part of the lessee or lessees substantially to rebuild or repair the same within a time or times to be specified, and to keep in repair during the term the houses agreed to be rebuilt and repaired ; and so as in every such lease, whether for the purpose of having buildings erected or otherwise, there be contained on the part of the lessee a covenant for the due payment of the rent to be thereby reserved, and of all taxes, charges, rates, assess- ments, and impositions whatsoever, affecting the same pre- mises, and also a covenant for keeping the houses erected, and to be erected, on the premises to be therein comprised, (except any Avorks or manufactories which may not be insura- ble,) insured from damage by fire, to the amount of four-fifths at least of the vakie thereof, in some or one of the public offices of insurance in London, Westminster, Norwich, Bris- tol, Exeter, Newcastle-on-Tyne, York, or Liverpool, or of the Kent Fire In.surance Company, (tlic particular office of insur- ance being named in the lease,) and to lay out the money to Ch. I s. IV.] WHO lessors: — ecclesiast: corfokatioxs. 271 be received by virtue of such insurance, and also all such other sums as shall be necessary, in rebuilding, repairing, and reinstating, such houses as shall be destroyed or damaged by fire, and also to surrender the possession of, and leave in repair, the houses erected and to be erected, or rebuilt, or repaired, on the premises therein comprised, on the expiration or other sooner determination of the term to be thereby granted, and, within tAventy-one days after any assignment of such lease shall be made, to deliver a copy of such assignment to the lessor or reversioner for the time being; and so as in every such lease there be contained a power for the lessor or reversioner for the time being, and his or their surveyors and agents, to enter upon the premises, and inspect the condition thereof, and also a proviso or con- dition of re-entry for non-payment of the rent or rents to be thereby reserved, or for non-performance of any of the covenants, provisoes, and conditions, to be therein contained on the part of the lessee, his executors, administrators, or assigns, and with or without a proviso that no breach of any of the covenants, provisoes, and conditions, to be therein contained, (except the covenant for the payment of the rent, and other such covenants, provisoes, or conditions, if any, as may be agreed between the parties to be excepted,) shall occasion any forfeitui-e of such lease, or of the term thereby granted, or give any right of re-entry, unless or until judg- ment shall have been obtained in an action for such breach of covenant, nor unless the damages and costs to be recovered in such action shall have remained unpaid for the space of three calendar months after judgment shall have been obtained in such action ; and that every such lease may also contain any other covenants, provisoes, conditions, agree- ments, and restrictions, which shall appear reasonable to the lessor for the time being, and the person or persons whose consent is by the act declared to be essential to the vahdity of such lease, and particularly any provision for apportioning the rent to be reserved by any lease made under the power given by the act, and for exonerating any part of the lands or 272 OF THE CONTRACTING PARTIES. [Part III. houses to be comprised in any such lease from the payment of any specified portion of the whole rent to be reserved ; and so that the respective lessees execute counterparts of their respective leases. On every building or repairing lease to be granted under the authority of this act, the corporation granting such lease may reserve a small rent during the six first years of the term, or during any of such six first 5'^ears to be specified in the lease, and reserve, in addition thereto, an increased rent to become payable after the expiration of such six first years, or after any of such six years to be so specified, (as the case may be,) or otherwise to make any such increased rent first payable at any time not exceeding six years after the commencement of the term, when a stipulated progress shall have been made in the buildings, rebuildings, or reparations {v). The corporations empowered by the act may, with such consent as is thereby declared to be requisite, lay out and appropriate any part of the lands which such corporation are empowered to lease on building or repairing leases under the provisions of the act, as and for ways, yards, or gardens, to the buildings erected, or to be erected, on any of the same lands, or on any of the adjoining lands so to be leased, or for yards or places necessary or convenient for carrying on any manufac- ture or trade, and also to appropriate any part of the same lands as and for ways, streets, sqiiares, avenues, passages, sewers, or otherwise, for the general improvement of the estate, and the accommodation of the lessees, tenants, and occupiers thereof, in such manner as shall be agreed upon in any lease to be so granted, or in any general deed to be executed for that purpose, (such general deed, if any, to be duly executed by the corporation ])y the act authorised to make such deed, and to be made with such consent as therein mentioned, and to 1)C enrolled in one of her Majesty's courts of record at Westminster within six calendar months from the (v) Sect. 2. Ch. 1. s. IV.] WHO lessors: — ecclesiast: cokpokatioxs. 273 date of such deed,) and also by such lease or general deed to give such prh-ileges and other easements as the corporation shall, with such consent, deem reasonable or convenient (2«;). Any ecclesiastical corporation, aggregate or sole, except as therein mentioned, with the like consent, and under the like restrictions, may, by any deed duly executed, grant, by way of lease, any liberties, licenses, powers, or authorities, to liaA'e, use, or take, either in common Avith, or to the exclusion of, any other person or persons, all or any of the water flow- ing, and which shall or may flow, or be made to flow, in, through, upon, or over, any lands or hereditaments belonging to such corporation in his or their corporate capacity, or any part or parts thereof, (except as thereinafter mentioned,) [x) ; and also any wayleaves or waterleaves, canals, watercourses, tramroads, railways, and other ways, paths, or passages, either subterraneous or over the surface of any lands, store-yards, wharfs, or other like easements or privileges in, upon, out of, or over, any part or parts of the lands belonging to such cor- poration, in his or their corporate capacity, (except as there- inafter mentioned,) [tj) for any term or number of years not exceeding sixty years, to take efi'ect in possession, and not in reversion or by way of future interest, so as there be reserved on every such grant by way of lease, payable half-yearly or oftener during the continuance of the term of years thereby created, the best yearly rent or rents, either in the shape of a stated or fixed sum of money, or by way of toll, or other- wise, that can be reasonably had or gotten for the same, without taking any fine, premium, or foregift, or anjiihing in the natui'e of a fine, premium, or foregift, for the making thereof, (other than any provision or provisions which it may be deemed expedient to insert in any such grant, rendering it obligatory on the grantee or lessee, or grantees or lessees, to repair, or contribute to the repair of, any roads or ways, or to keep open or otherwise use, in any specified manner, any water or watercourse to be comprised in or afffected by any (w) Sect. 3. (.t) Post, p. 277-8 ; Sect. 0. VOL. I. T 274 OF THE CONTRACTING PARTIES. [Part III. such grant or lease) ; and so as there be contained in every such grant by way of lease a condition or power of re-entry, or a power to make void the same, in case the rent reserved, or any part thereof, shall not be paid within some reasonable time to be therein specified in that behalf; and so as the respective gi'antees or lessees do execute counterparts of the respective grants or leases ; and, generally, that in and by each or any such grant by way of lease there be reserved and contained any other reservations, covenants, agreements, pro^dsoes, or stipulations whatsoever, not inconsistent with those by the act required to be reserved or contained in each such grant by way of lease, which it shall be deemed expe- dient to introduce therein {y) . Any corporation by the act empowered to grant leases may, with the like consent, confirm any lease, grant, or general deed, purporting to have been granted or made under the authority of the act, in any case in which for some technical error, informality, or irregularity in exercising the powers of the act, such lease, grant, or deed, shall be voidable or questionable, or may accept an actual or virtual surrender of any lease or grant which shall have been made and executed, or which shall purport to have been made and executed, by virtue of the act; and so far as regards any mines, minerals, quarries, or beds, watercourses, ways, or other easements, which may be comprised in any such sur- rendered lease or grant, with such consent as therein aforesaid, may make any new lease or grant thereof in the same manner, from time to time, as if the powers of leasing therein contained had not been previously exercised; and so far as regards any lands and houses comprised in any such surrendered lease which may have been granted for building or repairing pur- poses, in any ease where, at the time when such surrender shall be accepted, one fourth part or more than one fourth part of the term originally granted shall remain unexpired, with such consent as therein aforesaid, may make a new lease, (y) Sect. 4. Ch. I. s. IV.] WHO lessors: ECCLESIAST: COKPORATIOXS. 275 or several apportioned leases, of the lands and houses com- prised in such surrendered lease, for any time not exceeding the then residue of the term granted, or mentioned or intended to be granted, by such surrendered lease, and at a rent or apportioned rents equal in amount to or exceeding the former rent or rents, yet so nevertheless that no one rent shall be less than 405., and so that the rent to be reserved by any apportioned lease shall in no case exceed one fifth part of the rack-rent value of the land to be comprised in such lease, and of the houses erected or to be erected thereon when finished and fit for habitation ; and so far as regards any lands and houses comprised in any such surrendered lease which may have been granted for building or repairing piu-poses, in any case where, at the time when such surrender shall be accepted, less than one fourth part of the term originally granted shall remain unexpired, with such consent as therein aforesaid, may make any new lease or grant thereof, in the same manner, as far as may be applicable, as if the powers of leasing therein contained had not been exercised ; and so also that in the case of the confirmation of any lease, or of the making of any new^ lease or grant, whether the same shall be a lease of houses for building or repairing pm'poses, or a lease or grant of any mines, minerals, quarries, or beds, watercourses, ways, or other easements, no fine, premium, or foregift, shall be accepted for making or giving any such confirmation, or new lease, or grant, or apportioned lease respectively, and so as the lessee or grantee, his executors, administrators, or assigns, whose lease or grant shall be so confirmed, or to whom any such new or apportioned lease shall be granted in lieu of any former lease as therein aforesaid, do consent to accept such confirmation or new lease, or grant, or apportioned lease, and do execute a counterpai't thereof (^). The corporations empowered may also, with the hke con- sent, grant or demise, by lease (a), for any term not exceeding sixty yeal's, to take efi'ect in possession, and not in reversion (r) Sect. 5. («) So in net : Qy. " bv way of lease "? T 2 276 OF THE CONTRACTING PARTIES. [Part III, or by way of future interest, any mines, minerals, quarries, or beds, belonging to such corporation, together with the right of working, or of opening and working, the same, and of working any adjacent mine by way of outstroke or other underground communication, and together also with such portion of land belonging to such corporation, and all such rights and liberties of way and passage, and other rights, easements, and facilities, for the opening and working of all such mines, minerals, quarries, or beds, and leading and caiTying the produce thereof, or otherwise incident to mining operations, as shall be deemed expedient; and every such lease is to contain such reservations by way of rent, royalty, or share of the produce in kind, all or any thereof, or other- wise, and such powers, provisoes, restrictions, and covenants, as shall be approved by the ecclesiastical commissioners for England, due regard being had to the custom of the country or district within which such mines, minerals, quarries, or beds, shall be situate ; but no fine, premium, or foregift, nor anything in the nature thereof, is to be taken for or in respect of any such lease (b) . The execution of any lease, grant, or general deed, by the persons or corporations whose consent is by the act made requisite, is to be conclusive evidence that the several matters and things by the act required to be done have been duly done, and that the property comprised in such lease, grant, or general deed, (as the case may be,) does not form any part of the property excepted out of the powers of leasing conferred by the act, and that the rent reserved by such lease (except an apportioned lease or grant) is the best rent that could be reasonably obtained, and that no fine, or premium, or foregift, hath been taken, and (in the case of an apportioned lease) that the rent reserved by each such apportioned lease does not exceed one-fifth part of the rack-rent value of the land comprised in such lease, and of the houses erected or to be erected thereon, when fit for habitation («?). (/>) Sfct. r,. (c) Sect. 7. Ch. J.s. IV.J WHO LESSOllS: ECCLESIAST: COKPORATIONS. 277 Nothing in the act is to restrain any corporation thereby empowered from granting any leases, whether b}?^ way of renewal or otherwise, which such corporation might have lawfully granted, either under the provisions of any pubHc or private act of parUament, or under any other autliority, or in any other manner whatsoever, in case the act had not been passed, or from taking any fine, premium, or foregift, from the lessees in any renewed or new leases named or to be named, or from theii' underlessees, or from any other persons having or claiming an interest in any such renewal, for any such renewed or new leases, save and except that in every lease (other than any lease granted under the powers of the act) which shall be granted by such corporation of any lands or houses which shall have been leased for building or repaii'ing purposes under any of the powers of the act, there shall be reserved the best improved rent, payable half- yearly or oftener, which can be obtained for the same, vnth- out taking any fine, premium, or foregift, or anything in the nature of a fine, premium, or foregift, for making or granting the same {d). The act does not authorise the granting of a lease, or the laying out or appropriating, for the purposes in the act men- tioned, of the palace or usual house of residence of or belong- ing to any archbishop, or bishop, or any other corporation sole thereby empowered, or of or belonging to any corpora- tion aggregate thereby empowered, or of any offices, out- buildings, yards, gardens, orchards, or pleasure grounds, to any such palace or other house of residence adjoining or appurtenant, and which maj^ be necessary or convenient for actual occupation with such palace or other house of resi- dence, or the grant or lease of any mines, minerals, quarries, or beds, watercoiu'ses, ways, or other easements, the grant whereof may be prejudicial to the convenient enjoyment of any such palace or house of residence, or the pleasure grounds belonging tliereto, or the leasing for the })urposes therein (r/) Sect. 8. 278 OF THE CONTRACTING PAKTIES. [Part III. aforesaid of any lands wliicli any sucli corporation, sole or aggregate^ or any member of any such corporation aggregate, is expressly restrained from leasing by the provisions of any local or private act of parliament then in force (e). Leases may be granted under the powers of the act, on the surrender of any existing lease or leases, (which shall not have been granted under its provisions,) of all or any part of the premises proposed to be comprised in any new lease, and may be granted either to the person or persons surrendering the existing lease or leases, or to any other person; and each holder of any existing lease, granted otherwise than under the provisions of the act, of any lands, or houses, or of any mines, minerals, quarries, or beds, Avliich, if not in lease, would be capable of being leased under the powers of the act, may surrender such lease or leases, with a view to the granting of a new lease or several new leases thereof, or of any part thereof, under the powers of the act, whether, at the time of making such sui'render, the period at which such existing lease or leases may be legally or accustomably renewable shall or shall not have arrived ; and in the case of any lease granted under the powers of the act, on the suiTender of any existing lease or leases, an adequate deduction is to be made from the rent, royalty, or other consideration, to be reserved on the new lease, in proportion to the value of the term or interest which shall be surrendered in the lauds or houses, mines, minerals, quarries, or beds, or any part thereof respectively, comprised in such new lease (/). Whenever a surrender shall be made of any existing lease for the i)urpose of taking a new lease, by virtue of the act, whether the existing lease shall or shall not have been granted under the provisions of the act, the new lease is to be deemed to be a renewal of the surrendered lease within the scope and meaning of the (3th section of the act of !• Geo. 2. c. 28, inti- tuled " An act for the more eflcctual preventing of frauds committed by tenants, and for tlic more easy recovery of (f) Sect. 9. if) Sect. 16. I Cii.I.s.lV.] WHO lessors: KCCLESIAST: COKPOllATIONS. 279 rents and renewal of leases/^ so far as to render unnecessary the surrender of any under-leases previously to the grant of such new lease, and to give full effect to such new lease in all respects, notwithstanding any under-lease or under-leases may not be surrendered : provided that, in any such case, if any subsisting unsurrendered under-lease shall contain any covenant or provision for the renewal or extension of the interest conferred by such under-lease, on paj'ment by the under-lessee of a proportionate part of the fines and fees attending the renewal of the chief lease, the under-lessee shall not compel a renewal of the under-lease under such covenant, except upon the terms of seeming to the under- lessor a rent, royalty, or other consideration, bearing the same proportion to the whole rent, royalty, or other consi- deration, reserved to the corporation exercising the powers of the act, upon the new lease, as the amount which upon any ordinary renewal ought to have been paid by such under- lessee of the fines and fees of or attending such renewal would have borne to the whole amount of the fines and fees attending such renewal {g) . Whenever any lease or apportioned leases, or grant by way of lease, is or are intended to be granted or made, or any land is proposed to be laid out or appropriated, under the authority of the act, a competent surveyor is to be ap- pointed in writing by the ecclesiastical commissioners for England, with the consent of the corporation, and such sur- veyor is to make any such report, map, plan, statement, valuation, or certificate, as shall be deemed necessary, and be required by the commissioners or by such corporation {h). Each lease or grant to be made under the provisions of the act is to be made with the consent of the ecclesiastical com- missioners for England, and also with such further consent as thereinafter mentioned; (that is to say,) each lease or grant made by any incumbent of a benefice (i), with the consent of (r/) Sect. 17. every rectoi'y with or without cui'e of (A) Sect. 18. souls, vicarage, perpetual curacy, do- (/) The term '* benefice " signifying native, endowed public chapel, paro- 280 OF THE CONTRACTING PARTIES. [Paut III. the patron thereof; and each lease or grant by any corpora- tion^ either aggregate or sole, under the provisions of the act, of any lands, or houses, mines, minerals, quarries, or beds, of copyhold or customary tenure, or of any watercourses, ways, or easements, in, upon, over, or under, any such lands, where the copyhold or customary tenant thereof is not authorised to grant or make leases or grants for the term of years intended to be created by such lease or grant without the license of the lord of the manor, is to be made with the con- sent of the lord for the time being of the manor of which the same lands or houses, mines, minerals, quarries, or beds, shall be holden, in addition to the other requisite consents, and such consent shall amount to a valid license to lease or grant the same lands or houses, mines, minerals, quarries, or beds, watercourses, ways, or easements, (as the case may be,) for the time for which the same shall be expressed to be demised or granted by such lease or grant (k). The consent of each person whose consent is required is to be testified by such person being made a party to such deed, and duly executing the same (/). Sections 22, 23, 24, and 25, show how the consent of the patron is to be testified where the patronage is in the crown; where it is attached to the duchy of Cornwall ; where the patron or lord of the manor is an incapacitated person ; and where the patronage is in several persons or a corporation ; the requisites corresponding with those contained in the act of 5 Vict, sess. 2. c. 27 (m). Section 20 provides, that the same party may consent in more than one character, as in the act of 5 Vict. scss. 2. V. 27 (»). Wherever the consent of any corporation aggregate having a common seal may be requisite, the consent of such corpora- t ion is to be testified by the sealing of the lease, grant, appoint- cliial cliapelry, and district ehapelry, (/) Sect. 20. flif! incuinboiit or lioldcr of wliicli in (/) Sect. 21. ri^lil tliorcof sIkiII he a corixmition (/») Ante, p. 264, c< sf^. »olc. („) Ante, p. 2i>6. Th. I. s. IV.] WHO LEssoiis: — ecclesiast: corporations. 281 ment, or other deed, writing or instrument, with the common seal of such corporation (o) . Section S8 provides, that the act shall extend to lands held in trust for corporations, similar to the 13th section of the act of 5 Vict. sess. 2. c. 27 {p). The part which shall belong to any corporation exercising any of the powers conferred by the act of any lease, grant, or confirmation, which shall be granted or made under the authority of the act, and every map, plan, statement, certifi- cate, valuation, and report, relating thereto, is, within six calendar months next after the date of such lease, grant, apportioned lease, confirmation, or general deed, (as the case may be,) to be deposited with the ecclesiastical commissioners for England, and to be for ever thereafter perpetually kept and preserved in the office of the said commissioners, who, upon any such deposit being so made, are to give to the cor- poration by or on behalf of whom such deposit shall have been made, a certificate of such deposit; and any instruments or documents which may have been deposited are to be pro- duced at all proper and usual hours, at such office, to the corporation to whose lands or estate the same shall relate, or to the patron of the benefice, or to any person or persons applying to inspect the same on behalf of any such person or corporation ; and an office copy of any such instrument or document, certified under the seal of the said commissioners, (which office copy so certified the said commissioners are re- quired in all cases, upon application in that behalf, to give to any corporation or person to whom such liberty of inspection is given,) is, in any action against the lessee, and in all other cases, to be admitted and allowed in all courts whatsoever as legal evidence of the contents of such instrument or docu- ment, and of the due execution thereof by the parties who on the face of such office copy shall appear to have executed the same ; and, in the case of any lease, grant, or confirma- tion, of tiie due execution by the lessee of the counterpart thereof [q] . (o) Sect. 27. (p) Ante, p. ■20. Ch. I. s. IV.] WHO lessors: — ECCLESIAST: CORPORATIONS. 283 And tlie third section provides, that the act shall not extend to any lease to be made by the president and scholars of the college of St. John Baptist in Oxford,, to any heir male of Sir Thos. AVhite, late knight, and alderman of London, founder of the said college, which lease shall be made accord- ing to the meaning of the foundation and statutes of the said college of the manor of Fifield, and no other hereditaments. According to Blackstone (u), this plan of reserving a corn rent is said to have been an invention of Lord Treasurer Burleigh, and Sir Thomas Smith, then principal secretary of state, who, observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the new-found Indies, (which effects were likely to increase to a greater degree,) devised this method for upholding the revenues of colleges : and he adds, that their foresight and penetration have in this respect been very apparent, for though the rent so reserved in com was at first but one-third of the whole rent, or half w hat was still reserved in money, }■ et now the proportion is nearly inverted, and the money arising from corn rents is, communibus annis, almost double to the rents reserved in money. Leases of lands belonging to hospitals, or abiding and working houses for the poor, are restrained by the statute of 39 Eliz. c. 5, which enacted [x), that all leases, grants, con- veyances, or estates, to be made by any corporation, to be founded as in the act is mentioned, exceeding the number of one-and-twenty yeai's, and that in possession, and whereon the accustomable yearly rent or more b}^ the greater part of twenty years next before the making of such lease shall not be reserved and yearly payable, should be void. By a statute {y) passed a few years after the destructive fire of London, the dean and chapter of the cathedral church of St. Paul were empowered to make leases of certain ground set out for a market-place within Newgate, to the mayor, («) 2 Bla. Com. 322. torney-General r. The Corporation of (.r) 39 Eliz. c. 5. s. 5, made perpe- Newcastle, 5 Beav. 307. tual by 21 Jac. 1. c. 1. See The At- (y) 22 Car. 2. c. 11. s. Gl. 284 OF THE CONTRACTING PARTIES. [Faux 111. commonalty^ aud citizens of London, and also of the wall of the said churchyard, abutting severally upon Paternoster-row and Old Change, for the term of forty years, reserving the yearly rents of 4/. for the ground of the market-place, and twopence for every superficial foot of the ground or soil of the wall, and so from forty years to forty years for ever, at the like yearly rent, and one yearns rent to be paid by way of fine upon the making every new lease thereof; which said lease and leases were declared to be good and effectual against the said dean and chapter, and their successors, and all persons claiming by, from, and under them. And the same statute, after noticing that parsons and vicars, (Avhose parsonage and vicarage houses had been de- stroyed by the great fire of London,) or some of them, were interested in several glebe lands or grounds, which they could not rebuild themselves, nor let such lease or leases as might be an encouragement to others to rebuild, empowered them [z] to let such lease or leases of their said glebe lands or grounds, with the consent aud approbation of the patron or patrons and ordinary, for any term not exceeding forty years, and at such yearly rents, without fine, as could be obtained for the same. The principal results of these various enactments, and their peculiar bearing on the several corporations respectively within their operation, may be thus stated : — All ecclesiastical corporations aggregate or sole (except any college or corporation of \icars choral, priest \dcars, senior vicars, custos and Wears, or minor canons, and except also any ecclesiastical hospital, or the master thereof,) on obtaining the consent required, and observing the restrictions imposed, by the act of 5 & 6 Vict. c. 108, may grant leases of their corporate lands or houses (a), except their house of residence, garden, &c. (h), for any term not exceeding ninety-nine years in pos- session, for the purposes of building or improvement, at the best yearly rciit that can be obtained, with power to take a (z) Sect. 7.^. (a) ■'} & (i Vict. c. 10(1. s. 1. Ante, p. -26!). (/*) Sect. f». Ante, p. -277. Cii. I. s. IV.] WHO lessors: — ecclesiast: corpokations. 285 small rent for the first six years, and afterwards to reserve an increased rent (c) ; and, with such consent, and under the like restrictions, they may grant, by way of lease, rights to flowing water, wayleaves, waterlcaves, &c. (f/), and mines (e), except such as may be prejudicial to the enjoyment of the house of residence of the corporation (/), for any term not exceeding sixty years. The incumbent of every benefice, (meaning, of every rec- tory, vicarage, perpetual curacy, donative, endowed public chapel, parochial chapeliy, and district chapelry, the incum- bent of which in right thereof shall be a corporation sole,) on obtaining the consent required, and under the restrictions imposed, by the act of 5 Vict. sess. 2, c. 27, may lease, for farming purposes, the glebe or other lands belonging to the benefice, Avith certain exceptions (ff), for any term not ex- ceeding fourteen years (h), or, in some particular cases, twenty'' years (i), in possession, at the best yearly rent. Archbishops and bishops and other ecclesiastical corpora- tions sole (parsons and vicars excepted) may also, by pursuing the requisites of the statute of 32 Hen. 8 {k), but subject to the restrictions of 6 W. 4. c. 20. s. 1., and 5 & 6 Vict. c. 108. s. 8, (/), lease the lands of which they are seised in fee in right of their churches, for three lives, or twenty-one years, at the accustomable rent or more, without the confirmation or concurrence of any other person. Unless the provisions of that act, or, as the case may require, of the act of 5 Vict. sess. 2. c. 27, or 5 & 6 Vict. c. 108, be complied Avith, the concurrence or confirmation required by the common law must still be obtained. Archbishops and bishops, masters of hospitals, and others mentioned in the act of 5 Geo. 3. c. 17, may lease their tithes and other incorporeal hereditaments for one, two, or (c) Sect. 2. Ante, p. 272. (h) Sect. 1. Ante, p. 257. (d) Sect. 4. Ante, p. 273. (i) Sect. 1. Ante, p. 261. (e) Sect. 6. Ante, p. 275-6. (Jc) 32 Hen. 8. c. 28. Ante, pp. 66, (/) Sect. 9. Ante, p. 277. & 23.0. (g) 5 Vict. sess. 2. c. 27. s. 2. Ante, (/) See post, p. 287. p. 261. 286 OF THE CONTRACTING PARTIES. [Part III. thi'ee lives, or for any term of years not exceeding twenty- one (m). Rectors and ^'icars, with the consent of the bishop and patron, may lease lands allotted to them under inclosures for any term not exceeding twenty-one years, under 41 Geo. 3. c. 109, and 6 & 7 W. 4, c. 115 {n). But all ecclesiastical corporations (o), parsons and vicars included, and eleemosynary corporations, are precluded by the restraining statutes (/>) from leasing their church estates for any longer period than three lives or twenty-one years (q) ; unless the lease be of ground mentioned in the act of 22 Car. 2. c. 11 ; or be of houses situate in any city, borough, town cor- porate, or market town, and grounds not exceeding ten acres appertaining thereto, which may be leased for forty years, the terms of the statutes of 22 Car. 2. c. 11, and 14 Eliz. c. 11, respectively, being observed ; or unless the lease be granted by \irtue of the powers conferred by 5 & 6 Vict. c. 108. The privilege, however, of leasing, under 14 Ehz. c. 11, houses in any citA'^, borough, &c., does not extend to archbishops and bishops, as that act refers only to the poAvers mentioned in 13 Ehz. c. 10, which did not affect those dignitaries. Leases of lands belonging to hospitals, or abiding or work- ing houses for the poor, for any term exceeding twenty-one years were prohibited by 39 Eliz. c. 5 (r). As the restrictive statutes confer no new powers, and as parsons and vicars are expressly excluded from the operation of the enabling statute of Henry the 8th, all leases by them of their ecclesiastical possessions must still be confirmed by the l)atron and ordinary {s), unless they be made under the powers of the act of 5 & G Vict. c. 108, whidh requires the consent of the patron and the ecclesiastical comraissioners for England, (m) Ante, p. 247. Ante, p. 241. ^, (n) Ante, p. 24.0-250. () 1 Eliz. c. ]'.>, and i:?Eliz. c. 10 Cii. T. S. IV.] WHO lessors: — ECCLESTAST: CORPORATIONS. 287 and, in some cases, where copyholds are leased, of the lord of the manor also (t). Where any lease shall have been granted for years, no archbishop, bishop, ecclesiastical corporation sole or aggregate, dignitary, canon, prebendary, spiritual person, master or guardian, shall grant any lease by way of renewal, or other- wise, for any life or lives (n). And renewals are prohibited otherwise than in accordance with 6 W. 4. c. 20 (x). A lease of lands belonging to an ecclesiastical corporation, being already in mortmain, need not pursue the requisites of 9 Geo. 2. c. 36 (y), though granted upon charitable trusts {z). Though the disabling acts expressly declare that leases contravening their provisions shall be absolutely void, it is clear that they are good during the life of the person by whom they are made, in the case of a corporation sole («) : and of the existence of the dean or other head of the corporation, in the case of a corporation aggregate {b). Of this latter position no doubt seems now to be entertained, notwithstanding Hale's authority to the contrary (c). And it is said to have been decided (d), that acceptance of rent by a bishop's successor will prevent him, for his time, from avoiding the lease, which was voidable, although the rent be received through the hands of his bailiff, among other rents due to the bishop, and without notice that the rent in question was paid by his predecessor's lessee. A sole corporation, as a bishop, or parson, cannot, in his (t) Ante, p. 279-280. 10 Co. 58, b. 60, b. Doe rlem. Bryan (u) 6 W. 4. c. 20. s. 1 ; and s. 8 of v. Bancks, 4 Bam. & Aid. 407. Daldn 5 & 6 Vict. c. 1 08. Ante, pp. 251 & 277. r. Cope, 2 Russ. 1 75. (x) Ante, p. 251. (&) Co. Lit. 45, a. Roe dem. Earl (y) 9 Geo. 2. e. 36, an act to re- of Berkeley v. The Archbishop of strain the disposition of lands, whereby Canterbury, 6 East, 102-3. Bac. Ah. the same become unalienable. Leases, (H). And see the Chapter of (z) Walker v. Richardson, 2 Mees. Southwell v. The Bishop of Lincoln, 1 6 Wei. 882. Mod. 204. (rt) Sale V. The Bishop of Coventry, (c) Hale's note (4) to Co. Lit. 45, a. 1 And. 241-4. Rickmanr. Garth, Cro. Morrice v. Anti'obus, Hardr. ,325-6. Jac. 173. Morrice V. Antrobus, Hardr. (d) Wheeler r. Danby, cited Cro. 326. The Bishop of Salisbury's ease. Car. 95. 288 OF THE CONTRACTING PARTIES. [Part III. corporate character^ make a lease to himself, in liis individual character [e] . And the law is the same in the case of a cor- poration aggregate, as dean and chapter; for a lease cannot be made by the chapter without the concurrence of the dean; nor to (/) the dean without the conciuTcnce of the chapter ; but it may be made to any of the prebendaries, because it is not necessary that any of them should join in the lease ; for a prebendary is not an integral part of the body corporate {f/). It is important to observe, that, in order to render a lease binding on the successor, the bishop, parson, or other eccle- siastical corporation, must have been previously consecrated, or inducted, and invested with the temporalities attached to the dignity or benefice (h) ; and, therefore, if one be appointed a bishop, but not ordained or consecrated, as, it is said, was sometimes the case in the reign of Edward the 6th, he cannot grant such a lease, even -odth confirmation, as will conclude the successor (i). So, if A. be a bishop, and B., by a superinstitution, be created bishop of the same see during the life of A., a lease made by B. will not bind the successor, though confirmed by the dean and chapter. This was the bishop of Ossory^s case (k) . In the reign of Edward the 6th, John Bale was consecrated bishop of Ossory, but, having been a zealous opponent of popery, he was compelled in the succeeding reign of Queen Mary to secure his personal safety by taking refuge in Germany. In Bale's lifetime, and without his being formally deprived, the Queen procured the consecration of one Toncry, who, with the confirmation of the dean and cluqjtcr, granted a lease to the defendant (/) . Dming the reign of Queen Elizabeth, Bale returned to Ireland, and died ; (e) Salter -y.Grosvenor, 8 Mod. 303. («) Bac. Ab. Leases, (F). p. 367. Cro. Jac. 234. 14 II. 8. 2. pi. 2. [B]. Bro. Ab. Leases, pi. 68. (/) So in the report ; rjucere "hy^l (k) Bishop of Ossory's case, Palm. (.7) Ibid. 13 H. 8. pi. 2. p. 13 [B]. 22; S. C, nom. Rcuan O'Brian r. (//,) Bac. Ab. Leases, (F). p. 367. Knivan, Cro. Jac. 552; S. C, nom. Hare v. Bicklcy, Plowd. 528. The Sobrean v. Kevan, 2 Rol. 101. 130. KinK V. Bislio]) ol' Li.ikIoii, Cartli. 314. See also Harris v. Jays, Cro. Eliz. 6.09. 1 Bla. (;om. ."',80. (/) It appears by the reports of Ch. l.S. IV.j WHO lessors: — ECCLESIAST: CORPORATIONS. 289 and, on Tonery's deatli, which happened shortly afterwards, the succeeding bishop, Jonas Wheeler, commenced pro- ceedings in the King's Bench in Ireland to set aside the lease so made by Tonery, and obtained judgment in his favor by the opinion of the two puisne justices, against the opinion of the chief justice. The cause was then brought by writ of error before the court of King's Bench in England, where the judgment was affirmed, and it was decided, that, as Tonery was not lawful bishop, the lease to charge the pos- sessions of the bishopric was void ; but that all judicial acts done by him, as admissions, institutions, certificates, and the like, were good ; but not such voluntary acts as tended to the impoverishment of the successor. Nor can a bishop entitled to the advowson of a church full of an incumbent grant a lease to commence on the death or resignation of such incum- bent. Thus, King Edward the 6th, being patron of a church full of an incumbent, by his letters patent granted the advow- son to the bishop of Lichfield and Coventry and his suc- cessors ; and, further, by the said letters patent granted, that, after the avoidance of the church by death, resignation, or otherwise, the said bishop and his successors should hold the said church to their proper use. The bishop afterwards made a lease by indenture for sixty years, to commence at such time as the said parsonage should come to the hands of the said bishop or his successors by the death, resignation, or otherwise, of the incumbent, which lease was confirmed by the dean and chapter. The bishop died; the incumbent died ; the successor of the bishop entered, and made a lease for twenty-one years to Montgomery ; and it was resolved, that the first lease was void, because the lessor had nothing in the parsonage impropriate during the life of the incum- bent, who survived the lessor (m) ; and that it could not take effect by estoppel, because it appeared in the indenture itself Palmer and RoUe, that the lease was renders the difference unimportant, not granted by Tonery till after Bale's (m) Montgomery's case, 2 Dy. 244, a. death ; but the ground of the judgment 10 Co. 48, a. VOL. 1. U 290 OF THE CONTRACTING PARTIES. [Part III. that the lessor had nothing at the time of the lease made {n) . And a similar case (o) was afterwards ruled accordingly by Dyer, Justice, and Welshe, Justice. But if one be lawful bishop at the time of making the lease, no subsequent deprivation will avoid it (p). To qualify a parson to bind his successor by lease, it is sufficient if he be a parson de facto at the time of the lease. Thus, where a layman was presented to a benefice, instituted, and inducted, and leased the same with the confirmation of the patron and ordinary, and was then deprived on the ground of his being a lay person, still the lease was considered unim- peachable, having been made by the parson de facto, and duly confirmed (^). So, when the clergy were prohibited from marrying, if a parson made a lease with the requisite confirmation, and was afterwards deprived for having con- tracted matrimony, the lease could not be disturbed, as he was lawful parson at the period of confirmation (r) . Though the incumbent be even an infant {s), his leases, if duly confirmed, will bind his successor; for, having been regularly admitted to exercise the ecclesiastical function, he is supposed to be as competent to perform all things in his corporate capacity as a person of full age (t). And it seems that an incumbent's power of leasing, as incumbent, is not destroyed by his election merely to a bishopric; for the vacancy of his benefice accrues on his consecration, and not before [u). The lessees of incumbents guilty of simoniacal dealings are protected by an act of parliament (x), which provided {y), that (n) 1 Co. 155, a. 1.05. pi. 234. (o) Jobson V. Michael, cited, 2 Dy. (r) 1 Rol. Ab. Confii'mation, (F.) 244, b. pi. 2. 2Dy. 133, a. (p) Bac. Ab. Leases, (F.) p. 367. (s) See leases by infants, aute, p. 33, Bro. Ab. Leases, pi. C8. note, (m). (q) Costard v. Winder, or Wingate, (t) Bro. Ab. Age, pi. G4. 80. Bac. Cro. Ellz. 775; S. C. Mo. OOG. Dr. Ab. Leases, (F). Ilarscot's case, Comb. 202. 1 Rol. Ab. {n) The King v. The Bishop of Confirmation, (F.) pi. 1. SeeBedin- London, Carth. 314. 41 E. 3. 5,b. field V. Ai-chbishoj) of Canterbury and (x) 1 W. & M. st. I. c. 16. Pickering, 3 Dy. 292, b. ; S. C. Bcnl. (y) Sect. 3. Ch. I. s. IV.] WHO lessors: — ecclesiast: corpoiiations. 291 no lease or leases really and bona fide made, or thereafter to be made, by any such person simoniac, or simoniacally promoted to any deanery, prebend, or parsonage, or other ecclesiastical benefice or dignity, for good and valuable con- sideration, to any tenant or person not being privy unto, or having notice of, any such simony, shall be impeached or avoided for or by reason of such simony, but shall be good and effectual in law, the said simony notwithstanding. If the church be already full of an incumbent, and another be collated to the benefice by the ordinary, the lease of the collatee cannot be supported, though confirmed by the patron and ordinary, for he was not parson when he granted the lease (z). So, if the church be void, and one wrongfully enter, and without presentation or institution occupy the benefice as parson, his lease is void, though duly confirmed by the patron and ordinary (a). So, a lease by a parson in the interval between presentation and induction will not bind the succes- sor, because till induction the lessor can have nothing in the temporal possessions {b) . According to Rolle (c), who cites 9 H. 6. 33, if the in- cumbent of a usurper make a lease, with the confirmation of the usurper and ordinary, and afterwards the true patron recover in a quare impedit, and remove the incumbent, the lease is defeated ; for, in this case, he says, there was neither a rightful parson nor patron; but, according to C. B. Gilbert {d), who also relies on 9 H. 6. 33, it seems that the lease shall stand ; because there was a patron de facto, who made and confirmed the lease, and the parson coming in by all the solemnities of law, when the church was void, the people could take notice of no other; and, therefore, all acts done by him and legally confirmed are good : but the learned baron, (z) 1 Rol. Ab. Confirmation, (F.) 2 Bla. Com. 312. Evans v. Askwith, pi. 3. Ascuithe, or Ascough, W. Jo. 158; (a) 1 Rol. Ab. Confix-mation, (F.) S. C. Palm. 457; Latch, 233. Hare pi. 4. V. Biokley, Plowd. 528, a. (b) Ibid. Bac. Ab. Leases (G.) 3. (o) 1 Rol. Ab. liiO (N.) pi. 4. p. 387. Anon. 2 Dy. 221, b. pi. (18). ((/) Bac. Ab. Leases, (G.) 3. p. 387. u 2 293 OF THE CONTRACTING PARTIES. [Paut HI. after noticing that Rolle cites the same case for a different position, concludes with, ideo qucere. But they both agree, that if a church be void, and one enter and occupy of his own wrong as parson, witliout presenta- tion or institution, and make a lease, which is confirmed by the patron and ordinary, such lease cannot be supported, as the lessor was never parson ; for none can be parson without presentation or collation (e). During the progress of this part of our subject, frequent allusion has been made to the circumstance of confirmation, as "^ being necessary to the validity of certain ecclesiastical leases; / and, notwithstanding the facilities of leasing afforded by the enabling statutes above noticed have in a great measure superseded the necessity for the confirmation required by the common law, still, as that formality is essential to the leases of parsons and vicars, who are excepted from the act of 32 Hen. 8. c. 28, and other spiritual corporations sole which do not comply with the provisions of such enabling acts, the doctrine retains sufficient importance to demand a detailed examination. The reader, however, will bear in mind that leases at common law only are here referred to. It is also to be remembered that confirmation, in the sense in which it is here used, signifies an assent to, concurrence in, or approbation of, the grant of another, and may be made either before or after the passing of any interest; and in this respect is distinguishable from confirmation in its usual meaning, which implies an interest already passed (/). In some cases, the confirmation of the patron is necessary; in others, it may be dispensed with ; the distinction depend- ing upon the nature of the estate or right vested in the lessor; thus, such sole corporations as have not the absolute fee and inheritance in them, as prebendaries, parsons, vicars, and the like, cannot make leases at common law, to bind their successors, without the confirmation of the patron ; but such sole corporations as have the whole estate and right in them, ('J Ilol. Ab. Contirmatioii, (F.) pi. 4. Bac. Ab. Leases, (G.) 3. p. 387. (/) ClianilKTb oil Leawes, p. 277. Cii. I.s. IV.J WHO lessors: ECCLESIAST: CORPORATIONS. 293 as bishops; or such corporations aggregate as have the whole fee and inheritance in them, as dean and chapter, master, fellows, and scholars, of any college, hospital, &c., can, though such bishop, dean, master, &c., be presentable (^) . The King's confirmation, therefore, though he is patron of all bishoprics, and of most ecclesiastical dignities, is very seldom required (h) . The proper parties to confirm the leases of archbishops and bishops, not warranted by any of the statutes above referred to, are their respective deans and chapters (?) . The confirm- ation of the King is not necessary (k). If a bishop have two chapters, the confirmation of both chapters must be ob- tained (/) ; but if one dean and chapter surrender their pos- sessions to the King, and then the bishop make a lease, to which confirmation is necessary, and the lease be confirmed by the remaining dean and chapter only, the successor will be bound ; because, by the surrender, the one dean and chapter are dissolved, and are as if they had never existed (m) ; and such confirmation will be sufficient, although the dean and chapter so dissolved be again erected (n). The bishopric of Waterford and Lismore, being originally two bishoprics distinct, were by lawful authority, in the reign of Edward the 3rd, united and consolidated, but the chapters remained several : after this union, the charter of which was lost, the bishop aliened lands of the see of Waterford (o), and aliened lands of the see of Lismore, with the confirmation of the ((/) Co. Lit. 300, b. Bac. Ab. Leases, lauds without the coufiiination of their (G.) 2. p, 377. 3 Bos. & Pul. 328. chapters. (/t) Chamb. on Leases, p. 265. (Z) Co. Lit. 300, b. 301, a. Anon. (i) Co. Lit. 300, b. 3 Co. 75, a. Dy. 58, b. pi. 7. Archbishop of Dub- Jenk. Cent. 235, case 11. Bishop of lin v. Bi-uerton, 3 Dy. 282, b.; S. C. Salisbury's case, 10 Co. GO, a. Bishop Jenk. Cent. 235, case 11. Noy, 94. of Hereford r. Scory, Cro. EUz. 874. 1 Leon. 234. Latch, 237. Bunny v. Wright, 1 Leon. 59. (m) Archbishop of Dublin r. Bruer- (k) Co. Lit. 301, a. It was said by ton, sup. Co. Lit. 301, a. Boteler, in argument, in Lewis v. (n) Bac. Ab. Leases, (G.) 2. p. 379. Adams, 3 July, 1843, before Wigram, 1 Rol. Ab. 477. (H.) pi. 5. 6. V. C, that tlie leases of bishops did not (o) Qy. With the confu'mation of require confirmation before the 3rd the chapter of Waterford 1 It is not council of Nice, by whose decree they so stated in the report, were restrained from alienmg their 294 OF THE CONTRACTING PARTIES. LPaRT HI. chapter of Lismore; and a question arose, whether sucli alienations, being withovit the confirmations of both the deans and chapters, were not voidable by the successor; and it was resolved, that, inasmuch as the usage had been, after the said union, for the several deans and chapters severally to make confirmations, it must be intended that the union was made especially with a view to separate confirmations ; parti- cularly when the confusion attendant on a different course, and the remoteness of the deaneries and chapters from each other, were taken into consideration. But, had the union been made generally, and the bishop been eligible by both chapters, the estates made ought to have been confirmed by both chapters (p) . If a bishop have no dean and chapter, his leases must be confirmed by the clergy of his diocese (g). Where leases require confirmation by the dean and chapter, the dean himself must join with the chapter ; as confirmation by his subdean, deputy, or proctor, will not be sufficient ; for though the dean^s commissary or deputy may exercise his spiritual jurisdiction, he has no power to charge the pos- sessions of the church (r) ; unless, perhaps, he be invested by the patron or founder of the corporation with authority for that purpose [s). A dean by recipere in commendam [f), as he holds the {p) The case of the Bishopric of case 97. Evans v. Ascuithe, Askwith, Waterford and Lismore, 12 Co. 71. b. Asciuth, or Ascough, Palm. 457. 461 ; {q) Case of Proxies, or Rex v. S. C. W.Jo. 158; Noy, 93-4 ; Latch, Forth, Dav.l. Rol. Ab. Confinnation, 31.233; S. C, nom. Vaughan r. Ascue, (II) pi. 3. Bac. Ab. Leases, (G) 2. 2 Rol. 450. It is related of Ridley, when at the (s) Bac. Ab. Leases, (G) 2. p. 380. stake, that " then did he move the Lord (t) Comnenda, or Ecdcsia commen- Williams to intercede that the leases data, is a living commended by the which he had made as bishop of Lon- crown to the care of a clerk, to hold don mif^Iit be confirmed, and when he till a proper pastor be provided for it ; had relieved his conscience of this his 1 Bla. Com. 39,'); and he to whom the oidy worldly care, a kindled faggot church is commended hath the profits was laid at his feet." Blunt's Hist, of thereof only for a certain time, and the Refomiation, p. 292. the nature of the church is not changed (r) Bac. Ab. Leases, (G) 2. p. 329. thereby. When a parson is made Dean and Chajiter of Kerne's case, bishop, there is a cession or voidance Dav. 42. 47. Bishop of Litchfield r. of his benefice by the promotion ; but FiBher, 2 I)y. 145, b. Anon. Dy. if the King by siwcial dispensation 233, b. pi. (l.<); S. C. Jcnk. Cent. 229, give him power to retain his benefice, Cii. I. ^. IV.] ^VH0 lessors: — ecclesiast: corporations. 295 deanery simply by virtue of the dispensation, and is but a depositary, and not a complete dean, is not competent to confii'm the bishop's lease {u) ; nor is it settled by Avhom that duty must in this case be performed. In all probabilit}^, by the clergy of the diocese, as in cases where the bishop has no dean and chapter {x). But it is otherwise, where the dispensation is i^etinere in commendam ; for this pri\dlege neither confers a new title on the dean with regard to his deanery, nor deprives him of his former right ; but he continues dean to all intents and pur- poses ; and, therefore, no disqualification to confirm leases ensues on his being elected bishop, whether of an English or Irish bishopric is immaterial, if previously to consecration he obtain a dispensation retinere in commendam {y) . So, if a bishop, retaining a deanery in commendam, be translated to another bishopric, and, after his election, and before con- firmation, obtain a new dispensation to hold the same deanery in commendam with the second bishopric, his old title re- mains, and confirmations and other acts done by him as dean are as efi'ectual as if he had never been made a bishop {z). If the dispensation be deferred till after the consecration, in the case of a newly-created bishop, or, in the case of a trans- lation, till after the bishop be confirmed, it comes too late ; notwithstanding his promotion, he shall act of 6 & 7 W. 4. c. 77 ; see sect. 18 ; continue parson, and is said to hold it and every commendam thereafter in commendam. A conuneudam reti- granted, whether to retain or to re- tierc is for a bishop to retain benefices eeive, and whether temporary or per- ou his preferment, and these commen- petual, is thereby declared to be abso- dams are granted on the King's man- lutely void. Sect. 18. date to the archbishop, expressmg his (») Evans v. Ascuithe, Askwith, As- coDsent, which continues the incum- eiuth, or Ascough, or Vaughan v. bency, so that there is no occasion for Ascue, sup. Thornborough's case, institution. A commendam recipere is Bendl. 187. to take a benefice de novo in the {x) Bac. Ab. Leases, (G) 2. p. .380. bishop's own gift, or in the gift of some See ante, p. 294. other pai-son, whose consent must be (y) Evans v. Askwith, Ascuithe, As- obtained, eiuth, or Ascough, or Vaughan v. No ecclesiastical dignity, oifice, or Ascue, sup. p. 294. note, (r) Thorn- benefice, can now be held in commen- borough's case, sup. dam by any bishop, unless he held the (:) Ibid. Bac. Ab. Leases, (G) 2. same at the time of the passing of the p. 380. 206 OF THE CONTRACTING PARTIES. [['aUT 111. for the benefice previously holden becomes void by cession immediately on such consecration or confirmation (a). And here may be noticed that a faculty to retain the dignity of the deanery, and to receive the fruits and profits thereof^ is tantamount to a dispensation to retain the deanery itself (i). The confirmation by the dean and chapter is testified by their corporate seal being affixed to the lease, an act equiva- lent to delivery in the case of common persons (c) ; and the seal is prima facie evidence that the confirmation has been fairly obtained; though evidence is admissible to prove the contrary {d). An assent given by the dean and by the various members constituting the chapter at different times and places, being but the assent of each individual in his private capacity, will not amount to a confirmation. The performance of this solemn and deliberate act requires the personal presence of the dean and chapter capitulariter con- gregati [e] ; but they are not constrained to assemble in their chapter-house; indeed, the place of meeting, provided it be the same, is unimportant (/). Nor is it required that the consent of every member be obtained : provided the majority confirm, the lease is good, notwithstanding the absence or positive dissent of the mi- norit}^ (g). Were it otherwise, the corruption or perverse- ness of one or two members might prejudice the whole corporation {h). But by usage, a chapter may be held without a majority of the whole body (?'). Though, of common right, the assent of the majority was ('0 Ibi. (l) 3 Bac. Ab. Leases, (G) 1. 2. Rol. Ab. 478 (K) pi. 4. Lit. s. 652. (/() 1 Dy. 40, b. marg. 298 OF THE CONTRACTING PARTIES. [Part 111. concurrence of the bishop^ as well as of the chapter, must be obtained. The early cases, though not expressly deciding the point, appear to negative the necessity for his confirma- tion. For instance, in Chafyn de Meere's case (o), the dean of Salisbury made a lease of the parsonage of Meere, with the consent of the whole chapter ; and the court held, that, if the dean and chapter together were parsons imparsonees, the lease was void, because all of them were capable by law of making a lease, or being impleaded ; but it was otherwise if the dean alone in right of his deanery was parson, for then he alone was the lessor, and the chapter only assentors. The Hke inference is justified by the case of Walrond v. Pollard {p) . The deanery of the cathedral church of Wells was dissolved by surrender, the dissolution was confirmed by act of parhament, and a new deanery was erected by the act, and to the King was given the nomination by letters patent of the new dean and his successors : the court were of opinion that the King's confirmation was not necessary, for the words of the act were, that the new dean and his successors might grant, demise, and depart with their possessions, in the same manner and form as the ancient deans might and used to do, which, they said, never was to have the confirmation of the bishop, but only of the chapter. This case, it is said, cannot be considered as a direct authority against the necessity for the bishop's concurrence, as it depended on special circum- stances {g) ; but, supposing the bishop's confirmation to have been essential in the generahty of cases, it is strange that no notice is taken in the report of the peculiar ground on which the deans of WeUs originally claimed exemption from the general rule of law. So in Haley v. Rownd(r), the dean of Sarum, seised of the (o) 1 Dy. 40, h. Sec also Jenk. and chapter ; and in support of his Cent. 235, ease 11. position refei's to Goodman's case, Dy. (p) Walrond V. Pollard, 3 Dy. 27 3, a. 272, meaning, no doubt, Walrond r. Mirchouse, in his treatise on Advow- Pollard, sup. Hons, p. 3.3, states, that all deaneries (f/) Clumib. on Leases, \). 207. arc subject to ei)iHcopal visitation, and (;■) Haley !>. Rownd, 3 Dy. 34.'), b.; Jhat the grants of any of their i)ossch- S. C. Bonl. 283. sions must be confirmed by the bishop Cii. I. S. IV.] WHO lessors: — ECCLESIAST: CORPORATIONS. 299 rectory of Sonning in right of his deanery, leased 200 acres thereof for the term of sixty years, and the lease was con- firmed by the dean and chapter. The case was determined without reference to the question in discussion ; but no objection was taken to the lease on account of its not being confirmed by the bishop. And RoUe, in his Abridgment (5), asserts, without qualifica- tion, that the assent of the chapter is a sufficient confirmation, as the dean solely has the estate ; and he adds, somewhat inconclusively perhaps, that the writ de sine assensu capituli [t) would prove that only one assent is necessary. These cases, therefore, if not decisively in favor of the validity of the dean^s lease, though it be not confirmed by the bishop, require strong authority to establish an opposite doctrine. It appears, indeed, that Lord Chief Baron Gilbert was inclined to a different opinion {u). That learned judge, after noticing that several books seemed to hold that the confirma- tion of the chapter alone, without the bishop, was sufficient to make good the dean's leases or grants that needed confir- mation, observed, " but yet it is laid down as a rule in the Parson's Counsellor {w), that the bishop's confirmation, as well as the chapter's, is necessary to all leases and grants made by the dean; and what is said by Fitzherbert(?/), that the bishop and chapter are in law looked upon but as one body, seems also to favor this opinion ; for it is reasonable that the whole body should consent to the granting of theii' posses- sions, and not that the bishop, who is the head of the body, should be unconcerned therein : also the possessions of the dean are said to be derived from, and carved out of, the bishopric; and the bishop de jure is said to be patron of the deanery; which are all strong arguments to prove the bishop's confirmation necessary; though no book case can be (s) 1 RoU Ab. 478 (K) pi. 1. And (,c) Degge, 120. see Plowd. 538. (y) F. N. B. 194. and p. 451, 7th (0 F. N. B. 194 ; and, 7th'cd., 450. edit, (it) 11 Bac. Ab. Leases, (G) 2. p. 378. y 300 OF THE CONTRACTING PARTIES. LI'aki HI. found expressly to warrant it, but rather the contrary, as appears by the cases first cited (;r), wherein no notice is taken of the bishop's confirmation, or that it is necessary/' The passage concludes with, ideo quoire. It is clear that the King's confirmation is not necessary, unless the deanery be merely donative, in which case his consent and confirmation, as patron, must be obtained; and this Avithout the bishop's confirmation is sufficient, as in all other donatives, with which the bishop has nothing to do («). The distinction between the sole seisin of the dean, in right of his deanery, and his seisin jointly with his chapter, leads to the consequence, that, in the former case, the assent of the chapter is all that is required of them ; and if that be obtained, and their common seal be annexed to the deed, their concurrence in the operative or granting part of the lease maybe dispensed with; but, in the latter, as the chapter have an equal interest in the lands, and constitute but one body in law, they, as well as the dean, must be granting parties, and a mere consent will not be sufficient [b). Prebendal leases, when they need confirmation, must be confirmed by the bishop, dean, and chapter (c). The bishop's concurrence is requisite because he is the patron and ordinary of every prebend [d) ; and that of the dean and chapter, because the patronage constitutes part of the possessions of the bishopric, of which the bishop cannot dispose without their consent (e). But it is observable, that if he alone con- firm the lease, and, on the prebendary's death, collate another to the benefice, the new incumbent cannot avoid the lease, Ijecause he derives his interest purely from the collation of the bishop, as patron and ordinary, without any aid or con- (2) Being the cases noticed above. Dy. 61, b. pi. (."lO). Ilodgeskins v. (a) Bac. Ab. Leases, (G) 2. p. 378. Tucker, 2 Dy. 23!), a. b. ; S. C. Benl. Rol. Ab. Confirmatiou, (R.) pi. 1. 80. pi. 126. Champion's case, 1 Dy. VValron) Chafyn dc Mecre's case, 1 Dy. {d) Ibid. 1 Rol. Ab. 4!!1, Confirm- -10,1). Plowd. 199. Ireland V. Barker, ation, (P) pi. 3. Dy. 61, b. pi. (30). (io.lb. 210. 2 Leon. 176. Clark's case, {c) 1 Rol. Ab. 17.'), (M) pi. 2 ; 481, \ Leon. 11. (P) i>l. 1. Smith v. Bowles, 3 Bulstr. ('•) Jenk.Cent. 23.5,ca8e 11, Anon. JtlO. Ch. I. s. IV.] WHO lessors: ECCLESIAST: CORPORATIONS. 301 currence of the clean and chapter (/) . If even the bishop be translated, or resign, or l^e deprived of his bishopric, the leases confirmed by him alone will, during his life, bind the succeed- ing bishop and his incumbent; but on his death they are at an end {g). Where a rectory within the diocese of Exeter had, by the grant of King Henry the 2nd, and of the bishop of Exeter, been annexed to, and become parcel of, the prebend of Salis- bury, it was held, that a lease by the prebendary, confirmed by the bishop of Salisbury and the dean and chapter of Salisbury, though not by the bishop of Exeter, was good ; for although he Avas inducted by the latter, yet he was instituted by the former, and swore to him the oath of canonical obedience {h) . The leases of archdeacons and canons must, in like manner, be confirmed by the bishop, dean, and chapter {i) . Leases by parsons and vicars who, as we may remember (A:), were specially excluded from the benefits of the enabling statute of 32 Hen. 8. c. 28, in general require no other con- firmation than that of the patron of the li\dng, and of the bishop of the diocese (/) . The parson is the only granting or leasing party ; the patron and ordinary, who have no real interest in the lands, though the law considers it expedient to require their concurrence, express theu' consent in the body of the deed, and afl&x their respective seals in evidence of the fact (m) . If the bishop be patron of the church, in right of his bishopric, and ordinary also, the confirmation of the dean and chapter must be obtained; as the advowson of the church constitutes parcel of the bishopric, and cannot be charged by (f) Ibid. Anon. 3 Dy. 356, b. pi. {k) Ante, p. 239. (42). Co. Lit. 329, a. Bac. Ab. Leases, (Z) Co. Lit. 300, b. 3 Bos. & Pul. (G) 2. p. 376. 1 Leon. 235. 328. See 5 & 6 Vict. c. 108, s. 20, (g) Bac. Ab. Leases, (G) 2. p. 376-7. which requires, in the pax'ticular cases (7t) Gie r. Rider, 1 Sid. 75 ; S. C. there provided for, the consent of the nom. Jay v. Ryder, 1 Keb. 280. Leigh pati'on and ecclesiastical commissioners ?'. Helher, Rol. Ab. Confirmation, (L). for England. See ante, p. 279. Herbert v. Munday, Cro. Eliz. 587. (m) Bac. Ab. Leases, (G) 2. p. 383. (i Bac. Ab. Leases, (G) 2, p. 37C. 302 OF THE CONTRACTING PARTIES. [Part HI. tlie bishop, to the prejudice of his successor, without such confirmation (w). Nor, on the other hand, can the confirma- tion by the dean and chapter, without that of the bishop, where he is patron as well as ordinary, avail against the succeeding collatee ; for he claims his benefice under a title unconnected with, and independent of, their assent or con- currence (o) . Thus, one Rawlings, then formerly a provost in the cathedral church of Wells, being parson imparsonee of the parsonage of Winsame, made a lease, before the statute of 13 EHz. c. 10, of the land and tithes of the parsonage for fifty years to one Tucker, rendering rent ; and the lease was confirmed by the dean and chapter, but not by the bishop, who was patron] and ordinary; and, the deanery of Wells being afterwards dissolved, and a new deanery erected by act of parliament, it was declared that the same provostship should be united to the new deanery whenever it should become vacant. On the death of Hawlings, the provost and lessor, the first dean of the new erection, after acceptance of rent from Tucker, made a new lease, before the 13th of Eliz., of the said land and tithes for sixty years, with the confirmation of the bishop, and of the dean and chapter also ; and the court held, that the lease of the provost was not voidable only, but actually void and determined by his death, notwith- standing the acceptance of rent by the new dean; because the bishop of the diocese had not confirmed it (^j) . But if the bishop only, being patron as well as ordinary, confirm the lease of the parson, and upon his death the bishop collate another to the living, the new incumbent cannot avoid his predecessor's lease, notwithstanding its want of confirma- tion by the dean and chapter; for, deriving his interest solely from the bishop, he is bound by what his patron had pre- viously done (17). The law is the same whether the lease be made by a parson, vicar, dean, archdeacon, or prebendary (r) . (n) Co. Lit. ;iOO, b. :5 Dy. 3.56, b. (q) Anon. Dy. ;}56, b. pi. (42). Co. llol. Ah. Confinnation, (P) pi. 1. Lit. 32D, a. 1 Leon. 2.'5.5. Smith v. (o) IJac. Ah. Leases, (G) 2. p. 37f>. Bowles, 1 Rol. Al). 47!l, Confirmation, (/() lloilnesliins v. Tucker, 2 Dy. (M). i)l. .'5. 2;{.'», a. ; S. (;. Benl. !!(>. ].!. 12^1. ' (r) Ibid. Ch. I. S. IV.] WHO lessors: ECCLESIAST: CORPORATIONS. 303 In case the bishop be translated, or resign, or l)c deprived of his bishopric, his confirmation, without that of the dean and chapter, will bind his successor, during his (the bishop's) life (s) ; but, having no power to charge the possessions of the bishopric for a longer period than his OAvn life, without their consent, the sole confirmation of the bishop must necessarily determine on his death {t). * The confirmation of the dean and chapter is not necessary to a lease by a parson or vicar («). It is to be observed, that the distinction before taken {oc) between dispensations recipere in commendam, and retinere in commendam, is as applicable to bishoprics as to deaneries (y) . A mere commendatory bishop in the recipere cannot confirm leases; but, in such case, the duty devolves on the archbishop (z). The sufiragans, commissaries, or deputies, of bishops, and guardians of the spiritualities during a vacancy, are subject to the same disability {a) . Where there is a patron paramount, as well as an imme- /pi^t^^t-^u,^^ *"(r^ diate patron, confirmation by the latter only is not good: /S''^^ --^ '^ ^^' for example, if a parson, being patron in right of his par- Xl^'t^^ ■ '^ /^ sonage of S., present B., a lease by B., confirmed by the patron and ordinary, is not good, unless it be also confirmed by the patron of the rectory; because both have an interest in the possessions of the church of S. (A). But where a par- sonage within the diocese of Winton was annexed to a prebend in Sarum, it was held, that a lease made by the pre- bendary, with the confirmation of the bishop, dean, and chapter, of Sarum, could not be avoided for want of con- firmation by the bishop of Winton (c) . If the parsonage or vicarage be donative, no other con- firmation than that of the patron is required {d) . (s) Bac. Ab. Leases, (G) 2. Co. Lit. (a) Latch, 237. 300, b. (h) Co. Lit. 300, b. Bac, Ab. Leases, (t) Ibid. (G) 2. p. 377. [u) Co. Lit. 300, b. 1 Rol. Ab. 481. (c) Herbert v. Munday, Cro. Eliz. ConfirmatioB, (Q,). pi. 2. Bro. Ab. 587. Jay r. Ryder, 1 Keb. 280 ; S. C, Leases, pi. 64. nom. Gie r. Rider, Sid. 75. Leigh r. (x) Ante, p. 294-5. Hellicr, Rol. Ab. Confirmation, (L). Oj) Bac. Ab. Leases, (G) 2. p. 380. (.\P>,a. 2 Dy. 2.39, b. marg. I'Veiiclic's case, cited, Cro. Jac. .')3. til. I. S. IV, J WHO lessors: ECCLESIAST: COKI'OHATIONS. 307 Some of the cases (a), however, draw a distinction between a chattel, and a freehold lease, and maintain that the latter are voidable only by the entry of the succeeding incumbent, and not void. The patron's confirmation cannot endure for a longer period than the continuance of his estate. Thus, if his estate be conditional upon his performing some act, and after confirming the incumbent's lease, the condition be broken, the confirmation is determined [b) . So, if the patron be tenant for life, or in tail, his confirmation will not be binding on his successor after his death, but on such only as come into the church during his life (c) ; and, therefore, the presentee of a remainder-man or reversioner after the death of a tenant for life, or of issue in tail after the death of his ancestor, may avoid the lease so confirmed by the tenant for life or in tail {d) . And even if the son and heir apparent of the tenant in tail of an advowson join with his father in the confirmation, he will not be bound, as he has no interest at the time (e). But a disentailment of the estate tail will of course preclude the issue from disturbing the lessee (/). So, formerly, where a tenant in tail discontinued the estate tail, the lease confirmed by him could not be avoided during the discontinuance {g). So, where husband and wife, being patrons in right of the wife, confirm a lease made by the parson, she -will not be bound by the confirmation in case of her sm'vi^dng her husband, for her mere deed during coverture is voidable, if not void {h) : though, without doubt, the husband will be (a) Hodgeskms v. Tucker, 2 Dy. Wivel v. Bishop of Chester, 1 Brownl. 239, a. b. ; S. C. Benl. 80. pi. 126. ' 165. (b) Co.Lit. 300, b. (/) Co. Lit. 300, b. Bac. Ab. Leases, (c) Ibid. Lit. s. 528. Lancaster (G) 3. p. 385. Stebbiug v. , 3 Dy. V. Lucas, 1 Leon. 234. Maund, or 252. a. Mawde, v. French, 1 Rol. 36 ; 2 Rol. 8 ; (g) Ibid. Discontmuances are now J. Bridgm. .02. Rol. Ab. Confirmation, at an end. See 3 & 4 W. 4. c. 27, and (N). pi. 2. 8 & 9 Vict. c. 106. (d) Ibid. Stebbing v. , 3 Dy. (h) 1 Rol. Ab. 47.0, Confirmation,(N) 252, a. " pi. 1. Lancaster i\ Lucas, 1 Leon. 233. (e) 1 Rol. Ab. 482, Confirmation, Anon. Dy. 133, a. And see as to leases (S) pi. 2. And see Sir Marmaduke by husband and wife, ante, p. 138, e^se^. Wivell's ca.se. Hob. 45 ; S. C, noni. 308 OF THE CONTRACTING PARTIES. [Part III. boundj if he survive, and be entitled as tenant by the cui'tesy (i) . On the same principle, if the patron, previously to confirm- ing his incumbent's lease, grant the next avoidance to another, the presentee of the grantee may defeat the lease, unless the grantee also confirm it (k). And when once defeated, no future circumstance can revive it as against a succeeding incumbent ; although he be presented by the very patron by whom it had pre^dously been confirmed (/). If the patronage reside in three coparceners, or tenants in common, all must join in confirming the parson's lease, to render it binding on the next incumbent, because they con- stitute but one patron (m). But if the parson make a lease for years, which is confirmed by the ordinary and one only of two patrons of the church, and after the parson's death the ordinary collate by lapse, it appears that such confirmation will be good against the collatee {n). If there be a composition to present by turns, it is doubtful whether a lease confirmed by him who has the next turn will bind his presentee (o) . The confirmation need not be for the entire term granted by the lease, but may embrace a portion of the years only. To effect the latter object, however, proper words are neces- sary ; for if a lease requiring confirmation be granted for twenty-one years, and the parties possessing the right of confirming confirm the demise, or the grant, or the term, or the estate, each of which is in itself entire, for seven years only, and no more, the confirmation will extend to the whole term ; for the words of qualification are repugnant, and inca- pable of confirming a lease and term of twenty-one years (i) Co. Lit. 29, a. lC6,b. (I) Ibid. Bac. Ab. Leases, (G) 3. (k) Anon. Dy. 72, b. pL (5) ; and p. 386. Ibid. marg. ; cited, Mo. 481. Earl of (ni) Bac. Ab. Leases, (G) 3. p. 386. fJedford's case, 7 Co. 8, a. Oldfield v. (n) Ibid. Lancaster v. Lucas, 1 I'lowdon, W.Jo. 454; Plowdcn v. Old- Leon. 233. The case was adjourned ; ford, Cro. Car. .582. S])cndlo\ves v. but see Dy. 72, b. marg. (h). nuri«;t, Hob. 7. Anon. 2 Dy, 133, a. (o) Bac. Ab. Leases, (G) 3. p. 386. |<1. (1). Anon. Mo. 6C. pi. 180. Lancaster v. Lucas, 1 Leon. 234. Ch. I. s. IV.] WHO lessors: ECCLESIAST: CORPORATIONS. 309 for seven years [p). But the confirming parties may, without inconsistency, confirm the land, or part of the land, as one or more acres, for a shorter period than the term granted, or with a condition annexed {q). But if the lease be for a life or lives, instead of years, it appears that the confirmation cannot be apportioned {r) . The leases of bishops and deans, who have the absolute fee in themselves, made without the requisite confirmation, do not appear to become absolutely void on their death or removal ; but are voidable only by the successor ; and, hence, may be established by the successor's acceptance of rent from the lessee {s) . The statute of 13 Eliz. {t), which avoided leases of bene- fices or ecclesiastical promotions with cure, and not impro- priated, by the residence of the lessor from his benefice for above fourscore days in the year; and the acts of 14 Eliz. c. 11, and IS Eliz. c. 11, and 43 Eliz. c. 9, by which it was continued, explained, and amended, and the act of 3 Car. 1 . c. 4, by which these acts were made perpetual, were repealed by the act of 43 Geo. 3. c. 84. s. 10, which, together with the other acts just noticed, was repealed by an act of 57 Geo. 3 (m). This, in its turn, except so far as it repealed the other acts, was repealed by 1 & 2 Vict. c. 106, by which {v) any agree- ment for the letting of the house of residence, or the buildings, gardens, orchards, or appurtenances, necessary for the con- venient occupation of the same, belonging to any benefice, to which house of residence any spiritual person may be (p) Foord's case, 5 Co. 81, a. ; S. C, Foster, 1 Dy. 80, b. nom. Belford v. Foord, Cro. Eliz. 447, (r) 5 Co. 82, a. Co. Lit. 297, a. and nom. Betford r. Ford, Cro. Eliz. (s) Grindarscase,4Leon.78. Over- 472, the second page of that number. ton v. Sydall, Poph. 120-1. Co. Lit. Anon. 1 And. 47. case 119. Tom- 45, b. Bro. Ab. Aeceptaunce, pi. 20. linson's case, Hetl. 75. Anon. 3 Dy. Confirmaeion, pi. 17. Lease, pi. 18. 32. 338, b. pi. 43 ; S. C. Benl. 238. pi. 265. 33. Plowd. 264. And see Herreyong Fitzwilliam's case, Dy. 52, b. pi. (4). v. Goddard, Dy. 46, a. Hardr. 156. Winch, 95., Lloyd v. Wilkinson, Mo. Rickman v. Garth, Cro. Jac. 173. 481. Co. Lit. 297, a. (0 13 EUz. c. 20. (?) Ibid. Bac. Ab. Leases, (G) 2. (m) 57 Geo. 3. c. 99. p. 384. And see Lord Willoughby v. (v) 1 & 2 Vict. c. 106. s. 59. 310 or THE CONTRACTING PARTIES. [Part III. required by order of tlie bishop {w) to proceed, and to reside therein, or which may be assigned or appointed as a residence to any curate by the bishop, is directed to be made in writing, and to contain a condition for avoiding the same upon a copy of such order, assignment, or appointment, being served upon the occupier, or left at the house, and otherwise to be null and void ; and a tenant holding pos- session after service of a copy of the order, assignment, or appointment, is not only made liable to a penalty of 40s. a day dui-ing the continuance of such adverse possession, but may be summarily ejected by a peace-officer, on a warrant to be obtained by the spiritual person from any justice of the peace ha\dng jurisdiction in the place. A contract by a parson to grant a lease of his ecclesiastical possessions is broken by his resignation [x) . A book in which leases were enrolled, and which was kept in the office of the auditor of the bishop of Durham, (such officer holding a patent office in the county palatine,) was held to be admissible in evidence to sustain the claims of a lessee of the bishop of Diu'ham, the original and counterpart of the lease being lost {y). Notwithstanding the various alterations, great and impor- tant as they are, effected bj^ the acts of parliament passed of late years, and noticed above, the system of leasing by eccle- siastical bodies is still considered by many persons competent to form an opinion {z) to be unsound and unsatisfactory, whether looked upon with reference to the interests of the contracting parties, or its efiect upon agricultural and other improvement; and more sweeping changes have in conse- quence been contemplated. The select committee on church leases, after specifying the evils of the existing mode, con- clude their report in 1839 by recommending, {w) See Sect. 64. (s) See the report of the Select (x) Rvidge V. Thomas, 3 Rulstr. 202. Committee on Chiu'ch Leases, and the rrico V. Williams, 1 .Mecs. k Wcls. fi. minutes of evidence ordered by the (?/) Humbler. Hunt, Holt's N. I'. C. House of Commons to be printed, 001. fi May, laa.o. Cii. I. s. IV.] WHO lessors: ECCLESIAST: CORPORATIONS. 311 1. The abolition of the injui'ious system of fines upon leases for lives, and also upon leases for terms. 2. The substitution of a fee-simple, for a leasehold tenure, throughout the property of the chiu'ch. 3. An act to provide for the conversion of church leasehold into fee-simple, commonly called enfranchisement. 4. The customary confidence of renewal by the lessee to be considered according to local circumstances, by the autho- rities established under the proposed act, in the principles of enfranchisement laid down by them : and, 5. The interests of the church, present as weU as future, to be provided for by a combined system of money papnents and corn rent-charges. As this report was made before the acts of 5 Vict. sess. 2. c. 27 [a], and 5 & 6 Vict. c. 108 {b), were passed, it is clear that the legislature were indisposed to go the length recom- mended by the conmiittee. The ecclesiastical commissioners for England, however, who are under no legislative or other restraint upon their powers of leasing property vested in them in their corporate capacity, passed, at a meeting held on the loth of April, 1845, the following resolutions respecting such property: — 1. That no lease for lives be renewed by the addition of a new life, nor any lease whatever upon consideration of a fine. 2. That no estate which is subject to a lease when it becomes vested in the commissioners shall at any time be sold to any other than the person beneficially interested under the existing lease, until he shall have had the option of becoming the purchaser. 3. That every estate already and hereafter vested in the commissioners shall at the first convenient opportunity be surveyed, and a full report made of its value, and of its circumstances, with reference to the relative advantage of retaining or parting with it. 4. That the commissioners, having taken such report into consideration, shall, unless they find special reasons for not («) Ante, i>. -257. ('0 Aut(-, p. •.'(.".O. 312 OF THE CONTRACTING PARTIES. [Part III. parting with the property, hold themselves prepared to enter- tain an offer for the purchase of the reversion from the person beneficially interested in the lease. 5. That in all cases of the commissioners declining to sell, an entry shall be made upon their minutes of the special reasons for their so dechning. 6. That the price of the reversion shall be, as a general rule, the amount of the difference between the value of the whole fee, calculated as if the estate were actually in posses- sion, and the value of the leasehold interest. 7. That, whether the commissioners for any special reasons decline to sell, or the lessee decline to purchase, the reversion, the commissioners shall hold themselves prepared, in any case, to purchase the leasehold interest at its market price, if the lessee be willing to sell the same. 8. That in any case in which the lessee shall have dechned either to piu-chase the reversion, or to sell his leasehold interest, the commissioners shall consider themselves free from any restraint respecting the sale or letting of the pro- perty. 9. That tithes, and lands or other hereditaments allotted or assigned in lieu of tithes, vested in the commissioners, shall not in any case be sold until due consideration shall have been had of the wants and circumstances of the places in which such tithes arise or have heretofore arisen. V. — Municipal Corporations. At common law, municipal corporations had the same un- limited right of alienation of their corporate estates as private individuals (c). But some restraints were imposed upon their powers by the late municipal corporations act {d) . (c) Jc-nk. Cent. 270, case 88. Smith (d) 5 & W. 4, c. 76, entitled, r. Barrett, 1 Sid. 1G2. Attorney- " An Act to provide for the regulation General v. Lord Gore, Barnard. C'h. of Municipal Corporations in England M5. Gozna v. The Alderman and and Wales." Royal Assent, 9 Sept. Burgesses of Grantliam, 'A Rnss. 2(il. 1835. Ch. I.S. IV.] WHO LESSORS: MUNICIPAL CORPORATIONS. 313 - We may first mention that it was thereby enacted {e), that after the first election of councillors thereunder in any borough (/), the body or reputed body corporate named in the schedules (A) and (B), in connection with such borough, should take and bear the name of the " mayor, aldermen, and bui'gesses " of such borough, and by that name should have perpetual succession, and should be capable in law, by the council thereinafter mentioned {(/) of such borough, to do and suffer all acts which then lawfully they and their succes- sors respectively might do and suffer by any name or title of incorporation; and that the mayor of each of the said boroughs should be capable in law to do and suffer all acts which the cliief officer of such borough might then lawfully do and suffer, so far as the same respectively were not altered or annulled by the provisions thereof. It was then enacted {h), that it should not be lawful for the council of any body corporate (^) to be elected thereunder to demise or lease, except in pursuance of some covenant, con- tract, or agreement, bond fide made or entered into on or before the 5th day of June, 1835, by, or on the behalf of, such body corporate, or in pursuance of some resolutions duly entered in the corporation books of such body corporate on or before the said 5th day of June, or except in the cases thereinafter mentioned, any lands, tenements, or heredita- ments, of such body corporate, or any part thereof, or to enter into any new covenant, contract, or agreement, (except in the cases thereinafter mentioned,) for demising or leasing any such lands, tenements, or hereditaments, or any part thereof, for any term exceeding thirty-one years from the time when such lease should be made, or if made in pui'- suance of apre^dous agreement, then from the time when such agreement should have been entered into ; and that in every (e) Sect. 6. (/<) Sect. .94. (/) " Borough" is to be construed to (/) "Body corporate" is throughout mean, city, borough, port, cinque jjort, the act to be construed to mean any or to\vn corporate, named in one of the body corporate named in the schedules schedules (A) and (B). Sect. U"-'. (A) and (B). Sect. 142. {(/) See ss. 25, & 6.0. t314 OF THE CONTRACTING PARTIES. [Part III. lease which the said council was not thereby restrained from making there should (except in the cases thereinafter men- tioned) be reserved and made payable, during the whole of the term thereby granted, such clear yearly rent as to the council should appear reasonable, without taking any fine for the same : provided nevertheless, that in every case in which such council should deem it expedient to demise and lease, for a longer term than thirty-one years, or upon different terms and conditions than those thereinbefore mentioned, any of the said lands, tenements, or hereditaments, it should be lawful for such council to represent the circumstances of the case to the lords commissioners of his Majesty's treasury; and that it should be lawful for such council, with the approbation of the said lords commissioners, or any three of them, to demise any of the lands, teuements, and hereditaments, of the said body corporate, in such manner, and on such terms and conditions, as should have been approved by the said lords commissioners; provided always, that notice of the intention of the council to make such application should be fixed on the outer door of the town-hall, or in some public and conspicuous place Avithin the borough, one calendar month at least before such application, and that a copy of the memorial intended to be sent to the said lords commis- sioners should be kept in the town clerk's ofiice during such calendar month, and should be freely open to the inspection of every burgess at all reasonable hours during the same. But it was pro\dded [k], that, in all cases in which any body corporate should on the said 5th of June have been bound or engaged by any covenant or agreement, express or implied, or have been enjoined by any deed, Avill, or other document, or liave been sanctioned or warranted by ancient usage, or by custom, or practice, to make any renewal of any lease for years, or for life or lives, or for years determinable with any life or lives, at any fixed or determinate or known or accus- tomed ])eriod, or after the lajisc of any number of years, or (/.) Suet. fl.'.. Ch. I. s. IV.] WHO lessors: MUNICIPAL COllPORATIOXS. 315 on the dropping of any life or lives^ and years determinable after the lapse of any number of years (/), at a fine certain, or under any special or specific terms or conditions, and also in all cases in which any body corporate should theretofore have ordinarily made renewal of any lease for years, or for life or lives, or for years determinable with any life or lives, at any fixed or determinate or known or accustomed period, or after the lapse of any number of years, or upon the di*op- ping of any life or lives, upon the payment of an arbitrary fine, it should be lawful for the council of such borough to renew such lease for such term or number of years, either absolutely, or determinable with any life or lives, or for such life or lives, and at such rent, and upon the payment of such fine or premium, either certain or arbitrary, and with or without any covenant for the future renewal thereof, as such body corporate could or might have done in case the act had not been passed. And it was further pro^ided {m), that in any of the instances thereinafter mentioned it should be laAvful for the council from time to time to demise and lease, or to enter into any contract or agreement for demising and leasing, any of the said lands, tenements, or hereditaments, to any person, body politic, corporate, or coUegiate, for any term not exceeding seventy-five years from the time of making such lease or agreement; (that is to say,) of tenements or hereditaments the greater part of the yearly value of which should at the time of making the lease or agreement consist of any building or buildings, of land or ground proper for the erection of any houses or other buildings thereupon, with or without gardens, yards, curtilages, or other appurtenances, to be used there- with, and, where the lessee or intended lessee should covenant or agree to erect a building or buildings thereon of greater yearly value than such land or ground, of land or ground proper for gardens, yards, curtilages, or other appurtenances, to be used mth any other house or other building erected or to (/) So in the act. (m) Sect. !>C,. '6\6 OF THE CONTRACTING PARTIES. [Part III. be erected on any such ground^ belonging either to such body- corporate, or to any other proprietor, or proper for any other purpose calculated to afford convenience or accommodation to the occupiers of any such house or building. By section 92, the rents of demised property are made payable to the treasurer of the borough; the Reddendum^ however, should be to the mayor, aldermen, and burgesses, and their successors. The council first elected were empowered by the 97th section to call in question all leases not made in pursuance of some contract or resolution entered into before the 5th day of June, 1835, and all contracts for the lease of any lands, &c., of Avhich, on or before the said 5th of June, the body corporate, of which they should be the council, whether in their own right, or as trustees for charitable or other purposes, should be seised or possessed, which should have been made between the said 5th day of June and the day of the declara- tion of their election ; and, if ground should appear to the council to exist for beheAing that any such lease or contract was collusively made for no consideration, or for an inade- quate consideration, they were empowered, within six calendar months next after the first election, to cause the value of the premises to be found by a jury in manner in the act men- tioned; and the jury were directed to find the value of the premises, and the consideration given, and also that which ought of right to have been given for the lease ; and it was declared, that, if the jury should find that no consideration, or an inadequate consideration, had been collusively given, the party to such lease or contract should have his option to re-convey the premises, and abandon the contract, upon receipt of the consideration, if any, which he should have given, or to give such additional consideration, so that the whole consideration given sliould be that which ought of right to have been given, and that the additional consideration should be indorsed on the original deed ; and that, unless he should so do within one calendar month next after the finding of the jury, every such lease and contract should be void as against Ch. I. s. 1V.| WHO lessors: — municipal cokporations. ;U7 the body corporate, aud their successors ; and that, in every case in which any such contract should have been abandoned, or in which any such lease or contract should become void, the party who would otherwise have had the benefit of the same should be remitted to his former estate, if any, in the premises, as if no such contract or lease had been made. It was provided, however^ that it should be lawful for his Majesty, by the ad^dce of his privy council, upon petition to him setting forth the special circumstances under which any lease or con- tract should have been made since the said 5th day of June, to order that the same should not be called in question under the provisions of the act, and that in such case the same should not be called in question, or set aside, or afTected, under the act ; pro\ided always that in every case in which such petition should be presented, it should be lawful for his Majesty to enlarge the time within which (in case his Majesty should not think fit to make such order) the council might have power to caU in question any lease or contract referred to in such petition. Where a party whose lease was called in question under this provision omitted for one calendar month to elect whether he would abandon the contract, or pay the additional consi- deration, it was held, that the lease became absolutely void, and that the remedy of the corporation was at law for recover- ing possession, and not in equity for a re-conveyance {n) ; and that they could not sustain a bill for the delivering up of the lease to be cancelled, as it was in their power to try its validity at law (o) . On the other hand, it was determined, that the court had no jurisdiction to order the inquisition finding a lease to be collusive to be given up and quashed, though alleged by the lessee to be irregular, and a fraudulent contri- vance of the corporation Qo) . Where the tenant has elected to pay an increased rent pursuant to the finding of the jury, and such finding is in- dorsed on the original lease, he will be compelled to produce («) The Coi"poration of Ai'undel r. (o) Ibid. Holmes, 4 Beav. 3-2.5. (p) Ibid. 318 OF THE CONTRACTING PARTIES. [Part III. the lease to the corporation, and permit them to take a copy of the indorsement, with a view to their framing a declaration in an action for the increased rent ; although the corporation have in their own hands the counterpart of the lease, as well as the inquisition of the jury. The act (said Coleridge, J.,) directs the additional consideration to be indorsed on the original deed; and if the defendant takes vipon himself to indorse it, he must be taken to have put it there for the benefit of both parties {q) . The 28th section declared, that no person should be quali- fied to be elected or to be a councillor of any such boroiigh, or an alderman of any such borough, during such time as he should have, directly or indirectly, by himself or his partner, any share or interest in any contract or employment mth, by, or on behalf of, such council; pro\dded that no person should be disqualified from being a councillor or alderman by reason of his being a proprietor or shareholder of any company which should contract with the council of such borough for lighting, or supphdng with water, or insuring against fire, any part of such borough. And it has been held (r), that a lease by a corporation of property belonging to the corpora- tion, containing a covenant by the lessee for payment of rent, and keeping the premises in repair, and a power for him to remove any buildings during the term which might be erected by him, and a pro\dso that the corporation might purchase the buildings at the determination of the term, at a valuation, was such a contract within the act as to disqualify the lessee from being a town-councillor. It was also held (s), that the lease, though made by the mayor, aldermen, and burgesses, before the act of 5 & 6 W. 4, was in eftect a contract with the council. Serious inconveniences being apprehended in consequence of this decision, it was soon afterwards enacted [t], that, from ('/) TlioMiiyorof Arundel?;. Holmes, (s) Ibid. n Dowl. Pi-ac. Ca. 1 18. (t) 5 & G Vict. c. 104. sect. 1. Royal (r) Regina v. York, 2 Q. B. 847 ; Assent, 10 Aiif;. 1842. .S. C. 2 Gale & Dav. 1 05. Ch. I. S. IV.] WHO lessors: MUNICIPAL CORPORATIONS. 319 and after the passing of the act, the Avord contract in the prior act should not extend, or be construed to extend, to any lease of any lands, tenements, or hereditaments, or to any agreement for any such lease. By 6 & 7 W. 4. c. 104, the power of disposition given to the council of any body corporate in the instances of demises for seventy-five years, authorised by the municipal corpora- tions act (m), was extended [v) to the demise or lease thereof, either at a reserved rent, or a fine, or both, as the council should think fit ; and the powder of disposition allowed by the same act over the lands, tenements, and hereditaments, of such body corporate, to be exercised with the approbation of the lords commissioners of the treasury, or any three of them, was extended to the disposition of such lands, tenements, and hereditaments, Avith such approbation, whether by way of absolute sale, or by way of exchange, mortgage, or charge, demise, or lease, and to every other disposition of the same whatsoever, which should b^ sp approved of. By a pre\dous act {x), made for preventing the application of corporate property to the purposes of election of members to serve in parliament, leases of lands, tenements, or heredi- taments, belonging to, or vested in, or held in trust for, any municipal corporation, made or executed for the purpose of securing, satisfpng, or compensating, any expenses, debts, payments, or disbursements, liabilities, or engagements, in- cm'red or to be incurred, by the same corporation, or any part or class thereof, or any member, officer, or trustee thereof, or by any other person on behalf of such corporation, con- trary to the true intent and meaning of the act, are declared {y) to be void. The act of 5 & 6 W. 4. c. 76, effected an alteration in tlie government of corporations, but in other respects they were not legally changed ; and, consequently, though it is common to designate the corporation, in its old state, and in its new (m) Ante, p. 315. {x) 2 & 3 W. 4. c. 69. (r) 6 & 7 W. 4. c. 104. s. 2. (y) Sect. 3. 320 OF THE CONTRACTING PARTIES. [Part IIT. state, as the old corporation, and the new corporation, yet they are the same corporation, under a new government (z). Some remarks respecting leases made by municipal corpo- rations of lands held by them in trust for charities will be found in another part of this work {a) . VI. — Churchwardens and Overseers, and others connected with the Management of the Poor. Previously to the passing of the statute of 59 Geo. 3, c. 1 2 [b), great difficulty was experienced on the subject of leases of parish property; for although, by the special custom of London, the parson and churchwardens of a parish were a corporation to purchase and demise lands [c) ; yet, in general, neither chm-chwardens, nor overseers of the poor, distinctly, nor churchwardens and overseers conjointly, in respect of their official capacity, had any legal interest in parish pro- perty to demise {d) . By that statute, however, churchwardens and overseers were empowered (e), with the consent of the inhabitants of the parish in vestry assembled, to take into their hands any land belonging to the parish, or to the church- wardens and overseers of the poor of the parish, or to the poor thereof, or to purchase, or to hire and take on lease, for and on account of the parish, any suitable portion or portions of land within or near to the parish, not exceeding twenty acres, and to employ the poor in the cultivation thereof on account of the parish. (2) The Attorney-General v. Kerr, 8 Dow. & Ry. 43. Sowdeni;. Emsley, 2 Beav. 420. 4.30. The Attorney- 2 Stark. 28. Doe dem. Higgs r. Terry, General r. the Corporation of New- 4 Adol. & Ell. 274 ; S. C. 5 Nev. & castle, .5 Beav. .307. Man. .^50 ; 1 Harr. & Wol. 547. Doe (a) Post, p. .347 ; Leases by Trustees dem. Hobbs r. Cockell, 4 Adol. & Ell. of Charities. 478 ; S. C, nom. Doe dcni. Higgs v. (Ij) Entitled " An act to amend the Cockell, 6 Nev. & Man. 17.9. Doe dem. laws for the relief of the poor." Norton v. Webster, 12 Adol. & Ell. {() Warner's case, Cro. Jac. 5.32. 444, n. (a) ; S. C. 4 Per. & Dav. 270. (rf) Co. Lit. .3, a. Doc dem. Grundy But see Dawsonr.Fowlo,IIardr. .378-9. V. Clarke, 14 East, 488. Phillips r. {r) Sect. 12. Peitrcc, .'■, Barn. & Crcs. 4.33 ; S. C. Cii. I. s. IV.] WHO lessors: — chukciiwdns. and overseers. 8^1 And for the purpose of promoting industry amongst tlie poor, tliey were also empowered (/), with the consent of the inhabitants in vestry assembled, to let any portion and por- tions of such parish land, or of the land to be so purchased or taken on account of the parish, to any poor and industrious inhabitant of the parish, to be by him or her occupied and cultivated on his or her oAvn account, and for his or her own benefit, at such reasonable rent, and for such term, as should by the inhabitants in vestry be fixed and determined. And the 17th section provided, that all buildings, lands, and hereditaments, which should be purchased, hired, or taken on lease, by the churchwardens and overseers of the poor of any parish by the authority, and for any of the pur- poses, of the act, should be conveyed, demised, and assured, to the churchwardens and overseers of the poor of every such parish respectively, and their successors, in trust for the parish ; and such churchwardens and overseers of the poor were thereby empowered to accept, take, and hold, in the nature of a body corporate, for and on behalf of the parish, all such buildings, lands, and hereditaments, and also all other buildings, lands^ and hereditaments, belonging to such parish. Before we notice any other statute bearing upon this subject, it will be convenient to dispose of a few decisions on the construction of the act of 59 Geo. 3. c. 12. It has been determined, that the term "^^ belonging to the parish " must be taken in its popular sense; for in the strict sense lands do not belong to a parish (ff). And that the 17th section of the act is not confined to tenements the profits of which are applicable merely to the relief of the poor, but extends to tenements the profits of which are applicable to the pm'pose for which a chm^ch-rate is levied {h) . (/) Sect. 13. (/() Doe dem. Jackson v. Hiley, 10 Iff) Doe dem. Higgs v. Terry,4 Adol. Bai-n. & Cres. 885 ; S. C. .5 Man. & Ry. & Ell. 274. 282 ; S. C. 5 Nev. & Man. 706. But see Attorney-General ;•. 556 ; 1 Harr. & Wol. 547. Lewin, 8 Sim. 366 ; S. C. C. P. Coop. 5 1 . VOL. I. Y 322 OF THE CONTRACTING PARTIES. [Pakt III. But how far it operated to withdraw parochial trust pro- perty from trustees specially appointed, and to vest it in churchwardens and overseers, is not clearly defined. In the case of Doe dem. Jackson v. Hiley above cited (i), it appeared that all the trustees were dead, and that the survivor had devised all his lands, &c. to his half-brother in fee, subject to the payment of his debts; and Lord Tenterden, in deliver- ing the judgment of the court, said, that there was nothing in the act of parliament to prevent property held by trustees for the benefit of a parish vesting in the chiu'chwardens and overseers, and that it would be very inconvenient that it should be so; that it was often difficult for persons who claimed under an ancient trust, where the trustees were numerous, to ascertain who was the sui'vivor of those trustees; and that, even if they succeeded in ascertaining that fact, it would not be less difficult to show who was the heir of that sumivor ; and that property vested in trustees for the benefit of the parish seemed equally within the mischief contemplated by the legislature, as well as property not so vested. The authority of this case has been recognised by the court of King's Bench {k), and by L. C. B. Abinger, who held that estates vested in six feoffees, living and known, in trust for the relief of the poor of the parish of Clifford Chambers, were taken out of them by the statute, and vested in the church- wardens and overseers of the parish (/). But it has since been considered (m) that the generality of the language ascribed to Lord Tenterden, which, at first siglit, would lead to the conclusion that all tenements in the hands of trustees for parish piu^poses were by the operation of the act of 59 Geo. 3. transferred to the churchwardens and overseers of the parishes respectively enjoying the benefit of (/) Sup. p. ?,-l\. (/) Ex p.arte Anncsley ; Mrc The {k) Doe dcm. IliRf'S'y.Tcrry, 4 Aflol. Stratfonl Bridge Improvement Act, & Ell. 274 ; S. C. .5 Nov. & Man. .550, 2 Yo. & Col. :350. And Hco Doc dem. Ilobbs v. Cockell, (w*) Allasoii, or Allison, v. Stark, f) 4 Adol. & Ell. 478 ; S. C, nom. Doc Adol. & Ell. 2,5.5 ; S. C. 1 Per. & Dav. «lem. IIigg8 V. Cockell, G Nov. & Man. 1».'? ; « Law .lour. N. S. M. C. 13 ; iV.). 1 Wii. Wol. & Ilodg. 7iy. Ch. I. S. IV.] WHO lessors: CIIURCHWDNS. AND OVERSEERS. 328 the trust, is to be received with some qualification, and con- strued with reference to the particular circumstances of the case connected with it. According to Lord Denman, C. J.{n), the case of Doe v. Hiley was satisfactorily explained by the fact that no feoffee appeared, nor any other person in whom the legal estate was vested. He, therefore, considered the very mischief which the act was intended to remedy had occurred, and that Lord Tenterden's expressions referred to that case only ; and with this explanation he thought the case perfectly satisfactory. Patteson, J., however, while he agreed that the right conclusion had been drawn from that case, wished for himself to abstain from laying dow^n that the act in question took parish lands out of trustees, and vested them in churchwardens (o) ; a proposition, he said, that Doe V. Hiley went very nearly to establish, though he did not think that it did quite {p) . In a later case in the Exchequer (), (0 Sect. 2. («) Sect. 10. {k) Sect. 2. (o) Sect. 11. (/) Sect. 4. (p) 4 & 5 W. 4. c. 76, entitled « Au (m) Sect. 9. act for the amendment and better ad- 328 OF THE CONTRACTING PARTIES. [PaUX III. whereby the administration of relief to the poor throughout England and Wales according to the then existing laws, or such laws as should be in force at the time being, was subjected to the direction and control of the poor law commissioners for England and Wales ; and it Avas declared {q), that, except where otherwise thereby provided, all the powers and autho- rities given by the act of 59 Geo. 8. c. 12, should in future be exercised by the persons authorised by law to exercise the same, under the control and subject to the rules, orders, and regulations, of the commissioners. In order to insure the due application of the property of parishes and unions, an act of 5 & 6 W^. 4 (/•) pro\ided {s), that it should be lawful for the guardians {t) of any parish or union [u), and for the overseers of any parish not under the management of a board of guardians, and for the guardians or trustees of any dissolved union, or the person or persons who were the guardians or trustees of any dissolved union at the time of its dissolution, or a majority of such guardians, trustees, or persons, if more than one, with the approbation, and subject to the rules, orders, and regulations, of the poor law commissioners, to sell, exchange, let, or otherwise to dis- pose of any workhouses, tenements, buildings, land, effects, or other property, belonging to any such parish or union, or vested in trustees or feoffees in trust for such parish or union, or for the parishioners, rate-payers, or inhabitants thereof, or which then belonged, or then formerly did belong. ministration of the laws relating to the vestryman, or other officer, in a parish jioor in Enghmd and Wales." See ss. or union, appointed or entitled to act 1, 2, & 15; and also s. 49. as manager of the poor, and in the dis- {q) Sect. 21. tribution or ordering of the relief to (r) 5 & 6 W. 4. c. C9, entitled " An the poor from the poor-rate, under any act to facilitate the conveyance of general or local act of parliament, worlihouses and other property of pa- (m) The word "union" is to include i-islies and of incorporations or unions any number of pai-ishes vmited for any of parishes in England and Wales." purpose whatever under the provisions And sec 1 Vict. c. 50. of tlie act of 4 & 5 W. 4. c. 76, or m- («) Sect. 3. corporated under the act of 22 Geo. 3. {I) The word " guardians" is inter- c. U3, or incorporated for the relief or pretcd to signify any visitor, governor, maintcnaucc of the poor under any director, manager, acting guardian, local act. Ch. 1. s. IV] WHO lessors: CHUllCinVDNS. AND OVERSEERS. 329 to any dissolved union : Provided that no such sale, or ex- changCj or letting, should take place except with the consent of a majority of the rate-payers of such parish, and of the owners of property therein, entitled to vote under and by virtue of the act of 4 & 5 W. 4. c. 76 : And provided that every sale and exchange or lease of any such workhouse, tenements, buildings, land, or other property, which might have been made before the passing of the act (5 & G W. 4. c. 69), with the consent in writing of the poor law commissioners, should be as valid as if the same had been directed by their order under the authority thereof; and that any moneys or rents which had become or should become payable in respect of any such sale, exchange, or lease, and had not been applied, should be applied in the same manner as such moneys or rents would have been applicable if such sale, or exchange, or lease, had been made thereunder (.r) . It was fiu'ther provided (^/), that all powers and authorities by the act of 59 Geo. 3. c. 12, given to churchwardens and over- seers of the poor for taking land or ground into their hands, and for purchasing, hiring, and taking on lease, any land; and all the powers and authorities contained in the acts of 1 & 2 W. 4. c. 42 ; 1 & 2 W. 4. c. 59 ; and 2 W. 4. c. 42, should in future be exercised (under the control, and subject to the rules, orders, and regulations, of the poor law commissioners,) by the overseers of the poor in any parish not under the man- agement of a board of guardians, and by the guardians of the poor of any union or parish formed or established by virtue of any statute or local act. And, for simplifying the instruments of assurance of pro- perty under the act, the 6th section provided, that every convey- ance under the authority of the act might be made according to the form set forth in the schedule thereto annexed (^), or in such other forms as the poor law commissioners should direct. (;<;) The Act does not appear to con- (z) The form will be found in the tiiiu any provision for the application Appendix to this work, though it ap- of the rents of the property let. pears rather adapted to an absolute (y) Sect. 4. convejauce than to a lease. 330 OF THE CONTRACTING PARTIES. [Part III. or as near thereto as the number of parties, the nature of the interests, and the circumstances of the case, would admit; and should, when executed by the conveying parties, be valid and effectual in the law, without livery of seisin being made, or any bargain and sale to vest possession being executed; and that every conveyance or instrument made under the autho- rity of the act, should, when signed by the conveying parties thereto, be transmitted to the poor law commissioners, who should, if they should approve thereof, signify such approval by sealing or stamping the same with their seal. And, for preserving evidence of such instruments, the commissioners were ordered to keep a register, properly indexed, in Avhicli they should insert copies or memorials of such deeds or instruments of which they should so approve, and of such orders of appropriation of property as were thereinbefore mentioned; and it was pro\ided that all such copies or memorials, or copies thereof, purporting to be sealed or stamped with the seal of the commissioners, should be re- ceived as evidence of the instruments respectively of which they should purport to be copies or memorials (a). It was further provided [b], that the guardians of the poor of every union then already formed, or which thereafter should be formed, by virtue of the act of 4 & 5 W. 4. c. 76, and of every parish placed under the control of a board of guardians by virtue of the same act, should respectively from the day of their first meeting as a board become, or be deemed to have become, and they and their successors in office should for ever continue to be, for all the purposes of the act, [5 & 6 W. 4. c. 69,] a corporation, by the name of the guardians of the poor of the union (or of the parish of ) in the city of ; and, as such corporation, the said guardians were thereby empowered to accept, take, and hold, for the benefit of such union or parish, any buildings, lands, or here- ditaments, goods, effects, or other property, and to use a common seal. (") And see ){ & .0 Vict. c. 112, nsto official and other documents, tlio adinlHuion in evidence of certain (/>) Sect. 7. Ch. I. s. IV.] WHO lessors: CHURCHWDNS. AND OVERSEERS. .'381 It has lately been determined (c), that the language of this act of 5 & 6 W. 4. c. 69, is not sufficient to divest parish property out of the parish officers. The statute confers upon the guardians very extensive powers over it; but they arc consistent with the continuance of the legal estate in other persons ; and should the guardians experience any obstruc- tion from the overseers in the exercise of their powers, they may resort to a court of equity, or other proceedings, for the purpose of compelling submission {d) . Doubts having arisen as to the meaning and extent of the provisions of the third section of 5 & 6 "W. 4. c. 69 (e), it was declared by a recent act (/), that they shall be deemed to have authorised, and to authorise, the sale, exchange, letting, and disposal, by the guardians of a union formed, or to be formed, by the commissioners, of any workhouse, tenements, buildings, land, effects, or other property, belonging to any parish which shall be comprised in the said union; and, in cases of the sale, exchange, letting, and disposal of work- houses, tenements, buildings, land, effects, and other property, belonging to a dissolved union, to have applied and to apply to a majority of the persons who were the last acting guar- dians previous to the dissolution of such union : provided that nothing therein contained shall be deemed to render valid, or to authorise, the sale, exchange, letting, or other disposition, of any property which shall have been given or bequeathed by way of charitable donation, or shall have been allotted in right of some charitable donation, or otherwise, for the poor persons of any parish, and not for the general benefit of the rate-payers, parishioners, or inhabitants of such parish ; nor to dispense with the consent of the rate-payers and owners of property required by 5 & 6 W. 4. c. 69, to all sales, exchanges, Icttings or other dispositions, of property belonging to any parish, except in the case next thereinafter provided. ((•) Doe dem. Norton v. Webster, (tQ Per Patteson, J., Ibid. 1-2 Adol. & Ell. 442 ; S. C. 4 Per. & (c) Ante, p. 3-2«. Dav, 270. (/) 5 Vict. sess. 2, c. 18. s. 2. 332 or THE CONTRACTING PARTIES. [Part III. The act theu provides (^), that, where several parishes shall have been, or shall be, jointly interested in any workhouse, tenements, buildings, lands, whether of freehold, copyhold, or customary tenure, effects, or other property, it shall be deemed to have been, and shall be, lawful for the commissioners, upon the application of the overseers of the major part of such parishes, and with the consent of the rate-payers and owners of property in the major part of such parishes, to be ascertained in the manner du'ected by the said act of 5 & 6 W. 4. c. 69, to order the same to be sold, let, exchanged, or disposed of, by the guardians of the union in which such parishes or the greater part thereof shall be situate, in such manner, and subject to such rules, orders, and regulations, as the commis- sioners shall deem fit ; and that it shall be deemed to have been, and to be, lawful for the commissioners to direct the application of the produce arising from such sale, letting, or disposition, in the same manner, and for the same purposes, as the produce arising from the sales of property belonging to other parishes might be apphed to : provided that w here any conveyance by way of sale, lease, exchange, disposition, or otherwise, of any property belonging to a parish or union, whether dissolved or not, shall have been, or shall thereafter be, made by the guardians of any existing union, or a majority of the last acting guardians of any dissolved union, under the order of the commissioners, the same shall be deemed to have been and to be valid for all the purposes of such conveyance, although the legal estate in such property sliall be, or shall be [)resumed to be, outstanding in some trustee or trust^ies who iihall not have joined in such conveyance. VII. — Queen Consort. The common law power of the Queen Consort to dispose of licf pi-o[)erty, real or personal, as if she were a feme sole (//), {) 1 Vict. c. 46. t'n. I. s. IV.] WHO lessors: — trustees in general. 345 the court of Exchequer in England, and is subject to the provisions, powers, and authorities, contained in the acts of 10 Geo. 4. c. 50, and 3 W. 4. c. 1, and to all such other provisions, powers, and authorities, in every respect, as the other possessions and land revenues of the croAvn within the ordering and survey of the said court of Exchequer are subject to. For further information on this subject the reader is referred to the section on Crown Leases ((/). X. — Trustees in general. A trustee of lands, being owner of the legal interest, may grant leases at law which cannot be impeached so long as they are justified by the quantity of his estate (r). But a party taking a lease from a trustee with notice of the trust, and without the concurrence of the cestui que trust, is subject to the control of equity. No specific term has been named which the court will deem applicable indiscriminately to all cases. It appears that the trustee may do what is reasonable [s), a term which renders a reference to the circumstances of each particular case indispensable ; for what may be reasonable in one case may be very unreasonable in another. In one case(/), where a testator devised his real estates to trustees, upon trust, out of the yearly rents and profits, to pay certain annuities, and, subject thereto, to permit W. H. N. to receive the rents and profits for life, and after his decease to permit his wife to receive them for her life, with hmitations over in favor of their children, it was held that the trustees had power to demise for a term of ten years. But with reference to a devise to A. in fee, in trust for his infant son, to be conveyed to him at the age of twenty-one, and without imposing terms {q) Ante,, p. 18G. (s) The Attorney-General v. Owen, (r) As to leases by cestui que trust, 10 Ves. 55;"). 560. see ante, p. 123 ; by ti'ustees of chari- {t) Naylor v. Arnitt, 1 Russ. & Myl. ties, post, p. 347. 501. 346 OF THE CONTRACTING PARTIES. [Part III. upon the trustee as to the rent or the length or terms of the lease, Lord Eldon held, that, although the trustee might do what was reasonable, he certainly could not alienate the land for ninety-nine years at a stationary rent {u) . Whatever may be the term for which the lease is granted, the burthen of proving its reasonableness devolves on the trustee, and the lessee claiming under him ( Sim. 217. (y) Bowes v. East London Water- («) Ibid, works Company, 3 Madd. 375 ; S. C. (6) Jervoise v. Clarlie, 6 Madd. .06. Cu. I. s. iv.j WHO lessors: — trustees of charities. 34-7 this reference and report ; but ultimately confirmed it, as the leases were also to be sold, and were only auxiliary to the sale of the estate. The result is, that no one can be advised to rely on a lease by a trustee without the concui-rence of the ccstuis que trust, if competent to join, or the sanction of the court of Chancery in case of their incompetency (c) . Leases by cestui que trust have been noticed in another place {d) . Trustees for ecclesiastical and eleemosjoiary corporations are by the acts of 5 Vict. sess. 2. c. 27 (e), and 5 & 6 Vict. c. 108 (/), directed to concur in leases made by their cestuis que trust. For the particulars the reader is referred to an earlier page (y). . /Cf*...*.,-^ -f ^^**^^*-- XI.— Trustees of Charities. y^/^C^ - ^- •/ ^'C'^ The improvident, and at times the fraudulent, transactions yy^ /^ ■'■^^/J t- connected with leases of charity estates {h) have occasioned a ' ' ^ corresponding \'igilance and rigour on the part of the court of Chancery as paramount trustee [i), as well to restrain every unfair deviation from the intention of the founder of the charity, as to relieve the parties aggrieved from the conse- quences of a partial or careless administration of their pro- perty : nor perhaps is the control of equity, in the wide range of its jurisdiction, more imperiously required, or more saluta- rily exercised, than in its application to dealings of the kind under consideration. The circumstances calKng for the interposition of that court are necessarily various, and admit of modification ac- cording to the complexion of each particular case ; but the (c) As to leases by infants, see ante, (7t) Attorney- General v. Green, fi p. 28 ; by idiots, lunatics, &c., ante, Ves. 453. Attorney-General v. Grif- p. 37. fith, 13 Ves. 580. Attorney-General (d) Ante, p. 123. v. Dixie, 13 Ves. 519. 530. (e) Sect. 13. (i) Attorney-General v. Talbot, cited, (/) Sect. 28. 13 Ves. 5/1. Berkhampstead Free () Attorney-General v. The South poration of Cashel, 2 Con. & Law. 1 ; Sea Company, 4 Beav. 453. 458. S. C. 3 Dru. & War. 294. And see (5) Attorney-General v. Cross, 3 Attorney-General v. East India Com- Meriv.539. Attorney-General?;. Moses, pany, 11 Sim. 380. 2 Madd. 308. (t) Attorney-General v. Griffith, 13 (r) Attorney- General v. Cross, 3 Ves. 575. Attorney-General v. Baek- Meriv. 548. And see Attorney-Gene- house, 17 Ves. 290-1. Attoruey-Ge- ral V. Brooke, 18 Ves. 326. neral v. Warren, 2 Swanst. 304 ; S. C. (s) Attorney-General v. Owen, 10 1 Wils. Ch. Ca. 387. Attorney-Gene- Ves. 555. Attorney-General v. Mor- ral v. Foord, 6 Beav. 288. gan, 2 Russ. 30G. Attorney-General (u) Ibid, and 6 Ves. 452, and 10 V. Lord Hotham, 1 Turn. & Russ. 209; Ves. 560. S. C, affirmed on appeal, 3 Russ. 415. (x) Attorney-General v. Griffith, 13 Attorney-General r. Pargeter, 6 Beav. Ves. 575. 150. Attorney-General v. The Cor- 350 OF THE CONTRACTING PARTIES. [Part 111. no instance of a power in a marriage settlement to lease for ninety-nine years, except with reference to very particular circumstances. The ordinary husbandry lease is for twenty- one years. Building leases are sometimes made under a settlement for sixty or ninety years, but not for the same rent during the whole time. There is no rent for the first two or three years, until the buildings are covered, and then they are at a rent, generally not increasing to the end of the lease, but increasing. So, upon a devise to one in fee, in trust for an infant son, to be conveyed to him at the age of twenty-one, no terms being imposed upon the trustee as to the rent or the length or terms of the lease, the court would say that the trustee might do what was reasonable ; but it would be monstrous to hold that he could aUenate the land for ninety-nine years at a stationary rent (y). A fortiori, a term of 999 years is too extravagant to be countenanced, although there be a stipulation for expending money upon buildings, if that expenditure be commensurate only with a term of ninety-nine years {z) . A case of this kind has occurred. In 1715, a charity estate, then let at 31/. a year, having upon it some buildings in a very dilapidated condition, was demised by the trustees to the grandfather of the defendant, for the term of 999 years, in consideration of an additional rent of 4/. a year, and the sum of 500/. at least to be laid out in repairs. The annual value when the informa- tion was filed amounted to between 90/. and 100/. The lease was ordered to be cancelled, and an account of the rents and profits from the decease of the late vicar (a) directed ; the com't deeming it impossible that a person taking in good faith would take such a lease; and declaring, that it was necessary in these cases, upon a general principle, to hold a strict hand over the lessees ; for where trustees made a lease (y) Attorney-General r. Owen, 10 180-0. And see Attorney-General v. Vcs. 560. Ellison, 4 Sim. 2;}8. (.-) Attorney-General r. Green, G (a) What character the late vicar Vcs. 4.')2. Attorney-General v. Back- represented is not disclosed by the lioiiHc, 1 7 Ves. 2!)1 . Attonioy-Genoral report. V. Ladynian, 1 C. I'. Coop. Ca. in Ch. Cii. I. s. IV.] WHO lessors: — trustees of charities. 351 to the destruction of the charity estate^ it went on undis- covered for a vast while : but^ on the defendant assenting to the arrangement^ the decree was made without costs {b). A lease of lands in England with a covenant for perpetual rencAval falls within the same principle. Lord Thurlow frequently said {c), though he never got so far in judg- ment {d), that such a contract should never have been per- formed between man and man; but that trustees of a charity estate could part with that estate for ever, for a consideration not shown to be an equivalent for the inheritance, was a proposition generally not to be endured in the court of Chancery (e). In an early case (/), indeed, a decree was made for a per- petual renewal of a lease for ninety-nine years, determinable on three lives, in consequence of the defendant's great grand- father having been at a great expense in recovering the lands belonging to the school at Wootton Underhedge, which had got into the hands of patentees as concealed lands ; but the decision has not received universal approbation ; its propriety having been canvassed first by Sir Wm. Grant, M. R., and afterwards by Sir Thomas Plumer, M. E,. "I do not inquire," said the former (^), '^by what authority Lord Coventry gave to an individual so large an interest in the charity estate. To the Great Seal, as superintending all property destined to charitable uses, powers might be supposed to belong beyond those wliich it would be competent for me, sitting in a mere judicial capacity, to exercise." — And Sir Thomas Plumer declared {h) that the court, in the case in question, had sanc- tioned alienation under a principle which it would then be a (b) Attorney-General v. Green, sup. Ves. 326. See also Gozna v. The Al- (c) Tritton v. Foote, 2 Bro. C. C. derman and Bm-gesses of Grantham, 636 ; S. C. 2 Cox, 174. Rees v. Lord 3 Russ. 261; and Lydiatt v. Foach, 2 Dacre, cited, 9 Ves. 332 ; but more Vern. 410. fully set out in 3 Hargr. Jurisc. Exer. (/) Attorney-General v. Smith, 2 206-7. 237 ; and 1 Hargr. Jurid. Arg. Vern. 746. 438, under tlie name of Reece v. Lord (g) Watson v. The Master &c. of Dacre. Hemsworth Hospital, 14 Ves. 333-4. ((Z) Per Lord Eldon, 9 Ves. 330. (h) Attorney-General v. Warren, 2 (e) Attorney-General v. Brooke, 18 Swanst. 303. 352 OF THE CONTRACTING PARTIES. [Part 111. little difficult to recognize. These remarks and the observa- tions of Lord Eldon {i) render it very improbable that such a claim could now be maintained, unless the party seeking the rencAval could advance an extremely strong case in his favor. Stillj if, in consideration of extensive improvements made by the lessees, the lease contain a coA^enant for nine renewals at the end of every seven years, the coui't will not disturb it, in case the remaining renewals will amount to no more than a reasonable satisfaction and recompense to the lessee for his expenditure. In such a case, a reference would be directed to the Master to inquire what lasting improvements had been made, and money laid out, and how much the annual value of the charity had been increased by the lessee; and to inquire what was the just and real value of the lease when first granted to be then purchased, consideration being had to the contin- uance of renewals ; and then when this was stated, it would appear whether the lessee had had sufficient satisfaction or not ; for the court would take care that he had justice done him {k). But in a case which occurred in Ireland (/), where, in 1710, the trustees of a charity, in consideration of a fine of 300/., and an annual rent of 100/., made a lease for Kves, with a covenant for perpetual renewal, on payment of a fine of 25/. on the fall of each Hfe, which was accordingly renewed in 1782, the court of Chancery in Ireland, and afterwards the House of Lords in England, having regard to the circum- stances of the times, and the usual practice of leasing at that time, and in that country, refused to set aside the transaction on the ground of improvidence and breach of trust. It must not, however, be received as an inflexible rule, that in no case whatever can trustees of estates devoted to charita- ble purposes grant leases for long terms, or even absolutely (i) In Attorney-General v. Brooke, Charit. Uses, 26)), Bridgm. edit. Ifi Ves. .'52G. (0 Attoi'ncy-Genci'al ?'. Hungerford, (/•) Attonioy-Gcneral v. Baliol Col- « Bli. New Rep. 4.37 ; S. C. 2 CI. & lege Oxford, ,') Mod. 407; S. C. Duke's Fin. ;5.'')7. Cii. I. s. IV.] Aviio lessors: — trustees of charities. 353 alien the trust property (m). Circumstances may justify a departure from the ordinary com-se ; and_, accordingh^^ in a very recent case {n), the Master of the Rolls refused to set aside a lease granted to the South Sea Company for 999 years, at a fixed rent of 45/., as the transaction appeared to be fair and beneficial to the charity at the time, the property let consisting of dilapidated buildings in an obscure part of the city, yielding an uncertain and inconsiderable rental, and the company having erected part of the South Sea house and other valuable buildings on the site. But with so much jealousy does the court regard these transactions, that it imposes upon those dealing for and with the estate the burthen of proving the lease to be a reasonable one, and for the benefit of the charity. This has often been decided (o) ; and Lord Eldon, enforcing the doctrine laid down in the Attornej^- General v. Owen, with great emphasis repeated that very general proposition as his judicial opinion {p). The late case of the Attorney-General v. Kerr («/) furnishes an illustration of these remarks. In the year 1745, the cor- poration of Northampton granted a lease of certain property of which they were trustees for a charity, for a term of twenty-one years, at a rent of 8/. In 1763, before the ex- piration of the former lease, they granted a reversionary lease to the same lessee for twenty-one years, commencing from 1766, at a rent of 8/., and a fine of 25/. In 1769, they granted to the lessee another reversionary lease for sixty years, to commence in 1787, at a rent of 9/., the lessee cove- nanting to take down the then existing messuage, and to build one or more dwelling-houses, and to keep them in (m) Attorney-GeneraH'. Wavren, 2 fitli, 13 Ves. 575. Attorney-General Swanst. 303 ; S. C. 1 Wils. Ch. Ca. v. South Sea Company, 4 Beav. 453. 387. Attorney-General V. Hungerford, (p) Attorney-General r. Brooke, 1 8 sup. Ves. 326. {n) Attorney-General v. The South {q) Attorney-Genei'al v. Kerr, 2 Sea Company, 4 Bcav. 453. Beav. 420 ; and 4 Beav. 297, as to (o) Attorney-General v. Owen, 10 costs. Ves. 560. Attorney-General v. Grif- VOL. I. A A 354 OF THE CONTRACTING PARTIES. [Part III. repair. On 10th of December, 1784, Dr. Kerr became the purchaser of the residues of the terms created in 17G3 and 1769 ; and, on the 18th of that month, the corporation granted him a further reversionary lease for thirty-nine years, to commence at Michaelmas, 1847, at a rent of 18/.; and Kerr covenanted to lay out 500/. in building one or more messuages, v/ith convenient out-offices, on the premises; and that, in case he should take down the buildings then being thereon, he would expend 1000/. in buildings, and keep them in repair. At the time of granting this lease there was a term of sixty- two years and three-quarters unexpired of the old leases, which being added to the new reversionary term of thirty-nine years made a period of 101 years and three-quarters. Dr. Kerr then laid out considerable sums on the property, and by indenture, reciting that he had laid out more than 500/., and that the corporation were convinced that it was for the benefit of the charity, they, in consideration of the smTcnder of the two last leases, and of the fee-farm rent reserved, conveyed the property absolutely to Dr. Kerr, subject to a clear yearly fee-farm rent of 12/., and a fine of 10^. at the end of twenty- one years for ever. The Master of the Rolls considered that it would be utterly irreconcileable with every principle on which property could be advantageously dealt with to allow the transaction to stand, either as regarded the conveyance of the fee, or the grant of the reversionary lease of 1784; but refused to disturb the lease of 1769, not being satisfied that it was an imprudent transaction on the part of the cor- poration : and his lordship directed an inquiry to ascertain whether Dr. Kerr's expenditure had been incurred with re- ference only to the enjoyment under the lease of 1769, or in consequence of the extension of the term in 1784, deeming it equitable, in the latter case, that some compensation sliould be made to him in that respect. But ornamental expenditure was not to be allowed. It is not enough to say that the mode of letting is not the best that miglit be prescribed, because, on such a point, there may be a great difference of opinion among the most ex- Ch. I. S. IV.] WHO lessors: TRUSTERS OF CHARITIES. 355 perienccd; but it must be shown that the mode is so positively bad that no persons meaning fairly to discharge their trust would have resorted to it (r) ; and the question, therefore, is, whether, under all the circumstances, the alienation was a breach of trust, or whether the contract was not for the benefit of the charity {s). Upon this ground, the court on a late occasion (t) refused to avoid a reversionary lease for ninety-nine years determinable on two lives. The fticts (in an abridged shape) were as follow : — Nicholas Spicer, then late one of the aldermen of the city of Exeter, on the 3rd of March, 1609, enfeoffed Jordaine and Crossinge, and six others (deceased), in fee, of certain hereditaments, among other pur- poses, upon certain charitable trusts; and on the 20th of August, 1689, Jordaine and Crossinge granted and enfeoffed unto the mayor, baihffs, and commonalty, of the said city, all the said premises, upon the same trusts. It appeared thai the mayor, &c., on the 2nd of June, 1772, in consideration of 630^., demised to one Edward Cross a certain messuage and premises, called Slow-lake, comprising the principal part of the charity estates, for ninety-nine years, if the said Edward Cross, then aged twenty-two, and Betty his wife, then aged twenty-nine, or either of them, should so long live, to com- mence immediately after the surrender or other sooner deter- mination of a former lease made in 1727, determinable on the life of a person then in existence, at the yearly rent of 20/. : and that, by another indenture, dated the 24th of November, 1801, the mayor, &c., in consideration of 1050/., demised to the said Edward Cross the same premises for the term of ninety-nine years, if John Cross, then aged twenty-six, and Sarah Cross, then aged sixteen, or either of them, should so long live, to commence on the death of the said Edward Cross, or the surrender or other sooner determination of the lease of 1772, at the like yearly rent of 20/. Similar leases (?•) Attorney-General v. Cross, 3 (.y) Attorney-General v. Warren, 2 Meriv. 524. Attorney-General v. Hun- Swanst. 303; S. C. 1 Wils. Ch. Ca. 387. gerford, 8 Bli. New Rep. 437. 461 ; S. C. (t) Attorney-General v. Cross, sup. 2 CI. & Fin. 379. A A 2 356 OF THE CONTRACTING PARTIES. [Part III. had been from time to time granted, and were then in exist- ence, of other smaller parts of the charity estates. And it appeared that Nicholas Spicer, the feoffor, had in his life- time granted leases of the charity estates for lives at small rents; and that, since his dea^li, the feoffees of the said estates had from time to time granted leases thereof for lives at small rents, reserving fines. And it further appeared by the answer that the defendants and their predecessors had from time to time let the charity estates in such manner as seemed to them likely to be most productive; and that the ordi- nary and accustomed practice with respect to letting of lands in the county of Devon had thitherto been to grant leases for ninety-nine years, or other long terms, determinable on three lives, in consideration of fines, and reserving only a small rent ; which mode of letting had usually been adopted, not only with respect to houses and buildings, but generally -with respect to lands let for the purpose of husbandry only; and that, upon the dropping of one or two of the lives named in such leases, it was usual to grant a fresh lease for another long term of years in reversion, or upon the sm-render of the then existing lease. The information, Avhich prayed that the lease might be decreed void, and the indenture delivered up and cancelled, was finally dismissed; the Master of the Rolls (Sir Wm. Grant) declaring, that though the expediency of letting charity estates in this manner might be more or less question- able according to the nature of the charitj', and the cii'cum- stanccs and situation of the estate, yet he was not aware of any principle or authority on which it could be held that such a lease was, on the very face of it, an abuse of trust. " The legislature" (continued his honor) "has, both in enabling and disabling statutes, considered leases for three lives as on a footing with leases for twenty-one years absolute. So have many founders of charities who prohibited the letting on leases for more than three lives or twenty-one years. It would be a strong thing to say that in such case a lease for three lives would be void. Supposing, however, that, where charity estates had usually been let for twenty-one years, it wovild Ci£. I. S. IV.] WHO lessors: TRUSTEES OF CHARITIES. 357 be considered as improper to substitute a letting for lives, it does not follow that we can impute abuse to a mere adherence to the ancient and uniform mode of letting, especially when it is a mode usual in the district in which the estates arc situated " {u) . The information, however, was dismissed without costs. As in some cases it may be expedient to take fines, and in others to let at the best annual rent (x), a lease is not impeachable merely on the ground of a fine having been taken (y). In a recent case (2'), where the mode of letting had not been altered for more than 200 years, the court, on the authority of the Attorney-General v. Cross («), refused to disturb leases that had been granted for lives, at a fine, or to declare that future leases should not be granted except at the actual improved value thereof without fine or foregift. lu this case the information was dismissed with costs. It may be stated as a general rule, that the court will not rescind a transaction which was perfectly fair at the time, on the ground of the property demised having become more valuable from adventitious circumstances {b). It will be observed, that, in the preceding cases, the trustees were guided solely by their own discretion with regard to the duration of their demises : but where the founder of a charity prescribes a definite time as the utmost limit of leases to be granted by his trustees, they cannot exceed the terms of their power (c), either by direct or indirect means [d] ; nor has the (m) See also Attorney-Geuei-al v. on appeal, 1 Russ. & Myl. 751. At- Price, 3 Atk. 109. 110. Attorney- toruey- General v. Hungerford, 8 Bli, General v. Warren, 2 Swanst. 303; New Rep. 437; S. C. 2 CI. & Fin. 357. S. C. 1 Wils. Ch. Ca. 387. And Attor- (c) Attorney-General v. Griffith, 1 3 ney-Geueral v. Hungerford, 8 Bli. New Ves. 5G5. 576. Watson v. Hinsworth Rep. 437; S. C. 2 Gl. & Fin. 357. Hospital, 2 Vern. 596; S. G. 1 Eq. Gi. (x) Attorney-General v. Cross, 3 Ab.100.pl. 8. Watson v. The Master Meriv. 540. &c. of Hemsworth Hospital, 14 Ves. (y) Ibid. And see Attorney-General 324.333. V. Price, 3 Atk. 110. ((/) Lydiatt v. Foach, 2 Vern. 410. (z) Attorney-General v. Crook, 1 Taylor v. Dulwich Hospital, 1 P. Wms. Keen, 121. ~ 655; S. C. 2 Eq. Ca. Ab. 198. pi. 2. (o) Sup. Attorney-General v. The Master of (l>) Attorney-General v. Pembroke Hemsworth Hosjiital, 14 Ves. 333. Hall, 2 Sim. & Stu. 441 ; S. C, affirmed 358 OF THE CONTRACTING PAIITIES. [Part III. court jurisdiction to order leases for a more extensive term. In a modern case (e), the tlien late Vice-Chancellor (/) had directed a reference to inquire whether leases for ninety-nine years would not be more beneficial to the charity than leases for twenty-one years, the latter being the period specified by the founder; and, on the Master's reporting in the affirmative, the succeeding Vice-Chancellor [g] confirmed that report, as the order for reference had been made by the judge who pre- ceded him; "but (said he) I would not take such a lease under the order of this or any other court of equity. There must be an act of parliament to render legal such deviation from the founder's intention." But it appears that the court has authority to control a power, conferred by the founder, of leasing for three lives or thirty-one years, if it should appear for the benefit of the charity not to act upon that power [h) . Undervalue, if considerable, is also a ground for the com't's intervention (i) ; and where that can be proved the short duration of the term is deemed immaterial. Nor is it impor- tant whether the lessors be mere trustees, or possess also a beneficial interest in the charity estate; such leases are not to be encouraged under any circumstances, as the trustees are guilty of a dereliction of their duty, and the lessees get the land at an inadequate rent {k). But to justify the subversion of a lease on the score of insufficient consideration, it must be an under-value satisfac- torily proved, and considerable in amount. It is not enough to show that a little more might have been got for the estate than has actually been reserved (/). Nor is the circumstance (c) Attorney-General v. Mayor of (/) Reresby v. Fan'er, 2 Vem. 414. Rochester, 2 Sim. .'J4 ; and see Attor- ] Eq. Ca. Ab. 100. pi. 7. East v. ney-Gcneral v. Warren, 2 Swanst. Ryal, 2 1'. Wms. 284 ; S. C, nom. 302-3. Pugh V. Ryal, Sol. Ca. in Ch. 40; 2 Eq. (/) Sir John Lcaoh. Ca. Ab. 19.0. pi. 6. Attorney-General {(j) Sii* Anthony Hart. v. Lord Gower, or Gore, i» Mod. 224 ; (/t) Berkhanipatead Free School, Ex S. C. IJaritard. Ch.Rop. 14.5. 152. At- partc, 2 Ves. Ai, 13. lofi. And sec torney-Geiicral r. Wilson, 18 Ves. 618. Watson V. liinsvvurtli Ilo.sijital, 2 Vern. (/,) Attorney-General v. Wilson, sup. 596; S. C. 1 Eq. ("a. Ah. KM), pi. 8. (/) Attorney-General v. Cross, 3 Cil. I. S. IV.] WHO lessors: TRUSTEES OF CHARITIES. 359 of an underlease being gi'anted at a large premium, and a higlier rent than tliat paid by tlie original lessee, of itself conclusive evidence of undervalue (m) ; for an important part of the increase may be ascribed, not to the intrinsic value, but the good-will established, as in the case of the property consisting of a public-house, and to the money laid out in repairs by the lessee. In the case last cited [n], the master was directed to inquire, whether the rent reserved by the lessors was fair and adequate ; and, in considering the value of the premium received for the underlease, to distinguish how much resulted from the good-will and the repairs, and how much from the value of the lease above the rent reserved by the lessors. Nor does it follow that a tenant who has got a lease of a charity estate at too low a rent with reference to the actual value, is of necessity to be turned out, if it appear that he himself has acted fairly and honestly (o). The only ground for so dealing with him would be some evidence or presump- tion of collusion or corruption of motive. The circumstance of the tenant being a relation of the trustee furnishes a ground of suspicion {p) ; but if the trustee, or one of the governors of the charity, be himself the tenant, though nothing Avrong in a moral point of view can be imputable to him, or the other governors, yet, according to the general rule adopted in equity for the purpose of guarding against possible fraud, the com-t will not allow him to remain lessee of the lands, which, as trustee or governor, it was his duty to let at the greatest possible advantage [q] . It ought, however, to be remembered, that the case of a charity estate is one in which, of all others, the security of the rent is the first object to be regarded; Meriv. 541. Attorney-General ?;. Hun- of the Lawford Charity, 2 Jleriv. 45.3. gerford, 8 BH. New Rep. 437. 461; 457; S. C. 1 Wils. Ch. Ca. 14. At- S. C. 2 CI. & Fm. 357. torney-General v. Huugcrford, sup. (m) Attorney-General v. Cross, sup. (i^) Ex parte Skinner; hi the mat- Attorney- General V. Magwood, 18 Ves. ter of the Lawford Charity, 2 Meriv. 315. - 457; S. C. 1 Wils. Ch. Ca. 14. («) Attorney-General v. Magwood, (q) Attorney-General r. Dixie, 13 sup. Ves. 519. 531.534. Attorney-General (o) Ex parte Skinner; in the matter v. Eai'l of Clarendon, 17 Ves. 500. 360 OF THE CONTRACTING PARTIES. [Part III. and, therefore, in such cases, the inadequacy of the rent is less a badge of fraud than it would be in almost any other instance (r). The discovery of the fact of undervalue, depending, as it necessarily must, on numerous relative circumstances, and involved in obscurity in proportion to the remoteness of the transaction, is occasionally surrounded by difficulties of the most perplexing character. From the conflicting nature of the evidence adduced, it is sometimes next to impossible to elicit any data, or estabhsh any position, as a safe or satisfac- tory guide to the judgment. Surveyors very seldom concur in opinion [s). In one case (/), for instance, a messuage was estimated by diflPerent witnesses to be of the annual value of 55/., 50/., and 30/. But in one of later decision («^), the differ- ence was rather more startling. Witnesses were examined on both sides, and a good deal of contradictory evidence pro- duced, as to the value of the estate at the respective times of granting certain leases in 1772, 1801, and 1814, and filing the original information, and the proportion of the several fines paid and of the rent reserved to such annual value. The same, according to the witnesses for the plaintifi", was made to amount in 1772 to 80/., in 1801 to 180/.; and in 1814 to 230/., exclusive of outgoings ; while the witnesses for the defendants differed in their opinions as to value, making it from 40/. to 05/. at the first, from 106/. to 150/. at the second, and from 100/. to 130/. at the third, of the above periods. These examples furnish additional and painful proof, if addi- tional proof be wanting, of the uncertainty and insecurity of human testimony. When, however, these differences occur, the testimony of witnesses who have never had occasion to survey the premises with a view to a correct estimate of their value, but wlio, upon a loose recollection of the several circumstances that entered (r) E\ iiiirte Skinner ; in the nuittci" Ifl Vcs. 151 7. of the Lawford Cliarity, sup. (u) Attorney-General v. Cross, 3 (s) lOVes. 500. Mcriv. 535. (/) AtUjrney-Gencral v. Magwooil, Cu. I. s. IV.J WHO lessors: — TRUSTEES OF CHARITIES. 361 into their computation at a distant period, offer opinions as to their value at tliat period, cannot be put into any degree of competition with the evidence of persons Avho made a survey for that express purpose at the granting of the lease, particularly where neither the skill nor integrity of the sur- veyor can be impeached, nor improper motives for under- valuing the land imputed to him (.«•). These considerations suggest the policy of having the estate valued by a surveyor of skill and reputation previously to a lease being granted. In administering relief, the mode may differ with the peculiarities of the case ; but where the lease has been granted for an unreasonable term, the court usually decrees its can- cellation (y) ; if inadequate consideration form a ground of complaint, the pajmient of an additional rent, generally com- puted from the filing of the information, or previous demand by the relators {z), is decreed against the lessee («). But, as equity cannot relieve without being acquainted with the terms of the original contract, in cases of uncertainty, where, for example, the surrender of a former lease formed part of the consideration, an inquiry will be directed to ascertain whether the lease were reasonable at first, regard being had to the rent reserved, the money expended in building, or otherwise, and the duration of the term (b) . A specific prayer for an account of the rent is not requisite. The rule in cases of charity is almost universal, that the gen- eral prayer is sufficient ; and the relief will be adapted to the case (c), even although the information prays wrong relief (rt^). (x) Attorney-General v. Cross, 3 sup. Eltham Parish v. Warrcyn, Meriv. 542. Duke's Charit. Uses, 67, Bridgm. edit. (y) Yervel Poor r. Sutton, Duke's 641. Wright v. Newport Pond School, Charit. Uses, 43, Bridgm. edit. 628. Duke's Charit. Uses, 46, Bridgm. edit. Attorney-General v. Green, 6 Ves. 452. 649. Rcresby v. Farrer, 2 Vern. 414. Attorney-General v. Owen, 10 Ves. 1 Eq. Ca. Ab. 100. pi. 7. Smith v. 555. Attorney-General v. Griffith, 13 Stowel, 1 Ch. Ca. 195. Ves. 565. 569. Attorney-General v. (b) Attorney- Gcnei-al v. Backhouse, Hotham, 1 Tm-n. & Russ. 209 ; S. C, 17 Ves. 283. Attorney-General r. Mag- affirmed on appeal, 3 Russ. 415. wood, 18 Ves. 315. (z) Attorney-General r. Green, sup. (c) Attorney-General r. Brooke, 1 8 Attorney-General v. Owen, sup. At- Ves. 319. torney-General r. Griffith, sup. (d) Attorney-General r. Whitelcy, (a) Ibid. Yervel Poor r. Sutton, 1 1 Ves. 247. 362 OF THE CONTRACTING PARTIES. [Tart III. The court does not permit its feelings upon the abuse of a charity estate to carry it beyond what is just, even against those who are guilty, much less against innocent parties (e) ; tlierefore, if the lease be valid at law, equity will not set it aside without allowing for lasting (/), though not for merely ornamental {y), improvements. And it would appear, that, if, under a covenant to build, buildings be erected, not ejusdem generis, but equally beneficial to the charity as if they had been made pursuant to the stipulation, the court would be unwilling to hold that the charity, after a great lapse of time, should have both the Imildings and the price due, upon the principle of waste, by the failure to perform the covenants (A) . So, the enjoyment of an under-lessee is seldom disturbed (i) . The court, feeling the extreme hai'dship upon those who have given a full consideration, usually mitigates the decree with regard to their interests, by merely directing them to pay the rent to other persons than those to Avhom they had contracted to pay it ; for, as the interests of those persons may be very fair as between them and those from whom they take, the relief is adapted to the conduct of the parties, as the court finds them respectively to have acted fairly or not towards the trust [k) . The same indulgence is extended to a party purchasing the under-lessee's interest ; for though the purchaser of a lease has never been considered as a purchaser for valuable considera- tion without notice, to the extent of not being bound to know from whom the lessor derived his title, yet no case has gone the length of saying that he is to take notice of all the circumstances under which the lessor derived that title. The purchaser of the underlease must be understood at least to (e) Attorney-General v. Backhouse, {(J) Attorney-General v. Ken-, 2 1 7 Vcs. 292. And see Attorney-Ge- Beav. 420. neral v. Griffith, 1."} Ves. 579. (/t) Attorney-General i>. Backhouse, (/) Attorney-General v. Baliol Col- 17 Vcs. 292. lege, 9 Mod. 407. 411; S. C. Duke's {I) Ibid. Attorney-General i>. Grif- Charit. Uses, 2G», Bridgni. edit. At- fith, 13 Ves. .5().5. Attorney-General tonicy-General v. Kerr, 2 Beav. 420. v. Foord, G Beav. 2«8. But see Attorucy-Geuoral v. Griftith, (/.) Attorney-General v. Bacldiouse, 1 :) Vc8. 500. 1 it Ves. 292. Ch. I s. IV.] WHO LESSORS : TRUSTEES OF CHARITIES, 36.'i have notice that the original lessors were trustees for a charity; but not that the lease was bad; that depending upon a number of circumstances dehors the lease (/) . On the other hand, the court, in setting aside an improper charity lease, will not allow the personal covenants of the trustees for quiet enjoyment to remain in operation; but the transaction will be annulled in toto (m). Costs in these cases are usually visited on the lessee {n), though circumstances may require a different course of pro- ceeding. In the case of the Attorney- General v. Owen (o), the lessee was not burthened with costs, as he undertook to give up the lease without trouble ; but Lord Eldon declared that the case was not to be considered as an authority with reference to persons taking leases of charity estates, and that in future they would not get off so easily. In a later case ['p), application being made on behalf of the persons entitled under the lease_, that the decree against them should be without costs, the Chancellor at length assented, but with great re- luctance ; desiring it to be miderstood that it was upon the ground that the information was filed before the decision of the two late cases [q] ; and that he should not be prevailed on to refuse costs thereafter in any case upon an information filed since those cases; and afterwards, in the Attorney- General V. Cross (?•), the information was dismissed without costs, though the Master of the Rolls refused to disturb the possession of the lessee. So, if the governors of a charity have been extremely negligent in their trust, although guiltless of corruption, the court will punish them with some costs {s). (l) Attorney-General v. Backhouse, General v. Green, 6 Ves. 452. 17 Ves. 283. See also Attomey-Ge- (i^) Attomey-GeneraU'. Griffith, 1 3 neral v. Pargeter, 6 Beav. 150. Ves. 581. (m) Attorney-Geuei-al v. Morgan, 2 (q) Attorney- General v. Owen, and Russ. 306. Attorney-General v. Gi'cen, sup. (m) East V. Ryal, 2 P. Wms. 284; (?•) 3 Meriv. 524. 542. S. C, nom.- Pugh v. Ryal, Sel. Ca. in (s) East v. Ryal, 2 P. VVnis. 284 ; Ch. 40. S. C, nom. Pugh r. Ryal, Sel. Ca. in (o) 10 Ves. 562. See also Attorney- Ch. 40. 364 OF THE CONTRACTING PARTIES. [Part III. The fact of the demised property being the subject of a charitable trust is sometimes contested. In 1710, the cor- poration of Grantham, in consideration of upwards of 8U/., granted a lease of two messuages for a term of twenty-one years, at a yearly rent of 4/. ; and they covenanted to grant, at all times and for ever, new leases for a hke term, and at the same rent, on payment of a fine of five shillings. The lease had been renewed from time to time until the year 1814; and the bill was filed by the person entitled to the benefit of the covenant to compel the corporation to grant a renewed lease. The defence made by the corporation was, that the property had been devised to them on charitable trusts, and that the covenant for perpetual renewal was a breach of trust. The only evidence of the premises being subject to a charitable trust was, that the 4/. of yearly rent had been long applied in purchasing four blue coats for four poor men of the town of Grantham. This application of the money was traced back as far as the year 1769. The Master of the RoUs thought that the CAddence did not entitle him to presume that the property was held in trust for a charity in 1710; and he therefore gave the plaintiff a decree for the renewal of the lease, with costs {t) . So, where a private act of parliament {u) conferred a power on the vicar of the parish for the time being to lease certain waste lands "for such term or number of years, at and under such rent, reservations, or payments, as to him should seem meet"; and, by virtue of this act, the \icar, in the years 1716 and 1719, granted three distinct leases of parts of the premises to three difi'erent persons, for 1000 years, 999 years, and 1000 years, respectively, which, upon the principle acted upon in the cases of charity leases for un- reasonable terms, were sought to be set aside as excessive executions of the power, and in effect a complete alienation of the estate ; the Vicc-Chancellor denied the resemblance {t) Gozna v. Tho Alderman and Burgesses of Grantham, 3 Russ. 261. (m) 1 Geo. 1. Stat. 2. c. 42. Cii. I. s. IV.] WHO lessors: — trustees of charities. 365 contended for between these leases and leases granted by trustees of a charity, and refused to disturb them [x) . And a case (y) similar in almost all respects, and founded on a lease granted under the same act of parhament, was soon afterwards brought under the consideration of Lord Eldon, who concurred in decision with the Vice-Chancellor, but could not refrain from expressing his persuasion that in the act the legislature had gone further than it intended. "It was argued," said his lordship, "that the vestrymen were to be considered in the nature of trustees, and that, therefore, the leases are to be treated as if made by trustees of a charity; but I find it difficult to accede to that reasoning. When the legislature, with respect to ecclesiastical persons, has said that they may make such leases as to them shall seem meet, it is difficult for a court of equity, at the distance of 100 years, to say what were the terms on which such leases should have been granted, particularly when the premises were to be improved in the manner in which these were. And, therefore, notwith- standing I am of opinion that this act gives a power beyond what was intended, yet I do not think that a court of equity has a right to cut down leases that are within the express terms of it." Municipal corporations have been deprived of the manage- ment of estates confided to them in trust for charities, by a late act (r), which, after noticing that divers bodies corporate stood seised or possessed of sundry hereditaments and per- sonal estate, in trust in whole or in part for certain charitable trusts, and that it was expedient that the administration thereof should be kept distinct from that of the public stock and borough fund, enacted [a], that in every borough in which the body corporate, or any one or more of the members of such body corporate, in his or their corporate capacity, then stood solely, or together with any person or persons elected solely by such body corporate, or solely by (.?•) Attoraey-General v. Moses, 2 cob, 307. Madd. 204. (z) 5 & 6 W. 4. c. 76. (y) Attorney-General v. Wray, Ja- (a) Sect. 71. 366 OF THE CONTRACTING PARTIES. [Part III. any particular number, class, or description of members of such body corporate, seised or possessed, for any estate or interest whatsoever, of any hereditaments, in whole or in part in trust or for the benefit of any charitable uses or trusts whatsoever, all the estate, right, interest, and title, and all the powers, of such body corporate, or of such member or members of such body corporate, in respect of the said uses and trusts, should continue in the persons who at the time of the passing of the act were such trustees, notwithstanding that they might have ceased to hold any office by virtue of which before the passing of the act they were such trustees, until the 1st day of August, 1836, or until parliament should otherwise order, and should immediately thereupon utterly cease and determine. And, after providing for the supplying of vacancies among the trustees before the said 1st day of August, the act declared that, if parliament should not other- wise direct on or before the said 1st day of August, 1836, the lord high Chancellor, or lords commissioners of the great seal, should make such orders as he or they should see fit for the administration, subject to such charitable uses or trusts, of such trust estates. No further pro\nsion having been made by parliament, the administration of tliese charity trusts is now vested in the court of Chancery ; but a difficulty will arise as to the grant- ing parties on the occasion of any future lease, the act having declared that the estate of the corporation in the trust property shall cease and determine, without having provided a substitute to convey the legal estate. XII. — Executors and Administrators. An executor or administrator may demise the premises whicli devolve on him in either of those capacities (Z*) ; but on this subject a difference exists between the offices of {h) I5ac. Al). Leases, (I). 7. Koatiiig v. Keating, Lloyd & Goo. Ca. temp. Siig.l. C, l.-i.-i. Cn. I. s. IV.J WHO MAY BE LESSORS: — EXECUTORS, &C. 307 executor and administrator. An executor, deriving his power from the testator (c), may lease before probate (d) -, but as tlie letters of administration alone constitute the title of an administrator, it follows that, until invested by the ordinary with the office of administrator (e), he cannot exercise any act of ownership over the intestate's leaseholds. Several executors are regarded as an individual person, and have a joint and entire interest in the testator's property (/) ; and, hence, the lease of one of several executors is as efficaci- ous as their joint demise [g), although it purport to be the grant of all (A). In this respect their interest differs from that of joint- tenants, or tenants in common; the grant of one of several joint-tenants or tenants in common operating only on the share of the granting party (i) . Joint administrators were formerly considered as standing in a different position; and it was deemed necessary to obtain the concurrence of all {k) : the distinction, however, is now exploded, and the offices of executor and administrator are in this respect assimilated (/) . If a term be bequeathed to an executor for life, with re- mainders over, his right, as executor, to assign the whole term, or to underlet the premises for any period, will not be abridged by a limited power of leasing given to him by the will (m) . As the marriage of a feme executrix, or administratrix, transfers to the husband the whole right of administration, (c) Toll. Ex., 5th Ed. 95. Anon. Fenn, Cro. Eliz. 347; S. C. Mo. 350; Dy. 367, a. Rol. Ab. Executors, (A). Gould. 185. Rol. Ab. Executors, (O). Hudson V. Hudson, 1 Atk. 460. Doe dem. Hayes v. Sturges, 7 Taunt. (cO Rol. Ab. Executors, (A). Roe 217. 222; S. C. '2 Marsh. 505. Shnpsou dem. Bendall «. Summerset, 2 W. Blac. r. Gutteridge, 1 Madd. 609. 616. Ja- 692-4. comb v. Ilarwood, 2 Ves. 267. (e) Toll. Ex., 5th Ed. 95. Wankford Qi) Simpson ■£;. Gutteridge, 1 Madd. V. Wankford, 1 Salk. 301 ; S. C. 3 Salk. 609. 616. 162; Holt, 311; 11 Mod. 38. Hudson (i) See ante, pp. 124, & 131. V. Hudson, 1 Atk. 461. (Jc) Hudson v. Hudson, 1 Atk. 460. (/) Toll. Ex. 242. Com. Dig. Ad- (;) Jacombr.Har\vood,2Ves.265-7. ministration, B. 12. Anon. Dy. 2.3, b. Willand v. Fenn, cited, Ibid. 267-8. Jacomb v. Harwood, 2 Ves. 267. {in') Doe dem. Hayes v. Sturges, 7 (;/) Auon. Dy. 23, b. Pamiel v. Tuuut. 217; S. C. 2 Marsh. 505. 368 OF THE CONTRACTING PARTIES. [Part III. her sole demise cannot be supported. He must^ therefore, be the granting party in all leases made in right of such executorship or administration [n) ; nor is her concurrence necessary (o). If a party to whom administration is granted generally, ratione minoi^is eetatis, without any restraint or limitation, grant a lease for a term exceeding the duration of the infancy, it will be good at all events until the executor attain his majority {j)), and, according to the opinion of some, until he enter to defeat it {q) . Formerly, the authority of an adminis- trator appointed during the minority of an executor ceased on the minor's attaining the age of seventeen years (r) ; but the inconveniences arising from the practice of granting probate to persons under the age of twenty-one were removed by the statute of 38 Geo. 3. c. 87, which enacts (5), that, where an infant is sole executor, administration with the will an- nexed shall be granted to the guardian of such infant, or to such other person as the spiritual court shall think fit, until such infant shall have attained the full age of twenty-one years, at which period, and not before, probate of the Avill shall be granted to him. And further {t), that the person to whom such administration shall be granted shall have the same powers vested in him as an administrator now hath by virtue of an administration granted to him durante minore (Btate of the next of kin. And by the same act pro^dsion is made against the delays occasioned by the residence out of the jurisdiction of the courts of executors to whom probate hath been granted. Section the 1st enacts, that, at the expiration of twelve (ft) Jenk. Cent. 79, case 56. Arnold (7) Sii" Moyle Finch's case, 6 Co. v. Bidgood, Cro. Jac. 3 1 H. Thrustout 07, b. dem. Levick r. Coppin, 2 W. Blac. (r) Dubois v. Trant, 12 Mod. 436. 801 ; S. C. 3 Wils. 277. Atkinson v. Cornish, 1 Ld. Rayni. 338; (0) Ibid. S. C. Cavth. 446; .5 Mod. 'A^c,. Freke {ji) Sir Moylc Finch's case, 6 Co. v. Thomas, 1 Ld. Raym. 667; S. C. 63, a. b. 67, b. And see Prince's case, Com. 110; 1 Salk. 30. r, Co. 29, b. ; S. C, nom. Price v. («) 38 Geo. 3. c. 87. s. 6. .SiniiiHon, Cro. Eliz. 718; S. C, nom. (t) Sect. 7. Prince v. Synijjson, 2 And. 132. Ch. I. s. IV.] WHO MAY BE LESSORS :— EXECUTORS^ &C. 800 calendar months from the death of any testator, if the execu- tors or executor to whom probate of the will shall have been granted are or is then residing out of the jurisdiction of his Majesty's coui'ts of laAV and equity, it shall be lawful for the ecclesiastical court which hath granted probate of such will, upon the application of any creditor, next of kin, or legatee, grounded on the affidavit thereinafter mentioned, to grant such special administration as thereinafter is also mentioned. And the second section requires the party applying for the administration to make an affidavit that there is a debt owing to him from the testator's effects, and that he is desirous of exhibiting his bill for the pui'pose of being paid his demand. The third section prescribes the form of the administration. It is observable, that the authority of an administrator under this act is only voidable, not void, on the decease of the executor (m). Where an executor or administrator grants a lease in that capacity, his executor is entitled to the rent in preference to an administrator lie bonis non of the original testator or intestate, whose title is necessarily paramount that of the lessor {x) . But where an administratrix underlet a portion of her intestate's leasehold property, and covenanted that she, her executors, administrators, and assigns, would renew as often as she or they should obtain a renewal from the superior landlord, it was held, that the lessee might, on her death, enforce a specific performance of the covenant against an ad- ministrator de bonis non of the intestate. The chancellor said that the act of the administratrix was both a legal and equitable disappropriation from the assets of the intestate, and that the administrator de bonis non, who had entered into the receipt of the rents reserved by the lease, had no {u) Tayntoii v. Hannay, 3 Bos. & 1 Vent. 275 ; Freem. 392, 402 ; Pul. 26; Alvanley, C. J., dissent. cited as Davie v. Drew, alias Drewry, {x) Drew v. Bayly, 2 Lev. 100; 1 Vera. 94. Norton r. Harvey, 1 Vent. S. C. 3 Keb. 298. 427. 463. 495. 549 ; 259. See also Latch, 266-7. S. C, nom. Drue ?■. Baily, or Baylye, VOL. I. n B 370 OF THE CONTRACTING PARTIES, [Part III. right to do so unaflPeeted by the acts and covenants of the administratrix, and that the lands were in his hands hound by the covenant if they were so in hers (y) . As a practical caution, we may mention, that a person proposing to take from an executor a lease of premises speci- fically bequeathed to another, should obtain, if possible, the concurrence of the legatee ; for, after the executor^s assent to the bequest, the legal title vests in the legatee, at whose suit an action of ejectment will lie against the purchaser (z). But it is to be noticed, that leases by executors or adminis- trators, though good at law, are voidable in equity unless shown by the lessees to be a due administration of the assets of the testator or intestate (a). Thus, an underlease granted by an administratrix was set aside, the lessee having notice that a sale was required by the parties beneficially inte- rested {b). So, where a reversionary lease was granted by an executor, without noticing a fine paid by the lessee as a consideration for the grant, Sugden, C, set it aside as being an undue execution of the executor's authority, .and tending to enable him to commit a fraud, by concealing from the cestuique trust the receipt of the fine (c). So, where a party bequeathed his leaseholds to trustees, whom he also appointed executors, upon trust for sale, the V. C. {d) dismissed a bill by them for a specific performance of a contract to take an underlease, observing, that, prima facie, a trust for sale was inconsistent with the granting of a lease ; but his Honor added that there might be circumstances to justify the exe- cutors in departing from the words of the trust j though, as the cestuis que trust were not parties to the suit, he could (y) Ilachett v. Mc Naraai-a, Lloyd 256. Doe dem. Lord Say and Sele v. & Goo. Ca. temp. Plunkct, €.,283. Guy, 3 East, 120. Aa to the effect of the covenant for («) Drohan v. Drohan, 1 Ball & B. renewal by an administrator, see next 185. Keating v. Keating, Lloyd & page. Goo. Ca. temp. Sugden, C., 133. (z) Paramour v. Yardlcy, Plowd. (/») Drohan v. Drohan, sup. 539. 4 Co. 28, b. Young v. Holmes, (r) Keating r. Keating, sup. 1 Stra.70. Saunder'scase, 5 Co. 12,1). (:>'A. {l>) Set-- also as to this Mr. Justice (w) Maci)her8on on Infancy, p. 10(i. lloiroyd's remark in Mill r. Saunders, (/() 1 VVilH. \2'J. \'ih, sup. p. 873-4. 1 Barn. *c Cres. :)8(i. Ante, p. 877. Cli. Is. TV.) WHO MAY BE lessors: GUARDIANS. 3Sl couclied in these terms, which, it was argued, signified, until botli of them the said I. and R. should attain twenty- one, and, consequently, Avould extend the tenn beyond the minority of the elder; but the court overruled the objection {q). The various matters hitherto noticed in this division are totally indeijendent of a late statute (r), by which, without abridging the then existing powers of guardians, additional facilities w ere afforded for leasing the estates of infants, with greater security to the lessees. As this act has been fully noticed in treating of leases by infants (5), it will be unneces- sary to repeat its provisions in this place. Unless the lease be made in pursuance of this statute, the name of the guardian should be used, and not that of the infant as if the authority were derived from him (/) ; for in that case the deed would be void, as an infant cannot appoint an attorney to pass an estate {11). But if it be desirable to continue the lease beyond the period of infancy, the infant himself, as well as his guardian, should be a demising party, as he may afterwards, on attain- ing twenty-one, confirm the lessee's interest, an infant's lease, as we have seen {x), being voidable only, and not void. Until lately, to enable the infant to bring an action on the covenants, he must have been a party to the deed; and, therefore, in a late case, where by an indenture of lease between I. and C. Drummond of the first part, an infant's guardian of the second part, and the lessee of the third part, the rent was reserved to the infant, and the covenants were entered into with the infant and I. and C. Drummond, it was held that an action of covenant, in which the infant was a co-plaintiff with I. Drummond (who sm-vived C. Drummond), could not be maintained (y) ; but by a recent act of parlia- (9) Shaw V. Shaw, Vera. & Scriv. {u) Perk. s. 139. Corabes's case, 9 607. Co. 76, b. (»•) 11 Geo. 4 & 1 W. 4. c. Go. s.17. C^') Ante, p. 30, et fcq. (s) Ante, p~. 34, et seq. (>/) Lord Southampton v. Brown, 6 (0 Bacon on Leases, p. 138. Bac. Barn. & Cres. 718. Ab. Leases, (I) 9. 383 OF THE CONTRACTING PARTIES. [Fart III. ment (r) it is enacted {a), that under an indenture executed after the 1st of October, 184-5, the benefit of a covenant respecting any tenements or hereditaments may be taken, although the taker thereof be not named a party to the same indenture. It will be remembered that this act has no effect on leases executed before the day named. If the guardian take a bond in his own name for arrears of rent due from the tenants, he makes the debt his own (A). XIV. — Assignees of Bankrupts. As all a bankrupt's estate, and all powers vested in him which he might legally execute for his own benefit, (except the right of nomination to any vacant ecclesiastical benefice,) may be executed by the assignees for the benefit of the credi- tors, as the bankrupt might have executed the same (c), it follows that they may exercise powers of leasing vested in the bankrupt; but with regard to his estate, as distinguished from his pov)er, their duty is to sell, and not to lease. An appointment by the bankrupt in the interval between the act of bankruptcy and the adjudication is void {d), provided the fiat issue within due time (e). XV. — Assignees of Insolvents. The act of 1 & 2 Vict. (/), for the relief of insolvent debtors, provided [g), that all powers vested in any such prisoner whose estate should by an order thereunder have been vested in the provisional assignee which such prisoner might legally execute for his own benefit, (except the right of nomination to any (3) 8 & 9 Vict. e. lOG. B.arn. cSt Aid. f);{. («) Sect. 5. (c) See s.s. «1 ami 86 of 6 Geo. 4. {b) Wall V. nuckloy, Rep. in Cli. .07. c. 1(5. (c) ft Goo. 4. c. Ifi. fi. 77. (/) 1 & 2 Vict. c. 110. (f/) Doe (lem. C'oloniaii 7-. IJritiiin, 2 (7) Sect. 4. 't. Ch. 1. s. iv.] WHO lessors: — assignees or insolvents. Ii8.'3 vacant ecclesiastical benefice,) should be vested in the assignee or assignees of the real and personal estate of such prisoner by virtue of the act, to be by such assignee or assignees executed for the benefit of all and every the creditors of such prisoner under the act, in such manner as such prisoner might have executed the same. And, in like manner, powers vested in any petitioner for protection from process under the acts of 5 & 6 Vict. c. 116 (h), and 7 & 8 Vict. c. 9G (i), are by the latter act (/c) vested in his assignees, to be executed for the benefit of his creditors, as the petitioner might have executed the same. Independently, however, of such powers, the duty of the assignees is, as in cases of bankruptcy, to sell, and not to lease, the insolvent's property. In the case of Partington v. Woodcocjc (/), to a declaration in an action of debt for rent, the defendant pleaded that before the demise the plaintiff took the benefit of the insolvent debtors' act, and that all his estate, right, &c., in the premises became vested in the assignee, and that after the plaintifl" had been discharged, and after the making of the demise in the declaration mentioned, (the plaintifi" having been authorised and permitted by the assignee, and by permission of the court after the adjudication and discharge, to remain in the posses- sion and management of the premises, and the plaintilff ha\dng been also authorised and permitted by the said assignee, and by the permission of the said court, to make the said demise of the said premises to the said defendant,) and before the rent became payable, and before the commencement of the suit, the defendant received from the assignee a notice and requisition to pa}'^ the rent to him, and that, in default thereof, legal proceedings would be taken by the assignee against the defendant to recover such rent; bv reason whereof the (/;.) 5 & 6 Vict. c. 116, an act for (l) Sect. 11. the relief of insolvent debtors. (?) Partington v. Woodcock, 6 Add. (i) 7 & 8 Vict. c. 96, for amending & Ell. 690; S. C. 5 Nev. & Man. 672; the law of insolvency, bankruptcy, and 1 Har. & Wol. ■262. execution. 384 OF THE COXTRACTIXG PARTIES. [Part III. defeudant became liable to pay the amount to the assignee. And, on demurrer, it was held that the plea could not be maintained, as it was not shown how the old tenancy was determined, and a new one between the assignee and defend- ant created. The defendant had leave to amend. Patteson, J., said: "The plea here states that the assignee gave the defendant notice to pay him all the rent that should accrue in respect of the said demised premises, and under and by virtue of the said demise, in the declaration mentioned, thus treating the previously mentioned demise by the plaintiff as still subsisting. Now, if that demise was made by the insol- vent in his own name, I do not see how the assignee coidd come in as landlord, except by putting an end to the demise, and commencing a new tenancy. I do not see how the rent claimed by the assignee could be rent claimed under 'the said demise.^ Unless the previous demise is put an end to, you make the assignee or mortgagee constructively party to a demise between others" (m). XVI. — Commit iees of Lunatics. For the law on this branch of our subject the reader is referred to a previous part of the work {n) where the subject has been noticed. XVII. — Lords of Manors, as to Wastes. A custom for the lord of a manor to grant leases of the Avastc without restriction cannot be supported, as it would enable liim to annihilate the right of common altogether (o). But by 13 Geo. 3. c. 81 {p), lords of manors were empowered (g') (m) See further on this point, ante, ( p) 1.3 Geo. 3. c. f!l, entitled " An p. 1 65 ; Leases by Mortgagor and Mort- Act for the better cultivation, iniprove- gagee. nient, and regulation, of the common (n) Ante, p. .37. arable fields, wastes, and commons of (o) liadger r. Ford, .3 Hani. N: Aid. pasture, in this kingdom." 1.'):^. And see Arlett r. Ellis, 7 Hani. (7) Sict. 14. & Cres. MS. Ch. I. s. IV.] WHO LESSORS: — ALLOTMENT WARDENS. 385 with the consent of three-fourths of the persons having right of common upon the waste and commons, to demise or lease, for any term or number of years not exceeding four years, any part of such wastes and commons not exceeding a twelfth part thereof, for the best and most improved yearly rent that could by pubhc auction be got for the same; and it was enacted (r) that the clear net rents reserved by any such lease or leases should be applied in the draining, fencing, or other- wise improving, of the residue of such wastes and commons. XVIII. — The Allotment Wardens. A recent act of parliament [s) for facilitating the inclosure and improvement of commons and lauds held in common, has pro^'ided [t], that the allotment which upon any inclosure under its provisions [u) shall be made for the labouring poor shall be under the management of the incumbent of the parish or ecclesiastical district in which such allotment shall be situate, or the officiating minister for the time being nominated by the incumbent for that purpose, the chuj'ch- warden, if there be but one, or if there be more than one, one of the chuichwardens for the time being of such parish, and two other persons who shall be rated to the relief of the poor in such parish; and that such churchwarden, where there is more than one churchwarden, shall be yearly named, and that such two other persons shall be yeai'ly chosen and appointed, at the same time, and by the same persons, and in the same manner, as the overseers of the poor for such parish shall be chosen and appointed, and shall continue in office in like manner vintil the next appointment of overseers, or until others are named and chosen and appointed in theii* stead ; and that such incumbent or officiating minister, churchwar- den, and two other persons, for the time being, shall be styled " The Allotment Wardens " of the parish, and shall (»•) Same section. (0 Sect. 108. (s) 8 & 9 Vict. c. 118. (m) See sect. 31. VOL. I. C C 386 OF THE CONTRACTING PARTIES. [Part III. manage and let the said allotment as after provided; and that all things by the act authorised to be done by the allotment wardens may be done by any two of them ; and that, in the event of the death or retirement from office of any one or more of them, the surviving or continuing wardens may act as if no such vacancy had happened. And also(<2?), that the allotment wardens shall from time to time let the allotment under their management in gardens not exceeding a quarter of an acre each to such poor inhabit- ants of the parish for one year, or from year to year, at such rents, payable at such times, and on such terms and condi- tions, not inconsistent with the provisions of the act, as they shall think fit : provided always, that the commissioners (y) may frame such regulations, not inconsistent with the provi- sions of the act, for the letting of such allotments as therein aforesaid, as they may think advisable, and that such regula- tions shall be obligatory on the allotment wardens during five years from the date thereof, or during such shorter period as the commissioners shall direct : provided also, that the gardens so to be let shall be let free of all tithe or tithe rent- charge (if any), rates, taxes, and assessments whatsoever; and shall before the first letting thereof, and once at least in every ten years after such first letting, be valued by a com- petent person to be appointed by the allotment wardens for that purpose, who shall estimate the full rent which the same would be worth to be let by the year for farming purposes, all tithes, or tithe rent-charge, rates, taxes, and assessments, being borne by the landlord, and shall verify such valuation by solemn declaration under the statute ; and that the rent at which the same gardens respectively shall be let shall be not below the full yearly value of the land according to the last of such valuations ; and that the allotment wardens shall, for the pm'poses of all rates and taxes, be deemed the occu- piers of such allotment, and shall pay all rates and taxes, (.r) Sect. 100. sioiici'H for Enj;laii(l and Wales." (//) Styled " The liiclosuro Commis- Sect. 2. Ch. T. s. TV.] WHO LESSORS: ALLOTMENT WARDENS. 387 titlies, and tithe rent-charge (if any), in respect thereof: pro^^ded always, that no building whatsoever shall, under any such letting, or otherwise, on any pretence, be erected for or used as a dwelling on any such garden, or on any part of any such allotment; and that in case any such building shall be erected or used contrary thereto, the allotment wardens shall forthwith pull down the same, and sell and dispose of the materials thereof; and that the produce of such sale shall be applicable in like manner as the rents of such gardens. And further (z), that if the rent reserved upon the letting of any garden by the allotment Avardens shall at any time be in arrear for forty days, or if at any time during the tenancy, being not less than three calendar months after the com- mencement thereof, it shall appear to the allotment wardens that the occupier of such garden shall not have duly observed the terms and conditions of his tenancy, or shall have gone to reside more than one mile out of the parish, then they shall serve a notice upon such occupier, or, in case he shall have gone to reside out of the parish, shall afl&x the same to the door of the church of the parish, determining the tenancy at the expiration of one month after such notice shall have been so served or affixed ; and it is declared that thereupon such tenancy shall be determined accordingly : provided always, that in every such case the allotment wardens, or their incoming tenant, shall pay to the occupier whose tenancy shall have been so determined a fair recompense in money for any crops (not being crops prohibited by the terms of such tenancy) which may be growing on such garden at the time of such determination, and for any manure left on such garden, or any benefit accruing from the manuring of such garden to the wardens or their incoming tenant ; and that the justices to whom application may be made for a warrant to give possession of such garden shall settle the amount of such recompense, in case the parties differ about the same, and stay the execution of such warrant until the (z) Sect. 110. c c 2 388 OF THE COXTRACTING PARTIES. [Part III. same shall have been paid or tendered, or, in case such occu- pier be absent, until the payment thereof shall have been secured to the satisfaction of such justices. It is also enacted (a), that in case, upon the determination of any such tenancy as therein aforesaid, the occupier of any such garden shall refuse to quit and deliver up possession thereof, or if any other person shall unlawfully enter upon, take, or hold possession of, any such garden, or of any part of such allotment, the allotment wardens may recover possession according to the mode prescribed by the act of 1 & 2 Vict. c. 74 [b], in such and the same manner as if the same wardens were landlords or a landlord, and as if such overholding occu- pier or other person were a tenant neglecting or refusing to quit and dehver up possession, within the meaning of that act. And moreover [c), that all rents payable in respect of the allotment under the management of the allotment wardens shall be payable to such wardens, who shall have the same remedies for recovery thereof by distress and otherwise as if the legal estate of and in such allotment were vested in them under the act [i.e., of 8 & 9 Vict. c. 118]; and that such rents shall be applicable, in the first place, to the payment of all rates, taxes, tithes, tithe rent-charge, and of the rent-charge charged on such allotment under its provisions, and of all expenses incurred by the allotment wardens in the execution of their trusts and powers under it ; and that the residue, if any, of such rents shall be paid to the overseers of the poor, in aid of the poor rates of the parish, and be applicable in the same manner as, and subject to all the provisions concerning, the moneys assessed for the relief of the poor. (a) Sect. 111. mination of the tenancy," noticed in \h) 1 & 2 Vict. c. 74, entitled " An the Seventh Tart of this Work. Act to facilitate the recovery of pos- (c) Sect. 112. session of tenements after due deter- Cu. I. S. IV.J WHO MAY BE LESSOU.S: RECEIVEKS. 389 XIX . — Receivers . A receiver in Chancery may make a lease under the dii'cc- tion of the court, but not otherwise (d) ; and may distrain in his own name for the rent reserved to liim (e) . Of course he must obtain the most advantageous terms (/). It is the present practice [g], in every order directing the appointment of a receiver of a landed estate, to insert a direction, that such receiver shall manage, as well as set and let, with the appro- bation of the INIaster ; and in acting under such an order it is not necessary to present a petition to the court in the first instance; but the Master, without special order, will receive any proposal for the management or letting of the estate for the parties interested, and wiU make his report thereon, which report, however, must be submitted to the court for confirma- tion in the same manner as was formerly done with respect to reports on such matters made upon special reference; and until such report be confii-med, it will not give any authority to the receiver. In a case [h) where there w as an infant remainder-man, the court refused an application, at the instance of the receiver in the cause, (a creditors^ suit,) for a reference to the Master to inquire whether it would be for the benefit of the parties interested in the suit that the receiver should let the premises ; the object in fact being to enable the receiver to make leases to bind the infant re- mainder-man : the Vice-Chancellor said that he recollected no instance in which the court had assumed such a jm'isdiction. ((Z) Morris v. Elme, I Ves. jun. 139. Car. & Pa. 37.0. Shelly v. Pelhani, 1 Durnford r. Lane, 24 Jan. 1806, cited, Dick. 120. Mitchel v. Duke of Man- 2 Madd. Ch. Pr. 244. Cooke v. Cooke, Chester, 2 Dick. 787. Brandon r. 2 Mol. 371. Brandon, 5 Madd. 473. Ward v. Shaw, (e) Dancer v. Hastings, 4 Bing. 2; 9 Biug. 608; S. C. 2 Mo. & Sc. 7.56. S. C. 12 Mo. 34. And see further, as (/) Wynne v. Lord Newborough, to distresses by receivers, Griffith v. 1 Yes. jun. 164; S. C. 3 Bro. C. C. 88. Griffith, 2 Ves. 401. Pitt v. Snowden, {rj) No. 54 of Orders in Chancery, 3 Atk. 750., 5 Burr. 2698. Hughes of 3 April, 1828 (9 Geo. 4). V. Hughes, 1 Ves. jun. 161; S. C. 3 {h) Gibbins r. Howell, 3 Madd. 469. Bro. C. C. 87. Bennett v. Robins, 5 390 or THE CONTRACTING PARTIES. [Pakt 111. Wheu the estates lie in India, it is the usual course to appoint some person in this country to be receiver, and for him to appoint his own agent in India ; and, to prevent the necessity of applying from time to time for permission to let, the Master must inquire what should be the term beyond which the receiver should not be permitted to let (i). If a receiver be appointed, and the owner of the estate be in possession of part of the premises, application should be made to the Master that the owner be ordered to deliver possession to the receiver {k) . Without application, the receiver cannot in any case turn out the tenants, nor raise their rents upon slight grounds (/). XX. — Bailiffs. A mere bailiff cannot lease his employer's lands otherwise than at will [m) ; but a power may be conferred on him for the purpose. XXI. — Agents. An agreement for a lease made with an agent who acts under a power of attorney, and a lease executed by such agent in pursuance of the agreement will effectually bind the principal (n). But if a party dealing with an agent for a lease, and having full knowledge that the principal intends the ground to be let for building only, take an agreement which does not contain a covenant to build, nor a single stipulation with regard to building, he cannot enforce a specific per- formance of such agreement against the principal (o). (/■) V. Lindsey, 15 Ves. 91. Anon. Mo. 70. pi. 191. Anon. Hutt. (/.) Griffith V. Griffith, 2 Vcs. 401. 16. Kuipc v. Palmer, 2 Wils. 16. (0 Wynne v. Lox-d Ncwborough, 1 (w) Hamilton v. CJanricarde, 5 Bro. Ves. jun. 164; S. C. .'5 Bro. C. C. (if!. P. C. 547; Toml. ed. vol. 1, p. 341 ; (m) Shopland v. Rydler, or Royd- Jour. vol. ."50, p. 193. ler, Cro. Jac. 55. 9Ii; S. C.,nom. Shop- (o) llelwham v. Langley, 1 Yo. & land V. Radler, Ow. 115. Gybson, or Col. V. C. 175. (jyidio, V. 8uarlH, Cro. Jac, 114-5. 176-8. Ch. I. S. IV.J WHO MAY BE lessors: AGENTS. 39i If a person, at the time of entering into an agreement for a lease, be acting as the agent of another in negotiating for the lease, it is not material whether at that moment he intends the agreement to be for the benefit of his principal or his own ; because in either case the principal will be enti- tled, as against him, to the benefit of the contract [p] . Where an agent had an authority to grant leases from three only of four tenants in common, and he granted a lease to the land-steward of the property demised, professedly by rirtue of a power granted to him by the four, the court decreed it to be set aside {q) . In dealing with an agent, the agreement or lease should be made as the instrument of the principal, his name should be used as the granting party, and the deed delivered as his lease (r). Nor is an agent of the crown distinguishable in this respect from an agent of a subject [s) ; nor a parol con- tract from an instrument under seal {t) . By neglecting this caution the agent may render himself personally responsible for the fulfilment of the contract, or performance of the cevenants contained in the lease, although he expressly describe himself as an agent for another {ii) . If a tenant take possession under an instrument professing to be a lease made in the agent's name, he may be ericted ( p) Taylor v. Salmon, 4 Myl. & Cr. The commissioners of woods and forests 134. Lees v. Nuttall, 1 Russ. & Myl. contracting for leases of crowTi lauds 53; affirmed by Lord Brougham, on are expressly indemnified from personal appeal, 2 Myl. & K. 819. hability by 10 Geo. 4. c. 50. s. 17. See (g) Rossiter v. Walsh, 2 Con. & ante, p. 199. Law. 563; S. C. 4 Dru. & War. 485. (i) Norton v. Huron, 1 Ry.& Moo. (r) Combes's case, 9 Co. 77, a. 229; S. C. 1 Car. & Pa. 648. D'Abridgcourt v. Ashley, Mo. 818. (?<) Ibid. And see Wilks v. Back, Reynold v. Kingman, Cro. Eliz. 115. 2 East, 142. Appleton v. Binks, 5 Gilby V. Copley, 3 Lev. 140. Frontin East, 148; S. C. 1 Smith, 361. Bm-rell V. Small, 2 Stra. 705; S. C. 2 Ld, v. Jones, 3 Bam. & Aid. 47. Iveson RajTn. 1418. Wilks r. Back, 2 East, v. Conington, 1 Barn. & Cres. 160. 142. White v. Cuyler, 6 Tei-m Rep. Berkeley v. Hai-dy, 5 Barn. & Cres. 176-7; S. C. 1 Esp. 200. Berkeley v. 355; S. C. 8 Dow. & Ry. 102. Cass Hardy, 5 Bam. & Cres. 355; S. C. 8 v. Rudele, 2 Vera. 280; S. C. 1 Eq. Ca. Dow. & Ry. 102. Ab. 25. pi. 8. Keudray v. Hodgson, (s) Anon. Mo. 70. pi. 191. As to 5 Esp. 228. leases by the crown, see ante, p. 184. 392 OF THE CONTRACTING PARTIES. [Part III. by the principal, the instrument being void as a lease {x) ; but, entering under colour of title, he holds in the interval as a tenant-at-will (y) . No particular form of expression is required, provided the act be performed in the name of the principal. However, the lease is usually made "between A. B. [the lessor], of &c., by C. D., of &c., his attorney for this purpose lawfully autho- rised, of the one part, and the lessee of the other part ; and concludes thus: "In witness whereof the said [lessor], by the said C. D. his attorney, hath hereunto set his hand and seal &c. A. B. [The Lessor] by CD. [The Attorney]" The power does not admit of delegation : Delegatus non potest dele ff are {z). It is apprehended that a lease made by, and in the name of, the agent, reserving rent to the principal, and executed by both agent and principal would not be binding on the latter, at law, except so far as he would be liable on the covenants entered into by him («) . On the other hand, if the instrument, being inter partes, the agent of the one part, and lessee of the other, purport to be a demise by the prin- cipal, and the rent be reserved to him, and the covenants be expressed to be between him and the lessee, but the deed be executed by the agent in his own name, and by the lessee only, the principal cannot support an action of covenant against the lessee (b), unless the indenture be executed after the 1st of October, 1845, in which case the benefit of a con- dition or covenant respecting any tenements or hereditaments may be taken, although the taker thereof be not named a party to the same indenture (c). (:c) Anon. Mo. 70. pi. 191. D'Abridg- And see Burrell v. Jones, 3 Barn. «& court V. Ashley, Mo. 81 tj. Reynold v. Aid. 47. Kingman, Cro. Eliz. 115. (I) Berkeley v. Hardy, 5 Barn. cSc iy) ibid. Cres. 355; S. C. 8 Dow. & Ry. 102. (z) Combes's case, 9 Co. 7.5, 1). (c) « & 9 Vict. c. 106. s. 5. {) Sugd. Pow. Ctli ed. vol. 2, p. 328. Barn. & Cres. 431; S. C. 2 Dow. & (q) Poniery v. Partington, 3 Term Ry. hS'K Rep. 6G5. 674-5. (o) Per L. C. B. Richards in Doe (r) Shannon v. Bradstreet, 1 Scho. dem. Jersey v. Smith, 7 Price, 281. & Lef. ()(>. :«3. 407; S. C. 1 Brod. & Bing. 97; (a) See ante, p. 238. Ch. I. s. IV.] ^vuo lessors: — donees of power. 399 tail under the enabling statute {t), would equally apply to leases made by virtue of private powers, at least where there is a similarity of expression. 4thly, As to the exercise or execution of the poAver. The power usually contains directions relating to, 1, the parties by whom, and, where consent is required, with whose consent it is to be exercised ; 2, the time of exercising it ; 3, the instrument, and mode of execution and attestation; 4, the parcels ; 5, the term, and the period of its commence- ment; 6, the rent to be reserved; 7, a right of re-entry on non-payment, &c. ; 8, the execution of a counterpart by the lessee, with a covenant for payment of rent ; 9, exemp- tion from punishment for waste; and, 10, sometimes, though not generally, other covenants and conditions adapted to the cii'cumstances of the case are required to be inserted. The nature and construction of these provisions, and the consequences of non-compliance with them, will be noticed in this division, which will also contain some remarks, 11, as to the eflect of the execution of the power; 12, as to the consequences of a defective execution; and, finally, as to the extingviishment and suspension of the power. And, 1, as to the parties by whom, and, where consent is required, with whose consent, the power is to be exercised. The parties by whom the power is to be exercised are always designated, either by name, or by reference to their character, as, tenant for hfe, tenant in tail, trustees, &c.; and it is scarcely necessary to mention that none but the parties appointed are capable of acting under it. In the case of Hearle v. Greenbank {x), Lord Hardwicke said, that there was no precedent, either in a court of law or equity, where it had been held that a power over real estate executed by an infant was good; and as he could find no precedent for it, he would make none (y). And again, that (t) 32 HeD. 8. c. 28. And see ante, (x) Hearle r. Greenbank, 3 Atk. p. 68. " 695. 710. (m) Ante, p. 68. (ij) 3 Atk. 710. 400 OF THE CONTRACTING PARTIES. [Part III. if the law had been otherwise^ it must have happened in abundance of instances, for powers were given to infants to raise money, to make leases, &c. ; that infants came in the course of succession into possession, and yet it had never been held that they could exercise any such power over real estate ; and that the applying for several private acts of par- liament showed the sense of mankind in this respect [z) . From the language of Bridgman, C.J., in the case of Grange V. Tiving [a), however, it would seem that an infant might execute a power of leasing, should the donor of the power expressly declare that infancy should not be a disqualifica- tion. His words were : — " If a man make a feoflfment to the immediate use of J. S,, for liis life, who is then nineteen or twenty years old, and so of age of discretion, or to the use of Alice Still, who is then a feme covert, with power to make leases for three lives, &c., I will not determine whether a lease according to that power, executed by that infant, or feme covert, be good or not ; for without all doubt it might have been limited by express words of the power, 'that he might make such leases whether he or she were within age, or of full age, or covert or sole'; and then it had clearly been good ; for if he who was o'\\Tier of the estate had no disability upon him, he might make use of any hand, how weak soever, to reach out that estate.^^ And some words which fell from Lord Hardwicke in the case of Hearle v. Greenbank, cited above, where a power of appointment over real estate was given by the testator to his daxighter, a married woman and an infant, appear to point to the same distinction. " The next consideration (said his Lordship) is, if there is anything particular in this power. First, As to the penning of the power : ' that they should permit and sviffer his daughter, by any deed or writing, &c., notwithstanding her coverture, to give all his freehold &c.' What had the father therefore in view? Why, to exclude tlie disability of coverture, and this was all (z) 3 Atk. IVi. (a) Grange v. Tiving, O. Bridgni. by Bann. IIG. Ch. I. S.IV] WHO lessors: DONEES OF POWEll. 401 he intended to guard against ; and if he likcAvise intended to exclude the disability of infancy^ he would have taken care equally to express it. The daughter at his death was upwards of nineteen years of age ; and though he might think it right to give her this power during coverture^ yet not so during her infancy. It is plain his view was to prevent the hus- band's influence, and to make all safe during her infancy : therefore, from the penning of this power, a strong objection arises against her executing it during infancy, for expressio unius est exchisio alterius " (b) . In an earlier case (c) also Lord Hardwicke said, that a poAver that could be executed by an infant must be appointed to be executed by him whilst an infant. Hence, it is apprehended, that a power of leasing cannot be exercised by an infant, unless the donor expressly declare that infancy shall not be a disqualification. The powers of leasing given to infants and their guardians by a late act of parliament {d) have abeady been noticed (e) . A pov/er of leasing may be reserved to a female ; nor is it suspended by her subsequent coverture; but she and her husband may effectually exercise it without an assurance under the act for the abolition of fines and recoveries (/), as they formerly might without levjdng a fine {(/). \^Tiether she alone may exercise it without the concur- rence of her husband is not clearly settled. In the case of Grange v. Tiving {h), it was said by Sir Orlando Bridgman, C. J., that if a conveyance be to the use of J. S. and the heirs (6) .3 Atk. 714. or Thomlinson, v. Dighton, 1 P. Wms. (c) Ex parte The Committee of Lord 149; S. C. 1 Salk. 239; 10 Mod. 31 ; Bradford, Ca. temp. Hardw. Ch. 133. 2 Eq. Ca. Ab. 309. pi. 13. Travel v. (d) 11 Geo. 4. & 1 W. 4. c. 65. Travel, cited, 2 Ves. 191; 3 Atk. 711. (e) Ante, p. 34. But see Grange v. Tiving, O. Bridgm. (/) 3 & 4 W. 4. c. 74. by Bann. 116. (g} Bayley v. Warburton, Com. 494. (A) Gi'ange v. Tiving, 0. Bridgm. by Harris ?'. Graham, 1 Rol. Ab. Autho- Bann. 107-8. And see Ibid. Bamiis- ritie, (B), pi. 12. 2 Rol. Ab. ParoUs, ter's note (b); and Sir Edward Sug- (C), pi. 6. And see Daniel v. Uply, den's comments on that note, Sugd. Latch, 9. 39. 134. Bendl. 178. Dighton Pow. vol. 1, p. 194, 6th ed. V. Tomlinson, Com. 194. TomUnson, VOL. I. D D 402 OF THE CONTRACTING PARTIES. [Part III. of his body, with power for him or the heirs of his body to make leases, the heir of his body, being a feme covert, without her husband, or infant, cannot make such a lease whilst the disability continues ; for the general words heir of the body shall not be construed to alter the rule or reason of the law, but must be understood of such an heir of the body who hath by law reason and will to do such an act. Sir Edward Sugden, however, maintains that the husband^s consent is in no case necessary (i) . In an early case [k), where husband and wife seised of land in right of the wife levied a fine to the use of themselves for theu" lives, and afterwards to the use of the heirs of the wife, with a pro\dso that it should be lawful for the husband and wife at any time during their lives to make leases for twenty- one years, or three lives, it seems to have been held, that a lease made by the feme alone under their power was good against the husband sui'viving. But such a judgment, if correctly reported, gives reason to believe that the facts of the case are not correctly stated ; for the power was clearly a joint one only in the husband and wife [I). Where, under a settlement, an estate was limited to the use of the intended wife, in remainder on the decease of the intended husband, with a power of leasing by indenture to any person for a term not exceeding twenty-one years in possession; with the usual provisions respecting the reser- vation of the best rent, without fine; the commission of waste; the right of re-entry; and the execution of a counter- part by a lessee ; it was held, that the donee could not, in exercise of the power, make a lease to a second husband ; the court considering that a tenant ibr life with power of leasing is not in the situation of one who is merely empowered to appoint ; but that he has a power coupled with an interest which requires a bargain between independent persons, and a grant which is not void at law ; and that though a remain- (?) Sugd. Tow. vol. 1, p. 1«.5. 1.01; (/,) Godb. 327. pi. 419. Gth ed. (/) Sco also Bacon on Leases, p. 1.50. Cu. I. s. IV.] WHO lessors: DONEES OE POWER. 403 der-man has his remedy on the covenants of the lease when his estate vests in possession, that protection may be lost for ■want of a liability in the lessee during the coverture; and that the mischief may be incurable after a long enjoyment with complete immunity [m). The powers conferred by a late act of parhament {n) for the renewal of leases of the property of married women are noticed in another place (o) . Powers of leasing vested in a lunatic are exerciseable by the committee under the direction of the Lord Chancellor by virtue of the same act, which enacts (p), that where any person being lunatic (q) is or shall be seised or possessed of any land either for life or for some other estate, with power of granting leases and taking fines, reserving small rents on such leases, for one, two, or three lives, in possession or reversion, or for some number of years determinable upon lives, or for any term of years absolutely, such power of leasing which is or shall be vested in such person being hmatic, and having a limited estate only, shall and may be executed by the committee of the estate of such person, under the direction and order of the Lord Chancellor, en- trusted by virtue of the King's sign manual with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind. Before the legislature interfered, the Lord Chancellor had no jurisdiction in such a case(r). The powers of leasing conferred by the same act on com- mittees of lunatics over lunatics' lands have already been noticed {s) . If a power of leasing be given to trustees to preserve con- (m) Doe dem. Harti'idge v. Gilbei-t, elude " any idiot or person of unsound 5 Q,. B. 423; S. C. 1 Dav. & Meriv. mind or incapable of managing his 429, affairs." And see ante, p. .37, f< scg. (w) 11 Geo. 4. & 1 W. 4. c. 65. ()•) Ex parte The Committee of Lord (o) Post, Chapter on Renewals. Bradford, Ca. temp. Ilardw. Ch. 133. (p) Sections 23, and 31. (•■?) Ante, p. 38. And as to Renewals, (q) The word lunatic is by the act, see post, sect. 2, declared to extend to and in- D D 3 404 or THE CONTRACTING PARTIES. [Part III. tingeiit remainders, they must in exercising it act precisely as if tlie estate were given to them in trust to let (/) . A power of leasing cannot be delegated [u) ; though in its creation it may be conferred on the assignee of the estate of the first donee ; thus, where a settlement was made on A. in tail, with remainder to him for forty years, with a power to him and his assigns of the term to make leases for twenty- one years, or three lives, it was held, that the power was not confined to A. and his immediate assigns, but might be exer- cised by the assignee of the executor of a party to Avhom A. had assigned the term, as assigns included assigns in law as well as in fact {x) . If the consent of a particular person be required, such con- sent must be obtained and CAddenced in the ^ay prescribed by the pov.er. Should he die, it is apprehended that the power cannot be exercised at all {y) ; should he become lunatic, the power cannot be exercised during his lunacy (z) ; nor has a court of equity jurisdiction to substitute the consent of his committee {a). Where the power is to be exercised with the consent of another in writing duly attested, the term attested implies that a witness should be present to testify that the party who is to execute the deed has done the act required by the power; and, therefore, where the donee of such a power demised the premises with the consent of the part}^ named, "testified by her being a party to the indenture,'^ it M as held that the power was badly exercised [b) . 2. As to the time of exercising the power. Tlie time of exercising the power must be strictly observed. Thus, a power to lease from time to time until some one of (0 Sutton V. Jones; Jones v. Sutton, 33ti. 339 ; T. Jo. 110. And see Collett 15 V^es. 584. r. Hooper, 13 Ves. 255. (u) Lady Graham's case, cited in (y) Dannc v. Annas, 2 Dy. 219, a- Conibes'scase, 9 Co. 70", a. Palm. 43(). Synipson r. Ilornsley, Prec. Ch. 452. Coxe V. Day, 13 East, 110. Blorc v. Frankelen's case, cited, Mo. G2. Sutton, 3 Meriv. 237. 245-6. And see (;) Ex parte Smyth, 2 Swanst. 393. Synions v. Symons, G Madd. 207. 1 (a) Ibid. U«\. Ab., Anthoritio, (E). (6) Froshfield v. Reed, 9 Mees. & (.'■) Whitficl.l V. How, 2 Show. 57; Wd. 404. S. C, uora. How V. Whitfield, 1 Vent. Ch. 1. s. IV.] WHO lessors: — donees of power. 405 the testatrix's children shall attain the age of twenty-one years, will not authorise the grant of a lease after one of the children shall have attained his majority (c). So, a power given to, or reserved by, a feme sole to make leases, being sole, cannot be exercised during subsequent coverture, either by herself alone, or jointly with her hus- band {d) . Where a power was given to a tenant for life in possession to demise for twenty-one years, and he conveyed by lease and release his life estate to a trustee, upon trust to apply the profits in payment of an annuity during the donee's life, and the surplus to the donee; and afterwards conveyed all his estate to trustees for ninety-nine years, if he should so long live, for payment of his debts, but with an express reserva- tion of all leases granted and to be granted; and then granted a lease of the premises to one who was in possession as tenant at will ; this was held to be a good lease ; for possession here meant receipt of the rents and profits which were applied to his use. If actual possession were necessary, a leasing power could never be executed where the laud is in the hands of a tenant (e). So, where a power was given to successive tenants for life when and as they should be in the actual possession of the premises by virtue of the limitations of the settlement, and not before, to make leases, &c., and the tenant for life in possession conveyed by lease and release his life estate to trustees, upon trust to reserve an annuity thereout, and to p;iy the remainder of the rent to the order of the tenant for life ; and the trustees covenanted that in case the existing lease of the premises should expire in the lifetime of the tenant for life, it should be lawful for him to let the same to such person and for such term as he should think proper, with the (c) Bowes r. East London Water- And see Burnham r. Bennett, 2 C) Now held to be a bad execution said, that it was very common for cer- of the power; sec Doe dem. Ilartridge tificates to be lost, because the parties V. Gilbert, 5 Q. B. 423; S. C. 1 Dav. & saved a small fee by not filing them. Meriv. 42.0; ante, p. 402. Ibid. n. ('/) It ap]K;ar8 J>y the registrar's (r) Goodtitle v. Funucan, 2 Dougl. booli, that the judges of the K. B. cer- 565; ante, p. 415. Til. I. s. IV.] WHO LESSORS: DONEES OF POWER. 119 and lands about it never let. No man could intend to autho- rise a tenant for life to deprive the representative of the family of the use of the mansion-house. The words in such a case show that the power is meant to extend only to what has been usually let. By that means the heir enjoys all the premises in the settlement just as they were held and enjoyed by his ancestor, the tenant for life ; he has the occupation of what was always occupied, and the rent of what was always let. We all, therefore, agree as to the rectitude of the deci- sion in Baggott v. Oughton. The nature of the thing spoke the intent as forcibly as the most direct words could have done. It was demonstration.^^ In conformity with the two last cited cases, Foot v. Mar- riot [s) was decided. There, Serjeant Maynard de\dsed several manors, messuages, &c., and, among them, the manor of Beer in the county of Devon, to trustees, to the use of his grandchild, M. M., for life, with remainders over, with power for M. M., when she by virtue of any clause in the will or the meaning thereof should be or ought to be in the possession of the manor of Beer, to lease all or any of the tenements thereof, for one, two, three, or four lives, or years so deter- minable, in possession, reversion, remainder, or expectancy, and under the new rents then reserved, and the like agree- ments and covenants as in the leases then in being, and by the then present tenants thereof respectively to be performed and kept, so as all the leases to be made, with other estates then formerly leased, then in being, should not exceed four lives, or {t) determinable by death of four persons at most in one tenement at one time. And the will contained a further clause, that T. G., and every other agent in his place appointed as thereinafter mentioned, and every other person to whom the premises should come into possession, might then lease the same or any part thereof at rack or utmost reasonable rent, and such other agreements for reparations and against (s) Foot r. Marriot, 3 Vin. Ab. 429. pi. 9. (0 Thus in Vin, Ah. Q,y. "should be" ? E E 2 ^•vO OF THE CONTRACTING PARTIES. [Paut 111. waste as they could reasonably agree upon, siich lease not to exceed the term of seven years. The plaintiff claimed, under a lease for three lives granted by M. M., for a valuable con- sideration, by virtue of the power, the barton of Beer, part of the manor of Beer, which was out upon a lease for lives at the time of Serjeant Maynard's purchase, but the lives happened to drop before the Serjeant made his will, and was in hand at the time of liis death. Lord Chancellor King was assisted by Raymond, C. J., Denton, J., and Comyns, B., and they all concuiTcd in opinion that the lease was not warranted by the power. King, C, said, that the word tenement in a will in legal understanding had a general signification, but in common understanding meant lands holden by tenants^ and that appeared to be the meaning of the testator by the subsequent power to demise the premises for seven years at a rack rent. They considered the cases of Tristram v. Viscountess Baltin- glass, and Baggott v. Oughton, in point. But as to Cumber- ford's case^ they said, that if that case were law, it should not be carried one step further. Next came the case of Pomery v. Partington (m) . There, a power was given by will to tenant for Hfe to lease all or any of the said manors, parts of manors, messuages, lands, tene- ments, and hereditaments, to any person or persons whomso- ever, for one, two, or three life or lives, or for the term of ninety-nine years to be determinable on the deaths of one, two, or three person or persons, either in possession or rever- sion, so as the usual rents, and other yearly payments, dues, reservations, and heriots, be from time to time reserved and made due and payable, and so as such lease or leases should not be made dispunishable of waste ; and the donee leased a moiety of tithes which had never been demised prior to the will. And the court, upon the broad principle of intention, and conformably with the cases of Baggott v. Oughton, and Goodtitle dem. Clarges v. Funucan, as the tithes had never been let, but had always been occupied by the possessor of (it) Pomery v. Partington, 3 Term Rep. 0'C5. Ch. I. S. IV.J WHO lessors: DONEES OF POWER. 42 L the estate, considered the lease unauthorised by the power, and therefore void. " There are indeed," said Lord Kenyon, " other grounds upon which stress might be laid to show that this was the intention of the devisor, if it w^ere necessary to have recourse to them. In the enumeration of the property to be leased, every particular mentioned is a corporeal heredi- tament : the word 'hereditament^ is indeed svifficiently com- prehensive in its general signification to include tithes, but the other words which accompany it show the sense in which it is to be taken here. Another circumstance is, that the leases are not to be dispunishable of waste, a provision which could not apply to tithes. But (continued his lordship) I do not wish to rely on these small circumstances, my opinion being founded on the general intention of the party, which is fairly to be collected from the other part of the case." Mr. Justice Buller distinguished this case from Goodtitle v. Funu- can, first, on the ground of the power in the latter expressly extending to the manor and fishery, which showed that it never could have been the intention to annex the restriction of reserving the usual rent to the demise of the manor, because it had never been let before ; next, on account of the value of the manor being merely nominal; and, thirdly, on account of the smallness of the fishery, Avhich Avas worth only 1 5^. per annum, and had been let once before, though it was not in lease at the time of the settlement ; whence the intent was concluded to be, that the party might let all the premises, reserving as much rent in the whole as had been reserved before. And the learned judge also remarked that, in that case too, the court relied on the words at the end of the power, "or proportionally for any part thereof," though no notice was taken of it in the printed report. For those words showed that it was the intention of the parties that the quan- tum of the rent, and not any particidar part of the premises included in the settlement, was to guide the person in execut- ing the power. But that, in the principal case (Pomery v. Partington), the devisor did not intend that any part of the estate should be let but that which had been usually demised before. 422 OF THE CONTRACTING PARTIES. LParx 111. To the same effect was Doe clem. Bartlett v. Rendle (v). The testator, being seised in fee, devised to V/. B. and A. N. and their heirs all his lands, tenements, and hereditaments, to the use of his grandson, W. B. B., for life, with remainder to trustees to preserve contingent remainders, with remainders over ; and he gave power to the trustees, and the survivor, and the heirs and assigns of the survivor, from time to time during the minorities of his said grandsons, or of any other person to whom the premises should descend, and afterwards to any tenant for life under the limitations therein aforesaid, to grant any lease or leases of all or any part of the said messuages, &c., for [x) not exceeding three lives in possession or rever- sion, so as upon such lease or leases there should be reserved the ancient or accustomed yearly rent or rents, heriot and heriots, and other things, usually paid for the same premises. After the testator's death, W. B. B. demised part of the pre- mises under the description of " all that messuage, &c., at Aylscomb, otherwise Colley End," which, it appeared, com- prehended, besides lands anciently and usually demised, two pieces, called Smallacombs and Knavesash, which had never been before demised; and on that account the lease was held to be void. This case is a proof that the situation and cha- racter of the donee may be circumstances to show what premises the power of leasing is intended to comprehend; the court being of opinion that the intention was plainly proved by the power being given in the first instance to the trustees ; and that it never could be intended that they who might have had an interest for a day only, and who were not intended to have any beneficial interest for themselves, should be able to alter the nature of the property, and prevent the tenant for life from occupying what the testator had always reserved for his own occupation. They thought that the necessary purposes of the power would be fully satisfied by siidcriiig the trustees and the tenants for life to let what had l)een let before; and that when they went beyond that, their ((•) Uoc ort. Cll. I. S.IV.] WHO lessors: DONEES OF POWER. 42tJ power was exceeded, and, consequently, that the lease was void. So, where a power was given by will to a tenant for hfe to lease in possession or reversion, for one life, or for two or three lives, any part of the said premises usually so leased, so that (amongst other conditions) " there be reserved in every such lease, during the continuance thereof, the ancient and accustomed rents and heriots for the premises therein con- tained, or more"; and a lease was made comprising lands not subject to the power, as Avell as those which it authorised to be leased, at one entire rent, it was held, on the authority of Doe dem. Bartlett v. Rendle, just cited, that the mere joining of strange tenements at an entire rent was fatal to the lease ; though the rents and heriots reserved were in fair proportion, in point of value, to the rents and heriots which had formerly been reserved in respect of all the tenements demised {y). The only general rule furnished by these cases, that the intention of the donor of the power is to regulate the con- struction, is too vague to be of much practical service ; since it does not remove the difficulty of discovering what that intention really is. Every case must, therefore, depend on its own language and circumstances. A power of leasing, so as the leases be not made of such part of the said manor of G. as are the demesne lands of the said manor, and so as the ancient rent be reserved, will not authorise the donee to demise the copyholds : Holt, C. J., proved this by the following syllogism : All the demesnes of the manor are expressly excepted out of this power. The copyholds are part of the demesnes. Therefore, copyholds are expressly excepted out of the power [z). It has recently been decided [a), that a power of leasing all {y) Doe dem. Lord Egrcmont v. 12 Mod. 147. Stephens, 6 Q. B. 208. (a) Dap-ell v. Hoare, 12 Adol. & (j) Winter r. Loveday, Lovedaz, Ell. 356; S. C.4 Per.& Dav. 1 14. And Loveden, Loveder, Lovedore, or Love- see Doe dem. Douglas v. Lock, 2 Adal. duiT,Com. 37; S. C. 5 Mod. 244. 378; & Ell. 705; S. C. 4 Nev. & Man. 807. Holt, 41 4; 1 Freem. 507; Carth.427; I Wickham r. Hawker, 7 Mees. & Wei. Ld.Raym.267;Comb.371;2Salk.537; 63. 76. 424 OF THE COxVTRACTlNG PARTIES. [FAinlll. or any part of the hereditaments devised will not authorise a lease of part, with liberty to hunt, course, shoot, and fish, over any other part of the property subject to the power; the gi-ant of such a privilege not being a lease of any of the hereditaments devised. It is not a grant of the whole; for it contemplates that other parts are not leased: nor is it a grant of part ; for, in the power, part is used with reference to the entirety which the tenant for life has. Supposing the estate to consist of two houses and a thousand acres of land, the power would enable the party to grant one house and one hundred acres ; but the demise must be of the whole which covers the part demised ; an easement cannot be granted by itself out of any separate part, as that would be subjecting the land to a servitude. We may here repeat the general rule, that the law will dispense with a qualification annexed to a power, which, if observed, would tend to the destruction of that power {b) : for instance : where there is a power to make a lease of a manor, or of any part thereof, so as the ancient rent be reserved, the donee may make a lease of the services, parcel of the manor, upon which no rent can be reserved; for otherwise the express power would be defeated (c) . 5. As to the term authorised; and the period of its com- mencement. Sometimes the term prescribed by the power is for years absolutely ; sometimes for lives ; sometimes for years deter- minable on lives ; and the donee has frequently the option of selecting such of the three modes as he may consider most advantageous. The ordinary husbandry lease is for twenty- one years. Building leases are sometimes made under a settlement for sixty or ninety years {d) ; but there is no instance of a power in a marriage settlement to lease for (6) Winter v. Lovedaz, Carth. 429 ; Ambl. 748. S. C. as in note (2), ante, p. 423; cited (r) Ibid. with Jipprobation by Lord Mansfield in (rf) Attorney-General v. Owen, 10 Goodtitlc dem. Clargcs v. Funucan, 2 Ves. 5()0. Dougl. 574 ; and by L. C. J. De Grey, Ch. I. s.IV.] WHO lessors: — donees of power. 425 ninety-nine years except witli reference to very particular circumstances (e). And it is observable that a stipulation in articles on marriage, tliat tlie settlement should contain a power of leasing for twenty-one years in possession, a power of sale and exchange, of appointing new trustees, '' and all such other powers, provisoes, clauses, covenants, and agree- ments, as were usually inserted in settlements of the like nature,'^ has been held not to authorise the insertion of a power to grant building leases, although, from change of cir- cumstances, the situation of the premises might render them extremely eligible for building (/). In the case cited, the general words were considered of no effect, as opposed to the mention of the particular term for years to which the express power of leasing extended. It is clear that a power to lease for a chattel interest will not authorise the grant of a freehold. Thus, under a power to lease for any term or number of years not exceeding twenty-one years, or for any term or number of years deter- minable upon a life or lives, a lease for lives absolutely cannot be granted {ff). On the other hand, a lease for an absolute term of years, or for a term of years determinable on a life or lives, cannot be conferred under a power extending only to leases for a life or lives {h). According to Bacon (i), it was said by the judges, in 3 Keb. 746, "that the construction in Whitlock's case, that a person ha^dug power to make leases for three lives could not make a lease for ninety-nine years determinable on three lives, was too nice, and expressly contrary to the intent of the parties"; but it is observable that no such expression is to be found in the report referred to. (e) Ibid. 2 Ambl. 807. 810; Appendix, (F), 2nd (/) Pearse v. Baron, Jacob, 158. edit, by Blunt. Roe dem. Brune v. (g) Evans v. Vaughan, 4 Barn. & Prideaux, 10 East, 186. Rattle v. Cres. 261; S. C. 6 Dow. & Ry. 349. Popham, 2 Stra. 992; S. C. Cunningh. (h) Whitlock's case, 8 Co. 69, b.; 102. 2 Burr. 1147. And see Lord S. C, nom. diappel v. Whitlock, 1 Ellenborough's remarks on that case, Brownl. 169; 2 Rol. Ab. 260. pi. 3. 10 East, 186. Paget V. Gee, 1 Ambl. 198. 200; S. C. (/) Bacon on Leases, p. 151. 426 OF THE CONTRACTING PARTIES. [Part III. We may here recur to a distinction^ already noticed in treating of leases under the enalaling statute {k), between a particular power affirmative, and a general power restrained by a negative ; as it may furnish a key to the solution of numerous questions on the due exercise of powers of leasing. A power of leasing for three lives, or twenty-one years, is an instance of the former kind ; and a power to make any lease or grant, provided such lease or grant shall not exceed the number of three lives or twenty-one years, is an example of the latter. In Whitlock's case [l], in which the distinction was first taken, power was given to the tenant for life to make any lease or leases, with a proviso that they should not exceed the number of three lives or twenty-one years : the donee made a lease for the term of ninety-nine years, if two persons or either of them should so long live : and it was argued, that the intention of the power was that he should either make a lease for three lives, &c., or that if he would make a lease for years, it ought to be for twenty-one ; and that, as the lease in question was neither one nor the other, the authority was not Avell pursued. But it was resolved that the power was properly exercised ; for the proviso of creation of the power was in the beginning absolute, affirmative, and indefinite; scil., to make any lease or leases without any limitation; and then the proAdso of correction was added, that such lease or leases should not exceed the number of three hves at most, or twenty-one years, which clause was negative, and quahfied the generality of the first proviso ; so that the power by the first was general, and by the second the lease ought not to exceed three lives, &c. ; and when the lease was made for ninety-nine years determinable on two lives, it did not exceed the number of three lives, although in truth it was not a lease for lives. Upon this distinction the decision in the case of Roe dem. (/) .".2 11. f{. c. 2!i; ante, p. 75-(;. S. C, noni. Chappcl v. Whitlock, (/) Wliitlock'8 case, If Co. O!), 1).; Bvownl, lO'y. Cii. I. s. IV.] WHO lessors: — donees of power. 427 Brune v. Prideaiix (m) principally rested. There the power of leasing was for any term or nuraher of years not exceeding one-and-twenty years, or for the life or lives of any one, two, or three, person or persons ; so as no greater estate than for three lives should be at any one time in being in any part of the premises. The part of the power, therefore, that au- thorised the grant of a chattel interest was a general power restrained by a negative ; the part that related to the lease for a life or lives was a particular power afiii'mative ; and, adopting this view of the case, the court held, that either a chattel or a freehold lease might be granted ; the former not to exceed twenty-one years, nor the latter three lives ; and that a lease for ninety-nine years if two persons or either of them should so long live could not be supported. It was argued that the lease if not good for the ninety-nine years, might still be good for twenty-one years, should either of the lives so long continue; but the judges considered it sufficient to say, that no authority was cited to show that a court of law had ever held itself entitled to consider such a lease as good in part («). Where the power is a general one restrained by a nega- tive (o), as for any term of years not exceeding a specified number, there is no objection to a pro\iso enabling the lessor to determine the lease at any time on payment or tender to the lessee, his executors, administrators, or assigns, of one shilling, or the like {p). But it is apprehended that the law would be difi'erent in the case of a particular power affirma- tive, as to lease for a term certain {q). The question whether, iu the case of a general power re- strained by a negative, a provision authorising the lessee to surrender his term at pleasure, could be supported, has occasioned much conflict of opinion. (m) Roe dem. Crime v. Prideaux, Sugd. Pow. 6th edit. Appendix, No. 14, 10 East, 158. p. 5!)6. 1st point. Reg. Lib. A. 17.54. (w) Ibid. - fol. 406. (o) Sec ante, p. 426. ((/) See 2 Sugd. Pow. 355, 0th edit. (j>) Earl of Cardigan ?'. Montagu, 428 OF THE CONTRACTING PARTIES. [PartIH. In the case of Jones v. Verney (r), where there was a power of leasing for any term or niiraber of years not exceeding sixty-one^ for the encouragement of rebuilding, so as in every such lease there be contained a condition of re-entry for non- payment of rent, and the usual and reasonable covenants ; and the lease contained a proviso that if the lessee should at the end of the first forty years of the term granted be desirous to determine the lease, and should give twelve months' notice of his desire in writing to the reversioner, then the term and estate thereby granted should, at the end of the said twelve months, absolutely cease and determine; Willes, L.C.J., who dehvered the opinion of the court, said, that though he did not think that the proviso made the lease itself void, yet it showed plainly that the lease was not intended to be a build- ing lease. A similar power was given to the lessee in the case of Doe dem. Dymoke v. Withers (s) ; but no notice of it was taken by the counsel or court. In Lowe v. Swift (/), where there was a power of leasing, for one, two, or three lives, or for any number of years deter- minable on the deaths of such lives, not exceeding thirty-one years, at the most improved yearly rent, without fine, so as in every such lease there should be contained a clause of distress and re-entry, and all other clauses and covenants usual between landlord and tenant. Lord Manners was of opinion that a clause empowering the lessee to surrender his term could not be supported : he thought that such a clause would be a fraud on the leasing power, as the tenant would be at liberty to hold the lands so long as they were profitable to him, but if their value should be depreciated by any cir- cumstance, bad husbandry, bad times, or otherwise, he would have a right to throw them up, to the prejudice of the re- mainder-man and the inheritance. (?) Jones dcni. Cowpcr v. Verney, Barn. & Adol. 8!)G'. Willes, 169. A.D. 17:W. (0 l^"we r. Swift, 2 Ball .V J5eat. (n) Doe 'lem. Dymoke r. Withers, 2 .V2f). a.d. Hill. Ch. I. S. IV.] WHO LESSORS: DONEES OF POWER. 4'29 In the case of Jack dem. Wheatley v. Creed [u), a settle- ment contained a power of leasing in these words : — " and also with the further and usual leasing power for three lives or thirty-one years in possession, and not in reversion, and without fine or fines or other benefit for granting such lease or leases ;" and the lease contained a provision that it should be lawful for the lessee to yield up and surrender the premises unto the lessor on any first day of May after the expiration of the first five years of the term, on gi^dng six months' pre- vious notice, and paying all arrears of rent, &c. And the court of King's Bench in Ireland were of opinion, that the insertion of the clause of surrender was a fatal objection to the lease. They said that the power given was the usual leasing power for three lives or thirty-one years, that is, for any term of years or lives not exceeding three lives or thirty- one years, it not being necessary that the lease should be for the full term mentioned in the power [x] ; but that a lease for a life or lives absolutely, or for a term of years absolutely, was a very different thing from one for a life or years with a clause empowering the tenant by a surrender to determine it; in the former case both parties being bound during the term, and the quantum of rent being probably fixed with a ^dew to that circumstance and the consequences of it. And they further said, that the prejudice that might be sustained by the remainder-man, by reason of injury to the land, was the strong objection to such a clause : that the tenant might, by a course of husbandry adapted to that purpose, exhaust the land, and surrender his lease when the land was so exhausted {y) : and that it could not be held that the power was well executed by the lease for three lives, and that the clause of surrender was a distinct and independent clause, which might be rejected, leaving the demise to stand without the clause of surrender, (according to Adams v. Adams (z) and that class of cases), (m) Jack dem. Wheatley v. Creed, this reason in Muskerry v. Chinnery, 2 Huds. & Br. 128. a.d. 1828. 2 Sugd. Pow. 6th edit. Appendix, No. {x) Isherwood v. Oldknow, 3 Man. 1 9. p. 620. 626. & Selw. 382, was cited by the court. (z) Cowp. 651. (y) See L. C. B. Joy's remarks on 4-30 OF THE CONTRACTING PARTIES. [Paut llf. because the clause was incorporated with the demise, and must be considered as part of the consideration for the rent covenanted to be paid. In the later case of Muskerry v. Chinnery («), where a power was given to a tenant for life to lease all or any part or parts of the settled estate for any time or term of years, or lives, and with or without covenants for renewal, and in case of the determination of all or anj^ of the aforesaid lease or leases respectively from time to time to make new or other leases thereof in manner aforesaid, and with or without any fine or fines as he should think fit ; and the donee, in consi- deration of a sum of 2000/., and a yearly rent of 150/., made a lease under the power containing a clause empowering the lessee to quit and surrender the premises at the end of every year of the term upon giving six months' notice in writing ; the court of Common Pleas in Ireland, in answer to a case submitted for their opinion by Lord Plunket, C, certified that the lease was not warranted by the power. When the case afterwards came before Sir Edward Sug- den, C, he said that he very early entertained an impression that the case was not satisfactorily decided in the court of Common Pleas ; and that his own impression was that the lease was valid : that he was aware of what had been decided in Ireland upon the point ; but he was bound to say that his opinion did not agree with those decisions on the abstract question, that a clause of surrender invalidated the lease, unless express words were inserted to exclude it: that, where the transaction was bona fide, and the terms of the power did not require the number of years to be absolute, he saw no reason for holding that a clause of surrender \dtiated the lease : that many powers required that the term to be granted should be an absolute one, that is, not determinable ; and that this was a powerful reason for not introducing the term into a power where the parties themselves had been silent: that in the case before tlie court, he considered that the objection (rt) Muskerry v. ("liiimcry, Lloyd (ft CJoo. 18.^, temp. Siipd. C. Ch. I. S.IV.] WHO lessors: — DONEES OF POWER. 431 was entitled to very little weight, as the lessees had paid a large consideration ; and that, with reference to the terms of the power, it was entitled to no weight whatever. And the Lord Chief Baron concurred in this opinion (Z*). The case came again before Lord Plunket, C, on a re- hearing ; and he concurred in the decision of the Common Pleas, protesting at the same time against being supposed to adopt the opinion which had been expressed by Sir Edward Sugden on the effect of a clause of surrender in a lease under a power which did not expressly warrant such clause (c) . The case afterwards came before the House of Lords on appeal {d) ; whence, under some peculiar circumstances of mis- take attending Sir Edward Sugden's decree, it was referred back to the court of Chancery in Ireland. A case was then submitted to the Irish court of Queen^s Bench, and it was there certified by Bushe, C. J., Burton, and Perriu, Js., against the opinion of Crampton, J., that the lease was not warranted by the power (e) . The point has since been argued before six of the learned judges in this country, besides the late Lord Chief Justice of the court of Common Pleas (Tindal), on questions proposed to them by the House of Lords; and the judges came to a unani- mous opinion, which was suljsequently read to the house by Mr. Baron Alderson, that the liberty conferred on the lessee to surrender the lease on giving six months^ notice did not affect its validity ; and that the unlimited power of leasing given to the donee of the power was an answer to the objec- tion . The house, however, pronounced no opinion at the time, and the case was afterwards postponed for further considera- tion sine die; since which no mention has been made of it (/) . Under a power of leasing for one or two lives, or for the (&) See 2 Sugd. Pow. 6tli edit. Ap- 2 Sugd. Pow. 362, 6th edit, pendix, No. 19. p. 620. (e) Musken-y v. Sheehy, 2 Jebb & (c) Lloyd & Goo. 182. 201, temp. Sy. 300. Plunk. C. , (/) Times Newspaper of Monday, (rf) Nom. Sheehy r. Lord Musken-y, 24th August, 1846. Rob.&Macl. 493; S.C. 7 Cla. & Fin. 1 ; 43:J OF THE CONTRACTING PARTIES. [Part III. term of thirty years, or for any other, number or term of years determmable upon one or two lives, a lease for thirty years absolutely may be made, the repetition of the particle for disjoining and separating the sentence, and making so many distinct clauses. The word for in the clause for the term of thirty years would otherwise govern the whole sen- tence, which would have been penned in this manner, viz., for the term of thirty years or any number of years determin- able, &c. ; or rather, for any term or number of years deter- minable on one or two lives ; for if such a construction were to be made, there would be no occasion for the words, "for the term of thirty years " [g) . It is the better opinion, as we have seen (/«), that the enabling statute (i) authorises a lease for ninety-nine years determinable on three lives : and, hence, a power of leasing for three lives, or twenty-one years or under, or for any time or term of years, upon one, two, or three lives, or as tenant in tail in possession may do, authorises a lease of the like nature and dm^ation, although in a case where the point arose [k), it was objected that the power did not warrant a demise for longer than twenty-one years determinable on three lives. In the case of Bayley v. Warburton (/), a power was given to tenant for life to demise the premises for such term, with and under such conditions, rents, and reservations, in such manner to all intents as tenants in tail might do by statute 32 H. 8, for the term of one, two, or three lives, upon and under such reservations and rents, and in such manner as tenant in tail was enabled to do by that statute ; and it was contended that a lease made in pursuance of the power would not bind a remainder-man or reversioner. The Chief Baron doubted ; but it was argued, that, if such construction were to prevail, the power of leasing would be wholly insignificant. (7) Winter v. Loveday, Com. 37, Roedem.Bruner.Prideaux,10East,166. Rokcby, J., dissent. The Hame case is (//) Ante, p. 75. to lif! found in several other reports, (/) l»2 Hen. 8. c. 28. wiiich are enumerated in n. {z),\).A2?>, (/,) Lutwieh r. Piggot, ?> Mod. 268. ante. And see Danipicr'M iirrjument in (/) Uayley -r. Warburton, Com. 4.04. Ch. T. S. IV,] WHO LESSORS : DONEES OF POWER. 433 for the donee having but an estate for life, every lease beyond it must have continuance against the person in remainder, as she might have made a lease determinable on her own life without the power ; and that the restrictions annexed to the power, requiring it to be made under such conditions, rents, &c,, and in such manner as tenant in tail was enabled to make, did not necessarily import that it should be such in point of duration, but only that it should be attended with such circumstances as that act required in the execution of leases by tenant in tail. And of this opinion was Baron ComjTis. As the case of Hele v. Greene is noticed by Rolle in his Abridgment [m), it appears to have been decided that a power of leasing given to a tenant for life without specifying any term, would warrant a lease for a term exceeding his life; but, as the case is reported by Style {n), it appears that the court were divided in opinion; Rolle, C. J., and Jerman, J., maintaining that such a lease would be good, for otherwise the power of leasing would be nugatory ; while Nicholas and Ask, Justices, held, that the tenant for life could only dispose of the estate during his life. In the case of Commons v. Marshall (o), an estate was settled on one for life, with power to make leases of the premises for any term not exceeding thirty-one years, or tlu-ee lives (p), to commence in possession, at the best improved rent, and it was held in the court of Exchequer in Ireland, that a lease for the lives of three persons and the longest liver of them, or for thirty-one years from the 1st of May then last, which should last longest, was a good execution of the power. The cause was then removed by a writ of error into the Exchequer (m) Hele r. Greene, 2 Rol. Ab. 261. Irish Law Rep. 395. pi. 10. {p) According to the report of the (w)' Heale, or Hele, v. Greene, Sty. case by WalUs, (Lessee of Lord Net- 258. 275. ."515. tci-ville r. Marshall, Wallis, by Lyne, (o) Commons v. Marshall, 7 Bro. «0,) it appears that the power was to P. C. Ill ; S. C. Toml. ed. vol. fi, p- make leases for thi-ee lives or thu'ty- 168. See also Hosier, or Hozier, v. one years in possession. Powell, I Longf. & Towns. 2 ; S. C. 3 VOL. I. r F 434 OF THE CONTRACTING PARTIES. [Part III. Chamber in Ireland^ where the judgment of the court below was affirmed by the Lord Chancellor, in opposition to the opinion of L. C. J. Annaly; and the decision was finally aflirmed, on appeal, by the House of Lords of Great Britain. It would appear that the courts of Exchequer and Exchequer Chamber considered the lease a good one for three lives and no longer. But, according to Lord Mansfield {q), the House of Lords^ rejecting the words three lives, held the lease to be a good execution of the power for thirty-one years. It is observable, however, that his lordship, in referring to the lease, transposed the terms of the grant, by stating it to have been for thirty-one years or three lives whichever should last longest, whereas in fact it was for three lives or thirty-one years which should last longest. In the later case of Long v. Rankin (r), where there was a power of leasing for any term or terms of years not exceeding thirty-one years, or a number of lives not exceeding three lives, it was held that a lease for the lives of three persons there named, or for and during the full term and space of thirty- one years, which lives or term of years should longest continue, was good, and operated to limit the premises for the natural lives of the three persons therein named, and the survivor of them; and in case all the three persons should die within the period of thii-ty-one years, then for the remain- der of a term of thirty-one years, to commence and be com- puted from the date of the indenture. So, a power of leasing for three lives will authorise a lease for three lives and the lives and life of the survivors and sur- vivor [s). The lives, however, must be in esse {t), certain and co-existing {u) . Where a person had a power of leasing for ninety-nine years, to be determined on the death of one, two, or three (7) In Earl of Darlington v, Pul- t'.Cutler,T. Rajm. 1G.3. Comyns, Argt teney, Cowp. 2G0. 2G0. in Coventry v. Covnntry, Com. 31.5. (r) Long V. Rankin, Sngd. Pow. Gth Clark v. Smith, 9 Cla. & Fin. 126. 141. edit. vol. 2, p. t^'.V.). Appendix, No. 2. («) Doe dcni. Wyndham v. Ilal- (») Alsop V. Pine, .3 Keb. 44. combe, 7 Term Hep. 713. (/) Per Windham, .J., .^jv/"! in Snow Cii. I. S. IV.] WHO lessors: DONEES OF POWER. 435 lives, it was held, that he could not demise the premises for ninety-nine years if A. B. should so long live, and make the term to commence from and immediately after the deaths of L. and R., two individuals on whose deaths a subsisting term of years was determinable {v) . It was argued that this was not a lease in reversion, but was in effect a present lease for ninetj'^-nine years determinable on tlirce lives ; for it was to depend on the existence of three lives in being, and could not exceed it, and so no greater charge on the reversion than the power warranted; but the court determined, that the lease in question was no more than a grant of an interest to be post- poned to a future time ; particularly as the prior term might by possibility be expended before the lives of L. and R. ; and that it certainly w as not the intention of the de\isor that the tenant for life should have power to postpone the grant of an interest to so distant a period, but only that he should in- cumber the estate to the extent of a term for ninety-nine years determinable on three lives. It appeared that the lessor died before the prior Lives dropped, and that the lease, therefore, must have taken effect, if at all, after his death ; but this was not considered important ; for in Doe v. Oxenham {x), which stood next in the paper for argument, the lease was for ninety- nine years, if two lives therein named should so long live, to commence from the death of T. S., who died in the lessor's lifetime ; and the court said that this made no difference in effect, and gave judgment for the plaintiff. Where a settlement of lands held under a lease for lives renewable for ever gave a power to the tenant for life to demise the same for any term or terms consistent with the estate or term for which the said lands should be then held, it was held, that the power authorised the grant of a lease for three lives different from the lives in the head lease {y). Whether such a poAver would authorise a demise for three (v) Doe dem. Coplestone v. Hiern, 5 Selw. 46. Mau. & Selw. 40. (y) Ilackett r. Hobait, Jones, Irish (.t) Doe V. Oxeiiham, 5 Mau. & Exch. 288. F F 2 436 OF THE CONTRACTING PARTIES. [PakiIII. lives Avitli a covenant for perpetual renewal was considered doubtful (2-) . If a man having a power of leasing for any term of years not exceeding 100, demise tlie land without expressing the term, the lease will be void for uncertainty ; for there is no more reason that it should be for the greatest than for the least term he could grant ; or, indeed, for any other term under 100 («). A power of leasing for a certain term authorises a lease for a shorter period, the maxim being, omne majus continet in se minus; unless it plainly appear that the donor intended the exact term mentioned, and no other, to be granted. And, therefore, unless a contrary intention appear, under a power of leasing for twenty-one years, a lease for any less term may be granted ; as may a lease for two lives, or one life, under a power of leasing for three lives (b) ; the less interest, however, must be of the same kind as the greater ; a chattel, if a chattel interest only be authorised by the power ; a freehold, if a freehold (c). If the power be a particular power affirmative to lease for a specified term, such as twenty-one years, a lease exceeding the limit prescribed cannot be sustained at law, even for the term authorised by the power [d) ; but it would seem that if the power were a general one restrained by a negative, as to lease for any number of years not exceeding twenty-one, a lease for twenty-two years would stand good for the twenty- one (e) . And it was said by Cheshire, Serjeant, in argument (/), that if a power were given to make leases for twenty-one years, if the person who was to execute such power made a (0) Ibid. And see O. Brien v. K. B. 333. Berry?. White, 0. Bridgm. Grierson, 2 Ball & Beat. 323. Jack by Bann. 91. dem. Wheatloy v. Creed, 2 Iluds. & (c) Isherwood v. Oldknow, 3 Man. Br. 12«. And post, p. 438. & Selw. 401. (d) Bedell -y. Constable, Vaugh. 18). (il) Campbell v. Leach, Ambl. 740. (i) Isherwood v. Oldknow, 3 Man. Jenkins v. Keniishe, Hardr. 3.05. 398. & Selw. 382. Harris r. Bessie, 1 Keb. (c) Ber Holt, C. J., in Smartle r. 347. Breers v. Boulton, 3 Keb. 745. Penhallow, 2 Ld. Raym. 991. 1000. Mayor of London v. Tench, Ca. temp. (/) Peters?'.Masham,Fitzgib.l50"-7. Hardw. by Ridguw.2; S. C. 2 Barnard. Cll. I. S. IV.] WHO lessors: DONEES OF POWER. 437 lease for twenty-one years, and by tlie same deed limited a further interest in this manner, viz.: '^and from and after the term aforesaid for one year more/' the power would be well executed by the first limitation, and the excess would be surplusage not to be regarded. We have seen that a power of leasing for any term or num- ber of years not exceeding one-and-twenty years, or for the life or lives of any one, two, or three, person or persons, so as no greater estate than for three lives be at any one time in being in any part of the premises, will not authorise a lease for ninety-nine years determinable on lives ; and that such a lease will not be good at law even for the twenty-one years determinable on the lives named [g) . In like manner, where, under a power of leasing in posses- sion, and not in reversion, the donee demised the premises, to hold, as to part from a day past, and as to the residue from a future day, at an entire rent, the lease was held to be void for the whole. It was urged that the execution of the power might be good in part, so far as it was warranted by the power, though void for the excess ; but the court determined that this was not a case of excess : that in such cases by retrenching the excess, a lease might be brought within the terms of the power ; but that no limitation of the term would make a lease in reversion a lease in possession [h). But where the lease would be void at law on the ground of excess, yet, if the line between the boundary of the power and the excess of its execution be clear and distinguishable, a court of equity, by ^dtiating the excess, will establish the lease to the extent sanctioned by the power {i) . As if a party Avith a power of leasing for twenty-one years, lease for forty, the lease will be good in equity for the twenty-one ; or if a party (g) Roedem. Brunei. Prideaux, 10 Rep. in Ch. 11 ; 1 Eq. Ca. Ab. 342. East, 158. pi. 1; Nels. 87; S. C, nom. Parry v. (/() Doe dem. Allen r. Calvei-t, 2 Brown, Freem. 171. Alexander v. East, 376. Alexander, 2 Ves. 640. 644. Case of (i) Campbell?;. Leach, Ambl. 740. the Queensbury Leases, 1 Bli. P. C. 747. Pawey V. Bowen, 1 Ca. m Ch. 437. Anon. Freem. Ch. 224, case 296. 23; S. C, nom. Parry v. Bowen, 3 438 or THE CONTRACTING PARTIES. [Part 111. with a power of leasing for lives lease for ninety-nine years if one shall so long live, the lease will be good in equity for the life of the cestui que \de {k), unless the term expire before his death (/) ; for in each of these cases the excess is distinctly ascertainable. In a late case in Ireland {m), certain leaseholds for lives, perpetually renewable, were settled on one for hfe, " with the usual leasing power for three hves or thirty-one years in possession, and not in reversion." A lease was made for three lives therein named, and for and during the life and lives of such other person and persons as should or might at any time thereafter be added or inserted to the time and term of the demise pursuant to the covenant for renewal thereinafter contained ; and the lessor covenanted, upon the fall of any of the lives therein named, or thereafter to be named, to make a new lease for the remaining life or lives, and for the life or lives of such other person or persons as the lessee his heirs or assigns should nominate, at the lilvc rent, &c. It was contended that the covenant for renewal vitiated the lease. The case was decided on another point j but the court said that they were not satisfied that the arguments urged against the validity of the lease were well founded. But in the subsequent case of Clark v. Smith {n), which also originated in Ireland, a lease of this description was wholly set aside. A party seised and possessed of lands in Ireland, some of which were held under a fee-farm grant ; some in fee ; and some for long terms of years ; some (called Tubrid) on lives with a covenant for perpetual renewal; and others on lives without any co\'enant for renewal; settled thefn, on the occa- sion of his marriage, to the use of himself for life, with re- mainders over; and by the settlement it was declared, that it sliould be lawful for the settlor, and all other persons to whom any use or estate was thereby limited, to lease the lands and premises, or any part thereof, to any person or persons for (/•) Il)i. Acton, 2 Bro. P. C. & Lef. 541!. .5(;0. 'AW; S. C. Toml. ed. vol. 1, p. IftO. («) As to this, see ante, \).'l'i{\,ct siq. Cii. I. s. IV. j WHO LESSORS: — DONEES OP POWER. 441 derablc yearly rent if the lessees or persons farming the same might have a certain term and interest therein for a sufficient number of years for their encouragement to build upon and improve the same^ but that there being no power given by the former act to the vicar, or to any other person, to grant or demise the premises, they had ever since the making of the act lain waste, and very little advantage could be made of them without some power of granting leases ; for remedying which inconvenience, and for the more effectually providing and securing to the vicar and his successors the benefit and augmentations intended by the former act, it was enacted, that it should be lawful for the vicar for the time being, with the consent of the vestrymen of the parish for the time being, or the major part of them, to grant or demise the lands in question to any person or persons whomsoever for such term or number of years, at and under such rents, reservations, or payments, as to him and them should seem meet, provided that the yearly rent should be the highest that could be got, and that no fine should be taken for the making of any such grant or demise, and that in case of any difficulty arising between the vicar and vestrymen about letting to farm the waste grounds aforesaid, the matter in dispute should be referred to be determined by the Bishop of Durham for the time being. In consequence of this power, various leases were granted for 999 years, at rents making together an increase in the vicar's income of about 50/. per annum. An information was filed, contending that the leases ought to be cut down, on the principles applying to charity estates ; and it was argued, that the vestrymen were to be considered in the nature of trustees, and, therefore, that the leases were to be treated as if made by trustees of a charity (^). But Lord Eldon said that he found it difficult to accede to that reason- ing, for when the legislature, with respect to ecclesiastical persons, had said that they may make such leases as to them should seem meet, it was difficult for a court of equity, at the distance of 100 years, to say Avhat were the terms on which (t) As to which, SCO ante, p. 347. 41^ Oy THE CONTRACTING PARTIES. [Part III, sucli leases should have been granted, particularly when the premises were to be improved in the manner in which these were ; and, therefore, notwithstanding he was of opinion that the act gave a power beyond what was intended, yet he did not think that a court of equity had a right to cut down leases that were within the express terms of it (u) . The power usually provides not only for the duration of the term, but also specifies whether the donee is to be confined to the granting of leases in possession, or allowed to grant in reversion. Where it is intended to confer a power of leasing in possession only, the form, in general, after authorising leases in possession, expressly negatives a right to lease in reversion ; as, " to take effect in possession, and not in rever- sion or remainder or by way of future interest." The option of leasing in possession or reversion is sometimes given ; and occasionally the power is silent as to the period at wliich the term is to take effect. The subject, therefore, may be considered under the three following sub-divisions : 1st. With reference to powers that simply authorise the grant of leases in possession ; or authorise leases in posses- sion, and contain also terms prohibiting the grant of leases in reversion. 2ndly. With reference to powers that authorise the grant of leases in possession or reversion. And, 3rdly, With reference to powers that authorise the grant of leases generally ; but are silent as to the period of com- mencement. And, to pursue it with advantage, we must anticipate the distinctions noticed in a later part of this work (v), between. Leases in possession; Leases in reversion; Reversionary leases; Leases of the reversion ; and Concurrent leases. A lease in possession confers at common law a present right of present enjoyment, and becomes perfect in point (m) Attorney-General v., Wray, Jac. ner, 1 Hay. &, Jo. 79. •iOJ. Attornoy-Gciicral r. Moses, 2 (r) Post, in the Chapter on the lla- Maild. 2'Ji. See also IJoylaud v. War- benduia. Cu. I. s. iv.j WHO lessors: — donees or power. 4i'3 of estate by the entry of the lessee : though where the lease is granted by virtue of a power, the necessity for entry is superseded by the statute of uses (j) Per Holt, C. J., in Winter r. (a) Com. 39. See also Holt, 415; Loveday, Com. 39. This case is re- Carth. 429. ported by various persons, see ante, (Jj) Whitlock's case, 8 Co. (iO, b. p. 423. n. (s). Lyn v. Wyn, O.Bridgm. 70, b. by Bann. 122. 131. (<■) Roc dem. Bnmc c. Prideaux, 10 (j) Ibid. Doc dem. AUau x. Cal- East, 158. 185. 114 Of THE CONTRACTING PARTIES, [I'.vRT III. Why a freehold interest conferred under a power of leasing should be an exception from the general rule has not been explained. The law, however, as it is expounded in the cases cited seems to have been generally received without inquiry into the principle on which it is founded. A lease to commence at a future day, independently of any existing interest, though included in the comprehensive expression "lease in reversion'', is more correctly denomi- nated "a reversionary lease " ; or "a lease in futuro" ; and confers an inter esse termini on the lessee until the period pointed out for its commencement in possession {d). A lease of the reversion is such as is granted during the continuance of an existing term, and is concm-rent with it in point of interest; and, in ordinary cases (e), confers on the lessee a vested interest, and a right to the rent reserved under the prior lease. But, A lease may be concuiTent with an existing one merely in point of computation of time, with reference to duration, Avithout conferring on the second lessee anything more than an interesse termini during the continuance of the first lease ; as in the case of a second lease for years being granted to commence in possession at the expu'ation of a prior one, and to be thenceforth held for a term of years to be computed from a day preceding the determination of the prior lease. "We may no'«' address ourselves, 1st, to leases under powers that authorise leases in pos- session; or authorise leases in possession and contain terms prohibiting grants in reversion. On this branch of the subject little or no difficulty presents itself; for it is incontrovertibly settled that a power of leasing in possession, or in possession and not in reversion, will not, at law, authorise a lease in reversion, althovigh the estate were in lease at the time of the creation of the power (/), {(1) 2 Trcst. Conv. 1 IG. (/) Opy v. Thomasius, 1 Lev. K!?; (r) Sec post, IIabuii(Jiiin. But, as to S. C, nom. Opey v. Tlumiasius, T, U-usuB iiiulcr jioweis, see post, p 117, Hayin. 132; S. C, uom. t)ptc v. Tho- Cii. I. s. IV. 1 WHO lessors: DONEES OF POWEIl. 415 And if the lease be made to commence in futuro, it is imma- terial whether the interval between the execution of the deed and its commencement in interest be of long or short dm-a- tion, as a day will prove as fatal as a year or any longer period {g). In the case of Fox v. Prickwood {li), it appeared that one being seised in fee made a lease for life, and afterwards levied a fine to J. S. for fifteen years, remainder to himself for life, with a power to make leases for twenty-one years or three lives in possession ; and the question was, whether he might grant a lease dming the first fifteen years [i), or whether the exercise of the power was suspended until the determination of that term. The court were clearly of opinion that he might lease presently in possession, but not in reversion ; and that, as the term of fifteen years was subject to the power, he was not bound to wait until the remainder vested in him in possession : it was held, however, that the owner of the fifteen years shoidd have the rent reserved during his term. Even the usage of the country to grant leases of particular kinds of lands, as arable, or pasture, to commence at diff'erent periods, will not justify a lease in reversion where leases in possession are required by the power [k). Thus, a lease ex- ecuted, under such a povfer, on the 29th of March, with an habendum, as to tlie tillage ground from the 13th of February then last past; the pasture ground from the 5th of April then next; and the residue of all the premises from the 12th of masius, but almost unintelligibly re- East London Waterworks Company, 3 ported, 1 Sid. 261; S. C, nom. Opie r. Madd. 375; S. C, on appeal, Jacob, Thomatius, 1 Keb. 778. 910; cited by 324. And see Doe dem. Pulteney r. Dolben, J., 4 Mod. 6. Marquis of An- Lady Cavan, 5 Term Rep. 567; S. C, trim V. Duke of Buckingham, 1 Ch. Ca. in error, 6 Bro. P. C. 175, Toml. ed. 17; S. C. 1 Sid. 101; Freem. 168; {g) Bowes ?;. East London Watcr- O. Bridgm. by Bann. 617, Appendix, works Company, sup, G. Fox V. Prickwood, 2 Bulstr. 216; (A) Fox v. Prickwood, sup. S. C. Cro. Jac. 347, (marked 349 in («) It is stated in RoUe's Report of folio edit, by mistake); 1 Rol. 12; 2 the case, that the original lease for life Rol. Ab. 260. pi. 5. Pollard v. Greenvil, had expired. 1 Ch. Ca. 10; S. C. 1 Rep. in Ch. 98; (A) Doe dem. Allan v. Calvert, 2 1 Eq. Ca. Ab. 342. pi. 2. Bowes r. East, 376. 446 OF THE CONTRACTING PARTIES. [Part HI. May also then next, being the usual periods of entry by tenants on arable and meadow ground respectively in the countiy where the lands in question lay, at an entire rent, was held void, as being directly in opposition to the terms of the power, which, it was said, if the custom were engrafted on it, instead of being to make leases in possession, would be to lease in reversion, so as the commencement of the lease, as to part, should not be carried beyond the 5th of April ; and, as to the other part, not beyond the 12th of May next following the lease. The existence of a tenancy at will, or from year to year, forms no obstacle to the exercise of a power to grant leases in possession, but not by way of reversion or future interest, if at the time of making the lease the lessor direct the oc- cupiers to pay their rent to the lessee, which they accordingly do (/). But a lease void at law on the ground of its being granted in reversion, instead of in possession, may sometimes be sup- ported in equity in favor of persons claiming for a valuable consideration. Thus, where a tenant for life, with a power of leasing certain mines in possession, made a second lease during the existence of a former one to only one of the two lessees entitled under the former, and, after the execution of the second lease, the lessees worked the mines, and expended considerable sums of money in building smelting mills, &c., upon the spot, the court, in order to support the contract, presumed the surrender of the former lease, and held that, as the new lease was acted under, it should be supported in equity, notwithstanding its invalidity at law (m). Equity Avill also lend its aid where there is only a merito- rious consideration, as in the case of the lease being granted by way of provision for a child (n) . So, where a man made a voluntary settlement on his son for life, and after to his first and other sons in tail, with (I) Goodtitlc dcm. Clargcs v. Fumi- (/;;) Campbell v. Leach, Aiubl. 740. can, 2 Dougl. r)fl5. Ron dcm. Hall v. (11) Anon. 2 Frecm. Cli. 224. J{ull«|.7, 1 D.Higl. 2.')2. Cii. I. S. IV.] WHO lessors: — DONEES OF POWER. 44-7 power for the son to make a lease in possession for ninety- nine years determinable on three lives, and also to make leases, to commence after his death, if he had issue male, to continue so long as he had issue male ; and the son made a lease to his father, in trust for one of his younger children, but the lease was not pursuant to the power, it was decreed good, and taken to be as a lease made by the father after a voluntary settlement (o). But it appears that a power created by act of parliament must be strictly pursued, and if void at law, equity cannot afford relief {p) . If a power be granted to tenant for life to lease in posses- sion, an agreement for a lease to commence at a future day is not void as a lease in reversion, but will bind the remainder- man, if the tenant for life outlive the day appointed for the commencement of the term. It is a contract, and every con- tract must necessarily precede the execution of the lease {(j) . Though a lease in futuro cannot be granted at law by virtue of a power to lease in possession; it may be doubted whether a concurrent lease, commencing in prasenti, may not ; pro- vided the term do not exceed that authorised by the power. The cases cited below {r) appear to warrant such a lease. And Mr. Coote, in his late work on the Law of Landlord and Tenant, adopts the same conclusion {s) . But Sir Edward Sugden is decidedly opposed to the validity of concurrent leases {t). After a critical examination of the (o) Gooding v. Gooding, 1 Eq. Ca. dix, F, Berry v. White, 0. Bridgra. Ab. 342. pi. 3. See also Marquis of by Bann. 82, semb. S. C. cited, noiu. Antrim v. Duke of Bucldngham, O. Berry v. Riche, Hardr. 412. Good- Bridgm. by Bann. 617, Appendix, G.; title dem. Clarges v. Funuean, 2 Dnugl. S. C. 1 Ch. Ca. 17; Freem. 168; 1 565, 1st point. Doe dem. Allan v. Sid. 101. Pollard v. GreenAdl, 1 Ch. Calvert, 2 East, 376. 384. Roe dem. Ca. 10; S. C. 1 Rep. in Ch. 98; 2nd Bruue v. Prideaux, 10 East, 158. 185. ed. 184; 1 Eq. Ca. Ab. 342. pi. 2. And see Fox v. CoUyer, 1 And. 65; (2J) Anon. Freem. Ch. 224. S. C. Mo. 107. Sands v. Ledger, 2 (q) Shannon v. Bradstreet, 1 Seho. Ld. RajTn. 1792. & Lef. 52. Dowell v. Dew, 1 Yo. & (,s) Coote's L. and T. 189. 191. Col. V. C. 345. , (0 Sugd. Pow. 6th edit. vol. 2, p. (r) Read v. Nashe, 1 Leon. 147; ^97, etseq. S. C. O. Bridgm. by Bann. 606, Appeu- us OF THE CONTRACTING PARTIES. [Part 111. cases, he says {u), " Upon the whole, then, the i)oint has never been decided, and is not surrounded by much authority; and there seems reason to suppose, that, if it should ever be argued on its true principles, the decision will be that a concurrent lease cannot be granted. To guard against a contrary deter- mination, it might be ad\dsable in powers of leasing to ex- pressly declare that a concurrent lease shall not be granted. The common power would then run thus : — ' for so many years in possession, and not by way of reversion, or future or concurrent interest.^ " And he adds [x], that " although a concurrent lease cannot be made, yet a surrender may be taken oi" the old lease, and a new one granted. If the new lease be made to the old tenant, an express surrender is of course unnecessary ; and it is no objection that the tenant for life obtains an increased rent ; of course the lease Avould be void if the increased was not the proper rent." One of the chief objections to a concvu-rent lease arises out of the difficulties attendant on a reservation of, and right to, the different rents. This objection has been strongly urged by Sir Edward Sugden. He says, that, where the power authorises it, a chattel lease may be granted pending a prior subsisting one, proAided it gives no beneficial interest during the continuance of the subsisting lease, (10 East, 184) ; and this, in speaking of chattel leases, is what is properly called a concurrent lease. Where there is either a lease for lives or a lease for years in being, of course the lessor may grant or demise the reversion, so as to entitle the grantee or lessee to the immediate benefit of the existing lease; but this is an operation never within the view of ordinary powers of leasing, the object of which is to secure the rents for the persons entitled to the reversion under the settlement creating the power, and not to constitute a new lessor (y) . And in a sub- sequent page {z) he says, that the advantage to be derived from the two rents, which was relied on in Fox v. ColHer's («) lt)iil. p. 410. (y) Sugd. I'ow. 6tli edit. vol. 2, p. 370. (.r) Il.id. p. 111. (2) Page 404. Ch. I. s. IV.] WHO lessors: — doxees of power. 449 case [a) is no other than a fruitful field of litigation. If the second lessee should enter and be ousted, as of course he would be, the rent on the second lease would, it should seem, be suspended. Or it may be thought that, as at this day leases are made by deed, the second lease would take effect by estoppel as a lease in possession, and, attornment being now unnecessary, would carry with it the right to the rent re- served by the first lease, and then the remainder-man's remed}'- for his rent would be more complicated and less effectual than it would be under a single lease. And again he says [b) : — "WTiere the best rent is required by the power, if a concurrent lease is granted, and the value has risen since the first lease, it would at all events be necessary to reserve the best, and, therefore, a larger rent ; and so if the value had fallen in the interim, a less rent might be reserved. The reservation of two different rents for the same period, particularly as the larger one in the first case could not be recovered in the way contemplated by the power, if at all, during the continuance of the first lease, would clearly show that such a lease could not be sustained as a due execution of the usual power of leasing. Without attempting to answer these arguments, I may refer to Mr. Chance's remarks on the subject in his work on the Law of Powers. He says: — Upon the whole, it would seem extremely difficult, if not impossible, to support a con- cui'rent lease under the common power of leasing in posses- sion at rack-rent, whatever may be the case with other powers ; and whether any distinction could be raised where the out- standing interests are not binding on the remainder-man, appears at least very questionable. If a concm^rent lease can, under such a power, be supported at all, it must perhaps be in this view ; — that the new lease carries no reversion or rent ; that the limitation of the new term, so far as it is con- current with that in the old lease, is a perfect nullity ; that in fact the new lease amounts to nothing more than an (rt) See ante, p. '245. {h) Page 409. VOL. I. G G 450 OF THE CONTRACTING PARTIES. [Part 111. appointment to take effect from the determination of the old lease for so many years of the term authorised by the power as shall then remain, the term taking effect for the purposes of computation, but not by way of interest, from the execu- tion of the lease. If so, of course the result is this, — that a lease in futuro may be created, provided the term as computed from the date of the lease, does not exceed the term authorised by the power (e) . As a deed takes effect from its delivery and not from its date, it follows, that a power of leasing in possession, and not in reversion, is well exercised by a lease containing an habendum from a future day, if the execution of the deed be deferred until after that day {d) . And parol evidence is admis- sible to prove the time of execution (e) . For a long time a question depended whether the word from in the limitation of a term under a power of leasing in possession, was inclusive or exclusive of the day of the appoint- ment. The refined distinctions taken upon the terms " from the date;" "from the day of the date;" "from the time of the making ; " " thenceforth," and the like, were a source of constant litigation, and, it is to be feared, afforded in too many cases the means of eluding a disadvantageous contract. Nor was it until Lord Mansfiekrs time that all doubt upon the point was dispelled by the case of Pugh «;.tlie Duke of Leeds (/), which determined, that the words " from the day of the date," and similar terms, should receive such a construction as would support and not defeat the deed in which they were used. It will be unnecessary further to notice in this place the parti- cular cases bearing on the subject, as they wiU be discussed in another page {(/). 2ndly, As to leases under powers that authorise the grant of leases in possession or reversion. (c) Chance on Powers, vol. 2, p. 300. Ry. .392. Campbell v. Leach, Ambl. 740. (f/) Doc (lem. Cox v. Day, 1 East, (f ) Doe dem. Cox v. Day, sup. Doe 427. Freeman dem. Vernon v. West, dem. Reece v. Robson, 15 East, 32. 2 Wils. 105. Doc dem. Mount v. (/) Pugh v. The Duke of Leeds. Rdbrits, 4 Dougl. .lOG. Steele v. Mart, Cowp. 714. 4 I3arn. & Crcs. 272; S. C. 6 Dow. & (g) Po.st, as to the Habendum. Ch. I. s IV.] WHO lessors: — donees of power. 451 Under a power of this kind, tlie donee cannot make one lease in possession and another in reversion of the same land ; but his power of leasing in reversion will be confined to such land as was not in the possession of the donor of the power at the time of its creation ; and, therefore, if, by the deter- mination of the then existing lease, the donee once lease in possession, he can never after make a lease in reversion ; for he has an election to do one or the other, but not both (A). And if the premises, being in possession at the creation of the power, be afterwards demised, it seems that a lease in rever- sion cannot be maintained; though C. J. Holt said he would not declare his opinion of that, because it did not come judi- cially before him {i) . Where there was a power of leasing for any term or terms of years, or life or lives, so as such estate and term should not exceed the number of twenty-one years or three lives in possession and remainder ; or for any number of years deter- minable upon one, two, or three lives at the most ; and the donee leased the premises to R. S. for ninety- nine years, if he should so long live, to begin after the determination of a term created previously to the power, and of which term ten years were then unexpired; the court held the power to be well exercised. They agreed that a lease for one life and ten years would not be within the power ; for the estate must be such as would not exceed three lives or twenty-one years, in the disjunctive, and the ten years and a life might exceed three lives or twenty-one years ; but that, as the ita quod, or so as, reached not to the estates of the land, but to the estates by virtue of the power, and was therefore inapplicable to the then existing lease, the lease in question did not exceed the term allowed {k) . They considered the point ruled and deter- mined by Whitlock's case (?) . It is observable, that the court construed the word remainder (h) Winter v. Loveden, I Ld. Rayni. Bann. .99. 100. 267.269. - (0 Whitlock's case, 8 Co. 69, b.; (0 1 Ld. Raym. 269. S. C. 1 Brownl. 169. (k) Berry v. White, 0. Bridgm. by G G 2 452 OF THE CONTRACTING PARTIES. [Part III. to signify the same as reversion ; and the word and, in the words possession and remainder, to signify or, in the disjunctive ; for otherwise^ it was said^ no estate could be made in possession alone [m) . One of the objections mainly urged in the case of Berry v. WhitCj just cited^ was^ that if the donee of the power might make leases also in reversion or remainder, he, or thosie who came to have the power after him, might likewise make leases in reversion or remainder ; and so lease might be made upon lease in infinitum, so as every lease exceeded not three lives, or twenty-one years; and there might be many leases of twenty-one years after twenty-one years, or many leases determinable upon three lives, every one of several men's lives ; and so, in effect, destroy the interest of those others in remainder (w) . Bridgman, C. J., however, conceived that he who, by virtue of the power, had made such a lease in rever- sion or remainder, as long as that continued but a reversion or remainder, could not make another lease in reversion or remainder upon it, if it, together with all the estates in pos- session and remainder made before by virtue of the power, should exceed the number of twenty years (o), or three lives, in possession or remainder ; for that was the terminus ultra quern they could not go by virtue of the power; and that the words, " so as such estate and term (in the singular number) exceed not twenty-one years or three lives in possession or remainder,'' must be taken collectively for such estate and terms (in the plural number) ; for so were the words prece- dent, "any term or terms"; and, secondly, that "estate in possession and remainder" could not properly be understood but of two estates ; and, therefore, that, in a reasonable con- struction, the power might be construed to be confined, not to be executed beyond twenty-one years or three lives in the whole, both in possession and remainder (^>). But where tenant for life with a power of leasing " for any (m) 0. Bridgin. by Banii. 100. (o) So in report. Qy. 21 years? (w) O. Bri(l;,'in. hy Uaiiii. 101. ( /<) (). Ih-idgm. by Baim. 101-2. Ch. I. S. rV.J WHO lessors: DONEES OF POWER. 453 term or number of years^ not exceeding the term or space of ninety-nine years from the date of executing such lease, and so as every such lease or leases should be made to take effect either in possession or immediately after the determination of the leases then subsisting thereof respectively", by lease, dated 29th May, 1787, demised the premises for thirty years from the 10th October, 1791, on which day several existing leases of the same premises would expire; and by another lease, dated 4th June, 1787, but in fact agreed for under the same bargain, and at the same time, as the lease of 29th May, 1787, and in pursuance of which agreement both leases were executed at the same time, granted the same premises to the same person, to hold from the 10th October, 1821, for sixty- three years; it was held, that the second lease, being made under the same bargain, was an invahd execution of the power, although the whole interest comprised in the two leases did not exceed the term allowed by the power ; for as the one lease was made to commence at the expiration of a lease then in being, and the other was not made to commence until a later period, it was clear that the latter was not a lease to take effect in possession, or immediately after the determina- tion of the then subsisting lease. The court, however, said, that had the leases been made at different times, and in con- sequence of different bargains, the case might perhaps have been different ; but on this point they did not think it neces- sary to express an opinion {q). It appears that a poAver of leasing in possession or reversion will not warrant the grant of a lease to commence at Michael- mas next after the determination of a former lease, so as to leave an interval between the first and second lease (r) . A special power of leasing cannot be declared upon as a general power : for example, if the power be to lease for twenty-one years in possession, and not in reversion, render- ing the ancient rent, and the lessee not to be dispunishable (q) Doe dem. Sutton v. Harvey, 1 (»•) Berry v. White, O. Bridgm. by Barn. & Cres. 426; S. C. 2 Dow. & Bann. lO-J. Ry. 5«9. 454 OF THE CONTRACTING PARTIES. [Part 111. for waste, it is a fatal variance to declare upon it as a power to the donee during his life to make leases for twenty-one years {s). Srdly, As to leases under powers that authorise the grant of leases generally ; but are silent as to the period of com- mencement. It seems to be universally agreed, that, if the estate be not in lease at the creation of the power, a particular power affirm- ative of leasing for life or lives, for twenty-one years, or any other specified period, without providing for the time of com- mencement, will not warrant the grant of a lease to commence at a future day (/) ; unless it can be inferred that the donor of the power intended that a lease in reversion should be made (u) ; for the term " demise and lease" imports a present possession ; and if the lease cannot be executed in prcesenti, it is hardly capable of the sense belonging to the expression " to demise and lease". Upon this principle, where a power was given to a tenant for life to grant, demise, set, and let, during his life, all or any part of the lands devised, for the term of ninety- nine years, to be determined on the death of one, two, or three lives ; and in pursuance of the power he demised the premises for ninety-nine years, if E. H. should so long live, the said term to commence from and immediately after the death of J. L. and M. R. {x), who survived the donee of the power; it was held that the power was badly exercised, as the lease was no more than the grant of an interest to be post- poned to a future time; and that, in consequence of the death of the lessor before the prior lives dropped, the lease must take effect, if at all, after his death ; and, moreover, that as (a) Sands v. Ledger, 2 Ld. Rayra. 1 Brownl. 148. 3 Salk. 276. 792. {u) Doe deni. Coplestou v. Hicrn, 5 (<) Countess of Sussex r. Wroth, Mau. & Selw. 40. And see Copley's Cro. Eliz. 5; S. C. 3 Leon. 13G. berry argument in Shaw v. Summers, 3 J. V. White, O. Bridgm. by Bann. 94. J)(i. B. Mo. 202-3. Hardr. 412. Winter v. Loveday, Com. {x) J. L. and M. R. were lives on 37; S C. utsup. J). 423, n. (c). Baynes which a suljsistiiig term for year.s was I'. Helaon, T. Ra}^n. 247, 2nd point. dctcrniinalile, though it was not so Sloeoinb v. Hawkins, Yelv. 222; S. C. stated in the case. Siioconib V. Hawkins, Cro. Jae. 3 Hi; Ch. I. S. IV.] WHO lessors: DONEES OF POWER. 455 the previously subsisting term might also by possibility be expended before the lives, it could not be the intention of the devisor that the tenant for life should have power to postpone the grant of an interest to so distant a period, but only that he should encumber the estate to the extent of a term for ninety-nine years determinable on three lives (y) . In Doe V. Oxenham {z), which stood next in the paper for argument, a lease was made under the same power for ninety-nine years, if two lives therein named should so long live, to commence from the death of T. S., who died in the lifetime of the lessor ; but the court considered that this made no difference in effect, and gave judgment for the plaintiff. The donee, therefore, after having made a lease in pursu- ance of his power, cannot during such lease grant another to begin at the expiration of the first ; even though the first be but a partial exercise of the power, and the first and second together do not exceed the term allowed by it [a). A lease made to commence at a future day is alike void whether that day fall immediately after, or be totally indepen- dent of, a previously existing interest [b). The donee^s right to grant leases to commence in futuro is not extended, though the power enable him to grant any lease or leases, or to lease for any term or terms (c). These, it will be observed, are cases of particular powers affirmative ; but whether the circumstance of the power being a general one restrained by a negative would make a difference is not quite clear. As Anderson reports the case of Harcourt v. Pole (d), it was held, that a power of leasing for any number of years not exceeding the number of ninety -nine years from the time of the making of the demise authorised a lease for sixty years to commence twenty years after the making ; for it did not {y) Doe dem. Copleston v. Hiern, 5 cular power afiu-mative. Mau. & Selw. 40. (6) Slocombe v. Hawkins, sup. («) Doe V. Oxeuliam, 5 Mau. & Selw. (c) Countess of Sussex v. Wroth, 46, n. ~ sup. BeiTy v. White, 0. Bridgm. by (o) Shaw V. Suuimei's, 3 J. B. Mo. Bauu. 96-7. 196. This was not a case of a pai'ti- (rf) Harcourt r. Pole, 1 And. 273. 456 OF THE CONTRACTING PARTIES. [Part HI. exceed the number of ninety-nine years from the time of making the demise ; and that the sense of the power was the same as if it had been to make leases for ninety-nine years from the time of the making of the lease, or for any other term which did not exceed that number of years. But Bridg- man (e) seemed to think that there was no ground for the difference. He said that the lease in reversion in Whitlock's case {/), though the power was of the same description, could not have been granted, had not the words " as well in posses- sion as in reversion " been inserted. The recent case of Shaw v. Summers [g] seems also opposed to Harcourt v. Pole. A power was given to trustees to let the premises in such parts and parcels, manner and form, and for such time and term not exceeding twenty-one years, as they should think proper; and it was held, that such a power authorised only a lease in possession, and not in futuro ; and that, as the triistees had let the premises for ten years, and afterwards, and before the expiration of that term, relet them for eleven years to begin at a future day, the second lease was void, and a bad execution of the power, although the two terms together did not exceed twenty-one years. But a distinction is said to exist where the premises were in lease at the creation of the power, and continue subject to the same lease at the time of exercising the power ; and it is also said that a lease in reversion may be granted, though, as we shall see, the cases on which the assertion rests are too contradictory and unsatisfactory to justify a positive opinion. The inaccuracy of some of the early reports was never more evident than in the cases connected with this subject. In the Marquis of Northampton's case {h), which is usually adduced as an authority in support of the distinction, it is observable that the reporters are not agreed upon the facts ; in addition to which, its value as an authority is diminished (c) O. Bridgm. by Baiiii. iiC. 3 Dy. 3.57. a. ; S. C. 3 Leon. 71 ; 4 (/) 8 Co. fiO, b. Leon. 1 7. In these two volumes of (.'■/) Shaw V. Summers, 3 .J. B. Mo. Leonard this case is reported with \'.)('k scarcely a vei'bal alteration. J llt)l. (//) Marriui.', of Northamjiton's case, Ab. 2G1. pi. H. Ch. I. s. iv.j WHO lessors: — donees of power. 457 by the circumstance of the judges not being unanimous. The case as reported by Dyer, is in these terms : — The husband and the wife, by their deed indented, dated in December, in the thirtj^-second year of Hen. 8, made a lease of certain parcels of the inheritance of the wife for the term of twenty- one years, rendering to them and to the heirs of the wife the accustomed rent. And afterwards, in 35 H. 8., it was enacted by parliament, that the husband should have and enjoy the lands in lease and the rent to himself only for the term of his life, remainder to his wife, and that all leases and grants thereof made and to be made by the husband, by indenture, for the term of tAventy-one years, or less, reserving the accus- tomed rent to him for the term of his life, and after his decease to his wife and to her heirs, should be good and effectual during such term or terms. The husband after eight years of the said lease expired, (reciting the former lease,) demised and granted the said land for twenty-one years next after the end of the first twenty-one years, reserving the said usual rent by indenture according thereto. Wliether this lease be good or not after the death of the wife and husband, quaere. The argument depends upon the meaning of the makers of the act, whether he can make any lease or leases in reversion or not ; for no restraint of the lease in reversion is in the act, as is written in the act 32 Hen. 8. c. 28. Therefore it seemed to Manwood and Dyer that the lease above is good and warranted by the act. But Mounson e contra {i). Leonard, on the other hand, who reports the case in his 3rd and 4th volumes, with little or no change of language, notices the act conferring the power, and states that the mar- quis leased for twenty-one years, and afterwards leased the same land to another for twenty-one years, to begin after the determination of the first ; and Dyer is reported {k) to have said, " the words are general, omnes dimissiones, and, therefore, not to be restrained unto special leases, scil., to leases in possession "; and, according to the 4th volume of (i) The marginal note, ascribed to the better opinion." C. J. Treby, adds, " And that seems (A) 3 Leon. 7'2. 458 OP THE CONTRACTING PARTIES. [Part HI. Leonard, the case was adj omened; but he makes no mention of Manwood^s acquiescence in Dyer's observation. It is certainly remarkable that no particular allusion was made to the existence of the prior lease as a ground for the decision; but, according to Leonard's report, Dyer founded his opinion on the words of the power being general, omnes dimissiones, and, therefore, not restrained to special leases, scil., to leases in possession. Very little or no light is thrown upon the subject by the case of Parrot v. Keble (/), where it appears that the court considered a lease for years to begin after an estate for life in possession, a good execution of the power ; but this may be accounted for (if we may rely on Godbolt's report) by the circumstance of the power expressly authorising a lease in possession or reversion. No judgment was pronounced in the case of Opy v. Tho- masius [m) ; but the opinion of the court was clearly in favor of the distinction. Certain lands which were then in lease for the residue of a term of ninety-nine years were settled on successive tenants for life, with power of leasing in posses- sion for a term mentioned ; and the first tenant for life granted a lease to commence at the expiration of the existing term. Keeling, Justice, inclined to think that the lease was within the power, the settlement being solely of a reversion ; but Windliam and Twisden held, that although a power of leasing, in general terms, would authorise a lease of the reversion, or a lease in reversion, if the premises were in lease at the crea- tion of the power, and continued subject to the same lease when the power was exercised, yet, as the power expressly men- tioned leases in possession only, a lease in reversion could not be granted, though tlie premises were under a lease granted prior to the creation of the power. These, as the reader will perceive, were cases of particular (i) Pan-ot V. Keblc, Godb. 195. 132; S. C, nom. Opee v. Thomasius, 1 Oaljle V. Perrot, Brownl. & Gold. 173, Sid. 2G0; S. C, nom. Opie v. Thoma- somb. S. C. tius, 1 Keb. 778. .010. See Comb. 377. (m) Opy 1'. Thomasius, 1 Lev. 167; See also O. Bridgni. by Bann. 613, S. C.,nom. Opey v. Thomasius, T. Uaym. Appendix. Cii. I. s. IV.] WHO lessors: — donees of power. 459 powers affirmative. Another case(w), tending to the same conchisionj remains to be added, where the question arose on a general power restrained by a negative. Thomas Lord Coventry, being seised of the reversion of certain premises expectant on the determination of a lease for ninety-nine years if Sii* Thomas Haslewood and two other persons should so long live, settled them to the use of himself for life ; remainder to Thomas, his eldest son, for life ; with remainders over. And in the settlement there was a proAdso, that it should be lawful for every person who should be actu- ally seised of the freehold of the premises to make leases of any part thereof for any term not exceeding twenty-one yeai's, or determinable on one, two, or three lives, so as there should not be in any part of the premises so leased at any one time any more or greater estate or estates than for twenty-one years, or for three lives, or for any number of years deter- minable on three lives. Thomas, the eldest son, and then Earl of Coventry, and tenant for life, demised the premises to S. and C. for ninety-nine years from the death of Sir T. Haslewood, the survivor of the three cestuis que vie, if the countess should so long live. The single question was, whether this lease was pursuant to the power : and, after many arguments, the court was of opinion that the lease made by Thomas Earl of Coventry was good pursuant to the power given him by the settlement. All these cases are in favor of the distinction alluded to : But there are others as strongly opposed to it. The case of the Coimtess of Sussex v. Wroth may be first referred to. It is observable, however, that scai'cely two of the books in which it is reported or cited concur in their statement of the facts ; and not only do they differ as to the existence of a lease anterior to the one respecting which the question arose ; but the books which admit its existence do not concm' in the circumstance of its being created previously to, or by virtue of, the poAver. (n) Coveuti-y v. Coventry, Com. 3 1 2. 460 OF THE CONTRACTING PARTIES. [Part III. According to the report of the case by Croke (o), the land was assured by the Earl of Sussex^ by act of parliamentj to his wife for her jointure, the reversion in fee to the earl, with power to the earl to lease for twenty-one years ; and the earl made a lease for twenty-one years, and before the end of it, and in the month of March, made another lease to the same lessee for twenty-one years, to commence at the Michael- mas following ; and it was adjudged a void lease, because for the time it was a lease in reversion. To the same effect is the citation of the case in Mountjoy's case, in Moore {p). Leonard reports in his first volume {q), that the premises were settled by act of parliament upon the wife of the Earl of Sussex, during her widowhood, for her jointure ; and that when the power was exercised they were in lease to the crown, by virtue of a demise made by the ancestor of the earl (the donee). The third volume of the same reporter (r) does not state whether the first lease, which is there admitted to have been existing at the time of the grant of the second, was made by virtue of the power, or not. The words are, " The manor of Burnham was assured to the Countess of Sussex for her jointure ; with a pro\dso in the act, that it should be lawful for the Earl of Sussex to make a lease or leases for twenty- one years (s), and afterwards, a year before the first lease was ended, he made another lease for twenty-one years, and this second lease was to begin and take effect from the end of the first lease. And it was adjudged that the lease was void. From the reference to the case in Latch (/), and Palmer (w), it would seem that the first lease was made in exercise of the power. It there appears, that a private statute was made, by which land was assured to the Countess of Sussex for her jointure ; but with power to the earl to make leases for twenty- (o) Countoss of Sussex v. Wroth, (,s) In the 4th vokime of Leonard, Cro. Ehz. .5. where this case is .also reported, p. 65, ( p) Mo. 1 09. it is here said, " The earl made a lease ('/) Nom. Lepur r. Wroth, 1 Leon. for twenty-one years, and afterwards," 'Mi. &c., as above. (>•) .3 Leon. lI'iO, nom. Wroth v. The (t) Latch, 243. Countess of Sussex case. (u) I'alm. 4Gi{-!). Cll. I.S. IV.] WHO LESSORS: DONEES OF POWER. 461 one years, who, half a year before the end of the first, made another lease for twenty-one years, to commence at the end of the first ; and it was said not to be good ; first, because it was a particular power to make leases ; and, secondly, because, being once executed, it should never be executed afterwards ; and this was the main reason. The quotation of the case in Popham {x), though a little ambiguous, seems to correspond with the report in Leonardos third volume, for it is stated that in the ease of the Countess of Sussex, who had a jointiu'e for life by act of parliament, with a proviso that the earl her husband might demise it for one-and-twenty years, rendering the usual rent, where the said earl had made a lease for one-and-twenty years, according to the statute, within a year before the end of the same lease, the earl made a new lease for one- and-twenty years, to begin after the end of the former lease, and died, the countess avoided the last lease, &c. As the case is cited in FitzwiUiam^s case [y), and afterwards by Rokesby, J., in Winter v. Loveday [z), no mention is made of the existence of a previous demise; but it is said that H. Earl of Sussex conveyed the manor to the use of himself for hfe, and afterwards to the use of the countess for life, with power to the earl to lease for twenty-one years ; and that he, in April, made a lease for twenty-one years, to begin at the Michaelmas following, and that such lease was void. The sHght notice of the case in Moore (a) is also silent as to an existing term. Notwithstanding these differences, it appears to have been universally admitted that the lease was void. The case of Slocomb, or Shecomb, v. Hawkins {b), also seems opposed to the distinction ; but it is to be regretted that the reports do not furnish the means of ascertaining the facts. A tenant for life with power to lease at any time for twenty-one (.(•) Poph. 9, nom. The case of the (a) Mo. 494. Countess of Sussex. (h) Slocomb v. Hawkuis, Yelv. 222 ; (y) 6 Co. 33, a., nom. Leaper v. S. C, nom. Shecomb r. Hawkins, Cro. Wroth. Jac. 318; 1 Brownl. 148. 3Salk. 276. (s) 5 Mod. 380. 462 OF THE CONTRACTING PARTIES. [Pakt III. 3''ears made a lease for that term to commence after the deter- mination of one ah'cady in existence, and it was clearly held that the second lease was void ; for if the donee might upon such power make lease upon lease, she might by making in- finite leases detain those in remainder from the possession for ever, which would be contrary to reason, and the intent of the parties. But the chief difficulty lies in discovering whether the first lease was made before, or by ^drtue of, the power. As Yelverton reports the case, it was made in pursuance of the power : Croke, on the other hand, reports that the first lease was in existence at the creation of the power; and it may not be immaterial to notice that Rokeby, J., in "Winter V. Loveday (c), and Bridgman, C. J., in Berry v. Wliite {d), adopt Croke's statement of the circumstances. Brownlow scarcely aifords an inference either way. If, therefore, Yel- verton's report be the correct one, the case serves only as an authority that a power of leasing for a specified term, without reference to the period of commencement, will not warrant a lease in reversion : If Croke and Brownlow have stated the facts truly, it is opposed to the distinction in question. In addition to this case, we have the authority of L. C. J. Bridgman, whose elaborate and luminous argument in deliver- ing the opinion of the court in the case of Berry v. White (e) deserves the greatest attention, not only as it relates to the point in question, but for the miscellaneous information it affords on the subject of powers in general. "It stands,^^ said that learned Judge (/), "with the reason of law to consider and weigh the nature of the estate at the time of creating the power ; if the estate upon which the power is executable were in possession ; or, if it were in reversion, construction is to be made aliter, et aliter where the words of the power are indefinite and general. In Leaper and Wroth's case {g), cited in Fitzwilliam's case (/*), it is agreed, if a man have a power (c) 6 Mod. .380 ; S. C. ut sup. p. 42:}, Bann. 82. n, (z). (/) O. Bridgm. by Bann. 94. {(l) O. Brisdm. by Bann. ,Ofi. {rj) Sup. p. 4G1. (r) Berry v. Whito, f». liridgm. hy (h) 6 Co. 33, a. Ch. I. S. IV.J WHO lessors: — DONEES OF POWER. 463 to make leases for twenty-one years indefinitely, without a restraint to make tliem in possession, yet he cannot make a lease in reversion, or to take effect at a day to come ; for he may make it to take effect in possession. But suppose that at the time of such a general indefinite power created, the estate was only an estate in reversion, expectant upon another for years or lives, there, I conceive, he may make a lease presently after the power created, though the former lease was in being ; for it was a reversion when it was settled ; and as a reversion upon such a power he may lease it. But, in- deed, such a lease, though it take effect in point of interest defuturo, yet it must be made to begin presently, as in case of a concurrent lease of a bishop. And this, as Justice Jones said in the argument of Evans v. Ayscough {i), 3 Car. 1., was put by Popham to be agreed in the Marquis of Northampton's case {j) ; it is impUed in the report of Shecomb v. Hawkins' case, 2 Cro. 319 (A:). It cannot be made to begin at a future day- Nothing can be stronger or more conclusive than these words : they plainly deny to the donee the privilege of making a lease to commence in reversion on the determination of an existing term, though that term was in being when the power was created. And we may here remark that the deci- sion in Berry v. White in favor of a lease granted to com- mence at the determination of an existing lease is not inconsistent with the observations of C. J. Brigdman, founded, as it was, on the particular wording of the power, which enabled the donee to grant for any term, &c., so as such estate and term shoidd not exceed the number of twenty-one years or three Uves in possession and remainder. The case of Baynes v. Belson (l) is to the same effect. Sir John Cur son having made a settlement, among other uses, to the use of himself for life, with power to make leases to any (i) Evans v. Ascuithe, Palm. 457; (/) Baynes w. Belson, T.Rayni.24 7-8, S. C. ut sup. p. "294, n. ()). 2nd point. The case was adjourned (j) Ante, p. 456. upon another fjuestion. (A) Ante, p. 461. 464 or THE CONTRACTING PARTIES. [Part HI. persons for one, two, or three lives, or for one-and-twenty years, made a demise to E, B. for twenty-one years, to com- mence after the deaths of J. and M., who were tenants for lives, and who hved several years after ; and the whole court were of opinion that the power was not well executed, the lease being to commence infuturo. The case of Doe dem. Copleston v. Hiern (m), before no- ticed {71), where the lease was set aside, being made to com- mence at a future day, scarcely furnishes an argument on either side, and for three reasons, 1st, because it is not stated when the existing interest for years determinable on the lives of J. L. and M. E/. was created; 2ndly, because the attention of the court was not called to the distinction under consider- ation; and, 3rdly, because J. L. and M. R. might by possi- bility have survived the existing term, in which case the reversionary interest, instead of being dependent on the determination of the preceding interest, must have waited to take effect until the decease of the sur\dvor of J. L. and M. R. As the point is not free from doubt, no prudent practitioner would take upon himself the responsibility of advising a party to take such a lease in reversion. If the power require the leases to be made in possession, a lease in reversion cannot be granted, though the estate in the premises was only a reversion when the power was created (0). A second lease, however, if made to commence in praesenti, and not exceeding the period marked out by the power, may be supported as a concurrent lease {j)). It is scarcely neces- sary to remark, that a new lease granted to the same lessee, to commence in prcesenti, will operate as an implied surrender of his first lease {g). (m) Doe dom. Copleston v. Hiern, Rol. 12, case (15). 2 Rol. Ab. 260. 5 Mau. & Selw. 40. pi. r,. (n) Ante, p. 434-.'). (p) Berry v. White, 0. Bridgm. by (o) Opy, Opey, or Opie, v. Thoma- Bann. H2. .04. sius, 1 Lev. 167; S. C. T. Raym. 132; (q) Ive's case, .5 Co. 11, a., 3rd re- 1 Sid. 260; 1 Keb. 77ft. .010. See solution. Thompson t>. Traft'ord, Poph. Comb. 377; and Fox v. Priciiwood, 2 8; S. C. 2 Loon. 188. BulHtr. 216; S. C. Cro. Jac. .347; 1 Ch. I. s. IV.] WHO lessors: DONEES OF POWER. 465 6. As to the reut to be reserved. In powers of leasing of former day s^ it was usual to require the reservation of the ''ancient and accustomed rent"; but the practice has comparatively fallen into disuse. The majority of modern powers of leasing for years direct the best or most improved yearly rent that can reasonably be had or gotten, to be reserved, without taking any fine, pre- mium, or foregift. But where lands have usually been let for lives, the power frequently provides for leases upon fines, which, as the lives or leases drop, are considered among the annual profits (r) . Some difference of opinion has prevailed as to the signifi- cation of the words "ancient and accustomable rent." Holt, C. J., thought that they meant the rent that was reserved at the time of the creation of the power, where a lease was then in being; or that was last before the time reserved, where there was no lease then in being ; for he that created the power intended no more than that the lessor and lessee should not be able to put the estate in a worse condition, but keep it in the same plight and condition, at least, that it was in when so settled. Suppose (he said) anciently there had been a variety of rents reserved, as, for instance, 19/. for many years anciently, and 20/. for some few years before the settlement, and at the time thereof the lands were not in lease ; in that case, the 20/., and not the 19/., though a much more ancient rent, would be the ancient rent, for the length of time in that case is immaterial ; and for this he depended on the case of Morrice v. Antrobus {s) . And he said that if a tenant in fee made a lease at 50/., and afterwards at 10/., and then made a settlement, the 10/. would be the ancient rent (/). Lord Cowper dissented from this construction. He held, that if leases had been granted twice at a greater, and once at a lesser rent, the two former leases would be the ancient rent, (r) Taylor dem. Atkyusv. Horde, 1 53 ; S. C. 2 Vern. 531. 542; Freem. Burr. 60. 121. ~ Ch. by Hov. 291. See also ante, pages (s) Hardr. 325. Q^ aud 67, as to leases uuder the («) Orby V. Mohun, Gilb. Eq. Rep. enabling statute of 32 Hen. 8. c. 28. VOL. I. H H 466 OF THE CONTRACTING PARTIES. [Part III. for the last might be made by him who had the fee, who was not bomid to reserve the ancient rent, but might let it for nothing if he pleased (u) . In a late case {x), however, the court confirmed Lord Holt's view of the subject, and said, that, to ascertain what were the ancient rent and reservations, the proper evidence was the last lease. That reference may be made to former leases for the purpose is clearly established {y) . If the power require the ancient, usual, and accustomed rents, boons, heriots, and services, usually paid, or more, to be reserved, a lease omitting covenants on the lessee's part to pay all taxes, rates, duties, and impositions, cannot be supported, if the former amount of rent be reserved ; because such rent, being liable to deductions for land-tax, and other taxes, cannot be considered as the ancient rent (z) . So, if the former leases have contained a covenant on the lessee's part to repair, or to grind at the lessor's miU all the corn which he (the lessee) should spend upon the premises, the omission of a covenant to perform these duties, which are in the natm'e of a boon or service, will prove fatal to the lease (a). So, where there was a power of leasing lands anciently demised, so as the ancient and accustomed yearly rent and reservations were reserved, and the donee demised the pre- mises, with an exception of " all timber trees, bodies of pollard and other trees whatsoever," the exception in former leases being of " all and all manner of timber trees and trees hkely to prove timber," so that in the new lease the upper part of the trees, from which lops, tops, and boughs, might be taken, was not excepted, it was held that, as the exception was larger in the old than in the new lease, the premises could (m) Orby v. Mohun, Gilb. Eq. Rep. son, 5 Barn. & Aid. 3G3. Doe dem 58. Douglas v. Lock, sup. (x) Doo dem. Douglas v. Lock, 2 (2) Earl of Cardigan v. Montagu, Adol. & Ell. 705. 73G ; S. C. 4 Nev. & Sugd. Pow. Appendix, 6th ed. p. 596. Man. 807. 603, 8th point. Reg. Lib. A. 1754. (>/) Smith V. Doc dem. Jersey, D. P. fol. 406. 2 Brod. (ft Bing. 473 ; S. C. 5 J. B. (a) Earl of Cardigan v. Montagu, Mo. 3.32; 7 Pri. 37f); 3 Bit. P. C. 290. sup. Doc dem. Earl of fcjhrewsbui'y v. Wil- Ch. I. S. IV.] AVHO lessors: DONEES OF POWKH. 167 not be taken to have been demised at the ancient rent, and, therefore, that the new lease was void (b). In the same case [c] it appeared, that the manor of P. was devised to A. for life, with a power of leasing such parts of the lands lying within the said manor as had anciently been demised, so as the ancient and accustomed yearly rent and reservations Averc thereby reserved ; such leases being from time to time made and granted in the same manner and form, and with and under such and the like reservations, restrictions, covenants, conditions, and agreements, as were usually and customarily contained in leases of the same kind, in the several and respective parishes and places where the same premises were situated. In the ancient leases there was a provision for the lessees " doing and performing, from time to time during the said term, suit, toll, custom, and ser- vice, to and at the water-grist mill of and belonging to the lord of the said manor, and situate and being within the same, by grinding all his and their corn there "; whereas in the lease on which the question arose the render was, " from time to time during the said term, such suit, toll, custom, and service, to and at the water-grist mill of and belonging to the said A. (the tenant for life), her heirs or assigns, and also to the person or persons as aforesaid, by grinding all their corn and grain at such mill ; but the variance was held to be immaterial. There is no objection to a greater rent than that usually or anciently payable being reserved {d). In the case of Doe v. Creed (e), a power was given to a devisee for life of certain estates in the counties of Sussex, Huntingdon, and Middlesex, and in the city of London, to grant leases of the estates in the counties of Sussex and Huntingdon for any term or terms of years not exceeding twenty-one, so as there should be reserved by such lease or (6) Doe dem. Douglas v. Lock, 2 Man. 807. Adol.& Ell. 705. 746; S. C. 4 Nev. & {d) 3 Ch. Rep. 78. Campiou v. Man. 807. Smith v. Bole, Cro. Jac. Thorpe, Clayt. 99. Doe dem. Newi- 458. - ham v. Creed, 4 Mau. & Selw. 371. (c) Doe dem. Douglas v. Lock, 2 (c) Doe dem. Newnham v. Creed, Adol. & Ell. 705. 743; S. C. 4 Nev. & sup. H H •; 468 OF THE CONTRACTING PARTIES. [Part 111. leases the most rent that could be got for the same; and of the premises in the county of Middlesex and city of London for any term or terms of years not exceeding sixty-one^ so as there should be reserved thereon the usual or other the most rent that could be had for the same. The donee of the power demised a part of the premises in the city of London for sixty-one years, in consideration of a fine, reserving a yearly rent of 10/., which, without a fine being paid, were worth 50/. a year. It appeared, that when the power was created the premises were in possession of a tenant, who had paid a fine of 100/., and who then paid a yearly rent of 6/.; and the lease was held to be valid. Le Blanc, J., said, that if the testator's object had been to prevent the taking of a fine upon the lease of the lands in London and Middle- sex, and to require that the remainder-man should have the most rent, he had no occasion to vary the phrase in respect of these lands from that which he had used in respect of the lands in the two other counties; and therefore, by introducing the term usual, he certainly meant to secure to the remainder- man as much rent as before, but he also meant to give the tenant for life power to take a fine(/). And Dampier, J., in the coui'se of the argument, said, that he had always con- sidered usual in these powers as contrasted to most. In a recent case {g), a power of leasing was given to tenant for life, so that there should be reserved in every such lease, during the continuance thereof, the ancient and accustomed rent and heriots for the premises therein contained, or more; and a lease, dated 30th June, 17 83, was made, in which the only reser- vation as to heriots was as follows: — "Yielding and paying, on the several deaths of H.B. and E. A. B., the sum of 6/. 13s.4c?., they dying after the commencement of the term whether in suc- cession or otherwise, for and in the name of an heriot.'' A lease of the premises was produced as a pattern lease, dated 13th September, 1734, being the lease in existence at the creation of the power, and granted for ninety-nine years determinable on (/) 4 Man. & Sclvv. ."J??. v. Grazebrook, 4 Q. B. 406; S. C. 3 (^) Doe dciii. The Earl of Egremont Ga. & Dav. 334. Ch. I. s. IV.] WHO lessors: — DONEES OF POWER. 4G9 the lives of J. B., E. B, and M. H.^ wherein the reservation of the heriots was as follows : — '^Yielding and paying, upon the death and deaths of each and every of them the said J. B., E.B. and M.H.^ three of his^ her and their best beasts^ or three of the best beasts of the then tenant in possession of the pre- mises, or that shall be then thereon depasturing or feeding, or the full sum of 6/, 135. 4^d., at the choice of the said [lessor] his heirs and assigns, for and in the name of an heriot or far- lief(^) : provided that, living the said J. B,, no such heriot or sum of money in lieu thereof shall be paid or demanded on the death of his sister, the said E. B., or, living the said J. B. or E. B., on the death of their mother, the said M. H." At the trial it was contended for the lessee, that though the heriot reservation in the later lease was not the " ancient and accustomed " heriot, as appeared by comparison with the former, yet the reservation in that respect was " more " than in the former, and therefore followed the power ; upon which a question arose, whether the proof of that allegation lay on the plaintiff or lessee ; and the court, though not prepared to say that the burthen of proof would lie in all possible cases on a lessee under a power, yet when a lease avowedly varied from a pattern lease in so important a point as to deprive the landlord of an option between a sum of money and the three best beasts, the change in the reservation threw upon the lessee the burthen of making out that the new state of things was as beneficial as the old. If the lessor reserve less than the ancient rent required by the power, the lessee cannot substantiate the lease by con- senting to pay the ancient rent afterwards ; the maxim of law being, quod initio non valet, tractu temj)oris non potest con- valescere{i). Where the power prescribes a reservation of the usual, or ancient and accustomed rent, great circumspection is required (/(-) In some manors westward, tliey cites Cowel luterp. in voc. " Farley or distinguish Farlcu to be the best good, Farleu." as Heriot is the best beast, payable at (») Jones dem. Cowper v. Verney, the tenant's death, note, 4 Q. B. 408, Willes, 16f). 176. 470 OF THE CONTRACTING PARTIES. [Part III. in framing the reddendum, to insure its reservation out of the identical lands in respect of which it has usually been payable ; for if a tenant for life of lands, over part only of which he has a power of leasing, reserving the ancient or accustomed rent, make a lease of all the lands at one entire rent {j) ; or if tenant for hfe with power of leasing such part of the estate (except certain specified lands) as had been usually let to farm, reserving the like rents, services, heriots, and profits as at the time of the settlement were reserved and payable for the same, or more, make a lease of all the estate, including the excepted lands {k) ; in either case the lease will be void, as against the remainder-man, for the whole. The rent under such circumstances cannot be called the ancient and accustomed rent, since it issues out of all the premises, part of which was not charged with a rent before [1). The demise cannot be supported even for the premises subject to the power, though the rent reserved equal or exceed the sum usually paid as the ancient or accustomed rent (m) . And it seems that the same effect will be produced if the lease lay the remainder-man under difiiculties to know whether the usual rent be reserved ; as if it extend to things out of which no rents can be reserved, as tithes {n), rents of assize, rents of customary tenants, commons, feedings, deer, and the like(o). There is a difference, however, between these eases, and the case of a party owner in fee of certain lands, and tenant for life of others, with a power of leasing at the ancient rent, making a lease for the whole at an entire rent. In the latter, although the lease, after the decease of the lessor, would be (j) Mountjoy's case, 5 Co. 5, b., 5th 5 Barn. & Adol. 298; S. C. 2 Nev. & resolution. Cainjnon v. Thorpe, Clayt. Man. 264. <)f). Doe dem. Bartlett v. Rendle, 3 (l) Ibid. Mau. & Selw. 99. Earl of Cardigan (m Ibid. V. Montagu, Sugd. Pow. Appendix, 2nd («) See post, Reddendum, as to a :'.rd and .'jth points. Doe deni. Douglas reservation of rent out of tithes. V. Lock, 2 Adol. & Ell. 70r). 747 ; S. C. (o) Taylor deni. Atkyns v. Horde, 4 Nev. & Man. H07. And sec Doc 1 Burr. GO. 124. Earl of Cardigan v. deni. Griffiths v. Lloyd, 'A Esp. 7ft. Montagu, Sugd. Pow. Appcndi.x, 2nd (^) Doe dem. Williams v. Matthewn, point. Ch. I. s. IV,] WHO lessors: — donees of power. 471 void as against the remainder-man, as to the lands subject to the power, it would remain in operation as to the lands in fee, and the rent would be apportioned (^j). And in a late case in Ireland [q] it was said, that lands comprised in a power of leasing may be demised with others not within the power at an entire rent, if the power be general and unrestricted ; as, in the event of the lessee being evicted from the lands not aflPected by the power, there would be an apportionment of the rent at law m favor of the person entitled under the settlement; but that an objection on that ground in the case of the ordinary power of leasing would be entitled to great weight (r). If the reservations be distinct, the usual rent being reserved on some premises, and not on others, the lease will be void only as to those which have not the usual reservation {s). So, if several parcels be comprised in one lease, with several rents, some greater and some less than have usually been reserved, the lease will be void as to those parcels which have not the proper rent reserved out of them, although the entire amount of rent be reserved in the whole {t). Under a power of leasing, reserving so much rent or profit as has formerly been reserved upon every demise for twenty-one years or three lives in possession only, the lands in the possession of the party creating the power may be demised without rent {u) . It is now settled, in subversion of a contrary doctrine con- tained in Cokeys reports {x), that a part only of premises formerly let jointly may be demised separately, at a rateable rent, bearing the same proportion to the former rent as the part leased bears to the whole land {y). {p) Doe dem. Vauglian v. Meyler, Eliz. 340, 2 Mau, & Selw. 276. Doe dem. WU- (0 Ibid, liams V. Matthews, 5 Barn. & Adol. (u) Campion v. Thorpe, sup. 298; S. C, 2 Nev. & Man. 264. (x) Lord Mountjoy's case, 5 Co. 3, b, (q) Muskerry r. Cliinnery, Lloyd & 5, b., 5th resolution; S. C, Mo, 197. Goo, 185, 229, temp. Siigden, C. And see Co. Lit, 44, b, (»•) Ibid, (y) Doe dem, Eai'l of Shrewsbm'y (s) Campion v. Thoi-pe, Clayt. 99. ■;;. Wilson, 5 Barn, & Aid, 363. 385, Doe dem. Bartlett v. Rendle, 3 IMau. 5th point. Doe dem. Lord Egremont & Selw. 9.9, Tanfield v. Rogers, Cro. r. Stephens, 6 Q. B. 208. 472 OF THE CONTRACTING PARTIES. [Part III. The statute of 39 & 40 Geo. 3. c. 41, after reciting that doubts had arisen on the subject, enabled ecclesiastical per- sons to grant separate leases of parts of lands usually demised by one lease and under one rent; but we are not necessarily to infer from thence that those doubts were well founded. Acts of parliament for the purpose of removing doubts are very bene- ficial, because they prevent that expense of litigation which otherwise must take place in order to have such doubts resolved (2') . Mr. Justice Bayley, contrasting the doctrine laid down in Coke's report with that advanced in his Com- mentary on Littleton, considered that there must either have been some mistake in the report, or that the opinion of the profession was decidedly against the doctrine there laid down. It is advisable, however, as suggested by Sir Edward Sugden, where powers are given to lease at the ancient rent, expressly to declare that leases may be made of part, at rents pro rata, and that lands usually demised by several leases at several rents may be demised by one lease at the aggregate of the old rents («). Where the ancient and accustomed yearly rent is directed by the power to be reserved, reference should be made to former leases for the purpose of ascertaining not only the amount of that rent, but the days also on which the same has usually been made payable; and the same days should be adopted as the periods for the payment of rent under the new lease. This formerly gave rise to a difficulty in practice. T^Tien the payment of rent was made to commence on the quarter day, (supposing the rent to be payable quarterly,) or on the half-yearly day, (supposing it to be payable half-yearly,) next ensuing the execution of the lease, and the lease was not made to begin on the quarter day, or half-yearly day, (as the case might be,) immediately preceding the first reservation, it followed that an entire quarter's or half-year's rent would be reserved and paid for an occupation of less than a quarter or lialf-ycar; and also that, unless an apportioned rent were (i) Per Abbott, C. J., o Darn. & («) Sugd. Pow. (Jth ed., vol. 2, p. Aid. -AW,. 435, Cu. l.S. IV.] WHO lessors: — DONEES OF POWER. 473 resented for the interval between the last quarterly or half- yearly day of payment and the day of the determination of the lease, no rent would be payable for that interval ; a cir- cumstance which, it was lu'ged, would materially prejudice the remainder-man, in case of the death of the lessor imme- diately after the receipt of the last quarterly or half-yearly rent ; and thus affect the stability of leases so prepared. But it is noAV settled that they are not objectionable on that ground. A dictum on the subject is to be found in Lord Raymond's reports {b), in a case quite foreign to the point in question. Powell, Justice, there said, that if a man had a power to make leases, reserving the ancient yearly rent an- nually ; yet if it were reserved upon a day before the year was up, as if the year ended at Christmas, and it was reserved at Michaelmas, it would be well, pursuant to the power, to which Holt assented. But later authority (c) has placed the point beyond the reach of controversy; and as it establishes an important doctrine, an abstract of its particulai* circumstances cannot fail to be serviceable. By a private act of parliament, passed in 1720, for annexing the Duke of Shrewsbury's estate to the Earldom of Shrews- bury, and confirming Gilbert Earl of Shrewsbury's settlement, a power was given to the successive tenants in tail to lease the premises in question, " so as upon every such lease and leases there be reserved and made payable yearly, during the continuance thereof, the usual and accustomed yearly rents, boons, and ser\ices for the same," &c. George, Earl of Shrewsbury, the then tenant in tail, executed a lease, dated 6th January, 1785, by which, in consideration of the surrender of a former lease, dated 13th January, 1756, for three lives, two of which were then since dead, and also in consideration of 105/. paid by the lessee for adding two lives, he demised the premises in question, from the day of the date of the inden- ture, for ninety -nine years if three persons therein named should so long live, yielding and paying, therefore, yearly and {h) Regiiia v. Weston, 2 Ld. Rayra. (c) Doe dem. Slu'ewsbxiry r. Wilson, 1197-8. ' 5 Barn. & Aid. 363. 474 OF THE CONTRACTING PARTIES. [Part III. every year, during the said term thereby granted, unto the said Earl, his heirs and assigns, the yearly rent or sum of 50/., at and upon the two usual feast days and terms in the year, called the feast day of the annunciation of the blessed Virgin Mary, and the feast day of St. Michael the Archangel, by even and equal portions, clear over and above all manner of taxations, impositions, and payments, of what nature or kind soever, the first payment thereof to begin and be made on the feast day of the annunciation of the blessed Virgin Mary next ensuing the date thereof. The premises had formerly been demised by indenture, dated 2nd February, 1708; and by that lease, as well as by the lease of the 13th of January, 1756, the rent was reserved payable at Lady-day and Michaelmas-day in every year. The demise of 1785 was objected to as a fraud on the power on the ground that it reserved a forehand rent ; for the first payment being to take place on the 25th of March, six months' rent was payable for an occupation of two months and nineteen days, and at the end of the term there would be three months and seven days for which no rent would be payable, the last rent being payable on the 29th of September; so that if the title were to descend on the remainder-man on the 30th of September in the last year of the term, he would not be entitled to any rent, or any advantage from the land, between that day and the expiration of the term on the 6th of January following; but the coiu't, founding their judgment on the ckcumstance of the rent being made pay- able on the same days in the previous leases of 1708 and 1756, to which they considered they must necessarily refer, in order to ascertain what were the usual and accustomed yearly rents (ri), determined, that the power was well executed, and that a rent payable on those days, although the right to demand it arose in less than half a year, was a usual and accustomed rent, within the meaning of those words in the condition contained in the leasing power. "Indeed," said (fZ) For thJH the coui-t cited Smith r. Doc dcm. Earl of Jersey, in error, 2 lirod. & Bing. 4TS. Ch. I. s. IV.] WHO lessors: DONEES OF POWER. 475 L. C. J. Abbott, "when we consider that this is a lease for hves granted upon the surrender of another lease, wc cannot help seeing that it is in effect an extension of time upon fresh terms ; and where the time only is extended, it is most reasonable that the day of the payment of the rent should continue to be the same, and should not vaiy according to the day on which the new lease may happen to be granted." But this circumstance was not adverted to by the other judges as a ground for their opinion. In order to guard against questions of this kind, should any doubt remain, it may be advisable in practice to reserve an apportioned rent for the number of days that must intervene between the last half-yearly or quarterly rent day, and the day of the determination of the lease. How far the reasoning which will support a lease under a power requiring the ancient and accustomed rent is applica- ble to a lease under a power requii'ing the best and improved yearly rent without fine, remains to be noticed. In Doe dem. Wilmot v. Giffard (e), there was a power of leasing, " so as there be reserved the best and most approved yearly rent, without any fine," &c. A lease was granted, dated 14th September, for twenty-one yeai's from the date, at a yearly rent, payable by two even half-yearly payments on the 29th September, and the 25th March, in every year, the first payment to be made on the 25th of March then next ; and on an objection being made that, as the term M'ould expire on the 14th of September, no rent would be payable from the 25th of March preceding its determination. Lord Ellenborough was of opinion that the lease was void; and the lessor of the plaintiff recovered. The case of Doe v. Morse (/) was very similar to Doe v. Giffard. A tenant for life under a settlement ydth. a power of leasing the premises for one, two, or three life or lives, or (e) Cited in Doe dem. Earl of Crompt. & Mees. 247; S. C. 4 Tyrwh. Shrewsbury r. -Wilson, 5 Barn. 6c Aid. 185. See also'^Doe dem. Douglas v. 371. Lock, 2 Adol. & Ell. 741 ; S. C. 2 Nev. (/) Doe dem. Hai-ries v. Morse, 2 & Man. 822. 476 OF THE CONTRACTING PARTIES. [Part III. any term or number of years not exceeding twenty-one years, so as upon all and every sucli lease or leases there sliould be reserved and continued payable during the respective con- tinuance of such lease and leases, by half-yearly payments, the best and most improved yearly rents that could be reason- ably had or obtained, without taking any sum or sums of money, or other thing, by way of fine or income for the same, made a lease, dated i 1th January, 1788, whereby, in consider- ation of the surrender of a former lease, and of the rents and covenants thereinafter reserved and contained, he demised a part of the settled estates, to hold from the 4th of January then instant for the lives of three persons therein named, jdelding and paying, therefor, yearly and every year during the said term the j^early rent or sum of 31/. 10^., at or upon the two most usual feasts or days of payment in the year, viz., the feast of St. Philip and James the Apostles (1st May), and St. Michael the Archangel (29th September), by even and equal portions, the first of such payments to begin and be made on the feast of St. Philip and James the Apostles next ensuing the date thereof. And it was held, that the lease was not a due execution of the power, as the rent was reserved, not half-yearly, but at intervals very distinguishable from half- yearly reservations ; the first rent being payable long before a half-year's occupation had elapsed; and the second very long before a year's. It was attempted to distinguish the case from Doe v. Gifiurd on the ground of its being a freehold lease ; but Lord Lyndhurst was of opinion that that circum- stance did not make any diflFerence in principle, as the interests of the remainder-man might be equally injured in the one case as in the other. It was further held, that leases of other estates in the country were not admissible in evidence to shew that the days of reservation in the lease were the usual days of reservation in that part of the country ; though evidence that they were the usual days of payment might have been given by showing that it was the custom to pay rents on those days in that neighbourhood. But it is rather difficult to reconcile the two cases last Cn. I. s. IV.] WHO lessors: DONEES OF POWER. 477 quoted with Isherwood v. Oldknow(^), decided in the interval between them. Under a power of leasing at the best and most improved yearly rent, without taking any sum or sums of money or other thing for or in lieu of a fine or income for the same, a lease was made, dated 15th October, 1800, for fourteen years, to be computed, as to the meadow and plough lands from the 13th of February then last past, the pasture lands from the 25th of March also then last, and the messuage, &c., from the 12th of May then also last, under a yearly rent of 100/., by half-yearly payments on the 11th of November and the 25th -of March, the first payment thereof to be made on the 11th of November next ensuing the date of the indenture, &c.; and it was objected that the lease was void, as it stipulated for the payment of half a year's rent at the end of the first twenty-seven days, which was in efiect taking a sum of money for a fine ; but the court were of a different opinion, regarding the reservation as having been made in consideration of an antecedent occupation. A remark, however, by Mr. Justice Bayley would lead us to suppose that the lease might have been avoided by the lessee's showing that he had had no occupation prior to the 15th of October, when the lease was granted (/i). It is observable that Doe dem. Wilmot V. Giffard was not cited by either party. And it is submitted that the later case of Doe v. Rutland (i), unless distinguishable from, is scarcely in conformity with. Doe V. IMorse, and Doe v. Giffard. A power was given by will to demise the premises in question for any term or number of years not exceeding twenty-one years in possession, and so as upon every such lease there should be reserved and made pay- able during the continuance thereof respectively the best im- proved yearly rent that could reasonably be had for the same, without taking any sum or sums of money by way of fine or income for or in respect of such lease or leases. In pursuance ((/) Islierwood v. Oldknow, 3 Mau. Hui'l. 245 ; S. C, in error, nom. Rut- & Selw. 382. land v. Doe dem. Wythe, 5 Mees. & (A) 3 Mau."& Selw. 404. Wei. 688, where the judgment of the (i) Doe dem. Wythe v. Rutland, 2 court below was reversed. Mees. & Wei. 661 ; S. C. Mur. & 478 OF THE CONTRACTING PARTIES. [Part HI. of this power, a lease was made on the i4th of December, 1833, habendum from the 11th of October then last for twenty-one years, yielding and paying the yearly rent of 903/., by equal half-yearly payments, viz., on the Gth of April, and the 11th of October in every year, by equal portions, except the last half-yearns rent, which was reserved and agreed to be paid on the 1st of August next before the determination of the said term. An objection was taken that the reserva- tion of the last half-year's rent was not valid, as no rent would be payable from the 1st of August to the 11th of October in the last year; and that if the lessor should die in the interval, he would receive all the benefit of the rent for the whole of that year, and the remainder-man would be kept out of pos- session, without receiving any rent. The court of Exchequer, however, held, that the reservation of the last half-year's rent before the complete expiration of the year was a matter of prudence and caution, and was in general for the benefit of the lessor, whoever he might be; and that it could only be detrimental to the remainder-man on the supposition of the tenant for life dying after the day on which the last half-year's rent was reserved, and before the expiration of the term, a supposition very highly improbable. And they said that the case of Doe dem. Wilmot v. Giffard {k) was distinguishable in the circumstance of there being there a clear loss of one half-year's rent, as not twenty-one years' rent, but only twenty and a half was reserved ; a statement, by the way, not exactly consistent with the facts of the case. This judgment was reversed on appeal to the Exche- quer Chamber (/) ; but on appeal to the House of Lords (m), the judgment of the Exchequer Chamber was reversed, and that of the Exchequer restored. Lord Lyndhurst, C, and Lords Brougham and Campbell, and Justices Wightman, Maule, Coleridge, Williams, and Barons Rolfe, Parke, and Aldenson, holding the power to have been well exercised, in (k) Ante, p. 47.5. (to) Rutland v. Doe dem. Wythe, 1 (t) Rutland v. Doe dem. Wythe, f) Mees. & Wei. ."^.55; S. C. 10 Cla. & Meefl. & Wei. G8«. Fhi. 41.0. Ch. I. S. IV.] WHO lessors: — DONEES OF POWER. 470 opposition to the opinion of L. C. J. Tindal, and Justices Coltman and Patteson. In a late case which arose in Ireland [n], a power was given to a tenant for life to lease the premises in question for any time or term of years or Hves and with or without covenants for renewal and in case of the determination of all or any of the aforesaid lease or leases respectively from time to time to make new or other leases thereof in manner aforesaid and with or without any fine or fines as he should think fit. The donee granted leases^ and took fines. It was contended that the words " and with or without any fine or fines " did not authorise the receiving of any fines^ except upon renewals under covenants in prior leases granted under the power. And Sir Edward Sugden^ C, held without doubt, and the Lord Chief Baron Joy (o) concurred in the opinion^ that the tenant for life could take a fine either upon an original lease or upon the renewal of a lease. When the case came before Lord Plunket, on a rehearing (p), he declared himself to be of a different opinion, considering that the natural construction of the clause, without any trans- position of the words, was, that the power of taking fines was applicable to the case of the leases mentioned before the words " with or without any fine or fines," and that these were clearly the leases to be made on the determination of the leases first mentioned. The case then travelled, as we have seen {q), to the House of Lords (r) ; thence back to the court of Chancery in Ireland; and thence to the Irish Queen's Bench (s), where Burke, C. J., and Justices Burton and Perrie, certified, against the opinion of Crampton, J., that the leases were not war- ranted by the power. But seven of the Judges of England, including the late Lord Chief Justice of the court of Common Pleas (Tindal), before whom the question was argued {t), have (m) Muskerry v. Chinnery, Lloyd & (q) Aute, p. 430-1. Goo. 185. 223, temp. Sugden, C. (r) 7 Gla. & Fin. 1 ; S. C. Rob. & (o) Sugd. Pow. 6th ed. Appendix, Macl. 493. No. 19. - (s) 2 Jebb& Sy. 300. (p) S. C. Lloyd & Goo. 182. 199, (t) See ante, p. 431. temp. Plunket, C. 480 OF THE CONTRACTING PARTIES. [Pakt 111. reported to the House of Lords tlieir opinion that the donee of the power was at hberty to take a rack rent without a fine, or any other rent with a fine, or upon the determination of any lease to renew it on similar terms. A general power to lease at a yearly rent is well compUed with by the reservation of a rent payable half-yearly or quarterly (m) . Questions have arisen upon leases under powers directing the ancient or accustomed yearly rent to be reserved, how far a departure from the accustomed periods of payment, either by making the rent payable quarterly, instead of half-yearly ; or half-yearly, instead of quarterly, would affect their validity. Where the rent has been accustomably payable half-yearly, there can be no doubt that a half-yearly reservation will be good, though the power prescribe that there be reserved " and made payable yearly " the usual and accustomed yearly rent (^), And it would appear, that if the power require " the accus- tomed yearly rent or more to be reserved and payable yearly during the term," a half-yearly reservation will be sup- ported, though in the ancient leases the rent was reserved quarterly ; for, if the rent be yearly reserved, the power is satisfied [y) . The cases cited in support of this position arose on leases by ecclesiastical bodies under the statute of 13 Ehz.(^'); but it is apprehended that they would equally apply to similar questions arising upon private powers of leasing. In Mountjoy^s case [a), where a tenant in tail under a (m) Rutland v. Doe dem. Wythe, 12 Wilson, (sup. p. 473,) Campbell, for the Mecs. & Wol. 355. 361 . 366. 3.07; S.C. plamtift", stated, (5 Barn. & Aid. 375,) 10 Cla. & Fill. 419. that the statute which created the (cc) Doe dem. Earl of Shrewsbury power did not say that the rent should V. Wilson, .5 Barn. & Aid. 363, 2nd be payable yearly, but only that the point. Fi-ycr v. Coombs, 1 1 Adol. & accustomed yearly rent should be re- Ell. 403. served ; but this was a mistake. The (y) Baugh v. Haynes, Cro. Jac. 76. words of the act are, " whereupon the Dean and Chapter of Worcester's case, accustomed yearly rent or more shall C Co. 37, a. And see Cook r. Younger, be reserved payable yearly during the Cro. Car. 1 6. said term." (z) 13 Eliz.c. 10. s. 3. In arguing the {a) Mountjoy's case, 5 Co. 3, b.; case of Doe dcni. Earl of Shrewsbury v. 4th resolution. 7 Ch. I. s. IV.j WHO lessors: — donees of power. 481 special act of parliament was empowered to make leases, " rendering the true and ancient rent," it was resolved, that a reservation of the rent at two days, where it had been reserved and payable at four days before, made the lease void, because it was ad nocumentum of the heii's in tail, which was restrained by the act ; for it was more beneficial for them to have it paid at four feasts than at two; and all beneficial qualities of the rent ought to be reserved and observed. It will be noticed, however, that, in tliis case, the word yearly was not mentioned in the power, a circumstance which has been considered (Zi) to distinguish it from the Dean and Chapter of Worcester's case (c) . It has not been expressly determined whether the substi- tution of quarterly for half-yearly payments would be sup- ported under a power requiring the reservation of the ancient or accustomed yearly rent. The point arose in a case just cited [d), but did not call for a decision. Lord Denman, in delivering the judgment of the court, after noticing the reso- lution in Mountjoy's case (e), said, "Now, if this decision be correct, it seems difficult to say that a lease is void for reserving the rent at four days instead of two ; the new lease need not be a fac-simile of the old one; all that is to be done is, to see that the remainder-man is not prejudiced. And there can be no doubt but a rent payable at foiu* feasts is, upon the whole term created, more beneficial than if payable at two feasts, though there is a possibihty, that, as to one quarter, the remainder- man may be prejudiced (/) ; for, on a quarterly reservation, if the tenant for life should die in the first portion of the half- year, the remainder-man would receive both the first and second quarter's rent of the half-year, and would, therefore, be in the same situation as if the rent had been reserved half-yearly; but if the tenant for life should die in the second quarter of the half-year, the tenant for life would receive the (6) 6 Co. 38, b. Doe dem. Douglas (d) Doe dem. Douglas v. Lock, sup. V. Lock, 2 Adol. & Ell. 705. 73.9; S. C. {e) Sup. p. 480. 4 Nev. & Man. 807- (/) 2 Adol. & Ell. 738; 4 Nev. & (e) Sup. p. 480. Man. 820. VOL. I. I I 482 OF THE CONTRACTING PARTIES. [Part III. first quarter, and the remainder-man only the second quarter, and he would, consequently, be in a worse situation than if the rent had been reserved half-yearly {g) ; but that is a con- tingency, and, even if it does happen, there is the benefit of the quarterly, instead of half-yearly payments during the rest of the term {h). And, after referring to the several cases above cited, he concluded by saying, " Amongst all the con- flicting authorities, it is very difficult to come to a conclusion on this part of the case ; it is not, however, necessary to do so, because there is another ground upon which we are enabled to give judgment." The point has, without doubt, lost some of its importance in consequence of the late act [i) respecting the apportionment of rents, by which it is enacted {Tc), that, from and after the passing of the act, all rents service reserved on any lease by a tenant in fee, or for any life interest, or by any lease granted under any power, (and which leases shall have been granted after the passing of the act,) shall be apportioned, so and in such manner that on the death of any person interested in any such rents, or in the estate from or in respect of which the same shall be issuing or derived, or by the determination by any other means whatsoever of the interest of any such person, he or she, and his or her executors, administrators, or assigns, shall be entitled to a proportion of such rents accord- ing to the time Avhich shall have elapsed from the commence- ment or last period of payment thereof respectively, (as the case may be,) including the day of the death of such person, or of the determination of his or her interest, all just allow- ances and deductions in respect of charges on such rents being made. Now, as the lessor, in leases made after the act, will, under any circumstances, be entitled to a proportionate part of tlie rent to his death, however reserved, it seems obvious that a quarterly instead of a half-yearly, or a half-yearly instead of a quarterly reservation cannot aft'cct a remainder-man, Qj) -2 Adol. & Ell. 7. '57; 4 Nov. & Man. 820. Man. 81.9. (0 4 W. 4. c. 22. (/t) 2 Adol. & Ell. 731i; 4 Nov. & (/.) Sect. 2. Ch. I. s. IV.] WHO lessors: — doxees of power. 483 except so far as the greater convenience of a quarterly reser- vation is concerned. But I am not aware of any judicial notice of the subject. The "best rent" means the best rent that can be obtained at the time of letting, without any regard to former leases (/). That term, however, docs not signify the highest rent offered ; as many things besides the mere amount of rent are to be regarded in the choice of a tenant : his ability and good man- agement, for instance, are to be taken into consideration; and, therefore, where the transaction is fair, and no fine or other collateral consideration is taken by the tenant for life leasing under the power, or injurious partiality manifestly shown by him in favor of the particular lessee, there ought to be something extravagantly wrong in the bargain, in order to set it aside on the ground that the person offering the highest rent was not accepted as tenant, although nothing appears to impeach the responsibihty of the person making the higher offer {m). The sufficiency of the rent may be regulated by the cir- cumstance of the onus of repairing being thrown on the landlord or tenant. If the premises be to be kept in repair by the tenant, the rent is so much less ; if by the landlord, the rent is the greater {n) . It is a question for a jury, whether, taking all circumstances into consideration, the rent reserved be the fair rent (o) . And the best evidence that a man has let for the best and most improved rent, is, that he has taken no more himself than he has taken care those who come after him shall have (/») . We may trust to the inclination of mankind in general to get as much as they can get, and if the tenant for life provides for those who are to take after him as he has provided for himself, (to be sure he may be under a mistake as to them and as to (I) Doe dem. Griffiths r. Lloyd, 3 ager of Cavan v. Doe dem. Pulteney, Esp. 78. 6 Bro. P. C. 175, Toml. ed. (»») Doe dem. Lawton v. RadelifFe, (o) Ibid. 10 East, 278. ' (/>) Per Lord Eldon in the case of (?i) Doe dem. Bromley v. Bettison, the Queensbury Leases, 1 Bli. P. C. 12 East, 30,5. And see Countess Dow- 428. 1 I -^ 484 or THE CONTRACTING PARTIES. [Part III. himself, and be may take too little, but it is not very likely be sboulcl expose bimself to that mistake, or willingly take too bttle,) this throws a burthen on those who mean to quarrel with such a lease, to prove that there was in the transaction that want of ordinary prudence whicli shows an inattention to the prescribed terms under which he was to let the lease [q). To invalidate a lease under a power on the ground of a reservation of an insufficient rent, it is not necessary to show fraud and collusion between the tenant for life and the lessee to prejudice the remainder-man (/•). AVhere a power was given to a tenant for life to lease at the best and most improved yearly rent, so as in every such lease there should not be contained any clause whereby any power or authority should be given to any lessee to commit waste, nor whereby any lessee should be exempted from punishment for committing waste, a clause contained in the lease that the lessor should repair the roof of the mansion house^ and that, in case of default within three months after notice, the lessee might repair, and deduct the charges out of the rent, was held not to vitiate the lease {s). It was urged, that the lessee was exempted from payment of rent to the extent of the money which might be laid ovit by him in re- pairs; but the court held, that there could be no objection to provide for setting off one demand against the other {t) . The execution of successive leases under one bargain, re- serving different rents, will be a fraud upon a power requiring the reservation of the best rent, when the reservation of the same rents would be void if contained in one entire lease {u). This position requires illustration. A power was reserved to tenant for life to lease for any term or number of years, so as such term or number of years should not exceed the term or space of ninety-nine years from the date of executing such lease ; and so as every such lease or leases should be made to (q) Ibid. (0 Ibid. (>•) Wright r. Smith, f) Esp. 20.3. (m) Doe dem. Sutton v. Harvey, 1 («) Doe dem. Bromley v. Bettison, Barn. & Cres. 426 ; S. C. 2 Dow. & 12 East, Snr,. Ry. .58.9. Ch. I. s. IV.] WHO lessors: — donees op tower. 485 take effect either in possession, or immediately after the determination of the leases subsisting thereof respectively ; and so that in every snch lease there should be reserved to be payable dui'ing the continuance of the term and estate thereby to be granted the best and most beneficial yearly rent or rents, to be incident to the immediate reversion of the premises, &c. The donee granted a lease, dated 29th May, 1787, for thirty years from 10th October, 1791, (the day on which former leases of the premises would expire,) at the rent of 202/. lO*. for the first year, and at the yearly rent of 270/. for the residue of the term, which, in the lease, was stated to be the best and most beneficial rent that could reasonably be obtained ; and b}^ another lease, dated 4th June, 1787, but agreed for at the same time as the lease of 29th May, 1787, by the same bargain, and in pursuance of which both leases were executed at the same time, he demised the same premises to the same party for sixty-three years from lOth October, 1821, at the yearly rent of 120/., Avhich in that lease was also stated to be the most beneficial rent. This last lease recited that the messuages had been surveyed, and that the surveyor was of opinion, that it Avould be for the benefit as well of the persons entitled to the premises in reversion, as of the person in possession, that, on or before the expiration of this last lease, the messuages should be rebuilt ; and the lease contained a covenant to rebuild the messuages before the expiration of the term of thirty years, or within the first year of tlie term of sixty-three years. It was admitted, that, if there had not been a covenant to rebuild, the rent of 270/. would have been too high during the term granted by the first lease, and too low during the term granted by the second; but that it was not too low during the second term, because the tenant during that term was to bear the expense of re- building. And it was held, that this way of leasing was a fi'aud on the power; and that, although that mode of measuring the rent might be fair as between lessor and lessee, it was not so as between tenant for life and reversioner, because the rever- sioner would have to bear the whole expense of rebuilding ; 486 OF THE CONTRACTING PARTIES. [Part 111. whereas, if the tenant had been bound to rebuild at an earlier period, part of the expense would have been borne by the tenant for life (cv). If the power require a reservation of the best improved yearly rent, without fine, there can be no objection to the lessee's covenanting to lay out a large sum of money in im- provements, if the rent be, notwithstanding, the best that can be obtained. Such a covenant is not necessarily a fraud. It may be made with a fraudulent intent, and when so made, it will avoid the lease. If it be colourable, and merely for the purpose of putting money into the pocket of the tenant for life, it will avoid the lease ; or if it were not originally in- tended as a fraud, but be afterwards used fraudulently, as in the case of a covenant to repair, and a sum of money, under colour of damages for breach of that covenant, being re- covered by the tenant for life, a court of equity will at least take care that the damages shall be laid out on the lands {y). And where one having a power to lease at the most improved rent agreed to grant a lease at a rent to be estimated at a fair valuation, without reference to improvements made by the lessee, but these improvements were deemed part of the con- sideration for the lease, it was doubted how far such a lease would be consistent with the terms of the power. Prima facie, said Lord Lyndhurst, a rent so reserved is not an im- proved rent ; but here it was stipulated that the improvements should be made by the tenant in consideration of the new lease. It is difficult, therefore, to say, whether that can be considered as an infringement of the power (z) . In a late case (a), a power was reserved to grant leases for a term not exceeding ten years from the day of the date thereof, or seven years from the day of the decease of the douce, so as there should be reserved in such leases the best rent that could be gotten for the same, without taking any (x) Ibifl. (2) Price v. Assheton, 1 Yo. & Col. (y) Shannon v. Bradstrcct, 1 Sclio. V. C. ti2. Ac Lef. 72. And .sec Roc dom. Earl («) Doe dem. Rogers v. Rogers, 5 of Herkcloy v. Artlibisliop of York, (i liarn. & Adol. 755; S. C. 2 Ncv. tSc llast, 86. Man. 550. Ch. I. s. IV.] WHO lessors: — DONEES OF POWER. 487 premium for the making thereof. The donee of the power granted a lease for seven years, to be computed from the day of her decease, at a specified rent, containing a covenant by the lessee to permit the three younger children of the donee, should they desire it, to reside with him after the commence- ment of the term, and to find for them board, lodging, and wearing apparel, during the term, at 7/. a year each, and to provide board, lodging, and wearing apparel, during the term, for the donee's eldest son, without any compensation. All the children had attained twenty-one at the time of the execution of the power. In an action of ejectment, it was contended, on behalf of the plaintiff, that the covenants to maintain the lessor's children were in the nature of a premium, and, therefore, that the lease was void on the face of it; while, for the defendant, it was argued, that it was a question for the jury whether the rent reserved was not the best that could be obtained, and evidence was tendered to prove that the best rent was reserved, without reference to the lessee's covenants; but Mr. Justice Taunton, before whom the cause was tried, being of opinion that the lease was void, as the covenants were in the nature of a premium, rejected the evidence. On motion for a new trial, Parke and Patteson, Justices, held, that, assuming the power to require two conditions, first, that there should be the best rent, and, secondly, that there should be no fine or premium, it did not clearly and incon- trovertibly appear upon the face of the lease that either of the conditions had not been performed ; for, as to the fine or premium, in the ordinary acceptation of those terms, none was taken; and if benefit to the lessor were equivalent to a fine or premium, none appeared ; for it did not necessarily follow that the covenants to support the children were bene- ficial to the mother, the lessor, as all the children were grown up, and bound to maintain themselves ; and after her death she could not be bound to maintain them ; and, as to the rent, it was a question for a jury; and as the existence of the covenants was not conclusive that the best rent was not reserved, they thought that the case ought to go to a 488 or THE CONTKACTING PARTIES. [Part 111. new trial. Mr. Justice Taunton, however, retained his opinion. We have akeady noticed {b), that the reservation of a rent in consideration of an antecedent occupation is not a fraud upon a power of leasing at the best and most improved yearly rent without taking any sum of money or other thing for or in lieu of a fine or income for the same (c). So, again, if, under a power prohibiting the receipt of a fine, a lease be made, the lessee paying two years' rent in advance, secured by the lessor's bond and life insurance, with liberty to retain annually a certain portion of the rent, until the entire amount be repaid, the transaction cannot be im- peached, provided the highest rent be actually reserved {d) . If trustees of leaseholds for years and lives, with a power of leasing without taking any fine, make leases and take fines, in order to provide for futm-e renewals of the trust property, for the benefit of the cestui que trust, the court will pause before it sets aside such leases, particularly if the cestui que trust has gone on for several years adopting the acts of his trustee (e). Where a power was given by marriage articles to tenant for life to lease at the best improved rent without fine, with a fm'ther power enabhng him, with the consent of the trustees, to raise any sum or sums of money for such uses and pur- poses as he should think fit ; and the donee granted a lease in consideration of 300/. paid, and of a yearly rent reserved, the trustee having consented that he should raise the sum of 5000/. by mortgaging all or any part of the estate, or in any other manner he should think fit ; it was held that the lease could not be set aside. Regard being had to the true con- struction of the power to raise money, and the known and long-established usage in Ireland, it was considered that this mode of fining down raight be one way of raising the money; (It) A)it(!, p. 47o, et spq. Beat. 32:5. (c) Isherwood v. Oldknow, 3 Man. («) Bowes v. East London Water- & Sclw. 382. works Company, Jacob, 324. 327 ; S. C. (d) O'Brien v. Gricrson, 2 Ball & 3 Madd. 37.'5. " Ch. I. s. IV.] WHO lessors: — donees of power. 489 and that the tenant for life was clearly warranted in so raising it as well as by any other means (/). It would appear, that if a power of leasing require the best rent that can be reasonably got to be reserved, payable during the term, the absence of a covenant for payment of the rent wiU -sitiate the lease ; for, under a mere reservation, it cannot be paid till entr}^ of the lessee ; and, therefore, in fact, may never be payable during the term {g) . In the case of White v. Pike (h), a power Avas contained in a settlement for the several tenants for life, when they should respectively become seised in possession, to demise or lease the lands of Rathenny, [and certain other denominations,] for any term not exceeding ninety-one years or three lives in possession or reversion, so as no such lease should be made to continue for a longer term than ninety-one years or three lives from the making thereof; and also to demise or let [the rest of the settled lands, describing them,] for any term not exceeding three lives, or for any term of years not exceed- ing thu'ty-one years, or for thirty-one years determinable upon one, two, or three lives, in possession, and not in rever- sion, remainder, or expectancy; so as every such lease should be made by indenture, and not by deed-poll ; and so as upon every such lease there should be reserved, and made payable, during the continuance thereof respectively, the most and best yearly rent that could be reasonably had and obtained for the same at the time of making thereof, without taking any sum or sums of mone}^, or other thing, by way of fine or income for or in respect of such lease or leases; and so as none of such leases should be made dispunishable of waste by any express words therein; and so as in every such lease there should be reserved a clause of re-entry for nonpajTuent of the rent or rents to be thereby respectively reserved; and so as the lessee or lessees to Avhom such lease or leases should (/) Ward V. Hartpole, 3 Bli. P. C. Sealy, 1 Ale. & Nap. 35.0. 470. (A) White deni. Earl of Howth v. (g) Taylor dem. Atkyus v. Horde, Pike, Cooke & Ale. 42. 1 Burr. 125. Nugent dora. Atkins v. 490 or THE CONTRACTING PARTIES. [Part III. be made should seal and deliver counterparts of such lease and leases respectively. It was contended, that the clause in the power requiring the best yearly rent to be reserved did not extend to leases in reversion; but the court were of a different opinion, one circumstance evincing beyond any reasonable doubt the intention of the parties that the clause applied to leases in reversion, and that was, that the same clause which required the best improved rent to be reserved, also required that the leases should not be made dispunish- able of waste; that clauses for re-entry on nonpayment of the rent should be contained in them, and that the lessees should seal and deliver counterparts ; they said that there could be no reason assigned for confining these requisitions to leases in possession, and they could not be extended to leases in reversion, without extending to them also the reservation of the best improved yearly rent. And as to an argument that the ascertainment of the rent would be rendered difficult by this construction in the case of leases in reversion, they said, that it was not well founded, because the best improved rent required to be reserved was not that which could be obtained at the time of the commencement of the lease in possession, but at the time of making the lease which was to commence in possession at a future time. Whether the ancient or best rent be reserved, the amount must be specified in terms, or be reducible to a certainty. Thus, the reservation may be of so much per acre, for such number of acres as the lands shall upon a sm'vey be found to contain (i). So, where a power was reserved by a settlement to make leases of lands anciently demised, reserving at least IZs. for every Cheshire acre, it was held, that a lease reser\dng all the rent intended to be reserved was a valid execution of the power, as the reservation intended by the power did not depend upon uncertain evidence, but might at all times be ascertained by admeasurement {k). (i) Shannon v. Bradstrcct, 1 Scho. cited in Orby v. Mohun, Gilb. Eq. Rep. & Lef. 7.3. 49; and 3 Rep. in Ch. 110, (k) Lawson, or Lcwson, i-. Piggot, Cii. I. s. IV.] WHO lessors: DONEES OF POWER. 491 Where a lease was made iu pursuance of a power, reserving yearly so much rent as amounted to two parts in three of the yearly value of the premises, according to the best improved value, it was held, that, unless proof could be made of a greater value than the sum of 290/., which had constantly been paid by the defendant, and accepted by the plaintifl', that sum must be taken as two parts of the full value of the premises at the time of making the lease; and that that sum, or the greater value, if so proved, was to continue to be paid, whether the premises should rise or fall in value (/). But it is not safe to adopt, in the reservation, the words of the power, unless they point out with certainty, either by express words, or by reference to some fixed standard, the actual amount of rent. A tenant for life, with power to make leases of all or any of the lands anciently and accustomably demised, whereof fines had been usually taken, reserving the ancient usual and accustomable rents, or more ; and of all the other lands, reserving the best and most improved rents that could be got, made two leases ; and, by the first, demised to the plaintiff's all the several messuages and lands comprised in the indenture of settlement which had been usually letten, and fines taken for the same, or that were within the compass of the proviso, rendering yearly, at the times and days therein mentioned, the several old and accustomed rents for the same, according to the intent of the said proviso; and, by the second, he demised all other messuages, lands, and premises, &c., whereof there were no leases for years or lives in being, and for wliich no fines were formerly taken, reserAdng thereon the best improved rents and value thereof, without specifying what those rents were. The case received the greatest con- sideration, the two chief Justices, Trevor and Holt, having lent their assistance to the Lord Keeper; and it was determined by the Lord Keeper and L. C. J. Trevor, in opposition to the opinion of L. C. J. Holt, that the first lease could not be supported ; first, because of the generahty and uncertainty of {I) Audley v. Audley, 2 Rep. in Ch. 156. 492 OF THE CONTRACTING PARTIES. [Part III. tbe reservation ; and, secondly, on account of the difficulties which the remainder-man would have to encounter in avowing for and recovering the rent. The second was universally admitted to be void on the ground of uncertainty, the counsel for the lessee gi\dng up the point {m) ; and the decree was affirmed by the House of Lords after a lapse of twenty years [n). Under a power to lease at such rent as the donee shall think fit, a nominal rent may be reserved (o) ; or the donee may make a lease without reserving any rent whatever {p) . If the power prescribe that the rent be reserved payable in gold, a reservation in silver will not do {q) ; though a mere variation in terms will make no difference, if the quality, value, and nature, of the thing reserved be the same ; as if eight bushels of wheat be reserved, where the power requires a reservation of a quarter (r) . "With respect to the reversioner for the time being, the modes of reserving rent in leases under powers are various. It may be reserved to the lessor, and the person or persons who for the time being shall be entitled to the reversion of the premises under the limitations contained in the deed or will creating the power; or it may be reserved generally during the term. The latter is the preferable mode, as the law will appropriate the rent to the person from time to time entitled to it {s) . It is not unusual to find the reservation to the lessor and his heirs, or to him, his heirs and assigns, during the term; but these, though unskilful, are not inopera- tive modes ; as the courts interpret such words by the prior title, and apply them to the person entitled under the will or settlement to the estate in remainder or reversion, and not (m) Orby v. Mohun, 2 Vern. 531. (o) Muskerry w. Chinnery, Lloyd & .542; S. C. Prcc. Cli. 257; Gilb. Eq. Goo. temp. Sugd. C. 185. 225, Rep. 45; 3 Rep. in Ch. 102; Freeni. (p) Talbot v. Tipper, Skin. 427. Ch. 291; 1 Eq. Ca. Ab. 343. pi. 5; l(i (y) Mountjoy's case, 5 Co. 5, b.,5th Vin. Ab. 473. pi. 5. Gilbert's report resolution. Orby v. Molnni, Gilb. Eq. J8 the best. Rep. fiO; 3 Rep. in Ch. 13!). (w) Duchess of Hamilton v. Mor- (r) lljid. damit, 3 Bro. P. C. 248; Toml. ed. (a) Whitlock's case, 8 Co. 71, a. vol. 6, p. 145. Sachcvcrell r. Froggivtt, 2 Saund. 367. Ch. I. s. IV.] WHO lessors: DONEES OF POWER. 493 to the heir of the lessor, unless he happen to be remainder- man or reversioner (/) . In all such cases, the words used are to be interpreted according to the title when the instru- ment is executed (w) . And in a late case {x), Avliere lands were settled to the use of trustees for 1000 years, with remainder to B. for life, with remainder to other trustees for 2000 years, with remainder to C. for life, with power of leasing, it was held, that the trustees of the term of 1000 years might distrain for rent due by a lessee coming in under an exercise of the power, altliough the rent was reserved to the person or persons who for the time being should be entitled to the freehold or inheritance of the demised premises expectant on the decease of C; for, though they were not entitled to an estate of freehold or inheritance in tlie technical sense of those terms, yet the reservation was not to be so confined; but that if they were entitled to the rent, the reservation was sufficient to give them the legal interest therein, 7. As to the right of re-entry on nonpayment of rent, &c. Almost all powers of leasing provide, though in various terms, for the insertion in the lease of a clause to authorise the lessor to re-enter on nonpayment of rent ; sometimes on nonpayment for a specified number of days ; at others, in general terms ; and occasionally the provision is altogether omitted from the power. Where the power limits the period of indulgence to be allowed to the lessee, it is apprehended that an extension of it would prove a valid objection to the lease {y). (t) Whitlock's case, 8 Co. 69, b., dix, (P). Isherwood v. Oldknow, 3 2nd resolution. Berry v. White, O. Mau. & Selw. 382. Jackson v. Innes, Bridgm. by Bann. 104. 1 Co. 139, a. 1 Bli. P. C. 115. Sands v. Ledger, 2 Hotleyv. Scott, Lofft, 316; S. C, nom. Ld. Raym. 792. Rogers v. Hum- Lord Tankerville v. Wingfield, 7 Pri, phreys, 4 Adol. & Ell. 299 ; S. C. 1 343, n.; 2 Brod. & Bing. 498; 5 J. B. Harr. & Wol. 62.5. Hosier, or Hozier, Mo. 346; S. C. recognised by Ashhurst, r. Powell, 1 Longf. & Towns. 2; S. C. J.junder the name of Sir John Astlcy's 3 Irish Law Rep. 395. Leases, Dongl. 572. 3 Mau. & Selw. (m) Ibid. 386. Campbell r. Leach, Ambl. 740. (x) Rogers v. Humphreys, 4 Adol. 746, 6th point. Basset v. Basset, & Ell. 299; S. C. 1 Har. & Wol. 625. Ambl., 2nd ed. by Blunt, 843, Appen- (//) Doe dem. Earl of Jersey r. 494- OF THE CONTRACTING PARTIES. [Part III. But it appears that an abridgment of tlie period would not have the same effect. In Coxe v. Day [z], the power specified twenty-one days as the limit of indulgence, and in the lease the right of re-entry was made to accrue in twenty days, but no exception was taken to it on that ground. In Doe dem. Vaughan v. Meyler [a), where the power required a clause of re-entry for nonpayment of the rent for twenty-one days, and the lease was granted with a clause of re-entry in case of non- payment for fifteen days, and no sufficient distress, it was admitted that the power was badly exercised. But in a late case [b], where a power was given to a tenant for life to lease such parts of an estate as had been anciently demised, so as the ancient and accustomed yearly rent and reservations were thereby reserved; all and every of such leases being from time to time made and granted in the same manner and form, and with and under such and the like reservations, restrictions, covenants, conditions, and agreements, as were usually and customarily contained in leases of the same kind in the several and respective parishes and places where the same premises were situated ; and in the lease last preceding the one made under the power a right of re-entry was reserved in case the rent should be in arrear for twenty-one days ; while that under the power gave the right of re-entry after twenty days ; the court did not consider the lease objection- able on that ground, as the latter provision was more beneficial to the remainder-man. Sometimes, as before observed, the power requires that the lease shall contain a clause for re-entry on nonpayment of rent, without referring to any particular time at which the right is to accrue : and it was formerly a question, whether the donee was obliged strictly to reserve the right of re-entry immediately on default in payment by the lessee, or whether Smith, 7 Pri. .320; S.C. K. B. 5 Mau. (2) Coxe v. Day, 13 East, 118. & Selw. 4G7; in Exch. Cliamb. 7 Pri. (a) Doe dem. Vaughan v. Meyler, 281 ; 1 Brod. & Bing. f)7 ; 3 J. B. Mo. 2 Mau. & Selw. 276. .'5.3.0; in House of Lords, 7 Pri. :'.7f); 2 (Jj) Doe dem. Douglas v. Lock, 2 Brod. Hi. Bing. 473; T) .J. B. Mo. 332; Adol & Ell. 70.'). 741 ; S. C. 4 Nov. & 3 Bli. 2f)0. Man. !!()/. Ch. I. s.iV] WHO lessors: — donees of power. 495 lie might be allowed a period of indulgence ; and, if any, of what duration. In the case of Jones v. Verney (c), where there was a power of leasing, so as in every such lease there should be contained a condition of re-entry for nonpayment of rent, and the pro- Adsion in the lease was for re-entry on nonpayment of the rent in forty-two days after the days of payment, the judgment of the court rested on another ground; and as no objection was taken to the lease on account of its containing the qualified proviso for re-entry, it is submitted that no great importance can be attached to the case as an authority on either side. But the point was settled after the most laborious argument and mature deliberation in the long-contested Jersey case, which was first determined in the covu't of King's Bench {d) ; thence carried on appeal to the Exchequer Chamber (e) ; and finally received the adjudication of the House of Lords (/) ; where the judgment of the coiu't of King's Bench was affirmed, and that of the Exchequer Chamber reversed. An attempt, therefore, to supply the reader with a succinct statement of the facts, and of the arguments and opinions of the legal dignitaries who sat in judgment on the case, can requii'e no apology, particularly as the decision has propounded a most important rule, not only tending to the establishment of numerous leases depending on similar circumstances, but, what is equally to be considered, furnishing a guide to the future conduct of the practitioner. The facts of the case, set out on special verdict, were as follow : — Lady Louisa Barbara Mansel, being tenant for life of the premises in question, under her father's will, with divers remainders over, with a general power of revocation and new appointment, by her marriage settlement of the 2nd of July, 1757, having exercised the power of revocation, settled the (e) Jones dem. Cowper v. Verney, Brod. & Bing. 97; 3 J. B. JIo. 339; Willes, 169. Easter Tei-m, 1819. (d) Doe dem. Eai-1 of Jersey v. (/) Smith r. Doe dem. Earl of Jer- Smith, 5 Mau.-& Selw. 467; Mich. soy, 7 Pri. 379; S. C. 2 Brod. & Bmg. Terai, 1816. 473; 5 J. B. Mo. 332 ; 3 BH. P. C. 290; (f) Same name, 7 Pri. 281 ; S. C. 1 a.d. 1821. 496 OF THE CONTRACTING PARTIES. [Part III. same^ after the solemnization of the intended marriage, to the use of George Venables Vernon, the younger, afterwards Lord Vernon, for life, with remainder to the use of herself for life, with various remainders over ; and the settlement contained a proviso in the words following : — " ProA-ided (&c.), that it shall and may be lawful to and for " the said George Venables Vernon, and Louisa Barbara " Mansel, his intended wife, from time to time, during their " respective lives, when and as they shall respectively be in " possession of, or entitled to the perception of the rents and " profits of, the manors, messuages, lands, hereditaments, and '' premises, so limited to them for their respective lives as '^ aforesaid, by indenture or indentures under their respective " hands and seals, attested, &c., to demise, lease, or grant, '*■ such part or parts of the said manors, messuages, lands, " tenements, and hereditaments, or parts or shares of manors, " messuages, lands, tenements, hereditaments, and premises, " whereof they shall be so respectively in possession, or enti- " tied to the perception of the rents and profits as aforesaid, " as are now leased for life or lives, or for years determinable " on the dropping of a life or lives, to any person or persons " in possession or reversion for one, two, or three lives, or for ^' any number of years, determinable on the dropping of one, " two, or three lives, so as there be not on any part or parcel of " the same premises to be demised, leased, or granted, respec- " tively for a life or lives, or for years determinable on the " dropping of a life or lives, as before mentioned, any greater " estate or interest subsisting at any one time than what will '' wear out or be determinable on the dropping of three lives ; " and so as on every respective lease, demise, or grant, for a " life or lives, or for years determinable on the dropping of a " life or lives, there be reserved and made payable, during " the continuance of the estates and interests thereby to be " demised, leased, or granted respectively, the ancient and " accustomed yearly rents, duties, and services, or more, as '' now are or at the time of demising or granting the premises " so to 1)0 demised, leased, or granted respectively, were Cii. I. s. IV.] WHO lessors: — donees oi' power. 497 " reserved or made payable for or in respect of the same pre- " mises respectively, or a just proportion of such ancient or " the present reserved rents, duties, and serAaces, or more, " according to the value of the premises so to be demised, " leased, or granted respectively, (except heriots, which shall " or may be varied, altered, or compounded for, according to " the will and pleasure of the said George Venables Vernor " and Louisa Barbara Mansel); all such rents, duties, and " services respectively, to be incident to, and go along with, " the reversion and remainder of the same premises expectant " on the determination of the said respective demises, leases, " and grants thereof; and so as there be contained in every " such lease a power of re-entry for nonpayment of the rent " thereby to be reserved ; and so as the respective lessees to " whom such lease or leases shall be made as aforesaid be " not by any express clause to be contained in any such leases " respectively freed from impeachment of waste ; and so as " the said respective lessee or lessees to whom any such lease " or leases shall be made respectively as aforesaid doth and " do seal and deliver a counterpart or counterparts of such " lease or leases respectively : " And also by indenture or indentures, under their respec- " tive hands and seals, attested as aforesaid, to demise, lease, " or grant, all or any of the said manors, messuages, lands, '^ tenements, hereditaments, and premises, so limited to them " George Venables Vernon and Louisa Barbara Mansel for " their respective lives, for any term or number of years abso- " lute not exceeding twenty-one years, to take effect in pos- " session, and not in reversion or by way of future interest ; " so as upon every such lease for an absolute term not exceed- " ing twenty-one years there be reserved and made payable " during; the continuance of such lease or leases so much or " as great and beneficial yearly and other rent and rents, and " other services, proportionally, as now is and are therefore " paid and yielded, or the best or most improved yearly rent " and rents that can be reasonably had or obtained for the " same, without taking any fine, premium, or fore-gift, or any VOL. I. K K 498 OF THE CONTRACTING PARTIES. [Paut III, " thing in the natm'e of or in lieu thereof, to be incident to " and go along with the reversion and remainder of the same " premises, expectant on the determination of the said respec- " tive leases ; and so as the respective lessees to whom any " such lease or leases shall be made respectively as aforesaid, " be not expressly freed from waste ; and do seal and deliver " counterparts of such leases respectively; and so as in every " such lease for any term of years absolute respectively there " be contained a clause of re-entry in case the rent or rents " thereupon to be reserved be behind or unpaid by the space " of twenty-eight days after the times thereby respectively " appointed for payment thereof : " And also by indenture or indentures, under their respective " hands and seals, attested as aforesaid, to demise, lease, " and grant, all or any part of the lands, hereditaments, and " premises, so limited to them the said George Venables Ver- " non and Louisa Barbara Mansel for their respective lives " as aforesaid, wherein or whereupon any mine or mines " now is or are open, or wherein or whereon any person or " persons shall be wilhng to open any mine or mines, sough " or soughs, or other thing or things whatsoever, which may " be requisite and necessary for the digging and getting of " lead or copper-ore or any metal or mineral whatsoever, " unto any person or persons, for any term or number of " years not exceeding thirty-one years, to take effect in pos- " session, and not in reversion or by way of future interest ; " and so as upon every such lease for an absolute term not " exceeding thirty-one years there be reserved and made pay- " able during the continuance of such lease or leases such " part or share of the lead, copper ore, coal, and other pro- " ducc, to be gotten from the said mines, or such yearly rent " or income in respect thereof, as can reasonably be had or " obtained for the same, without taking any fine, premium, " or fore-gift, or anything in the nature or in lieu thereof, to " be incident to and go along with the reversion and remain- " dcr of the said premises, expectant on the determination of " the said res])ectivc leases ; and so as &c., [as Ijcfore] ; and Ch. I. s. IV.] WHO lessors: — donees of power. 499 " so as there be also inserted such proper and usual covenants " for the effectually winning and working the said mines, " and smelting the ore, and doing all other proper and " necessary acts, as are usually inserted in leases of the like " nature." It was found by the verdict, that, at the date of the settle- ment, and after, until the surrender of an existing lease at the making of the lease of 1803, on which the point in the case arose, the premises in question had been and were leased and were under and subject to a lease to certain per- sons for a term of years determinable on the lives of three persons : it was further found, that Lord Vernon, after the marriage, on the 5th of September, 1803, in consideration of the sm-render of the existing lease, and of 105/., and of the yearly rents, duties, payments, services, articles, covenants, provisoes, and agreements, thereinafter specified, demised the premises for ninety-nine years, if the lessees and J. S. or either of them should so long Kve, at the yearly rent of 2/., payable at Michaelmas and Lady-day by equal portions, toge- ther with one couple of fat capons on the 1st of January yearly dming the term, or the sum of Is. 6d. in heu thereof, at the election and choice of the said Lord Vernon, his heii's or assigns, or the owner of the inheritance, and also an heriot of the best beast, or 40^. in lieu thereof, at the like election, &c., upon the death of every tenant dying in possession, and the like upon every assignment, sale, forfeiture, or alienation ; and the lessees also yielding and doing constant suit of mill : and it was further found, that the lease con- tained a proviso for re-entry in the following words : " Pro- vided always, that if it shall happen at any time during " the estate hereby granted, that the said yearly rent or sum " of two pounds, and every or any of the duties, services, re- " servations, and payments, hereby reserved, or any part " thereof, shall be behind, unpaid, or undone, in part or in " all, by the space of 13 days next over or after any or either " of the days or times whereat or whereupon the same ought " to be paid, done, or performed, as aforesaid, and no suffi- K K 2 5U0 OF THE CONTRACTING PARTIES. [Part 111. " cient distress or distresses can or may be had and taken "upon the said premises^ whereby the same and all arrear- " ages thereof (if any be) may be fully raised, levied, and " paid j" (or if the lessees do not repair within six months " after notice ; or do commit waste, or grind their corn at " any other mill, or assign without licence ;) " or if any default " shall be by them the lessees, their executors, administra- " tors, or assigns, made in the payment or performance of all " or any of the [omitting the word rents\ reservations, cove- " nants, and agreements, hereinbefore on their parts con- " tained, then and from thenceforth, in all, or any, or either " of the said cases, it shall and may be lawful to and for the " said George Lord Vernon, his heirs and assigns, and the " person and persons to whom the freehold or inheritance of " the premises shall as aforesaid belong, into and upon the " said premises hereby demised, and into every part and parcel " thereof, wholly to re-enter, and the same to have, hold, " retain, possess, and enjoy, as in his and their former and " proper estate, against [the lessees] their executors, admi- " nistrators, or assigns ; these presents or anything herein " contained to the contrary thereof in any wise notwith- " standing." The verdict further found, that the usual and accustomed form of leases of the estate contained in the marriage settle- ment of 2nd July, 1757, for lives or years determinable on lives, as well prior as subsequent to that settlement, was with a conditional proviso of re-entry similar to that in the inden- ture of 5th September, 1803. When the case first came before the com-t of King's Bench, two points were made for the plaintiff; the first, that the lease of the 5th of September, 1 803, was not a valid lease under the power given by the marriage settlement of Lord and Lady Vernon ; and the second, that evidence ought not to have been received as to what had been the form of other leases of the estates contained in the said marriage settle- ment ; and that the finding as to what had been the usual and accustomed form of other leases was wholly irrelevant. And, Ch. I. S. iV.] WHO lessors:— DONEES OF POWER. 501 under the first point, the lease was said to be void: — 1 , because the re-entry was restrained for fifteen days after the day of payment; and, 2, because it was restrained by a condition that a sufficient distress could not be had on the premises. For the present we may confine our attention to the objection taken on the ground of the fifteen days' forbearance being given to the lessee. In giving judgment on the case, the court of King's Bench observed, that the leasing power said, that the lease must contain a power of re-entry for non-pay- ment of rent, not 07i non-payment of rent, nor to be exercised immediately upon the occurring of that default : that it was silent as to the time when it should be carried into effect ; and being so silent, why should it not, (they asked,) in virtue of such silence, be intended that the creator of the power thought it enough to require that there should be some rea- sonable power of re-entry for non-payment of rent upon ever}'^ lease, leaving it to the discretion of the person by Avhom it should be granted to prescribe when and under what circum- stances that power of re-entry should in each particular case be enforced. On appeal to the Exchequer Chamber, Barons Garrow, Wood, and Graham, supported the lease, Avhile Justices Burrough and Park, Richards, L. C. B,, and Dallas, L. C. J. C. P., denied its validity. When the case came before the House of Lords, five judges, Dallas, L. C. J. C. P., and Justices Park, Hokoyd, Burrough, and Richardson, were opposed to the lease : but Lord Eldon, C, Lord Eedesdale, Abbott, L. C. J. K. B., Richards, L. C. B., who changed the opinion he had previously held in the Ex- chequer Chamber, Barons Graham, Wood, and Garrow, and Justices Bayley and Best, were in its favor. The chief grounds on which the judges who were opposed to the lease rested their opinion were : That the words of the power contained a clear and specific meaning, wanting no explanation, that the lease should con- tain a pure" and simple clause of re-entry, and that a clause with a qualification of fifteen days' forbearance was more 502 OF THE CONTRACTING PARTIES, [Part 111. prejudicial to the lessor, than a mere clause of re-entry on non-payment of rent [g] : That the circumstance of the power requiring, in the case of leases not exceeding twenty-one years, a clause of re-entry with an indulgence of twenty-eight days, afforded an irre- sistible argument for excluding any such qualification from the power in question {h) : That no discretion was to be allowed to the lessor, the very intent of the power in prescribing the requisites being to pro- tect the several remainder-men from the discretion of the tenant for life in the exercise of the power [i] : That what on the other side was termed a reasonable exe- cution of the power could not be sanctioned, on account of the impracticability of ascertaining the reasonableness of the execution ; for it was not shown by whom the reasonableness was to be determined, whether by the parties to the deed, or a court, or jury ; nor by what definite rule they were to be guided in judging of its being reasonable {k) : That there was no difi'erence between the power prescribing a re-entry on non-payment of rent, or for non-payment of rent ; for although it was true that the word /or often imported the purpose or object, and so it might be in the case in question if the words had been " a power of re-entry for payment of the rent;" yet that the same word /or as often imported the cause or occasion of that which was predicated ; and that the words in the case in question must be taken to signify the same as either, " because of," " by reason of," " on account of," or " in case of," non-payment, meaning, when that event occurred, and being the same, therefore, as if the words were " on non-payment of rent" (1) : That the former leases were inadmissible in evidence. And they contrasted the different parts of the power to show that some parts referred to a pre-existing state of the property and to cases of former leases ; but that there was nothing in the (-/) 7 Pri. 308. 313. 367-8. 380. 417. (t) 7 Pri. 415. (h) 7 Pri. ."JOO. 314. 300. 370. 384. (k) 7 Pri. 309. 371. 430.444.491-2. I'Jl. 431. 490. (/) 7 Pri. .382. 41(). 494. Ch.i.s.iv.] who lessors: — donees of power. 503 proviso ill question which admitted of a reference to siicli leases (tn) . In answer to an argument, that the general clause for re- entry inserted in the lease in question was sufl&cient to satisfy the requisition of the power, it was said, that the word rents seemed to have been purposely omitted from that clause; that it coidd not be taken that the parties meant it to apply to a case which was before fully provided for according to the requisitions iu the powers {ii) : and that it was a maxim that a subsequent general clause could not affect a preceding spe- cial clause (o). On the other hand, the judges who argued in favor of the leases, m'ged, as their principal reasons : That as the terms of the requisition in the settlement were that there should be contained in the leases a power, which they held to be equivalent to some power, indefinitely, of re- entry for non-payment of rent, and as iu the lease a power of re-entry for non-payment of rent was reserved, there was a literal compliance with the terms of the power [p] : That the power was /or non-payment, not on non-payment. That the latter word might perhaps have been considered as having reference to the time of the accrual of the right of re-entry, (if that had been the word used ;) but that the word for must be taken to be used solely with reference to the occa- sion on W'hich it was to be given {q): That the donor of the power intended no more than that it should be substantially and reasonably exercised ; and, with regard to the power requiring twenty-eight days^ indulgence in leases at rack rents, that the omission to limit a time for payment iu the power in question was evidence of his inten- tion to leave it to the discretion of the donee to insert such a reasonable power of re-entry as should secure the payment of the rent to the reversioner (r): (m) 7 Pri. 306. 317. 319. 3-20. 376. (^j) 7 Pri. 445-6. 456. 460. 470. 519. 383, 403. 413. 439. 489. (q) 7 Pri. 461. 470. (to) 7 Pri. 311. ((•) 7 Pri. 304. 319. 320. 457. 525 (o) 7 Pri. 316. 378. 422. 504 OF THE CONTRACTING PARTIES. [Paux III. That fifteen days were a reasonable time, because in the next power twenty-eight days were allowed {s) : indeed, that it might have been doubted whether the lease would not have been void for unreasonableness if the days of grace had not been allowed {t): That no question could arise on the ground of reasonable- ness, as the law would judge of the reasonableness of the execution of the power, where no specific terms were expressed, as it would judge of the operation of the power itself (u) ; and that courts of law were sometimes required by the legislature to discover and decide questions upon the reasonable execu- tion of powers ; as in the case of the general inclosure act [x), where a rector or vicar is enabled to lease his allotment under certain restrictions mentioned in the act, and amongst others, under a restriction " that there be inserted in the lease power of re-entry on non-payment of the rent or rents to be thereby reserved within a reasonable time, to be therein limited, after the same shall become due" {y) : That the practice of the court of Chancery, the Chancellor being a judge both of law and equity, was to be considered in ascertaining the legal construction of the language of the power, and its legal efi'ect; that practice being to allow a reasonable number of days by way of indulgence to the tenant : that in the event of a question coming before the cornet on a bill for a specific performance of an agreement to grant a lease under such a leasing power as the one in question, the Chan- cellor would, in pursuance of the established practice of his predecessors, direct the lease to be made with a power of re- cntiy, worded as the clause in question was, giving the tenant an extension of the time within which he must pay the rent {z): That the practice of conveyancers, which was in harmony with that of tlie court of Chancery, was entitled to great weight («): (n) Ibi.l. (.r) 41 Geo. 3. c. 109. s. 38. (0 7 Pri. I.OO. .51«, per Lord Eldon, (i/) 7 Pri. 501. and Bayley, J. (z) 7 Pri. .511. 512. 520. 527. (m) 7 Pri, 319. 320. .'{.-J}!. 501. (a) 7 Pri. 476-7. 509. 523-4. Cii. I. s. IV.] WHO lessors: — donees of power. 505 That as the power was iu terms so general that nothing could be extracted from them, it must necessarily refer to something extrinsic; and, thereforCj that reference to the former leases was justifiable as a criterion for the rents and covenants to be inserted in the new leases {b) . The Uke point arose in the case of Doe v. Wilson (c), and received the Hke adjudication. The power of leasing pre- scribed, in general terms, that in every lease there should be contained a condition of re-entry for non-payment of the rent thereby reserved ; and the lease provided for a right of re-entry in case the rent should be unpaid by the space of twenty-eight days. Former leases of the premises had contained a similar provision. And the court, adhering to the decision in Doe V. Smith, determined that the lease was not objectionable on that ground. And a very recent case (f/), where, under a similar power, the right of re-entry was not reserved until default in payment for forty-two days, is to the same effect. Hence it appears, that, where a power requires, in general terms, that the lease shall contain a clause of re-entry on non- payment of rent, the donee is invested with a discretionary power of fixing the time of re-entry ; that tliis discretion is best exercised by adopting the term specified in former leases, where such leases exist ; that such leases are admissible in evidence for the purpose of showing the conformity ; and that, in the absence of previous leases, a reasonable time of indul- gence may be allowed, consistently Avith the ordinary practice of conveyancers, and of the court of Chancery. What may be deemed the extreme limit of such reasonable indulgence is not determined: fifteen daj's were allowed in Doe v. Smith (e); twenty-eight, in Doe v. Wilson (/) ; while in Doe. dem. Wythe (6) 7 Pri. 303. 337. 349. 448. 458. Doe dcra. Wythe, 5 Mees. & Wei. 688; 473. 516. 518. 530. aud aftei-wai'ds in the House of Lords, (c) Doe dem. Earl of Shrewsbm*y r. 12 Mees. & Wei. 355 ; aiid 10 Cla. & Wilson, 5 Bam. & Aid. 363, 4th point. Fin. 419. The judgment of the courts (d) Doe dem. Wythe v. Rutland, 2 below on this point was not reversed. Mees. & Wei. 661 ; S. C. Mur. & Hurl. (t) Sup. p. 495. 245; S. C, in error, nom. Rutland i'. (/) Supra. 506 OF THE CONTRACTING PARTIES. [Part 111. V. Rutland {g), an indulgence of forty-two days was considered reasonable, the court observing that it was a reasonable time, for every one knew that forty-two days was such a portion of time as it was usual for a tenant to be allowed to pay his rent after it became due; thoiigh they held that, if, under the pretence of complying with the power in terms, the clause were of such a nature as to make the proviso for re-entry in effect wholly nugatory, the power would be contravened. Where a power of leasing required that in every lease to be granted by virtue of it there should be contained the usual and reasonable covenants, and a condition of re-entry for non- pajnnent of the rent thereby reserved, in case the same should be behind or unpaid by the space of twenty-one days, and for non-performance of the covenants therein to be contained, it was held, that a lease granted by the donee which contained a general covenant by the lessee to repair, and a proviso for re-entry in case the lessee should suffer the premises to run to decay, and should not sufficiently repair the same within six calendar months after notice, could not be supported as a due compliance with the power (A) . The right of re-entry reserved in the lease is sometimes made conditional on the event of a sufficient distress not being found upon the premises ; or on the circumstance of the rent being previously demanded. The effect of such qualifications, where they are not prescribed by the power, remains to be seen. It may be gleaned from the case of Hotley v. Scott (i), that Lord Mansfield was of opinion that a power of leasing, " so as in each lease there be a clause of re-entry if the rent be unpaid for twenty-one days,^' was not badly exercised, although the lease prescribed that the rent should be first lawfully de- (fj) Sup. p. 505. And the term of a note of the same case taken by Mr. infliilgenco in Jones dem. Cowpcr v. Butler, under the name of Lord Tan- Verney, Willes, 10"!), was also forty-two kerville v. Wingficld, 5 J. B. Mo. 346, days. n.; and 1 Brod. & Bing. 150, and 7 (A) Doc dein. Lord Egrcniont v. Pri. .'54;5, n. The report by LofFt is IJurrough, (i Q,. B. 229. scarcely intelligible. And see 7 Pri. (/) Hotley v. .Scott, L(»fft, I'.IG. Sec 410. Ch. I. S. IV.l WHO LESSORS : DONEES OF POWER. 507 mauded, and no sufficient distress should be found on the premises. But in the later case of Coxe v. Day {Ic), where there was a power of leasing " so as in every such lease there be con- tained a condition of re-entry for non-payment of the rent reserved by the space of twenty-one days/' and a lease was granted, with a proviso for re-entry in case the rent should be unpaid by the space of twenty days, &c., being lawfully de- manded, and no sufficient distress could be found upon the premises ; it was held that the proviso was not in conformity with the power. Here, however, it is observable, that the execution of the power differed in three particulars from the terms of the power itself; 1st, in the cii'cumstance of the twenty-one days prescribed by it being reduced to twenty; though this circum- stance was not noticed either by the court or counsel ; ^ndly, in the requisition of a demand of rent; and 3rdly, in the quali- fication respecting the distress. As the point came before the court on a case directed by the Master of the Rolls, the reasons of the decision are not given. It is, therefore, impossible to say what weight was attached to the first two circumstances ; but Lord Ellenborough evidently thought that the lease would have been void on the last ground ; for, during the argument, his lordship said, that there could be no doubt that it was more beneficial to the owner of the estate to have a power of re-entry at once upon the tenant upon non-payment of the rent within a certain time, than to have such a power only in case there should be no sufficient distress upon the premises from time to time as the rent should fall in arrear ; and that the rent, in the one case, was to be secured from time to time by successive suits, with the risk of sui'eties if the dis- tress should be replevied, while in the other, it was secui*ed (Jc) Coxo -y. Day, 13 East, 118. See and Graham, B., said that Hotley v. also Doe dem. Vaughan v. Meyler, 2 Scott and Coxe v. Day were directly Mau. & Selw. 276. In the case of Doe at variance, 7 Pri. 343-4. 375. 466. dem. Jersey v: Smith, next noticed, 484 . 508. Lord Eldon, L. C. J., Dallas, C. P., 508 OF THE CONTRACTING PARTIES. [Part 111. once for all by the landlord's repossessing himself of the land out of which the rent was derived. It is^ moreover, observable that the case of Hotley v. Scott was not referred to. In this state of the authorities arose the great case of Doe dem. Earl of Jersey v. Smith, the particulars of which have already been very fully set out. On reference (/), it will be seen, that it was one of the terms of the power of leasing, that " there should be contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved," and that the lease in dispute contained a proviso for re-entry if the rent should be unpaid by the space of fifteen days after the same ought to be paid, " and no sufficient distress or dis- tresses could be had upon the premises whereby the same might be fully paid." The lease was objected to on the ground of the clause of re-entry being a departure from the power, not only, as we have seen (m), because the lessee was allowed fifteen days' indulgence for payment of his rent ; but on account also of the right of re-entry being made dependent on the insufficiency of distress. The judges were diAdded in opinion upon this point, as upon the point of indulgence; but as much of the general reasoning upon the latter, already noticed, is applicable to the former, it will not be necessary to repeat it. On the one hand, the power was held to have been badly exercised, as the qualification of the distress was a clog or impediment prejudicial to the inheritance; and the case of Rees v. King (w), where a person was nonsuited in an ejectment on account of his omission to search every part of the demised premises for distrainablc property, was urged as a practical exhibition of the prejudice the reversioner might sustain (o) ; and the cases of Coxe v. Day (/>), and Doe dem. Vaughan v. Meyler (q), were said to be precisely in (Z) Ante, pp. 407. 4.99. (/)) Ante, p. 507. Pai-k, J., said (m) Ante, p. 501. th.at Coxc v. Day, and the decision of («) Rees dem. Powell v. King, For. the K. B. in Doe dem. Jersey v. Smith, 19. were iiTceoncilablc ; 7 Pri. 436. (o) 7 Pri. .".Oii. .•no. .'514. .'5«0. 422. (q) Ante, p. 404. Ch. I. s.IV.] WHO lessors: DONEES OF POWER. 509 point (r) . On the other hand, the restraint as to the distress was considered reasonable, because the right of re-entiy was reserved only for the purpose of secui'ing the rent, and the statute of 4 Geo. 2 {s) had, previously to the lease in question being made, deemed it reasonable that lessors, where they had a power of re-entry for obtaining payment of the rent, should not enter whilst there was a sufficient distress on the premises (/). And they ridiculed the idea of there not being a sufficient distress to satisfy a rent of 21. a year(M). And Coxe V. Day was said to be distinguishable from the principal case, on the ground of the re-entry in the former being for non-payment of the rent reserved by the space of twenty^ one days; so that from the specification in the power of a particular mode, it might perhaps be inferred that no other qualification would be warranted ; but that in the principal case there was no condition specified, nor time limited (a?) . Judgment was ultimately given in the House of Lords in favor of the lease. It would seem that the addition of a power of distraining, though not required by the power, would not prejudice the lease. This was the third objection raised in the case of Doe V. "Wilson {y). The donee of the power made a lease which contained a provision, that if the said yearly rent should not be paid at the days and times appointed for payment, or if the said amerciaments, pains, fines, and penalties, nomine pcense, after reasonable demand in that respect made, should not be paid and satisfied, according to the true intent and meaning of the indenture, then it should be lawful for the said earl, [the lessor,] his heirs and assigns, into the said demised premises to re-enter, and distrain, and the distress and distresses to take, lead, drive, and carry away, detain, (r) 7 Pri. 310. 315. 365. 373. 384. J., considered that Coxe v. Day had 410. 435-6-7. 493. nothing to do with the question ; but (s) 4 Geo. 2. c. 28. that Hotley r. Scott expressly decided (<) 7 Pri. 324-5. 339. 392. 450.465. the point. 479. 500. 521. (y) Doe dem. Earl of Shrewsbury v. (u) 7 Pri. 304. 341. 450. Wilsou, 5 Barn. & Aid. 363; and (.r) 7 Pri. 3,35. 395. 467. 503-4. Best, ante, p. 505. 510 OP THE CONTRACTING PARTIES. [Part III. and keep, until they or some of tliem be fully satisfied, con- tented, and paid. It appeared tliat a similar clause had been introduced into former leases. An objection was taken that it took away the right of the party to distrain previously to the demand of rent ; and also, that when he had distrained, it took away the power of selling under the statute {z). This, however, the court denied, and held the lease to be in this respect a valid execution of the power ; for, independently of the clause, the landlord had a power to distrain, and a power to sell under the distress; and that he was not abridged by it of any remedy for the recovery of his rent which he would otherwise have had; it being a rule of construction, that where a clause is introduced into a deed or into an act of parhament in order to confer a benefit, it is not to be con- strued so as to work a prejudice, or, in other words, that where the intention of the clause is to give a further right, it is not to be construed so as to take away any other right existing without it. In a late case («), a power was given to a tenant for life to lease such parts of certain premises as had been anciently demised, " so as the ancient and accustomed yearly rent and reservations were reserved, every such lease being made and granted in the same manner and form, and with and under such and the hke reservations, restrictions, covenants, condi- tions, and agreements, as were usually and customarily con- tained in leases of the same kind, in the several and respective parishes and places where the same premises were situated.'' In the lease of the property immediately preceding the one in controversy, there was a right of re-entry in case the rent should be behind for a certain number of days, and no suffi- cient ove7^t distress could be found upon the premises, or some part thereof, whereby to levy the same, while in the lease in question the word overt was omitted. But it was held, that the omission did not constitute a valid ground of objection ; (z) 2 W. & M. fiess. 1. c. r,. s. 2. Adol. & Ell. 705. 742; S. C. 4 Nev. & («) Don (lorn. Douglas v. T.ock, 2 Man. f;07. Cn. I. s.IV.] WHO lessors: DONEES OF POWER. 511 for SO many opinions might be formed about the extent of the meaning of the Avord, that no legal meaning could be attributed to it. It seems also, that a qualification of the right of re-entry on non-payment of rent, by a condition of the same being laivfully demanded, Avill not defeat a lease, though the power require, in general terms, a proviso for re-entry on nonpayment of rent. A qualification of this kind, though not expressly authorised by the power, was contained in the lease in the case of Coxe V. Day [b) ; but it is not known what influence that circum- stance had with the court, as the judges merely certified their opinion that the lease was not made in conformity with the power. Indeed, it does not appear that the point was raised in argument. But it underwent full discussion in the later case of Doe V. Wilson (c), where there was a power of leasing at the usual and accustomed yearly rents, boons, and sernces, " so as in every such lease there be contained a condition of re- entry for nonpayment of the said rent, &c.;'^ and a lease was made with a proviso for re-entry in case the said rent should be unpaid by the space of twenty-eight days next after any or either of the respective feast-days and times whereon the same ought to be paid, beinff lawfully demanded. It appeared that a similar clause, with the words being laivfully demanded, was contained in a former lease of 1708. The coui't deter- mined that the power was well exercised ; and that, notwith- standing those words, the landlord had a right to the benefit of the statute of 4 Geo. 2. c.2S{d), and might re-enter. " By the common law,^' said Abbott, C. J., " the landlord never could re-enter without making a demand. Every clause of re-entry, therefore, contained the words lawfully demanded, in effect, though not in terms; and, therefore, in the lease of 1708, those words were quite nugatory. They were probably copied (h) Coxe V. Day, 1 3 East, 118; ante. Doe dem. Scholefield v. Alexander, 2 p. 507. Mau. & Selw. 52.5. (c) Doe dem^ Earl of Shrewsbury v. (d) 4 Geo. 2. c. 28. Wilson, 5 Barn. & Aid. 36.3. See also 512 OF THE CONTRACTING PARTIES. [Part III. inadvertently into the subsequent leases, without considering their effect. I am of opinion, that such a proviso for re-entry, which was originally introduced for the benefit of the laud- lord, ought not to be construed, in consequence of the intro- duction of those words, (which were nugatory in the former leases,) to deprive the landlord of the benefit intended to be conferred upon him by the statute 4 Geo. 2. c. 28. The case might have been otherwise if the lease had contained an express covenant that he would not re-enter without demand, or that, having entered, he would not sell " (e) . Where a tenant for life with power to make leases of any lands usually let at any time before, in possession, for three lives, or any number of years determinable on three lives, reserving the rents then yielded, so long as the lessees, their executors and assigns, should duly pay the rents, and perform the conditions, according to the true meaning of their indentures of lease, made several leases for years deter- minable on three lives, and so long as the lessees, &c., using the exact words of the power, rendering the same several rents that were reserved, 1 2 Jac, payable at Michaelmas and Lady-day, it was held, that the limitation in the leases deter- mined them on nonpayment of the rent without a demand ; for quamdiu, dum, dummodo, were words of limitation, and distinguishable from a condition where a demand was neces- sary before a right of re-entry could be enforced (/). In Doe d. Bligh v. Colman (//), the question was simply one of construction, and unaffected by any other decision. A power was given by will to a devisee for life to lease the premises in manner following : viz. — such parts of the said premises as had been usually granted or demised and were then in lease for any term of years determinable upon lives, to any persons, for the like terms, and in like manner, and under the like rents, services, and conditions, as the same (c) .5 Bam. & Aid. 385. Baltinf,'liiss, Finch, 275. (/) TuBtiiin (Icni. Gore v. Roper, T. (r/) Doe dem. Bligh v. Colinan, 1 .Jo. 27; S. C, noiii. Tristram r. Roper, Biiig. 2»; S. C. 7 J. B. Mo. 271. Vaugh. 2R; S.C. Temple ?•. Viscountess Cii. I. s. IV.| WHO lessors: DONEES OF POWER. 513 had been usually granted ; and the residue of the same pre- mises, unto any persons for any term of years not exceeding twenty-one years in possession, at the best and most improved rent that could be reasonably gotten for the same, so as that no such demise or lease should be made dispunishable of waste, nor without a condition of re-entry on nonpayment of the rents or services thereby reserved. When the will was made, the premises were in lease under an indenture, dated in 1750, in consideration of a sum paid in hand, a yearly rent of \Q>s. 8d., and 40^. for a heriot on the death of each cestui que vie. On the expiration of which, the devisee, in 1815, demised the premises in question to the defendant. With the exception of the names of the parties and cestuis que \'ie, and the amount of the sum paid in hand, the lease of 1815 was the same as the lease of 1750, neither of them containing any clause of re-entry for nonpayment of the heriot-service. It was argued that the word such, which immediately followed the specification of the two classes, and of the terms imder which each should be disposed of, necessarily referred to demises of both the classes of land, and that the conditions which followed that word were equally imposed on demises of each; and, therefore, that the lease of 1815 was void, not being conformable to that clause of the power which required a re-entry for non-payment of 40^. in heu of a heriot. But the court were of opinion, that the word such applied only to leases of the land last described ; for if a power of re-entry for non-payment of the 40*. in lieu of a heriot had been in- serted in leases of the land first described, that land would not in such case be let as the testator required it should be, for the like terms, in like manner, and under the like rents, services, and conditions as it had been usually granted. 8. As to the execution of a counterpart by the lessee, with a covenant for payment of rent, &c. In almost all cases the power requires that the lessee shall execute a counterpart of the lease, the object of which is to furnish the lessor with the ready means of asserting and ' VOL. I. L L ^14 OF THE CONTRACTING PARTIES. [PaktIII. enforcing His rights, by placing in his hands the evidence of the lessee^s liabihty. With a view to the lessee's security, and to satisfy parties claiming under him that the power has been complied with in this particular, a memorandum that a counterpart has been executed, should be indorsed on the original lease; such memorandum being signed by the lessor, and attested by the witnesses attesting the execution of the lease. In some acts of parhament empowering the grants of leases, and requiiing counterparts, the receipt in writing of the lessor of the coun- terpart, signed by him, and indorsed on the lease, is made evidence of the execution of the counterpart {h) . The execution of the counterpart need not be contempo- raneous with the lease (i). 9. As to the exemption from punishment for Avaste. It is a common practice for the poAver to provide that the lessee shall not be made dispunishable for waste. Where a power of leasing contained a restriction that there should not be contained in the lease a clause whereby any power or authority should be ffiven to any lessee to commit waste, or whereby any lessee should be exempted from punish- ment for committing waste, a lease, comprising a covenant by the lessor to repair the mansion house, and a provision that in case of repairs being wanted on the roof, if the lessor, his heirs and assigns, should not repair the same within three calendar months after notice in writing of the defect, it should be lawful for the lessee, his executors, &c., to repair the same, and deduct the charges out of the rent reserved, was held not to be in violation of the power ; for in fact no authority was ffivcii to the lessee to commit waste, nor was he exempted from punishment for committing waste, nor was there anything in the power to show that the burthen of repairing might not be cast on the landlord {k) . So, where a power of leasing provided that no clause should (h) ScG .5 Vict. sess. 2. c. 27. s. 3. Ell. 403. Ante, p. 263. (/•) Doe tleni. Bromley v. Bcttison, (r) Fryer v. Coomlw, 11 A4. fol. 406. Stephens, fi Q,. B. 208. (r) Doc dem. Bi-omley v. Bettison, («/) Earl of Cardigan v. Montagu, 12 East, 30,5. A covenant to renew is Sngd. Pow. filhcd., Appendix, No. M, a clause usually inaei'ted in leases in p. fiOO. f;02-3, 4tli, 7th, and 8th points. Nottingham. Ibid. Ch. I. s. IV.] WHO lessors: DONEES OF POWER. 517 If the power of leasing contain a proviso requiring the in- sertion of such covenants as are usually inserted in leases in the country where the lands lie^ a lease made with a proviso in the very words of the power^ will not be good ; nor can it be aided by any special verdict, finding the covenants usual (s) . Where the power is silent with regard to the covenants to be introduced into the lease, it secmSj that if, upon the whole, the burthen taken upon himself by the lessor is counter- balanced by new stipulations in his favor entered into by the tenant, a variation from the covenants contained in former leases will not vitiate the exercise of the power {t). Althoiigh the power do not in words require that the lease shall contain any covenants, yet the absence of a covenant for payment of rent will defeat it, as the rent under a mere reser- vation is not payable till entry, and, therefore, in fact may never be payable during the term ; or the lease may be as- signed to a succession of beggars, and, thus, the only remedy may be against the land, which may not contain the means of satisfying a distress (m) . Where a lease for lives was made by a tenant for life under a power, and after the decease of the cestuis que vie, and of the lessor, the remainder-man, by a deed poll, executed by him and the lessee also, and affixed by sealing wax to the original lease, renewed the annexed indenture for a new term, subject, however, to the payment of lOOZ. yearly, and subject to the covenants in the lease mentioned, and the lessor covenanted that the lessee, papng the reserved rent, and performing the covenants herein contained, should peaceably enjoy, it was held, that these words did not constitute a covenant by the lessee with the lessor in the second lease for payment of rent (.r) . (s) Orby v. Mohun, Gilb. Eq. Rep. Ale. & Nap. 359. And see Bui-nett v. 60; S. C. ut ante, p. 492. n. (m). Lynch, 5 Barn. & Cres. 589; S. C, 8 (t) Goodtitle dem. Clarges v. Funu- Dow. & Ry. 368 ; and Steward v. Wol- can, -2 Dougl. 565. veridge, 9 Bing. 60; S. C. 2 Mo. & Sc. (it) Nugent dem. Atkins r. Sealy, 75; S. C. Wolveridge v. Steward, in Ale. & Nap. 359. Taylor dem. Atkyns eiTor, 3 Mo. & Sc. 561 ; S. C. 1 Crompt. V. Horde, 1 Burr. 60. 125. & Mees. 644; 3 Tyrw. 637. (x) Nugent dem. Atkins v. Sealy, 518 OF THE CONTRACTING PARTIES. [Part III. A. B.^ being invested by an act of parliament with a power of granting building leases, granted a lease, professed to be made in pursuance of the power, but the only covenant that in the least related to rebuilding was one : — " that the lessee should, at his own charges, dui'ing the term, repair, uphold, maintain, and keep, the messuages and premises demised, or such other messuage or buildings as should during the term be built on the premises, in by and with all and all manner of needful and necessary reparations and amendments, when and so often as need should be and require, and should leave them so at the end of the term;" and it was held, that this could not be considered a building lease within the meaning of the act, no power being given to the lessee to pull down and rebuild any part of the premises, nor any obligation to do so, nor any covenant for that purpose, being contained in the lease; that the covenant to repair and uphold could not imply a covenant to build (y) ; and, fui'ther, that the fact of the lessee having voluntarily built on the premises would not give validity to the lease, the rule of law being, qnod initio non valet tractu temporis non potest convalescere [z] . And a similar point occurred in a later case («) . A tenant for life had a power of leasing all or any part of the messuage and premises in question, for the purpose of new building, or eflfectually rebuilding and repairing any messuage, houses, outhouses, edifices, or buildings, then standing or being, or thereafter to stand and be, upon any of the said heredita- ments and premises, for any term not exceeding sixty-one years, at the best rent, without fine : And he was also em- powered, for any other reasonable purpose, to demise the premises for any term not exceeding twenty-one years, to take effect in possession, at rack rents, so that the leases should contain such covenants, clauses, and restrictions, as were usual in leases of houses at rack rents in London. The will also contained a clause, that if any person taking a life (//) .Joiips (luni. Cowpcr v. Vcniey, (z) Ibid. WillcH, MV.). Moleswortli v. Howard, («) Doe deni. Dymokc v. Withers, 2 f ol. V. C. 14.5. 2 Barn. & Add. 800. Ch. I. s. iv.j WHO lessors: — donees of power. 519 estate should not keep the estates in good repair, a trustee might enter, and apply the rents and profits in putting them in repair. Under this power, the tenant for life, in consider- ation of the great charge which the lessee would be at in eflectually repairing the messuage, tenement, and premises, and also of the rent reserved, and of the covenants, condi- tions, and agreements, on the lessee^s part, demised tlic pre- mises for sixty-one years, at the yearly rent of 27/.; and the lessee covenanted to expend 250/. at least for the purpose of effectually repairing the premises, and putting them into com- plete and substantial repair, and when the said premises should be well and effectually repaired, at all times during the term as often as need should be well and effectually to repaii* and uphold the premises, and all buildings &c. to be erected thereon : It was also provided, that the lessee might determine the lease at the end of thirty-one years, giving notice, and performing all the covenants. There was no express covenant on the part of the lessee to new build or repair any part of the premises. The value of the premises at a rack rent (exclusive of land-tax and sewer^s-rate) was 100/. a year. It was held, that the lease was not warranted by the power, as the covenant to lay out 250/. at least in effectually repairing the premises, was not equivalent to a covenant, which the lease should have contained, effectually to rebuild and repair ; and this construction was said by Mr. Justice Taunton to be strengthened by the terms of the other power; for if the testator meant to require nothing more than the common covenant to repaii* usually inserted in leases of houses in London, there was no difference as to the extent of obligation imposed between the power to demise for sixty-one, and that for twenty-one years. 11. As to the effect of the execution of the power. When a power of leasing is exercised, the instrument con- ferring the estate operates as an appointment of a use in favor of the lessee, or rather appointee, which is served out of the seisin of the feoffees, releasees, or devisees, to uses under the settlement or will creating the power, and is invested with the 520 OF THE CONTRACTING PARTIES. [I'artHI. properties of a legal estate by the statute of uses (6) . The lessee^ or appointee, is then supposed to derive his estate from the donor, and not the donee, of the power (c). And when we find it said that the estate of the lessee in such a case is derived out of the estate of tenant for life, for such period of the term as he may happen to live [d), it would probably be more correct to say that it operates upon that estate, than to say that it is derived out of it, even dm'ing that period [e] . It may be stated as a general rule, that the estate of the lessee or appointee supersedes all the limitations in the instru- ment creating the power, and places him in the same situation as if his term had been the first originally limited by it. Thus, where lands were limited to Sir J. F. for life, and then to trus- tees for ninety-nine years if A. B. should so long live, upon such trusts, &c., as Sir J. F. should direct, with remainders over, with power to him to make leases, and Sir J. F. afterwards declared the trusts of the term, and then exercised his power of leasing, it was objected that as he had declared the trusts of the term for payment of liis debts, the estate was bound by it, and he could not afterwards execute his power of leasing ; but it was held, that the term was originally subject to the power, being contained in the same deed ; and that, on the exercise of it, the lease was precedent to the term, and con- trolled it (/) . So, where an estate was settled to the use of I. S. for fifteen years, and after to the use of the settlor for life, with a power of leasing, it was contended that the power could not be exer- cised tiU the expiration of the fifteen years ; but it was held, that the power issued out of the whole estate, and was imme- diately exerciseable, and that the term of fifteen years was presently subject to it; but that I. S. should have for the (6) -27 Hen. li. c. 10. Bridgm. by Baiin. 11,5. (c) \Vliitli)ck"n case, 8 Co. 69, b. (e) Long v. Rankin, Sugd. Pow., 7 1 , a. Appendix, No. 2, (ith ed. vol. 2, p. 539. (d) Sec Berry v. White, O. Bridgm. .t40', per Abbott, L. C. J. by Bann. 91. Grange v. Tiving, O. (/) Talbot i;. Tipper, Skin. 427. Ch. I. s. IV.] WHO lessors: — donees of power. 521 remainder of the fifteen years the rent reserved in respect of the lease granted under the power (//). In a very recent case (A), certain premises were settled to the use of H. and L. for 1000 years; with remainder to the use of E. R. for life; wdtli remainder to the use of T. L. for 2000 years, to commence from E. R.^s decease, or other sooner determination of her estate ; with remainder to such uses as M. R. should appoint ; in default of appointment, to the use of M. R. for life ; with divers remainders over : And it was declared that the term of 1000 years was limited to H. and L., upon trust, on non-pajanent, on the 25th of March then next, of 800/. and interest lent by I. H. to M. R., by sale, mortgage, or other disposition of the premises, at the request of I. PI , to levy and pay to him the 800/. and interest : And as to the term of 2000 years, that it was limited to T. L.upon trust to levy, in the same manner, such sums as E. R. should, during her life, pay to I. H. for interest on the 800/., and also a further sum of 600/., and to pay the same in manner therein mentioned; and upon further trust to permit the person next in remainder or reversion expectant on the term of 1000 years to receive the residue of the rents and profits remaining after and not appKed in execution of the trust declared of the last mentioned term ; with a pro\aso that when the trusts of the two terms should have been executed, and the costs of the trustees paid, the two terms should cease : And it was declared that it should be lawful for E. R. to demise the premises for any term not exceeding ten years from the date of the indenture of settlement, or seven years from the day of her decease, to take effect in possession. E. R., by virtue of the power, demised the premises to the plaintiflF for the term of seven years, to be computed from the day of her decease, at the yearly rent of 150/.; and it was determined, that the lease, being made under a power, was referable to the instrument creating the power, and in point (<;) Fox f. Prickwood, 2 Bulstr. 216; 12. 2 Rol. Ab. 260. pi. 5. S. C. Cro. Jac. 347, numbered iu fol. (h) Rogers v. Humphi-eys, 4 Adol. ed. 349, by mistake; S.C. Anon. 1 Rol. & Ell. 295) ; S. C. 1 Harr. & Wol. 625. 522 OF THE CONTRACTING PARTIES, [Part III. of law contemporaneous with the mortgage in favor of I. H., though in fact not made till nearly a year after it^ and bind- ing on the trustees of the 1000 years' term, so that they could not disturb the lessee in the enjoyment of the land. Persons claiming in remainder under a settlement con- ferring a power of leasing on the tenant for life, may, by virtue of the statute of 32 Hen. 8. c. 34 [i), take advantage, as assigns of the reversion, of the lessee's covenant for payment of rent, and other covenants in their nature running with the land, though entered into with the tenant for life, his heirs and assigns; as the lease derives its effect from the donor, and not the donee, of the power, and the remainder-man is, in legal contemplation, the assignee of the person who, also in legal contemplation, is the lessor {k) . It is no objection to a lease under a power that it is in trust for him who executes the power, provided the legal tenant be bound during the term in all requisite covenants and conditions (/). 12. As to the consequences of a defective execution of the power. A lease inoperative as an exercise of a power may some- takes take effect out of the estate of the donee. If a party having a naked power only make a lease not warranted by it, the lease is absolutely void at law, and not merely voidable (m) ; for the estate, depending solely for its existence on the due exercise of the power, necessarily fails when the pro^dsions of the power are not complied with (w) . (i) 32 Hen. 8. c. 34, "Concerning 2; S. C. 3 Irish Law Rep. 395. grantees of reversions to talce ad van- (Z) Taylor deui. Atkyns v. Horde, tage of the con(htions to be performed 1 Burr. GO. 124. Wilson v. Sewell, 4 by the lessees." Burr. 1,075. 1979. Right dem. Basset (Ic) Isherwood r. Oldknow, 3 Mau. v. Thomas, 1 W. Blac. 446. 449; S. C. k. Selw. 382, 3rd point. Berry v. 3 Burr. 1441. White, O. Bridgm. by Bann. 82. 103. (»i) Doe dem. Cowper v. Veruey, Whitlock's case, 8 Co. G9, b. Good- Willes, 177. title V. Funucan, 2 Dougl. 565. 572. (») See as to the aid afforded in Rogers v. Humphreys, 4 Adol. it EU. equity in cases of defective executions 299; S. C. 1 Har. & Wol. 625. Ho.sier, c.f powers, ante, p. 408. or Ilozier,r. Powell, 1 Longf.& Towns. Cu. I. S. IV.] WHO lessors: DONEES OF POWER. 523 But frequently, if not generally, it happens that the donee of a poAver of leasing has also, as tenant for life or tenant in tail, an actual estate in the property. Under these circum- stances, a lease which is void as an informal or defective execution of his power may be supported out of such estate (o). And if the ultimate remainder or reversion devolve on the lessor, neither he, nor his heir after his death, can avoid the lease {p). If, however, a party contracting with a tenant for life, the donee of a power of leasing, be apprized of the incapacity of the donee to grant the lease agreed for, he cannot, by the assistance of Chancery, obtain a lease derived out of the donee's interest, and determinable on his life, the contract being originally for a lease which would be a fraud on the settlement {q). Such a case does not fall within the principle, that where a person contracts to grant a certain interest, which it afterwards appears he cannot carry into execution to the extent he agreed to do, yet the grant shall be made available as far as his interest will permit, as where a person contracts for the sale or grant of a lease of an estate, and it afterwards turns out that he is not entitled to part of it, that then the contract may be enforced as to the part of which the grantor is owner (r). So, if a tenant for Kfe with power of leasing cannot grant a lease upon the terms agreed on, so as to bind the inheritance, the court will not decree a specific perform- ance, by directing the execution of an invalid lease, which may incumber and embarrass those entitled to estates in remainder (s) . If the lease be void by the defective execution of the poAver, or the determination of the estate by which it was supported, as the death of tenant for life, it is incapable of confirmation by those in remainder, so as to give it stability as a good legal (o) Bowes V. East London Water- (r) Ibid, works Company, Jac. 326. (a) Ellard v. Lord Llandaft", 1 Ball (p) Taylor v. Stibbert, 2 Ves. jun. & Beat. 241. 251. O'Rourke v. Per- 437. - cival, sup. BjTnc r. Acton, 2 Bro. (q) O'Rourke v. Percival, 2 Ball & P. C. 390; S. C. Toml. ed. vol. 1, p. Beat. 58. 186. Join-. Vol. 21, p. 701. 524 OF THE CONTRACTING PARTIES. [Part III. lease [t) . But though it be actually void^ acceptance of rent by the remainder-man, or other recognition of a subsisting tenancy, will place the lessee in the position of a tenant from year to year, and entitle him to a notice to quit {u) . In equity, however, where the situation and conduct of the parties are more liberally regarded, the lessee may, under particular circumstances, be quieted in the possession of the property for the term contracted for. Thus, where a tenant for life with power of leasing granted (but not conformably to his power) a building lease for sixty-one years, and the as- signee of the lease laid out above 5000/. in buildings, and, after the death of the tenant for life, the remainder-man in tail, who had continued to receive the rent for six years, brought an ejectment, and recovered at law, on the ground of the defective execution of the power, it was held by Lord HardAvicke, that the remainder-man, by lying by, and with notice suffering the lessee or assignee to rebuild, had bound himself from controverting the lease; and he decreed the exe- cution of a new lease with proper and usual covenants for the residue of the term ; and, on executing the lease, his lordship decreed the lessee to enjoy the premises quietly against the defendant (,r) . A similar decree was made, as we have seen {y), in the case of an agreement, where the remainder-man kno"\viiigly suffered the tenant under a defective instrument to lay out money without giving him notice of his intention to impeach his title (r). (t) Doe dem. Simpson r. Butcher, Prideaux, 10 East, 158. 183. Doedem. 1 Dougl. .50. Goodright dem. Wynne Tuckei* v. Morse, 1 Bara. &. Adol. 36.5, r. Humphreys, 1 Dougl. 52, n. Jen- oveiTuling Goodtitle dem. Adeane v. kins dem. Yate v. Church, Cowp. 482. Prentice, Esp. Dig. 464. Doe dem. Potter v. Ai'cher, 1 Bos. & (x) Stiles v. Cowper, 3 Atk. 692. Pul. 531. Stilesr;. Cowper, 3 Atk. 6,92. And see Cooper v. Denne ; Denue v. Bowes V. East London Waterworks Cooper, 1 Ves. jun. 5G5 ; S. C. 4 Bro. Company,. lac. 331. Doe dem. Cowper C. C. 80. Attorney-General r. Balliol r. Verney, WiUes, 177. College, Oxford, .0 Mod. 411. East (m) Doe dem. Martin v. Watts, 7 India Company v. Vincent, 2 Atk. 83. Term Rep. 83 ; S. C. 2 Esp. N. P. C. (y) Ante, p. 409. .501. Doe dem. Collins v. Wellcr, 7 (2) Shannon r. Hradstreet, 1 Scho. 'IVrm Kf'p. 478. Roe dom. Bnme r. & Lcf. 52. 7.'>. Ch. I. S. IV.] WHO LESSOKS : DONEES OF POWER. 525 And a pm*cliascr from the remainder-man, with notice of the lease, is bound in like manner («) . It is clear, however, that the acts of one tenant for life in allowing expenditui-e in improvements cannot prevent those in remainder from avaihng themselves of the imperfection of the lessee^s title {b). Where a tenant for life with power of leasing granted a defective lease to a party who had no notice of the power, or that the lessor was tenant for life only, equity refused to re- strain the lessee from setting up an old outstanding term, in opposition to an ejectment brought by a remainder-man (c). If trustees of the legal estate, with a limited power of granting leases, exceed their authority, either by taking fines, where the receipt of fines is prohibited, or by leasing in rever- sion, where leases in possession only are allowed, although the estate of the trustees would support the leases at law for the whole term granted, yet they will be set aside in equity at the suit of a remainder-man who has done no act to preclude his claim (d) . 5thly, and finally. As to the extinguishment and suspension of the power. A few words on the extinguishment and suspension of powers of leasing remain to be added. Where a power of leasing given to a tenant for life is appendant, that is, if a lease made by virtue of the power will take precedence of the tenant for hfe's own estate, an absolute alienation of the life estate will extinguish the power (e) ; but it is otherwise where the power is in gross, as to make leases to commence after the donee's death (/). (a) Steele v. Mitchell, 2 Dru. & Wal. (e) Berry v. White, 0. Bridgm. by 568; S. C. 3 Irish Ec^. Rep. 1. Bann.91. Grange v. Tiving, 0. Bridgm. (6) Bowes V. East London Water- by Bann. 115. Ren dem. Hall v. works Company, 3 Madd. 375; S. C. Bulkeley, 1 Dougl. 292-3. Cooke v. Jae. 324. 332. Bromelull, Noy, 66, a very confused (c) Golebom v. Alcock, 2 Sim. 552. report. (d) Bowes V. East London Water- (/) Edwards v. Slater, Hardr. 410, works Company, 3 Madd. 375 ; S. C. per Hale, C. B., and Rainesford, B.; Jac. 324. Attorney- General v. Grif- Turner, B., cont. fith, 13 Ves. 580, 526 OF THE CONTRACTIXG PARTIES. [Part III. So, where a party was a lessee for twenty-one years under the Archbishop of Canterbury^ and a power was given by act of parliament to the archbishop and his successors^ and to the lessee^ his executors, administrators, and assigns, jointly, to grant building leases, it was held, that the surrender of his old term, and acceptance of a new one, extinguished his power of leasing; and, therefore, that a person not coming in by assignment of the original lease, but deriving the tenant- right of renewal under an assignment of the renewed lease, could not exercise the power (g) . So, a power of leasing given to a tenant for life is suspended during the continuance of a lease granted by him out of his estate [h) . But though a power of leasing may become void if the donee part with his estate to Avhich it is annexed, the courts will not hold it to be extinguished by a transfer of the estate, unless they clearly see in the language of the deed whereby the power is created that the donor intended inseparably to annex it to the estate given, and to a continuance of that estate in the identical person to whom it is given (?'). Thus we have seen {k) that a power reserved to a tenant for life in possession to lease for twenty-one years is not extin- guished by a conveyance of his life estate by lease and release to a trustee, upon trust to apply the profits in payment of an annuity, during the donee's life, and the sm^plus to the donee, the object of the conveyance being only to let in a particular charge, subject to which the rents and profits belong to the tenant for life (/). In a late case (m), certain lands were devised to M. and B. in fee, to the use of the testator's son, James, for life, with power to M. and B. to raise money by mortgage of his real estate in fee or for years ; and a proviso that it should be lawful (f/) Collettv. Hooper, 13 Ves. 255. {I) Ren dem. Hall v. Bulkeley, 1 (/t) Attorney- General v. Gradyll, Dougl. 292. And see Long i. Rankin, Bunb. 92. sup. But see Vincent v. Ennys, and (i) Long V. Rankin, Sugd. Pow., fitli Corker v. Ennys, 3 Vin. Ab. 433. pi. 10. cd., Appendix, No. 2. (m) Bringloe v. Goodson, 4 Bing. (/I) Antf',p.405. N.C.726;S.C. 6Scott,502; lAm.322. Cii. I. s. IV.] WHO lessors: — DONEES OF POWER. 527 for the person entitled to the rents and profits for the time being, and, during the minority of such person, for the tes- tator's executors^ to lease the premises in a manner there prescribed, at a rack rent, for any term not exceeding twenty- one years, to take eflFect in possession. In 1812, after the testator's death, James, without noticing his power, demised the premises to one Clement for ninety-nine years if he (James) should so long live. On the 31st of December, 1814, James, by virtue of the power, made a lease to the defendant from the 11th of October then last past for twenty-one years, at a yearly rent of 1,500/., and the further yearly rent of 10/. for every acre managed contrary to the covenants in the in- denture. On the 11th of June, 1828, B., who had siu'\dved M., by vii'tue of the power, mortgaged the premises for the term of 1000 years to the plaintiff, who, as assignee of the reversion, sued the defendant for the additional rent alleged to have accrued due by breach of the husbandry covenants contained in his lease. The court held that there had been no suspension of the leasing power given to the tenant for life, so far as regarded the grantee of the term under the power to demise by way of mortgage given to the executors, and that such grantee had the immediate reversion in him, and might sue upon the covenants in the lease granted to the defendant. We have ah-eady seen that a power of leasing given to a feme sole is not suspended by her subsequent marriage (n) . Whether a power of leasing contained in a will is revoked, as to a particular devisee, by a codicil, must be ascertained, not from the mere alteration by the codicil of the order in which the parties were originally to take, nor from the posi- tion of words conferring the power, but from the whole will and codicil taken together (o) . («) Ante, p. 401. Bayley v. War- S. C. nom. Foster v. Grayham, 2 Bar- burton, Com. 494. nard. K. B. .341. 428. (o) Forster v. Graliani, 2 Stra. .062; 528 [Part III. CHAPTER 11. WHO MAY BE LESSEES. rPHE capacity of taking as lessee now claims oiu' attention, and we may consider who may be lessees, as we did in treating of lessors : — I. With reference to personal capacity. II. With reference to estate. III. With reference to number and connection : and, IV. With reference to office ; premising, generally, that the lessee must be in existence and ascertained at the time of the demise, or it will be void, as if it be granted to the exe- cutors of a man who is living («), or to such person as another party shall name [b] . Section I. — With reference to personal capacity. I. — Infants. A lease granted to an infant is not void, unless, perhaps, it be obviously prejudicial to his interest (c), but is voidable by him on attaining his majority (d) ; though, in order to escape from the burthen of the rent, he must express his dissent in a rea- sonable time, and, it is apprehended, before the arrival of the (a) Anon. 3 Leon. 32, case GO. Gregory, Cro. Car. 502; S. C. W. Jo. Porry, or Pory, v. Allen, Cro. Eliz. 405; but query. 173; S. C.,noni. Perryn v. Allen, 0\v. (d) Kirton ?'. Eliott, Ketsey's case, 97. Snow V. Cutler, T. Raym. 162-3. sup. Evelyn v. Chichester, 3 Buit. (b) Sparke v. Sparke, Mo. GGG. 1719. Holmes v. Blogg, 8 Taunt. 35. (c) Kirton v. Eliott, 2 Bulntr. G.O: 508. 510; S. C. 1 J. B. Mo. 466; 2 Mo. S. C, noin. Keteey'a case, Cro. .lac. 552. 1 Rol. Ab. 731. 1. 45. Co. Lit. 320. Baylis v. Dineley, 3 Mau. & 2, b. Sc'lw. 477. 481. And see Lloydo r. Ch. II. s. I.] ^V^0 MAY BE lessees: INFANTS, 529 day of payment (e) . Where so much must depend on circum- stanceSj it is scarcely possible to fix any period as a reasonable one in all cases. In Holmes v. Blogg (/), Dallas^ C.J., ob- servedj that he should be disposed to hold, that an infant omitting to give notice of disaffirmance within four months after attaining his majority could not be regarded as giving notice within a reasonable time. It appears, however, that the lessor, by treating the lease as ended, may dispense with notice of disaffirmance in a formal shape (g) . Should the lessee elect to annul the lease, he cannot recover the consideration paid for it, though subsequent events may effect a complete failure of the object for which such consi- deration was given {h) . It seems that a lease not under seal [i) granted to an infant cannot be confirmed by him, so as to render him liable for rent accrued during infancy, otherwise than by writing ; the statute of 9 Geo. 4. c. 14, having provided {k), that no action shall be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith. A late act of parliament (/) empowers an infant entitled to any lease, or his guardian or other person on his behalf, by the direction of the court of Chancery in England, and of the courts of equity of the counties Palatine of Chester, Lancaster, and Durham, as to land within their respective jimsdiction {m), to (c) Kirton v. Eliott, Ketsey's case, hereditaments requu'ed by law to be sup. in writing, if made after 1st October, (/) Holmes v. Blogg, 8 Taunt. 39. 1845, .are void at law unless made by 40; S.C, 1 J. B. Mo. 466. 473. And see deed; 8 & 9 Vict. c. 106. s. 3. Doe dem. Bromfield v. Smith, 2 Term ( /; 9 Geo. 4. c. 14. s. 5. Rep. 436. (I) 1 1 Geo. 4, & 1 W. 4. c, 65. s. 12. (g) Holmes v, Blogg, sup. (m) And also of the courts of Great {h) Ibid. 2 Eden, 72. Wilm. 226, Session of the Principality of Wales, note. ' before their abolition l)y 11 Geo. 4, & (?) But all leases of tenements and 1 W. 4. c. 70. s. 14. VOL. I. MM 530 OF THE CONTRACTING PARTIES. [Part 111. siiiTender such lease, and to take a new lease for the term comprised in the original lease. More of this subject, hoAv- ever, will be found in a future chapter relating to Renewals. II. — Persons of Unsound Mind. Idiots and lunatics, it should seem, may take leases for their benefit (n). And the statute just cited (o) enacts (7?), that where any person being lunatic (which term extends (. 8S. (^ and 8. Cii. II. s. 1.] WHO lessees: — attainted persons — papists. 535 Unless the immediate reversion be in the Crown, in which case the lease becomes absolutely merged and extiugmshed {d), the reversal of the outlawry entitles ^the outlaw to have his term restored [e), though it may have been sold during the outlawry (/). And if the outlaw, pending the outlawry, assign his term to another, the assignee may, after the re- versal, maintain an action for the profits accruing in the interval between the assignment and the reversal [g) . Leases which an outlaw takes as executor are not forfeit- able on his outlawry (/<) . V 1 1 . — Attainted persons. Persons attainted of treason or felony may Ijc lessees ; but their leases are forfeitable to the Crown on office found {i) . VIII. — Papists. The disabilities which formerly affected papists are now removed. By the statute of 11 & 12 Wm. 3. c. 4, it was enacted [k), that if any person educated in the popish religion, or professing the same, should not after six months after he or she should attain the age of eighteen years take the oaths of allegiance and supremacy, and also subscribe the declara- tion expressed in the act of 30 Car. 2 (/), being a declaration against transubstantiation, the invocation or adoration of the Vii'gin Marj^, or any other saint, and the sacrifice of the mass, every person should, in respect of liim or herself only, and not to or in respect of any of his or her heirs or posterity, be in- capable of inheriting or taking by descent, devise, or limita- {d) Knowles v. Powe), sup. (/ ) Ibid. (e) Knowles v. Powel, sup. Eyre (7) Ognell's case, Cro. Eliz. 270. V. Woodfine, Cro. Eliz. 278; S. C. 1 (A) Rol. Ab. Uthigarie, (B), pi. 4. And. 277. T. Jo. 101. Peyton v. Com. Dig. UUagary, (D. 3.). Ayliffo, 2Vern. 312. Com. Dig. Utla- (i) Co. Lit. 2, b. Shep. Touch. 23o, gary, (C. 5.). -And sec Tlio President (/.) 11 & 12 W, 3. c. 4. s. 4. and Scholars of St. John's College, O.x- (/) 30 Car. 2. stat. 2. ford, r. Murcott, 7 Term Rep. 25^. 264. 536 OF THE CONTRACTING PARTIES. [pAur III. tion, iu possessioiij reversion, or remainder, any lands, tenements, or hereditaments; and that, during the hfe of such person, or until he or she should take the said oaths, and subscribe the said declaration, the next of his or her kindred which should be a protestant should have and enjoy the said lands, &c., without being accountable for the profits during such enjoyment ; and that every papist, or person making profession of the popish religion, should be disabled from purchasing, either in his or her own name, or in the name of any other person or persons, to his or her use, or in trust for him or her, any manors, lands, profits out of lands, tenements, rents, terms, or hereditaments ; and that all estates, terms, and any other interests, or profits whatsoever out of lands, to be made, suffered, or done, to or for the use or be- hoof of any such person or persons, or upon any trust or confidence, mediately or immediately, to or for the benefit or relief of any such person or persons, should be utterly void and of none effect {m) . These proA^sions were repealed by the act of 18 Geo. 3. c. 60 [n], which provided at the same time (o), that nothing therein contained should extend to any person but such as should within six calendar months after the passing of the act, or of accruing of his, her, or theii' title, being of the age of twenty-one years, or, who, being under that age, should, within six months after attaining that age, or being of unsound mind, or in prison, or beyond the seas, then within six months after the removal of such disability, take and subscribe an oath of allegiance, abjuration, and supremacy. By a late act {])), however, it is declared (. (p) 10 Geo. 4. c. 7; unaffected by (?»,) Tlie entire act of 1 1 iV 12 W. 3. & 10 Vict. c. .5.0. c. 4, was repealed l>y 9 & 10 Vict. (q) Sect. 22. c. .5.0. 8. 1 . Ch.II.ssII.&III.I who lessees: COPYHOLDEES — JNT.-TNTS. 537 Section II. — With reference to estate. The estate of a copyholder is the only one that requires particular comment in this section. If a copyholder in fee take a common law lease of his copy- hold either immediately from the lord of the manor (r), or by assignment from one to whom the lord has granted it {s) ; or if he take a lease of the manor itself (^), his copyhold inte- rest will be extinguished for ever. But if land be demised by copy of court roll to three sisters for their lives successive, and the first tenant for life accept a common law lease by indenture from the lord, her interest only will be extinguished. The next sister in successionj however, cannot enter, for her remainder does not take effect until the death of the eldest sister ; nor can the lord, as he is estopped by his deed [u) . Section III. — With reference to number and CONNECTION. Leases ma}^ be granted as well to several persons as to one person; and where granted to several, they may take as joint- tenants, or as tenants in common. I . — Joint-tenants. If the lease be granted to two for a term of years, or for their lives, the survivor will be entitled to the whole at law(y), (?•) Lane's case, 2 Co. 16, b. 17, a.; (t) Lane's case, sup. Freuche's case, S.C. 1 And. 191. pi. 226; 1 Leon. 170 ; 4 Co. 31, b. 2 Sid. 139. Sav. 70-1. S. C.,nom. Smyth r. Lane, Gouldsb. 34. Belfield v. Adams, 3 Bulstr. 81 ; S. C, Anon. Godb. 101. pi. 117. Sav. 70, nom. Southcott r. Adams, 1 Rol. 256. case 146. 1 Brownl. 32. Frenche's Anon. Cro. Eliz. 7. Gybsou r. Searls, case, 4 Co. 31, a. Dugworth v. Rad- Cro. Jac. 81, arff. by Coke, cont.; and foi'd, W. Jo. 462. And see Blemmcr cont. Co. Cop. 172. Hasset v. Humberstone, Hutt. 65 ; (m) Curtise v. Cottel, 2 Leon. 72. S. C, nora. Bleverhasset r. Hmnber- (r) Lit.s.281. Co.Lit. 181,b. 182,a. stone, W. Jo. 48. Sym's case, Cro. Eliz. 33. Brudnel's (.s) Lane's case, sup. ease, 5 Co. 9, a. 538 OF THE CONTRACTING PARTIES. [Part III. unless the joint estate be previously severed (). They are also empowered (c) to purchase of any person, &c., any lease or term of years, which may be then subsisting in any manors, &c., whether the same shall or shall not be a part or parts of the possessions and land revenues of the crown to which the act relates [d), and to enter into such contracts for that purpose as to them shall seem proper. In every case where any lease shall be taken by them, and in every case where any lease, not being a lease of part of the possessions and land revenues of the crown to which the act relates, shall be purchased or taken in exchange, they must cause such lease to be granted or assigned, as the case may be, to a trustee or trustees for her Majesty, her heirs and successors ; and they are directed to indemnify such trustees respectively, and their heirs, &c., from the rents and cove- («) All acts required, directed, or rents, and other land revenues, posses- permitted to be done by the commis- sions, tenements, and hereditaments sioners, may be done by any two of whatsoever,(advowsons of churches and them: 10 Geo. 4. c. 50. s. 16. 2 & 3 vicarages only excepted,) which belong W. 4. c. 1. 6. 10. See ante, p. 188. or hereafter shall belong to her Ma- {h) 10 Geo. 4. c. 50. s. 47. jpsty, her heirs or successors, within (c) 10 Geo. 4. c. 50. s. 48. the ordering and survey of the court {d) The possessions and land reve- of Exchequer in England or Wales, in nucs of the crown to which the act Ireland, in the Isle of Man and its relates comprises all honours, hundreds, dependencies, and the Isle of Alderney, castles, lordships, manors, forests, whether in possession, rem.ainder, or chases, woods, parks, messuages, lands, reversion. See sect, f! of the act. tithes, fisheries, franchises, sorvices. Cii. II. s. IV.J WHO LESSEES: THE CROWN, AND ITS OFl'ICERS. 545 nants in such leases respectively reserved and contained, and on tlic part of the lessees to be paid observed and performed (e) . And in every case in which any subsisting lease of any part of the possessions and land revenues of the croAvn to which the act relates shall be pm-chased or taken in exchange by the commissioners, or shall have been contracted for under any of the acts thereby repealed, they may either cause the same to be surrendered, in order that they may merge, or cause them to be assigned to any trustee or trustees for her Majesty, her heirs or successors, to be kept on foot distinct from the inheritance (/) . And it is provided [g), that no pm'chase, except where the money shall not exceed 100/., shall be made by the commis- sioners without the previous authority of the lord high trea- surer or the commissioners of the treasury for the time being (A), to be signified by some warrant under hand. Such authority, however, may be given either generally for any par- ticular class of cases, or for any particular purchase, and either with or without any condition or restriction, as to the lord high treasui'er or commissioners may seem meet. For the pui'pose of carrying such purchases into effect, the act empowers all bodies politic or corporate, ecclesiastical or civil, and all trustees for the time being, possessed of or entitled to any leases or terms of years, or any manors, lordships, &c., which the commissioners shall be desirous of purchasing, and for all tenants for any interest short of an absolute interest therein, and for the guardians or guardian, or committees or committee, of any person interested therein who shall be an infant, lunatic, idiot, or otherwise incapacitated, to contract with the commissioners for the absolute sale of such leases, terms, manors, &c., and to assign, convey, or surrender the same accordingly (i) . (c) 10 Geo. 4, c. 50. s. 49. oners of the Treasury, may be done (/) Sect. 50. by any tlu-ee of them. 10 Geo.4. c. 50. \g) Sect. 60. s. 16. See ante, p. 188-9. (/() All acts" required, du'ected, or (/) Sect. 53. permitted to be done by the Commis- VOL. I. N N 546 OF THE COXTRACTING PARTIES. [Part III. Where any purchase shall be made from any body poUtic, corporate, or collegiate, or person under incapacity, or not having power to sell except under this provision, the value of the property purchased shall be ascertained by two able prac- tical surveyors, one to be nominated by the commissioners, and the other by the body politic or coi^porate, or person, con- tracting to sell ; and if such two surveyors shall not agree in their valuation, then by such third surveyor as the two shall nominate; and each of the two, if they shall agree in and make their valuation, or if not, the surveyor so to be nominated by them, are to verify the survey and valuation on oath, or (being one of the people called Quakers,) on affirmation, to be subscribed by him, and taken before and certified by any justice of the peace or magistrate in a form provided by the act (k) ; and the price or consideration to be paid or given for such purchase shall in no case be less than the sum at which the same shall be valued in such survey (/). And in all other cases, before the making of any purchase, a like sm'vey and estimate of the hereditaments proposed to be purchased shall be taken as is required in cases of grants of leases by the commissioners (m), unless from the circumstances before mentioned (/^), such survej'' shall be deemed inexpe- dient (o). All deeds or instruments by which any estates, &c., in England or Wales shall be purchased under the act, are sub- ject to the same regulations with regard to enrolment, and proof of enrolment, as are applicable to leases granted by the commissioners (p) . And the G6th section of 10 Geo. 4, and the 25th & 28th sections of 2 & 3 W. 4, declare (^), that every conveyance, deed, or instrument, whereby any term of years in heredita- ments in England or Wales shall be assigned to her Majesty, her heirs or successors, or to a trustee or trustees for her (/;) 10 Geo. 4. o. 50. s. 01. (p) 10 Geo. 4. c. 50. s. 63. 2 & 3 (0 Sect. 54. W. 4. c. 1. ss. 1.1 15.21. 22. And see (m) Sec ante, p. 189, ante, p. 196-7. (w) Sec ante, p. 189. (q) 10 Geo. 4. c. 50. s. 66; 2 & 3 (o) Soofions 61 and 62. W. 4. c. 1. a.s. 25 & 28. Cn. II. S. TV.] WHO lessees: THE CROWN, AND ITS OFFICERS. 517 Majesty, her heirs or successors, shall, when so enrolled, with- ut any enrolment or acknowledgment in any court of law or equity, or any registry thereof, be as good as if the same had been enrolled in any of her Majesty^s courts at Westminster, or as if a memorial had been entered or registered in the office appointed for registering of deeds and other conveyances in the county or counties in which the same estates or any of them are situate. If the premises purchased lie in Ireland, the commissioners must cause duplicates of all conveyances, deeds, or instru- ments, by which they are purchased or taken in exchange to be transmitted to the office of record in Ireland in which the original rentals or rent rolls of the Queen^s rents shall be preserved; and every such duplicate must be there preserved, and be and remain of record among the other records and muniments preserved in such office (r). And every such conveyance, deed, or instrument of pre- mises in Ireland, without any enrolment in any court of law or equity, or any registry thereof, is declared to be as good as if the same had been enrolled in any of her Majesty's courts at Dublin, or as if a memorial had been entered or registered in the office appointed for registering deeds and other convey- ances of lands and tenements in Ireland under an act passed in the parliament of Ireland in the reign of Queen Anne {s) . No memorandum, contract, or agreement, to be made or entered into by or with the commissioners for the purchase or exchange of any estates, &c., or any term or interest therein, by the commissioners, nor any deed, receipt, or other instru- ment, given, granted, entered into, executed, or made, for the purpose of carrying into effect any such purchase or exchange, or which shall be incidental to, or connected with, any such purchase or exchange, nor any lease, or contract for any lease or leases, nor any counterpart of any lease to be entered into, made, executed, or granted, imdcr the powers of the act, shall be subject or liable to any ad valorem or (r) Sect. 70. (*) Sect. 72. X N 2 548 OF THE CONTRACTING PARTIES. [PaiitIII. other stamp duty whatsoever under any present or future act^ unless the same be specially subjected thereto by such futm-e act (/) . The 17th section of the act exempts the commissioners from all personal responsibility in respect of leases or pur- chases taken on behalf of the crown [u) . The annual report which the commissioners are directed to make {x) is to include such leases and purchases as they shall have taken and made on behalf of her Majesty during the preceding year. We have already (y) had occasion to advert to the union, by 2 W. 4. c. 1, of the office of the surveyor-general of her Majesty^s works and pubhc buildings to the office of the commissioners of the woods, forests, and land revenues ; the commissioners being called, " The Commissioners of her Majesty^s woods, forests, land revenues, works, and buildings^'; and we have also seen [z], that, by the statute of 2 & 3 W. 4. c. 112, the hereditary land revenues of the Crown in Scotland were placed under the management of the same commissioners. The powers conferred by this act were enlarged in the next session of parliament, by investing the commissioners with the same powers with regard to lands in Scotland, as they enjoyed with regard to lands in England («), and, consequently, of taking leases of lands in Scotland, on behalf of the Crown, according to the 47th and other sections of the act of George the 4th (b) ; though, instead of the enrol- ment there prescribed, the commissioners are to cause dupli- cates of all such leases to be recorded or registered in the office of Chancery of Scotland, and a minute or docket of such leases to be entered and preserved in their own office (c). It is further provided (d), that every conveyance, deed, or (<) Sect. 77. 5 & 6 W. 4. c. 58. And see ante, (m) 10 Geo. 4. c. 50. s. 17. And p. 20G. see ante, p. li).9. (h) 10 Geo. 4. c. 50. s. 47; and see (.r) 10 Geo. 4. c, 50. s. 125. Anto, ante, p. 544. p. 200-1 . (r) .S & 4 W. 4. e. fi.O. s. 7. And see (y) Ante, p. 107-fi. also sect. 8; and ante, p. 207. (2) Ante, p. 204. (d) Sect. 9. (a) .'{ & 4 VV. 4. r. fi.O; anicny 4a Goo. 3. c. 109. 21 Hen. 8. c. 13; and 57 Geo. 6. c. 99, (/') .')7 Geo. ,3. c. 99, repealing 21 except so far as the latter act i-epcalcJ llfn. H. e. 1 ."!, and 43 Geo. 3. w. 84 and any othei*. >"»•''■ (/-) Sect. 28. Cii. II. s. IV.] WHO lessees: — churchwdns. and overseers. 551 The term benefice, as used in this act, signifies benefice with cure of souls, and no other, and comprehends all parishes, perpetual curacies, donatives, endowed public chapels, paro- chial chapeh'ics, and chapelries or districts belonging, or reputed to belong, or annexed, or reputed to be annexed, to any church or chapel {I) . It has been held, that a lease to a spiritual person, contrary to 21 Hen. 8. c. 13, was not void (m) ; though a court of equity would not lend its aid to enforce a specific performance of a contract for such a lease {n) . From the similarity of the lan- guage in the two acts, it is submitted that the cases cited are applicable to the act of 1 & 2 Vict. c. 106. The act of Henry the 8th extended to manors, lands, tene- ments, or other hereditaments ; but the act of her Majesty is confined to lauds; and, hence, there is no restriction against ecclesiastical persons taking a lease of tithes. IV. — Churchwardens and Overseers, and others connected with the Management of the Poor. Leases of this description are for all practical purposes regulated by act of parKament. By 9 Geo. 1. c. 7 (o), churchwardens and overseers of the poor in any parish, town, township, or place, were empow- ered {p), with the consent of the major part of the parish- ioners or inhabitants, assembled in manner therein mentioned, to pm'chase or hire any house in the same parish, township, or place, and to keep, maintain, and employ, the poor there. And by 59 Geo. 3. c. 12 {q), the churchwardens and over- Q) Sect. 124. The theory of our («) Morris v. Preston, suj). ecclesiastical constitutiou knows not (o) 9 Geo. 1. c. 7, entitled " An act the character of a clergyman unem- for amending the laws relating to the ployed. He must either be bene- settlement, employrr.ent, and relief of ficed, or a cm-ate with a stipend; per the poor." Lord Eldou, C, in Morris v. Preston, {j)) Sect. 4. 7 Ves. 554. Iq) 59 Geo. 3. c. 12, entitled « An {ill) Woodley v. James, 3 Dy. 358, a. act to amend the laws for the relief of Hitchcock V. Thurland, 3 Leon. 122. the poor." But see Morris v. Preston, 7 Ves. 54(i. 552 OF THE CONTRACTING PARTIES. [Paut III. seers in any parish not having a workhouse for the poor thereof, or an insufficient or inconvenient vv^orkhouse, were empowered {r), by the direction of the inhabitants in vestry assembled, to build in the parish a suitable workhouse, and to piu'chase, or take on lease, any ground within the parish for the purpose of such building ; or («), by the direction of the inhabitants so assembled, to purchase or hire any suitable and convenient house or building for the purpose, in any adjoining parish, with the consent of two or more justices ; so that such house or building should not be situate more than thi'ee miles from the parish for which the same should be purchased or hired. They were also empowered {t), with the consent of the inhabitants of the parish in vestry assembled, to hire and take on lease, for and on account of the parish, any suitable portion or portions of land within or near to the parish, not exceeding twenty acres in the whole; and to employ the poor in the cultivation thereof on account of the parish. And it was provided («), that all buildings, lands, and here- ditaments, which should be purchased, hired, or taken on lease, by the churchwardens and overseers of the poor of any •parish, by the authority and for any of the purposes of the act, should be conveyed, demised, and assured, to the church- wardens and overseers of the poor of every such parish respect- ively, and their successors, in trust for the parish ; and such churchwardens and overseers of the poor and their successors were thereby empowered to accept, take, and hold, in the natui'C of a body corporate, for and on behalf of the parish, all such buildings, lands, and hereditaments, and also all other buildings, lands, and hereditaments, belonging to such parish (dng twelve months^ notice in writing of his or their intention so to do ; nor for a shorter term than tliree years ; the rents to be paid out of the poor rates. It was also provided {k), that the visitor and guardian for the time being of every parish, township, and place, or of the several parishes, townships, and places, after having adopted (c) Gouldsworth 1'. Knights, llMces. Geo. 3. c. f); and i in 5 W. 4. c. 70. & Wei. 337. ss. 37 and 41. (/) 22 Geo. 3. c. «.">, entitled "An (h) Sect. 17. act for the better relief and employ- (i) Sect. 10. And sec 4 & 5 W. 4. nient of the poor", amended by 1 & 2 c. 7G. ss. 37 and 41. Geo. 4. c. rtC). (j) Sect. 1,'). and sclicd. No. 4. (>j) Sections 3 and 7. And see II (/) Sect. 21. Cil.Il. S.IV.] WHO LESSEES: CHURCHWDNS. AND OVERSEERS. 555 tlie provisions of the act^ should be one body politic and cor- porate, and might accept take and hold, by ptQ'chase or lease, any lands, tenements, or hereditaments, of inheritance, or for lives, or years, or for years determinable on the death of any life or Hves, not exceeding in any city or town one acre, and not exceeding in the open country twenty acres, of statute measure, for the site of a house or houses to be built, and for lands to be occupied for the purposes of the act. And all bodies politic, corporate, or collegiate, corporations aggregate or sole, husbands, guardians, trustees, feoffees in trust, committees, executors, administrators, and all other trustees whatsoever, not only for and on behalf of themselves, their heirs and successors, but also for and on behalf of their cestuis que trust, whether infants, issue unborn, lunatics, idiots, femes covert, or other person or persons, and all femes covert who were or should be seised, possessed of, or interested in, any lands, tenements, or hereditaments, which should be necessary to be purchased or rented for the purposes of the act, were empowered (/) to contract for, sell, and convey, or lease the same, or any part thereof, in manner therein afore- said, not exceeding the quantity therein aforesaid, unto the said visitor and guardians, their successors and assigns, or to such person or persons as they should nominate and appoint, for the use and benefit of such poor house, and the poor per- sons within such parishes, townships, and places, respectively, and for all other the purposes of the act. The twenty acres were afterwards (m) extended to fifty. By an act of 4 & 5 Wm. 4 {n), the administration of relief to the poor throughout England and Wales, according to the then existing laws, or such laws as should be in force at the time being, was subjected to the direction and control of the poor law commissioners for England and Wales (o) . (I) Sect. '22. the poor in England and Wales." (m) 1 & 2 W. 4, c. 42. ss. 1 and 3. (o) Sections 1.2. 15. See also sect. 49, n) 4 & 5 W. 4. c. 76, entitled "An Their office was limited to five yeare; act for the amendment and Letter ad- but wiis continued by 2 & .3 Vict. c. 83 ; ministration of the laws relating to 3 & 4 Vict. c. 4'2 ; and lately by 5 & fi 556 OF THE CONTRACTING PARTIES. [PautJII. And it was enacted (^) that, except where otherwise thereby provided, all the powers and authorities given by the acts of 22 Geo. 3. c. 83, and 59 Geo. o. c. 12, and all acts for amend- ing such acts respectively, and also all the powers and autho- rities given by every other act of parliament, general as well as local, for or relating to the building, altering, or enlarging, of poorhouses and workhouses, and to the acquiring, purchasing, hiring, holding, selling, exchanging, and disposing thereof, or of land whereon the same might have been or might there- after be erected, and of preparing such houses for the reception of poor persons, and the dieting, clothing, employing, and governing, of such poor, and the raising or borrowing of money for any of such purposes, and for repaying the same, and all powers of regulating and conducting all other workhouses whatsoever, and of governing, pro\iding for, and employing the poor therein, and all powers auxiliary to any of the powers therein aforesaid, or in any way relating to the relief of the poor, should in future be exercised by the persons authorised by law to exercise the same, under the control and subject to the rules, orders, and regulations of the commissioners : Pro- vided, that nothing therein contained should be construed to give the commissioners, or the assistant commissioners, any power to order the building, purchasing, hiring, altering, or enlarging of any workhouse, or the purchasing or hiring of any land at the charge, or for the use, of any parish or union, save and except so far as such powers were expressly thereby given. The commissioners were empowered () Ibid. And see Medhcott v. V. Massey, 1 Ball & Beat. 235. Lord O'Donel, 1 Ball & Beat. 156. Kingsland r.~ Barnevvall, 1 Bro. P. C. (/) 1 Bli. P. C. N. S. 8. VOL. I. CO 562 OF THE CONTRACTING PARTIES. [Part 111. were alloT/ed on the dismissal of the bill in Harris v. Tremen- lieere, as to some of the voluntary leases granted to the defend- ant, were given on the ground of such leases being an inducement to, and provision upon, the defendant's marriage. But, on setting aside leases so granted, the lessee will be allowed credit for valuable and lasting improvements of the property (m) . Length of acquiescence, however, or acts of confirmation, may give validity to leases which coidd not originally have been supported had means been resorted to within a reason- able time for the purpose of setting them aside. Thus, in Medlicott v. O'Donel {n), where the plaintiff had slept upon his title for twenty-seven years, dm'ing which period the defendant was altogether divested of the fiduciary character of agent, and every other character which could have infected the transaction had ceased to subsist, the court refused to interpose to vacate the leases. The same rule prevailed in the case of Lord Selsey v. Rhoades(o), James Lord Selsey, being tenant for life with power of leasing, in the year 1S04, concurred with Mr. Peachy, his son, the next tenant for hfe, in an agreement with the defendant, their steward, to grant him a lease for twenty-one years, under circumstances which it is not necessary to particularize. On Lord Selsey's death in 1808, Mr Peachy (then John Lord Selsey) became tenant for life, and executed a lease in 1809 according to the terms of the agreement. He died in 1816, when the reversion be- came vested in the appellant, who delayed the fihng of his bill till 1821, having in the meantime accepted the rent reserved in the lease. " I have looked," said Lord EldonQo), "into this case with a desire to affect the lease; for the situa- tion of the parties was such as to induce a court of equity to look at the transaction with great suspicion. If the suit had (m) Watt V. Grove, Grove v. Watt, Beat. ITiG. 164. And see Blakeney r. 2 Scho. & Lcf. 4.02. 513. Attorney- Bagott, 3 Bli. V. C. N. S.237. Cham- General V. Baliol College, Oxford, .0 pion v. Bigby, 1 Russ. & Myl. 539; Mod. 411. Ward v. Hartpole, 3 Bli. S. C. Taml. 421. P. C. 470. 400. (o) Supra. (n) Medlicott r. O'Donel, 1 Ball k (p) I Bli. P. C. N. S. 8. Ch. Ill] WHO lessors: — principal to steward, etc. 563 been instituted recently after the contract, and there had been no acts of confirmation, probably the lease might not have stood; but James Lord Selsey and John Lord Selsey acquiesced so long, being well acquainted with the facts, that it is difficult to say that they could have impeached the lease, and the appellant cannot do that which they could not have done/^ There is no limited time, however, within which relief must be sought ; every case must depend on the peculiar circumstances which give rise to the application. Leases granted by a client to his attorney are governed by the same principles as those between employer and steward (g). As to leases taken by a guardian of his ward, it was said by L. C. Manners (r), " Generally speaking, there are no transactions in a man's life that ought in this court to be more scrupulously or with more jealousy examined, than those which occur recently after the ward attains the age of twenty- one, affecting his real property. Antecedent to that period his infancy is his protection, his disabihties are his security ; but instantly after he attains the age of twenty-one, as if he had acquired all the prudence and experience necessary to the management or disposal of his property, with the possession are given the absolute control and dominion over his estates. At law, all his acts are binding, all his deeds are valid, unless, upon some distinct case of fraud, they can be impeached; but it is not so in this court : those relations of guardian and ward, principal and agent, trustee and cestui que trust, which are little regarded in a court of law, are in this court decisive against the validity of a transaction which between strangers could not be impeached." This last position carries the doctrine higher than, perhaps, is recommended by sound policy; and, as to principal and (q) Harris v. Tremenheere, sup. Thomas, 2 Yo. & Col. Exch. 498. Lord Selsey v. Rhoades, sup. Ward Champion v. Rigby, 1 Russ. & Myl. V. Hartpole, sup. Watt v. Grove, 5.59; S. C. Taml. 421. Rhodes v. Grove v. Watt, 2 Scho. & Lef. 492. Beauvoir, 6 Bli. P. C. N. S. 195. 503. And see Kenney v. Browne, .3 (*•) Dawson v. Massey, 1 Ball & Ridg. P. C. 462. Blakeney v. Bagott, Beat. 232. 3 Bli. P. C. N. S. 237. Jones v. O O 2 564 OF THE CONTRACTING PARTIES. [Part III. agent, and trustee and cestui que trust, at least, is certainly inconsistent with the cases previously cited in this chapter. Without doubt, however, transactions between guai'dian and ward, occui'ring soon after the determination of the relation, require the most satisfactory proof of fair dealing to support them. In the case of Dawson v. Massej^ [s], Mr, Massey, the de- fendant, and the plaintiff's uncle, had been agent to the plaintiff's father for thirty j^ears, and in that capacity had acquired an intimate knowledge of the nature and value of the estate. He then became guardian to the plaintiff, who was a young man educated in England, and had not seen his estate since he was a boy. In September ]S00, the plaintiff came of age, and then apprised his uncle of his intention to appoint an agent : the uncle, displeased at his so doing, urged him strongly against it, and made use of the expression, "that no one could acquire a knowledge of the estate for years." The plaintiff, however, did appoint one John Massey, (not the defendant) his agent, and went over to Ireland assisted by him, and immediately after entered into a treaty with his uncle, who then obtained five leases of different parts of his nephew's estate ; some for ever, and the remainder for four lives, the latter containing clauses of sur- render : and the uncle soon afterwards underlet those lands at a profit rent of nearly 1300/. per annum. It appeared from the depositions of John Massey, the plaintiff's agent, that the lands were let at an undervalue ; that the defendant refused to treat with him, and actually tm'ned him out of the room when he was treating with the plaintiff for a lease, for having offered his opinion as to the value. It also appeared that the uncle, an elderly man without children, had a con- siderable influence over his nephew, then very inexperienced in the value of his estates ; and that he held out inducements both to Massey, the agent, and to the plaintiff, by letter, stating that whatever interest he got in the leases would ulti- (a) Dawson v. Massey, 1 Ball & Beat. 21.0. Cy. Ill ] WHO lessors: — principal to steward, etc. oG5 mately be for the benefit of the plaintiff. It was also proved that persons who would have bid for some parts of the lands taken by the defendant declined doing so, finding that he had proposed for them. It appeared that, before the defendant got leases of the principal part of the estate, the plaintifl" and his agent visited them, and received several proposals for leases which were not accepted. Upon these grounds, as well as upon the ground of the subsisting influence of the uncle over the nephew, though the relation of guardian and ward had ceased, and of the absence of all security for the inducement held out that the transaction would ultimately tend to the advantage of the plaintiff", the court decreed the leases to be set aside, and gave the plaintiff" his costs. As to the dealing being one of a family nature, an arrange- ment between the uncle and nephew, so that the full value of the property or the highest rent was not to be taken as the only consideration between the parties, or the criterion by which the court was to form a judgment of its fairness, his lordship said, that that was not the ground upon which the defence was rested, nor was there any proof of it {t) ; and, indeed, he should expect some very satisfactory e^ddence before he could act upon such a case ; something to show that the young man was well advised, and that there was some security for what was held out; but the declaration by the defendant to the plaintiff'^s agent was calculated only to silence the agent, and to keep in check his activity and exertion iu) . The same doctrine was adhered to in the case of Mulhallen V. Marum {x), where a lease perpetually renewable made by a party shortly after the attainment of his majority to a person standing in the relation of his guardian, agent, receiver, and tenant, was set aside on grounds of public policy, notAvith- standing the plaintiff" had delayed the filing of his bill for eleven years after the grant of the lease. (0 See Watt v. Grove, Grove v. («) 1 Ball & Beat. •2.'55. Watt, -2 Scho. & Lef. 49-2. 501, per (.r) Mulhallen f. Marum, 3 Pru. & Lord Redesdale, C. War. 317. 566 OF THE CONTRACTING PARTIES. [Part 111. And in Aylward v. Kearney {y), a lease obtained by the guardian^s son from tlie ward a few years after he came of age was set aside thirty years after its execution, the ward being of weak understanding, and continuing during his life under the control and influence of the guardian and his family. The length of time was not considered, under the circumstances, to amount to a bar. A lease is not void, even in equity, simply from the circum- stance of its being granted by a mortgagor to his mortgagee ; but if there be anything more, the court will look into the transaction with the greatest possible jealousy (^). In the case cited, the lease was set aside, the mortgagee having ob- tained it at an unfair value, in consequence of the distressed circumstances of the lessor. (y) Aylward v. Kearney, 2 Ball & (2) Gubbins v. Creed, 2 Scho. & Beat. 463. Lef. 214. 567 CHAPTER IV. OF THE CONTRACT OR AGREEMENT. TN the preceding parts of this work we have shown by and -*- to whom leases may be granted^ whether the contracting capacity relate to person, estate, number and connection, or office; but as every lease actually granted must necessarily be preceded by an executory contract, either verbal or written, it becomes necessary to advert to the requisites, form, con- struction, and effect, of such contract ; an inquiry that may be advantageously entered upon before we investigate the law connected with the duration of the lease, its essential and formal parts, and means of determination. This will open an extensive field for examination ; and without due caution would lead to discussions claiming but a remote relation to the principal design in view. Aware of the consequences of deviating from certain prescribed limits, I must, in endeavouring to explain this branch of my treatise, confine myself, with very few exceptions, to those cases which have been determined on Agreements for leases only. In pursuing this inquiry, we may consider, I. What is a sufficient signatm'e of the agreement within the statute of frauds : II. In what cases Equity dispenses with the necessity of signature on the ground of part performance : III. The form; distinguishing herein agreements for leases from leases: IV. The effect and consequences of the agreement ; par- ticularly with reference to specific performance ; and V. The admissibility of parol evidence to explain or annul the written agreement. 568 OF THE CONTRACT OK AGREEMENT. [Taut IJI. Section I. — With regard to the signature. The fourth section of the statute of frauds (a) enacts, that no action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages, of another person; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. The signature contemplated by the statute must be such as will amount to an acknowledgment by the party that the agreement is his : and unless the name give such authenticity to the instrument, it cannot amount to what the statute re- quires. The mere insertion by a party, in his own hand- writing, of his name in the body of a memorandum of an agreement for a lease, for example, "Mrs. Stokes to pay Moore 21)/. half yearly" is not a formal signature within the meaning of the act [h) . It is perhaps difficult, except in the case of a letter with a postscript, to find an instance where a name inserted in the middle of a writing can well have that effect ; and there the name being generally found in a parti- cular place by the common usage of mankind may very probably have the effect of a legal signature, and extend to the whole [c). Nor will the circumstance of a party altering a draft of conveyance, and delivering it to the attorney to be engrossed, amount to a signing (r/). Nor is the statute com- (rt) 2.9 Car. '2. c. .3. {d) Hawkins v. Holmes, 1 P. Wins. {!>) Stokes V. Moore, 1 Cox, •21'>. 770. Lowther r. Carill, 1 Vera. 221. (.) Ibid. Ch. IV. s. I.] OF THE SIGNATURE OF THE AGREEMENT. 569 plied with, unless the agreement, though entirely MTittcn with the party's hand, be likewise signed by him, or something equivalent be done ; the absence of signature being evidence that the party considers the instrument incomplete (e). So, the bare entry of a steward in his lord's contract book with his tenants is not evidence, of itself, of an agreement for a lease between the lord and a tenant (/). But where an agreement has been reduced to a certainty, and the statute has been complied with in a material part, the forms are never insisted on. Upon this principle, it was determined, that the subscribing of an agreement, as a witness only, by one who was acquainted with the contents, was suf- ficient (ff) . It is, therefore, clear, that the person sought to be charged need not be a party to the instrument in the technical sense of that word : the term party in the statute signifying no more thixn. person in general {h). Sealing is in no case necessary (/') . An instrument, however, not originally binding as an agreement may, by subsequent acts of reference and acknow- ledgment, for it is not necessary that the note in writing should be contemporaneous with the agreement [k), constitute a valid contract within the terms of the statute (/) . A land- lord, in 1781, treating for a lease, in order to render the agreement clear and certain, entered, in his own handwriting, in a book of register, the heads and import of the agreement, and described, in the form of a map, the farm, with the metes and boundaries thereof, under which he wrote, "fifty-eight acres, two rods, and five perches : lives of Isaac Finnamore, aged twelve ; Mary Finnamore, aged eleven ; Deborah Finna- more, aged six; children of Thomas Finnamore; at twelve shillings per acre, from the 1st of Ma}^, 17 SI"; and, after- wards, in consequence of an application for a specific perform- (c) Bawdes v. Amliurst, Prec. Ch. («) Wheeler v. Newton, Free. Ch. 402. 16; S. C. 2 Eq. Ca. Ab. 44. pi. 5. (/) Charlewood v. Duke of Bedford, (Z) Shippey v. Demson, 5 Esp. 190. 1 Atk. 497. (0 Powell r. Dillon, 2 Ball & Beat. {g) Walford-i'. Beazely, 3 Atk. 503; 416. Verlander r. Codd, 1 Tura. & S. C. 1 Ves. 6. • Russ. 352. {h) Ibid. 570 OF THE CONTRACT OR AGREEMENT. [Part III. ance, wrote the following letter to Hall his steward : — " Hall, I request you to give Mr. Powell the article from me to Thomas Finnamore, about the quarry or HiU farm, that he may get leases drawn. R. Neville, May 9, 1805.'^ The court held, that the instrument, when connected with Neville's letter, contained every requisite pointed out by the statute {m) . So, where one having contracted by parol to take a lease, but being unable to perform his agreement, by indorsement on the draft of the lease, required the plaintiflF to cancel it in these terms : — " I hereby request Mr. Shippey to endeavour to let the premises to some other person, as it will be incon- venient to me to perform my agreement for them ; and for so doing this shall be a sufficient authority, J. Derrison^', it was held, that the indorsement under the hand of the party, expressing that he had entered into the agreement, was a clear recognition and adoption of a prior contract, and was sufficient to satisfy the statute (/?) . Notwithstanding the doubt thrown out upon the point by Lord Redesdale (o), the better opinion, founded on more re- cent consideration (jo), is, that an agreement may be speci- fically enforced against a defendant who has signed it, although it be not signed by the party seeking the perform- ance ; and that such an agreement may be the foundation of an action at law (q) . The words of the act (?'), indeed, seem to admit of no other interpretation. A very early case {s) is commonly quoted in confirmation of, and, as reported in the cases in Chancery, fully justifies, this doctrine. It there ap- pears, that A. sold certain houses to B. for 2000/., and A. drew up a note of the agreement in writing, which B. signed, (ra) Powell r. Dillon, sup. And see & B. lf)2. Martin v. Mitchell, 2 Jac. Parker r. Smitli, 1 Col. COS. & Walk. 42C-7. Dowell v. Dew, 1 (w) Shippey v. Derrison, sup. Yo. & Col. V. C. 345. 356. Sutherland (o) Lawrenson v. Butler, 1 Scho. & r. Briggs, 1 Hare, 26. 34. Lef. 13. (r/) Laythorp v. Bryant, 2 Bing. N. (p) Fowlc V. Freeman, f) Ves. 351. C. 735; S. C. 3 Scott, 238. Huddleston v. Briscoe, 1 1 Ves. 592. (r) " Signed by the party to be Allent'. nennct,3Taunt. 17C. O'Rourke charged therewith," &c. V. Percival, 2 Ball & Beat. 58. Lord (,*) Hatton v. Gray, 2 Ch. Ca. 164; Ormond v Anderson, 2 Ball & Beat. S. C. 1 Eq. Ca. Ab. 21. pi. 10. 363. ;'.70. WcHtorn v. Russell, 3 Ves. Ch. IV. s. II.] OF THE SIGNATURE. PABT PERFORMANCE. 571 but A. did not ; and tliat a decree for a specific execution of this agreement was made in favor of A. ; but no reasons are given. In another book (t), the decree is stated to have been for A., for as he drew up a note of the agreement in his own hand, and procured B. to sign it on his part, the signing of B. was not only a signing for himself, but as authorised by A. to close the agreement; and, therefore, if B. had come into a coui't of equity against A., the court would have decreed the agreement against A., and therefore vice versa. But this reason rather mihtates against, than supports the proposition, as it would seem that the decision was grounded on the cir- cumstance of the agreement being virtually signed by the plaintiff. Whether the kind of reasoning of the court would be now sanctioned is a different question : probably it would not [u] j but as the case stands, it seems to be an authority for the reverse of what it is usually cited to prove. At all events, if the party who is not bound has endeavoured to obtain an undue advantage, or has been playing what is called fast and loose, equity will not assist him {x) . Section II. — In what cases equity dispenses with sig- nature ON the ground of part performance. A strict compliance with the provisions of the statute is not in all cases indispensable to the completion of the con- tract in equity. Where the agreement has been substantially in part performed, the court will decree its specific execu- tion, notwithstanding it be unsigned, or not even reduced to writing {y) . Mr. Justice Buller once {z) conceived that part performance took a case out of the statute at law as well as in equity; but, being pressed with the consequences of that (<) Gilb. Lex Pra?t. p. 240. 108; cited, Gilb. Eq. Rep. 4 and 11; (m) Wright V. Dannah, 2 Campb. 2 Vern. 456. Auon. .5 Vin. Ab. 522. 203. pi. 38. (x) Lord Ormond v. Anderson, 2 (z) 1 Bro. C. C. 413. 417. Brodie Ball & Beat. 363. 371. ''. St. Paul, 1 Ves. jun. 333. (y) Lester v. Foxcroft, Colles P. C. 572 OF THE CONTRACT OR AGREEMENT. [Part III. opinion in case of a demurrer to evidence, was obliged to abandon it {a). What will amount to a part performance must of course depend, in general, on the nature of the transaction itself; but it is well estabhshed that the act must unequivocally refer to, and result from, the agreement, and be such that the party would suffer an injury, amounting to fraud, by a refusal to execute the agreement : it must be of such a nature that, if mentioned, it would of itself infer the existence of some agreement ; and then parol evidence is admitted to show what the agreement is {b). By a long series of authorities (c), it is settled, in opposi- tion to a case decided soon after the passing of the statute (c?), which cannot now be recognised as law (e), that disbursement of money by the lessee in improving the premises is such a part performance as will preclude the lessor from availing himself of that statute. But a distinction has been drawn between an outlay for necessary repairs or lasting improve- ments, and money paid for fancy or humour ; and it would seem that the latter will not afford a means of escape from the statute ( /) . In order to bring a case within the exemption, it is not necessary that the lessor should actively promote the lessee's expenditure : if knowingly, though but passively, he encou- rage him to lay out money under an erroneous opinion of title, and permit those acts which he would not have done, and the lessor must conceive he would not have done, but upon an expectation that an objection would not be thrown in the way of his enjoyment, a specific performance will be (a) Cooth V. Jackson, 6 Ves. 39. Ves. 328. And see Marshall r. The O'Herlihy v. Hedges, 1 Scho. & Lef. Corporation of Queenborough, 1 Sim. 130. & Stu. 520. (b) Frame v. Dawson, U Ves. 386. (d) Mollis v. Whiteing, 1 Vern. 151. (c) Seagood v. Mcale, Prec. Ch. .561 . Hollis v. Edwards, and Deane v. Izard, .5 Vin. Ab. 522. pi. 38. Smith v. Tur- 1 Vern. 15.9. ner, cited, Prec. Ch. 561 ; S. C. 5 Vin. (c) Wiiitchurcli v. Hovis, 2 Bro.C.C. Ab. 523. pi. 4 1 . Wills v. Stradling, 3 565. Ves. 378. Lester r. Foxcroft, Colics (/) Ilollis v. Edwards, snp.; but P.C. 1 08. Toole V. Me.llicott, 1 Ball & see 1 Bro. C. C. 4 1 7. Bent. 3.03. (ircgory '•. Miglioll, 18 Ch. IV. S. TI.] OF THE SIGNATURE. PART PERFORMANCE. 573 decreed in the tenant's favor (^). And the circumstance of looking on is in many cases as strong as using terms of en- couragement {h). Still, it must be put upon the lessee to prove such a case by cogent evidence, leaving no reasonable doubt that he acted upon the encoui*agement suggested (i). In the late case of Sutherland v. Briggs (/c), the plaintiff was the lessee of a house and some cottages adjoining for a term of thirty-one years, at a rent of 60/., and vras under a cove- nant to take down two of the cottages, and build a house upon the site, with suitable offices. He was also tenant from year to year of an adjoining meadow, belonging to a different proprietor, at a rent of 9/. The lessor of the house became the purchaser of the meadow, and a treaty proceeded between him and the plaintiff with regard to certain proposed repairs and alterations in the house, in consequence of which^ the house was made to project over the meadow, part of which was attached to the demised premises, the costs and expenses, far exceeding the sum he had originally covenanted to lay out, being paid by the plaintiff and lessor in nearly equal moieties. The following memorandum was then drawn up by the lessor, and signed by the plaintiff : — " Mr. Frampton having advanced me the sum of 350/. towards the additions and improvements lately made by me to the house and pre- mises at Hayes in my occupation, in addition to 150/. pre- viously allowed me for rebuilding the adjoining cottage, it is agreed that the rent of 69/. now paid for the house, &c., and field, shall be increased to 80/. a year, clear of all deductions whatsoever, commencing from Christmas last, dated the 3rd day of February 1836. — A. Sutherland." An ejectment for the meadow having been brought against the plaintiff, he filed his bill, praying a declaration by the court that he was entitled to the tenancy and occupation of it for the residue of the term of thirty-one years which he had in the house, and for an injunction ; and it was decreed accordingly. The V. C. observed, that if the act of extending the house, in (g) Dann v. Spurrier, 7 Ves. 231. (0 Ibid. (A) Ibid. {k) Sutherland v. Briggs, 1 ilare, 26. 574 OF THE COXTllACT OR AGREEMENT. [Pakt III. which the tenant had an interest for a term of years, into the meadow, with the landlord's consent were not e\idence of a contract between them, he knew not what act on the part of a tenant in possession of property could possibly be so con- sidered ; and he held that, notwithstanding the memorandum of the 3rd of February, 1836, did not mention the term during which the plaintiff was to hold the meadow, yet enough was proved to support the allegation in the bill, that the time for which he was to hold it was to be commensurate with his lease of the house ; and that the reservation of one entire rent of 801. for the whole and every part of the con- solidated property was sufficient to determine the question, and show that the whole was to endure for the same period ; and he fm-ther held, that the justice of the case would not be satisfied by giving to the plaintiff so much of the meadow as the house stood upon, as the act of building part of the house upon it was an act affecting the whole tenement, namely the meadow, and not that part of it only on Avhich the house stood. It is almost needless to observe, that if no expense be in- curred by the lessee, a bare promise of a lease, being in direct contravention of the statute^ cannot be enforced (/) . Although courts of equity are disposed to go every possible length to assist a party in obtaining reimbursement of expen- diture upon another's property, of the benefit of which he may have been deprived by the exercise of a legal right, as by the determination of a tenancy from year to year, yet there is no case in which a lessee, either of a term, or from year to year, making any improvement upon the estate in his possession, though with the complete knowledge of the land- lord, has been held entitled, as against that landlord, to have his lease prolonged until he shall obtain reimbursement for the improvements he has made ; for he has a title of which he knows the dui-ation. He is not under a mistake with regard to the nature of his title. He may perhaps be guilty of great imprudence, if the expectation that his lease will be renewed, or his possession from year to j^ear continued, prove (/) Seagood r. Moalc, Vvcv. Ch. .561. Smith r. Turner, cited, ibid. Ch. IV. S. II.] OF THE SIGNATURE. PART PERFORMANCE. 575 unfounded. But because that expectation is disappointed, the court cannot say that he has acquired a right to a pro- longation of his lease^ or to a lease for a certain period (m) . If, however, a landlord enter into an arrangement with a tenant relative to improvements, and so completely sanction them, as himself to agree to advance part of the money, im- plying that another part is to be in advance by the tenant, it seems that an equity is fastened upon the landlord, precluding him, when these improvements are made under his authority, from saying there is an end of the lease. Such an arrange- ment, though without a specific agreement, would imply one; as it would be so contrary to good faith to encourage a tenant in so positive and direct a manner to proceed in particular improvements, and then deny him all benefit, that equity would probably interfere, and hold it an imphed term that the tenant should have the fair benefit from the improvements thus made with the concurrence of the landlord (n). In like manner, even the entry of the lessee into the pre- mises, if distinctly referable to the contract alleged in the pleadings, will constitute a part performance (o) ; the delivery of possession by a party in enjoyment to the person claiming under the agreement being a strong and marked circumstance to take the case out of the statute [p] ; for the tenant is thus protected from any liability as a trespasser, and the landlord disabled from dealing with any other person [q] . But it must be clear that possession is taken with a view to a part per- formance ; a wrongful entry will not avail (r) ; and the trans- fer of enjoyment must be unequivocally connected with the transaction in question; hence, if the agi*eement (not in (m) Pilliug V. Armitage, 12 Ves. 85. 100. Palmer v. White, Wallis, by («) Pilling t'. Arniitage, 12 Ves. 88. Lyne, 10. Attwood t?. Barham, 2 Russ. And see Sutherland v. Briggs, 1 Hare, 186. See, however, Seagood v. Meale, 26. Prec. Ch. 561. (o) Earl of Aylesford's case, 2 Sti-a. (p) Wills v. StradUng, 3 Ves. 378. 783. Lacon v. Mertuis, 3 Atk. 4. (q) Kine v. Balfe, 2 Ball & Beat. Anon, 5 Vin. Ab. 523. pi. 40. Gregory 343. 348. V. Mighell, 18, Ves. 333. Boardman (»•) Cole tJ. White, cited, 1 Bro. C. C. 1'. Mostyn, 6 Ves. 470. Morphett v. 409. Jones, 1 Swaust. 181; S. C. 1 Wils. 570 OF THE CONTRACT OR AGREEMENT. [Part III. writing) be for an extension of the terra of a lease^ the mere fact of the possession being continued by the lessee, who of course remains in possession until he receives notice to quit, can have no weight in taking the case out of the statute, or even call for an answer [s). Acts which are merely introductory or ancillary to the agreement, as giving instructions for a lease (/), &c., though attended with expense, are not considered a part perform- ance {u) ; nor are acts, equivocal in themselves, or easily ad- mitting of compensation. Therefore, where a tenant in pos- session, under an intimation from his landlord that he might be induced to grant a further term of ten years, but without any absolute promise or agreement, expended a considerable sum in rebuilding a party- w^all, the court refused his claim for an extension of his term, first, because the act was equivocal, and would have taken place equally if there had not been any agreement ; and, secondly, because the money might be re- covered from the landlord if the expense was to be borne by him, and the parties be thus restored to their former situation; and the circumstance of the lessee's being obliged to resort to an action to recover his money was not deemed a reason for taking the case out of the statute [x] . So, where there was a parol agreement between the plain- tiff and defendant, that, upon the former obtaining from one Hammond a release of his claim to a certain messuage, the defendant would grant him, the plaintiff, a lease thereof, and the plaintiff obtained the release upon consideration of his giving Hammond the free admission to the Pantheon, value 15/. per annum, the court was of opinion that this was merely a preparatory act, and no part performance [y). Payment of an additional rent is also of itself too equivocal (s) Wills V. Stradling, 3 Vcs. .37S. Bawdes v. Amhurst, Prec. Ch. 402. Morphett v. Jones, sup. Seagood v. (u) Whitbread v. Brockhurst, 1 Bro. Mealc, Prec. Ch. .'i61. Savage v. Car- C. C. 412. roll, 1 Ball & Beat. 20.5. O'Rourko (x) Frame v. Dawson, 14 Ves. 386. V. Pcrcival, 2 Ball & Beat. 63. (y) O'Reilly r. Thompson, 2 Cox, (t) I Bro. C. C. 40f). And see 271. Cn.IV. s. II.] OF THE SIGNATURE. PART PERFORMANCK. 577 a cii'cumstancc to pre^'ent the application of the statute {z). But where a lessee before the expiration of his term entered into a parol agreement for an extension of it, at a different rent, and possession was continued for a period exceeding twenty years, and the new rent paid and received accordingly, the agreement was considered to have been sufficiently carried into execution, and a specific performance decreed {a) . Whether the payment of a part or the whole of the consi- deration or purchase money would be deemed a part perform- ance, has long been a subject of controversy, but the court seems now inclined to the negative {b) . Indeed, as the ground upon which relief is administered in these cases is fraud (e), it may be stated, as a general rule, that nothing amounts to a part performance that does not put the party in a situa- tion that is a fraud upon him if the agreement be not ful- filled (d) ; and as repayment, especially with interest, is deemed to place the parties in their former situation, payment of money is not deemed a part performance (e) . And here we may remark, that although a written agree- ment for a lease, made in pursuance of a power by a tenant for life, may be enforced in equity against the remainder- man (/) ; yet, if the agreement be by parol, the remainder- man will not be bound, even though it be partly performed ; as the ground of relief in cases of part performance is fraud, and fr-aud is personal [g). He might be afi'ected with fraud, by showing that an expenditure had been permitted by him, with a knowledge that the party had only a parol agreement from the tenant for life (A), or by proving his acquiescence, (2) Wills f. Stradling, 3 Ves. 378. Morphett v. Jones, 1 Swanst. 181; Lindsay v. Lynch, 2 Scho. &Lef. 1. S. C. 1 Wils. 100. O'Herlihy r. (o) Lord Desart 1'. Goddard, Wallis, Hedges, 1 Scho. & Lef. 130. by Lyne, 347. ((?) Clinan v. Cooke, sup. (6) Clinan v. Cooke, 1 Sclio. & Lef. (c) Ibid. 40. O'Herlihy v. Hedges, 1 Scho. & (/) Shannon v. Bradstreet, 1 Scho. Lef. 123. Frame v. Dawson, 14 Ves. & Lef. 52. Blore v. Sutton, 3 Meriv. 388. 247. Lowe v. Swift, 2 Ball & Beat. (c) Seagood v. Meale, Free. Ch. 561 . 520, Hawkins v. Holmes, I P. VVms. 771. {g) Ibid. Clinan v. Cooke, 1 Scho. & Lef. 41. (A) Blore r. Sutton, 3 Meriv. 247. VOL. I. P P 578 OF THE CONTRACT OR AGREEMENT. [Paht III. and receipt of rent for several years, after tlie deatli of the tenant for life (i) ; but, without knowledge, there is nothing in the mere circumstance of expenditure to bind him {k) . Lord Alvanley was of opinion, that the court had gone rather too far in permitting the statute to be evaded by part performance, and in admitting parol e\idence of the contents of the agreement ; and he thought that, instead of holding part performance to be evidence of an unknown agreement, the court should have ordered the money laid out to be re- paid by way of compensation ; for how, said he, does the circumstance of ha\T-ng laid out a great deal of money prove that he is to have a lease for ninety -nine years? The common sense of the thing would have been to let them bring an action for the money (/) . Lord Redesdale too expressed his disinclination to carry the cases further than he was compelled by former decisions, adding, that the statute was made for the purpose of pre- venting perjmies and frauds, and that nothing could be more manifest to any person who had been in the habit of practising in courts of equity, than that the relaxation of that statute had been a ground of much perjury and much fraud (m). Lord Lifford also entertained a similar opinion {n). After a part performance of a parol contract, the testimony of one witness, supported by collateral circumstances, will prevail in favor of a bill for specific execution, against a denial of the agreement by the answer (o) . But it is otherwise where the alleged agreement, being proved by one witness only, is positively denied by the answer, and that denial is also con- firmed by circumstances {p). Notwithstanding an admission of the agreement, the sta- tute may still be insisted on as a defence to the suit ( Bing. 18,5 ; S. C. 1 Mo. & Pa. 281. Sect. IV. of this Chapter. Regnart v. Porter, 7 Bing. 451 ; S. C. (t) llogau V. Johnson, 2 Taunt. 148. .5 Mo. & Pa. 370. Dunk V. Hunter, ■. Marii. ^ Aid. 322. (/) Ihid. Ch. IV. s. III.] AGREEMENT DISTINGUISHED I'llOM LEASE. 583 taking [y) • tliougli certain terms used, taken by themselves, might imply a present demise (A) . In Goodtitle dem. Estwick v. AVay {i), an instrument was produced iu evidence, dated in 1779, on paper unstamped, and not under seal, purporting to be articles of agreement between Lord Abingdon and the defendant's father, by which Lord Abingdon, in consideration of a sum of money to be paid by Way, sold him the goods in his house at Eycot. And the subsequent part of the agreement ran thus : — " And fm-ther the said Earl of Abingdon doth hereby agree to let, and the said Richard Way agrees to rent and take, for the term of seven, fourteen, or twenty-one years, in case the said earl shall so long live, at and for the rent of 1,400/. a year, to be paid half-yearly, (the said earl to pay or allow all manner of tithes and taxes both ordinary and extraordinary,) all his estate, &c., at Rycot. It is agreed, the said Richard Way shall enter upon all the said premises immediately, but not commence pa^nnent of rent until Lady-day next. It is fur- ther agreed, that leases Math the usual covenants shall be made and executed by the parties on or before Michaelmas nexf ; and the court considered the express stipulation that leases should be drawn before Michaelmas amounted to clear evidence of the intention of the parties that such agreement should not operate as a lease ; but only that it should confer a right to the immediate possession till a lease could be drawn^ and decided accordingly. The case of Doe dem. Jackson v. Ashburner {k) is to the same effect. The articles were as follow: — "March 4th, 1783. Articles of agreement between Thomas Scarisbrick and D. Jackson entered into in regard to his fulling-mills, dry-salt- (g) Plesaunt v. Higham, Rol. Ab. ding v. Bissell, 3 Taunt. 64. Staniforth Estate, (X), pi. 3. Tooker v. Squier, v. Fox, 7 Bing. 590-4; S. C. 5 Mo. & Rol. Ab. Estate, (S), pi. 10; and (X), Pa. 589. pi, 2. Browne v. Warner, 14 Ves. (0 Goodtitle dem. Estwick v. Way, 159. Phillips V. Hartley, 3 Car. & Pa. 1 Term Rep. 735 ; and distinguished 121. Anon. Ow. 49. from Poole v. Bentley, 12 East, 170, (Ji) Sturgion v. Painter, Noy, 128. and post, p. 600. Doe dem. Jackson v. Ashbui-ner, 5 (k) Doe dem. Jackson v. Ashbiu'uer, Tex'm Rep. 163. Morgan dem. Dow- 5 Term Rep. 163. 584 OF THE CONTRACT OH AGREEMENT. [Part ill. ing-millSj and other conveniences for carrying on said business or trades. That the said mills and conveniences, with the islands and acre of land (/) INIintsfeet, called Ashacre, he shall enjoy ; and I engage to give him a lease in, for the term of thirty-one years from Whitsuntide, 1784, at the clear yearly rent of 110/. to be paid by two equal payments, at Martinmas and "Wliitsuntide following. And that I will purchase one yard in breadth, to be laid to the race from the High Clews, the length of Charles Close ; and if it be bought, and the purchase is more than 200/. per acre, he the said D. Jackson to pay more than it costs beyond that rate. And that the old count- ing-house be brought out as far as the engine-house; and that towards the said alteration, T. Scarisbrick is to furnish timber and slate for the roof. That D. Jackson, on his part, engages to keep the mills, wear, and every other matter in repair, he having at all times the privilege of the roads to make vv'hat repairs may be wanted. That he the said T. Scarisbrick engages not to be concerned directly or indirectly in any other mill for manufacturing dyeing woods in Cum- berland, Westmoreland, Durham, Northumberland, and Lancashire, or Yorkshire.^' Here the superadded words were deemed to qualify the term shall enjoy, and to restrain its operation so as to make the agreement merely executory. On this ground the case is distinguishable from Drake v. Mun- day (m). Had no restraint on the former words been imposed by the engagement to give a lease in future, they would have operated as a perfect lease. Besides, by another part of the agreement, the landlord was to acquire an additional piece of ground to be laid to the mill, without which the lease was not to be granted; and this also was of importance to show that there was to be some future instrument to give a title to the plaintiff. It is also observable, that the agreement was (/) So in repoi't : qu. " at "? six years, and that A. would sufficiently (m) Cro.Car. 207; S. C. W. Jo. 231; repair it. Et in considcrationc prcB- where A. covenanted, granted, and missonmi, B. covenanted to pay A. an agi-ced with R., that he should have annual rent of .00?. dui-ing the six and enjoy such a house and lands for years. Cu. IV. S. ill.] AGREEMENT DISTINGUISHED FROM LKASE. 585 made in March, 1783, and was not to take effect till Whit- suntide, 1784. Under all the circumstances, as the parties had agreed, the one to give, and the other to receive, a future lease, the court could not conceive that this Avas intended to be a present lease. So, in another case (w), an agreement was entered into in writing in these terms: — "3rd March, 1778. AgTced this day to let Mr. Smith my house, situate in the Wardwicke, Derby, at the yearly rent of thirty guineas, he paying the taxes; also an inclosurc called the Gallows Intack, at the yearly rent of 11. The above agreement to continue during my life, supposing it to be occupied by himself, or a tenant agreeable to me. A clause to be added in the lease to give my son a power to take the house for himself, if he chooses, when he comes of age.^' No other lease was ever prepared, and Smith took possession of and occupied the premises till his death. The court, referring to that part of the agreement which stipulated for a clause to be added in the lease, were decidedly of opinion that those words, importing that some- thing ulterior the agreement Avas to be done by way of a regular lease, showed the intention of the parties to be that the writing in question should operate only as an agree- ment for a lease, and not as the lease itself. And on this ground the case was held to be distinguishable from Poole v. Bentley (o) . The case of Tempest v. Rawling {p) proceeded on the same ground. The defendant was let into possession, and had paid rent; and to the instrument under which he claimed, an agree- ment stamp of 16^. was affixed. The paper was entitled: — " Conditions of letting the four farms after mentioned," &c. (which were offered in so many lots) ; and then it proceeded thus : — " The term to be from year to year : the lands to be entered upon on the 3rd of February, 1808, and the housing on the 12th of May"; and six months' notice to quitAvas to be (») Doe dem. Bromfield v. Smith, B. R. 6 East, 531, n. (c). 6 East, 530; &. C. 2 Smith, 570. Doe (o) 12 East, 168; post, p. 600. dem. Cawood v. Banks, E. 27 Geo. 3. {p) Tempest ?;. Rawling, 1 3 East, 1 8. 586 OF THE CONTKACT OR AGREEMENT. [Paut III. given. Then, after stating certain regulations to be observed by the tenant, it proceeded : " A lease to be made upon these conditions with all usual covenants.'' And at the foot of the paper was written : — " I agree to take lot 1. [the premises in question] at the rent of &c., subject to the covenants." It was signed by the defendant, and dated the 24th of November, 1807; and the court determined, that it was nothing more than an agreement for a lease which was to be made thereafter, time being given to prepare it, before the term was to commence. They said that in Poole v. Bentley {q) the tenant was to have immediate possession, and to lay out money in building, and the rent was to commence immediately; but that here there was no immediate occupation to be taken by the tenant. In Bicknell v. Hood (r), an instrument, dated 13th of De- cember, 1834, was entered into to the following effect: — B., in consideration of the rents, covenants, and agreements, thereinafter mentioned, agreed to grant a lease to H. of certain premises; to hold unto H. for the term of two years and three- quarters, wanting seven days, from the 25th of December then instant ; yielding and paying the yearly rent of 140/., quarterly, on the 25th of March, &c., the first quarterly pay- ment to be made on the 25th of March, 1835 : and which said indenture of lease was to contain covenants by H. to pay the rent at the times above mentioned, and also all taxes, and all other similar covenants contained in a certain lease, dated &c., and made between &c. And H. covenanted and agreed, when requested by B., to accept such lease upon the terms above specified, and to execute a counterpart ; and that, until such lease should have been granted, it should be lawful for B. to distrain for all or any part of the rent which might become due from H. for or in respect of the rent of the premises thereby agreed to be demised at any time after the execution of the agreement. It was contended that the clause relative to the right of distress constituted an immediate relation of landlord and tenant between the parties ; and, consequently, {(J) 12 East, Kif!, post, p. 000. (r) rjicknoll v. Hood, 5 Mces. &. Wei. 104; S. C. 2 Horn cSc Hurl. 86. ClI. IV. S. III.] AGREEMENT DISTINGUISHED FUOM LEASE. 587 that the instrument operated as a lease, and not as an agree- ment; an argument met by the remark of Maule, B., that if the instrument operated as a present demise, the clause would be idle, because the lessor would have had power to distrain without it ; and the instrument was held to amount to an agreement only. So, in Stone v. Rogers {s), '^an agreement between B. R. and G. R. (that is to say), G. R. to have my tenement called D., situate at C, for 20/. a year, and the Avhole of my keep and maintenance during the Kfe of G. R., and to take posses- sion immediately, and begin to pay rent at Michaelmas," was held to amount only to an agreement to grant a future lease for the life of G. R.; for, not being under seal, an estate of freehold could not pass by it. And where the lessee of a farm entered into a written agreement with his lessor, by which the latter agreed to manage the farm, the former allowing him the sum of 1 2*. a week, and allowing him and his wife to have the use of the dwelling-house and furniture therein free of rent, with power to either party to put an end to the agreement on giving three months' notice, or paying or receiving three months' wages ; the instrument was held not to operate as a lease, but only as a mode of remunerating the lessor as bailiff [t). In the late case of Doe dem. Wright v. Smith (?<), a party having recovered judgment in ejectment against his tenant, died without having taken possession, and devised the pre- mises to one Elizabeth Taylor, who obtained from the tenant a paper, signed by him, which, after admitting that possession under the ejectment had been stayed at his request, proceeded thus : — " Now know all men by these presents, that, in con- sideration of the premises, I do hereby attorn tenant to the said E. Taylor, for the said messuages, &c., and have this day paid to F. R., the agent of the said E. Taylor, the svim of one shilling upon the attornment, on account and in part of (s) Stone v^Rogers, 2 Mees. & Wei. Cai-. & Pa. 494. 443; S. C. Mm-. & Hurl. 146. (m) Doe dem. Wright v. Smith, « (0 Doe dem. Hughes v. Derry, 9 Adol. & Ell. loo. 588 OF THE CONTRACT OR AGREEMENT. [ Part 111. the reut due and to become due from me for and in respect of the said premises : and I do become tenant thereof to the said E. Taylor from the 29th day of September last past." The writing was produced as an attornment, but the tenant's counsel insisted on its being an agreement for a tenancy, and incapable of being received in evidence for want of a stamp; it was held, however, not to amount to an agree- ment for a lease, nor strictly to an attornment, attornment to the heir or de\isee of a reversion not being necessary, but rather to an acknowledgment of tenancy. Want of certainty with respect to the commencement and duration of the interest, or the amount of rent, may render the instrument an executory contract. Thus, where A. demised or agreed to demise to H. P. certain lands for the term of three lives, renewable for ever, at a yearly rent ; and it was further agreed, that leases should be perfected at the request of either of the parties; the instrument was held to be executory only, it not being the intention to grant a lease for the life of H. P., but for three lives to be thereafter named; and to rest in agreement until proper leases were prepared {x) . So, in the case of Dunk v. Hunter (y), the following agree- ment was entered into between the parties : — " Memorandum of an agreement between Mrs. Ann Hunter, of Southwick, and David Dunk, of Brighton, Butcher. Mrs. Ann Hunter agrees to let on lease, with purchasing clause, for the term of twenty-one years, all that house and premises, St. James's Street, present tenant, Thomas Lawler, entering on the said premises by D. Dunk, any time on or before the 11th day of February, 1820, at the net clear rent of 63/. per year, and to keep all premises in as good repair as when taken to, (reasonable wear allowed,) paying on entry 50/. in ready cash, and the rent payable quarterly. The term for seven, fourteen, or twenty-one years, which term Mr. D. Dunk is to give one clear year's notice, before the expiration of either of tlie above (.-<■) Pciitland V. Stokes, 2 Ball & .'}22, distinguished fniiii Staniforth r. Beat. r,H. Fox, 7 BiiiR. 500, post, p. (iOC. (»/) Duiili r. lliiiitor, ^> Barn. & Aid. Ch. IV. s. III.] AGREEMENT DISTINGUISHED FROM LEASE. 5S9 term of years, if he intends to leave ; if pureliascs before the expiration of the above term by T>. Dunk_, he is to pay on pur- chase 1000 guineas." And it was held, that this was only an agreement preparatory to a demise, and not an actual demise : for it did not possess any one of the forms of a lease ; nor could the court infer when the tenancy was to commence, or the rent to become due. Holroyd, J., said that the subsequent words relative to the introduction of a clause for purchasing showed that the letting was to be by a particular instrument containing such a clause ; and that the stipulation as to the payment of 50/, upon entry was quite inconsistent with an actual demise ; for, if it were an actual demise, the tenant would have had a right to enter immediately without paying that sum. And the same principle prevailed in Clayton v. Burten- shaw(2'). By an instrument under seal, A. agreed with B. to take and hire of him a certain house, shop, and warehouse, at the yearly rent of '6oL ; but no period was prescribed for the commencement or termination of the interest. It was also agreed that A. should take all the stock in trade, and also all the fixtures and utensils in the shop and ware- house, and such part of the household furniture as he should think necessary, at a fair valuation, on the 11th of October then next; and for the consideration and amount of such stock, utensils, and furniture, he agreed to pay 1000/, The deed was executed by A. only, and was impressed with a 30*. stamp. The court held, that it operated as an agreement for a lease ; for there were no words of demise, the language being that of the persons only who were to have the benefit of the lease ; nor did it appear when the interest was to com- mence; nor how long it was to continue; nor that the supposed lessor executed the instrument. Tn Regnart v. Porter (a), P. agreed to let, and R. to take, a lease of certain premises, for a term of sixty years from Mid- (s) Clayton r^ Burtenshaw, 5 Barn. (a) Regnart v. Porter, 7 Bing. 4.51 ; & Cres. 41 ; S. C. 7 Dow. & Rv. 800. S. C. 5 Mo. & Pa. .370. 590 or THE CONTRACT OR AGREEMENT. [Part III. summer then next^ at tlie rent of 25/. a year. P. further agreed to complete the premises for habitation, and to fix a bresummer in the back front window, and to allow R. 15/. towards the expenses of an oven, which R. agreed to erect ; and the said rent was to commence at Michaelmas day then next ensuing. R. entered, and erected the oven; but P. never completed the premises nor fixed the bresummer. After the expiration of nearly four years, during which period he had never paid any rent, R., being called on for payment, said, that he had the money prepared to pay what was due, but insisted on the previous performance of the stipulations in the agreement, and on the allowance of certain sums he had been compelled to lay out on the premises. It was held, that the instrument did not amount to a present demise; and that P. could not distrain, as no rent certain for the occupation had been agreed on between the parties, nor admitted by the tenant ; which latter circumstance was considered as distin- guishing the case from Cox v. Bent [b], where the precise amount of rent was so admitted. In another case (c), J. agreed in writing with B. to make a good and sufficient lease by indenture of all, &c., to B,, for the term of twenty-one years, to commence from Michaelmas day then next ensuing, at the yearly rent of 45/., payable quarterly on the four most usual days of payment in every year during the term, the first payment thereof to commence on the 29th September then next ; to be entered upon imme- diately by the plaintiff, he pa\dng upon the day of the date of the agreement 25/. to J. : and in the lease were to be con- tained, on the part of B., a covenant to pay the rent, and all rates, taxes, and assessments, during the term ; to repair the premises; to deliver them up quietly at the end of the term ; not to assign or underlet Avithout consent ; nor to exercise offensive trades; and all other usual and reasonable covenants on the part of B. ; and, on the part of J., a covenant for quiet (h) Cox V. Bent, H Bing. 18.5, infra; (c) Br.^sliicr r. Jackson, G Mecs. & S. C. 1 Mo. & Pa. 281. Wei. .54.9. Ch. IV. S. III.] AGREEMENT DISTING UISIIEI) TKOM LEASE. .501 enjoyment by B. during the term; and also a power for cither of the parties, by notice in writing, to be delivered six months previously to the end or expiration of the first seven or four- teen year.s, to determine the lease. And B. agreed to accept such lease, and to execute and deliver to J. a counterpart; and it was held to be an agreement only for a future tenancy. So, if the term be to commence at a future day, and certain matters material to the tenancy remain to be ascertained by a third party, the instrument cannot operate as an immediate demise (c?). Therefore, where two parties entered into an instrument, dated 29th July, 1829, to the following effect : — ""An agreement made between A. and B. about farm from year to year. He the said A. lets this farm to B. at the valuation of two disinterested persons to be chosen by each of them : B. is to give two sureties to answer for the rent : the above valuation is to take place in determining the rent for 1829 and the time to come;" it Avas held not to amount to a lease, the rent not being fixed, nor the sui'eties given. The valuation and gi\ing security were considered as condi- tions precedent {e). So, an insti'ument in the following terms : — " A agrees to become the tenant of Glynn Farm at the customary time of entry, under the following conditions ; viz., that the sum of 260/. annual rent shall be paid at the usual time for the house, premises, and lands, as agreed upon; andB. [the agent of the landlord] agrees to lay out in the improvements and altera- tions of the farmhouse and new sheds, agreeable to plan and estimate produced, a sum not exceeding 200/., with the under- standing that spars for rafters for the outbuildings shaU be found from the estate ; cartage of all materials, except stones for walls, to be done or found by A.", was held not to be an immediate demise; but to be an agreement between the parties that at a futm'e time one of them should become the tenant, provided certain things were intermediately done by the land- (cZ) Joues D. Reynolds, 1 Q,. B. 50fi ; (e) John v. Jenkins, 1 Crompt. & S. C. 1 Ga. & Dav. 62. Mees. 227; S. C, .3 Tyrw. 170. 592 OF THE CONTRACT OR AGREEMENT. [Part III. lord or his agent, so as to put the premises into a certain state described by the agreement (/). It is observable, that in the cases, noticed hereafter, which establish, as legal demises, instruments wherein something fiu'ther is agreed to be done, nothing more than a regular conveyance was wanting, the terms of the contract being fully specified and ascertained [g] . Strong circumstances of inconvenience apparent on the in- strument, and attendant on its construction as a lease, may also indicate the intention of the parties that it should be an agreement only ; such as a stipulation, that out of the rent mentioned a proportionate abatement should be made in respect of certain excepted premises, for until the comple- tion of the apportionment the lessor could not distrain ; or a stipulation that the tenant should hold at and under all usual covenants as between landlord and tenant where the premises are situate, for it might be disputable what usual covenants were [h). Accordingly, where C. agreed to let, and T. agreed to take, a house situate at Brighton, from the 24th of June then next ensuing, for the term of twenty-one years, determinable at seven and foui'teen years; and it was proiided, that the lease to be granted should contain a covenant on the part of C. for T. to purchase the fee-simple for GOO/, at any time within the first seven years of the term to be granted, and a covenant on the part of T. for payment of the rent of 35/., payable quarterly, clear of all deductions for taxes whatsoever, and that the insurance on the sum of 500/. was to be paid by C, and to be repaid by T. as an increased rent ; to lay out within twelve months 100/. on the premises ; to keep the premises in substantial repair, and all other usual covenants as in leases of houses at Brighton ; and that T. should execute a counter- (/) Gore V. Lloyfl, 12 Mces. & Wei. (li) Morgan dem. Doweling r. Bissell, 4C3. ,3 Taunt. 65. Chapman v. Towner, 6 (.7) Pentland v. Stokes, 2 Ball & Mees. & Wei. 100. Doe dem. Mor- Beat. 78. Doe dem. Pearson v. Ries, gan r. Powell, 8 Scott's N. R. ()87. 700. 8 Bing. 178. 182. Cil. IV. S. III.] AGREEMENT DTSTIXGUISIIED FROM LEASE. 59^ part of lease when tendered to him by the solicitor of C; and that the expense of the lease and counterpart should be borne by T.; the instrument was held to amount to an agreement only, and not a lease. The lease, said Alderson, B., is to contain all other usual covenants as in leases of houses in Brighton : now we cannot tell what those usual covenants are. A difficulty arises from the omission to expand the terms of the holding upon the face of the instrument (?'). And, in like manner, where a tenant for life, (the plaintiff,) with power of leasing for any term of years or lives, in pos- session and not in reversion, not exceeding thirty-one years or three lives, and at the best rent, entered into an agree- ment, dated 9 February, 1814, whereby he did " set to [the defendant] a certain piece of land, for the term of twenty-one years, or one life, whichever might last longest, at the rate of 5/. 13*. 9d. per acre; to commence tenant the 25th of March then next, and the first payment to be made the 29th of Sep- tember then next ; leases to be perfected at the request of [the plaintiff], and at the costs of [the defendant], with the usual clauses between landlord and tenant ;" and on it was endorsed the following memorandiun, signed by the parties, "P. M., son of [the defendant], aged about eleven years, is the life named by the said [defendant], as mentioned to be given him by the within agreement;" the instrument was held to be an agreement, and not a lease, as no life was named in the body of it, and the usual clauses were not specified, and as the eff'ect of holding it to be a lease would be to invalidate it as a void execution of the poAver (k). The nature of the estate which forms the subject of the contract may likewise serve as a guide to the construction; for example, if lands of copyhold tenure be contracted for alone, or be included in the same instrmnent, jointly with freeholds. Thus, where copyholds were let by articles of agreement, with promise and covenant to hold for a year, according to (i) Chapman v. Towner, 6 Mees. & (/) Clarke v. Moore, 1 Jo. & La Wei. 100. Toil. 723. VOL. I, Q Q 59J: OF THE CONTRACT OR AGREEMENT. [Part III. the custom of tlie manor, and so from year to year, for five years ; tlie court would not allow these words to operate as a lease, lest a forfeiture should be incurred (/). The decision in Lady Montague's case (m) is to the same effect; but it is particularly remarkable for the distinction there taken, and confirmed by a modern authority (w), between a lease for a year warranted by the custom, and so from year to year during ten years ; and a lease for a year according to the custom, and a covenant for the holding of it for a longer time at the will of the lessor : the deed in the former case, operating as a lease for ten years, and consequently working a forfeitiu'e ; in the latter, the instrument, after the first year, amounting to a covenant only. But where a copyholder made a lease for a year, excepting the last day, and so from year to year, excepting the last day in every year, as long as he lived, (the lands by the custom not being demisable for a longer period than a year,) the court, without argument, resolved that he had forfeited his estate; for, the term being to continue for two years certain, with the exception of two days, the grant was in effect a lease for more than one year ; and the intermission of the day at the end of each year was a mere evasion and immaterial (o) . In like manner, one of the grounds of the decision of Doe dem. Coore v. Clare (p) referred to the lands being of copy- hold tenure. The instrument produced was a paper writing, upon an agreement stamp, under hand and seal, and in these terms : — " Be it remembered that it is agreed this 4th of October, 1786, between Thomas Tidd of the one part, and Thomas Clare of the other part : whereas Mary Statham widow is seised of or well entitled unto, &c., [describing the (/) Lenthall v. Thomas, 2 Keb. 2G7. (o) Lutterel v. Weston, Ci'o. Jac. Sec also Richards v. Soly, or Ceely, 2 308; S. C. 1 Bulstr. 215. Mod. 7.0; S. C. 3 Keb. 638, (p) Doe dem.Coorc v. Clare,2 Tei-m (m) Lady Montague's case, Cro. Jac. Rep. 73.9. See also Doe dem. Nunn 301 ; S. C. nom. Hamlcn r. Ilamlcn, 1 r. Lufkin, 4 East, 221 ; S. C. 1 Smith, Bulstr, 189, .00; S. C. Luffkin i>. Nunn, 1 New Rep. (w) Fenny dem, Eastham r. Child, 1G3; 11 Vos. 170. 2 Mau. & Seiw. 2r->r>-n. Ch. IV. S. 111.] AGREEMENT DISTINfiUISIIED VllOM LEASE. 505 premises, which were copj^hold,] for her Ufe; and the said Thomas Tidd hath agreed with the said T. Clare that in case he shall be seised of or entitled unto the said messuage, &c., on the death of the said Mary Statham, he will immediately on the death of the said Mary Statham demise and let the same to the said T. Clare on the terms and conditions here- after mentioned : now therefore the said T. Tidd doth hereby agree to demise and let unto the said T. Clare all, &c., and all such copyhold premises as he shall or may be entitled to on the death of the said Mary Statham, at Hendon aforesaid ; to hold the same premises unto the said T. Clare, his execu- tors, &c., from and immediately after the death of the said Mary Statham, for the full and whole term of twenty-one years from thence next ensuing and fully to be complete and ended, at and under the yearly rent of 121. 12s., clear of all taxes, (except the land-tax,) payable quarterly, the first pay- ment to be made on the first quarter-day next after the death of the said Mary Statham." After a covenant by Clare to take the premises, to pay the rent, and repair them, &c., during the term, Tidd covenanted that he would, "on the death of the said Mary Statham, and on his becoming entitled to the said premises, procure a license to let the said premises ; and that the said T. Clare, his executors, &c., should peace- ably and quietly have, hold, occupy, and enjoy, the same for the said term of twenty-one years, without any interruption, &c., of or by the said T. Tidd, or any person or persons claim- ing or to claim the said premises by, from, or under him." For two reasons the court decided that the instrument con- stituted an executory agreement only, and not a lease ; first, because a difi^erent determination would work a forfeiture, contrary to the intention of the parties, who had cautiously guarded against it by the insertion of a covenant to procure the lord^s license ; and, secondly, because the stamp was con- formable to the nature of an agreement for a lease, and not adapted to an absolute lease (q) . (9) As to the stamp being admitted as evidence of intention, see remarlcs, post, p. 611. QQ 2 ^^^ OF THE CONTRACT OR AGREEMENT. [Part III. And the same principle was fully recognized in the suc- ceeding case of Fenny dem. Eastham v. Child (r). A demise was made of freeholds and copyholds at an entire rent ; to hold the freeholds for twenty- one years^ and the copyholds for tln-ee years,, warranted by the custom^ with a covenant, (after reciting that the copyholds were not grantable for a longer term than three years successively,) within three months next before the expiration of the said term of three years, under the like covenants, and without any increase of rent, to execute a new lease of the said copyholds for three years, to commence after the expiration of the former term of three years, and so toties quoties until the term of twenty-one years should be expired ; and with a covenant for quiet enjoy- ment, till such new leases should be granted, for the term of twenty-one years. And it was adjudged to operate as a cove- nant only ; for otherwise the lord would have been entitled to enter for a forfeiture ; and it was said that the nature of the estate must always help to govern the agreement of the parties concerning it ; that a covenant could not have the effect of giving the estate qualities contrary to those which the law had attached upon it ; and that this was a covenant for such a lease as might be, and not for such a lease as coidd not be granted. Again, if the instrument, by being construed as a lease, would be void, as in the case of a freehold being granted to commence at a future day {s) ; or if, by being construed as a lease, it would be void as a defective execution of a power (/) ; the court will regard it as executory only. We may add the case of Doe dem. Morgan v. Powell {u), which was held to amount to an agreement only on eight dif- ferent grounds, most of them already noticed. The instiTi- ment was under hand only, and ran in these terms : — '^Feb. 2nd, 1838. A. hereby agrees for himself, his executors and administrators, to let and grant a lease to B. the coal, iron- (r) Fenny dem. Eastham r. Child, (t) Clarke v. Moore, 1 Jo. & La 2 Mail. & Selw. 2.55. Tou. 723, noticed ante, p. 593. (i) .Jones dem. Leader v. Duggan, (u) Doe dem. Morgan v. Powell, 8 1 Je))b Ac Bourko, 3 ; S. C. 4 Irish Scott's N. R. ()07. Law Rep. JiO. Ch. IV. s. III.J AGREEMENT DISTINGUISHED FROM LEASE. 597 mine, stone, and fire clay under C, with all the mines belong- ing to him in the parish of , at the following rate, &c., for the term of seventy years from this 2nd day of February ; and that so much royalties as will amount to the sum of 50/. a year be worked or paid for during the said term, which rent is to commence in a year from the time a pit is sunk through the four-foot coal ; with power to work the said materials, and to deposit rubbish, and making a wharf, as is usually granted in leases of a similar nature, and by W. T. D. ; nevertheless, if at any time during the said term the said B. should think fit, from the qualit}^ of the coal being unsound, or from faults, on giving six months' notice, to abandon and quit the same as if this agreement had never been entered into. And we hereby bind om'selves to commence sinking a pit before the 24th of June next. And the said A. hereby engages that he has not incumbered the said estate, to prevent him from enter- ing into a lease on the above terms and agreement ; which lease is to contain the usual covenants, and as entered into by his brother. The said A. is to be allowed Id. per ton for all minerals brought from other properties through the pits on his land. And the said A. engages to sign a lease upon the said terms as soon as it can be prepared." The court held that this was an agreement, and not a lease, 1st, because it contained no words of actual demise ; 2ndly, because of the provision that A. had not incumbered the estate to prevent his entering into the lease "on the above terms and agreement ;'' Srdly, as the lease was to contain usual covenants, which would render necessary resort to professional adnce ; 4thly, because A. agreed to sign a future lease ; 5thly, on account of the absence of a pro^dsion that possession should be taken before the execution of a lease ; 6thly, because an easement, such as that for depositing rubbish in alieno solo, could only pass by deed ; 7thly, on account of the absence of a certain time for the commencement of the rent, as a pit might never be sunk through the four-foot coal ; and, Sthly, on account of the absence of a stipulation that B. woidd complete the pit or elFectuallv work the mines. 598 OF THE CONTRACT OR AGREEMENT. [Part III. It seems clear that the parties cannot contemplate an imme- diate lease^ Avhen the party assuming the character of lessor has no power to grant one, as if he himself hold under an agreement for a lease from a superior owner {v) . Where the parties expressly declare that the instrument shall operate only as an agreement for a future lease, there is no room for doubt (x). II. We now come to the cases in which the instrument has been held to operate as a lease. The general rule is, that where the words are in the present tense, or imply a present demise, as, " I demise," or " I agree that A. B. shall hold and enjoy" {y) ; or, "It is agreed that J. H. doth let, &c. " [z) ; and are uncontrolled by words of an evidently contrary import, the instrument will operate as a lease (a). And where parties sign an agreement containing all the particulars of a demise, it may be considered as impart- ing a present interest, though it contain only words of agree- ment to take, and no words of demise by the party signing as landlord ; for effect coidd not be given to the signature, except by implying an agreement to demise, as well as the express agreement by the tenant to take (h). It is clear that the circumstance of denominating the instru- ment an agreement will not constitute it an agreement only, if from its other parts it import to be a lease (c) ; and also that a stipulation for the execution of a futm-e lease, or a {V) Hayward v. Haswcll, 6 Adol. & Chartwell, Noy, 14. 3 Bulstr. 252. Ell. 265; S.C. 1 Wil.Wol. &Dav. 158. Doe dem. Jackson r. Asliburner, 5 (a;) PeiTing v. Brook, 7 Car. & Pa. Term Rep. 167. Doe dem. Morgans. ;^60; S. C. 1 Mood. & Rob. 510. Doe Powell, 8 Scott's N. R. 687. 698-9. dem. Powell v. Morgan, 8 Scott's N. R. But see Sweeper v. Randal, Cro. Eliz. 687. 702. 156. Evans v. Thomas, Cro. Jac. 172. (y) Anon. Mo. 8; S. C. Dal. 7; S, C, {z) Harrington v. Wise, or Wyes, noni. Maldon's case, Cro, Eliz. 33. Cro. Eliz. 486 ; S. C. Noy, 57 ; Mo. Tisdale v. Essex, Hob. 34; S. C. 1 Rol. 459. 397 ; Mo. 86 1 ; 3 Bulstr. 204 ; 1 Brownl. («) Chapman v. Bluck, 4 Bing. N. C. & Gold. 23. Drake v. Munday, Cro. 187; S.C. 5 Scott, 515; 1 Aru. 27. Car. 207; S. C. W. Jo. 231. Anon. (6) Gore v. Lloyd, 12 Mees. & Wei. Mo. 49. Whitlock v. Morton, Cro. 463. 476-9. Jac. 91; S.C, nora. Whitlock r. Hart- (i) Jolm v. Jenkins, 1 Crompt. & well, Mo. 776; S. C. Whitlock v. Mees. 227. 233; S. C. 3 Tyrw. 170. Cll. IV. s. III.J * AGREEMENT DISTINGUISHED I'llO.M LEASE. 590 provision that the agreement shall be binding till a lease more fully prepared can be produced, are not incompatible with an intention to grant a present lease (d). This seems to have been the law at an early period. One covenanted promised and agreed with another that he should have occupy and enjoy certain lands for seven years, and also covenanted to make as good and perfect demise of the premises, or security for quiet enjoyment, as the tenant's counsel should think fit ; and the court clearly held these words sufficient to create a lease ; for the terms imported present possession, and the covenant was but in majorem cautelam, and for further assur- ance (e). Several other cases have also been determined on the same subject. Thus, by the instrument in the case of Baxter d. Abrahall V. Browne (/), J. A. and P. L. agreed, "with all convenient speed to grant a lease to the said Browne of, and they did thereby set and let to him, All that, &c. To hold for twenty- one years from Candlemas then next, at the rent of 290/" per annum, payable half-yearly to the lessors ; ■with a pro- viso that the said lease should be void on non-payment of rent, alienation, &c. ; and that such lease should contain usual covenants on the part of the lessors and lessee, and certain special ones therein mentioned, in one of which the words '^this demise" occur. The same concluded thus: — "As Avitness the hands of J. A., P. L., and J. B.'^ And it was clearly held to be a good lease in prcesenti, with an agreement (d) Goodtitle dem. Estwick v. Way, Pa. 474. Doe dem. Bume v. Saunders, 1 Tei-m Rep. 735. Harrington v. Fox & Sm. 18. Curling v. Mills, 7 Wise, or Wyes, sup. Poole v. Bentley, Scott's N. R. 709; S. C. 6 Man. & 2 Campb. 286; S. C. 12 East, 168. Gra. 173. Jones dem. Leader r. Dug- Doe dem. Pearson v. Ries, 8 Ring. 178; gan, 1 Jebb & Bou. 3. 10; S. C. 4 Irish S. C. 1 Mo. & Sc. 259. Jones v. Law Rep. 8C. Reynolds, 1 Q,. B. 506; S. C. 1 Ga. & (c) Tisdale v. Essex, Hob. 34; S. C. Dav. 62. Chapman v. Bluck, 4 Bing. 1 Rol. 397; Mo. 861; 3 Bulstr. 204; N. C. 187; S. C. 5 Scott, 515; 1 Arn. 1 Brownl. & Gold. 23. Anon. Mo. 8. 27. Alderman v. Neate, 4 Mees. & pi. 31; S. C. Dal. 7; S. C, uom. Mal- Wel. 704; S. C. 1 Horn & Hurl. 369. don's case, Cro. Eliz. 33. Chapman v. Towaier, 6 Mees. & Wei. (/) Baxter dem. Abrahall v. Browne, 100. Wilson V. Chisholm, 4 Car. & 2 W. Blac. 973. 600 OF THE CONTllACT OU AGREEMENT. [Part HI. to execute a more formal and perfect lease in futuro; the operative words " let and set " being in the present tense, and a reference being made to " this demise." There had been fourteen years' uninterrupted occupation under the instru- mentj five or six of which had expired since the lessor of the plaintiff's title accrued ; and he had accepted rent, and thereby given the defendant every reasonable hope of his acqui- escence. Under all these cii'cumstances, the court supported the instrument as a lease. In Barry v. Nugent [g), the instrument was in these words: — "Be it remembered that J. Barry hath let and by these presents doth demise, &c., unto E,. F., &c., for twenty- one years, to commence the 5th of May, or 1st of November, whichever first happens after the said J. B. recovers the said lands [which were then in litigation] from M. O. ; the said B. F. covenanting and agreeing on the foregoing conditions to pay J. B. 110/. yearly and every year during the said term, &c.; leases with powers of distress, and clauses for re-entering, and all other clauses usual between landlord and tenant, to be drawn and signed at the request of either party as soon as the said J. B. recovers the said lands from M. O., &c. ; and the court were of opinion that the articles operated as a present demise, and that the agreement for a more formal lease was merely in further assurance. Lord Kenyon afterwards [h), in commenting on this case, observed, that the words were ex- press and unequivocal, and could have no other meaning than that given to them, namely, that they should operate as words of present demise ; they were " hath set and doth demise ; " they were positive in themselves ; and there was nothing to abridge their meaning. In Poole V. Bcntlc}'^ (i), regarded as a leading authorit}'^, the memorandum in question, which was in writing upon an agreement stamp, signed by the plaintijff and defendant, and by virtue of which the defendant was let into possession, (.7) Barry v. Nugent, 3 Dougl. 17f», (/) i'oolc v. Bentley, 12 East, 168; cited, 5 'J'eiin Rep. 165. S. C. 2 Caiuiib. 2«6. (A) 5 Term Rep. 167. Ch. IV. s. III.] AGREEMENT DISTINGUISHED FROM LEASE. GOl appeared to be in the following terms : — "Memorandum of an agreement this 12th of June, 1800, between J. Poole and P. Bentley. The said J. Poole hereby agrees to let unto the said P. Bentley, and the said P. Bentley agrees to take of the said J. Poole, all that piece of land, (describing it,) for the term of sixty-one years from Lady-day next, at the yearly rent of 120/., free and clear of all taxes, &c. ; the said rent to be paid quarterly ; the first quarterns rent wdthin fifteen days after Michaelmas, 1807. And that for and in consideration of a lease to be granted by the said J. Poole, for the said term of years, the said P. Bentley agrees, within the space of four years from the date hereof, to expend and lay out, in five or more houses of a third rate or class of building, 2000/, ; and the said J. Poole agrees to grant a lease or leases of the said land and premises as soon as the said five houses are covered in ; and the said P. Bentley agrees to take such lease or leases, and to execute a counterpart or counterparts thereof. This agreement to be considered binding till one fully prepared can be produced." Signed by both parties and witnessed. The coui't concurred in opinion that the intention was, that the tenant who was to expend so much capital upon the pre- mises within the foui' first j^ears of the term should have a present legal interest in the term, which should be binding upon both parties ; though, when a certain progress should be made in the buildings, a more formal lease, in which perhaps the premises might be more particularly described for the convenience of assigning or underletting, might be executed. And they distinguished the principal case from Goodtitle dem. Est^vick v. Way {k) ; because, in the latter, the exact date of the instrument did not appear, but the stipulation was, that leases with the usual covenants were to be executed before Michaelmas, and the rent which was to be paid half- yearly was not to commence till Lady-day, though the tenant was to be let into possession immediately, Avliich looked to a payment under the leases to be granted ; and the agreement (k) 1 Term Rep. 735 ; ante, p. 583. 602 OF THE CONTRACT OR AGREEMENT. L^art 111. also regarded several leases to be executed in future: and from the case of Doe d. Bromfield v. Smith [l), as the instrument there proAdded for a clause to be added to the lease. On the authority of Poole v. Bentley^ the case of Doe dem. AValker v. Groves (m) was decided. The defendant entered upon the premises at Old Lady-day^ 1798. The contract between the parties was in writings impressed with an agree- ment stamp only, and ran as follows : — " Agreement made this 7th day of March, 1798, between T. Walker of the one part, and E. Groves of the other. The said T. "Walker doth hereby agree to let, and also vipon demand to execute unto the said E. Groves a lease of the farm-house, farm-stead, and farm, situate &c., as the same is now in the occupation of the said T. Walker. And the said E. Groves doth hereby agree to take, and upon demand to execute a counterpart of, a lease of the said farm; to hold the same from the 5th of April, 1798, for the term of fifteen years, under the yearly rent of 147/., to be paid half-yearly, on the 5th of April and lOlh of Octo- ber, which said lease is to contain the usual covenants, and an agreement for re-entry in case of non-payment of the rent, or non-performance of covenants ; and also the further cove- nants, &c. That this agreement shall be binding until the said lease is made and executed. And lastly that the said T. Walker shall this present season properly cultivate, and at his own expense sow down ten acres of tillage land, with not less than ten quarters of hay-seed and ten stone of small seeds." The court, considering that the lease was governed by the decision in Poole v. Bentley {n), decided that the agree- ment was to operate as a present demise, commencing imme- diately from the 5th of April ; though a more formal lease was afterwards to be granted. And they said that the case of Doe V. Ashburner (o) was distinguishable ; for there the landlord was to acquire an additional piece of ground, without which tlie lease was not to l)e granted. Lord Ellenborough, how- (Z) G East, ."iSO ; ante, p. r)85. (n) 12 East, 168. (m) Doc dom. Wallvcr v. Groves, 1.5 (o) 5 Term Roj). 1(5,3; ante, p. 583. East, 244. Cil. IV. S. III.] AGREEMENT DISTINGUISHED FROM LEASE. G03 ever, observed^ that he should have liad considerable doubts, if by the terms of the agreement it had been provided that there should not be an entry till the execution of a lease. In Wright v. Trezevant (/>) the agreement was in these words : — " Peter Trezevant agrees to pay Francis Wright the sum of one hundi'ed and forty pounds per annum, in quarterly pajonents, for the house, garden, stables, and coach-house, situated on the rise of Brixton Hill, called No. 1, Frederick- place, for the term of seven, fom'teen, or twenty-one years, at his option at the end of every seven years. The rent to com- mence the 1st of January, 1827." And Best, C. J., said, "I find here expressed sufficient to satisfy all the requisites to a lease : the rent is specified, and the times of payment, and the term determinable at the option of the tenant. I think the parties did intend this to be a lease : the landlord by ag-reeing to accept the rent, agrees to the equivalent for that rent, in other words consents to demise." Piuero v. Judson (q) was also determined on the authority of Poole V. Bentley, The agreement was in these terms : — *' Memorandum of agreement betAveen T. W. Pinero of the one part and Charles Judson of the other part. The said T. W. Pinero, for the considerations hereinafter mentioned, agrees to grant, seal, and execute, unto the said Charles Judson a legal and effectual lease of all that messuage &c. ; to hold the same unto the said Charles Judson, his executors, administrators, and assigns, from the 25th of March now last past, for the term of five years, at the yearly rent of 80/., to be made payable quarterly, and under and subject to cove- nants by and on the part of the said Charles Judson, his executors, administrators, and assigns, to pay the said rent in manner aforesaid, to keep the premises in good repair, damage by fire only excepted, and to paint all the outside wood and iron work every third year of the said term. The said lease also (p) Wright V. Trezevant, 1 Mood. 187; S. C. 5 Scott, 515; 1 Am. 27. & Malk. 231; S. C, nom. Wright v. (q) Pinero v. Judson, 6 Bing. 206; Trevezanty 3 Car. & Pa. 441. And S. C. 3 J. B. Mo. 497. And see Doc see Copley r. Hepworth, 12 Mod. 1; dem.Green r.Fidler, 2 Peake'sN.P. C. and Chapman v. Bluck, 4 Bing. N. C. 33. 604 OF THE CONTRACT OR AGREEMExXT. [Part HI. to contain a covenant by and on the part of the said T. W. PinerOj his executors, administrators, and assigns, for quiet enjoyment upon payment of the said rent and performance of the said covenants. And the said Charles Judson agrees to accept and take the said lease of the said premises aforesaid upon the terms aforesaid, and to execute a counterpart thereof immediately, upon the execution of the lease, and to pay the expense of preparing the said lease. And in the meantime and until such lease shall be made and executed, to pay unto the said T. W. Pinero, his executors, administrators, and assigns, the aforesaid yearly rent or sum of 80/. in manner aforesaid, and to hold the same premises subject to the cove- nants above mentioned. And the said Charles Judson fur- ther agrees to put the said premises into good and tenantable repair at his own expense, and to complete all such repairs on or before the 25th day of April now next ensuing." No lease was ever executed. The court, in delivering judgment, said : — We think this instrument must be taken to operate as a lease. It is true the parties contemplate a formal lease in future, and if that were the only stipulation, there might be some difficulty, although it is to be observed, that the term is to begin at once. But when we come to the latter words of the agreement, that until the lease is executed the parties are to stand in the same relation as if it had been executed, there is no longer any room for doubt. The defendants are to hold according to covenants, some of which are inconsistent with a tenancy from year to year, as tliat to paint once in tlii'ee years, and that for the tenant's putting the premises in repair before he commences his occupation. These covenants would be unreasonable for a tenant from year to year, but reasonable and usual for a tenant who takes a term. It was no doubt meant that there should be a formal lease, but that the tenant should hold in the meantime under a demise upon the same terms as if that lease had been executed ; and it is for his interest that the instrument should receive such a coiistniclioii because it is attended witli greater certainty. Om- decision will be conformable with what was laid down by Ch. IV. s. TIL] AGREEMENT DISTINGUISHED FROM LEASE. G05 Lord Ellenborough in Poole v. Bentley {r), that the intention of tlie parties, as declared by the words of the instrument, must govern the construction. And he tliere was led from the covenant to lay out money, to draw an inference like that which we have drawn in the present case from the covenant to paint. The tenant was to do that in the first four years which was inconsistent with a tenancy from year to year. In Doe dem. Phillip v. Benjamin [s], a tenant, being in possession under a lease determinable at Michaelmas, 183G, at a yearly rent pa^^able at Michaelmas, entered into a con- tract with his landlord in the following terms : — " INIemoran- dum made this 13th day of December, 1834, between Jenkin Phillip of the one part, and William Benjamin of the other part. The said J. P. agrees to let the farm of Cevengrich and Tii'bach to the said W. B. for the term of fourteen years, determinable at the end of seven years at the option of either party upon giving twelve months^ previous notice, at and for the yearly rent or sum of 20^., payable half-yearly, without any deduction whatever : a lease to be drawn upon the usual terms by Mr. Thomas Bishop: and the said William Benjamin agrees to take it upon the said terms. As witness our hands," &c. The court held the instrument to amount to an actual lease, commencing immediately, in extinction of the then existing tenancy; and they considered it no objection to this construction that the landlord would thus lose rent for the current year from Michaelmas to the 13th of December; for though probably the parties did not contemplate all the con- sequences of their contract, that circumstance could make no difference in point of law. The other cases referred to in a former note (/) are further authorities to show that the introduction into an agreement of words referring to a future lease does not disprove the pos- sibiHty of a present demise being intended. Where F., in consideration of the yearly rent of £ — , to be (r) 12 East, 168. Hodg. 97; 1 Per. cSc Dav. 440. (s) Doe dem. Phillip v. Benjamin, 9 (t) See note (d) of p. 599, ante. Add. & Ell. 644; S. C. 2 Wil. Wol.& 606 OF THE CONTRACT OB, AGREEMENT. [Part HI. paid yearly as after mentioned^ agreed to let the premises in question to G. from Michaelmas day then next, upon condi- tion that G. should paint and whitewash them, repair the plaistering, and glaze the windows ; and G. agreed to take the premises, and enter on the same, and to paint and whitewash, &c., the instrument was held to be an immediate lease, and not, as argued, founded on a condition precedent that G. should paint, &c. (m). As to Stauiforth v. Fox (,2?). There the instrument was impressed Avith an agreement stamp ; and ran thus : — " Sep- tember 11, 1830. An agreement between George Fox and John Staniforth, George Fox does this day agree to let Mr. John Staniforth the whole of his premises situate in Spring Sti'eet, Sheffield, for the term of ten years, namely, three cottage houses, one stable, and -vdctualling house, and all other buildings thereto connected ; also he does further agree to build a brew-house and make a large ceUar under the yard at his own expense, at the yearly rent of 85/., to be paid half- yearly : and that the said George Fox does further agree to pay the ground rent, which is 4Z. O5. ?>d. yearly, for the whole of the premises : and that the said George Fox has this day received from the said John Staniforth the sum of 4/. in earnest." And it was held, that the words "does this day agree to let for the term of ten years" proved that the term was to commence on that day, and therefore that the instru- ment operated as an immediate demise ; the landlord's agree- ment to build a brew-house, and make a cellai', being considered merely an accessory engagement, and not as part of the ori- ginal demise, nor tending to defer its commencement to any future day ; which distinguished the case from Dunk v. Hunter [y), where, by express stipulation, the entry was to be at a future day, and to depend upon the lessee's paying down 50/., which if he failed to do, the term might never have com- menced. (m) Doe rlem. Grppii r. Fidler, 2 S. C. ^ Mo. & Ta. rifW. Peake, .S.3. (//) .I Barn. & Aid. ?<22 ; ante, p. (.r) Staniforth v. Fox, 7 Pin-,'. .I'lO; .'ifitt. Cii. IV. s. III.] AGREEMENT DISTINGUISHED FROM LEASE. GOT lu the late case of Doe clem. Pearson v. Ries (z), which Park, J., said was not distinguishable from Poole v. Bentley, by a memorandum of agreement made 21st September, 1829, Knapp agreed to let, and Pearson agreed to take, certain premises for the term of sixty years or thereabouts, being the whole term for which Knapp had the premises leased to him, at the yearly rent of 525/., clear of all taxes, to be paid quar- terly on the four most usual days, the first payment to be made for the half quarter at Christmas then next. Pearson also agreed to insure the premises. The lease and counter- part were to be prepared by the attorney of Knapp, at Pear- son^s expense, and were to contain all the clauses, covenants, and agreements that Knapp had entered into in the lease granted to him ; and Pearson was to have the benefit of the insiu'ance which had been lately paid without any charge or expense. At the time of this agreement the premises stood in need of considerable repau's, and Pearson was let into immediate possession to finish them at his own expense. Under these circumstances, it was held, that the instrument was not executory, but conveyed a present interest, princi- pally on the ground of the tenant being put into immediate possession, and having to pay only a half-quarter's rent at Christmas ; from which the court inferred that he was to be excused from pajdug any rent for the half-quarter which he would probably be obliged to devote to repairs, and during which, consequently, he would have no enjoyment of the pre- mises; and of his taking the benefit of the existing iusui'ance, which was conclusive to show an intention to pass an imme- diate interest. This decision gives rise to two observations; the first, relating to the propriety of the decision itself; the second, to one of the reasons on which it was founded. In the first place the agreement was for the term of sixty years or there- abouts, beinff the ivhole term for which Knapp had the premises leased to him. Noav, if Pearson were to take the whole of (£) Doe dem. Pearson r. Ries, 8 Bing. 178; S. C. 1 Mo. & Sc. 2.59. 608 OF THE CONTRACT OR AGREEMENT. [Part III. Knapp's interest^ the instrument could not operate as a demise by Knapp ; for to constitute a demise, strictly speak- ing, a reversion must he left in the lessor [a] ; and it is respect- fully submitted, that it amounted cither to an actual assignment, or to an agreement for an assignment, though it may be asked, how Pearson succeeded in an ejectment when the estate (legal I presume) was outstanding in a mortgagee ? In the second place, the court took into consideration the acts of the parties as e\idence of their intention. A similar course was taken in the case of Cooke v. Booth {b) ; but the reader need only refer to the cases in the note (c) to discover with what marked disapprobation that principle of construction has been received by Sii' R. P. Arden, M. E.; Lord Thurlow; Mr. Justice Wilson ; Sir William Grant ; Lord Eldon ; and Lord Ellen- borough. The particulars will be found in a future chapter [d) . In Hancock v. Caffyn (e), C. agreed with N. that, on pay- ment of 1200/., with interest, by instalments in three years, he would by indenture demise to N., his executors, &c., certain premises, and of which possession had been, or was intended to be, given that day to N. ; to hold to liim from the day of the date of that agreement for the term of twenty-five years, at the yearly rent of 250/. ; that in the lease should be con- tained the like covenants and agreements on the part of N., as were contained on the part of C. in the lease under which he held, and all other usual covenants, &c. N. then cove- nanted that he would, until the lease should be granted, pay the said rent, and perform the covenants. And it was pro- vided, that, in case at any time before the lease should be granted the rent should be unpaid by the space of fourteen days, it should be lawful for C. to enter and distrain. And the court considered that though the agreement in its main object and purport appeared to be executory, yet, as N. was to (a) Sec ante, p. 9, et seq. 244-5. See also Balfom* v. Welland, (6) Cowp. «lf». 16 Ves. 156. (r) Ijayiibam v. Guy's Hospital, 3 (c/) Sec the Chapter on Renewals, Ves. 2f)8. Eaton u Lyon, 3 Ves. C04. post, Part the Fourth, Ch. VII. Moore v. Foley, 6 Ves. 237. Iggulden (c) Hancock %i. CafiFyn, 8 Biiig. 358; V. May, fi Ves. 333; S. C. 7 Fast, S. C. 1 Mo. & Sc. 521." Cn. IV. S. III.] AGREEMENT DISTINGUISHKD FROM LEASE. 009 be put into immediate possession, and was to pay rent on certain specified days, it was difficult to say that tlic mere stijiidation of a future lease should defeat the relation which arose upon such a stipulation for payment of rent. In Warman v. FaithfuU (/), by a memorandum of agree- ment, made the 28th of November, 1831, J. F. agreed to let to W. W. for a term of seven, foiu'teen, or twenty-one years, (commencing at Christmas-day, 1831,) at the option of the said W, W., two cottages, &c., at the yearly rent of 24/., pay- able quarterly, the first payment to be made at Lady-day, 1832. W. W. was to keep the premises in repaii', and, on qiiitting possession, to leave all buildings erected by him during his occupation ; and he bound himself to give to J. F. six months' notice, if he should be desirous of putting an end to the agree- ment at either of the terms before specified. Lastly it was agreed that W. W. should pay all the expenses of preparing a lease for either of the terms above stated. And it was deter- mined that, as the specific rent, and times of payment, and the period of the commencement of the tenancy, were ascer- tained, the instrument contained everything necessary to a complete and perfect lease. In Alderman v. Neate(^), by an instrument dated the 25th of February, 1782, it was agreed in effect as follows : — E. S. doth agree to demise unto A. B., and the said A. B. doth agree to take, all that messuage, &c.; to hold unto the said A. B., from the 25th of March next coming, for the term of ninety-nine years, at the clear yearly rent of 27/., payable half-yearly; and the said A. B. doth agree to pay the said rent accordingly, and all taxes, &c., and to keep the premises in repair ; and the parties do agree that a lease and counter- part of the premises shall be prepared and executed on or before the 1st of January next ensuing, with covenants and agreements pursuant to this present contract, and such other general clauses as are usually contained in leases. There was (/) Warman v. Faitlifull, 5 Barn. {rj) Alderman v. Neate, 4 Mees. & & Adol. 1042; S. C. 3 Nev. & Man. Wei. 704; S. C. I Horn & Hui-i. 369. 137. VOL. I. R R 610 OF THE CONTRACT OR AGREEMENT. [Part III. a clause also enabling A. B. to purchase the premises if he should think fit. The court held that it amounted to a lease^ as it contained the provisions usually found in actual leases. Thus we see that in all these cases the terms of the contract were fully ascertained, and nothing more than a regular con- veyance was wanting (A) . No apology is necessary for the preceding detailed exposi- tion. The pecuHarities of the language and pro\isions of the instruments rendered a particular notice necessary ; and closer condensation would only have weakened or obscured their effect. The reader is now enabled by examination to appre- ciate the merits of the authorities, and to apply them to any case submitted to his consideration. From a review of the decisions, however, it is apparent, that the circumstance of immediate possession being taken has not of itself materially affected the construction. In Doe. dem. Jackson v. Ashburner (?'), indeed, Mr. Justice Ashhurst de- clared that the permitting of a party to enter was strong evidence to show that the landlord intended to give a present interest; and in the late case of Doe dem. Pearson v. Ries(A-), the judges concurred in that doctrine ; but in the majority of the decisions the fact of entry does not seem to have had much weight with the court. Although an agreement between an intended lessor and lessee may possibly amount at law to a present demise ; yet, if, upon the face of it, it appear that a further instrument is necessary to carry the intention of the parties into execution, equity will decree a specific performance of the agreement in that particular {I) . "Where there is any doubt whether an instrument operates as a lease, or an agreement for one, the prudent course is to (/t) Pentland v. Stokes, 2 Ball & v. Powell, 8 Scott's N. R. 687. 6.08-9, Beat. 78. And see Wright v. Trezc- where Tindal, C. J., said, that it was vant, or Trevezant, 1 Mood. & Malk. important to consider whether the in- 231; S. C. .3 Car. & Pa. 441. Doe stiniment contained words of pi-esent dem. Pearson ?>. Ries, 8 Bing. 178. 182; demise, and whether possession was •S. C. 1 Mo. & Sc. 2.').'). .ictually given at the time. (0 5 Term Rep. Ifi8. (0 Fenner v. Hepburn, 2 Yo. & (/.) 8 Ring. 178; S. C. 1 Mo. & Sc. Col. N. C. V. C. 15i). 25J>, And see also Doe dem. Morgan Ch.IV.S. IV.] CONSEQUENCES OF THE AGREEMENT: AT LAW. 61] have it stamped as an agreement and also as a lease; if this be done, only one penalty will be payable (w). But if an instrument stamped M'ith an agreement stamj) be relied on at the trial as a lease without objection by tlic opposite party, the objection cannot afterwards be taken on argument in banc (w). It is not easy to discover on what ground the kind of stamp impressed on the instrument can control its legal operation. The stamp seems to be rather the consequence than tlie means of construction (o) . Lord Kenyon, however, considered that it might serve to indicate intention, and regulated his judgment accordingly (7;). It remains to observe that as a party entering into posses- sion under an agreement for a lease is liable to eviction, without notice to quit, at least till recognized as a tenant, he should stipulate for enjoyment at all events for a year, although no lease may be executed. Section IV. — Of the effect and consequences of the AGREEMENT. I. At law, the mere signing of the agreement does not establish the relation of landlord and tenant, though it creates a right of action at law for damages for a breach of contract, or of suit for a specific performance of it. But the lessee^s entry into, and occupation of, the premises in the interval between the agreement and the execution of the lease, unconnected with any transactions from which a tenancy from year to year may be inferred, constitute a tenancy at will {q), deter- {m) Perring v. Brook, 7 Car. & Pa. Tenn Rep. 744. Doe dem. Green v. .362, n. (c). Fidlor, 2 Peake's N. P. C. 33. (m) Doe dem. Phillip v. Benjamin, {rf) Hamerton v. Stead, 3 Bam. & 9 Adol. & Ell. 644; S. C. 1 Per. & Cres. 478. 483; S. C. 5 Dow. & Ry. Dav. 440; 2 Wil. Wol. & Hodg. 97. 206. Regnart v. Porter, 7 Bing. 451-3; (o) See Doe dem. Walker v. Grove.s, S. C. 5 Mo. & Pa. 370. Chapman r. 15 East, 244. Clayton v. Burtenshaw, Towner, 6 Mees. & Wei. 100. Brayth- 5 Barn. & Cres. 41; S. C. 7 Dow. & wayte v. Hitchcock, 10 Mees. & Wei. Ry. 800. ~ 494-7. (jp) Doe dem. Coore v. Clare, 2 R R 2 612 OF THE CONTRACT OR AGREEMENT. [Part III. minable without any previous notice to quit (r) ; but convert- ible, by subsequent payments of rent, into a legal tenancy from year to year {s) . The tenant will then be considered as hold- ing upon the terms, and subject to the conditions, of the agreement (/) ; and that tenancy can only be determined by the usual notice to quit, or by surrender express {u), or impUed. A verbal agreement by a landlord with his tenant holding under a contract for a lease to accept a reduced rent, Avhich is paid accordingly, will not determine the existing tenancy, and create a new tenancy from year to year; but will rather confinn the existing agreement, with a relaxation of one of its terms (a'). If the agreement pro^dde that the lease shall contain a proviso for re-entry on breach of any of the covenants stipu- lated for, the lessee may be ejected on proof of conduct which Avould amount to a breach if the lease were executed (y). In the case of a holding over, the terms of the written agree- ment would apply ; and in principle there is no distinction between that case and the case of a tenant who enters and pays rent upon the faith of an executory agreement for a lease (z) . Such holding under the agreement is sufficient to satisfy a count against the tenant as tenant upon a demise, for mis- management of the estate contrary to the terms of the agree- ment, the count stating that whereas the i^lnintiff had de77iised, &c. («). Still, some practitioners consider it advisable in all cases to insert a stipulation that, until the lease be executed, the tenant shall hold from a day fixed as tenant from year to year, under the rent, covenants, and provisions, comprised in (»•) Hegan v. Johnson, 2 Taunt. 148. Doe dem. Thomson v. Amey, 12 Adol. And see Knight v. Bennett, or Benett, & Ell. 476; S. C. 4 Per. & Dav. 177. 1 1 J. B. Mo. 222; S. C. 3 Bing. 361. Brydges v. Lewis, 3 Q. B. 603-8; S. C. (s) Ibid. Hamerton v. Stead, sup. 2 Ga. & Dav. 763. Fisher v. Maguire, Doe dem. Westmoreland, or Perfect, Armsti'. Mae. & Og. 51. V. Smith, 1 Man. & Ry. 137. Clarke («) Chapman v.Towncr, sup. Brayth- V. Moore, 1 Jo. & La Tou. 723-9; wayte r. Hitchcock, sup. though, in equity, the tenant is regarded (x) Clarke v. Moore, 1 Jo. & La as holding for the whole term accoi'd- Tou. 723. ing to liis agi-ecmcnt. (y) Doe dem. Thomson v. Amey, (/) Doc dem. Oldershaw v. Breach, sup. 6 Esp. 106. Hamerton v. Stead, sup. (z) Ibid. Mann v. Lovejoy, 1 Ry. & Moo. 3.55. («) Tempestf. Rawling, ISEast, 18. Cu.lV. S.IV.] CONSEQUENCES OF THE ACiHEEMENT : AT LAW. (il-'i the contract ; and this Avill be admissible as evidence of a parol letting from year to year, where the agreement is not under seal. Lord Mansfield, whose judicial attachment to equitable doctrines is well known, deemed a contract for a lease equiva- lent to a lease actually granted; and decided that, as equity would decree a specific performance, an instrument operating as an agreement only was an available defence to an action of ejectment (Ij) ; but this innovation upon principle has been checked by later decisions (c), which have established, on a basis too firm to be easily subverted, that the legal estate must prevail in an ejectment. An agreement for a lease does not necessarily import that the demise must be made by the party agreeing : it may be construed as a contract to prociu-e a lease to be granted {d). Nor is it tantamount to a covenant for title in an absolute conveyance (e). Nor is a party contracting to grant a lease, bound to obtain a release of an outstanding equity of redemption, so as to enable him to be the only demising party; it is sufficient if he obtain the concui'rence in the lease of the owner of the equity of redemption, though the expense of such owner's joining must be borne by the lessor (/). If a party under a contract for a lease for a specified term enter into possession, and hold under it till the end of the term, he may be ejected without notice to quit {(j). An agreement for a lease of a house or land does not imply an obligation on the lessor's part, that the premises shall be fit for the piu-pose designed by the lessee. If, therefore, a pai'ty agree to take the eatage of a piece of land for a certain term, at a certain rent, he cannot resist payment, because some of Qj) Weakly dem. Yea v. Bucknell, Doe dem. Da Costa v. Warton, 8 Tcnii Cowp. 473. Goodtitle dem. Edwards Rep. 2. Shanuon v. Bradstrcet, 1 Scho. V. Bailey, Cowp. b'dl. & Lef 67; and see the note there. (c) Lowtherr. Aiidover, 1 Bro.C. C. (d) Clarke r. Peppin, 2 Vent. 99. 397. Doe dem. Hodsden v. Staple, 2 (r) GwilUra r. Stone, 3 Taunt. 433. Term Rep. 684. Doe dem Coore v. (/) Reeves v. Gill, 1 Beav. 375. Clare, 2 Term Rep. 739. Goodtitle (y) Doe dem. Tilt v. Strattou, 4 dem. Jones v. Jones, 7 Term Rep 47. Bing. 446; S. C. 1 Mo. & Pa. 183. 614 OF THE CONTRACT OR AGREEMENT. [Part III. his animals, with which he stocked it, died from having eaten on the ground something of a poisonous nature (A) . It is not usual in practice, on an agreement for a lease, especially where it is to be derived out of a great estate, to require an investigation of the title of the intended lessor (i) ; but whether the production of that title can be enforced on a bill for specific performance by the lessee, has been the subject of anxious discussion. Some words attributed to Lord Mansfield {k) tend to show that that learned judge considered the intended lessee's right unquestionable. "Whoever (said his lordship) wants to be secure Avhen he takes a lease should inquire after and examine the title deeds;'' but he admitted, at the same time, that it was not often done, because the tenant relied on the honor of his landlord. In the case of Gwillim v. Stone (/), where the plaintiff declared on an agreement by which the defendant agreed to grant him a lease of certain premises, and, after avening that the defendant undertook to procure and dehver to him an abstract of title, (as to which the agreement was in fact silent,) declared as a breach, that the defendant refused to deliver such abstract, Lawrence, J., ridiculed the notion of a mere contract for a lease implying an engagement to fui'nish an abstract, saying that the alleged agreement to deliver an abstract was all poetry, the mere fancy of the special pleader. And, upon the authority of this determination, Gibbs, C. J., nonsuited the plaintiff in the action of Temple v. Brown (m), a case similar in its circumstances, and Mr. Justice Heath seems to have approved of the nonsuit ; but, upon a motion for a new trial, the court, seeing that the question was one of immense magnitude, at first asked whether the parties Avould put it on tlie record in the shape of a special verdict ; for (/t) Sutton V. Temple, 12 Mccs. & Tatou v. Brebncr, 1 Bli. P. C. 60. Wei. 62. Hart v. Windsor, 12 Mces. (/) Kcecli v. Hall, sup. & Wcl. 68. Surplice v. Farnswortli, (0 Gwillim r. Stone, 3 Taunt. 1.33; « Scott'B N. R. .307. S. C. 14 Vcs. V2n. (/■) Kecch ('. Hall, I Dougl. 23. (m) Temple v. Brown, 6 Taunt. 60. Ch.IV, s.IV.J CONSEQUENCES OF THE agreement: — AT LAW. 015 when Lord Chancellor Eldon had said {n) that he would not decide the point in equity without the aid of the judges of the courts of liuv (o), they would be soiTy to take it on themselves to decide it, without affording an opportunity for a re\dew of their judgment ; but, afterwards, considering that the cause had originated in a dispute between the two attorneys, and that the clients had nothing to gain by the decision of this momentous question, they desired the counsel to consider what course would be most for the interest of the parties, and adjourned, and the case was never afterwards argued. The question was again agitated, but not settled, in the more recent case of Fildes v. Hooker (jj). The Master of the Rolls (Sir Wm. Grant) declared that he should hesitate long before he decided that an owner of real property, by contract- ing to grant a lease, became bound to show a title to the estate out of which it was to be granted. It was, however, distinctly determined, that the granting party could not com- pel a specific performance against the intended lessee, without showing a title to the property to be leased, and that he was able to give what he sought to compel the other to take. The argument attempted to distinguish between an agreement for a lease for only twenty-one years, and at a rack rent, and an agreement providing for a long term, or payment of a large fine, or for expensive improvements; but the court considered that it might be as great an inconvenience and detriment to a lessee for twenty-one years, as any other lessee, to be CA-icted in the middle of his term ; and that what, at the commence- ment of the term, was a lease at rack rent, might from various circumstances become a beneficial term before the end of it ; and, consequently, that a person bargaining for such an inte- rest should not be compelled to take it without a title. (n) White?;. Foljambe, 1 1 Ves. 346-7, not leave mankind to speculate on any was referred to. judgment I alone can give, but I will (o) According to Vcsey's report, the have the best assistance upon such a term, "judges of the com'ts of law," was point; for I can hai-dly estimate the not used, Lord Eldon's words being, consequences of law from either doc- " But if ever it should be my duty to trine." decide a question so important, I %vill (/>) Fildes v. Hooker, 2 Meriv. 424. 616 OF THE CONTRACT OK AGREEMENT. [Part III. We may stop to inquire whether a lessee, or an assignee of a lease, contracting generally to sell the demised property for the residue of the term, is, with regard to the production of the lessor's title, better circumstanced than a party con- tracting generally to grant a lease. Lord Eldon cautiously abstained from pronouncing an opinion in two cases {q) which touched the point ; but in Purvis V. Rayer (r), L. C. B. Richards, after consultation with Avhat he termed higher authority than his own [s), evidently with Lord Eldon [t), broadly decided that a party contracting for the sale of leasehold property, without any condition respecting the production of the lessor's title, could not enforce a specific performance Avithout such production. A few years afterwards, Abbott, L. C. J., determined at Nisi Prius (u), on an agreement for the sale of a lease of a pubhc-house, the agreement being silent as to title, that, without a stipulation for the purpose, a vendor was not bound to produce his landlord's title, a thing (said the learned judge) wliich in most cases Avould be utterly impossible. And, after noticing that the cases the other way were only cases in equity, and that although it might be true that a vendor on a bill for a specific performance could not compel a purchaser to take a lease without showing the lessor^s title, declared, that still he should hold that, in a court of law, the purchaser could not recover his deposit on account of such title not being produced, unless the vendor had expressly contracted to furnish his lessor's title. The authority of this case, however, has been destroyed by the more recent decision in Souter v. Drake (.x"), where the court of King's Bench, rejecting the distinction acted upon in George v. Pritchard, determined, that, unless there be a (-/) White t". Foljambe, 11 Ves.. 377. Moo. 417. I>{!vcrell V. Lord Bolton, 18 Ves. 506. (x) Souter v. Drake, 5 Barn. & (r) Purvis v. Rayer, 9 Pri. 488. Adol. 992; S. C. 3 Nev. & Man. 40. (») 9 Pri. 51C-7. See also Spratt v. Jeffery, 10 Barn. & (0 5 Barn. & Adol. .'»99; ^^ Nov. & Cres. 249. 261, the judgment of .\ian.'44. ParlvC, J. (") fJcorge V. Prilcliard, 1 By. cV Cii.lV. S.IV.] CONSEQUENCES OF THE AGREEMENT: AT LAW. (117 stipulation to the contrary, there is in every contract [y) for the sale of a lease an implied undertaking to make out the lessor's title to demise, as well as that of the vendor to the lease itself; that the implied undertaking is available at law as well as in equity; and that the defendant was justified in refusing to part with his money or complete his purchase, until furnished with proof of the lessor's title ; and Souter v. Drake itself has been fully aflSrmed of late by the court of Common Pleas (r'). But it does not appear that Souter v. Drake has impeached the authority of Gwillim v. Stone; in adverting to which Lord Denman said (a), that the case of Gwillim v. Stone was disposed of before the subject was so much considered as it since had been in the cases in equity: besides, that the points actually decided were, first, that on a contract to grant a lease there was no engagement necessarily arising by impli- cation of law that the lessor had sufficient power to grant such a lease, and should show a good title, for the court arrested the judgment on the ground that it was not a good breach of an agreement to grant a lease, to state that the defendant had not shown, and had not a sufficient title ; and, secondly, that there was no contract implied in point of fact to deliver an abstract of title on an agreement to grant a lease. The generahty of the proposition advanced in Souter v. Drake admits of exception in the case of a contract for the sale of a bishop's lease. In the case of Fane v. Spencer (i), determined by the Vice-Chancellor, July 15, 1815, the de- fendant, the purchaser of an estate held on lease for lives under the Bishop of Bath and Wells, excepted to the Master's report in favor of the title, on the ground that it was not shown, by the abstract or otherwise, that tlic bishop had any right to make the lease under Avhich the plaintiff, the vendor, derived her title. There was no condition in the particulars of sale that the purchaser should not require, nor the vendor (?/) See, however, Fane v. Spencei', («) 5 Bam. & Adol, 1000; 3 Nev. & infra, in this page. Man. 44. (3) Hall i'.~ Betty, 5 Scott's N. R. (/<) Fane r. Spencer, 2 Mcriv. 430, n. o08; S. C. 4 Man. & Gra. 410. Sir Thomas Plumer, V. C. 618 OF THE CONTRACT OR AGREEMENT. [Part III. be bound to produce, the title of the ground landlord. The Master, on a reference, reported in favor of the title, and, after several arguments, the V. C. overruled the exceptions, as the case was one of a bishop's lease, and therefore distinct from the question which arose on ordinary leases, the statute prescribing the mode of granting, and the presumption arising from the use of the bishop's seal being equivalent to that which was founded on admission in the case of a copyhold. On the whole, it appears. That a party agreeing to grant a lease, without reference to title, cannot compel a specific performance without pro- ducing his title ; That the party agreeing to take the lease cannot enforce the production of that title ; That a party agreeing, without reference to title, for the sale of his lease, cannot (except in the case of a bishop's lease) compel a specific performance without production of his lessor's title, as well as his own ; Nor, without such production, maintain an action at law for a breach of the agreement. It is usual, therefore, in practice, expressly to provide, in agreements for leases, that the lessor shall not be bound to produce his own title ; and, in agreements for the sale of leasehold interests, that the vendor shall not be bound to produce his lessor's title. And if an auctioneer having the management of the sale of leasehold property omit such a provision from the particulars and conditions of sale, he is guilty of gross negligence, which is a good defence to an action by him against his employer for work and labour (c) . Where a party having entered into a contract for a lease took possession of the premises, and after perusal of the lease sent him by the lessor, returned it with alterations, it was held that he had waived any right he might have had to an investigation of the lessor's title [d). So, where one contracting for the purchase of the benefit (c) Dencw r.Dcvcrcll, cited byl/ord Adol. 1001 ; 3 Nev. & Man. 4a. Denmuii in Soutcr v. Drake, 6 Barn. & (d) Warren v. Ilichardsou, 1 Yo. 1 . Ch.IV. s.lV.] CONSEQUENCES OF THE AGREEMENT: AT LAW. 019 of an agreement for a lease of a public house, and also of the stock and good will, entered into possession before the lease had been granted, paid part of the purchase money, and mort- gaged his interest, it was held, that he was not entitled to call for the production of the lessor's title, or for CAidence that the lease was made in conformity with the power under which it was granted [e] . In the absence of express stipulation for the purpose, the lessee has no means, after the execution of the lease, of com- pelling the lessor to produce his title deeds (/) . To guard against this objection, the lessee, keeping the probability of an assignment in view, should require from his lessor a cove- nant for the production of his title, for the satisfaction of a future purchaser {ff) . If a party contracting to grant a lease to begin at a future specified day, (the agreement being silent as to the time of making the lease,) be not prepared, when called upon, to show that he has sufficient right, the intended lessee may rescind the contract, and recover his deposit, even before the day prescribed for the commencement of the lease in interest (h). Or if the intended lessor disable himself from granting a future lease, by concurring in the interval in a conveyance of the estate, inconsistent with the lessee's right, he is guilty of a breach of his contract, and is liable to be sued before the stated day arrives, notwithstanding the possibility of his reco- vering in the interim the means of fulfilling it. This rule was exemplified in two late cases (i). In the former (A:), the agTcement, dated 3rd January, 1824, was, that the defend- ant should, with aU possible speed after he should become possessed of or in possession of a certain public house, execute a lease thereof, from the 21st of December, 1825, for fourteen or twenty-one years, if required by the plaintifi", at the yearly (c) Haydon v. Bell, 1 Beav. 337. 325; S. C. 9 Dow. & Ry. 448. Roper (/) Purvis V. Rayer, 9 Pri. 520. v. Coombes, sup. And see Main's case, ((/) 9 Pri. 521. 5 Co. 20, b.; S. C. Mo. 452; Cro. Eliz. (A) Roper v. Coombes, 6 Barn. & 450. 479; Jcnk. Cent. 256; 2 And. 18; Ores. 534; S. C. 9 Dow. & Ry. 562. Poph. 109. (») Ford V. Tiley, 6 Barn. & Cres. (k) Ford v. Tiley, sup. 620 OF THE CONTRACT OH AGREEMENT. [Part III. rent of 105/. ; and the defendant was to have^ as the consi- deration, 5/. down, and 100/. on the signing of the lease. The agreement also stipulated, that if either party ran from the agreement, or did anything to prevent the lease from being executed by all necessary parties, he should forfeit 200/. It appeared in evidence upon the trial, that at the time of the agreement the house was out upon a lease which would not expire till Midsummer, 1827, and that the legal estate was vested in trustees in trust, among other trusts, to receive and pay to Betty Tyler 25/. per annum for her life, and, subject thereto, to the use of the defendant, if he attained twenty-four. On the 24th of June, 1825, the defendant, having attained twentj^-four, joined with the trustees in a new lease to the former lessees, for twenty-three years, from the 29th of Sep- tember, 1825; and it was for his concurrence in this lease that the action was brought. ItAvas objected at the trial, and the question Avas saved, whether the action, brought in 1826, was not premature, on the ground that the lease which was in esse at the time of the agreement would not have expired till Mid- summer, 1827, and was still as to these parties to be deemed a subsisting lease; but the court were of opinion that the action was maintainable; because by the lease of June, 1825, the defendant had given up his right to have the possession, and had put it out of his power, so long as that lease subsisted, to grant the lease he stipulated to grant; that although it was very true that the defendant might obtain a surrender of the lease of 1825 before Midsummer, 1827, and then he would be in a condition to grant the lease he stipulated to grant, yet the obtaining of such a surrender was not to be expected; and having created a present disability, his contract with the plaintiff was broken by joining in the lease of 1825. The latter case (/) was an action of assumpsit for money had and received. It appeared in evidence, that, on the 31st of March, 1826, the defendant agreed to grant to the plaintiff" a lease of a public house, for twenty-one years, from the 21)th (/) Roper V. Coombes, (j Darn. cS: Crcs. 534 ; S. C. 9 Dow. & lly. 50""2. Ch.IV. S.IV.] inequity: — SPECIFIC PERFORMANCE. 621 of September then next, in consideration of 1000/., of which 10/. were then paid down by the plaintiff; 90/. were to be paid on the 13th of April then next; and the residue on haWug possession. No time for granting the lease was ex- pressly fixed by the agreement. The sum of 90/. Avas not paid on the loth of April; but on the 20th of that month the plaintiff by his attorney required the defendant to exhibit his title to the premises. The defendant, on the other hand, called for payment of the 90/., and insisted that he was not bound to grant the lease, or show a title, until the 29th of September; and thereupon the plaintiff gave notice that he would rescind the contract, and caUed for repayment of the 10/. The defendant having refused to repay it, an action was commenced in Trinity Term, 1826. It appeared that the defendant had not at that time power to grant a lease accord- ing to his contract ; and the sole question was, whether the plaintiff at the time when the action was commenced had a right to rescind the contract : if he had not, it followed that the defendant was entitled to maintain an action for the sum of 90/., which was agreed to be paid on the 13th of April: and the court held^ that, as no e\ddence of his right was then given, and as at the trial it was proved, on the contrary, that he had no such right at that time, the plaintiff was entitled to rescind the contract, and to sue for the 10/. which he had paid ; it being but reasonable that the party should not pay so large a sum as 90/. without knowing that the defendant had power to complete his part of the contract. The tenant should be cautious how he incurs expense in altering or impro^^ng the premises before the execution of the lease ; as he cannot maintain an action to be reimbiu'sed on the landlord's proving unable to make a good title (m) . II. Another of the consequences of the agreement is a right to apply to a court of equity for a specific performance of it ; but, to call this branch of equitable jurisdiction into operation, the term and conditions of the intended lease must either be (in) Gwillim v. Stoue, 3 Taunt. 433. 622 OF THE CONTRACT OR AGREEMENT. [Part III. actually expressed, or the transaction must bear some reference by which they may be ascertained {n) ; for if a material ingre- dient in the terms be omitted, or left in doubt, the court regards the transaction as imperfect, and resting in treaty only. Therefore, where a tenant in possession under an article impeached by his landlord proposed to pay an in- creased rent, a bill by the landlord for a specific execution of the proposal was dismissed, the period when the increased rent should commence not being agreed on (o) . It is the same if the agreement make no mention of the term of the proposed lease {p). But though specific performance cannot be decreed of an agreement to sell at a price to be settled by arbitrators, if the arbitrators named by the parties have not made their award; yet, if the agreement be that a valuation shall be made, but the parties have not appointed any persons to make the valu- ation, the court will itself interfere, by reference to the Master, to ascertain the value, and direct a specific perform- ance of the agreement (q) . And where an agreement was entered into for a lease for three lives, or thirty-one years, a specific performance was decreed in Ireland, the term being customary and well under- stood in that country. It was considered that the right of nomination rested with the tenant ; and that he was entitled to the aid of the court, provided he made his application within a reasonable time, and nominated lives in existence when the agreement was entered into (r) . The cases of Wheeler v. D^Esterre (s), and Lord Kensington V. Phillips {t), being decided on the particular circumstances attending them, were not held to affect the question. (m) Gordon v. Trevelyan, 1 Pri. 64. Lef. 22. Verlander v. Codd, 1 Tui-n. & Russ. (7) Daly r. Duggan, 1 Irish Eq. .352. Price v. Aashcton, 1 Yo. & Col. Rep. 311. Exch. 82. 441. And see Parker v. (r) Fitzgerald v. Vicars, 2 Dru. & Smith, 1 Col. 608. Butler v. Povvis, 2 Wal. 2!)8. And see O'Herlihy v. Col. 156. Hedges, 1 Scho. & Lef. 128. (0) Lord Ormond v. Anderson, 2 (s) Wheeler v. D'Esterre, 2 Dow. Ball At Beat. .'J63. P. C. 359. (p) Clinau v. Cooke, 1 Scho. &, (t) Lord Kensington v. Phillips, 5 Cn.IV. S.lV.l inequity: — SPECIFIC PERFORMANCE. 628 But where an agreement uncertain in itself expressly refers to another written instrument {u), or to a plan, as an existing document, forming a term in the contract, parol evidence is admissible for the pui'pose of identifying the writing or plan ; though, unless the evidence of identity be clear and satisfactory, specific performance of such an agree- ment will be refused (x) . Cases of part performance appear to receive a more indul- gent consideration. Great difficulty sometimes exists in ascertaining the precise stipulations of the agreement, although it be partly carried into execution. Under such circumstances, the court endeavours to collect, if it can, the terms contemplated by the parties {y). Thus, where a bill was filed, praying for a lease according to the defendant's promise, the plaintifi* having laid out money on the premises ; and the defendant insisted on the statute, there being no agreement in writing, nor any certain terms agreed upon, declaring, that what the plaintiff had laid out was not on lasting improvements, but admitting that he had built a stable, which cost him about 10/.; and it was proved that the defendant told the plaintifi" that his word was as good as his bond, and promised him a lease when he should have renewed his own from his landlord; the Lord Chancellor said, that the defendant was guilty of a fraud, and ought to be punished for it ; and so decreed a lease to the plaintiff", though the terms were uncertain ; it being in the plaintifi'^s election for what time he would hold it ; and he elected to hold during the defendant's term, at the old rent (2). Lord Thurlow also in a case («), which has not escaped censure {b), directed a reference to the Master for the purpose Dow. P. C. 61. And see Fenton v. 1 Col. 608. Reilly, cited, Wallis, by LjTie, 85. (z) 5 Vin. Ab. 523. pi. 40, tit. Con- (m) Clinan v. Cooke, 1 Scho. & Lef. tract and Agreement. 33. (a) Allan v. Bower, 3 Bro. C. C. 149. (a;) Hodges v. Horsfall, 1 Russ. & And see Plunket v. Lord Kingsland, 4 Myl. 116. Bro. P. C. 567; S. C. Toml. ed. vol. 1, (y) Boardman v. Mostyn, 6 Ves. p. 322; Jour. vol. 27, p. 32. 471. See also Plunket v. Kingsland, (b) 1 Scho. & Lef. 36. 1 Bro. P.C. 322; and Parker v. Smith, 624 OF THE CONTRACT OR AGREEMENT. [Part III. of ascertaining the terms on which a lease was to be granted to the plaintiff. And in a case that came from Malton in Yorkshire, possession having been delivered in pursuance of a parol agreement, and a dispute arising upon the terms of the agi'eement, the same learned judge thought proper to send it to the Master, upon the ground of the possession being dehvered, to inquire what the agreement was. The Master decided as well as he could, and then the cause came before Lord Rosslyn upon further directions, who certainly seemed to think Lord Thurlow had gone a great way ; and either drove them to a compromise, or refused to go on with the decree upon the principle on which it was made (c) . So, in Mortimer v. Orchard [d), where the plaintiff having built a house on the estate of the two defendants brought a bill for specific performance of an agreement, not according to the statute of frauds, for a new lease for twenty-one years; and the terms of granting the lease, proved for the plaintiff by the testimony of a single witness, were different from those of the agreement set up by the bill ; and both defendants in their answers stated the agreement to be different both from that proved, and that set up by the bill ; Lord Loughborough said that it was impossible to decree upon the prayer of the bill, as then he must decree contrary to the evidence for the plaintiff; that in strictness, therefore, the bill ought to be dis- missed ; but as there had been an execution of some agree- ment between the parties, and he gave the plaintiff credit for building the house, which was not compatible with the idea that he was to have only the remainder of the old term, he was put to inquire into the single fact, what was the agree- ment. The plaintiff having tendered a lease to the defend- ants, which they had refused, the Master was directed to look into the lease so tendered, and to settle a lease pursuant to the agreement confessed by the answers, to which (said his lordship) I Avill bind the defendants, and by which only I can (c) CitcdbyLordEldon, 6Ves. 470. '24.1 See Lindsay v. Lynch, 2 Seho. ((/) Moi'tinicrv. Orchard, 2 Ves.jun. cSt Lcf. 1. Ch. IV. S. IV.] inequity: — SPECIFIC PERFORMANCE. 625 bind them, containing all the covenants and clauses of the ancient lease. Lord Redesdale also, in a suit for a specific performance, where the agreement was silent as to the dm'ation of the term, said, that he should have had great difficulty if there had been a part performance ; as then he must have directed a further inquiry, for the party had not suggested by his bill that the agreement was for three lives, or for any specific time [e) . In conformity also ^v^th these determinations, Lord Eldon declared that he considered the court bound to ascertain, as far as possible, the terms of the agreement (/). He, however, as well as Lord Rosslyn {(/), was of opinion that the court had gone quite far enough, and that, perhaps, if it were res Integra, the soundest rule would be, that if the party left it so uncertain, the agreement should not be taken out of the statute sufficiently to admit of its being enforced (/?). In the next place, in seeking a specific performance, the plaintiff must not only come to enforce a fair and reasonable contract, but must show that his own conduct in reference to it has been fair, and free from suspicion [i] ; for if there be a reasonable doubt upon the transaction, the party will be left to his legal remedy for the nonperformance of the contract {k). Thus, where a party acted as if he had abandoned his con- tract to take a lease, his bill for a specific performance was dismissed (/). So, where the sm*render of an existing lease piu* autre vie formed part of the consideration for the grant of a new term, and in the interval between the commencement of the treaty and the signing of the agreement the life of the cestui que vie was despaired of, and shortly afterwards expired, the sup- (e) 1 Scho. & Lef. 40. borough, 2 Dru. & Wal. 441. Harris (/) Boardmanv.Mo.styn,6 Ves.471. v. Kemble, 1 Sim. Ill; S. C. 2 Dow (V) Ante, p. 624. & Cla. 463. (Ji) Boardman v. Mostjn, sup. (A-) Flood v. Finlay, sup. O'Rourke (i) Flood V. Finlay, 2 Ball & Beat. v. Percival, sup. 16, O'Rourke v. Percival, 2 Ball & {I) Garrett v. The Earl of Bes- Beat. 58. Garrett r. The Earl of Bes- borough, sup. VOL. I. S S 626 OF THE CONTRACT OR AGREEMENT. [Part III. pression of the fact of his danger, wliich was known to the lessee, but not to the lessor, was deemed too sharp a practice to be countenanced in equity, and the plaintiff^s bill for a specific performance was dismissed with costs (m). So, where a party in possession of land as assignee and ostensible owner, but in fact holding under a secret trust for the original lessee, then in insolvent cii'cumstances, obtained from the landlord, in confidence of his (the assignee's) being the rightful tenant, and a responsible man, an agreement for a renewal of the lease, the court for his misconduct dismissed his bill for a specific performance {n) . To the same eff'ect was the case of Blakeney v. Baggott (o). F. C, being tenant for life of the lands in question, with power to lease for thirty-one years, with remainder to M. C, his son, in tail, made a lease to O., his attorney, for three lives, of Avhich M. C. was one. M. C, while an improvident young man, executed an agreement, written on the counter- part of the lease in the hands of O., by which, in considera- tion of 20/., he confirmed the lease granted by his father, and engaged to renew it for an additional three lives. The agree- ment was dated in 1749 ; and the first three lives expired in 1817; and then the representative of O. claimed a renewal for other three lives, pursuant to the agreement, and filed his bill for specific performance; but it was dismissed, for the agreement was deemed to be of too doubtful and suspicious a character for a specific performance ; and the time which had elapsed was not considered under the circumstances to imply acquiescence ; and the judgment was affirmed in the House of Lords. Again, the court will not compel the acceptance of a lease, unless the party seeking the specific performance be able to perform the contract on his part, by granting a secure lease for the term agreed for ; therefore, an underlessee of one of (in) Ellard r. Lord Lliindiiff, 1 Ball (o) Blakeney v. Baggott, 1 Dow. & & Beat. 241. Cla. 405; S. C. 3 Bli. I'. C. N. S. 2:57. (n) O'llerlihy r. Hedges, 1 Scho. ^i Dowling r. Mill, 1 Madd. 541. Lef. 123. 130. Ch. IV. S. IV.] IN equity:— SPECIFIC PERFORMANCE. 627 several houses wliicli had been originally comprised in one demise^ with a right of re-entry into the whole on breach of covenants^ agreeing to grant to another a lease for twenty-one years, cannot compel a specific performance, as he cannot secm'e to the purchaser the specific property for which he con- tracted; for if the covenants in the original lease, though well observed with respect to the particular house, were to be broken as to any of the other houses, the original lessors would be entitled to re-enter upon the whole of the premises. The ofi'er of pecuniary compensation in case of eviction will not alter the case, as such indemnity cannot extend to the specific subject of the contract, the possession and occupation of the premises (j)) . On the other hand, where a person contracts to grant a lease of an estate, and it afterwards turns out that he is not entitled to a part of it, the contract may generally be enforced by the lessee as to the part of which the grantor is owner {q) . The rule, however, does not obtain where unfair dealing has been practised; and, hence, where the plaintiff, aware that the defendant, a tenant for life, had only a limited power of leasing, contracted for a lease which would have been a fraud on the settlement, and by his amended bill prayed that the agreement might be carried into execution so far as the defendant had power, without prejudice to the persons in remainder, the court, considering the agreement a ^dolation of the leasing power, rejected the application, although the plaintiff was capable of maintaining an action at law for the loss of his bargain, and expressed his willingness to take a lease determinable on the death of the grantor (r). Nor will equity lend its assistance to enforce an agreement or contract by a person out of possession to grant a present lease to a party who is apprised that he cannot obtain posses- sion except by a suit, it not being competent to any person (p) Fildes V. Hooker, 2 Meriv. 424; Beat. 64. S. C. 3 Madd. 193. Warren r. Ri- (r) 2 Ball & Beat. 58. See also chardson, 1 Yo. 1. Ellard r. Lord Llandaff, 1 Ball & Beat. (q) O'Roui-ke v. Percival, 2 Ball & 241. s s 2 628 OF THE CONTRACT OR AGREEMENT. [Part III. to deal ou such terms, the contract being an actual dealing for a suit in chancery, and the situation of the property, by suppressing competition, depriving the owner of getting the fair value for it (s) . After the dismissal of a bill for the specific execution of an agreement, the plaintiif being unable to make a good title, an injunction may be obtained on motion to restrain him from proceeding at laAv on the agreement, the defendant undertaking to file a bill for an injunction forthwith. Actions under these circumstances are discountenanced by the court of Chancery, as they appear to be an attempt to induce a jxiry to act contrary to the Master (/) . Some consideration also must move from the party seeking a specific performance. Therefore, where a lessee obtained from his lessor a document by which she agreed to abate the rent 50Z. a year, in consequence of representations to her that he had expended large sums of money in improving the pre- mises, it was held that it did not amount to a contract by him to surrender his old lease, or by her to grant a new one, and that as it was wholly without consideration, nothing being to be performed by the tenant, he could not enforce a specific performance of it, although the reduced rent had been paid and accepted for more than seven years (^<). In all cases the plaintifi" is expected to exercise due dili- gence and activity in enforcing his claim. A bill for the specific performance of an agreement to grant a lease, being an application to the discretion, or rather to the extraordinary jurisdiction of the court, cannot be entertained in favor of a person who has long slept upon his rights, and acquiesced in a title and possession adverse to his claim {x) . In one instance, where the plaintiff" had refrained from filing his bill until two years after the treaty had been broken oft" by the defendant's declining to perform the contract, and the only {.i) Bayly v. Tyrrell, 2 Ball & Beat. ton, .Jones, Irish Excli., 431. See also 3.58. ' Parker v. Smith, 1 Col. C08. (0 Mc Namara r. Artlnir, 2 Pall & (.<;) Moore v. Blake, 1 Ball & Beat. Beat. 349. (12. And see Hndson r. Bartram, .3 (m) Fitzgerald v. Lord Portarling- Madd. 440. Ch.IV. S. IV.] IN EQUITV: SPECIFIC PERFORMANCE. 629 reason assigned for the delay beings that the phiintift'^s attorney had mislaid the papers relating to the transaction, the court refused a specific performance {y) . "Whether the laches consist in not prosecuting, or not commencing a suit, is immaterial (-?). The doctrine of laches docs not apply to a contract in fact executed, by the parties having been in enjoyment of the benefits given them by the contract {a). As a general rule, an assignee of an agreement for a lease is entitled to a specific performance in his favor; but not unless he can procure, if the lessor require it, the assignor's personal liability for the covenants {b). Until lately, it was doubtful whether specific performance of a contract for a lease entered into Avith a party prior to his bankruptcy could be enforced by his assignees ; though the inclination of the court for a length of time was evidently unfavorable to their claim. The case of Drake v. the Mayor of Exon (c) arose on a covenant to grant a renewal; but it is apprehended that the same rules would apply to a contract for an original lease. The lessee became bankrupt, and the bill was filed by the assignee of the commissioners ; and Windham, J., and Tur- ner, B., to whom the case was referred, certified that the plaintiff ought not to be relieved. Willingham v. Joyce {d) involved circumstances of fraud and misrepresentation, as well as of insolvency; but Lord Alvanley, then INIaster of the Rolls, seemed clearly of opinion that assignees could not maintain a bill for a specific perform- ance, unless they chose to take the lease as tenants, and enter into covenants. And shortly afterwards Lord Loughborough (y) Heaphy v. Hill, 2 Sim. & Stu. (e) Drake v. The Mayor of E.\on, 29. 1 Ch. Ca. 71; S. C. Freem. Ch. 183; 1 (2) Moore v. Blake, 1 Ball & Beat. Eq. Ca. Ab. 53. pi. 1. Nels. Ch. Rep. 69. 102. Vandeiianker v. Desbrough, 2 (a) Clarke v. Moore, 1 Jo. & La Verii. 96; S. C. 1 Eq. Ca. Ab. 53. Tou. 723. pi. 3. IMoyses r. Little, 2 Vera. 1 94 ; {&) Dowell V. Dew, 1 Yo. & Col. S. C. 1 Eq. Ca. Ab. 53. pi. 4, V. C. 345. 358. (d) Willmghamr.Joyce,3 Ves. 168. 630 or THE CONTRACT OR AGREEMENT. [Part III. declared [e), that it must be a very strong case that would induce him to carry into execution an agreement between landlord and tenant, the estate not being executed at law, where the person who was to become the tenant had become a bankrupt ; and his lordship said, that the court must cer- tainly, upon the circumstance of the intervening bankruptcy, do a great deal more, in respect of the defendant, than merely decree a specific performance ; but he declined stating, as a general proposition, that bankruptcy discharged the contract. The same opinion appears to have been entertained by Lord Redesdale, though the case before him (/) was distin- guished by the circumstance of the bill being filed by a party claiming beneficially under a secret trust created in his favor by the person to whom the landlord, in ignorance of that fact, had contracted to grant the lease. Flood V. Finlaj^ {g), before Lord Manners, was determined against the assignees, on the ground of the contract being entered into with a view to the personal accommodation of the bankrupt; and it was, therefore, thought unnecessary under the circumstances to decide the abstract question, whether they could not in any case be entitled to a decree for a specific performance. Sir William Grant, with greater freedom, expressed an opinion that the difficulty of establishing the assignees^ right to a specific performance would be insurmountable [h). The right of the assignees to the benefit of a contract for a lease entered into Avith the bankrupt appears for the first time to be recognised by the bankrupt act of 49 Geo. 3 (i), the 19th section of which provided, " that in all cases in which a com- mission of bankrupt should be sued forth against any person after the passing of the act, and such person should be entitled to any lease, or agreement for a lease, and the assignees should (c) Brooke v. Hewitt, 3 Ves. 253-4. S. C. abridged, 2 Rose, 147. (/) O'Herlihy v. Hedges, 1 Scho. (/;) Wcathcrall v. Geering, 12 Vcs. & Lef. 123. 130. And see Feather- rA',^. stonhaugh v. Fcnwick, 17 Vcs. 313. (/) 4!) Geo. 3. c. 121. (.7) Flood V. Finlay, 2 Ball & Beat. .0 ; Ch.IV. s.IV.] IN equity: — srEciFic perforaiance. 031 accept the same, as part of the bankrupt's estate and effects (A:), the bankrupt should not be liable to pay the rent accruing due after such acceptance; and that after such acceptance the bankrupt should not be liable to be sued in respect of any subsequent non-observance of the conditions, covenants, or agreements, therein contained ; provided that it should be lawful for the lessor, or person agreeing to make such lease, if the assignees should decline, upon being required, to determine whether they would or would not so accept such lease, or agreement for a lease, to apply liy petition to the court, praying that they might either accept the same, or deliver up the lease, or agreement for the lease, and the pos- session of the premises demised, or intended to be demised, which should thereupon make such order as should seem meet. A few years after this act was passed. Lord Eld on tacitly admitted the right of the assignees to a specific performance. A petition was presented, that the assignees of a bankrupt might elect to take or reject an agreement for a lease, entered into with the bankrupt. It was merely a parol agreement, strengthened, however, by divers acts of part performance. And his lordship was of opinion, that a parol agreement, although brought within the principle upon which a court of equity would decree a specific performance upon acts of part performance, was not an agreement within the intent of the 49 Geo. 3. c. 121. s. 19 (/). Hence we may infer, that, had the agreement duly complied with the requisites of the statute of frauds, he would not have refused the petition. And in a later case before Sir Thomas Plumer (m), the assignees of a bankrupt were decreed to be entitled to the benefit of a con- tract for a lease entered into with him, without any objection being raised to their claiming in that capacity. A clause similar to the above is preserved in the bankrupt act of Geo. 4 [n) ; and in the recent act (o) to amend the law {h) Whether this right of election (?) Ex parte Sutton ; in the matter has not been affected by the act to of Changeur, 2 Rose, 86. estabhsh a ~ court in bankruptcy, 1 & (»i) Meux f. Maltby, 2 Swanst. 277. 2 W. 4. c. 56, will be discussed here- (w) 6 Geo. 4. c. 16. s. 7.5. after. Vol. 2, Part the Sixth, Ch. V. (o) 7 & 8 Vict. c. ^G. s. 12. 632 OF THE CONTRACT OR AGREEMENT. [Part III. of insolvency, banki'uptcy, and execution; and it has been decided (jj), that a specific performance will be decreed on a bni by the assignees, provided they will personally enter into the covenants into which the bankrupt must liave entered if he had been the lessee. The reasons for this determination lie in a narrow compass. Prima facie, all the rights of a bankrupt are transferred to the assignees : one of those rights is a title to a specific performance ; and that right is not weakened upon the subject of a lease by the clause in the bankrupt act before alluded to. Indeed, the court considered this to be the very case for which the 75th section of that statute had provided. It put the assignees to elect whether they would accept the benefit of the agreement, or decline it. If they might elect, and should decide upon accepting the benefit, they must be entitled to it on making that election ; unless a decree for a specific performance would work a hard- ship or injustice to the lessor. Sir Wm. Grant's opinion above noticed (q) was allowed to create some difficulty ; but, being deemed a mere obiter opinion, and not called for by the case then before his Honor, was not received as authority by the court of Exchequer. That opinion, however, seems capable of reconciliation with the judgment in the case of Powell V. Lloyd, by referring the latter to its true ground. It was founded on the section of the bankrupt act which gave the assignees the option of accepting or repudiating the agreement; but as no such statute law existed when the case of Weatherall v. Geering was before Sir Wm. Grant, the inconsistency at first sight apparent between the cases is removed. Where both the intended lessor and intended lessee become bankrupt, it seems that the court of Review has no jurisdic- tion to compel a specific pei'formance in favor of the assignees of the latter, on their electing to adopt the agreement (r) . (y/) PowolH'. Lloyd, 2 Yo. & Jerv. Ayr. 214. Page w. Broom, 3 Bcav. 36. 372; S. C. in an earlier Ktage, 1 Yo. & () 1 Scho. & Lef. 3D. Cil. IV. s. v.] ADMISSIBILITY OF PAROL EVIDENCE. 0)17 his agent signed a written agreement ; but the statute does not say that if a written agreement is signed, the same excep- tion shall not hold to it that did before the statute. Now, before the statute, if a bill had been brought for specific per- formance, and it had appeared that the agTcement had been prepared contrary to the intent of the defendant, he might have said, Hhat is not the agreement meant to have been signed.' Such a case is left as it was by the statute : it does not say that a Avi-itten agreement shall bind, but that an unwritten agreement shall not bind.'' One of the earliest cases on the point is Joynes v. Sta- tham (q). A bill was filed for a specific execution of a con- tract for a lease, in the plaintiff's handwriting, upon the face of which it appeared that he was to pay a rent of 9/. only ; but the defendant, who could not write, insisting by his answer, that the agreement ought to have contained a provi- sion that the rent was to be paid clear of all taxes, in consi- deration of which he had made a proportionable abatement in the rent, Lord Hardwicke alloAved him the benefit of parol evidence to prove the omission, by way of objection to the plaintiff's bill. In Legal v. Miller (r), there was an agreement in writing for taking a house at 32/. per annum, and part of the agree- ment was, that the owner should put the house in repaii'. It was afterwards discovered not to be worth repairing, but that it would be better to pull it down ; and without alteration of the written agreement, the house was pulled down by con- sent of the tenant, who, apprised of the great expense it would be to the landlord, agreed by parol to add SI. per annum to the 32/. The tenant brought a bill for a lease on the foot of the written agreement, under which he Avas to pay only the 32/. rent; but Sir John Strange, M. R., admitted parol evidence, on the defendant's part, to prove the subse- quent agreement, and to rebut the equity insisted on by the (2) Joynes v. Stathara, 3 Atk. 308. (?•) Legal V. Miller, 2 Ves. 299. See also Price v. Dyer, 17 Ves. 364. 648 OF THE CONTRACT OR AGREEMENT. [Fart 111. bill; and, being satisfied from the evidence that a specific performance should not be decreed, dismissed the bill. The great case of the Marqnis of Townshend v. Stangroora before Lord Eldon {s), and subsequent cases before Lord Manners {t), Sir Wm. Grant {u), Sir Thomas Plumer {x), and Sir Edward Sugden [ij), were decided on the same ground, and fully explain and illustrate the distinction taken between the situation of a plaintiff seeking the performance of a written agreement with a parol variation, and of a defendant offering the variation to rebut the plaintiff's equity. It may be taken as a general rule, that if a parol agree- ment varying the terms of a written agreement be set up by the defendant in a suit for specific performance, and sup- ported by evidence affording a presumption or suspicion of its existence, an inquiry will be directed [z] . Mere variations verbally agreed to, however, are not of themselves sufficient to prevent the execution of a written contract, if the situation of the parties in all other respects remain unaltered. There must be some consideration for the change; some suggestion of omission, fraud, or mis- take ; or the variations must have been so acted upon, that the original agreement can no longer be enforced without injury. This was determined by Sir Wm. Grant in the case of Price v. Dyer (a). The bill prayed a specific performance of an agreement for a lease by Dyer, which ran in these words : — " Memorandum of agreement between John Dyer, of East Ham, in the county of Essex, and Daniel Price, of Cornhill, London, wherein I do agree to let unto the said Daniel Price the house, stabling, gardens, and field, at the net rent of GO guineas per annum, on lease of seven, fourteen, or twenty-one years, Daniel Price paying all taxes ; to com- (s) Marquis of Townshend v. Stan- (x) GaiTard v. Grinling, 2 Swanst. groom, 6 Vos. 328. Sec also Hosier 244; S. C. 1 Wils. 460. V. Read, .0 Mod. CO. {y) Davies v. Fitton, 2 Dru. & War. (0 Floo.l V. Finlay, 2 Ball & Beat. 9. 90 A (w) Woollam V. Hearn, 7 Ves. 211. {z) Van v.Covpo,3Myl. &Keen,269. Clarke v. Grant, 14 Ves. 319. (a) Price v. Dyer, 17 Vos. 356. C'li. IV. -s. v.] ADMISSIBILITY OF PAROL EVIDENCE. 649 meuce at Lady-clay next; and Daniel Price does agree to take the fixtures as stated on tlie other side at a fair valuation. John Dyer, East Ham, 8th of March, 1809." About ten days afterwards, the defendant, by parol, agreed to demise to the plaintiff an additional piece of land ; and the rent Avas to be increased to 65/. The plaintiff took possession on the 25th of March, 1809. The defendant set up a parol agree- ment, of the 2nd of April, 1809, made at the office and in the presence of his solicitor, by which the parties mutually abandoned the terms of the written agreement, and agreed that the lease should not be for the term of twenty-one years absolute in all events, but should be determinable by Dyer at the expiration of seven or fourteen years, unless the plaintiff should within the first seven years build two good rooms southward of the dwelhng-house ; but that if the plaintiff did build the said two rooms within that time, then the lease was to be absolute for the Avliole term of twenty-one j^ears; though the precise sum to be laid out in building the said rooms was not then finally agreed upon ; and it was also at the same time agreed between the plaintiff and the defendant, that the annual rent should be 05/.; and that the plaintiff should insure the premises against fire ; and should not underlet or assign without a written license from the lessor ; and that the field should not be broken up or ploughed ; and that all the usual covenants should be inserted in the lease. The defendant's solicitor took a note of the new agreement in the following words : — " Lease for seven, fourteen, or twenty-one years, in consideration of Mr. Price laying out the sum of /. in building two rooms southAvard of the dwelling-house, within the first scA^en years, then the lease to be absolute for twenty-one years ; rent 65/. per annum; Mr. Price to insure the premises ; not to let or assign without leaA' e in AATiting of the lessor ; and that the field should not be broken up or ploughed." The Master of the Rolls, in giAdng judgment, observed, that there A\ere two things to be considered ; first, whether the agreement of the 8th of March, 1809, was origi- 650 OF THE CONTRACT OR AGREEMENT. [Part 111. nally such as the court would have carried into execution ; if it was, then whether what passed subsequently ought to pre- vent a specific performance. His honor said, that the answer did not state any objection to the agreement, as being unfair or incorrect ; and that he did not see how it was pos- sible to deny effect to a written agreement, upon the ground that it did not fairly state the meaning of the parties, where the defendant did not allege that to be the case in fact, or even according to his own conception of it : that the agree- ment must therefore be taken to have been originally unex- ceptionable, and that the variations verbally agreed on were not sufficient to prevent the execution of the written agree- ment, the situation of the parties in all other respects remain- ing unaltered : that the defendant had expended nothing upon the faith of having the added stipulations performed : that he had sustained no positive loss, and would only be disappointed of that advantage which he expected to derive from the gratuitous covenants of the plaintiff: that gratuitous they clearly were, as it could not be seriously represented that the obligation to build could be considered a privilege conferred upon him : and, therefore, his honor did not deem himself warranted upon authority or principle in refusing a specific performance of the written agreement; but under the cir- cumstances of the case, he did not think the plaintiff entitled to the costs of the cause. According to the better opinion {b), a written contract may be discharged by parol ; but then the waiver and abandon- ment must be mutual, and must amount to a total dissolu- tion of the contract, placing the parties in the situation in which they stood before the agreement was entered into (c) ; though such a defence must be established with the greatest clearness and precision (d). (b) Goman v. Salisbury, 1 Vern. 240; (c) Ibid. But sec the conclusion of S. C. 1 E«£. Ca. Ab. 22. pi. 15. Coles Lord Thin-low's judj^mcut m Jordan V. Trccothick, 9 Vos. 250. Price v. v. Sawkins, 1 Vcs. jun. 404. Dyer, 17 Ves. ."IG.^. Robinson u. Pago, ((/) Robinson v. Pago, 3 Russ. 119. 3 Rush. 11.0. Cn. IV. s. v.] ADMISSIBILITY OF PAROL EVIDENCE. 651 In conclusion^ we ina,y remark, that if a plaintiff fail in obtaining a specific performance of the contract, and on the terms prayed by his bill, he cannot get a decree, in the same suit, upon the agreement or terms established by the defend- ant's answer and evidence. For this purpose he must file another bill {e). (e) Legal v. Miller, 2 Ves. 299. WooUam v. Ileara, 7 Ves. 222. See also Clai-ke V. Grant, 14 Ves. 525. ^ait tl)e ffonxti). OF THE TEEM OF THE LEASE. /~\UR next subject of inquiry relates to the periods or terms ^^ for Tvliicli leases may be granted, and will be noticed under the following divisions : — I. As to leases at will. II. As to leases for any aliquot part of a year; for a year certain ; or from year to year. III. As to leases for an absolute term of years. IV. As to leases for a term of years determinable with a life or lives, or on any other event. V. As to leases for a term, Avith the grant of an accessional term on an event. VI. As to leases for a life or lives. VII. As to renewable leases. CHAPTER I. AS TO LEASES AT WILL. T EASES at will may be created by express terms, or may ■*-^ arise by construction or implication of law. In modern practice, the former are comparatively unknown, and, with respect to the latter, the law has undergone considerable cliangc. Formerly, all leases for uncertain periods, unaccom- panied by livery of seisin, were held to constitute tenancies ClI. I] AT WILL. 653 at will merely. If a termor granted the land generally, the grantee was but tenant at will ; as it did not appear that the grantor meant to pass his whole interest, an estate at will was held to satisfy the grant («). So, a demise for such term as both parties should please created but an estate at will, the term being altogether uncertain (b). But though leases for uncertain terms, unaccompanied by livery, still confer ^?7m<^/roclicin an, (^•) Mackay v. Mackrcth, 4 Dougl. dc an in an si lonr/cment come aVpartics 213 ; S. C. cited, 3 Tcnii Rep. 13 ; S. C. plait; while Coke states the demise to 2 Chit. 4G1, where the distinction is have been pro term.unius anni ct sic not noticed. And see Gulliver dem. de uno anno in annum quamdiu am- Taskcr v. Burr, 1 W. Blac. .5.0G. babus partihus placucrit. Cii. II.] FOR A YEAR, ETC.: FROM YEAR TO YEAR. 659 he adds, it is now resolved, per totam curiam, that in such case after three years ad maximum, it was but a lease at will, because beyond that the term had not any certain continuance or determination. Winch also reports that a lease for a year, and so from year to year at the pleasure of the parties, confers a term for three years, and not for two(w). And Keble, in like manner, states that, in Costrike v. Mason (o), a case decided in the King's Bench, 21 Car. 2., a lease in similar terms was held to operate as a demise for three years, not at will after the first year ; but it is scarcely necessary to say that his reports are not entitled to much confidence ; and the point is not reached by the report in 1 Modern, and 1 Siderfin. So, in Panton v. Isham {p), where the letting was for a week, and so from week to week as long as both parties should please, the court held that the demise could be no more than a term for three weeks, and that for the residue the lessee was tenant at will. When the same point came before the court of Common Pleas in 8 & 9 W. 3 {q), they held the lease good for two years, and after that at will; relying, singularly enough, on Potkins's case in support of the determination. And the case of StanfiU, or Stanfitt, v. Hickes (r), decided very soon after- wards in the same court, is to the same effect ; though the real question for decision related to the legality of a distress. To his note of the case, Salkeld adds, " The reporter tells us the law is contrary." Next in succession is a series of judgments and dicta by Chief Justice Holt, which I shall submit in chronological order, directly at variance with the decisions in the cases already quoted. {n) Anon. Winch, .32. Tr. 20 Jac. ILaym. 1 70 ; S. C. Belasyse v. Bur- (o) Costrike v. Mason, 2 Keb. 543. bridge, Lutw. Nels. fol. ed. of 1718, And see S. C, nom. Gostwicke r. p. GG. Mason, 1 Mod. 3 ; 1 Sid. 423. ()•) Stanfill r. Hickes, 1 Ld. Rayra. (ji) Panton v. Lsham, 3 Lev. 359. 280 ; S. C, nora. Stanfitt r. Hickes, 3 Hii. 5 W. & M. Salk. 135. And see Stomfil v. Hicks, {q) Bellasis v. Bnrbrichc, 1 Ld. 2 Salk. 413. u u 2 660 OF THE TERM OF THE LEASE. [Part IV. The question was first determined by Holt at the Lincohi Summer Assize in the year 1699 {s), when he held that a demise of lands to B. for a year, and so from year to year, was not a lease for two years, and afterwards at will; but was a lease for every particular year ; and that after the year was begun, the defendant could not determine it before the year was ended. Two years afterwards, in the case of Leighton v. Theed {t), he said, that under such a demise the lessor might determine his will at the end of any year ; but that should any new year be begun, it could not be determined before the end of the year. So, in 12 Mod. (m) he is reported to have said, that the lease enured for one year absolutely, and that the lessee, by continuing on the first day of the second year, was bound for another year. He continued of the same opinion in the 3rd year of Queen Anne^s reign {x), declaring that a lease in the same terms was binding but for one year ; but that if the lessee without countermand of the lessor entered vipon the second year, he was bound for that year, and so on. Crockerell v. Owerell {y) in a measure involved the point, but the court did not determine whether the lease conferred a term for two years certain or not. Legg V. Strudwick, decided in the 7th year of the reign of Queen Anne, demands peculiar attention, as being one of the cases on which Lord Ellenborough founded his asser- tion (to which I shall presently more particularly advert) that Holt's opinion in Lely v. Green had been overruled. The case in question is reported by Holt {z), by Salkeld («), and in the 11th volume of Modern Reports (Z>). Holt and (s) Lcly 2!. Green, cited, 1 Ld. Raym. G Mod. 215. 708 ; S. C. Holt, 414 ; 2 Salk. 413. (y) Crockerell v. Owerell, 5 Anne, (t) Leighton v. Theed, 13 W. 3, Holt, 417. 1 Ld. Ilayra. 707-». And see S. C, {z) Legg a;. Stinidvvick, Holt, 417. nom. Layton v. Field, 3 Salk. 222. («) 2 Salk. 414. (m) Anon. 12 Mod. GIO, 13 W. ,3, {h) S. C, nom. Legg v. Stradwick probahly the same ca.sc. 1 1 Mod. 203. (.r) Dod V. Monger, Holt, 4 Hi ; S.C. Cii. II.] FOR A YEAR, ETC.: FROM YEAR TO YEAR. 661 Salkeld concur in their statement of the facts and judg- ment, both of which are differently represented in 11 Mod. According to the book last mentioned, a lease was made to J. B. from the 25th of March, unto the full end and term of one year, and so de anno in annum quamdiu ambabus partibus placuerit ; and Holt, C. J., said, "Such a lease as this is not a lease for two years, or a lease at will, but ^tis a lease for every particular year, and yet you may distrain for ten years' rent at the end of ten years ; because one lease springs so out of the other, and out of the same contract, as that when one year is ended, there is an end of that lease, and when the lessee enters on another year, 'tis another lease for a year, et sic toties quoties." Holt and Salkeld, on the contrary, report the demise to have been to A., habendum de anno in annum, et sic ultra quamdiu ambabus partibus pla- ceret, and the court to have been of opinion, that after the two years the lessor or lessee might determine the tenancy ; but that if the lessee held on, he was not then tenant at v\ill, but for a year certain ; for his holding on must be taken to be an agreement to the original contract and in execution of it. Before I offer any comment on the variance between these reports, I shall proceed to the remark of Lord Ellenborough akeady alluded to. In the course of argument in the case of Denn v. Cartright (c), the decision of Holt in Lely v. Green, that a demise for a year, and so from year to year, did not operate as a lease for two years unless the second year had commenced, being pressed on the attention of the com't, Lord Ellenborough said, " There is another case in the same page of the book [d), of Bellasis v. Burbriche, and another in the subsequent page, of Legg v. Strudwick, which overrule that opinion : and these latter agree with common experience, that a demise for a year, and so on from year to year, must enure as a tenancy for at least two years ; and so it is declared to be by Mr. Justice BuUer in Birch v. Wright (e), where he considers the cases in Salkeld.'' (<•) Denn dem. Jacklin v. Cartright, (rf) Salk. 413. 4 East, 31-2. (0 Bii-chi-.Wriglit,l TenuRep.380. 663 OF THE TERM OF THE LEASE. [I'akt IV. Without impugning the propriety of Lord Ellenborough's dictum, I may endeavour to show, that if it rest on the cases of Bellasis v. Burbriche, and Legg v. Strudwick, it has not the advantage of a very solid foundation. First, as Bellasis v. Bui'briche was decided in the Common Pleas between two and three years before Holt's determina- tion in Lely v. Green, it cannot strictly be said to have over- ruled that determination : and so far from Mr. Justice Buller^s having given the case the confirmation of his own authority, he expressly declared (/) that Bellasis v. Burbriche and Lely V. Green were short loose notes jumbled together and not to be relied on. Secondly, as to Legg v. Strudwick. The conflicting reports of it have already been noticed. Now, if that contained in 11 Mod. be correct, the case, instead of overruling Holt's opinion, is a fresh corroboration of it by Holt himself. If, on the other hand, Holt's and Salkeld's are to be preferred, where the demise is stated to have been de anno in annum, et sic ultra quamcliu ambabus i^artibus placeret, it can scarcely be quoted as overruling that opinion, applied, as it was, to a demise for a year, and so from year to year as long as both parties should please. With respect to Lord Ellenborough's remark, that Mr. Justice Buller, in Birch v. Wright, where he considered the cases in Salkeld, declared that a demise for a year, and so on from year to year, enured as a tenancy for at least two years, 1 shall merely add, that I am unable to discover this declara- tion in the report : that learned judge did not deny that such might be the operation of the lease ; but it does not appear that he expressed any opinion on the point. In 173G, we find Lord Hardwickc, C. J., at the sittings, ruling, on the authority of Lely v. Green, Salk. 413, that a demise for a year, and so from year to year, was a lease for every particular year, and good for ever}' year that the lessee entered into {y). (/) i Tirin Rep. 3)10. (l/) Coiiibcb V. Coll', Ca. tcuni. llardw. by Lee, 305. Cil. II.] FOR A YEAR, ETC.: FROM YEAR TO YEAR. 603 In another case in the Exchequer {h), in 1756, a question arose as to the interest taken by the plaintiff under a lease made to him by the defendant, to hold from Michaelmas day for one whole year, and so for two or three years, or any such further term of years as the said defendant and plaintiff should think fit and agree on ; yielding and paying for the said one year, and from thence yearly and every year, dm'ing such term or terms, as should be thereafter granted, 35/. per annum ; and, according to Ambler's report, the court declared their opinion to be clearly, that it was a lease but for one year only, without a subsequent agreement ; and that if it had been doubtful on the words of the habendum, those under the reservation fully explained them. The report of the case by Wilson gives a different decision, and in these terms : — " Per Cur. A lease to hold to R. Harris, from Michaelmas for one year, and so for two or three years, or any fui'ther term of years as the said N. Evans and R. Harris shall think fit and agree, irom and after the expiration of the said term of one year, is a lease for two years, and after every subsequent year begun is not determinable till that be ended, like 2 Salk. 414.^' Mr. Blunt (the editor of the 2nd edition of Ambler's Reports) searched in vain for any entry of the case in the record books of the court of Exchequer; and infers that Ambler was pro- bably the more correct in his report, being one of the counsel engaged in the cause. In the case of Goodright v. Richardson {i), before the court of King's Bench in 1789, -where a question was made as to the estate taken under a lease for the term of three, six, or nine years, from the Feast day of St. Thomas the Apostle next ensuing from the date thereof, and to be fully complete and ended on the said Feast day of St. Thomas the Apostle, which should be determinable in the years 1788, 1791, 1794, Lord Kenyon said, " It is like a lease for a year, and so from {h) Harris v. Evans, Ambl. 320 ; (/) Goodright dem. Hall v. Richard- S. C. 1. Wiis. 262. sou, 3 Term Rep. 462. a.d. 1789. 664 OF THE TERM OF THE LEASE. [Part IV. year to year, where, if the lessee wish to determine it at tlie end of the year, he must give reasonable notice to the other party/' which would seem to imply that, in his lordship's opinion, no more than a term for one year certain, determin- able with notice, would pass. In the case of Johnstone v. Hudlestone [k], the demise was for one year then next ensuing and fully to be complete and ended, and so from year to year for so long time as the de- fendant and plaintiff should respectively please ; but the point did not call for a decision, as the lessee had occupied the premises for a period exceeding two years before he gave notice to quit. The like remark applies to Buckworth v. Simpson (/), where the demise and circumstances were very similar. Doe V. Green (m) bears more closely on the point. A lease was made " for one year from the date thereof, and so on from year to year, until the tenancy hereby created shall be determined as after mentioned," at the yearly rent of 1 0/., to be paid quarterly, " and three months shall be sufficient notice to be given from either" of the parties. And it was further agreed " that it shall be lawful for the said Joshua Chadborn to determine the tenancy by either of us giving unto the other three months' notice of either of their intentions." And it Avas held, that the language of the contract clearly contemplated a term longer than one year, and that three months' notice to quit at the end of the first year was insuffi- cient. And this (said Lord Denman, C. J.,) is consistent with the doctrine laid down in Birch v. Wright (n), and with sound reason. And a still later case (o) is to the same effect. Certain premises were let for the term of six months from the 1st day (k) Johnstone V. Hudlestone, 4 Barn. 1839 ; and Doe dem. Monck v. Geekic, itCros. 922. a. n. 1825. 5 Q. 13. 841. (/) Buckworth ?'. Simpson, 1 Crompt. (m) 1 Torni Rop, 378. Moos. & lloH. 8;U. A.I). 18;}5. (o) Regina v. The Inhabitants of (m) Doo doni. (Jhadborn v. Green, Chawton, 1 Q,. li. 247 ; S. C. 4 I'cr. & !l Adol. & Ell. (i.'i8 ; and h(!o nolo {d), p. Dav. 525. a. v. 1841. (;*il ; S. C. 1 Tor. iV Dav. 4.'i4. a.d. Cil II.] FOR A YEAR, ETC.: FROM YEAR TO YEAR. 00.5 of January, 1880, and so on for six months to six months until one of the said parties should give to the other of them six calendar months^ notice in writing to determine the tenancy; at and under the rent of 18/. for every six months, the first payment to be made on the 1st day of July, 1830. And it was held, that this was clearly a taking for two half years, which made a whole year. If, therefore, for six months we substitute a year, it leads to the inference that a demise for a year, and so on from year to year, amounts to a letting for at least two years certain. To sum up the cases, it appears, that Potkins^s case ; Co- strike V. Mason, according to Keble's report; the anony- mous case in Winch; and Panton v. Isham, are authorities for holding that a lease for a year, and so on from year to year, would confer a term for three years : That Holt invariably adhered to the opinion, that it amounted to a demise for one year only; but that the lessee by entering on a second year was bound for that whole year ; and so toties quoties ; and that Lord Kenyon, in Goodright dem. Richardson v. Hall, entertained the same impression : That the cases of Bellasis v. Burbriche, and Stanfill, or Stanfitt, V. Hickes, are authorities for the position, that a term for two j-ears certain would pass ; and are corroborated by the declai'ation of Lord Ellenborough, and (as that learned judge has assured us) of Mr. Justice Buller also ; and also by the recent decisions in Doe dem. Chadborn v. Green, and Regina v. The Inhabitants of Chawton. The case of Harris V. Evans, being so differently reported, has not much claim to confidence either way. On the whole, the weight of aiithority and reason appears to favor the conclusion that a term for two years certain will pass by such a lease. So, a demise not for one year only, but from year to year, operates as a lease for two years at least (/»). And, in like (^)) Deun dem. Jackliu v. Cartright, 4 East, 29. 666 OF THE TERM OF THE LEASE. [Part IV. manner, a lease for three years, and so from three years to three years, creates a term for six {q) . By a case in the 28th year of Henry the 8th (r), it appears that a parson leased his rectory " for a term of tlu-ee years, and after the end of the three years to the end and term of other three years then next and immediately ensuing, and so after the end of the said thi'ee years to the end and term of other three years, during all the term of the natural life of the lessor;" and by the opinion of many benchers of the Middle Temple, and divers judges of C. B., the lessee took only an estate for nine years, if the lessor should so long live j for there wanted words to prove that he had an estate for the life of the lessor : but if it had run, " and so from three years to three years during the life," that, perhaps, would have enured otherwise {s). It was said also that if he had an estate in the rectory for the life of the parson, he ought to have had livery of seisin. Another very similar case came before the court of K. B. in Hilary term, and again in Michaelmas term, in the 13th year of the reign of James the 1st {t). As BoUe reports the case, it appears that a parson had made a lease of his tithes to J. S. for three years, and at the end of those three years for three more years, and so from three years to three years, during his (the lessor's) life ; and that Coke was of opinion that it was a good lease for twelve years; "because, (he said), for tJiree years, and at the end of those three for three more, amounted to six ; and so from three years to thi'ee years amoimted to six more." According to Bulstrode's report, in Michaelmas term, the words were, " for three years, and so from three years to three years, and so from three years to three years during his life;" and he states that the whole court were clearly of opinion, that it was a good lease for (y) Co. Lit. At,, h. 1 Lev. 46, 158 ; S. C, nom. Newberrie v. Rath- (r) Anon. Dy. '2 J, a. pi. (151). bone, 1 Uol. 2«7 ; 1 Kol. Ab. 850, (.■() And BCD Plowd. 522. Estate, (A.) 1. (/) Wrathbonc v. Newbery, 3 Bulstr. Ch. II.] FOR A YEAR, ETC.: — FROM YEAR TO YEAR. 667 twelve years. And Doddridge, J., added : — " If he had said, and so from the said three years for three years, this had been a lease but for nine years. Where a party took apartments "for twelve months cer- tain, and six months' notice afterwards,^' Lord Ellenborough was clearly of opinion that he was at liberty to quit it at the end of the twelve months, on giving six months' prc\'ious notice. He thought that the word certain, apphed to the first twelve months, showed that every thing afterwards was uncertain and depended on the notice {u). (it) Thompson ?;.Maberley, 2 Campb. Greeu, 9 Adol. & Ell. 658. 061 ; S. C. 573. And see Doe dem. Chadborn v. 1 Per. & Dav. 454. G68 OF THE TERM OF THE LEASE. [Part IV. CHAPTER III. AS TO LEASES FOR AN ABSOLUTE TERM OF YEARS. T)EIIHAPS the most usual mode of leasing in this country is for terms absolute. The ordinary husbandry lease is for twenty-one years {a). It is said [b], that at a very early period of our history leases for more than forty years were deemed bad; but this law, if it ever existed, was soon obso- lete (c) ; yet even in the reign of Queen Elizabeth we find Lord Egerton pronouncing openly, that he would give none aid in Chancery for the maintenance of any perpetuities, nor of any lease for hundreds or thousands of years, made of lands holden in capite ; because the latter were grounded upon fraud, and the former were fights against God {d). The laws of our own day, except in particular instances (e), impose no restraint on the duration of leases (/), of course supposing them not to exceed the lessor's own estate in the property demised. If a man lease his land for years, the lease is good for two years, being a number with which at least the plural will be satisfied {g) . A lease from hour to hour, or from month to month, or from year to year, dui'ing forty years, is a good lease for forty years {h). So, a lease for a year, and so from year to year till six years expire, is a certain lease for six yeaj-s (?') ; and a (a) Attorney-General v. Owen, 10 and civil, See ante, p. 176, c< sci?. Ves. 560. (/) Browne v. Tighe, 8 BU. P. C. (h) Co. Lit. 4,5, b. 46, a. 1 Vent. 58. N. S. 272. 298. (c) 2 Bla. Com. 142. (g) Bislioi) of Bath's case, 6 Co. ((/) Cary, 1 1 . Riaden v, Tuffin, Toth. 35, b. 36, a. 1«7. (/() Plowd. 273. 522. (c) As to restrictions in the case of (/) Dod r. Monger, Holt, 416; S. C. leases by corporations ecclesiastical 6 Mod. 215. Ch. III.] fOR YEARS ABSOLUTE. 669 lease for a year, and so from year to year, as long as both parties agree, till six years expire, is also a lease for six years, determinable at every year's end at the will of either party {k). Terms for years last during the whole anniversary of the day from which they are granted : if it were otherwise, the last day, on which rent is almost uniformly made payable, would be posterior to the lease (/) . In the case of Hanbury v. Litchfield {m), where the plain- tiff contracted to take of the defendant a lease for thirty-one years of certain copyhold property, held of the manor of Ealing, of which holding the plaintiff had notice, and it ap- peared that, by the custom of the manor, the lord could not license a lease for more than twenty-one years, he was decreed to accept a legal lease for twenty-one years, with a covenant for a further term of ten years, and compensation for the differ- ence in pecuniary value. The bill was framed with a view to a different relief, but as, upon the whole statement of it, such appeared to be the equity between the parties, the court, in order to avoid future htigation, made the decree accordingly, under the prayer for general relief. (]c) Ibid. (m) Hanbury v. Litchfield, 2 Myl. (0 Acklandr. Lutley,9 Adol.& Ell. & Keen, 629. 879. 894 ; S. C. I Per. & Dav. 636. 647. 670 or THE TERM OF THE LEASE. Part IV. CHAPTER IV. AS TO LEASES FOR A TERM OF YEARS DETERMINABLE WITH A LIFE OR LIVES, OR ON ANY OTHER EVENT. T EASES for years determinable with a life or lives, or on any otlier event, are also of daily occurrence. They confer a chattel interest onl}^ ; and it has been holden that a grant by a lessee for lives of all his estate and interest in the premises, habendum for ninety-nine years if the lives or any of them shall so long live, conveys not a freehold, but a term of years determinable with the interest of the lessor («) . On the same principle, a power of leasing for years deter- minable with a life will not authorise a lease for lives abso- lutely, under which a freehold interest must pass {b). If a lease be granted for twenty-one years if C. so long live, and C. be dead at the time, the term is absolute (c). But if a lease be granted to B. if C. live for twenty-one years, and C. be dead at the time, the lease is void, for the condition is precedent (d). If it be the intention that the lease should continue until the decease of the survivor of several cestuis que vie during the term, care should be taken to insert proper disjunctive words, as, "if A., B., and C, or the surviA'ors or survivor of them, shall so long live ; " for it is settled, that a lease for years if A. and B., or if A., B., and C. shall so long live, will determine by the death of one (e) ; though, according to Wil- (a) Earl of Derby r. Taylor, 1 East, S. C. Jeiik. Cent. .".0.5, case 79. 502. (f/) Jenk. Cent. 305, case 7.0. (i) Evans v. Vaughan, 4 Barn. & (() Brownl. 30. 3.0. 292. Brudnell's Ores. 2GI ; S. C. (J Dow. and Ry. 31.0. case, 5 Co. 9, a. 1 Rol. l.<)7. 3 Bulstr. (c) Bi-adahaw's case, Co. 60, b; 31. 1 Vent. 163. Hughes r. Crovvther, Ch. IV.] FOR YEARS DETERMINABLE. 671 kinson's case [f), if the words be generally, if the lessees shall so long live, perchance it will be more doul)tful. Where a lease was made to A. and B. for one-and-twenty years, if the said A. and B., or any child or children betwixt them begotten, should live so long, it was decided that the death of B. within the term did not defeat it; for the dis- junctive or before the word child made all the limitation in the disjunctive ; and the lease was held to endure so long as any of the persons named in the proviso should live [y] . If it be intended that the term should cease on the happen- ing of the first or last of several events, the words used to denote the period of determination must be clear and unam- ^ biguous. A substantial difference exists between a lease to A. and B. for sixty years if they shall so long live, where the lives are merely collateral to the estate for years, and a lease to one for the lives of A. and B. In the latter case, the freehold does not determine by the death of one of them, but the lessee has an estate by way of limitation during the lives of two persons, and, by construction of law, during the life of the survivor of them (A). To determine the lease on the death of one, the habendum should be for the joint lives of A. and B. Where a house was demised to a widow for forty years, " upon condition that if she should so long continue a widow, and should dwell in the said house"; and she continued a widow, and lived in the house till her death, which occurred within the forty years ; it was doubted whether her executor. 13 Co. 66; S. C. Biw\ti1. & Gold. 180. Ow. 52; Gouldsb. 71. Anon. Jenk. Bailes v. Wenman, 2 Vent. 74. Daniel Cent. 279, case 1, Co. Lit. 225, a. V. Waddington, Cro. Jac. 377 ; S. C. (/t) Brndiiell's case, 5 Co. 9, a. 1 Rol. 309; 3 Bulstr. 130. Lessee 1 Rol. 197. 3 Bulstr. 31. 1 Vent. 163. Newton v. Byrne, cited, 1 Crawf. & Hughes v. Cro^\•the^, 1 3 Co. 66 ; S. C. Dix, 555. Browul. & Gold. IfJO. Anon. 1 And. (/) Wilkinson's case, Hetl. 76. 151, case 199. 1 Brownl. 30. 39. 292. {g) Baldwin v. Cocke, or Coke, or Fitzpatrick v. Hawkesworth, 1 Crawf. Cooke, sometimes cited as Truepenny's & Dix, 554. And sec Hills v. Hills, case, 1 Leon. 74; S. C. 1 And. 101 ; Mo. 876. 1 Vent. 163. Mo. 239; Cro. Eliz. 270; 2 Bulstr. 131 ; 672 OF THE TERM OF THE LEASE. [PaUT IV. or the reversioner, was entitled to the residue of the term. Popham, C. J., Gawdy, and Clench, held that the words " upon condition that if", having no corresponding conclu- sion, so as to render the sentence complete, were insensible, and amounted to neither a condition nor a limitation. But they agreed, that had the lease been to her for forty years if she should so long continue unmarried, and should inhabit the house, it would have determined either by her marriage or death (i) . And Popham noticed a distinction between a lease of a house for forty years, if the lessee should dwell in the same for his life, and a lease for forty years, if he should dwell there during the term ; the term, in the former case, continuing till its expiration by effluxion of time, notwith- standing the lessee's death, if he performed the condition of residence; but ceasing, in the latter, on the lessee's decease {k). In a later case (/), a lease was made for twenty-one years, if the lessee should so long live, and continue in the lessor's service. The lessor died; and Anderson, Owen, and Glan- vile held that the lease continued; for the cesser of the service was occasioned by the act of God, and not attributable to any laches on the part of the lessee. But Walmsley was strongly opposed to this construction, considering that the continuance of the lease was hmited by the duration of the service. Croke concludes his report with a quaere. A tenancy for ninety-nine years determinable on lives is not a holding " for any term or number of years certain, or from year to year", within the act (m) for enabling landlords more speedily to recover possession of lands and tenements unlawfully held over by tenants {n). (i) Hardy v. Soyer, Cro. Eliz. 414 ; (J) Wrenford v. Gyles, Cro. Eliz. S. C, noin. Sawer v. Hardy, Ow. 107 ; 64.'3; S. C, nom. Warncford r. Giles, S. C., nom. Sawyer v. Hardy, Po|)h. 'J'J ; Noy, 70. And see Wrotli's ease, Plowd. S. C, nom. Sayer r. Hardy, Gouldsb. 454. 17!) ; 1 Rol. Ab. 410, Condition, (H). 1. (w) 1 Geo. 4. c. 87. And see Doe dem. Lockwood v. Clarke, (»«) Doe deni. Pemberton, v. Roe, 7 l. (4,'}). (/) Windsmore, oi- Winsraore, v. riowd. 153, a. font, cannot be relied Hobart, Hob. 3i;3; Ilutt.87; S. C. noni. on. Windsmore v. Hubbard, Cro. Eliz. .57; (h) Anon. Mo. 2(j. pi. (i7. Ow. 138; S. C. noni. Windsmore v. (i) Anon. 3 Dy. 3(!],a. pi. (fJ). IliiUiord, Godb. 51; cited, Cro. Jae. (k) Anon. Mo. '2G. pi. If^ 5G4. Cii. VI.] FOR LIVES. C85 life of the survivor of them, successively; and the court was clearly of opinion, 1st, that the sons, not being parties to the deed, could not take in possession ; 2ndly, that they could not take jointly hy way of remainder, because of the word suc- cessive ; and, 3rdly, that they could not take in succession, for the uncertainty who should begin, and who shovdd follow [m). The like point was raised in the case of Greenwood v. Tyber, or Tjder {n) . There, by indcntiu'c between Arthur Long and Alice his wife of the one part, and John Fisher of the other part, the premises in question were demised to the said John Fisher, and Anne his wife, and Joan their daughter, habendum to them, ut supradictmn est, et eorum diutius viventi successive, from Michaelmas following, for the term of their lives, rendering annually during their lives, tit supra- dictum est, 13*. 4f/. at the two usual feasts, and a heriot after the death of every of them. After agreeing that Anne and Joan could not take as joint-tenants with John Fisher, on account of their being omitted as parties to the indenture, the court resolved, that they should take by way of remainder the one after the otlier, and as if the clause had been in the deed, sicut nominantur in chartd, as Dy. 361 (o) ; for, unless they should take in that way, the deed would be void as to (m) And see Mo. 26. pi. 87 ; and best animal post eorum decessum sive Owen V. App Rees, Cro. Car. 94; S. C. exitxmi, Anglice, going out, cujuslibet nom. Owen v. Price, Ketl. 22. Anon. eorum : ove covenant de part John Mo. 8. pi. 32. Bro. Ab. Leases, pi. 54. Fisher et sa femme et Johanne lour B. N. C. 127, the second page of that file de payer touts free rents et autres number, tit. Joyntenants. The paging charges and duties issuant hors de of B. N. C. is very faulty througliout. ceste terre durant lour vies ut profertur (ft) Greenwood v. Tyber, Cro. Jae. apres le feast d. S. Michael avant dit." 563; S. C. Hob. 314, nom. Greenwood Palmer, who reports the case, p. 29, V. Tyler. Hobart gives the habendum nom. Tyler v. Fisher & Greenwood, in these temis : — " Habeud. les dits gives the habendum thus : — " Haben- tenements al John Fisher et Anne sa dum al eux et diutius viventium pur femme et Johan lour file et eorum lour vies successive del jour de S. diutius viven. successive a festo S. Mich, proch. ensuant le jour apres Michaelis Archangeli, donque prochein Mich." ; but makes no mention of the ensuant le date del dit indenture usque words, ut supradictu7)i est, on which, le fine et temie de lour vies naturall, according to Croke, so much stress redant proinde annuatim durant. vitis seems to have been laid by the judges suis ut prsedict. est le yearly rent de of the King's Bench. 13s. id., ovesque un harriot de lour (o) Noticed sup. p. 684. 686 OF THE TERM OF THE LEASE. [Part IV. them^ which the law would not permit, if by any means or construction it could be made good : that by this construction, that the husband first should have it, and afterwards the feme, and afterwards the daughter, every part of the deed would stand and be good ; and that this was enforced by the words ut supradictum est, which was as if they had been named. They said also that the case was distinguishable from Winds- more V. Hobart {j)), principally on the ground that the latter did not show which of the brothers should take before the other ; while in the principal case, the first part of the deed, and not the habendum only, showed that they should all take; that the limitation ut supradictum est showed that the lessor intended such one after the other; that the reservation of the rent and heriot, ut supradictum est, showed that the one after the other should pay the rent and heriot ; that the limitation was, et eorum diutius vivent. successive, et vivent. successive (g), for the term of their lives; the successive being before the limitation for all their lives ; that in the other case (Windsmore v. Hobart) the limitation was to them for the term of their lives, and then the successive did not divide it ; therefore it much differed from the said case. And it was adjudged that the lease in question was good by way of re- mainder. But a writ of error being brought in the Exchequer Chamber, the matter was ultimately settled by compromise ; but not before the judges there had intimated their opinion that there was no material difference between Windsmore v. Hobart and the principal case, so that the judgments could not stand both together. Kemainder-men may thus take in succession, though they be not parties to the indenture of demise (/•) ; in which respect they differ from joint lessees for lives, in cases not affected by the late acts above referred to. Where, in consequence of their not being named parties to the indenture, persons cannot take as joint-tenants with the (p) Ante, p. 684. sire arc repeated by mistake. (q) So in Cro. Jac. 504, though it (r) Windsmoi-e v. Hobart, sup. seems tliat the words ct vivent. succcs- Greenwood r. Tyber, sup. Ch. VI.] FOR LIVES. 687 lessee named a party; and where, in consequence of the con- struction of the instrument, they cannot take in remainder, their lives will form no part of the limitation of the estate ; but the lessee, party to the deed, will hold for his own life only(s). Leases are frequentty made for the lives of the lessees themselves and of persons strangers to the lease. These are good limitations, and create an interest for all the Uves named. Thus, if a lease be made to one for his own life and the lives of two others, the interest Avill endm'e for the three lives ; and althou^gh the lessee cannot in his own person have any benefit beyond his own life, yet he may grant it to another ; and his underlessee, or assignee, may enjoy the premises after his death {t) . It is a common practice to grant leases for the lives of persons unconnected alike with the estate or contracting parties ; and the interest may be made to determine, as in the case of several lessees, on the death of one, or to continue imtil the decease of the survivor of the cestuis que xie. If it be granted for the lives of two or more persons, it will endiu-e until the death of the survivor, without words expressive of its continuance dm'ing the life of the sur^dvor ; for the lessee has an estate of freehold by way of limitation during the lives of the cestuis que vie, and, by construction of law, during the Hfe of the survivor {u). But a lease for 100 years if two or more persons shall so long live, will determine by the death of one ; the lease in that case being conditional, and not determinable by limitation of estate, and the lives being collateral to the lease, which is but a chattel (x). A lease pur autre vie confers an estate of freehold simply, and not a freehold of inheritance (y). The hen- may take as (s) Kirkmanr. Reign old, 2 Leon. 1. (m) Brudnell's case, 5 Co. 9, a. (t) Rocs V. Adwick, Cro. Eliz. 491; (x) Ibid. S. C. nom. Rosse's case, 5 Co. 13, a; (y) Grey v. Mannock, 2 Ed. 339; S. C. nom. Roos v. Adwick, Mo. 398; cited, 6 Term Rep. 29-3. Doe dem, S. C. nom. Rosse r. Ardwick, Gouldsb. Blake v. Luxton, 6 Terra Rep. 289. 157. Utty Dale's case, Cro. Eliz. 182. Low v. BiuTon, 3 P. Wms. 262; S. C. And see Anon. Mo. 8. pi. 32. Hills r. 2 Eq. Ca. Ab. 394. pi. 1. Baker v. Hills, Mo. 876. Bayley, 2 Vern. 225. 688 or THE TERM OF THE LEASE. [Part IV. special occupant, and hence the term descendible freehold has, with no great propriety perhaps, been applied to it ; for it must be remembered that he does not succeed to the pos- session on any principle of inheritance, but simply by being specially designated in the lease as the successor of the lessee [z) . An interest of this kind confers no title to dower (a) ; nor is it within the statute De donis {b). But if a lease be made to a man and his heirs, during three lives, of lands in borough-Enghsh, the freehold will devolve on the youngest son, though it be a newly created estate ; because the custom is so annexed to the land as to affect that estate (c) . Sometimes the demise pur autre vie is to the lessee his heirs and assigns; sometimes, to him, his executors, adminis^- trators, and assigns. At common law, where the grant was to the lessee pur autre vie, without naming some one to succeed him, any person, after his death, might enter on the vacant possession, and enjoy the estate, as general occupant, until the death of the survivor of the cestuis que vie {d). By making the grant to the lessee, his heirs and assigns, the heir succeeded as special occuj)ant. "Whether the executor or administrator could take as spe- cial occupant has been the subject of some diversity of opinion, authorities of eminence being found on each side. Lord Hardwicke (e) and Lord Eldon (/) considered that they could; but Lord Redesdale thovight otherwise, and referred to the statute of frauds, which, he said, seemed to have sup- posed that there could be no special occupant to take on the death of a person holding pur autre vie, except his (2) Ibid. Ripley v. Watervvorth, 7 243. Baker v. Bayley, 2 Vern. 225-6. Ves. 437-8. And see 7 Ves. 443. (d) Co. Lit. 41,b. ' (a) Low V. Burron, sup. (c) Duke of Marlborough v. Loi-d (6) Baker v. Bayley, sup. Low v. Godolphin, 2 Ves. Gl. 80. Williams v. Bun-on, sup. Jekyl, Elliot v. Jekyl, 2 Ves. 681. West- (c) Baxter v. Doudswell, or Dowds- faliiig v. Westfaliug, 3 Atk. 460. 466. well, 2 Lev. 138; S. C. 3 Keb. 475. (/) Riploy v. Waterworth, 7 Ves. Townsciid's case, cited, 2 Ld. Raym. 425. Milner v. Lord Ilaiewood, 18 J 028. Clements v, Scudamore, Salk. Ves. 273. Cu. VI ] FOR LIVES. 6S9 heir(^). The better opinion, however, appears to be, that executors or administrators can take as special occupants things lying in livery ; but not such as lie in grant, the latter being incapable of occupation, and the freehold in the former never devolving on them in their representative capacity {h) . The practical importance of the question, as far as it relates to our subject, was superseded by the statute of frauds [i), which provided [k), that from thenceforth any estate pur autre vie should be devisable by a will in writing, with certain forma- lities ; and if no such devise thereof should be made, the same should be chargeable in the hands of the heir, if it should come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee-simple ; and that in case there should be no special occupant thereof, it should go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and should be assets in their hands. Still, as in cases wbere no devise was made of svich estates, it was questionable to whom the surplus, after payment of the debts of the deceased owner, would belong, it was afterwards enacted (/), that such estates pur autre vie, in case there should be no special occupant thereof, of which no devise should have been made according to the said act for preven- tion of frauds and perjuries, or so much thereof as should not have been so devised, should go, be applied, and distri- buted, in the same manner as the personal estate of the testator or intestate. (rf) Campbell v. Sandys, 1 Scho. & Butl. n. to Co. Lit. Index, tit. Dower, Lef. 238. His Lordship referred to in ISthEd. fol., A.D. 1788. Hargr. Co. Rol. Ab. Occupant, G. 2, and 3 Dy. Lit. 41, b. n. (4). And a valuable note, 328,b. pL (10). Lord Windsor's case, Sugd. Pow. 6tli Ed. Vol. i., p. 24.5, 3 Leon. 3.5, semb. S. C. Com. Dig. St. John's College v. Fleming, 2 Vern. Estates, F. 1. Salter v. Butler, Cro. 320; S. C. 1 Eq. Ca. Ab. 275. pi. 12; Eliz. 901; S. C. Yelv. 9; Noy, 46 ; and Raithby's note to Vera. SP.Wms, S. C. nom. Salter v. Botclcr, Mo. 664. 264. n. [D]. 6th Ed. (A) Bac. Ab. Estate for Life and Oc- (r) 29 Car. 2. c. ?,. cupancy, [B]. 3. And see Savery v. (Jc) Sect. 12. Dyer, Ambl. 140 ; S. C. 1 Dick. 162. (/) 14 Geo. 2. c. 20. s. 9. VOL. I. Y Y 690 OF THE TERM OF THE LEASE, [Part IV. Previously to this statute, the administrator took the sur- plus for his own benefit as a general occupant (m) . Fiu'ther provision has been made upon the subject by the late act for the amendment of the laws with respect to wills {n) ; the second section of which repeals (among other matters) so much of the statute of frauds as related to the de%dse of any estate pur autre vie, or to any such estate being assets ; and also so much of the act of 14 Geo. 2. c. 20, as related to estates pur autre vie, except so far as the same acts or either of them related to any wills or estates pur autre \ie to which the act now under notice does not extend. After enabling (o) persons to dispose of their real and per- sonal estate by will, and declaring that the power thereby given shall extend to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament, it was further enacted {p), that if no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee-simple ; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenm^e, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant ; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate. (m) Oldham v. Pickering, 12 Mod. Salli. 137. 103 ; S. C. 2 Salli. 4(>4 ; Carth. 376 ; (w) 1 Vict. c. 26. Comb. 388. 47.5; Holt, ,503; S. C. nom. (o) Sect. .3. Olderoon v. Pickering, 1 Ld. Rayni. 96 ; (in) Sect. 6. S. C. nom. OldiHon v. Pickering, 2 Ch. VL] FOR LIVES. G91 The act does not extend to any will made before the 1st of January, 1838; nor to any estate pur autre vie of any person who died before that day [q) . Two attesting witnesses are substituted (r) for the three required by the statute of frauds. If the lease be granted to a man, his heirs, executors, administrators, and assigns, the heir, in default of a devise, will take as special occupant, in preference to the executor or administrator (s) . Where lands were devised to Hannah Timmis, her heirs and assigns, to hold to the said Hannah Timmis and her assigns during the life of George Timmis ; and a question arose, who was entitled to take as special occupant on the decease of the lessee, her heir or executor ; the court held, that, as the haben- dum could not be rejected altogether, as the effect of that would be to give an estate in fee to Hannah Timmis, where- as the estate intended to be given to her was for the life of George Timmis; no doubt could be entertained that the words "dui'ing the life of George Timmis ^^ must be allowed to limit the diu-ation of the estate, and to explain and qualify the meaning of the word heirs in the premises, so as to make the person designated by that word take as special occupant {t) . In the case of an agreement for a lease for lives, the privilege of naming them belongs to the lessee (w) ; but he cannot name lives not in existence at the making of the agreement {x). Demises of corporeal hereditaments for a freehold interest, if made by a commom law lease, must be perfected by livery of seisin (y); and, as livery must operate instanter(^), it (q) Sect. 34. (.V) Barwick's case, 5 Co. 93,b. The (r) Sect. 9. readei' is referred to Part the Fifth, {$) Atkinson v. Bakei-, 4 Terra Rep. Chap. I., for the law relating to the 229. Instrument of demise, and the eflfect (t) Doe dem. Timmis v. Steele, 4 of the late acts of 7 & 8 Vict. c. 76, and Q. B. 663; S. C. 3 Ga. & Dav. 622. 8 & 9 Vict. c. 106. (m) Twyford?;. Buckly, 3Keb. 203. (z) Bai-wick's case, sup. Butler r. (x) Wheeler v. D'Esterre, 2 Dow Fincher, 2 Bulsti-. 302 ; S. C. 1 Rol. P. C. 359. 229. Greenwood v. Tyber, or Tyler, Y Y 2 692 OF THE TERM OF THE LEASE, [Part IV. follows that sucli a freehold lease cannot be made to com- mence infuturo («). If it purport to commence at a future day, it is a nullity till seisin be delivered ; and the freehold in the interval remains in the lessor {b) . The same restriction, however, does not apply to limitations under the statute of uses [c), by which a freehold interest may take efiPect though granted to commence at a future day, the immediate freehold resulting in tlie meantime to the grantor [d) ; and hence we find that livery is not necessary to the validity of a lease for life made in pursuance of a power, unless expressly required, though if made it will not prejudice the lease (e) . Seisin may be delivered either by the lessor himself, or by his attorney. If delivered bj'^ the former, a freehold lease may be good, though purporting, with reference to its date, to commence in futuro, provided the solemnity of livery be deferred until after the day appointed for the commencement of the term (/), When delivered by the latter, a distinction was recognised in the early cases between a general and a special power of attorney ; and it was held [g], that, under a general power given by the lease to deliver seisin, the attorney could not give validity to a lease professing to grant a freehold in futuro, by postponing livery till the arrival of the day of commencement. At the same time, it was well understood that such a lease might be supported by livery made after the Cro. .Jac. 563 ; S. C. Hob. 314 ; S. C. wood v. Tyl)er, or Tyler, sup. Anon. 2 nom. Tyler v. Fisher and Greenwood, Rol. 1 09. Tiler's case, sup. And see Palm. 29; cited, Cro. Car. 95. Tiler's Banks v. Brown, Mo. 759. Freeman case, 2 Rol. 3G6, misprinted 368, semb. dem. Vernon v. West, 2 Wils. 165-7. S. C. Hatter v. Ash, 1 Ld. Raym. f!4 ; (7) Greenwood v. Tyber, or Tyler, S. C. 3 Lev. 438. Co. Lit. 217, a. sup. Cro. Eliz. 585. Anon. 2 Rol. 109. (a) Ibid. Tiler's case, sup. Owen v. App Rees, (Jj) Freeman dem. Vernon v. West, Cro. Car. 94 ; S. C, nom. Owen v. 2 Wils. 1C5-7. Barwick's case, sup. Price, Hetl. 22. Hcmiings v Pauchar- Walker v. The Dean and Chapter of den, Cro. Jac. 153. Mellows v. May, Norwich, Ow. 136. Cro. EHz. 873; S. C. Mo. 636; the for- (c) 27 Hen. 8. c. 10. merof which reports states, that by all {d) 1 Sand, on Uses, 1 42, 5th cd. the court the lease was held void, and by Sand. & W.arii. that livery made so long time after (e) The Earl of Leicester's case, 1 would not help it. Moore, on the con- Vent. 278. 28], paged 291 by mistalce. trary, states that the lease was held Uaylcy v. Warburton, Com. 494-7. Rood, because livery was executed after (/) lUitler V. Fiiicher, sup. fJreen- the day of the date. Cii. VI.] FOR LIVES. G93 day of commencement, provided the attorney were authorised by a special power to defer livery till that time {h). But this distinction was shaken by the case of Freeman v. West {i). There, the Dean and Chapter of Worcester, on the 2(5 th of November, 1750, demised certain premises to the plaintiff^s lessor ; to hold to him and his heirs from the day of the date thereof for three lives ; and in the lease power was given by the Dean and Chapter to their attorney to take possession of the premises, and to deliver seisin thereof to the plaintiff's lessor, according to the tenor, effect, and true meaning of the said lease; in pursuance of which power, seisin was delivered on the 28th of INIay, 1751, about six months afterwards ; and the court determined, that the lease was good, saying that there was no difference between livery by the lessor himself, or by his attorney, according to the tenor, effect, and true meaning of the lease, six months after the date ; that, by the warrant of attorney to deliver seisin in the case before them, the intention of the parties was, that the deed should be substantiated by the livery, and that in the meantime the freehold was in the grantor. The reporter adds: — "N.B. The court said they would presume that the power given to the attorney was to make livery at any day subsequent to the lease, which they said was the true mean- ing of the deed.'' If any doubt could remain after this, it has since been dispelled by the case of Roe v. Rashleigh {k), where it was determined that a general power to make livery according to the form and effect of the lease authorised the attorney to deliver seisin at any convenient day subsequent to its date. It was early decided, that if a lease were not executed by the lessor himself until after the day appointed for its com- (7t) Greenwood v. Tybor, oi- Tyler, 2 Wils. 1G5; decided befoi-e the case sup. Tiler's case, sup. Owen v. App of Pugh v. The Duke of Leeds, Cowp. Rees, or Pi-ice, sup. And see Walter, 714; and see ante, p. 1 50 ; and post, or Waller, v. The Dean and Chapter as to the Habendum, of Norwich, Mo. 875; S. C. Ow. 136. (k) Roe dem. Heale v. Rashleigh, (i) Freeman dem. Vernon v. West, 3 Barn. & Aid. 156. 694 OF THE TERM OF THE LEASE. [Pakt IV. mencement, livery made by attorney after the execution would be good, although the power were general (/) . Instant livery on a lease for life made to commence in futuro would formerly amount to a disseisin {m) ; but a feoff- ment made after the 1st of October, 1845, is deprived of its tortious operation by the late act to amend the law of real property (w) . If a man make, according to the common law {6), a lease for years, with remainder in fee, livery must be made to the tenant for years {p) ; but if tenant for years enter before livery, the term vrill be good, but the remainder void (5). If a lessor appoint the lease to commence at a future day, the remainder over in fee, there, although livery be made to the lessee, yet both livery and remainder are void, there being no present estate to which the livery can be annexed, or on which it can rest in the meantime (r) . After a consistent possession for a long time, as twenty (5), or five-and-twenty years (/), livery will be presumed. A lease for life made by feoffment, with a clause that it shall be void on non-payment of rent, cannot be determined without entry ; for as it could not commence by words, with- out Kverv, so a similar solemnity is necessary to determine it {u). With a lease for years the case is different [x), as it is with a lease for life created by way of hmitation of use, the seisin to serve the use being granted to a third party, and not to the lessee himself. To remedy the inconveniences occasioned by want of proof of the decease of persons upon whose lives estates might depend. . Bayley V. The Corpo- 203. ration of Leominster, 1 Ves. jun. 47() ; (7) Lord Frankfort v. Thorpe, 2 Ball S. C. 3 Bro. C. C. 529. City of Lon- & Beat. 372. don V. Mitford, 14 Ves. 41. Maxwell (?•) Curry v. Stanley, 1 Hay. «Sc Jo. V. Ward, 1 1 I'ri. 3 ; S. C. 13 Pri. G74. 487. Ch. VII. s. II.] RENEWAL : — QUANTITY OF INTEREST. 707 appeal. Sir E. Sugden, C, apparently considering that tlie habendum amounted to a covenant for perpetual renewal, offered the parties a case for the opinion of. a court of law; but the suit was finally compromised {s) . If the covenant, obviously by mistake, make the renewal compulsory on the lessee, instead of giving him the option, a court of equity will rectify the error (/) . II. — As to the quantity of inter^est contracted for. The question, What quantity of interest is contracted for, can only be solved by the construction given to the agreement for renewal. And we may here observe that, with reference to its construction, it is immaterial whether it be contained in an instrument under seal, or not under seal ; and equally so, whether the construction be arrived at through the me- dium of a court of law, in an action for damages for neglect of performance ; or of a court of equity, on a bill for a specific performance {u). The true construction of the instrument must be the same in every court; though it is a common practice for equity, when the construction is doubtful, to send a case for the opinion of a court of law ; or to retain a bill for a time, for the purpose of enabling a plaintiff, by an action at law, to obtain the legal construction of the contract [x) . The courts in England (for I shall not particularly examine the practice of the Irish Judicature, which proceeds on a local equity [y), and the Irish tenantry act [z] ,) are strongly ^ ''•^^- ^^- '^^ («) Sheppard v. Doolan, 1 Flan. & Iggulden v. May, sup. Dowling v. Mill, Kel. 598; S. C. 5 Irish Eq. Rep. 6; 1 Madd. 541. 548. MaxwelU-. Ward, S. C. on appeal, 3 Dm. & War. 1. sup. ; S.C. 11 Pri. 3 ; 1 McClel. 458. (t) Ashton V. Bretland, 9 Mod. 58 ; (?/) For information on this point, S. C. 2 Eq. Ca. Ab. 57. the reader may refer to the cases of (m) Eaton v. Lyon, 3 Ves. 692. Ig- Boyle v. Lysaght, 1 Ridgew. P. C. 384, gulden V. May, 9 Ves. 329 ; 7 East, and Magrane r. Archbold, 1 Dow, 246; 3 Smith, 269. Maxwell w. Ward, P. C. 107. 109, which explain the 13 Pri. 677. 681. Brown v. Tighe, principles on which perpetual renewals 8 Bli. P. C. N. S. 417. have been decreed in Ireland ; and to (x) Reece, or Rees, v. Lord Dacre, the cases mentioned in note (A), post, 3 Hargr. .Jurisc. Exerc.206. 237; S.C. p. 761. 1 Hargr. Jurid. Arg. 438 ; 9 Ves. 332. {z) 19 & 20 Geo. 3. c. 30. Z 7.% 708 OF THE TERM OF THE LEASE. [Part IV. opposed to perpetual renewals (a) ; and Lord Tliurlow almost brought himself to a belief^ though he never proceeded so far in judgment, that any man who entered into such a cove- nant must be supposed so little to understand the nature of a bargain and of property, that the court ought not to execute it by a specific performance [b). But notwithstanding that learned Judge's denunciation of this species of contract, it is now indisputably settled that an action may be maintained on it at law, and that equity will carry it into specific execu- tion in cases containing evidence of a perpetual renewal ha\dng been intended by the parties (c) ; and instances have been suggested in which its introduction, so far from being unreasonable, might be equally beneficial to both lessor and lessee ; as in the case of a party taking a lease of unpro- ductive sea-beach upon a building speculation, "vvith an option to relinquish it at the expiration of the term first granted, or retain it for ever under perpetual renewals {d). Strong proof of intention, however, is requisite to support such a contract; and, in the absence of an intention to that efi*ect, expressed or clearly implied, equity will not decree a specific performance, although the parties themselves might possibly have contemplated a perpetual renewal (e). Nor will a specific performance of a covenant for perpetual renewal be decreed, if it be improvident, absurd, and unequal, as if the lessor grant a lease of premises worth 120/. a year, at a yearly rent of 3/., and a covenant for renewal for ever on (rt) Funiival v. Crew, 3 Atk. 87; Baynham v. Guy's Hospital, 3 Ves. S. C. 9 Mod. 440. Taylor v. Stibbert, 29!i. Iggulden v. May, 9 Ves. 334. 2 Ves. jun. 443. Baynham v. Guy's Maxwell v. Ward, sup. Willan v. Hcspital, 3 Ves. 298. Per Willcs, J., Willan, 16 Ves. 84 ; S. C. 2 Dow, P. C. in Cooke v. Booth, Cowp. 023. JMoore 275. Dowling v. Mill, 1 Madd. 548-9. r. Foley, 6 Ves. 237. Maxwell v. Brown v. Tigho, sup. And see The Ward, 1 1 Pri. 13 ; S. C. 1 3 Pri. G74 ; City of London v. Mitford, 14 Ves. 41, McClel. 458. a ease of express covenant for per- (//) Tritton v. Footc, 2 Cox, 174. jK-tual renewal. Iggulden r. May, 9 Ves. 330. Attor- (. lease executed by the lessor. 2 Cla. & (x) The word further was in the Fin. 3,08,0. 3 A 2 724 OF THE TERM OF THE LEASE. [Part IV. reasonably require^ for the better strengthening, confirming, and sure making of the said demised premises unto the lessee, his executors^ administrators, and assigns, '^'^at such rents, and under such covenants as contained in the said indenture of lease," at the charge of the lessee, his executors, administrators, and assigns. In 1779, the lease was renewed for ninety-eight years, and the indenture contained all the same clauses, provi- sions, and covenants, as in the original lease, and, amongst them, a covenant for renewal in the same words as were con- tained in the original lease. The last-mentioned lease being within a few years of expu'ation, the lessee filed his bill in Ireland to enforce a renewal, which had been refused by the reversioner; but the court, though at first inclined to consider the covenant as amounting to an agreement for a perpetual renewal, upon further consideration held it to be a covenant for further assurance only; and the judgment was afterwards affirmed on an appeal to the House of Lords, great stress being laid on the provision requiring the lessee to plant 500 oak or ash trees in the place of those sold, Avhich was deemed in- compatible \^ith the supposition that the lessor intended to part with his whole interest under a covenant for perpetual renewal. On the whole, it is indisputably settled, that the words <' under the same rent and covenants" are not of themselves sufiicient to include the covenant for renewal (y) . Nor will a covenant to grant a lease "in the same form" include the covenant for renewal {z). AVhcre a party covenanting to renew is prevented by a subsequent act of parliament from performing his contract to its full extent, the court will decree it to be specifically exe- cuted to such extent as remains laAvful ; as Avliere the dean and chapter of St. Paul's, having, before the restraining act («), made a lease of Doctors' Commons for ninety-nine Qj) And see iiarl of lnclii) Simpson v. Clayton, sup. paid on leases of lauds in Devonshire {q) Seudamore v. Stratton, 2 Bos. for long terms determinable on lives is & Pul. 455. as follows : — The gross aiuiual value (;■) Winslow v. Tighe, 2 Ball & Beat. is first taken; then the amount of the 1.95. 205. Rawe r. Chichester, 2 Ambl. land-tax, church-rates, poor-rates, re- 715. 719; S. C. 1 Bro. C. C. 198, n.; served rent and repairs, is deducted to S. C, nom. Bromfield v. Chichester, or ascertain the clear value thereof, and Raw v. Duthelly, 2 Dick. 480. Ran- about seventeen years' pui'chase of the dall v. Russell, 3 Meriv. 197. See clear value is charged on a lease for post, p. 762. three lives of the purchaser's nomina- (s) Hyde i'. Skinner, 2 P. Wms. tion. The numberofyears' purchase of 196; S. C. 1 Hargr. Jm-id. Arg. 425 ; leases foi' reversionary interests must 3 Jurisc.Exerc. 193. Isteed i;. Stoneley, in all cases depend upon the ages of the 1 And. 82. Roe dem. Bamford v. life or lives in existence at the time. Hayley, 12 East, 469. 734 OF THE TERM OP THE LEASE. [Part IV. in the renewal. The benefit^ running with the land^ is transmitted by assignment {t) ; and an assignee of an undi- vided share may maintain an action for a breach in respect of that share (u). Where a condition precedent is to be performed on the lessee's part, as to surrender his existing term, to request a renewal, to tender a new lease, to pay a certain fine, or the like, he must, at law, strictly comply -with the condition to establish his right to the renewal, or to an action for the lessor's neglect or refusal (.r). Accordingly, where a lease was granted for sixty-one years, and the lessors covenanted that, at any time within one year after the expiration of twenty years of the said term of sixty-one years thereby granted, at the request and costs of the lessee, and on his paying to the lessors 6/., they would, upon such request and payment, execute another lease for the further term of twenty years, to commence from and after the expiration of the said term of sixty-one years thereby granted ; and so in like manner at the end and expiration of every twenty years during the said term of sixty-one years thereby granted, for the like consideration, and upon the like request, would grant another lease of the premises to the lessee, for the fm-ther term of twenty years, to commence at and from the expiration of the term then last before granted, at the Hke rent, &c. ; it was held, that as the lessee had omitted to apply for a renewal at the expiration of the first and second twenty years of the term, he could not claim a renewal at the expu'a- tion of the third twenty years -, and that as the lessor's agree- ment was to grant a further lease on a condition precedent, to be performed by the lessee, the latter had forfeited his right by his OAVTi neglect {y). (t) Isteed v. Stoneley, 1 And. 82. (x) Rubery ?'. Jervoise, 1 Term Rep. Fumival i'. Crew, 3 Atk. 88 ; S. C. 229. And see Baynhara v. Guy's Hos- .0 Mod. 44(i. Roc dem. Bamford v. pital,,3 Vcs. 295. Eaton t'. Lyon, 3 Ves. Hayloy, 12 East, 4G9. Vernon r. ()92. Mackay v. Mackrcth,2Chit.461. Smith, ,5 Barn. & Aid. 11. Kerne's Firman t>. Lord Ormonde, 1 Beat. 347. ea.so. Mo. 27, scmb. cont. 350. (u) Simpson v. Clayton, 4 Bing. N. C. (y) Rubery v. Jervoisc, 1 Term Rep. 758.780 ; S. C.CScott,4G9; 1 Arn. 299. 229. Cii.vii. s.li.j renewal: — lessor's liabilities in equity. 735 But if the lessor, by alienation, or otherwise {z), render himself incapable of fulfilling his agreement, an offer on tlic tenant's part to perform a condition precedent, as a prelimi- nary step to an action, may safely be dispensed with (a) . Except with regard to construction, recourse is seldom had to a coui*t of law in questions relating to renewals, as equity affords more substantial relief, by a specific perform- ance of the contract itself, than can be obtained at law by an unsatisfactory award of pecuniary compensation ; and, not- withstanding Lord Thiu-loVs condemnatory remark (b), the practice of equity in matters of this kind is too firmly esta- blished to be shaken. This subject will be pursued in the next division. VI. — As to the liabilities in equity of the lessor, and persons claiming through or under him, considered pai'ticidarly with reference to specific performance of the contract to grant a renewal. The lessor, of course, is bound by his covenant specifically to renew; and where one A., holding under a corporation, (of which he was a member,) and in the habit of obtaining renewals on favorable terms, demised to B. at a certain rent, with a covenant to renew at the same rent as often as the corporation should renew to him ; A. was compelled to renew to B. on the former terms, although the corporation raised the rent payable by A. (c) ; though it appears that he might have avoided a specific performance, by abandoning his lease, and allowing the covenantee to stand in his place [d) . A late act of parliament (e) has made provision for renewals (2) See ante, p. 731. (c) Evans t). Walshe, 2 Scho. & Lef. (a) Scott r. Mayn, or Main's case, 419. Revell v. Hussey, 2 Ball & Beat. Cro. EUz. 450 ; S. C. Jenk. cent. 256 ; 280. affirmed in error, Cro.Eliz. 479; 5 Co. (rf) Ibid. 20, b. ; Mo. 452 ; Poph. 109 ; cited, (c) 11 Geo. 4 & 1 W. 4. c.65, which 2 Rol. 402; Hardr. 387. Hotham v. repealed, but incorporated the provi- The East India Company, 1 Terra sious of, the statutes, 29 Geo. 2. c. 31 ; Rep. 638. 11 Geo. 3. c. 20; 43 Geo. 3. c. 75. s. 4 ; (fe) Ante, p. 708. and 9 Geo. 4. c. 78. 7.SG or THE TERM OF THE LEASE. [Part IV. of leases granted by infants^ femes covert, idiots, lunatics, persons of unsound mind, and persons out of the jurisdiction of tlie court; and, after declaring (/) that the provisions of the act relating to a lunatic should extend to and include any idiot or person of misound mind, or incapable of managing his affairs, unless there should be something in the subject or context repugnant to such construction, enacted. By section 16, That when any person being under the age of twenty-one years, or a feme covert, might, in pursu- ance of any covenant or agreement, if not under disability, be compelled to renew any lease made or to be made for the life or lives of one or more person or persons, or for any term or number of years absolute, or determinable on the death of one or more person or persons, it should be lawful for such infant, or his guardian in the name of such infant, or such feme covert, by the direction of the court of Chancery, to be signified by an order to be made in a summary way upon the petition of such infant, or his guardian, or of such feme covert, or of any person entitled to such renewal, from time to time to accept of a surrender of such lease, and to make and execute a new lease of the premises comprised in such lease for and during such number of lives, or for such term or terms deter- minable upon such number of Hves, or for such term or terms of years absolute, as was or were mentioned in the lease so surrendered at the making thereof, or otherwise as the court by such order should direct: By sect. 18, That where any person who, in pursuance of any covenant or agreement in writing, might, if within the jurisdiction and amenable to the process of the court of Chancery, be compelled to execute any lease by way of re- newal, should not be Avithin the jurisdiction, or not amenable to the process, of the said court, it should be lawful for the said court of Chancery, by an order to be made upon the petition of any person or any of the persons entitled to such renewal, (whether such person should be, or should not be (/) Sect. 2. Ch. VII. s. II.] renewal: — lessor's liabilities in equity. Til under any disability,) to direct such person as the said court should think proper to appoint for that purpose, to accept a surrender of the subsisting lease, and make and execute a new lease in the name of the person who ought to have re- newed the same ; and tliat such deed executed by the person so appointed should be as valid as if the person in whose name the same should be made had executed the same, and had been alive, and not under any disaljility ; but that in every such ease it should be in the discretion of the said court of Chancery, if under the circumstances it should seem requisite, to direct a bill to be filed to establish the right of the party seeking the renewal, and not to make the order for such new lease unless by the decree to be made in such cause, or until after such decree should have been made: By section 19, That where any person being lunatic was or should be entitled, or had a right, or in pursuance of any covenant or agreement might, if not under disability, be com- pelled, to renew any lease made or to be made for the life or lives of one or more person or persons, or for any term or number of years absolute, or determinable on the death of one or more person or persons, or otherwise, it should be lawfid for the committee of the estate of such lunatic, in the name of such lunatic, by the direction of the Lord Chan- cellor, entrusted by virtue of the King's sign manual with the care and commitment of the custody of the persons, and estates of the persons, found idiot, lunatic, or of unsound mind, to be signified by an order to be made in a summary way upon the petition of such committee, or of any person entitled to such renewal, from time to time to accept of a surrender of such lease, and to make and execute to auy person a new lease of the premises comprised in such lease to be surrendered by virtue of the act, for and during such number of lives, or for such term or terms of years determin- able upon such number of lives, or for such term or terms of years absolute, as were mentioned or contained in such lease so surrendered at the making thereof, or otherwise as the Lord Chancellor so entrusted Ijy such order should duect ; VOL. I. 3 b 738 OF THE TERM OF THE LEASE. [Part IV. and that this provision should extend as well to cases where the lunatic should not be compellable to renew, but it should be for his benefit to do so, as to cases where a renewal might be effectually enforced against the lunatic, if of sound mind : By section 20, That no renewed lease should be executed by wtue of the act, in pursuance of any covenant or agree- ment, unless the fine (if any), or such other sum or sums (if any), as ought to be paid on such renewal, and such things (if any) as ought to be performed in pursuance of such cove- nant or agreement by the lessee or tenant, should be first paid and performed, and that counterparts of every renewed lease to be executed by virtue of the act should be duly exe- cuted by the lessee : By section 21, That all fines, premiums, and sums, which should be had, received, or paid, for or on account of the renewal of any lease, after a deduction of all necessary inci- dental charges and expenses, should be paid, if such renewal should be made by or in the name of an infant, to his guardian, and be applied and disposed of for the benefit of such infant, in such manner as the said court should direct ; if such re- newal should be made by a feme covert, to such person or in such manner as the said court should direct for her benefit ; if such renewal should be made in the name of any person out of jmisdiction, or not amenable as aforesaid, to such per- son or in such manner, or into the court of Chancery to such account, and to be applied and disposed of, as the said court should direct ; and that if such renewal should be made in the name of a lunatic, to the committee of the estate of such lunatic, and be applied and disposed of for the benefit of such lunatic in such manner as the Lord Chancellor so intrusted should direct ; but that, upon the death of such lunatic, all such sum and sums as should arise by such fines or premiums, or so much thereof as shoidd remain unapplied for the benefit of such huiatic at his deatli, should, as between the represen- tatives of tlie real and personal estates of such lunatic, be considered as real estate, unless such lunatic should be tenant C'n.vri. S.II.] renewal: — lessor's liabilities in equity. 739 for life only, and that then the same should be considered as personal estate : By section 31, That every surrender, and lease, agreement, conveyance, mortgage, or other disposition, respectively granted, and accepted, executed, and made, by virtue of the act, should be and be deemed as valid and effectual to all intents and purposes as if the person by whom, or in whose place, or on whose behalf, the same respectively should be granted, or accepted, executed, and made, had been of full age, unmarried, or of sane mind, and had granted, accepted, made, and executed, the same, and that every such surrender and lease respectively made and accepted, by or on behalf of a feme covert should be valid without any fine being levied by her [g] : By section 36, That the powers and authorities given by the act to the coiu't of Chancery in England shoidd extend to all land within any of the dominions, plantations, and colonies, belonging to the crown, except Scotland : By section 38, That the powers and authorities given by the act to the courts of Chancery and Exchequer in England, should and might be exercised in hke manner, and were thereby given to, the courts of Chancery and Exchequer in Ireland, with respect to land in Ireland : By section 39, That the powers and authorities given by the act to the Lord Chancellor of Great Britain so intrusted, should extend to all land wheresoever within any of the dominions, plantations, and colonies, belonging to the crown, except Scotland and Ireland : By section 40, That the powers and authorities given by the act to the Lord Chancellor of Great Britain so intrusted, should and might be exercised in like manner by, and were thereby given to, the Lord Chancellor of Ireland, so intrusted, with respect to all land in Ireland, but not farther or otherwise : By section 42, That the powers and authorities given by (gr) Fines were p^bolished, and more simple modes of assurance substituted, by 3 & 4 Wm. 4. c. 74. 3 B 2 740 OF THE TERM OF THE LEASE. [Part IV. the act to the Lord Chancellor of Great Britain so intrusted, should and might be exercised in like manner by, and were thereby given to, the lord keeper or commissioners of the great seal of Great Britain for the time being entrusted as aforesaid j and that the powers and authorities given by the act to the Lord Chancellor of Ireland so intrusted, should and might be exercised in like manner by, and were thereby given to, the lord keeper or commissioners of the great seal of Ireland for the time being so intrusted. The provisions of the act respecting original leases of the lands of infants, persons of unsound mind, and of femes covert, will be found in an earlier part of this work {h). Where a receiver apphed to the com-t of Chancery in Ire- land for a reference to the Master to ascertain whether a lunatic was bound to grant a renewal. Sir Edward Sugden, C.J refused him the costs of the application, as he ought in the first instance to have applied to the committee to bring the subject before the coui*t (/). The covenantor's heir, in case of an estate in fee-simple descending on him, or an estate pur autre vie devolving on him as special occupant, is bound in like manner. The liability extends also to his executors and administrators in the case of a chattel interest of the reversion, or an estate pur autre vie devolving on them; as, on the other hand, a specific performance of a contract to take a renewal Avill be decreed against the lessee^s executors, if they have assets; the plaintiff offering to permit their covenants to be so qualified as to render them no further liable thereon, than they would have been on the covenants which ought to have been entered into by the testator, in case a proper lease had been made to him in his lifetime {k). A lessee for a term of years, with a foties quoties covenant for renewal, having died intestate, his administratrix underlet (/() As to leases by Infants, ante, (/) Re Doolan, 2 Con. & Law. 232; p. 28 ; by Per.sons of unsound mind, S. C. 3 Dru. & War. 442. ante, p. 37; and by Femes covert, ante, (Z) Phillips v. Everard, 5 Sim. 102. p. 40. Ch. VII. s. II.] renewal: — lessor's liabilities in equity. 7-il the premises at an increased rent, with a covenant that she, her executors, administrators, and assigns, as often as she or they should obtain a renewal, would execute to the under- lessee a new lease for such term, save one year, as the said administratrix sliould herself procure, at the like yearly rent &c. Upon her death, administration de bonis non was obtained by the defendant, who it was contended was not affected by the covenant of the administratrix ; but it was held, that the act of the administratrix was both a legal and equitable dis- appropriation of this property fi-om the assets of the intestate ; and that the defendant, who had entered into the receipt of the rents reserved by the underlease, had no right to do so unaffected by the acts and covenants of the administratrix ; and that the lands Avere in his hands bound by the covenant if they were so in hers (/) . But the issue of a tenant in tail Avho covenants to renew are not bound to perform his contract, for they claim per formani doni, and paramount the covenant {m). When the covenantee pays a valuable consideration, he, and all persons claiming under him, being considered as pui'chasers pro tanto, are entitled to a renewal against a person claiming under a prior voluntary conveyance from the covenantor [n). In point of liabihty, a piu'chaser of the reversion is differ- ently circumstanced at law and in equity. At law, as we have seen (o), he is subject, by virtue of the statute of 32 Hen. 8 [j)), to an action for damages for refusing to renew, whether he had notice or not of the vendor's covenant to that effect; but in equity, where relief unattainable at law is sought, and the various modifying circumstances of the case are taken into consideration, the lessee must establish (0 Hackett V. McNamara, Lloyd & Vol.6, p.356; Jom\Vol. 27,p.226.231. Goo. temp. Plunk. 283. But see Ma- (n) Fui-nival v. Crew, 3 Atk. 83 ; grane v. Archbold, 1 Dow, P. C. 107; S. C. 9 Mod. 44 G. See also Ashton v. ante, p. 709. Bretland, 9 Mod. 58; S. C. 2 Eq. Ca. (m) See Earl Brook v. Bulkeley, Ab. 57. pi. 7. 2 Ves. 498. Earl of Shelburne v. Bid- (o) Ante, p. 731-2. dulph, 4 Bro. P. C. 594; Toml. Ed. (p) 32 Hen. 8. c. 34. 742 OF THE TERM OF THE LEASE. [Part IV. his riglitj by fixing the purchaser with previous notice of his (the lessee's) claim. A purchaser with notice must renew. Thus, where the lessee of college lands granted an under- lease, and covenanted to renew his own lease, and to grant an additional term of three years to his underlessee, and after- wards obtained a renewal, but assigned over the renewed term without adding the three years ; the assignee, having notice of the underlessee's claim, was compelled to perform the covenant {q). The same equity extends against a party claiming as a jointress, or as tenant in tail, under a settlement made sub- sequently to the lease and covenant for renewal {r) ; against a purchaser from tenant in tail, who had granted a lease with such a covenant {s) ; and also against a purchaser from a tenant in tail, who had covenanted to renew a lease originally granted with a covenant for renewal by his father, tenant for life with pov/er of leasing, though the father's covenant was void as to his son, the vendor {t). So, where an estate was settled to the use of the settlor for life, remainder to his son for life, remainder to the first and other sous of the marriage of his son in tail male, with remainder to the settlor in fee, with the usual estates to trustees to preserve contingent remainders, and two inter- vening terms to trustees, and with a power of leasing to the father and son successively; and the father exceeded his power by granting leases for ninety-nine years if three persons should so long live, and covenanting, upon the death of either of the persons named, and surrender of the existing lease, to grant a new lease, and so upon the death of either of the persons to be named in any future lease or leases ; and after- wards, in pursuance of a power of sale reserved to him and his son, they sold the estate with notice ; it was held, that the purchaser was bound to perform the covenant to its full extent. It was argued that the cfl'ect of the notice could (7) Finch V. The Earl of Salisbury, land, 9 Mod. 5fi; S. C. 2 Eq. Ca. Ab. Finch, 212. 57. pi. 7. (j) Tanner, aliafl Davis, r. Flo- (s) EarlBro(jk ( .l?ulkolcy,2 Ves.498. rcncc, 1 ("li.Cu. 2.").'*. Asliton c. Bret- (0 Ibiil. Ch. VII. s. II.] renewal: — lessor's LIABILITIES IN EQUITY. 713 only be notice that tlie party had executed'a lease; and being tenant for life, the notice could only convey an idea that the lease was such as, in equity, and according to his estate, the tenant for life was enabled to make ; but, said Lord Lough- borough : — " The notice in all these cases is not the title to make it, but that such lease in fact exists; and the argument cannot apply to actual notice interposed before payment of the money and execvition of the deed. The matter was entire, and the purchaser might have retained, if he could have qua- lified his refusal. The great argument is, that as the leases would have been void as against the son and issue in tail, they cannot extend further than such an interest as Wood, the tenant for life, could give under the terms of the power. It is supposed under that, that the son would have had a right to decline performance of the covenant, and even to enter upon the tenants claiming under the leases, if they were a contravention of the power ; for they were void at law ; and that the trustees to protect the issue in tail would have had a right to enter to avoid these leases. I admit it; but upon what ground does Stibbert, the purchaser, take to himself that right ? These leases are not void : undoubtedly they are good for the life of Wood ; and if the intermediate estates should fail in his hfe, and an estate should be taken after his death under his reversion in fee, they would be good to all intents and purposes. They are not void, therefore, in them- selves, but they are voidable unquestionably, where they interfere Avith the interests of parties claiming under the con- sideration of the marriage settlement. Therefore the issue in tail may avoid them ; but how that consideration can reach a person not standing under that consideration, how it can afiPect the interest of an estate taken totally out of the settle- ment by execution of the power to sell, I cannot conceive. When that power is executed, the estate is taken out of the settlement : the only claim under the settlement is as to the price". Specific performance was ultimately decreed (m). (m) Taylor v. Stibbert, 2 Vcs. Jun. 437. Daniels v. Davison, 16 Ves. 249. 254 ; S. C. 17 Ves. 433. 744 OF THE TERM OF THE LEASE. [Part IV. All the cases just cited in which a specific performance was obtained proceeded ou the ground of notice ; and, not- withstanding an early case (a:*), in which a decree was made apparently without reference to that circumstance, it is appre- hended that equity would not compel a renewal against a purchaser who was ignorant of the existence of the covenant. Hence, should a purchaser without notice refuse to renew, the lessee must obtain redress by an action at law either against such purchaser, or the lessor. It is material, however, to mention, that as notice of the existence of a lease is notice of all its contents {y), so the possession of a tenant even under an agreement for a lease is sufiicient to put a purchaser on inquiry, and, consequently, to fix him with notice of the terms of the agreement [z); but if, at the time of the purchase, the tenant in possession be not the original lessee, but merely hold under a derivative lease, and have no knowledge of the covenant contained in the original lease, it has never been considered that it was want of due dihgence in the purchaser, which is to fix him with iraj)lied notice, if he do not pursue his inquiries through every derivative lessee, until he arrive at the person entitled to the original lease, which can alone convey to him information of the covenant {a). AVhere the renewal is sought against one who Avas a stranger to the original lease, but who has afterwards agreed to renew, the plaintiff must prove a consideration to support such agree- ment, as a mere voluntary agreement is nudum pactum, which a court of equity will not order to be specifically executed. Thus, a tenant for life granted a lease for thirty-one years, and covenanted that his son, the remainder-man, when of age, should confirm it. Soon after the son attained his majority, (:c) Richardson r. Sydenham, 2 433. Daniels r. Davison, 16 Ves. 249 j Vera. 447 ; S. C. 1 Eq. Ca. Ab. pi. 5. S. C. 17 Vcs. 433. Tlic point of notice was not expressly {z) Ibid. Hanbury v. Litchfield, 2 adverted to in Ashton v. Bretland, Myl. & Keen, G29. cited Klip. p. 742. (o) Ilaiibury r. Litchfield, 2 Myl. (//) Tanner, alias Davis, 1'. Florence, & Keen, 62,0. 633. And sec ante, p. 1 (;h. Ca. 2.if). Taylor r. .Stibl)Prt, 2 362-3. Vcs. jun. 437. Hall r. Smith, 14 Ves. Ch. VII. s. II.] renewal: — LESSOR^S LIABILITIES IN EQUITY. 745 the lessee wrote to him, stating the agreement with his father, and that in consequence of it he had laid out considerable sums; and the defendant wrote in ansAver: — "The agreement certainly docs not bind me ; but the moncj- jou have laid out certainly entitles you to a renewal from me, which I shall be happy to give you on this consideration.^' For the plaintiff it was contended, that as he had laid out money in conse- quence of the agreement, it would be a fraud not to carry it into execution ; but the court held, that the intention of lay- ing out further sums not being mentioned in the letter, the promise was nudum pactum, which equity would not perform in specie ; and that the cuxumstance of subsequent expendi- ture, as it was voluntary, could not vary the nature of the case. It was admitted, however, that had the promise to renew been founded upon an expressed intention to lay out more money, the plaintiff would have been entitled to a specific performance {b). To the same effect is a more recent case(c). Sir Charles Mill, being tenant for life, with remainder to such uses as his son (the defendant), in case he should survive his father, should appoint, with remainder to the father in tail general, with remainder to the survivor in fee, on the falling of a life named in a lease granted by the father in 1777 for ninety- nine years determinable on three lives, and in consideration of 20/., renewed that lease; with an habendum, fi*om the ex- piration thereof, two of the lives being then in existence, for the term of ninety-nine years if J. D., a new life, should so long Ua^c; and in the lease was contained a covenant for renewal in the same terms as were used in the preceding demise in 1777. A memorandum of the same date as the lease was indorsed on it in the folloAung words : " I Chai'les Mill, of &c., son and heir apparent of the within-named Sir Charles MiU, do hereby give my free consent to the grant of the (h) Robertson r. St. John, 2 Bro. Bagott, 3 Bli. V. C. N. S. 237. See C. C. 140. And see Taylor v. Dulwich also Fitzgerald v. Lord Portarlington, Hospital, 1 P. Wms. 655-6 ; S. C. 2 Jo. Ir. Exch. 431. Eq. Ca. Ab. 198. pi. 2. PilliTig v. Ay- (c) Dowling r. Mill, 1 Madd. 541. mitage, 12 Ves. 78 ; and Blakeney r. 746 OF THE TERM OF THE LEASE. [Part IV. within written indenture of lease, and the premises therein mentioned, for the term therein likewise mentioned. Wit- ness my hand the day of the date within mentioned.^' A bill being filed for a specific performance of the covenant, the question was, whether the defendant was to be considered as a party to, or bound by the lease. Sir Thomas Plumer, V.C., held, that the indorsement did not make the defendant a party to the lease; and that it was not an agreement to grant a new lease on the determination of that term, but simply an expression of the defendant's consent to a grant of the term mentioned in the lease, namely, a term for ninety-nine years determinable on three lives; and that the memorandum endorsed, being destitute of consideration, amounted merely to a voluntary gratuitous consent to the lease, and cast no obligation on the defendant to renew. So, where a lease not warranted by a power was granted by a tenant for life, containing a covenant for perpetual renewal, it was held that the remainder-man, by accepting the reserved rent for many years after he came into posses- sion, did not confirm it so far as to make the covenant for renewal binding on him [d] ; though, under the pecuhar cii'- cumstances of the case of Earl Brook v. Bulkeley (e), where a father, tenant for life, with a common power of leasing, with remainder to his son in tail, granted a lease, and cove- nanted{f) to renew, and the son, after his father's death, entered into a similar covenant^ a renewal was decreed against the son. " Though it is true," said Lord Hardwicke, " that the son is not bound by the covenant of his father, as his father exceeded his power, yet, as he Avas entitled to his father's estate, whatever assets his father left, either real or personal, would be liable to that covenant. A bill might be brought for a satisfaction out of assets, or an action for damages on the foot of that covenant ; and therefore the sou, (d) Higgins v. Rossc, .3 Bli. P. C. (/) An express covenant is biiuliug 112. at Into without any consideration. See (c) Earl Drook r. Bulkeley, 2 Ves. Sliubrlck v. Salniond, 3 Burr. 1637-9. A'M. May v. Trye, Frcem. K. B. 447. Cu.VIl. s.II.] renewal: — LESSEE^S RIGHTS IN EQUITY. 747 partly in point of honor to satisfy the covenant of his father, and partly to deliver himself from such a litigation and trouble, covenanted. If so, then I am of opinion that is a sufficient consideration to bind him.'' VII. — As to the riff Jits in equity of the lessee, and persons claimififf throuffk or under him. We now proceed to inquire, in favor of whom the contract to take a renewal runs in point of benefit in eqviity : in other words, in whose favor a specific performance will be decreed ; a branch of our subject more easily explained by first taking the converse, and showing in whose favor a specific perform- ance will not be decreed; though for an exposition of the general principles on which the court decrees a specific per- formance of an agreement for a lease the reader is referred to a previous chapter {ff) . It seems to be admitted that a party who has treated the land in an unhusbandhke manner, or been guilty of breaches of covenant Avliich confer a right of re-entry on the lessor, has no claim to this species of equitable assistance [h) ; unless the covenant broken be of such a kind as would warrant the court in granting an injunction to restrain an ejectment, should the lessor, under the clause of re-entry, (in the case of an actual lease,) try to evict the lessee for a breach. Where the assignees of a bankrupt or insolvent seek a spe- cific performance, it is, I apprehend, immaterial whether they requii'e an original lease under an agreement, or a renewed lease under a covenant or agreement for renewal ; the same rules of equity being apparently applicable to both cases. On this subject, therefore, I shall merely refer the reader to a prior chapter where the cases have already been examined at some length (?") . If the lessee be gu^ilty of fraud by wilfully concealing the fact of the cestui que vie being dead, or at the point {g) Ante, p. 6'21. (/t) Ante, p. 636. (/) Ante, p. C20, d scq. 748 OF THE TERM OF THE LEASE. [Part IV. of dissolution, and act under such concealment for his own advantage, the court will not compel the lessor to renew : on the contrary, he may take advantage of the forfeitui'e, and eject the lessee (/c). But where a lease has been actually granted at an inade- quate fine, on the fraudulent representation of the lessee that only one life on which the lease was granted had fallen, when in fact two of the cestuis que vie were dead, equity will compel him to pay the additional sum which he would have been bound to pay, had the circumstances been fairly stated to the lessor, with interest at 4 per cent. (/). Nor will the lessee be allowed the option of rescinding the contract, and holding under his old lease {m) . In the case cited, the lessee^s ignorance, at the time of the execution of the new lease, of the second cestui que vie's death did not avail him, as he was aware of the circumstance at the time of the lease being actually delivered up to him by the lessor ; for although the fraud originated after the execution of the deed, yet as before its delivery to the lessee he concealed a fact, which would have induced the lessor, had he been made acquainted with it, to withhold such delivery, the lease was in a correct sense of the word obtaiiied by fraud [n). An act of parliament (o), already referred to [jy), has also made provision for renewals of leases taken by infants, femes covert, idiots, lunatics, and persons of unsound mind. And it was enacted ((/), that in all cases where any person being under the age of twenty-one years, or a feme covert, was or should become entitled to any lease or leases made or granted, or to be made or granted, for the life or lives of one or more person or persons, or for any term of years either absolute or determinable upon the death of one or more persons or per- son, or otherwise, it should be lawful for such person under (it) Pcndrcd v. Griffith, 4 Bro. P. C. Cox, 2G0. 512 ; S. C. Toml. Ed. vol. 1, p. ."JH ; (ni) Ibid. Joiim. vol. 2G, p. .'58."5. Ellard v. Llaii- (;0 Ibid, daff, 1 IJall i) Ante, p. 529. C. C. 112 ; S. C. 1 Vcs. jun. 20G ; 2 (7) Sect. 12. Ch.VII. s.II.] RENEWAL: — LESSEE's RIGHTS IN EQUITY. 74rO the age of twenty-one years, or for his or her guardian, or other person on his behalf, and for such feme covert, or any person on her behalf, to apply to the court of Chancery in England, and the courts of equity of the counties palatine of Chester, Lancaster, and Durham {r), respectively, as to land within their respective jurisdiction, by petition or motion in a summary way ; and that, by the order and direction of the said courts respectively, such infant, or feme covert, or his guardian, or any person appointed in the place of such infant or feme covert by the said courts respectively, should and might be enabled from time to time by deed or deeds to surrender such lease or leases, and accept and take, in the place and for the benefit of such person under the age of twenty-one years, or feme covert, one or more ncAv lease or leases of the premises comprised in such lease surrendered by virtue of the act, for and during such number of lives, or for such term or terms of years determinable upon such number of lives, or for such term or terms of years absolute, as was or were mentioned or contained in the lease or leases so surrendered at the making thereof respectively, or otherwise, as the said courts should respectively direct : And {s) that in all cases where any person being lunatic should become entitled to any lease or leases made or granted, or to be made or granted, for the hfe or lives of one or more person or persons, or for any term of years either absolute, or determinable iipon the death of one or more person or per- sons, or otherwise, it should be lawful for the committee of the estate of such person to apply to the Lord Chancellor of Great Britain, being entrusted by virtue of the King^s sign manual with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind, by petition or motion in a summary way; and that, by the order and direction of the said Lord Chancellor so entrusted, such committee should and might be enabled (r) And also of the courts of Great 1 W. 4, c. 70. s. 14. Session of the principality of Wales (s) Sect. 13. before their abolition by 1 1 Geo. 4 & 750 OF THE TERM OF THE LEASE. [Part IV. from time to time, by deed or deeds, in the place of such lunatic, to surrender such lease or leases, and accept and take, in the name and for the benefit of such lunatic, one or more new lease or leases of the premises comprised in such lease or leases surrendered by virtue of the act, for and during such number of lives, or for such term or terms of years absolute, or determinable as therein aforesaid, as was or were mentioned or contained in the lease or leases so surrendered at the making thereof respectively, or otherwise, as the said Lord Chancellor so entrusted should direct : And {t) that every sum of money and other consideration paid by any guardian, trustee, committee, or other person, as a fine, premium, or income, or in the nature of a fine, pre- mium, or income, for the renewal of any such lease, and all reasonable charges incident thereto, shoidd be paid out of the estate or effects of the infant or lunatic for whose benefit the lease should be renewed, or should be a charge upon the leasehold premises, together with interest for the same, as the said courts and Lord Chancellor so entrusted respectively should direct and determine; and that, as to leases to be made upon surrenders by femes covert, unless the fine or considera- tion of such lease and the reasonable charges should be other- wise paid or secured, the same together with interest should be a charge upon such leasehold premises for the benefit of the person who should advance the same : And fm'thcr («), that every lease to be renewed as aforesaid should operate and be to the same uses, and be liable to the same trusts, charges, incumbrances, dispositions, devises, and conditions, as the lease to be from time to time surrendered was or would have been subject to in case such surrender had not been made. The powers given by the act to the court of Chancery and the Lord Chancellor may be exercised by other judicial dig- nitaries, as we have already had occasion to notice {a,'). (f) Sect. M. (•'<") Sec ante, p. 73!), sections of the (m) Sect. 1 5. act 36 ct scq. Cu.VlI. s.ll.] renewal: LESSEE^S LACHES. 751 If a lease be vested in a trustee for the lunatic, tlic court will order a renewal to be taken in the trustee^s name, without changing the estate; but if the lease be in the huiatic liim- self, and only taken out of liim by the act of the court, the new lease ought to be made to the lunatic himself, and not to his committee {y). Renewals are compellable by persons having fiduciary, qualified, or partial interests in the premises, as trustees, executors, mortgagees, tenants for life, &c. [z) . It is to be observed, that trustees have not an arbitrary and capricious power with respect to the renewal of leases. They are bound to renew, provided the rencAval will be beneficial to the cestuis que trust («). Such an arbitrary and capricious power may be given {b) ; but it is not conferred by a settle- ment requiring them to renew " as occasion may requii'c, and as they may think proper"; by which is to be understood, as they may think proper for the interests of their cestuis que trust. The exercise of a power of renewal does, indeed, require a discretion, for otherwise a trustee would be bound to comply with any unreasonable demands on the part of the lessor; but not an arbitrary and capricious discretion (c). Executors, and guardians, for this purpose, are considered as trustees. VIII. — As to the relief given in equity against the tenant's laches in applying for a renewal. The same strict compliance with the conditions on which a renewal is to be obtained at law. is not requisite in equity ; the object of the latter branch of the judicature being a sub- (y) Ex parte Jermyn, 3 Swanst. grave, 3 Madd. 491 ; S. C, nom. Lord 131, n. (rt). The 13tli sect, of 11 Geo. Milsington v. Lord Portmore, 5 Madd. 4 & 1 W. 4. c. G5, contains nearly the 471. Lord Montford v. Lord Cadogan, same words as 29 Geo. 2. c. 31, the 17 Ves. 485; S. C, on appeal, 19 Ves. act in force when this decision was 635 ; 2 Mcriv. 3. Colcgi-avc v. Manby, made. C Madd. 72 ; S. C. 2 Russ. 238. (2) See further on this subject, post, (/>) See an example in Milles v. p. 762. ~ Milles, 6 Ves. 761. (a) Loi'd Milsington v. Lord Mul- (c) See cases cited in note (a) sup. 752 OP THE TERM OF THE LEASE. [Part IV. stantial performance of the contract^ as far as circumstances will permit. And, therefore, where the plaintiff can show that he has done everything in his power, but, by unavoidable accident, by fraud, surprise, or ignorance, not wilful, has been prevented from executing his covenant literally, the court, on his making compensation, will interpose in his favor [d] . The case of Rawstorne v. Bentley (e) affords an example. Certain premises held of the manor of Highbury, in which manor no lease could be granted of copyhold lands holden thereof for more than twenty-one years, were there demised for twenty-one years, at a rent of 1/. per annum ; and the lessor covenanted, before the end of the term to renew for a terra of twenty-one years, and to rencAv from the end of such term, for twenty-one, twenty-one, and fifteen years more, making in the whole a term of ninety-nine years, at the said rent of 11. The plaintiff entered, and expended upwards of 700/. in building on the premises ; but, at the expiration of the first term of twenty-one years, in 1775, an arrear of rent being due, and no application being made for a renewal, possession of the premises was obtained by the lessor's executor under an ejectment. The plaintiff first demanded a renewal in 1788, and some time afterwards filed his bill, accounting for the previous delay by showing that he had been abroad under difficulties, and that a commission issued against him in 1781, which was afterwards superseded in 1787. The court consi- dered that the lease was originally intended to be for ninety- nine years, but that the custom of the manor was an obstacle (cZ) Eaton v. Lyon, 3 Ves. 692. S. C. 1 Vern. & Scriv. 166. Mac Rawstorne v. Bentley, 4 Bro. C. C. Alpine v. Swift, 1 Ball & Beat. 285. 415. Kane r. Hamilton, 1 Ridgew. Firman v. Lord Ormonde, 1 Beat. 347. P. C. lBO-6. Batcman v. Murray, 1 351. Lord Erskinc considered this Ridgew. P. C. 187, and n. p. 201; S. C. rule as too limited ; Sanders v. Pope, Bro. P. C. Toml. Ed. vol. 5, p. 20. 12 Ves. 282. And see the remarks of Sweet V. Anderson, 2 Bro. P. C. J 30 ; L. C. B. Ricliards in Maxwell v. Ward, S. C. Toml. Ed. vol. 2, p. 257. Earl 11 Price, 16-17 ; and Statham v. The of RoHS V. Worsopp, 4 Bro. P. C. 4 1 1 ; Trustees of the Liverpool Docks, 3 Y o. S. C. Toml. Ed. vol. l,p. 281. Charles & Jcrv. 5G5. V. Rowley, 6 Bro. P. C. 73 ; S. C. (e) Rawstorne v. Bentley, 4 Bro. Toml. Ed. vol. 2, p. 485. Magrath v. C. C. 415. Lord Muskerry, 1 Ridgew. P. C. 46.0 ; Cii. VII. s. II.] RKNEWAL: lessee's LACHES. 753 to the grant of a term of tliat duration ; and, under all the circumstances, the plaintiti' was deemed to be a proper subject for equitable reKef. This species of equity was formerly carried to a length that became in some degree alarming. The court got into the habit of construing terms and conditions of covenants as being only in terrorem; but in modern times that practice has been much restrained ; and it is now settled, that a party cannot avail himself of equitable circumstances, nnless he can show that there has been no fraud, wilful neglect, or misconduct, on his own part (/) ; and that the case is one which admits of compensation {(/) . Accordingly, where a lessor covenanted for renewal on the request of the lessee within three months before the expira* tion of the then granted lease, and the lessee, being still in possession, neglected to apply for a renewal till within a month of its expiration, and the defendant in the meantime had agreed to demise the premises to other persons, Lord Hardwicke was clearly of opinion that the omission to apply at the time agreed on was a bai* to relief; observing, that if a lessee w^ere relievable in such a case, he knew not where the court could stop; it wotQd be saying that the lessee should be loose, and the lessor bound (A). "It may be observed," adds Mr. Fonblanque, " that the case referred to was a lease of a colliery, which, fi'om the nature of the property, might have influenced the judgment of the court; and the Chancellor certainly does appear in the note which I have of the case to have adverted to such circumstance (i) ; but his lordship seems to have rested his decision upon general j)rinciples, and not upon the particular circumstances of the case." (/) Eaton V. Lyon, 3 Ves. 693. Ball & Beat. 285. Finnan v. Lord Pendred v. Griffith, 4 Bro. P. C. 512; Ormonde, 1 Beat. 347. Kane v. Ha- S. C. Toml. Ed. vol. 1, p. 214. Davis milton, 1 Ridgew. P. C. 180-6. V. Oliver, 1 Ridgew. P. C. 1. Magrath (A) Allen f. Hilton, 1 Foubl.Tr. Eq. V. Lord Muskerry, 1 Ridgew. P. C. 432, n. 5th edit.'; cited in The City of 469; S. C. 1 Vern. & Scriv. 166. London r. Mitford, 14 Ves, 50-58. Walker u Jeffreys, 1 Hare, 341. (/) See also 14 Ves. 58. {(f) Ibid. Mac Alpine v. Swift, 1 VOL. I. 3 c 754 OF THE TERM OF THE LEASE. [Part IV. The case of The City of London v. Mitford (k), being also a demise for years, with a covenant for renewal at the plain- tiflF's request within one month before the end of the term, establishes the same doctrine. So, where a lease was granted for ninety-nine years, if thi'ee persons or either of them should so long live, with a covenant on the lessor's part to renew, at the lessee's request, on the dropping of the first life ; the lessee's neglect to apply for renewal till the decease of the third life was held to ex- tinguish his right to a renewal in equity, as well as at law (/) . So, where a lease was granted for lives absolutely, and the tenant ha^dng the option of renewing at the decease of the first of three lives on which the lease was held, omitted to apply for the purpose until after the death of a second life, the court refused its assistance (m) . Another example is aff'orded by Eaton v. Lyon (w), a case expressly determined on the same principle as that last quoted. George HockenhuU demised certain premises to Daniel and Stanley Orred for the lives of three persons, and the life of the survivor, at a yearly rent of 10/.; and the lessees cove- nanted that they would within six months next after the decease of any of the said three persons give notice to the lessor of the decease of such person or persons, and would, ■within the further space of six months, surrender that demise, and accept of a new lease of the premises, and therein add one or two life or lives to the life or lives then in being, as the case should require ; paying for the same, if but one life to be added, the sum of 5/.; if two, 10/. And the lessor covenanted that he would, at the decease of any of the life or lives aforesaid, at the request of the lessees, or of the sui'vivor, &c., grant a new lease of the premises, and add one or more (Jc) The City of London v. Mitford, Bro. C. C. 529. Harries v. Bryant, 14 Ves. 41. 4 Russ. fif). (0 Baynham v. Guy'a Hospital, 3 (n) Eaton v. Lyon, 3 Vcs. COO. But Ves. 2.0.5. And sec Rubcry v. Jcrvoise, see this case distuif^uishcd from Bayley 1 Term Rep. 22.9. v. The Corporation of Leominster, (7;i) Bayley v. Tlie Corporation of in Maxwell r. Ward, 13 I'ri. 679 ; Leominster, 1 Ves. jun. 47C ; S. C. 3 1 McClcl. 465. Ch. VII. s. II.] renewal: — lessee's LACHES. 755 life or lives in the room of the life or lives so dying. In 1782, one of the cestuis que vie died; and in December, 1782, being within six months after sneh death, one Jackson, by the dii'ection of Helen Orred, the party then entitled to the lease, went to the house of Daniel Daidby for the purpose of giving notice of such death to John Hockenhull, then being the reversioner, residing in Daulby's house, and to apply for a fresh life to be added to the lease. Jackson did not see Hockenhull, being informed that he was very ill in bed, and could not speak so as to be understood; nor did he desire Daulby to inform him of his (Jackson's) business. Hocken- hull died on the 20th December, 1782. Helen OiTcd died in 1787, without adopting any further steps for procuiing a re- newal. Under these circumstances, the Master of the Rolls, considering that, according to the fair construction of the covenant, notice should have been given on the expiration of the first life ; and that as Helen Orred had neglected to give such notice within a reasonable time after Hockenhuirs death, she had forfeited her right of renewal. The communication with Daulby was held to be insufficient for the pm'pose ; for, though Hockenhull was too ill to be seen, there was no reason why he should not have left the notice ; or given it to the person who was entitled upon his death. A more recent case (o), founded on the decision in Eaton V. Lyon, remains to be noticed. The defendant in 1792 demised the premises in question to E. M. Brown for ninety- nine years, if he (the lessee), E. Candler, and E. P. Maxwell, or any of them, should so long live, subject to a covenant, that if the said E. M. Brown, his executors, &c., should at any time or times thereafter upon the death of any or either of the said life or lives be desirous to renew, by adding a new life or lives in the room of the person or persons so dying, and of such desire should give notice in vriiting to the defend- ant, his heks, &c., within one year next after the death of any or either of the said person or persons for whose life or (o) Maxwell v. Ward 11 Pri. 3 ; S. C. ISPri. G74 ; 1 M'Clel. 4.50. 3 C 2 756 OF THE TERM OF THE LEASE, [Part IV. lives the said premises were then hekl^ then the defendant, his heirs, &c., wouhl at the costs of E. M. Brown, his execu- tors, &c., at any time within the space of one year next after the death of such life or lives, execute to the said E. M. Brown, his executors, &c., a new lease of the premises for a new term of ninety-nine years, to be determinable on the death or deaths of such said life or lives thereinbefore men- tioned, as should be then in being, and the life or lives of such other person or persons as the said E. M. Brown, or his executors, &c., should nominate, in the room of the Hfe or lives so dying, under the like rents and covenants, &c., and so toties quoties as any life or lives should die. The lessee, the first life, died in 1803; but no renewal being called for until 1808, the defendant then refused an application for that purpose. The second of the lives dropped in August, 1817; and the third, in February, 1818, both within a twelvemonth; and on the 6th of April, 1818, a formal notice of an intention to renew was delivered by the plaintiffs to the defendant. The first question was, whether, as a proper application had not been made on the dropping of the first life, but as such apphcation had been duly made on the falling of the second, the plaintiffs were entitled to a renewal for two new lives ; that is, whether the demand made within the year after the death of the second life, gave them a right to substitute another life in lieu of the first. On this point the court gave a decided opinion, founded on the principle of the construc- tion of a covenant being the same in equity as at law, that the requisition made after the expiration of the second life did not entitle the plaintiffs to a renewal for the first. The next question, whether the parties, having complied with the conditions of the covenant on the determination of the second life, and of the third also, were in a situation to insist on a renewal of the second and third lives, notwithstanding their omission on the dropping of the first, was considered to have been already determined by the case of Eaton v. Lyon. The Lord Chief Baron (Alexander) declared himself unable to discover any broad, clear, intelligible ground upon which Ch. VII. s. II.] renewal: — lessee's LACHES. 757 lie could distinguish the point determined in it from the pre- sent; and^ after comparing the particular words and expres- sions in the two cases, said, that he should feel himself bound to dismiss the bill ; but regarding the question as one of very great nicety and difficulty, he gave the plaintiffs the advan- tage of retaining the bill for twelve months, to enable them to take the opinion of a court of law, by bringing an action for the breach of covenant, or by adopting any other course, other than an action of ejectment, as they might be advised. If no action were brought within that period, the bill was to stand dismissed, but without costs. In the case of M'Alpine v. Swift (p), where a lessee for a specified number of years, ending in November, with the benefit of a covenant for renewal at the expiration of the term, for three hves, provided he nominated the lives within the last six months of the term, omitted to do so till the January following, the court refused to relieve him ; and adverted to the impossibility of calculating the amount of injury the lessor might have sustained by the lives not being named within the time agreed on, as the lives named in November might have expired by January. But in a later case in Ireland {q), somewhat similar in its circumstances, where the same difficulty of making compen- sation was urged in argument against the plaintiff^s right to a renewal. Hart, C, declared that he saw no difficulty ; for the duration of human life with its casualties was the sub- (p) M' Alpine v. Swift, 1 BaU & Harrison v. Prendergast, cited, I Beat. 285. And see Kane ?;. Hamilton, Ridgew. P. C. 191 ; S. C. Wallis, by 1 Ridgew. P. C. 180-6. Lyne, 188, n. Kane v. Hamilton, 1 (q) Firman v. Lord Ormonde, 1 Ridgew. P. C. 180-3-5. Boyle v. Ly- Beat. .347. And see Sweet v. Auder- saght, 1 Ridgew. P. C. 384.404; S. C. son, 2 Bro. P. C. 430 ; S. C. Toml. 1 Vern. & Scriv. 135. O'Neil v. Ed. vol. 2, p. 256. In Ireland it has Jones, 1 Ridgew. P. C. 170-4. Sweet long been the practice in case of the v. Anderson, 2 Bro. P. C. 430 ; S. C. tenant's neglect to renew, to calculate Toml. Ed. vol. 2, p. 256. Keating v. the value of a life at seven yeai's' pur- Sparrow, I Ball & Beat. 367. 373. chase, and to compensate the lessor by O'Hara v. Bourke, Wallis, by Lyne, tlie assessment of septennial fines, with 1 9 1 , u. Shore v. Lord Darnley, Wallip, interest for the delay. Bateman v. by Lyne, 1 92, n. Murray, 1 Ridgew. P. C. 187. 196-7. 758 OF THE TERM OF THE LEASE. [Tart IV ject of daily calculation, acted on in every court of justice ; and that, by appljdng those calculations to the subject in question, the result would ascertain the compensation. In tliis case the tenant, ha\ing been misled by the lessor's stewai'd, was relieved against an omission to nominate a life in due time. Where a party contracted to grant another a lease for lives renewable for ever, and gave him possession accordingly, and the tenant agreed to lay out a certain sum on the premises within three years, but died within that period, leaving an infant heir, who did not attain his majority till nineteen years afterwards, and no one came forward in the interval on behalf of the infant either to take the lease, or to defray the necessary expenditure, it was held that the infant could not take advantage of his infancy, to excuse the non-assertion of his right under the agreement, the immediate assertion of his right, and performance of his part of the contract, being essen- tial to the interest of the other party ; and that if the con- tract were to continue executory during the whole minority, it would not be giving the landlord the benefit of that in consideration of which he stipulated to grant the lease {r). Gross laches in applying for a renewal will not be relieved against in equity, although the property be brought into settlement [s). If a lessee for lives, with a covenant for perpetual renewal, underlet with a covenant for i)erpetual renewal on the drop- ping of lives, proAided the lives named by the underlessee be the same as tliose from time to time named by the mesne lessor ; and with a further provision, that his covenant shall be void unless the underlessee, within twelve months after the death of a nominee, nominate a new life, he cannot claim a forfeitui'c of the underlessee's right of renewal on the ground of laches, if he himself, by omitting to obtain a renewal from tlic head landlord, has never been in a position to call upon the underlessee to take a renewal {I). And on renewal of the head (/•) Griffin r. Grifnn, 1 Hdw. 6. Lof. MKi ; S. C. 4 Dru. & War. 240. ■.'jl,2. (') Fitzgerald r. O'CoimcU, 1 Jo. & («) Towuloy V. Bond, '2 Con. & Law. La Ton. 1 :i.'i. Cu. VII. s. II.] renewal: — lessee's laches. 759 lease in such a case, it is the duty of the lessee to give notice of it to the underlessec before he can proceed against him by- ejectment for a forfeiture consequent on neglect to call for a renewal (m). An omission to give notice in writing, though the covenant prescribe that mode, will not entail on the lessee the penal- ties of laches, if it can be shewn that a fair intimation of an intention to renew has been given in any other way {x) . If, in an underlease of renewable leaseholds, the under- lessee's right of renewal be made forfeitable on non-payment to his lessor, within three months after he shall have obtained a renewal, and after notice thereof shall have been given to the underlessec, of a proportionable part of the fine, costs, and expenses; to disentitle the underlessec to a renewal, the service of the notice must be clearly proved, so as to satisfy the mind of the court that the intention of the lessor to insist on the forfeiture, and the information as to the facts which were peculiarly within his knowledge, were fully brought home to the tenant. The court cannot establish a forfeiture on suspicions (y). Ignorance is considered wilful, where a person neglects the means of information which ordinary prudence would suggest {z) ; and it is clear that ignorance of a man's own rights, conferred by an instrument actually in his possession or power, where the other party is consequently innocent of concealment, or of any conduct contributing to keep him ignorant of its contents, cannot excuse the performance of any conditions imposed on the person claiming under the instrument {a) . And accident is not unavoidable which reasonable diligence might have prevented. In illustration of these two princi- ples may be cited the late case of Harries v. Bryant {b). The plaintiff, having taken an assignment of a lease for tliree (m) Wallace v. Fatten, 1 Irish Eq. Lloyd & Goo. 392, temp. Pluuk. Rep. 338. (z) Han-ies v. Bryant, 4 Russ. 89. (x) MaxweU V. Ward, 11 Pri. 16. («) Maxwell v. Ward, 11 Pri. 3 ; (y) Lawless v. Grogan, 1 Dru. & S. C. 13 Pri. 674-6 ; 1 M'Clel. 458. Wal. 53. And see John v. Armstrong, (h) Han-ics v. Bryant, 4 Russ. 89. 760 OF THE TERM OF THE LEASE, [Pakt IV. lives, wliicli contained a covenant for renewal on the falling of eacli life, provided application were made for renewal witliin six months after the life dropped, alloAved almost ten months to elapse between the death of the first cestui que vie and his application for renewal; and excused his delay by alleging that he neither knew that the deceased person was the life named in the lease, nor that he was dead, until after the expiration of the six months ; but the court dismissed his bill with costs ; as ordinary prudence would have suggested, and reasonable diligence would have required, that he should ascertain who the lives were, and take measures to secure early information of their deaths. All this he appeared to have neglected ; his ignorance, therefore, was wilful, and the accident not unavoidable. If the reversion, subject to a lease with a covenant for per- petual renewal, become vested in two individuals in different rights, and the lessee, after a refusal by them to renew, and a bill filed by him, but not pursued, accept from one of them a fresh lease of a moiety of the premises, with the same stipulations and covenant for perpetual renewal as were con- tained in the demise of the entirety, it may perhaps be doubtful whether the acceptance of the new lease does not amount to an abandonment of the right of renewal as to the other moiety. Lord Eldon said, that he did not know that upon that circumstance alone the court would refuse execution of the covenant [i.e., as to the other moiety under the original covenant for renewal]; but that it was a strong cii'cumstance; for the interest under that lease was very different from a lease of the whole at a single rent, from a person representing the whole estate ; especially as there was pro tanto a derelic- tion of the right to a lease of the whole ; and the demand that was made by suit Avas not pursued [c). As a general rule, the costs of obtaining relief must fall on the plaintiff [d], (<:) The City of Loiulon v. Mitford, v. The Marquis of Waterford, 1 Scho. 14 Ves. 41, 57. & Lef. 451, n. Barrett v. Pearson, 2 {d) Finnan v. Loi'd Ormonde, 1 Ball &. Beat. 189. Beat. '547. .'552. Dean, or Fn^eman, Cu. VJI. s. II.] renewal: lessee's LACHES. 761 The greater latitude said to have been allowed in Ireland in cases of laches^ founded on what has been termed, a local equity, or the old equity of the kin(/dom{e), received a check in the English House of Lords when the cases of Kane v. Hamil- ton (/), and Bateman v. Murray [g], came before them in their aj^pellate capacity. The alarm created by the decision of Bateman v. Murray occasioned the statute 19 & 20 Geo. 3. c. 30, commonly called the Irish Tenantry Act, by which, after reciting that great parts of the lands in Ireland were held under leases for lives with covenants for perpetual renewals upon payment of certain fines at the times therein specified, and that from accidents such tenants frequently neglected to pay or tender such fines within the times pre- scribed, it was provided, that courts of equity, upon adequate compensation being made, should relieve such tenants against such lapse of time, if no circumstances of fraud should be proved against them, unless it should be proved to the satis- faction of such courts that the landlord had demanded such fines, and that the same had been refused or neglected to be paid within a reasonable time after such demand; thus reviving the old equity referred to. The cases of Boyle v. Lysaght {h), and Magrane v. Archbold (i), contain a succinct history of renewable leases in Ireland, and of the principles on which renewals have been decreed. For the construction of the Tenantry Act, which is not within the scope of these pages, the reader may refer to the cases collected in the note [k). (e) See Sweet v. Anderson, 2 Bro. (/t) Boyle v. Lysaght, sup. P. C. 430 ; S. C. Toml. Ed. vol. 2, p. (0 Magrane v. Archbold, 1 Dow, 256. Earl of Ross v. Worsopp, 4 Bro. P. C. 107. 109. See also Magrath v. P. C. 411 ; S. C. Toml. Ed. vol. 1, p. Muskerry, 1 Ridgew. P. C. 469; S. C. 281. O'Neil v. Jones, 1 Ridgew. P. C. 1 Vern. & Scriv. 166. 170. Boyle v. Lysaght, 1 Ridgew. (k) Boyle v. Lysaght, sup. Deane, P. C. 384. 405 ; S. C. 1 Vern. & Scriv. or Freeman, v. The Marquis of Water- 135. ford,cited, 1 Scho. & Lef. 451, n. Jack- (/) Kane v. Hamilton, Wallis, by son r. Saunders, 1 Scho. & Lef. 443. Lyne, 172 ; S. C. 1 Ridgew. P. C. 180. Keatuig r. Sparrow, 1 Ball & Beat. (g) Murray v. Bateman, Wallis, l>y 367. Jessop v. King, 2 Ball & Beat. Lyne, 18t. Bateman v. Miu-ray, 1 81. Wallace r. Patten, 1 Irish Eq. Rep. Ridgew. P. C. 187. 338. Trant v. Dwyer, 1 Dow & Cla. 762 OF THE TERM OF THE LEASE. [Part IV. Of course, the lessor may waive his right to a forfeiture by laches of the tenant's right to renew ; and such waiver may be absolute, or conditional, as on immediate payment of arrears of rent and the renewal fines : and, in the latter case, the tenant's failure to comply with the terms will close his right to equitable relief (/) . Section III. — As to trusts being grafts on renewed TERM. A most important and salutary branch of the jurisdiction of equity is called into ojieration to prevent trustees of, and parties ha\'ing limited or qualified interests in, a renewable leasehold, from deriving an unfair advantage from their pecu- liar character or situation. No point of law can be better established than that a trustee renewing a lease taken by him in that capacity shall hold the renewal for the benefit of the cestuis que trust [m] . And where a testator devised certain leasehold premises to his daughter for life, for her sole and separate use, with remain- ders over, without appointing trustees, and the daughter's husband, representing himself to be entitled to the privilege 125. Vcsoy V. Bodkin, 1 Dow & Cla. tlielly, 2 Dick. 480. Griffin v. Griffin, 456. John v. Armstrong, Lloyd & 1 Scho. & Lef. 352. Fitz-gibbon v. Goo. 392, temp. Plunk. Baldwin v. Scanlan, 1 Dow, P. C. 20 1. Pickering Bridges, Lloyd & Goo. 408, temp. ». Vowles, 1 Bro. C. C. 1 97-8. Night- Plimk. Butler v. Lord Portai'lington, ingale v. Lawson, 1 Bro. C. C. 440. 1 Con. & Law. 1 ; S. C. 4 Ir. Eq. Rep. 1 . Ex parte Phelps, 9 Mod. 357. Stone O'Reilly v. Featherston, 2 Dow & Cla. v. Thecd, 2 Bro. C. C. 247-8. Killick 39. Sec likewise 1 & 2 Vict. c. 62. v. Flexney, 4 Bro. C. C. 101. Lord v. (I) Townley V. Bond, 2 Con. & Law. Holmes, cited, Ambl. 719. Keech v. 393; S. C. 4 Dim. & War. 240. Sandford, (sometimes called the Rum- (m) Holt V. Holt, 1 Ch. Ca. 190. ford Market Case,) Sel. Ca. in Ch. 6 1 ; Anon. Mod. 57, case 68. DaiTcll v. S. C. 2 Eq. Ca. Ab. 741. pi. 7. And Wliitchot, 2 Rep. in Cli. 59. Edwards see Vcrney r. Vomcy, 1 Ves. 428-9 ; r. Lewis, 3 Atk. 538. Rawe v. Clii- S. C. Ambl. 88. Pierson v. Shore, Chester, 2 Ambl. 715. 719; S. C. 1 1 Atk. 480. Nesbitt v. Tredennick, Bro. C.C. by Belt, 1.98, n.; S.C., noHi. 1 Ball & Beat. 29.46. Maunscll i'. Broiiiriclfl r. Cliieiioster, Raw ?■. l)u- O'Brien, Jones, Ir. Exch. 176. Cn. Vll. s.lll.] renewal: — GRAFTS OF TRUSTS. 703 of renewal under the will of the former tenant, obtained a grant of a reversionary term, his representatives were decreed to hold it for the benefit of the persons entitled under the will (?i). To such a length has this doctrine been carried, that where a trustee procured a new lease, it being perfectly clear that the lessor would never have renewed for the benefit of the cestui que trust, the rule was still adhered to (o) . In a late case before the House of Lords (j)), it appeared that certain premises, in settlement, were publicly advertised to be let, the former lease having expired; and that the trustee obtained a lease to himself, having expressly disclaimed, when he made proposals, all intention of taking in the character of trustee; but notAvithstanding this precaution, and subsequent unimpeached possession for about eighteen years, he was held to have renewed for the cestui que trust, and his representa- tive was ordered to account accordingly. But if a trustee obtain a renewal of a lease, the subject of his trust, and additional lands be demised to him by the same instrument, at an entire rent; the cestui que trust will be entitled to the benefit of the renewal only to the extent of the original lands {q). So, if executors renew in their own names, for their own benefit, they shall hold the renewed lease, as part of the testa- mentary estate (r) . And the same rule was extended to a case where a stranger wrongfully interfered in the afiiiirs of a deceased testator, and procured a renewal in his own favor. (n) Parker v. Brooke, 9 Ves. 583. (»•) Holt v. Holt, 1 Ch. Ca. 190. (o) Keech v. Saudford, or The Rum- Anou. 2 Ch. Ca. 207. Rawe v. Chi- ford Market case, Sel. Ca. m Ch. 61 ; Chester, Ambl. 715 ; S. C. 1 Bro.C. C. S. C. 2 Ell. Ca. Ab. 741. pi. 7. Fitz- by Belt, 198, n. ; S. C, nom. Brom- gibbou V. Scanlan, 1 Dow, 1'. C, 269. field v. Chichester, or Raw r. Duthelly, Ex parte Andrews — Re Emett, 1 Madd. 2 Dick. 480. Luckin v. Rush worth, 575-6. Ex parte James, 8 Ves. 337. Rep. temp. Finch, 392 ; S. C. 2 Rep. 345. in Ch. 11-3, 2nd edit. Pickering v. (p) Fitz-gibbon v. Scanlan, 1 Dow, Yowles, 1 Bro. C. C. 197-8. Abueyv. P. C. 264. Miller, 2 Atk. 597. Moody v. Mat- (2) Aclieson I'. Fair, 2 Con. <5c Law. thews, 7 Ves. 174. James v. Dean, 208 ; S."C. 3 Dru, & War. 512. 11 Ves. 383. 764 OF THE TERM OF THE LEASE. [Part IV. having coerced the actual executor to surrender a subsisting lease, part of the testator's estate (s) . If a mortgagee obtain a renewal, the new lease will be subject to the trusts and limitations of the former one {t), notwithstanding the term comprised in the mortgage be expired before the renewal be obtained (m) . So, on the other hand, if a lessee mortgage, and renew, the new lease will be a graft on the old one for the mortgagee's benefit (a?) . On the same principle, if one partner privately obtain in his own name, and for his own individual benefit, a lease of the premises where the joint trade is carried on, the renewed term will be held in trust for the partnership (y). In like manner, if one interested in a lease jointly with another, though not in partnership, renew in his own name, he is a trustee, by implication for the benefit of the other to the extent of his share (z). If the other be an infant, and the renewed lease prove advantageous, he is entitled to his share of the advantage; but if not beneficial, the trustee must sustain the loss. This is the peculiar pri Allege of the unpro- tected condition of an infant. The infant, however, claiming (s) Mulvany v. Dillon, 1 Ball & such a provision, the mortgagor is not Beat. 409. Griffin v. Griffin, 1 Scho. compellable to renew ; but if the & Lef. 352. mortgagee obtain a renewal, which it (<) Darrell v. Whitchot, 2 Rep. in is competent to him to do, the amomit Ch. 59. Tlawe v. Chichester ; Brom- of the fines and expenses will be added field V. Chiehestor ; or Raw v. Du- to the principal of the mortgage, and thelly, sup. Luckin v. Rushworth, Rep. carry interest. Manlove v. Bale, 2 temp. Finch, 392 ; S. C. 2 Rep. in Ch. Vern. 84. Laconv. Mertins, 3 Atk. 4; 1 1 3, 2nd edit. S. C. nom. Lucan v. Mertins, 1 Wils. (m) Rakcstraw v. Brewer, 2 P. 34. Hamilton v. Denny, 1 Ball & Wms. 511. And see Nesbitt i: Tre- Beat. 199. 202. dennick, 1 Ball 0. {l) Evans v. Walshe, sup. Revell (i) Revell V. Hussey, 2 Ball & Beat. v. llussey, sup. 280. Ch. VIT. s. v.] renewal: — FINES AND CONTRIBUTION'. 783 papng dm'ing that demise and every renewal thereof a cer- tain rentj and covenanted that he wonld from time to time and at all times thereafter, as often as he or they should obtain a renewal from the archbishop of the town-lands of B., whereof the premises thereby demised were part, execute unto the underlessec a new lease of the thereby demised premises, for such term of years (one less only excepted) as should be obtained from the archbishop, at and under the yearly rent and fees, and subject to the like clauses, cove- nants, and agreements, therein contained ; he the underlessee paying a proportion of whatever fees, fines, rise-rent, lease- money, and expenses, the said lessee should pay to the arch- bishop for renewal of his grand lease ; the said several and respective proportions to be at such rate as 23 acres (the quantity contained in the underlease) bore to 350 acres (the number contained in the grand lease); the said fines, &c., so to be ascertained and adjusted, to be paid by the underlessee in one month after notice given in writing by the lessee of the amount and particulars thereof; or, in failure of payment, that it should be lawful for the lessee to enter upon the demised premises, and distrain for the same as for non-pay- ment of rent ; and, further, that he the lessee should not at any time or times thereafter, under any pretence or pretext whatever, neglect, omit, or leave out the premises thereby demised, or any part thereof, in any future or subsequent renewal of his grand lease Avitli the see of Armagh; but should from time to time continue to renew the same with his other lands as theretofore ; it being the true intent and meaning of that indenture and of the parties thereto, that, upon the regular payment of the said yearly rent, fees, fines and expenses, and the due performance of the several clauses, covenants, and conditions, contained therein, the said under- lessee should, under and by %-irtue of such rencAval so to be had in manner as aforesaid, have a durable and permanent interest in the premises. The lessee ha\Ting renewed the grand Tease, filed his bill to compel the underlessee to take a renewal of the premises comprised in the underlease, and to 78-1 OF THE TERM OF THE LEASE. [Part IV. pay liis proportion of the fines. The defendant resisted performance, on the ground that the lessee was under no absolute obligation to procure a new lease, and grant a. renewal, and, therefore, that it was optional with him, the defendant, to accept of a renewal or not. The court, how- ever, considered it clear, in point of construction, that the defendant was bound to take the renewal ; and, in point of equity, that the agreement was not unreasonable nor against conscience (m). Where a party (the plaintiff), being possessed of certain lands for a term of years under a lease from the Archbishop of Dublin, demised twenty-one acres, parcel of the lands, to another (the defendant) for twenty-one years, and covenanted that as often as he should obtain a renewal of the lease under which he held the premises thereby demised, and the said other premises, upon the defendant's paying all arrears of his rent, and one full third-part of such fine as the plaintiff should pay for obtaining such renewal of the said lease under which he the said plaintiff then held the premises thereby demised, and the other parts, he would execute to the defendant a renewal of his term ; and the defendant contended that he was bound to pay his fine in proportion to the quantity of the land demised to him, and not one-third of the whole fine paid by his lessor to the archbishop ; the court held, that the lease expressly provided, that the tenant should pay one-third of the whole of the renewal fine ; for it was that he should contribute one-third of the fine paid by the plaintiff to the archbishop for those and other lands comprised in the original lease; and that there was no distinct or separate fine paid to the archbishop for the lands comprised in the defendant's lease {n) . But where a lessee underlet for a term of eighteen years, and covenanted, at the end of that term granted, to grant a new lease of the premises for a further term which would expire (ill) CuiT/ V. Stank'v, 1 Hay. & Jo. (n) Lord Friiiikfort v. Thorjie, 2 Ball & Beat. .".72. Ch. VIl.S. v.] renewal: FINES AND CONTRIIJUTION. 7'^5 at Christmas 1831, aud the underlessce covcuauted that he would from time to time during the eighteen years pay such part of the fine and fees which upon every renewal of the original lease should be payal)lc by his lessor in respect of the premises underlet, and the mesne lessor renewed for a period exceeding the new interest covenanted to be granted to the underlessee, it was held that the underlessce was not bound to pay a proportion of the fine in respect of the whole of the renewed term granted to the mesne lessor, but such part of it only as was commensurate with his interest in the premises (o) . So, where a lessee, (A), under a dean aud chapter for twenty-one years, renewable every seven, underlet to another, (B), and covenanted, within two months after the dean and chapter should have renewed the lease under Avhich he then held, to execute to B. a lease for such further term as would make up a term of sixty-one years from the 29th day of September, 1778, [of which term twenty-four years were then unexpired,] B. from time to time surrendering his then subsisting lease, and paying upon every such renewal such a proportion of the fine which A. should have paid to the dean aud chapter on renewing the lease or leases under which he should hold the premises, as should have been imposed on account of any new buildings erected or to be erected by B. upon the premises ; it was held, that B. was not bound to contribute to the fine paid on any renewal subsequent to that which first enabled A. to make up the term agreed to be granted (j)) . In the case of Davis v. Hone [g), a lessee under a dean and chapter lease underlet at double the rent payable by him to his lessors, and covenanted, from time to time, on obtaining renewals from his lessors, to renew to the underlessce, upon his paying 300/. as a fine, and also double the yearly rent, (o) Charlton v. Driver, 2 Brod. & 341; S. C, on appeal, uom. Hone v. Bing. 345; S. C. 5 J. B. Mo. 59. Davis, 2 Dow, P. C. 546. And see (2?) Glutton V. Fleming, 8 Sim. 105. CmTy v. Stanley, 1 Hay. & Jo. 487. (2) Davis V. Hone, 2 Sdio. & Lef. 4 9 (J. VOL. I. 3 E 786 OF THE TERM OF THE LEASE. [Part IV. and no more, to be reserved and made payable by the mesne lessor to the dean and chapter ; and it was provided, that in case the sub-lessee should, upon any future renewal to be made by the dean and chapter, apprehend that the reserved rent was too much advanced, it should be at his option whether he would accept of a renewal or refuse the same, and be content with the residue of his unexpired term ; and it seems to have been conceived that the option was intended to guard against the effect of an increase of rent if insisted upon by the dean and chapter, independently of any endeavour by the mesne lessor to procure if he could a renewal at an increased rent and small fine. Where an annuity for life was granted by a feme sole, and secured upon tithes held by her under a lease from the dean of St. Asaph, and she afterwards renewed the lease, married, and died, and her husband administered, and re- newed with his own money, it was held, that the annuity was a charge upon the renewed term generally; and that the grantee was not bound to contribute to the expense of renewal {r). If, in the case of a sub-tenancy of a renewable leasehold, the lessee and underlessee depart from the strict terms of their contract, for example, by the former demanding, and the latter paying, a larger fine than was originally stipulated for, and by an additional term being granted to the latter, tlie court will not decree a specific performance on the strict letter of the contract, but will enforce an equitable modifica- tion of it, reference being had to the intervening conduct of the parties themselves {s). (/•) Moody r. Matthews, 7 Vcs. 174. Yo. & Col. Exeh. 247. And sec Wiiislow v. Tighe, 2 Ball & (s) Davis v. Hone, 2 Scho. & Lef. Beat. 195. Stubbs r. Wroth, 2 Ball 'Ml; S. C, on appeal, nom. Houe v. 6l Boat. 548; and Webb r. LuKar, 2 Davis, 2 Dow P. C. 546. Ch.VII. s. VI. j RENEWAL: SURRENDER. 787 Section VI. — As to the surrender of existing interests AS A preliminary STEP TO A RENEWAL. Formerly, a renewal could not be obtained by a lessee without a surrender of all the underleases derived out of the original lease; the consequence of which was, that every underlessee had it in his power to prevent or delay a renewal by refusing to surrender his interest. And even a court of equity could not compel such surrender, notwithstanding an offer by the original lessee to make a new lease to his lessee for the term then to come, and at the same rent (t). But the inconvenience was remedied by the statute of 4 Geo. 2. c. 28 (w); which enacted, " that in case any lease shall be duly surren- dered in order to be renewed, and a new lease made and executed by the chief landlord or landlords, the same new lease shall, without a surrender of all or any the underleases, be as good and valid, to all intents and purposes, as if all the underleases derived thereout had been likewise siu'rendered at or before the taking of such new lease ; and all and every person and persons in whom any estate for life or lives, or for years, shall from time to time be vested by virtue of such new lease, and his, her, and their, executors and administrators, shall be entitled to the rents, covenants, and duties, and have Uke remedy for recovery thereof, and the underlessees shall hold and enjoy the messuages, lands, and tenements, in the respective underleases comprised, as if the original leases out of which the respective underleases are derived had been still kept on foot and continued; and the chief landlord and land- lords shall have and be entitled to such and the same remedy by distress or entry in and upon the messuages, lands, tene- ments, and hereditaments, comprised in any such underlease for the rents and duties reserved by such new lease, so far as the same exceed not the rents and duties reserved in the lease (t) Colchester v. Amott, 2 Vern. (u) 4 Geo. 2. c. 28. s. G. And see 383; S. C. Free. Ch. 124. 5 & 6 Vict. c. 108. s. 17, ante, p. 278. 3 E 2 788 OF THE TERM OF THE LEASE. [Part IV. out of which such underlease was derived (a'), as they would have had iu case such former lease had been still continued, or as they would have had in case the respective underleases had been renewed under sucli new principal lease, any law, custom, or usage, to the contrary thereof notwithstanding." Hence, independently of the late acts of 7 & 8 Vict. c. 76, and 8 & 9 Vict. c. 106 [y), notwithstanding the destruction of the mesne reversion by surrender, the mesne lessor's rights and remedies against the underlessee remain unaffected; but this benefit is confined to the particular case of a sur- render for the purposes of renewal {z) . And it was provided by a statute of 39 & 40 Geo. 3 («), that where any person then holding, or who should there- after hold, any lease of any person having spiritual or eccle- siastical promotion, should hold the same, or any specific part of the lands or tenements thereby demised, in trust for any other person, or should have granted any under-lease of any specific part of his holding, and be under any engage- ment for renewal thereof, when his own lease should be renewed, it should be lawful for such person as first men- tioned, to surrender his lease, in order that separate and distinct leases might be granted by the original lessor of such specific parts of the premises as should have been held in trust, or subject to such engagements for renewal to the respective underlessees and cestuis que trust upon fair and reasonable terms, subject to an apportionment of the accus- tomed rent and other payments ; and that every such sur- render, and the new leases to be granted thereon, should be effectual in law and equity, notwithstanding such under- lessees and cestuis que trust, or any of them, should be infants, issue unborn, femes covert, persons absent from the realm, or otherwise incapacitated to act for themselves, pro- {x) See Doc dcm. Palk v. Marclietti, of his estate. Sec post, Part the 1 Barn. & Adol. 71.5. Seventh, Ch. I. Sect. III. {y) By which further provision is (z) See Signior Thre'r v. Barton, made for preserving tlic rights and Mo. .04. Webb r. Russell, .3 Term liabilities of a mesne reversioner not- Rep. 3.03. 402. withstanding the merger or surrender (a) 39 & 40 Geo. 3. c. 41. s. 10. Ch. VII. s. VI.] renewal: — SURRENDER. 789 Aided that such new leases should 1)C for the henefit of the persons entitled to the henefit of such surrendered lease, and be expressly so declared in the body of each such new lease respectively. If a mortgagee by assignment of a dean and chapter lease for lives refuse to siu'render, a coui't of equity will not compel him, as he is an incumbrancer ; for he may object to the lives proposed, and insist that the lives in being arc better, or oblige the tenant, the mortgagor, to propose other lives, or redeem him : but it will be otherwise if a lease for years only be mortgaged; for, upon surrendering the old lease, in which there is only a remainder of a term to come, a new and longer term would be granted, which, being a better security, is an advantage to the mortgagee {b). (b) Winne v. Bampton, 3 Atk. 476. END OF THE FfRST VOLUME. /^f^ LONDON : nUADBTTBY ANT) EVANS, PRINTKFS, WHITEFRIARS. wr%T^r^ LAW LIBRARY 'WVEHSITV OF CALIFORNIA LOS ANGELES JC SOUTHERN RFGIOMAL LIBRARY FACILITY AA 000 851 385 5 , '^'^ f : . . I.:,