the twenty immediately preceding the leafe: If lands had been formerly let to farm ever fo long, or ever fo frequently, yet if the bishop or other persons, whose posfeffions they are, fhould keep them in their own hands fifteen or twenty years, these lands could not be leafed for twenty-one years or three lives to bind the fucceffor, till they had undergone a probation of eleven years longer in the occupation of a farmer: and feveral other cafes might be put, in which, according to this conftruction, the fucceffor could have no benefit of the ftatute till after eleven years at leaft.And the difficulty does not seem to be folved in a fatisfactory manner, in the books (a). It seems, however, that, whatever difficulties may arise in fome poffible cafes, by the whole tenor and the obvious intention of the act, the letting or occupation for eleven years or more muft neceffarily be within the twenty years next before the leafing under the ftatute: the restriction with respect to the rent reserved is expreffed in fimilar terms, "fo much yearly rent or more, as hath been moft commonly yielded and paid within twenty years next before fuch lease made;" and as the intention of the act was to fecure the intereft of the fucceffor, the most advantageous rent was certainly in contemplation, which is most likely to be that which has been moft ufually given within the latest period. A DEMISE by copy of court roll is fufficient to warrant a leafe under thefe ftatutes, for it is in judgment of law but an estate at will, and without question lands demised at will by those who have the proper title, rendering rent, are lands accuftomably let to farm within the act (b). This indeed does not seem to be very material to the fubject; (a) Vid. 3 Bac. Abr. where all the cafes are collected, Leases E. 6. for F I for it has been several times held, that bishops, or other ecclefiaftical perfons, are not restrained either by the 1 El. c. 19, or 13 El. c. 10, from making grants of copyhold lands in fee, in tail, or for lives, or for any number of years according to the custom of the manor, and that no confirmation is necessary to make fuch grants good, because when the grant is made by any one who has a lawful estate or intereft, the copyholder is in by the custom, without any regard to the estate or person of the grantor (a). If twenty acres of land have been usually let, and lease be made of those twenty, and of one acre more which was not usually let, reserving the ufual yearly rent, and fo much more as exceeds the value of the other acre, this leafe is not warranted by the ftatutes, for as part was not ufually let, and the rent iffues out of the whole, the ufual rent is not reserved (b). THE eighth reftriction is expreffed in these terms, "That on every fuch lease there must be referved yearly, during the fame leafe, due and payable to the lessor and his fucceffor, fo much yearly rent or more, as hath been moft commonly yielded and paid, within twenty years next before fuch lease made." On this clause, it has been determined, that where the rent has been, before the letting under the ftatute, usually paid at four feasts of the year, yet if, by the lease, it be made payable at two feafts, or at one time, this is sufficient, because the words of the ftatute are, "that it fhall be reserved yearly," without prescribing the portions in which it is to be paid (c). AND where not only a yearly rent was formerly reserved, but things not annual, as heriots or any fine or other profit on the death of the farmer, yet if the yearly rent (a) 4 Co. 23 b. (b) Co. Lit. 44 a. (c) Id. ibid, and 6 Co. 37. alone alone be referved in a leafe under the ftatute, that is fufficient (a).-If a prebendary make a leafe for years, rendering rent, and referving the running of a colt; and at the expiration of this lease, a new one be made, rendering the fame rent, without referving the running of the colt, this is good; but if a lease be made of a manor, excepting the woods, rendering rent, and after the expiration of it, there be a new lease rendering the fame rent without fuch exception, this fecond leafe is bad (b). IF two farms have been ufually let feparately, the one for zol. and the other for 10l. and a lease be made of both together, rendering 30l. this fhall not bind the fucceffor, for the ancient rent which formerly iffued out of the two farms feparately, according to the aforefaid proportion, now iffues wholly out of each, and out of every part of each; and if two farms might be joined in one leafe, twenty might be joined, which would be very prejudicial to the fucceffor, because, when two are joined, the lofs would be the greater if the tenant should prove infolvent (c). BUT a part of lands ufually let at a certain rent, may be let at a rent in proportion to the extent and value of the part fo let, for this is, in effect, referving the ancient rent, and perhaps, it might be impoffible to make a lease of all, if it were not permitted to divide the great farms (d). But if a bishop seised of two manors, in right of his bishopric, which have been usually let together, make a lease of both manors, referving the ancient rent out of one of them only, this will not be a good leafe to bind the fucceffor, because, his remedy for the rent is confined to part of the lands only, (a) Id. ibid. (b) Harg. Notes to Co. Lit. 44 a. (c) Vid. Lord Mountjoy's cafe. 5 Co. 4, Cro. Car, 23. 3 Kcb. 380. (d) Co. Lit. 44 2. whereas before the whole was chargeable-Yet, if the bishop let one of the manors, reserving the rent formerly referved on both, this will bind the fucceffor, for though the distress for the ancient rent be not fo extenfive, yet the fucceffor cannot complain, having the refidue in his own hands or out upon another lease (a). THE whole rent must be reserved, payable not only to the fucceffor, but to the lefor himfelf, and therefore, if a bishop make a leafe of land, the ancient rent of which was Iol. and referve but 51. per annum during his own life, and iol. per annum after his death to the fucceffor, this shall not bind, because the rent originally referved was not purfuant to the ftatutes (b). THE next and last rule is, that these leases must not be without impeachment of wafte. This is exprefsly provided for only by the statute of Henry the eighth, but it has been refolved on the statutes of Elizabeth, that the several persons therein refpectively mentioned, are by equitable conftruction reftrained from making leafes difpunishable of waste (c); for if, as the preamble fpeaks, long and unreafonable leafes be the chief causes of dilapidations, and the decay of all fpiritual livings and hospitality, much more would they be fo, if they were made difpunishable of wafte; and therefore those statutes, being made to prevent fuch unreasonable leafes for the future, must by consequence prohibit the power of committing or fuffering wafte. But it is not neceffary that there should be in the lease an express prohibition of waste; it is fufficient, if the estate conveyed be not, by legal conftruction, difpunishable of wafte.-If a lease be made for life, remainder for life, this is difpunishable of wafte, be (a) 3 Bac. Abr. Leases, E. 4, and the cases there cited. (c) Co. Lit. 45 a. 6 Co. 37 a. caufe cause in waste, the place wafted is to be recovered, as well as treble damage, which cannot be, in this cafe, by the reverfioner, without deftroying the intermediate eftate for life. But if a lease be made to one for three lives, this lease is good, and the occupant, if any happen, fhall be punished for wafte, within the statute of Gloucester, which gives an action of waste against any one who holds in any manner for life or years; and an occupant in this cafe holds for term of life (a). · HOSPITALS erected under the authority of the 39 El. c. 5(b), are put under the fame restrictions with the other corporations we have been here confidering; for by the fecond fection of that ftatute, it is provided " that all leafes, grants, conveyances or estates to be made by any fuch corporation, exceeding the number of twenty-one years, and that in poffeffion, and on which the ufual rent or more by the greater part of twenty years next before the making of fuch lease, should not be referved and payable yearly, fhall be void." AND it is further provided, by the fifth fection, "that no corporation to be founded by the force of that act shall do, or fuffer to be done, any act or thing, by means of which any of the lands, tenements, hereditaments, stock, goods, or chattels of fuch corporation, or any estate, intereft, poffeffion or property of or in the fame, or any of them, fhall be vefted or transferred in or to any other whatsoever, contrary to the true meaning of that act" (c). BESIDE the general restrictions impofed on the corporate bodies mentioned in the 13 El. c. 10, there is (a) Vid. Dean and chapter of Worcester's cafe. 6 Ca. 37. |