joining it seems void, and the leffee cannot hold it against the dean and chapter, or mafter and fellows, if they feek to avoid it (a).

As leafes and grants, not warranted by the ftatutes, are not void against the leffors and grantors themselves, fo neither are leafes or grants made without due confirmation, where confirmation is neceffary, but only by the grantor's death or amotion (b).

AND as all leafes not made according to the ftatutes, are notwithstanding binding on the leffors, fo, in many cafes, the fucceffors, by their own acts, may make them binding on themselves. That this may be the better understood, it is neceffary to obferve that, at common law, when the confirmation of the proper parties was wanting, the leafe was in some cases abfolutely void against the fucceffor, and in others only voidable at his option. - And the law is nearly the fame at this day with refpect to leafes not made in perfect conformity with the requifitions of the ftatutes.

Ar common law, there was a diftinction between the cafe of those fole ecclefiaftical corporations who were fupposed to have the fee fimple abfolutely in them, fuch as bishops and deans, with respect to the poffeffions of which the latter were fole seised, and that of those who were fuppofed to have only a qualified fee fimple, fuch as parfons, vicars, prebendaries, provofts in cathedral churches, and others who were presentative or collative, and not elective.

LEASES, whether for years or for lives, by the former without confirmation, were not void, but only voidable by the fucceffor, and continued good till fome act was done by him to avoid them.-But with refpect to the latter, there was also a distinction between leafes for years, and leafes (b) Id. ibid.

(a) 3 Bac. Abr. Leases, H. 1.

for

for lives: leafes for years, without confirmation, were abfolutely void without entry or other ceremony, fo that no acceptance of the rent, or any other act done by the fucceffor, could affirm or make them good or binding against himself: but leafes for life or lives, though without confirmation, were good against the fucceffor till some act was done by him to avoid them; and the reafon was, that a lease for life or lives, being an estate of freehold, could not pass without the folemnity of livery and seifin; and therefore to defeat fuch a leafe, there must have been an act of equal notoriety, the entry of the fucceffor; and confequently, if the fucceffor, before entry, accepted the rent, or did any other act fignifying his consent to such lease, this affirmed it during his own time, so that he could never afterwards avoid it, because it was only voidable, and not actually void by the death or removal of the leffor.-The law is the fame at this day where the statutes are not pursued.

AT common law there feems to have been no diftinction between leases of things in livery, and of things in grant, either in the cafe of bishops and deans, or in that of parfons and vicars, and other fimilar corporations: but in the cafe of bishops and deans, the ftatutes before mentioned seem to have introduced a diftinction between a leafe for years and a leafe for lives of things that lie in grant, which did not exist at common law. Thus, if a bishop before the late ftatute of 5 G. 3, c. 17, had made a lease for lives

of a portion of tithes, or other things not manurable, referving the ancient rent, and had died or been removed, and his fucceffor had accepted the rent, yet this acceptance fhould not have bound him, because the lease was abfolutely void by the death or removal of the leffor, without entry or other ceremony; for the leafe being of things lying only in grant, no rent could be referved out of them recover

able

able by the fucceffor; he could not diftrain, because there was no place where a diftrefs might be taken; and an action of debt would not lie, because, the leafe being for lives, no action of debt was maintainable till after the expiration of the lives; and therefore, fince his acceptance of the rent due at one day would not enable him to sue for future arrears, if payment fhould be refused, he was not to be bound by fuch acceptance.-But if the tithes or other things lying in grant, had been let for years, there the fucceffor's acceptance of the rent would have bound him during his time; because then he might have an action of debt for any arrears that might accrue afterwards: and in this refpect the law upon these ftatutes, as to bishops, appears to be the reverse of the common law as to parsons, vicars, &c. for as their leafes for years were abfolutely void, by their death or removal, but their leases for life or lives only voidable; fo, here the bishops leafes for lives are abfolutely void, whereas their leases for years are only voidable by the fucceffor (a).

THE late ftatute of 5 G. 3, c. 17, has put an end to this diftinction between a lease for life or lives, and a lease for years, where the only objection to them, as not purfuing the ftatutes, is that they are made of things that lie in grant.

If a bishop make a defective or voidable leafe or grant, not only the fucceffor may avoid it, but also the King, when the temporalties come into his hands, may take advantage of the defect, so far as to avoid it during the vacancy of the bishopric, in privity and right of the bishop; but this fhall not so abfolutely avoid the lease, but that the fucceeding bishop may make the fame either good or void, at his election, as to himself; and this either expressly, as

(a) Vid. Bac. Abr. Leafes, H. 1.

by

by actual agreement to the leafe or grant of his predeceffor; or by implication, as by acceptance of rent accrued after the death or removal of his predeceffor; or by doing any other act, which amounts to an agreement in law: and therefore this cafe of an avoidance by the King, differs from the cafe of an avoidance by the fucceffor himself; for an avoidance by the fucceffor, avoids it not only for his own time, but also against all his fucceffors; so that they never can set it up again, or affirm it by any act of theirs whatever because it was avoided by one who had the whole fee fimple in him as much as any of the fucceffors can have; but the King has not the fee fimple in the temporalties, but only the cuftody or guardianship of them during the vacation of the bishopric, which is but a tem porary and qualified interest (a).

It is further to be observed, that the acceptance of rent which is to affirm a voidable lease, must be by him who is perfect fucceffor: therefore, where the fucceffor of a bishop, before he had a reftitution of the temporalties from the King's hands, accepted a rent reserved by his predeceffor on a voidable leafe, yet it was held that notwithstanding this acceptance, he might enter and avoid the leafe; because before fuch reftitution he was not perfect fucceffor; and then fuch acceptance of the rent should not bind him, any more than if he had been a perfect ftranger (b).

WITH respect to leafes by corporations aggregate reftrained by these statutes, the diftinction between a void and voidable lease cannot exist, where the lease is made by the head with the concurrence, properly expreffed, of the reft of the corporation; because they have the eftate ab

(a) Earl of Bedford's cafe, 7 Co. 7, cited 3 Bac. Abr. ubi fupra. (b) Palm. 517, Bishop of Oxford's cafe, cited 3 Bac. Abr. ubi fupra.

folutely

folutely in fee fimple: when, therefore, a lease so made is not warranted by the ftatutes, it is merely voidable by the fucceffor of the head with the reft of the corporation: but if, in such a case, the fucceeding dean or mafter, without authority in writing from the corporation, accept rent; this shall not affirm the leafe during the life or continuance of fuch master or head who so accepted it; for the right being as much in the fellows or other members of the corporation, as in the mafter himself, he cannot by any act of his own conclude or bind them from their entry on any voidable leafe: and he himself in their right may enter to avoid fuch leafe, notwithstanding his own acceptance of the rent (a).

DEANS and chapters, and other perfons included in the restraining statutes, for fear of incurring the penalties of them, have been careful to preferve the fame descriptions in their leases since those statutes which had been used before; and poffibly at the time of the old leafes, there might be barns or ancient buildings, which after such a length of time, must have been long fince decayed and gone; and therefore it would be hard to decree a defendant at this day, at the expiration of his lease, to deliver up the premises with fuch buildings on them, when there is not the leaft proof, that they were in being at the time of making the leafe and for this reafon, where the leafes of a dean and chapter are of long ftanding, and have been continued down to this time without any variation as to the form, they cannot have a decree in chancery, for a specific performance of covenants for repairs, against the present tenants, but must be left to their legal remedy of an action at law for non-performance (b).

(a) 11 Co. 79 a. cited 3 Bac. Abr. ubi fupra.

(b) Per Lord Hardwicke, in the cafe of the dean and chapter of Ely v. Sir Simeon Stewart. 2 Atkyns 44, 45.