ments, or such things whereof no livery can be had *. For which reafon all corporeal hereditaments, as lands and houses, are faid to lie in livery; and the others, as advowsons, commons, rents, reverfions, &c, to lie in grant'. And the reafon is given by Bracton": “traditio, or livery, nihil aliud "eft quam rei corporalis de perfona in perfonam, de manu in ma"num, tranflatio aut in poffeffionem inductio; fed res incor"porales, quae funt ipfum jus rei vel corpori inhaerens, tradi"tionem non patiuntur." These therefore pass merely by the delivery of the deed. And in figniores, or reverfions of lands, fuch grant, together with the attornment of the tenant (while attornments were requifite) were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in immediate poffeffion. It therefore differs but little from a feoffment, except in it's subject matter for the operative words therein commonly used are dedi et conceffi," have given and granted." 4. A LEASE is properly a conveyance of any lands or tenements, (ufually in confideration of rent or other annual recompenfe) made for life, for years, or at will, but always for a less time than the leffor hath in the premises; for if it be for the whole intereft, it is more properly an assignment than a leafe. The ufual words of operation in it are," de[318]" mife, grant, and to farm let; dimifi, conceffi, et ad firmam “tradidi.” Farm, or ferme, is an old Saxon word fignifying provifions" and it came to be used instead of rent or reader, because antiently the greater part of rents were reserved in provifions; in corn, in poultry, and the like; till the use of money became more frequent. So that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme : though at present, by a gradual departure from the original fenfe, the word farm is brought to fignify the very estate or lands fo held upon farm or rent. By this conveyance an eftate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments; though livery of feifin is indeed incident and neceffary to one fpecies of leases, viz. leafes for life of corporeal hereditaments; but to no other. WHATEVER restriction, by the severity of the feodal law, might in times of very high antiquity be observed with regard to leafes; yet by the common law, as it has stood for many centuries, all perfons feised of any estate might let leafes to endure fo long as their own intereft lafted, but no longer. Therefore tenant in fee-fimple might let leafes of any duration; for he hath the whole interest: but tenant in tail, or tenant for life, could make no leafes which should bind the iffue in tail or reverfioner; nor could a husband, feifed jure uxoris, make a firm or valid leafe for any longer term than the joint lives of himself and his wife, for then his intereft expired. Yet fome tenants for life, where the feefimple was in abeyance, might (with the concurrence of fuch as have the guardianship of the fee) make leases of equal duration with those granted by tenants in fee-fimple, fuch as parfons and vicars with confent of the patron and ordinary. So alfo bishops, and deans, and fuch other fole ecclefiaftical corporations as are feised of the fee-fimple of lands in their corporate right, might, with the concurrence and confirmation of fuch perfons as the law requires, have made leafes for years, or for life, eftates in tail, or in fee, without any limitation or controul. And corporations aggregate might have made what eftates they pleafed, without the con- [319] firmation of any other perfon whatfoever. Whereas now, by several statutes, this power where it was unreasonable, and might be made an ill ufe of, is reftrained; and, where in the other cafes the restraint by the common law feemed too hard, it is in fome meafure removed. The former ftatures are called the reftraining, the latter the enabling statute. We will take a view of them all, in order of time. AND, first, the enabling ftatute, 32 Hen. VIII. c. 28. empowers three manner of perfons to make leafes, to endure for three lives or one and twenty years; which could not do fo before. As firft, tenant in tail may by fuch leafes bind his iffue in tail, but not those in remainder or reverfion. Secondly, a husband seised in right of his wife, in fee-fimple or fee-tail, provided the wife joins in fuch leafe, may bind her and her heirs thereby. Lastly, all perfons seised of an estate of fee-fimple in right of their churches, which extends not to parsons and vicars, may (without the concurrence of any other perfon) bind their fucceffors. But then there must many requifites be observed, which the ftatute specifies, otherwife fuch leafes are not binding P. 1. The leafe must be by indenture; and not by deed poll, or by parol. 2. It must begin from the making, or day of the making, and not at any greater diftance of time (3). 3. If there be any old lease in being, it must be first absolutely surrendered, or be within a year of expiring. 4. It must be either for twentyone years, or three lives; and not for both. 5. It must not exceed the term of three lives, or twenty-one years, but may be for a fhorter term. 6. It must be of corporeal hereditaments, and not of fuch things as lie merely in grant; for no rent can be referved thereout by the common law, as the leffor cannot refort to them to diftrein q. p Co. Litt. 44. q But now by the statute 5 Geo. III. c. 17. a leafe of tithes or other incorporeal 7. It must be of hereditaments, alone, may be granted by any bishop or any fuch ecclefiaftical or eleemofynary corporation, and the fucceffor (3) By various acts of parliament, and alfo frequently by private fettlements, a power is granted of making leafes in poffeffion, but not in reverfion, for a certain term; the object being that the estate may not be incumbered by the act of the party beyond a specific time. Yet perfons, who had this limited power of making leafes in poffeffion only, had frequently demifed the premifes to hold from the day of the date; and the courts in feveral inftances had determined that the words from the day of the date excluded the day of making the deed; and that of confequence thefe were leafes in reverfion, and void. But this queftion having been brought again before lord Mansfield and the court of king's bench, that learned lord proved, with his usual ability, that from the day might either be inclufive or exclufive of the day; and therefore that it ought to be conftrued fo as to effectuate thefe important deeds, and not to destroy them. Pugh v. Duke of Leeds, Corp. 714. lands and tenements most commonly letten for twenty years paft; fo that if they had been let for above half the time (or eleven years out of the twenty) either for life, for years, at will, or by copy of court roll, it is fufficient. 8. The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such leafe. 9. Such leases must not be made without impeachment of waste. These are the guards, imposed by the statute (which was avowedly made for the fecurity of farmers and the confequent improvement of tillage) to prevent unreasonable abuses, in prejudice of the iffue, the wife, or the fucceffor, of the reasonable indulgence here given. NEXT follows, in order of time, the difabling or refraining ftatute, Eliz. c. 19. (made entirely for the benefit of the fucceffor) which enacts, that all grants by archbishops and bishops (which include even those confirmed by the dean and chapter; the which, however long or unreafonable, were good at common law) other than for the term of one and twenty years or three lives from the making, or without referving the ufual rent, shall be void. Concurrent leases, if confirmed by the dean and chapter, are held to be within the exception of this ftatute, and therefore valid; provided they do not exceed (together with the leafe in being) the term permitted by the act'. But, by a faving exprefsly made, this ftatute of 1 Eliz. did not extend to grants made by any bishop to the crown; by which means queen Elizabeth procured many fair poffeffions to be made over to her by the prelates, either for her own ufe, or with intent to be granted out again to her favourites, whom she thus gratified without any expenfe to herself. To prevent which for the future, the ftatute 1 Jac. I. c. 3. extends the prohibition to grants and leafes made to the king, as well as to any of his fubjects. fucceffor fhall be entitled to recover the rent by an action of debt, which (in cafe of a freehold leafe) he could not VOL. II. Bb have brought at the common law. NEXT BOOK II. NEXT comes the ftatute 13 Eliz. c. 10. explained and enforced by the ftatutes 14 Eliz. c. 11 & 14. 18 Eliz. c. 11. and 43 Eliz. c. 29. which extends the restrictions, laid by [ 32 ] the laft mentioned ftatute on bifhops, to certain other inferior corporations, both fole and aggregate. From laying all which together we may collect, that all colleges, cathedrals, and other ecclefiaftical, or eleemofynary corporations, and all parfons and vicars, are restrained from making any leases of their lands, unlefs under the following regulations: 1. They must not exceed twenty-one years, or three lives, from the making. 2. The accustomed rent, or more, must be yearly referved thereon. 3. Houses in corporations, or market towns, may be let for forty years; provided they be not the manfion-houfes of the leffors, nor have above ten acres of ground belonging to them; and provided the leffee be bound to keep them in repair: and they may also be ali ened in fee-fimple for lands of equal value in recompenfe. 4. Where there is an old lease in being, no concurrent lease fhall be made, unless where the old one will expire within three years. 5. No leafe (by the equity of the ftatute) fhall be made without impeachment of wafte'. 6. All bonds and covenants tending to frustrate the provisions of the statutes of 13 & 18 Eliz. shall be void. CONCERNING these reftrictive ftatutes there are two obfervations to be made. Firft, that they do not by any construction, enable any perfons to make fuch leases as they were by common law difabled to make. Therefore a parson, or vicar, though he is reftrained from making longer leases than for twenty-one years or three lives, even with the confent of patron and ordinary, yet is not enabled to make any leafe at all, fo as to bind his fucceffor, without obtaining fuch confent". Secondly, that though leases contrary to these acts are declared void, yet they are good against the lessor during his life, if he be a fole corporation; and are alfo good against an aggregate corporation fo long as the head of it lives, who u Ibid. 448 1 Co. Lit. 45. |