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the coverture, except by fine levied by the husband
and wife : but that the same rent shall remain, after
the death of the husband, to the person to whom the
lands would have gone, if no such lease had been
34. If the circumstances required by the statute Doe v.

Weller, are not observed, leases by husband and wife, of the wife's lands, are not binding on wives surviving their husbands. If the wives die in the lifetime of their husbands, their heirs may avoid them. 35. At common law, leases made by ecclesiastics, Ecclesiastics

seised Jure of lands whereof they were seised in right of their Ecclesiæ. . churches, &c. were in many cases not binding on their successors : it was therefore enacted by the statute 32 Hen. VIII. c. 28. that all leases for term of years or life, by any persons having an estate of inheritance in right of their churches, shall be good and effectual against the lessors and their successors.

36. There are several other statutes, by which all Eliz.c. 19. alienations by ecclesiastical persons are declared void, 14 except leases for 21 years, or three lives. And as

1 James, c. 3. the statute 32 Hen. VIII. is called an enabling statute; these are called disabling statutes.

37. The circumstances required by the statute Circum32 Hen. VIII. and the subsequent statutes, to render quired in leases made by tenants in tail, husbands seised in these Leases. right of their wives, and ecclesiastical persons, valid and binding on their heirs and successors, are chiefly these.

38. 1o. All such leases must be by deed indented, 1 lnst. 44 a. and not by deed poll, or by parol. 2°. Must be made to begin from the day of the making thereof, or from the making thereof.

39. 3. If there be an old lease in being, it must Idem. be surrendered or ended, within one year next after


c. 10.


c. 11. c. 11.

stances re

the making of the new lease. Such surrender must be absolute, and not conditional ; for then the intention of the statute might easily be evaded, by setting up such old lease again, upon breach of the

condition. Thompson 40. A surrender in law, by the taking of a new lease, v. Trafford, Poph. 9.

either to begin presently, or on a day to come, seems a good surrender within the statutes. For by taking such new lease, though to commence on a future day, the first lease is presently surrendered, and gone; and shall not continue till the day on which the new lease is to commence; but by acceptance of such new lease, the first is immediately surrendered, because both leases cannot exist together. As the first cannot be dissolved, or surrendered in part, it must be surrendered for the whole.

41. A surrender upon condition that the lessor should make a new lease within a week after, has been held good.

42. The lessor of the plaintiff being a prebendary Carter, 2 Stra. 1201, of Sarum, brought an ejectment to avoid a lease

made by his predecessor, as not being conformable to the proviso in the statute 32 Hen. VIII., because the surrender of the former lease was with a condition, that if the then prebendary did not, within a week after, grant a new lease, the surrender should be void ; whereby, as it was contended for the plaintiff, the old term was not absolutely gone; but the lesee reserved a power of setting it up again.

The Court gave judgement for the defendant, this being within the intent of the statute ; which was, that there should not be two leases standing out against the successor. Here the new lease was made within the week ; from thence it became an absolute

Wilson y.

surrender, both in deed and in law : the whole was out of the lessee, without farther act to be done by him. In the proviso in the statute, there was the word ended, as well as surrendered ; and could it be said that the first lease was not ended. This was no more than a reasonable caution in the first lessee, to keep some hold of his old estate, till a new title was made to him.

43. The stat. 18 Eliz. c. 11. 52. enacts, that all leases to be made by any ecclesiastical or collegiate persons, or others, within the stat. 13 Eliz. c. 10., of any lands, &c. whereof any former lease for years is in being, and not to be expired, surrendered, or ended within three years next after the making of any such new lease, shall be void. And by the 3d section of 18 Eliz. all bonds and covenants for renewing any leases, contrary to the 13 Eliz. or this statutė, are declared void.

44. There are, however, some cases in which a 4 Bac. Ab. bishop, with the consent of dean and chapter, may

64. make a concurrent lease.

45. 4o. The duration of all leases made under these 1 Inst. 44 b. statutes must not exceed twenty-one years, or three lives; but it may be for fewer years or lives. The intention of these statutes being only to abridge the power of making long and unreasonable leases, by reducing them to a determinate number of years or lives, which they should not exceed: but might be made as much under as the party pleased.

46. If a bishop makes a lease for four lives, and 10 Rep. 62 a. one of them dies in the lifetime of the bishop, so that at his death there are but three lives in being; yet the lease will be void against his successor.

For as it was originally void, no subsequent event could make it good.

Baugh v.

47. If a lease be made to A. for the lives of B. C. Haines,

and D., it is a good lease to one for the lives of three Cro. Ja, 76. other persons; and a lease to three

and a lease to three persons for three lives, is all one, within the intent of these statutes : for in both cases three lives are the measure of the

estate created, which is all the statutes require. 8 Rep. 69 b.

48. It appears to be understood, that a lease for Whitlocke's sixty years, if three lives shall so long live, is good Case, infra, within the stat. 32 Hen. VIII., upon a principle which c. 16. Bac. Ab. v. 4.69. will be stated hereafter.

49. By the statute 14 Eliz. c. 11. § 17. it is enacted, that the stat. 13 Eliz. c. 10. shall not extend to leases of houses belonging to any ecclesiastical persons, or bodies politic or corporate, situated in any city, borough, town corporate, or market town, or the suburbs thereof; but that all such houses may be granted and demised as they might have been before the making of that statute, except capital or dwelling houses. But by the 19th section of this

act, all leases for more than forty years are prohibited. Crane v. It has however been held, that covenants for renewTaylor, Hob. 269.

ing leases of houses in towns, are not prohibited by the 18 Eliz., which only restrains leases made against

the stat. 13 Eliz. I lost. 44 b. 50. 5o. All leases under these statutes must be of

lands or tenements, whereto resort may be had for the rent reserved by distress, otherwise the heirs or successors of the lessors would be without any remedy for the recovery of the rent. These statutes do not therefore extend to advowsons, tithes, or other in

corporeal hereditaments. Leases of tithes are now Tit. 28.c. 1. established by a particular statute.

51. 6o. The stat. 32 Hen. VIII. does not extend to any lease of manors, &c. which have not most com. monly been letten to farm, or occupied by the farmers thereof, by the space of 20 years next before such lease thereof made. The intention of this clause was to prevent the persons, enabled by the statute to demise, from making leases of their mansion houses and demesnes, so as to bind their heirs or successors; as that circumstance would have produced a great decay of hospitality.

52. Various opinions have been held upon the Bac. Ab. Tit. construction of this clause. The better of them Lease, E. seems to be, that it consists of two parts in the disjunctive : if either of them be observed, it is sufficient to support the lease. The first is-" which have not most commonly been letten.” Which is general. The other is" or occupied by the farmers thereof by the space of 20 years.”—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 farmers thereof by the space of twenty years.

53. If lands have been let or occupied for eleven Idem. years, or more, at one or several times, within the twenty years next before a lease for 21 years, or three lives, it will be sufficient : and a demise by copy of

Baugh v. court-roll will be considered as a sufficient letting Haines,

Cro. wa... within the statute. 54. 7o. The statute 32 Hen. VIII. further

provides, “ That upon every such lease there 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 death of the lessors, if no lease had been thereof made, and to whom the reversion thereof should appertain, according to their estates and interests, so much yearly farm or rent, or more, as hath been inost accustomVol. IV.


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