the passing of this Act, for the purpose of occupying or to occupy the same, for the cultivation thereof, or procuring profit therefrom, by himself, or any bailiff or servant, to his use, unless the same shall have been taken, received, or holden under a lease granted to such person on or before the first day of January 1803, or unless by the consent in writing of the bishop as aforesaid. s. 5.—And by s. 6. such spiritual persons are authorized to buy or sell cattle or corn for the occupation or profit of such farms, &c. so holden. Provided that they do not buy or sell any cattle or corn in person in any market, fair, or place of public sale.

And any spiritual person having any vicarage or perpetual curacy, or any stipendiary curate thereof, may occupy by himself or any other to his use, the impropriate parsonage, rectory, or vicarage, or any part thereof, or take any profit or rent out of such farm, notwithstanding the said recited or any other act. But if such impropriate parsonage, rectory or vicarage, or such part thereof, shall not have been occupied at any time before the passing of this Act, by the same or any other such spiritual person as aforesaid, such person shall remain liable to the penalties, &c. under the said recited or any other Act, unless he shall have obtained the licence of the bishop for such occupation. s. 8.

And any clergyman who shall be licensed or be exempted from residence under this or any other Act, may take to ferm and occupy in the parish where he resides, or any adjoining parish, such lands for the convenience of his household and hospitality only, as the bishop may in writing allow. s. 9.

All contracts or agreements made after the passing of the Act for letting houses in which any spiritual persons shall be, by order of the archbishop or bishop, required to reside, shall be void; and persons holding possession after the day appointed by such order, shall forfeit 40s. for each day he shall so hold over, such penalty to be recoverable by action of debt, &c. in any Court of record at Westminster, or the Courts of great sessions in Wales, and to go to such person who shall inform and sue for the same, together with costs: but in case of such contracts or agreements made before the passing of the Act, no such. penalty shall be incurred for three months from the service of the copy of such order as aforesaid upon such occupier or at such house of residence; but after such period the person continuing to hold shall forfeit 40s. for each day's continuing to hold over as aforesaid. s. 34. 12.

This Act shall not deprive any spiritual persons of any privileges they enjoyed under the said recited Act or otherwise. s. 43. 11.

Infants. In debt for rent the defendant pleaded infancy at the time of the lease made; and upon demurrer, the Court held the lease voidable only at his election; for if it were for his benefit, it shall be no

ways void, but the infant at his election may make it void, by refusing and waiving the land before the rent-day comes; in which case no action of debt would lie against him; but the defendant not having so done, and being of age before the rent-day due, and it not being shewn to the Court that in this case the rent was of greater value, the plaintiff had judgment (a).

If a person jointly interested with an infant in a lease, obtain a renewal to himself only, and the lease prove beneficial, he shall be held to have acted as trustee, and the infant may claim his share of the benefit; but if it do not prove beneficial he must take it upon himself. This is the peculiar privilege of the unprotected situation of an infant (b).

Where a lease to an infant however is not by deed, he will perhaps be liable at all events for use and occupation of the premises in which he resides; for he is liable for necessaries, under which description, lodging must surely come: wherefore such case would probably be held to fall within the fair liability which the law imposes on infants of being bound for necessaries, which is a relative term, according to their station in life (c).

Femes-Covert.-A feme-covert cannot be a lessee, for her free agency is so suspended during coverture, that she may plead non est factum to an action on any covenant in the lease, for evidence that she was covert at the time of executing the lease, will prove it to be not her deed. For use and occupation of premises, her baron will be liable (d).

Aliens.-With respect to aliens, the statute of 32 H. 8. c. 16. s. 13. makes all leases of any dwelling-house or shop, within this realm or any of the king's dominions, made to any stranger, artificer, or handicraftsman born out of the king's obeisance, not being a denizen, void and of none effect (e). This statute may be pleaded in bar to an action of debt for rent, brought against an executor or administrator; but in pleading it, it seems necessary to aver that the messuage demised was a dwelling-house or shop. A place need not be alleged where he was an alien and an artificer (e).

The abovementioned statute is still in force; but though it makes leases of dwelling-houses or shops granted to any stranger artificer void, yet if such artificer occupy a dwelling-house or shop under an agree ment which does not amount to a lease, as if he be tenant from year to year, or for a shorter time, an action for use and occupation will lie against him notwithstanding the statute (e).

An alien may however take by purchase; but then it is for the be

(a) Bull. N. P. 177. Ketsey's Case. Cro. Jac. 320.

(b) Ex-parte Grace. 1 Bos. & Pul. 376. (c) Hands v. Slaney. 8 T. R. 578.

(d) Bull. N. P. 172.

(e) Jevers v. Harridge. I Saund. 1. et in notis.

nefit of the crown: but unless the crown interpose, he may maintain an action for lands purchased by him (a).

There is no instance where a woman alien is in possession of an estate, but that it must be for the benefit of the crown; and the husband by marrying her cannot be said to be seised of such estate (a).

But though an alien cannot, as such, take a lease of a dwellinghouse or shop, by reason of the statute 32 H. 8. c. 16. yet he may occupy a tenement of 10l. a year, and carry on his trade there like any other person and as he may do so, he has that interest which enables him to gain a settlement by the provision of the legislature (b).

All children born out of the king's dominions, whose fathers (or grandfathers by the father's side) were natural born subjects, though their mothers were aliens, are now by various statutes deemed to be natural born subjects themselves to all intents and purposes, unless their said ancestors were attainted; or banished beyond sea for high treason; or were at the birth of such children in the service of a prince at enmity with Great Britain. But grandchildren of such ancestors shall not be privileged in respect of the alien's duty, except they be protestants, and actually reside within the realm; nor shall be enabled to claim any estate or interest, unless the claim be made within five years after the same shall accrue.

The issue of an English woman by an alien, born abroad, is an alien. The children of aliens born in England are, generally speaking, natural born subjects, and entitled to all the privileges of such (c).

Denizens.-A denizen is an alien born, but who has obtained, ex donatione regis, letters patent to make him an English subject, an high and incommunicable branch of the royal prerogative. A denizen is a kind of middle state, between an alien and a natural born subject, and partakes of both of them (d).

He may take lands by purchase or devise, which an alien may not, but cannot take by inheritance.

A denizen therefore may be a lessor or lessee, for the chief incapacity which he retains regards the defect of inheritable blood, so that in other respects his situation may, in a great degree, be assimilated to that of a bastard. He cannot however take any grant of lands, &c. from the crown; nor sit in a council, or in either house of parliament (e).

Naturalization cannot be performed but by act of parliament; for by this an alien is put in the same state as if he had been born in the king's ligeance; except only that by the stat. 12 W. 3. he is incapable, as well as a denizen, of being a member of the privy council, or of either house of parliament, holding offices, taking grants of the crown, &c.

(a) Burk v. Brown. 2 Atk. 397. Fowler v. Down. I Bos. & Pul. 44-48.

(c) 1 Bl. Com. 373.

(d) 7 Rep. 25.

(5) Rex v. Eastbourne, 4 East. 103-107.

(c) St. 12 W. 3. c. 2.

H

[98]

CHAPTER V.

Of the subject-matter of Leases.

SECTION I. Of corporeal Hereditaments; wherein of Farms, Lands, Houses, and Lodgings.

SECTION II. Of incorporeal Hereditaments; wherein of Tithes, Tolls, Advowsons, Rent, &c.

A

SECTION I. Of corporeal Hereditaments.

FTER such time as leases for years began to be looked upon as

fixed and permanent interests, and that the lessees were sufficiently provided to defend themselves and their possessions against the acts and incroachments, as well of the lessor as of strangers, men found it their interest to improve and encourage this sort of property, and therefore extended it to all sorts of interests and possessions whatsoever, being led thereto by that known rule, that whatsoever may be granted or parted with for ever, may be granted or parted with for a time (a).

Not only lands and houses, therefore, have been let for years, but also goods and chattels ; though the interest of the lessee therein differs from the interest he hath in lands or houses so let for years; for if one lease for years a stock of live cattle, such lease is good, and the lessee hath the use and profits of them during the term; but yet the lessor hath not any reversion in them to grant over to another either during the term or after, till the lessee hath re-delivered them to him, as he would have of lands in case of such lease for years; for the lessor hath only a possibility of property in case they all outlive the term; for if any of them die during the term, the lessor cannot have them again after the term, and during the term he hath nothing to do with them, and consequently of such as die, the property rests absolutely in the lessee (a).

So, whether they live or die, yet all the young ones coming of them, as lambs, calves, &c. belong absolutely to the lessee as profits arising and severed from the principal, since otherwise the lessee would pay his rent for nothing; and therefore this differs from a lease of other dead goods and chattels, for there, if any thing be added for the repairing, mending, or improving thereof, the lessor shall have the improvements and additions together with the principal, after the lease ended,

(a) Bac. Abr. tit. Leases, (A.)

because they cannot be severed without destroying or spoiling the principal. But the lessee, in such case, cannot kill, destroy, sell, or give them away, during the term, without being subject to an action of trespass, as it should seem (a).

Touching the import of the word "hereditament," Lord Kenyon observed (b), that it was not so strong a word as tenement; but was merely a description of the thing itself, and not the quality of it or interest in it and this accords with the difference taken between the two words hæreditas and hæreditamentum; for the word hæreditas imports the estate which a man has in the land; hæreditamentum the land itself which may be inherited, and therefore cannot be applied to the estate in the land (c). Holt, C. J. however says the word "hereditament" implies a fee (d): which is consonant to Sir E. Coke's exposition of the word, which he says is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed (e).

Corporeal hereditaments consist wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land only; for land comprehends, in its legal signification, any ground, soil, or earth whatsoever; so the word "land" includes, not only the face of the earth, but every thing under it, or over it; and therefore, if a man grant all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows: not but that the particular names of the things are equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing, and to recover the land at the bottom of which, it must be called so many << acres of land covered with water." But the capital distinction is this: that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of, (though indeed, by the name of a castle, one or more manors may be conveyed; and è converso, by the name of the manor, a castle may pass); but by the name of land, which is nomen generalissimum, every thing terrestrial will pass (ƒ).

Leases for life, or years, or at will (now construed to be from year to year), may be made of any thing corporeal or incorporeal that lieth in livery or grant (g).

A man therefore may demise his farm, which may comprehend a

(a) Bac. Abr. tit. Leases. (A.)

(b) Doe d. Small v. Allen, 8 T. R. 497

503.

(c) Hopewell v. Ackland. 1 Com. R. 164. (4) Smith v. Tindall. Holt. 235.

(e) Co. Lit. 19-20. 2 Bl. Com. 17. Shep. Touch. 91.

(f) 2 Bl. Com. 18.

(g) Shep. Touch. 268.