though being at first recognized in the exchequer chamber, by a majority of ten judges, it has ever fince been allowed as lawful: My lord chief justice Vaughan fays, that it is neither within the letter nor the meaning of the statute 1 El. c. 19, because there is another lease in being than for twenty-one years, or three lives; for there are in fact two in being at the fame time, and therefore more than the statute warrants; and that the ftatute intended, when the first lease expired, the bishop who fhould then be, fhould have the advantage of making a new lease, which by allowing fuch concurrent lease may be prevented perpetually except by way of remainder (a).

By the words of the ftatute of Henry the eighth, the fixth requifite to be observed in making these leases, is "that they must be of lands, tenements, or of fuch hereditaments as that out of them a rent can be reserved, and that after the death of the leffor, the fucceffor may have fuch like remedy and advantage to all intents and purposes, against the leffees, their executors and affigns, as the leffor might have had against the fame leffees"-hence it has been held (b) that all fuch leases must be of lands or tenements corporeal to which resort may be had for the rent reserved, by way of diftrefs; for that otherwife the fucceffor may be without any remedy for the rent, and thus dilapidations and all the other mischiefs against which the statutes intended to provide, may take place; therefore leafes of fairs, markets, liberties, franchises, advowfons, commons, piscaries, offices, hundreds, tithes, or any other incorporeal inheritances, though with the confirmation of the dean and chapter, or of other perfons required by law to confirm the fame, will not bind the fucceffor.

(a) 3 Bac. Abr. E. 3. 1 Inft. 45 a. vid. Elmer's cafe. 5 Co. 2. (b) Vid. Jewel's cafe. 5 Co. 3.

ALL

ALL the books agree that a lease for three lives of tithes, or other incorporeal inheritances, will not bind the fucceffor, though the ancient rent be reserved, and the leafe or grant confirmed; because the fucceffor would be without the tithes or other inheritance, and would have no remedy for the rent reserved; he could not distrain, because there would be no place in which he could take a distress, the things leafed or granted being perfectly incorporeal and invifible; he could not have an affize, becaufe either he had not feifin, or if he had, yet there would be nothing to put in view of the recognitors; and he could not maintain an action of debt during the leafe, because being for three lives, it is an estate of freehold, which will endure no action of debt so long as it continues.

It is held likewife in fome books, that a lease for twentyone years of such incorporeal inheritances, though they have been usually demised, and the ancient rent reserved out of them, is notwithstanding voidable by the fucceffor within these ftatutes, because, though the rent reserved be good by way of contract between the leffor and leffee, and debt may be maintained for the recovery of it; yet, they say, it is not such a rent as is incident to the reverfion, nor shall pass with it to the fucceffor; and that therefore the fucceffor having no remedy for the rent, fhall not be bound by the leafe.

BUT this point feems to have been fhaken by contrary refolutions; for fome books exprefsly hold fuch leafe for years to be good against the fucceffor; because he has remedy for the rent by action of debt, and that it has been fo adjudged; and they make a distinction betweeen fuch a lease for years, and a leafe for life; they fay likewife that the rent iffues out of the tithes by way of render, though not in point of remedy, becaufe no diftrefs can be taken for

it; but that this is fupplied by action of debt which lies for fuch rent, and fhall devolve to the fucceffor; and that fuch rent does not lie only in privity of contract, as a fum in grofs, but is incident to the reverfion, otherwise the fuc.' ceffor could not have it, being only privy to the estate, not to the personal contracts of his predeceffor.

ALL the books, however, agree, that a leafe for three lives or twenty-one years, of a manor, with the advowson appendant, or of lands or houses and of tithes ufually let therewith, referving the ancient rent, is good, and shall bind the fucceffor within thefe ftatutes; for though the rent does not iffue out of the advowfon, tithes, &c. in point of remedy, yet the rent is greater in refpect of them, and the fucceffor has his remedy for the whole rent upon the lands, or other corporeal hereditaments let with them; and Vaughan proves this from the expreís words of 13 El. c. 10, which are, that all leafes, by any fpiritual or ecclefiaftical perfons, having lands, tenements, tithes or hereditaments, other than for twenty-one years or three lives, fhall be void; fo that the statute plainly fhews, that in fome way or other, tithes may be leafed for twenty-one years or three lives; and if they cannot be leafed fingly, it must be with lands ufually let with them (a).

BUT this doubt is now removed by statute 5 G. 3, c. 17, by which it is enacted "that all leafes for one, two or three lives, or any term not exceeding twenty-one years, of any tithes, tolls, or other incorporeal hereditaments, folely, and without any lands or corporeal hereditaments, by any archbishop, bishop, mafter and fellows, or other head and members of colleges or halls, deans and chapters, precentors, prebendaries, masters and guardians of hospitals, and

(a) Vid. 3 Bac. Abr. Leafes, E. 5, where all the cafes on the subject are put together.

every other person and perfons, who are enabled, by the feveral statutes now in being, or any of them, to make any leafe or leafes for one, two or three lives, or any term or number of years, not exceeding twenty-one years, of any lands, tenements, or other corporeal hereditaments, shall be deemed as good and effectual in law against such archbishop, bishop, mafters and fellows, or other heads and members of colleges or halls, deans and chapters, precentors, prebendaries, masters and guardians of hospitals, and other perfons fo granting the fame, and their fucceffors, in the fame manner as any lease made by such persons or bodies politic of any lands or other corporeal hereditaments now are, by virtue of the statute of 32 H. 8, or any other ftatute now in being."

AND it is enacted further, "that in cafe the rent reserved on any such lease should be in arrear and unpaid, by the fpace of twenty-eight days after any of the days on which it is made payable, the leffors, or their executors, adminiftrators and fucceffors refpectively, may bring an action or actions of debt against the leffee or leffees, their heirs, executors, adminiftrators or affigns, for the recovery of such rent in arrear, in the fame manner as any landlord or leffor or other person or perfons may do for the recovery of arrears of rent due on any leafe or leafes for life or lives, or years, by the laws now in being."

BUT it is provided "that nothing in this act contained fhall be construed to extend to enable any mafter and fellows, or other head and members of colleges, or halls, deans and chapters, precentors, prebendaries, masters and guardians of hofpitals, or other ecclefiaftical perfons, to grant leases for any longer or other terms than by the local ftatutes of their several foundations, they were before respectively enabled to do."

THE words of the ftatute of Henry the eighth, which express the seventh requifite to be observed with respect to the leases in queftion, are these, "That the act shall not extend to any leafe of any manors, lands, tenements, or hereditaments, which have not most commonly been letten to farm, or occupied by the farmers for the space of twenty years next before fuch lease thereof made."

On this clause it has been held, that where the temporalties of a bishopric come into the hands of the King, and he keep them twenty years or more, and during that time let to farm, for eleven years or more, lands which had not been before ufually let, and then appoint a fucceffor, and restore him the temporalties, the latter cannot, by any lease of those lands for the leafing of which he has no other warrant than this leafing by the King, bind his fucceffor: For the King might have let the bishop's palace, or the demefnes about it, and then if the fucceffor might likewise make a binding leafe of them for twenty-one years or three lives, and should die or be removed, that which was intended to give the farmers a fecure poffeffion during their leafes, would introduce a great inconvenience on the fucceffor: It is therefore an established rule, that the previous letting which is required to make the lease for twenty-one years or three lives, binding on the fucceffor, muft have been by the persons intitled to the poffeffion of the lands, or the occupation by the farmer, by their permiffion (a).

IT is certain that a letting or occupation for eleven years, at one or at feveral times, within the twenty years next before the making of the leafe, is fufficient; but feveral inconveniencies may poffibly arise from.requiring that the eleven years' occupation fhould be abfolutely within

(a) Vid. Co. Lit. 44 a. Palmer. 175. 3 Bac. Abr. Leases, E. 6.

the