tenance and punishment of offenders, maintaining gaols and corporate buildings, payment of constables, &c. If there be a surplus, it is directed to be applied for the public benefit of the inhabitants, and improvement of the borough; if the fund be insufficient, the deficiency is to be made up by a rate (y). The treasurer's accounts are directed to be open at all times to the inspection of the aldermen and councillors, to be audited twice in every year by the auditors of the borough, and an abstract of them to be yearly printed for the use of the rate-payers (z).

The council, under the act, are not enabled, without the authority of the lords of the treasury, to sell, or to lease corporate property for more than thirty-one years, except for building or improvement, where the lease may be for seventyfive years (a); or to mortgage or alienate the real property of the corporation, in the absence of any covenant, contract, or agreement bonâ fide made or entered into previous to the 5th June, 1835, or a resolution entered on the corporation books previous to that period; and in the leases which the council may make, there must be reserved such rents as to the council shall appear reasonable, without taking any fine for the same (b). Whenever the council may deem it expedient to sell, alienate, demise, or lease property for a longer time than thirty-one years, they may do so with the consent of the lords of the treasury on the terms approved by them, provided that notice of the intended application of the council for such purpose to the lords of the treasury, be fixed on the outer door of the town hall, or in some public situation within the borough, for one calendar month before such application, and a copy of the memorial intended to be sent to the lords of the treasury be kept in the town clerk's office during such calendar month, and be freely open to the inspection of every burgess (c).

The council possess the same power as before the passing

(y) 5 & 6 Will. IV. c. 76, s. 92.

(z) Id. s. 93.

(b) Id. s. 94.

(c) Id.

(a) Id. s. 96.

of the act to renew or grant leases for lives or years, in all cases in which the corporation, previously to the 5th of June, 1835, had been bound or engaged by any covenant or agreement, express or implied, or had been enjoined by any deed, will, or other document, or warranted by ancient usage or practice, to renew any lease for years or lives, at any fixed period, at a fine certain; or when they had, under any special or specific terms, made or renewed any lease, upon the payment of an arbitrary fine (d).

The council first to be elected in any borough, may call in question all purchases, sales, leases, and demises, not made in pursuance of a bonâ fide covenant, contract, or resolution, made before the 5th of June, 1835, and all dispositions of the real and personal estate, of which, on or before that day, the body corporate was seized or possessed, either in their own right, or as trustees for charitable or other purposes, which had been made by the former corporation, between the said 5th of June, and the day of the declaration of their election. And if there is ground for believing that any such disposition was collusively made for no consideration, or for an inadequate consideration, the council, within six calendar months after the first election of councillors, may call in question such dispositions, the validity of which is to be determined by a jury, in the manner prescribed by the act (e). If, however, any such body corporate were in their corporate capacity, and not as charitable trustees, seized of any manors or other hereditaments, whereunto any advowson or right of nomination or presentation is annexed, or of any advowson in gross, or any right of presentation to any ecclesiastical preferment, such advowson or presentation is directed to be sold, with the consent of the ecclesiastical commissioners, the produce to be vested in the public funds, and the interest yearly carried to the account of the borough fund (f).

(d) Id. s. 95. (e) Id. s. 97.

(ƒ) Id. s. 139.

SECTION II.

Of the Alienation of Estates belonging to Eleemosynary Corporations.

Ir does not come within the compass of this work to treat at large of the statutes restraining the alienation of property belonging to ecclesiastical persons (g); but it is necessary to advert to the subject for the purpose of introducing some cases immediately relating to charities.

The statute 13 Eliz. c. 10, s. 3, makes void all leases, gifts, grants, and conveyances, by any master and fellows of any college, dean and chapter of any cathedral, master or guardian of any hospital, parson or vicar, of any houses, lands, or other hereditaments belonging to any such body corporate, other than for the term of 21 years or three lives, from the time of granting such lease, whereupon the accustomed yearly rent or more, shall be reserved.

The statute 18 Eliz. c. 11, s. 2, declares that all leases within the statute 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. By the 17th and 19th sections of the former act, leases of houses in any city, borough, town corporate, or market town, may be let for forty years, provided such houses be not the mansion houses of the lessors, nor have above ten acres of ground belonging to them, and provided that no lease of such houses be made in reversion, nor without reserving the accustomed rent at least, nor without charging the lessee with repairs.

The acceptance of a second good lease will operate as a surrender of the former; but the reason does not hold in the case of accepting a new void lease, or one that the lessee cannot enjoy. There is no inconsistency in the acceptance

(g) For the necessary information es, (E), (F), (G), (H). Chambers on this subject, see Bac. Abr. Leas- on Leases, 250-280.

of a new good lease being a surrender of the former; but the accepting a new void lease cannot show an intention to surrender the other, for a void contract for a thing which a man cannot enjoy, cannot in common sense and reason imply an agreement to give up a former contract (h).

The authority to let lands under the act, 13 Eliz. c. 10, is confined to lands which had been formerly letten, because the act expresses that the accustomed rent must have been reserved, and unless accustomably let, there can not be an accustomed rent (i).

The prohibition in the stat. 13 Eliz. c. 10, s. 3, extends to an ecclesiastical body, which is seized of a rectory as a trustee for a charitable purpose, as for the support and maintenance of a grammar school, and a covenant by such body to alien in fee, will not be more valid and effectual than an actual grant in fee (j ).

By stat. 39 Eliz. c. 5, s.2, concerning the erection of hospitals and houses of correction (k), it is enacted, "that all leases, grants, conveyances or estates, to be made by any corporation to be founded under that act, exceeding the number of twentyone years, and that in possession, and whereupon the accustomable yearly rent or more, by the greater part of twenty years next before the making of such lease, shall not be reserved and yearly payable, shall be void."

A lease by the warden and poor of an incorporated hospital, under the corporation seal, made before the expiration

ascertain with precision what the
nature of the master or guardian of
an hospital was. Enough, however,
appears that they were always of a
charitable nature, in which the indi-
vidual seized of the estate, might
have, and no doubt often had, an
interest, but not universally, nor
necessarily, any personal interest.
In the particular enactment (13 Eliz.
c. 10, s. 3), the legislature has clearly
protected charitable interests, and
that to a great extent." Ibid. 216.
(k) Ante, pp. 43-45.

of a former lease to a lessee who then had only a part interest in the first lease, but to whom the entire interest was assigned within three years afterwards, was held to be binding upon the succeeding warden and poor of the hospital (1).

Spiritual persons and others restrained by the statutes of Elizabeth, have no power to make leases with covenants for renewal; so where an hospital or corporation is restrained by the terms of its constitution from granting leases for more than twenty-one years, it has no more power to enter into a binding covenant for perpetual renewal of the term, than originally to grant a lease exceeding the prescribed limits.

Where an hospital, which by the rules made on its foundation, was restrained from making any lease exceeding twenty

(1) Grumbell v. Roper, 3 B. & Ald. 711.

See 2 Y. & J. 216.

The hospital in this case was founded by virtue of letters patent in the 38th year of Eliz. or under the stat. 39 Eliz. c. 5, which passed before the actual creation or foundation of the hospital. By indenture dated the 27th October, 1796, the warden and poor of the hospital, in consideration of a surrender of a former lease (which would have expired on the 29th September, 1803,) and of a fine, demised certain premises to Shore and Price, from Michaelmas, 1796, for twenty-one years, at the yearly rent of 157. At the time of granting this lease, the old lease was vested in Shore, Price and Hood, the latter of whom did not join in the surrender. By an indenture, dated the 23d February, 1804, the warden and poor, by their corporate description, in consideration of the surrender of a former lease theretofore granted to Shore and Price, and in consideration of a fine, demised the premises to Irvine, for twenty

one years from Michaelmas then last, at the yearly rent of 151. Irvine then had the equitable interest in some shares of the property, and, in 1805, acquired the whole legal and equitable interest in the old lease. On a case directed by the Court of Chancery, whether the lease of the 23d February, 1804, would bind the succeeding warden and poor of the hospital, it was contended that such lease was void within the 13 Eliz. c. 10, and 18 Eliz. c. 11, the old lease not having expired nor been actually surrendered within three years after the making of the new lease. In favour of the lease it was contended, that it was not affected by those restraining statutes, but was valid within the stat. 39 Eliz. c. 5; and that the acceptance of the new lease in 1804 determined the one in possession. The judges of the Court of King's Bench certified, that the lease of the 24th Feb. 1804, would bind the succeeding warden and poor of the hospital, but the grounds of their decision do not appear.