one years, granted a lease for that term, a covenant to make it, by renewal, sixty years, was held not binding in equity, as being equally prejudicial to the hospital as a lease for sixty years (m).

A perpetual right of renewal upon particular terms would be equivalent to an alienation; and a bill to compel an hospital to renew a lease upon certain terms under two years' reserved rent, was dismissed (n).

In another case, a bill to enforce a perpetual renewal of a lease of lands belonging to an hospital was dismissed, although the claim was founded upon usage sanctioned by decrees of the Court of Chancery, but was not supported by the custom of the country, nor the contract, nor within the power of the hospital to grant, nor according to the true construction of the decrees (o).

Although the jurisdiction of the court, to give effect to an award confirmed by the decree of the court in the case of a charity, was considered doubtful; the renewal of a lease upon the terms of the award, having been twice directed by the court, was again enforced. It appeared that in 1712 an information was filed, at the instance of the hospital of St. John, and according to a practice prevailing at that time, instead of proceeding in the Court of Chancery with the information, all matters in dispute were referred to the then master of the rolls, who made an award which was afterwards confirmed by that court. It was ordered by the award, that the master of the hospital, with the consent of the brethren and sisters for the time being, might, under their common seal, from time to time, as any of the leases should be surrendered or determined upon the death or deaths of any life or lives, or upon the changing of any life or lives, grant new leases not exceeding three lives at the most, and to be nominated by the respective tenants, reserving the same rents as were thereby

(m) Lydiatt & another v. Fouch, 2nd ed. 2 Vern. 410.

(n) Somerville v. Chapman, 1 Br. C. C. 61. See Bettesworth v. Dean, &c. of St. Paul's, 1 Br. P. C. 240,

(0) Watson v. The Master, &c. of Hemsworth Hospital, 14 Ves. 324. See 2 Vern. 596; Blackston v. Hemsworth Hospital, Duke, 49 (644).

directed to be reserved; and that the fine to be taken on renewing such lease should not exceed one year's value for a life, according to a particular thereto annexed, adding interest for the time such renewal should be neglected by the tenant, to be computed from the end of six calendar months after the former life determined; and that the rents or fines should not be increased without the leave of the court. Upon the dropping of one of the lives named in the last lease, the hospital demanded a much larger fine than had been paid on the previous renewals; and a petition was presented, praying that the hospital might be ordered to accept a surrender of the existing lease, and to grant a new lease for the lives of the two remaining cestuis que vie, and of some other person, upon payment of the same fine as had been paid on several preceding renewals, or that the master might ascertain what fine ought to be paid for the renewal pursuant to the award and decree. As it appeared that Lord Hardwicke had, on two occasions, assumed jurisdiction in this charity upon petition, and that the property had been enjoyed under the award, Lord Eldon acted upon it, but thought that a larger fine, according to the increased value of the land, ought to be paid for the renewal; and it was referred to the master to ascertain the amount of the fine to be paid (p).

A college, seised in fee, was restrained by its constitution from making any lease, except for twenty-one years, at rack rent. The college made a lease accordingly, to A., who, having much improved the premises by building two houses, an entry was made thereof in the audit book, and a recommendation signed by the master-warden and most of the fellows, to grant A. a new lease at the expiration of the old term, at the same rent, and under the same covenants; and when the term had nearly expired, an order was made at another audit, for granting such new lease. On a bill by the administratrix of A. to compel the college to grant such lease. It was held that the contract for leasing by the masterwarden and fellows, was not binding on the college, it not

(p) Attorney General v. Clements, Turn. & Russ. 58.

being under the college seal; for a contract to bind any corporation as to its revenues, must be under its common seal. Although there would have been some equity if the intestate had, after the order for a new lease, laid out money in improvements, in confidence and reliance on such order, yet even then reparation must have been obtained only from the private persons signing such order, and not from the college; and as the repairs done by the lessee after the order, were only such as he was bound to do by the old lease, the bill was dismissed with costs (q).

By 39 & 40 Geo. III. c. 41, where any part of the possessions of any ecclesiastical persons shall be demised by several leases, which was formerly demised by one, or where a part shall be demised for less than the ancient rent, and the residue shall be retained in the possession of the lessor, the several rents reserved in the separate demises of the specific parts, shall be taken to be the ancient rents; provided, that if the whole of such premises shall be demised in parts, the aggregate rents reserved shall not be less than the old accustomed rent; and so in proportion where a part shall be retained in possession by the lessor.

Incumbents of livings are enabled by statutes 17 Geo. III. c. 53, and 21 Geo. III. c. 66, to raise money by mortgage for repairing or building parsonage houses.

By stat. 55 Geo. III. c. 147, every incumbent of any ecclesiastical benefice is enabled to exchange parsonage houses and glebe lands, with the consent of the patron and bishop, for other houses and lands; and also to purchase lands to be annexed to such benefices as glebe land thereof; and by mortgage of their tithes, rents, and other profits, to raise money for such purchases.

The exchange of lands subject to trusts for charitable uses, for other lands, is authorised by stat. 1 & 2 Geo. IV. c. 92 (r).

The stat. 5 & 6 Will. IV. c. 30, for facilitating the exchange of lands lying in common fields, extends to ecclesiastical

(q) Taylor v. Dullidge Hospital, (r) See Appendix. 1 P. Wms. 655.

persons or corporations, and to the trustees for charitable

uses.

By 58 Geo. III. c. 45, s. 36, all bodies politic, corporations aggregate or sole, and trustees and feoffees in trust, may convey land for the sites of new churches and chapels; and by the 59 Geo. III. c. 134, s. 15, they are empowered to give up rights of patronage, or to enter into agreements relating thereto, with the commissioners for building new churches.

By stat. 3 Geo. IV. c. 72, s. 1, any corporation, or any trustees, guardians, commissioners or other persons, having the control, care or management of any hospitals, schools, charitable foundations, or other public institutions, by any conveyance signed by or under the seal of such body or corporation, may convey any hereditaments, and with the consent of the lord, enfranchise copyholds, to be used as sites for churches or chapels, or for church or chapel yards, or cemeteries, or for enlarging the same, or for parsonages or residences for ecclesiastical persons.

Long leases made under an unlimited power of leasing, given by the legislature to ecclesiastical persons, will not be set aside by a court of equity upon the principles applicable to the leases of charity estates. Thus, by a private act of parliament (s) the vicar of Stockton-upon-Tees was enabled, with the consent of the vestrymen of the parish for the time being, to demise certain lands to any person or persons whomsoever, for such terms of years, at such rents, reservations, or payments, as to him and them should seem meet; provided that the yearly rent so to be reserved, be the highest that could be got, and no fine be taken. The vicar and vestrymen granted various leases for 999 years, at rents making together an increase in the vicar's income of about 50l. a-year. Informations, seeking to set aside these leases after the lapse of a century, upon the ground that the vestrymen were to be considered in the nature of trustees, and therefore that the leases were subject to the same rules as those of charity estates, were dismissed, because mere length of time is not

(s) 1 Geo. I. st. 2, c. 24.

sufficient to set aside a lease made under a power of an unlimited kind, and without fraud (t).

SECTION III.

Of the Alienation of Estates belonging to Charities.

1. Of Sales and Leases which have been held valid.
2. Of Leases which have been set aside, p. 697.

3. Of particular Directions by the Founder as to Leases,
p. 704.

4. Of Underlessees claiming under Leases declared to be void, p. 705.

5. Of Persons incapable of taking Leases, p. 707.

6. Power of leasing Lands, given for the maintenance of
Highways, p. 708.

7. Miscellaneous Points relating to Leases, p. 709.
8. Of the Alienation of Rights of Patronage, p. 713.

1. Of sales and leases which have been held valid.] There is no positive law restraining the alienation of estates given for charitable purposes: the trustees in whom such estates are vested, may, at law, make an absolute disposition; but if it be improvident or injurious to the interests of the charity, the transaction will be set aside in a court of equity, as a breach of trust. The alienation of charity estates not improvident but beneficial to the charity, and conformable to the rule which ought to guide the trustees, may be good. The principle that governs all the cases is this, that the trustees are bound to a provident (u) administration of the

(t) Attorney General v. Moses, 2 Madd. 294. Attorney General v. Wray, Jac. Rep. 307.

(u) Lord Brougham said, “The very word provident which the law

uses in decisions on this subject, shows by its own force, that you are to look forward, but not to look forward with an indefinite or prophetic eye, but in the way in which