benefit of the charity, was an abuse in the application of the charity funds (r).

The court, with the view of guarding against possible fraud, adopts the general rule of not allowing a governor of a charity, whose duty it is to let at the greatest possible advantage, to take a lease. Therefore, a governor, who has taken such lease, will be ordered to deliver up the possession of the premises, and charged with the full value of it, should it appear that the rent he has paid fell short of the actual value (s).

It seems that trustees of a charity are not justified in stipulating for a collateral advantage to themselves; thus a covenant in a lease for the lessees to grind at the mill of the trustees, was held improper (t).

6. Power of leasing lands given for the maintenance of highways.] By 13 Geo. III. c. 78, s. 51, it was enacted, that where any lands had been or should be given for the maintenance of causeways, pavements, highways and bridges, all such persons who were or should be enfeoffed or trusted with any such lands, should let them to farm at the most improved yearly value without fine; and that the justices of the peace in open sessions should inquire by such ways and means as they should think fitting, into the value of all such lands so given or to be given, and order the improvement and employment of the rents and profits thereof, according to the will and direction of the donor of such lands, if they found that the persons so intrusted had been negligent or faulty in the performance or trust (except such lands had been given for the uses aforesaid, to any college or hall in either of the universities of this kingdom, which had visitors of their own).

By the 50 section of stat. 5 & 6 Will. IV. c. 50 (which repeals the last statute), it is enacted, " that when any lands

(r) Attorney General v. Dixie, 13 Clarendon, 17 Ves. 500. Ves. 540, 541. (t) Attorney General v. Mayor of (s) Attorney General v. Earl of Stamford, 2 Swanst. 592.

or tenements have been or shall be given for maintenance of highways, the profits and proceeds of which are to be applied and disposed of for no other use, intent, or purpose whatsoever, all persons who are or shall be enfeoffed or trusted with any such lands or tenements, shall, and they are thereby authorized and required to let them to farm at the most improved yearly value, without fine, for any term not exceeding ninety-nine years; provided nevertheless, that previous to the granting of such lease, the consent of the justices at a special sessions for the highways, neither of such justices being interested therein, by writing under their hands, shall be obtained as to the amount of the rent to be received [reserved], and the duration of the term" (u).

7. Miscellaneous points relating to tenants of charity estates.] The court will order the production of documents in aid of a suit instituted for the purpose of setting aside leases. Thus a defendant was ordered to produce a settlement, admitted by him to be in his possession, which affected long leases which had been granted of a charity estate (v). So the lessees of a charity estate were ordered, in a similar suit, to produce a case and an opinion of counsel upon it, which had been taken many years before, for the mutual benefit of both parties respecting their rights to the property in question (w). It has, however, been held, that a party has a right to the production of such deeds only as either sustain his own title exclusively, or sustain it jointly with that of his adversary; and that a party is not compellable to produce for the purposes of

(u) By the 93 sect. of 5 & 6 Will. IV. c. 50, it is enacted, that the powers and provision in that act contained, with respect to the widening and enlarging, diverting, turning, or stopping up any highway, shall be applicable to all highways which any person, bodies politic or corporate, is or are bound to repair, by reason of any grant, tenure, limitation or appointment of any chari

table gift, or otherwise howsoever.

(v) Attorney General v. Ellison, 4 Sim. 236. See ante, p. 453.

(w) Attorney General v. Berkeley, 2 Jac. & Walk. 291. See Radcliffe v. Davey, 3 Br. P. C. 538, 2nd ed.; 18 Ves. 472; The Princess of Wales v. Lord Liverpool, 1 Swanst. 114, 580; Preston v. Carr, 1 Younge & Jerv. 175.

an action or suit, cases laid before counsel in the progress of a cause, and prepared in contemplation of such action or suit (x).

It is a well established principle in the relation between landlord and tenant, that a tenant, so long as he retains possession, cannot dispute the title of the landlord from whom he received possession; for there is an implied covenant that the landlord shall protect the tenant's enjoyment, and that the tenant shall guard the landlord's title. A tenant wishing to dispute the landlord's title, should give up possession (y). This principle is adopted by courts of equity; and therefore, on an information for setting aside a lease of charity lands, it was held, that the lessees were estopped from disputing the title of the persons under whom they held, and that if they intended to dispute it they ought to have given up possession (z).

The right of a parish to lands, was held to be conclusively established, although no conveyance was produced, where it was proved, principally by a series of entries in parish books, that the lands in question had, for 110 years, been uniformly dealt with as the separate property of the parish, and had from time to time been let by the inhabitants of the parish assembled in vestry, and that the rents of such lands had been received by the churchwardens and overseers of the parish, and applied in the repairs of the church, in the maintenance of the poor, and in other parochial purposes in aid of the rates. For such possession, whatever might have been its origin, coupled with the circumstance that the party who claimed in opposition had laid by 110 years without making any objection, was decisive of the right,

(x) Bolton v.Corporation of Liverpool, 1 Coop. Rep. Lord Brougham's Judgments, 19. See Hughes v. Biddulph, 4 Russ. 190.

(y) Cowtan v. Williams, 9 Ves. 107; East India Company v. Edwards, 18 Ves. 378; Smith v. Target, 2 Anstr. 531; Homan v. Moore,

4 Price 7; Fleming v. Gooding, 4 M. & Scott, 455; S. C. 10 Bing. 549; see Wood v. Day, 1 B. Moore, 389; S. C. 7 Taunt. 646; Rogers v. Pitcher, 6 Taunt. 202; S. C. 1 Marsh. 541.

(z) Attorney General v. Lord Hotham, 1 Turn. & Russ. 209.

and raised a presumption that the lands had been originally granted to trustees for the benefit of the parish. And although commissioners under an inclosure act, who had no jurisdiction to determine with respect to the title to the lands in question, had allotted them to the defendants who claimed against the parish, the decision of such commissioners was a nullity, and binding on no party (a).

A recital in an old lease granted by a corporation, that the rents of an estate were applicable to charitable purposes, was held sufficient to establish that fact, in opposition to the corporation, who insisted that the rents were applicable to their common use, or as they should direct (b).

A declaration of uses by the founder of a charity was presumed from an entry in an ancient book in the year 1659, purporting to be such declaration, but without signature or date, the book having been kept by the trustees of the charity for entering their proceedings, and containing an order by the trustees six years after the creation of the trust, that the declaration of the founder be there entered as a direction to the trustees (c).

In an ejectment brought upon the joint demise of several trustees of a charity, it was held not be sufficient for the defendant, who had paid one entire rent to the common clerk of the trustees, to show that the trustees were appointed at different times, as evidence that they were tenants in common; for, as against the defendant, his payment of the entire rent to the common agent of the trustees, at all events, was sufficient to support a joint demise, without making them show their title more precisely (d).

A majority of the trustees of a meeting-house may bring an action of ejectment in the names of the whole body (e).

(a) Attorney General v. Lord Hotham, Turn. & Russ. 209; S. C. 3 Russ. 413.

(b) Attorney General v. Lord Gower, 9 Mod. 224, 5th ed.; S. C. Barnard. 145, 152.

(c) Attorney General v. Boultbee,

2 Ves. jun. 380.

(d) Doe d. Clarke v. Grant, 12 East, 221. See Doe d. Marsack v. Read, Ibid. 57.

86.

(e) Doed. Dupleix v. Roe, 1 Anstr.

A lessee, unless restrained by the terms of the lease, is entitled to cut down timber sufficient for repairs; but the lessee must apply such trees in repairs, and, consequently, he is not at liberty to sell the trees and apply the produce to the same purpose, such sale being waste (ƒ).

In an early case, where a lessee of charity lands had cut down timber growing thereon and used part in repairs, and sold the rest, it was resolved, " that the cutting down of the trees was a waste, for which the lessee should pay damages, according to the value of them; and bestowing but part upon the house, not being able to prove the quantity, it was a fraud in him, to colour his disposing the residue otherwise; but if he had bestowed all, or the greatest part of the trees in the repair, it had been no waste" (g).

The purchaser of a reversion, subject to a term of years, but not without impeachment of waste, created for the benefit of a charity, has no right to enter upon the lands to cut timber; and if allowed to do so by the trustees of the charity, it is a breach of trust, in respect whereof compensation must be made to the charity (h).

The trustees of a charity, in whom the inheritance of an estate is vested, are not subject to the rules, with respect to cutting timber, which apply to persons having particular interests in estates. The trustees have a discretion upon the subject which must be exercised fairly, and in such a manner as the provident administration of the estate requires.

Lands in Surrey and Hertford were granted to trustees and their heirs, in trust, out of the rents and profits, to raise and pay certain annual sums for the benefit of the rector and scholars of Exeter College, and to pay the residue after taxes, charges of repairs, &c. deducted, yearly among the vicars, for the time being, of four parishes therein named, for the augmentation of their respective livings; they, the said vicars, to collect the rents and account with the trustees,

(f) Co. Litt. 53b; Lee v. Alston, 1 Ves. jun. 78; Gower v. Eyre, Coop. C. C. 154; Godb. 28; Maleverer v. Spinke, Dyer, 35 b.

(g) Inhabitants of Eltham v. Warreyn, Duke, 67, 123 (641).

(h) Bays v. Bird, 2 P. Wms. 397.