will be productive of great and lasting benefits to society.

The laws which relate to the property of the Church, will, we think, derive some benefit from discussion, for they appear to us to be unsatisfactory in several respects. There are obscurities in some parts which occasionally give rise to cases of individual inconvenience, as may be exemplified by the case of Bryan v. Whistler, stated in our last Number; and in other parts provisions in themselves useful and perspicuous, are so fettered with technicalities that they are seldom called into operation.

But to proceed to matters more immediately connected with the subject of our author's Essay. Among the several questions of interest which have lately occupied the attention of the public, the commutation of Church property holds a conspicuous place, and is one of peculiar importance to our readers. Upon the nature of the question itself, and the measures proposed for carrying it into effect, our opinion has been already given.* The above pamphlet appears to have been published with a view to show, that, under the present law, Rectors and Vicars have powers to lease their property, amply sufficient to enable them to effect every legitimate object connected with its permanent improvement and beneficial enjoyment. "For," says the author, in his preface," since the question of commuting tithes is now before the public, it may be suggested, that it seems doubtful whether this property of the Church should be further dealt with than by leases for twenty-one years, or three lives, which Rectors and Vicars, as the law now stands, have the power to make.” With a view to establish this position, the learned author traces the power, as he himself states, "in a general manner by a review of the statutes affecting it;" (p. 13) and the following rules, collected from the provisions of the several acts of Parliament referred to, and the cases which have been decided upon them, are stated as containing all the requisites of a perfect and valid lease of Church property:

See the Christian Remembrancer for the months of May and June.

1. The lease must be by deed indented. 2. It must be made to begin from the making thereof.

3. A lease, if concurrent, must be for years, as must also the existing lease, which must be absolutely determined within three years from the making of the concurrent lease. For the statute only allows one kind of lease to be existing at the same time: and if there be an existing lease for lives, a concurrent lease for lives cannot of course be made; for a freehold cannot be made to commence in futuro.

4. A lease must not exceed three lives, or twenty-one years; it may be for a less

term.

5. It must be of tenements for which a rent may be reserved, which may be recovered by the successor, as well as the lessor. This rule is so stated by Sir Edward Coke, as to exclude tithes; but it has long been clear law, that a lease for years of tithes is valid.

6. The tenements must have been most commonly letten to farm, or occupied by the farmers thereof, by the space of twenty years next before the lease be made.

7. Upon every such lease there must be reserved yearly to the lessor and his successor, so much rent, or more, as hath been most accustomably yielden or paid for the tenements so to be letten within twenty years next before such lease; and so that the successors may have the like remedies for the rent as the lessor.

8. The lessee must be punishable for committing waste.

9. The patron and ordinary must assent to the lease by deed; this is required by the common law, and has never been enforced or altered by any statute.-Pp. 16, 17.

Upon the sixth, seventh, and ninth rules, some remarks are subjoined, which, though extremely judicious and relevant, prove, in our humble opinion, a point different from that which the learned gentleman would wish to establish, namely, that the law is sufficient as it is. We shall subjoin the material parts of these remarks, that our readers may exercise their own good judgment, whether, taking the learned gentleman's own statement, our position or his be most defensible.

RULE 6.-The tenements demised must have been "most commonly" letten, or in the hands of tenants, for twenty years previously.

Any species of tenancy will satisfy this rule, at will, from year to year, or for

years or lives, and whether granted by parol or by deed, by copy of court roll, covenant to stand seised, or any other instrument.

"Most commonly requires that the subject demised should have been in the hands of tenants at least eleven "at years, one or several times," during the twenty years immediately preceding. The intention of this provision was obviously to prevent bishops and other ecclesiastical persons from injuring or annoying their successors, by leasing their houses of residence, and gardens and lands, convenient for the occupation thereof.-P. 18.

This being the object of the legislature, and being so plainly and directly intimated, it would almost appear needless to say, that the restrictions contained in the rule we are now considering, should be so construed as to effectuate that intention, and no more. And that end being gained, the courts of law might rest content with a construction of the act which, giving full effect to the spirit and intent of the legislature, would still prevent the occurrence of an inconvenience to which the observance of the strict letter of the restriction would seem naturally to lead. For it is very plain that there may be in many instances portions of the glebe lands of a Rectory or Vicarage, other than the gardens and lands usually occupied with the house of residence, which have never formed the subject of demise, and upon which, therefore, the "accustomed rent," one of the requisites of the statute, cannot be reserved. These lands, it may now be desirable should be leased out, but if the restriction be required to be kept to the letter, the Rector could not complete such an arrangement; the lands, possibly inconvenient for personal occupation, would, if there were no other means of letting them than those directed by the act, remain a useless and unproductive portion of the revenues of the Church. Yet the courts have decided that no land can be let save that which has been commonly demised; and leases of waste land, which was of no value until it came into the hands of a tenant, have been declared void for this unsatisfac

tory reason. * To prove that, in calling

See Doe dem. Tennyson v. Lord Yarborough, 7 Moore, 258.; also Bishop of Hereford v. Scory, Cro. Eliz. 617.

these reasons unsatisfactory, we do not lift up our voices against authority without just grounds, would require a discussion too long to be either convenient to ourselves, or agreeable to our readers. Suffice it to say, that it appears to us that if the courts of law had extended to the statute of Elizabeth, that equitable construction, which the rules they lay down, as influencing their decisions, would certainly have warranted, the inconvenience we are now complaining of would not have arisen. If they had considered that the adequacy of the rent, to be determined by reference to the bona fide value of the land, had been the point which it was most for the interest of the successor should be strictly insisted upon, instead of the immaterial question, whether or not the land had ever before been demised, leases in themselves fair and honest in every point of view would not have been declared void to the prejudice of parties, who had given a valuable consideration for the interests intended to be assured to them; and a system of demising at nominal or nearly nominal rents-a system which has the effect of turning what was wisely intended to have been a regular and ascertained yearly income into a sort of life insurance speculationwould have never grown up into a practice too prevalent and too strongly sanctioned to be now called in question. The learned author himself seems to feel the inconvenience of this rule, though he afterwards proceeds to justify it; for he says, having put the case of a proposal being made to inclose and improve a piece of waste land in consideration of a lease for three lives being granted, "The above rule, if taken according to the letter, would certainly render such a lease invalid against the successor; but might it not be contended, that it clearly was not the meaning of the statute to prevent such a piece of ground being leased, and that the successor, for whose benefit the statute was especially made, would be thereby benefited?"

In cases of newly enclosed land, the legislature has interposed to prevent the operation of this rule; and by the General Inclosure Act, 41 Geo. III. c. 109. § 38, Rectors and Vicars are empowered to lease their allotments,

with consent of Patron and Ordinary, for any term not exceeding twenty-one years, reserving thereon the best and most improved rents that can be reasonably gotten for the land, without taking any fine, premium, sum of money, or other consideration, for the making or granting any such lease or demise. These provisions it will be seen are sufficient for, and well suited to the object they have in view.

RULE 7.-The accustomed rent or more must be reserved.

The statute of 32 Henry VIII. requires that there be reserved so much yearly rent or more as hath been most accustomably yielden or paid for the tenements demised within twenty years next before the lease thereof be made. The 13 Eliz. c. 10, declares that no lease shall be valid unless the accustomed yearly rent or more be reserved. The latter statute is more general than the former, but the courts have always held they are pari materia and must be construed together; therefore we may conclude that "the accustomed rent," which will satisfy the statute of Elizabeth, is that which has been most accustomably paid within the twenty years preceding the lease.-P. 22.

The words "accustomed rent," have been fated to be the passive instruments of much inconvenience. They were not only a stumbling block in the way of the intention of the legislature, and made the means of defeating a positive good, in order to prevent a possible evil, but they have retained a character, which makes them the cause of still greater inconvenience-a character which, though it may be said to savour of the sublime, cannot be allowed to possess much of the useful-their meaning has never yet been ascertained-it has never yet been decided what is an accustomed rent." The cases that have occurred upon this point would present a most unpleasing proof of the manner in which great minds are compelled to lay aside their greatness, in order to apply themselves to a solemn consideration of frivolous and absurd distinctions. It will be sufficient for our readers to state the case advanced by our author as a grave authority.

A lease was made by the Minor Canons of St. Paul's, 13 Car. II. to a man and his wife, for twenty-one years, of the Rectory of St. Gregory, render

ing 40l. per annum, with a covenant from the husband, to pay a couple of capons yearly, or 6s. 8d. in money. It appeared from old leases, that "divers years ago" the rent had been 251. then 371. afterwards 381.; and in the lease immediately preceding the one in question, 401. and a couple of capons were reserved-and the exceptions out of the other leases were more large than out of the lease in being. And it was held by Chief Baron Hale, 'That 'the Stat. of 32 Hen. VIII. c. 28. is a

pattern for expounding of that of 13 • Eliz. c. 10. But that the accustomed 'rent mentioned in the statute ought 'to be understood of the rent reserved

upon the last lease, and not upon the 'first; for that the rent having been 'altered since, cannot be called the ac'customed rent. He held, likewise, that 'the variances betwixt the former 'leases and this in being, both with respect to the exceptions of tithes and in the reservation itself, are material ' and sufficient to make void the lease. For in the former lease before this the capons were reserved, and so part of 'the rent; here the lessee only covenants to pay them, which covenant of his will 'not bind his wife if she survive him, and, therefore, his covenant will not 6 amount to a reservation. Otherwise 'if both had covenanted; or if the lease 'had been made to the husband alone 'with such a covenant.'*

Morrice v. Antrobus, Hard. 325. Orly v. Mohun, Gilb. Ca. Eq. 58.

by deeds; but as neither Patron nor Ordinary have any estate or interest in the property leased, and as the estate or term passes to the lessee solely by the demise of the Rector or Vicar, it is immaterial whether such lease be so assented to, or approved of before, or at the time of or after the making thereof. It is only necessary that it be confirmed during the incumbency of the lessor; it is not material that the same persons be Patron and Ordinary at the time of the making of the lease, and of the confirmation thereof.

The assent of the patron is required in respect of his estate in the advowson; and the assent of the person or persons having the whole estate is necessary. The assent of tenant for life or tenant in tail, will, indeed, render a lease valid against any incumbent whom he may himself present; but the presentee of the remainder man or heir in tail might avoid such lease. So if husband and wife, seised in right of the wife, assent to a lease, the presentee of the wife, if she survive the husband, or of her heirs, may treat the lease as void. Hence if a patron, seised in fee, grants the next turn, the grantee should join in assenting to a lease made by the presentee of the patron, otherwise the successor (i. e. the presentee of the grantee) might also avoid it. Since also an advowson of which a bishop is seised, is part of the possessions of his church, and as those possessions (except by leases by 32 Hen. VIII.) cannot, so as to bind his successors, be affected without the assent of the dean and chapter, their assent should be obtained to a lease made by an incumbent collated by the bishop as patron. But the dean and chapter cannot intermeddle with what the bishop does as ordinary. If there be two patrons of a benefice, they should both assent. . . . . There is no spiritual jurisdiction over donatives, therefore the lease of an incumbent of a donative is valid if confirmed by the patron only.-Pp. 30, 31.

These requisites throw material impediments in the way of a general exercise of the power. The assent of

the Patron is an act which assumes more of a ministerial character than any other, and to render its validity dependent upon his estates, imposes an additional restraint upon the general exercise of the power, without any adequate advantage to counterbalance it. For it must very frequently happen that the patronage is in settlement, and

the confirmation in consequence frequently impossible to be procured. And in truth we feel some difficulty in discovering the grounds upon which a tenant for life or in tail, is thus deemed incompetent to effectuate a fair and proper arrangement, which does not, and cannot affect those coming after him, while it may happen that the very next day he may exercise, as Patron, the right of presentation to the Church, and all its revenues. But there is one prejudicial circumstance in particular attendant upon the compliance with the requisites we are now considering, which is very liable to be overlooked-and that is the expense to which the parties are unavoidably put, in procuring the required assent. The Patron and Ordinary have each their respective legal advisers.

To

each must the drafts be sent for approval-if either is dissatisfied with the amount of the rent, surveyors must be appointed to determine the value. The deeds when prepared for execution must be transmitted to the same parties again for their approbation, previous to signature by their respective clients. And we speak from experience when we assert, that the expense of all this machinery, and the correspondence it necessarily leads to, is as much as the additional rent, which the incumbent gets by resorting to the power, will for several years amount to.

In cases where there are veins of stone, coal, or other valuable minerals, under the glebe lands, the law appears to be that an incumbent can neither demise them to a tenant, nor work them himself for the purposes of gain. He has only the power of getting such and so much of the minerals as are applicable and necessary for the purposes of repair. Incumbents, however, have been indulged in selling stone where the money has been applied in repairs.*

Upon the subject of compositions for tithe, the law will be found to be correctly and clearly stated by our author. The result appears to be, that in cases where the incumbent dies upon any

Knight v. Moseley, Amb. 176. Wither v. Dean, &c. of Winchester, 3. Meriv. 427.

other day than that appointed for payment of the composition; no proportionable part is recoverable from the tenant, unless it is expressly provided for by the lease. But that as between the representatives of the deceased incumbent and the successor, if the composition is paid for the whole time, the former incumbent is considered as a common tenant for life, and entitled to receive a proportionable part from the successor.*

As to notices to quit, the law is, that where an incumbent grants a lease for years out of his own interest, whether of his glebe or tithes, such lease determines upon his death, and is absolutely void against his successor, who may take possession without giving any notice to quit to the lessee. But if the successor receives the rent, although he does not thereby establish the lease, yet he creates a tenancy from year to year, to determine which a notice is required. But if an incumbent grants a lease for lives out of his interest, it is voidable only by the successor; for an estate of freehold can only be avoided by entry: and if the successor waives his right to enter by accepting the rent reserved upon the lease, or otherwise affirms the lease, he cannot afterwards avoid it.

Such are the contents of our author's Essay, and many thanks are due to him for bringing into the compass of a few pages, and arranging in a clear and concise manner, a branch of our law of much general importance, and one which, until his publication, was only to be found by wading through

• See Hawkins v. Kelly, 8. Ves. 308. Aynsley v. Wordsworth, 2. Ves. & Bea. 331.

+ Co. Litt. 341. b. Doe v. Watts, 7. T. R. $3.

Bacon's Ab. 'Leases' (H.) p. 121. Doe v. Somerville, 6. B. & C. 132.

a greater number of text-books, abridgments, and reports, than, we venture to assert, the generality of our readers would have the opportunity or patience to examine. We, however, differ from the learned gentleman in the concluclusion at which he has arrived from his investigation of the subject. He asserts that the law, as it is at present, is well suited to accomplish the object which it purports to have in view; and that it needs only to be known to be brought into general operation. Our opinion is, that, admitting the principle of the law to be good, its mode of operation is open to serious objections. That, in short, it is so complicated a piece of machinery, that what with uncertainties in some of its parts, inconsistencies in others, and in others unnecessary checks and restrictions, the advantages to be derived from resorting to it are more than counterbalanced by the attendant expense and difficulty.

We are by no means ambitious of standing forward in the very questionable character of cavillers against an established system; nor should we have expressed our present opinions, in the manner we have done, unless they had been directly applicable to the subject in hand. The mode by which these objections may be remedied, we do not presume to point out. Other and abler heads are already engaged upon the subject. The Committee appointed to take into consideration the state of our law of real property, and what improvements can be made therein, will find this branch of the law included within the range of their inquiries; and we shall look forward with interest to their report, confiding in their well-known zeal and ability, that all improvements will be suggested which are necessary or expedient to be made.