And it may here be added, that mortgagors cannot, otherwife than fubject to the mortgage, grant leafes of the land, &c. which they have previously mortgaged, unless the mortgagee be made a party. Doug. 21.

age,

Infants, also, are in general difabled from making leases of their eftates, fo as to bind them when they come of left from ignorance, or by the art of designing perfons, they fhould be led to demise their estates for less than their real value, (except, indeed, in the cafe of the king, who, in law, is never deemed to want difcretion). Dy. 209. Such leafe is not, however, according to the better opinion, abfolutely void, but only voidable on the infant's attaining his majority. 3 Bur. 1804. But by the cuftom of fome places, infants may grant leafes at the age of fifteen years, which will bind them after they become of age. Co. Lit. 45. And fo where the leafe is evidently for the infant's benefit, and contains the refervation of a rent, it has been held to be valid notwithstanding the infancy of the leffor. See Madon v. White, 2 Durn. and E. 159. It has alfo long been held that he may make a lease even without rent to try his title in an ejectment. 3 Bur. 1806.

Married women are also incapable of making a valid leafe, unless the power of making leafes is expressly referved to them on their marriage, because they are fuppofed to be under the controul of their hufbands, who might compel them to grant their eftates contrary to their real intereft or inclination.

A bailiff of a manor cannot grant leases for years, of the lands of his principal, without a fpecial power given him for that purpose, and then he must make them in the name of the lord, and not in his own. Roll. Ab. 339. 2 Chan. C. 202. And fee ante, vol. 1, “Appointments.”

tom of the manor.

A copyholder cannot, without licence, make a leafe for a longer period than one year, unless warranted by the cuf Moor. 184. Salk. 186. He may, however, by fuch lease, accompanied by a covenant to permit the leffee to enjoy, from year to year, &c. enfure the poffeffion of the leffee for any given period. Cro. Jac. 301. Aliens, that is to fay, perfons born out of the king's dominions, and not being naturalized, are, by ftat. 32 Hen. 8, c. 16, rendered incapable of holding either land

or houses, and are confequently incapable. cf granting fuch as they may happen to be kindly permitted to occupy.

2. The Requifites to conftitute a good Leafe.

By 29 Car. 2, c. 3, called the ftatute of frauds and perjuries, it is enacted, that all leases, eftates of freehold, or terms for years, of any uncertain interefts, of, in, to, or out of any metfuages, lands, tenements, &c. not put into writing, and figned by the parties creating or making the fame, fhall have the force and effect of eftates at will only, and fhall not, either at law or in equity, be taken to have any greater effect, except only leafes not exceeding three years from the making, whereupon the rent referved fhall be at least two-thirds of the improved value. And fee 8 Term Rep. 3. But though leafes exceeding the term of three years, must be in writing yet no particular form of words is neceffary to conftitute a good leafe; for a leafe (as has been already obferved,) being nothing else but a contract for the poffeffion and profits of land, on the one fide, and a recompenfe on the other, any words of fufficient import to evidence fuch a contract, will, in law, amount to a leafe; if, therefore, I covenant with another that he fhall hold premises for such a time, this is a good leafe, for there are fufficient words to prove an agreement, that the one fhall quit, and the other take poffeffion of the land. Cro. Eliz. 173. I Co. 29. II Mod. 12, 42, Ibid. 610. 5 Term Rep. 163. 2 Anft. 418. A leafe for life, it has been before noticed, muft commence on the very day upon which it is made, (fee the reafon in Elem. Conv. bk. ii.) but this is not neceffary in a lease years, because no corporeal poffeffion at common law being neceffary of this eftate, as it is of an estate for life, it may begin at any period which the parties may agree upon (a).

for

(a) But it is to be observed, that until the commencement of the term, and entry made by the leffee, no legal poffeffion is vefted in him by his leafe, but only a right of poffeffion; he cannot, therefore, until entry, maintain an action of trefpafs. Co. Lit. 46. 1 Med. 252.

But yet the time at which the term is to begin, and when it is to end, must be either certain and determinate in itfelf, or at leaft eafily reducible to a certainty by reference, for otherwise the leafe will be void; wherefore a lease for fo many years as fuch-a-one hall live, would be void, 'though a leafe for fo many years as fuch-a-one fhall name, would be good, becaufe though the continuance of a leafe of this latter kind is at prefent uncertain, yet it will become a certainty the inftant the term is named, Noy Max. p. 86. Co. Lit. 45. This nomination, however, must be during the lives of the leffor and leffee, or it will not be good. I Co. 157. Because there must be both a leffor and a leffec living at the time the leafe is made. 3 Bur. 429. And if no time be mentioned in the leafe at which it is to begin, it will commence on the day it bears date; and should the date happen to be omitted, it will commence on the day of its delivery. Co. Lit. 46 b. And fee Styles 118. It is further requifite to the validity of a leafe, that it be made to one born within the king's dominions, or who has been naturalized, or denizenized; viz. that it be not made to an alien, for by 32 Hen. 8, c. 16, all leafes of any dwelling houfe or fhop, made to any ftranger, artificer, or handicraftsman, born abroad, not being a denizen, fhall be void. Both the leffor and leffee are alfo by the same statute subject to a penalty of 51.; a ftatute, which, though fill in force, there is a pleasure in obferving, has always been conftrued by the courts with great ftrictness. 1 Saund. 7. 3 Mod. 94. 2 Show. 135.

And it is faid by lord Coke, that leafes for years to an alien, of lands, meadows, &c. are forfeitable to the king in fieri facias (i. e. on his being found an alien, but not before), Co. Lit. 26. It has been held, however, that an alien merchant may take a house for his own refidence, but it shall not go to his executors: the reasons given for these laws, befides the general policy that foreigners may not get too much footing in the kingdom, is, that they may be punished for their prefumption in attempting to acquire landed property in the king's dominions. I Blac. Com. 372. But fee Elem. Com. vol. i. p. 20.

For the reft of the law concerning leafes the Editor muft again refer to what he has collected under the title of Ele

ments of Conveyancing. See vol. 2. ch. 11. See alfo Bac. "Leafes," and Shep. Touch. c. xiv.

These frequent references to a work of his own compiling the Editor is well aware, muft, by every one, be deemed to be exceedingly indecorous, and, to a great part of his readers, will, he fears, bear the appearance of oftentation; but on account of the imperious circumftance he has already alluded to, he is content to throw himself, with refpect to the purity of his motives, altogether upon the liberality of the profeffion.

PRECEDENTS

OF

LEASES.

HOUSE.

A Leafe of a Dwelling Houfe, &c. by Husband and Wife; Tenants for life, under a Will; with a variety of Special Covenants. "Drawn by Mr. Pickering." Pow. MS.

THIS INDENTURE made the day of in the year of our Lord Chrift, and in the year of the reign of our fovereign Lord George the third, &c. between S. R. of &c. of the first part, P.W of &c. efq. and F.W. his wife, of the second part,and G.W. of &c. of the third part. WHEREAS the meffuages or tenements, ftables, erections, and buildings hereinafter demised, (which are held by virtue of, or under five feveral leafes, made tó M. I. all bearing date the day of, in the year of our Lord for the remainder of feveral terms of years, all which will expire on the day of in the year of our

Lord, at or under feveral yearly rents thereby respectively referved, or made payable, amounting together to the fum of ——, a year, being out of repair, the fame have been furveyed by T. R. efquire, one of his majefty's joint architects and furveyors, who are of opinion it is requifite that the faid meffuages or tenements, ftables, erections, and buildings, Indenture wite fhould be repaired. Now THIS INDENTURE WIT NESSETH, that for and in confideration of the rents,

neffeth.