not find a case adjudged singly upon this ground." Now let "us see how that is. In Humphreston's case, 2 Leo. 216; Moore, 103, under the title of Lane v. Cooper, it was resolved, by the opinions of Iray and Southcote against Gawdy, that the lease being without rent or other recompense, was utterly void; and Gawdy himself considered it good upon the ground solely of its being a good consideration, and for his profit, it having been made to try his title. Lord Mansfield observes, that the judgment was upon the rights and merits of the case, and not upon the point of the lease. Now, Moore informs us, that the case was divided into ten points, the seventh of which was, whether the lease of an infant without rent reserved is void or voidable? And they all, except Gawdy, agreed that it is void, because it hath not any consideration; but if rent is reserved, it shall be but voidable, and so a feoffment made with the proper hand of an infant is only voidable', and they said that any stranger might take advantage of it, by allegation, evidence, or otherwise. See Moore, 105. This case, therefore, appears to me to look very like an authority that the lease of an infantis void where no rent is reserved.

His lordship further said in opposition to Southcote, and Wray, that "it was greatly for the infant's benefit, "having been to try the title, that the objection was turn

ing his own privilege of infancy against him to bar his "recovering and that besides the lease was by parol." With respect to its turning his own privilege of infancy against him, does it not shew that the court must have most strongly been of opinion that it was totally void, since they had so great an inducement to have considered it good, if it had been practicable? The court, in Humphreston's case, seems to have thought from the word recompense that it must be a quid pro quo, the benefit arising from his property and estate, which must save the lease from being void. It is almost superfluous to observe, that this lease being by parol, was not voidable in any sense of the word, but void, and that non est factum might have been pleaded.* His lordship continued" as to the

* Q. Is non est factum the proper plea to avoid a parol demise; and would not the proper plea be non demisit? These are tantamount to each other, and therefore leave the present ques

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"second, the authority of Lloyd v.Gregory was cited, and sayings arguendo in Thompson v. Leach. The case of Lloyd v. Gregory was determined upon a special ver"dict by three judges, of whom Sir William Jones and "Croke were two." That case was as follows; a lease was made 1 E.VI. by a dean and chapter for 50 years, which lease being afterwards assigned to infants, they, 29 Elizabeth, took a new lease of the same lands, from the then dean and chapter, for the same term and under the same rents and covenants as were in the first. The second lease might have been avoided by the succeeding dean and chapter, under 13 Eliz. ch. 10, and the question was, whether the first lease was determined by the surrender of the infants? Croke informs us (See Cro. Car. 502) that all the court held, that a surrender by an infant cannot be by deed, but that it is absolutely void; and that a surrender by the acceptance of a second lease is void, 'because it is without increase of his term or decrease of his rent, and where there is not an apparent benefit or 'the semblance of a benefit, his acts are merely void." According to Croke's Report, therefore, it was decided in this case of Lloyd v. Gregory that an infant's surrender is void; but Lord Mansfield endeavoured to invalidate this representation of Croke by an extract from Sir William Jones's Reports, page 406. That the second lease being 'void; made an end of the question, and that the 'judges gave no opinion upon the other points;' and upon this his lordship concluded, that it was the circumstance of the second lease being void, that caused the surrender of the infant not to be good, for that "the cause, ground and condition of the surrender failed." But we shall contend that the reports of Croke and Sir William Jones, are not at variance upon this case, and that the reason of the surrender's being void was, because it was the surrender of an infant, and not because the second lease was void.

tion indifferent either way to depend wholly upon the effect of the lease ab initio. We venture to suggest this formal correction, because we apprehend our correspondent is more inti mately acquainted with conveyancing than with the mere forms of special pleading, and we wish that his argument, which still holds, should not be subject to any cavil on account of such a trifling slip.

age.

Jones says, that the first question was, whether the first lease was determined?' And that it was agreed that the second lease was void, and the first lease continued still;' but he does not say that the first lease continued, upon the ground that the second lease was in itself void; nor does it appear that the second lease was considered to be in itself void. It was argued that it was voidable only by the succeeding dean and chapter; but, if Lord Mansfield's view of the decision in Lloyd and Gregory be correct, the court must have held that such a lease as the second lease in that case, is merely void; that it would have been void had the surrender been even made by a man of full Now was any such doctrine held by the court? Nay did they not decline to give any opinion upon that very point? According to Jones himself the second point moved was whether a lease by a dean and chapter, not being war'ranted by the 13 Elizabeth, shall be void during the life of the dean, or only voidable by the successor?" And Jones says, that to that point, amongst others, the justices 'did not speak'. It is therefore manifest that the surrender could not have been held void upon the ground that the second case was in itself void. The second lease certainly was void; not that it was so in itself in its own nature, but because the surrender, which was the consideration ofits being made, was void. If, however, the surrender could have been good, it is contended that the second lease would not have been totally void, but voidable only, by the succeeding dean and chapter. For surely the dean who made the lease would have been bound by it at all events during his life; for although the statute makes all such leases void, yet the intention of the legislature was only to protect the successors from prejudice and that would be effected without authorizing the lessor to injure his lessee by taking advantage of his own wrong. ful act. However, the court did not say, in Lloyd and Gregory, whether the lease of a dean and chapter, contrary to the statute, would be considered void or voidable. Lord Mansfield further observed, that "Croke's note might be "confounded with what passed upon the trial at bar, for "that Rolle states sayings to that effect upon the trial at "bar." Now as Croke was one of the judges in the case, and professes to give the decision upon the special verdict, there cannot be a shadow of reason for believing that his note was confounded with what passed upon the trial at bar. Croke is too accurate a reporter, too sound a lawyer, to make any such blunders or misconceptions. With res

pect to those sayingsof Rolle,as his lordship slightingly terms them, it must not be passed over that they are accompanied by the words resolved per curiam! Referring to this case of Lloyd and Gregory, Rolle says, if an infant surrender a lease for years to him in reversion, this is void, and cannot be made good by an agreement at full age. Per curiam, resolved on a trial at bar.' It is to be observed also that Rolle goes on to notice the decision upon the special verdict, upon the point whether the infant's agreement to the new term after his coming of age, should be a surrender in law of the first estate; as well as upon the other points, and he says, 'but upon a special verdict found of it, among other things, and afterwards, upon an argu'ment at bar, it was adjudged per curiam on this point, that because it could not be for the advantage of the in'fant, therefore the law adjuged it void ab initio. These sayings of Rolle, (who appears to have examined the entry upon the roll) do therefore add additional weight to the reports of Croke and Jones; and upon the whole it is submitted that the case of Lloyd and Gregory also, looks very like an authority, that the surrender of an infant, where there is no semblance of benefit to him, is absolutely void ab initio.

Lord Mansfield then came to the case of Thompson v. Leach above referred to, which was as follows; a person non compos a tenant for life, with remainder to his first and other sons, remainder over, made a surrender to him in reversion, before the birth of a son, with intent to destroy the contingent remainder and died, leaving issue a son, and it was held that the surrender was void ab initio ; and the son, though he claimed as remainder-man, and not as heir, might take advantage of it. "In Thompson v. Leach." said his lordship, "much is said in argument to prove "the surrender of an infant or lunatic to be void, to get "rid of some doctrine laid down in Whittingham's case, "that the remainder-man, injured by the act, could not "avoid it; but more is said to overturn that doctrine. "There is no difference in this respect between the heir "in tail and the remainder-man; neither claims under "him whose act is in question, but both claim per formam. "doni." And he then cites Palmer, 254, and Litt. sect. 635, to show that he in remainder and the donor shall take advantage of infancy. Now the object of his lord

ship was to prove, that the surrender being void or voidable, was not necessary to the judgment in the case of Thompson v. Leach, because it had been said by Doddridge, that he in remainder shall take advantage of infancy,' and because Littleton had said that it should seem against ' reason that a feoffment made by an infant should grieve 'or hurt another to take from them their entry,' &c. It was meant to be applied in this way; if the remainderman or donor may take advantage of infancy, then they might have avoided the surrender, and so it was immaterial whether it was void or only voidable in that case. But upon this I have to observe, that the weight of autho rity certainly is, that a remainder-man shall not take advantage of infancy where the deed is only voidable. The passage in Littleton certainly does not go to prove that they shall; for that passage hath a connexion with the two preceding sections relating to feme coverts and jointtenants, viz. that it would be hard the infant's feoffment should take away their entry, inasmuch as in the case of the feme covert, her right of entry remained, and in that of the joint-tenant such right of entry accrued to the survivor. That there is such a connexion between the section 635 and the two preceding sections in Littleton, is evident from his following up the passage above extracted with this concluding remark; and, for these reasons, it 'seemeth to some that after the death of such husband so being within age, at the time of the feoffmeut, that his wife may well enter,' &c. With respect to the opinion expressed by Doddrige, that the donor might enter,' it is to be observed that Lord Coke in Beverley's case, 4 Rep. 123, and in Whittingham's case, 8 Rep. 84, distinctly lays it down, that privies in estate shall not take advantage of the infancy of the other. And he gives this reason that no right accrues of the donor. He makes a few exceptions, however; as that of an infant seised in right of his wife, and the survivor of two joint-tenants where, (as Littleton observed) the right remained to the wife or accrued to the survivor, who, he says, may enter the one after the death of her husband and the other after the death of his companion. Indeed upon Doddridge's own reasoning, the surrender in Thompson v. Leach, must have been void; for he agrees to the rule that none shall take advantage of infancy but a privy in blood, or he who is