No renewed lease can be executed under the act unless all fines are paid and counterparts executed by the lessees (m).

Powers of leasing vested in lunatics, having only a limited estate, may be also executed by their committees under the direction of the Lord Chancellor (n).

When lunatics are under contract to let lands, and a specific performance has been directed by the Court, either before or after lunacy, the committees, under the direction of the Lord Chancellor, may convey the land in pursuance of the decree (o).

It may also here be mentioned, that infants and married women entitled to leases, or the guardians of infants, may apply to the Court of Chancery in England, or to the Courts of Equity of the counties palatine of Chester, Lancaster and Durham, or to the Courts of Great Session in Wales, by petition or motion in a summary way, and such infants or guardians, married women, or person appointed in the place of such infants or married women, may, under the direction of the Courts, surrender existing leases, and take new leases, for the periods and upon the terms mentioned in the old leases, or otherwise, as the Courts shall direct (p).

The committees of the estates of lunatics may, under the direction of the Lord Chancellor, also surrender leases and take new leases in a similar manner (q).

If any persons bound to renew leases are out of the jurisdiction of the Court, the Court may, upon petition, appoint and direct a person to accept surrenders, and make new leases. But the Court may direct a bill to be filed to establish the right of a person seeking the renewal (r).

By a recent act relating to the estates of lunatics, the Lord Chancellor may authorize the committee of the estate to make leases of the mines and quarries, already opened,

(m) 1 Will. 4. c. 65, s. 20.

(n) Sect. 23.

(o) Sect. 27.

(p) Sect. 12.

(q) Sect. 13.

(r) Sect. 18.

or unopened, with or without land, for such terms of years and on such terms as he may think proper (s).

An agreement was entered into by the committee of a lunatic under the following circumstances. The lunatic was tenant for life, without impeachment of waste, with remainder to his first and other sons in tail, with other remainders over. He was unmarried. Coal was found on the estate, but not in sufficient quantity to justify the sinking of a pit; but the coal might be worked by means of a pit in adjoining land. Part of the estate was mortgaged, and the mortgagee was in possession. The income of the lunatic was much reduced, and there were other debts which could not be satisfied. The committee, therefore, agreed with the owner of the adjoining land to work the coal. The master, who was attended by the next of kin, reported in favour of the proposal. Lord Eldon, on confirming the report, said, the circumstances were singular. The next of kin had an interest that the coal should be worked. The heir-at-law had no interest, there being remainders over. It might be done; it was like cutting timber (t).

By a recent statute which amends the earlier acts, in Ireland, all ecclesiastical persons, and all corporations, colleges, and hospitals, tenants for life with the immediate remainder to their sons in tail male, and tenants in dower or by curtesy, with the consent of the next owner of the inheritance, may grant leases of mines for terms not exceeding forty-one years, in possession, without fine or premium, at the best and most improved rent, in money or in kind, with the usual condition for re-entry on nonpayment of rent, and counterparts. The power is also extended to trustees of any freehold estate in any mines, or any estate (other than a lease at rack-rent), for a term not exceeding fifty years unexpired, or determinable on the fall of any life or lives. There is also a power to accept surrenders of existing leases (u).

(s) 16 & 17 Vict. c. 70, enlarged by 18 Vict. c. 13.

(t) Ex parte Tabbert, 8 Ves. 428. (u) 11 Vict. c. 13.

T

A mortgagor has no power to make any leases to bind more than his mere equity of redemption, the legal interest in the lands having been already transferred to the mortgagee. When an estate is discharged from a mortgage, a lease by the mortgagor will be good against himself by estoppel (x). If a mortgagor grant a lease subsequently to the mortgage, the mortgagee may evict the lessee without notice (y), and maintain an action for mesne profits. This is the only remedy of the mortgagee against the lessee, but the latter is justified in paying rent due at the time of notice to the mortgagee (z).

On the other hand, a mortgagee, although the actual owner of the estate at law, cannot, in equity, make a valid lease, unless there exist an absolute necessity for it, and it be made to avoid an apparent loss (a). If, therefore, a lease is made without absolute necessity by a mortgagee, it will only endure so long as he is possessed of the legal estate.

The consequence is, that both the mortgagor and mortgagee must, in general, join to make a binding lease. This point is frequently insufficiently attended to in practice, both in mining and other property, and the result may be extremely disastrous to those lessees who have expended money in improvements or speculations (I).

(x) Omelaughland v. Hood, 1 Rol. Abr. 874, 876.

(y) Doe d. Roby v. Maisey, 8 Barn. & C. 767; 3 Man. & R. 109; Doe d. Fisher v. Giles, 5 Bing. 421. (z) Pope v. Biggs, 9 Barn. & C. 245.

See Evans v. Elliot, 9 Adol. & Ell. 342. It was decided, in this case, that notice by the mortgagee to the tenant did not constitute a tenancy between them, upon which a distress might be made. Lord Denman, however, expressed himself to be of opinion, that the circumstance of the mortgagee allow

ing the tenant of the mortgagor to continue in possession might amount to a recognition that the tenant was not a trespasser. The learned judge, it is presumed, only meant that such a tenant could not be evicted without notice, and not that he could avail himself of the entire term granted to him by the mortgagor. This opinion, however, is opposed to the decisions, and cannot, it is submitted, be supported on principle.

(a) Hungerford v. Clay, 9 Mod. 1; Lucan v. Mertin, 1 Wils. 34.

(I) It has frequently been suggested, that in the preparation of mortgage

A copyholder, unless by special custom or for one year (b), cannot make a lease, even by parol, or in futuro, without procuring a licence from the lord (c), and the licence must be strictly pursued (d). But though a lease of mines for years cannot be made without licence, a liberty or licence to work mines, when the right to them belongs to the tenant by special custom (e), may be granted without leave from the lord, because no actual estate in the land is passed, which remains still in the possession of the copyhold tenant. In like manner, a covenant or contract to demise will not create a forfeiture (ƒ).

Trustees of charity lands, being possessed of the legal estate, may also make valid leases. But in cases of fraud, or collusion, or general mismanagement, they will be subject to the revision and directions of the Court of Chancery. In the exercise of this power, the trustees must be guided by the general principles of the Court, and exercise a reasonable discretion, and pursue a mode which is beneficial to the charity, in which they will be effectually controlled and

(b) Co. Litt. 58 b; Melwich v. Luter, 4 Rep. 26; Foosel v. Welsh, Cro. Jac. 403; Matthews v. Whelton, Cro. Car. 233.

(c) Ever v. Aston, Moore, 271; East v. Harding, Cro. Eliz. 498; Moore, 392; Lady Montague's case, Cro. Jac. 301; Harding v. Turpin, Hetl. 122; Eastcourt v. Weeks, 1 Salk. 186; Richards v. Sely, 2 Mod.

79; 3 Keb. 638.

(d) Com. Dig. Copyhold.
(e) Chap. II.

(f) Richards v. Sely, supra; Hamlen v. Hamlen, 1 Bulst. 189; S. C. Lady Montague's case, Cro. Jac. 301. See Doe d. Wood v. Morris, 2 Taunt. 52; Fenny d. Eastham v. Child, 2 Maul. & Sel. 255; Lufkin v. Nunn, 11 Ves. 170.

deeds, a power should be reserved to the mortgagor to grant leases of the estate for short periods. The lessees of mortgagors are certainly placed by law in a very unprotected condition. There appears to be no objection to allow the mortgagor to demise for a short term, as for three years. A longer period might form an objection to the security, or to a sale, and might perhaps induce fraud on the part of the mortgagor. Such a power, however, would, after all, form a very insufficient shield of protection to lessees. Their chief security must always depend upon an inquiry into the title of their lessor.

directed by the Court (g). When the mode of granting leases is prescribed by the founder, the terms of the power must be followed strictly, unless otherwise sanctioned by the Court (h). When the power is general, it is superfluous, for it would have been presumed by law.

If trustees act bona fide in the disposition of the property, the Court will endeavour to protect them from the consequences of mere indiscretion, and especially after a great lapse of time (i). Leases will not, in general, be set aside, unless it be shown that the mode of letting is so positively bad, that no persons meaning fairly to discharge their trust would have resorted to it (k). It is not sufficient to show that leases have been granted for so long a period as ninetynine years, and at a slight undervalue (1).

By a late act, the charity commissioners may authorize the trustees of the charity to grant mining leases on any terms, though these may not be permitted by the original trusts (m); and by another later act, the acting trustees, or a majority, not less than three, may grant such leases as they would have power to grant in the due administration of the charity, if the land were legally vested in themselves (n).

The lands and property belonging to a parish is vested in the churchwardens and overseers of the poor, as a body

(g) Att.-Gen. v. Owen, 10 Ves. 555; Att.-Gen. v. Brooke, 10 Ves. 326; Att.-Gen. v. Wilson, 18 Ves. 518; Att.-Gen. v. Hotham, 1 Turner, 209; Att.-Gen. v. Green, 6 Ves, 452; Att.-Gen. v. Griffith, 13 Ves. 565; Att.-Gen. v. Backhouse, 17 Ves. 283; Lydiatt v. Foach, 2 Vern, 410; Att.-Gen. v. Pargeter, 13 L. J., N. S., C. C., 81; 6 Beav. 150.

(h) Watson v. Himsworth, Harp.

2 Vern, 596.

(i) Att.-Gen. v. Warren, 2 Swan.