371 not enter into the consideration of the particulars which might tend to show that they were justified (e).

In the case of Magrave v. Archbold (f), the House of Lords considered an underlease by an administratrix with a covenant for renewal as often as she obtained a renewal from the head landlord too improvident to be supported. But in a later case (g), where an administratrix being possessed in right of her intestate of leasehold property, with a toties quoties covenant for renewal, underlet it at an increased rent, with a covenant for renewal on obtaining a renewal from the superior lessor, and it was proved that the premises were useful only for building ground, and that the underlease was not made at an undervalue, the court upheld the lease, the property being of such a description that it could not be beneficially used without giving to the lessee an interest which would make it safe for him to build on the premises.

XIII.-Guardians.

The distinctions taken in this division will scarcely be intelligible without a few introductory remarks on the different kinds of guardians. For our purposes, then, guardians may be ranged in six classes:-1st, guardians by nature; 2ndly, guardians by nurture; 3rdly, guardians in socage; 4thly, testamentary guardians; 5thly, guardians by election; and 6thly, guardians by the appointment of the Lord Chancellor. As their powers of leasing their wards' lands vary according to the kind of guardianship, I shall briefly notice the leading characteristic of each class (h).

1st. Guardianship by nature belongs to the father, and in some cases to the mother, of the child (i), until its age of

(e) Evans v. Jackson, 8 Sim. 217. (ƒ) Magrave v. Archbold, 1 Dow, P. C. 107.

ship, notes by Hargreaves to Co. Lit. 88, b. 89, a. 1 Thomas's Co. Lit. 151, et seq. 3 Salk. 176; and 1 Fonbl. Tr. Eq. 225, 5th Ed.

(g) Hachett v. McNamara, Lloyd & Goo. Ca. temp. Plunket, C., 283. (h) See, on the subject of guardian

(i) 1 Bla. Com. 461.

twenty-one (k); but, extending no further than to the custody of the infant's person (1), confers no power of leasing his lands for a fixed term, though a lease at will may perhaps be supported (m).

In the case of Smith v. Low (n), however, which arose in a court of equity, a mother, acting as guardian of her six infant children, who were owners of certain estates devised to them by their father, demised the premises on a building lease for forty-one years. Her eldest son, who was about nineteen years of age, joined with her in the lease, and covenanted that the lessee should have quiet enjoyment, and that the rest of the children, when of age, should confirm the lease. The children all arrived at age, and accepted the rent for above ten years after the youngest came of age. After such acceptance, they brought their ejectment against the lessee, who filed his bill to have the lease established. And the chief question was, whether the lease ought to be established in equity under the circumstances of the case. "It appears (said Lord Hardwicke) to be for a valuable consideration, rent reserved, and covenants for the lessee to leave it in good repair, and it is mentioned by the mother, who acts as guardian, to be for the benefit of the infants; there is no fraud or collusion proved in the lessee; and the husband of the lessor, and father of the infants, died in bad circumstances, unable to repair the premises, which were houses and a mill; therefore the consideration of the lessee's repairing them is a beneficial one for the infants, and that is sworn to be done here the great point is the acceptance of rent for so long a continuance, the youngest child having been of age ten years, and notice of the lease must be presumed." The lease was, therefore, decreed to be established for the residue of the term, and, as it was against conscience to bring ejectments after these transactions, the lessee was decreed his costs at law and in equity.

(k) Rex v. Thorp, Carth. 384-6; S. C. 5 Mod. 221.

(1) Ibid. Rex v. The Inhabitants of Sherrington, 3 Barn. & Adol. 714.

(m) Pigot v. Garnish, Cro. Eliz. 678. 734.

(n) Smith v. Low, 1 Atk. 489.

2ndly. Guardianship for nurture belongs also to the father, or mother where there is no testamentary guardian (0), until the infant, whether male or female, attains the age of fourteen (p); and, like guardianship by nature, is confined to the government and custody of the infant's person (q); but it is said that the guardian may lease at will (r),

3rdly. Guardianship in socage is a consequence of tenure, occurring only when the minor is entitled to a legal estate by descent in lands holden by socage (s), and devolves, by the common law, on the next of kin to whom the inheritance cannot descend (t). The office confers not a bare authority only, but an interest in the lands descended, and constitutes the guardian a quasi dominus pro tempore (u). But his power determines when the infant, whether male or female, attains the age of fourteen (x); and may be totally suspended by the father's exercising his privilege of appointing a guardian by will under the statute of 12 Car. 2 (y).

With regard to his power of leasing, it is laid down, in general terms, by a case, which, considering the name of the reporter (2), would seem to be entitled to some degree of weight, that a guardian in socage cannot make a lease of the infant's lands. The importance of that case will be a sufficient apology for my introducing it here at length, particularly as I propose a comparison between it and the earlier and later determinations and dicta. The question, it is true,

(0) Roach v. Garvan, 1 Ves. 158. (p) 1 Bla. Com. 461. 3 Co. 38, b. (q) 8 E. 4. 7, [B]. pl. 2. Bro. Ab. Garde, pl. 70.

(r) Pigot v. Garnish, Cro. Eliz. 678. 734.

(8) Quadring v. Downs, 2 Mod. 176-7. Rex v. The Inhabitants of Toddington, 1 Barn. & Ald. 560-4-5. Rex v. The Inhabitants of Sherrington, 3 Barn. & Adol. 714.

(t) Bla. Com. 461. 2 Bla. Com. 88. Lit. s. 123. Co. Lit. 87, b. Hutt. 16, 17.

(u) Co. Lit. 87, b.

Cro. Jac. 99. Rex v. The Inhabitants of Oakley, 10 East, 494. Eyre v. Countess of Shaftsbury, 2 P. Wms. 108. Rex v. The Inhabitants of Sherrington, sup. Rex v. Manners, 3 Adol, & Ell. 597; S. C. 5 Nev. & Man. 353.

(x) 1 Bla. Com. 462. 2 Bla. Com. 88. Lit. s. 123. 3 Atk. 624. 1 Ves. 91. Doe dem, Rigge v. Bell, 5 Term Rep. 471.

(y) 12 Car. 2. c. 24.

(2) Roe dem. Parry v. Hodgson, 2 Wils. 129. 135.

arose on a lease made by a testamentary guardian; but the court admitted that that circumstance was immaterial (a).

The principal question was, whether a lease for twentyone years made by the testamentary guardians of an infant, Mr. Spencer, to Parry, was absolutely void, or only voidable. It appeared that Mr. Spencer himself had done no one act since he came of age either towards establishing the lease, supposing it voidable, or to avoid it. Upon the first argument, the court agreed in one point, viz., that a testamentary guardian by statute till an infant was twenty-one years of age, and a guardian in socage till an infant was fourteen, were the same; and, therefore, whatever interest the latter had in lands till the infant was fourteen, the guardian by the statute had the same till he was twenty-one. But, as to the main question, whether the lease was void, or only voidable, they all, except Noel, J., doubted much, and gave no opinion. The Chief Justice seemed inclined to think the lease was void, from what he said. Clive, J., said, he was far from saying it was either void or voidable. Bathurst, J., gave no

opinion; but from what he said, he seemed to think that, whether the lease was void or not at first, it certainly became void or at an end when Mr. Spencer came of age; so could not be then a subsisting lease to give the lessor of the plaintiff title. Noel, J., was of opinion, that the lease was a good lease, and only voidable by the infant when he came of age; and that he might then affirm it, if he thought fit; but said, that he should be very willing and ready to depart from this opinion, if he should find he had come into it too readily. Ulterius concilium. The court were afterwards of opinion that the guardian of an infant could not make a lease of the infant's lands, and that the lease in this case was absolutely void.

Had this decision been expressly referred to the particular circumstances of the case, it might have been reconciled with the preceding and succeeding authorities; but, unaccompanied

(a) And see Bedell v. Constable, Vaugh. 179. The Duke of Beaufort v. Berty, 1 P. Wms. 703-4.

by explanation or qualification, it stands an isolated and anomalous case, and must be adopted in practice with much caution. The circumstance of the opinion of the court being given after mature deliberation renders the case the more dangerous.

We may now advert to the earlier cases, all of which, with one insignificant exception (6), admit the right of a guardian in socage to demise his ward's lands.

In the first, decided in the early part of Queen Elizabeth's reign, and reported by an authority of the highest eminence (c), a woman, guardian in socage, joined with her after-taken husband in a lease of the infant's land; but although it was declared, upon a principle of law which I have endeavoured to explain elsewhere (d), that she was not bound by the demise after her husband's death, no attempt was made, even in argument, to invalidate it on the ground of the guardian's incapacity to lease at all.

To the like effect are other cases, decided in the thirty-first year of the same reign (e), where a tenant in socage leased his lands for four years, and died, his heir within the age of eight years; and the mother, being guardian in socage, leased the land by indenture to the same lessee for fourteen years: and it was holden, that the first lease was extinguished; which clearly admitted the power to demise; for it is well known that an interest in a lessee cannot be extinguished unless there be an accession of a new interest incompatible with the former: in other words, in transactions between subject and subject (f), if the new estate proposed to be created fail of effect, the one previously existing is not determined (g).

(b) Clayt. 112. pl. 192.

(c) Osborn v. Carden, Plowd. 293. (d) Ante, p. 138, et seq., as to leases by husband and wife.

(e) Anon. 1 Leon. 158, case 226. Willis v. Whitewood, 1 Leon. 322; S. C. Ow. 45; cited, nom. Mills v. Whitewood, Hob. 105. Willet v. Wilkinson, semb. S. C., 4 Leon. 7. Bac. Ab. Leases,

(I) 9. Brisden v. Hussey, Rol. Ab. Garde, (Q) pl. 4.

(f) It may be otherwise on a new lease granted by the crown. See ante, p. 231-2.

(g) Wilson v. Sewell, 4 Burr. 1975; S. C. 1 W. Blac. 617. Zouch dem. Abbot v. Parsons, 3 Burr. 1807.