couched in these terms, which, it was argued, signified, until both of them the said I. and R. should attain twentyone, and, consequently, would extend the term beyond the minority of the elder; but the court overruled the objection (q). The various matters hitherto noticed in this division are totally independent of a late statute (r), by which, without abridging the then existing powers of guardians, additional facilities were afforded for leasing the estates of infants, with greater security to the lessees. As this act has been fully noticed in treating of leases by infants (s), it will be unnecessary to repeat its provisions in this place. Unless the lease be made in pursuance of this statute, the name of the guardian should be used, and not that of the infant as if the authority were derived from him (t); for in that case the deed would be void, as an infant cannot appoint an attorney to pass an estate (u). But if it be desirable to continue the lease beyond the period of infancy, the infant himself, as well as his guardian, should be a demising party, as he may afterwards, on attaining twenty-one, confirm the lessee's interest, an infant's lease, as we have seen (x), being voidable only, and not void. Until lately, to enable the infant to bring an action on the covenants, he must have been a party to the deed; and, therefore, in a late case, where by an indenture of lease between I. and C. Drummond of the first part, an infant's guardian of the second part, and the lessee of the third part, the rent was reserved to the infant, and the covenants were entered into with the infant and I. and C. Drummond, it was held that an action of covenant, in which the infant was a co-plaintiff with I. Drummond (who survived C. Drummond), could not be maintained (y); but by a recent act of parlia (q) Shaw v. Shaw, Vern. & Scriv. 607. (?) 11 Geo. 4 & 1 W. 4. c. 65. s. 17. (8) Ante, p. 34, et seq. (t) Bacon on Leases, p. 138. Bac. Ab. Leases, (I) 9. (u) Perk. s. 139. Combes's case, 9 Co. 76, b. (x) Ante, p. 30, et seq. (y) Lord Southampton v. Brown, 6 Barn. & Cres. 718. ment (2) it is enacted (a), that under an indenture executed after the 1st of October, 1845, the benefit of a covenant respecting any tenements or hereditaments may be taken, although the taker thereof be not named a party to the same indenture. It will be remembered that this act has no effect on leases executed before the day named. If the guardian take a bond in his own name for arrears of rent due from the tenants, he makes the debt his own (6). XIV. Assignees of Bankrupts. As all a bankrupt's estate, and all powers vested in him which he might legally execute for his own benefit, (except the right of nomination to any vacant ecclesiastical benefice,) may be executed by the assignees for the benefit of the creditors, as the bankrupt might have executed the same (c), it follows that they may exercise powers of leasing vested in the bankrupt; but with regard to his estate, as distinguished from his power, their duty is to sell, and not to lease. An appointment by the bankrupt in the interval between the act of bankruptcy and the adjudication is void (d), provided the fiat issue within due time (e). xv.-Assignees of Insolvents. The act of 1 & 2 Vict. (f), for the relief of insolvent debtors, provided (g), that all powers vested in any such prisoner whose estate should by an order thereunder have been vested in the provisional assignee which such prisoner might legally execute for his own benefit, (except the right of nomination to any vacant ecclesiastical benefice,) should be vested in the assignee or assignees of the real and personal estate of such prisoner by virtue of the act, to be by such assignee or assignees executed for the benefit of all and every the creditors of such prisoner under the act, in such manner as such prisoner might have executed the same. And, in like manner, powers vested in any petitioner for protection from process under the acts of 5 & 6 Vict. c. 116 (h), and 7 & 8 Vict. c. 96 (i), are by the latter act (k) vested in his assignees, to be executed for the benefit of his creditors, as the petitioner might have executed the same. Independently, however, of such powers, the duty of the assignees is, as in cases of bankruptcy, to sell, and not to lease, the insolvent's property. In the case of Partington v. Woodcock (1), to a declaration in an action of debt for rent, the defendant pleaded that before the demise the plaintiff took the benefit of the insolvent debtors' act, and that all his estate, right, &c., in the premises became vested in the assignee, and that after the plaintiff had been discharged, and after the making of the demise in the declaration mentioned, (the plaintiff having been authorised and permitted by the assignee, and by permission of the court after the adjudication and discharge, to remain in the possession and management of the premises, and the plaintiff having been also authorised and permitted by the said assignee, and by the permission of the said court, to make the said demise of the said premises to the said defendant,) and before the rent became payable, and before the commencement of the suit, the defendant received from the assignee a notice and requisition to pay the rent to him, and that, in default thereof, legal proceedings would be taken by the assignee against the defendant to recover such rent; by reason whereof the (h) 5 & 6 Vict. c. 116, an act for the relief of insolvent debtors. (i) 7 & 8 Vict. c. 96, for amending the law of insolvency, bankruptcy, and execution. (k) Sect. 11. (1) Partington v. Woodcock, 6 Adol. & Ell. 690; S. C. 5 Nev. & Man. 672; 1 Har. & Wol. 262. defendant became liable to pay the amount to the assignee. And, on demurrer, it was held that the plea could not be maintained, as it was not shown how the old tenancy was determined, and a new one between the assignee and defendant created. The defendant had leave to amend. Patteson, J., said: "The plea here states that the assignee gave the defendant notice to pay him all the rent that should accrue in respect of the said demised premises, and under and by virtue of the said demise, in the declaration mentioned, thus treating the previously mentioned demise by the plaintiff as still subsisting. Now, if that demise was made by the insolvent in his own name, I do not see how the assignee could come in as landlord, except by putting an end to the demise, and commencing a new tenancy. I do not see how the rent claimed by the assignee could be rent claimed under 'the said demise.' Unless the previous demise is put an end to, you make the assignee or mortgagee constructively party to a demise between others" (m). XVI.-Committees of Lunatics. For the law on this branch of our subject the reader is referred to a previous part of the work (n) where the subject has been noticed. XVII.-Lords of Manors, as to Wastes. A custom for the lord of a manor to grant leases of the waste without restriction cannot be supported, as it would enable him to annihilate the right of common altogether (0). But by 13 Geo. 3. c. 81 (p), lords of manors were empowered (g) (m) See further on this point, ante, p. 165; Leases by Mortgagor and Mortgagee. (n) Ante, p. 37. (0) Badger v. Ford, 3 Barn. & Ald. 153. And see Arlett v. Ellis, 7 Barn. & Cres. 346. (p) 13 Geo. 3. c. 81, entitled "An Act for the better cultivation, improvement, and regulation, of the common arable fields, wastes, and commons of pasture, in this kingdom." (2) Sect. 14. with the consent of three-fourths of the persons having right of common upon the waste and commons, to demise or lease, for any term or number of years not exceeding four years, any part of such wastes and commons not exceeding a twelfth part thereof, for the best and most improved yearly rent that could by public auction be got for the same; and it was enacted (r) that the clear net rents reserved by any such lease or leases should be applied in the draining, fencing, or otherwise improving, of the residue of such wastes and commons. XVIII. The Allotment Wardens. A recent act of parliament (s) for facilitating the inclosure and improvement of commons and lands held in common, has provided (t), that the allotment which upon any inclosure under its provisions (u) shall be made for the labouring poor shall be under the management of the incumbent of the parish or ecclesiastical district in which such allotment shall be situate, or the officiating minister for the time being nominated by the incumbent for that purpose, the churchwarden, if there be but one, or if there be more than one, one of the churchwardens for the time being of such parish, and two other persons who shall be rated to the relief of the poor in such parish; and that such churchwarden, where there is more than one churchwarden, shall be yearly named, and that such two other persons shall be yearly chosen and appointed, at the same time, and by the same persons, and in the same manner, as the overseers of the poor for such parish shall be chosen and appointed, and shall continue in office in like manner until the next appointment of overseers, or until others are named and chosen and appointed in their stead; and that such incumbent or officiating minister, churchwarden, and two other persons, for the time being, shall be styled "The Allotment Wardens" of the parish, and shall (r) Same section. (s) 8 & 9 Vict. c. 118. VOL. I. (t) Sect. 108. CC |