1. LEASES may be made by deed-poll, which is a declaration by the lessor, under his hand and seal, that he has demised, or has agreed to demise, lands or tenements to another person, for a certain term, at a certain rent.

Leases for any period exceeding three years, usually are, and always should be, made by indenture(a), which is an agreement under seal between two or more parties. It is customary to execute as many parts, or duplicates of a lease, as there are parties beneficially interested in the contract, so that every such person gets a duplicate of the instrument. Formerly the lessor only executed the part intended for the tenant, which was called "the original," and the landlord's part, which was only executed by the tenant, was styled "the counterpart;" but, according to modern practice, each part of the instrument is executed as well by the lessor as by the lessee; and if any variance(b) be found

(a) It is a common practice to place the several parts of a lease one over the other, and to cut the upper margin of such parts in a waved or indented line

so as to make them exactly agree with each other.

(b) Finch's Law, 109.

to exist between the two parts, a court of justice, considering the lease to be the act of the landlord, will construe it in the manner most favourable to the tenant.

The counterpart of a lease will be received as evidence of the execution of the "original," (c), not only against the lessee, but against any person claiming under the lessee, though not a party(d) to the instrument. A party who has taken under a lease all the interest which the lease(e) is calculated to give, will not be permitted to dispute its due execution. Where the counterpart of a lease, duly executed by the lessee, was produced in evidence by the lessor, the Court held(ƒ), that the lessee ought not to be suffered to impeach its validity, by shewing that the original lease was insufficiently stamped. However, in an action of covenant for non-payment of rent, under an indenture alleged to have been executed by four persons, though the counterpart of the lease, executed by the lessee(g), was proved, it was ruled that the lessee might produce the original lease, for the purpose of shewing it had only been executed by two of the lessors. A counterpart of a lease is properly executed only by the grantee, but if the instrument is executed by both parties, it is either the sole(h) document which exists, or it is a duplicate, and to use it as a duplicate, it must be shewn that one part was duly stamped, though the execution of a counterpart by the lessee may, as against(i) him, be evidence of the execution of the original.

Indentures of lease should be made between the granting parties, or lessor, of the one part, and the lessee of the other part; and if mortgagees or trustees are required to join in the instrument, the number of parties must be increased. Any person, in fact, giving, or taking by his own contract, any property which is the subject of the demise, should be made a party, as none(j) but a party is capable of taking an immediate estate under a lease. If a lease be granted by letter of attorney(k), the principal should be named as the lessor, and the attorney

(c) Pearse v. Morrice, 3 B. & Adol. 396; Burleigh v. Stibbs, 5 T. R. 465; Berkeley v. Hardy, 5 B. & Cr. 359; Eyton v. Eyton, Prec. in Cha. 116; Hall v. Ball, 3 Mann. & Gr. 242; 3 Scott, N. Rep. 577.

(d) Doe dem. West v. Davies, 7 East, 363; Nash v. Turner, 1 Espin, N. P. C. 217; but see Pearse v. Morrice, 4 Nev. & M. 48; 2 Ad. & Ell. 84; Yelverton v. Cornwallis, Noy, 53.

(e) Burnett v. Lynch, 5 B. & Cress. 589-604; 8 D. & Ry. 368, by Bayley, J.

(f) Paul v. Meek, 2 Y. & Jerv. 116. (g) Wilson v. Woolfryes, 6 M. & Selw. 341.

(h) Doe dem. Wright v. Smith, 8 Ad. & Ell. 255; 3 Nev. & P. 335, by Littledale, J.

(i) Berkeley v. Hardy, 5 B. & Cress. 359, by Lord Tenterden.

(j) Co. Litt. 231, A.; East Skidmore v. Vandstevan, Cro. El. 56; 2 Instit. 673.

(k) Combe's case, 9 Rep. 75; Frontin v. Small, 2 Ld. Raym. Î418; 2 Stra.

should subscribe the name of his principal, and not his own name, to the instrument, as the agent is only authorized by the letter of attorney to stand in the place of his principal.

The lease is usually prepared at the tenant's expense, but the landlord's solicitor is generally employed by the tenant to carry into execution any agreement for a lease, or for the renewal of a lease between the parties, and if the lessor, under such circumstances, pay his own solicitor the costs of the lease, or renewal, he may recover() the amount from the tenant in an action for money paid to his use. Under an agreement in writing that the landlord should, at the request and costs of the tenant, grant him a lease of certain premises, if the landlord require a counterpart(m), he must bear the expense of it himself.

A tenant is considered to be a trustee of the lease, both for the landlord and for himself, and the landlord has a right(n), for any purpose for which he shall require it, to obtain an order of the Court for liberty to inspect the lease, and take a copy of it at his own expense. If a landlord has lost his counterpart of the lease, and applies to his tenant for a copy, to be made at the landlord's expense(o), a Court of Equity will compel the tenant to furnish the copy, and will also order him to pay the costs of the suit for obtaining it. The property in the tenant's part of an indenture of lease is in the lessee, and the counterpart belongs to the lessor; and on the determination of the demise, by efflux of time, or by forfeiture, as the tenant may have occasion for its use in an action of covenant against his landlord, the lessor has no right to get back(p) the instrument from his tenant, and cannot maintain trover for its recovery.

2. The general rule laid down by Lord Coke(q), on the subject of parties to leases, is, that no person can take an estate in possession under a deed, unless he be a party, but that a stranger may take by way of remainder; and Lord Ellenborough, in pronouncing the judgement of the Court in Storer v. Gordon(r), stated, that the immediate operation of a deed, importing to be made between the persons who are

Pickering v. Noyes, 1 B. & Cr. 362; 2
D. & Ry. 386.

(0) Perry v. Newenham, 1 Moll. 72, by Sir Anthony Hart.

(p) Hall v. Ball, 3 Mann. & Gr. 242; 3 Scott's N. Rep. 577.

(9) Co. Litt. 231, A.; 2 Instit. 673. (r) Storer v. Gordon, 3 Maule & Selw. 322; Wright dem. Plowden v. Cartwright, 1 Burr. 282.

named in it as executing the same, is to be confined to those persons who are parties to the instrument, and that no stranger can take under it, except by way of remainder, nor can any stranger sue upon any of

the covenants it contains.

A person becomes a party to a deed-poll, if he be named as the person(s) by whom, or to whom, the grant is made; but none are considered as parties to indentures, unless named as such in the clause appropriated for that purpose. Lord Stourton being seised in fee, by indenture made(t) between him and Thomas Hobart, granted to Thomas Hobart certain tenements, to hold to him and his three sons for their lives, and for the life of the survivor of them successively on the death of Thomas Hobart the lessee, it was decided that his sons could not take in possession, because they were not named in the premises of the deed, nor by way of remainder, because the intent of the deed was, that they should take along with their father in possession, which was prevented by the express limitation in the habendum to them successively, nor could there be any occupancy on the father's decease, because the sons were mentioned as persons to take an estate, and not merely as cestuique vies; so that, in effect, the lease was only for the life of the lessee, and expired on his death.

By indenture, it was agreed between James Simmonds, for and on behalf of William Berkeley, of the one part, and J. Hardy, of the other part, that William Berkeley should let, and J. Hardy should take certain farms at a specified rent, payable to William Berkeley: the covenants(u) were expressed to be made by Hardy to Berkeley, and the lease was executed by Simmonds in his own name, and also by the lessee. In an action of covenant brought in the name of William Berkeley against the lessee, it was contended that the deed might be considered as a deed-poll executed by the lessee; but it was ruled, that in such a view of the case there would be no demise to lay a foundation for the tenant's covenants, and that the deed being executed “inter partes" the plaintiff, William Berkeley, must be deemed a mere stranger, and could not sustain an action for breach of any of the covenants under the lease. It is not requisite, however, to specify all the parties

(s) 2 Prest. Conv. 394.

(t) Windsmore dem. Long v. Hobart, Hob. 313; Cro. Eliz. 58; Godb. 51; Hutt. 87, S. C.; Greenwood dem. Fisher v. Tyler, Hob. 314; Palm. 29; Cro. Jac. 563, S. C.

(u) Berkeley v. Hardy, 5 B. & Cress.

355; 8 D. & Ry. 102, S. C.; Lord Southampton v. Brown, 6 B. & Cress. 718; Barford v. Stuckey, 2 Bro. & B. 333; 5 Moo. 22; and see Frontin e. Small, 2 Ld. Raym. 1418; 2 Stra. 705; Lowther v. Kelly, 8 Mod. 115.

to a deed by their proper names, if they be so described that they can be accurately ascertained. The banking-house of the Right Honourable David La Touche and Company being made parties to a deed, by the name of their firm, it was ruled (v), that an action of covenant might be supported in the name of John David La Touche, who was the surviving partner of the firm; for though not specifically named, he was sufficiently described as a party to the deed.

A person not named as one of the parties in a lease, may enter into a covenant with the lessor, or with any of the parties to the deed, for payment of the rent, or performance of any other act incident to the holding, but a party to the deed cannot covenant with another who is not a party. By articles of agreement (w) between John Salter and Charles Rock, John Salter set a house to Charles Rock, at a certain rent, and John Kidgly, who was not a party, covenanted for himself, that the lessee should pay the rent, and an action of covenant was held to lie upon this instrument, against John Kidgly, for non-payment of rent by the lessee.

The doctrine that those persons only can sue, or be sued upon an indenture(x), who are named or described in it as parties, is applicable exclusively to deeds, and is not extended to contracts which are not under seal.

3. On the execution of a lease by the lessor, the property demised vests in the lessee, until his disagreement be shewn(y) by refusing to sign the lease, or to accept the interest, and by such refusal the deed is rendered inoperative; but the lessee, by entering upon the lands, or taking the profits, becomes answerable for payment of the reserved rent, and for performance of the covenants annexed to the land. Sir Edward Coke has extracted a case from the Year-book (z), 38th Edw. III., from which it appears that a lease(a) by indenture was made to two persons, for years, reserving rent, and was executed only by one of them, whereby the lessees bound themselves to the lessor in the sum of twenty pounds, in case certain conditions comprised in the deed were not performed. In an action (of debt) brought by the lessor against the party who executed the lease, the defendant pleaded that his companion in the

(v) La Touche v. Whaley, Hayes & J. 43.

(2) Salter v. Kidgly, Carth. 76; 1 Show. 58; Rep. temp. Holt, 210.

(1) Beckham v. Drake, 9 Mees. & W. 95, 11 Mees. & W. 315, overruling Beckham v. Knight, 4 Bing. N. C. 243.

(y) Thompson v. Leach, 2 Ventr. 198; 3 Lev. 284; 3 Mod. 298.

(z) Co. Litt. 231, A., Com. Dig. Covenant, A. 1; Co. Litt. 229, A., Com. Dig. Fait, C. 2.

(a) Year Book, 38 Edw. III. Hilary, fol. 8; Brett v. Cumberland, I Ro. Rep. 359; 2 Ro. Rep. 63; Cro. Jac. 399; Abercrombie v. Hickman, 8 Ad. & Ell. 683; 3 Nev. & P. 676; 1 Dyer, 13 B. pl. 66; and see Appendix, No. 13.