either case there is no privity between the assignee and the lessor. The assignee will indeed see the string, for it is most curiously fastened to the estate and cannot be safely removed, but he will rejoice too much that the lessor has let it go to put it into his hands again. There is certainly no hardship whatever in this doctrine so far as the lessor is concerned; for he need not give up his string unless the assignee engages to give it him again.

Such we think is the ground of the celebrated rule in Dumpor's case, and we confess we do not think it entirely satisfactory; it would have been quite reasonable if the courts had at first decided that a covenant or condition against alienation, especially if the assigns were named, ran with the land and bound the estate into whatever hands it might come. And though the judges of modern times have considered themselves so bound by the ancient decisions as not to be able to hold that an assignee is subject to a condition against alienation, unless he be such an assignee as a devisee, executor, or administrator; yet with some sacrifice of principle, they seem inclined to decide that an assignee is bound by a covenant not to alien if assigns be named therein.'

If the lease require that the consent of the lessor should be given in writing, a parol consent is of no avail at law; nor in equity, unless it be used as a snare, and under circumstances which amount to a fraud.2

We will now give a form which we trust will be found to meet satisfactorily the points adverted to.

"AND the said lessee for himself, his heirs, executors and administrators, hereby covenants with the said lessor, his heirs and assigns, that he the said lessee, his executors, administrators, devisees or other assigns, will not except by last will and testament, at any time or times during the said term, grant, assign, demise, or otherwise part with or affect either absolutely or by way of mortgage, or upon trust or otherwise, the said hereby demised premises, or any of them or any part thereof respectively, or his estate and interest therein or any part thereof, to or for any person or persons whatsoever, without the

1 See Paul v. Nurse, 8 Barn. & Cres. 486.

2 Roe v. Harrison, 2 T, R. 425. Richardson v. Evans, 3 Mad. 218.

consent in writing of the said lessor, his heirs or assigns, for the purpose first had and obtained."

It is assumed that the lease will contain a proviso, that the lease shall be void upon breach of any of the covenants. And such proviso may also be intended to avoid the lease, in case the lessee become bankrupt or insolvent, or in case the tenements or term be extended or taken in execution by the crown or any person whatsoever. It is advantageous that the restriction against alienation should be by covenant as well as condition; for though the tenements or term become vested in an assignee not subject to such a condition, yet he, as well as the original lessee, would be subject to the covenant. But though a person assigning a term thereby commit a breach of covenant, yet the assignment is valid, unless the estate be subject to an existing condition, that upon such an act it shall cease, or that lessor may re-enter.3

There are some decided points on this subject which should be remembered here. If a lessor with knowledge of a breach of covenant, or of a proviso against alienation, receive rent, he cannot avail himself of the forfeiture. But by receiving rent after one breach, he is not thereby precluded from taking advantage of a subsequent one.5

If an agreement for a lease contain no declaration as to covenants, or expresses that there shall be usual and proper covenants, the lessor cannot insert in the lease a covenant against alienation.6 Proper covenants are such as regulate the express and implied obligations of the parties; not such as limit the quantity of interest contracted for.?

We have observed in the leases of some considerable estates a proviso that all alienations by the lessee, his executors, administrators or assigns, of the terms or any part thereof, or of his interest therein, or any part thereof, shall be void unless the deed or instrument be prepared by the solicitor of the lessor. Without considering the legal import of such a pro

1 See the King v. Topping, M'Cl. & Y. 544.

2 See Paul v. Nurse, 8 Barn. & Cres. 486.

3 Ibid.

4 Goodright v. Davids, Cowp. 803. Roe v. Harrison, 2 T. R. 425.

5 Doe v. Bliss, 4 Taunt. 735.

6 Church v., Brown, 15 Ves. 258.

7 Ibid. 265.

viso, we cannot refrain from expressing our opinion that it is somewhat harsh and impolitic. It does undoubtedly benefit the solicitor of the lessor, but it cannot benefit the lessor himself, and may injure him. If the lessee have other household property or freehold property, and he wishes to include all in a settlement, mortgage or other deed, the deed must be prepared not by his own confidential solicitor, but by the solilicitor of a stranger; unless he is at the expence of a separate deed for the restricted leasehold; and suppose him to have separate leasehold tenements held of different landlords, and both subject to such a clause, he must have separate deeds. Nay, it might be fairly contended that the last will and testament of the holder of such leaseholds should be prepared by the solicitor of the lessor. But what is the legal effect of such a proviso? It seems to us similar to the condition in Dumpor's case, and consequently that an assignee who comes in lawfully is not bound by it. But supposing that the lessee himself aliens by a deed not prepared by the solicitor of the lessor, if such deed be void, who can take advantage of it? Not the lessor, for the estate granted by him is not avoided, and surely not the lessee who assigns. The lessor might avenge himself when the lessee or his assignee sought a renewal.

W. C. W.

ART. V. THE DOCTRINE OF EQUITY RESPECTING GRAMMAR SCHOOLS.

ELEVEN years ago Lord Eldon corrected his own opinion upon an important fact respecting Grammar Schools; and in so doing laid the doctrines of Chancery upon the subject open to a correction, of which the suitors of the court have not yet obtained the full benefit. The failure is the more to be regretted, inasmuch as the previous authority of the same learned chancellor seems to have stamped upon the modern administration

of grammar schools, and upon the original views of the founders, an irremediable narrowness of character, subversive of their main objects, and inconsistent both with express deeds, and with the wise and benevolent spirit that prompted their endowment. When, therefore, his lordship had acknowledged himself in error as to the facts which before must have influenced his legal opinions, it was to be expected that the consequences of the admitted mistake would be averted to the fullest extent. Sound reasoning might surely make something of materials, by means of which such a mind was convinced. Seeing also, that those materials, if duly applied, may lead to the revival of every decayed1 foundation in this country, and to the reform of all such as are perverted from their legitimate uses, the point of law connected with them deserves careful consideration. That point is, whether the foundations designated by the common titles of Free Grammar Schools, or Grammar Schools, or Free Schools, (amounting to about five hundred in number in England) are, by law, vi termini, to be devoted exclusively to the teaching of the learned languages, and not to be altered except by act of parliament?

Immediately before the discussion of the case of the Attorney General v. Hartley, this question would have been answered in the affirmative by almost every practitioner of the

1 Lord Kenyon and Lord Eldon long ago denounced the abuse of these foundations, which it becomes our better times effectually to check : — Lord Kenyon says, in the case of the grammar school at Skipton-in-Craven in Yorkshire, "Whoever will examine the state of the grammar schools in different parts of this kingdom, will see to what a lamentable condition most of them are reduced; and would wish that those who have any superintendance or control over them, had been as circumspect as the Archbishop of York has been on the present occasion. If other persons had equally done their duty, we should not find, as is now the case, empty walls without scholars, and every thing neglected but the receipt of the salaries and emoluments. In some instances that have lately come within my knowledge, there was not a single scholar in the schools, though there were very large endowments to them." 6 Term Reports, 493. The King v. the Archbishop of York, A. D. 1795.

Lord Eldon says, in the case of certain charity lands in Chelsea, Kensington, and St. Margaret, Westminster, founded by Henry Smith to redeem captives by the Turks: --" It is absolutely necessary that it should be perfectly understood, that charity estates all over the kingdom are dealt with in a manner most grossly improvident, amounting to the most direct breach of trust," 13 Vesey, 580. The Attorney General v. Griffith, A. D. 1807.

2 2 Jac. & W. 360.

law. The language of the counsel for the defendant in that case is, "It is now well settled, that in a grammar school the education is confined to the learned languages. That was settled in the case of the Attorney General v. Whiteley.”1 And the Chancellor said, "The opinion which I have formed is this, that when a school is instituted as a Free Grammar School, without more, it is a school to teach the elements of the learned languages;" admitting, however, that usage might justify a claim for instruction in the minor elements of knowledge in particular cases.

In the case referred to as that in which the rule was settled, Lord Eldon had strangely relied upon Dr. Johnson's definition of the terms "Free Grammar Schools," as signifying schools for teaching grammatically the learned languages. The new information obtained in 1820, in the case of the Attorney General v. Hartley, is noticed by his lordship in the following words in the printed report, to which we add the public remarks made by his lordship:

"I feel obliged to Mr. Spence for correcting the notion I had, that it was hardly possible to find a free grammar school, where boys were taught their A B C. I have looked through the book (Carlisle's Grammar Schools, 2 vols. 8vo.) which he mentioned; and must correct that notion. There are some free grammar schools, which have afterwards, by letters patent, been partly devoted to that species of education; but whether the letters patent were the creators of that species of education, or whether that would have been the construction of the private endowment, is another question. I agree there are to be found instances of other grammar schools, where there have been no letters patent, in which such education has been given; but the difficulty I have, in many of these cases, if not in all of them, is that I do not know by what authority it is, that much of that which is stated to have been done, has been done. Supposing it were the case (and I will not say it is not) that the king, in the Court of Chancery, could apply funds founded for one purpose to another, how is it possible to say, that what was obtained by the mere authority of trustees, changing the original purpose for another, can be looked on by me as a legitimate precedent? And therefore, though I think that to the extent that teach

3 11 Vesey, 241. 1805.