no further lease could be granted till that lease were determined ; not a chattel lease, because the power does not admit of the same premises being under a chattel and a freehold lease at the same time; nor a freehold lease, because that would be to commence in futuro: whereas, if there were a chattel lease for ninety-nine years, determinable upon three lives, and one of those lives were to drop, a second chattel lease for a new life, in addition to the other two, might be granted during the continuance of the first. Whenever a life therefore dropped, there would be this essential difference between a freehold and a chattel lease, that, upon the former, no new life could be added, unless the termor would surrender the first lease; whereas, upon the latter, a new life might be added without any such surrender. In the one case, therefore, an important advantage would accrue to the reversioner or remainder man, if the tenant for life and the person entitled to the first lease could not agree upon a surrender; in the latter, such advantage would be wholly lost. Roe, d. Brune v. Prideaux, 10 East. 184, 185. Sed vide Sugd. Pow. 600. It was formerly held, that a lease made to commence, from the day of the date thereof, was a lease in reversion; but this doctrine has been altered by the determination in the case of Pugh v. Duke of Leeds, in which it was held, that "from" might mean either inclusive or exclusive; and that the parties necessarily understood and used it in that sense, which made their deed effectual; and, therefore that a lease "to hold from the day of the date." was a valid lease under a power to lease in possession only. Cowp. 714. Et vid. Rex v. Inhabitants of Gamlingay, 3 T. R. 513. Ex parte Fallon, 5 T. R. 283. Dowling v. Foxall, 1 Ball. & B. 193. Where a lease, which is dated back, and on the face of it appears to commence in futuro, was not in truth executed till at or after the time when it was expressed to commence, in such case, the lease is a valid execution of the power, and may be supported as a lease in possession: for a deed takes effect from its execution, and not from the date of it, and, therefore, if the time of the execution can be proved, the lease cannot be defeated, Campbell v. Leach, Ambl. 740. Doe v. Day. 10 East. 427. Hall v. Cazenove, 4 East 477; and extrinsic evidence is admissible to show when the lease was actually executed. Doe v. Robson, 15 East. 32. Sugd. Pow. 589. In regard to leases in reversion, it has been decided, that where the lease is to take effect in possession, it will be good, although the estate is in the possession of tenants from year to year, or at will, provided they, at the time the lease is granted, receive directions to pay their rent to the lessee. Goodtitle v. Funacan, Dougl. 565. And it seems, that an actual lease under the power, if in fact given up at the time of the execution of the new lease, might be presumed to be surrendered in support of the new lease, and at least in a boná fide case where the lessee is in nature of a purchaser, equity would relieve against the want of a surrender. Campbell v. Leach, supra. And if the new lease be made to the person in possession under the old lease, it will, without any actual surrender, operate as a surrender in law of the old lease, and so no objection on this head will lie to the new lease. But where the second lease does not pass all the interest which it purports to grant, as if it be void because the best rent was not reserved, there it will not operate as a surrender of the prior term; nor is it material that the first lease is cancelled, for cancellation at this day will not amount to a surrender in law of a lease. Roe v. Archbishop of Canterbury, 6 East. 86. Sugd. Pow. 589-591.

4th. As to the duration of the lease:-The usual practice is to restrain tenants for life from making leases for a longer term than twenty-one years, except in those countries where lands are usually let for lives, and there the tenant for life is allowed to grant leases for one, two, or three lives. In Whitlock's case it was laid down and agreed to by the whole court, that under a power to make an estate for three lives, the donee cannot make a lease for ninety-nine years determinable upon three lives. But a distinction was taken between a power particularizing the species of lease to be granted, and a general power not specifying the kind of lease, but adding a restriction to limit the extent of the lease, 25 a power generally to make leases, with a proviso that they should. not exceed three lives or twenty one years; under which it was determined, that the donee might make a lease for ninety-nine years, determinable on three lives, because the power was absolate and indefinite; and the proviso of correction is added, that the lease shall not exceed three lives or twenty-one years; which clause is negative, and qualifies the generality of the first proviso; and a lease for ninety-nine years, determinable on three lives, does not exceed three lives, although in truth it is not a lease for lives. 8 Co. 69 b. Ratile v. Popham, Stra. 992. Cunn 102. Et. vid. 2. Ves. 644. Churchman v. Harvey, Ambl. 335. Roe v. Prideaux, 10 East. 158. A power to grant leases for two or more lives, implies an authority to grant them during the life of the survivor. Alsop v. Pine, 3 Keb. 44. Et vid. Doe v. Hardwicke, 10 East. 549. And under a power to make leases for three lives, a lease to one for three lives, or to three persons for their three lives, will be equally good. See Baugh v. Haynes, Cro. Jac. 76. Sugd. Pow. 602. But the lease must be made for lives in esse, Raym. 263.; and the lives must be concurrent, although the pow er is to demise "for one, two, or three lives," which seems to im port succession. Doe v Halcombe, 7 T. R. 713 A power to make leases, provided they do not exceed thirty-one years, or three lives, will warrant a lease for three lives or thirty-one years, whichever shall last longest. Commons v. Marshall, 7 Bro. P. C. 111. Before closing this head, it may be observed, that where a power authorizes leases for any given term, as for any term of years not exceeding twenty-one years, a lease may be made for a term certain, with a proviso determining it on a given event, at the option of the lessor, Earl of Cardigan v. Montague, supra: but it would be otherwise if the power, as is sometimes the case, requires the lease to be for a term absolute. Sugd. Pow. 593. So if the power be to lease for any given term, as for twenty-one years, without saying for any term not exceeding the number of years, yet a lease may be made for a less term. Isherwood v. Oldknow, 3 Maul. & S. 382.

5th As to the rent:--Where a settled estate has been usually let on lives, which is generally the case in Ireland, the common power of leasing is upon fines, which, as the lives or leases drop, are considered among the annual profits. 1 Burr. 121. But this practice prevails only in a few counties in England, and the power of leasing commonly introduced into settlemens of estates in this country, requires the best rent to be reserved, and expressly prohibits the taking of a fine. Whether the best rent is reserved, is a question to be decided by a jury. Sugd. Pow. 603. Et. Vid. Roe v. Archbishop of York, 6 East 86. Doe v. Lloyd, 3 Esp. Rep, 78. If the best rent is reserved, the tenant agreeing to lay out money in improvements is not material. See Shannon v. Braid

Doe

street, 1 Rep. T. Redesdale, 52. Campbell v. Leach, supra. ́ v. Bettison, 12 East. 305. But, it seems, that although the rent reserved be the full value of the land, yet if satisfactory evidence could be produced to a jury, that a tenant was willing to give an additional rent in lieu of the money agreed to be laid out in improvements, the lease could not be supported Wright v. Smith, 5 Esp. 203. It is not, however, sufficient to impeach a bona fide Tease without a fine, at a ren which the jury find a fair rent, that the tenant for life had offers of higher rents from other persons whose responsibility could not be disproved: for in the exercise of such a power where fairly intended, and no fine or other collateral consideration is taken by the tenant for life leasing under the power, or injurious partiality manifestly shown by him, in favour of the particular lessee, there ought to be something extravagantly wrong in the bargain to set it aside on this ground; for in the choice of a tenant there are many things to be regarded besides the mere amount of the rent offered. Doe, d. Lawton v. Radcliffe, 10 East. 278. Where from the quantity and nature of the property demised it cannot be ascertained whether the best rent is reserved, the lease will be void. Sugd. Pow. 605. Earl of Cardigan v. Montague, Ibid App. No. 9. (2) Formerly powers of Teasing required the ancient or usual rent to be reserved, but at the present day, we have seen, this practice is exploded. Where, however, such a term is introduced, the better opinion is, that as a general rule, the rent reserved at the time of the creation of the power, where a lease was then in being, or last before it, where no lease was then in being, is the rent to which the power must be taken to refer. Sugd. Pow. 007. But it is no objection that more than the ancient rent is reserved (3 Ch. Ca. 78. Et. Vid. Doe, d. Newnham v. Creed, 4 Maul. &, S. 371.), nor that heriots or other casual and accidental services, which have been usually rendered, are not reserved by the lease under the power. Baugh v. Haynes, Cro. Jac. 76. Mo. 759. Supra, 44 b. p. 420. Coventry v. Coventry, 1 Comb. 312. But if the taxes were formerly paid by the tenant, a reservation of the ancient rent, without a covenant by the lessee to pay the taxes, will not be good. Earl of Cardigan v. Montague, Sugd. App. No. 9. (3). Goodtitle v. Funacan, Dougl 565. But where a power, requiring the best rent, also required that no power should be given to any lessee to commit waste, and that the lease should contain usual covenants, it was held, that a lease was good, though the lessor covenanted to do part of the repairs, and in case of neglect the tenant was authorized to do them, and deduct the expense out of the rent; and though the lessor covenanted, in consideration of a large sum to be laid out by the lessee in the repair of the premises in the first instance, to renew during his (the lessor's) life, at the request of the lessee, his executors, &c on the same terms; because this covenant only bound the lessor himself, and if the best rent were not reserved upon such renewal, the lease would be void against the remainder-man. Doe, d. Bromley v. Bettison, 12 East. 305. Where a power was given by will to a tenant for life to make leases of lands for not exceeding sixty-one years, at the usual or other the most rents; it was beid, that he might well lease the lands upon a fine, and at a reserved rent, which rent exceeded the rent reserved upon a former lease in being at the date of the will, and at the testator's death, and upon which lease the then lessor had also taken a fine. Doe, d. Newnham v. Creed, 4 Maul. & S. 371. It may be further observed, that the word "rent" in powers of leasing is construed to VOL. II.

3 T

mean produce as well as money. Campbell v. Leach, Ambl. 740. Bassett's case, cited Ibid. 748. With respect to the form of the reservation, it is observable, that where the ancient or usual rent is required. the rent must be reserved as formerly; as where gold has been usually reserved, silver cannot be made payable in lieu of it; or if it were commonly paid at four days, a reservation at one, two, or three days, would be void, unless the power require the yearly accustomed rent to be reserved; in which case, the whole rent may be made payable at one time, or at several periods, 6 Co. 38 a. Campbell v. Leach, supra. Earl of Cardigan v. Montague, Sugd. Pow. App. No. 9.; but a difference of words is not material; therefore a reservation of eight bushels of grain, in lieu of a quarter, is good, because it is all one in quality, value, and nature. Mountjoy's case, 6 Co. 3 b. 3 Ch. Rep. 75. 1 Burr. 121. It has been considered, that two several farms not usually let together could not be joined in one demise, with a reservation of one and the same rent, nor a parcel of a farm rendering rent pro ratâ. 5 Co. 5 b. 3 Ch. Rep. 75. Smith v. Trinder, Cro. Car. 22. But however that may be, it is clear, that the mere circumstance of the rent being reserved out of the land, and recent improvements on it by building, will not vitiate the lease, although, as it has been argued, part of the rent issues out of the buildings. Reed v. Nashe, 1 Leon. 147. Sugd. Pow. 610, 611. The rent to be paid should, in strictness, be specified in the lease; but although the reservation be made in the very words of the power, without stating the sum in particular, it will be sufficient if it have reference to some standard by which the rent can be ascertained with certainty, Lewson v. Pigot, 3 Ch. Rep. 61. et. vid. Audley v. Audley, 2 Ch. Rep. 82. Shannon v. Bradstreet, 1 Rep. T. Redesdale, 52.: but if the reservation be vague and indefinite, and not easily reducible to a certainty, the lease will be void. Sugd. Pow. 611, 612. Therefore a reservation in the words of the power, as the best improved rent, or, the ancient and accustomable rents, will be invalid. See Arby v. Mohun, 2 Vern. 531. 542. Prec. Ch. 257. 2 Freem. 291. 3 Ch. Rep. 56. Ker v. Duke of Roxberghe, 2 Dow. 189. Where the rent is required to be reserved at particular days, it must be reserved accordingly; but where merely the best yearly rent is required to be reserved, it may be made payable quarterly, or half yearly. Campbell v. Leach. Ambl. 740. 6 Co. 38 a. Earl of Cardigan v. Montague, supra. It seems clear that the rent cannot be reserved after the day appointed. (Ludlow v. Beckwith, Al. 90.), nor, as it should seem, before the day, as that would have a tendency to benefit the tenant for life, at the expense of the remainder-man. Sugd. Pow. 615. With respect to rent reserved for lands within the power, and for lands not within the power, Mr. Sugden observes, that the cases seem to establish this principle: where an entire gross sum is reserved generally, and part of the lands are not comprised in the power. or being comprised in the power, are not duly demised, the power is badly execu ted, although the rent upon an apportionment would be sufficient for both estates. See How v. Whitfield, 1 Ventr. 339. 2 Jo. 110. 2 Show. 67. Earl of Cardigan v. Montague, supra. But where a rent is reserved according to the quantity, or produce, as the tenth of the produce of every mine, or 40s. an acre, or the like, there although the demise is joint in terms, and part is not well demised, or not comprised in the power, yet it shall hold good as to the lands comprised in the power, and duly demised. See Campbell v. Leach, 3 Ch. Rep. 68, 69. Sugd. Pow. 619, 620, Where

there is a distinct reservation of a particular sum in respect of the lands comprised in the power, that constitutes a several demise, and no objection can be raised to the execution of the power. Ibid. 621. Knight's case, 5 Co. 54 b. And see the late case of Doe, d. Bartlett v. Rendle, where under a devise of lands to trustees and their heirs, in trust to the use of W. B. B. and his first and other sons in strict settlement, remainder to I. B. and his first and other sons in strict settlement, with power to the trustees from time to time during the minorities of the persons to whom the premises should descend, and to any tenant for life, to grant any lease of all or any part of the lands so limited, so as there be reserved the ancient and accustomed yearly rent, &c, it was held, that a lease by W. B. B. of part of the lands devised, in several parcels, in one of which parcels were included, together with lands anciently demised, two closes never before demised, at one entire rent, viz. the ancient rent, for that part which had been anciently demised, was void, for the whole of the lands included in that parcel, as well the lands never before let as those anciently let: but it seems to be good as to the other parcels, which contained only lands anciently demised, and on each of which there was a several reservation of the ancient rent. 3 Maul. & S. 99. It is also observable, that where lands of which the lessor was seised in fee, and also lands over which he had a power of leasing, are comprised in one lease at an entire rent, though the lease, after the death of the lessor, will be void as to the lands subject to the power, yet it will remain good as to the lands in fee; for the rent may be apportioned. See Doe, d. Vaughan v. Meyler, 2 Maul. & S 278. With respect to the persons to whom the rent should be reserved, it is usual, in powers of leasing, to express that the rent reserved shall be incident to, and go along with the reversion and inheritance of the estate demised, and in well-drawn leases under powers, the rent is accordingly reserved to the tenant for life, and after his decease to the person or persons who shall, for the time being, be entitled to the reversion and inheritance of the premises under the instrument creating the power. Sugd. Pow. 621. But a reservation to the tenant for life, exercising the power, "his heirs and assigns," is a good reservation, for those words mean of necessity the person to whom the inheritance shall go. Whitlock's case. 3 Co. 69 b. Hotley v. Scot, Loft. 316. Dougl. 572. Campbell v. Leach, supra. So a reservation of rent generally during the term, without saying to whom, will be good and effectual in law; and in Whitlock's case it was agreed, that this was the most clear and sure way, and the law will make the distribution. Sugd. Pow. 621. But it is observable, that under a power to lease, rendering such rent as the donee shall think fit, no rent whatever need be reserved.. Talbot v. Tipper, Skin. 427.

6th. As to the clauses and covenants:-In powers of leasing, besides the reservation of the best rent, it is usually required that the lessee covenant for payment of the rent (sce 1 Burr. 125), that a clause be inserted for re-entry in default of payment (see Hotley v. Scott, Loft. 316. Rees v. King. For. Excheq. Rep. 19. Coxe v. Day, 13 East, 118. Doe, d. Vaughan v. Meyler, 2 Maui. & S. 276.), that the lessee be not made dispunishable of waste (Campbell v. Leach, Ambl. 740,), and that he execute a counterpart of the lease; and if any of these conditions be not complied with, the lease will be void. Sugd. Pow. 623. And it seems, that the circumstances usually made requisite in powers of leasing, must be considered as implied, although not expressly required. Taylor