lease in possession, and another lease in reversion, of the same land; but his power to make leases in reversion should be confined to such parts of the land as were not then in possession.

41. It has been already stated, that a general power of leasing, only authorizes a lease in possession. But where a power expressly enables a person to make leases as well in possession as in reversion, a lease in reversion will then be good.

42. William Whitlock being tenant for life, with power to make leases as well in possession as in reversion, demised the premises for 99 years, to commence after the death or determination of the estate of the prior tenant for life; and this was held to be a good lease under the power.

43. The fourth restriction usually inserted in powers of leasing, relates to the duration of the lease. The usual practice is, to restrain tenants for life from making leases for a longer term than 21 years; except in those countries where lands are usually let for lives. There the tenant for life is allowed to grant leases for one, two, or three lives. And where a power is given to make leases for three lives, it will be well executed by a lease for three lives, and the life of the longest liver of them; because that is the same thing.

44. A distinction is taken in Whitlock's case, between a power to make leases which in the beginning is general, absolute, affirmative, and indefinite; as to make a lease or leases, grant or grants, &c. without any restriction, and then a proviso of correction added, namely, that such lease or leases, grant or grants, &c. shall not exceed the number of three lives at most, or 21 years, which clause is negative, and qualifies the generality of the power:

and where the power is particular, entire and affirmative, to make leases for three lives, or 21 years. For in the first case, the donee of the power may make any lease or grant, provided it does not exceed the utmost extent of interest that the power warrants as if a person has a power to make leases, provided they do not exceed the number of three lives or 21 years; there he may make a lease for 99 years, if three lives shall so long live, for that does not exceed the number of three lives, but in truth is less. But in the second case, he must pursue the power, which is particular and entire ; as if a person has a power of making leases for three lives, or 21 years, he cannot make a lease for 99 years, if three lives shall so long live.

ante.

45. A person was tenant for life, with power to Winter v. lease for one, two, or three lives, in possession; or Loveden, in reversion for one, two, or three lives, or thirty 2 Salk. 537. years, or for any number of years determinable on one, two, or three lives. It was resolved, that he might make a lease in reversion for thirty years absolutely, by virtue of his power; because the limitations and restrictions were disjoined, and the latter part was carried on by way of enlargement of the power.

*

46. A power to let leases, provided they do not exceed 31 years, or three lives, will warrant a lease for three lives, or thirty-one years, whichever shall last longest.

6 Bro. Parl.

47. Lord Netterville, being tenant for life, with Commons v. power to lease for any term, not exceeding 31 years, Marshall, or three lives, to commence in possession, made a lease Ca. 168. for the lives of three persons, and the longest liver of them, or for the term, time, and space of 31 years, which should last longest. On a question, whether

5. As to the Rent to be reserved.

ante, c. 5. § 37.

What is the ancient Rent.

this lease was warranted by the power, it was determined by the Court of Exchequer, and also by the Court of Exchequer Chamber in Ireland, that the lease was good. On a writ of error to the House of Lords of England, the Judges were directed to deliver their opinion on the following question: "Whether the lease stated in the special verdict could be supported as a good execution of the power, or whether such lease was absolutely void." And they delivered their unanimous opinion, that the lease might be supported as a good execution of the power; whereupon the judgement was affirmed.

48. The fifth restriction usually inserted in powers of leasing, relates to the rent directed to be reserved: in respect to which it is to be observed, that the rules adopted in cases of ecclesiastical leases, and of leases made by tenants in tail under the stat. 32 Hen. VIII., equally apply to leases made under powers.

49. The common practice formerly was, to require that the tenant for life should reserve the ancient, usual, and accustomed rent; in order that the persons in remainder might not be prejudiced by such leases but doubts have arisen respecting the

3 Cha. R. 66. construction of these words. Lord Holt was of opinion, that the words, ancient and accustomed rent, meant that rent which was reserved when the power was created, if a lease were then in being; or that which was last before reserved, if no lease were in being. For he who created such a power, intended no more than that the tenant for life should not be able to put the estate in a worse condition than it was in when the power was created.

Idem.

50. Lord Cowper doubted as to this point, and suggested, that if lands were leased, once at a greater, and twice at a lesser rent, he should consider the

rent of the former lease to be the ancient rent. The last lease might be made by the person who had the fee, and who was not bound to reserve the ancient rent, but might let it for nothing if he pleased. He also said, this rule could not apply to lands anciently demised, where fines had been taken; for there the rents were more or less, as the fines were higher or lower.

51. Where lands have been usually leased for lives, and the usual profits made by fines, a tenant for life under a settlement, with a power to lease, reserving so much or more yearly rent as had been received for the premises within twenty years then last past, will not be obliged to let the lands at a rack rent, but may demise them, reserving the usual fines and rent; as a lease at a rack rent may be inconsistent with the nature of the estate.

52. Where a power required that two thirds of the improved value should be reserved as a rent, the reservation might formerly have been made in the terms of the power. But in general it now seems necessary that the precise sum intended to be reserved should be specified in the lease; for otherwise the persons in remainder may be put to infinite trouble and expence, in proving the value of the lands demised, or the quantum of the ancient accustomed

rents.

53. In a settlement made on the marriage of Lord Hamilton v. Mordaunt, Brandon, eldest son of the Earl of Macclesfield, a 6 Bro. Parl. power was given to the tenants for life to lease all Ca. 145. the premises; so as upon every such lease, of such Orby v. parts of the premises as had been anciently and Mohun, accustomably, demised, whereof fines had been usually taken, the old, usual, and accustomed yearly rent or rents, or more, should be yearly reserved and made

2 Vern. 531.

payable; and so as upon every lease of such part of the premises as had not been usually let, and for which there had not been any fine or fines usually taken, there should be reserved and made payable the most and best improved yearly rent that could be reasonably had or obtained for the same.

A tenant in possession under the settlement, being desirous to make leases for the benefit of his family, and seised with a sudden indisposition, when he had no rent rolls or old leases, made a lease of all the lands which had been usually letten, and fines taken for the same, yielding and paying the several and respective old accustomed rents reserved and payable for the same. And also another lease, whereby part of the premises, for which fines had not been usually taken, and of which there was then no lease for years, or for any life in being, were demised, yielding such sum and sums of money as should amount to the best and most improved yearly rent that could be reasonably had and obtained for the

same.

A question having arisen on the validity of these leases, the latter of them was given up by the lessees; a reservation of the most improved rent being so

certain, that it could not be supported. And as to the former, after a hearing before Lord Cowper, assisted by Lords Holt and Trevor, it was held not to be warranted by the power, contrary to the opinion of Lord Holt.

On an appeal to the House of Lords, it was said, on the part of the lessees, that the objections made at the hearing to the validity of the lease, were, first, that it ought to have mentioned thé particular rent reserved; secondly, that the ancient and accustomed rent was thereby reserved, as well for lands not an