farms, which were usually demised together at a gross rent, may be demised separately(ƒ) at rateable rents; for if farms could not be divided, improvement would, in many instances, be prevented, and the remainder-man would be deprived of the advantage.

28. If tenant for life, with power to lease at the ancient rent, demise (g) parcel of the lands comprised in the power, which had been usually let, along with parcel of the settled estates never before demised, or along with lands(h) excepted out of the power, which the lessor was not competent to demise, reserving a gross rent issuing out of both parcels, such lease may be wholly avoided by the remainder-man.

29. It is laid down by Lord Coke(i), that if a person seised in fee of one acre of land, and of another acre in tail, make a lease for life, or for years, of both acres at a gross rent, and die, and the issue in tail avoid the lease, the rent(j) shall be apportioned. So a person leasing, at an entire rent, lands to which he had title, and others to which he had none, the rent may be apportioned(k) upon the eviction of part by title paramount.

Where lands subject to a power requiring the usual, or the best rent, are demised along with other lands(), not included in the settlement, and in which the lessor has only a limited interest, reserving a gross rent, if the lands not comprised in the settlement are evicted by title paramount, after the lessor's decease, the rent cannot be apportioned on the lands subject to the power, and the lease will be wholly void, because an apportionment by a jury (m) might not leave the remainder-man either the usual or the best rent, and by means of such a reservation, he would be involved in considerable difficulties: but if lands included in the power be demised along with other lands, of which the lessor had the absolute and uncontrolled disposition, though the lease be invalid in respect of the lands comprised in the power, it will be available for the residue(n), and the rent shall be apportioned. 30. A prebend, being usually let with the exception of all crab

(f) Doe dem. Ld. Shrewsbury v. Wilson, 5 B. & Ald. 363.

(g) Doe dem. Bartlett v. Rendle, 3 M. & Selw. 99; Ld. Mountjoy's case, 5 Rep. 5, B.; Doe dem. Douglas v. Lock, 2 Ad. & Ell. 747; 4 Nev. & M. 828.

(h) Doe dem. Williams v. Matthews, 5 B. & Adol. 298; 2 Nev. & M. 264, S. C. (1) Co. Litt. 148, B.

Doe dem. Vaughan v. Meyler, 2 M. & Selw. 276; overruling Rees dem. Perkins v. Philip, Wightw. 69.

(k) Doe dem. Williams v. Matthews,

5 B. & Adol. 302; 2 Nev. & M. 264; Stevenson v. Lambard, 2 East, 575.

(1) Doe dem. Douglas v. Lock, 2 Ad. and Ell. 705; 4 Nev. & M., 806-828; Ld. Cardigan v. Mountague, 2 Sugd. on Powers, 600-661; Doe dem. Griffiths v. Lloyd, 3 Espin. N. P. C. 78.

(m) But see 2 Sugd. on Powers, 451; Ld. Muskerry v. Chinnery, Ll. & G., temp. Sugden, 229.

(n) Doe dem. Williams v. Matthews, 5 B. & Adol. 302; 2 Nev. & M. 264, S. C.

trees(o), and such like trees, rendering seventeen pounds yearly, another lease was afterwards made at the ancient rent, omitting the exception, and it was resolved that the latter lease was void.

Under a power requiring all leases to be made in the same manner and form, and with such and the like reservations, restrictions, covenants, conditions, and agreements, as had been usually contained in former leases of the same kind; by an old lease, all timber trees, and trees likely to prove timber, were excepted out of the demise; and by a lease subsequently made under the power, all timber trees, bodies of pollard, and other trees, were excepted(p), leaving the upper parts of the pollards, from which tops, lops and boughs might be taken, unexcepted; the latter lease was adjudged void, in consequence of the omission, because if the whole of the trees likely to prove timber had been excepted, the owners of the inheritance might have cut the lops and tops but as the bodies alone were reserved, the trees could not lawfully be felled, as the lessees had an interest in such lops and tops, for repairs and fuel. Lord Denman, C. J., in order to obviate an objection that these lops and tops might be considered as amongst the "de minimis," which the law disregards, observed that, in some cases, they might be of such value as to be worth attending to.

31. Under a testamentary power enabling successive tenants for life, when in possession, to make any lease of the several estates, hereditaments, and premises thereby devised, or any part or parts thereof, for any term not exceeding twenty-one years, in possession and not in reversion, at the best rent, and without fine, it was decided that the lease of a messuage(q) parcel of the premises, together with full liberty to the lessee, his executors and administrators, and his and their friends, in his or their company, at all seasonable times, to hunt, course, shoot, and fish over the demised premises, and also over any other of the lands whatsoever, for fourteen years, rendering to the lessor, or other person, for the time being, entitled to the immediate reversion of the premises, the yearly rent of £200, was not a valid execution of the power, because the lease was only made of part of the lands, with a right of shooting over the whole, and as it is the land itself which gives the right of shooting, the lessor had no power to separate the land from one of its incidents.

(0) Smith v. Bole, Cro. Jac. 458; 3 Bulstr. 290; 2 Ro. Abr. 455; Reservation, U. pl. 1.

(p) Doe dem. Douglas v. Lock, 2 Ad.

& Ell. 705; 4 Nev. & M. 807, S. C.
(q) Dayrell v. Hoare, 4 P. & Dav.
114; 12 Ad. & Ell. 356, S. C.

CHAPTER III.

LEASING POWER.

32. Irish Statute authorizing Leases for Years determinable on Lives, under Power to lease for Lives only.

33. Freehold Lease, not warranted by
Power to lease for Years deter-
minable on Lives.

34. Lease by Tenant for Life with
leasing Power, not vitiated by
Clause of Re-assumption.
35. But may be avoided for Insertion of
Clause of Surrender.

36. Though Tenant for Life may, at
any Time, accept a Surrender,
and grant a new Lease.

37. Unlimited Power enables Tenant for Life to demise for any Term he thinks fit.

38. Lease for the Life of an unborn Child, or of a Person not in esse, cannot be supported.

39. Long v. Rankin.

40. Lease for ninety-nine Years, un-
der Power to demise for twenty-
one Years, void at Law.
41. Nature and Effect of Reversionary
Leases.

42. Power to grant either a Chattel or a

32. POWERS to make leases for any term not exceeding a specified number of years, or for a specified period(a), such as thirty-one years, will authorize leases for any shorter time.

According to English decisions(b), a leasing power for three lives does not warrant a lease for years determinable upon lives; but by the Irish Statute(c) 17 & 18 Geo. III. c. 49, it is enacted(d), that any person or persons who have power under settlements to make leases for one or more life, or lives, shall have the like power to let for ber of years, determinable on one life, or such number of lives as in their respective settlements mentioned and agreed upon, in respect of

(a) Isherwood v. Oldknow, 3 M. & Selw. 382.

(b) Whitlock's Case, 8 Rep. 69, B.; Roe dem. Brune v. Prideaux, 10 East, 158.

any num

(c) 17 & 18 Geo. III. c. 49, s. 11, Irish. (d) The title of this Statute is, "An Act for the Relief of His Majesty's Subjects of this Kingdom professing the Popish Religion.'

such power, subject, however, to every other proviso, condition, and restriction in such settlements contained, concerning such leases.

It has not been decided whether a will containing strict limitations, with a leasing power for lives, comes within the operation of this Statute, but a devise of lands being a statutable conveyance, would probably be considered a settlement within the meaning of the Act.

33. A freehold lease, however, for a life or lives, is not a valid execution of a power(e) to lease for any term or number of years, determinable upon one, two, or three lives.

A power to grant leases, if in possession, for one, two, or three lives, or for the term of thirty years(f), or for any other term of years determinable upon one, two, or three lives, or in reversion for one or two lives, or for the term of thirty years, or for any other term of years determinable upon one or two lives, was held sufficient to enable the tenant for life to make an absolute lease for thirty years, and was not confined to a term determinable on a life or lives.

34. Under a power authorizing leases for any number of years, not exceeding a specified term, a lease may be granted for the term, with a clause enabling the lessor to determine the lease(g), at any time after notice for that purpose, and to re-assume possession of the whole, or of any part of the demised premises.

35. But a lease made under a similar power, with a proviso that the lessee(h) shall be at liberty to surrender the premises, on giving previous notice for that purpose, cannot be supported. This subject has often been discussed on principles applicable to the condition of Irish tenants, and such a clause is considered a fraud on the power, by enabling tenants for life to obtain a higher rent for the premises, to the prejudice of the remainder-man. A tenant with the privilege of surrendering his lease, has, at his own discretion, either an absolute term, or is in effect only a yearly tenant, and may have it in his power to embarrass the remainder-man, by means of such an option.

36. Tenant for life, subject to a limited power, may, at any time(¿),

(e) Evans v. Vaughan, 4 B. & Cress. 261; 6 Dowl. & Ry. 249, S. C.

(f) Winter v. Loveday, 1 Com. Rep. 37; 2 Salk. 537; 1 Ld. Raym. 267; Comb. 371; Carth. 427; 1 Freem. 507; Lutwych v. Piggot, 3 Mod. 268.

(g) Ld. Cardigan v. Montague, 2 Sugden on Powers, 599.

(h) Lowe v. Swift, 2 Ball & B., 529– 536; Jack dem. Wheatley v. Creed, 2 Huds. & Br. 128; Lessee Dunn v. No

lan, 2 Law Rec. 72; Ld. Muskerry v. Chinnery, Lloyd & G., temp. Ld. Plunket, 182-201; Fairclaim dem. Harte v. Wilson, K. B., Trin. 1836, MSS.; but see contra, Jones dem. Cowper v. Verney, Willes, 162-175; Stiles v. Cowper, 3 Atk. 692; 2 Sugd. on Powers, 359625; Ld. Muskerry v. Chinnery, Lloyd & G., temp. Sugden, 185-229.

(i) Wilson v. Sewell, 4 Burr. 1975; 1 W. Bla. 617.

accept a surrender of a subsisting lease, and grant a renewal, or a new lease of the surrendered premises, provided the conditions of the power be observed. Where a new lease is made to a person holding under a subsisting lease, the acceptance of such new lease operates as a surrender in law(), and determination of the prior lease; but if the new lease be invalid under the power, and do not pass(k) an interest according to the contract and intention of the parties, the acceptance of such second lease will not cause any implied surrender of the prior term, even though the old lease should have been cancelled(), and given up to the landlord in a cancelled state.

37. An unlimited leasing power may be controlled by the intention of the parties, to be collected from the deed, but unless(m) the power can be so restrained, the tenant for life may grant a lease for any period he thinks fit.

Under a testamentary power enabling testator's wife to let, set, and make such estates(n), in as ample a manner as the testator might have done, during her life, a lease made by her for ninety-nine years, determinable on three lives, was held binding on the persons in remainder; for otherwise the words of the will limiting the power would be idle and void, as every tenant for life might demise for his own life.

38. A power to demise for two or more lives(o), authorizes a lease only for co-existing lives, and for the life of the survivor of them(p), and a lease made for the life of an unborn child(q), cannot be supported.

39. Under a power to demise for any term of years, not exceeding thirty-one years, or for one, two, or three lives, a lease for the lives of three specified persons, or for the life ofthe survivor of them, or for the term of thirty-one years, was established by the House of Lords(r) as valid for the lives of the persons named, and of the survivor of them; and in case all the cestuique vies should die within the period of thirty-one

(j) Davison dem. Bromley v. Stanley, 4 Burr. 2210; Thursby v. Plant, 1 Saund. 236, B. note 9; Preston on Merger, 164.

(k) Roe dem. Ld. Berkeley v. Archb. of York, 6 East, 86-101; Davison dem. Bromley v. Stanley, 4 Burr. 2210; Lowther v. Troy, Irish Term Rep. 198 (Roe dem. Ld. Berkeley v. Archb. of York, 6 East, 86-101; Doe dem. Courtail v. Thomas, 4 M. & Ry. 218; 9 B. & Cress. 288, S. C.

(m) Attorney-Gen. v. Moses, 2 Madd. Rep. 294-309; Lord Mountjoy's Case, 5 Rep. 3 B.

(n) Heale v. Green, Style, 258-275 & 315; 16 Vin. Abr. 468; Powers, A. pl. 10; 2 Ro. Abr. 261 A. pl. 10.

(0) Doe dem. Wyndham v. Halcombe, 7 T. R. 713.

(p) Alsop v. Pine, 3 Keb. 114; Brudnel's Case, 5 Rep. 9.

(q) Doe dem. Pemberton v. Edwards, 1 Mees. & W. 553; Snow v. Cutler, Thos. Raym. 163, by Wyndham, J.

(r) Long v. Rankin, 2 Sugd. on Powers, 539. Lessee Lord Netterville v. Marshall, Wallis, 80; 6 Bro. Parl. Ca. 168, S. C.; Hosier v. Powell, Long. & Towns. 2; 3 Irish Law Rep. 395.