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if not rent they were in nature of a fine, and contrary to the power requiring the best yearly rent to be reserved; but Patteson, Justice, at Nisi Prius, ruled that such a reservation was not a fine, and did not avoid the lease.

56. If a power require the ancient rent, it must not only be reserved for the benefit of the persons in remainder, but also to the lessor himself, and therefore the reservation(t) of less than the ancient rent to the lessor himself during his life, and after his decease, the full amount of the ancient rent for the residue of the term, will invalidate the demise. And the same rule appears equally applicable(u) to the usual power, which requires the best rent to be reserved(v) during the continuance of the demise.

57. Under a power requiring the reservation of the best rent, during the continuance of the lease, and prohibiting any fine, a lease made on the 15th October at a yearly rent, payable half-yearly on every 11th day of November and 25th day of March, the first payment to be made on the 11th day of November next ensuing, was decided to be valid (w); for although only a period of twenty-seven days elapsed between the execution of the lease and the first halfyearly payment, yet it appeared by the lease that the first half-yearly payment was to be made for the antecedent occupation of the premises by the lessee, and as the payment of the reserved rent was co-extensive with the duration of the lease, the remainder-man could not by any possibility be deprived of any part of the interest.

58. But a lease of Lansdowne house(x), dated the 14th of September, 1809, which was made under a similar power, for twenty-one years from the date of the indenture of lease, at a rent payable halfyearly, the first payment whereof was to commence on the then next 25th of March, was declared to be void, because the lease would expire on the 14th of September, and no rent would be payable under it from the 25th of March next preceding its expiration.

59. A power enabling a tenant for life to grant leases for three lives, so as the best rent should be reserved during the continuance thereof, by half-yearly payments, without taking any sum of money or other thing by way of fine or income for the same, was held(y) not to

(t) Ld. Mountjoy's case, 5 Rep. 6, A.; Taylor dem. Atkyns v. Horde, 1 Burr. 121; but see Tuthill v. Adamson, 3 Law Rec. 156, N. S.

(u) 2 Sugd. on Powers, 424. () Doe dem. Sutton v. Harvey, 1 B. & Cress. 426; 3 D. & Ry. 589.

And

see Blore v. Sutton, 3 Merw. 242. Arg.

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

(x) Doe dem. Wilmot v. Giffard, 5 B. & Ald. 371, cited.

(y) Doe dem. Harries v. Morse, 4 Tyrw. 185; 2 Cro. & M. 247.

be well executed by a lease dated the 11th of January, for three specified lives, to hold from the 4th of January next preceding, at the rent of thirty guineas, payable half-yearly on every 1st of May and 29th of September during the term, the first half-yearly payment to be made on the 1st of May next ensuing, because, the rent should have been divided into two equal half-yearly portions, as far as circumstances would permit, or should have been reserved on corresponding feast-days, instead of being made payable at two such unequal intervals in every year; and secondly, because the first gale of rent was payable long before half a year's occupation had elapsed, and it was observed by Bayley, Baron, that the tenant for life had no right to throw on the remainder-man the uncertainty(2) of chances which might turn out to his prejudice.

Under a power to make leases for any number of years determinable on three lives, so as upon every such lease were reserved(a), during the continuance thereof, the usual and accustomed yearly rents, a lease was made on the 6th of January, 1785, for ninety-nine years, determinable on three lives, at a yearly rent of £50, payable during the term at Lady-day and Michaelmas, by equal portions, the first payment to be made on Lady-day next ensuing, and it was objected, that the first half-yearly payment was reserved at a period less than half a year distant from the commencement of the demise; but as the power merely required the reservation of the usual rent, and as a similar lease had been made before the creation of the power reserving the rent in a similar manner, it was decided to be within the meaning of the power; and Lord Tenterden observed, that the lease in question being for lives, and being granted upon the surrender of a former lease, was, in effect, only an extension of time upon fresh terms; and it was most reasonable that the days of payment for the rent should continue the same, and should not vary according to the day on which the new lease might happen to be made.

Where a devisee was empowered to make leases for twenty-one years, so as upon every such lease were reserved, during the continuance thereof, the best improved yearly rent, without taking any fine, and that in every such lease should be contained a clause of re-entry for non-payment of rent, a lease was made for twenty-one years(b), to hold

(2) This uncertainty has been diminished by the Statute for Apportionment of Rents, 4 & 5 Will. IV. c. 22, s. 1, English & Irish; 23 & 24 Geo. III. c. 46, Irish.

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

(b) Doe dem. Wythe v. Rutland, 2 Meeson & W.661; Rutland v. Doe dem. Wythe, 5 Mees. & W. 688.

from the 11th day of October, 1833, at the yearly rent of £903, payable by equal half-yearly payments on the 6th of April, and eleventh of October in every year, except the last half-year's rent, which was reserved and agreed to be paid on the first of August next before the determination of the term; and a clause of re-entry was inserted, in case the rent should be unpaid for forty-two days after it became due. It was contended that the rent should have been reserved equally during the term, and that by the lease no rent would be payable from the first of August to the 11th of October in the last year of the term, and that the tenant for life had no right to reserve any portion of the rent by anticipation; but the Court ruled that forty-two days being a period usually allowed to a tenant for payment of his rent after it became due, was not objectionable in respect of the condition of re-entry; and that the reservation of the last half-year's rent before the complete expiration of the demise, was matter of prudence and caution, and for the benefit of the reversioner, and that the lease was a valid execution of the power. This judgement, however, was reversed upon a writ of error(c), because though the money agreed to be paid in advance during the last half year of the term could not be properly called a fine, yet such a reservation caused part of the term to be exempt from rent, so that the rent could not be said to be payable during the continuance of the lease.

60. When the usual rent is required by the power, the reservation made by the lease next preceding the creation of the power is the true criterion(d) for ascertaining the rent which should be inserted in succeeding leases. If the usual rent is to be reserved, and the tenant by the preceding lease covenanted to pay all taxes and outgoings to which the premises were liable, the omission of a similar covenant in a subsequent lease, though the same rent were continued, would be deemed a fraud on the power, by lessening the value of the reservation, because the usual and accustomed rent should be reserved in the usual and accustomed manner(ƒ), or so as to be equally beneficial to the

reversioner.

Under ecclesiastical leases, although heriots, or other casual services, should have been reserved by former leases, their omission(g) in a

(c) Rutland v. Doe dem. Wythe, 5 Mees. & W. 688; and see Regina v. Weston, 2 Ld. Raym. 1197, by Ld. Holt and Powell.

(d) Doe dem. Douglas v. Lock, 2 Adol. & Ell. 705-736; 4 Nev. & M. 807-818; Morrice v. Antrobus, Hard. 325.

(e) Lord Cardigan v. Montague, 2 Sugd. Powers, 603.

(f) Goodtitle dem. Clarges v. Funucan, 2 Doug. 574.

(g) Baugh v. Haynes, Cro. Jac. 76; Dec. & Cap. of Worcester's case, 6 Kep. 37, A.; Ensden & Denny's case, Palmer, 104.

new lease would form no ground of objection, because it is only rent which is mentioned in the Statute(h); but under a private power, authorizing a tenant for life to demise, with such and the like reservations, restrictions, covenants, conditions, and agreements, as were customarily contained in leases of the same kind, where heriots had been reserved by preceding leases of the same premises, it was ruled(i), that the ancient reservations introduced into new leases must be heriotable; and where duty-fowl, or other periodical returns, have been reserved by former leases, a similar, or equivalent(j) reservation, must be contained in succeeding leases. The expression "usual rent" in a power, signifies such as had before been reserved, and not the rent usually paid for a similar() description of property in the neighbourhood, the "usual rent" being in general contrasted with the phrase "most or best rent."

61. The accustomed rent must be reserved, with all circumstances attending it beneficial() to the remainder-man, and upon this principle it was decided(m), that the reservation of the accustomed rent, at two feasts in the year, when the old rent had been made payable at four feasts, rendered the lease void, as being less beneficial for the persons in remainder; but though by the Statute(n) 13 Eliz. c. 10, all ecclesiastical leases, whereupon the accustomed yearly rent or more should not be made payable yearly during the term, were declared void, it was ruled(o) that the reservation of the accustomed yearly rent, to be paid every half-year at two feasts, did not invalidate the lease, notwithstanding the rent reserved by former leases was made payable quarterly, because the Statute was satisfied by a yearly reservation.

Where the leasing power given by a private Act of Parliament, contained a clause, so as upon every such lease there should be made payable yearly, during the continuance thereof, the usual and accustomed yearly rents, boons, and services, it was decided(p) that a halfyearly reservation was valid. The chief ground of this decision was, that the former leases which had been received in evidence reserved the rent half-yearly; and Lord Tenterden, C. J., observed, that the

(h) 13 Eliz. c. 10, English; 10 & 11 Car. I. c. 3, Irish, amended by 35 Geo. III. c. 23, s. 2, Irish.

(1) Doe dem. Douglas v. Lock, 2 Ad. & Ell. 705-742; 4 Nev. & M. 807-823, S. C.; but see Coventry v. Coventry, 1 Comyns's Rep. 317.

(j) Morrice v. Antrobus, Hard. 325. (k) Doe dem. Newnham v. Creed, 4 M. & Selw. 371; Doe dem. Douglas v. Lock, 2 Adol. & Ell. 705; 4 Nev. & Mann. 807, S. C.

(1) Taylor dem. Atkyns v. Horde, 1 Burr. 121.

B.

(m) Lord Mountjoy's case, 5 Rep. 3,

(n) 13 Eliz. c. 10, s. 3, English.

Dea. & Ch. of Worcester's case, 6 Rep. 37, A.; Baugh v. Haynes, Cro. Jac. 76; Cook v. Younger, Cro. Car. 16; Campbell v. Leach, 2 Ambl. 740.

(p) Doe dem. Ld. Shrewsbury v. Wilson, 5 B. & Ald. 363; Fryer v. Coombs, 11 Ad. & Ell. 406; 4 P. & Dav. 120.

usual and accustomed yearly rent means the yearly rent of so many pounds, by so many half-yearly or quarterly payments in the year.

A tenant for life being authorized to grant leases, so as the accustomed yearly rent was reserved, and so as such leases were made in the same manner and form, and subject to the like reservations, restrictions, covenants, conditions, and agreements, as had been customarily contained in leases of the same kind, where the premises were situated, it was contended(q), that the remainder-man was prejudiced by a quarterly reservation of rent in the new leases, being substituted for a half-yearly reservation in the former leases, and that the time and mode of payment, as shewn by the ancient leases, were circumstances to be taken into consideration in determining whether the rent reserved was the usual and accustomed rent. Lord Denman, in his judgement, after referring to the conflicting decisions on this subject, declined expressing any opinion on the point, as the Court was enabled to dispose of the case on another ground.

It is to be inferred from the preceding authorities, that a power requiring the accustomed rent to be made payable yearly, will be sufficiently executed by reserving the usual rent, by equal portions, either half-yearly or quarterly, on the days specified in former leases and if the best yearly rent be required, it may be reserved either halfyearly or quarterly, but if either a half-yearly or quarterly reservation be expressly required, the direction should be strictly observed. The periods of payment designated by the power might, however, be deemed rather demonstrative than imperative, without violating the intention of the parties to the settlement.

62. The rent reserved on leases made in execution of a power, should be distinctly specified in the demise, or some standard should be referred to, from which the rent payable could without difficulty be ascertained. A lease reserving a fixed rent, such as thirty shillings for every acre(r) which the premises should, on a survey, be found to contain, would be sufficiently certain; but where a power authorized leases of all or any of the lands anciently demised, at the accustomed rent, and leases of all the other lands at the most improved rents, and one lease(s) was executed demising all the lands within the power which had been anciently let, reserving "the several ancient and accustomable

(q) Doe dem. Douglas v. Lock, 2 Adol. & Ell. 705; 4 Nev. & M. 807, S. C. (r) Lewson v. Piggott, 2 Vern. 533, cited 3 Chan. Rep. 61; Shannon v. Bradstreet, 1 Sch. & Lef. 52.

F

(s) Orby v. Ld. Mohun, 3 Chan. Rep. 56; 2 Vern. 531, S. C.; Duchess of Hamilton v. Mordaunt, 6 Bro. P. C. 145; same case on appeal; Owen v. ApRees, Cro. Car. 95.

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