rents," without specifying how much, and another lease was executed, of all the lands which had not been anciently let, reserving "the best improved rents," so that, instead of specifying the particular sums to be paid, the words of the power were inserted in the leases: it was decided that neither of the leases was a valid execution of the power.

63. If rent be reserved by lease, made under a power, to the lessor(t) his heirs and assigns, or if it be reserved generally during the term, or to the persons who for the time being shall be entitled to the reversion and inheritance of the premises, by virtue of the instrument creating the power, such reservation will effectually carry the rent to the persons respectively entitled under the limitations of the settlement. So, although the rent be reserved to the persons for the time being entitled to the freehold, or inheritance of the demised premises immediately expectant on the death of the tenant for life and lessor, the expression will be construed to extend to the owners of such parts of the inheritance as constitute the reversion immediately (v) expectant on the life estate, and consequently will include the trustees of a term for years, having the next estate in the reversion.

64. A person seised in fee, or having the absolute and uncontrolled disposition of lands, may grant a valid lease rent-free; but under a power reserved by a strict settlement, enabling a tenant for life to demise lands for any term, either with or without fine, and wholly silent as to any rent, it would be difficult to support a lease made for a long term rent-free, or reducing the income of the property below the accustomed rent: it cannot reasonably be inferred from the silence(w) of the power on the subject of rent, that the parties infended to enable the tenant for life to defeat all the limitations of the deed creating the power.

However, Sir John Fortescue, who was seised in fee, having by a voluntary deed limited certain lands to his own use for life, and then to trustees for ninety-nine years, if A. B. should so long live, upon such trusts as the settlor should direct, and subject thereto to the first son of J. F., &c., reserving power(x) to make leases, with or without fine, and rendering such rents and services as he (the settlor) should think fit. Sir John Fortescue having declared the trusts of the term for payment of

(t) Whitlock's case, 8 Rep. 89, B.; Ld. Tankerville v. Wingfield, 3 Bligh's Parl. Ca. 331, note; 2 Brod. & B. 498, S. C.

(u) Berry v. White, Bridg. by Bann.

103.

(v) Rogers v. Humphreys, 4 Ad. &

Ellis, 299; 5 Nev. & Mann. 511, S. C. (w) Ld. Tankerville v. Coke, Mosely, 154-155, 161.

(x) Talbot v. Tipper, Skinn. 427 ; and see Ld. Muskerry v. Chinnery, Rep. temp. Sugden, 225.

his debts, afterwards made a lease to the lessor of the plaintiff, without reserving any rent, and it was objected that the power was not well executed, as the lease had been made rent-free; but it was ruled, that the power enabling the settlor to reserve such rent as he should think fit, if he did not think fit to reserve any rent, this should not avoid the execution of the power; that as the power did not refer to any yearly rent, the reservation of a peppercorn payable forty years afterwards had been sufficient; that such matter should not be regarded as a cause sufficient to avoid the lease, where the settlement had been made, subject to a trust to pay the rents, issues, and profits, to such person as he should direct.

65. Certain qualifications for the benefit of the persons in remainder, are usually annexed to the common leasing power, requiring the insertion of a clause of re-entry in default of payment of the reserved rent, that the lease should not by express words be made dispunishable of waste, and that every lessee should execute a counterpart, which stipulations must be strictly observed (y), otherwise the lease may be defeated by the remainder-man.

Under a power requiring a clause of re-entry, the lease may allow a reasonable period(z), such as forty-two days, for payment of the rent after it becomes due, before the landlord can re-enter; or a previous demand of the rent, or the want of sufficient distress on the demised premises, may be annexed as qualifications to the condition of reentry. A lease reserving the proper rent, with a proviso of re-entry in case such yearly rent, or any part thereof, shall be in arrear for twentyone days, next after the days appointed for the payment thereof, being lawfully demanded(a), and no sufficient distress to be found on the demised premises, is a valid execution of a power requiring a condition of re-entry.

The omission of a clause of re-entry in Irish leases, is of much less importance to an Irish landlord than a similar omission would cause in England, because, by the Irish Statute(b), 5 Geo. II. c. 4, after reciting that lands had theretofore been demised by leases, wherein no

(y) See Hawkins v. Kemp, 3 East, 410-440.

(z) Doe dem. Wythe v. Rutland, 2 Mees. & W. 661; same case in error, 5 Mees. & W. 688; Ld. Tankerville v. Wingfield, 3 Bligh's Parl. Ca. 331, note; 2 Brod. & B. 498; 5 Moore, 346; 7 Price, 343, S. C.: Doe dem. Ld. Jersey v. Smith, 5 Maule & S. 467; 1 Brod. & B. 97; 7

Price, 281; 2 Brod. & B. 475; 3 Moore, 339; 5 Moore, 332; 3 Bligh's Parl. Ca. 290, overruling Coxe v. Day, 13 East, 118.

(a) Doe dem. Ld. Shrewsbury v. Wilson, 5 B. & Ald. 363; Doe dem. Scholefield v. Alexander, 2 M. & Selw. 525; and see Bowes v. E. L. Waterworks, Jacob. 330, by Lord Eldon.

(b) 5 Geo. II. c. 4, Irish.

clause of re-entry had been inserted, it is enacted, that where one year's rent is in arrear, the landlord may bring his ejectment, and recover possession of lands then held, or thereafter to be holden by any lease, in such and the same manner as if a clause of re-entry had been expressly contained in such lease.

Where the power authorizes the grant of leases either in possession or in reversion, provided such leases contain clauses of distress and reentry, in case of non-payment of rent; and a concurrent lease is granted containing a clause of distress and of re-entry, it will not afford(c) any good ground of objection that such clauses of distress and re-entry cannot be rendered available during the existence of a prior outstanding lease.

The reservation of a limited clause(d) of distress in a lease well executed in other respects, under a power, does not avoid the lease, because any express clause of distress is introduced in furtherance, and not in restraint of the common-law right of distraining.

If, however, the power require a clause of re-entry on non-payment of rent for a limited period, such as twenty-one days, a lease(e) extending the specified time by enlarging the period to forty-two days, cannot be supported, though a qualification for want of sufficient distress may be annexed to the condition without vitiating the demise.

66. An authority to open and work mines, to fell trees, to cut turf for sale, or to commit any other waste on demised premises, will vitiate a lease made under a power requiring that the lessee shall not be made dispunishable of waste by express words, but an exception out of the covenant to keep in repair," of accidents caused by fire(ƒ), by tempest, or by the king's enemies," will not have that effect.

67. The omission of a proviso of re-entry, or a covenant to pay rent(g), will invalidate the execution of a power to make leases at the best rent, although the power be silent respecting any particular covenant, or condition of re-entry.

Under a testamentary power to make leases for three lives or thirty-one years at the best rent, in possession and not in reversion, the devisee, upon the expiration of an old lease containing a clause of re

(c) Nugent dem. Galwey v. Cuthbert, MSS. in the House of Lords, on writ of error from Ireland; Perret v. Cable, in the Appendix, No. 10.

(d) Doe dem. Ld. Shrewsbury v. Wilson, 5 B. & Ald. 363; Perret v. Cable, Appendix, No. 10.

(e) Prichard v. Whitefield, cited in

Hotley v. Scott, Loft. 316.

(f) Nugent dem. Galwey v. Cuthbert, in the House of Lords, on a writ of error, 1822; Doe dem. Ellis v. Sandham, 1 T. R. 705.

(g) Taylor dem. Atkyns v. Horde, 1 Burr. 125.

entry, and covenant for payment of rent, granted a new lease to the former lessee for three lives(h), subject to the covenants, provisoes, and conditions in the expired lease, and it was decided, that such new lease was invalid, because it did not contain any express covenant by the lessee, and the Court held that the reference by the new lease to the covenants in the expired lease, did not create any covenant on the part of the tenant.

If the power require that leases shall contain the usual covenants, a lease cannot be supported unless covenants contained in former leases of the same premises shall be inserted; and if any particular covenant be required, the direction must be observed; but if the power be wholly silent on the subject, the validity of the lease will depend on the question, whether the omission of the covenants usually intro_ duced into similar leases, be a fraud upon the power.

Under a power to demise certain premises for lives renewable for ever, at the best rent, with covenants for building, a lease omitting such a covenant(i), or omitting to limit the period(j), within which the buildings should be erected, or improvements made, cannot be supported: and where a tenant for life was enabled to grant leases for building, with usual and reasonable covenants, a lease, by which the tenant covenanted(k) merely to keep the buildings in repair, was ruled not to be a valid execution of the leasing power.

Under a testamentary power to grant leases for the purpose of new building, or of effectually rebuilding and repairing, for a term of sixty-one years, at the best rent, without a fine, a lease was made() for sixty-one years, at the rent of £27, and the lessee covenanted to lay out £250 for the purpose of effectually repairing the demised premises, and putting the same into complete and substantial repair, to the good liking of the lessor and his assigns, and to keep the premises, when repaired, in good repair; and it was ruled that a covenant to repair was not equivalent to a covenant to rebuild and repair, as the effect of the latter words would be, to bind the tenant to rebuild such part of the premises as required rebuilding, and to repair such parts as only needed repair; and that the omission of an express covenant to rebuild, vitiated the lease. It did not appear in the case, whether the premises

(h) Nugent dem. Atkins v. Sealy, Alc. & Nap. 359.

(i) Higgins v. Ld. Rosse, 3 Bligh's Parl. Ca. 112; Blore v. Sutton, 3 Meriv. 246.

(j) Fairclaim dem. Harte v. Wilson,

K. B. Trin. 1836, MSS.

(k) Jones dem. Cowper v. Verney, Willes, 169.

(4) Doe dem. Dymoke v. Withers, 2 B. & Adol. 896; but see 2 Sugden's Powers, 469.

had been put into complete repair, nor whether the sum of £250 was sufficient for that purpose.

68. Not only the omission of a proper and usual covenant, but the introduction of an improper covenant, will invalidate a lease granted under a leasing power.

A testamentary power, having authorized the granting of leases by a tenant for life, not exceeding twenty-one years in possession, without fine, so as the rent were made payable during the continuance thereof, and that none of such leases (m) should be made dispunishable of waste, and that usual and reasonable covenants should be inserted: a lease was granted, by which the lessee covenanted to keep the demised premises in tenantable repair (accidents by fire and tempest excepted), and also in case the demised buildings should be blown down by violent storms, or burned down by lightning, or other accidental fire, that the lessor, or other persons entitled to the freehold should repair, or rebuild immediately, or in default thereof the lessee, his executors, &c., should be at liberty to quit them, and be forthwith discharged from payment of the yearly rent. Upon the trial of an ejectment, the jury found that the latter covenant was unusual and unheard of on the part of a lessor, and the Court held that the lease could not be sustained.

A power being given, by will, to demise such parts of certain premises as had been usually granted, and were then in lease, for any term of years determinable upon lives, for the like terms, and in like manner, and at and under the like rents, services, and conditions, as they(n) had been usually granted; and the residue thereof for any term not exceeding twenty-one years, in possession, at the best rent, so as that no such lease should be made dispunishable of waste, nor without a condition of re-entry on non-payment of the rent and services: a new lease was made of lands which were in lease at the time of creating the power, and was precisely similar to a former lease which had expired, but neither of them contained any condition of re-entry on non-payment of forty shillings, reserved in lieu of a heriot in both leases, and it was ruled that the word "such," in the power, was restricted to the latter class of demises, and that it was unnecessary the right to re-enter should be extended to the heriot.

However, under a power to demise the lands of Rathenny, for any

(m) Doe dem. Ellis v. Sondham, 1 T. R. 705.

(n) Doe dem. Bligh v. Colman, 1 Bing.

28; 7 Moore, 271, S. C.; and see Campbell v. Leach, 2 Ambler by Blunt, 747, note 8, from Serjeant Hill's MSS.