J., and Eyre, J., held, that a lease for thirty years absolutely was good within the proviso.

And where the power was to demise for three lives, or twenty-one years or under, or for any term of years upon one, two, or three lives, or as tenant in tail in possession might do, it was held that a lease for ninety-nine years determinable upon three lives was a good execution of the power. (d)

In a late case, a power to lease for any term of years not exceeding twenty-one years, or for the life or lives of any one, two, or three persons, so as no greater estate than for three lives be at any one time in being, was held to authorize either a lease not exceeding twenty-one years, or a lease for three lives; but not a lease for ninety-nine years determinable upon three lives, because it might exceed twentyone years. (e)

Where a power is to lease for a given term, a lease for a less term will be a good execution of the power. (ƒ) And where a power authorizes a lease for a given term, a lease for such a term, defeasible upon any given event, will be a good lease under the power. (g)

Where the lease exceeds the term authorized by the power though it will be void at law, (h) it will be supported in equity for so much as is warranted by the power. (i)

vation of rent.

III. The power usually directs what rent shall be reserved III. The reserby the leases which it authorizes. This direction must be very accurately observed, or the lease will not be binding on

"Accustomed rent."

the remainder-man; and it must clearly appear by the instrument itself, that the proper rent has been reserved. (k) Formerly powers (following the disabling and enabling statutes) directed that the ancient or accustomed or usual rent should be reserved; but the modern course is to direct a reservation of the best or most rent that can be obtained.

Upon the first set of words, what has already been said in respect of leases under the disabling and enabling statutes will apply, mutatis mutandis, to leases under powers in private conveyances. Referring the reader to these, it is only necessary to remind him, that it seems to be settled, that where a variety of rents has been reserved in successive leases of the same lands, that which was reserved in the last lease of the same lands is to be taken as the ancient or accustomed rent; () or if the proviso be under such rent, reservations, &c., as are usually reserved in leases of the like kind in the same parish, leases of the same kind in that parish may be given in evidence. (m) And provided the ancient rent be reserved, it will not prejudice the lease that no addition is made on account of new buildings, or improvements upon the lands demised. (n) So an omission to reserve heriots or mere casual services will not invalidate the lease, (o) if only the ancient rent is to be reserved, but the omission will be fatal if the ancient and accustomed reservations are required. (p) And where the usual rents are required to be reserved, and a certain sum was formerly paid with a covenant by the lessee to pay all taxes, the reservation of the same sum, without such stipulation, will be a fraud upon the power; (g) and so if the

(k) Ker v. Duke of Roxburghe, 2 Dow. 149.

(1) Doe dem. Douglas v. Lock, 2 Ad. & El. 705. Morrice v. Antrobus, Hardr. 325. Per Holt, C. J., in Orby v. Mohun, 3 Ch. Rep. 66. Dub. Cowper, C. And more than the ancient rent may be reserved, ibid. 78.

(m) Doe dem. Douglas v. Lock, supra.

(n) Read v. Nash, 1 Leon. 148. Banks v. Brown, Moore, 759. Coventry v. Coventry, Com. Rep. 312.

(0) Baugh v. Haynes, Cro. Jac. 76. Coventry v. Coventry, Com.

312.

(p) Doe dem. Douglas v. Lock, supra.

(q) Earl of Cardigan v. Montague, Sugd. on Powers, App. (.3) Goodtitle v. Funucan, Dougl 565.

exception as to woods be less in the new than in the old lease. (q) But a condition for re-entry on the rent being in arrear twenty days, when in the old lease it was twenty-one days, or in case of no distress being on the premises when in the old lease, it was no sufficient overt distress, will not vitiate the lease. (r) If two farms have been let at separate rents, it is not safe under a power to let at the ancient rents, to include them in a demise at one rent, although greater in amount than the two former rents. (s)

When the power requires the best or most rent to be taken, it becomes a mere question of fact for a jury to decide whether such rent has been reserved; (t) and this seems to be the best rack-rent which the landlord can require consistently with securing to the estate a substantial and beneficial tenant; (u) without regard to the fact, that other offers were made at a higher rent by persons whose responsibility could not be disputed; (v) and further considering upon whom the burthen of repairing, &c., is thrown: (w) and where 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; it was held that this covenant did not avoid the lease, because it 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. x) But where a power to lease for any term not exceeding ninety-nine years, required the best and most beneficial rent to be reserved, and the tenant for life executed two leases, the first of which reserved a rent of

"Best rent."

A fine cannot be taken.

2701. for the term of thirty years, and the second reserved only 120. for the sixty-three years to follow; and by a clause in the second lease the tenant was bound to rebuild, either before the expiration of the first term, or within the first year of the second; the Court intimated, that though the rents reserved by the two leases might have been the most beneficial, as between the lessor and the lessee, yet they would not be so accounted as between the tenant for life and the reversioner; and that upon that account the second lease was void. (x)

Where the jury have found that the best rent has been reserved, it is no ground for impeaching their verdict, that the last tenant for life received two offers of a higher rent from responsible tenants, unless it can be shewn that the present tenant for life has been guilty of unfair conduct, or that there is something extravagantly wrong in the bargain. y)

In a power to grant building leases, the term "best rent" must, although not so expressed, be understood to mean the best rent which can be obtained, with reference to the gross sum to be laid out by the tenant in building and improvements. (≈)

If, under a direction to take the best rent, the tenant reserve a rent, and either receive a fine from the tenant upon his admission to the premises, or stipulate for one upon the happening of a particular event, he cannot be said to have reserved the best rent; because it necessarily follows that where the tenant pays a fine, his rent will be less in proportion; and therefore the ultimate benefit of the remainderman will be compromised for the present emolument of the tenant for life. The taking of a fine is therefore a sufficient ground to invalidate the lease. (a) And where the usual rent is directed to be reserved, a fine can only be sanctioned

(a) Doe dem. Sutton Bart. v. Harvey, 1 B. & C. 426. 2 Dowl. & Ryl. 589.

(y) Doe v. Radcliffe, supra.

(z) Vide Sugd. on Powers, 5 edit. 627.

(a) Vide Doe v. Radcliffe, supra.

by proof that the premises have invariably been leased under similar terms. (b) As where a power authorized tenant for life to make leases in Sussex at the most rent, and leases in Middlesex at the usual or other the most rent, and the tenant made a lease of the lands in Middlesex upon a fine, reserving a rent which exceeded the rent reserved upon a former lease in being at the making of the power, and upon which lease the then lessor had also taken a fine; the second lease was held good under the power; as the very difference in the terms in the power, directing the rents to be reserved, shewed that the maker of the power meant to give the tenant the benefit of the fine usually taken. (c)

The surrender of an existing lease, and the grant of a new one at an improved rent, is not equivalent to taking a fine. (d) But if tenant for life, bound to reserve the best rents, lets the premises on a repairing lease, and after the improvements have taken place accepts a surrender, and grants a fresh term, he must reserve the best rent that can be then obtained. (e)

Where a power expressly prohibited the tenant for life from receiving a fine or fore-hand gift, and it was found that a lease was granted on the 15th of October, to commence as to meadow, from the 13th of February last, as to pasturage, from the 25th of March, and as to the messuage from the 12th of May, at a certain rent, payable half-yearly, on the 11th of November and 25th of March, and the first half-year's rent to be payable on the 11th of November then next being twenty-seven days after the date of the lease; the Court of King's Bench refused to presume that this was by way of fore-gift in fraud of the power, and considered

(b) Right dem. Basset v. Thomas, Burr. 1441. S. C. Bl. Rep. 446. (c) Doe dem. Newnham v. Creed, 4 M. & S. 371. In this case Dampier, J., said that he had always considered usual in powers as con

trasted to most, ibid. 378.

(d) Vide Sugd. on Powers, 627, 5 edit.

(e) Doe dem. Griffiths v. Lloyd, 3 Esp. 78.