revive the right, and bring it out of the statute again." The Master of the Rolls considered this authority not in point, inasmuch as the advertisement in the case before the Court reserved to the party to whom the claims were to be submitted the liberty of approving or rejecting them, and by that party the objection of the bar by lapse of time might have been taken. Lord Brougham, on the contrary, thought Andrews v. Brown an authority, such as it was, that would have led him to consider the circumstance of the advertisement decisive; but he added, that "the book in which Andrews v. Brown was reported was of no great repute; and that the Judge who decided the case, Lord Keeper Harcourt, though a respectable lawyer, was not to be ranked with the Parkers, the Finches, and the Hardwickes." Of Harcourt, it is true, that he is better known as a wit and a politician, and the convivial associate of Swift, than as a Chancellor; but touching the book (Precedents in Chancery,) in which Andrews v. Brown is reported, we must take the liberty of observing that his lordship is quite mistaken as to its character, and that, as he has on more than one occasion called it Finch's Reports, (Mr. Finch was the editor of a new edition published in 1786,) he probably confounds it with some other book of less authority, perhaps, the Cases tempore Finch. Among the Reports of an earlier date, the book entitled "Precedents in Chancery" has always been considered by equity lawyers as one of the most valuable. Lord Hardwicke has borne testimony to its great merit, and has further informed us that from the year 1689 to 1708, the notes of the cases were taken by Mr. Pooley, and from the latter period to 1722, by Mr. Robins. Mr. Viner also mentions, in his Abridgment, that many of the cases in this collection were reported by that great man Mr. Pooley. Of Mr. Pooley's greatness Lord Brougham would perhaps require a stronger assurance than the eulogy of Mr. Viner; Vixêre fortes ante Agamemnona Mr. Robins may come better recommended to notice, inasmuch as he had not only the reputation of being one of the 5 Via. 408, pl. 19 11 Russell & Mylne, 269. ablest lawyers of his day, but was also, according to Lord Hardwicke,1 the author of a well-known piece of pleasantry, viz. " that a prayer for general relief in a Bill was the next best prayer to the Lord's Prayer." But we are sure that when the Chancellor becomes better acquainted with the Reports in question, he will not be slow to add his testimony to the merits of Messrs. Pooley and Robins, and to propitiate their somewhat injured manes by acknowledging the value of their labours. ART. V.-LEASES AND AGREEMENTS FOR LEASES. A practice has prevailed of late years to a considerable extent in some parts of the country, of letting farms for a year certain," and afterwards from year to year so long as the parties shall please," by instruments, which, though purporting to be agreements, and accordingly stamped only with a 17. agreement stamp, are in fact, to all intents and purposes, leases in præsenti, and constitute throughout the tenancy the only written contract between the parties:-and the race of agents and stewards have been thrown into no small alarm by paragraphs in the provincial newspapers, informing them,—and what was worse, informing tenants also,-of the disability belonging to such instruments, but without suggesting any means of escape from the difficulty. We may, therefore, perhaps, employ a few pages usefully and seasonably in presenting, as compactly as we can, the substance of the principal decisions in the books upon the subject, and supplying such information as we may for the guidance of parties in this matter. In some early cases, the mere presence in the instrument of words of present demise appears to have been deemed sufficient to make it amount to an absolute lease, though a fur 1 3 Atk. 132. * We need scarcely say, that although leases for a term not exceeding three years are good without deed, they must, if in writing, have the proper stamp. ther and more formal contract might be contemplated and stipulated for; and on the other hand, it was laid down in one case, that the expression, " I agree to let my land," would import, ex vi termini, an executory contract only. But it has now been long established, that the intention of the parties to the contract, as collected from the instrument itself, furnishes the only true principle of construction. The general rule cannot be more correctly or perspicuously expressed than in the words of Lord Chief Baron Gilbert:-" Whatever words are sufficient to explain the intent of the parties, that the one shall devest himself of the possession, and the other come into it, for such a determinate time, whether they run in the form of a license, covenant, or agreement, are of themselves sufficient, and will in construction of law amount to a lease for years, as effectually as if the most proper and pertinent words had been made use of for that purpose. And on the contrary, if the most proper and authentic form of words, whereby to describe and pass a present lease for years, are made use of, yet if upon the whole deed [instrument] there appear no such intent, but that they are only preparatory and referential to a future lease to be made, the law will rather do a violence to the words than break through the intent of the parties. For a lease for years being no other than a contract for the possession and profits of the land on the one side, and a recompense of rent or other income on the other, if the words made use of are sufficient to prove such a contract, in what form soever they are introduced, the law calls in the intent of the parties, and models and governs the whole accordingly." We proceed to an abstract of the more recent authorities, some of which are separated from others, differently decided, (but all professedly with reference to the rule of construction quoted above) by very fine lines of demarcation, though not 1 Maldon's case, Cro. Eliz. 33; Harrington v. Wise, ib. 486. 2 Sweeper v. Randall, Cro. Eliz. 156. 3 Bac. Abr. Leases (K). See Whitlock v. Horton, Cro. Jac. 91; Tooker v. Squier, ib. 172; Hall v. Seabright, 1 Mod. 14; Richards v. Sely, 2 Mod. 80; Sturgion v. Painter, Noy 128; Pleasant v. Higham, 1 Roll. Abr. 848. Tisdale v. Essex, Hob. 34; Drake v. Munday, Cro. Car. 207; Prosser v. Phillips, Bull. N. P. 259. perhaps absolutely conflicting. And first of those wherein the instrument in question has been determined to amount to a lease in præsenti. In Baxter d. Abrahall v. Browne,1 the lessor of the plaintiff and the defendant had signed an agreement on a 2s. 6d. stamp (then the ordinary stamp for agreements not under seal), whereby the former agreed with all convenient speed to grant a lease to the latter of, and did thereby set and let to him, certain premises, to hold for 21 years from Candlemas then next, at a specified rent, payable half yearly to the lessor: with a proviso that the said lease should be void on non-payment of rent, alienation, &c., and should contain the usual covenants on the part of lessor and lessee, and also certain special covenants therein mentioned; in one of which occurred the words " this demise." The defendant entered in pursuance of this agreement, and had received a regular notice to quit. The instrument was held to be a lease in præsenti, with an agreement to execute a more formal and perfect lease in futuro. In Barry v. Nugent the instrument was in the following terms:-"Be it remembered that J. B. hath let and by these presents doth demise, &c. to R. F. &c. for 21 years, to commence the 5th May or 1st Nov., whichever first happens after the said J. B. recovers the said lands from M. O. The said R. F. covenanting and agreeing on the foregoing conditions to pay J. B. 110. yearly during the said term; leases with power of distress and clauses for re-entering, and all other usual clauses between landlord and tenant, to be drawn and signed at the request of either party, as soon as J. B. recovers the lands from M. O." &c. The action was ejectment by a party claiming under R. F., who therefore had entered into possession under the instrument in question. The Court were of opinion that it operated as an actual demise, and that the agreement for a more formal lease was only in further assurance; there being nothing to abridge the meaning of the positive and unequivocal words of present demise. The stipulation, however, for the execution of a regular lease before 1 2 Bl. Rep. 973. 2 In K. B. on error from the K. B. in Ireland, Trin. 1782, cited 5 T. R. 165. the commencement of the term seems rather to make against the conclusion, that the parties intended occupation to begin under the former instrument. Moreover, the interest of the lessee was contingent on an uncertain event-the recovering of the land from M. O.1 Poole v. Bentley has always been considered a leading case on this subject. The action was for the use and occupation of land of which the defendant was let into possession under the following memorandum, signed by himself and the plaintiff, and impressed only with an ordinary agreement stamp:-" Memorandum of agreement this 12th of June, 1806, between J. P. and P. B. The said J. P. hereby agrees to let unto the said P. B., and the said P. B. hereby agrees to take of the said J. P., all that piece of land, &c. for the term of 61 years from Lady-day next, at the yearly rent of 1207. &c. to be paid quarterly. And that for and in consideration of a lease to be granted by the said J. P. for the said term, the said P. B. agrees within the space of four years from the date hereof to lay out in building five or more new houses, &c. 20007. and to take such lease and execute a counterpart thereof. This agreement to be considered binding till one fully prepared can be produced." The intention of the parties was most reasonably construed to be, that the tenant, who was to expend so much capital on the premises within the first four years of his occupation, should have a present legal interest in the term, which was to be binding on both parties; although, when a certain progress was made in the buildings, a more formal lease might be executed, in which perhaps the premises might be more particularly described for the convenience of underletting or assigning. In Doe d. Walker v. Groves3 the defendant entered under articles on an agreement stamp, whereby the lessor of the plaintiff agreed to let, and also on demand to execute to the defendant a lease of, the farm-house, &c. as the same was then in occupation of the former: and the defendant thereby agreed to take, and on demand to execute a counterpart lease of the said farm; to hold the same from the 5th April then next for 15 years, at the yearly rent of 1477. to be paid quar 1 See Roe v. Ashburner, post. 2 12 East, 168. 15 East, 244. |