(421)* (Cro. Cha. 98. Cro.. Ja. 112, 173.) the making of the lease, and the surrender must be absolute and not conditional (Q). *Fourthly, there must not be a double lease in being at one time; as if a lease for years be made according to the statute, he in the reversion cannot expulse the lessee, and make a lease for life or lives according to the statute, nor è converso; for the words of the statute be, to make a lease for three lives, or one and twenty years, so as one or the other may be made, and not both (29). 1 Fifthly, it must not exceed three lives, or one and twenty years, from the making of it, but it may be for a lesser term or fewer lives. Sixthly, it must be of lands, tenements, or hereditaments, manurable or corporeal, which are necessary to (29) “Μ. 29. 30 Eliz. Clench, 138. Grindal's case." Hal. MSS. -See S. C. 4 Leon. 78. 1. and 65. and Mo. 107. and the observations upon it in New Abr. Leases, (E.) rule 3.-[Hargr. n. 2. 44 b.] in tail. But, if the tenant in tail dies without issue, no lease made by him, though pursuant to the statute, will bind the remainder-man or reversioner. Infra. 44 a. A lease by tenant in tail, which is warranted by the 32 H. 8., will not create a discontinuance, because an act of parliament, to which every man is a party, allows of such leases: and therefore if a warranty is annexed to such a lease, it will not work a discontinuance, for it will determine with the lease. Post, 333 a. Vaugh. 383. But it is otherwise of a lease for three lives if it be not warranted by the statute; because it is a greater estate than the tenant in tail can make, and passes by livery, which takes the estate from the tenant in tail, and turns it into a reversion in fee, determinable upon three lives. Walter v. Jackson, 1 Rol. Abr. 633.4 Cru. Dig. 119.-[Ed.] (Q) A surrender upon condition, that the lessor should make a new lease within a week after, has been held to be good. The lessor of the plaintiff, being a prebendary of Old Sarum, brought an ejectment to avoid a lease made by his predecessor, as not being conformable to the above proviso in the stat 32 H. 8. His objection was, that the surrender made of the former lease was with a condition, that if the then prebendary did not within a week after grant a new lease for three lives, the surrender should be void; whereby, as it was contended for the plaintiff, the old term was not absolutely gone, but the lessee reserved a power of setting it up again. But the court, after two arguments, gave judgment for the defendant; this being within the intent of the statute, which was, that there should not be two long leases standing out against the successor. Here, the new lease was made within the week, and from thence it be letten, and whereout a rent by law may be reserved, and not (e) of things that lie in granty as advowsons, (e) 5 Co. 3. Jewel's fairs, markets, franchises, and the like, whereout a rent case. cannot be reserved (30). 17 Ε. 3.75. 9 Ass. 24. 14 Е. 3. Scare facias 22. 1 H.6.2.3 H. 6. 21. (1 Sid. 316, 317. Cro. Eliz. 708.) (422)* *Seventhly, it must be of lands or tenements which 416. have most commonly been letten to farm, or occupied by the farmers thereof by the space of twenty years next before the lease made, so as if it be letten for eleven years at one or several times within those twenty years, it is sufficient (R). A grant (f) by copy of court roll, (f) 6 Co.37. Dean and in fee, for life or years, is a sufficient letting to farm chapter of Worces within this statute, for he is but tenant at will according to the custom, and so it is of a lease at will by the com (30) "But if tithes have been usually let to farm, they cannot be leased for life to bind the successor; but they may be leased for 21 years, rendering the ancient rent, and it shall bind the successor. Mo. 778. T 2 Jac. B. R. Adjudged in Denny's case, and the rent goes with the reversion. Nota, it was the case of the precentor of Paul's." Hal. MSS. See New Abr. Leases, E. rule 5, where many authorities are cited to prove this difference between leasing tithes for life and for years, and that in the latter case the lease will bind the successor be- ter's case. became an absolute surrender both in deed and law. And the whole was out of the lessee without further act to be done by him. In the provise in the statute there was the word ended as well as surrendered; and could any one say the first lease was not at an end? This was no more than a reasonable caution in the first lessee, to keep some hold of his old estate, till a new title was made to him. Wilson d Eyres v. Carter, 2 Stra. 1201. A surrender in law by the taking of a new lease, either to begin presently, or on a day to come, seems a good surrender within these statutes; for by taking such new lease, though it be to commence at a future day, the first lease is presently surrendered and gone, and shall not continue good tin' the day on which the second lease is to commence: but by acceptance of suen second lease, the first is iminediately determined, because both leases cannot exist together, and the first cannot be dissolved or surrendered in part, and therefore must be surrendered for the whole. Thompson v. Trafford, Poph. 9. Plowd. 106. Comp. Incumb. 345, 346.-[Ed.] (R) Upon the construction of this clause (which, in order to prevent the falling off of hospitatity, prohibited the persons enabled by the statute to dem se, from making leases of their mansion houses and demesnes, so as to bind their heirs or successors), various opinio is have been entertairied. The better of them seems to be, that it consists of two parts in the disjunctive, and if eituer of them be observed, it is suficient to sup 5 Co. 6. Seignior Mountjoye's case. (Cro. Jam. 76.) 5 Co. 5. Seignior Mountjoye's case. 6 Co. 37. 6 Co. 37, 38, Dean and Chapter of Worcester's case. (423)* mon law; but those lettings to farm must be made by some seised of an estate of inheritance, and not by a guardian in chivalry, tenant by the curtesy, tenant in dower, or the like (31). Eighthly, that upon every such lease, there be reserved yearly during the same lease, due and payable to the lessors, their heirs and successors, &c. so much yearly farm or rent, or more, as hath been most accustomably yielded or paid forthe lands, &c. within twenty years next before such lease made (32). Hereby first it appeareth (as hath been said) that nothing can be demised by authority of this act, but that whereout a rent may be lawfully reserved. Secondly, that where not only a yearly rent was formerly reserved, but things not annual, as heriots, or any fine or other profit at or upon the death of the farmer, yet if the yearly rent be reserved upon a lease made by force of this statute, it sufficeth by the express words of the act. Thirdly, if he reserve more than the accustomable rent, it is good also by the express letter of the act; but if twenty acres of land have been accustomably *letten, and a lease is made of those twenty, and of one acre which was not accustomably letten, reserving the accustomable yearly rent, and so much more as exceeds the value of the other acre, this lease is not warranted by the act, for that the accustomable rent is not reserved, seeing part was not accustomably letten, and the rent issueth out of the whole. Fourthly, if tenant (31) "Lease by the king during vacancy of bishoprick will not enable. P. 19 Jac. B. R. Denny's Vid. Dy. 271." Hal. MSS. -Hargr. n. 4. 44 b. (260).] case, [See 4 Bac. Abr. 74, 75. tit. Leases, (E).]-[Ed.] (32) "6 Rep. 37. T. 3 Jac. Crook, n. 6." Hal. MSS. See Cro. Jam. 76.-[Hargr. n. 5. 44 b.] port the lease. The first is, "which have not most commonly been letten," which is general. The other is, " or occupied by the farmers thereof by the space of twenty years, &c.:" and the most natural and genuine meaning of the words is, that the lands to be leased must either be such as have been most commonly letten, that is, such as are not reputed part of the demesnes, or such as have been occupied by the farmers thereof by the space of twenty years. 4 Bac. Abr. 75, 76. tit. Lease (E). 4 Cru. Dig. 126.-[Ed.] in tail let part of the land accustomably letten, and re-5 Co. 5. Seignior Mountjoye's case. serve a rent pro rata, or more, this is good, for that it is 6 Co. 37. in substance the accustomable rent (s). Fifthly, if two Lord Mountjoye's coparceners be tenants in tail of twenty acres, every acre case, ubi supra. of equal value, and accustomably letten, and they make partition, so as each have ten acres, they may make leases of their several parts each of them, reserving the half of the accustomable rent. Sixthly, if the accus- (Cro. Cha. 6. 17,) tomable rent had been payable at four days or feasts of the year, yet if it be reserved yearly, payable at one feast, it is sufficient, for the words of the statute be, reserved yearly (т). (S) The books are not agreed whether a tenant in tail, bishop, &c. may make a lease of part of lands which have been usually let for a certain rent, reserving a rent pro ratâ. For it is said, that if bishops, &c. have the power of dividing their farms, and leasing them out in smaller pareels, the whole estate is no longer answerable for the whole rent. The security is lessened by such a division, and there may possibly be an entire deficiency of remedy for portions of the rent. And therefore, where a division was deemed necessary, it has, in some instances, been thought advisable, on account of this possible injury to the successor, to apply for the aid of the legislature. See the private act of parliament, 35 Ged. 3. c. 109. empowering the bishop of Ely to grant out estates helonging to his see, in several smaller parcels. But the better opinion appears to be, agreeably to what is here said by Lord Coke, that such leases are good, because the ancient rent is in fact reserved, and otherwise perhaps they would not lease at all, if they had not a power of dividing the great farms. 4 Bac. Abr. 86. tit. Leases (E). And now the doubt to the contrary has, so far as it relates to ecclesiastical leases, been removed by a late act of parliament, st. 39 & 40 Geo. 3. c. 41. This act, however, does not remove the doubt as to leases by tenants in tail, or husband seised jure uxoris; nor does it validate leases by ecclesiastical persons of two or more farms together, which have been usually let separately. Sugd. Pow. 611.--[Ed.] (T) Where variety of rents have been reserved, as formerly 10/.; then 20l.; then 30l.; and, lastly, 401, per annum; or è contra formerly 401.; then 30l.; then 20/.; and, lastly, 10l. per annum; the 10l. in the one case, and the 40l. per annum in the other case, are the rents to be reserved on any new lease to be made by virtue of the statutes mentioned in the text. But herein there is a difference between leases made under these statutes and leases by virtue of powers in private conveyances and settlements, reserving the old and accustomed yearly rent, or the most ancient and accustomable yearly rent; for in such last mentioned leases the rent reserved on any lease then in being, or upon the lease made last before such settlement er conveyance, seems to be the measure of the reservation upon any lease to be afterwards made by virtue thereof; for the intent of such power, as well in such settlements as upon the several acts before-mentioned, was only that they, who were to make leases by virtue thereof, should not put the estate in any worse condition than it was at the time of such settlement, or of those acts made, but keep it in the same plight and condition as it then respectively was; and the rent reserved last before the making of such settlement, or of those acts, may well be called old or ancient, in respect of the new rent to be reserved on such subsequent *Ninthly, nor to any lease to be made without im Worcester's case, ubi peachment of waste. (424) Dean and hapter of supra. Dean and Chapter of supra. Therefore if a lease be made for life, the remainder for life, &c. this is not warranted by the statute, because it is dispunishable of waste. But if Worcester's case, ubi a lease be made to one during three lives, this is good. for the occupant, if any happen, shall be punished for waste (33). The words of the statute be "seised in the right of his church," yet a bishop that is seised jure episcopatûs a dean of his sole possessions in jure decanatus, an arch deacon in jure archidiacanatûs, a prebendary, and the like, are within the statute, for every of them generally is seised in jure ecclesiæ (34) (u). (33) "Prebend makes lease for years, reserving the running of a colt, rendering rent. A new lease, rendering the same rent, without reserving the running of a colt, adjudged good; because quoad this it is neither reservation nor exception. But if lease be of a manor except the woods, rendering rent, and after the expiration of it there is a new lease rendering the same rent without such exception, the second lease is bad. T. 18 Jac. B. R. case of Precentor of Paul's. Hal. MSS.[Hargr. n. 6. 44 b. (261).] (34) "Vid. for leases by bishop, tenant in tail, &c. -A. seised in tail of a manor, of which three acres parcel of the demesnes had been usually demised at 5s, rent, and the residue not, demises the three acres and also the manor habendum for 21 years, rendering for the three acres, and all other the premises therewith demised 5s. and for the manor 51. This is good to bind the issue for the three acres, but not for the residue. H.37 Eliz. Tanfield and Rogers.- The bishop of G. seised of a manor, of which one tenement was usually demised for life at 5s. rent, and the manor usually at 10s. rent, makes lease of the tenement for three lives, rendering 5s. and afterwards leases the whole manor for three lives to another, rendering rent, and dres.Ruled, 1. That the reversion of the lease. Per Hale, C. J. Morice v. Antrobus, Hardr. 325, 326. And, notwithstanding the doubt expressed by Lord Cowper, in the case of Lord Mohun and Orby. (2 Vern, 531-542.) the above rule is considered the most certain and proper. Pow. on Powers, 549. Roe v. Rawlins, 7 East. 279. However, the practice of reserving the ancient or usual rent, on leases by virtue of these powers, is now exploded and the power of leasing commonly introduced into settlements of estates in England, requires the best rent to be reserved, and expressly prohibits the taking of fine. Whether the best rent is reserved, is a point to be decided by a jury. Sugd. Pow. 603-607 See further as to the reservation of rent under powers of leasing, in the note at the end of this chapter. - [Ed.] (U) The 32 H. 8. c. 23. extends only to sole corporations, as bishops, deans, &c, but corporations aggregate, as deans and chapters, &c. though seised in right of their churches, are not within this statute; for they by the consent of the major part of them, might have made any leases or grants of their estates without limitation before this statute, and so they might have done after, until by subsequent statutes they were restrained, this being merely enabling, and not at all restraining them; and though before this statute the sole corporations above mentioned could not, without the entr tion of others, have made leases |