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). Fifthly, it must not exceed three lives, or one and twenty (Cro. Cha. 95. Cro. Ja. 112. 173.) 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 be letten, and whereout a rent by law may be reserved, and not (e) of things that lie in grant, as advowsons, fairs, markets, franchises, and the like, whereout a rent cannot be reserved (30). (29) "M. 29. 30 Eliz. Clench, 138. Grindul'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.] (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 inany au thorities are cited to prove this dif- render 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 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 proviso 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 till the day on which the second lease is to commence; but by acceptance of such second lease, the first is immediately 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. Thomp son v. Trafford, Poph, 9. Plowd. 106. Comp. Incumb. 345, 346.—[Ed.] (f) 6 Co. 37. Dean and Chapter of Worcester's case. 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 cester's case. Seventhly, it must be of lands or tenements which 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, in fee, for life or years, is a sufficient letting to farm 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 common 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 for the 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 and Chapter of Wor- the accustomable rent, it is good also by the express letter of the act; but if twenty acres of land have been accustomably (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.] (R) Upon the construction of this clause (which, in order to prevent the falling off of hospitality, prohibited the persons enabled by the statute to demise, from making leases of their mansion houses and demesnes, so as to bind their heirs or successors), various opinions have been entertained. The better of them seems to be, that it consists of two parts in the disjunctive, and if either of them be observed, it is sufficient to support 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. 125, 126.—[Ed.] letten, and a lease is made of those twenty, and of one acre which was not accustomably letten, reserving the accustomable 5 Co. 5. Seignior Mountjoye's case. yearly rent, and so much more as exceeds the value of the other 6 Co. 37. 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 in tail let part of the land accustomably letten, and reserve a rent pro ratâ, or more, this is good, for that it is in substance the accustomable rent (s). Fifthly, if two coparceners be Lord Mountjoye's tenants in tail of twenty acres, every acre of equal value, and case, ubi supra. 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, (Cro. Cha. 16, 17.) if the accustomable 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 (T). (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 parcels, 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 Geo. 3. c. 109. empowering the bishop of Ely to grant out estates belonging 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. 36. 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 husbands 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.] (S) Where variety of rents have been reserved, as formerly 10l.; then 201.; then 301.; and, lastly, 401. per annum; or è contra formerly 401.; then 301.; then 201.; and, lastly, 10l. per annum; the 107, in the one case, aud the 401. 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 or 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 Dean and Chaper of Worcester's case, ubi supra. Dean and Chapter of Worcester's case, ubi supra. Ninthly, nor to any lease to be made without impeachment of waste. 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 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 "scised in the right of his church," yet a bishop that is seised jure episcopatús, a dean of his sole possessions in jure decanatus, an archdeacon in jure archidiacanatús, 2 prebendary, and the like, are within the statute, for every of them generally is seised in jure ecclesiæ (34) (v). (53) "Prebend makes lease for (31) Vid. for leases by bishop, dering 5s. and afterwards leases the whole manor for three lives to another, rendering rent, and dies.Ruied, 1. That the reversion of the tenement passes by the lease of the manor. 2. And therefore that the lease of the manor quoad the tenement shall not bind the successor, because then there would be six lives in being for the tenement, and the lessee would be dispunishable of waste. 3. It seems, that the lease of the manor is also voidable, because the rent issues also out of the tenement. (Quare of this, for here the rent as well for the tenement as for the manor is reserved on the second lease, so that though the tenement should be evicted the intire rent for the manor would continue.) 4. But it was agreed, that the lease of a copyhold manor unually demised, or of a manor consisting of demesnes, copyholds, and services usually demised, is good to bind the successor. 5. The lease is only voidable by the successor; and therefore if he accepts the rent, it is good against him. M. 20 Jac. C. B. Bishop of Gloucester against Wood, M. 5 Car. C. B. Sheir and Penter, on lease by the bishop of Exeter." Hal. MSS.-[Hargr, n. 7. 44 b. (262).} of the new rent to be reserved on such subsequent 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, 349. 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 reut to be reserved, and expressly prohibits the taking of a 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. 28. 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, within this statute. s E. 6. 1 Mar. tit. Leases. Bro. 62. (Finch. 191.) But a parson and vicar are excepted out of the statute of Parson and vicar not 32 H. 8. and therefore, if either of them make a lease for three lives, &c. of lands accustomably letten, reserving the accustomed rent, it must be also confirmed by the patron and ordinary, because it is excepted out of 32 H. 8.(35) and not restrained by the statutes of primo or 13 Eliz. (w). (35) "Prebend simple or prebend with office, as is precentor, is enabled by the statute 32 H. 8. Adjudged Bro. Leases 62. M. 36, 37 Eliz. Watson and Major, T. by the consent of the major part of them, might have made any leases |