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those in the remainder were mere strangers to the condition; and a condition united to the use of the term it could not be; for, if it were so, he in remainder being a stranger, could not in law take advantage of it: but if it were rent, he immediately in remainder might distrain for the rent, when it incurred due, by reason of the statute 27 H. 8. c. 10. of uses, by which it was enacted, "that the intent of the parties should be observed." Therefore, if the use were so limited that a stranger should have the rent, &c. he should have it, and might distrain for it (a).

When the power declares that the lease shall be under the hand and seal of the party, and executed in the presence of and attested by witnesses, the attestation must state that the lease was signed as well as sealed and delivered in the witness's presence, or it will be void. And the omission cannot be supplied by parol testimony or by a subsequent attestation in the proper form after the death of the lessor (i).

In the usual power of leasing, besides the reservation of the best rent, it is commonly required that the lessee covenant for payment of the rent, that a clause of re-entry in default of payment be inserted, that the lessee be not made dispunishable for waste, and that he execute a counterpart; and if these conditions are required, and any of them be not complied with, the lease will be void. It should seem indeed that the circumstances, usually made requisite in powers of leasing, must be considered as implied, although not expressly required (c).

Under a power to lease reserving a condition of re-entry for nonpayment of rent for twenty-one days, a lease granted with a condition for re-entry for non-payment of rent within twenty days, in case no sufficient distress could be taken on the premises, whereby to levy the rent, &c. is not a good execution of the leasing power; because such conditional power of re-entry is less beneficial to the remainder-man than an absolute power of re-entry on non-payment of rent (d).

If contrary to the clause that the lessee be not made dispunishable for waste, he be empowered to work unopened mines (*), to fell timber, or the like, the lease is void; unless in the case of a building lease, where the clause would be deemed repugnant to the power, and the lessee might pull down old buildings, &c. in order to erect new ones(/).

Where a power to lease was restrained to be executed, reserving ancient, usual, and accustomed rents, heriots, boons, and services, a covenant" to keep in repair," was held to be "an ancient boon," and the omission of it was deemed fatal (0).

(.;) Stat. 27 H..8. a 10.

\t) Wright v. Wakeford. 4 Taunt 113. Doe d. Hotchkiss v. Pierce. 6 Taunt. 40a. 2 Marsh. 102. S. C. Doe d. Mansfield v. Peach, 3 M. k S. 576. Wright v. Bmiow.

3 M. & S. jiz.

(c) Sugden on Powers. 527-530.

(</) Core v. Day. 13 East. j.18.

(0 Campbell v. Leach. Ambl. 740.

(f) Jonesd.Cowperv.Verney.WlUes. 169. (a) Cardigan v. Montague, cited in Taylor (r) Kirkham v. Chadwick. 13 Ves. 547.

Under a power to a tenant for life to lease for years, reserving the usual covenants, &c. a lease made by him, containing a proviso, that in case the premises were blown down or burned, the lessor should rebuild, otherwise the rent should cease, is void; the jury finding that such covenant is unusual (i).

What covenants are usual or not is a question of fact, it seems, for the decision of a jury: for 1 hi Her J. in the preceding case, observed, "that the Court were relieved from determining whether the covenant was usual or not -," because the jury had expressly found that it was unusual (c).

But if the covenants in a lease under such a power be, upon the whole, such as leave the parties upon the same footing as under former leases, (as where it appeared that what was thrown on the landlord was compensated by what was paid by the tenant,) their differing in trivial circumstances will not be material (d).

A renewable lease was held not to be inconsistent with a covenant to let and manage to the best advantage, with reference to the subject which was a trust for creditors (e ).

It is no objection to a lease under a power "that it is in trust for him who executes the power," provided the legal tenant be bound during the term in all requisite covenants and conditions (f).

Livery is not necessary to a lease for lives, under a power, (though it be incident thereto at common law,) and it hath been held to be a forfeiture of the power; but Lord Hale conceived it was not a forfeiture, because a lease by virtue of a power, takes effect out of the settlement that gives the power, and by sealing the lease the power is executed; and then the livery comes too late to affect it.

If a power be to A. or his assigns, to make leases, &c. the power runs with the estate to the assignee in deed, or in law.— If, therefore, a power be given to a lessee for years and his assigns, to make leases for lives, such power goes to his executor, though only an assignee in law, or to the assignee of the executor. But a power to an executor to make leases does not extend to the executor of his executor (g).

A power under an act of parliament to lessee, his executors, administrators, or assigns, to grant building leases, does not extend to tenant in a renewed lease, according to the usual course of church leases (A).

d. Atkyns ». Horde. 1 Burr. 122. (f) Taylor d. Atkyns v. Horde. 1 Burr.

(i) Davis v. Maninghi. 1 T. R. 705. 60-124.

(<) Powell on Powers. 579. (g) How v. Whitfield. 1 Vent. Mo. S. C.

W Goodtitle d. Clargcs v. Funucan. T. Jones, no.
Doug. 565. (s) Collett v. Cowper. 13 Vcz. MS.

If A. settles land to the use of himself for life, with power to make leases, and afterwards to D. upon such trust as he shall afterwards declare; if A. declares the trust for payment of debts, and afterwards leases at a small rent, the lease is not defeated by the execution of his power, for it is precedent to it (a).

So, if a man having a power annexed to his estate, charge his estate, and afterwards executes his power, the estate which arises by the execution of the power shall be subject to the charge during the estate: as if tenant for life, with power to make leases, grants a rent-charge, and afterwards makes a lease, the lessee shall take, subject to the rentcharge during the life of the lessor (b).

A lease under a power by a person having only a particular estate, if not conformable to the power, is not good at law; but when the persons granting the lease, have at law the inheritance, with directions only how they are to execute leases, the legal estate passes (c).

If there be a power of revocation, and a lease for years is made, such power is suspended quoad the term, but after it is good (d).

Section VIII. Of Leases by Tenant for Years.

As a lessee or tenant for years may assign or grant over his whole interest, so he may grant it for any fewer or lesser number of years than he himself holds it; and such derivative lessee is compellable to pay rent, perform covenants, &c. according to the terms agreed in such grant or assignment. Also it is said [in Broke title Distress 7,] that a termor so assigning may distrain for the rent, without any power reserved for that purpose; though a person who assigns his whole interest cannot, because he has no reversion (e).

But such derivative lessee is not liable (to the original lessor) for the rent reserved on the original lease, otherwise than as his cattle, (&c.) may be liable to a distress for rent arrear to the original lessor, as any stranger's levant and couchant may be; for there is no privity between him and the original lessor, as there is between a lessor and an assignee: and therefore such an one, though he take the whole term except one day, shall not be liable to any of the covenants in the original lease {ej.

Section IX. Of Leases by Tenant from Year to Year; or for a less Term.

Any one, possessed of a certain quantity of interest, may alienate the whole, or any part of it, unless restricted from so doing, by agree

(«) Talbot v. Tipper. Skin. 417. (i) Edwards r. Sbter. Hard. 410-15. (e) The Attorney-General r. Griffith, 13 Vea. 565-580.

(d) Lord Morduant v. Earl of Peterborough. I Mod. 114.

(e) Bac. Abr. tit. Leases,

ment with the party from whom he derives that interest or estate, or by the terms upon which he takes it.

In fact the tenant has it as a right incident to his tenancy to make a sub-tenancy, in order to do which, it is by no means necessary to have the first landlord's assent: the law gives him authority to assign his interest (a).

A tenant from year to year, therefore, may assign his term, or may under-let part of it, as for three-quarters of the year, or so many months, &c. So, upon the same principle, one possessed of lands or tenements, for a less term, as for half a year, a quarter, or a month, or the like, may grant his interest, however small the quantity, or any portion of it, to another: for, while such interest endures, he has the absolute disposition of it, unless some agreement subsists between him and his lessor, that, by circumscribing his power, qualifies that disposition.

A tenant at will, however, cannot lease, for there can be no such thing as an under-tenant to a tenant at will; the demise itself would amount to a determination of the will. Neither can he surrender, any more than he can grant; for, to surrender also, would be to determine his will, and relinquish his estate (b).

As a tenant at will cannot grant or surrender, so d fortiori cannot a tenant at sufferance.

Section X. Of Leases by Corporations.

A corporation cannot make a disposition of their property, nor do any act relating to it, nor receive a grant, without deed. They cannot, without deed, make a lease for years, nor grant a licence to take away their trees; and if a disseisin be made to their use, they cannot agree but by writing under their common seal (c).

If a lease for years be made to a corporation aggregate of many, they cannot make an actual surrender thereof, but by deed under their seal; but if they accept a new lease thereof, this is a surrender in law of their first lease, and may therefore, by the Statute of Frauds, be without writing (d).

Neither can a corporation aggregate without deed authorize their servant or agent to enter into land on their behalf, for a condition broken; though this does not seem to have been always free from doubt (e). In one place it is said, that a man cannot justify as servant to a corporation, without shewing a deed of retainer, and it is contrasted with the case of a man avowing as bailiff to a corporation, which may be done without deed. In another place, where it is reported to have been said by Littleton, that it was the opinion of all the Judges in the Common Pleas and King's Bench, that an assignment of auditors by a commonalty is good without deed, it is added, "and so of a justification by their commandment." In a third place, it is said to be the better opinion, that he who pleads the freehold of dean and chapter, and that he entered by their commandment, ought to shew a command in writing; and the same of a servant of mayor and commonalty. In another place, a distinction is made between a corporation which has a head, as mayor and commonalty, and a corporation without a head: in the first case, it is said, that a man may justify entering into land by the commandment of the mayor, without writing ; in the latter, that a command to enter must be by writing.— RolU lays it down as clear law, that " a corporation aggregate cannot command their bailiff to enter into land of their own leasing for years, for a condition broken, without deed ; for such commandment without deed is void (a):" and this is consonant to the principle, that, where the interest or title of the corporation is concerned, their officer must be appointed by deed.

(a) Rex v. Aldborough. I East. 598. (i) 1 Inst. 57. a. Moss v. Gallimore. Doug. 179-2Sj. Sweeper v. Randall. Cro. Eliz. 156.

'(c) Kyd. on Corp. 963.

(i) Bac Abr. tit. Corporations. (E. 3.)

(«) Ibid.

It seems however to have been generally admitted, that a bailiff might be appointed to take a distress without deed. It is even said, that "it is not necessary that he should be made bailiff before he distrain; it is sufficient if the corporation agree to it afterwards, for that his being bailiff is not traversable, and a member of the corporation may distrain in right of the corporation, and justify as bailiff." Again, it is said, "a man may justify as bailiff to dean and chapter, and the like, without shewing the deed constituting him bailiff:" and in more modern times, it has been laid down as a rule, that *' a corporation aggregate may appoint a bailiff to distrain without deed or warrant, because the distress neither vests an interest in them, nor devests one out of them (b).

Where any personal act is necessary in the case of a corporation, that act must be done by attorney appointed by deed under their common seal (c).

Thus, if they accept rent from the assignee of a lease made by them, that must be by warrant of attorney, in order to discharge the original lessee; unless the corporation have a particular officer, whose business it is to manage the revenues; as is the case of the city of London. So, wherever delivery of a deed is thought necessary, that must be by attorney, who must have a letter of attorney for the purpose M.

A dean and chapter made a lease for three lives, and a letter of attorney to deliver it on the land. Twisden J. thought the letter was void, the lease being a perfect lease by sealing, and the delivery afterwards insignificant; but Hale G. J. observed, that since he had sate

(a) Rol. 514. I (0 Ibid. »68.

(*) Kyd. on Corp. »6o, I (fl Jbii- *69'

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