exceed the number of ninety-nine years from the time of making the demise; and that the sense of the power was the same as if it had been to make leases for ninety-nine years from the time of the making of the lease, or for any other term which did not exceed that number of years. But Bridgman (e) seemed to think that there was no ground for the difference. He said that the lease in reversion in Whitlock's case (ƒ), though the power was of the same description, could not have been granted, had not the words " as well in possession as in reversion" been inserted.

The recent case of Shaw v. Summers (g) seems also opposed to Harcourt v. Pole. A power was given to trustees to let the premises in such parts and parcels, manner and form, and for such time and term not exceeding twenty-one years, as they should think proper; and it was held, that such a power authorised only a lease in possession, and not in futuro; and that, as the trustees had let the premises for ten years, and afterwards, and before the expiration of that term, relet them for eleven years to begin at a future day, the second lease was void, and a bad execution of the power, although the two terms together did not exceed twenty-one years.

But a distinction is said to exist where the premises were in lease at the creation of the power, and continue subject to the same lease at the time of exercising the power; and it is also said that a lease in reversion may be granted, though, as we shall see, the cases on which the assertion rests are too contradictory and unsatisfactory to justify a positive opinion. The inaccuracy of some of the early reports was never more evident than in the cases connected with this subject.

In the Marquis of Northampton's case (h), which is usually adduced as an authority in support of the distinction, it is observable that the reporters are not agreed upon the facts; in addition to which, its value as an authority is diminished

(e) O. Bridgm. by Bann. 96. (f) 8 Co. 69, b.

(g) Shaw v. Summers, 3 J. B. Mo. 196.

(h) Marquis of Northampton's case,

3 Dy. 357. a.; S. C. 3 Leon. 71; 4 Leon. 17. In these two volumes of Leonard this case is reported with scarcely a verbal alteration. 2 Rol. Ab. 261. pl. 8.

by the circumstance of the judges not being unanimous. The case as reported by Dyer, is in these terms:-The husband and the wife, by their deed indented, dated in December, in the thirty-second year of Hen. 8, made a lease of certain parcels of the inheritance of the wife for the term of twentyone years, rendering to them and to the heirs of the wife the accustomed rent. And afterwards, in 35 H. 8., it was enacted by parliament, that the husband should have and enjoy the lands in lease and the rent to himself only for the term of his life, remainder to his wife, and that all leases and grants thereof made and to be made by the husband, by indenture, for the term of twenty-one years, or less, reserving the accustomed rent to him for the term of his life, and after his decease to his wife and to her heirs, should be good and effectual during such term or terms. The husband after eight years of the said lease expired, (reciting the former lease,) demised and granted the said land for twenty-one years next after the end of the first twenty-one years, reserving the said usual rent by indenture according thereto. Whether this lease be good or not after the death of the wife and husband, quære. The argument depends upon the meaning of the makers of the act, whether he can make any lease or leases in reversion or not; for no restraint of the lease in reversion is in the act, as is written in the act 32 Hen. 8. c. 28. Therefore it seemed to Manwood and Dyer that the lease above is good and warranted by the act. But Mounson e contra (i).

Leonard, on the other hand, who reports the case in his 3rd and 4th volumes, with little or no change of language, notices the act conferring the power, and states that the marquis leased for twenty-one years, and afterwards leased the same land to another for twenty-one years, to begin after the determination of the first; and Dyer is reported (k) to have said, "the words are general, omnes dimissiones, and, therefore, not to be restrained unto special leases, scil., to leases in possession"; and, according to the 4th volume of

(i) The marginal note, ascribed to C. J. Treby, adds, "And that seems

the better opinion."
(k) 3 Leon. 72.

Leonard, the case was adjourned; but he makes no mention of Manwood's acquiescence in Dyer's observation.

It is certainly remarkable that no particular allusion was made to the existence of the prior lease as a ground for the decision; but, according to Leonard's report, Dyer founded his opinion on the words of the power being general, omnes dimissiones, and, therefore, not restrained to special leases, scil., to leases in possession.

Very little or no light is thrown upon the subject by the case of Parrot v. Keble (7), where it appears that the court considered a lease for years to begin after an estate for life in possession, a good execution of the power; but this may be accounted for (if we may rely on Godbolt's report) by the circumstance of the power expressly authorising a lease in possession or reversion.

No judgment was pronounced in the case of Opy v. Thomasius (m); but the opinion of the court was clearly in favor of the distinction. Certain lands which were then in lease for the residue of a term of ninety-nine years were settled on successive tenants for life, with power of leasing in possession for a term mentioned; and the first tenant for life granted a lease to commence at the expiration of the existing term. Keeling, Justice, inclined to think that the lease was within the power, the settlement being solely of a reversion; but Windham and Twisden held, that although a power of leasing, in general terms, would authorise a lease of the reversion, or a lease in reversion, if the premises were in lease at the creation of the power, and continued subject to the same lease when the power was exercised, yet, as the power expressly mentioned leases in possession only, a lease in reversion could not be granted, though the premises were under a lease granted prior to the creation of the power.

These, as the reader will perceive, were cases of particular

(1) Parrot v. Keble, Godb. 195. Oable v. Perrot, Brownl. & Gold. 173, semb. S. C.

(m) Opy v. Thomasius, 1 Lev. 167; S. C., nom. Opey v. Thomasius, T. Raym.

132; S. C., nom. Opee v. Thomasius, 1 Sid. 260; S. C., nom. Opie v. Thomatius, 1 Keb. 778.910. See Comb. 377. See also O. Bridgm. by Bann. 613, Appendix.

powers affirmative. Another case (n), tending to the same conclusion, remains to be added, where the question arose on a general power restrained by a negative.

Thomas Lord Coventry, being seised of the reversion of certain premises expectant on the determination of a lease for ninety-nine years if Sir Thomas Haslewood and two other persons should so long live, settled them to the use of himself for life; remainder to Thomas, his eldest son, for life; with remainders over. And in the settlement there was a proviso, that it should be lawful for every person who should be actually seised of the freehold of the premises to make leases of any part thereof for any term not exceeding twenty-one years, or determinable on one, two, or three lives, so as there should not be in any part of the premises so leased at any one time any more or greater estate or estates than for twenty-one years, or for three lives, or for any number of years determinable on three lives. Thomas, the eldest son, and then Earl of Coventry, and tenant for life, demised the premises to S. and C. for ninety-nine years from the death of Sir T. Haslewood, the survivor of the three cestuis que vie, if the countess should so long live. The single question was, whether this lease was pursuant to the power: and, after many arguments, the court was of opinion that the lease made by Thomas Earl of Coventry was good pursuant to the power given him by the settlement.

All these cases are in favor of the distinction alluded to: But there are others as strongly opposed to it.

The case of the Countess of Sussex v. Wroth may be first referred to. It is observable, however, that scarcely two of the books in which it is reported or cited concur in their statement of the facts; and not only do they differ as to the existence of a lease anterior to the one respecting which the question arose; but the books which admit its existence do not concur in the circumstance of its being created previously to, or by virtue of, the power.

(n) Coventry v. Coventry, Com. 312.

According to the report of the case by Croke (0), the land was assured by the Earl of Sussex, by act of parliament, to his wife for her jointure, the reversion in fee to the earl, with power to the earl to lease for twenty-one years; and the earl made a lease for twenty-one years, and before the end of it, and in the month of March, made another lease to the same lessee for twenty-one years, to commence at the Michaelmas following; and it was adjudged a void lease, because for the time it was a lease in reversion. To the same effect is the citation of the case in Mountjoy's case, in Moore (p).

Leonard reports in his first volume (q), that the premises were settled by act of parliament upon the wife of the Earl of Sussex, during her widowhood, for her jointure; and that when the power was exercised they were in lease to the crown, by virtue of a demise made by the ancestor of the earl (the donee). The third volume of the same reporter (r) does not state whether the first lease, which is there admitted to have been existing at the time of the grant of the second, was made by virtue of the power, or not. The words are, "The manor of Burnham was assured to the Countess of Sussex for her jointure; with a proviso in the act, that it should be lawful for the Earl of Sussex to make a lease or leases for twentyone years (s), and afterwards, a year before the first lease was ended, he made another lease for twenty-one years, and this second lease was to begin and take effect from the end of the first lease. And it was adjudged that the lease was void.

From the reference to the case in Latch (t), and Palmer (u), it would seem that the first lease was made in exercise of the power. It there appears, that a private statute was made, by which land was assured to the Countess of Sussex for her jointure; but with power to the earl to make leases for twenty

(9) Countess of Sussex v. Wroth, Cro. Eliz. 5.

(p) Mo. 199.

(9) Nom. Lepur v. Wroth, 1 Leon. 35.

(r) 3 Leon. 130, nom. Wroth v. The Countess of Sussex case.

(s) In the 4th volume of Leonard, where this case is also reported, p. 65, it is here said, "The earl made a lease for twenty-one years, and afterwards," &c., as above.

(t) Latch, 243.
(u) Palm. 468-9.