chancery report sir Charles orby all contra lord Mohun Lord chief justice  trevor argument to the question arise upon a settlement by lease and release  of c earl of m in this case the Lord keeper desire the assistance of the two  justice and the Lord chief justice Trevor first begin and say the question in  this case do arise upon the settlement of Charles earl of Macclesfield who by  lease and release of the d and that Apr settle all his land in Cheshire on sir  Henry Hobart and r chancery report er p mason Esq and their heir to the intent  that a common recovery shall be suffer to the use of himself for life  remainder to Charles Lord Brandon his first son for life remainder to Fitton  his second son for life remainder to their respective issue male remainder for  ninetynine year to the trustee for raise pound to be dispose of as earl  Charles shall by write or will appoint and there be a power in the settlement  whereon the question arise whereby it be reserve to earl Charles Lord Charles  and Fitton several as they shall come into possession to make lease for three  life or twentyone year or a other number of year determinable on three life in  this manner first of all or any of the land ancient and accustomable demise  whereof fine have be chancery report usual take reserve the ancient usual and  accustomable rend horned owl more second of all the other land reserve the  most improve rend that can be get and that the tenant shall seal and execute  counterpart of their lease it happen that there be no recovery suffer but  there be a clause in the settlement provide that till a recovery have the  trustee against who it be to be shall stand seize of all the say estate in  such manner as the recoverer may be after such recovery have earl Charles  afterward devise by his will that the sum of pound shall be pay to the lady  Gerrard and pound to his son Fitton immediate after his death and direct the  same to be raise and pay pursuant to the say trust and soon after die and so  the estate come to Lord Charles Brandon who be also entitle to the remainder  in fee as be heir to his father to who and his heir such remainder be limit by  the settlement devise the say remainder to my Lord Mohun and die afterward  without issue and so the estate come to Fitton earl of Macclesfield for life  who make two lease thereof one lease of the estate not ancient and  accustomable let reserve thereon the chancery report best improve rend the  other bear date December wherein take notice of the power in the whole and as  to both part of the power and that pursuant thereunto and to execute the say  power he demise all the land in the say settlement to sir Charles Orby and Mr  Orby several and not joint reserve the several ancient and accustomable rend  and do not specify what those rend be I be to give my opinion herein and to  that end must take notice that there be two point insist upon by the counsel  for the plaintiff first as to the pound for my lady Gerrard make Lord Charles  her executor and he make the Lord Mohun his executor so the pound be not in  dispute and the question be touch interest and I think upon the power earl  Charles have of the pound it ought to carry interest for the land be charge  the term vest and the trustee may mortgage or sell to raise it and it be to be  pay at the time appoint and he have appoint immediate after his death the term  be in the nature of a mortgage and though not mortgage nor any sale make yet  it be not material for it be Payable at the time of his death and so must  carry interest from that time it be due and chancery report remain in their  hand as a mortgage for it will be only a transfer to put it into other hand  but I conceive a deduction of interest must be make for the time that Fitton  have the estate in his own hand for he must not have interest because he  receive the profit himself out of which it be to be pay dly touch the lease  and which be the main question whether they be well make in pursuance of the  power in the settlement and as to the first of the lease I shall not speak  much because it seem to be give up by the counsel for the plaintiff and that a  reservation at the most improve rend be so uncertain that they will not at the  bar contend for it for that reason as to the other lease in case a recovery  have be suffer and thereby a power have come to he accord to the settlement  whether the lease will be good at law that be the question before we and sit  Charles Orbys counsel lie down as a foundation that they go upon that although  it be a lease by one deed of all the land that be ancient and accustomable  demise and also of all the other land that be not that be to say a demise of  all the land within the power if that shall be construe as one lease and one  entire reservation it must be void as to the chancery report remainderman yet  the rend issue out of all must be apportion and so it will be in nature of  several lease in construction of law because reddendo one one the ancient  usual and accustom rend shall be construe to be reserve for the land ancient  and accustomable let and no rend be reserve for the land not ancient demise it  be void as to they now I be of opinion it be void as against the remainderman  for all the land and it be to be chancery report er p consider in what manner  the rend be reserve the word of the lease be reserve therefore the several  ancient respective and accustomable rend and the word therefore go to all the  land for the case cite out of cro Tanfield and Roger and winter case in dyer  which be the same in effect where the demise be of all the demesne land and  sale of the manor ac etian totum manor de Chanfield ac all land tenement eid  manner spectan habendum the say site and demesne and also the say manor and  premise reserve or yield for the say site and demesne one sum and for the  residue another sum do not come up to this case or this case do not come up to  it for reserve therefore be for the whole but say they it afterward come and  say what several and respective ancient and accustomable chancery report rend  be Payable that may do if it may be construe Payable out of part when reserve  out of the whole but in knight case in the that Rep it be resolve that what  come after the reservation shall not sever it and it be in that cage rule that  what be after the Viz be but a description of the value I mention this only  because I be doubtful whether it can make it several as this case be but I  deliver no opinion for that upon it because I go upon another reason and take  it to be a several reservation I be of opinion it be a void lease in the first  place I consider the reservation of the rend in general term without ascertain  any rend and it have be argue at the bar that it be a good reservation because  it be certain by reference or relation to a certainty that which is fixed be  id quod that which is fixed To give back test now I agree the argument will  hold to some purpose and such a lease may good when it be make by tenant in  feesimple because by make out the ancient rend he may recover the same and may  distrain and avow and aver for the ancient rend but as such a lease may be  good when it be make by tenant in feesimple so it may in like manner be good  and the reservation thereupon void if such tenant in fee chancery report can  set forth the ancient rend or if he can set it forth yet it will be void if he  can prove what the ancient rend be for he must make out that it be the ancient  rend now here this lease be not make by he who be master of the whole estate  and therefore will differ very much from what may be make by tenant in fee for  in case of tenant in fee the lease will be good and the reservation good or  void accord to the proof he can make of the ancient rend but in this case  before we there must be such a reservation as may or shall be and be effectual  to all intent and purpose and must not be by any mean uncertain and by this  lease the remainderman possible may or may not be able to ascertain and prove  what be the ancient rend and aver that such a sum as he avow for be the  ancient rend reserve so that he be under a necessity of do all these thing and  if he fail in any one of these he can recover his rend and it may not be in  his power so to do for it depend upon evidence which be uncertain and upon  matter of fact which be also uncertain and it may be the rend ancient reserve  be not the same rend at all time but sometime great and at other time lesser  rend reserve and this power be over chancery report land where fine have be  take and consequent the rend must be more or less accord to the greatness or  smallness of the fine and no doubt on the trial the tenant may show that  another rend than what the remainderman avow for be ancient reserve and so  nonsuit he upon the evidence as often as he shall think fit to contest it  whereby he may come to lose his rend and this be the first reason I go upon  that because of the generality of the uncertainty of such reservation of the  rend this lease can be good against the remainderman my Lord mohun counsel  cite for their first authority the case in cro car Owen and Aprees which be  very imperfect report there for which reason Mr attorneygeneral get a Copy of  the record I have see the record and the reason give in the book seem to be a  mistake for it be say to be a lease of three manor usual let at pound yearly  but whereon the bishop reserve the usual and accustom yearly rend and the rend  and service at the day and time usual accustom and because he do not show any  rend in certain the lease be hold void now that be not the only reason for my  Lord chief justice Vaughan in Thredneedle and chancery report Lynass case  which be in the keb mention another reason that be that whereas there be three  manor usual let the lease be but of two for there be a exception of one of  they by the record it self it shall seem to I they go on both these reason the  case in truth be upon a lease of two manor except the three under the ancient  and accustomable rend not specify any now the three chancery report er p manor  have be usual let at pound yearly therefore take both these reason together  the lease be certain void because there never be any ancient rend for two but  for three manor for if there have be pound for two that have undoubted be good  and because I conceive they do not go in that case upon any of these reason  single I think that case can be no authority nor be it of any weight with I  for my opinion herein the counsel on the other side cite the case of lewson  and piggot which be make on a power reserve by a settlement by Mr Venables of  Cheshire to make lease of land ancient demise reserve d for every Cheshire  acre and thereupon a lease be make by he of all the land ancient demise  reserve all the rend intend to be chancery report reserve the Cause come to be  try in the king bench where the tenant who be plaintiff recover  notwithstanding the reservation be in such general term and the Lord chief  justice holt and Lord chief justice Treby agree it be a good lease and give  their opinion accord but that do not come up to this case for the reservation  by the power intend may be ascertain at least twelve penny for every Cheshire  acre it be know what be a Cheshire acre and by admeasurement may be at all  time ascertain and depend not upon uncertain evidence there be another thing  in my opinion in this case which carry a great deal of weight with I and that  be though this be but one deed it must be construe as the plaintiff counsel  will have it to be several distinct lease under such distinct rend as former  all the ancient demise land be usual set at several under several and distinct  rend and it must be consider that this be a great estate non constat how many  manor be contain therein so that there the remainderman for I must have  recourse to my former argument must upon this avowry aver what land be  particular demise upon that lease or otherwise his avowry will not serve he  for if he shall avow for chancery report more or less either of these two  mistake will destroy it because it be a several lease so that it seem to be at  a mighty great uncertainty and to be a lease and reservation direct contrary  to what the power mean and intend and not in any wise make for the advantage  of the remainderman as the power by provide that a counterpart shall be seal  by the tenant seem to intend by that it must be infer that it be so provide to  the end that the remainderman shall know what certain rend be reserve and that  upon what certain land in each demise now this deed may amount to twenty  several lease and here be but one counterpart for all so that he can by any  manner of probability nay it maybe impossible for he to make out the several  rend and land for first he must have all the ancient lease which can be  presume for when the lease be expire the counterpart be usual give up and not  regard and so may be lose and therefore the remainderman will be put to  infinite uncertainty and inconvenience and it can be presume that by the  settlement it be intend that he shall be liable to any such obstacle but on  the contrary that he shall not meet with any of they and therefore it prudent  chancery report foresee the inconvenience and provide a remedy against it that  there shall be a certainty by counterpart of every several lease and in such  case he will be enable to come at his rend but here be no more than one  counterpart for twenty several lease and not one rend for any of they  ascertain so that he have as good have none and it can be of no account at all  to he one thing more I must take notice of that have be offer and that S say  the plaintiff counsel this lease have there be a particular rend reserve will  not avoid any of the inconvenience I mention nor serve the RemainderMans  purpose for though there be a ancient rend reserve in certain he must aver it  be the ancient rend but I think that the remainderman need only aver that it  be the ancient rend or more and that be enough for he to aver in that case but  I must only show that there be a vast difference where a particular rend in  certain be reserve and where not for in this case he must not only aver the  ancient rend but also prove it to be so and if the tenant shall prove another  ancient rend that will make the lease void but bar the plaintiff in avowry but  in case of a particular reservation he must true aver the same to be the  ancient chancery report rend yet when he show the particular rend under the  tenant own hand it be incumbent on the tenant to prove that it be not the  ancient rend and if he shall not so prove it will be presume for the plaintiff  and if he shall the consequence will be that he will thereby avoid the lease  which be absurd to think that any tenant will endeavour when it be make for  chancery report er p his benefit and if not the rend yet the land in that case  will be recover but in this case neither so that there be a great difference  between those two case in one he must not only aver that it be the ancient  rend but must also prove it so in the other he need only aver it to be the  ancient rend or more and show the counter part and the tenant if he will must  make the proof for it lie on he to the contrary which if he shall will avoid  his own lease and so it be every way better for the remainderman to have a  particular demise and a particular reservation upon the whole I think this  lease be not agreeable to the intention of the settlement and so can be good  at law holt chief justice the case have be true state and open at large by my  brother Trevor and I agree the point as to the interest of the pound to be pay  chancery report from the time of the death of the testator for the money be  then due it be then the charge commence and he that take the profit must pay  the interest and there ought to be a deduction for interest for all the time  that Fitton enjoy the land because he have the profit that shall have pay  himself the interest and therefore he must take it by way of retainer as to  the lease I be of opinion that it be a good lease for all the land ancient and  accustomable demise for the rest the counsel of the plaintiff do not contend  the case be upon a settlement make wherein there be a power for the tenant for  life to make lease of the land ancient let upon fine take reserve the ancient  and accustomable rend and a lease of these land be make in the very word of  the settlement and first I will consider whether a lease make by such a power  be good reserve or render rend in this manner and in order thereunto I will  second though it do not go direct to the matter in dispute but for the good of  posterity and which may give more light hereafter explain what be mean by  these word in a settlement or lease ancient and accustomable rend three I will  consider where land ancient demise several and where chancery report land not  ancient demise several be altogether compile in one deed whether that be not  as well as if they have be demise by several deed and first consider the power  it be thereby say yield the ancient and accustomable rend and it be not deny  but that the power be certain now will any one say that a reservation pursue  the very word be not as certain if not I be sure the power must be void and if  it be not uncertain in the power I be sure it must be so in the reservation  for the same word must have the sense in both and general word though they do  not refer to any certain particular be sufficient and so be the case of  Ameredith cite in the abbot of Strata marcellam case Rep b and be indeed the  very case to point king Henry be seize in fee of the manor of Stephenam and  hundred of cartridge in the county of Devon late parcel of the possession of  Margaret countess of S do into all grant the same to his queen Katherine for  life and by another patent grant to her for life in the say manor and hundred  catalla felon c fine c of royal office c annum they v craft c with many other  royal privilege and exemption to queen Katherine and afterward the same come  by decent to chancery report queen mary who in the first year of her reign  letter patent grant the same manor and hundred to the earl of Huntingdon by e  and his wife and thereby within the say manor shall have tot ankle of such  size eaden hujusmodi freedom privileg franchesias jurisdiction c quot qualia  tantus c quce prced Comitigsa Sarum or some well in some way prcemissa or  aliquan ind parcellam ante to have to have and hold or seisiti ind to step out  unquan to have to hold or to rejoice to be r infra promise c ration well  prcetextu alicuj Chartce gift seu permission seu aliquar a letter to stand  open c in tail remainder over in fee and the question be if the patentee shall  have all the franchise c which be grant as aforesaid to queen Katherine and  there be the same objection that the reference be general and too uncertain  but the whole court of exchequer resolve it be certain by reference to the  charter of queen Katherine though it do not refer to the charter but by  general word prout some seu some c and that such general reference be as much  in law as if the charter have be all recite therein now if such a grant be  good in the queen case much more shall it be in the case between subject and  subject and it will be a great deal hard chancery report to construe it void  in this than the other dly it be a good lease for this reason that by this  reservation the rend be certain as the can be and it be not the reserve a Slim  certain that make the same chancery report er p certain for even upon a  certain sum or particular rend reserve it must be aver to be ancient and  accustomable rend or more it be not what be reserve only as to the sum that be  requisite but that it be the ancient rend or more so that the bare reservation  of a sum only do not make it good in Whitlocks case in the Rep b there be the  plead and though he may take his remedy by debt or avowry yet it be plain in  avowry the tenant must aver what be the ancient rend unless the defendant will  take upon he to aver the same so that there will be no such hazard as be  presume and therefore I be of opinion a reservation by such general word be  good my Lord chief justice Trevor agree with I that if it have be make by  tenant in feesimple such a lease with such a reservation may be good if in one  case I do it see why it shall not in the other but take it that he must aver  that sum that he declare for to be the ancient rend sir John Molyns case in  the Rep c be a casein point for chancery report there tenendum dean c per  slavery ind debt is owed de jure consuet must be make by averment as in this  case there be a objection make that it will be troublesome and inconvenient to  he in remainder I do it see how and if it be he ought to take the estate as it  be intend he but it be say he will or may be at a great loss to find out and  prove what be the ancient rend I will know who can do it better than he to who  all the counterpart rentroll and evidence of the whole estate must come  together with the land all the write be of course in his hand so that the  trouble if any there be can signify any thing no body can know so well as  himself and if he will distrain he must aver and may easy give evidence what  be the ancient and accustomable rend I take the reason of Owen and Apreess  case in I cro to be clear with I it be not Intelligible report by Mr justice  croak but that be not his fault for it be mistake in the transcribe only  because he write a very ill hand Mr attorney have get a copy of the record and  the Case be this there be four manor usual let at pound yearly and the bishop  lease three of they render the ancient rend now that be nothing and so not  good for chancery report no such ancient rend have be reserve for the three  manor as pound and it can not be help by apportionment but it have be good by  reserve it in this manner that be to say render the ancient and accustomable  rend usual reserve for the say three manor and also for the four and that be  this very case before we it be argue that such a lease can be make so as to  take effect by any but the tenant in fee now pray see the difference this be  the same in effect be make by a power derive from he that have the fee and the  lessee be in mediate though not immediate which will make no difference here  from he that have the fee and that it be the express resolution of Whitlocks  case in the Rep a for the power be reserve to the tenant for life and none  other who in case the settlement have not be make will have be the tenant in  fee and the power reserve to he savour strong of that he will have have with  it the fee it be as if Charles earl of Macclesfield have make it before the  settlement or if he have make it after the settlement when he be in the same  plight in all respect as Fitton be when he make it that will have be the same  thing for be make only tenant for life who be chancery report invest with the  fee it be the very same thing to all intent in this case and as good as if it  have be make by he that be immediate tenant in feesimple in possession now  there remain only to show how this ancient rend must be ascertain and what be  mean by those word ancient and accustomable rend in this settlement and I take  it that be the rend and shall be at all time so understand that be reserve at  the creation of the power where a lease be then in be or that be last before  that time reserve where no lease be then in be for he that create power intend  no more than that the lessor and lessee shall not be able to put the estate in  a worse condition but keep it in the same plight and condition at least as it  be in when so settle now suppose ancient there have be variety of rend reserve  as for instance S before for many year ancient reserve and S some few year  before the settlement and at the time thereof the land be not in lease in that  case the S and not the S though a much ancient rend shall be the ancient rend  for the length of time in that case be material and for this I depend upon a  case of undoubted authority and chancery report which can never be shake and  that be the case of morris and Antrobus in the exchequer it be in Hardres and  be report at large by my brother Cheshire at the bar and be the case of morris  and atwood the chancery report er p petty canon of saint Paul make a lease the  car for twentyone year of the rectory of saint Gregory to the plaintiff and  his wife render pound per annum and a couple of capon the ancient rend have be  first pound then pound then pound and last of all pound and the capon and  there my Lord chief justice hale to who authority I lean hold the lease to be  void though it be a great yearly rend than any of the ancient rend except the  last and consequent as he also declare in that case the usual and accustom  rend be that reserve upon the last tease and so must the statute of Elizabeth  be expound on the word accustom so that the ancient rend in this case be not  to be take in respect of time pass but of the time to come I doubt whether I  express myself so well to be understand but I will say the lease that be then  or last before in be at the time of such settlement the rend thereon reserve  be the ancient rend in respect of any lease to be make pursuant thereunto as  if a lease be make four year ago at pound chancery report and another be make  now reserve the ancient and accustom rend that lease at pound in respect of  this lease which be then a future Act to be do be ancient and the rend thereof  be old rend in respect of the new lease I will suppose a variety of  reservation at several time of rend as S forty year ago and S twenty year ago  yet the last reservation of the S must be the ancient rend otherwise this  power can be execute and therefore ex necessitate you must bring it to some  certainty as I have do to know what must be intend by these word ancient usual  and accustom rend and for that I depend on the case of morris and Antrobus in  hard as a case in point and the reason of the law be with I and it will be no  answer to sa that ex necessitate such a construction be make there because it  be a ecclesiastical case and a dean and chapter once reserve a great rend than  former can never diminish again but tenant in feesimple may make lease at S  and afterward at S and then make a settlement as in this case what then shall  the S or the S be the ancient rend and I hold that the S shall be for majus  and minus will chancery report not be any alteration of the case nor do vary  it one way or other as in the case of dean and chapter who can increase but  not diminish which be not the case of tenant in fee and what he may have do at  the time of the settlement make and which he then think be a rend sufficient  shall upon a power reserve to he of his ancient estate be the measure of his  intention and without a certainty the power can it be execute even by reserve  a sum in particular and so have dispatch this second point which be not a  thing which come now direct in question I give this my opinion for a future  good and to be remember that upon any settlement where a power be reserve to  the tenant for life to make lease of the land in that settlement which be  ancient and accustomable demise and whereof fine have be take at the ancient  usual and accustomable rend for three life or one and twenty year or any other  number of year determinable on three life that rend must be the sum and no  other that be then or last before reserve upon a lease of the same land in be  or expire last before the time of the settlement make the three point be that  all the land in the settlement be demise by one deed chancery report whereas  the intent of the settlement be that several lease shall be make of the  several manor and farm and so several deed and counterpart to be seal by the  several tenant but now as they be huddle up altogether in one they make but  one lease to this I answer that if the reservation be several notwithstanding  they be compile in one deed that can be in no sort a diminution of the power  for suppose four several farm at four several rend as for example one ancient  let at S another at S another at so much and the other at another rend and all  compile in one deed reserve the several rend ancient reserve for they can any  one say it be but one lease and one reservation or that it be not pursuant to  the power sure it be a good execute of that power and one counterpart be as  good and effectual as twenty counterpart the intent of the settlement be that  the reservation shall be so certain that he to who the rend be to come may  know how and for what he shall declare habendum the four farm at tour rend  several and respective c for ninetynine year if a b or c shall so long live  that be a good reservation within the intent of the settlement so be the  authority of knight case in the Rep winter case in dyer chancery report and  the case of Tanfield and Roger bro express that several reservation may be in  one and the same deed and that the reservation here be such a several  reservation and consequent the lease good for that which be not ancient demise  will not hurt the other chancery report er p but must fall to the ground land  ancient demise and land not so demise be let in one lease reserve the ancient  rend for those that be ancient demise be a good lease and reservation and for  the other land be void and the contrary opinion be contrary to all the rule of  law the put of they in one lease will not be material to object for by one  counterpart he may see what be the several rend reserve out of each farm or  manor but you say it be reserve therefore in joint word demise all in one word  the word be demise lease and to farm let c reserve therefore with submission  notwithstanding the word be never so joint yet they shall be take several  where the that have a distinct subject matter to work upon the power be for  several sort of land or estate some demiseable ancient the other not Rep  justice wyndham case there be a demise to a for ten year of Blackacre and a  demise to b for twenty year of Whiteacre and afterward chancery report a  demise by indenture to a three person to commence after the determination of  the say several demise which last demise be of both land and that to a expire  ten year before the other to b it be hold that the joint word in the last  lease shall have a several and respective construction and reddendo one one by  the last lease the term of ten year in Blackacre shall commence immediate  after the lease to a expire and in Whiteacre after the lease to b expire shall  commence that be in one ten year before the other and so it must of  consequence and to all intent be a several demise by joint word in one and the  same deed of several land in the like manner in this case the land be several  and the demise must be several by this deed because we must to make a right  construction look back to his several power and it will be very hard to  construe this to be a void deed of demise where it may be construe to be a  good one and the word here be as express as can be to make it several he say  several and distinct and so he demise they and mean to do it accord to his  power and no otherwise these word have be slight at the bar but they ought not  to be reject for they be very material this lease he chancery report make in  pursuance of his power it will be a strange and hard construction to say that  accord to his power he do demise these land joint when in express term he say  that accord to his power he demise they several as he ought to have do Rep  Slingbys case be express that several word be void where they will work on a  joint interest and joint word be void where they will work on a several  interest but several in a covenant that be joint and several and work several  and plain word can be speak than in this case for he say several claim for  year it have be say that a power of this nature ought not to be take  favourable it be in prejudice of the remainderman I confess I know not why for  if he that will have otherwise be tenant in fee become tenant for life by such  a settlement whereby that power be reserve to he that will have descend with  the fee it ought to be take beneficial for he and that power have a relish of  the ancient fee Rep b sir Edward clear case that very improper word may serve  to execute such power clement Harwood seize of three acre of land of equal  value in capite make a feoff in fee of two of they to the use of his wife for  life for her jointure and afterward make a feoff by deed of the three chancery  report acre to the use of such person c and for such estate c as he shall  limit and appoint by his last will in write and accord devise it to a three  person in fee and though it can not be good as a devise but utter void  inasmuch as he have convey two part before by Act execute yet it be hold a  good execution of his power because it ought to have a favourable construction  and therefore ex necessitate the judge there have recourse to his power that  it shall pass by way of limitation of the use even though he take no manner of  notice thereof by his will but devise the three part general in fee so here  this lease can be good by a joint demise of all the land in the settlement and  may be good by a several demise of the several sort of land or estate therein  it shall be construe to be a several demise though it have be demise joint as  it be not and so make it a good execution of the power and consequent b good  lease ut res to greater extent to be strong how to pass away in the like  manner in the case in hob the devise which be void as a absolute disposition  of the estate be construe a good revocation in execution of the power though  no notice take of the settlement therein because such power must always be  construe favourable and with a beneficial chancery report intent of the party  to who it be reserve in consideration of the estate he have part withal and so  be scrope case Rep b a covenant to stand chancery report er p seize to other  use than be in the settlement adjudge a good revocation of the use in that  settlement though not express and the true reason be because such a power must  at all time have a beneficial construction for he who be to have it indeed he  must pursue circumstance and the form prescribe as such a reservation  counterpart c but need not take notice even of his power and if he shall make  a lease without mention of it and seem as proprietor that shall be construe as  if it have be do by virtue and in pursuance of his power if it can by no mean  be do by virtue thereof and so be all the authority so that I conceive that  there be nothing omit that be requisite to make a good and effectual lease  accord to the settlement and I think it to be such and ought to be construe  several Lord chancellor Cowper the case have be state clear and distinct by my  Lord chief justice Trevor and as to the first point I concur ready with both  the opinion that their lordship have deliver because the creation of chancery  report the term from the death of the old earl Charles be in the nature of a  mortgage and so there must be consequent interest for the mortgage money from  the time it be Payable and due which be at the death of the old earl Charles  and young earl Charles be in the nature of a mortgagor and the estate be  charge when it come to he with the money he be bind only as tenant for life to  keep down the interest as be the common rule of equity if he redeem he be to  pay but one three of the principal and he in remainder the other two three  that be the course of equity then when earl Fitton come into possession he be  not to pay interest to himself and so no interest after that till the time of  his death at which time the interest will again revive second point the second  lease reserve for the new land the most improve rend be under a absolute  uncontrovertible uncertainty and of no value to the party the great point be  upon the other lease which be make as well of the land ancient and not ancient  demiseable both which be demise in one lease and I must own with submission to  better judgement that in this point I differ in opinion with my Lord chief  justice holt and be of the same chancery report opinion with my Lord chief  justice Trevor I take time former to consider of it when I be counsel and  attend at the bar and because it be a case chiefs impression I make a  particular observation on the argument at bar on both side and I be now of the  same opinion I be then and shall deliver it accord make use of my old note but  I must premise a few thing in order to come at the point in question and first  it be agree by both my lord chief justice to be a question mere at commonlaw  and not to have a different determination in this court from what it will  receive at the court below and it be here now in the same manner as if there  have be a special verdict here before I where equity can it aid nor will it  help this lease it not be complete execute in all respect I speak this because  the counsel for the plaintiff seem to direct some thing this way as if in case  any thing be want it may be relieve and I be clear of opinion that it be a  voluntary execution of a power not do upon a valuable consideration it be not  a matter by any mean proper to go before a master upon but must stand or fall  as it can for if it be good it must be decree good if bad it must be decree  bad chancery report though never so inconvenient to the remainderman or the  lessee and so it be in the same condition as it have be suffer ndly as to the  reservation the question be not if it be void between the lessor and it be  argue very fallacious at the bar for want of make this difference where make  between party and party may be good but to bind the interest of a three person  or not be the question and whether within the execution of the power now by  the limitation to the power it be plain they be for the benefit of the  remainderman I will easy grant that when he in remainder for life come into  possession he may lease as he please and as to he the reservation be not void  because it may happen to be recover but as to the remainderman it be void  because it may not happen to be recover so you see by this distinction it be  not void for uncertainty absolute but yet it be not absolute and perfect  certain some thing be in their nature uncertain some accidental and to argue  that if a thing as this rend be be not uncertain then it be certain and if  certain it be then good to bind the remainderman this be not fair argue the  first will follow for there be a wide medium between not absolute uncertain  and chancery report certain for future event may alter the case here so it be  not absolute uncertain or certain as if he can be able or so lucky as to pitch  upon the sum that be the ancient rend chancery report er p if he can also  prove it to be so and if it shall happen that the other shall not be able to  prove that any other sum be the ancient rend then these three if be so lucky  with he it may be a good lease and he may recover his rend but if the contrary  to any one of these if happen he can it be certain on the contrary he must  fail and the lease be bad so as to be absolute void for uncertainty yet not so  as absolute uncertain and the remainderman for who sake the limitation be  intend be no party now it be not only capable and possible never to be reduce  to a certainty for the remainderman may meet with difficulty insuperable and  if any uncertainty in it the lease will be void as to he and to prevent any  such uncertainty there may be reserve the ancient rend or more and that be  alternative and then the lease will be good accord to the settlement it be say  the ancient rend be certain by refer to the last rend at or next before the  time of the settlement where no lease be in be I do not agree to that with  submission to the great judgement chancery report suppose it lease once at a  great and twice at a lesser rend I take the rend of the former lease to be the  ancient rend for the last may be make by he that have the fee who be not bind  to reserve the ancient rend but may let it for not do if he please here be  land ancient demise whereof fine u have be take so that here be a flat  impossibility to make the distinction because the land have be let in all  probability for in or more less as the fine have be high or low the three  thing I promise be this that the reservation and be be to be make upon a  restraint of the power must betake strict against tenant for life because of  the limit act he be to pursue and liberal for the remainderman because that  restraint be intend for his benefit and there be multitude of authority in the  book that such a limit power must be take strict against the tenant for life  because though the power u lord the benefit of tenant for life yet the  restraint be put upon he for the benefit of the remainderman and if we shall  go on both the reason together it must still be take for the benefit of he in  remainder and for this I insist on the reverse of the reason in Mountjoys case  Rep b that be a estatetail create by chancery report parliament and he have a  narrow power by the Act than the law will have give he as tenant in tail  therefore that must have a reasonable construction accord to the meaning of  the Act vice line here the power of tenant for life be by way of enlarge the  estate and be in augmentation of it must be take strict and so must it be take  accord to natural reason now accord to that this can it be a good lease to  bind the freehold and inheritance of the remainderman for in construction of  deed the true genuine sense and meaning of the party must be attend so we must  consider each part of the power in the deed and in respect of rend the rend  reserve must be in as good condition as the ancient person that hold the state  enjoy the same it be not intend that general word especial that those mention  in the settlement shall be verbatim turn into a reservation in the lease but  provide for a certainty to be it have in every reservation of what rend shall  be reserve and that to be particular that he in remainder may have a remedy  upon his action or rend reserve certain and in term as former have be use to  be reserve for the land or at king least so as it may be reduce to a certain  rend by chancery report refer to a certainty and this be the plain and honest  meaning of the party and not to involve the remainderman in perpetual  controversy and uncertainty as in this case he be obnoxious to it be that the  ancient and accustomable rend be reserve there will be a certain sum reserve  and here it be disputable what be the ancient rend and it be say or more so  that it may be ascertain without dispute and it be intend that a certain sum  be reserve where the rend be even indisputable for a certain sum in all case  must be reserve and the contrary will produce inconvenience for always a  certain rend be ancient reserve and so it be intend by have the counter part  and I rely upon it in this case that he be under great disadvantage than any  free holder former have be for let we consider what it be that by allow this  lease to be good the reversioner must prove he must prove the land he avow for  to be within the describe word of the lease and that the lessor be in  possession which he cant do here because it be promiscuous and can it be know  what land for what rend but if there have be a counterpart the lessee will be  force to say the lessor be in possession and so the lease will be a conclusion  chancery report at least a evidence of the rend but here he must prove such a  sum as he declare for land neither more or less be the ancient rend or the  tenant will baffle he as often as he chancery report er p please the rend  reserve here be neither like nor the same reservation and rend as use ancient  to be reserve and to argue that though a express particular sum have be  reserve the tenant may put it upon he to prove that it be the rend ancient  reserve or more and so he in remainder must prove what be the ancient rend  although a certain sum have be reserve that be not to be argue it be a harsh  supposition that a man shall go about to destroy his own lease that he hold  under for so it will be otherwise he can never avoid payment in a action of  debt for the rend and if in such action he shall deny it to be the ancient  rend the lessor or he in remainder may bring his ejectment and upon show the  denial upon record will recover the land and put he out now this case here  vary for the tenant may baffle the lessor twenty time over and yet keep the  land in despite of his tooth but if the antientRent have be reserve there will  have be no such danger and the remainder as well as the lease have be good but  now he may chancery report shift here as often as he can show there be any  other rend ancient reserve so that I must be of opinion that this reservation  in the manner here reserve be reserve a worse rend than use ancient to be  reserve and that the restrain in the settlement mean that he in the remainder  shall have the same in all material quality as well as the quantity of the  rend and a remedy to attain to the certainty and recover the rend as well as  the former freeholder can there be many case to this point put in Mountjoys  case in the Rep and I take they all to be very good authority because be put  by the counsel at bar they be deny to be law as a reservation of rend to be  pay at two day where ancient it have be Payable at four not good if silver  where ancient it have be in gold and many other there put be deny by the whole  court thly that this lease as against the lessor be not void but against the  remainderman it be void because not so beneficial as usual and a very minute  difference will serve to avoid it which may have be prevent in pursuance to  the settlement by reserve more than the ancient rend but here be none and if  there be it must have all the beneficial chancery report quality of the rend  ancient reserve and those ought to be reserve and observe as Mountjoys case in  the Rep say and there several case for want of that deny to be law as silver  for gold or two rend or two manor conjoin a part of the manor for a  apportionable share or part of the rend as if twenty acre have be set for  pound each acre of equal value it be not a good lease if ten of those that be  even be let at the rend of pound such a lease wouldbe void in the case before  we it be much strong because the original party to the original power have lie  a stress on this very thing as if they foresee and will prevent it for the  lessee by that shall execute and sign a counterpart of this lease but the deed  here signify nothing it be a shadow and be particular of the manor as they be  ancient set distinct the tenant may deny he hold any particular parcel he may  say these and these land be not contain in any box as I may call it of several  lease and insist upon any rend he please in twenty several action bring by the  remainderman and may nonsuit he on the evidence in every one of they and he be  estopped to say nothing but sign and seal it be intend that several lease  shall be make and several counterpart and chancery report several rend certain  and that to uncertainty for which the settlement provide and all which the  party foresee another reason or rather observation which may serve to answer  what my Lord chief justice holt say that if the settlement be certain the deed  be as certain and that the general word in the power be good for a reservation  but a true way to execute a power like this be not to do it in the general  word of the power in all case they must reduce the rend to a certainty by  particular express word suppose as I have see in some deed that there be a  proviso that in every lease there shall be insertedsuch covenant as be usual  to be insert in lease in that county where the land lie c and a lease shall be  make with a proviso in the very word of the deed that will not be good nor can  it be aid by any special verdict find the covenant usual c and the word or  more alter it extreme and the lessor must lie hold on both the ancient rend or  more whereby it be denote that in obedience to it he must do it one way or  other but still it must be certain a three observation or argument which I  make be admit the sum reserve not necessary to be a certain sum sure it  chancery report must refer to a absolute certainty as in the case of Levison  there be a absolute mathematical certainty than which nothing can be more  certain and in the case of Levison and Pigot the chancery report er p very  power provide it shall be so at least d for every Cheshire acre so that it  must refer at least to something certain but this refer to nothing that be so  on the contrary to a thing that be fluctuate custom and usage the which  nothing be more uncertain than antiquity and custom it be certain at the time  of a old lease there be a rend exist and it be then know certain what it be  but to make this good it must now also be know what it be but may be it be  unattainable by human knowledge as to the thing in question there be certainty  absolute and natural but we mean useful certainty for the benefit of property  and in that respect refer to custom and usage be uncertain and therefore that  which is fixed be quod that which is fixed To give back to be able be fit to  maintain that whatever in it self be once certain must be ever certain will  not be grant for it may or may not be certain accord to future event and much  less to bind a three person and it be contradict by Owen and Aprees case cro  pound pose it have be refer to aLease or lease between such a chancery report  one and such a one that also have be void between the lessee and remainderman  because the reversioner may lose the lease and so there be not any equivalent  to which he may at all time resort to be ascertain as in Pigot case therefore  it be not a good reservation where it be not certain in it self but refer to  ancient custom and usage there be as to nature a uncertainty and a uncertainty  as to the understanding as for say that a verdict will have ascertain it that  will be aid the defect and to go before a master or jury foe find and what be  the ancient rend be supply a defect which have be make in execute a power  against common right this be true not a absolute but a conditional reservation  good between the lessor and lessee but not to bind the remainderman the  condition be I let these land absolute and if a ancient rend can be find and  you the remainderman can prove it then I reserve it to you but if there be  none and if there be and you can prove it you be to have none there be another  uncertainty which I do it need to help on and this be in the thing demise and  that run to Aprees case where land eat demise by sufficient description the  lessee can it go chancery report back unless heforfeit the lease but here they  be so demise that though the ancient rend have be reserve yet the tenant may  say the land be more or less but if they have be distinct demise and he shall  say so in plead he will forfeit his lease but here be no light at all for the  lessor to go by though he find the certain rend so that it be only a bare  possibility that by the help of great charge good fortune and the industry of  himself he may come at his rend if he can ascertain the very land ancient  demise and their respective rend or if either the land be mistake or the rend  but be still to seek for it land lease for the rend reserve ancient on these  land and there be less land in the lease than ancient be let that be not a  good lease but if less or few land than ancient be let be demise for the same  rend in certain that have be well in the three place if there have be a  recovery and a lease of the diverse land in the recovery it will be bad and  the same exception will hold but the ancient rend be a sum of money you may  reserve more than the ancient rend and so it appear that although I have  reserve by the word ancient and accustomable rend that will be good so  chancery report that that which is fixed be quod that which is fixed To give  back to be able will not do in this case if you can maintain the reservation  on the lease yet the lease be not in severalty as former the land be demise  and therefore it will be that case in point or if you will make it a several  lease yet there be more land and then it will be strong against you than if  there have be less oh but say you it be the ancient rend be reserve only for  the land ancient demise and not for the other land that will follow for the  same land be not demise in the same several lease the word be several and not  joint of all the land in the settlement recite the message tenement and  hereditament in several manor in the county of Chester and all and singular  the land comprise in the recite power habendum for ninetynine year if sir  Charles Orby c shall so long live and yield and pay therefore yearly the  ancient and accustomable rend usual reserve and Payable not say heretofore in  the lease part only there be a severalty for the lease be several and not  joint of all the land in the county of Chester c and also of all the other  estate that be a severance but it be the minute that can be several suppose of  four field and four message several where usual chancery report two field and  two message be let that will not be good for it must be a severance of all the  thing demise and I take the word to be such yet the land be not usual perhaps  let by manor chancery report er p c and the reservation c yet have relation to  usage or custom in the demising part nor be it say as ancient demise and the  construction that be endeavour to be put upon it will carry the reservation to  be several further than any case have as yet do the land pass by this deed all  during the life of the lessor and therefore be one reservation single of all  the rend for all the land these manor reserve therefore several rend will not  be good for a demise of they where they be usual let single or together and  the call they respective ancient and accustomable rend be denote what they be  not what they be reserve and use dyer hob and more it be true the several  ancient rend be reserve but not for the several ancient tenant and respective  only denote but do not reserve therefore I be of opinion the demise though  several and not joint yet can be make any other severalty than the demise and  that will do the plaintiff turn for that will be for all the land and that  will be Owen chancery report and Aprees case and so let in a manor never let  before here be more land than ancient let you will say that the rend be not  reserve as well for the land not ancient demise for the land do pass as much  as to their To give back it be for all that be lease and that part that be not  ancient demise be it must be apportion for there be no covenant for the lessee  to pay the ancient rend for the old land in case the other shall be evict  therefore agreeable to common right against which the power be make and to  what be then intend by the settlement the lease not be several much less  single the general course have be in execute of these power to make the deed  or lease in particular term and not accord to the general word thereof and now  since that when these power have be perhaps and I believe much ancient than  the statute for enable ecclesiastical person this be the first attempt that  ever be make to delegate the power general as I may say that be particular to  be execute in the same manner as they be do before and for that it will be  fatal to all remainderman because the tenant for life may upon a sudden at any  time make a disposition of the whole estate in this chancery report uncertain  manner and be a new invention in derogation of the commonlaw and tend to  introduce perjury forgery and fraud the court of equity will and it by any  mean it be to be utter explode like the attempt of justice Richill mention in  Littleton I be of opinion it be not a good lease so as to bind the  remainderman and accord decree sir John Hobart shall be trustee for the use in  the settlement permit his name to be use and decree a account for the mortgage  estate and if the party set up a Title to the inheritance and mortgage he must  account for the whole profit as the counsel for the defendant insist on but  the Lord keeper decree only a account and if the account be delay that a  receiver be appoint refuse to speed the report upon the face of the decree  because it be presume all person be will obey then it be move that for the sum  of pound devise by old earl Charles to lady Gerrard and by her devise to young  earl Charles who devise the same to the defendant interest may be discount for  the same by the plaintiff as administrator to earl Fitton for the time earl  Fitton enjoy the estate but to this the keeper answer that earl Charles the  young chancery report have the feesimple in reversion and the fee be fall now  into the party who be to have that money shall he not have it out of the  estate for it be not personal due on earl Fitton it be too hard to give  interest for it to you that have the fee the same be a personal demand of  atwood Thomas case in the house of lord be the same she recover her portion  after the fee have fall in to her the keeper say that be because of fraud in  the trustee it may be and so will not decree any interest for it but that all  write except such as concern the mortgage estate to be deliver up and those  when the possession come to the defendant by burn administrator of Charlote  and decree cost for the only as mortgagee usual have chancery report mich  annae queen in cane