case Elizabeth duchess dowager OF hamilton and other appellant Charles mordant  Esq and other respondent that march Mews dig ten sub nom Orby v Mohun tenant  for life with power top make lease of all land ancient demise reserve the  ancient rend or more and of other land reserve the most and best improve rend  that can be get make a lease of part of the premise usual demise reserve the  old accustom rend and a lease of other part not usual demise reserve such sum  of money as shall amount to the best and most improve yearly rend both these  lease be hold to be void as against the remainder man the first as not be  warrant by the power and the other for the uncertainty of it decree of summer  Lord keeper affirm the report in viner be incorrect and that in vol be a mere  dictum of holt who differ from the Lord keeper and Lord Trevor vern Eq ab can  prece in Chan Chan Rep freeman Rep viner vol p can vol p can pale yellow Rep  by the name of Orby v Mohun ld or lady previous to the marriage of Charles  Lord Brandon old son of Charles earl of Macclesfield with Ann mason the  daughter of Richard mason by indenture of lease and release date the d and  that of April the earl and Lord Brandon brown er p his son convey to sir Henry  Hobart and the say Richard mason and their heir diverse manor and estate in  the county of Chester and Lancaster in order to make they tenant of the  freehold that common recovery may be thereof suffer and which when suffer be  thereby declare to be to the use of the earl for year if he shall so long live  subject to a rentcharge of pound per and to Lord Brandon and the say Ann in  manner therein mention remainder to trustee to preserve the contingent  remainder then to trustee for year to raise and pay any sum not exceed pound  to such person as the earl shall appoint remainder to Lord Brandon for year if  he shall so long live remainder to trustee to preserve the contingent  remainder remainder to the first and every other son of Lord Brandon  successive in tail male remainder to Fitton Gerard second son of the earl for  year if he shall so long live remainder to trustee to preserve the contingent  remainder to the first and other son of Fitton successive in tail male  remainder to every other son of the earl in tail male successive remainder to  the earl his heir and assign brown and in this settlement a power be reserve  to the earl Lord Brandon and the say Fitton that as and when every of they  shall come into and be in possession of the premise by virtue of the above  limitation it shall be lawful for they from time to time during their life by  indenture under their respective hand and seal to lease all and every or any  part thereof to any person or person for any term or number of year not exceed  year or for one two or three life or for any term or number of year  determinable on the death of one two or three person in possession but not in  reversion remainder or expectance so as upon every such lease of such part of  the premise as have be ancient and accustomary demise whereof fine have be  usual take the old usual and accustomable yearly rend or rend or more shall be  yearly reserve and make Payable during the continuance thereof respective and  so as upon every lease of such part of the premise as have not be usual let  and for which there have not be any fine or fine former take there shall be  reserve and make Payable during the continuance of the same respective the  most and best improve yearly rend that can be reasonable have or obtain for  the same and so as no such lease shall be make dispunishable of waste and so  as the lessee and lessee to who the same shall be make shall respective seal  and deliver counterpart thereof and it be by the same indenture further  declare that till the suffer the say recovery the say Hobart and mason and  their heir shall stand and be seize of the say manor and premise intend to be  therein comprise in trust for such person and person and for such estate and  estate as and to who the use of the same before mention and declare concern  the same the marriage soon afterward take effect but no recovery be ever  suffer of the premise pursuant to the covenant the earl of Macclesfield die in  January leave issue two son videlicet the say Charles Lord Brandon and Fitton  Gerard and three daughter videlicet the appellant lady Charlotte Orby  Elizabeth lady Gerard mother of the appellant the duchess of Hamilton and lady  Ann elrington mother of the appellant John and Gerard elrington upon earl  Charles the father death the say manor and premise come to his old son Charles  then earl of Macclesfield who take possession and enjoy the same during his  life and become also entitle to the reversion in fee thereof as be heir of his  father to who the reversion be limit by the settlement and in his marriage  with the say Ann mason be dissolve by act of parliament and the child of that  marriage be declare illegitimate earl Charles the son by his will date the d  of July devise all the say manor and premise and the reversion and remainder  thereof in case he shall die without issue to Charles Lord Mohun and his heir  who he appoint sole executor of his brown will and in November follow the  testator die without issue whereupon and by virtue of his say will the  reversion in fee of the say manor and premise expectant upon the death of  Fitton then earl of Macclesfield become vest in Lord Mohun and earl Fitton  become entitle to the same for the term of year determinable on his death and  he enter into the possession thereof accord brown er p by indenture of lease  date the saint of December earl Fitton after recite his power of lease demise  to sir Charles Orby and Thomas afterward sir Thomas Orby all the message  tenement and farm in Gawsworth bosely Siddington Aldford Whisterfield and  Wimblestow in the county of Chester and all other the message cottage land  tenement and hereditament whatsoever comprise in the say settlement which have  be usual let and fine take for the same and all other land which be within the  compass and intent of the say power and every part thereof to hold for the  term of year if the say sir Thomas Orby and Ferdinando Fairfax and the  appellant Elizabeth Collett then Elizabeth Ashton or any of they shall so long  live so as the say lessee shall seal and deliver a counterpart of such lease  yield and pay therefore during the say term at or upon the day and time in  that behalf use and accustom the several and respective old accustom rend  reserve and Payable for the say several message tenement and farm thereby  lease accord to the intent and meaning of the say proviso and by another  indenture bear date the same day it be declare that the say lease be make in  trust to pay pound per and to the appellant Elizabeth Collett and Henrietta  synes and to pay the residue of the rend and profit in three one three to the  appellant the duchess of Hamilton one three to sir Thomas Orby and the remain  three between Elizabeth Orby daughter of the say sir Thomas and who afterward  intermarry with the respondent Robert hunter and the appellant John and Gerard  elrington and Robert elrington decease by another lease date the d of the same  December earl Fitton demise to the say sir Thomas Orby the capital message  tenement and farm in the county of Chester and Lancaster for which fine have  not be usual take and of which there be then no lease for year or for any life  in be to hold for year if the appellant the duchess of Hamilton and the say  sir Thomas Orby and the Lord Mohun or any of they shall so long live yield  yearly during the say term such sum and sum of money as shall amount to the  most and best improve yearly rend that can be reasonable have and obtain for  the same in the same month earl Fitton die without issue upon who death the  Lord Mohun bring ejectment against the lessee for recovery of the premise  where upon in Trinity term sir Thomas Orby and the appellant the duchess  together with Elizabeth Orby the daughter and the appellant John and Gerard  brown elrington Elizabeth Collett and Henrietta synes exhibit their bill in  chancery against the Lord Mohun sir John Hobart and other to have the say two  lease establish and the lessee quiet in possession of the premise thereby  demise to they and for a injunction to stay Lord mohun proceed at law on his  ejectment to this bill the defendant answer and in December follow Lord Mohun  exhibit his cross bill to set aside the two lease and that sir John Hobart may  convey the feesimple and inheritance of the say manor and premise to the Lord  Mohun and his heir and in the mean time be declare his trustee and that the  lessee may account with Lord Mohun for the rend and profit of the premise  receive by they since earl Fitton be death and deliver up to he all the deed  and write relate thereto on the that and that of January and saint of February  both cause come on to be hear before the Lord keeper Cowper assist by the Lord  chief justice holt and the Lord chief justice Trevor who have hear the solemn  argument of counsel on each side do on a subsequent day videlicet the that of  April deliver their opinion seriatim and then the Lord keeper with the concur  opinion of the Lord chief justice Trevor inter alian decree that as to the two  lease make by earl Fitton date the saint and d of December the same be not  good as against the Lord Mohun the remainderman in the settlement and  therefore order that the plaintiff bill in the first cause as to the relief  thereby seek in respect of those lease shall stand dismiss and in the cross  cause sir John Hobart be decree so soon as he shall come of age to convey the  feesimple and inheritance of all the say premise to the Lord Mohun and his  heir and that Lord Mohun and his heir shall be at liberty to make use of sir  John hobart name for recover possession of the same premise and all the deed  evidence and write belong to the premise in question which the plaintiff in  the original cause have or can come by be forth brown er p with to be deliver  to the Lord Mohun and the injunction former grant as to the say premise be  dissolve this decree be afterward sign and enrol and Lord Mohun recover  possession of the premise and sir John Hobart on his come of age convey the  legal estate thereof to he or as he direct and from the time of pronounce the  decree to the bring of the present appeal be upward of year there have not be  one step take in the cause but the justice of the decree and proceed have be  entire acquiesce under Charles Lord Mohun afterward die without issue have by  will devise all the say manor and premise to his wife Elizabeth lady Mohun and  her heir afterward in the year and previous to the marriage of lady Mohun with  the respondent Charles mordant and in consideration of that marriage by  indenture of lease and release date the d and d of April lady Mohun convey to  trustee and their heir all the say manor and premise to the use of the brown  respondent the duke of argyle and earl Islay for year upon the trust after  mention remainder to the lady Mohun for life remainder to such and for such  estate and subject to such charge as she sole shall by any person write under  her hand and seal attest by three witness direct or appoint and the trust term  be declare to be for raise pound for payment of debt and also for raise pound  for the marriage portion of Elizabeth and Ann the two child of lady Mohun and  pound for the respondent Charles mordant to be raise and pay acquire step the  lady Mohun by her deed poll date the that of December direct and appoint that  the say manor and premise subject to the several trust of the say term of year  shall from and immediate after her decease be and remain to the use of trustee  and their heir upon trust that they shall as soon as convenient may be after  her death sell the same and thereout pay the several sum therein mention a  mount in the whole to pound and upward to the several person in the say deed  name and she direct the residue of the money arise from the sale to be pay to  the respondent Charles mordant for his own use the respondent sir Robert rich  and William Stanhope intermarry with the say Elizabeth and Ann the lady mohun  two daughter and thereby become entitle to the pound apiece so charge on the  estate for the marriage portion of the say Elizabeth and Ann and in  consideration thereof they make suitable settlement on the say Elizabeth and  Ann and their issue so that they become purchaser for a valuable consideration  of the say pound so charge on the say estate in may the lady Mohun die and  some time afterward the respondent Charles mordant file his bill in the court  of chancery to have the trust of the say deed execute and the trust estate  sell for the purpose aforesaid and that cause come on to be hear a sale be  decree accord to the best purchaser to be approve by a master in order to pay  the debt portion and other charge affect the premise after all these  transaction and above year acquiescence under the decree of the that of April  the present appeal be bring in order to reverse that decree and on behalf of  the appellant it be say p York t Lutwyche to have be object at the hear  against the validity of the lease of the saint of December I that it ought to  have mention the particular rend reserve two that the ancient and accustom  rend be thereby reserve as well for land not ancient lease as for those that  be and that therefore it be contrary to the meaning of the power as to the  first objection it be argue that the specify a certain sum in the reservation  of a lease be clear not necessary if the particular rend intend may be know by  proper reference that which is fixed be quod that which is fixed To give back  to be able be a undoubted maxim both in law and reason what those ancient rend  be be a matter brown of fact capable of be know and without difficulty by  those who have the write of the estate and have be full ascertain by the  plaintiff in the original cause that the reservation be in the same term with  the power and consequent be pursuant to it that the plain meaning of the  restriction in the power be to secure the ancient rend to the remainder man if  he have these he have all that be brown er p intend he and there can be no  doubt but he will be entitle to they by this reservation but there be no  appearance in the settlement of any intention in the party to have those rend  ascertain in any particular manner that it will hardly be doubt that such a  reservation of rend by the owner of the fee will be good which it can not be  if it have not such a certainty as the law require and it do not appear that  there be any design in the maker of the settlement to exact a great degree of  certainty in this respect than what be require by law that the intention and  endeavour of earl Fitton to execute this power in the full manner in favour of  the heir at law be manifest and the deflect if it be any ought to be supply by  a court of equity especial if the same be occasion by the agent of Lord Mohun  in neglect to show earl Fitton the proper evidence to ascertain this rend for  it seem contrary to conscience that Lord Mohun shall gain by his own wrong  especial when he himself be a stranger and volunteer and will deprive the heir  at law notwithstanding he have get all the residue of earl Charles estate to  the amount of near pound of that small interest in their father and grand  father estate which be give they in lieu of the whole which ought natural to  have descend to they as to the other objection it be argue that the demise in  the word of it be several and to put this construction upon they will be to  make they joint contrary to the plain word and intention of the lessor that  the reservation of the several and respective ancient rend for the several and  respective message etcetera can not mean anything but such rend for each  tenement as be ancient reserve for the same and it will be difficult to use  plain and strong word to import the meaning that the word yield therefore must  be understand reddendo one one and which method of interpretation the law  prescribe in many instance not so strong as this so that as to those part of  the estate demise if there be any which have no ancient rend no rend be  reserve by this reservation and consequent as to those the power be not  execute as to the length of time since the decree and the several subsequent  transaction state by the respondent it be say to be not uncommon for decree to  be reverse after a great length of time and that this objection ought not to  be impute to the appellant who have be feme covert or infant or abroad in his  majesty service since the make of the decree as to the pretend encumbrance if  there be any the appellant be whole stranger to they nor can they in any wise  vary or affect their right and particular as all or brown the great part of  these encumbrance appear to be many year subsequent to the appellant claim  under earl Fitton and as to the decree for sale the appellant be not party or  privy to it that their demand go only to those farm which be usual lease upon  fine and happen to be out of lease in December which be but a small part of  the estate and in this part the share the appellant claim be only what the  farm may be worth over and above the usual rend and even this surplus will  only continue to they during the remainder of a lease determinable upon three  life one of which be dead and twentyfour year wear out in the other two since  the lease be make on the other side it be insist c Talbot W peer William that  as to the lease upon which the rend reserve be mention to be the most improve  rend this reservation be plain void for the absolute uncertainty of it  consequent this lease be not warrant by the power and be accord give up at the  hear by the appellant own counsel and as to the other lease under the several  and respective old and accustom rend reserve and Payable for the say premise  this be also void as against Lord Mohun the remainderman and not warrant by  the power because there be many farm and a great estate within this one lease  some let at the ancient rend and some not it will put insuperable difficulty  upon the remainderman to recover his rend due for the premise comprise in this  lease for that in the action or avowries to be make for the rend he must be so  lucky as to point out what be the old rend for what and for how much land it  be pay and at what time Payable and if the tenant can prove that a different  rend be pay for the land or that any other land be comprise in the lease or  that the rend be former Payable at any other day the remainderman can not  recover but instead of recover the rend from the tenant must from time to time  pay he cost whereas it be intend that the remainderman shall have as plain wax  brown er p tain and easy a remedy for his rend as other landlord have and as  the former owner of this great estate ancient have but upon the lease now in  question it neither appear what the rend be which the remainderman be to have  nor for what estate the rend be to be pay nor when or on what day it be to  grow dvet the lease give the remainderman no manner of light as to these  particular that the proviso contain in the power of lease in direct that the  tenant shall seal a counterpart of every lease show that the intent of the  power be to guard against all the forgo inconvenience by reduce the premise to  a certainty and that there shall be a counterpart of every several lease of  every parcel of land which be former let separate and the particular ancient  rend reserve with certainty in each lease and not one lease only or a  counterpart of a lease of the whole estate without reserve any certain rend  that as these power of lease be general reserve in all settlement if so lose a  exercise of they shall be allow to the tenant for life it will introduce the  great difficulty and put the great hardship upon the jointress son brown and  other person claim in remainder under such settlement and by such a  construction the tenant for life by a uncertain general and short lease of the  whole estate which may be a rash and sudden act and do with very little  expense of money time or trouble will be enable to render the remainder  expectant on the determination of such lease though settle on the high  consideration to become of little value because the person to who such  remainder belong will be in a great measure disable from recover any rend for  the promise and as the decree appeal from have be so solemnly pronounce and so  long acquiesce in and as security have be since make and accept under it for  debt and marriage portion by person not party to that suit and who never have  any opportunity of defend the same though they will be very great sufferer if  the decree be reverse it be hope that it will be affirm and the appeal dismiss  with cost accord after hear counsel on this appeal and hear the opinion of the  judge upon a question propose to they whether the power in the settlement of  Charles earl of Macclesfield to make lease be well execute it be order and  adjudge that the appeal shall be dismiss and the decree therein complain of  affirm jour vol p