It is clear, however, that the mere circumstance of the rent being reserved out of the land, and recent improvements on it by building, will not vitiate the lease, although, as it has been argued, part of the rent issues out of the new buildings (f). To prevent any doubt on these points, where powers are given to lease at the ancient rent, it should expressly be declared, that leases may be made of part at rents pro rata, and that lands usually demised by several leases at several rents may be demised by one lease at the aggregate of the old

rents.

The rent to be paid should, in strictness, be specified in the lease; but although the reservation be made in the very words of the power without stating the sum in particular, the lease will be supported if the reservation have reference to some standard by which the rent can be ascertained with certainty and ease, for id certum est quod certum reddi potest; but if the reservation be vague and indefinite, and not easily reducible to a certainty, the lease will be void. As an instance of the first rule may be quoted, the case of Lewson v. Pigot (g), where, under a power to make leases of certain lands, reserving 12d. for every Cheshire acre, a lease was made of all the lands, " reserving all the rent intended to be reserved," and the lease was determined to be valid because, Lord Chancellor Cowper observed, there was an absolute mathematical certainty, than which nothing can be more certain, the very power provided it should be so; at least 12d. for every Cheshire acre (o). It was only necessary, therefore, to

(f) Read v. Nashe, 1 Leo. 147. (0) See 2 Cha. Rep. 76.

(g) 3 Cha. Rep. 61 cited.

compute

compute the number of acres in order to fix the rent (p); and in a recent case, where a tenant for life, with a power of leasing, contracted to grant a lease at the yearly rent of 71. for every acre, the lands upon a proper survey to be had, should appear to contain, and so in proportion for every lesser quantity than an acre, the uncertainty of the rent, was objected against the performance of the agreement, but Lord Redesdale said, that he did not think it uncertain, for it was capable of being reduced to a certainty, and it was a common form of reserving the rent in the country where the land was situated. Every executory contract must contain this species of uncertainty, but if it contains all that leads to future certainty, he took it to be sufficient, and he accordingly decreed a specific performance of the contract (q).

The second rule is exemplified in the great case of Orby v. Mohun (r), where the power was to grant leases of all lands anciently demised at the ancient rents, and of the other lands at the best rents that could be gotten. The The power was exercised by two leases, by one of which all the lands not anciently let, were demised, reserving thereon "the best improved rents," and by the other, all the lands within the power were let, reserving the "ancient and accustomable rents," so that instead of specifying the sums to be paid as rent, the words of the power were repeated, The cause was

(p) And see Audley v. Audley, 2 Cha. Rep. 82; but note there the power does not appear to have required the reservation of any rent.

(q) Shannon v. Bradstreet, 1 Rep.

T. Redesdale, 52.

(r) 2 Vern. 531, 542, Prec. Cha. 257, 2 Freem. 291; but reported in 3 Cha. Rep. 56.

heard

heard before Lord Keeper Cowper assisted by the two chiefs, Holt and Trevor.

They unanimously agreed that the lease was void, as to the demesnes, as the remainder-man could not possibly tell what to demand, under the reservation of the best improved rents.

But as to the lands anciently demised, Lord Chief J. Holt, held that the rent was certain enough, and the lease good. It must be admitted, he said, that a power to lease, reserving the ancient rent, is a certain power, and well enough to be understood, what it is and what it means, and why he asked, shall the same words that create and reduce the power to a sufficient certainty, when turned into a lease render it uncertain. The same certainty that is in the power, is carried over into the lease, which is the execution of it, but neither in the one or the other is it mentioned what the old rent is, but that may be averred, and that is certain which may be made certain. But the Lord Keeper and Lord C. J. Trevor were of opinion, that the rent, even as to the lands anciently demised, was not certain, and that therefore, the lease was void. They argued, that as the intent of the settlement was (s), that the tenant for life in possession might lease; so it was on the other hand that the revenue should be diminished ; but the antient rent at least reserved, and in such beneficial manner, as might with certainty, and without any difficulty be recovered; and for that reason, it was provided, that there should be a counterpart of the lease, that it might be better known what the rent

(s) 2 Vern. 543, 544.

was,

was, and how to recover it. If the rent had been mentioned in the lease, there if the tenant had refused to pay it, the proof would have been turned upon the tenant, to shew the rent in his lease was not the ancient rent, and if he should do so, it would make his lease void. But as the lease was contrived, the remainder-man might be baffled and nonsuited twenty times, before he could declare or avow in certain for the rent payable in the lease, and yet the tenant still holds the land, and doth not prove his his own lease void, as must have been done in the other case. Where there is a power of leasing in general words, as reserving the ancient rent; in the execution of the power which is to be explained and made certain, the rule, certum est quod certum reddi potest, is to be understood of a reference to that which is absolutely certain, to a former letters patent or the like: but this is rather a delegating the power of leasing to the plaintiff, than an execution of the power, and is the first attempt of the kind; and it is a good rule, that what never has been, ought never to be; and therefore they adjudged the lease to be void, and this decree was confirmed in the House of Lords (t).

Where the rent is required to be reserved at particular days, it must of course be reserved accordingly, but where merely the best yearly rent is required to be reserved, it may be made payable quarterly, or half yearly (u). It seems clear that the rent cannot be reser

(t) 3 Bro. P. C. 248, nom. Dutchess of Hamilton v. Mordaunt, and see Qwen v. Thomas, reported Cro. Car. 94, 3 Keb. 380 cited.

(u) Campbell v. Leach, Ambl. 740; 6 Rep. 38, a. See Earl of Cardigan v. Montagu, App. No.

14.

ved

ved after the day appointed, (x) nor as it should seem before the day as that would have a tendency to benefit the tenant for life, at the expense of the remainder. man (y).

It is perfectly clear that several demises may be comprised in one deed, although very subtle distinctions are taken between what are, and what are not distinct reservations so as to constitute several leases. It frequently happens that lands comprised in a power, are demised in the same lease with lands not comprised in the power, or lands are demised, as to some of which the power is duly complied with, and as to others, it is not; and in these cases, the validity of the lease depends upon the quantum of the rent reserved, and the mode of the reservation.

The first question arose in How and Whitfield (z); the ancient rent was required to be reserved, which amounted to 6s. per annum. and by the pleadings it appeared, that the lands within the power inter alia, were demised, reserving proinde 6s. per annum, and the court thought it might be intended that the inter alia might comprehend nothing, but such things out of which a rent could not be reserved, and then the 6s. were reserved only for the 5 acres (the land comprized in the power). However the proinde might reasonably be referred only to the 5 acres, and not to the inter alia, and that a distinct reservation of 6s. might be for 5 acres, and judgment was given accordingly. Thus the case is reported

(x) See Ludlow v. Beckwith, Al, 90.

(y) Vide supra p. 515.

(z) Ventr. 339, 2 Jo. 110, 2

Show 67; and see Earl of Cardigan v. Montagu, App. No.

14.