ante, § 39. In what Con- be inserted. 68. If, however, the covenants in a lease made under a power, be upon the whole such as place the parties upon the same footing as under former leases; their differing in trifling circumstances, will not invalidate the lease. 69. In the case of Goodtitle v. Funucan, it was objected that the covenants were not so beneficial to the remainder-man, as those in the ancient leases; by one of which the tenant covenanted to pay half the land tax, and by the other, the lessor covenanted to free the tenant from tithes, and all church dues: whereas, in the former leases, the tenants covenanted to pay all duties and taxes, except the land tax. Church dues were by law particularly chargeable upon the occupier. The Court said, the power did not mention covenants; and that what was thrown on the landlord was compensated by what was paid by the tenant. 70. It is laid down in Mildmay's case, that although a power of leasing may be reserved in a declaration of uses of a fine or recovery, yet that no such power can be reserved in a bargain and sale, or covenant to stand seised: for as uses may be raised on a fine or recovery, without any consideration, therefore a use will arise to the lessees, without consideration; and the former estates being raised without consideration, may be defeated without consideration. But as no uses can arise on a bargain and sale, or covenant to stand seised, without consideration, therefore no use can arise to the lessees; for where the persons are altogether uncertain, and the terms unknown, there can be no consideration; so that the former estates, which were raised upon consideration, cannot be defeated by such leases. 18. But they must be properly 57. executed. 20. Unless the Power is collateral. 23. A Will executing a Power retains all its Properties. 26. The Power need not be recited. 64. Or direct a Sale, and appoint A Power cannot be delegated to another. 67. Unless there are special 30. But the Instrument must refer 69. In what cases an Instrument to the Estate. 34. A Power may be executed by several Assurances. 37. And at different Times. 41. An Appointment may be a Revocation pro tanto. operates as an Appoint ment. 74. Effects of the Execution of a Power. 79. Will not defeat a prior Es tate. SECTION 1. strained by POWERS of revocation and appointment were May be reformerly directed to be executed by the tender Circumstanof a ring, the payment of a sum of money, &c.; but ces. in modern times they have in general been directed to be executed by deed or instrument in writing, or by will. And the execution of these powers may be restrained by such collateral circumstances, and 3 Cha. Ca. 55. 107. attended with such forms and ceremonies, as the persons creating such powers may think proper to require: nor can a court of law dispense with the performance of them, without violating the intention of the parties. 2. This rule is the same, though the power be reserved to the original owner of the estate; for where a person debars himself from making any future disposition of his property, except by an act attended with certain forms, no court of law can dispense with the observance of them: for a person may feel conscious of such weakness, and frailty of mind, as to require that all future dispositions made by him, should be attended with such solemnities as may effectually prevent surprise and imposition. It has therefore been settled, ever since the introduction of 10 Rep.144a. powers, that all the forms and circumstances prescribed by the deed, by which the power is created, must be strictly observed; otherwise no revocation or appointment will take place. Hob. 312. Digges's Case, 1 Rep. 173. Bath and Ca. 55. 2 Freem.193. 3. Thus where the execution of a power of revocation and appointment was directed to be by deed indented, to be enrolled; it was resolved that these circumstances must be strictly complied with; for if the deed were allowed to operate as a revocation before enrolment, then it never would be enrolled. It was also resolved in the same case, that where the deed was directed to be enrolled in a particular court, it. must be enrolled in that court. 4. The Duke of Albermarle made his will in 1675, and thereby gave a great part of his estate to the Earl of Bath. In 1681, he made a deed of settlement, whereby, though he varied in several particulars from his will, yet he limited the greater part of his estate to Lord Bath. In this settlement the duke reserved to himself a power of revocation, by any deed or writing, to be executed by him in the presence of six or more credible witnesses, three whereof to be peers of the realm. In 1688, the duke made another will attested by three witnesses only, whereby he revoked this settlement, and gave a great part of his estate to Mr. Monk. Upon the duke's death, Mr. Monk brought a bill in Chancery, to set aside the settlement, and establish the will; and it was insisted on his behalf, that although the will might not, in strictness of law, be a revocation of the deed of settlement, the circumstances required not having been pursued, either in the number or quality of the witnesses; yet as it was made with great deliberation, (it being in proof that the draft was not completed till six months after instructions had been given for preparing it, and that Lord Ch. Justice Pollexfen's opinion was taken upon it,) it ought to be deemed an effectual revocation in equity, although the circumstances required had not been strictly pursued; as they were only prescribed to prevent surprise; and it was evident there was none in this case. But it was held by Lord Keeper Somers, the two Chief Justices, Holt and Treby, and Mr. Baron Powell, that the latter will was no revocation of the former settlement, either at law or in equity; for in all cases of revocations merely voluntary, all the circumstances required by the deed creating the power, must be strictly pursued; and there was no precedent of any case in equity, in which the Court had given any aid, where both parties were volun teers. 5. Husband and wife settled the wife's estate to Dormer v. the use of themselves for their lives, remainder to Thurland, their first and other sons in tail male; with a power 506. 2 P. Wms. 2 Vent. 350. to the husband "by his last will, or any writing purporting to be his last will, under his hand and seal, attested by three or more credible witnesses, (if he should die before his wife, without any issue between them then living,) to charge the premises with any sum or sums of money, not exceeding 20007. to be paid to such persons as he should appoint." There was no issue of the marriage; and the husband, by his last will in writing under his hand, attested by three witnesses, but not sealed, reciting his power of charging the premises with 2000l., disposed of the same among his relations. One of the questions in this case was, whether this will, not being sealed, was a good appointment under the power. Lord King was of opinion that the will being duly, executed, was a good appointment; but directed, for the satisfaction of the parties, as it was a matter of law, that it should be referred to the Judges of the Court of King's Bench; and it was by them held, that the will was void as a charge, for want of being sealed. The opinion of Lord King was founded on an idea that the words, under his hand and seal, referred only to the sentence immediately preceding; viz. or any writing purporting to be his last will; and not to the words, by his last will: so that the power might be executed either by a will duly attested according to the statute of frauds, which does not require a seal; or else by a writing purporting to be a will, under his hand and seal: but the Court of King's Bench was of opinion that the words, under hand and seal, referred to both the preceding sentences. 6. In the case of Sayle v. Freeland, which was prior to that of Dormer v. Thurland, the Court said, that equity would help in the execution of a power, in |