deeds certain technical words cannot be dispensed with in the limitation of estates. In Bagot v. Oughton1 there was a power to lease "all or any part of the premises," at such yearly rents or more as the same were then let at; and it was held that a lease of the family mansion-house and grounds, which had not been before let, was void. It was well argued by counsel," that general words in a deed are to be restrained by particular and subsequent words in the same clause," and consequently, that though the mansion-house and grounds were comprised in the power, yet that the condition that the usual rent should be reserved, excluded them. This rule, which is of undoubted authority, is an excellent criterion for ascertaining the "intention" of the parties; and we prefer this, as the ground for the decision is the last mentioned case to what Lord Mansfield proposed, namely, that "the nature of the thing" declared the intent as forcibly as the most direct words could have done. For in Foot v. Marriott, where there was the same decision," the nature of the thing" showed nothing, and yet the Court arrived at the same conclusion. In that case, there was a power to lease "all or any of the tenements devised" under the rents then reserved, and it was held that a tenement not in lease could not be let under the power. The rule which we have recommended also justifies the contrary decision in Goodtitle v. Funucan.5 There the power was to demise "all or any of the manors, fisheries, messuages, lands, tenements, and hereditaments thereinbefore mentioned, so as there was reserved so much rent or more than was then paid for the same." A certain manor and fishery of very trifling value, had never been demised before, and they were included in a lease with lands, at a rent which exceeded the former rent of the lands and the annual value of the manor and fishery, and the lease was supported. Here we see, that the manor and fishery, being expressly mentioned in the power, were the particular, and the condition as to the

1 8 Mod., 249.

2 Generalis clausula non porrigitur ad ea quæ specialiter sunt comprehensa.— 8 Rep., 118 b.

3 Doug., 573, 574.

43 Vin. Abr. 429, pl. 9. See, too, Pomeroy v. Partington, 3 Term Rep., 665.

rent to be reserved was the general, so that our rule required the decision which was made. But in order to provide for such cases as Goodtitle v. Funucan, C. J. Holt, in a former case, propounded the following rule:-"If a man hath a power reserved to him of making leases of two things, and a qualification is annexed to the power which cannot extend to one of these things, he may make a lease of that thing without any regard to the qualification." But this as a general rule is not true, for it is inconsistent with several cases. But Sir Edward says, there are cases to which it ought to be applied, as, "if in a power to lease estates, including mines opened and unopened, a clear intention appears to embrace all the mines; but a clause is added, that no lessee shall be made dispunishable of waste; there to effectuate the general intention of the power, the latter clause should not be deemed applicable to the unopened mines." Admitting the premises of our author, we have no difficulty in coming to the same conclusion, but his own statement shows that Lord Holt's rule is of no use in the matter; for if there be the "clear intention" required, it is easy to say that the general clause as to waste which follows many particulars, shall not shut out any expressly included.

If mines, as well opened as unopened, be included in a power to lease, it is clear that they may be demised notwithstanding any general qualification against waste. But the difficulty is, supposing that in a settlement of estates comprising mines of both kinds, the power of leasing is expressed in general terms, "all or any of the premises," and there be a clause against waste, can any mine be demised? We know that Campbell v. Leach has decided that in such a case open mines may, but then it should be observed, that the mine in question was in lease at the time of the settlement, and that it was stated, that the mine would be ruined if discontinued, and that it was a material and most valuable part of the estate, so that taking away the open mine, then being worked, out of the leasing power, would have been to have taken away the kernel, leaving only the shell. Mines were not mentioned in the leasing power, but as they were then a

1 Vol. ii., 351,

2 Amb. 740.

substantive possession, and were not excepted together with the mansion-house, which was excepted, the implication was strong, that they were intended to be included. We should therefore, perhaps, not consider Campbell v. Leach as an authority that open mines may in all cases be demised under the common leasing power. Certainly the clause against waste is not an obstacle, but consider “the nature of the thing." The power is to let for twenty-one years at the best rent. Does not this imply that at the end of the term the thing demised will remain, otherwise the power is to sell and not to lease: and we know that within the term a whole seam of coal may be even wrought and burnt. Without a clear expression of intention we should not say that the tenant for life may pocket the inheritance. True it is, that any tenant for life may work open mines for his own advantage, but this the law gives him, and we should not hence imply that he can make a lease to bind his successor. Again, the reservations in a lease of mines are not properly rents; they do not issue out of the thing demised, as fruit annually renewed; they are in fact parts of the corpus; "something analogous to rent' is the utmost we can say of such reservations. What would be thought of a lease of woods and plantations, with power to cut down and carry away the same for twenty-one years, reserving the best rent? And yet such a lease seems quite as reasonable and as consistent with the usual power as a lease of mines, even if the same be open. The special circumstances of Leach v. Campbell-in which case, too, it may be remarked, there had been a great outlay on the part of the tenant-were sufficient to justify the decision, but we cannot say that it establishes a general rule. And we think it clear, that unopened mines cannot be demised under the common power of leasing, unless they be expressly mentioned; but, of course, if the tenant for life be without impeachment of waste, he may grant a lease during his own life, and the lessee would be entitled to remove the colliery fixtures as against the remainder-man.

Sir Edward Sugden adverts to the recent cases which have been decided, as to the validity of the usual powers of sale

'Vol. ii. 351.

and exchange in settlements of real estate, which we discussed in our 14th volume, p. 369, et seq. Our author says, "the general point is set at rest, but it may still be a question during what period the power is capable of being exercised;" he then quotes the observations of Mr. Preston (who seems to state correctly, that during the estates for life and in tail, the power may be exercised,) and proceeds,—“ the point is not without difficulty. The power, although unlimited as to time, is good for the lives of parties living at the date of its creation; and it may be now that the power might be held further to exist for twenty-one years from the death of the survivor of the lives. Where the power is to be exercised by or with the consent of a tenant for life, that is of itself a lawful limit, and so far is good. If the power proceed to authorise the trustees, after the death of the tenant for life and during the minority of tenants in tail, to sell or exchange, that might be deemed good pro tanto, that is, during the twenty-one years from the death of the tenant for life. If the Court should go further, the power might travel through generations. If it might be exercised legally against a tenant in tail, though really for his benefit, it would be on the ground that the tenant in tail might bar the power if he pleased, and although he could not do so during his minority, when, if at all, the power would be exercised against him, yet an executory limitation or shifting use after an estate tail is open to the same objection, for the event may happen during the minority of the tenant in tail, and before it is in his power to bar the entail, and yet long after the legal limit to such limitations, if they are not preceded by an estate tail. It would be difficult to distinguish the cases. .. It is not improbable that the power may be sustained throughout its whole range. There appears to be principle and authority sufficient to support such a decision." In these concluding words we entirely concur, and we regret Sir Edward should have proceeded so long in a doubting strain before he arrived at them, and yet without advancing a single argument against the validity of the power except the expression which fell from Lord Eldon in Ware v. Polhill, a totally different case, "that the power might travel through generations.” Of course it might, but so may an estate tail, and yet it is not

said that that estate is void as tending to a perpetuity. We regret Sir Edward has not gone a little deeper into the subject, for he seems only to have skimmed the surface currente calamo. We think it will be found that there is no objection to a power on the score of perpetuity, unless it may, proprio, vigore, prevent the absolute alienation of an estate for a longer period than a life or lives in being and twenty-one years after. Any obstacles to alienation which may arise from infancy, lunacy, or other incapacity, cannot be charged against the power. A perpetuity is thus defined by Sanders, 1 Uses & Trusts, 196, “A future limitation, restraining the owner of the estate from aliening the fee simple of the property, discharged of such future use or estate, before the event is determined, or the period arrived when such future use or estate is to arise. If that event or period be within the bounds prescribed by law, it is not a perpetuity."

We have thus commented freely on several portions of the celebrated work before us which seem erroneous or defective, and it is now time that we should give an opinion as to its general character. Its great and distinguishing praise undoubtedly is, and it is no mean praise, that it is what it professes to be, a "Practical Treatise." It collects and analyzes and states, with admirable precision and accuracy, the results of every important case found in our books respecting powers,-how valuable this is to every practitioner we need not say so that though it ought not to be thought to supersede the reports themselves, it may be safely used as a master-key to open out their treasures. The leading defect seems to be an insufficient development of the principles involved in the several doctrines discussed: but admitting the work to be deficient as a scientific production, it will be accepted by every candid and intelligent member of the profession as a large instalment towards payment of the debt which its very learned and distinguished author has been pleased to acknowledge.