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Wilson not to the original lessor. ,In Lane's and Belcher's Cases it •• was allowed, that if a power be substantially executed, it is
Swell. sufficient. As to the charge of fraud; 1st, Constructive:— Which is not usually the object of this Court. And in Chancery, nothing more usual than to establish such leases granted by bishops and other tenants fcr life, for. their own and their family's use. 2dly, Actual:—The Master of the Rolls could never mean that both leases should subsist together, but that of 1755 should be extinct. As to the antedating, both were prepared at the same time, but one by accident overlooked.
Lord Mansfield, C. J.—If the lease being in trust for the Master of the Rolls makes it fraudulent, both that in 55 and in 62 are bad. How was the original cotemporary exposition of this law? Mr. Verney's, I know, were in trust. I remember, on the death of Sir J. Jekyll, a dispute arose between his representatives and Mr. Verney. The act says, they shall make no new or concurrent lease, &c. Sir J. Jekyll, construed or to be and, and made new leases (not being concurrent) for forty-one years: Verney litigated the point, and what was the result? Did not Mr. Verney reduce these illegal leases to what might have been legally granted, as is the rule in the Court of Chancery? Another point is, Whether the surrender of the lease in 1755, merely to effectuate that in 1762, shall operate to destroy the first lease, if the second lease is bad in [ *621 J itself, and there*fore not capable of being effectuated? Is this meant to be seriously supported? But, 3dly, Whether the lease in 1762 is not bad, after the lease of 1755, as being too soon, is the material point to be considered on another argument.
In this present Michaelmas Term, Norton, for the defendant Sir Thomas Sewell, argued—This is not a power arising out of the dominion of the former owner, nor founded on any meritorious consideration, but merely to make the Master of the Rolls live after his death for a limited time. Such powers are odious in law, and are considered as siricti, nay strictissimi juris. I shall first consider the lease of 1762, which I contend to be (not void as against the grantor, but) voidable as against the successor; because, 1st, Made, while the lease of 1755 was in being, which had more than seven years to run. 2d, The Legislature considers new and concurrent leases to be different; and orders, that neither shall be made till within seven years of the expiration of the former lease. 3d, Otherwise surrenders might be made every year, and the office be left covered with leases. No Master of the Rolls, till Sir Thomas Clarke, has thought proper to act the part he has done; and contemporary exposition is a strong argument. Sir J. Jekyll thought, that under the act he had a power to grant new building leases for forty-one years, if necessary, and did so. This question was disputed between his executors and Mr. Verney, and it was decided by the ablest authority (on a private reference), that the power once exercised could not arise again. Mr. Verney voluntarily and honourably confirmed the leases for twenty-one years. All persons then saw that these powers ought Wilson
to be strictly construed, though Sir J. Jekyll was certainly Sewell. within the original reason of the act. *It is objected, that the
surrender of the lease in 1755 substantiates that in 1762, and [ *622 J being one transaction, though by different instruments, the Court will construe them as one conveyance to effectuate the intent of the parties. The answer to which is,—when the lease of 1762 was made, the intent was not to have surrendered, but to have suppressed that in 1755. Mr. Verney's lease is recited as the only subsisting lease: The surrender was an afterthought. No such intent therefore existed on which to ground such a construction. The lease of 1762 was therefore void at its granting, and cannot be made good by a surrender made two years afterwards and antedated. If a testator means a strict settlement, and uses words which give an estate tail, the Court will not do violence to the rules of law; Colson and Colson (h). Next I shall consider the lease of 1755. This was certainly good when made: But it does not now subsist; not only by the actual surrender, but by the acceptance of the new lease in 1762. Herein I shall not militate with the argument hinted at by the Court, that the surrender of 1764 shall not destroy the lease of 1755, if it does not substantiate that of 1762. For I allow, that it substantiated it as against Sir Thomas Clarke the grantor, but that it is voidable by the successor. And that by acceptance of a new voidable lease, an old good lease may be surrendered, extinguished, and gone, is the doctrine of all our books; Dyer, 140, pi. 43; Moor, 636; Cro. El. 874; 1 Inst. 218 b; Aleyn, 59; Dyer, 280, pi. 13, and especially, Plowd. 107 b (i).
Morton, for the plaintiff.—The intent of the act is to enable the Master of the Rolls to grant such leases as might induce tenants to rebuild or repair. New or concurrent are synonymous. Every new lease is concurrent, unless the old is totally expired. The lease of 1740 was the true substantial lease in being when that of 1762 was granted. After that had run fourteen years, the Master * of the Rolls might let leases every month. [ *623 } This is the legal and formal exposition of the act. The true intent of the act is, that the Master of the Rolls might at all times set up to sale the beneficial interest of the office for twenty-one years. He is empowered to bind his successors for that period, and this lease does no more. There is no prohibition, that the tenant shall not make nor the Master accept a surrender. If so, the Master might be prevented from benefiting his successor by accepting an absolute surrender. Where a devisee for life with power to lease for twenty-one years grants such lease, and at the end of twenty years grants for twenty-one from the making, it is good; 1 Leon. 147-8. Under the disabling statute 13 EHz. (k) concurrent leases were good. Stat. J 8 Eliz. (I) prohibited them, unless within three years of
(A) 2 Stra. 1125, 2 Atk. 246, Fearne, (i) See Bac. Abr. Leatei, (S) 3, p. 212.
C. R. 161. (*) CIO. (I) C. 11.
Wilson fae expiration, or on surrender of the old lease. New leases, Sp.weli. at seven years' end on surrender of the old, is every day's prac
< v 'tice. Thus, supposing Mr. Verney's lease to be in being, any
other leases granted after the effluxion of fourteen years would be good, if not for longer than twenty-one years from the making. As to the inference drawn from the operation of the new lease of 1762, as a legal surrender of that in 1755; so as that the lease of 1755 is at all events determined, .and yet shall be set up in the same moment to destroy the same lease of 1762: This is so harsh a construction, especially too coming from an equitable quarter, that to state it is a sufficient answer.
Yates, J.—As the ground of implied surrenders is the transfer of the possession back from the lessee to the lessor; Qu. whether that will hold in the present case, so as to make the acceptance of the lease in 1762 a surrender of that in 1755; since Mr. Verney's lease, which carried the possession, was still in being?
Norton, in reply.—Where a person takes a subsequent interest that is not consistent with his former, that is a tacit reI * 624 ] signation of the first: * more especially if by indenture, for that works an estoppel. And wherever an interest, either in possession or reversion, meets with a larger, as in the present case the term meets with the inheritance, it merges and drowns the less: And this principle holds equally, whether it be an estate in possession or expectancy. The custom of taking surrenders under the stat. 18 Eliz., in order for renewals, is the strongest argument that can be for our side of the question. The words of that statute are, that no concurrent lease shall be made, unless the lease in being (which does not signify the lease in possession, but any lease that any how subsists) shall be expired, surrendered, or ended, within three years. Had the same words been repeated in this statute, they would have given the same power. But it stops at the word expired, and purposely omits the other words. That this attempt was never made before is a strong presumption, that it is not according to the intent of the statute; and even a Court of equity would admit of a strict construction to set aside such an attempt.
Lord Mansfield, C. J.—There are two questions, 1st. On the subsistence of the lease of 1755: 2d. On that of 1762. 1st. I never had a doubt, but that if the lease of 1762 was bad, that in 1755 would be good. It is contrary to all principles of law and logic to suppose otherwise. The surrender is merely to effectuate the new lease. If the foundation fails, the implication ceases with it. As if a woman surrenders her jointure to make a tenant to the prcccipe, and takes back an estate for life; if the recovery fails, she shall have her jointure again. When one surrenders a good lease, and takes a void one, it is determined in Lloyd and Gregory, Sir W. Jones, 405 (m), that the original lease remains. 2. But if the lease in 1762 was good, the whole question is at an end. And I think it is. It
(m) See ante, 578.
is objected, 1st. That letting it to trustees for the lessor is a Wilson fraud upon the power. That is a question merely * between '•
the parties. It is just the same thing as betwixt the lessor
and the successor (»). The practice of the office for 100 years [ *625 ] accordingly is a sufficient justification. Next, as to the construction of the act of Parliament, I inclined for some time to think, that new meant a distinct thing from concurrent. That the Legislature, though it never meant to forbid all new leases, till after fourteen years from the making the old one, as in case of forfeitures, &c, yet meant to forbid renewals till fourteen years were expired. But on consideration I am fully satisfied, that this is not the true construction. In 12 Car. 2, a number of acts were subsisting, which gave leasing powers to tenants in tail, husbands and ecclesiastical bodies. The law of these was well known. Powers in marriage settlements to make leases were also very well known. In none of these powers, was there ever any restriction of renewals. Many advantages may result to the estate itself from the power of renewal. It is not therefore to be imagined that, if it had been meant to check the power of renewal in this instance, it would not have been done by express words. As to the estate itself, which consists of buildings wanting continual repairs, it had been imprudent and unwise, that the tenant should never prolong his term till fourteen years were expired: It would be ruin to the estate, and force the master often to rebuild, as Sir Joseph Jekyll did. Now, as to the words—New or concurrent are synonymous, and mean concurrent only. For what is a new lease with reference to a lease in being, but a concurrent one? The Legislature itself makes use of one word only (new) to signify both in the latter part of the same sentence. If an original lease may be surrendered, and a new or concurrent one granted, the concurrent one may likewise be surrendered and a new one granted. And therefore I think the lease in 1762 to be a subsisting one, and consequently that in 1755 to be gone.
Yates, J., of the same opinion.—*The cases cited, where [ *626 ] both leases have failed, have in general been, where a man quits a prior good one and accepts a defeasible lease. But where the second is void for want of power in the lessor to grant, as would be the present case, if the lease of 1762 were bad; there the law is otherwise; Hutton, 104, Watt and Maydwell. But it is clear, that the lease of 1762 was a good surrender of that in 1755; because the lease in 1762 was a good one. My doubt concerning implied surrenders is warranted by law. A concurrent lease can only be surrendered by operation of law, and not by deed, Co. Litt. 338; because there is no reversion in which it may drown: So that the surrender of 1764 was useless. The lease in being is only that in possession: a concurrent lease is not a lease in esse. It operates only by estoppel: It passes no interest during the former lease. The stat. 18 Eliz. meant to restrain leases in reversion; therefore,
(n) Sugd. ou Powers, 569; see Taylor v. Horde, 1 Burr. 60, 1 Ld. Ken. 143.
by lease in being, the Legislature meant a lease in possession. The present statute meant, that the Master of the Rolls might at any time fill up twenty-one years, so as there was a lease in being that had run out fourteen years. By the lease of 1762 the office is not incumbered with more than a twenty-one years lease. After fourteen years were expired he has full power to grant any concurrent leases. The view of the Legislature was to protect the office from too long a concurrence of leases. 1 Leon. 148(o); tenants in tail may make leases for twenty years from Michaelmas next, though the stat. 82 Hen. 8, says, twenty-one years from the making; because it does not exceed the time. S. P. as to Bishops' leases, under 1 Eliz., Moor, 107; 1 Lev. 147.
Aston, J., of same opinion.—The acceptance of the lease in 1762 was a good surrender of that in 1755, under a tacit con[ *627 J dition that the lease in 1762 was a good one. * During the last seven years of Mr. Verney's lease, the Master of the Rolls had a power to grant as many leases as he pleased, and as often.
Hewitt, J., of same opinion.
Judgment for plaintiff, on the lease of 1762; for the defendant, on the lease of 1755 (p).
Being indisposed the whole Term I did not attend the Court.
When, and in what cases, an assignment of a bill of lading by a factor,transfers the property of the goods before their arrival.
Wright, Assignee of Scott, V. Campbell.
S.C.i Burr. 2046.
AN action of trover for some wheat and beans, a special case was made: viz. 2 June, 1766, Lewis Fontaine shipped the goods, value 400/, from London to Liverpool, to be delivered "to order or assigns," and took two bills of lading. Fontaine indorsed one of the bills to Richard Swanwicke at Liverpool, or his order: who, being arrested for debt, applied to Richard Scott, another creditor of his for 800/., who had dealt with him in bills and notes, to become bail for him. He consented, on condition that Swanwicke gave him security, not only for the