the former saying it is not beneficial to the landlord, and the latter that it is more beneficial to the successor. In Doe dem. Harries v. Morse (a) the leasing power, in a marriage settlement in 1777, provided that there should be reserved by half-yearly payments the best and most improved yearly rents. In 1783 a lease was made, reserving the rent at the feast of St. Philip and St. James (1st May), and St. Michael (29th September). The Court held the lease void (besides other reasons), because the half-yearly payments ought to have been on usual days of payment, and that it required a division of the rent as near as may be into two equal half-yearly payments, which this did not; one interval being one hundred and fifty-one and the other two hundred and fourteen days, though the usage of the country might make a different division. In this case of Doe dem. Harries v. Morse (a) Mr. Baron Bayley says, the tenant for life is not to throw on the remainder-man, without his sanction, the uncertainty of the chances which may turn out to his prejudice. Amongst all these conflicting authorities, it is very difficult to come to a conclusion on this part of the case it is not however necessary to do so, because there is another ground upon which we are enabled to give judgment. Another objection is, that the lease of 1756 gives a power of re-entry if the rent be in arrear twenty-one days, whereas the leases of 1804 and 1820 give the right of entry after twenty days: the latter provision is more beneficial to the remainder-man. Another objection is, that, in the lease of 1756, the VOL. II. (a) 4 Tyrw. 185. S. C. 2 Cro. & M. 247. 3 C right 1835. Doɛ dem. 1835. DOE dem. right of entry is, if there be no "overt" distress on the premises, which word "overt" is omitted in the two leases of 1804 and 1820. But we think that this is not a valid objection: the law recognises a difference between a pound overt and a pound covert; but, as to a distress, the law does not affix any meaning to the word overt. Is overt to be confined to what may be seen by walking over the lands and farm-yard, without going into any inclosed buildings? or does it extend to what may be seen by opening the outer doors of a house or other buildings? or what may be seen by opening inner doors? or by opening cupboards, chests, and boxes, which are not concealed, and have no locks? or various other shades of being less overt? So many opinions may be formed about the extent of the meaning of the word, that we cannot attribute any legal meaning to it. As to the heriots: under ecclesiastical leases, though heriots should have been reserved under former leases, it appears their omission forms no ground of objection to a new lease, because it is only rent which is mentioned in the statute: but, under the power now in question, heriots were reserved in 1756, and, consequently, the ancient reservations made in the new leases must be heriotable. The heriots are different in all the three leases. Under that of 1756 it is the best goods of William Frost, or such person as shall be in possession of the premises: under that of 1804 it is the best goods of John Lock: under that of 1820 it is the best goods of the person or persons who, for the time being, shall be tenant or tenants in possession of the premises. We by no means say that the lease of 1804 is objectionable; for, as the payment of these heriots (should the heriot reserved be refused) can only be enforced by distress distress or action, as it is not a heriot by ancient tenure or custom, but only by deed (Edwards v. Moseley (a) ), a distress may be made of the best beast of John Lock, if alive, or, should he be dead, or have parted with the premises, what was his best beast, But the lease of 1820 is, in effect, the same as that of 1756; and the only reason of omitting the name in that of 1820, to correspond with that of William Frost in that of 1756, seems to be, that the lessee in that of 1820 was not one of the lives; whereas, in that of 1756, William Frost, who was the lessee, was also one of the lives. As to the reservation of suit to the mill, the difference is, that in the lease of 1756 the lord of the manor is mentioned; and in the other, the owner of the inhe ritance: that can make no difference. To the reservation of suit of court no objection is made. The rent, heriots, suit of mill, and suit of court, are the only things which, according to the legal sense and meaning of the word, are reservations. For we are of opinion, that what relates to the privilege of hawking, hunting, fishing, and fowling, is not either a reservation or an exception in point of law; and it is only a privilege or right granted to the lessor, though words of reservation and exception are used. And we think, that what relates to the wood and the underground produce is not a reservation, but an exception. Lord Coke, in his Commentary on Littleton, 47 a., says, "Note a diversity between an exception (which is ever of part of the thing granted, and of a thing in esse), for which, exceptis, salvo, præter, and the like, be apt words; and a reserv‐ 1835. DoE dem. 1835. Doz dem. ation which is always of a thing not in esse, but newly created or reserved out of the land or tenement demised." In Sheppard's Touchstone, p. 80. "A reservation is a clause of a deed whereby the feoffor, donor, lessor, grantor, &c. doth reserve some new thing to himself out of that which he granted before:" and, afterwards, "This doth differ from an exception, which is ever of part of the thing granted, and of a thing in esse at the time; but this is of a thing newly created or reserved out of a thing demised that was not in esse before; so that this doth always reserve that which was not before, or abridge the tenure of that which was before." And afterwards, "It must be of some other thing issuing, or coming out of the thing granted, and not a part of the thing itself, nor of something issuing out of another thing." And afterwards, "If one grant land, yielding for rent, money, corn, a horse, spurs, a rose, or any such like thing; this is a good reservation: but if the reservation be of the grass, or of the vesture of the land or of a common, or other profit to be taken out of the land; these reservations are void." In Brooke's Abridgment, title Reservacion, pl. 46., it is said, that if a man leases land, reserving common out of it, or the herbage, grass, or profits of the land demised, this is a void reservation, for it is parcel of the thing granted, and is not like where a man leases his manor and the like, except White Acre, for there the acre is not leased; but here the land is leased; therefore the reservation of the herbage, vesture, or the like, is void. It must be observed, however, that, though in Co. Lit. 47. a. the distinction between a reservation and an exception is pointed out, yet in page 143 a., speaking of the word reservation, Lord Coke says, "Sometime it hath hath the force of saving or excepting. So as sometime it serveth to reserve a new thing, viz. a rent, and sometime to except part of the thing in esse that is granted." He does not, however, go on to illustrate that position; and as, only two pages before, in 142 a., he had said to the same effect as he had done in the former reference in 47 a., that " a man upon his feoffment or conveyance cannot reserve to him parcel of the annual profits themselves, as to reserve the vesture or herbage of the land or the like, for that should be repugnant to the grant," we cannot take this language of Lord Coke in 143 a. as identifying an exception and a reservation. There are, however, some cases reported, where, in the language of the Court, the word "reserve" is treated as meaning "exception," as in Dyer, 19 a. (a). That, however, is only general language; and it does not make them the same in point of law. In the very late case of Fancy v. Scott (b), the defendant pleaded that the plaintiff was tenant to the defendant of the close in which &c., subject to a reservation to defendant of all pits in the close, with liberty to carry away the produce of the pits; and Mr. Justice Bayley said it was not a reservation, but an exception, and held the plea bad; and the counsel for the defendant did not further press the argument. It may be said, however, that, if the person who creates the power uses the word "reserving" in such a way as to make an exception a reservation, it must be so taken; but we think not necessarily. Powers in many respects are construed so very strictly, that they must be so throughout. 1835. Dox dem. (a) Pl. 110. (b) 2 Man. & Ry. 335. 3 C 3 But, |