1835. Doɛ dem. But, besides, it is not necessarily to be taken that what relates to the wood and underground produce is a reservation; there are other legal reservations, besides rent, to satisfy the words "rent and reservations ;" and when the testator, in the lease of 1756, mentions wood and underground produce, he says except and always reserved out of this present demise and grant, all, &c.; and therefore if, in point of law, the matters are the subject of exception, they must be applied to the legal term used. And in The Earl of Cardigan v. Armitage (a), where Sir Thomas Danby enfeoffed the Earl of Sussex of certain closes, except and always reserved out of the said feoffment to the said Sir Thomas all the coals in all or any of the said lands, together with free liberty to sink and dig pits, &c., Mr. Justice Bayley, in delivering the judgment of the Court upon the pleadings, says, this constituted an exception; and he states the distinction between an exception and a reservation, and then he goes on to point out the effect of an exception upon the statement in the pleadings. Upon all these authorities, we are of opinion that what is said as to the wood and underground produce is not a reservation, but an exception; and then it will be necessary to consider what effect this has upon the lease. The mines, quarries, &c. need not be considered, because the lease of 1820 is, though not precisely in words, yet in substance, conformable to the lease of 1756; though, if it had stood upon the lease of 1804 alone, it might have been questionable. In the lease of 1756 the exception is, of all and all manner of timber trees, and trees likely to prove timber. (a) 2 B. & C. 197. In the two other leases of 1804 and 1820, it is, all timber trees, bodies of pollard and other trees whatsoever. By the lease therefore of 1756, the entire timber trees and trees likely to prove timber are excepted, whereas, in the other leases, the entire timber trees are excepted, but only the bodies of trees likely to prove timber; leaving therefore the upper part of these trees, from which lops, tops, and boughs might be taken, unexcepted: but then, in lieu of that, in the other two leases the bodies of pollard and all other trees, including all such other trees as are not likely to prove timber, are excepted: and one would say that, in most cases, the remainder man would be a gainer by such substitution; but we cannot say so on any legal principle, and, therefore, that cannot be acted upon. Under the terms of the lease of 1756, the remainderman would have a right to cut, take, and carry away the tops, and boughs, and shrouds likely to become timber, which he now loses ; but, though he loses that right, the lessee has no general right to do so; the right he has is, to have the benefit of those tops for fruit and shade, and he has also a right to take them for certain descriptions of repairs. A great variety of cases have occurred, and several distinctions been made, both formerly and in later times, where lands comprised in a power are demised along with other lands to which the power does not apply, or where the power is well executed as to part, and not as to the rest; or where part of the lands only is comprised in the power, as far as demised under former leases. But this principle at all events seems to be established, that, where lands are let at an ancient rent, and where the new lease grants that which was not anciently let, in addition to what was granted before, and only 3 C 4 reserves 1835. Doɛ dem. 1835. Doɛ dem. reserves the same rent that was reserved before, the power is badly executed, and the lease is void for the whole. Even where an additional rent is reserved where new land is added to the old, the lease is void for the whole; unless, perhaps, there be a distinct reservation for the new land, as appears by Co. Litt. 44. b., where it is said, "if twenty acres of land have been accustomably letten, and a lease is made of those twenty, and of one acre which was not accustomably letten, reserving the accustomable yearly rent, and so much more as exceeds the value of the other acre, this lease is not warranted by the act, for that the accustomable rent is not reserved, seeing part was not accustomably letten, and the rent issueth out of the whole." The same rule is laid down in Lord Mountjoy's case (a); and also confirmed in the late case of Doe dem. Bartlett v. Rendle (b). But, as more distinctly applicable to the present case, may be cited Smith v. Bole (c). The prebend was usually let, with the exception of all crab trees, and such like trees, rendering 177. a year; afterwards another lease was made, omitting the exception, at the ancient rent, and it was resolved that the lease was void; "for there being more let than was anciently, the trees and the profits of the trees, and the soil itself, is excepted by this exception, so as every successor cannot have the benefit of boughs and fruits yearly renewing; and the soil itself whereupon they grow is excepted: but by this new lease, the trees and profits are let and the soil itself; and so more being let than anciently, it is not within the statute of 32 Hen. 8.: and it is void by the statute of 13 Eliz., for (a) 5 Rep. 5 b. (b) 3 M. & S. 99. (c) Cro. Jac. 458. it is not the ancient rent, where there be more let than was before." The same case is also reported in 3 Bulst. 290.; but it is not there stated that the new lease was at the same rent. In note [261.] to Hargrave and Butler's Co. Litt. 44. b., a prebendary makes a lease for years, reserving the running of a colt, rendering rent. A new lease, rendering the same rent, without reserving the running of a colt, adjudged good, because, quoad this, it is neither a reservation nor exception. But if lease be of a manor, except the woods, rendering rent, and after the expiration of it there is a new lease rendering the same rent without such exception, the second lease is bad: T. 18. Jac. B. R., case of precentor of Paul's, Hale's MSS. There is, however, a case in Ventris's Reports, How v. Whitfield (a), which, if it were to be held as law, might seem to affect the generality of this proposition. A power given to the lessee and his assigns to let leases (b) for twenty-one years, rendering the ancient rents, and the assignee made a lease of the lands inter alia, at the rent of six shillings a year, which was the ancient rent. As to reserving the rent proinde, the Court said, that it might be intended that the inter alia comprehended nothing but such things out of which a rent could not be reserved; and then the six shillings was reserved only for the five acres. However, the proinde might be reasonably referred only to the five acres, and not to the inter alia, and that a distinct reservation of the six shillings might be for five acres. But in the report of the same case, Sir Thomas Jones, 110., it is said the Court thought this to be a good exception; and the 1835. DoE dem. (a) 1 Vent. 338, 339. (b) of a close containing five acres. 1835. Doɛ dem. defendant, perceiving the opinion of the Court as to the great point (a), consented, upon payment of costs, that judgment should be given for the plaintiff. The case is also reported in 2 Shower, 57., where it appears to have been argued on another point; and Jones and Pemberton Justices seemed to have entertained different opinions: and the case as reported in Ventris, it should seem, cannot be relied upon. A question, however, may arise, as to this exception, whether the lops of the trees are demised at all, or whether there is not a mere privilege vested in the lessee, by virtue of the demise, to take the lops and shrouds of the trees likely to prove timber for repairs and fuel; and then, if they be not demised, the ancient rent may be said to be reserved for the rest which is really demised. But we are of opinion that the tops of the trees likely to prove timber are demised. By a general demise of lands on which there are timber trees, without any exception, the timber trees are demised as well as the lands. It is true that the lessee has not the same extent of interest that he has in the lands; he has only a particular interest and a special property in them, and is only entitled to the mast and fruit, &c., and shade of the trees, and may also take them for repairs and fuel (subject, as to fuel, to some observations), and the lessor has the general ownership, right, and inheritance; and, if they become disannexed from the inheritance, the lessor shall have them: and, in the report of Pomfret v. Roycroft (b), Mr. Justice Twisden says, at the end of the case, which was as to the use of a pump, that "he conceived, that if the lessor cuts down (a) A different point, not noticed here. (b) 1 Vent. 44. trees |