CHAP. V.
SEC. IV.

be then due and unpaid, together with all costs and expenses (if any) attending any non-payment thereof respectively, and after all the aforesaid principal and interest monies, costs and expenses, shall be wholly paid and satisThird to pay fied, Then in trust to pay over the residue or surplus of the said trust-monies, to arise by the means aforesaid, unto the said [mortgagor], his executors, administrators or assigns, for his and their own benefit.

residue.

CHAPTER VI.

OF LEASES.

a lease.

Persons seised of an estate in fee-simple, or of an Who can grant estate per autre vie (as lessees for lives under bishops, &c.) being of full age and sound understanding, may grant leases for any term less than the interest they have in their respective lands; and the lease may commence from a day that is past, or from a day to come, differing, in this respect, from a freehold, for though a term of years may be created to commence at a future day, a freehold cannot.

The parties must be described in the same manner as The parties. in other legal instruments (that is) by their christian

and surnames, rank, profession or business, and place of residence.

deration.

A lease, as well as any other deed, must have a good of the consiand sufficient consideration expressed or implied, otherwise it will be invalid, and will enure only to the use of the lessor. A rent reserved is a sufficient consideration; but it is proper to express that the lease is granted as well in consideration of the covenants as of the rents, because, in some cases, what is covenanted to be done by the lessee, is of greater value than the rent ;-for instance, covenants to repair or rebuild houses, to enclose and cultivate lands, and to drain them, &c.

The operative words in a lease are "demise and to Operative "farm let."

words.

CHAP. VI.

SEC. I.

Parcels.

Where there is contiguous or intermixed property of the lessee, the parcels should be carefully described in the following, or some such terms (that is to say), " All "that messuage or dwelling house, situate in the township of S, in the said county, with the barns, byers, "stables and other out-houses, and the orchard and garden to the same belonging, and now in the occu

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pation of A. B, as tenant or farmer thereof, to or "under the said [lessor], and all those several closes or "parcels of ground, situate in the township of S, "aforesaid, to the said messuage or dwelling-house "belonging, or therewith occupied, commonly called or "known by the several names, and containing, by esti"mation, the respective quantities hereinafter men❝tioned (that is to say),—Eastfield, containing, &c. All "which said closes or parcels of land are now also in "the occupation of the said A. B, Together with all

ways, rights and appurtenances whatsoever to the "said demised premises belonging.” Where a detached farm is to be leased, it may be sufficient to describe it thus :-"All that messuage or dwelling"house and farm, and the closes or parcels of ground "to the same belonging, or therewith occupied, situate "in the township of S, in the said county, containing, "by estimation, acres, &c., and now in the "occupation of the said together with all "buildings, ways, rights and appurtenances to the same "premises belonging." The words "be the same more " or less," should always be added to the specification of the quantity, for a lessee would be entitled to recover damages if he paid rent at so much per acre, and it should turn out, at any subsequent period, that the number was overstated.

CHAP. VI.

SEC. I.

If any plantations, grounds or ways, are to be reserved to the lessor, they should be excepted immediately after Exception of the general words "together with, &c." at the end of plantations, &c. the parcels; but care must be taken that any particular field or building, intended to be wholly excepted, be not expressly granted; for if any thing wholly granted be afterwards wholly excepted, the exception is void.— As, if a man grant his house and shop (excepting the shop), the exception is void, the shop having been expressly granted; but if a man grant his house (excepting the shop), the exception is good, for the shop, in that case, passed as part of the house, and an exception out of the generality of the grant is good. The Right of huntrights of hunting and shooting are sometimes reserved ing, immediately after the parcels, but it seems more proper to secure them by a covenant from the lessee, that the lessor shall be permitted to enter upon the premises for these purposes. If there were no exception or covenant to this effect, the lessee might bring an action against his landlord, if he entered in order to sport; but a jury would give nominal damages only, in case no injury was done to the crops; such nominal damages, however, would carry costs. A right of way may also be Right of way. reserved to the lessor, by the tenant's covenant, in the

latter part of the lease, which seems to be the better
way; but if the lessor wishes to reserve to himself the
soil and property of the way, that he may repair it
himself, the land, and not the right of way only, should
be excepted out of the demise. In such a case, the
exception may be in these words,-" except, and always
"reserved out of these presents, and the demise hereby
"made, so much and such part of the said close and
"field, called
as is now used as a road from

CHAP. VI.
SEC. I.

to

and the soil and ground of "the said road, with full and free liberty, from time to "time, and at all times, to do every necessary act for repairing and preserving the said road in good order " and repair"

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If a road have not been already formed, then except the part through which the road is intended to lead, in some such words as these,-" except and always "reserved out of these presents, &c. all that piece of ground, situate at or near the middle of the field, " called which is now marked out and distinguished from the residue by stakes, which said excepted ground extends the whole length of the said "field, from east to west, and contains, in breadth,

66

twenty feet at the east end thereof for the length of "two hundred feet, and twenty-five feet in breadth for "the residue thereof,"-adapting the description, of course, in every instance, to the circumstances of the case. It will be proper to make holes where the stakes are placed, when the ground for the road is set out, and to cause the workmen and agents to pay particular attention to these boundaries, in order, if they should be destroyed or effaced by the tenant, that there may be evidence to ascertain the excepted quantity. If no boundary stakes or stones be placed, the exception may be in these terms,-" except and always reserved, &c. twenty feet at the middle part, or as near the middle part as may be, of the said close called

"for the whole length thereof, from east to west, for "the purpose of forming a carriage road, to lead from "the mansion-house of the lessor, with such right of as well on foot

passage to and for the said

,

" and on horseback, as with carts, carriages and horses, "in, to, through, over and along every part of the same