option at which of the periods the lease shall determine (d). The habendum should also express, when there are more lessees than one, whether it is intended they should take as tenants in common, or as joint tenants. When the lessees are numerous, it may be advisable to adopt the latter mode; in other cases, the former mode may be used, except in the grant of freehold interests of inheritance, where it is desirable to obviate as far as possible the descent of any portion of the legal estate upon infant heirs. In either case, however, the equitable rights of partners will remain the same; for the lessees will be only trustees on behalf of all persons having or acquiring shares in the property. The Reddendum or reservation of rent forms, in general, the consideration for the granting of the lease. It is said that a reservation of rent must be of some other thing issuing or coming out of the thing granted, and not a part of the thing itself, for that would be an exception out of the grant, and not a rent reserved (e). It would appear, therefore, that when, as is very usual in leases of metallic veins, the reservation consists of some proportion of the mineral in its natural state, there will not be strictly a rent, but an exception. The consideration in such cases will simply consist in the extraction and delivery of the part excepted to the lessor. There can be no distress for such a species of rent. No render, however, will of course be due till the mineral is severed from the land; and when that is effected the lessor may recover the proper proportion by an action either of trover or in respect of the covenants of the lessees. A bill in equity for an account may also be maintained. But a special power of distress is usually inserted in the covenants. If the reservation is of a proportion of the mineral in its smelted or manufactured state, it will constitute a legal rent, subject to the usual incidents (ƒ). (d) Dann v. Spurrier, 3 Bos. & Pul. 399, 442; Price v. Dyer, 17 Ves. 356; Doe d. Webb v. Dixon, 9 East, 16. (e) Co. Litt. 47 a, 142 a. Rents are generally payable in money in demises of quarries or open workings, and are often payable for mines. In mines of coal the render is also usually in money, and, in many instances, made to vary with the market price of the article. In the extensive coal districts of the north of England, the demise is usually made subject to an annual certain rent, and also to what is called a tentale rent. A ten is a local measure, equal in weight to about forty-eight tons and a half. The lessee pays rent at a specified rate for every ten of coals which is worked by him, till he has worked such a number of tens in the year as to make the payments in respect of them amount to the full certain rent mentioned in the demise; and after that period, he still continues to pay rent at the same rate for every ten which he may afterwards raise in the same year. Thus, the annual certain rent is payable to the lessor at all events, whether the mine be worked to the extent which would make up the rent at the rate mentioned, or not, and in fact, whether the mine is worked at all or not. But the lessee has also the right to make up the number of tens when the quantity raised has not kept pace with the rent represented by them during any subsequent period of his tenancy, without any further payment. In other parts of England, a similar system prevails with respect to coal mines. Sometimes a rent of a certain sum for every ton is payable; but in case the rent thus payable shall not amount to a certain sum in every year or part of a year, then the deficiency is to be made up by a further payment, unless the mine shall be incapable of producing to the extent which would be required for yielding the landlord's rent. The lessee is still left at liberty, during any subsequent period of his lease, to work a quantity of coal equal to the deficiency for the time being, without further payment. In other districts, a distinct proportionate part, as one-seventh, of the money realized by the sale of the coal which is raised from time to time is reserved, with such an additional sum, if required, as may always yield to the lessor a certain fixed rent, unless the mines are incapable of producing a specified num ber of tons in the week. This proportion, however, varies indefinitely, according to the nature of the operations, the supposed risk, the amount of expenditure, and the general circumstances of the case. Special renders are made for outstroke rights, way leaves for general purposes, and other privileges. The rents made payable in respect of metalliferous mines are almost invariably proportioned to the quantity of ore actually raised, and without any stipulated certain rent in money. This rent is called the duty ore, or the lot ore, or the lord's dues. It is a common practice to stipulate that the rent shall be paid in money according to the market price of the day, or by delivery of the metals in a manufactured state. Thus, in demises of lead mines the reservation may consist of a certain quantity of smelted lead and of the silver actually extracted from the ore. In all such cases, an adequate allowance is made in the amount of reservation for the expense saved to the lessor in selling or smelting his proportion of the produce. But it is a frequent practice to stipulate for the lord's proportion of mineral to be rendered when it has been washed and cleansed by the lessee, and before it has undergone any process of manufacture, by which its quality is changed. The proportion to be rendered to the lessor differs not only with respect to the nature of the metals and substances which are discovered, but also to the circumstances under which they are produced. It may be observed, that when there is a demise generally of all metals and minerals, the reservation should correspond with the different substances demised. The render is generally adapted to what is known or supposed to be discoverable in the land, but it may easily happen that, under a general demise of the minerals, other substances, besides those which may be mentioned in the clause of reservation, may be met with, and these might be worked without any profit accruing to the lessor. If, on the other hand, there was a general proportion specified for all minerals found within the limits, it might still happen that many kinds of substances would be worked with injury either to the lessor or lessees. Thus, a render of the average amount of lead duty for copper would subject the lessee to much harder terms than are usual in such cases, and the contrary would prove equally disadvantageous for the lessor. As a general rule, it may be observed, that there should be either no general demise of minerals, without providing for the proper amount of rent in each case, which, with respect to all but the leading and most valuable minerals, may be done in general terms, or the amount of rent should be such as sufficiently to protect the lessor, whatever may be the result of the discoveries. Lessees, in general, know with tolerable exactness what description of substances they may expect to meet with in the course of their enterprize, and will generally take care that these substances are included in the grant, and that the rent reserved is not beyond the usual amount. If other minerals than those anticipated by the lessor are found, although they will by the general description be in the possession of the lessee, yet if the duty payable should prove to be above the usual amount, the lessor will still have it in his power to control the proceedings of his lessees, or to receive an ample remuneration. It is proper when duty ore or metal is reserved for rent, that the lease should sufficiently express the time and manner of delivery to the lessor. This may be expressed either in the reddendum or in the covenants afterwards entered into, or in both, but it should always be contained amongst the covenants, either expressly, or by reference to the reddendum. When lands are demised with the mines, it is usual to reserve a surface rent, without reference to the mines. Next come the Covenants, by which the grant may be restrained, modified or regulated; for it is a general rule, that he who has the jus disponendi may attach any conditions to his grant which are not unreasonable, repugnant or illegal. As the law regards only the intention of the parties as expressed by their deed, no particular form of words has been held necessary to constitute a valid covenant (g). A recital of that intention even in the preceding part of the deed has been held sufficient. Thus, in a lease of a coal mine, it was recited that before the sealing of the indenture, it had been agreed that the plaintiff should have the third part dug. It was decided by Lord Chief Justice Hale, that this amounted to a covenant (h). A covenant, like a grant, in cases of doubt, is always taken most strongly against the person making it (¿). Many covenants will be implied by law, as for the payment of rent, and for the quiet enjoyment of the lessee. The covenants common to all well-drawn mining leases, on the part of the lessee are :—That he will pay the stipulated rents and the taxes-pay for all damages occasioned -cause all the minerals to be weighed-deliver periodical accounts-keep plans of the workings-allow the lessor and his agents to inspect the works-work the mines in a proper manner with special stipulations as to open pits and injuries-permit the lessor to enter-not assign or underlet without leave in writing-and give up the possession of the mines in good condition at the end of the term. In leases of coal there are special covenants with respect to leaving barriers, and securing from injury the levels and passages. The remaining intentions of the parties are usually effected by provisoes or conditions. These differ from covenants in this respect, that they are binding on both parties, and a covenant only binds the covenantor. It may often, however, (g) Holder v. Taylor, 1 Rol. Abr. 518, 1. 19, 41; Bush v. Coles, Carth. 232; Salk. 196. See Russell v. Galwell, Cro. Eliz. 637; James v. Cochrane, 8 Exch. 556; 21 L. J., N. S., Exch., 232. (h) Severn v. Clark, 2 Leon. 122. See Hollis v. Carr, 2 Mod. 87; Duke of Northumberland v. Errington, 5 T. R. 526; Saltoun v. Houston, 1 Bing. 433; Sampson v. Easterby, 9 Barn. & C. 505; 6 Bing. 644; 4 Moore & P. 601; 1 Cromp. & J. 105; Wood v. Copper Miners' Company, 7 Com. B. 906; 18 L. J., N. S., C. P., 293. (i) Bac. Abr. Cov. F. |