CASES ARGUED AND DETERMINED IN THE Court of COMMON PLEAS, AND OTHER COURTS, IN Easter Term, In the Second Year of the Reign of GEORGE IV. 1821. (IN THE HOUSE OF LORDS.) SMITH V. DOE, dem. Earl of JERSEY and Others. May 18. A WRIT of error having been brought to reverse Devisee for the judgment given in this case by the Court of life, with a Exchequer Chamber (a), the Plaintiff in error prayed her, in consipower enabling that deration of marriage, to revoke the uses limited to her, and to appoint to such uses, and with such powers and provisoes, and in such manner as was by her afterwards done, by a deed of settlement, in consideration of marriage, revoked the uses, and appointed the lands, to hold to the use, after the marriage, of her husband for life, sans waste; and after his decease, to the use of herself for life, sans waste; with remainder to divers other uses, for the VOL. II. (a) Vide ante, Vol. I. p. 97. LI benefit 1821. SMITH V. DOE, dem. benefit of the that the judgment of that court might be reversed, and the former judgment of the Court of King's Bench in his favour might be affirmed; for the following among other REASONS. 1st. Be issue of that marriage, and also of the issue of the appointor; remainder as she should by will appoint, with remainder to the use of herself in fee. The settlement contained a power for the husband and wife, from time to time, when in possession of the premises so limited to them for their lives, by indenture to demise such premises as then were leased for lives, or for years determinable on lives, to any persons, in possession or reversion, for one, two, or three lives, so as there were not thereon any greater estate or interest subsisting at any one time, than what would be determinable on the dropping of three lives; and so as there were reserved the ancient and accustomed yearly rents, duties, and services, or more; or as great or beneficial rents, duties, and services, or inore, or a just proportion of such ancient or the then reserved rents, &c. (except heriots, which might be varied at will); and so as there were contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved: and also, by indenture to demise any of the premises for any term absolute, not exceeding 21 years, in possession, and not in reversion; so as there were reserved so much, or as great and beneficial yearly and other rent and rents, and other services proportionably, as then were therefore paid and yielded, or the best and most improved yearly rent and rents that could be reasonably had or obtained for the same, without taking any fine; and so as in every such lease there were contained a clause of re-entry, in case the rents reserved were unpaid by the space of 28 days: and also, by indenture to demise any of the premises wherein or whereupon any mine or mines should be open, or any person should be willing to open any mine, for any term not exceeding 31 years in possession, so as upon every such lease there were reserved such share of the produce, or such yearly rent, as could reasonably be obtained without taking any fine; and so as the lessees were not by any express clause freed from impeachment of waste, other than in the necessary and reasonable working thereof; and so as there were inserted such proper and usual covenants for the effectually winning and working the mines, and smelting the ore, and doing other acts, as were usually inserted in leases of the like nature. The lands in the declaration mentioned had been and were leased, and were under and subject to a lease, for a term of years determinable on lives. The husband, after the marriage, by indenture, in consideration of the former lease and of 105, and of the yearly rents, duties, payments, services, articles, covenants, provisoes, and agreements thereinafter specified and reserved on the part of the lessees, demised the lands in question for 99 years, if three or either of them should so long live, paying the yearly rent of 21. by equal portions, at Michaelmas and Lady-day, with a couple of fat capons, or 1s. 6d. in lieu thereof, at the election of the lessor; and also an heriot of the best beast, or 40s, in lieu thereof, upon the death of every tenant dying in possession; and the like upon every assignment, sale, forfeiture, or alienation; and also the lessees yielding and doing constant suit of mill, paying such toll and multure as others grinding their corn there should pay. The lease contained a covenant by the lessees to pay the yearly rent of 27., and the duties, heriots, suits, services, and other reservations, at the time and in the manner limited and appointed for payment and performance of the same, or else the several sums reserved in lieu thereof; with a proviso, that if at any time the rent of 21., and every or any of the duties, services, reservations, 1821. SMITH V. DOE, dem. reservations, 1st. Because the intention of the donor of a power is to be collected from the whole of the deed whereby that power is created; from the plan and design of it as well as the words, and also from the circumstances of the property which is by him subjected to the operations of that power; and in the construction of the particular instrument executed under such power, the law will thereby reexpound it, with an inclination to preserve rather than to destroy the instrument; " ut res magis valeat quam pereat." See Cother v. Merrick (a). "It is the office of a Judge to preserve, not to destroy an estate." and payments served, or any part, should be unpaid or undone by 15 days next over, or after any of the times whereat or whereupon ought to be paid, done, or performed, and no sufficient distress or dis tresses could 2d. Because the only objection raised to the lease, under which the Plaintiff in error holds, is, that the the same proviso for re-entry therein contained is not such as is required by the leasing power under which it was granted by Lord Vernon, as not being absolute, unconditional, and capable of being enforced instanter upon every default of payment of rent, on the very day on which such default takes place; but the words of the power do not, as the Plaintiff in error submits, require a proviso for re-entry absolute, unconditional, and capable of being enforced instanter, such words being only "so as there be con- mises in decay tained, in every such lease, a power of re-entry for six months af non-payment of rent." It is undoubtedly a condition or might be taken upon the premises; or, if the lessees should leave the pre ter view had and notice given, or should commit any wilful waste, or grind their corn at any other mill (the lessor's mill being in repair); or if the lessees should assign without license, or if any default should be by the lessees made in the payment or performance of all or any of the reservations, covenants, and agreements thereinbefore on their parts contained, then the lessor, and the person to whom the freehold of the premises should belong, might re-enter. Upon the trial of an ejectment, evidence was received that the usual and accustomed form of leases of the estate contained in the marriage settlement, for lives or years determinable on lives, as well prior as subsequent to that settlement, was with a conditional proviso of re-entry similar to that in this indenture. Held, that the clause of re-entry in the lease pursued the form required by the leasing power. 2. Held, that the evidence of the former leases was well received. (a) Hardr. 93., per Parker Baron. 1821. SMITH V. DOE, dem. 66 precedent to the due execution of the leasing power, ap |