1821. SMITH V. DOE, dem. evidence therefore admitted at the trial, the Plaintiff in error humbly contends, was properly admitted, and the result drawn by the jury a matter of much weight in the consideration of this case. 6th. If the terms of the power be such as to leave the terms of the proviso unfettered by positive direction, there seems little reason to quarrel with the extent of the indulgence, in point of time granted to the lessee; and such has been the concession throughout the argument of this case. Much more fault has been found by the latter qualification of the proviso, by those who have argued for the Defendant in error, viz. with that part which restrains the right of re-entry, to the case where no sufficient distress or distresses may be had or taken upon the said premises. The reasonableness of this qualification, as applied to the particular rents reserved in these leases, and the nature of the property leased, has been already pointed out: in addition, however, to those reasons, it is to be observed, that the statute law of this land has not only spoken the same language, plainly and intelligibly, but it may be doubted whether it has not restricted all lessors from exercising any right of re-entry not guarded by this reasonable qualification. The 4th Geo. 2. (a) provides, that as often as it shall happen" that one half year's rent shall be in arrear," the lessor "shall and may," without any formal demand or re-entry, serve a declaration in ejectment for the recovery of the premises; and in case of judgment against the casual ejector, if it shall be made appear to the Court that half a year's rent was due before the declaration was served," and that no sufficient distress was to be found on the demised premises," and that the lessor had power to re-enter, then (a) c. 28. s. 2. he It he shall be entitled to judgment and possession. the 1821. SMITH V. DOE, dem. 1821. SMITH บ. DOE, dem. the law and no more: if it be applicable only to cases. under the statute, then, by analogy thereto, this leasing power is reasonably executed, being qualified in its execution by what the law of the land has deemed reasonable, and being, from the terms in which it is penned, open to such qualification. R. GIFFORD. The Defendant in error submitted that the opinion and judgment of the Court of Exchequer-Chamber were right, and according to law, and that the same ought to be affirmed, and the original judgment in the Court of King's Bench reversed; for the following, among other REASONS: 1st. Because the leasing power in the marriagesettlement of 1757 (a power granted by a person having the absolute dominion of the fee to a purchaser of a life-estate) expressly requires that the lease shall contain "a power of re-entry for non-payment of the rent thereby to be reserved;" which makes it necessary, it is submitted, that the right to re-enter should attach immediately on the rent being unpaid; whereas the lease, under which the Defendant in the ejectment claims, postpones the right of re-entry for fifteen days after the day of payment; thus depriving the reversioner of a part of that benefit, which, by the condition annexed to the leasing power, was intended to be secured to him. If such postponement be allowed for fifteen days, why may it not be allowed for thirty, forty, a hundred, or any other number of days so great as to make the power of re-entry nearly or quite unavailing? Where is the line to be drawn? If it be allowable to deprive the reversioner of any part of that right of reentry which the creator of the leasing power says he shall 1821. SMITH บ. shall have, of what part may he be deprived? It is submitted, that only two lines can be drawn, either the tenant for life is obliged to reserve the whole right of re-entry, or no part of it. And, as it is conceived, that DOE, dem. the latter rule cannot be supported, it follows that the right of re-entry in the lease should be fully commensurate with that required by the leasing power, and that this lease is void as an execution of that power. 2d. Because the lease in question is liable to the further objection, that the leasing power requires that the lease shall contain "a power of re-entry for nonpayment of the rent thereby to be reserved;" whereas the lease contains no such power, but only gives the lord a right to re-enter for the absence of distress for rent unpaid. The meaning of the words of the leasing power is perfectly plain and unequivocal; "a power of reentry," it is conceived, means something enabling a man to re-enter, and “ a power of re-entry for the nonpayment of the rent" signifies something enabling a man to re-enter on the occasion, or for the cause of non-payment of rent; now the leasing in question certainly does not enable the reversioner to re-enter on such occasion, or for such cause; inasmuch as the whole rent for any number of years may be unpaid, and yet he may not be enabled to re-enter. See the case of Coxe v. Day (a), where this point was expressly decided. 3d. It is said in support of the lease, that the creator of the power has used very general language, that a power is required, without saying what power; and that the power of re-entry in this lease is sufficient, because it is a reasonable power, and was usual on the estate. It is true, the language of the leasing powers is general; (a) 13 East, 118. JERSEY. 1821. SMITH v. JERSEY. power so general, that only one quality is specified, which the power of re-entry is required to have, that it should be for non-payment of rent; but the creator of the DOE, dem. having exacted this one condition only, is certainly no reason why a compliance with that condition should be dispensed with. The leasing power requires that the power of re-entry should be for non-payment of rent, and it does not require that it should be usual or reasonable; why, then, should the leasing power be so construed as to dispense with the former condition, which, by its terms, is annexed to his execution, and to exact a compliance with the latter, which is not so annexed. Besides, it is not found that this conditional clause of re-entry is reasonable, or that it is usual generally; it is only found to be usual on the estate, which is not only, not the same thing as usual generally or reasonable, but may be the direct contrary. The generality of the word a (relied on in support of the lease) must certainly exclude a reference to any particular class of clauses of re-entry, such as those on this estate; as nothing can be more opposite to a general word than a word of reference. If this leasing power be construed to require the power of re-entry usual in cases of the lands comprehended in the settlement, although in this particular case this construction will operate to the advantage of the lessee, yet it may in other cases be productive of the greatest inconvenience to him. Suppose a lease under a power, in the terms of this leasing power, to be on the face of it conformable to the power, yet, if this construction prevail, the reversioner will have a right to avoid the lease, if he can shew that the clause of re-entry is different from that which is usual on the estate comprehended in the leasing power. The inconvenience to both parties will be extreme, if a lessee cannot be sure that he has a valid lease, by comparing his lease with the power, without inspecting all the leases 2 |