leases formerly granted of lands within the same estate. It is submitted, that what the creator of a power has required, must be done, for this one reason, of itself sufficient, that it is required, and that it is a much safer rule to adhere to that condition which is expressly annexed to the execution of a power by one who has all the circumstances of the property before him, and who has the right to enlarge or narrow the power to any degree, than to substitute for what he has exacted, something which it may be conjectured he ought to have exacted, but has not. 4th. Because the power of re-entry in the lease is not only different from that required by the leasing power, but much less beneficial to the reversioner. Under an absolute power of re-entry, the reversioner would be entitled to succeed in an ejectment, on proving the rent in arrear, a demand made, and the execution of the counterpart of the lease by the Defendant. Under a power to re-enter on failure of distress it would be necessary for him to prove, that he had searched every part of the premises demised, and that no distress was to be found, (Rees v. King (a),) a matter of extreme difficulty where the rent is small and the premises extensive. A conditional clause of re-entry, which may be an adequate remedy in the case of high rents and lands of small extent, becomes quite insufficient when the rent is small, as is usually the case with ancient rents, and the lands demised of considerable extent. And, as the absolute power of re-entry becomes the more necessary for the lord, in case of small rents for large property, so it becomes the less inconvenient for the tenant, who might have some difficulty, and expect some indulgence to raise a large sum, but can have none (a) Forrest, 19. 1821. SMITH DOE, dem. 1821. SMITH V. DOE, dem. in being ready with a small one. It is indeed universally true, that in order to secure a small demand the remedy should be more summary and less expensive than is requisite to enforce a large one. 5th. Because it is submitted, that the finding of the jury that the usual and accustomed form of leases of the estate contained in the marriage-settlement, was with a conditional proviso of re-entry, ought not to be taken into consideration in deciding this case. The words of the leasing power are, "A power of re-entry for nonpayment of the rent thereby to be reserved;" they contain no reference to the former practice of leasing the estate, nor is there any fact stated on the special verdict, which raises any ambiguity in them; and it is submitted, that a provision contained in a written instrument, may not be explained or construed by any extrinsic matter, except in two cases only; first, when the provision refers to extrinsic matter: secondly, when its terms contain a latent ambiguity, that is, when in consequence of some matter of fact shewn by evidence, it appears that the language of the instrument has more meanings than one, neither of which is the case with the clause in question. 6th. Because, even supposing the former practice on the estate might legally be taken into consideration, it is far from affording any inference favourable to the lease in question. It is not found that the former leases were granted under similar powers. There is nothing to shew that the creator of the power was not dissatisfied with the former clauses of re-entry, and did not insert the provision in question for the very purpose of introducing a new one, which might well be, for the reasons stated above. And this is the more probable, because the leasing power, in several instances, expressly refers to 1821. SMITH V. to the former practice on the estate, where it was intended that the tenant for life should be guided by it; there is no such reference in the clause relating to powers of re-entry; the inference is, that the practice DoE, dem. was not intended to prevail with respect to powers of re-entry. J. Jervis. W. H.Maule. The case was argued at the bar of the House of Lords on the 19th, 22d, and 26th of June 1820, by The Attorney-General and Puller for the Plaintiff in error, and by Jervis and W. H. Maule for the Defendant in error, when the Lord Chancellor proposed the following question for the opinion of the Judges: Whether, having due regard to the true intent and meaning of the indenture of the 2d July 1757, according to the legal construction of the several parts of that indenture as stated in the special verdict, and having also due regard to the legal effect of all the facts and circumstances found by the special verdict, the demise of the 5th September 1803, as the same is stated in the special verdict, is for any and what reasons invalid? There being a difference of opinion on the Bench, the twelve Judges, on the 16th and 18th of May, delivered their opinions seriatim as follows; and, on the latter day, the Lord Chancellor and Lord Redesdale delivered their opinions. JERSEY. RICHARDSON J. The case of Smith against Doe on Richardson J. the demise of the Earl of Jersey and Others, now pending by writ of error in this house, is an action of ejectment brought in the King's Bench, on the demise of Lord Jersey against Smith for the recovery of certain lands in the county of Glamorgan. These lands by indenture bearing date the 5th day of September, 1803, were VOL. II. M m demised 1821. SMITH บ. DOE, dem. demised by Lord Vernon to Smith, and another person since deceased, for three lives at a rent of 21. payable half yearly at Michaelmas and Lady-day. And Lord Vernon the lessor was at that time tenant for life in possession of the estate, whereof the lands in question Richardson J. formed part, by virtue of a settlement duly made on occasion of his marriage with Louisa Barbara Mansel, bearing date the 2d day of July, 1757. On the trial of this action, the jury found a special verdict, on which the Court of King's Bench gave judgment for the Defendant; which judgment was reversed on writ of error in the Exchequer Chamber: and the cause having been brought by another writ of error before this house and argued at the bar here, your Lordships have proposed the following question for the opinion of the judges. (Here the learned judge stated the question.) I am of opinion that the lease of 1803 is invalid, because I think it is not made in conformity with the leasing power contained in the indenture of 1757. The leasing power for that class of leases, of which the lease in question is one, requires that "there be contained in every such lease, a power of re-entry for non-payment of the rent thereby to be reserved:" and the question resolves itself into this, what is the true construction of these words? In order to decide this, I must first consider, whether the words themselves import, and convey any distinct meaning: and I think they do; I think they mean, that the lessor should have power to re-enter if the rent reserved should not be paid according to the reservation. One test, and, I think, a fair one, whether such meaning is conveyed by the words of this power, would be to insert in a lease a proviso for re-entry, expressed as nearly as possible in the very words of the power itself, and then to consider what construction a proviso so expressed would require, and whether the meaning would would be sufficiently distinct to be capable of being enforced by a court of justice. 1821. SMITH V. JERSEY. Suppose, then, in the lease of 1803, it had been provided, that it should be lawful for the lessor or person DoE, dem. entitled to the rent, "to re-enter for non-payment of the rent hereby reserved." In that case would the Richardson J. person entitled to the rent have been empowered to re-enter, if the rent had not been paid on the days of reservation? It seems to me, that he would have been so empowered; and that without any delay or condition other than the previous demand required by the common law for all that he would be bound to prove, in order to justify and enforce his re-entry, would be, that there was a non-payment on demand of the rent reserved by the lease. If this be so, it seems to me to prove that the necessity of waiting fifteen days, and the necessity of providing a deficiency of distress on the premises imposed by the proviso actually contained in the lease of 1803, are conditions not warranted by the leasing power. It has been said, that the leasing power requires only "a power of re-entry," much stress having been laid on the indefinite effect of the article A; and it has been further said, that, though such power of re-entry is to be" for non-payment of the rent," yet, that the words "for non-payment," are not equivalent to "on nonpayment," but only point at the purpose or object of the power of re-entry, namely, that of securing the payment of the rent. It appears to my mind, however, that, although the article A be indefinite, yet it cannot, in just construction, extend an indefinite meaning to the subsequent words, if they sufficiently import (as I think I have shewn they do) a distinct and definite meaning. In this sentence, the word A seems to me neither to add to nor to qualify the meaning; but, that the Mm 2 mean |