a bill of exchange. Such usage is by law incorporated into the contract without any words of reference to it. Our books do not furnish many cases on this subject. There are enough, however, to satisfy us that, according to the practice that has long prevailed among conveyancers, the proviso for re-entry in this lease is a sufficient execution of the power. The existence of this practice and its being considered reasonable, account for there being no more decisions of courts on the subject. From the few cases that are to be found, the balance of authority seems to me, to incline much in favour of the validity of this lease. But the authority of the cases in favour of the lease is much strengthened by the practice of that branch of the profession of the law, who have been accustomed to prepare powers and leases under powers. The first case is that of Jones, dem. Bromefield v. Verney. (a) Sir John Cowper had been enabled by act of parliament, to grant building leases for any term not exceeding 61 years, "so as in every such lease there be contained a condition of re-entry for non-payment of rent." The clauses of re-entry in the leases granted by Sir John, were for non-payment of the rent in 42 days after the days of payment. An ejectment was brought in the Common Pleas, to turn a tenant out of possession, who held under one of these leases; but no objection was made (although it is stated in the judgment that the case was fully argued) on the ground of the qualification introduced into the lease, by the words "42 days after the day of payment." This is but negative authority, but considering the great learning and industry employed in the discussion of this case, an objection must have been raised if the law had not been considered to be settled, and, if it had not been thought (a) Willes, 169. 1821. SMITH V. DoE, dem. Best J. that 1821. SMITH ข. that the lease was sanctioned by a practice, which no argument could overturn. The next case is Hotley v. Scot. (a) The words of DOE, dem. the power were, that if the rent should be behind or JERSEY. Best J. (a) See ante, vol.i. 150. This case was quoted by Moysey in argument, before the Judges in the Exchequer Chamber, from a copy of a manuscript note of Mr. But MICHAELMAS Term, 14th GEORGE III. B. R. (This case is reported in Lofft. 316., under the name of Hotley v. Scot.) Lord Tankerville v. Wingfield and Pritchard, Upon ejectment, the case was as follows. Upon the marriage of Sir John Astley, his lady's estate was settled upon Sir John for life, with several remainders over, which never took effect; remainder to the lady's right heirs. A power of leasing was given to Sir John, such leases to be made for any number of years at the accustomed rent, to take effect immediately in possession, and not by way of future or reversionary interest; and on every such lease there was to be inserted a clause of re-entry, if the rent should be behind for 21 days; the rent to be made payable, and the reentry to be incident to and go along with the reversion or remainder. In the same settlement, there was also a power of revoking all the uses thereby declared, and appointing new. Some time after the marriage, Sir John Astley and his lady revoked all the uses of the settlement that were subsequent to Sir John's life-estate, and the powers incident thereto, and declared new There was also a fine levied to the same effect. uses. 21 September 1766, Sir John made two several leases of this date to the two Defendants, Wingfield and Pritchard, for 21 years, conformable to the power he had by the said settlement, and the other deeds and the fine, except that previous to the entry distress was to be made, and it was nearly in the following words: "That if the rent should be behind or unpaid by the space of 21 days, and no sufficient distress or distresses could be had, or if the lessee should assign over the leased premises, (except as therein is excepted) then it should be lawful to Sir John Astley, his heirs and assigns, to enter." Sir John Astley and his lady being both deceased, the estates are descended upon Lord Tanker ville, the Plaintiff, &c. Dunning, for the Plaintiff. The Court always takes a difference between unpaid for 21 days, the lessor should have power to re-enter. The condition in the lease was, if the rent between powers, when exercised by a man upon his own estate, and the exercise of powers by a man upon another's estate, or which he holds in another's right. The first are always construed favourably to the persons making use of this power; the second are taken in a strict light: here it was certainly the second. It was a power to be exercised on the wife's estates, and, in some respect, in prejudice of his wife; and, therefore, to be taken strictly. Ist objection, that the settlement declares, that the power of re-entry should be reserved and made incident to the inheritance of the estate; and, by the lease it is reserved to Sir John Astley, his heirs and assigns. 2d objection, the settlement directs the re-entry so as to be reserved as above, to be made immediately, if the rent should be behind by 21 days. By the lease it is to be preceded by demand and distress. These are strong, plain, and conclusive objections. Bearcroft, for the Defendants. The remainder man, Lord Tankerville, has, substantially, all the powers he ought to have, or can have. As to the 1st objection, the rent cannot be made payable but to those in remainder or reversion, to which it is inseparably incident. The heirs and assigns of Sir John Astley mean those, who are heirs and assigns to the estate under the settlement, by which Sir John claims the estate. should See Cother v. Merrick. (a) Te- (a) Hard. 89. hend, 1821. SMITH บ. 499 DOE, dem. Best J. 1821. SMITH v. Doɛ, dem. Best J. should be behind and unpaid for 21 days, and no sufficient distress, then it should be lawful for the lessor to hend, a sufficient answer to the objections raised against these leases; each is a verbal objection, and I have given each a verbal answer. Mr. Dunning, in reply. The distinction I set out with, and the consequence of that distinction, that these leases are to be considered in a strict light, is not denied. And, besides this claim to the favour of the Court, Lord Tankerville has that of being the heir at law of the owner of the estate, on which this power has been exercised. Lord Tankerville is neither the heir, nor the assignee of Sir John Astley, he claims by a title paramount to Sir John's. The rent is directed by the settlement to be incident to the inheritance, that is to say, to be to the several limittees of the settlement, when respectively in possession. The reservation is to the heirs and assigns of Sir John Astley. They are not limittees. This is, therefore, not a proper execution of the power. The case quoted, and the act of parliament (a) only show that, if a tenant in tail make a lease according to the statute, and reserves rent to himself and his heirs, the words ❝heirs and assigns" may be construed to be such heirs as may succeed by force of the entail. This construction can never, in the present case, take in Lord re-enter. Tankerville, who cannot, in any sense or meaning whatever, be deemed the heir of Sir John Astley or his assigns. It is sufficient to say that, in pleading, he could never be described as such. As to the words being loose, and directing what should be done, and not describing bow it is to be done, this seems a frivolous distinction. The settlement directs a clause of re-entry to be inserted in the lease; the lease says it shall not be lawful for Sir John Astley to enter as long as there is a sufficient distress or distresses to be taken. Till then, it is postponed. This is contrary to the words of the settlement, and is not, certainly, a proper execution of the power. The two Lord MANSFIELD. objections to these leases are, Ist, That, by the settlement, the reentry is to be made incident to the rent; but by the lease it is reserved to Sir John Astley, his heirs and assigns. And, in the event, it has not followed the rént, but gone to the heirs of the lessor, Sir John Astley, while Lord Tankerville is in the lawful possession and receipt of the rents. The ad objection is, that the clause of re-entry, which, by the settlement, ought to be immediate, is by the lease fettered; being on a previous demand and previous distress. As to the first, by the nature of the power, it (a) 32 H. 8. must re-enter. 1821. SMITH V. JERSEY. Best J. Lord Mansfield in giving judgment, said, ، The clause of re-entry is short with words of course, and does not preclude the operation of law a re-entry. is to enforce the payment of rent-by statute it cannot DoE, dem. be without distress." The report of this decision is very short. It is probable that it does not give us the very words of Lord Mansfield, but we learn with certainty from it, that the court decided the very point now before your lordships in favour of the lease: for the power does not contain a syllable about a sufficient distress; this qualification is introduced into the proviso for re-entry, and yet the Court upheld the lease. It is clear, also, that Lord Mansfield must have referred to some form of drawing up these powers and clauses of re-entry which were then in use, and have expressed himself, that the power and clause in that case were must go with the reversion and inheritance. The person who is in the reversion and inheritance, is he that is to enter on the forfeiture of the lease, and no one can enter but he, to whom the rent is payable; for, as Littleton says, no stranger can enter for forfeiture, for a stranger cannot be in by his former estate. If the rent had been reserved for the term, as in the case cited from Hardres, still it goes with the inheritance. Heirs and assigns can only mean those who have the reversion and inheritance; otherwise, as is said, 2 Saund. (a), they would be words of surplusage. The clause of re-entry must go with the inheritance the same as the rent, for it cannot be reserved to any body (a) 370. agreeable |