1821. SMITH V. DoE, dem. Best J. agreeable to usual form. He is made to say, "The clause of re-entry is short with words of course." It is most probable that he said, the power was short with words of course; the obvious meaning of which is, that the power was expressed in the terms commonly used in such cases, and imported that sort of clause of re-entry, which it was then the practice to introduce into leases made under powers; that, the only object of the power being to secure the payment of the rent reserved, such qualifications as the law considered reasonable and consistent with this object, were not excluded: — as the legislature had thought the landlord ought not to have any greater facility for recovering possession of the estate, than he had at the common law when there was a sufficient distress on the demised premises, the introduction of such a condition into the clause of re-entry was but a reasonable qualification. This decision is an authority to shew, that reasonable qualifications may be introduced into clauses of re-entry, when the terms of the power are general; and, also, that the qualification most objected to in this lease is reasonable. That a power expressed in general terms, is well executed by a lease containing a proviso with legal qualifications, is further proved by Dormer's case. (a) " By special consent of the parties, a re-entry may be for default of payment of rent without demand of it. And divers other cases were put where the consent of the parties shall alter the form and course of the law." Although a clause of re-entry was absolute for non-payment of rent, yet the common law superadded the qualification to that clause, that the rent be demanded on the estate demised on the last hour of the day when it was payable; and, accord (a) 5 Co. 40. b. ing to Dormer's case, the demand of the rent can only be dispensed with by special consent, or, (as it is expressed in Newdigate's case (a),) " that it shall be lawful without further demand to re-enter." If, at common law, a landlord could not recover possession against a tenant holding under a lease, containing a general clause of re-entry for non-payment of the rent without a demand of the rent, surely, when the legislature has relieved the landlord from making a demand of the rent, and substituted, in the place of that demand, the condition, that there be not a sufficient distress on the premises, the law will not allow the tenant to lose his estate, if there be a sufficient distress on it to satisfy the rent due. It will require the same express consent to exclude the condition of there being no sufficient distress since the statute of George the 2d., as was required to exclude the necessity of a demand of rent at common law. I do not mean to say that, since the statute of George the 2d., a man may not proceed at common law. My argument is, the law annexed the condition of demand of rent before the statute, and, as the statute has now dispensed with a demand of the rent, when there is not a sufficient distress, the law will annex the condition of there not being a sufficient distress to a power expressed in general terms; and, therefore, a clause of re-entry containing this condition, is not inconsistent with such a power otherwise, the tenant would not have the protection which, according to the spirit of the law, he ought to have; for, by an omission to pay the nominal rent on the day it became due, he might, without notice and with abundance of property on the land to satisfy the rent, be dispossessed of an estate, for which he had paid a large rent in advance under the name of (a) Dyer, 68. 1821. SMITH บ. DOE. dem. Best J. a fine. 1821. SMITH บ. DOE, dem. Best J. a fine. This would be making that remedy, which was intended only as a security for the rent, a forfeit trap. The decision in the Court of King's Bench, in Coxe v. Day, is supposed to establish a contrary doctrine. Lord Ellenborough, during the argument of that case, seems to have intimated an opinion inconsistent with that which I have offered to your Lordships. But, my Lords, it is not dealing fairly with that great Judge to hold him to what he threw out whilst he was forming his opinion, particularly when it is contrary to what he afterwards decided, when the case now before your Lordships was in the King's Bench. The wisest of men could not escape the charge of inconsistency, if expressions, which are dropped while the mind is struggling with the different considerations presented by conflicting arguments, are to be recorded. I know not on what ground the Court agreed to the certificate which was sent to the Court of Chancery: but, I cannot admit that this certificate is an express authority on the point now under consideration, when the case presents a ground, on which, with the opinion that I entertain on this case, I should have signed that certificate. The power in Coxe v. Day was in these words, " So as in every such lease there be contained a condition of re-entry for the non-payment of the rent reserved by the space of twentyone days." The words of the proviso were, " if the rent should be in arrear for twenty days being lawfully demanded." The words "being lawfully demanded" weakened the landlord's security for his rent, by imposing on him the necessity of demanding it on the last hour of the day on which it became due, a thing always found to be attended with difficulty, and often impracticable, and from which landlords are relieved by the statute of George the Second. Such a proviso could not be sufficient under such a power. If authority, my Lords, be doubtful, we must recur to principle. When property in lands is divided into estates for life and estates in remainder, it becomes our object to secure to the possessor all the advantages which belong to his estate. The mode of doing this is by giving to the tenant for life a power to grant leases for certain terms not determinable with his life. Unless he has this power, the estate will not be cultivated as it ought to be; much less will it be improved: and not only tenants for life, but the public would suffer from the want of such powers. In the granting these powers, care must be taken that, in granting their leases, tenants for life do not prejudice the estate of the remainderman possession of the lands must be secured to the tenant, and the rent to the landlord. Considering this as being the object of these powers, Judges, in the construction of them, will only have to consider what did the maker of the power consider sufficient to attain this object? Can any one doubt, that the maker of this power would have considered the clause of re-entry in this lease abundantly sufficient to secure the rent? But for the respect which I feel for those learned Judges, with whom I differ on this subject, I should have said, without doubt or hesitation," a clause of re-entry" means in law what these words would in common conversation, viz. such a clause of re-entry as is generally inserted in leases. That this clause answers that description will not, I think, be disputed. - That the principle, on which I found my opinion, is a sound legal principle, is evident from the following cases. In Hotley v. Scot, Lord Mansfield says, "a reentry is to enforce the payment of rent." In Wadman v. Calcraft (a), Sir William Grant says, "There is no doubt equity will relieve against the forfeiture; consider VOL. II. (a) 10 Ves. jun. 69. N n ing 1821. SMITH V. DoE, dem. Best J. 1821. SMITH v. JERSEY. ing the purpose of the clause of re-entry to be only to secure the payment of Rent; and that, when the Rent is paid the end is obtained." In Opey v. Thomasius and DOE, dem. Others (a), Twisden J. says, "powers are to be expressed according to the intent of the parties." In Goodtitle v. Funucan (b), Lord Mansfield says, "powers are now a common modification of property in land, and, as such, are to be carried into effect according to the intention of those who create them." Best J. My Lords, I shall not advert to some facts which are found by this special verdict, and on which arguments might be offered in favour of this particular case. My opinion is formed on these general grounds: Where the power is expressed in general terms, as it is in this case, reasonable qualifications are not excluded, but may be introduced into the clause of re-entry; and the qualifications introduced into this clause have been acknowledged by the legislature and the course of law to be reasonable. "A clause of re-entry" means the usual clause of re-entry, and the clause of re-entry in this lease is such as is usually inserted in such leases. I believe, that it has been so much the general practice of conveyancers to insert such clauses, that, if your Lordships were to declare this lease invalid, you would destroy the titles of a very large proportion of the landholders in the kingdom. Much of the property in the west is held by leases granted by tenants for life: I know that, in other parts of England, actions are already brought to turn tenants out of possession of those estates on the same objections as are made to this lease. Some of these actions have been brought to trial before me, and now await your Lordships' judgment in this case. (a) Sir T. Raym. 134. (b) Doug. 573. My |