1821.

SMITH

JERSEY.

by reason of"

❝ on ac

due and non-payment thereon, without any subsequent definite period of time having elapsed; and whether there be or be not distrainable goods on the premises sufficient DOE, dem. to pay the arrears of the rent, and by the sale of which the remainder-man may, at his own trouble and risk, pay Holroyd J. himself those arrears. The words "for non-payment," must in this case, I think, be taken to mean the same as either, "because of" count of," or "in case of non-payment;" that is to say, when that event occurs, and the same, therefore, as if the words were on non-payment of rent. That appears to me to be the proper sense and meaning of the words; and it is also, as I think, agreeable to the object of the qualification, which is, that the party shall have the land, whenever the lessee fails to pay the rent for it. The lessee's failure or default in the performance of a duty, which it is incumbent on him to perform, is the sole ground and consideration for entitling the party to re-enter and have again the land without regard to any possibility or power, which the rent-owner may have to obtain the rent by any other means or exertions of his

own.

But it has been argued, that this qualification, in requiring a power of re-entry, is silent as to the time when it should be carried into effect; and, therefore, that it may be considered to require only, that there should be some reasonable power of re-entry for nonpayment of the rent, and that the power of re-entry reserved upon the lease in question, is a reasonable power of re-entry for non-payment of the rent, and, therefore, as much as the creatrix of the power has required. To this, besides observing that the word "reasonable" is not here used in the deed, though it is used in two other instances in giving those powers where a discretion was intended to be given, I answer, that this qualification, in my opinion, is not to be so con

sidered,

1821.

SMITH

sidered, if, upon the due and proper construction of this leasing power, this leasing power, if fully executed, would have authorized a re-entry for non-payment of rent in any case, in which such entry would not be authorized Doɛ, dem, for non-payment of rent upon the lease in question. And

V.

JERSEY.

I say, that there are cases, in which, if the power of Holroyd J. leasing had been fully executed, a re-entry might lawfully be made for the non-payment of rent, in which it could not lawfully be made under this lease.

To try whether this be so or not, suppose the right of re-entry reserved by this lease, instead of its being in its present form, had used the very words of qualification used in the deed creating the power of leasing. Suppose the lease had been," Provided that it shall be lawful for the lessors, &c. to re-enter" (or, "that they shall havé power of re-entry,")" for non-payment of the rent hereby reserved." That is an easy and obvious way of framing the proviso, and most likely to be adopted, as I should think, by a person having recourse to, and looking at the leasing power, as he ought to do, who is anxious to be secure; and that clearly, I think, would have been a due execution of the power, and under such an execution of the power, by using those words in the lease, whenever there was a default of payment, whether fifteen days had elapsed or not since the rent became due, or whether a sufficient distress was on the demised premises or not, the right of re-entry would have arisen in case the landlord had made such a demand of the rent as the law for that purpose requires so that the same construction would be given to those words, where used in the lease, as if the words had been on non-payment of rent; whereas, according to the right of re-entry actually reserved, the landlord has no such right of re-entry (though the rent is due, and has been so demanded,) for fifteen days, during which he would have such a right, under such a due execution of the power of leasing as I have above supposed, nor Oo 2 would

1821.

SMITH

ข.

JERSEY.

Holroyd J.

would he have such right of re-entry at any period of time when there was a sufficient distress on the premises, on which he might levy for his rent, though upon the DOE, dem. goods of innocent third persons; which right of re-entry he would have during all that period in the other case, and without the painful necessity of being driven, in any case, to his remedy by distress upon the goods of innocent strangers. So that he has not that right and specific remedy in lieu of his rent in those cases, under the lease in question, which he would have had under it on such a due execution of the leasing power, as I have above supposed; but a different one, and such, as in some of such cases at least, some conscientious persons would not resort to or enforce, such as enforcing the power of distress upon the goods of innocent third persons. The construction of the words in question, therefore, if used in a lease instead of being used in the leasing power, taken according to the proper and ordinary sense and meaning of the words used, would, as it appears to me, have given a right of re-entry immedi ately on non-payment of the rent. They cannot, there fore, I think, be properly deemed to have a different import and signification, when used in the leasing power, from what they would have in a lease made in conformity to that power, or that they would have, if they were used in any lease whatever. There is not only no right of re-entry given for non-payment of the rent, until a default of payment for fifteen days; but even on such default, the right given by the proviso is not a right of re-entry to possess or enjoy the land, but a right only of distress in case there be a sufficient distress upon the premises. In the forms of leases contained in Horseman's Conveyancing, in the edition that I have, I have been able to find only one that is clogged with the insufficiency of distress; all the others appear to be without it. Those leases appear to have been between the

1821.

SMITH

V.

JERSEY.

times of the statutes of William & Mary, and Geo. 2., and several of the conveyances there for securing annuities give, first, a power of distress, in case the annuity be in arrear for a given number of days, and a Doɛ, dem. right of entry and enjoyment, till satisfaction, in case it be in arrear for a larger number of days, without regard Holroyd J. to whether there be or be not any sufficient distress upon the premises. I think, too, that it affords an argument in favor of the above construction, and that nothing else can legally be deemed to have been in the contemplation or intention of the creatrix of the leasing power, when she used the words in question, than a mere simple non-payment or default of payment of rent generally, unaccompanied with any other fact or circumstance, except that which the general rule of law requires, viz. a demand. It is manifest that, where she meant any other fact or circumstance should accompany that non-payment before the right of re-entry should be given, she has expressly mentioned it; for in the second leasing power, she enables leases to be granted, though the right of re-entry be not reserved except upon a lapse of non payment for 28 days, after the time appointed for payment of the rent. And I do not see how the lease in question can be held to be valid, except upon principles of law that would have rendered it also valid, in case the creatrix of the leasing powers had, also, expressly added in the second leasing power, another ingredient besides that lapse of 28 days, namely, the want of a sufficient distress upon the premises, without both which, in addition to the mere non-payment of rent, a right of re-entry need not, in that case, have been reserved under the second leasing power.

But, in truth, the reserved right of re-entry which is now in question (whether it is to be deemed reasonable or unreasonable) is not a right of re-entry for nonOo3 payment

1821.

SMITH .

JERSEY.

Holroyd J.

payment of rent; but it is, in truth, a right of re-entry for a different thing, which may never exist, notwithstanding there is a default of payment of rent, namely, DoE, dem. for an aggregate, consisting in part, indeed, of that default, but of two other things besides, namely, a certain lapse of time, and a want of sufficient distress. It is, in reality, not a right of re-entry for non-payment of rent, but a right of re-entry for want of a sufficient distress, in case of such non-payment. Instead of giving a right of re-entry for non-payment of rent, it refers the remainder-man to the right of distress on that event, a right which he would have by the general law, even without such reference; and it gives him the right of re-entry only at a later time, for a different thing, and on a further event, viz, the want of sufficient distress.

It is not, therefore, in reality a right of re-entry for the same thing as the creatrix of the leasing power required it should be for, (and which right, as I have said before, must, I think, be co-extensive with the existence of the thing, or event, or default, for which it was given); but it is a right of re-entry for a combination of things, all of which must exist, before the right of re-entry can be exercised. And how reasonable soever it may be thought, that this qualification of this leasing power might have been given by its creatrix for the securing of the rent, instead of the qualification she has actually given to it, it cannot, I think, be substituted for the qualification, which she has actually given and required.

But it has been argued, that all this is immaterial, because of the general clause of re-entry that follows, for default of the performance of any of the reservations, covenants, &c. But it is so completely settled, both on the maxims and authorities of law, that the general clause of re-entry can extend only to cases not before specially