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1821.

SMITH

V.

DOE, dem.
JERSEY.

Park J.

regard to every thing alluded to in the question proposed to us by your Lordships, the lease in question is invalid.

PARK J. I shall answer the question proposed to the judges, very shortly; because I have so fully given my opinion upon it in another place, a full and accurate report of which, in two different books, is in the hands of some of your Lordships. And meaning, in what I am to trouble the house with, to adhere to the opinion I formerly delivered, I, of course, in answer to your Lordships' question must state, that, having a due regard to the true intent and meaning of the indenture of the 2d of 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 Sept. 1803, is, in my opinion, invalid.

I proceed to state to your Lordships, as the question requires, my reasons for so thinking. But, before I do so, I beg your Lordships to believe me, when I positively disclaim the notion, that I thus give my opinion to preserve my own consistency. I have often heard eminent judges so declare; but, surely, consistency in error is no credit to the man or the judge. For one, I should never be ashamed, (and I have lately acted upon that feeling) where my understanding is convinced that I had upon some former occasion formed an erroneous judgment, manfully and fearlessly to acknowledge it and, as speedily as possible, to retrace my steps.

The objections to this lease are two: viz. that it does not pursue the power, inasmuch as a clause is required to be in every lease in these words: "So as there be contained in every such lease a power of re-entry for non

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payment of the rent thereby to be reserved," and nothing more: whereas, it is said, this lease contains a power of rentry, not generally, but clogged with two conditions, "Provided the rent, &c. shall be behind and unpaid, &c. for 15 days, and no sufficient distress can or may be had or taken upon the premises." And these two objections fall under very different considerations; but, it must be admitted, that, if either of them prevail, the lease is invalid. As to the general rules which govern the courts in the construction of leasing powers, they are all now well understood, and have been so fully explained and commented upon by some of my learned brothers, who have preceded me, that it would be a silly parade of learning, and a useless waste of the time of the House, to enter upon them: it being sufficient to state, that the intention of the parties, which is to be collected from the instrument, is to be the governing principle in the construction.

The words of the power having been read to your Lordships. "So as there be contained a power of re-entry for non-payment of the rent thereby to be reserved," it has been asked, "if a plain man were asked how he would execute such a power, what would he say?" I answer distinctly, that he would say, "insert a clause in the very words of the power, that the lessor shall have a power to re-enter for non-payment of the rent thereby reserved." I answer, that such a plain man, in my conception, would be grievously surprised to find two conditions, which he will in vain look for in the power; but which materially alter the rights of the remainder-man. The power to make leases is to be construed so as to lean neither to the one party nor the other; for the maker of the power certainly intended, that they should operate for the benefit of both : of the one by giving him the enjoyment, during his life,

1821.

SMITH

V.

DoE, dem.
JERSEY.

Park J.

of

1921.

SMITH

V.

DOE, dem.
JERSEY.

Park J.

of an estate well cultivated; of the other (viz. the remainder-man) by preventing him from coming to an impoverished one.

It seems to me, that, to contend for what is insisted on by the Plaintiff in error, is to say, that "absolute" and "conditional" mean the same thing: or, that a power clogged with two conditions, is the same thing as an unclogged and unconditional power. When this case was before the Exchequer Chamber, I stated that, if the only objection to this lease were the time given, before the lapse of which he could not re-enter for nonpayment of the rent as then advised, I should think the objection fatal. I have heard nothing since to removè my doubt. It is said, indeed, that, the indefinite article a being used, namely, a power, any power that is reasonable may be inserted. But what right have we to do this for the grantor of the power? Who has a right to insert this word? Who, if inserted, is to construe it? The court or the jury? If 15 days be reasonable, why not 20, 25, and 30? That this was never contemplated, I think, quite clear; for, whenever time is meant to be given, it is expressed, and, therefore, she must be presumed to have known, that, where she meant to give time, it ought to be expressed, lest the giving it in one case should be construed, as it is by me, that it was not intended to be given in the other. But I have said, and I repeat it, what right have we to insert the word "reasonable" into this power? If this word "reasonable" never found its way into powers, it might perhaps more fairly be argued that it was inherent in all. But, looking at precedents and adjudged cases, we do find the words "usual" and "rcasonable" sometimes jointly introduced, sometimes separately; and these words, when introduced, compel the courts to consider what are usual,—what are reasonable covenants-under such powers. If, then, it is not unusual to insert such words,

why

1821.

SMITH

2.

JERSEY.

Park J.

why are the courts to introduce them, where the creator of the power has not; and who, by omitting them, must be taken to have intended that they should not be inserted? But I am staggered by what is said in a book DoE, dem. of great authority, and to which I think the professional 'public are much indebted (a), that, if this objection were to prevail, it would invalidate nine-tenths of all the leases in the kingdom granted under powers. I can only say, such a consequence is to be deeply deplored; but it is entirely owing to this, that those who have prepared such leases have chosen to follow their own new fangled conceits, instead of using the exact words of the power conferring the right to lease upon certain terms, and upon certain terms only. This argument, that many leases will be invalidated, may be a very good one to your Lordships in your legislative capacity, on account of the hardship of the case; but cannot, and ought not to influence you when your province is jus dicere, non dare. However, if this were the only objection to the lease in question, on account of the long practice which has prevailed, as it is alleged, I might be inclined to pause before I presumed to offer my humble advice to your Lordships, that, on this ground alone, the lease would be void.

But the second objection seems to me to be impossible to be got over. I have thought much about it, both before I gave my judgment in the Exchequer Chamber, and since. I have turned it in every point of view, I have heard all that learning and ability at the bar could suggest, I have, of course, been present at all the conferences with my learned brethren, I have been most desirous to be convinced, if my opinion be erroneous; but, after all, I cannot raise in my mind a probable doubt; and, though, if the decision of your Lord

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1821.

SMITH

JERSEY.

Park J.

ships should be ultimately in favour of the lease, it will be my duty to conform to that opinion, I am, at present, bound to state my entire concurrence in this point Dor, dem. with my learned brothers, Richardson, Burrough, and Holroyd, who have preceded me. Their luminous exposition of the argument, and my own judgment in the Exchequer Chamber, which is very accurately reported, both by Messrs. Broderip and Bingham, and by Mr. Moore, and which is in the possession of some of your Lordships, render it unnecessary for me to do more, on this head, than to make an observation or two on the cases that have been quoted.

The main reliance on the other side is on the case of Hotley v. Scot, Lofft, 316. Of that reporter I shall say no more than this, (without forming any judgment of my own) that, during a long professional life of 40 years, and Lofft's Reports embracing a period of that great man's life who then presided in the Court of King's Bench, during which, as to this part of them, there is no other reporter; (for the reports of the very learned person now at your Lordships' table (a), did not commence till 1774, nearly two years after Mr. Lofft's), I never heard them quoted three times in my life. But, without any observations of this kind, it is quite clear from that report, that none of the learned counsel then at the bar, neither Mr. Dunning nor Mr. Bearcroft, neither my Lord Mansfield nor any of the judges appear to have taken the least notice of the condition as to the want of a sufficient distress, which is the very point now under consideration, and which, from the terms of the power and lease in that case might have arisen. But, it is said, there is a note of that case by Mr. Butler, taken by himself, in which it appears to have been mentioned; I have not seen that note, and, therefore, I can say

(a) Henry Cowper, Esq.

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