1821. SMITH ข. JERSEY. Park J. nothing to it. I entertain great respect for that gentleman, and I do not wish to depreciate the labours of the young; but, unless he be much more advanced in life than, for the sake of the public I wish him to be, DOE, dem. he must, forty-eight years ago, have been a very young man. But, admitting the point to have been mentioned, it cannot have formed a prominent feature, either in the argument at the bar, or in the consideration of the court; for, if it had, it is impossible that Mr. Lofft, or any other man, in a report of four pages should have omitted it. Can such a case, for a moment, be put in competition with Coxe v. Day (a), where this clause was the main objection to the lease, a case most ably argued at the bar by the now chief justice of that court, and receiving the deliberate certificate of four very eminent judges, Lord Ellenborough, Justices Grose, Le Blanc, and Bayley? In the course of that argument Lord Ellenborough said, "There can be no doubt, that it is more beneficial to the owner of the estate to have à power of re-entry at once upon the tenant upon nonpayment of the rent, within a certain time, than to have such a power only in case there shall be no sufficient distress upon the premises." And, in another place, when Mr. Abbott was strongly pressing on the court, that such a clause secured the landlord's object, namely, satisfying his rent more speedily than in any other way, Lord Ellenborough said, in answer. "In the one case it is to be secured from time to time by successive suits with the risk of sureties if the distress be replevied; in the other, it is secured, once for all, by the landlord's re-possessing himself of the land out of which the rent is derived.” Can any one say, my Lords, that the one remedy is not more easy, more direct, and less circuitous than the other? — and that great man (Lord Ellenborough) again VOL. II. (a) 13 East, 118. P p says, 1821. SMITH ข. JERSEY. Park J. says, "Surely the direct power is more beneficial to the landlord." And the certificate of all the learned judges is in direct conformity with these dicta of Lord DOE, dem. Ellenborough; for it is said, "We are of opinion, that the power of re-entry reserved in and by the said lease for non-payment of the rent is not made in conformity to the power in the settlement for granting leases of the freehold part of the said premises, and that the lease is void n that ground." Not having seen any report of the judgment of the Court of King's Bench upon this case of Doe dem. Earl Jersey v. Smith, I cannot tell whether this case of Coxe v. Day, was recalled to their attention; but I am quite sure it is impossible to reconcile the one with the other. This was so strongly felt by two very learned judges in the court below, that, at once, they doubted the propriety of that decision; and one of them says, "it is not law, for it is diametrically opposite to reason and common sense." (a) I am sorry to say I think directly the contrary; but I, for one, seriously object to this mode of getting rid of decisions, because they militate against our own notions. I agree with the pointed manner in which this was expressed lately in this house by the Lord Chief Justice of the Court of Common Pleas : and I hope I shall be excused for using his language." If the law so settled is now to be considered unsettled, I know not on what foundation, in point of law, any decision can stand.” (a) But the case of Core v. Day is not a solitary case; for the question again, in about three years after, came under the consideration of three of the same judges who decided Coxe v. Day, namely, Lord Ellenborough, Judges Le Blanc and Bayley, with the addition of another learned person now no more (Mr. Justice Dampier), and who could not have decided as they did without deter (a) Vide ante, vol. 1. 195. (b) Vide ante, Rowe v. Young, 273. mining, mining, that such a clause as we are now considering rendered a lease void where the power did not authorise it. The case I allude to is Doe dem. Vaughan v. Meyler (a). The case was tried before the latter Judge at Hereford, who thought the objection, such as we have here, was one that went to the whole lease, though it was partly of lands of which the lessor was seised in fee, and of lands in which he had only an estate for life with a leasing power, provided there was a clause of re-entry for non-payment of rent for 15 days. The lease was not executed according to this power; for it added," and if there be no sufficient distress;" but the Court held, though the lease was void, because not executed according to the power, yet it was good as to the land of which the lessor was seised in fee, and the Court apportioned the rent: which was an erroneous judgment, if the objection to the present lease be not a good one. The case of Rees, on the Demise of Powell v. King (a) I formerly thought, and still think, sets this point at rest, by shewing that such a clause as this throws a burden upon the right of re-entry which the maker of the power never contemplated. That case has been so often mentioned, that it is enough to say of it, that it has decided, that before a plaintiff in ejectment can recover upon a clause of re-entry in a lease, in case there be no sufficient distress on the premises, he must shew, that every part of the premises has been searched, else he cannot say there was no sufficient distress. The judge who first decided this was well known to some of your Lordships, and no man will decry the knowledge of the late Mr. Justice Heath; and his opinion was confirmed by the Court of Exchequer. If the Courts of WesminsterHall were to overturn that decision, it would go a great 1821. SMITH บ. DoE, dem. Park J. (a) 2 M. & S. 276. (b) Forrest, 19. Pp 2 way 1821. SMITH ข. DOE, dem. Park J. way to shake my present opinion; but I do not learn, that any of my brethren are prepared to do so; and if, therefore, I feel myself bourd, as I shall feel, to call upon any plaintiff in ejectment on the circuit, who has such a clog on his clause of re-entry as this, to prove that he has made a full search for a distress before I permit such a plaintiff to recover, I cannot conscientiously advise your Lordships, that this lease is valid; most sincerely, however, wishing that, consistently with my honest opinion, I could do so. Of one other point I must take notice, namely, that, as this lease contains a general clause of re-entry, it must, necessarily control the special clause. To that position, I, for one, at present, cannot agree; for I find the contrary doctrine maintained from Altham's case (a) down to the present day. In Altham's case we find this position or rather this maxim adopted. In the first part of the argument, putting every point that can possibly occur, his Lordship says, "Quando carta continet generalem clausulam, posteaque descendit ad verba specialia, quæ clausulæ generali sunt consentanea, interpretanda est carta secundùm verba specialia." But he goes on to add, there is another rule or principle of law, viz. " generalis clausula non porrigitur ad ea, quæ antea specialitèr sunt comprehensa." Therefore, I say, this point, for which I am now arguing, being first specially defined, cannot be enlarged by a subsequent general clause, which can only apply to cases not before specified or defined. So in Sheppard's Touchstone (which is supposed to be the work of no less a man than Mr. Justice Doddridge), on the exposition of deeds (b), in confirmation of the above doctrine that writer says, "If there be two clauses or parts of the deed repugnant to one another, the first part shall be received, and the latter rejected, unless (a) 8 Co. 154. b. (b) ch. 5. p. 88. fo. 7. there 1821. SMITH V. JERSEY. Park J. there be some special reason to the contrary." If we descend to more modern times, we find the same rule universally adopted and confirmed by judges on particular cases depending before them. In Cother v. Mer- DOE, dem. rick (a) Mr. Baron Nicholas, quoting the Year-Books in support of his opinion, says (b) "When there are two clauses in a deed of which the latter is contradictory to the former, there the former shall stand." And, not to multiply authorities upon a point on which Lord Ellenborough intimated a strong opinion, when he expressed himself against the validity of an argument founded upon such a point, I shall only quote one more from what Lord Chief Justice Holt and two of his brethren said in Thomas v. Howell (c), that, "in deeds it was admitted, that subsequent clauses which are general, shall be governed by precedent clauses which are more particular." I therefore, think, that this ground does not, in any way, strengthen the argument as to the validity of the lease. The point upon the statute of 4 Geo. 2. has been so ably handled, and so luminously explained by my learned Brother Holroyd, who has just addressed the House, that I shall not trouble your Lordships on that point, but to say, I entirely concur with him. The next point is, whether the other leases should be admitted as evidence? And, upon that point, I shall trouble the House very shortly. I am willing to admit that, if this deed upon the clause in question contains any latent ambiguity raised by extrinsic evidence, parol evidence or extrinsic evidence may be admitted to explain it, or to render it unambiguous. But I have never heard the general rule contradicted, that parol or extrinsic evidence cannot be admitted to contradict, vary, or add to the terms of a deed. It would be of (b) Hardr. 94. (a) Hardr. 89. |