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1821.

SMITH

V.

JERSEY.

put such a reasonable and liberal construction upon the words of the power in the settlement as will give effect to the lease, rather than yield to critical forms and DOE, dem. subtil objections adduced for the purpose of defeating it. And this becomes the more important, if it be true, Abbott C. J. as has been suggested, that very many leases are in existence containing clauses similar to the present, and demised from powers expressed in language similar to that of the power from which this lease was derived. Considerations of this nature, certainly, ought not to control or vary the sense of plain and unambiguous words; but they may be reasonably entertained for the construction of words of doubtful import; not merely by reason of the consequences of a decision in a particular case affecting numerous other cases of the like nature; but because the fact suggested is evidence of the general opinion entertained by professional men upon the meaning of the words of a legal instrument.

These words, in the present case, are "a power of re-entry for non-payment of the rent to be thereby reserved." And the first question is, whether these words may be understood to mean a reasonable power, or must be confined to a power which the landlord may exercise, if the rent be not paid at the very day, and without regard to any property to be found on the demised premises, upon which he may levy his rent, and, thereby, compensate himself, at his tenant's expence, for his tenant's neglect.

If the words may be understood to mean a reasonable power, the only remaining question will be, whether the power of re-entry contained in this lease be a reasonable power. I shall proceed, in the first place, to shew, that, in my opinion, the words in question may be understood to mean a reasonable power. Non-payment is a mere neglect or default, and, if the words, "a power of re-entry for non-payment of the rent," are to be taken strictly and ad literam, they will import a power

of

1821.

SMITH

V.

JERSEY.

of re-entry for the mere neglect or default of the tenant: but this cannot possibly be their legal import or effect, because, by the common law of England, a landlord. never could enter for the mere neglect or default of his DoE, dem. tenant in this respect, under any power or clause in whatsoever language expressed. Some act is always Abbott C. J. required to be done by the landlord, in order to entitle himself to exercise his power, and this is required to prevent the tenant from being surprized or injured. This act, at the common law, was an actual demand of the rent on the part of the landlord. And the common law required this demand to be in a most precise and peculiar manner. It was to be made just at the close of the last day of payment (allowing the tenant the whole day to prepare his money) at the time when so much day light remained as might be sufficient to view and count the money, and no more. It was to be made at the door of the demised messuage, if any on the premises, and, if none, then at such usual and notorious place of resort where the tenant might reasonably be expected to be found, if he was not altogether absent; and it was to be of the precise sum then accruing due, not including any former arrears, all of which, although due and recoverable by distress or action, were considered as waived by the landlord on a question of forfeiture by his prior neglect to demand or enter for them.

Then, if the words of the power, or, rather, of the qualification of the power, contained in the settlement, cannot receive a literal construction, and be held to apply to a case of neglect or default, only according to their literal purport, they must receive some other and different construction, which must, in my opinion, be a reasonable construction, and a construction properly suited to the object and purpose in view; that is, to secure and enforce the payment of the rent, so that, on Ss 4

the

1821. SMITH

V.

the one hand, the tenant may not hold the land without payment, to the prejudice of the landlord, nor, on the other hand, be dispossessed of it, if either himself or DOE, dem. the land, which is emphatically said to be debtor for rent, presents payment or the means of payment withAbbott C. J. out unreasonable delay or prejudice to the landlord.

JERSEY.

It has been objected, however, that, if the literal or strict meaning of the words be not adopted, no other meaning can be, because, as it was said, courts of law cannot say what is a reasonable power or clause of reentry. But, I conceive, that in this, as in all other cases, courts of law can find out what is reasonable, and that, in some cases, they are absolutely required to do so. In many cases of a general nature, or prevailing usage, the judges may be able to decide the point of themselves; in others, which may depend upon particular facts and circumstances, the assistance of a jury may be requisite, and, wherever such assistance is requisite, there are ready modes of obtaining it. I will mention one instance, in which courts of law are required by the legislature to discover and decide, if the point be legislated, a question upon the reasonable execution of a power. By the general inclosure act (a), a rector or vicar is enabled to lease his allotment under certain restrictions mentioned in the act, and, among others, so that there be inserted in the lease, "power of re-entry on non-payment of the rent or rents to be thereby reserved within a reasonable time to be therein limited after the same shall become due." A lease of such an allotment must, therefore, provide, that if the rent be unpaid for some specified number of days or weeks after the day of reservation, the rector or vicar may re-enter; and, if any question should arise, whether the number of days specified in a particular lease, be or

(a) 41 Geo. 3. c. 109. s. 38.

be

be not a reasonable time, the courts of law must necessarily find some mode of deciding the question.

1821.

SMITH

ข.

DOE, dem.
JERSEY.

For these reasons, my Lords, I am of opinion, that the words of the clause in question may, and ought to be understood to mean a reasonable power of re-entry. And, taking this to be the legitimate meaning of the Abbott C. J. words, I proceed to shew, that, in my opinion, the power of re-entry, contained in the particular instance of the lease in question, is a reasonable power. Usage is of great weight in considering what is reasonable; and it cannot be denied, that the power of re-entry, as expressed in this lease, is, in form and substance, such as was frequently found in leases before the execution of the settlement by Louisa Barbara Mansel, which was in 1757. This is a fact which must be in the knowledge of some of your Lordships, without recurring to the special verdict for information as to the leases of this particular estate. If any space of time could be allowed beyond the days of payment prescribed in the reservation, the space of 15 days, which is the period allowed in the present lease, will not, I am persuaded, be thought an unreasonable space of time. Indeed, although this objection was pointed out, it was not so much insisted upon at your Lordships' bar, nor could be in the construction of a settlement allowing 28 days for payment in leases to be made at a rack-rent. The main stress of the argument was applied to that part of the clause in the lease, which narrows the power of re-entry to cases wherein no sufficient distress can or may be had and taken upon the premises, whereby the rents and services, and all arrearages thereof, may be fully raised, levied, and paid.

Upon this part of the argument, the case of Core v. Day (a) was quoted and relied upon. It has, however, (a) 13 East, 118.

been

1821.

SMITH

V.

DOE, dem.
JERSEY.

lature, and of the experience upon which the statute was founded, for saying, that this difficulty is less in practice than the difficulty of making such a demand as would authorize a re-entry at the common law. If any thing more be desired by the reversioner than a speedy Abbott C. J. and easy mode of securing and enforcing the payment of the reserved rent, I should say, that he desires more than the framer of the settlement intended to give, and more than the law ought reasonably to allow. The power of re-entry, in whatever words it be expressed, can be exercised only in one of two modes; that is, either by making a demand at the common law, without regarding the value of distrainable goods on the premises, or by ascertaining that no sufficient goods are to be found on the premises, without regarding a demand of payment. For the reasons already given, I think the latter must be considered as the most effectual and beneficial mode; and, therefore, speaking generally of cases of this nature, I can discover no reason for resorting to the former, except a hope (certainly not entertained in this particular case,) that the tenant, being taken by surprize, and not expecting a demand, may not be prepared for immediate payment in money, and a desire to take advantage of his want of preparation, and deprive him of the residue of his term, or harass him with a law-suit. To such a motive a court of law will And a construction calculated to give effect to such a motive would be contrary to the general principles of the law. And it ought not to be omitted, that the present question arises upon the construction of that part of a leasing power which is intended to create a forfeiture of the lease executed under the power. It is said in our books, that forfei tures are odious in the law, and this is the reason assigned for requiring so much formality and precision in the demand of the rent at the common law.

never lend its aid.

And,

for

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