Oldalképek
PDF
ePub

for the same reason, in addition to all others with which I have troubled your Lordships, I think such a construction ought to be put upon the words of the settlement as will tend rather to the exclusion than to the introduction of forfeitures of the leases to be granted under it.

For these reasons, I am of opinion, that the demise of the 5th September, 1803, is not invalid.

The LORD CHANCELLOR (a). My Lords, the question which is now brought before your Lordships for decision, is undoubtedly a question of very great importance to the parties. We have to determine, as I understand, upon the validity of a particular lease, which is stated in the special verdict. The decision upon that lease, however, will not only give validity or invalidity to the lease in question, but, as we have been informed by the bar, to the leases of a very considerable mass of property. The Plaintiff, therefore, has a great interest in your Lordships' decision; the tenants, of course, have a very considerable interest in your Lordships' decision; but the interest in your decision is not confined to the landlord and the tenants, because, I apprehend, that, if these leases are invalid, the tenants in this case, probably, as in a case from another part of the united kingdom (I mean the case of the Queensberry leases) will have a title to recover against the assets of the deceased lessor, the value of their interests in the estate. But, however great the interest of any of these parties may be, it is most for the public interest that your Lordships should take care to decide rightly.

My Lords, if I could hope, that, by asking your Lordships for further time, I could alter that opinion which, it is my duty to inform your Lordships, I have

(a) Lord Eldon.

1821.

SMITH

V.

DoE, dem.
JERSEY.

Abbott C. J.

The Lord Chancellor.

long

1821.

SMITH

v.

JERSEY.

The Lord Chancellor.

long entertained upon the question now before you, (and the rather my duty, because, if it should appear to you to be hastily formed, it will deserve the less atDOE, dem. tention,) or if I could, consistently with my other important engagements and duties, hope to find time, in which I could lay down the humble statements I am now about to make with more method, or if I could hope to relieve myself from the pain, which I do most sincerely feel, in maintaining an opinion upon this subject, different from that which has been expressed by many persons, for whose learning and abilities I entertain the greatest respect, I should endeavour to press your Lordships to delay hearing what I have humbly to offer to your Lordships' attention.

My Lords, I must confess, that the habits of my professional life led me at first to entertain a very considerable surprize indeed, how, upon some of the questions agitated in this house, there could be any difference of opinion any where. My Lords, with respect to the authorities, your Lordships have heard observations which are perhaps much more apt than I could presume to offer to your attention, upon the conflicting cases of Hotley v. Scot, and Coxe v. Day, and the negative authority of the case before Lord Chief Justice Willes, who, I believe, was a very great lawyer. Those authorities I shall not, I hope, be thought to treat with any disrespect, which certainly I do not mean, when I avail myself of what has fallen from the two learned Chief Justices in their observations on Coxe v. Day. If Coxe v. Day is an authority one way, Hotley v. Scot is an authority the other way; and the judgment of two of the Judges in the court below on this very case, conflicts with the case of Coxe v. Day. But, my Lords, such have been the habits of my professional life, that I cannot possibly think that we have considered all the authority to be taken into consideration upon this sub

ject.

1821.

SMITH

V.

DoE, dem.
JERSEY.

The Lord

ject. My Lords, we hear of the practice of conveyancers, and that amounts to a very considerable authority; and I am justified in that assertion by the opinions of the greatest men who have sat in Westminster Hall, who, I am persuaded, in many instances, if matters had been res integra, would have pronounced decisions very different from those which they thought proper to adopt, Chancellor, if they had not taken notice of the practice of conveyancers as authority; but, upon this subject, my Lords, I do not think that the unwritten authorities are fairly considered, when it is merely put, that such clearly is the practice of conveyancers; and I would take the liberty with very great respect (with respect too, more sincere than I really know how to express) to intimate an opinion that, upon cases of this nature, it might not be much amiss, if courts of law would enquire a little more what has been done as well as said in courts of equity: not for the purpose of determining differently what are the points, but of determining how far men, who have sat in the courts of equity, have determined the legal point before they have applied themselves to those directions, and decrees, and orders, which they are daily in the habit of pronouncing. My Lords, between the year 1772, (it is a long while to look back to,) and a period approaching the year 1780, I spent many of the most profitable years of my life in the office of a conveyancer; and I was led, at that time, to a knowledge, not only of the practice there, but of what were the sentiments of the great conveyancers of those days; and I am as sure, I think, as I can be of my existence, that it never would have occurred to any one of them, if there was a leasing power in any marriage settlement, requiring such a power as this, that to give the time of fifteen or twenty days would be an invalid execution of the power. I am sure all practice was the other way; and practice, my Lords, in this respect is evidence of what is reasonable.

But

1821.

SMITH

V.

DOE, dem.

JERSEY.

The Lord

But the unwritten authority does not rest here. The power of leasing is often one which must be executed by trustees under marriage settlements. In those settlements in which they take the legal fee, it of course falls on them; and in those in which the legal estate is in the persons beneficially interested, the power of leasing Chancellor. is often given to the trustees to preserve contingent remainders during the minorities of the cestuique uses. In a great majority of cases, I can say, on my own knowledge, that the power does not mention any period of arrear before the re-entry is to be allowed. The trustees sometimes use their own discretion in executing the power to lease; at other times they act under the direction of the Court of Chancery. In the first case, their uniform practice would form a weighty consideration here. In the second, where they act by the authority of the Court of Chancery, you must permit me, for my predecessors and successors, though not for myself, to say, in every one of those leases there is an authority of law, that that is a due execution of the power: because the Chancellor has no right to direct such a lease to be made, if, when it is executed, it is not according to the power. He is a judge of law and equity, and, when he has determined as a judge of law that such is a due execution of the power, then, and then only, he has authority, according to the constitution of this country, to direct such lease to be made by the trustees. Then, my Lords, I should be very glad to know, whether the whole practice of that Court is not to be looked at as practice fixing what is the legal construction of such a power to lease?

My Lords, it does not rest here; for, suppose the case put by one learned Judge, suppose the tenant for life, here, had agreed with this occupying tenant to make him a lease with a power of re-entry on nonpayment of rent, and he would not make it with a power

of

1821.

SMITH

V.

JERSEY.

The Lord Chancellor.

of re-entry giving an extension of time, and then the tenant had filed a bill in equity to compel him to make a lease according to the agreement:- No Chancellor could possibly have directed a lease to be made with DoE, dem. fifteen days' time, in case of a non-payment of rent, unless he was satisfied, according to law, that would be a due execution of the power; he could not have done it in any of the cases in which there has been such a decree made. I disclaim, for those who have gone before me, and those who are to come after me, the charge that such directions were not made upon the authority of cases which have, at least, as much authority, and a great deal more than those which have been stated to your Lordships.

Another authority is to be found in the construction which the general inclosure act has received. Rectors and vicars are, under the 38th section of that act, enabled to lease their allotments, so that there be inserted in such lease power of re-entry, on nonpayment of rent, within a reasonable time, to be therein limited, after the same shall become due. And, my Lords, we have acted under that statute ever since it passed; rectors and vicars have been making leases ever since, and I believe you will find, that the universal practice has been to give days in the manner days are given in this lease. It is truly said, that a reasonable time is authorised; but, if my argument is correct, a reasonable time would have been authorised, if these words had not been introduced; and, I must add, that the words of the act answer the objection, that courts of justice cannot be required to say what is a reasonable time; for, the legislature has, in this instance, expressly required them to do so. Suppose that, in a parish in which the rector or vicar has an allotment subject to this power, there are tenants for life, receiving allotments to be enjoyed according to the limitations of the VOL. II. settle

Tt

« ElőzőTovább »