1821. SMITH V. JERSEY. Lord Redesdale. power? For this manifest reason, because the other power referred to existing leases; it referred to that which was the ordinary mode of executing the power with respect to such property, namely, that, on the DoE, dem. dropping of one life, the lease shall be surrendered, and a new lease, precisely similar, be granted for three lives. Why, my Lords, the powers of re-entry, which were contained in the former leases of every description, were the very powers to which the settlement meant to refer; with this addition, that if, in any of the leases that existed, there was not a power of re-entry for non-payment of the rent, they meant that such a power should be contained in future; and, therefore, the words there used are of loose description. I think it is a mistake to suppose the words are precise: the words are not precise: the words are loose; and the great error, as it seems to my mind, in the opinions that have been formed pronouncing this lease invalid, is in the supposition that the words are precise. I repeat they are not precise, and are merely a note or memorandum intimating, that a power of re-entry is to be reserved; and if, in the former leases, such a power was not reserved, (and probably the person who made the settlement had not an opportunity to look into all the leases to see the form in which they were made,) then, there should be such a power reserved; but, in any other respect, that they should be in conformity to the prior leases. My Lords, it appears in the case of the lease in question, that the power of re-entry was reserved in the former lease, not simply on the non-payment of rent; but it was reserved on the non-performance of the services, such as a service at the mill, a reservation of a capon; if the engagements were not observed, the power of re-entry extended to the whole. My Lords, taking it, therefore, that the meaning of the settlement was this, not to give any precise direction 1821. SMITH บ. DOE, dem. Lord Redesdale. pirection with respect to the nature of the power, but to give a general direction in the nature of a memorandum, if I may so express it, that there should be a power of re-entry, is not that the natural construction of the words, and is not the construction, which is attempted to be put upon the words, a forced construction; an attempt to make them more strict than they really are? My Lords, suppose a contract was entered into between two persons, one of them having the property, and the other willing to take that property, and that contract purported, that there should be in the lease to be granted under that contract, a power of re-entry for the non-payment of the rent, how would that contract be executed, if it was to be specifically performed under a decree of a court of equity? Would a court of equity have ever thought they were compelled, under the terms of that contract, by those words to require, that the power of re-entry should be a power of re-entry absolutely upon the non-payment of the rent at the day, and without the common and ordinary provision, that it should only be in case there was not a sufficient distress? Would not those words be construed by what was the common and ordinary practice? The common and ordinary practice, certainly, is to frame a power of re-entry in the manner in which the power of re-entry in this lease is framed. My Lords, what must have been in the mind of the conveyancer who prepared this settlement, when he inserted in the settlement the proviso, that a power of re-entry for non-payment of rent should be reserved without expressing more? Must he not have had it in his mind, according to the usual habit of persons of that description, that this was a species of note or memorandum which would have been expressed in a similar manner in the contract for a lease to be executed in pursuance of the settlement? My Lords, I do 1821. SMITH V. JERSEY. Lord Redesdale. do, therefore, conceive, that, in this case, it must be taken to be the intention of the parties to the instru ment, not to be precise with respect to the terms in which the power of re-entry was to be reserved; but, DOE, dem. merely, to give a note, signifying, that some power of re-entry should be reserved for non-payment of rent; meaning thereby that, wherever that power did exist in the former leases of the same lands, it should be inserted in any new leases; and that, wherever no such power had been reserved, then, that a power should be inserted such as would be required under such a contract as I have described. My Lords, the more I consider the subject, the more I feel convinced that all the doubt which has been suggested upon the subject has been founded upon a construction of the words of this instrument, which, I submit, they do not by any means bear. They were not intended, as it has been supposed, to express precisely and positively what should be done. They were intended to refer to the leases that had been previously executed of the same property, to provide that the rent should be reserved in as beneficial a manner in every respect as before; and that if there was an omission in the former leases of the power of re-entry, that a power should be given; that is, such a power as a court of equity would insert in a lease under a contract. But suppose it had not been a question before a court of equity, but before a court of law, suppose the person who entered into the contract had executed a lease, with a power in the terms in which the power is conveyed in this lease; or suppose, on the contrary, he had executed it with a power of re-entry upon non-payment of the rent at the day, and the question had beenwhether, in either of those leases, in a court of law, the contract had been properly executed or not? Would a court of law have differed from a court of equity on VOL. II. U u the 1821. SMITH 2. DOE, dem. Lord Redesdale. the subject, if they had said In what manner will a court of law execute such a contract as this? in what manner would a person who was employed as a conveyancer in the habits of business, have framed a lease under such a contract?- and then taken it to be a proper or an improper execution of the contract, according to the interpretation given to that contract by men habitually engaged in framing such contracts? Upon the whole, therefore, it does appear to me, that the lease is a valid lease, because it is made, as it is found by the special verdict, in conformity to the other leases; and I consider the words of the settlement, referring to those leases, to have the effect of saying in this particular case where there has been a power of re-entry for non-payment of rent, a similar one shall be reserved. If the question had arisen, on the renewal of a lease containing no such power, how the power of re-entry was to be reserved, then I should say, that it was to be reserved according to the practice of the owner of the estate in letting leases of other parts. Therefore, upon the particular words of the settlement of 1757, and not upon any general view of the case, I conceive, that this lease ought to be supported, and, consequently, that the judgment of the Exchequer Chamber should be reversed, and the judgment of the King's Bench affirmed. The House, accordingly, on the motion of the Lord Chancellor, reversed the judgment of the Court of Exchequer Chamber, and affirmed the judgment of the Court of King's Bench. 1821. SHEE V. ABBOTT. May 12. The court will not set aside the justification of bail on account of perjury subse PELL Serjt. moved for a rule nisi to discharge the rule for allowance of bail in this cause, on the ground of gross fraud and perjury; one of the bail having sworn on the 5th of February, that he was the occupier of a house, which, but four days before, he had sworn to be his brother's. Pell referred to Gould vered, but will v. Berry (a). But, quently disco leave the party to his indict ment for per The Court thought that case not in point, and inti- jury. mating that the plaintiff's remedy was by indicting the a warrant to TRESPASS. At the tria before Burrough J., Some conTaunton Spring assizes, 1821, it appeared, that the stables, under Defendants, who were constables, searched the Plain- search a house tiff's house under a warrant for the discovery of for black cloth some black kerseymere, which had been stolen. They been stolen, found no black cloth, but they took cloth of other co- finding no lours, which they carried before a magistrate. Upon took cloth of which had black cloth, other colours, and carried it before a magistrate, refusing, at the same time, to tell the owner of the house searched, whether they had any warrant or no: Held, that they were within the protection of the stat. 24 G. 2. c. 44.; and that an action against them ought to have been commenced within six months after the grievance complained of. VOL. II. X x being |