1819. DOE V. SMITH. as is most strong against the grantor." The second rule (a), "that if there be two clauses or parts of the Dem. JERSEY deed repugnant the one to the other, the first part shall be received, and the latter rejected, except there be some special reason to the contrary," on which so much reliance was placed by the Defendant's counsel, both in the Court below and here, was answered immediately by Bayley J. in the Court below, thus: "must not that reason appear upon the face of the instrument itself?" In support of their argument in the Court below, the counsel for the Defendant cited Pugh v. The Duke of Leeds (b) where in consequence of the rule ut res magis valeat quam pereat, the Court held that the word "from" may, in the vulgar sense, and even in the strictest propriety of language, mean either inclusive or exclusive; but that case gave very great dissatisfaction in Westminster Hall. Roe, Dem. Goatly v. Paine, only decided, that a lease might contain a general proviso of re-entry on a breach of covenant to repair, and also, a distinct covenant to repair after three months' notice. In Horsefall v. Testar (c), the question was, whether the words omitted were part of a covenant and the case was decided on a variance. The cases of Hayes v. Stephenson (d), and Wood v. Day (e), merely shew that covenants apparently inconsistent may stand to give the whole deed effect. The counsel for the Defendant in the Court below said, that the lessor might demand the rent on the day appointed, and if not paid might re-enter; and also, that he might re-enter on the 15th day after demand, if no sufficient distress were on the premises, and, that both clauses might stand together. Lord Ellenborough C. J. said, "there is an incompatibility between the first provision and the general provision, which would be restrained by the special (a) Sheppard's Touchst. 88. (b) Cowper, 714. (c) Ante, VII. 385. S.C. 1 Moore, 89. (d) 3 B. & P. 565. I Moore, 389. pro 1819. DOE provision." His Lordship afterwards said, "I think your rule that the special clause shall comprehend the general clause is the best certainly;" and again, Dem. JERSEY "general words cannot control, where special words are used." In Duppa v. Mayo (a) it is said, "where there is a condition of re-entry reserved for non-payment of rent, several things are required by the common law to be previously done by the reversioner, to entitle him to re-enter; first, there must be a demand of the rent; secondly, the demand must be of the precise rent due, for if he demands a penny more or less it will be ill; thirdly, it must be made precisely upon the day when the rent is due and payable by the lease to save the forfeiture," as where the proviso is, "that if the rent shall be behind and unpaid by the space of 30 or any other number of days after the days of payment, it shall be lawful for the lessor to re-enter: a demand must be made on the 30th or other last day, Co. Litt. 202. a.” not on the day when the rent is reserved, because this is an extension of the time, not for the payment of the money, but to prevent a forfeiture. If the proceeding is at common law, it must be founded upon the former part of the proviso, which gives a conditional power of re-entry, and the demand must be made on the 15th day, otherwise no effect at all would be given to that part of the proviso; for, if the demand is made on the first day, it is inconsistent, because the tenant is told he has 15 days: he is deluded and deceived into a forfeiture, if there can be a forfeiture under the second clause. The clauses may well stand together; but if the Court thinks that they cannot, and that the word reservation means rent, then the last clause will be rejected, and the first will be the only clause on which re-entry can be sustained. It is well known, that there are many leases where there is a conditional power of re-entry, and a general power of re-entry (a) 1 Wm. Saunders, 287. n. 16. at V. SMITH. 1819. DOE V. SMITH. at the last; but not one ever thought of bringing an ejectment on the latter clause. It is urged on behalf Dem. JERSEY of the Defendant, that the object of the leases is the improvement of the estate; but that is not so: an estate is not very likely to be improved by one, who lays out his capital in purchasing a leasehold interest in the shape of paying a fine. Here is a sale by tenant for life of his term, and he has no view to the improvement of the estate. The power, indeed, is not more strict against Lord Vernon than Lady Vernon: she was the owner of the estate, but she limited only a life-estate to her husband, and afterwards to herself, remainder to her children, remainder to herself in fee; still, it is a lease granted by tenant for life, and cannot have any validity as such, unless supported by the power. It has been said on the other side, that no inconvenience existed here, and that no additional proof would be required: but in Rees v. King, before cited, the lessor failed in his ejectment, because he had not proved, that he had searched every part of the premises for a distress. The case cited from Comyn's Digest has no application to this point, because in that case there was a search, and there was, in a locked up cupboard, property sufficient to cover the distress. Coxe v. Day is not to be distinguished from the present case. Jones, Dem. Cooper, v. Verney (a) is quite distinguishable from the present case the question there was upon a power of granting building leases with proviso of re-entry: the lease was merely a lease of an old house with covenant to repair, and a proviso of re-entry for non-payment of the rent for 42 days the Court decided on the broad point that this was not a building lease. In Thompson v. Lady Lawley (b), Lord Eldon C. J. says, speaking of Rose v. Bartlett, "I think it better to over-rule it altogether, which I must not do, than to deny to it its (b) 2 B. & P. 312. 318. (a) Willes, 169. effect 1819. DOE บ. effect upon grounds which do not completely satisfy my mind as solid and safe grounds of distinction." The Court is undoubtedly called on to-day to reverse the Dem. JERSEY decision of the Court of King's Bench pronounced only by two judges, and it is also called on to say whether Coxe v. Day, decided by four judges, and recognized in Doe, on Demise of Vaughan, v. Meyler (a), be law or not. On this day the Judges delivered their judgment seriatim. Richardson J. who, while at the bar had been of counsel in the cause, expressed no opinion. Garrow B. In this case, the question arises in consequence of a deed of settlement of the 2d day of July, in the year 1757, made upon the marriage of Mr. Vernon afterwards Lord Vernon, with Lady Louisa Barbara, his wife, and upon a power of leasing, which was granted by that settlement; and it is this, whether a lease, which was afterwards granted by Lord Vernon, whilst he was in possession of the estate, and entitled to it for his life, to the Defendant Mr. Smith, and another who is since dead, for their lives, is a good execution of the leasing power, or whether it is not in conformity to it: for, if not in conformity, to it, then the lease is void, and this judgment ought to be reversed; but, if it is a good execution of the leasing power, hen thejudgment pronounced by the Court of King's Bench ought to be affirmed. The settlement provides for several estates, which were to pass, according to the limitations of the settlement, to those who should be entitled to them for life in succession; and it provides for different sorts of estates; for estates, which had been formerly let upon leases for years abso (a) 2 M. & S. 276. SMITH. VOL. I. M lute, 1819. DOE 2. SMITH. lute, and estates which were let for long terms of years, determinable upon lives; and it respects other property en Dem. JERSEY tirely out of the present question, namely the mining property belonging to this family: and it is observable, that, with respect to the leasing power, and the restrictions to be contained in leases to be executed under the power, the terms are different, as applicable to the two species of property to which I have referred. When there is a lease granted for a term of years absolute, whereon there is a rent reserved, which must be supposed to be equivalent to the value of the estate in the hands of the tenant, it is required, that all such leases shall contain a power to re-enter, in case the rent reserved shall be in arrear for the space of eight-and-twenty days after it shall become due. With respect to the property, whereof the land sought to be recovered in the present ejectment is a part, and which had been formerly demised for long terms of years determinable upon lives, it is provided, that in order to make it a good lease under the terms of the power, there shall be contained in the lease a power of re-entry for non-payment of rent: in this leasing power no time is specified, by way of indulgence to the tenant as to the payment of it, nor are any other terms required by the person, who from time to time shall be in possession of the estate, than that he shall insert in it a power to resume the possession of the estate for non-payment of rent. It has been strongly insisted before the Court, that we are to understand the object of the creator of the power to have been to take care of the interest of the reversioner. I agree to that argument, that it is one of the objects of the grantor to take care of the interest of the reversioner; but, in the mean time, it is equally his object to take care of the interest of the tenant for life, and to make the estate in the hands of the tenants, |