« PreviousContinue »
opinion that the word such applies to the latter set of leases only, and consequently that the judgment of nonsuit must stand.
Mr. Justice PARK.-It was most properly conceded by my brother Lens in the outset of his argument, that if the word such could be considered to extend to both classes of leases, the lessor of the plaintiff would be entitled to recover, as the lease of 1815 would not have been conformable with the power contained in the will. If, however, that word can be confined to the latter class of property only, he could have no right to maintain the present action. The case, as it was originally drawn and settled, did not state that the lease of 1815 was granted on the expiration of the former lease of 1750, nor did the latter instrument form any part of the case. Until it was subjoined, and to be considered as part of it, I felt considerable doubt; but as it now appears that the lease of 1815 was altogether conforinable to that of 1750, that doubt is entirely removed. The power in the devise contains two distinct subject matters. The testator declared that the devisees might lease lands of two kinds or descriptions ;-first, "such parts as had been usually granted or demised, and were then in lease;" and secondly, “the residue, which had not been before let.” He then declared that “such part of the premises as had been usually demised, should be let for the like terms, in like manner, and under the like rents, services, and conditions, as the same had been usually granted.” If he had stopped there, or introduced the words “and that the devisees should demise and lease the residue," as stated by my brother Pell, it would bave the effect of connecting the latter with the former part of the sentence; but as it now stands, it appears to me to be quite clear that the testator intended to discorinect it, and distinguish his property, and to treat the residue as a new and distinct
subject matter, subject to certain regulations and restrictions as pointed out by him; and it would be a violation of language to carry the word such back to the premises first described, and which were then in lease.
Mr. Justice BURROUGH.-I am extremely happy that this case has been ultimately so framed as to enable the Court fully to understand the nature of the question they are called on to decide. I have no doubt whatever as to the construction of the words of the power, taking it altogether. Those at the conclusion of the first branch of it, that “certain parts of the premises should be let for the like terms, and in a like manner, as the same bad been usually granted,” are particularly emphatic, and express to shew, that the testator intended that the future leases, as to that part of his property, should have reference to, and contain the same provisions, as the former; but he did not mean that the residue of the premises should be subject to such former leases; if he did, he would have introduced the words " and also;" or stated that the residue should be let, so as such demise was made for a like term, and in like manner, as the same had been usually granted; thereby meaning to refer to the terms of the antecedent leases. Still, however, it has been contended for the lessor of the plaintiff, that the latter part of the power must be taken to refer to both classes of the testator's property, viz. that which had been in lease before the making of his will, as well as that which had not. Here it must be observed, that the lease in question was not made until 1815, and was, in fact, a counterpart of that of 1750. It was absolutely necessary that it should have been so, as the power directed that the lands should be let in like manner as they had been usually granted. So, with respect to the residue of the premises, it was directed at the conclusion of the power, "that each lessee should execute a counterpart of his lease.”
It appears to me, that it would be too much to say that such direction applies to both classes of leases, or that it over-rides the whole of the power, so that it may be equally applied to both.
Mr.Justice RICHARDSON.- The objection to the lease of 1815 is, that the lessor's power of re-entry applies only to the non-payment of the annual rent, and does not extend to, or embrace the like power, in case of the nonpayment of forty shillings in lieu of a heriot. Whether it extends to heriots or not, depends on the reference of the word such; namely, whether it can be taken to extend to both sets of leases of the premises to be demised, according to the power contained in the will of the testator. I am of opinion that it inust be confined to the last set only : for if it were to refer to such parts of the lands as had been usually let, and a power of re-entry for non-payment of the forty shillings in lieu of a heriot had been inserted in a lease applicable to property of that description, it would be contrary to the terms of the original lease of 1750, in which no such clause was introduced. The testator was satisfied with, and approved of the terms contained in that lease, and required that the future leases should be framed in the like manner, and be subject to the like rents, services, and conditions as the premises to be let had been usually demised or granted. It has been said, however, that as it was directed by the latter part of the power that no such lease should be made dispunishable of waste, it must of necessity apply to both classes of the testator's property; and that at all events it would apply to the former rather than the latter : that however does not appear to me to have any weight, or strengthen the arguinent for the plaintiff, as a tenant cannot be dispunishable of waste, unless there be an express clause or provision excepting him from it: and here there was no such clause or exception in either of the
leases : that restriction therefore does not apply to either of the classes of the property; or at all events, cannot be referrible to that which had been previously demised. It is also directed by the concluding part of the power, that each lessee should execute a counterpart of his lease : that is introduced by the words “so as," and has reference to the word such, which must be confined to the second class of leases, and cannot be carried back so as to extend to both.
Judgment of nonsuit(a).
(a) In Coventry v. Coventry, 1 Com. Rep. 317, it is said, that where a power requires only that the ancient and accustomed rent be reserved, and it is reserved, the reservation of heriots, or other casual profits, is not necessary; and Coke Littleton, 44, (b), and Bangh v. Haynes, Cro. Jac. 76, are cited as authorities in support of that position.
Tuesday, June 25th.
and was sworn
Where bail had
. One of the bail in this cause having been described in the notice of in the notice of justification by the name of Moss, he justification,
was by mistake sworn by that name, and on Mr. Serjeant accordingly, the Lens opposing him, it appeared that he was a Jew, Court permitted him to jus- called Moss Moses, and that the mistaké had originated tify on his swearing that in consequence of the name of Moss only being over the he had suffi
door of the house in which he resided and carried on cient property ; and it appear trade. ing that he had been found by
The Court, nevertheless, permitted him to justify, the party en- on bis swearing that he had sufficient property for that quiring after him, with re.
purpose; it also appearing that he had been found by ference to his becoming bail. the person who had made enquiries after him, with re.
ference to his becoming bail.
count of a de
STREETER v, HORLOCK,
June 25th. This was an action of assumpsit, brought against the Where a defendant as a hoyman or carrier, for not delivering claration in aswheat according to a contract entered into between biin sumpsit against
a carrier by and the plaintiff. The declaration contained eight spe- water, alleged, cial counts, the third of which, after stating by way of deration that inducement, that the defendant was a carrier of goods in the plaintiff, at
the request of or by a certain vessel, proceeding from the parish of St. the defendant,
had caused to be Lawrence, in the county of Essex, to divers other places, shipped on for certain freight and reward, payable to him in that fendant's
board the de
resbehalf, proceeded to allege, that heretofore, to wit, on sel a quantity
of wheat, to be the 15th September, 1821, at the parish aforesaid, in carried to a the county aforesaid, in consideration that the plaintiff, for freight to be at the special instance and request of the defendant, had therefore paid
to the defendant, caused to be shipped in and on board of the defendant's he undertook to
carry the wheat vessel, a large quantity of corn, to wit, fifty quarters of safely, and de
liver it for the wheat of great value, to be carried and conveyed therein
plaintiff on a by the defendant, from the parish of St. Lawrence afore- given day; but
it appeared that said, to a certain place called West Thurrock Mill, on or the defendant's before Monday then next, at and for reasonable freight carry was made and reward to be therefore paid to the defendant in that before the
whole of the behalf, the defen:lant undertook and faithfully promised wheat had been
shipped on the plaintiff, that he would safely carry the said wheat board bis vesfrom St. Lawrence aforesaid to West Thurrock Mill afore. sel ; -Held,
that the count said, and there deliver the same for the plaintiff on Mon- might be supday the 17th September, in the year aforesaid. The fifth though it was count stated that the defendant undertook to carry
objected that the
the considerawheat safely, and deliver the same at West Thurrock Mill tion for the
promise was within a reasonable time (a). The defendant pleaded the executory ;
on the ground, general issue.
order is given to a carrier, antecedently to the delivery of goods, who assents to deal with them when delivered in a particular manner, a duty is imposed on him on the receipt of the goods to deal with them according to the order previously given ; and the law implies a promise by him to perform such duty.
that where an
(a) The first count stated that the defendant undertook to carry the wloat