1803. V. BRAD STREET. Non execution of a power is where nothing is done. Defective Execu tion is where there has been an intention to execute, and that intention sufficiently declared. But meaning of a non-execution; a power is said to be not executed, where nothing is done; but a defective execution is SHANNON. where the power has not been executed according to the terms of the power (for if it were executed according to the terms there would be nothing to be supplied) but where it has been intended to execute it, and that intention is sufficiently declared, but the act declaring the intention is not an execution of the power in the form prescribed, there the defect shall be supplied in equity. What stronger declaration of an intent to execute a power, can there be, than a contract, which makes the party liable to damages for not executing it, which may be enforced against him, and by which he may be compelled to execute the power in the act declaring the his life time? It strikes me to be beyond the case of a intention is not voluntary charge for younger children, or for a wife, which the form preif for meritorious 'consideration have always been en- scribed. forced against the remainder-man. In cases without number, upon jointuring powers particularly, (a) it has been determined that a covenant is a sufficient declaration of intent to execute, even when made before the power arose, as where a power is limited to be exercised by tenant for life in possession, and he covenants that when he comes into possession he will execute; in all these cases, courts of equity have relieved. The grounds on which the case of Coventry v. Coventry was decided, are stated in the decree in that cause, 2 P. Wms. 233, (note to Cox's edition) which declares that the articles executed by Gilbert, Earl of Coventry were a lien on the estate. If so, the consequence is that the party on whose estate they were a lien could have the benefit of them just as much in the form of articles, as in the form of an actual deed. Suppose a power to make a jointure not exceeding 1,000l. per ann. with a proviso that if there were no execution of the power, and if the tenant for life should die (a) Vid. Jackson v. Jackson, 4 Bro. Ch. C. 462. an execution in 1803. SHANNON V. BRAD STREET. leaving a widow that she should have 500l. per ann. and If Sir Samuel had actually executed this lease and died, the covenant for laying out the 2001. might unquestionably, I apprehend, have been inforced by Sir Simon, as a covenant going with the land. After the death of Sir Samuel, suppose the rent had proved too high, the tenant could not have said, "I will abandon the lease;" he must have paid the rent to the remainder-man under the covenant; then if he could enforce the covenant upon a lease executed, what reason is there why he should not enforce the contract if the contract be binding upon him? therefore it necessarily follows, that if a contract be binding on a remainder-man, it is binding on the lessee, and that the remainder-man can enforce performance. And it is a mistake to say that there is no privity; there is a privity arising from the subject matter of the contract. The contract is to bind both the tenant for life and the remainder-man, and therefore the remainder-man has a right to have the benefit of the stipulations made for his benefit. 66 66 In the case of Cambell v. Leach, Ambl. 749,(a) Lord Chief Justice DE GREY says, "As to the lessee's power of enforcing the contract against the remainder-man, this is a new point, but though new I think upon principle it “is to be enforced; the ground of the objection is, that the "remainder-man is neither party nor privy to the lease, "which would hold in one made by bare tenant for life ; "but under the power for leasing, there is a referable privity given by the settlement, and such tenant has a qualified power of contracting to bind the remainder66 man, and I do not know that the remainder-man could on his part enforce the contract of such tenant for life. I had at "first some doubt of this point, but own myself satisfied by "what was said in answer." These additional words, I suspect were not uttered by Lord Chief Justice DE GREY; but if they were, they were probably suggested by the case of Stamford v Omly, of which I have a slight note; that case was, tenant for life, having a power to make leases, made a contract for a lease, taking a sum of money (71%) and died without executing the lease; the lessee went to the remainder-man, agreed with him for the same lease, and then brought his bill against the representative of the tenant for life to get back the 71/. from him. Lord HARDWICKE did not wish to decide that case, and it was compromised; and it appears by the note which I have, that the bar were dissatisfied because he did not decide it; but I dare say something of that case was floating on Lord Chief Justice De GREY'S mind when he gave his opinion in the case of Campbell v. Leach; for how he could follow up what he had before said by the words attributed to him by the reporter, I cannot conceive: however, in that case Lord Chief Baron SMYTH thought with him that the remainder-man was clearly bound by the act of tenant for life. 1803. SHANNON V. BRADSTREET. A passage in the report of Campbell v. Leach, in Am bler, doubted. 1803. SHANNON υ. BRAD STREET. That case was decided long after the case of Zouck v. Woolston, in 2 Bur. 1136(a.) Mr. Dunning had said in that case, "that the execution of a power should have the same "construction in courts of law and of equity;" this position is perfectly correct. Lord MANSFIELD had on his mind prejudices derived from his familiarity with the Scotch law, where law and equity are administered in the same courts, and where the distinction between them which subsists with us is not known, and there are many things in his decisions which shew that his mind had received a tinge on that subject not quite consistent with the constitution of England and Ireland in the administration of justice. It is a most important part of that constitution that the jurisdictions of the courts of law and equity should be kept perfectly distinct; nothing contributes more to the due administration of justice. And though they act in a great degree by the same rules, yet they act in a different manner, and their modes of affording relief are different; and any body who sees what passes in the courts of justice in Scotland, will not lament that this distinction prevails. But Lord MANSFIELD seems to have considered that it manifested liberality of sentiment to endeavour to give the courts of law the powers which are vested in courts of equity; that it was the duty of a good judge ampliare jurisdictionem. This I think is rather a narrow view of the subject; it is looking at particular cases rather than at the general principles of administering justice, observing small inconveniences and overlooking great ones. On this argument of Mr. Dunning, Lord MANSFIELD said that "there was good "sense in what he said," and that "whatever is a good 66 power or execution in equity, the statute of uses makes 66 good at law;" very true. But the statute does not make good at law what was not good in equity, but which a court of equity by its peculiar mode of acting will make good. This distinction Lord MANSFIELD was much disposed to (a) Anno Dom. 1761. bverlook: for example; he considered contracts for leases to be leases,(a) and was followed by Mr. Justice BULLER(6). Great inconveniences ensued, which are now happily got rid of (c). A court of equity makes good a contract by de (a) Vide Weakly ex dem. Yea v. Bucknell, Cowp. 473; Goodtitle v. Bailey, ibid. 587. (b) 2 Term Rep. 581. (c) The authority of the case of Weakley ex dem. Yea v. Buck nell, was doubted by Lord THURLOW, in Lowther v. Andover, 1 Bro. Ch. C. 397 (A. D. 1784) the doctrine that an equitable title was a good defence in ejectment was much shaken by the cases of Doe v. Staple, 2 Term Rep. 684, and Doe v. Clare, 2 Term Rep. 739 (A. D. 1788). It is fully established that the legal title must prevail in ejectment in Doe v. Wharton, 8 Term Rep. 2. Vid. Doe ex dem. Shewen v. Wroot, 5 East 132, and the note at the end of that case. In Ireland, although the decisions in Cowper were followed, yet that their authority was very reluctantly admitted by gentlemen of the longest experience and most extensive practice at the bar, may be collected from the following case. COMMON PLEAS, MAY 4th, 1796. Lessee of Lord MASSEY V. TOUCHSTONE. THIS was an ejectment on the title, tried at Limerick before the Right Hon. Lord YELVERTON. Counsel for the defendant having admitted the title of lessor of the plaintiff, gave in evidence an unstamped writing to the following purport: "We propose to pay the Right Hon. Lord Massey, for the lands "of Knockmore, fourteen shillings per acre plantation, and will "bind ourselves down to till four acres of the farm yearly, and to “manure the same with one hundred barrels of lime to each acre, "and to take no more than two crops of potatoes and one crop of (( corn thereout, and let it out with corn quite level. We will plant "yearly five hundred of such trees as his Lordship will approve of, "and preserve the same under forfeiture of the lease; the plant"ing of said trees to commence next October on getting a lease "of three lives. And will build a good farm slate house on such part of the farm as his Lordship will appoint against the first day of Aug. 1796, under forfeiture of the lease, and will preserve "the game, and not shoot, destroy or kill the game of any kind on "that or any part of his Lordship's estate under forfeiture of the lease; and will permit the labourers to remain in the cabins "until the first day of September next, except one cabin, which "will be at present required for the use of the farm.-Edward Bennet, Hugh Touchstone-April 15th, 1793. "In addition to the within proposal, we do hereby promise to "give notice to his Lordship at the time of our turning out the 1803. SHANNON υ. BRADSTREET. |