1819.

1821. SMITH

v.

DOE,' [Lessee of

would tend to discourage the cultivators of land, and create a neglect of property injurious to all parties, and to the community at large, if forfeitures were to be rigidly exacted without regard to circumstances. But would the conditions at- Earl JERSEY.] tached to this power of re-entry defeat, in any respect, those or any fair views of either party to whom it related, and for whose interest it was intended? It certainly would not, and therefore I say, that if the intention of the parties is to be attended to, I consider that this lease was a sufficient execution of the power.

But whether I am right or not in the view which I have taken of this question, I have done enough to establish the validity of this lease, if I have brought the case into doubt and difficulty: and that it has been brought into doubt is apparent from the various and protracted discussion which it has occasioned both in the Courts below and in this House. I should be one of the last to advise your Lordships, as a Judge, that established rules of law should in any case be materially broken in upon, out of regard to any considerations resting upon equitable grounds; because I am aware that great iniquity is always the consequence of every such deviation from those rules. But when the equity of a case consists with the law arising upon the circumstances of it, as far as any settled principles of law can be found to apply, rigid strictness should not be insisted upon. Equity is naturally engraven on the hearts of all men learned and unlearned. Every one

may

1819.

1821. SMITH

v.

DOE,

[Lessee of

may see the palpable equity and the justice of this case. In doubtful matters, consequences may be weighed and I have frequently heard the most eminent Judges say of particular cases pending Earl JERSEY.] before them, in which they have felt themselves fettered by the ancient usage and course of practice, that if they were new they would decide them according to the reason and equity of the circumstances, where not inconsistent with the rules of law and I consider it to be sound legal reasoning that established principles are not to be shaken. But in this case the established practice and the weight of authorities are decisively in favor of the obvious reason and justice of it; and if this case were not now to be decided agreeably with that established course, the determination would shake the titles of every person in the kingdom who is in possession of valuable estates held upon leases under such powers as this. immense proportion of the landed property of this country is granted out by tenants for life upon leases of this sort for valuable consideration, and this lamentable consequence would follow, that claims for indemnity to an enormous amount would be set up against funds which may have been long ago raised by the provident care of prudent fathers, to secure provisions for younger branches; and the grantees of valuable leases fairly purchased might, on a sudden, be turned out of possession of their estates for a mere error in the framing of the instrument; although the form should be consistent with the long established precedents which have been followed in all

An

practice.

1819.

1821. SMITH

Doé, [Lessee of

practice. These leases are granted to a very great extent, all over the West of England, where this practice of settling estates particularly prevails. The estate of many a family, therefore, in that part of the country, depends on the validity of Earl JERSEY.] such demises and I have reason to know, from means afforded by my situation as Judge upon that Circuit, that similar attempts have been already made to take advantage of similar objections. Therefore, I should be disposed to hold, that it would be sufficient to support such leases against such objections, that there should be any doubt upon the question; and that there are doubts of very considerable magnitude, the experience of this case abundantly shews.

My opinion being, that the lease in question is valid, makes it unnecessary for me to say any thing upon the point which has been raised as to the admissibility in evidence of the former leases.

This power being general, and the proviso for re-entry contained in the lease having in it nothing unreasonable or inconsistent with the terms of the condition upon which it was to be exercised; I therefore feel myself bound to answer the question which has been proposed to us by your Lordships, in the negative.

GARROW, Baron, stated that he concurred in opinion with Mr. Justice Best, supported as he was by the very high authority of the late Lord Ellenborough:

1819.

1821. SMITH

v.

DoE, [Lessee of Earl JERSEY.]

Ellenborough and that his answer to the question must therefore be, that the lease in question was not invalid.

[His Lordship then proceeded to give his reasons so nearly, in substance, to the same effect as he had expressed himself in the Exchequer Chamber, as to make it unnecessary to repeat them here.]

BURROUGH, J.-Since the judgment was given in this case, in the Court of Exchequer Chamber, I have paid the closest attention to the subject. I have over and over again weighed in my mind the various facts and circumstances contained in the special verdict- and I have earnestly endeavoured to discover whether I had formed an erroneous opinion, when I concurred in that judg

ment.

After the fullest deliberation, I am of opinion. that the demise of the 5th September, 1803, is invalid that it was valid only during the life of the lessor and that his death determined the

estate of the lessee.

The statute of the 4 Geo. II. c. 28. was relied on in the Exchequer Chamber, and in argument before your Lordships, as bearing on the subject. In my view of this case, it has no application to the subject before the House. That statute (as I conceive) applies only to leases which, before the statute, might and must have been avoided by entry-to cases where the cause of avoidance

1819.

1821. SMITH

t.

DOE, [Lessee of

might have been waived. Such leases were valid till a strict legal entry was made, and before such entry, they were capable of confirmation by suitable acts done by him in whom the right of reentry was; but a lease by a tenant for life, Earl JERSEY.] having a special power to demise, if not made conformable to the power, is the lease of a mere tenant for life; and has validity only during his life, and not a moment longer.

I cannot see that any well-grounded argument, from a provision made by an act of Parliament, in the case of demises of a description description wholly dif ferent from the demises in question, can be urged in support of that demise. In forming our judgments on the question submitted to us by your Lordships, we must consider that we are required to give our opinions on the construction of a DEED.

There are certain rules of the common law which must govern us on such an occasion.

One rule is that the construction must be made on the whole deed. The principle of the common law is, Ex antecedentibus & consequentibus est optima interpretatio*.

There is another rule which also strongly applies to the case in question and that is, Quoties in verbis est nulla ambiguitas, ibi nulla expositio contra verba fienda est.

VOL. VII.

Shep. Touchst. C. 5. R. 4. p. 87.

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