plevin, and the insolvency, or death without sufficient assets unadministered of the sheriff and the tenant, his remedy by distress may finally fail, with the additional loss and costs both of the distress and of the replevin suit: and if this does not happen, he may still be without his rent, unless he take upon himself the trouble and expence of prosecuting execution pro retorno habendo, or for his debt and costs, and the trouble and risk of prosecuting some further action or actions against the sheriff or the bail in replevin, in case such execution shall prove ineffectual: and his remedy by ejectment would be delayed in that case, until these results of the replevin suit shall have been ascertained, even if an action of ejectment would then lie for the non-payment of that rent which had been before distrained forso that after the termination of the distress and replevin suit, it may happen that the remainderman may lose his rent, with the addition of

costs.

The payment of the rent is not therefore, I think, as effectually and beneficially secured by the right of re-entry actually reserved, as if that right had been reserved in the words of or according to the leasing power.

I have considered the question as above, independently of the disputed authorities of Cove v. Day and Doe, d. Vaughan, v. Meyler, both which cases, I think, were rightly decided, notwithstanding the prior case of Hotley v. Scot.

1819.

1821. SMITH

v.

DoE, [Lessee of Earl JERSEY.]

I have considered the question too as if in the
lease the rent reserved had been a money rent
only; because it has been so treated in the
argu-
ments here, and in the Courts below: but it is
to be observed, that this is the case not of a lease
for a money rent only, but also for a rent of ano-
ther nature, although certainly a very small one,
namely, the additional rent of a couple of fat
capons or money, at the election, not of the te-
nant, but of the lessor or remainder-man who
would therefore be entitled, if he pleased, to
have that rent in kind, instead of money. It has
been considered on all sides, as the case of a
lease for
money rent only, I presume, on this
ground, that the special right of re-entry de-
pending on the want of a sufficient distress, does
not apply to this additional rent or reservation,
but to the money rent only; and that the right
of re-entry applicable to this additional rent, is
the general right of re-entry subsequently given
by the lease, in case of default in payment or
performance of any of the reservations, cove-
nants &c. and this may be the case if the statute
of 2 W. & M. (which is the statute giving the
power of sale of a distress for rent) be deemed
to be confined to money rents only; but if the
default of payment of this additional rent be
within the special right of re-entry depending
on the want of a sufficient distress, more espe-
cially if this kind of rent be also not within the
above statute of W. & M., so that this distress
could not be sold under that statute for the
pose of raising or paying that rent-though, if it

:

pur

could

1819.

1821. SMITH

v.

DoE, [Lessee of

could be sold for that purpose it would not raise the rent in kind agreeable to the landlord's right of election, but in money only, at least not without additional trouble or expence to the landlord of purchasing the rent in kind with the money Earl JERSEY.] raised by the sale, that is, either by doing it himself, or procuring another to do it—I say that in such case the question proposed to us by your Lordships, as it appears to me, would embrace still further considerations arising from those circumstances, as the distress for that small rent in kind, viz. the two capons, would in that case (that is to say, if it could not be sold under the statute) remain only a dry, unprofitable, chargeable pledge for that rent, in lieu of the productive security of the enjoyment of the land. This, however, it is unnecessary for me to consider; inasmuch as, whether the additional rent, in kind, would embrace further considerations as to the law of the case or not, I think, for the reasons which I have before stated, that, having due regard to every thing alluded to in the question proposed to us by your Lordships, the lease in question is invalid.

PARK, J. delivered his opinion, as far as his Lordship advanced any additional arguments in support of his former reasoning, as follows:

I shall answer the question, proposed to the Judges, very shortly; because I have so fully given my opinion upon it in another place, a full and accurate report of which, in two different

books,

1819.

1821.

SMITH

V.

DoE,

books, is in the hands of some of your Lordships. And meaning, in what I am to trouble the House with, to adhere to the opinion I formerly delivered, I, of course, in answer to your Lordships' [Lessee of question, must state, that, having a due regard, &c. (using the precise terms of the question proposed to the Judges, as in page 379), the demise of the 5th September, 1803, is, in my opinion, invalid.

Earl JERSEY.]

I proceed to state to your Lordships, as the question requires, my reasons for so thinking.

But, before I do so, I beg your Lordships to believe me, when I positively disclaim the notion, that I thus give my opinion, in order to preserve my own consistency. I have often heardeminent Judges so declare; but surely consistency in error is no credit to the man or the Judge. For one, I should never be ashamed, and have lately so acted upon that feeling, where my understanding is convinced that I had upon some former occasion formed an erroneous judgment, manfully, fearlessly to acknowledge it; and as speedily as possible to retrace my steps.

[His Lordship then stated the two objections to this lease, which have been already so frequently repeated.]

These two objections, continued his Lordship, fall under very different considerations; but it

must

must be admitted, that if either of them prevail, the lease is invalid.

1819.

1821. SMITH v.

DOE, [Lessee of

As to the general rules which govern the Courts in the construction of leasing powers, they are Earl JERSEY.] all now well understood; and have been so fully explained and commented upon by some of my learned Brothers, who have preceded me, that it would be a silly parade of learning, and a useless waste of the time of the House to enter upon them, it being sufficient to state that the intention of the parties, as it is to be collected from the instrument, is to be the governing principle in the construction. (Here his Lordship took up the argument as formerly delivered by him in the Exchequer Chamber, and which will be found, ante, p. 312, 313.) When this case was before the Exchequer Chamber, I stated, that if the only objection to this lease were the time given, before the lapse of which he could not re-enter for non-payment of the rent, as then advised, I should think the objection fatal. I have heard nothing since to remove my doubt. It is said, indeed, that the indefinite article a being used, namely, a power-any power that is REASONABLE may inserted. But what right have we to do this for the grantor of the power? Who has a right to insert this word? Who, if inserted, is to con-. strue it? The Court or the Jury? If fifteen days be reasonable, why not twenty, twenty-five, and thirty? That this was never contemplated I think quite clear; for whenever time is meant to be given, it is expressed; and therefore she must

be

be