render of the* whole where it is so intended, yet where that 1805. is not the intention, it is not incongruous with any principle _ oenr of law, that the prior term may be dormant for a while, and Earl of revive again upon a subsequent event; for a surrender may Bikkuw be conditional in law as well as by the express agreement of ^bp. of Yost, the parties; and therefore, supposing the second lease to [ 9Q* ] pass an interest during Mrs. Egerton's life, it may be implied to have bean accepted on condition that the first lease ihould revive on her death. As in the case of Mi i!ows v. May, reported by Moor (a), iho acceptance of the second 1

lease by the husband and wife to whom a prior one had been granted, was holden to be a surrender of the first only during the coverture of the wife; which shews that it might have revived again after the death of the husband in her favour. The prior leading cases were however all considered in the cases of Wilson v. Sir Thomas Sewell (b), and in Davison v. Stanley (c); and the doctrine there laid down is directly in point. The former of these is most folly reported in 1 Blac; and what was there said was not extrajudicial, but strictly applicable to the case as it was argued and considered at the time; though the Court rdso determined it upon another point. Lord Mansfield and the rest of the Court thought it perfectly clear, That if the second lease were bad, to effectuate which was the sole purpose of surrendering the first, the first would be set up again. A nd yet the same objection now insisted upon would have applied there, that though the lease were bad under the power, yet it would enure to pass an interest during the life of the Master of the Rolls, who granted it. Then came the case of Davison v. Stanley; which did not proceed on the ground of fraud specifically, for none was probably intended, though that was incidentally iutro- *■ .qq ^ duced, in order to shew that the judgment of the Court went according to the justice of the case. The ejectment there was brought by the tenant in tail under a settlement, whose estate could not be affected by any fraud of the tenant for life, as to the legal operation of the second lease. In the language of the Court, good lease must mean ** good throughout the term;" and void lease must mean void in the tense used in the case referred to in Rul. Abr. as to the interest which it purported to grant; for it is clear that the

(«i Moor- '>•*>■ (V) 4 Burr. 1975. and 1 Blac. 617.

\t) 4 Burr. xaio..


1805. ]east wa» good during the life of the lessor. Lord Mam*

- dem' ■fi'M sa'^' "* am veT c^ear tnat tbe acceptance of this new Earl of lease, * which did not pass an interest according to the conBerkeiit tract,1 cannot oparate as a surrender of the former." As Abji.of Yo*k. between these parties, then, the second lease must be considered as void ab initio. It is a principle of law that lex ntminifacit injuriam; and here the question is not, Whether there were a sunender of the first lease in fact? but Whether it shall be implied by late'? There will be no hardship on the lessor of the plaint1 ff in suffering matters to remain in the state they were in before the second lease was granted ; but much injustice to the defendant in extinguishing his former term when that which was the consideration, for it is avoided.

Lord Ellenboroogh, C. J. now delivered judgment (after stating the special verdict).—The question upon this special verdict is, Whether the lease of the 19th of A/op, 1743. was determined and put an end to by that of the 14th f lOl 1 of May, 17bt? The affirmative of this proposition has been contended for upon tbe part of the plaintiff on three grounds: 1st, That the acceptance of the second lease was an implied surrender of the former lease; 2dly, That the cancelling of the first lease amounts, of itself, to a surrender of the term thereby granted; and, Sdly, That the execution of the counterpart of the Lease of 1784, is a surrender of that of 1745, within the provision of the statute of frauds. Upon the two last of these grounds, the Couit never entertained any doubt; for, as it is enacted by the statute of frauds, *' That no lease of any lands pr houses shall be surrendered, unless by deed or note in writing, signed by the party or his agent thereunto lawfully authorised by writing, or by act and operation of law,' the act of cancellation, which can in "no allowable sense of the w old* be considered as either a deed or a note in writing," cannot since that statute be a surrender; nor can the counterpart of the second lease enure as such, unless it does so by operation of law; inasmuch as it does not puiport in its terms to be of itself a surrender, having no words in it which denote or can amount to a yielding or rendering up of the interest of the Archbishop to Mrs. Egerton; but merely recites that the grant of the new is partly in consideration of the surrender of the first indenture

tore (which surrender, however, if any such had in fact 1805. been made, ought to have been specially found by the jury) RoE dam. and which fact of previous surrender this recital by no means Earl of neeessariry imports; for the statement in the counterpart ^*^i*r will be sufficiently accurate, if the acceptance of the second Abp.of ¥•««. lease would by operation of law be a surrender of the former. And indeed this point was not much pressed by either of the gentlemen, who very ably argued this case on behalf of Lord Berkeley. But the material ground on which" they I 1"^ J contended, that the acceptance of the second lease was a surrender of the first, is-this: That Mrs. Egerton having a lifeestate, it was competent to her to make leases by virtue of wch interest, independent of the power given to her by the will of Lord Berkeley of Strattort; and that the lease of 1781 being a good lease, capable of taking effect out of her life estate, was not void ab initio, but passed an interest; and being accepted, worked a surrender of the first lease, inasmuch as the two leases could not stand together. — In support of this position, Co. Lit. 45 was cited; where it is laid down as to ecclesiastical leases, that though not warranted by the 1st and 13th E/iz. they are good against the lessor, if a sole corporation; and, during the life of the head, if made by an aggregate one. And Whitley v. Gough, Dyer, 140—-6 (where a husband and his wife being seised of an estate tail, the husband made a lease for 18 years to one, who had in the lands demised a term of 99 years, the acceptance of which lease was holden to be a surrender of the prior term, though the wife after the death or her husband avoided the lease made by him) was, together with various other cases, cited to shew, that the acceptance of a voidable lease is a surrender, though the acceptance of a void lease is not; which position the counsel for the defendant did not dispute. On the other side it was contended, that ss between the plaintiff, the Earl of Berkeley, and the defendant, the Archbishop, the lease must be taken to be void ab initio, whatever it might be as between the Archbishop and Mrs. Egerton; for that the same instrument may at different limes have a different operation. As a lease by a tenant for life, and him in remainder is, during the life of the tenant for life, his lease, and the confirmation of the remainderman; and after the death of the tenant for life the lease of [ 103 ]


1805. <fcf remainder-man, and the confirmation of the tenant

7" for life. That according to the anthority of Wilson and

Karl of"' Sewell,A Burr. 1945, and t Black. Hep. 617, and of Davi.

Berkeley sou v# Stanley, 4 Burr. 2210, unless the second lease passed

against . ,. ■ ,, .

Apb.of Yow, an interest according to the contract, it could not operate as an implied surrender: and that thqse cases further prove, that it is no surrender unless the lessee take all the interest which the second lease purports to grant; which, under Mrs. Egerton's lease the Archbishop certainly did not do. In support of which position a case from 2 hull's Abr. 495, letter F. p. 7, was relied on; where it was laid down, That a lease by a deau and chapter, not warranted by the stat. 13th of Eliz. is not a surrender of a prior lease, it being void :—and yet, according to the doctrine of Lord Coke, 1 Inst. 45, a, it is clearly good during the lite of the dean. But we do not think this last case from Rolle's Abr. an authority for such a position; foi although there may be now no question but that such lease would be good during the life of the dean, yet it appears not to have been so understood in the time of Lord Rolle, according to the MS. note of. Lord Hale, cited by the plaintiff's counsel from the notes in Mr. Haigreave't edit, of Co. Litt. p. 45, note 4, and from the case of Southwell College and the Bishop of Lincoln, l Mod. 203 ; where £//is, J. said that Mr. Justice Jones, in the case of Lloyd and Gregory, denied Hunt and Singleton's case; which is the authority referred to by Lord Coke, in support of his opinion given in 1 Inst. 45. According to the argument used on behalf of the plaintiff', he is entitled to recover the messuage in question, because the lease of Mrs. Egerton not having been made in compliance with the condition in the £ 101 J leasing power, which requires the best and most improved teal that can be got at the time of making the lease to be reserved, would not operate as an uppointment of an interest to the Archbishop under that power; and that, therefore, he took no estate under the will of Lord Berkeley of Stratton: and though the lease be void on this account as to the Archbishop, i. e. ' as an appointment under the power,' yet, that it is not void in toto as to him; for that it passed an interest out of Mrs. Egerton's life estate, and operated as to him as a demise for years by a tenant for life, which would pass an interest for so many years as her life should enduie. For this last position no an thorny was cited in the argument but 1805.

the passage in Lord Coke, of which I have taken notice; „ ~

Li , . , , . • - i RoBdem.

where he says, that a lease made by an ecclesiastical person, Earlot

not according to the provisions of the restraining statutes, is Birkelet good during his life; but that, it must be remembered, is the Apb. of York, case of a lease, which, but for the disabling statutes, would he good for the whole period contained in it, and which could only take effect in one way, namely out of the estate of the lessor: and that the question there did not properly turn on the effect of the instrument, bat on the construction of the disabling statutes, i. e. whether they made it void ah initio, or only void as against the successor; leaving the lease to have-the effect and operation it had prior to the statutes for so long time, as it did noj prejudice the rights which those statutes were made to protect. But the provisions in Lord Berkeley's will did not contemplate nor had in any manner for their object, the restraint of any faculty or ability to demise, which Mrs. Egerton would have in virtue of her lifeestate. One of the first rules for the construction of deeds », Verba intention:, et non e contra, debent inservire. Sfieph. Tovcltslone, 86. And in the case of Gybson and Searlef Cro.Jac. 176, the rule was recognized in the case of a sur- £ 105 ] render; where " the Court resolved unanimously that it was not a surrender, for that ought to be the intent of the parties; and it appears that there was not any intent of the parties, but, Sec.; and afterwards, " this lease was made with an intendment \o his benefit, and not to his hindrance, as it should be if it should be construed a surrender," Sac. And in Goodtitle v. Bailey, Corf/;. 600, Lord Mansfield lays it down, that deeds shall be so construed as to " operate according to the intention of the parties, if by Jaw they may; and if they cannot operate in one form, they shall operate in that which by law will effectuate the intention." And such was the law in the time of Lord Coke as to conveyances by the common law; though the same rule did not hold as to conveyances by the statute of uses; which, in many cases were not allowed to operate in any way but that in which the party intended they should operate; for it is laid down in 1 Inst. 49, "That where a man has two ways to pass lands, and both by the common law, and he intends to pass them by one of the ways; yet, ut res magi* za/eat,

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