a power which directed a clause of re-entry on non-payment of the rent for one and twenty days. The lease in execution of this power contained a clause of re-entry in case the rent should be behind for one and twenty days, having been lawfully demanded, and no sufficient distress. But though the lease super-added the necessity of demanding the rent, and searching the premises for a distress, Lord Mansfield, and the Court of King's Bench were of opinion that the lease was a good execution of the power. (d)

On the other hand, where a power directed a clause of re-entry precisely the same as that in Hotley v. Scott, and the lease super-added the same necessity of a demand and absence of a sufficient distress, the Court of King's Bench (Lord Ellenborough, C. J.) certified to the Master of the Rolls, who had directed the case for the opinion of the Court, that the lease was not made in conformity to the power. (e) It is remarkable, that in this last case Hotley v. Scott was not mentioned.

The question was again raised in a case in which it received great consideration. A power was given under a settlement," from time to time by indenture, to demise such premises as were then leased for lives, or for years determinable on lives, to any persons in possession or reversion for one, two, or three lives, so as there were not thereon any greater estate or interest subsisting at any one time, than what would be determinable on the dropping of three lives; and so as there were reserved the ancient and accustomed yearly rents, duties, and services or more; or as great or beneficial rents, duties, and services or more; or a just proportion of such ancient or the then reserved rents, &c.; (except heriots, which might be varied at will;) and so as there were contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved; and also

(d) Hotley v. Scott, cited from a MS. note of Mr. Butler, 1 Br. & B. 150. S. C. imperfectly reported,

Lofft. 316.

(e) Coxe v. Day, 13 East, 118.

by indenture to demise any of the premises for any term absolute, not exceeding twenty-one years in possession, and not in reversion, so as there were reserved so much or as great and beneficial yearly and other rent and rents, and other services proportionably, as then were therefore paid and yielded, or the best and most improved yearly rent and rents that could be reasonably had or obtained for the same without taking any fine; and so as in every such lease there were contained a clause of re-entry in case the rents reserved were unpaid by the space of twenty-eight days;—and also, by indenture to demise any of the premises wherein or whereupon any mine or mines should be open, or any person should be willing to open any mine, for any term not exceeding thirty-one years in possession, so as upon every such lease there were reserved such share of the produce, or such yearly rent as could reasonably be obtained without taking any fine, and so as the lessees were not by any express clause freed from impeachment of waste, other than in the necessary and reasonable working thereof; and so as there were inserted such proper and usual covenants for the effectually winning and working the mines, and smelting the ore, and doing other acts, as were usually inserted in leases of the like nature." The lands in the declaration mentioned had been and were leased, and were under and subject to a lease for a term of years determinable on lives. The husband, after the marriage, by indenture, in consideration of the former lease, and of 1057. and of the yearly rents, duties, payments, services, articles, covenants, provisoes, and agreements therein after specified and reserved on the part of the lessees, demised the lands in question for ninety-nine years, if three persons or either of them should so long live, paying the yearly rent of 21. by equal portions at Michaelmas and Lady-day, with a couple of fat capons, or 1s. 6d. in lieu thereof at the election of the lessor, and also an heriot of the best beast, or 40s. in lieu thereof, upon the death of every tenant dying in possession; and the like upon every assignment, sale, forfeiture, or alienation; and also the lessees yielding and doing constant suit of mill, paying such toll and mulcture

as others grinding their corn there should pay. The lease contained a covenant by the lessees to pay the yearly rent of 2. and the duties, heriots, suits, services, and other reservations, at the time and in the manner limited and appointed for payment and performance of the same, or else the several sums reserved in lieu thereof; with a proviso, that if at any time the rent of 21. and every or any of the duties, services, reservations, and payments thereby reserved, or any part should be unpaid or undone by fifteen days next over or after any of the times whereat or whereupon the same ought to be paid, done, or performed, and no sufficient distress or distresses could or might be taken upon the premises, or if the lessees should leave the premises in decay six months after view had and notice given, or should commit any wilful waste, or grind their corn at any other mill, (the lessor's mill being in repair) or if the lessees should assign without licence, or if any default should be by the lessees made in the payment or performance of all or any of the reservations, covenants, and agreements thereinbefore, on their parts contained; then the lessor, and the person to whom the freehold of the premises should belong, might re-enter. Upon the trial of an ejectment, evidence was received that the usual and accustomed form of leases of the estate contained in the marriage settlement, for lives or years determi nable on lives, as well prior as subsequent to that settlement, was with a conditional proviso of re-entry similar to that in this indenture; and upon special verdict, the Court of King's Bench having decided that the lease was a due execution of the power, a writ of error was brought in the Court of Exchequer Chamber. The question having been twice argued, the judgment of the Court below was reversed by the opinion of four judges against three. But upon a writ of error, the House of Lords reversed the judgment of the Court of Exchequer Chamber, thereby confirming that of the Court of King's Bench. (f)

(f) Doe dem. Earl of Jersey . Smith. See the judgment of the Court of K. B. 5 M. & S. 467.

Judgment of the Exchequer Chamber, (for the leases, Dallas, C. J., Richards, C. B., Park, J., and Bur

In a case decided subsequently in the Court of King's Bench, the power directed the accustomed rent to be reserved yearly, and that there should be a condition of reentry for non-payment; a lease executed in pursuance of the power contained a proviso that in case the rent were in arrear at the day stipulated for its payment, after reasonable demand the lessor, his heirs, &c., might re-enter and distrain, and take away the distress, and keep it till the rent was satisfied; and in case the rent should be unpaid for the space of twenty-eight days after it became due, being lawfully demanded, the lessor, &c., might re-enter :-it was decided that the power was well executed; that the clause for entering, after reasonable demand, and distraining and keeping the distress, did not oust the lessor of his common law right of distress, or of his right to sell under the stat. Will. and Mary; and that the power of re-entry after twenty-eight days was well inserted, and in conformity to the old leases; acting upon the doctrine laid down in Doe and Smith, that the former leases may be received in evidence to shew the accustomed form of demising. (g)

In the preceding case it was held first, that it was not a valid objection to the lease, that the rent was made payable on the 25th of March and 29th September; although the term commenced on the 6th of January, and therefore there was a forehand rent which might prejudice the remainder-man, inasmuch as the rent was made payable on the same day, by a former lease, and therefore this was the usual and accustomed rent.

And secondly, for the same reason that it was no objection

rough, J.; against them, Graham, B., Wood, B., and Garrow, B.,) 1 B. & B. 97. Judgment in Dom. Proc. For the leases, the Lord Chancellor, Lord Redesdale, Abbot, C. J., Richards, C. B, Graham, B., Wood, B., Bayley, J., Garrow, B., Best, J.; against them, Dallas, C. J., Park, J., Burrough,

C. J. Holroyd, J. and Richardson, J. 2 B. & B. 473. And see the case reported at length, 7 Price,

281.

(g) Doe dem. Earl of Shrewsbury v. Wilson, 5 B. & A. 363. And see Doe dem. Bligh v. Colman, 1 Bing.

30.

to the lease that the rent was made payable by half-yearly payments, although the power required it to be payable yearly, the term yearly meaning a payment of rent in the year.

And thirdly, that it was no objection to the lease, that by the terms of it, the landlord could distrain only after a reasonable demand, and that he was bound to detain the distress until the rent was satisfied; for this being a clause introduced for his benefit, he was not thereby abridged of any right of distress, which he had by common law or of sale. under the statute 4 & 5 Wm. and Mary.

And fourthly, that it was no objection to the lease that the clause of re-entry reserved the right of entry to the landlord, upon the rent being twenty-eight days in arrear; for this was a reasonable condition of re-entry, and was conformable to the old lease. Nor was it any objection that the right of re-entry was made to depend upon the rents being lawfully demanded, for the landlord was not thereby deprived of the benefit of the 4 Geo. II. c. 28; and, consequently might enter without making any demand.

And lastly, that part of the premises formerly demised jointly with others, at one entire rent, might be let under the terms of this power, at a rent bearing the same proportion to the old rent, that the premises demised by the lease bore to the whole premises formerly demised.

In another case the power required the insertion in the lease of a clause of re-entry, if the rent should be in arrear for twenty-one days, the clause actually inserted gave a power of re-entry, if the rent should be in arrear for twenty-one days, and no sufficient distress could be had; and it was held valid. (h) The question, may perhaps, be considered, as set at rest by a late case, in which the direction was, that in every lease there should be contained a clause of re-entry for the

(h) Tankerville v. Wingfield, 2 B. & B. 498, n. 7 Price, 343. 5 Moore, 346.