The Sun. — London, England, 1822-03-04 00:00:00

IRISH LEASES. IIOLTSE OF LORDS---WEDNESDAY, FEE. 27, 1822. :I . ltcriarto,NuaENT, Plaintiff in Error. THOMAS CUTHBERT, R,OBEILT WAR REN GUMBLETON, JOHN LlNDSAY,..tDefendants in AV IL LIAM M ASS EY BAKER, and j DANIEL CALLAGHAN, Esquires, LORD , CLIAXCF.LLOU.—.IIy Lords, There is a cause which :was heard a few days ago before your Lordships, on a writ of .error from Ireland. The question in it was in effect, whether -ccertain Lases were executed under circumstances such as to in duce your Lordships to declare that they cannot stand; that question is presented by the special verdict, in which the fol lowing facts were found :—" That one William Galway was seized of the lands and tenements, in the declaration mentioned ,in his deniesr.., as of fee and being so seized thereof, an inden ture was executed by him, dated the 24th day of June, 1731, whereby he demised certain parts thereof, in the declaration anentioned, to Richard Pike, his executors, administrators, and assigns, for the terns of eighty-two years, to be computed horn .the Ist day of Nay, 1731, at the yearly rent of 561. sterling, payable half yearly," at certain periods mentioned in the especial verdict_" That under and by virtue of the demise, Richard Pike entered and became possessed of the reversionary interest belonging to William Galway, and :As heirs, according to law." They then further found, " that Galway being so seized of the rent and reversion of the lands and premises, in the -demise contained, and being seized of the residue of the lands and premises, in the declaration mentioned in his de anesne, as of fee, made his last will and testament, and devised the lands and premises, in the declaration mentioned,• to his :son, John Galway, for life, remainder to the first son of John -Galway, and the heirs male of the body of such • first son, with divers remainders over." The effect of this will, therefor!, your Lordships observe, is this, that subject to the term of eighty-two years, as to the lands comprised in that term, John Galway was tenant for life, with remainder to hisfirst son in tail; and with respect to the lands not comprised in that term of eighty-two years, he was seized of those lands for life, with remainder to his son in tail. Then the Jury further found, " that the testator died seized -of the pi - emises as aforesaid, and that after his death, his son, .John Galway, entered into the lands and premises, by virtue of the will, and was thereof seized, as the law requires, for the term of his life." Then they found, " that Edward Galway," who-was one of the lessors of these plaintiffs, " was the first _son of John ; and that after the death of the said William, namely, on the 14th of November, 1765, an indented deed was -executed by and between John Galway, the tenant for life, and one William Jackson, by the name and description of the Reverend William Jackson, stating the subject demised by the indented deed ; and the substance of it was, a demise to Jack .son and his representatives for the term of thirty-one years, to be computed from the Ist day of May, 1765, at the rent which is mentioned, and which is the sum of 1601. sterling : the terms of payment are then taken notice of, and that Jackson entered by virtue of that demise ; that he became possessed of the pre mises, to him demised, according to law, and that Pike and he were respectively possessed, as before mentioned. Then the special verdict proceeds to state, that part of the lands being comprised in the eighty-two years term, and other part of the lands being comprised in the thirty-one years term, and John being seized for life, with remainder to Edward in tail, " an indenture was executed, dated the 17th .of May, 1772, between John and Edward Galway, of the one part, and James Kearney and Thomas Sarsfield, of the other part, by which, in consideration of the sum of 101. paid by Kearney and Sarsfield, they bargained and sold."—My Lords, 1 stop here, .:after mentioning the words " bargained and sold," because I wish fairly to observe to your Lordships, that the de sseription of subjects which they bargained and sold, and likewise the effect of that bargain and sale, seem to me not to be quite so clearly stated in this special verdict as one should wish, but no question having been made I .at the bar upon the validity of the recovery, I think it' would , be quite endless, if we were to send back to Ire- I land for farther findings in matters of this sort, and therefore, -for the present I wish to take it for granted, that the recovery was well suffered. "bargained, and sold, their respective estates and reversions of and in all the lands and premises in the declaration mentioned," for the clear and usual amount, " to Kearney and Sarsfield, for one - whole year thence next en suing, by virtue whereof, and by force of the statute for trans eferring uses into possession, they became and were possessed, ,aecording to law, of the reversion and reversions ;" not using again the words " estates and reversions," but the words being -in the plural number in the first instance, " estates and rever -sions,' the effect of this appears to be not as affecting the estates in the plural number, and reversions in the plural num • bet, but the reversion in the singular number, and the rever sions in the plural number, " of all and singular the premises bargained and sold to them for one year ; that being so pos sessed, and John and Edward Galway beine so seized, an in dented deed was nettle, dated 18th May, 1772, between John Galway of the first part, Edward Galway of the second part, :Lord Viscount Clanwilliam of the third part, .James Nash and Richard Reilly of the fourth part, and Kearney and Sarsfield of the fifth part, by which for certain valuable and full consi sierations therein-mentioned, John and Edward Galway re •spectively released to Kearney and Sarsfield, and their heirs, the respective estates and reversions of them, the said John and Edward Galway respectively, in all and singular the lands and premises aforesaid, amongst other things; and it has been ob served, and very fairly observed, at the bar, that it is a possi ble thing, that if we had been informed what these words, -" among other things," mean, by the description of the sub jects to which the words are supposed to relate, it might have required attention to the nature of those subjects, and the na ture of the interests in those subjects, in looking to the effect of the power of making leases ; but here I apprehend, that if that argument could be shewn to have any force and effect, it was the duty of those who advised the drawing up of that spe cial verdict to have inserted, not in those general terms, but by particular descriptio n , w h a t t h e wor d s " amongst ot h er things ' really meant ; and we must take it, that if they had been ex spressly set forth, it would have made no difference in the ope ration of law—we cannot, by conjecture, suppose it would. 'We must take for granted, that the special Verdict was drawn to the satisfaction of all who were concerned in the drawing of , that special verdict, " To hold to them and their heirs during the lives of John and Edward Galway respectively, in order that they might become perfect tenants of the freehold of the premises, and that a common recov e ry mig ht b e suffered there -of," and I do not enter into the question, whether there does --or does not exist any doubt about the validity of that recovery, for the purpose of this proceeding, I take for granted that re covery was well suffered. Then it is declared, "that such re ecovery shall enure, and that the recoverer thereon shall stand seized of the premises, to the uses and purposes here follow -ing, amongst others, that is to say, to the use df John Galway -fox his life, with remainder to the use of Edward Galway, for his life, with remainder to the u se of John G a l wa y, th e younger -son of Edward Galway,. for his life, with remainder to the - son of John Galway the younger, and the heirs male of the body of such first son, with remainders over;" the effect there afore of the recovery was, that John Galway, the father, being tenant for life previous to the recovery, and Edward Gal way being tenant in tail, in remainder expectant upon that estate for life, and the two having, therefore, in them -the power of disposing of the estate by alienation exactly as they pleased, they thought proper to reduce the estate of Ed ward, the son, from a tenancy for ii:e to a tenancy in tail, with remainder over. The question upon this will be what they in tended—what extent of power of alienation they meant to reserve to themselves under the power and authority affecting the estate. The special verdict, with a view to induce the consideration of that question, states, " that it was provided that the demise so made to Jackson should be good and valid, according to the ;terms of the indenture of demise aforesaid." The demise made ..to Jackson, your Lordships will recollect, was a demise not., .made by the father and John, but made by the father alone for .thirty-one years; it would have endured certainly during thirty .one years, if his life had endured for that time, but if he had died in the coin-se of thirty-one years, the term would have been ; gone, for it could not exist longer than his life estate, but by virtue of a Declaration of Uses, contained in this Recovery, it is made a good demise, and it becomes material to observe that the settlement itself takes notice that there is to be a term of years antecedent to the estate for life of John, and, of course, antecedent to the estate for life Of Edward. Then' follows this Clause, ‘ilCo;idedalways that it shall and may be lawful to and for the said John Galway, party to these presents, and Edward Galway, jointly," that is to the two in dividuals who, by suffering a recovery, might have done what ever they thought proper with the estate, to them jointly, not .to either of them singly, but to them jointly, from time to time, during their joint lives, to demise the lands, tenements and pre. Tithes, or any part or parts thereof ; "the power, therefore, un -der the words which I . have just stated, is a power that applies to every part of the premises which were the subject of the set tlement ; it is a power " to demise the said lands, tenements, and premises, or any part or parts thereof;" and I take notice yof that the rather because if the words, "amongst other things" had not constituted part of the special verdict ; but th ere had been an express declaration of other premises, yet these words would have been large enough to apply co all the premises . which were so described " to any person or persons for any number of lives or years ;" no limitation in point of number of lives, or in the number of years, no limitation in point of num ber of years, so that the estate might have been given under the power without limitation, either as to the number of lives or the number of years for which the demise was to be made, and in case that number of lives or that number of years was not such ,asoto go nearly, to exhaust the tnjoyment of the estate for ever, it is added, that they are to be at liberty, jointly, to do this ":with covenants for renewal for ever, so as upon every of such leases there be reserved and made payable, during the continuation thereof respectively, the ancient or accustomed rents or more, and.sn as none of the said leases be made dis punishable of waste by any express words therein, and so as in every such lease there be contained a clause of re-entry for non payment of the rent or rents, to be thereby respectively reserv ed, and so as the lessee and lessees to whom such lease or leases shall be made, seal and deliver counterparts of such lease and leases, any thing herein contained to the contrary in any wise notwithstanding."—llere I will just shortly observe, supposing the execution of this power-not to be liable to any-other-objec tions, the objection that in the power of re-entry there was an nexed te condition that the re-entry should not take place until a given number of days, and that it should not take place -if there was a sufficient distress upon the premises. Theie two ob jections, supposing the execution of the power to be good in all other - respects, are entirely removed by what was done in this House in the Jersey case ; and I take the liberty to ntention that case to your Lordships, for having very much relied in the very humble opinion I took the liberty to state- in the House upon what had been, as I conceived, very habitual in practice, quite habitual in settlements of great estates, and perfectly habitual in the office of conveyancers, it has occurred to me to have that notion extremely strengthened, by having observed in instances that have since conic before me, that that judgment is perfectly conformable to practice ; indeed, I think 1 may almost go the length of saying, that I hardly know a great estate in which, if the judgment had been otherwise, all the leasers, or nearly all the leases, would not have been bad. There is then another leasing power, " provided also, that it shall and may be lawful to and for the said John Galway, during his lifetime, and to and for Edward Galway, Richard Galway, John Galway the son, and William Galway, as and when they shall respectively be entitled to the freehold of the said lands and premises, by virtue of any of the limitations aforesaid, by indenture under their respective hands and seals, to demise the said lands, tenements, and hereditaments, or any part thereof, to any person or persons, for pne, two, or three lives, or for life or lives, or for any term of years not exceeding thirty-one years, so as every such lease be made to commence in possession, and not in reversion, remainder, or expectancy ; and so as upon every such lease there be reserved and made payable, during the continuance thereof, the most and best im proved yearly rent that can be reasonably had or obtained for the same, without taking any sum or sums of money, or other thing, by way of fine, and so as none of the leases be made dis punishable of waste by any express worde ; and so as in every such lease there be contained a clause of re-entry for non payment of the rent or rents to be thereby respectively re served." And the usual requisition that the party shall deliver counterparts. -Your Lordships will perceive there are many marked dis tinctions between the first of these powers and the second of these powers. In the first place, the first of these powers is a power reserved to two persons to act jointly, which two persons, previous to the execution of this settlement, had in them; jointly the power of making any alienation whatever that they thought proper to make of the estate, and that by virtue of the interest which they had in the estate.. The next difference is, that there is nothing here said requiring in express terms the lease to he a lease in possession. It is further-to be Observed, that with respect to that lease to Jackson, which is expressly made good by the limitation to uses in'this 'recovery, John and Ed -ward -could not in this sense be-in possession, that they should be in the actual pernancy of the profits of the soil, they were entitled to the rent, and - therefore, in a sense, in possession, but in a very different sense from that. Then the next dif ference to be attended to is, that the lease to be made was to be not for any uncertain number of lives, but for a given number of live*: it was to be a demise, not as the former was, for any undetermined number of years, but it was to be for a limited number of years, viz. years net exceeding thirty-one; and the next observation upon it is, that there was to be no covenant for perpetual renewal, so that the one was to be a lease, to be made by persons who, previous to the indenture, had, by pass ing their interest in the estate, a power of alienating it as largely as they thought proper. The power reserved is a joint power to demise for any number of lives whatever, for any number of years whatever, and if the lives and years did not in a great number of them go to exhaust almost the whole interest in the estate, yet they had the power to insert covenants for perpetual renewal, which, according to the custom of - alienation in Ire land, would in truth provide for what may be almost repre sented quasi alienation of the whole property-- With these two powers jointly in John and Edward, and. severally in John and Edward, and those to succeed, the spe cial verdict goes on to state, " that a recovery was suffered," which I take for the purpose of this cause to be duly suffered ~ and then it states, " that two indented deeds were executed on the 23th day of October, 1789, between John Galway the elder, and Edward Galway, parties to the deed of 13th May, 1772, ' of the one , part, and Sir Richard Kellett, Knight, of the other part, whereby, in consideration of two respective sums of ss. they bargained and sold unto Sir Richard Kellett, their respective estates anti reversions in the premises in the declaration mentioned to hold for one year, by virtue whereof, and by force of the statute for transferring uses into possession, - Sir Richard Kellett became possessed of the reversions as the law requires, and being so possessed, two seve ral indented deeds were executed on the 29th of October 1789, between John Galway the elder, and Edward Galway, parties to the indenture of the 18th of May 1772, by certain names and descriptions therein mentioned of the one part, and the said Sir Richard Kellett of the other part, by one of which, after reciting the indenture of the 14th November 1765," that is the first mentioned indenture " made between John Galway the elder and Jackson, and containing a demise of part of the lands and premises in the declaration mentioned for thirty-one years, at the yearly rent of 1601. sterling, payable half yearly, then reciting the release of the 13th of May 1772, the limitations thereof, and the leasing power aforesaid by John and Edward, and that they, by virtue of and under the leasing power for the considerations therein and hereinafter mentioned, had agreed to demise the dwelling house and other premises unto Sir Richard Kellett for three lives, renewable for ever at the yearly rent of 1601. sterling,"—which your Lordships recollect is the exact sum at which Jackson held, " but subject nevertheless to the aforesaid lease so made thereof, by John Galway to Jackson ; they, in consideration of 16001. sterling, paid by Kellett, and in consideration of the rent, reservations, covenants, and agree ments thereinafter contained on the part of Sir Richard Kellett, demised all the premises, estate, and effects, with the rights, members, and appurtenances, saving always thereout unto John Galway during his life, and after his decease, unto Ed ward Galway during his life ; and after the decease of the sur vivor of them to the person or persons Who, by virtue of the deed of 1772, would be entitled thereto, and all mines, mine rals, and royalties, happening or bein g th ereon , an d likewise all wood and underwood, and timber and timber trees, with full and free liberty of ingress and regress to take and carry away the same." 'To hold these during the three lives therein inentioned,-and of these three lives, two, if not the three, are still subsisting—two certainly, " and during the natural lives of such other persons as should from time to time for ever thereafter to be added, and inserted in any renewal to be ob tained thereof, pursuant to the coven a nts thereinafter contained for perpetual renewal, but subject to the lease made to Jack son, yielding and paying with a proper reservation to the per sons respectively entitled to the rant or reversion, the yearly rent or sum of 1601. sterling, which they aver, and the special verdict authorises them in averring, is more than the ancient rent of the premises ; and as much as is reserved on the 1 as! so made to Jackson, the rent reserved to he payable half yearly as therein mentioned, clear of all rates, taxes, charges, and im positions whatsoever (quit rent and crown rent excepted.") Then follows this clause, " That if the reserved y ear l y rent or any part thereof should be behind, and unpaid by the space of twenty-one days next, after either of the days so thereby ap pointed for the payment thereof as aforesaid, that then and so often as it shall so happen, it shall and may be l aw f u l f or J o h n Galway and his assigns during his life, and after his decease, for Edward Galway, his heirs and assigns, or such other person or persons as from time to time shall be respectively entitled to the rent and reversion of the demised premises, under and by virtue of atiy of the limitations in the re c it e d i n d enture o f re lease of the 18th of May 1772, contained into the lands and premises, or any part thereof, to enter and distrain, and the distress and distresses there had and found to. take, lead, drive, carry away," together with all the words conveyancers usually put into a clause of distress, and there are generally enough of them, " until the rent and all arrears thereof, and all costs, charges,. and expences attending the recovery thereof be fully paid and satisfied ; and for want of sufficient distress so to be , had and found thereon, that then it should be lawful for John , 'Galway and his assigns during his-life, and after his decease, to and for the said Edward Galway, his heirs or assigns, or such other person or -persons as from time to time shall re spectively be entitled to the rent anti reversion of the demisel premises, under and by virtue of the limitations in the deed of 18th May 1772, contained into the demised lands anti premises, or any part thereof, in the name of the. whole, to re-enter, and the same and every part thereof to have again, repossess and enjoy as in the first and former estate." Then follows a covenant on the part of Sir Richard Kellett, which I think it is not necessary to detain your Lordships with stating, except to call your Lordships' attention to the words " that he would quietly yield and surrender up the same (casu alties of fire and war excepted)," upon which some argument has been addressed to your Lordships at the bar : then follows . the covenant for renewal, the effect of which is stated in the words which are to be found at the close of the covenant, namely, " the intent and meaning of the said indenture, and of the parties thereto being, that Sir Richard Kellett, his heirs, and assigns, should always have a subsisting lease for three lives, renewable for ever, in the demised lands and premises." Then, my Lords, the special verdict goes on to introduce the defendants in error, between whom and another. person the 'question now arises; and I tlink I may venture to state to every such proposition, that if there had been no leases, neither the lease for eighty-two years, nor the lease for thirty-one years, affecting any of thes e Remises, this would he a case in which no question would arise, except the question that might arise upon the words " casureties of fire and war excepted," but the objection to the judgment below is of this nature—lt is said, that, in the first place, it is admitted, or rather, 1 think, I should express myself more correctly If I were to say it ought to be considered as clear, though not admitted, that is an expression that imports to, much ; but I think we who are to proceed-to- judgment; may fairly represent that' it is quite clear upon these irroceedings„ that as John a nd Ed wa rd Gal way had the whole estate in them at the time this recovery was suffered,. thong!' they narrowed their interests in thiS way, that is, that they-limited to Edward the son, instead of an estate tail an estate for life, and though, therefore, by the operation of that recovery, John and Edward would cease, by virtue of their int:vest in the estate, to have • a power of alienation ; yet that it was the intent and meaning of John and Edward, not that John alone should, not that Edward alone should, but that they who together, by virtue of their interest, prior to the recovery, could' have alienated the whole of the estate; should,. by virtue of a joint execution of some power, have, in effect, the authority to make what I may call an Irish aliena tion of the estate, that is to say,, that they might alienate it for any number of years, and make it a sort of perpetual aliena tion, that they might accompany that demise, for any number of lives or any number otyears, with a covenant for perpetual renewal, which being fro ffi time to' time carded into eIA.-cution, would effectuate an alienation in perpetuity ; that that was their intention, and supposing these had been no such thing as this antecedent term for eighty-one years, and this antecedent term for thirty-one ye a r s , a nd taking it now:to be well settled that the power of re-entry being apower of re-entry after twenty-one days' non-payment of rent, and being a power of re-entry . for want of sufficient distress, dees not render it an improper power of re -entry—l (say, taking that f o r gra nted, I think nobody can, in judgment, deny th a t th ose l eases wou ld h ave b een 'good. But then the objection to the leases, which objection has been got over in the Court of Ireland, is of this question : They say that the power which is contained in this settlement as a power of re-entry for non-p a y men t o f ren t, ought to be considered with this degree of strictness, not that the leases are good, if there be any mode of re-possessing the estate of the lessor in case of non-payment . of rent, but that there must be, in the strict sense of the words, what is denominated and known by the name of a power of re-entry for non-payment of rent, and they say that inasmuch as to part of the premises there was an exist ing term of eighty-two years, and as to another part of tNe. pre mises there was an existing terns of thirty-one years,. and this demise is made to col - lime:see from the date of the demise it self, that it may be represented in some sense as a concurrent interest in the estate, in point of time I mean, and that there being these two terns, one of eighty-two years and the other of thirty-one, which required no confirmation by the settlement, because that term of eighty-two years was created by a previous deed, but there being that term of eighty-two years, and there being the term of thirty-one years made good and effectual for the whole term of that thirty-one years, by the recovery of 1772, there is that intermediate estate between the lessor's es tate and the estate which this lessee has, which would go to prevent the effect of a power of re-entry for non-payment of rent, understood according to the strict sense of these words, " power of re-entry for non-payment of rent.',' Here, my Lord, the question is this, whether looking to tho interest of the parties and looking at the intent of the parties, and looking at the purpose for which tht power was inserted in this deed, you are to say, notwithstanding such was the inte rest of the parties, and notwithstanding such was the intent of the parties, and notwithstanding the intent with which the power was reserved, still the parties have so mistaken their way in the formation of this settlement, that by no construction whatever to effectuate that intention can you give effect to these leases. My Lords, I have always understood that with respect to powers you ought, as far as you can, to endeavour to effec tuate the intent With which the power is reserved. Now, what the interest was with which the power is here reserved, is quite clear : these persons had, before they executed the settlement, a joint interest—not a joint interest indeed, but respective interests in the estate, which gave them jointly; if I may so express it, by virtue of their interest, a power of alienating the estate for ever. M'ith respect to the premises in question, they thought fit to reserve a power which still does not enlarge what either of them could do by virtue of the interest which they respec tively had in the estate prior to the execution of the settlement, but meaning still to continue a power of alienating in another form the estate for ever, that which they were to do by a joint application of their several interests, such as they had prior to the execution of the settlement, they were now to do by virtue of the execution of the joint authority reserved to them by themselves, the grantors, in the settlement to be jointly exe cuted. 'Why, my Lords, the settlement also, which is of very material consequence —the settlement in which this power is reserved, expressly takes notice, that there is a lease for 31 years of part of the premises, and therefore the settlement taking notice that there is a lease for 31 years of part of the premises (and they could not but know there was a lease for 82 years of another part of the premises), and the settlement expressly providing, that that lease for 31 years shall be consi dered as a valid lease, after the execution of the recovery, it was unnecessary for them to say that the lease for 82 years should be considered as a valid lease after that recovery was suffered, for it was so whether they said so or not. Their in tention must therefore have been, to have enabled themselves, by the execution of a joint authority, so to deal with the estate under the execution of the power, notwithstanding there was this term of thirty-one years over-riding the life estates, which they refesectively took under the effect of the settlement, and notwithstanding teere was this term of eighty-two years over riding the estates they respectively took under the settlement, and then the question comes to this, whether if there is not in a strict sense a power reserved ; but if, by virtue of the legal operation of what they hav e done, in case there was non-pay ment of rent, they could have again re-possessed themselves of the estate, that is not to be considered according to what must be understood to be the intent and meaning of such an instru ment as this--.a right to re-enter for the purpose of re-possess ing themselveS of the estate. Now, the way in which they have executed this power, unless I misunderstand it, is this, they have executed it in such a way, that the rent reserved under Jackson's lease, I apprehend, would go to the lessees who took under the execution of this power, then it comes to be a question in point of law, whether, becatfse the lessee un der this instrument would be entitled to Jackson's rent, which your Lordships recollect is exactly the same as the rent re served by this lessee himself, the rent under the terns belong ing to the lessee, and the lessee taking the lease by value of that conveyance which gave him a title to the rest, his interposing title to that rent, if I may so express it, is to have the operation of making his lease good for nothing. My Lords, I have looked with very great attention into all the doctrine I can find on the execution of powers, as well in writers as in cases, and I must confess, after a strong inclina tion to hold a different opinion, I have brought myself to think, that inasmuch as by a claim made they might afterwards bring ejectment in case there was non-payment of this rent, and re instate themselves in the same situation as they were before the execution of this power, that, upon the whole, the judgment from which this writ of error comes is right; and I am the more inclined to alter my opinion upon that subject, because I believe it arose from my mind being a little impressed by the feeling with which an English lawyer looks to this mode of perpetual renewal--by those feelings natural to my mind, as being more conversant with the mode of English alienation than of 'lrish ; but attending particularly to that case of Coventry v. Coventry, and \tr. Sugden's book, which goes a great way, I think, to esta blish the point I have alluded to, it does appear to me thatshis is an execution of the power which goes to effectuate the intent of the parties to the settlement, who had such an interest as these individuals had prior to the execution of this deed, who took notice of that lease which must therefore have been in °eel'. minds, and who evidently intended to reserve to themselves a power of alienating in the form in which they here do or have purposed at least to do, and that it is the duty of a Court of Justice to give effect to that intent if it can ; and on the best consideration I can give to tile subject, I do not see any conclu sive objection against it. I am of opinion, therefore, your Lord ships ought to affirm this judgment. My Lords, Phave in this case deviated from the usual course of proceeding where there is a motion to affirm judgment, but the ease appeared to me special in its nature, and that therefore it was not unfit to travel at least so far into the reasons not very much in detail, but generally the grounds upon which it does appear to me, at least, that this judgment ought to be affirmed. Your Lordships will have the assistance of another Noble Lord who is now in the House, and who, being very conversant with the effect of Irish settlements, can certainly give your Lordships much useful information upon the subject. Lord REDESDALE—My Lords, this case is so important with respect to property in Ireland, where a great portion of the land is held under leases for lives renewable for ever, that I shall take the liberty of trespassing upon your Lordships' time for a few moments. And first of all I desire to reprobate any idea, that because political inconvenience has been produced in Ireland by leases for lives renewable for ever, therefore your Lordships are to have a different disposition in forming your judgment on the construction of leases of that description in Ireland, than you would on the construction of leases of that description in this country. Ido not apprehend that political considerations of that description in any measure belong to a Court of Justice, and therefore I lay that consideration wholly out of the case ; and 1 mention it only for the purpose of de claring my opinion that as long as the Legislature shall think fit to permit such leases, the consequence must be that Courts of Justice must judge upon contracts concerning them, as they would on contracts of any other species. My Lords, I think a great deal of the argument in this case has been founded on a misapprehension of the state of the pro perty, and it is clear that the persons who found this Special verdict did not apprehend the real state of the property, for they found that William Galway made a lease for years, and having made a lease for years, the' lessee became possessed of the( re version belonging to William Galway and his heirs, according to law, "and the said jurors further, upon their oath, say that the said William Galway, being so seized of the rent and rever sion of the lands and tenements, made his will." Now William Galway was seized of the freehold of the lands ; he was seized of the immediate freehold, and his will operated upon the free hold ; this finding, therefore, is very inaccurate in that part of it, and that inaccuracy seems to have run through the whole of the argument upon the subject of this lease. William Galway had the freehold, that freehold subject to a legal interest which he had granted out of it ; lie was seized of the freehold, and that was a rent incident not to a reversion, but a rent incident to a freehold. My Lords, • I apprehend, therefore, that when he made his will he devised the immediate freehold, and the freehold passed by his will subject to the lease for years. My Lords, having devised this estate to his son for life, and then to his first and other sons in tail, the son was tenant fbr life of that freehold which had remained in the father ; the son was tenant in tail of that freehold which was one entire estate to which the rent was incident. My Lords, under these circum stances, the father and the son came to an agreement ; the father had made a lease not warranted under the power which he had ; but the son agreed to confirm that lease, and subject to that confirmation, to make a new settlement of the estate, but in making that new siettlement, a power was reserved to him self' and his father jointly, to operate upon the estate in differ ent ways. In giving construction to the words used in creating the power, I apprehend it must always b e cons id ere d w h a t was the intent with which the power was given; and for the purpose of considering that, it must be considered by whom the power was given, to whom, and for what purpose. • Now, my Lords, the power here given is given by John and Edward Galway, jointly; they . both concurred in giving the power; they had the power to give it in any form they thought fit ; the power is given to them jointly ; the purpose for which it is given is manifest; the power given is to make leases, re serving the ancient rent, with a covenant for perpetual renewal, that is, a power of alienation necessarily in its nature, becauSe no man will give a lease reserving the ancient rent, with a cove nant.for perpetual renewal, but upon receiving a fine equivalent to the value of the estate which he so grants under the cove nant for perpetual renewal during the lives for which he grants it, and the value of thei covenant for perpetual re newal ; " it is m truth an alienation perpetual, subject to con ditions; the power is to demise the said lands tenements and pre mises, or any part or parts thereof." • It is clearly, therefore, a power extending to the whole, extending therefore to that which was subject to ti.e leases for terms of years, as well as to that which was not subject to those leases, and, if you were to hold that the power did not extend to those leases, subject to the terms for years, you would hold that the power amounted probably to nothing ; because, when one looks at the duration of those terms of years, it was utterly improbable that both of them would outlive at least one of' those terms, the term of it was so long. 'My Lords, in the case of Coventry v. Coventry, an argument similar to this was made use of to support the leases in that case, and the leases in that case were far snore objectionable than the leases in this case, for a reasop I will presently observe upon, particularly that in the case of Coventry v. Coventry, there did arise an objection from the possibility of a forfeiture of the term by the preceding tenant, or the surrender of the term by the preceding tenant, which left an interval between the operation of the leases there and, the occupation under the succeeding lease ; that it appeared to me to require very seri ous consideration ; but the best authority in that case thought that was not a sufficient ground to forfeit the lease, for that such a forfeiture and such a surrender was not to be presumed; this case does not require that sort of presumption, and there fore, I think, it is a stronger case in favour of the leases than the case of Coventry v. Coventry. My Lords, as John and Edward Galway had the power, if they thought fit, to dispose of the whole inheritance, I take it you must hold that construction with respect to the power' which they had reserved, which is.most beneficial for them, be cause you are not by inference to control the power which the absolute owner of the inheritance had; you ought rather,to hold that the power should be construed most liberally in their fa vour, and that they had not parted with more than that which they meant to part with; to set aside these leases you must hold that they could make no freehold demise. I apprehend, they could make a freehold demise; suppose they had attempted, by virtue of this power, to commence on the expiration of the term of years, I desire to know what authority under the law there is for such a comnienceinent of a freehold estate ? I ap prehend there would certainly be none, for in the mean time the power operated on the entire fee which passed by the settle ment; the effect of such an execution of the power, supposing it could have effect, would be to leave a chattel interest only in the persons to enjoy, in the mean time, under the lease; the freehold would be gone ; they would have a chattel interest during the remainder of this term, and no more. My Lords, I conceive the proper way of executing the power under the settlement was that which they have taken, that is, to convey the freehold, and to convey the freehold immediately, by which they made a lease in possession, for the other might have been objected to as a lease in future, not a lease in posses sion ; and the power appears to advert to a lease in possession and not in future; and I think it would have been much more liable to objection if made in that form than if made in the form in which it is made. The form in which it is made is according to the terms of the power. There could be no ob jection to the lease; but by an inference which is attempted to be raised from the words directing that there shall be a clause of re-entry for non-payment of rent ; and by that inference you are to suppose that such a lease, which in every other respect conforms to the words.of the power, is not a good lease, be cause you are by inference to suppose a restraint on the use of the power, which is not expressly averred in the lease, and which is contrary to the very words of the settlement. It is in ferred simply, and only from those words, that a clause ,of re-entry for non-payment of rent should be reserved.—. My Lords, in not the natural construction of those words, instead of giving them an operation which in effect would defeat the whole words of the settlement—is not it the natural construction that such a power of re-entry should be reserved as the nature of the case requires ? My Lords, what is re-entry ? Re-entry is repossession of the former estate, and here the repossession of the former estate is capable, under the execution of the power contained in these leases ; that is, the persons who had the former estate would be capable, by st virtue of the power of re-entry reserve d in this lea s e, to re possessore hisestate freehold interest they hed during as i t before; h t i the e refather whichw ou would freehold be re- d to interest would have as incident to it the rent reserved upon the leases for years ; and if he died before the expiration of those leases for )rears, the son would be in possession as of his former estate of the freehold and of the rent. My Lords, there is reserved a power of re-entry, in case there should be no sufficient distress; and it is said that there could be no distress upon those lands during the continuance of' the lease for years, because during the continuance of the lease for years, the lessee of the freehold would not have the possession of the estate itself. I‘.ly Lords, that must he construed in the same way by reference to the nature of the thing to be de mi sed ; for you must always, in construing instruments concer nin g pro perty, cone:der those instruments with reference to the nature of the property which they do concern. It seems to me, there fore, that the objection which has been raised upon th is s ub j ect is unfounded ; that you must construe this settlement as in tended to give a power of creating freehold demises for lives, renewable for ever upon the whole of the estate ; for otherwise you violate the words of the settlement ; you must construe it as giving that power, notwithstanding the clause of re-entry, which is reserved, because consistently with the nature of the estate, a clause of re-entry might be reserved ; and that is all which is, as I conceive, required by this settlement, even if these persons had stood in a different situation. if this had been a settlement created by a third person, containing such a power as this, I think it would have been far too strict to give the construction which 'has been contended for; but when it is considered that this is a power given ,by the persons who were the owners of the inheritance, and who had the power of dis position of the property as they thought fit, and reserved to themselves a power jointly which they did not give to either of them separately, which they did not give to any other per son who might claim under the settlement, but confined it to themselves jointly, it is evident, that they meant it as a power of executing the general power of alienation which they had before the settlement, and therefore, it is a rower that ought to be construed in the most liberal manner ; ttus objection has certainly been removed entirely out of the way by the de cision which has been mentioned by the Noble Lord who last addressed your Lordships. But another objection has been made upon the words which require that the leases should not be made by any express words, dispunishable of waste. Now, my Lords, what is there here that does make them dispunishable of waste ? There is a covenant, to repair which the settlement does not require ; that is something beyond what is necessary, to make the lease , good under the settlement ;itis a beneficial covenant—a bene ficial covenant which the power in the settlement does not re quire ; and this beneficial covenant, which the power in the set tlement does not require, is now to be construed as having an effect to avoid the lease under the settlement. AVhy my Lords, does that covenant exempt them from being punishable of waste ? As far as by law they were subject to punishment for waste, independently of that covenant, they would remain as much subject after that covenant as before. It is true, no ac tion can be brought against them on the covenant for not re- pairing any damage by fire or war, but it leaves the law still open ; and therefore it seems to me that that does not all tend to impeach the leases under this power. Upon the whole, therefore, I agree with the Noble Lord, that these leases have been well executed under the power; that they have been executed in the only form, as I conceive, in which a demise for lives could have been made, that it was the intent of the framers of this settlement • that John and Edward Galway, during their joint lives, should the power to make a freehold lease of the whole of the premises under the power; and that if you were •to give another construction to the settle ment, you must hold that they had not the power, during their joint lives, to make the use which was intended of this estate.— Upon the whole, therefore, I am of opinion that the judgment of the Exchequer Chamber is right, and ought to be affirmed. LORD CHANCE LLOR.—IiIy Lords, it had escaped me to state to your Lordships (which I do without the least hesitation) that the objection, founded upon the words " casualties of fire and war excepted," is an objection that in my opinion cannot be sustained as against the execution of this power. Is it your Lordships' pleasure that this judgment be affirmed ? JUDGMENT AFFIRMED. • A. MEETING of the PROPItIETOIts of NAVY FIVE PER CENTS will be held at the CITY of LONDON TAVERN TO-MORROW, TUESDAY, the iith, at 11 o'Clock. Admittance Five Shillings, for the pur pose of DEFRAYING. the EXPENCES of ADVERTISE MENTS, &c. • PARLIAMENTARY PROCEEDINGS. NOTICES of MOTIONS, and ORDERS of the DAY, . which now stand in the Order Book of the HOUSE of COM MONS, for Tuesday, Wednesday, Thursday, and Friday next. Tuesday, March 5, ISc22. NOTICES OF MOTIONS. 1. Sir Matthew Ridley,—Accounts relative to the Estates of Greenwich Hospital. 2.' Mr. Kennedy,—Bill to alter the mode of choosing Juries.to serve on Criminal Trials in Scotland. 3. Mr. Denisen,—To amend the Laws for indemnification of injuries done by Rioters. 4. IN/r. Chancellor of the Exchequer,—Bill to amend the Su perannuation Act. 5. Mr. Hume,—Returns of Establishment of Office for Re duction of the National Debt :.—And of Land Tax Re, demption Office. 6. Mr. William Courtenay,—Select Committee on the Prison Lsws. Wednesday, March 6., • NOTICES OF MOTIONS. 1. Mr. Creevey,—Motion on the subject of the Board of Con- trout 3. Mr. Grey Bennet,—The circumstances that occurred at the Funeral of her late Majesty the Queen. ORDER OF THE D.Y. Supply Report. Thursday, March 7. NOTICES OF MOTIONS. 1. Sir Matthew Ridley,—To reduce the number of Lords ef the Admiralty. 2. Mr. Hume,—Returns from the Post Offices of England, Scotland, and Ireland. Friday, March 8. ORDER OF THE D.Y. Land Tax Commissioners Names Bill—Committee. F STOCKS ONE O'CLOCX. 5 per Cent. Navy Arn.lo2i Imp. 3 per Cexts. 78t India Bonds -38 s. 40s. Excheq. Bills 1 dis. 1 pr. Cons. for Account 79Vii BRIDGE TO-MORROW. Evening, 48 minutes after 1. THE S N. SOLEM QUIS DICERE FALSUM AUDEAT 7 LONDON, MONDAY, MA RC II 4, 182.2. We have received the French Papers of Thurs day and Friday, which contain further details respecting the criminal affair of General BERTON ) of which the following is an abstract : " PARIS, FEB. 28.--It was on the 24th of this month that Gen. Berton suddenly appeared about 10 P. M. in the market place of Thouars ; he had with him the Ex-Lieutenant of Artillery, Delin, who seemed to act as his Aid-de-Camp, and about 50 individuals, who constituted his suite or army. The inhabitants, who had retired to their houses, were terrified to hear at so unseasonable an hour the drums beat and the tocsin sounded. They hastily came out, being convinced that fire had broken out 'in the town. When the people were assembled in the market-place, General Berton read aloud a proclamation drawn up in his name, in which, taking the title of Generalis simo of the Con federates of Poitou and Bretag,ne, he declared that the object of the Confederation was to destroy the dominion of the nobles and priests, and to abolish taxes insupportable to the ,people ; he announced at the same_time his pro ject of marching to Saumur, where the garrison and the eteves, according to him, were eager to join his troop and to second his resolutions. The men who accompanied Berton answered by diffe rent cries to the proclamation of their Chief ; there was heard a mixture of 44 The Charter for ever, with the Emperor Napolehn 11. for ever!' and 'Vive la Republique !' Some inhabitants of Thouars, but a very small number, placed them selves under the standard of Berton, which was three coloured, as well as the cockade he had on. Berton left Thouars, and proceeded towards Saurnur. On the way he had the tocsin sounded in all the villages, the peasants flocked together, the proclamation was repeated, many distri buted, and by these measures the troop re ceived an addition of about two hundred poor wretches : it was about 250 strong, when it arrived at the Bridge of Foucheux, half a league from Saurnur. It is known that General Gentil de St. Alfonso, Commandant of the School of that town, was then at Tours, and his absence was calculated upon as an important circumstance by General Berton. But the event baffled his pre cautions. At the first news of the march of the rebel chief all the civil and military authorities at Saumur had assembled the pupils of the school, the garrison, the national guard, headed by their respective commanders. The Sub-Prefect, the Mayor, and all the Members of the Civil Tri bunal, went out of Saumur amidst cries of" Vivo le Roi !" and marched against the rebels.— They met them at the Bridge of Foucheux ; the Mayor thought it his duty to go alone to meet them ; and with a courage the more laudable, as it was inspired by the desire to prevent the effu sion of blood, and was not without personal danger, he presented himself alone. to General Berton, and demanded the r eason of his march. Berton answered, he only wanted a passage into Saumur, and that he guaranteed the town from all kind of pillage and violence. You cannot obtain this passage with the signs of rebellion which you bear !' answered the intrepid Magis trate.---4 I will force it,' replied Berton, and at PRICE 0 THIS DAY AT Bank Stock shut 3 per-Cent. Red. shut 3 per Cent. Cons. 3 per Cent 9O 4 per Cent. HIGH WATER AT LONDO. Morning, 24 minutes after 1.