Lessee บ. T. T. 1842. and the first feoffee having thus been disseized of the land, is disabled Exch.Chamber from performing the condition, and the feoffor having got back the land, he has every thing he could have had by re-entry under the condition, which is, therefore, spent and gone: and by the second feoffment he conSTEVENSON. Veys an estate in possession to the second feoffee, and shall not afterwards be at liberty, by resuming possession by re-entry under the condition, to defeat his absolute gift under that second feoffment. Albany's case (a) explains this. A fine or feoffment destroys a power in the same way, because they carry away and include all things relating to the land; Edwards v. Sleator (b); and the distinction between their tortious operation, and the effect of an innocent conveyance is shewn and acted upon in Jones v. Wimwood (c). The continuance of the passage in the Touchstone, and the marginal reference to Winnington's case (d), shows that the criterion is, whether the resumption of the possession interferes with the continuance of the grant, made or confirmed by the party seeking to re-enter; Ferrers v. Borough (e); Vin. Ab. Condition, K. D., pl. 7. These authorities take the case out of the principles which affect cases of not only by the heir, who is strictly entitled to enter for the condition broken, but also by those who are entitled to receive the rent. The demand of Brock must be taken to be a demand on behalf of all those persons; for it is made pursuant to an order made in a cause in which they were all parties. It therefore, on the whole, appears to me, that the right of re-entry remains in the heir, notwithstanding the deed of 1824-that it is not extinguished by that deed: that when the heir recovers the lands, he will be in them as of his original estate, but will take them charged with the perpetual rent,-for the payment of which rent the condition was created; that he cannot in contravention of that which appears to me from the deed of 1824 to have been the express agreement of the parties, hold the land discharged of the rent-charge, by the exercise of a power which was originally reserved for the preservation aud enforcement of payment of the rent; and which power he never can be permitted to use for the purpose of defeating his ancestor's assignment. This is the view which it appears to me that at present ought to be taken of this part of the case. I have gone more at length into it than, perhaps, I ought to have done, in deference to the gentlemen who have so elaborately argued it; and, in consideration of the importance of the subject, I hope I shall be excused for so doing; but the views I have taken, and the arguments I have used on this part of the case, are to be considered as my own-as the judgment of the Court rests altogether upon other grounds. Upon this other part of the case we all concur in thinking that the effect of the proceedings in the Insolvent Court was to transfer the benefit of the condition, which was not transferable at the common law, to the provisional assignee of John Dickson :- that it was transferred by the operation of the Insolvent Acts, and the assignment executed pursuant thereto by J. Dickson to the provisional assignee ; and, therefore, although a right of re-entry may still exist, yet that it is gone, in the language of the exception, from any of the lessors of the plaintiff, so far as they appear to us upon this record. The 1 & 2 G. 4, c. 59, contains, in our minds, words sufficient reversions; and if it is held, in this case, that John Dickson holds the land T. T. 1842. charged with the rent, it effectuates the rights of all parties under the Exch.Chamber several instruments, without any resulting inconsistency or repugnancy. 4. Supposing, however, that the Court below were right in allowing the exceptions on any ground, still we contend that the judgment which has been entered up must be reversed, and a venire de novo awarded. This ought to have been the judgment of the Court-the verdict having been found for the plaintiff; How. Exch. 344: and that principle is clearly acted upon in the English cases; Nepean v. Knight (a); Brown v. Slucker (b); Davies v. Lowndes (c). The defendant, therefore, must insist that there is something in the Irish statute, 28 G. 3, c. 31, s. 1, passed in 1788, which empowers the Judges in this country to do that which the Courts could not do in England. Now, the primary object of that statute was to enable the Court out of which the record came, to adjudicate on the exceptions; but in addition, it enables the Court "to make such order, either by arresting judgment, granting a venire de novo, or otherwise, as shall be agreeable to justice." The obvious necessity for this enactment arose from the existence of doubts, Lessee ORR บ. STEVENSON. not only to pass an estate in the lands, but a power or condition such as the present. And, although it was a condition not broken at the time of the insolvency, yet it is to be considered as a benefit and advantage, matter or thing, which the insolvent had for the benefit of his creditors; which was valuable, and might become available; and, therefore, that it was transferred by the assignment to the provisional assignee. The proposition I am now considering was, in the argument, divided into two parts; first, whether the Act was sufficiently comprehensive to extend to a condition of this nature; and, secondly, if it were, whether the deed as stated upon the bill of exceptions, was sufficient to carry into effect the purpose of the Act. I have already said that, upon attentively considering the several clauses of the Act, the purview and scope of it, and the objects which the Legislature had in their contemplation, we are of opinion that this was such a benefit, matter, or thing, as might and could have been passed to the assignee. We have come to that conclusion, not only from a consideration of the words of the statute, but also from a consideration of the determinations which have been made upon other Acts of Parliament, in cases of insolvency or bankruptcy; and, secondly, we think that the assignment in this case was sufficient to pass the condition, having regard especially to the 11th section of the Act. It appears upon the face of the instrument, that it was intended to pass all that could be passed, and not intended to be confined to any particular part of the insolvent's property, as was ingeniously argued; and then the provisions of the statute supply the want of any words (if any be wanted) in the deed of assignment; being framed, in our minds, to guard against any imperfections that may occur in the frame of the assignment. This leads to the conclusion, that whether the right of entry exist or not, it is not in any of the lessors of the plaintiff, so far as their rights appear upon the record. It was suggested, after the argument, that, in point of fact, the general assignee was one of the lessors of the plaintiff; but that the plaintiff, from the mode in which the exception Lessee T. T. 1842. whether, in the first place, on a bill of exceptions, the judgment could Exch.Chamber have been arrested; Enfield v. Hills (a); and, in the next place, whether a venire de novo could have been awarded by a Court of Error; Street v. Hopkinson (b): and the first case in which a venire de novo was ever granted after a bill of exceptions was that of Davies v. Pierce (c), which was decided in 1787-only one year before the passing of this statute. The provisions of the statute are, therefore, satisfied by the removal of doubts then existing in these respects; and the general words manifestly imply, such other order as, upon a consideration of the record, appears just, although it be independent of the exceptions-for instance, a repleader, which it is very doubtful whether the Court of Error in England could award; Podden v. Bartlett (d). In Lessee Smyth v. Nangle (e), Burton, J. stated, that to obviate the necessity of awarding a venire de novo on a bill of exceptions, there must be something amounting to an estoppel or confession; but when further evidence might be given, as it clearly might in this case, a venire de novo could not be withheld. For instance, we might have shewn an assignment by Mitchell, the provisional assignee, to the creditor's assignee, who may have been (as in fact he was) one of the lessors of the plaintiff. A venire de novo, where it is grantable, (a) 2 Lev. 236. (c) 2 T. R. 126, vide note. Temp. Hardw. 345; S. C. 2 Str. 1055. (d) 5 N. & M. 387. (e) 6 Law Rec. N. S. 334. was framed, was induced not to prove the assignment from the provisional to the general assignee. It does not appear to us, upon reading the exception, that the Counsel for the plaintiff ought to have been misled by the language of it. The exception states, that the Counsel for the defendant insisted that the condition of re-entry in the fee-farm grant contained, was altogether gone by the assignment and release of the 1st of November 1824, or if not destroyed by that assignment and release (thus applying the word "destroyed" to the deed of 1824), then that the said power of re-entry was gone by the assignment in the matter of the insolvency of J. Dickson. So that the exception, having said that the condition, if not destroyed by the deed of 1824, was gone by the assignment in the matter of the insolvency; the Counsel for the plaintiff insist that we ought to read the exception as if it were that the condition was destroyed by the assignment to the provisional assignee; and that we cannot give to those words the meaning, that it was gone and taken out of the lessors of the plaintiff. We think that we ought not so to confine the words. It was sufficient for the purposes of the defendant, to insist that the right of entry was taken out of the lessors of the plaintiff; and we ought not to strain his words beyond that which was sufficient for him. Still, it is said, that the Counsel for the plaintiff have in fact been misled by the form of the exception; that they have a demise in the name of the general assignee, and can prove the assignment from the provisional assignee to him. If that be so, and if, attending to the circumstances of the demand, the plaintiff's Counsel desire it, we would be disposed, in order to save expense to the parties, to award a venire de novo, upon payment of the costs of the trial: but if there be no demise in the name of the general assignee, or if the plaintiff thinks it better Lessee is a matter ex debito justitiæ, and not a matter of discretion, and to refuse T. T. 1842. it, therefore, is error; Corner v. Shaw (a). Consequently, we are, at all Exch.Chamber events, entitled to have the judgment reversed, and a venire de novo awarded, judgment having been given on a matter of fact unascertained either by confession, or by the finding of a Jury. Mr. Tomb, Q. C., Mr. Nelson, Q. C., and Mr. Gilmore, Q. C. Following the line of argument on the other side, it is, in the first place, open to us to contend on the exceptions, that if the condition has not been extinguished, it has been, at all events, transferred to the provisional assignee in the insolvency matter. The exception as taken by us is twofold-first, that the condition is "altogether gone;" and secondly, that if not destroyed by that assignment, it was "gone" by the assignment in the insolvency matter. The contrast in the language of these two exceptions shows that different things were meant by being "altogether gone" (which we explain in the next sentence as being "destroyed") and being simply "gone," which may mean from the party to some other individual. The language is sufficiently explicit to have called on the other side to have given further evidence, if they had it in their power to do so. 2. The right of entry passed by the assignment to the provisional assignee. If it could pass, it did pass by the operation of the 11th (a) 4 M. & W. 168. for him to stand upon the record as it exists, and not to pay the costs of the trial, it follows that, in allowing the exceptions, we must give judgment for the defendant. FOSTER, B.-In this case there are several questions to be disposed of, upon all of which, except one, my view is in favour of the plaintiff: and inasmuch as the one upon which, for the present, he must be defeated, is of such a nature that the difficulty may hereafter be obviated, it may be convenient that the parties should know the views entertained by the Court upon what may ultimately prove to be the only real question in the case. The first question is, whether either Orr or Dickson can now enter for the condition broken, supposing no assignment in the insolvent matter had taken place; and on this part of the case I am of opinion that Dickson might so enter, but that Orr might not; and, therefore, that the plaintiff could not recover on the demise of Orr, but that he might on the demise of Dickson. At the first view, some persons might suppose that the power of re-entry was gone for ever. The general doctrine is laid down in Littleton, 347.—[Reads the section.]— But there are two distinctions between the present case and the case put by Littleton necessary to attend to. He puts the case of a lease made for life; this is not the case here, for the lease is to a man and his heirs for ever. And Littleton speaks of a grant afterwards being made to another of the reversion in fee,-but this is not the case here, for the subsequent conveyance in the present instance, that is, the conveyance by the deed of 1824, was not of the fee which had been granted away before, but it was a lease and release conveying what is in that deed described as the lands, ORR V. STEVENSON. D Lessee บ. T. T. 1842. section of the 1 & 2 G. 4, c. 59, which cures all formal defects, and Each Chamber effectually vests in the assignee whatever it was intended by the Act should vest in him.-[PENNEFATHER, B. The general purview of the Insolvent Acts being not to pass trust estates-the owner of the rent, as in this case, STEVENSON. Conveys that rent to the mortgagee, reserving to himself the right of re-entry-could that right result to him as any thing but as a trustee for the mortgagee? and if so, how could the trust pass to the provisional assignee ?]-The right of entry would vest in the assignee, if it was at all for the benefit of the Insolvent, and the Court must look to what beneficial interest the insolvent would be entitled, and set off the interest of the cestui que trust. An equity of redemption is a valuable interest in the estimation of an Insolvent Court; and Courts of Law will take notice of equitable interests-for instance, they have been decided to be good considerations for an assignment. Our argument is, that the words of the Insolvent Act are framed with a view to include these interests, not as after acquired property, but as existing property. The language is as strong as that of the English Bankrupt Acts, under which it has been held, that similar interests pass. The words of the 4th section are, that "all and every estate, property, power, benefit, matter, and thing whatsoever," are to vest in the assignee, nothwithstanding any defect in the form of the assignment.-[DOHERTY, C. J. Stronger or more "with all the rights, members, and appurtenances whatsoever to the said premises "belonging, and the reversion and reversions, remainder and remainders, yearly and "other the rents, issues, and profits thereof, and of any part thereof, and all the "estate, right, title and interest, property, profit, claim and demand whatsoever." Now, what the grantor in this deed of 1824 may have thought he was conveying is one thing, and what he really did convey is another; and this last is the only question here;-and the conveyance having been by lease and release, nothing is better established than it passed nothing but what he lawfully might convey. Now, at the time John Dickson executed this deed of 1824, the right to re-enter for condition broken was unquestionably in him; and the first thing which we have to decide is, what became of the condition when he executed the deed? The first question is, was it assigned to the grantee? Unquestionably not. The common law says that cannot be. Was it then annihilated by the deed of 1824 of lease and release? In my opinion, that deed could not affect the condition at all. A deed by lease and release conveys all that it can lawfully convey, and does simply nothing with regard to what it cannot convey. It seems to me necessarily to follow, that the condition remained in the grantor—that is, in Dickson-unless it can be shown that by some rule of law it is impossible for a condition of re-entry to subsist separate both from the reversion and the right to receive the rent—that is, that the right of re-entry may be in one person, and the right to receive the rent in another. Now that a condition of re-entry may subsist in this separate state is laid down with great clearness in Co. Lit. 336, D.:— "Where a husband seized in fee in right of his wife, maketh a feoffment on condition, "and dieth,—here it appeareth that for the condition broken, the heir of the husband may enter, for albeit no right descend from the husband to his heir, yet the title of "entry by force of the condition which the husband created upon the feoffment, and 66 |