Lessee บ. T. T. 1842. ant insisted that the condition of re-entry in the fee-farm grant contained, Exch.Chamber was altogether gone by the assignment and release of the 1st of November 1824; or if not destroyed by that assignment or release, then that the said of re-entry was gone by the assignment in the matter of power STEVENSON. the insolvency of John Dickson. It was also insisted, that Andrew Brock had not been shown to have had any sufficient authority for demanding the aforesaid rent, on either the 30th or 31st of May 1838, in behalf of the parties entitled thereto; and that, therefore, the non-compliance with the said demand did not amount to a breach of the condition. It was likewise insisted, that Andrew Brock and his two companions, or some of them, ought, on the occasion of demanding the rent, to have searched all the lands and premises conveyed in the fee-farm grant, in order to ascertain whether there was any sufficient distress thereon; but that it appeared, on the evidence given by the plaintiff, that all the lands and premises had not been searched on the said occasions. On these several grounds, Counsel called for a nonsuit, or a direction to find a verdict for the defendants. It was further insisted by the Counsel for the defendants, that all the arrears due ought to have been demanded, and not the half year's gale of rent alone-or that the distress was only required to cover the sum demanded, viz. £90, as the demand of that sum alone must be considered as a waiver of the rest of the arrears. The Jury, on a collateral issue, found that there was sufficient distress to cover the £90 demanded; but not sufficient to cover all the arrears then due. The Judge then told the Jury, that if they believed there was not sufficient to countervail all the arrears, they should find for the plaintiff. The Jury accordingly found for the plaintiff; and the Counsel for the defendant took a bill of exceptions. The bill of exceptions was argued before the Court of Exchequer (absente Woulfe, C. B.), in Hilary Term 1840, when Counsel for the defendants insisted on the following points :-First, that by the operation of the indenture of mortgage of 1824, the condition of re-entry was gone; second, that it had not been shown that Andrew Brock had any sufficient authority to demand the said rent; third, that all the lands and premises had not been searched to ascertain whether there was a sufficiency of distress upon them; fourth, that all the arrears should have been demanded, and not the half year's gale of £90 only; fifth, that the distress was only required to cover the sum demanded. On all these points, the opinion • The following report of the judgment which were pronounced by the three Barons, before whom the case was argued in the Court below, has been kindly furnished by Mr. Jones. PENNEFATHER, B.- This case has been argued with great ability by the Counsel on both sides; and although our judgment turns at present upon one particular part of the case, it may, perhaps, be due to the talents and industry of the gentlemen who Lessee ORR V. STEVENSON. of the Court was in favour of the plaintiffs; and it was conceded in the T. T. 1842. following argument in the Court of Error, that the demand of the rent Exch.Chamber had been regular, and that there was not a sufficiency of distress on the lands; but it was insisted by the defendant's Counsel in the Court below, that it was open to them, on the exceptions, to argue, that if the condition was not destroyed or extinguished by the conveyance of 1824, it had, at all events, been transferred to the provisional assignee in the insolvency matter. The Court were of opinion that it was open to the defendant to argue the latter question, and decided on it, that the exceptions should be allowed, offering the plaintiff a venire de novo on payment of costs, which the plaintiff declined taking on the terms; and judgment was accordingly entered up—“ That the bill of exceptions, and the matters therein con“tained, are good and sufficient in law to quash the said verdict, and "entitle the said defendant to judgment on the premises, and it is also "considered, &c., that the said defendant do recover against the plaintiff "the sum of £- sterling for his expenses and costs, sustained in and "about defending, &c., and that the said defendant do have execution for "the same." Upon this judgment, the present writ of error was brought. The common error was assigned, and also, "That by the record it ap"pears, that the said Jurors did not give their verdict for the said "defendant, and yet it doth appear that the said judgment hath been have argued it, and to the importance of the case, that something should be said upon the several other questions that have arisen in it. This is an ejectment brought at common law upon the demise of John Dickson, Robert Orr, and others. The case came on to tried before my Brother Burton; and at the trial, a bill of exceptions on the part of the defendant was taken to his opinion. The facts disclosed upon that bill of exceptions have given occasion to the argument which now calls for the judgment of the Court. It appears that Francis Dickson, the father of the lessor of the plaintiff, by deeds of lease and release, made a fee-farm grant of the lands in question, to Nicholas Delacherois Cromelin, and bis heirs, reserving to himself and his heirs a yearly rent of £180, payable half-yearly on every 1st of May and 1st of November. This deed, which is stated at length in the bill of exceptions, contains the condition of re-entry upon which the present question arises. After the reservation of the rent, it provides that in case the rent should be behind or in arrear for the space of twenty-one days after the same was payable, it should be lawful for the grantor and his heirs to enter and distrain for the same, and all arrears thereof; and further, that if the rent should be behind for the space of thirty days next after the same was thereby reserved and made payable, and no sufficient distress countervailing the said rent and arrears could be found on the demised premises, then it should be lawful for the grantor and his heirs into the demised premises to re-enter, and the same to have again, repossess, and enjoy, as of his or their former estate. It is for the breach of this condition that the present ejectment has been brought. The plaintiff, having given this fee-farm grant in evidence, proceeded to show a demand for the rent which was alleged to be in arrear, namely, for the sum of £90, being one gale of the reserved rent; and that there was no sufficient distress to be found on the premises. The demand of the rent was made by a person of the name of Brock, to whom John Dickson, the heir-at-law of the grantor, had executed a power of attorney for that purpose. Some of the exceptions-- T. T. 1842. "given for the said defendant as aforesaid." The defendant having filed a Exch.Chamber joinder in error, the cause now came on for argument in the Court of Exchequer Chamber. Lessce ORR STEVENSON. Mr. Napier and Mr. Holmes, with whom were Mr. Brewster, Q. C., and Mr. Whiteside, Q. C., for the plaintiff. It being conceded on this argument, that the demand of the rent was regular, and that there was not a sufficiency of distress on the premises, the only question raised on the bill of exceptions which remains to be argued is the first, viz." 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, then, that the said power of re-entry was gone by the "said assignment in the matter of the insolvency of John Dickson." On this we shall contend, First,-that it is not open to the defendant, on this bill of exceptions, to argue that the right of re-entry was transferred from John Dickson to the provisional assignee in the insolvency matter. Secondly, that even if it were open to him to argue that question, the right of re-entry did not pass by assignment to the provisional assignee. Thirdly, in the event of the Court being with us on either of the foregoing points, we shall then contend that the right of re-entry was which, however, have not been much pressed in argument—were taken as to the sum demanded for the rent, and as to whether satisfactory evidence had been given to show that no sufficient distress was to be found on the premises: and we all think that they were, very properly, not insisted upon;- that the demand of £90, being one gale of the reserved rent, was for the proper sum; and that there was sufficient evidence to go to the Jury to satisfy them that there was not a sufficient distress to be found on the premises to countervail the arrears of rent then due, and which amounted to upwards of £1300. As to the demand, it was argued that the whole amount of the arrears then due ought to have been demanded. It does not appear to me to be so. The demand is made upon the taking place of the breach of the condition. The condition is broken by the non-payment of a single gale. The re-entry and demand must be made at a particular and precise time, namely, at the end of thirty days after the rent has fallen due. All former rights of entry were gone, a demand was not made at the proper time; and the rent-non-payment of which alone, in this case, gave right of re-entry- was the single gale of rent. This reason, although not expressed by Lord Tenterden in the case we have been referred to is, I conceive, the foundation of his opinion: and that case is an express authority upon this point. The right of entry which accrued by the nonpayment of the antecedent gales of rent, which now constitute the arrears, is gone quoad those arrears, but it still exists, and is in force as often as any gale falls due and remains unpaid. We, therefore, think that the demand for the single gale of rent was right; and that the answer which has been given to the objection is satisfactory and complete. With regard to the evidence which has been given, that there was not sufficient distress to be found upon the lands, I would observe that there is no precise rule that every portion of the demised premises must be searched. It is not necessary that the person making the search should go into every spot on the lands; but it is enough if taking into consideration the nature of the property and the probability of Exch.Chamber Lessee not extinguished by the operation of the deed of 1824, but descended T. T. 1842. to the heir-at-law of Francis Dickson, and that therefore, we have a right to succeed on the demise laid in the name of John Dickson. Fourthly,that even if the Court were right in allowing the exceptions, that the judgment should not have been reversed, but a venire de novo should have issued. 1.-The phrase of a condition being gone is a technical expression, meaning that it is extinguished: Com. Dig. Condition 2; Bac. Ab. Condition, O. 3; and in the case of Twynam v. Pickard (a), Holroyd, J., speaking of rights of re-entry, uses the words "gone" and "destroyed," in the same sentence as synonymous; and so has the defendant, in the exceptions we are now arguing. There is no ambiguity in the word, and even if there were, the meaning of the party excepting ought to have been expressly stated at the trial, in order to give us an opportunity of removing the objection by further evidence,—which not only might, but in this case, actually could have been done, by resorting to another demise in the name of the general assignee ; Doe dem. Gilbert v. Ross (b); Rutter v. Chapman (c). ORR V. STEVENSON. (a) 2 B. & Al. 112. (b) 7 M. & W. 120. (c) 8 M. &. W. 37. there being wherewithal on the property to answer the rent-there be that fair search made which will satisfy a Jury that there was no sufficient distress on the premises to countervail the arrears. In this case, the Jury have found that there was sufficient distress to answer the payment of the single gale, and that there was not enough to answer the payment of the arrears; and we think that the condition having been broken by the non-payment of one gale, the right of re-entry was complete, unless there was sufficient distress to be found on the lands, not only to countervail that gale, but also the arrears. These were the objections which appeared upon the plaintiff's evidence; who closed his case, after having proved the death of F. Dickson, the grantor in the fee-farm grant in the year 1825, and that John Dickson, one of the lessors of the plaintiff, was his heir-at-law. The defendant then gave in evidence certain deeds of lease and release, dated the 1st of November 1824, whereby, in consideration of the sum of £1000, F. Dickson granted, bargained, sold, aliened, released, and confirmed to R. Orr, and others, and their heirs, the lands in question, together with the rents, issues, and profits thereof, and all his estate, right, title, interest, property, claim and demand whatsoever, of, in, or to the same, to hold to the grantees and their heirs for ever, subject to a proviso for redemption upon payment of the sum of £1000. This deed, although it purports upon the face of it to be a conveyance of the lands, yet the instruments being deeds of lease and release, it must be taken to be a conveyance of that which the grantor could at the time lawfully part with,-namely, the perpetual rent of £180 per annum. Upon the production of this instrument, the Counsel for the defendant insisted that by virtue and in consequence of it, the right of re-entry passed away from the grantor in the deed of 1818;-in the words of the exception, that it was gone and destroyed, and, therefore, that it furnished a bar to the action. They further gave in evidence, certain proceedings in the Insolvent Court, which took place in 1825, after T. T. 1842. Lessee v. STEVENSON. 2. A right of entry for an unbroken condition does not pass by Exch.Chamber the provisions of the Insolvent Act to the provisional assignee. It was not a right in the land-Denham v. Dormer (a)—being at the utmost a mere possibility, which could neither have been assigned nor released; and on that account, altogether different from the cases in which there was a vested beneficial right of action that might be at once enforced by the assignee. The property which passes under the assignment to the provisional assignee, is that which he has at the time of the petition, and which by 11th section of the 1 & 2 G, 4, c. 59, he ought to return in his schedule. Now, how could a right of re-entry on a condition not broken be returned in a schedule, or be turned to a beneficial account by the assignee, not being saleable or assignable? The Insolvent Act differs from the Bankrupt Act, in passing to the provisional assignee nothing but property actually in possession of the insolvent at the time of his insolvency-providing, by subsequent sections, for the conveyance of after-acquired property to the same party. Thus property on which execution may be taken out, may be got at by the judgment entered up at the suit of the assignee under the provisions of the 28th section; and where the beneficial interest is of a nature which could not be taken in (a) Cited in 2 And. 84. the death of Francis Dickson; from which it appeared, that John Dickson, the lessor of the plaintiff, became an insolvent debtor, within the meaning of the Act then in force relating to insolvent debtors, and they proved a deed by which all his estate and interest in the premises was assigned to the provisional assignee: and then they insisted that if the right of re-entry was not gone and extinguished by the deed of 1824, it was gone by the operation and effect of the proceedings in the Insolvent Court, and of the assignment to the provisional assignee. The effect of the deed of 1824, and of the several proceedings in the Insolvent Court, have been distinctly argued by the Counsel on both sides; and, in our minds, deserve very distinct and separate considerations. With regard to the deed of 1824, it was argued, that it amounted to an extingnishment of the right of re-entry; that a condition of re-entry was not assignable by the common law; and that as, in the present case, there was not any reversion reserved by the grantor, by the deed of 1818, the case was not helped by the statute of Hen. 8 in England, or the corresponding Irish Act of Car. 1, so as to pass the condition to the grantees in the deed of 1824. To some of these propositions we fully assent. A condition of re-entry cannot be assigned by any form of conveyance known to the common law; and as no reversion was reserved to the grantor, no aid cau be derived from the statute of Car. 1. This very clearly appears from Littleton, sec. 347, and the commentary upon it. The plaintiff's right to recover, therefore, must depend upon the principles of common law. It is quite clear that by the common law the right of re-entry for the breach of the condition descended to John Dickson, the son and heir of Francis, if not affected by the deed of 1824-how then was the right affected by that deed? By the deed of 1818 the lands were conveyed to Nicholas Delacherois Cromelin, to hold to him and his heirs, subject to a condition of re-entry in case of the non-payment of the rent reserved: and the reservation of this rent to Francis Dickson and his heirs, is to be taken as the grant of a |