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agree, after the expiration of the said term of one year; this | is a good lease for two years; and after every subsequent year begun, is not determinable till that be ended. 1 Wils. part 1, p. 262. But if the original contract were only for a year, or if it were at so much per annum rent, without mentioning any time certain, it would be a tenancy at will after the expiration of the year; unless there were some evidence by a regular payment of rent, annually or half-yearly, that the intent of the parties was that he should be tenant for a year. Bull. N. P. 84 (2d ed.)

In case of a tenancy from year to year, as long as both parties please, if the tenant die intestate, his administrator has the same interest in the land which the intestate had.

3 T. R. 13.

A lessee hath a term for a year by parol, and so from year to year, so long as both parties please; if the lessee enters on a second year, he is bound for that year, and so on; and if there is a lease by deed for a year, and so from year to year as long as both parties agree, this is binding but for one year; though if the lessee enters upon the second year, he is for that year bound: if it is for a year, and so from year to year, so long as both parties agree, till six years expire, this is a lease for six years, but determinable every year at the will of either party; but if it is for a year, and so from year to year till six years determine, this is a certain lease for six years. Mod. Ca. 215. If A. make a lease of land to B. for ten years, and it is agreed between them that he shall pay fifty pounds at the end of the said term, and if he do so, and pay fifty pounds at the end of every ten years, then the said B. shall have a perpetual demise and grant of the lands, from ten years to ten years continually following, extra memoriam hominum, &c. Though this be a good lease for the first ten years, as for all the rest it is incertain and void; by covenant a further lease may be made for the like term of years. Plowd. 192; 2 Shep. Abr. 376.

A. and B. covenant in a lease for sixty-one years, "that at any time within one year after the expiration of twenty years of the said term of sixty-one years, upon the request of the lessee, and his paying 67. to the lessors, they would execute another lease of the premises unto the lessee, for and during the further term of twenty years, to commence from and after the expiration of the said term of sixty-one years, and so in like manner at the end and expiration of every twenty years, during the said term of sixty-one years, for the like consideration, and upon the like request, would execute another lease for the further term of twenty years, to commence at and from the expiration of the term then last before granted." Under this covenant the lessee cannot claim a further term of twenty years after the end of the lease, if he has omitted to claim a farther term at the end of the first and second twenty years in the lease. 1 T. R. 229. See Bateman v. Murray, Parl. Cases, tit.

Lease.

live; and afterwards A. B. dies, by his death the lease is determined. Though if the lease be made to one for the lives of A. B. and C. D. the freehold doth not determine by the death of one of them; and if in the other case of a term, the words or "either of them" be inserted in the lease, it will be good for both their lives. 13 Rep. 66.

A lease was made to a man for ninety-nine years, if he should so long live; and if he died within the term, the son to have it for the residue of the term; this was adjudged void as to the son, because there can be no limitation of the residue of a term which is determined. Cro. Eliz. 216. But if the words of the lease be, to hold during the residue of the ninety-nine years, and not during the rest of the term, in this case it may be good to the son also. 1 Rep. 153; Dyer, 253.

A lease was made for twenty-one years, if the lessee lived so long, and in the service of the lessor; the lessor died within the term, and yet it was held that the lease continued, for it was by the act of God that the lessee could serve no longer. Cro. Eliz. 643.

If a lease be to a man and to her whom he shall take to wife, it is void; because there ought to be such persons at the time of the commencement of the lease which might take. 4 Leon. 158. When a lease in reversion is granted as such after another lease, and that lease is void by rasure, &c. the reversionary lease, expectant upon the lease for years that is void, is void also. Cro. Car. 289. But where a man recites a lease, when in truth there is no lease, or a lease which is void, and misrecites the same in a point material, and grants a further lease, to commence after the determination thereof; in such case the new lease shall begin from the time of delivery. Dyer, 93; 6 Rep. 36; Vaugh, 73, 80, &c.

A man makes a lease for years to one, and afterwards makes a lease for years to another, of the same land; the second lease is not void, but shall be good for so many years thereof as shall come after the first lease ended. Noy's Max. 67. And if one make a lease for years, and afterwards the lessor enters upon the lands let, before the term is expired, and makes a lease of these lands to another, this second lease is a good lease until the lessee doth re-enter: and then the first lease is revived, and he is in thereby. 2 Lill. Abr. 152. It hath been held that a lease may be void as to one, and stand good to another; and leases voidable or void for the present, may after become good again. 1 Inst. 46; 3 Rep. 51. If a lease be made to two, to hold to them and two others, it is voidable as to the two other persons; and when the two first die, the lease is at an end. 2 Leon. 1.

A lease which is only voidable, and not absolutely void, must be made void by the lessor by re-entry; but if a lease be void absolutely, there needs no re-entry; and as a voidable lease is made void by re-entry, and putting out the lessee, so it is affirmed by accepting and receiving the rent, which acknowledges the lessee to be tenant. 21 Car. B. R.; 2 Lil. 149.

If a

When a term for years in lease, and a fee-simple, meet in one person, the lease is drowned in the inheritance; yet in some cases it may have continuance, to make good charges and payments, &c. Poph. 39; 2 Nels. Abr. 1100. lease for years is made to a man and his heirs, it shall go to his executors. 1 Inst. 46, 388. And a lease for years, notwithstanding it be a very long lease, cannot be intailed by deed; but may be assigned in trust to several uses. Abr. 150. A lease is sealed by the lessor, and the lessee hath not sealed the counterpart, action of covenant may brought upon the lease against the lessor; but where the lease is sealed by the lessee, and not the lessor, nothing operates. Yelv. 18; Owen, 100.

A lease made to a man for seven years, if D. shall live so long, who is dead when the lease is made; by this the lessee hath an absolute lease for seven years. 9 Rep. 63. Lease for life is granted, and says, that if the lessee within one year do not pay 20s. then he shall have but a lease for two years; here, if he pays not the money, he shall have only the two years, although livery of seisin be had thereon. 1 Inst. 218. If a lease be made to A. B. during his own life and the lives of C. and D. it is one entire estate of freehold, and shall continue during the three lives, and the life of the survivor of them; and though the lessee can have it no longer than his own life, yet his assignee shall have the benefit of it so long as the other two are living. 5 Rep. 13; Moor, 32. Where one grants land by lease to A. B. and C. D., to hold to them during their lives, although the words " and the longest liver of them" be omitted, they shall hold If lessee for years loses his lease, if it can be proved that it during the life of the longest liver. 5 Rep. 9. A lease is there was such a term let to him by lease, and that is not demade to a person for sixty years, if A. B. and C. D. so longtermined, he shall not lose his term; so it is of any other

2 Lil.

be

estate in lands, if the deed that created it be lost, for the estate in the land is derived from the party that made it, and not from the deed, otherwise than instrumentally and declarative of the mind and intent of the party, &c. 2 Lil. Abr. 152.

A man out of possession cannot make a lease of lands, without entering and sealing the lease upon the land. Dalis. 81. The lessee is to enter on the premises let; and such lessee for years is not in possession, so as to bring trespass, &c. until actual entry; but he may grant over his term before entry. 1 Inst. 46; 2 Lil. 160. If a lessee of a future interest never enters by virtue of his term, but enters before, and continues after the commencement of the term, and then the lessor ousts him, the lessee may assign over his term of the land. 1 Lev. 47. But a lease to begin at Michaelmas, if the lessee enters before Michaelmas, and continues the possession immediately, is a disseisin. Ibid. 46.

If a lease be made of a close of land, by a certain name, in the parish of A., in the county of B., whereas the close is in another county, the said parish extending into both counties, such a lease is good to pass such land; though where a house is leased without a name, and the parish is mistaken, it hath been held otherwise. Dyer, 276, 292.

Land and mines are leased to a tenant; this only extends to the open mines, and the lessee shall not have any others, if there are such; and if land and timber are demised, the lessee is not empowered to sell it. 2 Lev. 184; 2 Mod. 193. A man makes a lease of lands for life, or years, the lessee hath but a special interest in the timber trees, as annexed to the land, to have the mast and shadow for his cattle; and when they are severed from the lands, or blown down with wind, the lessor shall have them as parcel of his inheritance. 4 Rep. 62; 11 Rep. 81.

A demise of premises in Westminster, late in the occupation of A., particularly describing them, part of which was a yard, does not pass a cellar situate under that yard, which was then in the occupation of B., another tenant to the lessor; and the lessor in an ejectment brought to recover the cellar, is not estopped by his deed from going into evidence, to show that the cellar was not intended to be demised. Whether parcel or not of the thing demised is always matter of evidence. 1 T. R. 701.

Declarations by tenants are admissible evidence after their death, to show that a certain piece of land is parcel of the estate which they occupied; and proof that they exercised acts of ownership in it, not resisted by contrary evidence, is decisive. 2 T. R. 53.

If the substance of a lease be put in writing, and signed by the parties, though it be not sealed, it shall have the effect of a lease for years, &c. Wood's Inst. 266. But a lease in writing, though not under seal, cannot be given in evidence, unless it be stamped. 1 T. R. 735. Articles with covenant to let and make a lease of lands, for a certain term, at so much rent, have been adjudged a lease. Cro. Eliz. 486. In a covenant with the words "have, possess, and occupy lands, in consideration of a yearly rent," without the word demise, it was held a good lease; and a licence to occupy, take the profits, &c. which passeth an interest, amounts to a lease, 3 Bulst. 204; 3 Salk. 223. An agreement of the parties, that the lessee shall enjoy the lands, will make a lease; but if the agreement hath a reference to the lease to be made, and implies an intent not to be perfected till then, it is not a perfect lease until made afterwards. Bridg. 13; 2 Shep. Abr. 374. If a man, on promise of a lease to be made to him, lays out money on the premises, he shall oblige the lessor afterwards to make the lease; the agreement being executed on the lessee's part, where no such expense hath been, a bare promise of the lease for a term of years, though the lessee have possession, shall not be good without some writing. Preced. Chan. 561. See Agreement.

A paper containing words of present contract, with an

66

agreement that the lessee should take possession immediately, and that a lease should be executed in future, operates only as an agreement for a lease, and not as a lease itself. 1 T. R. 735. But an instrument containing words of present demise will operate as a lease, if such appears to be the intention of the parties, though it contain a clause for a future lease. Poole v. Bentley, 12 East, 168; 15 East, R. 244; 3 Taunt. 65. An instrument on an agreement-stamp reciting that A. in case he should be entitled to certain copyhold premises on the death of B. would immediately demise the same to C., declaring that he did thereby agree to demise and let the same, with a subsequent covenant to procure a licence to let from the lord, operates as an agreement for a lease, and not as an absolute demise. 2 T. R. 739.

Words in an agreement that A. shall hold and enjoy, &c. if not accompanied with restraining words, operate as words of present demise; otherwise, if they be followed by others, which show that the parties intended that there should be a lease in future. The whole must depend on the intention of the parties. 5 T. R. 163.

These words in an instrument, "Be it remembered, that I. B. hath let, and by these presents doth demise," &c. held to operate as a present demise, although the instrument contained a further covenant for a future lease. 5 T. R. 165.

The provision as to a future lease does not necessarily prevent the instrument from operating as a present demise, especially if the terms of the future lease are ascertained at the time of signing the instrument. 8 Bing. 182. It is to be collected from the whole instrument, whether it is intended to operate as a present demise or as a mere executory agreement. 7 Bing. 590; 8 Bing. 178. Though the words are agree to let," it may be a present demise, if such appears the intention. 7 Bing. 594. If the words of the instrument are ambiguous, the court will call in aid the acts of the parties done under it as a clue to their intention. 8 Bing. 181. "G. F. does this day agree to let to J. S. three cottages for ten years; he further agrees to build a store-house, and make a cellar, at the rent of 351.; he agrees to pay the ground rent, and has this day received 41. from J. S. in earnest :" Held, an actual demise, and not a mere agreement. 7 Bing. 590; and see 8 Bing. 178; 2 N. & M. 137.

A lease at will, is at the will of the lessor or lessee, or regularly at the will of both parties. 1 Inst. 55. According to the strict letter of the old law, such a tenancy, as it existed only by the mutual will of the lord and tenant, might have been put an end to at any time by either party. Co. Lit. 55 a; 2 Comm. 145. But in modern times estates at will have been looked upon with an unfavourable eye by the courts of law, and it is now clearly settled that where the relation of landlord and tenant is created without any limitation as to time, it is a tenancy from year to year, and not determinable at the will of either party, not even at the end of the current year, unless by a regular notice to quit. 3 T. R. 16; 6 T. R. 297; 7 T. R. 83; 8 T. R. 3; 8 East, 165. However a tenancy at will may still be created if two parties agree to let and take certain premises so long as both shall please, reserving a compensation accruing from day to day, without reference to any aliquot portion of a year; this will be strictly a tenancy at will. 4 Taunt. 128. And it would seem that a person who is permitted to live in a house rent-free, and without any limitation as to time, is still in the eye of law a tenant at will. Russ. & R. C. C. 498, 525. And see post, 4.

2. All persons seised or possessed of lands, may dispose of them according to the nature and quantity of their estates, provided they are under no legal disability. Where such disability exists, the demise may be either void or voidable.

He that is seised of an estate for life, may make a lease for his life according as he is seised; also he may make a lease for years of the estate, and it shall be good as long as the estate for life doth last; one possessed of lands for years

may make a lease for all the years except one day, or any short part of the term; and if lessee for years make a lease for life, the lessee may enjoy it for the lessor's life, if the term of years last so long; but if he gives livery and seisin upon it, this is a forfeiture of the estate for years. Wood's Inst. 267. If a person having an interest for three years make a lease for five years, it will be good for the three years, for though he exceed his authority, the lease is only void for the excess. Bull. N. P. 106.

If tenant in tail or for life make a lease generally, it shall be construed for his own life. 1 Inst. 42.

No restraint is imposed on civil corporations, as mayor and commonalty, bailiffs, burgesses, and the like, by common law or by statute, and they may therefore, consistently with their bye-laws, lease their lands for life or years, so as to bind their successors. 1 Sid. 161, 162.

With respect to statutable leases by ecclesiastical corporations, and tenants in tail, see post, II.

Joint-tenants, tenants in common, and coparceners, may make leases for life, years, or at will, of their own parts, which shall bind their companions; and in some cases, persons who are not seised of lands in fee, &c. may make leases for life or years, by special power enabling them to do it; when the authority must be exactly pursued. Wood's Inst. 267. But there is a difference, where there is a general power to make leases, and a particular power. See ante, and 8 Rep. 69.

If joint-tenants join in a lease, this shall be but one lease, for they have but one freehold; but if tenants in common join in a lease, it shall be several leases of their several interests. 2 Ro. Abr. 64; Com. Dig. tit. Estates, (G. 6.); Bac. Abr. Leases, (I 5.)

A lease by à feme covert is altogether void, for by marriage the free agency of the woman is suspended. Co. Lit. 46 b, 351 b; 2 Comm. 293.

If an infant be seised of land in fee-simple, and he make a lease for years of it, rendering no rent, this lease is void; but if there be a rent reserved upon the lease, then the lease is but voidable, and may, by the acceptance of the rent by the infant after his full age, be made good. Shep. Touchst. c. 14. cites 9 H. 7. c. 24 ; 18 E. 4. c. 2; Plowd. 545. In 3 Burr. 1806, it is said to have been long settled, that an infant may make a lease without rent, to try his title; and that all leases by an infant, whether with or without rent, if made by deed, are voidable only. See Infant, and Bac. Abr. tit Leases B.; and addenda, (ed. by Gwillim & Dodd.)

By 1 W. 4. c. 65. § 12. infants and femes covert may by their guardians, &c. apply to the Courts of Chancery or Exchequer, or to the Courts of Equity of the counties palatine of Lancaster and Durham, as to land within their jurisdiction, by petition or motion in a summary way; and by the order of those Courts respectively may by deed surrender leases for lives or years, and take new leases for lives or years of the premises comprised therein.

By § 16. infants and femes covert may, under the direction of the Court of Chancery, accept of surrenders of leases, and grant renewals thereof; and by § 17. infants may grant leases of their lands, under the direction of the Court, where it is for the benefit of their estates.

By § 18. if persons bound to renew are out of the jurisdiction of the Court, it may, on the petition of the parties entitled to such renewals, appoint persons to renew leases in the names of the individuals who ought to have renewed.

An idiot, or person non compos mentis, may make leases which will be prima facie binding; though after office found, the king, as guardian of insane persons, may avoid such leases. Co. Lit. 247a; 4 Rep. 123; and so after his death, they may be avoided by his heir. Ibid.

For the provisions of the 1 W. 4. c. 65. with respect to leases to or by lunatics, see Idiots, IV. 2.

By various acts of parliament, and also by private settlements, a power is granted of making leases in possession, but not in reversion, for a certain time; the object being that the estate may not be incumbered, by the act of the party, beyond a specific time. Yet persons who had this limited power of making in possession only, had frequently demised the premises to hold from the day of the date; and the Courts in several instances had determined that the words "from the day of the date," excluded the day of making the deed; and that in consequence these were leases in reversion, and void; but this question having been brought again before the Court of B. R., it was determined that the words 'from the day' might either be inclusive or exclusive; and therefore that they ought to be construed so as to effectuate these important deeds, and not to destroy them. Pugh v. Leeds, (Duke,) Comp. 714; and see Doug. 53, 185, in notis.

The lease of a tenant for life, who has power of leasing under certain conditions, must strictly comply with the conditions; and if it vary from them in the interest demised, or the rent reserved, it cannot be supported against the remainder-man. 5 T. R. 567.

Under a settlement, with power to every tenant for life in possession to lease for any term of years not exceeding 21 years, or for the life or lives of any one, two, or three person or persons, so as no greater estate than for three lives, be at any one time in being in any part of the premises; held that a lease made by tenant for life for ninety-nine years, determinable on lives, as it might exceed twenty-one years, was void at law, and not even good pro tanto for the twenty-one years. 10 East, 158.

Of all kinds of power the most frequent is that to make leases. In the making such leases, all the requisites particularly specified in the power must be strictly observed; and such leases must contain all such beneficial clauses and reservations as ought to be for the benefit of the remainder-man; the principle being, that the estate must come to him in as beneficial a manner as the ancient holders held it. See 1 Burr. 120, and tit. Power.-If a man hath power to lease for ten years, and he leaseth for twenty, the lease shall be good in equity for ten years. 1 Ch. Ca. 23. See further Shep.

Touchst. c. 14, in n.

Where lessor leased lands which he held in fee, with others, of which he was only tenant for life, at one entire rent, and the lease was not well executed according to the power, it was held, that the lease was good for the lands in fee, though bad for the other lands, for the rent might be apportioned. 2 Mau. & Sel. 276.

A lease executed by the tenant for life, in which the reversioner, who was then under age, is named, but who does not execute the lease, is void on the death of the tenant for life; and an execution by the reversioner only afterwards is no confirmation of it, so as to bind the lessee in an action of covenant. 1 T. R. 86.

Under the settlement of an estate with a power to the tenant in possession to let all or any part of the premises, so as the usual rents be reserved, a lease of tithes which had not been let before was held void. In these cases, the intention of the parties is to govern the Court in construing the power. 3 T. R. 665.

Where tenant for life has a power "to grant leases in possession, but not by way of reversion or future interest," a lease per verba de presenti is not contrary to the power; though the estate, at the time of making the lease, was held by tenants at will, or from year to year; if, at the time, they received directions from the grantor of the lease to pay their rent to the lessee. Dougl. 565, Goodtitle v. Funucan.

Under a power to demise for twenty-one years in possession, and not in reversion, a lease dated in fact on 17th February, habendum from 25th March next ensuing, the date thereof, is good if not executed and delivered till after the 25th March, for it then takes effect as a lease in possession with

reference back to the date actually expressed. 10 E. R.

427.

A lease purported on the face of it to have been made on the 25th of March, 1783, habendum to the lessee from the 25th of March now last past, for 35 years. There was evidence to show that the lease was not executed until after the 25th March, 1783. Held, that it took effect from the delivery, and not from the date; and consequently that the term commenced on the 25th March, 1783, and not on the 25th of March, 1782. 4 B. & C. 272, and see ibid. 908.

Under a power" to lease all manors, messuages, lands, &c. so as there be reserved as much rent as is now paid for the same," such parts of the estates enumerated in the power as have never been demised may be let; but in a family settlement of an estate consisting of some ground always occupied with the family seat, and of lands let to tenants upon rents reserved, the qualification annexed to the power of leasing, "that the ancient rent must be reserved," excludes the mansion-house and lands about it never let. Doug. 565-9,

574.

Under a power to lease, reserving the best rent, a lease at £43 a year cannot be impeached by shewing that two specific offers to give £50 and £60 for the premises were rejected by the lessor, for all other requisites of a good tenant may be regarded by him as well as the mere amount of the rent offered. 10 East, 278.

Where premises have been jointly let by one demise at one rent, and the power directs that the letting shall be at the accustomed rent, a part of such premises may be demised, reserving a rent bearing the same proportion to the old rent that the premises demised by the new lease bore to the whole premises formerly demised. 5 B. & Adol. 363.

Under a power to a tenant for life to lease for years, reserving the usual covenants, &c. a lease made by him containing a proviso that in case the premises were blown down or burned, the lessor should rebuild, otherwise the rent should cease, was held void, the jury finding that such covenant was unusual. 1 T. R. 705.

By the Bankrupt Act, 6 G. 4. c. 16. § 77. the powers vested in any bankrupt, which he might execute for his own benefit, may be executed by his assignees; and this clause, of course, extends to any power of leasing which he may

possess.

By the Insolvent Act, 7 G. 4. c. 57. and which has been continued by subsequent statutes, powers of leasing vested in insolvents may be exercised by their assignees.

3. If a house falls down by tempest, &c. the lessee hath an interest to take the timber to re-edify it for his habitation. 4 Rep. 63.

Tenants suffering houses to be uncovered or in decay; taking away wainscot, &c. fixed to the freehold, unless put up by the lessee and taken down before the term is expired; cutting down timber-trees to sell; permitting young trees to be destroyed by cattle, &c.; ploughing up ground that time out of mind hath not been ploughed; not keeping banks in repair, &c. are guilty of waste. 1 Inst. 52; Dyer, 37; 1 Salk. 368.

Lessees are bound to repair their tenements, except it be mentioned in the lease to the contrary. Though a lessee for years is not obliged to repair the house let to him, which is burnt by accident, if there be not a special covenant in the lease that he shall leave the house in good repair at the end of the term; yet if the house be burnt by negligence, the lessee shall repair it, although there be no such covenant. Pasch. 24 Char. B. R. A lessee at will is not bound to sustain or repair, as tenant for years is. If the house of such tenant is burnt down by negligence, action lies not against the tenant; but action lies for voluntary waste, in pulling down houses or cutting woods, &c. 5 Rep. 13. See Fire.

In an action of covenant for non-repair, the question is, whether the covenant to repair has been substantially com

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plied with. Minute damage, as the non-repair of the broken glass of a sky-light, is not sufficient to constitute a breach; and where the verdict is for the defendant, the court will not grant a new trial to enable the plaintiff to recover nominal damages. 1 M. & Rob. 173.

A lessee who covenants to pay rent and to repair, with an exception of casualties by fire, is liable upon the covenant for rent, though the premises are burnt down, and not rebuilt by the lessor after notice. 1 T. R. 310; Anstr. Rep. Scac. 687; or if there is no covenant under seal, the landlord may in such case recover for use and occupation; Baker v. Holtzapffel, 4 Taunt. 45; sed vide Ry. & Moo. 268, from which it appears the tenant cannot be liable in this action if he has no beneficial occupation; but see Brown v. Quilter, Amb. 619, where the tenant was relieved in equity, the landlord having recovered the value against the insurer: but in general equity will not relieve or grant an injunction in such a case; Holtzapffel v. Baker, 18 Ves. 115.

A covenant on the part of the lessor, at the end of eighteen years of the term, or before, on the request of the lessee, to grant a new lease of the premises for the like term of twenty-one years, at the like rent, with all covenants as in that indenture contained, was held to be satisfied by a tender of such a new lease, containing all the former covenants, except the covenant for future renewal. 7 East, 237. See Cowp.

819.

A lessee of land in the Bedford Level cannot, to an action by his landlord for a breach of covenant, object that the lease was void by the 15 Car. 2. c. 17. because not registered; that act not avoiding it between the parties themselves, but only postponing its priority with respect to subsequent incumbrances. 10 East, 350.

Covenant will lie against an original lessee, before he takes actual possession; and so before actual possession, against an assignee, under an absolute indefeasible assignment of the whole interest in the term; and against a mortgagee of the term, though he has never entered. Williams v. Bosanquet, 1 Brod. & B. 238, which over-rules the contrary decision of Eaton v. Eaton v. Jaques, Dougl. 455.

A covenant on the part of a lessor, his executors, &c. and assigns, not to hire persons to work on the premises, who were settled in other parishes, without a parish certificate, was held not to run with the land, or bind the assignee of the lessee. 10 East, 130.

But a covenant in a lease, that the lessee, his executors and administrators, shall constantly reside on the demised premises during the demise, is binding on the assignee of the lessee, though he be not named. 2 H. Bla. 133.

Whether a covenant by the lessee to insure is, in general, a covenant running with the land, is a question not decided; but if all the premises are situate within the London bills of mortality, it is decided to be so, since the Building Act, which extends to that district, compels the insurance office to have the money insured laid out in rebuilding the premises. Vernon v. Smith, 5 B. & A. 1.

If a lease contain a covenant that the lessee, his executors, &c. shall not set, let, or assign over, the whole or part of the premises, without leave in writing, on pain of forfeiting the lease, the administratrix of the lessee cannot under-let without incurring a forfeiture, though for less time than the whole term: a parol licence to let part of the premises does not discharge the lessee from the restriction of such a proviso. 2 T. R. 425. And so even if part be let to be occupied exclusively by a partner, the original lessee still residing in part of the premises. 1 M. & S. 297.

Where the lessee covenanted not to allow any trade or business to be exercised upon the premises, held that the assignment of the lease to a schoolmaster who had sixty pupils was a breach of this covenant. 1 M. & S. 95.

An assignee of a bankrupt, a devisee, and a personal representative, are assignees in law to the purpose of being H

liable to actions on a covenant for rent in a lease to the bankrupt, devisor, or intestate. Dougl. 184. But whether the transfer to them was such an assignment as would occasion a forfeiture under a provision not to assign, was for some time a much litigated question. 3 Wils. 237. Dougl. 184, in note. 2 Eq. Ca. Abr. 100. It is, however, now settled, that the common covenant and proviso against assigning do not apply to assignments in law, and that the assignee under a commission of bankrupt may assign a lease without consent of the lessor, notwithstanding such proviso. 3 M. & S. 358.

And so a warrant of attorney to confess judgment, on which a lease is taken in execution, and sold, is no forfeiture of the lease under a covenant not to let, set, assign, &c. 8 T. R. 57. But it being afterwards proved that the tenant gave the warrant of attorney to the creditor for the express purpose of enabling the creditor to take the lease in execution, this was held a fraud on the covenant, and the landlord recovered the premises in ejectment. 8 T. R. 300.

However, a special provision guarding against the bankruptcy of the tenant, may be inserted; for instance, a proviso in a lease for twenty-one years, that the landlord shall re-enter on the tenant's committing any act of bankruptcy, whereon a commission shall issue, is good. 2 T. R. 133.

And so where one leased for twenty-one years, if the tenant, his executors, &c. should so long continue to inhabit and dwell in the farm-house, and actually occupy the lands, &c., and not let, or assign over, or part with the lease: held that the tenant having become bankrupt, and the assignees having sold the lease, and the bankrupt being out of possession and occupation of the farm, the lessor might maintain ejectment without a previous re-entry. 8 East, 185.

The bankruptcy of the lessee was formerly no bar to an action of covenant (made before his bankruptcy) brought against him for rent due after the bankruptcy. 4 T. R. 94. But now the bankrupt will be discharged from the rent and covenants if the assignees accept the lease; or in case they decline it, if the bankrupt, within fourteen days after notice of their declining, shall deliver up the lease to the lessor; 6 Geo. 4. c. 16. § 75. The former bankrupt act (49 Geo. 3. c. 121. § 19.) was held only to apply to cases between the lessor and lessee, and not to cases between the lessee and the assignee of the lessee. Buck, 189; 3 B. & A. 521. And the lessee who has assigned over, is not discharged by the circumstance of his assignee having become bankrupt, and having delivered up the lease to the lessor; for the statute of the 6 Geo. 4. c. 16. does not put an end to the lease, but merely discharges the bankrupt personally from the rents and covenants. 3 B. & Adol. 211.

Though a bankrupt cannot give a lien on any particular goods, yet he may take a demise, and agree that the rent shall be payable on a particular day, e. g. he may agree to pay half-a-year's rent in advance, where by the custom of the country half-a-year's rent becomes due on the day on which a tenant enters and in this case the law gives the landlord a power of distraining on that day. 2 T. R. 600. See Distress, Rent.

If both lessee and lessor sign a lease, the lessee is estopped from pleading nil habuit in tenementis to an action of debt for rent by the lessor. 6 T. R. 62.

Under a proviso that all assignments of a lease shall be void if not enrolled, under-leases are not included; and an under-lease is no assignment to the effect of working a forfeiture under a proviso not to assign. Dougl. 56 to 58, 184. But what cannot be supported as an assignment, shall be good as an under-lease, against the party granting it. Dougl. 188, in note.

When the whole term is made over by the lessee, although in the deed by which that is done, the rent and a power of entry for non-payment is reserved to him, and not to the original lessor, this is an assignment and not an under-lease. Palmer v. Edwards, Dougl. 187, in note; and 8 Taunt. 593;

but it has lately been held, that it is a lease and not an assignment, though it is clear that in such a case the lessor cannot distrain, since he has no reversion. Preece v. Corrie, 5 Bing. 24. However, in Curtis v. Wheeler, Moo. & Mal. 493, it was held by Lord Tenterden, that a tenant from year to year, under-letting from year to year, had a reversion which entitled him to distrain. In that case the under-lease was of parts of the premises demised.

A landlord cannot maintain an action of covenant for rent, against an under-tenant who holds for a term less than the time granted in the original lease. Hadford v. Hatch, Dougl.

12.

A lessee for twenty-one years, at a pepper-corn rent for the first half-year, and a rack-rent for the rest of the term, who by agreement was to put the premises in repair, and covenanted to pay the land-tax, and all other taxes, rates, assessments, and impositions, having assigned his term for a small sum in gross, was held not to be liable to pay the expense of a party-wall, either by the provisions of 14 Geo. 3. c. 78. § 41. or by the covenant, but the charge must in such case be borne by the original landlord; for the statute intended to throw that burthen on persons to whom long leases had been granted, with a view to an improvement of the estate, and who afterwards under-let at a considerable increase of rent. 3 T. R. 458.

A lessor, who has a right of re-entry for breach of a covenant not to under-let, does not, by waiving his re-entry on one under-letting, lose his right on a subsequent similar cause of forfeiture. 4 Taunt. 735.

And if a lessee exercise a trade contrary to the covenants of his lease, the landlord does not, by merely lying by and witnessing the act for six years, waive the forfeiture, for there must be an express waiver. 3 Taunt. 78.

So a right of re-entry, accruing by the tenant's omission to repair within three months after notice, is not waived by the acceptance of rent falling due during the three months. And such right is only suspended, not waived, by an agreement to allow the tenant further time to repair. 1 N. & M. 1.

Where a tenant for years under a lease delivered up possession of the premises and the lease, in fraud of his landlord, to a person claiming under a hostile title, with the intention of enabling him to assert such hostile title, and not to hold under the lease, it was held a forfeiture of the term. 1C. M. & R. 137.

By 32 Hen. 8. c. 34. grantees of reversions have the same remedy against lessees, their executors, &c. as their grantors had. See Covenant, III.

4. Lands are leased at will, the lessee cannot determine his will before or after the day of payment of the rent, but it must be done on that very day; and the law will not allow the lessee to do it to the prejudice of the lessor, as to the rent; nor that the lessor shall determine his will to the prejudice of the lessee, after the land is sown with corn, &c. Sid. 339; Lev. 109. For where lessee at will sows the land, if he does not himself determine the will, he shall have the corn; and where tenant for life sows the corn, and dies, his executors shall have it; but it is not so of tenant for years, where the term ends before the corn is ripe, &c. 5 Rep. 116. The lessor and lessee, where the estate is at will, may determine the will when they please; but if the lessor doth it within a quarter, he shall lose that quarter's rent; and if the lessee doth it, he must pay a quarter's rent. 2 Salk. 413. By words spoken on the ground, by the lessor in the absence of the lessee, the will is not determined, but the lessee is to have notice. 1 Inst. 55. If a man makes a lease at will, and dies, the will is determined; and if the tenant continues in possession, he is tenant at sufferance. Ibid. 57. But where a lessor makes an estate at will to two or three persons, and one of them dies, it has been adjudged this doth not determine the estate at will. 5 Rep. 10. Tenant at will grants over his estate to another, it determines his will. 1 Inst. 57.

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