port; that is to rightful title. It is, however, different when an individual is named; for, there, the covenantor is presumed to know the person against whose acts he is content to covenant, and may, therefore, be reasonably expected to stipulate against any disturbance from him, whether by lawful title or otherwise. Hence where the condition of a bond which recited the purchase, from W. by plaintiffs, of lands, was to save them and the lands harmless from all manner of mortgages, judgments, extents, executions, and other incumbrances, had and obtained, or thereafter to be had and obtained, by T. T. or any other person; it was holdenTM to bind the obligor against the wrongful entry of T. T.

Tenant for life, and his eldest son the remainder-man in tail, leased to E. S. for ninety-nine years, and gave E. S. who was acquainted with their title a bond, conditioned for the due observance of their covenant for quiet enjoyment. E. S. underlet to W. for sixty years, and covenanted with W. against eviction by any person claiming under E. S. or by his acts, neglect, default, or procurement. Tenant for life and his eldest son being dead without issue, W. was evicted by the next remainder-man in tail. It was holden, that no breach could be assigned on the covenant; for first, the eviction was not by any person claiming under E. S., but by a person claiming by title, paramount to E. S.; secondly, it did not appear to be an eviction arising from the acts or procurement of E. S.: lastly, although the eviction would have been prevented if E. S., at the time he took the lease for ninety-nine years, had required the lessors to join in common recoveries to cut off the entail, and if the lessors had complied with such requisition, yet, inasmuch as E. S. had no means of compelling common recoveries to be suffered by the lessors, if, upon his requisition, they refused, it could hardly be said that he was guilty of any neglect or default in not procuring that step to be taken, which he was unable to compel". A. covenants for himself, his heirs, and assigns, that B. shall quietly enjoy, without the lett of A., his heirs, or assigns, or any person claiming under him or them. The estate originally belonged to A.'s wife, and on marriage was settled on A. for life, with power to make leases, and also with power to A. and his wife jointly, to revoke the uses, which they did; and, after A.'s death, B. was evicted under

m Nash v. Palmer, 5 M. and S. 374. See also Southgate v. Chaplin, Comyns, R. 230, and Fowle, Exec. v. Welsh, Gent. one, &c. 1 B. and C.

n Woodhouse v. Jenkins, 9 Bingh. 431. See also Ireland v. Bircham, 2 N. C. 90.

the new settlement. Covenant lies against the executors of A., though the estate moved from the wife and not from A.

A covenant by lessor, that the lessee, paying the rent, &c. shall quietly enjoy, is not a conditional covenant, making the payment of the rent a condition precedent to the performance of the covenant for quiet enjoyment, on the part of the lessor.

6. Of the Covenant not to assign without License.

A covenant not to assign or under-let without license of the lessor, with a clause of re-entry in case of breach, is frequently introduced into leases, for the purpose of securing to the lessor a responsible tenant in whom he can repose a confidence. (23). It will be proper, therefore, to consider the effect and operation of such covenant; what will amount to a breach of it, and what to a dispensation from it.

The general principle is, that a lessee may assign his interest in the term. But the lessor may restrain the lessee from assigning by covenant or proviso; and if the lessor grants the term subject to a condition, that it shall cease, if the lessee assigns, an assignment by the lessee will be void. But if the lessor restrain the lessee from assigning by cove

o Hurd v. Fletcher, and Bridgewood, executors, &c. B. R. M. 19. G. 3. ; B. P. B. 85. Dampier MSS. L I. L.

p Dawson v. Dyer, 5 B. and Ad. 584. 2 Nev. and M. 559. But see Ireland v. Bircham, 2 Bingh. N. C. 90.

(23) In Henderson v. Hay, 3 Bro. Ch. Cas. 632, upon a bill filed for the specific performance of an agreement by a landlord to grant a lease of a public-house, containing the common and usual covenants: Lord Thurlow, Ch. was of opinion, that though the covenant not to assign without license might be a very usual one, where a brewer or vintner let a public-house, that would not make it a common covenant; and declared, that the landlord was not entitled to have it inserted in the lease. In Morgan v. Slaughter, 1 Esp. N. P. C. 8. Lord Kenyon, C. J. held such a covenant to be a fair and usual covenant. But in Church v. Brown, 15 Ves. 258. 531., the opinion of Lord Thurlow was recognized by Lord Eldon, Chr.; and in Brown v. Ruban, 15 Ves. 529. Sir W. Grant, M. R. held, that under an agreement for a lease "with usual covenants," the lessor was not entitled to this covenant against assigning or underletting without license. See further on this subject, Bennet v. Womach, 7 B. and C. 627. Vere v. Lovenden, 12 Ves. 183; Jones v. Jones, 12 Ves. 188; Van v. Corpe, 3 M. and K. 269; Propert v. Parker, ib. 280.

nant only, although the lessee by assigning commits a breach of covenant, yet the assignment itself is not voidi.

Lessee for years covenanted not to assign, transfer, or set overk, or otherwise do or put away the lease of the premises thereby demised, or any part thereof, to any person, without the license of the lessor in writing; it was holden, that an underlease was not a breach of this covenant. So where the covenant was not to assign or otherwise part with the premises, or that present indenture of lease; it was holden1, that a deposit of the lease with a creditor, as a security for money advanced, was not a breach. But where the words of the covenant werem, that the lessee would not set, let, or assign over the whole or part of the premises without leave; it was holden, that an underlease amounted to a breach. So where the proviso was, that the lease should be void", "if the lessee assigned or otherwise parted with the indenture of lease, or the premises thereby demised, or any part thereof, for the whole or any part of the term, without leave in writing;" it was holden, that the words included an underlease. And here it is to be observed, that a lease by the lessee for the whole term amounts to an assignment, although the rent be reserved to the lessee, and a power of re-entry given to him, and not to the reversioner. But if a day only be excepted out of the term, then it is an underleaseP. If a lease contain a proviso, making it void if the lessee, his executors, or administrators, alien without license in writing, a voluntary assignment by the executor or administrator, without such leave, will amount to a forfeiture (24). Provisoes for re-entry

i Per Holroyd, J. Paul v. Nurse, 8 B.
and C. 488.

k Crusoe dem. Bugby v. Blencowe, 3
Wils. 234. 2 Bl. R. 766, S. C.
1 Doe d. Pitt v. Laming, 1 R. and M.
36.

m Roe d. Gregson v. Harrison, 2. T. R.
426.

n Doe d. Holland v. Worsley, 1 Campb. 20. Ellenborough, C. J.

o Palmer v. Edwards, Doug. 186. n. p Holford v. Hatch, Doug. 182.

q Roe d. Gregson v. Harrison, 2 T. R. 425.

(24) In Seers v. Hind, 1 Ves. Jun. 295. one of the questions was, whether executors were warranted in disposing of a lease as assets of the testator, where there was a proviso against alienation by the lessee. Lord Thurlow, Ch. said, "If A. lets a farm to B., with a covenant not to alien, and B. dies, may not his executors dispose of the term? I think it has been determined that they may, and I have always taken it to be clear law. It is an alienation by the act of God. I remember Lord Camden entered into the question much in the same way. He took it to be a clear law, that an alienation by death could not be a forfeiture. In the case of a lease for years to A., it goes to his executors, not by way of limitation, as in the

in a lease are to be construed as other contracts, according to fair and obvious construction; and not with the strictness of conditions at common law. Per Lord Tenterden, C. J. Doe

d. Davis v. Elsam, 1 M. & Malk. 189.

An assignment by operation of law will not amount to a forfeiture: this point was decided for the first time in Doe d. Mitchinson v. Carter, 8 T. R. 57. where it was holden, that an assignment to a person purchasing the term from the sheriff under a bona fide execution, would not amount to a forfeiture.

But where the execution is in fraud of the covenant", the assignment under it will amount to a forfeiture, and the lessor may re-enter; as where the lessee gives a warrant of attorney to confess judgment to a creditor for the express purpose of enabling such creditor to take the lease in execution under the judgment. Covenant against assigning without license, is determined by a license once granted. 12 Ves. 191. per Sir W. Grant.

Under a condition not to alien without leave, if leave is once granted, the condition is entirely discharged:

Corpus Christi College, in Oxfords, demised land for a term of years to A., with a condition, that neither A. or his assigns should alien the land without the special license of the lessors; afterwards the lessors, by writing under seal, licensed A. to alien the land to any person, and A. afterwards assigned the term to B.: after B.'s death, C. became entitled to the term, and assigned it to the defendant Syms. The lessors entered for condition broken. It was resolved by the court, that the alienation by license to B. had determined the condition as to the assignees; and that it was not in the power of the lessors to dispense with an alienation for one time, and yet to consider the estate aliened or demised as af

r Doe d. Mitchinson v. Carter, 8 T. R. 300.

s Dumper v. Syms, 4 Rep. 119. b. Cro. Eliz. 815. 1 Roll. Abr. 471. (G.) pl. 1. S. C. See the record of special verdict, Co. Ent. 614 b. pl. 22. "The

profession have always wondered at
Dumper's
's case, but it has been law
so many centuries that we cannot
now reverse it." Per Mansfield, C. J.
in Doe d. Boscawen v. Bliss, 4 Taunt.
736.

case of a remainder over, &c., but it goes to them as coming in the place of the lessee. I understood it to be well settled as I have stated. But I do no not mean to lay down, that a man may not by a clause in his will provide that, in case of a devolution to executors, it shall not be alienable by them; but it must be very special for that purpose."

terwards remaining subject to the condition; for a condition is to be taken strictly, and by the alienation with license it is satisfied. So in the case of a demise to A., B., and C., with a like condition, if a license to alien be granted to A., and A. aliens by virtue of such license, the condition is determined as to B. & C. (25.)

Lessee covenanted that he, his executors, or administrators, would not demise, &c. the premises without license; the lessee became a bankrupt; his assignees took to the lease, and assigned it to A. who assigned it to the original lessee, who underlet to B.; it was holden that the covenant of the lessee was discharged by 49 Geo. 3. c. 121, s. 19; and consequently that the subsequent underletting by the lessee was no breach of that covenant, which no longer existed". The stat. 49 Geo. 3. c. 121. is now repealed, but see similar enactment in 6 Geo. 4. c. 16, s. 75, which provides for three cases: first, where the assignees accept the lease; in which case it declares that the bankrupt shall not be liable to pay any rent accruing after the date of the commission, or to be sued in respect of the non-performance of any of the covenants: secondly, where the assignees decline the same; in this case also the bankrupt shall not be liable, in case he deliver up the lease to the lessor within fourteen days after he shall have had notice that the assignees shall have declined to accept the lease; in this case, the covenants on both sides fall to the ground. It has been holden, however, that this is a personal discharge to the lessee only, and that a suretyy who has joined in the lease with him is liable for breaches of covenant, accruing between the date of commission and actual delivery up of lease by lessee under this statute. And where original lessee had assigned to B. subject to the payment of rent, and B. entered, and afterwards became bankrupt, and rent became due after the commission, and the assignees of the estate decline the lease; and then covenant was brought by the lessor against the lessees it was

t Leeds and Crompton, adjudged; cited in 4 Rep. 120. a. 1 Roll. Abr. 472 (G.) pl. 7. S. C.

u Doe d. Cheere v. Smith, 5 Taunt.795. x Kearsey v. Carstairs, 2 B. and Ad. 716.

y Tuck v. Fyson, 6 Bingh. 321.

(25) So in the case of a demise, upon condition that the lessee shall not alien the land, or any part thereof, without the assent of the lessor, and afterwards the lessee aliens part, with the assent of the lessor, the lessee may alien the residue without such assent, per Popham, C. J. 4 Rep. 120 a. who denied the contrary position (though adjudged in Dyer, 384 b. pl. 32.) to be law.