With regard to this rule I will merely repeat [*118]

the observation of Sir James Mansfield in Doe

v. Bliss, 4 Taunt. 736, namely, "that the profession have always wondered at it, but that it has been law so many centuries that it cannot now be reversed." I will, however, mention one remarkable distinction which subsists between conditions not to assign and conditions not to underlet, namely, that, in the *for[*119] mer case, if the lessee break the condition by assigning, and the lessor accept rent subsequently accruing, and thereby waives the forfeiture upon the principles which I have been explaining, there is an end of the condition not to assign for the rest of the term, but, in the latter case, if the tenant break the condition by making an underlease, and the landlord accept rent accruing subsequently to the breach, he waives, it is true, the right to take advantage of that particular forfeiture, but, if the tenant make another underlease, he has a right to take advantage of that

the lessee only covenanted for himself, his executors, administrators, and assigns, that he, his executors or administrators would not assign. It will be observed, that in this case there was no condition of reentry in respect of the breach of covenant. See Coote's Landl. and Ten. 289. A general covenant not to assign, in which "assigns" are not mentioned, does not run with the land, for it obviously contemplates that the land shall not pass into the possession of an assignee; but if a condition of re-entry is annexed to such a covenant, it seems that the assignee of the land will take it subject to the condition, and that it is immaterial, in this respect, whether the condition is for the performance of a covenant which runs with the land, or one which is wholly collateral. See 1 Wms. Saund. 288 b; the judgments in Bally v. Wells, 3 Wils. 33; and in Doe d. Flower v. Peck, 1 B. & Ad. 436, (20 E. C. L. R. 549,) and Coote's Landl. and Ten. 291. A covenant not to assign without license, which does not assume that no assignment of the land is to be made, would probably, if properly framed, be held to run with the land.

and re-enter, Doe v. Bliss, 4 Taunt. 735; Lloyd v. Crispe, 5 Taunt. 249, (1 E. C. L. R. 136,).38

In the case of a condition for re-entry upon non-payment of rent, it has been held that the condition is not broken unless the rent have been demanded on the very day on which it became due, with a variety of technical formalities, which you will find described in note 16 to Duppa v. Mayo, 1 Wms. Saund. 287, and which were so numerous and troublesome as to render it next to an impossibility to take advantage of a breach of that condition. To obviate these difficulties, the parties, sometimes, expressly insert in the condition, terms dispensing with a formal demand of the rent, which, when inserted, are held operative, see Doe d. Harris v. Masters, 2 B. *& C. 490, (9 E. C L.

[*120] R. 217,). And in order, as far as possible, to accomplish the same end in cases where the parties have not expressly dispensed with a demand, stat. 4 Geo. 2, c. 28, in cases in which half a year's rent is in arrear and no sufficient distress on the premises, substitutes the service of a declaration in ejectment in the manner pointed out by the Act for the demand which would be otherwise necessary in order to create a breach of the condition. See on the construction of this Act, Doe v. Lewis, 1 Burr. 614, Doe v. Wandlass, 7 T. R. 117.39

38 See the judgment of Mr. Justice Patteson in Doe d. Griffith v. Pritchard, 5 B. & Ad. 781, (27 E. C. L. R. 329,); and the notes to Duppa v. Mayo, 1 Wms. Saund. 288 b.

39 The right of entry in cases of this kind is now regulated by s. 210 of the Common Law Procedure Act, 1852, (15 and 15 Vic. c. 76,) which re-enacts s. 2 of the 4 Geo. 2, c. 28, with slight differences, rendered necessary by the new procedure in ejectment. The decisions upon the 4 Geo. 2, c. 28, are applicable to this portion of the Common Law Procedure Act, 1852. The 4 Geo. 2, c. 28, was held not to apply unless the landlord had a right of re-entry in respect of the

*Having thus touched on the points relative to the creation of a tenancy, viz., the capacity of

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non-payment of half a year's rent. Doe d. Dixon v. Roe, 7 C. B. 134, (62 E. C. L. R. 134,); nor did it apply where the right of re-entry was not absolute; as, for instance, where the power was only to re-enter and hold the premises until the rent was satisfied. Doe d. Darke v. Bowditch, 8 Q. B. 973, (55 E. C. L. R. 973,). It is essential to proceedings under these statutes, that no sufficient distress should be found on the premises. Doe d. Smelt v. Fuchau, 15 East. 286. Every part of the premises should be searched. Rees d. Powell v. King, mentioned in the judgment in Smith v. Jersey, 2 Bro. & Bing. 514, (6 E. C. L. R. 253,). The goods must, however, be so visibly on the premises, that a broker going to distrain and using reasonable diligence would find them. See Doe d. Haverson v. Franks, 2 Car. & Kir. 678, (61 E. C. L. R. 678,). The statutes speak of no sufficient distress being "found" on the premises. If, therefore, the tenant locks up his doors so that the landlord cannot enter upon the premises to distrain, proof of this fact is enough without showing that no sufficient distress was on the premises. Doe d. Chippendale v. Dyson, 1 Moo. & M. 77, (22 E. C. L. R. 478,). It was at 'one time thought that where more than half a year's rent was due, it was not enough to show that there was no distress sufficient to countervail the whole arrears due. Doe d. Powell v. Roe, 9 Dowl. 548; Doe d. Gretton v. Roe, 4 C. B. 576, (56 E. C. L. R. 576,). But this is not the true construction of the statute. Cross v. Jordan, 8 Exch. 149. In Doe d. Scholefield v. Alexander, 2 M. & S. 525, a lease contained a proviso of re-entry if the rent was in arrear for twenty-one days after the time of payment "being lawfully de. manded." Lord Ellenborough thought that notwithstanding the 4 Geo. 2, c. 28, a demand was still necessary, since it was made so by the express contract between the parties. The other Judges of the Court of King's Bench held, however, that as before the statute, every clause of re-entry contained these words in effect, although not in terms, their express insertion in the proviso did not vary its legal. effect; and consequently that the statute, even in this case, rendered any demand unnecessary. And this view of the act has been acted upon in a later case. See Doe d. Earl of Shrewsbury v. Wilson, 5 B. & A. 384, (7 E. C. L. R. 131,).

the lessor, that of the lessee, the subject-matter of demise, and the general nature and ordinary terms of the demise itself, I shall proceed in the next Lecture to the second principal head into which I divided the whole subject, comprising those points which arise during the tenancy.(a)

(a) Upon the general subject of the preceding chapter, the reader is referred to Judge Hare's note to Dumpor's case, in the first volume of the American edition of Smith's Leading Cases, p. 87.

You will probably bear in mind that I commenced these Lectures by enumerating the various sorts of tenancy known to the law, and giving a general outline of their nature and qualities. In the next Lecture, confining my attention to those of a degree inferior to

freehold, and premising that it was not my intention to enter upon the consideration of any others, I divided the entire subject into four heads: the first, embracing points which relate to the commencement of a [*123] tenancy; the second, those arising during its continuance; and the third, those relating to its termination. And it is obvious, that as every point arising upon any subject matter whatever must arise either at its commencement, during its continuance, or at its termination, these three heads would have comprehended the entire subject, had it not been that both the parties to the relation of landlord and tenant are liable to be changed, namely, either by the assignment of the term, or that of the reversion, or by certain other means · known to the law; and inasmuch as there are peculiar rules relating to such changes, and peculiar rights and liabilities arising out of them, it became necessary to add a fourth head, for the purpose of embracing the points consequent upon such a change of parties.

Having made this division, our first step was, to consider the first of the four heads into which the entire subject had thus been divided, that, namely, which embraced the points relating to the commencement of a tenancy; and this, again, naturally subdivided itself into four minor heads; for, as in order to the creation of every tenancy there must be-1st, a lessor; 2ndly, a lessee; 3rdly, a subject matter of demise; and 4thly, a demise; it became necessary to say something upon each of these four requisites. That which occupied most of our time was (you will remember) the demise; for it was necessary to touch on the three different modes of demise, namely, by deed, by writing without *seal, and by parol, and afterwards to say a few words upon the construction of the usual component parts of a formal lease, namely, the premises, the

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