set down on the last day of petitions before the vacation. (Re Adam, 6 L. T., N. S. 604; Re Bower, 18 W. R. 1085; Re Taylor, L. R., 14 Eq. 557; but see Re Townsend, L. R., 14 Eq. 433.)

(21.) Upon every application under the act the court must be satisfied by sufficient evidence that no such previous application to parliament, as is mentioned in the 21st section of the act, has been made and rejected, or reported against. (15 Nov. 1856, Ord. 8.) (ƒ)

(f) Ante, p. 695.

(22.) On every application under the act for authority to sell, the Evidence of parcourt must be satisfied by sufficient evidence who are the parties inte- ties interested, and propriety of rested in the estate, whose consent is required by the act, and what are the circumstances which render the proposed sale proper and expedient. (15 Nov. 1856, Ord. 9.) (g)

(g) See 19 & 20 Vict. c. 120, s. 17, ante, p. 693.

(23.) Where under the provisions of the 36th section (ante, p. 699) of the act it shall be necessary to obtain the special directions of the court for any application to the court, or any consent to such application, such special directions may be obtained ex parte by summons, at the chambers of the judge to whose court the application may be intended to be made, or may have been made. (15 Nov. 1856, Örd. 10.) (h)

(h) See the 21st and 22nd Regulations of 8 Aug. 1857, below, as to the mode in which the application is made.

(24.) Every order of the court made in pursuance of the powers conferred on it by the act shall specify on what document or documents (if any) the notice referred to by the 22nd section (ante, p. 695) of the act shall be placed or indorsed; and the judge may, if he thinks fit, require that such document or documents so indorsed shall be produced in court for his inspection, and in case of any such order relating to lands in a register county or district, the court may order a duplicate or a memorial of the same to be registered. (15 Nov. 1856, Ord. 11.) (i)

(i) Where the probate of a will could not be found, the court directed the order to be indorsed on a deed of appointment of new trustees. (Re Burley, W. N. 1868, p. 148.)

(25.) The fees and allowances to all officers and solicitors of the court, in respect of the matters under the act, shall be such fees and allowances as by the practice of the court and Orders 38 and 39, they are entitled to take and charge for business of a similar nature. (15 Nov. 1856, Ord. 12.)

sale."

Special directions under sect. 36 obmons ex parte.

tained by sum

Documents on which notice indorsed to be specified in order,

under sect. 22 is

Fees and allow ances to officers

and solicitors.

REGULATIONS AS TO BUSINESS.

8 August, 1857.

(Not having the force of General Orders.)

Rules 21-23.

(21.) For the purpose of procuring the appointment of a guardian Appointment of to infants under the act of parliament of 19 & 20 Vict. c. 120, and guardians under the Consolidated General Order XLI., r. 23 (supra), a summons c. 120, and Ord. 41, zz 2

19 & 20 Vict.

r. 23.

c. 120.

19 & 20 Vict. should be taken out in the names of the infants by a next friend in the form used for originating proceedings in chambers, intituled in the same manner as the petition or intended petition, that -, or some other proper person or persons may be appointed guardian or guardians of the said infants, for the purpose of making an application on behalf of the said infants [or consenting on behalf of the said infants to an application] to the court under the provisions of the above act. In case the application to the court is to be made on behalf of the infants, the guardian must be appointed before the petition is presented (4). If the guardian is to consent to an application, the guardian may be appointed either before or after the petition is presented. Upon the application to appoint such guardian the following evidence is to be adduced. 1. The age of the infant. 2. Whether he has any parent, testamentary guardian, or guardian appointed by the Court of Chancery. 3. Where and under whose care the infant is residing, and at whose expense he is maintained. 4. In what way the proposed guardian is connected with the infant, and why proposed and how qualified to be appointed. 5. That the proposed guardian has no interest in the intended application, or if he has, the nature of his interest, and that it is not adverse to the interest of the infant. 6. The consent of the guardian to act. 7. The nature of the intended application to the court.

Evidence.

(k) The regulations of the 8th of August, 1857, are not absolutely binding as orders. Therefore, though those regulations direct that a guardian to an infant petitioner must be appointed before the petition is presented, the court authorized such an appointment on an application after the petition had been presented and answered. (Re Longstaffe, 1 Drew. & Sm. 142; Re Hargreaves, 7 W. R. 156.) .

(22.) For the purpose of procuring the direction of the judge for leave to make or consent to an application on behalf of infants or lunatics under the said act of 19 & 20 Vict. c. 120, and the Consolidated General Order XLI., r. 23 (ante, p. 707), a summons is to be taken out after the petition is presented in the ordinary form, intituled in the same manner as the petition, by the guardian of the infant or committee of the lunatic, that he may be at liberty on behalf of the infant or lunatic to make the application [or consent to the application] to the court proposed to be made by the petition presented to the Lord Chancellor [or Master of the Rolls] on the - day of Upon this application the guardian or committee should make an affidavit that he believes it to be proper and for the benefit of the infant or lunatic that the application proposed to be made should be made [or consented to] on behalf of the said infant or lunatic, and such other evidence, if any, should be adduced as the circumstances of the case may require, to show the propriety of the application so far as the infant or lunatic is concerned, and the petition should be produced.

(23.) For the purpose of procuring the directions of the judge pursuant to the General Order XLI., r. 16 (ante, p. 706), a summons is to be taken out after the petition has been answered, intituled in the same manner as the petition, that directions may be given in what newspapers the notices required by the act are to be inserted. The petition is to be produced on the return of the summons, and the judge's direction will be written on the petition, and signed by his chief clerk.

LAW OF PROPERTY AND TRUSTEES RELIEF

AMENDMENT.

22 & 23 VICTORIA, C. 35.

An Act to further amend the Law of Property and to relieve [13th August, 1859.]

Trustees.

BE it enacted as follows:

Leases.

alien.

1. Where any licence to do any act which without such 22 & 23 Vict. licence would create a forfeiture, or give a right to re-enter c. 35, s. 1. under a condition or power reserved in any lease heretofore Restriction on granted or to be hereafter granted, shall at any time after the effect of licence to passing of this act be given to any lessee or his assigns, every such licence shall, unless otherwise expressed, extend only to the permission actually given, or to any specific breach of any proviso or covenant made or to be made, or to the actual assignment, underlease, or other matter thereby specifically authorized to be done, but not so as to prevent any proceeding for any subsequent breach (unless otherwise specified in such licence), and all rights under covenants and powers of forfeiture and re-entry in the lease contained shall remain in full force and virtue, and shall be available as against any subsequent breach of covenant or condition, assignment, under-lease, or other matter not specifically authorized or made dispunishable by such licence, in the same manner as if no such licence had been given; and the 'condition or right of re-entry shall be and remain in all respects as if such licence had not been given, except in respect of the particular matter authorized to be done (a).

(a) Leases often contain a covenant on the part of the lessee that he will not assign, or that he will not underlet the premises without the consent of the lessor. This, like all other covenants, is usually accompanied by a condition for re-entry on the breach of it. The jealousy which always prevailed in our law against allowing restraints on alienation led to the discouragement of this kind of restriction, and it was accordingly decided, that when, under a condition restraining assignment without licence, a licence had been once given, the condition was determined; and the law was the same with respect to a covenant to the like effect, although there seems to be no reason why such a covenant or condition should not be held to run with the land, and be binding from time to time on such persons as might become assigns with the consent of the landlord. (See Weatherall v. Geering, 12 Ves. 511; 3 Real Prop. Rep. 49.) As to covenants and conditions not to assign or underlet without licence, see further, Woodfall, Landlord and Tenant, 549 et seq., 9th ed.; Varley v. Coppard, L. R., 7 C. P. 505. Such covenants run with the land where assigns are named. (Williams v. Earle, L. R., 3 Q. B. 739. See West v. Dobb, L. R., 4 Q. B. 634; 5 Q. B. 460.)

Covenants and conditions not to without licence.

assign or underlet

22 & 23 Vict. c. 35, s. 1.

Dumpor's case.

Restricted operation of partial

licences.

Apportionment of conditions of reentry in certain cases.

In Dumpor's case (4 Co. 119 b) it was decided that a condition in a lease that the lessee or his assigns shall not alien without the special licence of the lessor, is determined by an alienation with licence; and no subsequent alienation is a breach of the condition, nor does it give a right of entry to the lessor. (See 4 Taunt. 735.) So in the case of a lease to several lessees, upon condition that they or any of them should not assign without the lessor's licence, an alienation with licence by one of the lessees determined the condition as to all. So a condition not to alien the land or any part thereof without licence was determined as to the whole by the lessor's licence to alien part only, for the condition could not be apportioned or divided by the parties. The doctrine of Dumpor's case was disapproved by distinguished judges, but never overruled. In Brummell v. Macpherson (14 Ves. 175), Lord Eldon said, "Though Dumpor's case always struck me as extraordinary, it is the law of the land at this day;" and accordingly in that case his lordship decided that a proviso in a lease for re-entry, upon assignment by the lessee, his executors, administrators or assigns, without licence, ceased by assignment with licence, though to a particular individual. (See Dyer, 152, pl. 7.) As to the doctrine in Dumpor's case, see further, 1 Smith, L. C. 30 et seq., 6th ed.; 1 Wms. Saund. 445 et seq. (ed. 1871); Saunders v. Merryweather, 13 W. R. 814.

It does not appear to have been expressly decided that this doctrine applies to any other covenant or condition than that against alienation, but it would seem to be equally applicable on principle to covenants and conditions, restrictive of carrying on particular trades, or converting lands from pasture to arable, and to all covenants and conditions by which the licence or consent of the lessor is made requisite for doing any particular act. (See 3 Real Prop. Rep. 50. See Lord Eldon's remarks in Macher v. The Foundling Hospital, 1 Ves. & B. 191.)

The inconvenience resulting from the doctrine laid down in Dumpor's case has been remedied by the above section. The doctrine had previously been restricted from applying to licences granted to tenants of crown lands by 8 & 9 Vict. c. 99, s. 5.

As to waiver, see 23 & 24 Vict. c. 38, s. 6, post.

2. Where in any lease heretofore granted or to be hereafter granted there is or shall be a power or condition of re-entry on assigning or underletting or doing any other specified act without licence, and a licence at any time after the passing of this act shall be given to one of several lessees or co-owners to assign or underlet his share or interest, or to do any other act prohibited to be done without licence, or shall be given to any lessee or owner, or any one of several lessees or owners, to assign or underlet part only of the property or to do any other such act as aforesaid in respect of part only of such property, such licence shall not operate to destroy or extinguish the right of re-entry in case of any breach of the covenant or condition by the co-lessee or co-lessees, or owner or owners of the other shares or interests in the property, or by the lessee or owner of the rest of the property (as the case may be) over or in respect of such shares or interests or remaining property, but such right of re-entry shall remain in full force over or in respect of the shares or interests or property not the subject of such licence (b).

(b) See the note to sect. 1, ante.

3. Where the reversion upon a lease is severed, and the rent or other reservation is legally apportioned, the assignee of each part of the reversion shall, in respect of the apportioned rent or

other reservation allotted or belonging to him, have and be entitled to the benefit of all conditions or powers of re-entry for nonpayment of the original rent or other reservation, in like manner as if such conditions or powers had been reserved to him as incident to his part of the reversion in respect of the apportioned rent or other reservation allotted or belonging to him (c).

22 & 23 Vict.

c. 35, s. 3.

conditions.

(c) The rule of law, that conditions are entire and cannot be apportioned Old rule as to apby the act of the parties (Co. Litt. 215 a; Dumpor's case, 4 Rep. 119 b; sce portionment of Weatherall v. Geering, 12 Ves. 511), had been found very inconvenient in practice, where the object of the parties has been to grant a partial dispensation with a condition, or to give the benefit of it to several grantees of the reversion (Knight's case, 5 Rep. 55 b; see Brummell v. Macpherson, 14 Ves. 173; 4 Taunt. 736; 1 V. & B. 191; 3 Real Prop. Rep. 49); for the severance of any part of the reversion destroyed the whole condition, giving one entire right of entry into the premises on nonpayment of rent or the like (Knight's case, 5 Rep. 55 b; Dumpor's case, 4 Rep. 120 b; Co. Litt. 215 a); and if a lessor assigned the reversion of part of the premises to one, his right of entry would be gone (Twynam v. Pickard, 2 B. & Ald. 112), although it had been decided that an action of covenant will lie by the assignee of the reversion of part of the demised premises against the lessee for not repairing. (S. C., Ib. 105; see Shepp. T. 176.)

There are two modes of apportioning rent, one by granting the reversion Apportionment of of part of the land out of which the rent issues; the other by granting part rent service. of the rent to one person and part to another. (Bliss v. Collins, 1 D. & R. 291; 5 B. & Ald. 882.) If the lessor dispose of part of the lands in reversion, either by will or deed, and the lessee attorn to such grantee, the rent is apportionable, but the lessee's concurrence to the apportionment is necessary. (West v. Lascelles, Cro. Eliz. 851; 13 Rep. 57 a.) Rent service may be devised by will, and divided from the reversion, so as to enable a devisee of part of the rent to maintain an action of debt. (Ards v. Watkin, Cro. Eliz. 637, 651.)

Rent was apportioned where a man seised of two acres, one in fee and another in tail, made a lease for life or years, and died, and the issue in tail avoided the lease. (Co. Litt. 148 b.) So where a lease of lands of which the lessor was seised in fee, and of other lands of which he was tenant for life with a power of leasing, was granted at a certain rent, but the lease was not well executed according to the power: it was held, that the lease as to the lands held in fee was good, because the rent might be apportioned. (Doe v. Meyler, 2 Maule & S. 276.)

In an action of covenant against the assignee of a lease for nonpayment of an entire rent, the defendant pleaded in bar, an eviction of a moiety of the demised premises by title paramount. Held, that the plea was bad, because the rent might be apportioned. (Stevenson v. Lambard, 2 East, 575.)

In replevin against the assignee of the reversion of part of the premises demised, the defendant may avow at common law, stating the facts specially and leaving the apportionment of the rent to be made by the jury; or he may avow in the general form given by 11 Geo. 2, c. 19, s. 22, as upon a holding at a certain rent; and if he avow under the statute for the entire rent, or with a deduction from the entire rent greater or less than the proportion properly belonging to his interest in the reversion, the judge at Nisi Prius may direct the avowry to be amended, either by converting it into an avowry at common law, or leaving it as an avowry under the statute by describing the rent in conformity with the proportionate value of the respective particles or parts into which the reversion has been divided. It seems that the judge or the court, substituted by consent of parties for the judge at Nisi Prius, may make such amendment, although first prayed for after the verdict is delivered, and before it is recorded. (Roberts v. Snell, 1 Mann. & G. 577.) The assignee of part of the reversion may distrain as well as an assignee of the reversion in part of the premises. (Neale v. Mackenzie,