insolvent, contended that the insolvent ought not to have been served with the petition; and that, therefore, according to the practice, the Petitioner must pay his costs.

Mr. De Gex, for the Petitioner, submitted that, as the affidavit of the trustees on paying the money into Court mentioned the name of the insolvent as one of the persons who were or claimed to be entitled to the fund, the service on him was proper. He also referred to Day v. Croft (19 Beav. 518) and Re Hertford Charity there cited, to shew that, according to the present practice, a Respondent was not entitled to appear, for the mere purpose of asking for his costs.

THE VICE-CHANCELLOR Sir W. PAGE WOOD said that the affidavit of the trustees was that the insolvent "was or claimed to be entitled by virtue of his certificate,” which, having regard to his insolvency, was clearly a groundless claim. His Honor, however, said that he should follow the authorities referred to, although with some reluctance, as he had thought that the reason assigned for the former practice was a good one, viz., that a Respondent ought to be repaid the expense to which he had been put by being unnecessarily served.

[370] The costs of the Petitioner, of the assignees under the second bankruptcy and of the trustees, were ordered to be paid out of the fund in Court; but no order was made as to the costs of the insolvent.

[370] LEDWARD v. HASSELLS. Feb. 13, 1856.

[S. C. 25 L. J. Ch. 311; 2 Jur. (N. S.) 277; 4 W. R. 315.]

Will. Condition precedent. Infancy. Discharge to Executors. Suit.

A bequest to A. for life, and after A.'s death to B., "if he be then living and able to give my executors a good and valid discharge for the same," otherwise, gift over to C.; and then another bequest of residue to C., "if he shall be living and able duly to discharge my executors at the time such residue is payable, but if otherwise," gift over to B.

B. and C. were infants at the date of the will, and C. was an infant at the death of the testator. Held, that C.'s infancy did not prevent his performing the condition, as he could duly discharge the executors by a suit in Chancery.

Semble, the question would have been more difficult if the terms of the condition had been the same as those of the condition annexed to the bequest to B.

Thomas Ledward by his will, dated the 31st of May 1845, after directing his debts and funeral expenses to be paid, and giving a legacy of £50, continued as follows:

"I give and bequeath the interest of £900 as now secured to me by two several bonds of £400 and £500 (both by the same person), unto Elizabeth Bourne, my hired servant and housekeeper, to take the whole thereof after defraying all expenses incurred by my executors relative to the same, for and during the term of her natural life; and the principal of the said £900, after the death of the said Elizabeth Bourne, and subject to expenses which may be incurred by my executors relative to the same, I give and bequeath unto James Pitts, son of my late sister Ann Pitts, if he be then living and able to give my executors a good and valid discharge for the same; otherwise, I give and bequeath the said principal sum of £900, then subject to expenses as aforesaid, unto my nephew William Ledward, son of my brother William Ledward, his heirs and assigns, for ever, but not otherwise. The whole residue of my estate and effects I give and bequeath unto my said nephew William Ledward, if he shall be living and able duly to discharge my executors at the time such residue is payable; but if other-[371]-wise, I give the whole of such residue unto James Pitts, son of my late sister Ann Pitts; but in either of the last-mentioned cases, subject to expenses sustained by my executors in respect of the same."

And the testator appointed the Defendants, Hassells and Barlow, and the survivor

of them, and the heirs, executors or administrators of such survivor, the executors of his said will.

At the date of the will James Pitts and William Ledward were both infants. At the death of the testator James Pitts had attained twenty-one, but not William Ledward.

William Ledward now filed the bill in this suit to recover the £900.

Mr. Daniel, Q.C., and Mr. Southgate, for the Plaintiff.

The Plaintiff is absolutely entitled to his legacy. The executor by this suit will obtain an effectual discharge notwithstanding the Plaintiff's infancy. In Tanner v. Tebbutt (2 Y. & C. C. C. 225) a condition annexed to a devise that the devisees should, within seven years after the death of the testatrix, personally appear before the executors, and deliver to them a testimonial of their identity, and in default thereof gift over, was considered satisfied by one of the executors and the agent of the other going to a devisee who was very aged and infirm, and unable to go to them.

Mr. Haddan, for James Pitts.

The condition cannot be performed by the Plaintiff by [372] reason of his infancy, and therefore the gift over must take effect. He cited Hollinrake v. Lister (1 Russ. 500), Burgess v. Robinson (3 Mer. 7), Simpson v. Vickers (14 Ves. 341), Tulk v. Houlditch (1 V. & B. 248), Hawkes v. Baldwin (9 Sim. 355).

Mr. Beaumont, for the executors.

The reply was not called for.

VICE-CHANCELLOR Sir W. PAGE WOOD. This will is no doubt obscure, and it is not easy to collect from it the precise intention of the testator. Adopting the view that the condition is precedent, I must look at the terms of the condition, and not make them more adverse to the main object of the testator than the words themselves warrant. It is plain that the testator did not contemplate the disability of infancy alone. If he had he could easily have so expressed himself. He imposed a similar condition in the case of another legatee; and if it had been on the ground of infancy only this absurdity would arise. Both were infants at the making of the will, one being older than the other. There is a gift to A. the elder, if able to give the executors a good discharge, and if not, to B.; and then another gift to B. the younger, if he should be able duly to discharge the executors, and if not, then to A. That the testator should give a legacy to a person, but if he should be under disability as an infant, then to one younger still, could never be the intention. The gift over cannot be intended to take effect on the ground of infancy alone, though that may be included in the condition.

[373] If the question had arisen upon the terms of the legacy to Pitts there would have been more difficulty, because I must follow the words of the condition closely, and the words in that case are, "if he be then living and able to give my executors a good and valid discharge." But assuming those words to mean that Pitts was to do some personal act, as by giving a receipt, or otherwise to discharge the executors, I do not think that the same difficulty arises on the words of the condition attached to the gift which is in question. The terms there used are, “unto my nephew William Ledward, if he shall be living and able duly to discharge my executors at the time such residue is payable, but if otherwise," over. Conceding that it may have been the desire of the testator that his property should not be tied up during the minorities of the legatees, and that he was anxious that the property should be taken at once by the objects of his bounty, and that his executors should be discharged, am I to say that an infant legatee is not able to discharge the executors when he can do so by filing a bill in this Court. By that means the executors would get a full and complete discharge, and the only effectual discharge which they could have. Filing such a bill, though by a next friend, is the infant's own act, and that would discharge the executors. It is argued that the same reasoning would apply if the legatee had aliened his interest; but that is not so; because it may well be that the testator's intention was that the legacy should not go to the legatee's assigns, but should be a personal benefit to himself. It is suggested that the assign might require the legatee to file a bill against the executors, or might himself file a bill in the legatee's name; but that would not be a discharge by the legatee; besides, the legatee might not be satisfied with the accounts, and might object, and then the gift over would take effect.

Without straining the words of the condition, I think it [374] is clear that infancy was not the one only thing pointed at. But, though it might possibly be one point which was present to the testator's mind, I do not find anything in the words to prevent my holding that the Plaintiff is able by his own act, by means of filing a bill, duly to discharge the executors according to the condition.

[374] JOB v. BANISTER. Feb. 25, 26, 1856.

[Affirmed, 26 L. J. Ch. 125; 5 W. R. 177. See Bastin v. Bidwell, 1881,
18 Ch. D. 249.]

Lease. Covenant for Perpetual Renewal. Breach of Lessee's Covenants.
Ejectment. Costs.

A lease was granted of copyhold houses and lands in London for twenty-one years, subject to a small rent, and to the usual covenants to repair, insure, &c., with the usual proviso for re-entry on breach of any of the covenants; and also a covenant by the lessor, provided the rents should have been paid and the covenants kept at the request in writing of the lessee, to procure from the lord of the manor a license to demise the premises for the further term of twenty-one years, and so from time to time, provided such request should be given as aforesaid; and, on obtaining such license, to grant a new lease with the same covenants, including the covenant for renewal. Subsequently the lease was renewed on the expiration of the term by a new lease for twenty-one years containing similar covenants. The lessee expended money on the premises, and the value of the property was much increased. The covenants in the renewed lease, to repair and to insure, were broken, and, at the end of the renewed term, the landlord, on account of the breach of the covenants, refused again to renew, and brought an action of ejectment. Held, that a Court of Equity would not compel the landlord to renew, nor restrain him from ejecting the lessee. Held, that the construction of the covenant for renewal in the first lease was not that in future leases the renewal was to be on request only, whether the lessee's covenants had been performed or not, because it provided that the renewed lease should contain a like covenant for renewal.

As the case was one of great hardship on the lessee, and the question had not before arisen in the case of a lease with a covenant for perpetual renewal, the Court dismissed the bill without costs.

By an indenture of lease, dated the 27th of November 1812, Stephen Day, by virtue of a license from the lord of the manor of Cantlowes, otherwise Cantlers, demised to William Cain a messuage and garden in Kentish Town, and also certain timber buildings then standing at the west end of and adjoining to the said messuage; and also four brick-built messuages then standing upon the said garden; to hold to the said William Cain, his executors, administrators and assigns, from the 25th day of December then next, for the term of twenty-one years, at the yearly rent of [375] £35, payable quarterly, and subject to the covenants therein contained, on the part of the lessee, his executors, administrators and assigns, to be observed and performed. And the said Stephen Day thereby covenanted with the said William Cain, his executors, administrators and assigns, that he, the said Stephen Day, his heirs or assigns, would, at the expiration of the said term of twenty-one years thereby granted (provided all arrears of rent should then have been paid, and all the covenants thereinbefore contained should then have been well and truly performed and kept), at the request, costs and charges of the said William Cain, his executors, administrators or assigns (provided such request should be signified to the said Stephen Day, his heirs. or assigns, in writing, at least three calendar months before the expiration of the said term thereby granted), apply for and procure, or endeavour to procure, from the lord of the said manor of Cantlowes, otherwise Cantlers, a license for demising and letting the same premises for the further term of twenty-one years, to commence from the expiration of the term thereby granted, and so from time to time upon the expiration

of every subsequent term of twenty-one years, provided such request in writing should be given as aforesaid, and, when such license or licenses should have been obtained, would, at the request, costs and charges of the said William Cain, his executors, administrators and assigns, from time to time grant and execute to him or them a new lease of the said premises, and all other erections and buildings which should have been built, for such further term of twenty-one years accordingly, at the same yearly rent, and subject to the same provisoes and agreements as were in the now-stating indenture contained (including the covenant for renewal), he, the said William Cain, his executors, administrators and assigns, at the same time executing and delivering, at his and their like charges, a counterpart of every such new lease.

[376] Cain erected thirteen houses on part of the land comprised in the said lease, leaving room for the subsequent erection of several other houses on the remainder of the said premises.

By an indenture of lease, dated the 10th of February 1834, a new lease of the said premises was granted, pursuant to the covenant for renewal so contained in the said original lease, for the term of twenty-one years from the 25th day of December then last, at the like yearly rent of £35, and under and subject to the like covenants and agreements on the tenants' and lessees' part to be performed or observed. And such renewed lease contained a covenant that the lessor would, at the expiration of the said term of twenty-one years thereby granted (provided all arrears of rent should have been then paid, and all the covenants therein before contained should then have been well and truly performed and kept), at the request, costs and charges of the lessees, their executors, administrators or assigns (provided such request should be signified to the lessor or her assigns, in writing, at least three calendar months before the expiration of the said term thereby granted), apply for and procure, or endeavour to procure, from the lord of the said manor of Cantlowes, otherwise Cantlers, a license for demising and letting the same premises for the term of twenty-one years, provided such request in writing should be given as aforesaid; and, when such license or licenses should have been obtained, should and would, at the request, costs and charges of the said lessees, their executors, administrators and assigns, from time to time grant and execute to them a new lease of the said demised premises, and of all other erections and buildings which should then have been built, with their appurtenances, for such further term of twenty-one years accordingly, at the same yearly rent, and under and subject to the same covenants, provisoes and [377] agreements as were contained in the now-stating indenture, including the covenant for renewal thereof; the said lessees, their executors, administrators or assigns, at the same time executing and delivering, at her, his and their like costs and charges, a counterpart of every such new lease.

Both the original and renewed leases contained the usual covenants on the part of the lessee to keep in repair and to insure the premises, and a proviso for re-entry by the landlord on breach of any of the covenants.

The Plaintiff subsequently purchased the lease, and erected upon part of the land comprised in the said leases ten new houses, and converted another house into two, and expended upon the said premises several thousand pounds.

The term of twenty-one years granted by the said last-mentioned lease expiring on the 25th day of December 1854, the Plaintiff, on the 6th day of March 1854, duly applied in writing to the landlord for a renewal of the lease of the said premises, pursuant to the terms of the said covenant for renewal.

The Defendants, however, objected that the covenant to keep the premises insured had been broken, by allowing the premises to be uninsured for a short period of time.

One of the houses was also very much out of repair, and the Plaintiff, when he found that the landlord objected to renew the lease, delayed to repair it.

The Defendants brought actions of ejectment in May 1855 to recover the premises; and thereupon the Plaintiff filed his bill in this suit to restrain such actions, and for specific performance of the covenant to renew.

[378] Mr. Rolt, Q.C., and Mr. Boyle, for the Plaintiff.

This is not like an ordinary lease of houses and land, but is in effect a grant of the

property, subject to a perpetual rent-charge, which, as the property is copyhold, could only be done in this way, by granting a lease for twenty-one years, renewable for ever. In such a lease the principal object is to secure the rent; and the power of re-entry, and the power of the lessor to refuse to renew the lease if the covenants are not performed, are in the nature of penalties, against the excessive enforcement of which equity will relieve: Peachy v. The Duke of Somerset (Pre. Ch. 568; 1 Stra. 447), Hill v. Barclay (18 Ves. 56), Reynolds v. Pitt (19 Ves. 134), Eaton v. Lyon (3 Ves. 690), Hannam v. South London Waterworks Company (2 Mer. 65, n.), Fitzgerald v. O'Connell (1 J. & L. 134).

In ordinary cases of a covenant for perpetual renewal this Court will relieve a lessee from a forfeiture for not literally complying with the terms of the covenant : The Earl of Ross v. Worsop (1 Bro. P. C. 281).

Then the form of this covenant for renewal in the original lease is that there should be a renewal of that lease provided the covenants should be performed, and from time to time, upon request in writing of the lessee; therefore the covenant in the renewed lease should have been to renew upon request only, and a proper request was made.

Other points were taken upon the construction of the particular leases which it is not necessary to report.

Mr. Willcock, Q.C., and Mr. Bagshawe, jun., for the Defendants.

[379] VICE-CHANCELLOR Sir W. PAGE WOOD (without calling upon the Defendants' counsel). This is a case of considerable hardship.

As to the principal points raised in the argument the first was, that this lease ought to be regarded as simply a security for money. The fallacy of that argument is that it assumes that the lessor only desired to have a rent of £35 a year, but in truth he also contracted to have other rights. It is not a mortgage, or a grant of a rent-charge, but what it purports to be-whatever may be the peculiar consequences of the land being of copyhold tenure-and what upon the face of the transaction it is, namely, a lease. The lessor stipulates not only for a certain yearly rent, but for other benefits; there are buildings erected on the land, and if they should become out of repair he stipulates that he is to have a right of re-entry. What right have I to interfere between the parties to this legal contract? One has agreed to insure, to keep the premises in repair, &c., and the other that, if the covenants are observed, he will renew the lease continually on the same terms, but, if not, it is agreed that he shall re-enter and occupy. That being the contract, though the rent was probably the thing chiefly in mind, can I reject the other parts of the contract? It is as much a part of it that the lessor should have the right to re-enter on breach of the covenants to insure or to repair as that he should have the rent. I cannot think that this is like the case of a mortgage, or that I can deal with it in any other way, except as this Court always deals with breaches of covenant, that is, by leaving the parties to their rights, as determined at law.

The next point is this: The form of the covenant for renewal is that Day, his heirs or assigns, at the end of the term of twenty-one years thereby granted (provided all arrears of rent should then have been paid, and all the cove-[380]-nants thereinbefore contained should then have been well and truly performed and kept), should, at the request, costs and charges of the said William Cain, his executors, administrators or assigns (provided such request should be signified to the said Stephen Day, his heirs or assigns, in writing, at least three calendar months before the expiration of the said term thereby granted), apply for and procure, or endeavour to procure, from the lord of the manor, a license for demising the premises for the further term of twenty-one years, to commence from the expiration of the term thereby granted, and so from time to time upon the expiration of every subsequent term of twenty-one years, provided such request in writing should be given as aforesaid. It was argued that there are two stipulations on which the renewal was to be made in the first instance, namely, first, that the rent should be paid and the covenants performed; and, secondly, that a request in writing should be made, and so from time to time, provided only the request should be made; and thus that the first stipulation was to be dropped in future leases, and the request in writing was all that was to be required in future renewals. That was a fair point to argue, because it might be said that the