fess judgment to a creditor for the express purpose of enabling such creditor to take the lease in execution under the judgment (y).

Covenant against assigning without licence is determined by a licence once granted. 12 Ves. 191, per Sir W. Grant. So under a condition not to alien without leave, if leave is once granted, the condition is entirely discharged; see Platt on Covenants, 425-6.

C. C. College demised land for a term of years to A., with a condition, that neither A. nor his assigns should alien the land without the special licence 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 licence 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 afterwards remaining subject to the condition; for a condition is to be taken strictly, and by the alienation with licence it is satisfied (z). So in the case of a demise to A., B., and C., with a like condition, if a licence to alien be granted to A., and A. aliens by virtue of such licence, the condition is determined as to B. and C. (a).

So in the case of a demise upon a like condition, if 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. But where a lessor had a right of entry reserved on a breach of a covenant to underlet, and gave no actual licence to underlet, but knew of the fact and received rent afterwards; it was held, that he had not lost his right of re-entry on a subsequent underletting. Doe v. Bliss, 4 Taunt. 735. "Dumpor's case is distinguishable from some of the later decisions in this respect; there the lessee had, by licence of the lessors, assigned all his interest in the demised premises, and therefore the covenant itself (not to alien without licence) was held to be waived; such an assignment is yery different from underletting, or the other acts stated in the more modern cases, where it has been held that the breach only was waived" (b). And note the distinction in the above case between a previous licence, and a mere forbearance to insist upon a right. Lessee covenanted, that he would not demise the premises without licence; the lessee became a bankrupt; his assignees took to

(y) Doe v. Carter, 8 T. R. 300. See Croft v. Lumley, 5 E. & B. 648.

(z) Dumpor's case, 4 Rep. 119, b. "The profession have always wondered at Dumpor's case, but it has been law so many centuries that we cannot now re

verse it." Per Mansfield, C. J., in Doe v.

Bliss, 4 Taunt. 736.

(a) Leeds v. Crompton, cited 4 Rep. 120, a.

(b) Per Patteson, J., Doe v. Pritchard, 5 B. & Ad. 781.

the lease, and assigned it to A., who assigned it to the original lessee, who underlet to B.; it was held, that the covenant of the lessee was discharged by 49 Geo. III. c. 121, s. 19 (the words of which section are substantially the same as the present Bankrupt Act, 12 & 13 Vict. c. 106); and, consequently, that the subsequent under-letting by the lessee was no breach of that covenant, which no longer existed (c). The last-mentioned act, sect. 145, provides for three cases: 1st, where the assignees accept the conveyance or lease (d); in which case the bankrupt is not liable to pay any rent accruing after the date of the fiat or filing of the petition, or to be sued in respect of the subsequent non-performance of any of the covenants; 2ndly, where the assignees decline the same; in this case also the bankrupt is not liable, in case he deliver up the conveyance or lease to the conveyor or lessor within fourteen days after he shall have had notice that the assignees have declined; in this case the covenants on both sides fall to the ground (e). It has been held, however, that this is a personal discharge to the lessee only, and that a surety who has joined in the lease with him is liable for breaches of covenant, accruing between the date of the commission and the actual delivery up of the lease by the lessee under the statute; the term remaining vested in the bankrupt till · election by the assignees (f), or delivery up of the lease to the lessor under the statute (g). And where the original lessees had assigned to B., subject to the payment of rent, who entered, and afterwards became bankrupt, and rent became due after the commission, and the assignees of B. declined the lease; and then covenant for the rent was brought by the lessor against the original · lessees; it was held, that the action might be maintained; for "if, before the statute, there had been an assignment of the lease, and the lessors had accepted rent, they might, notwithstanding, have proceeded by covenant against the lessees; the privity of contract not being destroyed. The statute (6 Geo. IV. c. 16, s. 75) makes no difference in this respect; it contemplates the case of a bankrupt lessee only, not of an assignee of the term. The statute operates only as a personal discharge of the bankrupt; for it does not say that the lease and the covenants shall be at an end, but merely that the bankrupt lessee shall not be liable to be sued in respect of any subsequent non-observance of the covenants" (h). 3rdly, where the assignees do not, upon request, elect whether they will accept or decline; in which case, the Lord Chancellor has power, upon petition, to order the assignees to elect and to deliver up the conveyance or lease and possession of the premises. Whether the licence to assign be general, as in Dumpor's case,

(c) Doe v. Smith, 5 Taunt. 795.

(d) The assignees are not liable unless they do some act which unequivocally indicates their election. Goodwin v. Noble,

27 L. J., Q. B. 204.

(e) Kearsey v. Carstairs, 2 B. & Ad.

716.

(f) Tuck v. Fyson, 6 Bingh. 321.
(g) Briggs v. Sowry, 8 M. & W. 729.
(h) Manning v. Flight, 3 B. & Ad. 211.

or particular, as " to one particular person, subject to the performance of the covenants in the original lease," yet the condition is gone, and the assignee may assign without a licence (i). But where there is an exception out of the original restriction to alien in favour of an assignment in a particular manner, e. g. by will, and an assignment is made by the lessee by will; and then his executors make another assignment, not by will, it seems that this last assignment is bad (j).

Acceptance by the lessor of rent due after condition broken with notice, is, generally speaking, a waiver of the forfeiture (k), as a binding election on the part of the lessor to treat the lease as valid; see Jones v. Carter, 15 M. & W. 718; but such a receipt is not, it seems, necessarily a waiver. Doe v. Batten, Cowp. 243. See Croft v. Lumley (Dom. Proc.), 27 L. J., Q. B. 322.

A court of equity will not relieve against a forfeiture occasioned by breach of covenant not to assign (1).

3. Of the Covenant to Repair (m).

The lessee of a house, on a general covenant to repair during the term, is bound to rebuild, in case the house be consumed by an accidental fire (n). If a lessor covenant that he will, in case the demised premises be burned down, rebuild, and replace the same in the same state they were in before the fire, he is only bound to rebuild what he let, and not any additional parts, which may have been erected by the lessee (o).

On a covenant to erect a bridge in a substantial manner, and to uphold and keep in repair for a certain time, although the bridge be broken down by an extraordinary flood, yet the party covenanting is bound to repair (p). Where the lessor of a house covenanted with the lessee to repair all the external parts of the premises, and the corporation pulled down an adjoining house, leaving the wall

(i) Brummell v. Macpherson, 14 Ves. 173, Eldon, C.

(j) Lloyd v. Crispe, 5 Taunt. 249, per Gibbs, J.

(k) Goodright v. Davids, Cowp. 804; Whitchcot v. Fox, Cro. Jac. 398. See Doe v. Bliss, ante, p. 519.

(1) Per Lord Eldon, C., in Hill v. Barclay, 18 Ves. 63; and see generally as to relief in equity against breaches of covenant, Job v. Bannister, 2 K. & J. 374; Elliott v. Turner, 13 Sim. 477.

(m) If the plea be that defendant did repair, the plaintiff begins at the trial. Doe v. Rowlands, 9 C. & P. 613. The measure of damages is not the amount that would be required to put the premises in repair, but the amount to which the reversion is injured by the premises being out of repair. Ibid. See Davies v. Underwood, 27 L. J., Exch. 113.

Where

the lessor has no reversion, but both he and his lessee have been evicted by title paramount, the former measure of damages would seem to be correct, S. C.

(n) Bullock v. Dommitt, 6 T. R. 650. In many cases an exception of accidents by fire or tempest is introduced into leases for the protection of lessees. It appears, from the cases of Monk v. Cooper, and Hare v. Groves, 3 Anstr. 687, that this exception should be introduced into the covenant for repairs, in order to exempt the lessee from the obligation of paying rent as well as of rebuilding, in case the house should be destroyed by fire or tempest.

(0) Loader v. Kemp, 2 C. & P. 375.

(p) Brecknock Canal Company v. Pritchard, 6 T. R. 750. See Shubrick v. Salmond, 3 Burr. 1637.

of the demised house exposed and without support, and thereupon the wall fell down and the house became uninhabitable, and the lessee sued the lessor upon his covenant; it was held, that the external parts of premises are those which form the inclosure of them, and beyond which no part extends; and that it was immaterial whether those parts are exposed to the atmosphere or rest upon some other building which forms no part of the premises let; and that the defendant was liable on his covenant, though the injury to the wall was done in the first instance by the corporation (q).

A covenant to keep and leave a house in repair, is satisfied by keeping it in substantial repair, according to the nature of the building; and with a view to determine the sufficiency of the repair, the jury may inquire whether the house was new or old at the time of the demise (r). So where the covenant was to keep the premises in good and tenantable repair, and to surrender them at the end of the term in like tenantable condition, reasonable wear and tear excepted; Tindal, C. J., said the meaning of such a covenant was well understood to be good and tenantable repair, regard being had to the state of the premises in point of age. The landlord is not to have, at the end of the term, a new house at the tenant's expense. The general state and condition of the premises at the time of the demise may be shown (s), so as to measure the amount of damages for want of repairs, by reference to that state; a house in Spitalfields may be repaired with materials inferior to those requisite for repairing a mansion in Grosvenor Square (t). The same nicety of repair is not exacted for an old building as for a new one (u). And where a lessee covenants to keep old premises in repair, he is not liable for such dilapidations as result from the natural operation of time and the elements (x). Where the agreement was "to put premises into habitable repair," Alderson, B., said, "It is difficult to suggest any material difference between the term 'habitable repair,' used in this agreement, and the more common expression tenantable repair: they must both import such a state, as to repair, that the premises may be used and dwelt in, not only with safety, but with reasonable comfort, by the class of persons by whom, and the sort of purposes for which, they were to be occupied " (y).

Where by an agreement for a lease of premises, to be made as soon as a licence could be obtained from the lord of the manor,

(q) Green v. Eales, 2 Q. B. 225.

(r) Stanley v. Towgood, 3 B. N. C. 4. Hence a covenant in the same words may be substantially different in effect, as in the case of an original lessee of a new house for 100 years, and his underlessee who enters after 50 years of the term have expired, when the house is an old house. Per Parke, B., Walker v. Hatton, 10 M. & W. 256, 257. See Minshull v. Oakes, 27 L. J., Exch. 194.

the

(s) Young v. Mantz, 6 Sc. 277. (t) Per Alderson and Parke, B. B.'s, Payne v. Haine, 16 M. & W. 541. From a yearly tenancy the only agreement that can be implied on this head is, to keep wind and water tight. Auworth v. Johnson, 5 C. & P. 239.

(u) Mantz v. Goring, 4 B. N. C. 453. (x) Gutteridge v. Munyard, 1 M. & Rob. 334.

(y) Belcher v. M'Intosh, 2 M. & Rob. 186.

defendant covenanted to keep the premises in repair during the term, and there was a covenant by the plaintiff for quiet enjoyment; defendant entered, and occupied the premises during the term it was held, that he was liable on the covenant to repair, though no lease had ever been made to him pursuant to the agreement, nor any licence obtained from the lord for that purpose (z). As to the covenant to repair where the premises have been burnt down, see ante, p. 494.

4. Of the Covenant to Insure.

In every lease, containing a covenant to insure against loss by fire, it should be stipulated that the money to be recovered from the insurance office shall be laid out in restoring the premises; and a covenant containing such a stipulation will run with the land. And where the premises are situated within the limits mentioned in the Party-wall Act (14 Geo. III. c. 78), the effect of which act is to enable the landlord by applications to the governors or directors of the insurance office to have the sum insured laid out in rebuilding the premises: a covenant to insure is a covenant running with the land; for, connecting that covenant with the act of parliament, the landlord has a right to say, that the money, when recovered, shall be so laid out. It is, therefore, as compulsory on the tenant to have the money laid out in rebuilding, and as beneficial for the landlord, as if the tenant had expressly covenanted that he would lay out the money to be received in respect of the policy upon the premises (a).

Lessee covenanted, that he and assigns would insure the demised premises and keep them insured during the term, and deposit the policy with the lessor; it was held, that the true construction of this covenant was, not that the lessee should effect one policy, and keep that policy on foot, but that the lessee and his assigns should always keep the premises insured by some policy or another; and that it was a breach, if they were uninsured at any one time, and a continuing breach for any portion of time that they remained uninsured (b). Of such a covenant a neglect to insure for five weeks and two days after the execution of the lease is (if unexplained) a breach. Doe v. Ulph, 13 Q. B. 204. So if the covenant be to insure in the names of the lessors, and the lessee add his own. Penniall v. Harborne, 11 Q. B. 368. So if it be to insure in the lessor's and lessee's name, and the lessee omit his, even although the lessor approve such omission. Doe v. Gladwin, 6 Q. B. 953.

If a lease contains a covenant by the tenant to keep the premises in repair, and a covenant to insure them for a specific sum against

(z) Pistor v. Cator, 9 M. & W. 315. He would be also (semble) in such a case liable on an implied assumpsit. Richardson v. Giffard, 1 A. & E. 52; Bolton v.

Tomlin, 5 ibid. 856.

(a) Vernon v. Smith, 5 B. & Ald. 1.

(b) Doe v. Peck, 1 B. & Ad. 428. See Doe v. Laming, 4 Campb. 73.