c. 35. executors and administrators from a continuing lia bility in respect of their testator's leasehold estate, it 22 & 23 Vict. is enacted by the 22 & 23 Vict. c. 35,1 that when an executor or administrator who has acquired a lease by virtue of his office shall have satisfied all claims under any such lease, which may be due and claimed up to the time of the assignment thereinafter mentioned, and shall have set apart a sum sufficient to meet any ascertained liability under the lease, and shall then have assigned such lease, he shall not be subject to any further personal liability to the lessor. Act 1869. If the lessee becomes bankrupt the lease will vest in his trustee in bankruptcy, who could always assign it to another party, unless the lease contained a covenant by which "assigns" were expressly restrained from assignment.2 Under the former Bankruptcy Acts, the trustees (who were at that time called assignees) of a bankrupt were to elect within a reasonable time whether they would take to any leases the property of the bankrupt. And now it is Bankruptcy provided by the Bankruptcy Act 18694 that the trustee of any bankrupt may, by writing, disclaim any lease acquired by him under the bankruptcy, and the lease is thereupon to be deemed to have been surrendered on that day. But the trustee is not entitled to disclaim in cases where an application in writing has been made to him by any person interested in the property, requiring him to decide whether he will disclaim or not, and he has, for a period of twenty-eight days, or such further time as may be allowed by the Court of Bankruptcy, declined or neglected to give notice whether he will disclaim or not. It has been held that the act does not put an end to the lease 1 S. 27. 2 Philpot v. Hoare, 2 Atk. 219, note (2). if the bankrupt was only an assignee of the lease, and not the original lessee, notwithstanding that the word "surrender" means prima facie a delivering up of the lease in order that it may be put an end to. If therefore the assignee of a lease becomes bankrupt, and his trustee disclaims it, the person who had assigned the lease becomes the unwilling owner of the property with which he imagined himself to have parted, and liable upon all the conditions and covenants of the lease.1 tion of a term A term of years may also be put an end to by Determina(1) forfeiture; (2) by effluxion of time; (3) by notice of years. properly given by a landlord or by a tenant; and (4) by surrender. Most leases contain various covenants by the les- By forfeiture. see, such as that he will pay rent, keep the premises in repair, or insure them; and to these is added a proviso that on his failing to observe the covenants of his lease, the lessor shall be at liberty to re-enter on the premises, and put an end to the term. It is evident that there are many cases in which the enforcement of this proviso by the lessor may work great hardship. Consequently there are various circumstances under which he will not be allowed to exercise this power. In the first place, he will be presumed to have Presumption waived his right to a forfeiture, and be prevented of waiver of lessor's right therefore from enforcing it, if, after being aware of a to a forfeiture. breach of covenant, he does any act which amounts to the recognition of a subsisting tenancy by his lessee. Thus, a waiver will be presumed in such a case by the lessor's acceptance of rent, or by his bringing an action for rent due, unless the breach of covenant 1 Smyth v. North, L. R. 7 Ex. 242. Relief against forfeiture. is a continuing one,1 or unless the acceptance is that of rent due on a day before that on which the forfeiture was incurred. So also, if a breach of covenant is known to a lessor, and he afterwards deals with the lessee so as to lead him to suppose that a forfeiture will not be insisted on, it will be presumed that the right to a forfeiture has been waived.2 And a distress for rent in pursuance of the lessor's common-law right, even though only for rent due before the covenant was broken, waives his claim to a forfeiture; since the privilege of distress only belongs to him on the assumption that the person on whom he distrains is his tenant. But acceptance of rent is not a waiver of a breach of covenant unknown to the lessor at the time of acceptance, although the rent received became due after the breach. And if he has brought an action of ejectment against the lessee for breach of covenant, he will not waive his right by making a demand for rent for the use and occupation of the premises after the date of the breach, or even by distraining for rent, since bringing ejectment is a declaration on his part that he considers the tenancy at an end, and a distress in such case, if not justified by a statute to be presently noticed, is merely a trespass on his part, and does not involve a continuance of the tenancy. 4 A lessee may also, occasionally, obtain relief from the Courts of Chancery or of Common Law against the consequences of his breach of covenant. The courts will not interfere in favor of lessees who choose to break their covenants, except where it is evident 1 Doe v. Jones, 5 Exch. 498. 2 Flattery v. Anderdon, 12 Ir. Eq. R. 219. 8 Co. Litt. 2116; Price v. Worwood, 4 H. & N. 512. 4 Roe v. Harrison, 2 T. R. 425. 5 Croft v. Lumley, 6 H. L. C. 672. Toleman v. Portbury, L. R. 7 Q. B. 344. 7 Grimwood v. Moss, L. R. 7 C. P. 360. 8 8 Anne, c. 18. that full compensation can be made to the lessor; and they will not therefore, in general, relieve against forfeiture incurred by a breach of covenant to repair,1 or to cultivate land in a husbandlike manner,2 or not to carry on a trade on the premises without license from the lessor, or not to assign the premises without license from him; but in cases where complete compensation can be made the Court of Chancery would to a certain extent formerly, and all Superior Courts may now, subject to certain conditions, relieve against forfeiture for breach of covenant. Thus, the Court of Chancery would always relieve against forfeiture for non-payment of rent,5 unless accompanied by a breach of other covenants, and that, without reference to the length of time which had elapsed since the forfeiture. Subsequently it was enacted by the 4 Geo. II. c. 28,6 that 4 Geo. II. every lessee might, before the trial of any action for ejectment brought for non-payment of rent, pay to the lessor, or into court, all rent then due, and all costs incurred, and that thereupon all proceedings in the action should cease; and further, that every lessee ejected for non-payment of rent might, if he applied within six calendar months, obtain relief from the Court of Chancery, on condition of paying, within forty days from the lessor's putting in an answer swearing to the amount due for rent, such sum, together with all expenses incurred; and that in either of these cases the lessee should be entitled to hold the demised lands according to the lease thereof made 1 Gregory v. Wilson, 9 Ha. 683, 689; Hill v. Barclay, 18 Ves. 56. In Bargent v. Thompson, 4 Giff. 473, V.-C. Stuart gave relief against forfeiture for a breach of covenant to repair, but the circumstances of the case were peculiar. 2 Hills v. Rowland, 4 De G., M. & G. 430. 3 Macher v. Foundling Hospital, 1 Ves. & B. 188. 4 Hill v. Barclay, 18 Ves. 56. 5 Wadman v. Calcraft, 10 Ves. 66 a. 6 S. 4. c. 28. Procedure without any new lease. This was re-enacted by the Common Law Procedure Act 1852,1 and now by the Common Law Common Law Procedure Act 1860,2 in case of any ejectment for non-payment of rent, any Superior Court of Common Law may relieve in the same manner as the Court of Chancery. If the lessee has been ejected, and is re-admitted under these statutes, the lessor is to be accountable only for so much as he shall bonâ fide have made of the premises from the time of entering into actual possession thereof. It has been held under an Irish statute, containing similar provisions, that the lessor is bound only to account for such rents as he has actually received during possession; but if he omits to use due diligence in collecting the rent, or in letting the land, he will be charged with a fair occupation rent.1 c. 35. A lessee could not, formerly, obtain any relief against forfeiture for a breach of covenant to insure.5 22 & 23 Vict. It has, however, been provided by the 22 & 23 Vict. c. 35,6 that a Court of Equity shall have power to relieve against a forfeiture for a breach of a covenant or condition to insure against loss or damage by fire, where no loss or damage by fire has happened, and the breach has, in the opinion of the court, been committed through accident, or mistake, or otherwise without fraud, or gross negligence, and there is an insurance on foot at the time of the application to the court in conformity with the covenant to insure, upon such terms as to the court may seem fit; but7 the same person is not to have such relief more than once in respect of the same covenant or condition, 1 15 & 16 Vict. c. 76, §§ 210, 211, 212. 2 23 & 24 Vict. c. 126, §§ 1, 2. 4 Callaghan v. Lismore, Beat. 223. 8 11 Anne, c. 2 (Ir.). 5 Gregory v. Wilson, 9 Ha. 683; Reynolds v. Pitt, 19 Ves. 134. |