this sum could not be distrained for as rent. So in Donellan v. Read (t), where a lessor demised premises for a term of years at £50 a year, and agreed with his tenant to lay out £50 in making certain improvements upon them, the tenant undertaking to pay him an increased rent of £5 a year during the term; it was held that this sum of £5 was not a rent in a legal sense of the word. If a person enters on and occupies the premises of another, but there is no demise, express or implied, he will be liable, not for rent, but for such sum as may be deemed a reasonable satisfaction to the owner of the premises for the use and occupation thereof (u). Rent, being incident to the reversion, will follow that reversion. Rent therefore should be reserved to the lessor, and not to a third party (v). Thus where a man seised in fee leases for life or years reserving rent, the whole rent which becomes due after his death goes with the reversion (as an incident thereof) to the heir, and not to the executor; for since, during the continuance of the particular estate, the reversioner loses the profits of the land, the rent ought to be paid to him as a compensation for the loss (w). Where there is any doubt as to the person to whom the reservation should be made, the clearest and safest way is to reserve the rent generally during the term, without saying to whom, and leave it to be distributed by the law in the mode. pointed out in Whitlock's case (x); for if the re

(t) 3 B. & Ad. 899. See also Lambert v. Norris, 2 M. & W. 333; Marquis of Camden v. Batterbury, 7 C. B. N.S. 804.

(u) Salmon v. Matthews, 8 M. & W. 833; Dunk v. Hunter, 5 B. & A. 325; Hegan v. Johnson, 2 Taunt. 148.

(v) Co. Litt. 47 b, 143 b; Com. Dig. tit. Rent (B), 5.

(2) Co. Litt. 47 a; Cother v. Merrick, Hard. 95; Bac. Abr. Executors (H), 3; Oates v. Frith, Hob. 130; Sacheverell v. Froggat, 2 Saund.; Southampton v. Brown, 6 B. & C. 718. But a reservation of rent to a third party is binding as a contract. Jewel's case, 5 Rep. 3.

(2) 8 Co. Rep. 70, 141.

H

servation of rent be general during the term, the law directs it to be paid according to the intent and nature of the thing demised (y). Thus if a person seised in fee settles his estate on himself for life, with remainders to other persons, reserving a leasing power, which he afterwards exercises, reserving rent to himself, his heirs, and assigns, those in remainder shall have the rent. So also where a person seised in fee settles his estate on A for life with remainders, and gives him a leasing power, which he exercises, reserving rent during the term, the remainder-men shall take, although neither heirs nor assigns of A (2).

7. COVENANTS.

A covenant is an engagement entered into under seal (a), whereby one person binds himself to do something beneficial to another, or to abstain from an act which, if done, would be prejudicial to another (b). The general principle is clear, that the landlord, having the jus disponendi, may annex whatever conditions he pleases to his lease, provided they are not illegal or impossible. A covenant therefore to do a thing which, upon the face of it, appears to be prejudicial to the public interest, or otherwise contrary to law, is ipso facto void (c). Thus if a lease is made for the express purpose of the premises being used to boil oil and tar,

(y) Whittome v. Lamb, 12 M. & W. 813; Dollen v. Batt, 27 L. J. C. P. 281.

(2) Greenway v. Hart, 23 L. J. C. P. 115; Isherwood v. Oldknow, 3 M. & S. 382.

(a) The word "covenant" used in an agreement not under seal may, in order to effectuate the intention of the parties, be construed to mean "contract," or "stipulation." Hayne v. Cummings, 16 C. B. N.S. 421.

(b) Bac. Abr. tit. Covenants. (c) Shep. Touch. 163; Lowe v. Peers, 4 Burr. 2225. By 5 & 6 Vict. c. 35, s. 103 (Property-Tax Act), a covenant for the payment of rent in full without allowing a deduction for the property-tax, is void. See infra, Part 2, Div. 1, c. 1, s. 3, Deductions; and see post, Certain Trades, &c., p. 127.

contrary to the provisions of an Act of Parliament, the covenant for payment of rent is void (d). If a man covenant to do a thing which to-day is lawful, but to-morrow is by statute made unlawful, the covenant will be thereby extinguished; or if he covenant not to do a thing, and then a statute is made which compels him to do it, the covenant becomes void; but if he covenant to do that which is afterwards made unlawful in part only, it must be performed so far as it continues lawful. If a man covenant not to do a thing which is unlawful, and then a statute makes it lawful, the covenant is not thereby repealed; but if he covenant to do a thing unlawful by statute, the performance of the covenant is not rendered lawful by a repeal of the statute, for the covenant was void in initio (e). But there is nothing to prevent persons, if they so please, from binding themselves by a contract as to any future state of the law, although in general they are to be considered as contracting with reference to the law as it then exists (f). A covenant to do a thing which is impossible, if the impossibility exists at the time the covenant is made, is void; but if it be then possible, and afterwards become impossible, the covenantor will still be liable in the express words of his covenant (g.) Where a covenant seems to relate to something which is impossible, the Court will incline to the view that a man did not really warrant to be possible that which was impossible, if a reasonable construction suggests itself (h).

(d) The Gas Light Co. v. Turner, 5 Bing. N. C. 666.

(e) Brewster v. Kitchell, 1 Salk. 198; Brason v. Dean, 3 Mod. 39; Jaques v. Withy, 1 H. Bl. 65. See the judgment in Baily v. Crespigny, L. R. 4 Q. B. 185.

(f) See judgment of Maule, J., in Mayor of Berwick v. Oswald, 3 E. & B. 665, 23 L. J. Q. B. 324.

Where a

(g) Shep. Touch. 663; Blight v. Page, 3 B. & P. 295, n. (a); Barker v. Hodgson, 3 M. & S. 267; 1 Rol. Abr. 420, C. 4, 8; Appleby v. Myers, L. R. 2 C. P. 651; Clifford v. Watts, L. R. 5 C. P. 577; 40 L. J. C. P. 36.

(h) Per Willes, J., Clifford v. Watts, supra.

Express cove

nauts.

covenant is dependent upon a conveyance of an estate which proves to be void, and no estate passes, the covenant is void (¿). Thus a covenant in a lease to repair during the term is void, where the lessor does not execute the lease (j). But independent covenants in a lease may be enforced, although no estate passes (k). Covenants are such as either run with the land, or are merely personal. A covenant running with the land is one which affects the nature, quality, or value of the land demised, or the mode of enjoying it independently of collateral circumstances ().

(a.) EXPRESS COVENANTS.

Express covenants are such as are created by the express words of the parties in a deed declaratory of their intentions; and in order to constitute such a covenant, the law does not require any precise or technical language. Thus words in the form of an exception or restriction may amount to a covenant (m). The lease in general contains express covenants by the lessee for the payment of the rent (n), for the payment of taxes, &c. (except the sewers' rate, land and property taxes), for the repair of the premises during the term, for leaving them at the end of the term in a proper state of repair, and for the insurance and rebuild

(i) Capenhurst v. Capenhurst, Sir T. Raym. 27; Hayne v. Maltby, 3 T. R. 438.

(j) Pitman v. Woodbury, 3 Exch. 4; Linwood v. Squire, 5 Exch. 234; Wheatley v. Boyd, 7 Exch. 20; Swatman v. Ambler, 8 Exch. 72. Compare these cases with Hughes v. Clarke, 10 C. B. 905; Morgan v. Pike, 14 C. B. 473; Wood v. Copper Miners Co. 14 C. B. 594; Northampton Gas Co. v. Parnell, 15 C. B. 630; Bowes v. Croll, 6 E. & B. 255; Hew v. Greek, 3 H. & C. 391.

(k) Northcote v. Underhill, 1 Salk. 199.

(1) Spencer's case, 5 Rep. 16, 1st and 2d Resolutions. See infra, Part 4, c. 1, s. 4. (m) The Duke of St Albans v. Ellis, 16 East. 352.

(n) A covenant may be inserted to pay interest on arrears of rent. Tynte v. Hodge, 2 H. & M. 287. See note by Mr Cole in Woodfall's "Landlord and Tenant," 1013, 9th edit.

ing of the premises in case of their destruction by fire. The lessee also usually covenants not to assign or underlet without the consent of the lessor, and sometimes not to carry on offensive trades. There is a covenant by the lessor, on the other hand, for quiet enjoyment; and he not unfrequently covenants to pay some of the rates or assessments, or a portion of them.

An express covenant for the payment of rent is Payment of inserted in every indenture of lease, and usually binds rent. the lessee, his heirs, executors, administrators, and assigns to its performance. The lessee, and after his death, his personal representatives, having assets, are answerable for the rent during the continuance of the lease. If the covenant expressly include the heirs of the lessee, his real representatives having inherited assets from the ancestor will be chargeable for breach of the covenant, either in the lifetime of the lessee, or after his death. If the lease be assigned, the original lessee continues liable for the rent during the lease, in respect of privity of contract, and his heirs, if named, and his personal representatives, though not named, remain liable, so far as assets have come to their hands. The assignee is also liable for the rent in respect of the privity of estate (o) during his ownership.

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The liability to pay taxes is usually provided for in Payment of the lease. The usual covenant by the tenant is to taxes. pay all rates, taxes, duties, and assessments whatsoever, whether parochial, parliamentary, or otherwise, now charged, or hereafter to be charged, upon the demised premises, or any part thereof, or upon the rent, or any part thereof, except sewers' rates, land-tax, and

(0) See infra, Part 4, c. 1, s. 4, Covenants Running with the Land.