general (c), and we shall now proceed to explain what is a breach of a covenant not to assign, and how it may be waived. It has been held in several cases that a condition not to assign is not broken by an assignment by operation of law (d). But if special words are inserted in the condition to include such case, a forfeiture will ensue (e). A covenant not to assign is broken by the execution of a deed assigning the whole of the term, although the deed purports to be merely an underlease, reserving rent with powers of re-entry (ƒ). In order to create a forfeiture, the assignment must be valid in point of law (g). So an advertisement to underlet or assign is no breach (h). A covenant contained in the lease of a chophouse not to grant any under-lease or leases, or let, set, assign, transfer, set over, or otherwise part with the premises demised, or the indenture of lease, is not broken by depositing the lease with the brewers of the lessee as a security for money advanced by them (¿). Whether a bequest, or, as the books call it, the (c) See ante, p. 141. (d) See Doe d. Goodbehere v. Bevan, 3 M. & S. 353; Doe d. Mitchinson v. Carter, 8 T. R. 57; Doe d. Lord Anglesea v. Rugeley, 6 Q. B. 107; Croft v. Lumley, 5 E. & B. 648, 682, and H. of L. Cas. 672; Slipper v. Tottenham Junction Railway Co., L. R. 4 Eq. 112; 36 L. J. Ch. 841; Bailey v. De Crespigny, L. R. 4 Q. B. 180. (e) Roe d. Hunter v. Galliers, 2 T. R. 133; Rex v. Topping, M'Cel. & J. 544; Davis v. Eyton, 7 Bing. 154; Rouch v. The Great Western Railway Co., 1 Q. B. 51; Doe d. Wyndham v. Carew, 2 Q. B. 317; Doe d. Lloyd v. Ingleby, 15 M. & W. 465. (f) Parmenter v. Webber, 8 Taunt. 593; Pierce v. Corrie, 5 Bing. 24; Wollaston v. Hakewill, 3 M. & G. 297; Thorne v. Woollcombe, 3 B. & Ad., 586. (g) Doe d. Lloyd v. Powell, 5 B. & C. 308. (h) Gourlay v. Duke of Somerset, 1 V. & B. 68. (i) Doe d. Pitt v. Laming, 1 Ry. & M. 36; Doe d. Pitt v. Hogg, 4 Dow. & Ry. 226. See Doe d. Good behere v. Bevan, 3 M. & S. 353. License. devise of a term without the landlord's assent is a breach of a covenant not to assign without license, appears doubtful. The law on the subject continued uniform up to the time of James I., namely, that a devise was a breach of the condition (). But in the time of Charles I., a contrary doctrine was established, and this doctrine appears to have been since adhered to (k). In this doubtful state of the law, it would be as well to provide for the case of a devise by express words in the covenant. If the covenant contain an exception in favour of assignment by will, it would seem that the executors are not within the exception, and therefore not at liberty to sell for payment of debts without license of the lessor (). A letting of part of the demised premises is a breach of a covenant not to let the demised premises, or any part or parcel thereof (m). So where the covenant was not to assign the whole or any part, and the lessor himself entered upon part, and the lessee afterwards assigned, it was held to be a breach of the covenant (n). At common law it was held that if a lessor licensed one assignment, the condition not to assign without license was at an end for ever, and the assignee might afterwards assign without license (o). And this has (j) Lord Windsor v. Bury, Dyer, 45 b; Knight v. Mory, Cro. Eliz. 60; Barry v. Stanton, Cro. Eliz. 330; Berry v. Taunton, Cro. Eliz. 331; Parry v. Harbert, Dyer, 45 b; Dumpor v. Syms, Cro. Eliz. 817; Huton v. Huton, Cro. Jac. 74. (k) Fox v. Swann, Stg. 482, 483; Crusoe d. Blencowe v. Bugby, 3 Wils. 237. See the judgment of Bailey, J., in Doe d. Good be In here v. Bevan, 3 M. & S. 361. (1) Per Mansfield, C.J., in (n) Collins v. Sillye, Style, 265. (0) Dumpor's case, 1 Smith's L. C. 5th edit. 28. See notes 31. been held to be the case even where the license was to assign to a particular person (p). This law is still in force with reference to covenants and licenses contained in leases made before August 1859 (q). But the license, in order to put an end to the condition, must be such a license as is contemplated by the instrument. Thus where the condition is not to assign without license in writing, a parol license is no dispensation (r), unless such parol license is used as a snare, in which case equity would relieve (s). So also where there is an exception in favour of assignment by will, the condition is still in force after an assignment by will (t). According to the general principle of law that long acquiescence in any adverse claim of right is good ground on which a jury may presume that the claim had a legal commencement, it has been held that a license may be presumed to have been given according to the terms of the condition. Thus upon proof of an uninterrupted sub-lease of the premises for more than twenty years, to the knowledge of the lessor, and contrary to the condition of the lease, the Court held that the jury ought to be directed to presume that a license in writing had been duly given (u). Now, however, by 22 & 23 Vict., c. 35, s. 1 (v), it is enacted that "Where any license to do any act which, without such license, would create a for (p) Brummel v. Macpherson, 14 Ves. 173. (q) See 22 & 23 Vict. c. 35, infra. (r) Roe v. Harrison, 2 T. R. 425; Macher v. Foundling Hospital, 1 V. & B. 191. (8) Richardson v. Evans, 3 Madd. 218. (t) Lloyd v. Crispe, 5 Taunt. 249, 254; Mason v. Corder, 7 Taunt. 9. (u) Gibson v. Doeg, 2 H. & N. 615. See also Doe d. Sheppard v. Allen, 3 Taunt. 78; Doe d. Boscawen v. Bliss, 4 Taunt. 735. (v) See also 23 & 24 Vict. c. 38, as to waiver, Part 3, c. 3, s. 2. K feiture, or give a right to re-enter, under a condition or power reserved in any lease heretofore granted, or to be hereafter granted, shall at any time after the passing of this Act be given to any lessee or his assigns, every such license 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, under-lease, or other matter thereby specifically authorised to be done, but not so as to prevent any proceeding for any subsequent breach (unless otherwise specified in such license); 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 authorised, or made dispunishable by such license, in the same manner as if no such license had been given; and the condition or right of re-entry shall be and remain in all respects as if such license had not been given, except in respect of the particular matter authorised to be done." By sect. 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 license, and a license, 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 license, 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 license 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 colessees, 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 license." Sometimes a condition is inserted that the lessor shall not withhold his license to assign unreasonably or vexatiously, and he will be bound by such a condition (w). As to a waiver of the forfeiture by the lessor, see infra, Part 3, c. 3, s. 2. 9. POWERS OF RE-ENTRY. re-entry. All leases should contain a proviso for re-entry, for Powers of the purpose of enforcing the payment of the rent and the performance of the covenants. The form is usually as follows: : Provided always, and it is expressly agreed, that if the rent hereby reserved, or any part thereof, shall be unpaid for (fifteen) days after any of the days on which the same ought to have been paid (although no formal demand shall have been made thereof), or in case of the breach or non-performance (x) of any of the covenants and agreements herein contained on the (w) Lehmann v. McArthur, L. R. 3 Eq. 746, 3 Ch. Ap. 496. (x) Where the words were "in case the lessee should fail in the observance or performance of the covenants," it was doubted whether such words would apply |