seem, therefore, that if in the above-mentioned cases the lessee had required the directors of the insurance. company, before they paid over the money to the lessor, to apply it in rebuilding, they would have been bound to do so (a). of covenant It follows from the foregoing observations that a Proper form lease should expressly provide for insurance. If it is by lessee for arranged that the lessee shall insure, the covenant insurance. should state in whose name the insurance is to be. It should also name the office, or provide that the office shall be one approved by the lessor, and the lessee should be bound to produce the policy and the receipts for the premiums. of covenant. It has been held that a covenant to insure in the Construction joint names of the lessor and lessee is substantially performed if the insurance is in the name of the lessor only (b); but a covenant to insure in the name of the lessor is broken by the lessee adding his own name (c). insure in In the case of an underlease where the sub-lessor is Covenants to himself bound to insure, the covenant in the under- underlease. lease, if entered into by the under-lessee, should of course be made to correspond with that in the superior lease. Sometimes the arrangement is that the underlessor shall continue to insure as required by the superior lease, and an additional rent is reserved equal in amount to the annual premium. does not in If it is not intended that the lessee shall insure, the Where lessee covenant by him to repair should except accidents by sure, damage fire, and of course, if it is intended that any of the by fire should repairs should be done by the lessor, this should be from general expressly provided for. In farm leases, covenants as to cultivation are usually inserted with the object of preventing the land from being impoverished, or the farm otherwise deteriorated by bad or negligent farming. (a) Simpson V. Scottish, &c. Compy., 23 L. J. Ch. 329. (b) Havens v. Hare, 641. Middleton, 10 (c) Penniall v. Harborne, 11 Q. B. 368. be excepted Covenant to repair. Covenants in farm leases. Covenant not to carry on trades. Covenant not to assign or underlet, without lessor's consent. Construction of such a covenant. IV. Covenants restrictive of the use of the demised property and covenants against assignment or underletting without the lessor's consent. A lease of a house often provides that the lessee shall not carry on particular trades on the premises. A covenant that the premises shall be used as a private dwelling-house only, is broken by permitting the house to be used as a school (d) or charitable institution for the board and education of children (e). A covenant prohibiting the use of premises as a public-house, or a beer-house, is not broken by the sale of beer, in retail, to be drunk off the premises, the terms "public-house" and "beer-house" having acquired a technical sense (ƒ); but if the term "beershop" is used, a sale to be drunk off the premises is a breach of the covenant (g); and it has been decided that for a grocer to sell wine or spirits in bottles is a breach of covenant "not to use premises for the sale of spirituous liquors" (h), but is permitted under a covenant "not to carry on the trade of a seller of wine and spirituous liquors" (i). A lease frequently contains a covenant not to assign or underlet without the lessor's consent. It is generally considered that such a covenant does not prevent a bequest by will (j). Nor does it extend to a deposit of a lease by way of security (k), nor to an alienation by operation of law, e.g., by bankruptcy or by judg ment, even where the judgment is preceded by a warrant of attorney given by the debtor (), and a (d) Wickenden v. Webster, 25 L. J. Q. B. 264. (e) German v. Chapman, 7 C. D. 271. (f) Pearse v. Coats, L. R. 2 Eq. 688; London and North Western Railway Compy. v. Garnett, ib. 9 Eq. 26; Holt v. Collyer, 16 C. D. 718; Nicoll v. Fleming, 19 C. D. 258. (g) Bishop of St. Albans v. Battersby, 3 Q. B. D. 359; London, &c. Compy. v. Field, 16 Ch. D. 645. (h) Fielden v. Slater, L. R. 7 Eq. (i) Jones v. Bone, L. R. 9 Eq. 674. (j) Fox v. Swann, Sty. 482; Doe d. Bevan, 3 M. & S. 353. The dicta to the contrary in the earlier cases, Knight v. Mory, Cro. Eliz. 60; Bury v. Stanton, ib. 330, must be deemed overruled. (k) Doe d. Pitt v. Hogg, 4 D. & Ry. 226. (7) Doe d. Curtis, 8 T. R. 57; Croft v. Lumley, 5 El. & Bl. 682; 25 L. J. Q. B. 223. trustee in bankruptcy having become entitled by operation of law may afterwards sell and assign in the discharge of his duty without its being a breach of the covenant (m). But the executor or administrator of a lessee is bound by the covenant, if expressly named in it (n). not a breach assignment. An underlease is not a breach of a covenant not to Underlease assign(0); but a covenant "not to let, set, or demise of covenant for all or any part of the term" has been held to against prohibit an assignment (p). An assignment by one Assignment of two joint tenants to the other is a breach of such by one joint a covenant (2). tenant to the other. to assign, &c., A covenant not to assign without consent, though Covenant not common, is not an usual and proper one in the sense cannot be that it can be insisted on under an open contract (). insisted on And, indeed, considering how a covenant of this kind contract. can be made an instrument of oppression in the hands of an unscrupulous landlord, it is surprising that its insertion without qualification is so readily assented to. Its legitimate object is to secure a responsible tenant, and it is therefore reasonable to insist on some qualifying words being added, confining its operation to this end. Sometimes this is done by adding "such May be quali consent not to be unreasonably or vexatiously withheld," or or "such consent not to be withheld if the proposed assignee is a responsible and respectable person." If words of this kind are added, they do not amount to a covenant by the lessor, but if he refuses his consent improperly the lessee may assign without it (s). fied. land. A covenant not to assign without consent runs with Runs with the the land so as to bind an assignee at law. damages on The measure of damages in an action for breach of Measure of the covenant is such a sum of money as will put the breach of v. Westcott, L. R. 12 Ch. D. 461. (r) Church . Brown, 15 Ves. 258; Buckland v. Papillon, L. R. 1 Eq. 477; Hodgkinson v. Crowe, L. R. 19 Eq. 591; Hampshire v. Wickens, ib. 7 Ch. D. 555. (8) Treloar v. Bigge, L. R. 9 Exch. 151; Evans v. Davis, 10 Ch. D. 747; Sears . House Property, &c. Socy., 16 Ch. D. 387. с Covenant. plaintiff in the same position as if he had still the defendant's liability instead of the liability of one of inferior pecuniary means for past and future breaches (†). V. The condition of re-entry, and the relief afforded by equity against a forfeiture thereunder. The lessee's covenants are usually followed by a proviso or condition enabling the lessor to re-enter in case the rent remains unpaid for a certain time, or in case of a breach of the lessee's covenants, but such a condition could not be insisted on in the absence of stipulation (u). Before a landlord could re-enter for non-payment of rent, he was, by the common law, obliged to make an actual demand, and in making such demand a number of troublesome formalities were necessary (r). By the Common Law Procedure Act, 1852, sect. 210 (y), the service of a writ of ejectment is substituted for an actual demand and re-entry; but a lessor cannot recover under this statute without showing that a halfyear's rent was due before the writ was served, and that no sufficient distress could be found on the premises (2). It is usual to provide in the condition for re-entry that the lessor may re-enter for non-payment of rent, whether the same shall have been legally demanded or not. Words to that effect will dispense with the necessity of making a legal demand, or of proving that no sufficient distress can be found (a). If the lease or agreement expressly requires that the rent shall be demanded before a re-entry, the demand need not be accompanied by the Common Law formalities (b), but it must not be made until the expiration of the time allowed for payment (c). (t) Williams v. Earle, L. R. 3 Q. B. 739. (u) Hodgkinson v. Crowe, L. R. (x) See 1 Saund. 287, n. 16. (z) See Doe d. Foster v. Wandlass, 7 T. R. 117. (a) Doe d. Harris v. Masters, 2 B. & C. 490. (b) Doe d. Schofield v. Alexander, 2 M. & S. 525. (c) Philips v. Bridge, L. R. 9 C. P. 48. waived by notice. A forfeiture, whether for non-payment of rent or for Forfeiture a breach of covenant, will be waived by a subsequent acceptance of acceptance of rent, provided that the lessor at the rent with time of such acceptance have notice of the forfeiture; and a distress or action for rent which has accrued subsequently to the breach constituting the forfeiture is a waiver (d). The acceptance of rent is, however, no waiver of forfeiture in respect of subsequent acts or omissions in breach of the same covenant. relieve against non-payment It has been long settled that equity will relieve Equity will against a forfeiture for non-payment of rent (e). By forfeiture for the Common Law Procedure Act, 1852 (ƒ), a tenant of rent. may stay all further proceedings against him by paying the arrears of rent and costs to the landlord or into Court; and by the same Act it is provided that a lessee against whom judgment and execution have been had in action of ejectment for non-payment of rent must proceed for relief in equity within six months after execution; and in case he proceeds in equity within that time, he must, in order to have or continue an injunction against the proceedings at law, bring into Court the arrears of rent and the amount of the taxed costs at law within forty days after the lessor's answer (g). Court had no relieve against Until recently, the Court had no jurisdiction to Formerly relieve the lessee from the consequences of a breach jurisdiction to of the covenants other than the covenant for non-pay- forfeiture for ment of rent. But such a jurisdiction has now been breaches of conferred by section 14 of the Conveyancing Act, Jurisdiction 1881, which provides as follows: covenant. conferred by recent Act. on and relief leases. (1.) A right of re-entry or forfeiture under any proviso Restrictions or stipulation in a lease for a breach of any covenant or against forcondition in the lease, shall not be enforceable, by action feiture of or otherwise, unless and until the lessor serves on the lessee a notice specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to (d) Dendy v. Nichol, 27 L. J. C. P. 220. See also Cotesworth v. Spokes, 30 L. J. C. P. 220. 67. (e) Wadman v. Calcraft, 10 Ves. (f) Sects. 210, 211. (g) There is a similar provision in 4 Geo. 2, c. 28, s. 2. See Bowser v. Colby, 1 Hare, 109. |