IV., c. 16. assignees not being liable till they had taken possession, although they had accepted the lease; but the bankrupt act of 49 G. III., c. 121, s. 19, provided, that where the assignees accepted the lease, the bankrupt should be discharged from his liability in respect of the rents and covenants, and a short remedy was given by petition to compel the assignees to accept or decline the lease, yet it was then holden that where they declined, the bankrupt was still liable. But in order to remedy the law in this respect, it is enacted, by the 75th section of the new bankrupt act, 6 G. IV., c. 16, that bankrupts entitled Stat. 6 G. to leases, or agreements for leases, if the assignees accept the same, shall not be liable to pay any rent accruing after the date of the commission, or be sued in respect of any subsequent non-observance or non-performance of the conditions, covenants, or agreements, therein contained; and if the assignees decline the same, shall not be liable in case they deliver up such leases or agreements to the lessor, or person agreeing to grant the leases, within fourteen days after they shall have had notice that the assignees have declined; and if the assignees shall not (upon being thereto required) elect, whether they will accept or decline such leases or agreements, the lessor, or any person entitled under him, may apply by petition to the lord chancellor, who may order them so to elect and deliver up such leases or agreements, in case they decline the same, and the possession of the premises, or may make such other order therein as he shall think fit. (s) (s) This enactment is similar to the previous one of 49 G. III., which did not extend to a parol agreement for a lease.-Ex parte Sutton, 2 Rose, 86. And is confined to cases between lessor and lessee, and does not extend to cases between a lessee and his assignee of a lease.-Young v. Taylor, 3 B. & A. 521. Nor does it apply to a contract in its nature not a lease, but for a purchase of property.-Hope v. Booth, 1 B. & Adol. 505. The usual covenant, not to let, &c., will not prevent a lease from passing to the assignees.-Doe d. Cheere v. Smith, 1 Marsh, 359. 5 Taunt. 795. 2 Rose, 280. And see Doe d. Mitchinson v. Carter, 8 T. R. 57-300. And Lloyd v. Crisp, 5 Taunt. 249. A proviso in a lease that the lessee, his executors or administrators, should not assign without the lessor's consent in writing, did not prevent the commissioners from assigning the lease to the assignees without such consent.-Doe d. Goodbehere v. Operation of the statute This statute, operating as a total discharge of the in discharg- bankrupt from all the covenants, where the lease ing bank- contained a covenant that the lessee, his executors covenants in or administrators, without mentioning assigns, rupt from lease. Parties. part. should not underlet without the consent of the lessor, the lessee having become bankrupt, and his assignees having assigned the premises to A., who, after the lessee had obtained his certificate, re-assigned the premises to him, after which he underlet them, the court held that, having been discharged from all the covenants, the underletting by him, which was in his character of assignee, was no forfeiture of the lease.(t) (1.) Assignment of Lease for the Residue of a Term of twenty-one Years. THIS indenture made the day of, &c., BETWEEN the within named A. B., of, &c., of the one part, and C. D., of, &c., of the other part; WHEREAS the said A. B. hath contracted and agreed with the said C. D., for the assignment of the within mentioned lease and hereditaments, for the residue of the within mentioned term of twenty-one years, at or for the sum of, &c. Witnessing Now THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement, and for and in consideration of the sum of, &c., of lawful money of Great Britain, to the said A. B., in hand, paid by the said C. D., at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, he, the said A. B., doth, by these presents, grant, bargain, sell, assign, transfer, and Assignment, set over, UNTO the said C. D., his executors, administrators, and assigns, ALL that the messuage, tenement, and all and singular other the premises, Bevan, 3 M. & S. 355. 2 Rose, 456. In cases of bankruptcy the assent of the lessor is presumed in law to have been given to the assignment of the premises by the commissioners.-Wadham v. Marlow, 2 Chit. 600. 4 Doug. 54. 8 East, 314, n. 1 H. Black. 438, n. (t) Doe d. Cheere v. Smith, 5 Taunt. 795. 1 Marsh, 359. 2 Rose, 280. in and by the within written indenture of lease demised, or intended so to be, with their, and every of their, appurtenances, and all the estate, right, title, interest, term of years to come and unexpired, property, claim, and demand, whatsoever, of the within named A. B., of, in, to, or out of, the same premises, and every part thereof, together with the said indenture of lease. To HAVE AND Habendum. TO HOLD the said, &c., and all and singular other the premises hereby assigned, or intended so to be, with their, and every of their, appurtenances, unto the said C. D., his executors, administrators, and assigns, from the 25th day of March next ensuing, the date of these presents, for and during all the rest, residue, and remainder, which shall be then to come and unexpired, of the term of twenty-one years, in and by the within written indenture of lease granted of the same, (determinable, nevertheless, at the option of the said C. D., his executors, administrators, and assigns, at the end of the first seven or fourteen years of the term of twenty-one years within granted, upon the said C. D., his executors, administrators, or assigns, giving such notice to the said A. B., his executors, administrators, or assigns, as the said A. B. is required to give, in and by the within written indenture,) subject, nevertheless, Subject to to the payment of the rent, and performance of the the payment covenants, in the same indenture of lease reserved and contained on the tenant or lessee's part, from thenceforth to be paid, done, and performed; AND Covenants. the said A. B. doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree, to and with the said C. D., his executors, administrators, and assigns, in manner following, (that is to say,) that he, the said C. D., his executors, administrators, or assigns, paying the rent, and observing and performing the covenants and agreements reserved and contained in and by the said within written indenture of lease, on the tenant or lessee's part to be paid and performed, from and after the said day of, &c., shall and may of the rents. For quiet from time to time, and at all times thereafter, for enjoyment, and during all the residue and remainder which shall be then to come and unexpired of the said term of twenty-one years, determinable as aforesaid, by the within written indenture of lease granted lawfully, peaceably, and quietly, have, hold, occupy, possess, and enjoy, the said, &c., and premises hereby assigned, or intended so to be, with their, and every of their, appurtenances, and receive and take the rents, issues, and profits, thereof, and of every part thereof, to and for his and their own use and benefit, without any lawful let, suit, trouble, denial, eviction, or interruption, of or by the said A. B., his executors, administrators, or assigns, or any other person or persons whomsoever, lawfully claiming, or to claim, by, from, or under, him or them, or by, or through, his or their acts, means, neglect, default, or procurement; AND that free and clear, and freely and clearly, acquitted and discharged, or otherwise, by the said C. D., his executors or administrators, well and sufficiently kept harmless and indemnified, of, from, and against, all and all manner of incumbrances whatsoever, and of and from all arrears of rent, And for fur- taxes, and assessments, until the said Free from incumbrances. ther assur ance. day of, &c.; AND further, that he, the said A. B., his executors or administrators, and all every other person and persons having or lawfully claiming, or to claim, any estate, right, title, or interest, of, in, to, or out of, the said, &c., hereby assigned, or intended so to be, upon every reasonable request, and at the costs and charges in the law, of him, the said C. D., his executors, administrators, or assigns, shall and will make, do, and execute, or cause and procure to be made, done, and executed, all and every such further and other lawful and reasonable acts, deeds, conveyances, assignments, and assurances, in the law, for the further and better assigning or assuring the said premises unto the said C. D., his executors, administrators, and assigns, for the then residue of the term of twenty-one years, assignee for performance nants in the lease. within demised, as by the said C. D., his executors, administrators, or assigns, or his or their counsel in the law, shall be reasonable, devised, and required; AND the said C. D. doth hereby for himself, his Covenant by heirs, executors, administrators, and assigns, cove- payment of nant, promise, and agree, to and with the said the rent, and A. B., his executors, administrators, and assigns, of the covethat he, the said C. D., his executors, administrators, and assigns, shall and will from time to time, and at all times hereafter, during the continuance of the said term of twenty-one years, (determinable as aforesaid,) pay the said yearly rent of £—, by the said within written indenture of lease reserved, as and from the day of, &c., and perform, fulfil, and keep, all and singular the covenants and agreements in the said indenture contained, and which, on the part of the said tenant or lessee, are or ought to be performed, fulfilled and kept; and of and from the same rents, covenants, and agreements, and all costs, charges, damages, and expenses, to be incurred or sustained by reason or on account of any breach, neglect, or default, of or in payment, observance, or performance, of the same respectively as aforesaid, shall and will save harmless, and keep indemnified, the said A. B., his heirs, executors, and administrators, and his and their estate and effects whatsoever and wheresoever. (u) In witness, &c. (2.) An Assignment of a Lease for twenty-one THIS indenture (v) made the day of, &c., Parties. (u) A bond should be entered into by the assignee to indemnify the lessée against payment of the rent, and the performance of the covenants in the lease, (he being still liable,) or the lessee should have a duplicate of the assignment. (See Bonds.) (r) This precedent may begin by way of deed poll, thus: "Know all men," &c.; but it is the better way in all cases to effect the deed by way of indenture, as all the parties will appear in the first instance by whom the same is made between. |