permit

inspect.

tors, administrators and assigns, shall and will, lessee to during the said term of sixty years, at all reasonable lessor to times, permit and suffer, and also aid and assist enter and the said A. B., his, &c., and his and their agents, viewers, inspectors, clerks, stewards, and bailiffs, whom it shall be lawful for the said A. B., his, &c., to employ and appoint to enter into the said lands, and to the mines, minerals, and premises, hereby granted and demised, or intended so to be, and the buildings and erections, shafts, pits, and works, to be made, erected, and sunk thereupon, in order to latch, view, search, and examine the repair, state, and condition of the same, and the manner in which the same are carried on.

leave open

and shafts.

AND ALSO, that he, the said C. D., his executors, administrators, and assigns, shall and will leave Lessee to open, and protect, and preserve with sufficient piles and protectand eye pillars, with inlets therein, built up with brick ed the pits and mortar, all the pits and shafts to be made and sunk by him and them in and upon the said closes, pieces, or parcels of land, and premises, with the bricks and curbs therein for the use and benefit of the said A. B., his heirs and assigns, and shall not, nor will not, do or commit or suffer to be done or committed, any wilful act, matter or thing, whatsoever, which shall or may damage, hazard, or endanger the hereinbefore excepted mines, veins, seams, and other the excepted premises, or the future working thereof respectively, (save and except such acts as may be necessary for the working of the said demised premises).

deliver an

to lessor.

AND ALSO, that he, the said C. D., his executors, administrators, and assigns, shall and will, once in Lessee to each and every quarter during the continuance of account of the said term hereby demised, that is to say, within slack, &c, ten days, next in or upon each and every the day of, &c., the day of, &c., the day of, &c., the day of, &c., in each and every year during the continuance of the said term of sixty years, deliver or cause to be delivered to the said A. B., his heirs or assigns, or his or their agent or agents,

a true, perfect, and correct account, in writing, of all coals, slack, cokes, and bricks, that shall be got, raised, sold, or otherwise disposed of, from and out of the said demised lands, for the custody, perusal, and approbation of the said A. B., his, &c., without making any charge for the same. (d)

Covenant by (d) A covenant may be added by lessee not to assign or underlet the lessee not to premises, thus: " And further, that he, the said C. D., his executors, assign an administrators, and assigns, shall not nor will, during the said term bere underlet. by granted, or intended so to be, give, grant, demise, let, set, assign, set over, or otherwise part with this present indenture of lease, or the mides, minerals, and premises hereby demised, or any part thereof, or his ar their estate, term, or interest therein, or any part of the same, unto any person or persons, whomsoever, save and except to a trustee or trusters for a wife, or child, or children, or to a partner or partners, without the special license and consent of the said A. B., his, &c., as aforesaid, first had and obtained under his or their hand or respective hands for the purpose. In witness, &c."

OBSERVATIONS AND CASES.

in making

IN the Touchstone it is said that, "Regularly Requisites these things must concur to the making of every of a lease. good lease.(e)

"1. As in other grants, so in this there must be a lessor. a lessor, and he must be a person able and not restrained to make that lease.

66

"2. There must be a lessee, and he must be a lessee. capable of the thing demised, and not disabled to receive it.

"3. There must be a thing demised, and such a Subject dething as is demisable.

mised.

setting forth

4. If the thing demised be not grantable without When by a deed, or the party demising not able to grant with- den go out deed, the lease must be made by deed; and if parties. so, then there must be a sufficient description and setting forth of the person of the lessor, lessee, and the thing leased, and all necessary circumstances, as sealing, delivery, &c. required in other grants, must be observed.(f)

ment.

"5. If it be a lease for years, it must have a cer- Commence tain commencement; at least, when it comes to take effect in interest or possession, and a certain determination, either by an express enumeration of years, or by reference to a certainty that is expressed, or by reducing it to a certainty upon some contingent precedent by matter ex post facto, and then the

(e) See Sheppard's Touchstone, p. 267.

() A lease, as in other deeds or grants, usually consists of the following Lease. parts, namely:

1. What is usually called the premises, which contains a statement of Premises. the date, the parties, and the parcels or premises, being that part which precedes the habendum.

2. The habendum or tenendum, or that part of the lease which begins Habendum. with, “To have and to hold," and properly succeeds the premises, and it

fixes the duration of the term.

3. The reddendum or reservation whereby the lessor reserves the rent, Reddendum and is usually made by the words, "Yielding and paying."

4. The covenants.

And lastly, any exception, proviso, or condition, there may be to the Proviso.

contract.

Ceremonies.

Acceptance by lessee.

Construction of

leases as to

tion.

contingency must happen before the death of the lessor or lessee.

"6. There must be all needful ceremonies; as, livery of seizin, attornment, and the like, in all cases where they are requisite.

"7. There must be an acceptance of the thing demised, and of the estate, by the lessee. But whether any rent be reserved upon a lease for lite, years, or at will, or not, is not material, except only in the cases of leases made by a tenant in tail, husband and wife, and ecclesiastical persons."

In the construction of leases regard must be had to all their parts; and general words may be retheir opera- strained by a particular recital contained therein. If a deed operates two ways, the one consistent with the intent of the party, and the other repugnant to it, the courts will put such a construction on it as to give effect to such intent, which is to be gathered from the whole instrument. (g)

Where

words are omitted.

The word

a lease.

Where a material word appears to have been omitted in a lease by mistake, and other words cannot have their proper effect unless it be introduced, such lease must be construed as if that word were inserted, although the passage where it ought to stand conveys a sufficiently distinct meaning without it. (h)

The word "term," in a covenant in a lease, may "term" in signify either the time or the estate granted. (¿) What are usual covenants in a lease is a question of fact for the jury, and not a question for the construction of the court. (j)

Usual covenants.

Memoran.

dums in leases.

Construction.

Where a memorandum was subscribed under a lease providing as to payment of the rent to an intermediate lessee during part of the term, and afterwards to the original lessee, during other part of the

(g) Solly v. Forbes, 4 Moore, 448; and see 1 T. R. 638. For deeds mav be construed so as to operate according to the intention of the parties, if by law they may; and if they cannot operate in one form they shall in another, which, by law, will effectuate the intention of the parties — Goodtitle d. Edwards v. Bailey, Cowp. 600.

(h) Wight v. Dickson, 1 Dow, 141, 147.

(i) Evans . Vaughan, 6 D. & R. 349. 4 B. & C. 261.

(j) Bennet v. Womack, 3 C. & P. 96. S. C. 1 M. & R. 644.

7 B. & C.

term, if his interest should so long continue, and that the new lessee, his executors, administrators, and assigns, should have liberty to quit a part of the premises at any time during the term, upon giving twelve months' notice; it was held that the lease and memorandum must be taken together, and construed as one entire instrument; and that the intention of the parties expressed by both, was to extend the habendum beyond the term of the life of the lessee, and give him a lease for thirty-seven years, determinable on the death of the lessor.(k)

long dura

A lease for two thousand years is not to be con- Terms of strued as a lease, but merely as a term to attend the tion. inheritance. (1)

dence.

No parol evidence can be admitted to explain an Parol eviagreement where there is no latent ambiguity.(m)

An expired lease may be presumed to have been Expired destroyed, where reasonable diligence has been lease. unsuccessfully used to procure its production.(n)

(k) Weak d. Taylor v. Escott, 9 Price, 595. In this lease it was recited Constructhat A., one of the lessors, was an original lessee for the term of his tion. natural life, and that B., the other, was a person to whom A. had granted a lease for a term of years certain, seven of which would remain unexpired on the 29th of September following the date thereof. A. and B. demised to the lessee the premises from the 29th day of September, for and during the two several terms thereinbefore mentioned, (the rent to be paid to both the lessors, and their respective executors,) if the lessee should so long live, and the term and estate of the original lessee should so long

continue.

(1) Denn d. Bargwell v. Barnard, Cowp. 595.

(m) Doe d. Spicer v. Lea, 11 East, 312. In this case, A. being tenant Constructo B. under a lease containing covenants by which the former was bound tion. to fetch a certain quantity of coals (seventy-five bushels) yearly from a place named, and deliver them at the mansion house of the latter; and also to supply him with as much good wheat as he should want in his family at a certain price (five shillings per bushel); it was agreed between them that the lease should be surrendered up, and a new one granted, omitting the above covenants; and a new lease was accordingly executed, and at the same time an agreement entered into whereby A. agreed with B. that he would fetch and bring to the dwelling house of B., his heirs and assigns, seventy-five bushels of coals yearly, for twelve years, (the term of the new lease,) and yearly supply B., his heirs and assigns, with as much good wheat as he should want in his family, at five shillings per bushel. B.(the lessor) having parted with his reversion in the farm, and also quitted the mansion house in which he resided at the time when the agreement was made; it was held that he was not entitled to maintain an action against A.,(the lessee,) for refusing to deliver the wheat at the stipu lated price; for, that the agreement being entire, must receive one uniform construction; and as it was clearly local in respect to the delivery of coals, it could not be deemed personal with respect to the wheat.-Coker v. Guy, 2 B. & P. 565.

(n) Doe d. Manton v. Austin, 2 M. & Scott, 107. The production of Production the counterpart of an old lease, coupled with evidence of the payment of