Administra

trix.

Breach by underlease.

Underlease.

Lodgings.

Contract to assign.

Advertisement.

Deposit of lease.

Assets.

Underleases

Exception

in covenant

An administratrix of a lessee cannot underlet without incurring a forfeiture, where there was a proviso that the lessee and his administrators should not let or assign over the whole or part of the premises, without leave in writing, on pain of forfeiting the lease.(w)

A covenant not to assign, or otherwise part with the premises, or any part thereof, for the whole or any part of the term, is broken by an underlease.(x)

But a covenant not to assign, transfer, set over, or otherwise do or put away the lease or premises, does not extend to an under-lease for part of the term.(y)

It appears that letting lodgings is not a breach of a covenant not to underlet.(z)

If the vendor of a lease, in which is a covenant not to assign, contract to assign his interest, it is incumbent on him, and not on the purchaser, to procure the lessor's license for the assignment. (a)

Under a right of re-entry upon under-letting, an advertisement does not work a forfeiture. (b)

A covenant in a lease of a chop-house, not to let, set, assign, transfer, set over, or otherwise part with the premises thereby demised, or that present indenture of lease," is not broken by proof of a deposit of the lease with the brewers of the lessee, as a security for money advanced and beer supplied to the house, as it could not be deemed to be a

v. Payne, 1 Stark, 86. And such evidence would not be sufficient, even if the tenant had covenanted not to part with the possession.-Id. (In respect to assignees in bankruptcy, see p. 154, and notes.)

(w) Roe d. Gregson v. Harrison, 2 T. R. 425. But executors may dispose of a lease for years as assets, notwithstanding a proviso or covenant that lessee shall not alien.-Seers r. Hind, I Ves. jun. 295.

(x) Doe d. Holland v. Worsley, 1 Camp. 20. And so although underleases are not within the general words of provisoes concerning assignments.-Kinnersley v. Orpe, 1 Doug. 55. S. P. Church v. Brown, 15 Ves jun. 264.

(y) Crusoe d. Blencowe v. Bugby, 2 W. Black. 766. 3 Wils. 234.
(z) Doe d. Pitt v. Laming, 4 Camp. 77.

(a) Lloyd v. Crisp, 5 Taunt. 249. If a covenant not to assign contain an exception in favour of assignment by will; semble, that executors claiming under the will are not within the exception, so as to be at liberty to sell for payment of debts without license of the lessor.-Id.

(b) Gourlay v. Somerset (Duke), 1 Ves. & B. 68.

parting with the premises within the meaning of the Covenant.(c)

Though bankruptcy supersedes an agreement not Bankruptcy. to assign without license, it has been held only in favour of general creditors, and where there is no actual fraud.(d)

by a lord of

In contemplation of law, a copyholder is only a As to license tenant at will, and has no power to grant a lease for a manor to a any longer period than one year, unless authorised copyholder. to do so by a special custom of the manor, or by a license from the lord. This license being merely an authority, will necessarily determine with the interest of the person granting it. The lord, therefore, from whom a license is obtained, should have an interest in the manor, capable of supporting the lease intended to be granted; for, if he merely be a tenant for life or for years, and die, his interest expire before the expiration of the lease, the license will become void, and the term of years granted, in consequence of such license, will determine with it. (e),

or

to exercise a trade re

lease.

As before observed, (f) a condition being an As to license entire thing, if any part of it be once dispensed with, the whole condition is gone, and cannot be strained by revived; and hence that a license to assign over, though confined to a particular person by name, will abrogate the proviso altogether, and the lessee may afterwards assign at pleasure. But a permis- Permission. sion to use one of the trades mentioned in the condition, is not a waiver of the entire stipulation, so as to permit the tenant to exercise any of the rest.(g)

(c) Doe d. Pitt v. Hogg, 4 D. & R. 226. 1 C. & P. 160. S. C. nom. Doe d. Pitt v. Laming, R. & M. 36.

(d) Weatherall v. Geering, 12 Ves. jun. 504. Quære, whether a person Assignment entitled under an agreement for a lease, to be void upon an assignment without license, having assigned without license, can enforce a specific performance.-Id.

Gilb. License.

(e) Pellic v. Debbans, 1 Roll Abr. 511. K. Co. Copyh. s. 24. Ten. 298. Petty v. Evans, 2 Brown, 40. The term of years, when created by the license of the lord, is an interest at common law, and not a copyhold one, and may, therefore, be assigned by the lessee without any further license or authority from the lord; therefore, if the contrary be intended, the clause of restriction as in precedent, No. 1, p. 656, should be inserted.

(f) See pp. 657-659.

(9) Macher v. Foundling Hospital, 1 Ves. & B. 189. (See note to p. 658.)

As to covenant not to exercise trades.

Expense of license.

Where a lessee of a house and garden for a term of years covenanted with the lessor "not to use or exercise, or permit or suffer to be used or exercised, upon the demised premises, or any part thereof, any trade or business whatsoever, without the license of the lessor," and he afterwards, without the license of the lessor, assigned the lease to a schoolmaster, who carried on his business in the house and premises; it was held that the assignment was a breach of this covenant, and the lessor entitled to re-enter under a proviso for re-entry for non-performance of covenants. (h)

If the vendor of a lease, in which is a covenant not to assign, contract to assign his interest, it is incumbent on him, and not on the purchaser, to procure the lessor's license for the assignment.(?)

(h) Doe d. Bish v. Keeling 1 M. & S. 95; and see Jones v. Thorne, 3 D. & R. 152. 1 B. & C. 715.

(i) Lloyd v. Crispe, 5 Taunt, 249.

NOTICES TO QUIT.(j)

To Mr. C. D.

up

(1.) Notice by landlord to

next en- nant to quit.

(See stat. 4,

I hereby give you notice to quit, and deliver to me, or such other person as I shall appoint to a yearly tereceive the same, on the day of suing the date hereof, being the end of your present Geo. II., c. year's holding the peaceable possession of all that, 28, and see p. &c., which you now rent or hold under me, situate in the parish of- -, in the county of

Dated this

day of

18

A notice to quit must be given previously to bringing an action of ejectment, whenever there is an existing tenancy from year to year.-Throgmorton . Whelpdale. Bull, N. P. 96. Doe d. Hollingsworth v. Stennet, 2 Esp. 717. Doe d. Martin v. Watts, 7 T. R. 83. 2 Esp. 501. Doe d. Moor v. Lawder, 1 Stark. 308. Doe d. Warner v. Brown, 8 East. 166. Where a tenant from year to year dies, his personal representatives have the same interest in the land which he had, and therefore entitled to the same notice to quit.-Doe d. Shore v. Porter, 3 T. R. 13 S. P. Parker d. Walker v. Constable, 3 Wils. 24, and see Mackay v. Mackreeth, 3 T. R. 13, n.-Gulliver d. Tusker v. Burr, 1 W. Black. 596. Where the term of a lease is to end on a precise day, there is no occasion for a notice to quit, previous to bringing an action.-Cobb v. Stokes, 8 East. 358. S. P. Messenger v. Armstrong, 1 T. R. 54; and see Right d Flower v. Darbey, 1 T. R. 162. A tenant holding under an agreement for a lease for seven years, which was never executed, is not entitled to a notice to quit at the end of the seven years.-Doe d. Tilt v. Stratton, 4 Bing. 446. i M. & P. 183. 3 C. & P. 164, and see Doe d. Bromfield v. Smith, 6 East, 520. 2 Smith, 570. 2 T. R., 436. When a party occupies under an agreement for a lease during the whole term for which the lease was to be granted, a notice to quit is not necessary at the end of such term, as the agreement is evidence of the expiration of the tenancy, as well as of the other terms of the holding.-Id. A notice is necessary where the tenant does an act which amounts to a disavowal of the title of the lessor-Doe d. Grubb v. Grubb, 10. B. and C. 816. Doe d. Williams v. Pasquali, Peak, 196. Doe d. Jeffries v. Whittick. Gow. 195. Doe d. Clunn v. Clarke, Peak's add. Cas. 239; Rogers v. Pitcher, 6 Taunt. 202. 1 Marsh, 54; and see Doe d. Dillon v. Parker, Gow. 180. But refusal to pay rent to devisee under a will, which is contested, is not such a disavowal.-Id. Nor where the possession of the tenant is adverse-Doe d. Foster v. Williams, Cowp, 622, S. P. Doe d. Cheeser v. Creed, 2 M. and P. 648. S C. Nom. Doe d. Davis v. Creed, 5 Bing, 327. A tenant of apartments is not justified in quitting without notice, merely from a fear, however reasonable, that his goods may be seized for his landlord's rent.Rickett v. Tullick, 6 C. & P. 66. A tenant who after giving notice to quit, holds over for a year, paying double rent according to 11 Geo. 11. c. 19, s. 18, may quit at the end such year without fresh notice.-Booth v. Macfarlan, 1 B. and Adol. 904.-In respect to co-partnership, when by the terms of the partnership deed, a house is to be used and occupied by the co-partners, during the co-partnership, it is not necessary, after a dissolution of partnership, to give a notice to quit previous to bringing an action of ejectment against a co-partner.-Doe d. Waithman v. Miles, 1 Stark, 181.4 Camp. 373. In the case of a mortgage it is not necessary

350.).

Notice to

quit where necessary.

Length of notice.

Monthly taking.

By whom to be given.

Two or more

ses.

Joint

for a mortgagee to give notice previous to bringing an ejectment to a tenant who claims under a lease from the mortgagor, granted after the mortgage, without the privity of the mortgagee.-Keech d. Warne v. Hall, 1 Doug. 21. Nor where the tenant was let into possession after the original mortgage was made, but before an assignment of it for the purpose of bringing ejectment.-Thunder d. Weaver v. Belcher, 3 East. 449. But see Birch v. Wright, 1 T. R. 378.

Half a year's notice must be given to a tenant at will, or his exerater, to quit, or ejectment does not lie. Six months' notice is not sufficient — Parker d. Walker v. Constable, 3 Wils. 25. Where rent is reserved quarterly it does not dispense with six months' notice to quit.-Shirely Newman, 1 Esp. 266. But if a quarter's notice be given to the lesser. and the rent paid up to the time when the tenant should quit, and the lessor neither assent nor dissent, it shall be taken as a waiver of the regular notice, and an acquiesence on his part.-Id. A month's notice is not sufficient.-Gulliver d. Tasker v. Burr, 1 W. Black, 56. ln ad cases the notice to quit must have reference to the terms of the letting: therefore in ejectment for a house, where the defendant had taken the house by the month, it was held that a month's notice to quit was su cient to entitle the plaintiff to recover.-Doe d. Parry v. Hazell, 1 Esp 94. In an agreement for a demise, where the rent was to be paid weekly. and to have a month's warning, if no default was made in payment of the rent, but which agreement the lessor afterwards refused to execute, and the tenant paid his rent weekly, it was held that he was entitled te a month's notice to quit, although the agreement was not executed; and although if he had been weekly tenant, a week's notice would have been sufficient.-Doe d. Peacock v. Raffan, 6 Esp. 4. A notice to quit at d Michaelmas, though given half a year before new Michaelmas, at which time the tenancy expired, is bad.-Doe d. Spicer v. Lea, 11 East. 312— A notice on the 28th September, to quit on the ensning 25th of March, is a sufficient half year's notice.-Roe d. Durant v. Doe, 6 Bing, 374. 4 M. and P. 391. S. P. Doe d. Harrop v. Green, 4 Esp. 198. A notice given on the 26th of September to quit at the end of six calendar months is good to determine a holding commencing on the 25th of March.Howard v. Wemsley, 6 Esp. 53. (But see Ad, on Eject. 124.) So though the word "calendar" had been omitted, or the notice had expressed half a year.-Id. If notice to quit at Midsummer be given to a tenaci holding from Michaelmas, he may insist on the insufficiency of the untive at the trial, though he did not make any objection at the time when it was served.-Oakapple d. Green v. Capons, 4 T. R. 361.

The notice to quit must be given by the person interested in the premi ses, or his authorised agent, and such agent must be clothed with his power to give the notice at the time when the notice is given, a subsequent assent on the part of the landlord not being sufficient to establish br relation a notice given in the first instance without his authority; and this principle is founded in reason and good sense, for as the tenant is to act upon the notice at the time it is given to him, it ought to be such an one as he may act upon with security; and if an authority by relatica were sufficient the situation of the tenant must remain doubtful until the ratification or disavowal of the principle, and he would thereby sustain a manifest injustice.-Madden d. Baker v. White, 2 T. R. 159.

When also two or more persons are interested in the premises, a notice interested in to quit given by one of thein, on behalf of himself and co-tenants, will be the premi- valid only as far as his own share is concerned.-Doe d. Whayman v. Chap lin, 3 Taunt.120. Doe d. Green v. Baker, 8 Taunt. 241, unless he was act ing at the time under the authority of the other parties mentioned in the notice. But this rule it seems does not hold when the parties are interested as joint tenants, because of the rule of law, that every act of one joint tenant, which is for the benefit of his co-joint tenant, shall bind him. and it must be predicated that the determination of the tenancy by such no tice is for the benefit of the estate.-Right d. Fisher v. Cuthell, 5 East. 491. And where several tenants in common are interested, as many of them as give notices may recover their respective shares.-Doe d. Whaymen Chaplin, 3 Taunt. 120. Doe d. Green v. Baker, 8 Taunt. 241. Although

tenants.

Tenants in common.