1 Bennett v. & Pay. 96. 2 Boardman v. Mostyn, 6 Ves. 467. 258. 4 Bennett v. Womack, 7 Barn. & Cress. 6 627. 5 Propert v. Parker, 3 My. & Kee. 280. Flight v. Barton, Id. 282. property and the custom of the neighbourhood. If the question arise in a court of law, it is a question of fact for a jury1; if in a Womack, 3 C. court of equity, for a reference to the master2. It has been determined, that an agreement for a lease of a house for twenty-one years, with usual covenants, does not include a covenant against 3 Church v. alienation without license3. On an agreement to assign the lease Brown, 15 Ves. of a public house, which was described as holden at " a net-rent, upon usual and common covenants," it was decided, that a covenant to pay land-tax and sewers-rate was a common covenant, in a lease reserving a net-rent; and that a provision for re-entry if any business but that of a victualler were carried on, was, with reference to a lease of a public-house, also to be considered usual and common 4. If the agreement for a lease contain no stipulation as to covenants, the party agreeing to take the lease is entitled only to usual covenants; and therefore, a restriction of particular trades, not being an usual covenant, cannot be introduced into the lease 5. A party entering into an agreement for an underlease, without previously inquiring into the original lease, has constructive notice of all usual covenants. "Whether," observes Sir John Leach, in a recent case 6, "he is to be considered under such circumstances as having constructive notice of unusual covenants, he believed had never been decided, and was a very different question?" It is difficult to imagine any solid ground for such a distinction. Why is he presumed to have notice of the usual covenants? No other reply can, it is apprehended, be given than this, that, having notice of a lease, the law presumes him to have notice of its contents; but this reason applies to one species of covenant as well as the other. And, indeed, in a case previously decided by the same judge, the very point seems to have been so determined; it being there held7, that it is the duty of a person contracting for an underlease to inform himself of the covenants mentioned in the original lease; and if he enter and take possession of the property, he will be bound by those covenants. The party agreeing to grant an under-lease may, of course, by his own conduct, deprive himself of the benefit of this principle, as where the intended underlessee informs him of the business he means to carry on in the premises, and the lessee does not apprize him that there is a covenant in the original lease prohibiting such business--the silence of the lessee was held to be equivalent to a representation that there was no such covenants; or where a person enters into an agreement to grant 7 Cosser v. Collinge, Id. 283. 8 Flight v. Barton, 3 My. & Kee. 282. a lease, and it was stipulated, that the lease should contain "the usual covenants between landlord and tenant, and that the house should not be converted into a school;" it was held to be quite immaterial, whether the intended lessee had or had not notice, that the intended lessors had themselves only a lease; upon the ground that such an agreement amounts to a representation, that, whatever was the tenure under which they held the property, they were at liberty to grant a lease of it conformably to the articles of agreement; and therefore, that a covenant in restraint of trade could not be insisted on. "I consider it," said Sir John Leach, M. R., "to be perfectly clear, that the common and usual covenants between landlord and tenant will not extend to covenants in restraint of trade; and I consider, that a stipulation, that the premises should not be converted into a school, should not be so extended. It was argued, that the stipulation ought to be construed largely, so as to apply to the carrying on of other trades; because, as was said, the business of a school, which was expressly prohibited, was less offensive than many kinds of trade which were not specifically named. I am not, however, of that opinion. Parties, when they enter into agreements, must, as Lord Eldon has laid down, explain their meaning in clear and express terms, and the terms of the agreement must not be left to inference or conjecture." SECT. 4.-LIABILITY OF THE ASSIGNEE OF A LEASE. An assignee may, whenever he pleases, assign again; and the moment he divests himself of the character of assignee, he also shakes off his liability for subsequent rent1, and, unless the transaction be fraudulent, the assignment exonerates him from all claims in respect of rent, even though it be made to a pauper, and for the express purpose of discharging him from his liability 2. It is the same, of course, whether the assignment be of a legal or equitable term3. The reason and the extent of this rule have been very clearly stated by Mr. Baron Alderson4: "An assignee of a term," observes his lordship, "is liable to the covenants only by reason of his privity of estate. The lessor has made no covenant with him,—has given no trust to him. The law, therefore, which imposes on him the liability, directs that it shall continue so long as the privity of estate continues, and no for v. Shum, 8 Barn. & Cr. 486. 2 Harley v. King, 2 C. M. & R. 18. longer. There is no doubt, that a fraudulent assignment is as no assignment at all. If a party assign nominally only, retaining the beneficial ownership all the time, it is fraudulent; because, whilst he assumes to do one thing, he really does another: he retains the benefit; and, by a false act, endeavours to get rid of the burden. But if he assigns really, getting rid of the burden, and giving up really the benefit also (if any) to his assignee, it is not a fraudulent act. His motive for parting with it, or the other's motive for receiving it, is not enough to make it fraudulent, if the act done be a real act, intended really to operate as it And see Tay- appears to do1." The same principle manifestly applies in respect of any other liability created by the lease. As to rent 1 Bos. & P. 21; Paul v. Nurse, which accrued during the period of the assignee's possession, he is, of course, liable at law after the assignment, as he is for breach during that period of any other covenant running with the land. This point, although very clear on principle, appears to have been the subject of a good deal of misconception, for it was thought that, for breaches of covenant incurred during the possession of the assignee, the remedy was in equity, and that there was none at law after his assignment. In a recent case2, arising on a breach of covenant to repair, incurred during the tenancy of the assignee, the error and obscurity, in which the subject had been involved, were cleared away. "By the neglect of the assignee to repair," observes Lord Abinger, "a breach was incurred in his own time, and a right of action thereupon vested in the plaintiff. What is there then to divest that right of action, and to deprive the party of his remedy, his right to which was complete before the assignment? The argument for the defendant established the position that all assignees, by a secret assignment to an insolvent, may divest themselves of all liability for any breach of contract which they may have incurred. The principle of law is, that so long as the privity of estate continues, the assignee is liable upon all the covenants running with the land. If, upon the breach of any such covenant, the lessor may sue him during the continuance of the assignment, what is there to prevent him from bringing his action after the assignment? There may be cases of specific breaches of covenant, where to hold the contrary would be to commit great injustice. If the assignee can free himself by assignment from the liability to make good his own default, is his assignee to be charged with the whole amount; or to whom is the lessor to resort? It can never be contended, that, by an assignment to a beggar, an assignee shall be allowed to free him Dommitt, 6 Flight v. Bentley, 7 Sim. 149. Jenkins v. Portman, 1 Kee. 435. self from his vested liabilities." And hence, on these principles, if the premises should be burned down before the assignee has parted with his interest, he will, under the general covenant to repair, be bound to rebuild them 1. As at law the assignee is Bullock v. liable to the rent and covenants, so it has been held in equity, that the depositary of a lease, who may be considered an equitable assignee, is also liable to the payment of the rent and performance of the covenants; and it makes no difference that he has not taken possession of the premises 2. And upon the same principle it has been held, that the equitable assignee of an underlease is clothed with the obligation to perform the covenants in the underlease, though he is himself the original lessor, and that he cannot set up the non-performance of these covenants against his lessee, as a ground for refusing performance of a covenant in the original lease 3. In a late case, where a lessee had under-demised and leased to A. for a term longer than what he himself had, (and thereby in effect assigned his whole interest), and A. covenanted with him, his executors, administrators, and assigns, to pay the rent to him and them, it was held, notwithstanding the general principle that the rent is incident to the reversion, that A. was bound by his covenant, and that the executor of the lessee could sue him for the rent during the continuance of the lessee's term1. By the 32 Hen. 8, c. 34, it is enacted, "That the grantees of reversions shall have the same advantages and remedies against lessees as the grantor of the lease might himself have had 5:" Sect. 1. upon which it has been held, that the grantee is not entitled to arrears of rent which had accrued due prior to the assignment 6. In respect to liability, there is a material difference between the situation of the original lessee and an assignee, the former always remaining liable on his covenants, till they have been released by the lessor. On an assignment of leasehold property, the assignor is entitled to a covenant for indemnity against payment of the rent and performance of the covenants reserved by and contained in the lease 7. Baker v. Gostling, 1 Bing. N. S. 19. Flight v. Bentley, 7 Sim. 151. 7 Staines v. Morris, 1 Ves. & Bea. 8. SECT. 4.-EFFECT OF BREACH OF COVENANT AT LAW AND any IN EQUITY. On breach of covenant by the tenant, the landlord has, of course, a remedy by action at law for damages. This, however, '6 Mau. & Sel. 121. would frequently, from the nature of the property, or the circumstances of the tenant, be a very insufficient protection to the owner of the property; and therefore, for his more effectual security, it is the universal practice in leases to insert a proviso for re-entry on failure or neglect to pay the rent, or perform the covenants of the lease. By this proviso, it is sometimes declared, that, on such neglect or failure," it shall be lawful for the lessor to re-enter," which gives the lessor the option of avoiding the lease, and bringing ejectment against his lessee;—sometimes that the lease shall become " null and void," the effect of which would seem to be, that the lease should be not voidable only, but absolutely void as against both lessor and lessee; though, as we shall presently see, the courts, on reasoning more plausible than sound, have held this to mean, that the lease shall be void as against the lessor if he choose to make it so, and voidable only as against the lessee; -and sometimes, as in a case which will be presently stated, that the lease shall be " null and void, and that it shall be lawful for the lessor to re-enter;" a declaration, of which the two parts are inconsistent with each other, but which, taken together, have been construed to mean that the lease is voidable at the option of the landlord. Previous to the decision in Rede v. Farr1, it had always been considered that where a person made a lease void in certain events, entry by the landlord was not necessary in order to enforce the forfeiture. Had this sound construction still prevailed, the uniformity of the law would have been maintained, and much litigation and some uncertainty on questions of this kind would have been prevented. In the case adverted to, it was held, that a proviso in a lease for years (whereby the rent was reserved payable on a certain day at the mansion house of the lessor), that, "if the rent should be unpaid for forty days after the day whereon it was reserved, (although not demanded) the lease should be void," did not make the lease voidable by the lessee, by reason of his having overstaid the forty days allowed for payment:-"the Court," said Lord Ellenborough, in delivering judgment, "have looked into the cases and authorities cited, and are of opinion, that the proviso does not vacate the lease entirely, although it does as against the lessee. In this case, as to this proviso, it would be con* Co.Litt. 206.b. trary to an universal principle of law 2, that a party shall never take advantage of his own wrong, if we were to hold that a lease, which is in terms a lease for twelve years, should be a lease de |