29 VIC. CH. 28. An Act to amend the law of Property and [Assented to 18th September, 1865.] This Act is taken from the Imperial Acts of 22 and 23 Vic. ch. 35, and 23 and 24 Vic. ch. 38. SECTIONS 1 & 2. license con c. 35, s. 1. 1. Where any license to do any act, which, without such li- Restriction cense, would create a forfeiture, or give a right to re-enter, under on effect of a condition or power reserved in any lease heretofore granted, tained in lease, or to be hereafter granted, shall at any time after the passing of &c., Imp. Act this Act, be given to any lessee or his assigns, every such license 22, 23 Vic., shall, unless otherwise expressed, extend only to the permission actually given, or to any specific breach of any proviso or covenant made or to be made, or to the actual assignment, underlease, or other matter thereby specifically authorized to be done, but not so as to prevent any proceeding for any subsequent breach (unless otherwise specified in such license); and all rights under covenants and powers of forfeiture and re-entry in the lease contained, shall remain in full force and virtue, and shall be available as against any subsequent breach of covenant or condition, assignment, under-lease, or other matter not specifically authorized or made dispunishable by such license, in the same manner as if no such license had been given, and the condition or right of re-entry shall be and remain in all respects as if such license had not been given, except in respect of the particular matter authorized to be done. 2. Where in any lease heretofore granted or to be hereafter Restricted granted, there is or shall be a power or condition of re-entry on operation of assigning or under-letting or doing any other specified act with- partl.licenses. Imp. act 22, out license, and a license at any time after the passing of this 23 V., c. 35, Act shall be given to one of several lessees or co-owners to assign s. 2. or underlet his share or interest, or to do any other act prohibited to be done without license, or shall be given to any lessee or owner, or any one of several lessees or owners, to assign or Dumpor's case:-des underlet part only of the property, or to do any other such act as aforesaid in respect of part only of such property, such license shall not operate to destroy or extinguish the right of re-entry in case of any breach of the covenant or condition by the co-lessee or co-lessees or owner or owners of the other shares or interests in the property, or by the lessee or owner of the rest of the property, (as the case may be), over or in respect of such shares or interests or remaining property, but such right of re-entry shall remain in full force over or in respect of the shares or interests or property not the subject of such license. It was to remedy the law as laid down in Dumpor's case truction of en- (a) and the decisions thereon that these enactments were tire condition made. The result of that case was to establish, that when on license of in a lease a right of re-entry was reserved to the lessor any breach. on the lessee assigning without license, and the lessor granted a license to assign in any one particular case, such license satisfied or dispensed with the condition entirely, so that afterwards an assignment might be made without license, and no forfeiture be incurred. And this would be so, even though the license were to assign to a particular individual with an express stipulation therein that it should extend no further, and should not warrant future or other assignments. It was supposed also that, if there were other covenants besides that not to assign without leave, and the condition gave power to re-enter on breach of any one of them, the license not to observe any one COvenant dispensed with the condition not only on breach of that one, but as to all. So also, if the reversioner licensed one of several lessees to assign his interest in the whole, this dispensed with the condition as to all and as the condition cannot be divided or apportioned by act of the parties, an alienation of part of the land with the assent of the lessor determined the condition as to that part, and therefore as to all the lands. Further, where the lessor severed his reversion by conveyance, the assignees of part could not enter for breach of the condition, for by sever (a) 4 Coke 119; 1 Smith Lg. Ca. : ance of part of the reversion, the condition was destroyed in all (a). The principle throughout the above was that the condition as originally created was entire and indivisible, and if part of it were destroyed, the whole perished. is not confined The Real Property. Commissioners, in their third report The doctrine on the subject, say—“It has not, so far as we are aware, to conditions been decided that this doctrine applies to any other cove- against aliennant or condition than that against alienation (b); but it ation. would seem to be equally applicable on principle to covenants and conditions restrictive of carrying on particular trades, or converting land from pasture to arable, and to all covenants and conditions by which the license or consent of the lessor is made requisite for doing any particular act." No form of words contained in the license, as that it Course adoptshould only extend to that particular person or occasion, the condition ed to revive and should not operate as a total waiver of the condition, on license. but that the same should be in force on future breach, would prevent the condition from being destroyed (c). As terms of years may be made voidable by a defeasance made at any time after their creation, the course adopted when it was desired to give the license and yet have the benefit of the condition on future breaches, was to execute a collateral deed of defeasance reviving the condition and making it applicable to future breaches. This however requires the consent of all those who were parties to the creation of the estate, or in whom the respective estates and interests of such parties are vested at the time of execution of the defeasance (d). It may be necessary still to adopt this course on license to omit to do an act, the non-performance of which would create a forfeiture, because the act does not appear to extend to such a case, as will now be explained. (a) Sugd. Stats. 2 ed. 310. See further, the remarks post under sec. 4. (b) See, however, this subject adverted to by Lord Eldon in Macher v. The Foundling Hospital, 1 V. & B. 191. (c) Mason v. Corder, 7 Taunt 9, per Gibbs, C. J. (d) Watkins Conv. 9 ed. 41, note; Shepp. Touch, 396; 3 Byth. & Jar. Conv. by Sweet, 683, act, not to leave an act undone. The act only It is apprehended that the principle in Dumpor's case would applies to license to do an apply, as well to a license not to do an act, the doing of which is enjoined under penalty of forfeiture, as to the doing an act which if done without license is a forfeiture. The act extends however only to the latter (a), and there is equal necessity that it should apply to the former, if within Dumpor's case. There are frequently covenants under which the lessee agrees to do various acts, the nonperformance of which gives right of re-entry, and it may be unsafe to dispense with the performance of any such covenant. Does the act The Act does not expressly extend to executors and extend to a license given administrators, though generally they are named, as well to executors ? as assigns, when intended to be included. The Act speaks only of a license given to a "lessee and his assigns." It would seem, however, that for the purposes and on the construction of this Act at least, the word "assigns" will include personal representatives as assignees in law (b). works no forfeiture. If the Act does not extend to personal representatives, then, where they are named in, and so bound by the condition, a license to them to assign would operate as at common law, as above mentioned, to destroy the whole right of re-entry. Assignment As a general rule, an assignment by operation of law by act of law works no forfeiture, though without license, as to personal representatives (c), and to assigns in bankruptcy (d); but if the lessee became bankrupt voluntarily on his own petition, it might be different (e): nor does an assignment by a sheriff under execution (ƒ); but where a tenant gave (a) As to the distinction between positive and negative covenants, see Doe v. Marchetti, 1 B. & Ad. 715; Doe v. Stevens, 3 B. & Ad. 299. (b) Post p. 6, note a. (c) 2 Wms. Exrs. 6ed. 879. (d) Doe v. Bevan, 3 M. & S. 353; Wadham v. Marlowe, 2 Chitty, 600. (e) Hill v. Cowdery, 1 H. & N. 360; Billiter v. Young, 6 E. & B. 1; Holland v. Cole, 1 H. & C. 67; Cole Eject. 436, 437; Wooodfall Ld. & Ten. 554, 9th ed.; and Davidson Conv. 2 ed. vol. 3, pp. 88, 89, 90. (f) Doe Mitchinson v. Carter, 8 T. R. 300; see also Croft v. Lumley, 6 H. L. Ca. 672. a warrant of attorney to a creditor for the express purpose of enabling such creditor to take the lease in execution, this was held to be in fraud of, and a breach of the covenant not to assign (a). Acquisition of the term by a man by virtue of his marital right on marriage with a female lessee, is no forfeiture (b). From all this, therefore, it арpears that assignment by act of law will not work a forfeiture; such, however, may be so by use of proper language in the lease. The question now has to be considered, how far assignees How far asin law are bound by the restraint against alienation, when signees in law and their asonce the estate has by act of law vested in them; and also signs bound. how far their assignees, or assignees in deed, are so bound. Assignees in deed are or are not bound, according as they are or are not named in the covenant (c). Assignees in bankruptcy are not bound, and may alien without leave, though the covenant extend to assigns (d); and if the covenant does so extend, the purchaser from the assignee in bankruptcy, it seems, would be bound (e). The same observations apply where the term is sold under execution. As regards executors or administrators, if the covenant extend merely to restrain the lessee, they can assign without leave (f), but if named, they cannot (g). If the covenant extends only to restrain the "lessee and his assigns," it would seem the personal representatives are within the (a) Doe v. Carter, supra. (b) Anon, Moore, 21. (c) Doe v. Smith, 5 Taunt, 795; Paul v. Nurse, 8 B. & C. 489, per Bailey J.; Bally v. Wells, 3 Wils. 33; Williams v. Earle, L. R. 3 Q. B. 739. (d) Doe v. Bevan supra, but see the remarks in 1 Smith Lg. Ca. 6 ed. p. 44. (e) This may be inferred from Doe v. Smith, 5 Taunt, 795; Paul v. Nurse, 8 B. & C. 486, per Bailey, J.; Williams v. Erle, supra; see also Lloyd v. Crispe, 5 Taunt, 249; Weatherall v. Geering, 12 Ves. J. 511; but see the third report of Real Property Commissioners, given in 1 Davidson Conv. 3 ed. 132, 133; and see vol. 5, ed. 2, p. 178, note. (f) Lloyd v. Crispe, 5 Taunt. 249; Anon, Moore, 21; Seers v. Hind, 1 Ves. Jun. 295; but see 2 Wms. Exrs. 6 ed. 880. (g) Lloyd v. Crispe, supra; Roe d. Gregson v. Harrison, 2 T. R. 425. |