payable by twenty or fewer annual instalments, and be of no benefit to the lessee whose lease might be shortly expiring the annual assessment might be more than the rent.

By the Manchester Improvement Act, 1851, 14 & 15 Vic., ch. 119, the council were empowered to order streets to be sewered and paved by the owners of the adjoining premises, and, in case of default by such owners, to do the work themselves, and to charge the respective owners with their proportionate parts of the expense thereof, to be recoverable by action of debt, &c., and, by way of additional remedy, the council were empowered to require payment from any present or future tenant or occupier, to be levied by distress, and it was made compulsory on the owner to allow such payments to be deducted from the rent. In 1863, premises in G. Street were demised by the plaintiff to the defendant for seven years, at the "clear yearly rent" of £90, the latter covenanting that he would "pay and discharge, all taxes, rates, assessments, and impositions whatever (except property-tax) which during the term should become payable in respect of the demised premises." In 1865, the council gave notice to have G. Street sewered and paved. The plaintiff neglecting to do the required work, the council caused it to be done, and assessed his proportion of the expense at 2131. 3s. 6d., which he paid; it was held that, the payment having been made by the plaintiff, not for a rate, assessment or imposition which had become payable in respect of the demised premises, but for the breach of a duty imposed on him by the Act of parliament, he was not entitled to call upon the defendant under his covenant to repay him the amount. Bovell, C. J., in giving judgment distinguished as to Sweet v. Seager, 2 C. B. N. S. 119, saying, "looking at the language of the covenant in that case, it is almost impossible to conceive how larger words could have been employed. The reddendum there was, paying a certain yearly rent, 'without any deduction whatsoever in respect of any taxes, rates, assessments, impositions, or other matter or thing whatsoever then already or thereafter to be taxed, assessed, and imposed upon or in

Does the agreement

that the lessor

respect of the said premises, or any part thereof, by authority of parliament, or otherwise howsoever;' and the covenant, that the tenant should 'pay, bear, and discharge all such parliamentary, parochial, and county, district, and occasional levies, rates, assessments, taxes, charges, impositions, contributions, burthens, duties, and services whatsoever as during the said term should be taxed, assessed, or imposed upon, or in respect of, the said premises thereby demised, or any part thereof.' All the Judges, in dealing with the case, refer to the very large and comprehensive language of the covenant. The words, 'burthens,' 'duties,' and 'services,' are especially relied upon. Cockburn, C. J., says: It clearly was the intention of the original landlord, and also of the lessor, that the tenant should bear the landlord harmless against all charges of a general local character imposed upon or in respect of the premises. And Creswell, J., lays stress upon the evident intention of the parties that the lessor should receive a certain sum wholly independent of any taxes or assessment of every description or upon any account.' Regard being had to the language and the general object of the Statute, and to the restricted terms of this covenant, I am clearly of opinion that the payment in question must fall upon the landlord and that the tenant is not liable" (a).

As regards the covenant giving license to enter and view state of repair it reads thus: "it is agreed that it may enter and shall be lawful for the lessor and his agents to enter, &c.," view extend and the Statute declares that where the premises are to his representatives and of a freehold nature, the covenant shall be taken as made his assigns? with the heirs and assigns of the lessor, and if of a leasehold nature, with his executors, administrators and assigns. But the covenant, and the power given by, or subject matter of, the covenant, are quite distinct, and it by no means follows that because the lessee covenants with the lessor, his heirs and assigns, that the lessor may enter, that therefore his assigns may: the wide distinction between the parties with whom the covenant is made, and the parties

(a) Tidswell v. Whitworth, L. R., 2 C. P. 334.

to whom a power may be given by such covenant, will be more apparent by supposing the case of a covenant with the lessor and his heirs and assigns that some third person might enter, where clearly neither the lessor, his heirs or assigns, could enter. The view that the heirs and assigns of the lessor cannot enter under the covenant given by the Act is also favored by the fact, that as to the agreement and proviso for re-entry on breach of covenants on which the lessor is to have power to re-enter, the Act expressly declares that the proviso and agreement shall apply to the heirs and assigns of the lessor. The only principle under which the benefit of the license can be extended to assigns is, that it appertains to the land, and goes with the reversion, and that as the benefit of covenants as to acts agreed to be done by the lessee directly affecting the land will go to assignees of the lessor, though not named, so also will it be as to acts agreed to be permitted to the lessor to be exercised on the land.

For somewhat the same reasons, the covenant against Covenant not alienation is defective as not extending to restrain the to assign not sufficiently executors adininistrators and assigns of the lessee. The extensive. only effect of the covenant as it now stands is, that the lessee agrees with the lessor, his heirs and assigns, or executors, administrators and assigns, that he, the lessee, will not assign, &c. (a). It is framed on the supposition that according to Dumpor's case, if once license. were given, the benefit of the condition of re-entry on future assignment without leave is gone, the condition being destroyed (b), and therefore that it would be useless to attempt to carry the restraint beyond the lessee. Admitting that on license given before the Act of 29 Vic. ch. 28, the right of re-entry was gone forever, there were still cases under which the estate would pass without license, by act of law, as to personal representatives, to a purchaser under execution, and to assignees in bankruptcy; and it appears that such representatives, or a purchaser under

(a) Paul v. Nurse, 8 B. & C. 488, per Bailey, J. (b) Ante pp. 5, 6.

execution, and a purchaser from assignees in bankruptcy, would be within the covenant, if it were not confined to the lessee. Again it would seem that mere waiver of a breach would not have destroyed the right of entry on subsequent breach (a). Since the Act of 29 Vic ch. 28, no license thereafter will destroy the right of re-entry, which is preserved for operation on future breaches, and this is an additional reason why the covenant should include personal representatives and assigns. The operation of the covenant as given by this Act, and the effect of waiver and of license, are fully considered in treating of the Stat. 29 Vic. ch. 28, secs. 1, 2 & 3, to which the reader is referred.

(a) Ante pp. 7, 8.

Descent of Freehold Estates of Inheritance (a).

extend to es

the heir under

As the Statute of Victoria, which governs descent at the The Act of present day, does not apply to estates tail, nor by section Vic. does not 41 to "any limitation of any estate by deed or will, or any tates tail, or estate, which although held in fee simple, or for the life of estates held ir. another, is so held in trust for any other person," and as s. 46' gives trust, and by also by section 46, preference on partition and division into preference to shares is given to the person who would have inherited the old law. under the former law, it will be requisite to give a brief sketch of that law. It will be found also that for some years to come, and until by possibility of the application of the Statute of Limitations to titles, by which after the prescribed period of possession, a "parliamentary conveyance" (b) is in effect made to the possessors as against the true owners, and the necessity of tracing out old descents. superseded, that a knowledge of the former law is absolutely requisite in dealing with real estate. Probably at the present day, as many contested cases of descent are governed by the Statute of William as by that of Victoria, and the former Act cannot possibly be understood without a knowledge of the common law rules, which indeed, were left partially in force by the latter Act.

Of the devolution of estates less than freehold it is not proposed to treat, as they now are and have always been subject to laws of descent different from those applicable to freehold estates, they being mere chattel interests and devolving in cases of intestacy, on the personal representa

(a) In treating of descent at common law, the author has borrowed much from the text of Blackstone. The Statute of William cannot be understood without an appreciation of the common law rules, and the remarks of the learned Commentator on the civil law, and on the rules of computation of consanguinity are of service in considering the present law of descent under the Act of Victoria.

(b) Per Parke, B. Doe d. Jukes v. Sumner, 14 M. & W. 39.