The condition against asassignment extend to exe word assigns, and cannot alienate without leave (a), but the point is not very clearly decided. It has been said that it does not appear to have been expressly decided whether assigns of assignees in law are bound (b). It will be seen from what has been said that the word assigns" and the words "executors and administrators" without leave should never be omitted in the covenant or condition should always against alienation; it has been usual to omit it both before cutors, admrs, and since this Act, and in this respect the act respecting and assigns. short forms of leases is faulty, as it extends only to the lessee (c). The omission of the word assigns has arisen from the supposition that under the law in Dumpor's case, assigns never could be bound after license to alienate was once given to the lessee and others, thus destroying entirely, as above explained, the whole condition. No doubt this was so, but what was lost sight of was, that alienation might take place without license, by act of law, and that in such cases the parties so taking would be bound in their turn, if the condition, by use of proper words, extended to them, as has been shown before. Moreover the lessee might have underlet without license, and the reversioner have waived the condition, and whatever might have been the case on an assignment (d), it would seem that the waiver of an underletting did not come within the doctrine in Dumpor's case, but the condition remained applicable to the assignee if named therein (e). What is a As to what will amount to breach of covenant or conbreach of cov-dition not to assign or sublet, the following cases collected assign or sub- in Smith's Leading Cases, will be of service. enant not to let. When the condition was "not to assign, transfer, setover, or otherwise do and put away the indenture of de (a) Thornhill v. Adams, Cro. Eliz. 757, per Walmsley, J.; Shepp. Touch, 145; 1 Dyer 6; Sir W. More's Case, Cro. Eliz. 26; Moore, 44, pl. 136; see also 1 Smith, Lg. Ca. p. 44, 6 ed.; Wms. Exrs. 6 ed. 879, vol. 2. (b) Davidson Conv. vol. 5, 2nd ed. p. 178, note. See ante p. 5, note e, and 3rd report of Real Property Commissioners. (c) See the observations in treating of that Act. (d) See p. 8, note a. mise, or the premises thereby demised, or any part thereof," an under-lease was held no breach of it (a) : so, of an equitable mortgage (b): but a condition not to "sub-let, or assign over the demised premises or any part thereof, comprehends under-leases (c): and a covenant not to “let, sell, or demise for all or any part of the term," assignments. (d). Letting lodgings was held by Lord Ellenborough not to be a breach of condition not to underlet any part of the premises without the license of the lessor (e). The cases are said to be conflicting on the question whether a bequest of the term to another than the executor is a breach of the condition (f). SECTION 3. 3. Where any actual waiver of the benefit of any covenant or Actual waiver condition in any lease, on the part of any lessor, or his heirs, ex- not to extendfurther than ecutors, administrators, or assigns, shall be proved to have taken to the particuplace after the passing of this Act, in any one particular instance, lar instance such actual waiver shall not be assumed or deemed to extend to mentioned, and not to be auy instance or any breach of covenant or condition other than deemed a genthat to which such waiver shall specially relate, nor to be a general eral waiver. waiver of the benefit of any such covenant or condition, unless Imp. Act 23, an intention to that effect shall appear. 24 V., c. 38. s. 6. waived. This section pre-supposes that theretofore, if the rever- Waiver, effect sioner waived a breach of covenant or condition, giving a of, restrained to the partiright of re-entry, it was not merely a waiver pro hac vice, cular matter but that the whole was gone, and that if there were a right of forfeiture on breach of any one of several matters or covenants, a waiver of a breach of any one would extend to any instance or any breach of covenant or condition other than that to which such waiver specially relates," (a) Crusoe v. Bugby, 3 Wils. 234. (b) Exp. Drake. 1 M. D. & De G. 539; Doe v. Hogg, 4 D. & R. 226. (c) Roe v. Harrison, 2 T. R. 425; Roe v. Sales, 1 M. & S. 297; Doe d. Holland v. Worsley 1 Camp. 20. (d) Greenaway v. Adams, 12 Ves. 395. (e) Doe v. Laming, 4 Camp. 73. (f) See Cole Eject 437; see also 1 Smith Lg. Ca. 6 ed. p. 43, This section framed in misconception of the law. ers. If this were so, then differ in their conse so as to preclude a forfeiture on breach of any other mat- The question whether the law is as the Act assumes it to be, is one of considerable practical importance in regard to those cases to which the Act does not relate; and as it only The act ap applies to cases of actual or express waiver, it would seem plies only to that those of implied or constructive waiver (by far the actual, not to implied waiv- most common), arising out of conduct or acts inconsistent. with the right to insist on a prior forfeiture, such as receipt, with notice of the right to forfeit, of after accrued due rent, are not provided for by the Act. Where the reversioner sues for or receives such rent, quâ rent, with knowledge of the breach committed, this is not an actual or express waiver, as would be the case if he in writing or by parol abandoned his right to forfeit; but it is construed as a waiver of such right by implication, arising out of the fact that he has treated the lease as subsisting, and is estopped by this matter in pais from asserting the contrary, and treating the tenant as a trespasser. The language of the Imp. Act 7 Geo. IV. ch. 29, sec. 4, is much as this section, and it seems clear that in that section, the words "actual waiver" exclude implied waiver; for sec. 1 gives instances of actual (a) Jarman Conv. by Sweet, vol. 4, p. 377, and see p. 379, where when a lessor is willing to allow an assigment pro hac vice only provided it do not extend to destroy the condition restraining it as to the future, it is recommended that he agree to waive the forfeiture. Smith Real Prop. 3 ed. 72; Cole Eject. 409; Burton 853; Platt Covenants, 428; Dumpor's case, 1 Smith Lg. Ca. 6th ed. 42; 1 Wms. Saund. 288; Davidson Conv. vol. 5, 2 ed. 179; Doe v. Pritchard 5 B. & Ad., 781, per Patterson J.; Dowell v. Dew, 1 Y, & C C. C. 366; Lloyd v, Crispe 5 Taunt, 257, waiver in writing; sec. 3 alludes to actual waiver by parol and also to constructive waiver. The section of the Imp. Act from which ours is copied was taken from this Act of Geo. IV. If the act does not apply to implied waivers, and if the law is as the act assumes it to be, then a landlord must insist on the forfeiture, under the penalty, if he receives subsequent rent, of loss of right of re-entry on any subsequent breach of the same or any other contract giving right of forfeiture. SECTION 4. ment of con tain cases. 4. Where the reversion upon a lease is severed, and the rent or other reservation is legally apportioned, the assignee of each part Apportionof the reversion shall, in respect of the apportioned rent or dition of reother reservation allotted or belonging to him, have and be enti- entry in certled to the benefit of all conditions or powers of re-entry for nonImp. Act 22, payment of the original rent or other reservation, in like manner 23 V., c. 35, as if such conditions or powers had been reserved to him as inci- s. 3. dent to his part of the reservation (a) in respect of the apportioned rent or other reservation allotted or belonging to him. This section, is taken from the Imp. Act 22 & 23 Vic. c. 35, and the principle on which it proceeds is recognized in the Imp. Acts 12 & 13 Vic. c. 49, and 17 & 18 Vic. c. 32, and the Lands Clauses Act, sec. 119. ance of the reversion. What is meant by severance of the reversion, is the case of conveyance by the reversioner of part of the lands; as on does not apa lease of two acres and a conveyance of one. The case of ply to conveya conveyance of the whole lands for part of the reversion, whole land as where a reversioner in fee should convey all the lands to for part of the one for life, is not within this act. Such a case is provided for by 32 H. VIII. c. 34, under which grantees of reversions are entitled to the same benefit of a condition as their grantors would have had, provided it relate to payment of rent, restriction from waste, or other object tending to the benefit of the reversionary estate. Con. Stat. U. C. c. 90, authorizing conveyance of rights of entry, does not apply to (a) Thus in the Statute, should be reversion. Com. Law rights of entry for condition broken, as is explained in treating of that Act. It was before explained (a) that at Common Law a conrules, indivisi- dition is indivisible, and the party claiming the benefit of bility of conditions. a condition giving right of entry, must not have precluded himself from right to re-enter on the whole property. If he have released part of the property from the condition, or conveyed the reversion of part to a stranger, the condition is destroyed in toto; otherwise a lessee might be subjected to several rights of entry by several owners on several parts of the property. The consequence of the Common Law rule was very inconvenient, and this section relieves, so far at least as regards remedy for "rent or other reservation." tion of a con feasance. Course adoptThe mode adopted to give right of re-entry on non-payed on destruc- ment of rent or non-performance of covenants, when the dition was to condition of re-entry was destroyed by severance of the revive it by reversion, or by license given to commit the breach, was by executing a deed of de- execution, at the time, of a collateral deed of defeazance reviving the condition, as before explained (b). As the Act (on ample grounds) preserves the benefit only of conditions quoad "rent or other reservation," and would not extend to conditions of re-entry for breaches of covenants which did not so relate, as for instance to repair, it will still be feasance still requisite, if the conditions are to continue in regard to such breaches, that a deed of defeazance should be resorted to. As the act only extends to preserve remedies as to rent, a deed of de requisite to preserve other reme dies. The rent must be apportioned. The rent or other reservation must be legally apportioned. The apportionment may be by act of law or act of the parties. Apportionment by act of law takes place where the amount of rent has been settled by a jury in a suit beMode of ap- tween the parties concerned in the rent; that by act of the portionment. parties, is on consent of all interested in the term and the reversion (c). (a) Ante. pp. 2 & 3. See also Shelford Statutes 7 ed. p. 685. (b) Ante p. 3 remarks on ss. 1 & 2. (c) Bliss v. Collins, 5 B & Ald. 876. See also as to apportionment, notes to Clun's Case, Tudor's Lg. Cases, Rl. Prop. 2 ed. 240. |