AND MA- less, and these presents are upon the express condition, that MANUFACTORY if it shall happen that the said yearly rent hereby reserved, or any part thereof, shall be behind or unpaid by the space of twenty-one days next over or after any of the said days whereon the same ought to be paid, (whether the same shall 2 Roll. Abr. 139, F. pl. 2, commented on 1 Hawk. P. C. c. 75, s. 10, p. 199); sulphur, vitriol, and aqua-fortis works; (Rex v. White, 1 Burr. 333); a slaughterer of horses. (Rex v. Cross, 2 Car. & Pay. 483; Rex v. Watts, Id. 486). And to support an indictment, (and a fortiori an action for a nuisance,) it is not necessary that the smells produced should be unwholesome; it is enough if they be offensive to the senses, so as to render the enjoyment of life and property uncomfortable. (Per Lord Mansfield, 1 Burr. 337; Rex v. Neil, 2 Car. & Pay. 485). A contrary doctrine seems to have been held in the case of an indictment, in The King v. Davey, 5 Esp. 217, where coke-ovens were held not to be indictable unless they injured health, but the former is the better opinion. There can be no doubt that a coke-oven is a private nuisance. (See the cases previously cited; and see, too, further, as to the distinction between a public and private nuisance, The King v. Lloyd, 4 Esp. 200). It is said that a brewhouse and a sugar-house are not nuisances. (18 Ves. 217; 1 Sim. & Stu. 68). Courts of equity have a jurisdiction to restrain nuisances by in- Injunctions to junction, whether they be public or private; but the jurisdiction is restrain. exercised with great caution, until the alleged nuisance has been established to be so by indictment or action at law. (The AttorneyGeneral v. Cleaves, 18 Ves. 211, relating to a soap and black ash manufactory; Crowder v. Tinkler, 19 Ves. 617, relating to a powder mill; see, too, 1 Dick. 163, 175). In the Duke of Grafton v. Hilliard, cited 18 Ves. 219, the court refused to restrain the defendant from burning brick earth in the neighbourhood of dwelling-houses, observing that the manufacture of bricks, though near the habitations of men, if carried on for the purpose of making habitations for them, is not a public nuisance. This case can, however, hardly be considered to decide that an action might not be sustained for the burning of bricks; and, on the authority of the cases above cited, it would seem that brick burning must be a private nuisance, as there can be no doubt that it is offensive to the senses. And, at all events, the burning bricks for sale, to be used elsewhere than in the immediate neighbourhood of the kilns, would be a nuisance. See further, with regard to the jurisdiction of the courts of equity in cases of nuisance, The Earl of Ripon v. Hobart, 3 My. & Ke. 169; Squire v. Campbell, 1 My. & Cra. 459; Attorney-General v. Forbes, 2 My. & Cra. 123; Spencer v. The London and Birmingham Railway, 8 Sim. 193; and the various cases cited in those here referred to. AND MA- MANUFACTORY have been demanded or not) (c), or in case they the said C. D. and E. F., their executors, administrators, or assigns, shall not well and truly observe and perform all and singular the covenants, conditions, and agreements hereinbefore contained, and on their parts to be observed and performed, then, and in either of the said cases, it shall be lawful for the said A. B., his heirs or assigns, into the said premises hereby demised, or any part thereof in the name of the whole, to re-enter, and the same to have again, repossess, and enjoy as in his and their former estate, anything herein contained to the contrary notwithstanding: AND THE SAID A. B. doth hereby for himself, his heirs and assigns, covenant with the said C. D. and E. F., their executors, administrators, and assigns, that they the said C. D. and E. F., their executors, administrators, and assigns, paying the rent hereinbefore reserved at the times and in manner hereinbefore appointed, and observing all and singular the covenants, conditions, and agreements herein contained, and on their parts to be observed and performed, according to the true intent and meaning of these presents, shall and may peaceably and quietly have, hold, use, occupy, possess, and enjoy the said messuages, lands, hereditaments, articles, things, and premises hereby demised during the said Covenant by the lessor for quiet enjoyment. Propriety of dispensing with any demand before a reentry for nonpayment of rent. (c) The insertion of this stipulation in the proviso for re-entry is strongly to be recommended. (See supra. p. 68, n. (k)). There can be no doubt of the power of the parties to dispense either with the formalities of legal demand, or with any demand at all. (Dormer's case, 5 Co. Rep. 40; Goodright, lessee of Hare, v. Cator, 2 Doug. 477; Rede V. Farr, 6 Mau. & Sel. 121). The words, "although no formal or legal demand shall be made for payment thereof," were considered to dispense with all demand. (Doe d. Harris v. Masters, 2 B. & C. 490 ; S. C. 4 Dow. & Ry. 45). Although the power of re-entry is exercisable on breach of any of the covenants, as well as on non-payment of rent within twenty-one days after its becoming due; and one of the covenants is for payment of rent, without any reference to the delay of twenty-one days, yet there can be no doubt that the covenant is qualified by the proviso, so as to preclude a re-entry, for breach of that covenant, till the expiration of the twenty-one days. (Smith v. The Earl of Jersey, 2 Brod. & Bing. 473; S. C. on appeal, 3 Bligh, 290). It would be more accurate to except the covenant for payment of rent in giving the power of re-entry for breach of covenants, but such is not the usual practice. term of AND MA- -and that lessees may purheritance at a chase the in fixed sum on giving notice to that effect before a certain day. years hereby granted, without the lawful let, MANUFACTORY suit, denial, eviction, or disturbance of him the said A. B., his heirs or assigns, or of or by any persons or person lawfully or equitably claiming or to claim by, from, through, or under him, them, or any of them: AND FURTHER, THAT if they the said C. D. and E. F., their executors, administrators, or assigns, shall be desirous at any time, during the continuance of the said term hereby granted, and before the day of, to purchase the fee-simple and inheritance of the said messuages, lands, tenements, and hereditaments hereby demised, together with the several steamengines, machinery, pipes, apparatus, fixtures, articles, and things specified in the said schedule hereto, and every thing then upon or affixed to the said premises, at or for the price or sum of £. and of such their desire shall give to the said A. B., his heirs or assigns, six calendar months' previous notice in writing, such notice to expire on some day of or day of that then and in such case, he the said A. B., his heirs or assigns, shall and will, at or before the expiration of such notice, at his and their own costs and charges, make out and deliver to the said C. D. and E. F., their executors, administrators, or assigns, an abstract of the title to the said hereditaments and premises, and upon payment of the said principal sum of £, together with interest thereon at the rate of 57. per cent. per annum, from the expiration of such notice until the day of payment, and after payment of all rent then accrued due under or by virtue of the reservations herein before contained, well and effectually convey and assure, or cause to be conveyed and assured by all necessary parties, all and singular the said hereditaments and premises and the inheritance thereof in fee-simple (together with the articles and things aforesaid) unto the said C. D. and E. F., their executors, administrators, or assigns, or as they shall direct: PROVIDED ALWAYS, and it is hereby agreed and declared between and by the said parties to these presents, that the said C. D. and E. F., their executors, administrators, or assigns, shall accept such title to the fee-simple and inheritance of the said hereditaments and premises, as the said A. B. his heirs or assigns, shall or Lessees to accept such title as the lessors may have. AND MA CHINERY. Agreement as to the expenses attending the purchase. MANUFACTORY may then have, without any objection thereto on any account whatsoever: AND THAT all expenses of and attending the investigation of the said title, and all attested or other copies of deeds, wills, or other documents, and all deeds of covenant for production of deeds, and assignments of terms, and all certificates and evidences of title whatsoever, and all other expenses attending the said purchase and conveyance, (except the expenses of making out and delivering the said abstract of title,) shall be borne and paid as to the sum or amount of £- by the said A. B., his heirs or assigns, and as to the entire residue thereof by the said C. D. and E. F., their executors, administrators, or assigns (d). IN WITNESS &c. As to giving an option to the lessee to purchase the fee. (d) Where the terms of a power of this nature were, " that if the lessee, his executors, administrators, or assigns, should be desirous to purchase the premises within six years, he, his executors, administrators, or assigns, should pay to the lessor, his heirs or assigns, £upon having a good title made to him, [the lessee], his executors, administrators, or assigns," and the lessee declared, after the death of the lessor, his option to purchase, it was held that the rents, until the declaration of the option, belonged to the heir, but that immediately upon such declaration, the property, as between the real and personal representatives of the lessor, was converted into personalty, and the purchase-money belonged to the personal representatives. (Townley v. Bedwell, 14 Ves. 591; see, too, Wright v. Rose, 2 Sim. & Stu. 323). It was held, too, that, from the time of the declaration, the rents belonged to the lessee, and that he must thenceforth pay interest on his purchase-money to the personal representatives of the lessor. (Townley v. Bedwell, ubi supra.) If the option to purchase were declared after the death of the lessee, by his executors or administrators, the estate would, it is conceived, form part of the personal estate of the lessee; but if the option were given to the "lessee, or his heirs," it might be considered that the heir would be entitled to have the estate purchased for him out of the personal estate of the lessee, and to have the lease surrendered to him by the executors or administrators. The option should, however, be always given to the "lessee, his executors, administrators, or assigns." As to how far options of this nature are personal, or are annexed to the land, some judgment may, perhaps, be formed from the cases of Roe d. Bamford v. Hayley, 12 East, 464; Simpson v. Clayton, 4 Bing. N. C. 758, 780. of HAZARDOUS. special Provisions for INSURANCE against FIRE, TORIES TO BE Recital of ori ginal lease, and ment to the present lessor. of its assign THIS INDENTURE, made &c. BETWEEN A. B., of Parties. &c. [lessor], of the one part; and C. D., of &c. [lessee], of the other part: [Recital of lease from the Master, Wardens, and Commonalty of &c., to E. F., G. H., and A. B., their executors, administrators, and assigns, for the term years. (See the form, ante, Vol. 3, p. 333),—and of release by E. F. and G. H. of their interest to A. B., his executors, administrators, and assigns:] AND WHEREAS Agreement for the said A. B. hath contracted and agreed with the said C. D. to grant him an underlease of the said premises for the term, at the rent, and under and subject to the covenants, conditions, and agreements hereinafter granted, reserved, and contained (a): NOW THIS INDENTURE Witnesseth, WITNESSETH, that, in consideration of the rents here- Consideration. inafter reserved, and of the covenants, conditions, and lease. (a) An underlease need not contain a recital of the original lease, As to recital in unless there are circumstances which render a reference to it unavoid- underlease of original lease. able. The rules and precautions to be observed in preparing underleases will be stated in the first volume of this work, Art. LEASES. |