FIXTURES. an inventory of the fixtures, or of fixtures of certain specified classes, and that the lessee shall deliver them up in good condition, &c., to the lessor at the end of the term. lease. 265 In the case of a farming lease, it is rarely necessary to Farming provide for the delivery up of the fixtures in the farmhouse, the value of which is generally small; the important thing is to provide for the state in which the ground is to be left as regards cultivation. Formerly it was necessary to state what manures, &c., are to be paid for on the determination of the lease; but this is now provided for by the Agricultural Holdings (England) Act, 1883 (46 & 47 Vict. c. 61). In leases of mines and quarries, the stipulation generally Mining is that all works or erections of a permanent nature, such as buildings, railways, and watercourses, shall be delivered up in good repair; while pumps, machinery, and working plant are generally to remain the property of the tenants, with an option on the part of the landlord to purchase them at a valuation. lease. underlet. (0) The covenant not to assign or underlet is intended Not to assign or to prevent the premises falling into the possession of an insolvent or man of bad character. In cases where the property comprised in the lease is adjoining to other property of the lessor, it may be of great importance to him to have a veto on the occupation of the premises by any person whom he dislikes, or whose business he objects to, and so in other cases, such as the lease of a farm, where the manner in which the occupier uses the property may be of importance to the lessor. This can be effected by inserting a covenant on the part of the lessee "not to assign or underlet the premises without the consent in writing of the lessor" (8). The covenant should extend to the assigns of the lessee, as otherwise it is doubtful whether they will be bound by it. (See Williams v. Earle, L. R. 3 Q. B. 739; West v. Dobb, (8) The Court cannot relieve the lessee against forfeiture for breach of this covenant (Barrow v. Isaacs (1891), 1 Q. B. 417; Eastern Telegraph Co. v. Dent (1899), 1 Q. B. Underletting. Deposit of lease by way of L. R. 4 Q. B. 631 note, L. R. 5 Q. B. 460; see the observations in 1 Sm. L. C. p. 69.) Unless there is an express condition to the contrary, a provision against payment of a fine for the licence to assign is implied; C. A. 1892 (55 & 56 Vict. c. 13), s. 3. The following points have been decided upon the construction of the covenant (5 Dav. Prec. 193 et seq.) : First, that if the covenant is not to assign, underletting is not prohibited. (Crusoe d. Blencowe v. Bugby, 2 Wm. Bl. 766.) (t). Second, that the covenant not to assign or underlet is not broken by the deposit of the lease by way of equitable mortgage. mortgage. (Doe d. Pitt v. Hogg, 1 Car. & P. 160.) In this case the mortgagee holds a security of very doubtful value. If, however, the lease be a head-lease, out of which underleases have been granted with the licence of the lessor, a security may be created in the manner following: The lessee deposits the lease with the mortgagee and simultaneously executes a deed, containing the ordinary mortgage covenants, by which he appoints the mortgagee his attorney, with power to appoint a substitute, to collect the rents. Trusts are declared of the rents similar to those contained in a common receivership deed (ante, p. 172), with the exception that, if default is made in payment of the principal after notice requiring payment, the mortgagee is to be entitled to apply the surplus rents in payment of the principal after keeping down the interest. The outline of the deed above given is similar to that indicated in 6 Bythewood by Sweet, 405. Lease taken in execution. Third. The restriction against assignment does not apply so as to cause a forfeiture on the lease being taken in execution (Doe v. Carter, 8 T. R. 300), or on the bankruptcy of the lessee; and the trustee in bankruptcy can sell without (t) Where partners are lessees, it is not clear that an assignment by one of his share to the other is a breach of covenant. It was decided to be a breach in Varley v. Coppard, L. R. 7 C. P. 505; but see the remark of Jessel, M. R. Corp. of Bristol v. Westcott, 12 Ch. D. at 465. LEASE TAKEN IN EXECUTION. 267 bankruptcy can sell licence. of female lessee. refused ar licence (Doe v. Beavan, 3 M. & S. 353); but the proviso for Trustee in re-entry is sometimes framed so as to make the lease determinable on its being taken in execution, or on the bankruptcy without of the lessee, his executors, administrators, or assigns. The marriage of a woman before 1883, by which the term Marriage passed to her husband, was no breach of the covenant. Occasionally the covenant is qualified by the words "such Consent consent not to be arbitrarily refused." It has been decided not to be that "arbitrarily" means "unfairly and unreasonably," and bitrarily. that the lessee cannot recover damages against the lessor for an arbitrary refusal, or compel him to give consent where he refuses arbitrarily; but that an arbitrary refusal by the lessor leaves the lessee at liberty to assign without his consent. (Treloar v. Bigge, L. R. 9 Ex. 151; Lehmann v. McArthur, L. R. 3 Ch. 496; Sear v. House Property Investment Society, 16 Ch. D. 387; Bates v. Donaldson (1896), 2 Q. B. 241. Sheppard v. Hongkong Banking Corporation, 20 W. R. 459.) Sometimes the covenant is qualified by declaring that the consent is not to be refused "to an assignment, &c., to a respectable person," in which case an assignment to a respectable person (u), where the lessor's consent has been asked and refused, is not a breach of the covenant. (Barrow v. Isaacs (1891), 1 Q. B. 417; Eastern Telegraph Co. v. Dent (1899), 1 Q. B. 835.) If a lessee whose lease contains a covenant not to assign, or not to assign without licence, contracts to assign his lease, it is incumbent on him and not on the purchaser to obtain the licence. (Lloyd v. Crispe, 5 Taun. 249; Mason v. Corder, 7 Taun. 9.) distress. 10. When land is let, the letting creates a tenure between Power of the landlord and tenant (w). The rent reserved is one of the services by which the land is held, the other being fealty (u) It has been held that consent to an assignment to a corporation may be properly refused. (Harrison Ainslie & Co. v. Corp. of Barrow, 39 W. R. 250.) 69. (w) 5 L. Q. R. 326; 6 L. Q. R. Agricultural holdings. Express power of distress. (Co. Lit. 142 b, 143 a), which is now never exacted in practice. At Common Law, if a tenant neglected to perform his services, his lord might enter on the land in respect of which they were due, and distrain. It follows that, in the ordinary case of rent being reserved on the lease of land, the landlord has a right to distrain if the rent be in arrear. The right of distress extends, with some exceptions, over all chattels which are found on the premises, whether they are the property of the lessee or a stranger (Co. Lit. 47 a) (x). Subject to certain exceptions as to rent which is habitually allowed to fall in arrear, a landlord cannot after 1883 distrain for rent of any holding wholly agricultural or wholly pastoral, or partly agricultural and as to the residue pastoral, or in the whole or part cultivated as a market garden, due more than one year before the making of the distress; and stock bona fide taken in for agistment or on the land for breeding purposes, and agricultural and other machinery hired for use in the tenant's business cannot be distrained for rent in arrear in respect of any such holding. See the Agricultural Holdings (England) Act, 1883 (46 & 47 Vict. c. 61), ss. 44, 45. It will be observed that the right of distress, being a consequence of tenure, does not arise at Common Law where the thing demised is not a tenement-where it is furniture or machinery for instance. In these cases a clause, called a power of distress (which is not affected by the Bills of Sale Acts, 1878, 1882; see Re Willis, 21 Q. B. D. 384, at p. 394), is inserted in the lease, being a clause declaring that if the rent be in arrear for so many (generally twenty-one) days, the landlord may enter, distrain, and dispose of the distress, (x) See as to goods of lodgers, the Lodgers' Goods Protection Act, 1871 (34 & 35 Vict. c. 79), and see the Law of Distress Amendment Act, 1888 (51 & 52 Vict. c. 21, amended by 58 & 59 Vict. c. 24), exempting goods which would be protected from execution under s. 147 of the County Courts Act, 1888 (51 & 52 Vict. c. 43); M. L. R. P. 233; and as to the distinction between a lodger and underlessee, Phillips v. Henson, 3 C. P. D. 26. EXPRESS POWER OF DISTRESS. for the purpose of discharging the arrears of rent and the costs arising from its not having been paid. It appears that the effect of such a clause is not to enable the landlord to distrain in the strict sense of the word. It operates as a licence to him to enter and act exactly in the same manner as if he were distraining in the strict sense of the word, while the tenant is estopped from denying that the distress is lawful, because the licence is contained in a deed. The difference between a distress in the strict sense of the word and a distress made under such a licence would appear if a stranger's goods on the premises were distrained. In the former case the distress would be lawful, in the latter it would not. It may be asked-Is it necessary to insert a power of distress in the lease of a furnished house, where the house, in respect of which a tenure is created, and furniture, as to which there is no tenure, are comprised in one demise? It is settled that in this case the whole of the rent issues out of the land (y); and, accordingly, the whole rent can be distrained for, and the insertion of an express power of distress is unnecessary. In cases where chattels are let with the land, and there is no reason for letting them and the land at separate rents, the clause giving a power of distress is unnecessary; but where it is convenient to let the chattels and the land at separate rents (as, for instance, where a lessor is tenant for life of a house and absolute owner of the furniture, so that on his death the house and furniture will pass to different people), it is necessary to insert the clause. In a mining lease power is often given to distrain on machinery fixed to the soil, which cannot be distrained on at Common Law; Pitt v. Shew, 4 B. & Ald. 206. (y) Spencer's Case, 5 Co. Rep. 17 a; Newman v. Anderton, 2 Bos. & P. N. R. 224; Farewell v. Dickenson, 6 B. & C. 251. Where freeholds and copyholds are demised together it is doubtful 269 |