REPAIR OF ROADS.

are not excessive, they are paid without much investigation into the strict legal right to demand them.

A copyholder cannot, in the absence of a special custom, Copyholds. grant a lease for more than one year without licence from the lord of the manor (i). Where this is the case, and the lord refuses to grant a licence to lease for a term, the practice is to grant a lease for one year, containing a covenant by the lessor to grant a lease at the end of the year for the residue of a specified term if a licence can be obtained, and if not, to grant a fresh lease for one year at the end of every year of the term except the last year.

Sometimes, where the lessor is a copyholder and wishes to grant a long lease, the lord is unable by the custom of the manor to grant a licence for a lease for a term exceeding twenty-one years. In such a case the lessor may grant a lease for twenty-one years, with a covenant for renewal if the lord will grant a licence for a fresh lease, which licence the lessor covenants to endeavour to procure.

The covenant for renewal should always be subject to a proviso that all the rent should have been paid and the covenants on the part of the lessee performed, at the time for the renewal. If the covenant be in this form, the lessor can, on the tenant committing a breach of covenant, refuse to renew, and can eject the tenant at the expiration of the term actually granted. (Job v. Banister, 2 K. & J. 374.)

275

There is sometimes considerable discussion as to what Underlease. provisions should be inserted in an under-lease. It will be observed that there are two things to be guarded against, the one in the interest of the under-lessor, the other in the interest of the under-lessee. It is necessary for the safety of the under-lessor that the under-lessee should not do anything with respect to the property which might cause a forfeiture of the head-lease. On the other hand, it is necessary for the safety of the under-lessee that the under(i) Leake, Law of Prop. in Land, 84; Foa, L. & T. 30.

lessor should not forfeit the head-lease by omitting to pay rent or, in cases where all the property comprised in the head-lease is not comprised in the under-lease, by committing a breach of covenant as to the property retained by him.

For these reasons the under-lease will contain (in addition to the covenant to pay rent and other covenants which may be agreed upon between the parties) covenants by the underlessee with the under-lessor, similar to the covenants by the lessee in the head-lease, with respect to the user of the property comprised in the under-lease, and also any other covenants which must be observed by the tenant in possession in order to avoid a forfeiture; the under-lessee being substituted (j) for the head-lessee, and the underlessor for the head-lessor throughout, except that, in those covenants by which in the head-lease power is given to the head-lessor to enter on, or do some act with respect to the management of, the property, the power should be reserved to both the under-lessor and the headlessor. Thus, if the head-lease contains a covenant to repair on notice by the head-lessor, the under-lease ought to contain a covenant to repair on notice given either by the under-lessor or by the head-lessor. If the head-lease contains a power to the head-lessor to enter and view the condition of the property, the under-lease will contain a similar power both to the under-lessor and the head-lessor. The under-lessee should also covenant for the performance and observance of all the covenants in the head-lease affecting the property comprised in the under-lease (k), except the covenant for the payment of rent and any other covenants intended to be excepted. For instance, if the headlease comprises a building estate, and contains covenants

(j) If the agreement is that the under-lease shall contain the same covenants as are in the head-lease, this substitution cannot be made in all cases; Haywood v. Silber,

30 Ch. D. 404.

(k) This is a covenant of indemnity; Hornby v. Cardwell, 8 Q. B. D. 329.

UNDER-LEASE.

as to maintenance of roads and sewers, it will probably be arranged that a person taking an under-lease of a house should not have to maintain them, and then of course these covenants would be excepted. It is apprehended that, if a forfeiture of the head-lease was occasioned by any act or omission of the under-lessee which was a breach of a covenant contained both in the head-lease and the under-lease, the damages recoverable by the under-lessor in an action on the covenant would be determined by the immediate loss occasioned to him by the breach of covenant, and not by the loss arising from the forfeiture of the head-lease (Walker v. Hatton, 10 M. & W. 249; Logan v. Hall, 4 C. B. 598). In order to guard against this, a covenant by the under-lessee should be inserted not to do or omit anything whereby the head-lease may become forfeited. The under-lessor should covenant to pay the rent reserved by the head-lease; to perform those covenants, if any, contained in the head-lease, which are to be performed by him; and, in cases where the under-lease does not comprise all the property in the headlease, to perform all the covenants by the lessee in the head-lease which affect the property retained by the underlessor; the under-lessor should also give a statutory acknowledgment and undertaking for the production, and safe custody of the head-lease. In cases where the underlease is at rack-rent for a short term, these covenants by the under-lessor may be omitted. See form in Stud. Prec. 28.

It should be remembered that an under-lessee (whatever may be the nature of the provisions in the under-lease, which, though binding as between himself and the underlessor, do not affect the head-lessor) is bound in equity as between himself and the head-lessor to observe all the restrictive covenants contained in the head-lease (m).

As to the effect of an under-lease which by mistake comprises the whole term in the head-lease, see Beardman v.

(m) Ante, p. 243.

277

Wilson, L. R. 4 C. P. 57; Williams v. Hayward, 1 El. & E. 1040, and the cases there cited; see also Pluck v. Digges, 5 Bli. N. S. 31; Poultney v. Holmes, 1 Stra. 405 (n); Norris v. Craig, 43 W. R. 480.

(n) An under-lease for a term equal to or greater than that of the head-lease operates at law as an assignment; see M. L. R. P. 181, n. (i), 376. Rent reserved on an assignment may be recovered

by action; Newcomb v. Harvey, Carth. 161. It is by no means

clear that it

can be recovered by

distress. See the discussion at 44

Sol. J. 4.

CHAPTER X.

PARTNERSHIP DEEDS (a).

THE greater part of the law of partnership will be found in the Partnership Act, 1890 (53 & 54 Vict. c. 39); but the Act is not a complete code of partnership law. It does not declare the law as to goodwill, nor the law as to the administration of the property of the firm on the death or bankruptcy of a partner. With some exceptions the Act made no changes in the law; and it provides (s. 46) that the existing rules of Equity and of Common Law are to continue in force except so far as they are inconsistent with the express provisions of the Act.

of partner

The definition of "partnership" given in the Act (b) is Definition (s. 1): "Partnership is the relation which subsists between ship. persons carrying on a business in common with a view of profit." Members of companies registered as joint-stock companies, or incorporated by any Act of Parliament, or Letters Patent, or Royal Charter, or of mining companies subject to the jurisdiction of the Stannaries, are not, as such, partners within the meaning of the Act. The mere fact that persons are joint tenants, tenants in common, or otherwise coowners, does not of itself constitute them partners (s. 2) (c). The mutual rights and duties of the partners inter se depend upon the agreement which they have entered into; (a) The beginner should read of "partnership," see Lindley Underhill on Partnership before Partn., Bk. ch. i. p. 11. he reads this chapter. The advanced student should consult Lindley Partn. or Pollock on Partnership.

(b) For a collection of definitions

(c) As to the distinction between co-ownership and partnership, see Lindley Partn., 51 et seq., cited M. L. P. P. 10.