OF MINELEASE-MONEY TO BE

PAID BY

INSTALMENTS.

-of deed of covenant to restore the power of restraining alienation of the second lease.

indenture of the 25th day of March, 1823, and made or expressed to be made between the said G. H. and I. K. of the first part, the said A. B. of the second part, and the said C. D. of the third part; after reciting these presents, and particularly the assignment intended to be hereinafter made by the said A. B., with the licence and consent of the said C. D., of the said premises by the said indenture of the 25th day of March, 1823, demised or expressed and intended so to be: It is by the said indenture now in recital witnessed, [recites the operative part of the deed verbatim, and without change of tense-see the Precedent of the deed in a future Volume:] AND it is by the said indenture now in recital provided, that nothing therein, or in these presents contained, shall be construed to authorize the said G. H. and I. K., their executors, administrators, or assigns, to re-assign the said premises to the said A. B., his executors, administrators, or assigns, in pursuance of the proviso for redemption hereinafter contained, without the express licence and consent of the said C. D., his heirs or assigns, first had and obtained for that purpose in writing under his or their hand or hands: AND WHEREAS, in pursuance of the said agreement in this behalf, by an indenture bearing or intended to bear even date with, but to be executed immediately after the execution of these presents, and already prepared and endorsed on the counterpart of

covenant was all that was required for restoring to the lessor his former power. It is however assumed, that the second lease did not contain a proviso for re-entry on breach of the covenants; for if it had done so, a deed of defeasance to restore the right of re-entry would have been required in this case as well as the other. (Lloyd v. Crispe, 5 Taunt. 249). It is sometimes attempted to avoid the necessity of a deed of defeasance by annexing a condition to the licence, that it shall not authorize further assignments; but there is little doubt of this restraint being ineffectual. (See the observations of Gibbs, C. J., 7 Taunt. 11, n. (ƒ); see, too, Lloyd v. Crispe, ubi supra). With regard to the nature and operation of defeasances, see the notes to a precedent of a deed of defeasance in a subsequent volume, and 2 Cru. Dig., by White, vol. ii. p. 7, n. (b); and vol. iv. pp. 89, 90; and with regard to restrictions on assignment without licence, information will be found in the first volume of this work, Art. LEASES; and in the notes to the precedent of such a lease in a subsequent volume. See, too, 2 Cru. Dig., by White, pp. 7 et seq.).

the said indenture of the 29th day of December, 1823, and made or expressed to be made between the said G. H. and I. K. of the first part, the said A. B. of the second part, and the said E. F. of the third part; after reciting these presents, and particularly the assignment intended to be hereinafter made by the said A. B. with the licence, approval, and consent of the said E. F., of the said premises by the said indenture of the 29th day of December, 1823, demised or expressed and intended so to be: It is, by the said indenture now in recital, witnessed, that they the said G. H. and I. K. do for themselves, their heirs, executors, and administrators, and each of them doth for himself, his heirs, executors, and administrators, covenant with the said E. F., his heirs and assigns, that the said A. B., his executors, administrators, or assigns, or they the said G. H. and I. K. or one of them, their or one of their executors or administrators, shall and will from time to time and at all times thereafter during the continuance of the said term of twenty-one years created by the said indenture of the 29th day of December, 1823, or until the same term shall have been re-assigned to the said A. B., his executors, administrators, or assigns, by virtue and in pursuance of the proviso for redemption hereinafter contained, pay, keep, observe, and perform, all and singular the rents, covenants, conditions, and agreements in and by the said indenture of the 29th day of December, 1823, reserved and contained, and which on the tenant's or lessee's part ought to be paid, kept, observed, and performed; and it is thereby agreed and declared, that the said G. H. and I. K., their heirs, executors, or administrators, or any of them, shall not under the covenant thereinbefore contained, or otherwise, be liable to pay any of the said arrears of rent now due to the said E. F. upon the said indenture of lease of the 29th day of December, 1823, nor be liable for any breach, before the day of the date thereof, of any of the covenants in the said indenture of the 29th day of December, 1823, contained: And by the said indenture now in recital, the said G. H. and I. K. do for themselves, their heirs, executors, and administrators, and each of them doth for himself, his heirs, executors, and administrators, covenant with the

OF MINELEASE-MO

NEY TO BE

PAID BY INSTALMENTS.

OF MINELEASE-MONEY TO BE PAID BY INSTALMENTS.

said E. F., his heirs and assigns, that they the said G. H. and I. K., their executors or administrators, shall not nor will demise, assign over, or underlet, or agree to demise, assign over, or underlet, to any person or persons, all or any part of the mines, minerals, or hereditaments by the said indenture of the 29th day of December, 1823, demised, or expressed and intended so to be, for all or any part of the said term, without the licence, approval, and consent in writing of the said E. F., his heirs or assigns, for every such assignment from time to time first had and obtained, except by permitting the said A. B., his executors, administrators, or assigns, to hold the said premises in pursuance of the proviso in these presents contained for quiet enjoyment of the said premises by the said A. B., his executors, administrators, or assigns, until default as in the same indenture is mentioned, and except by re-assigning to the said A. B., his executors, administrators, or assigns, in pursuance of the proviso for redemption hereinafter contained (d): NOW THIS INDENTURE WITNESSETH, Consideration. that, in pursuance of the said agreement in this behalf, and in consideration of the said sum of £30,000 so due and owing by the said A. B. to the said G. H. and I. K. as aforesaid, and of the premises, he the said A. B., with the licence and consent of the said C. D., (testified by his being a party to and sealing and delivering these presents), hath assigned, and by these presents doth assign, unto the said G. H. and I. K., their executors, administrators, and -of premises assigns, ALL THAT the said messuage, buildings, closes, pieces, or parcels of land, meadow and pasture, mines or beds of coal and ironstone, ways, waters, watercourses, easements, and appurtenances, powers, liberties, and authorities by the said indenture of the 25th day of March, 1823, demised, or expressed and intended so to be, with their and every of their appurtenances: AND ALSO all and sin

Witnesseth.

Assignment with licence.

in first lease.

-and the fix

(d) It will be seen, that the provision as to this matter is different as to the different leases. The mortgagees are permitted to re-assign the second lease without licence, but are restrained from re-assigning the first, unless under a fresh licence. As to exceptions out of a restriction on alienation, see Lloyd v. Crispe, 5 Taunt. 249.

OF MINELEASE-MO

NEY TO BE PAID BY INSTALMENTS.

tures and ma

nerals raised.

And all the estate, &c.

First Haben

gular the buildings, erections, furnaces, forges, founderies, canals, railways, framed waggon-ways, weighing machines, engines, steam engines, gins, works, implements of manufacture, tools, machinery and fixtures, bricks, curbs, ropes, timber, goods and chattels, of what kind or chinery. nature soever, which have been or shall be at any time during the continuance of this present security, erected, constructed, or brought upon the said premises hereinbefore assigned, or expressed and intended so to be, or any of them, or any part thereof: AND ALSO all and singular the -and the micoal, slack, and ironstone, which are or shall be gotten or raised during the continuance of this present security out of the said premises hereinbefore assigned, or expressed and intended so to be, or any of them, or any part thereof; and also the coke, iron, and all other the produce of the said coal, slack, and ironstone: AND ALL the estate, right, title, interest, property, claim, and demand whatsoever, both at law and in equity, of him the said A. B., of, in, to, out of, or upon the said premises or any of them, or any part thereof, TO HAVE, hold, use, aND ENJOY all such and so many and such part and parts of the said messuage, buildings, closes, pieces and parcels of land, meadow and pasture, mines and beds of coal and ironstone, powers, liberties, and authorities, and of all and singular other the premises herein before assigned, or expressed and intended so to be, as were by the said indenture of the 25th day of March, 1823, demised, or expressed and intended so to be, or are or shall be fixed to the freehold of the said premises, and shall not belong to the tenant, unto and by the said G. H. and I. K., their executors, administrators, and assigns, (they nevertheless exercising the said powers, liberties, and authorities, only in the manner and subject to the provisions and restrictions mentioned and contained in the said indenture of the 25th day of March, 1823), from henceforth for all the residue now to come of the said term of forty years, at and under and subject to the rents and covenants, conditions and agreements, by and in the said indenture of the 25th day of March, 1823, reserved and contained, and which from the day of the date of these presents ought, on the tenant's or lessee's part, to be paid,

perty subject to the terms.

dum of the pro

OF MINELEASE-MONEY TO BE

PAID BY INSTALMENTS.

Second Ha

property not subject to the terms.

kept, observed, and performed, and subject also to the proviso hereinafter contained for redemption of the same premises, AND TO HAVE, HOLD, USE, AND ENJOY all such and so many, and such part and parts of the said bendum of the buildings, erections, machinery, fixtures, coal, slack, ironstone, coke, mines, and of all and singular other the premises hereinbefore assigned, or expressed and intended so to be, as were not by the said indenture of the 25th day of March, 1823, demised, or expressed and intended so to be, and are not or shall not be fixed to the freehold of the said premises, and shall belong to the tenant, unto the said G. H. and I. K., their executors, administrators, and assigns for ever, subject nevertheless to the provisos, agreements, conditions, and covenants by and in the said indenture of the 25th day of March, 1823, declared and contained of and concerning the same or any of them, or any part or parts thereof, and subject also to the proviso hereinafter contained for redemption of the same premises (e), [similar assignment and habendums for the second secondly, as lease, adding to each habendum the following expression], "but freed and discharged from all right or equity of redemption which may be subsisting in the said premises lastly herein before assigned, or expressed and intended so to be, or any of them, under or by virtue of the said indenture of the day of, 1836, subject nevertheless to the proviso hereinafter contained for redemption of the same premises"]: PROVIDED ALWAYS, and it is hereby agreed and declared between and by the said A. B., and the said G. H. and I. K., and the true intent and meaning of them, and of these presents, nevertheless is, that if the said A. B., his executors, administrators, or assigns, shall and do pay or cause to be paid to the said G. H. and I. K., their executors, administrators or assigns, the sum of £30,000, and the sum of £1,500 as and for one year's inter

Witnesseth

signment of

second lease,

&c.

Proviso for redemption.

(e) The reason for having two habendums is obvious, as part of the premises are to be held for a term and part absolutely. In framing these special habendums, great regard must, of course, be had to the terms of the lease. For some information as to the law relating to machinery and fixtures, see supra, p. 500, n. (a).