supply sufficient examples. Thus, penal rents are often reserved, to arise on the commission of certain acts (a); and, in mining leases, the reservation of different rents for different years of the term, and for different kinds of produce, is very common (b).

A lease usually contains several covenants on the part of the lessee, and at least one (that for quiet enjoyment) on the part of the lessor. The question, what are usual and proper covenants is discussed in a subsequent volume (c), and most of the other points relating to covenants in leases are adverted to in the notes to the same volume (d). The covenants on the part of the lessor are entered into with the lessee, his executors, administrators,

(a) Infra, vol. iv. p. 49, n. (d). (b) See particularly, infra, vol. iv. pp. 122-124.

(c) Infra, vol. iv. p. 13. See, too, the recent case of Page v. Broom, 3 Beav. 36, as to the covenants to be entered into by the representatives of a person who had agreed to grant, but died before the granting of, a lease; and see, as to covenants in mining leases, Blakesley v. Whieldon, 1 Hare, 176.

(d) As to the covenant for payment of rent, implied from the reddendum in the absence of an express covenant, see infra, vol. iv. p. 30, n. (e); as to covenants to pay rates and taxes, Įd. p. 32, n. (g); as to covenants

against carrying on trades and businesses, Id. p. 36, n. (h); as to covenants not to assign or underlet without the lessor's li cense, Id. p. 60, n. (h); as to covenants relating to the removal of fixtures, Id. p. 87, n.; as to covenants to repair, Id. p. 114, n.

(c), and the late case of Green v. Eales, 1 Gale & Dav. 468; as to covenants to insure and repair in case of fire, Id. p. 104, n. (f); and as to the lessor's covenant for quiet enjoyment, both express and implied, Id. p. 40, n. (h), p. 39, n. (i), p. 117, n. (e), and the late cases of Granger v. Collins, 6 Mee. & Wels. 458; Schreiber v. Creed, 10 Sim. 9.

and assigns; but if the covenant be such a covenant as will not run with the land, an assign can sue upon it only in the name of the lessee, his executors, or administrators (a). If the lessor be seised in fee, the lessee covenants with him, his heirs, and assigns; and if the lessor have himself only a chattel interest, with him, his executors, administrators, and assigns; but the power of the assignee of the lessor to sue on the covenants in his own name, depends in each case on the question whether the covenants are such as will run with the land (b). The greatest difficulty in determining with whom the covenants should be entered into arises when the lease is made under a power, and the legal estate is in settlement; but it seems to be now pretty well settled, that if the lessee is made to covenant with the tenant for life and his assigns, the benefit of the covenant will enure to the remaindermen, and the burden of the covenants entered into by the tenant for life will also fall on the remainder-men (c).

A lease usually contains, and should always contain, Proviso for a proviso for re-entry by the lessor on default by the re-entry. lessee in payment of the rent or performance of any of the covenants. The points to be attended to in framing this proviso are adverted to in some of the notes to the precedents of leases (d).

(a) See supra, book ii., ch.viii., p.353, and the Appendix, p. 368. (b) Ib.

n. (c), and supra, p. 365. See,
too, 2 Sugd. Pow. 338.

(d) Infra, vol. iv. p. 68, n. (k),

(c) See infra, vol. iv. p. 75, p. 81, n. (e), p. 92, n. (c).

Who may make leases.

Leases may be made by all persons who would be competent to convey the property absolutely; and by particular statutes many other persons, such as committees of lunatics, tenants in tail, ecclesiastical persons, and married women, are enabled to grant leases under certain restrictions. The law relating to such leases is very voluminous, and cannot be satisfactorily stated within the compass of this work ; it must therefore suffice to refer to the text-books, in which ample information on the subject will be found (a).

(a) 4 Cru. Dig. by White, tit. xxxii. ch. v. sect. 29 et seq.; Bac. Abr. tit. Leases and Terms

for Years; Burton's Law of Real Property, (arts. 217, 237, 714, 716, 721.

415

CHAPTER IV.

OF PARTITIONS.

effectuating.

A PARTITION is where two or more joint-tenants, Partition— coparceners, or tenants in common agree to divide definition of. their lands in severalty, each taking a distinct part (a). Several methods of partition are mentioned by Lit- -modes of tleton, sect. 243 et seq., and in Mr. Hargrave's note, Co. Litt. 169. a., n. (2); but in modern practice partition is made only by conveyance or by act of Parliament. The common-law writ of partition has been abolished by statute (b), and partition by the decree of a court of equity can be effectuated only by conveyance or act of Parliament (c). If any of the parties whose concurrence in the partition is required are under disability, the decree can only be to make partition, give possession, and order enjoyment accordingly until effectual conveyance can be made (d), unless it should be deemed ex

36.

(a) 2 Bl. Comm. 324. tenements held in joint-tenancy, (b) 3 & 4 Will. 4, c. 27, s. coparcenary, or tenancy in common, and of the allotments made in respect thereof, and such partition will be binding on persons under disability.

(c) Whalley v. Dawson, 2 Sch. & Lefr.372. Commissioners acting under the authority of the General Inclosure Act (41 Geo. 3, c. 109) are empowered by s. 16 of that act to make partition of

(d) Mitford on Pleading, 120, (4th edit.)

pedient to obtain an act of Parliament to effectuate the partition immediately. An act of Parliament is of course resorted to only when some of the parties interested are under disability; and when obtained it operates as a conveyance of the legal estate, and binds the persons under disability, as well as all those who are free from disability (a). The preparation of such acts is part of the business of a conveyancer, but does not come within the scope of the present work. The following observations apply to partition by conveyance, in which all persons who are interested are to join; and it should be remarked that the form of the conveyance will be the same whether the partition is voluntary or is compelled by the decree of a court of equity. In the latter case, instead of the recital of the agreement for partition, must be substituted recitals of the proceedings in the suit, and of the Master's approval of the conveyance (b).

(a) See a precedent of an agreement to make a partition, and to apply for an act of Parliament to give effect to it, infra, vol. iii. p. 147.

(b) Att.-Gen. v. Hamilton, 1 Madd. 222. The jurisdiction and practice of the Court of Chancery in respect to partition are discussed in the recent cases of Manners v. Charlesworth, 1 My. & K. 330; Story v. Johnson, 1 You. & Coll. 538; S. C. 2 You. & Coll. 586; Hollingworth v. Sidebottom, 8 Sim. 620; Lister v. Lister, 3 You. &

Coll. 540. It should be observed that a court of equity cannot decree a partition of copyholds (at least of tenants in common) without the license of the lord of the manor. Horncastle v. Charlesworth, 11 Sim. 315. It has been lately decided, that a person who has only a life estate determinable on his marriage in a share of the estate, may insist on a partition as to that share; Hobson v. Sherwood, 4 Beav. 214; but the partition need not be extended beyond that share. Ib. See, too, Gaskell v. Gaskell, 6 Sim. 643.