9thly, In leases, also, a condition is inserted, when it is required by the intention of the parties. For instance: in mortgages there is a condition to express the right of redemption; but this right is more generally expressed, in modern deeds, by an agreement, rather than a condition. In leases, the condition should be adapted to the nature of the lease, and therefore different conditions should be added, according to the intention of the parties, and the purport of the lease. And in all these leases it is usual to add a condition, that the lease shall be void, of that there shall be a right of re-entry, if the rent shall be in arrear for a given time, and not paid when lawfully demanded. 、 When the clause is penned in these terms, the rent must be demanded on the land at the end of the limited time: and if that time is suffered to elapse without a lawful demand, no advantage can be taken of the default in payment of the rent within the time limited. As this is contrary to the intention of the parties, the clause should run to this effect:-"That if the said rent shall "be in arrear for the space of twenty-one 66 days after any one of the days herein"before appointed for payment of the same, "and the same rent shall be lawfully de"manded upon, or at any time after, the expiration of the said twenty-one days, "and not paid when demanded, Then," &c. The advantages of this clause are, that it gives the lessor the right of re-entry, without imposing on him the necessity of enforcing that right by an entry on a particular day. In leases of this sort also, a condition is inserted, to enable the lessor to re-enter, in case of breach or nonperformance of all, any, or either of the covenants, articles, clauses, and agreements, contained in the lease, on the part of the lessee, his executors, administrators, or assigns. This is a very harsh clause against a tenant. It subjects him to a forfeiture by a breach of his covenant in any particular, however trivial; and therefore, on the part of the lessee it is always of importance to have an enumeration of those acts which are to be the ground of forfeiture. Lessees of houses and farms are also restrained, by a covenant with a condition superadded, or by a condition from assigning or underletting; and farming leases are generally made determinable on the bankruptcy or insolvency of the tenant, or in. suffering the leases to be taken in execution. These restrictions are of great advantage to the lessor, and there is no objection to them when they are confined to the lessee himself. But the condition is also extended to the executors and administrators of the lessee; and, in reference to them, the condition is extremely inconvenient, since it cannot be expected that the executors, &c. should occupy, &c. These conditions are, on many occasions, made the instrument of great oppression. In short, they enable the lessor to defeat the lease, and thus gain all the advantage of improvements, unless the executors will hold, &c. The only mode of avoiding their operation is, to name certain persons, who may contract to sell, and appoint the purchaser the executor, quoad the term. This is suggested as an experiment, to be tried when particular circumstances of hardship may render it expedient. It is settled, that a lease which restrains assignment, does not extend to an underlease.(i) When the restraint is on an assignment only, the executor may derive advantage, by making an underlease. And, in reason, the condition imposed on lessees ought not to be extended beyond the restraint of assignment. The practice, however, sanctioned by law, is different. These conditions were originally introduced for the purpose of preventing the te (i) Cruso v. Bugby, Wils. Rep. 234. nant, for the time being, from discharging himself from the liability to pay the rent; but when the point of law is fully investigated, the reason of this practice can never be applied to any one, except the lessee himself. And, at the common law, even the lessee could not discharge himself from the contract to pay the rent, and perform the covenants, without the consent of the lessor, since the lessee remains tenant to the lessor, until the lessor accepts the assignee as his tenant. Hence the caution with which some gentlemen give their receipts for rent, expressing it to be received of the tenant by the hands of the assignee or occupier. But when a lease is made with covenants to pay the rent, the lessee and his representatives will continue liable, under the covenant for payment of the rent, notwithstanding an assignment, and acceptance of the assignee as tenant. Therefore the caution is applied to many instances in which it is not necessary. From a similar caution, lessors sometimes object to consent to an assignment, when the condition requires the assignment to be with consent. Their apprehension is, that by consenting to the assignment, the original lessee would be discharged from the payment of the rent, &c. Such, indeed, would be the conse quence as far as regards the right to the rent under the privity of contract; but when there are covenants in the lease, on the part of the lessee, to pay the rent, &c. the lessee will continue liable, notwithstanding an assignment. Indeed, so far from being injured by the assignment, in point of remedy for the rent, when there is a covenant to pay the rent, the lessor, &c. may resort to his distress on the land, or may maintain an action against the assignee as tenant, or against the lessee or his representatives, or the assignee, upon the covenant; so that his securities are increased instead of being diminished. Other usual covenants in leases, are those which are calculated to avoid the lease, on the bankruptcy of the lessee or assignee, on which a commission of bankrupt shall is. sue, (k) or his permitting his goods to be taken in execution. (1) Such conditions are good. It has even been held, that though an involuntary alienation, by reason of an execution, (m) is not a breach of a condition in restraint of assignment, yet an exe cution taken out, on a warrant of attorney confessed fraudulently, and for the very purpose of having the term taken in execution, (k) Doe v. Galliers, 2 Term Rep. 133. b. |