Bankruptcy

of defending it, might be recovered as special damages in an action against the under-tenant for the breach of his covenant to repair. (k) An assignee who takes leasehold premises by an indenture indorsed on the lease, subject to the payment of the rent, and the performance of the covenants and agreements reserved and contained in the lease, is not liable in covenant to the lessee for rent which the lessee has been called on by the lessor to pay after the assignee has assigned over.() If the original lessee is obliged to pay ground rent, he may recover it from the assignee in possession. (m) If a person has held under the terms of a lease, and holds over after the lease is at an end, he is bound by the terms of it, although no new bargain to that effect is entered into between the parties; but if he comes in as an under-tenant before any lease was granted to the person of whom he took the premises, and that person afterwards take a lease, if there is no evidence that he knew of the lease, it will be for the jury to say whether he is not an under-tenant, and not an assignee of the lease. (n) An assignee of a lease containing covenants running with the land, is liable after he has assigned over for a breach incurred after the assignment to him, and before his assignment over.(o)

The usual covenant not to let will not prevent a lease passing to the assignees.(p) If a lessee becomes bankrupt, the term remains vested in him until either the assignees elect to take it, or until he himself delivers it up under the provisions of the

(k) Neale v. Willie, 5 D. & R. 442. 3 B. & C. 533. The reason was, in this last case, because, during the term of the under lessee, the original lessee could not have entered for the purpose of repairing without making himself a trespasser.

(1) Wolveridge v. Steward, 1 C. & M. 644. 3 Tyr. 637.

(m) Stone v. Evans, Peake's addl. cas. 94.

(n) Torriano v. Young, 6 C. & P. 8. If the assignee of a lease commit waste, the landlord may sue him in covenant, or in a special action on the case, but not in assumpsit.-Id.

(0) Harley v. King, C. M. & R. 18. 1 Gale, 100.

(p) Doe d. Mitchinson v. Carter, 8 T. R. 57, 300. Lloyd v. Crisps Taunt. 249. See note to p. 153.

bankrupt.

statute 6 G. IV., c. 16, s. 75.(g) The assignees of Assignees of a bankrupt lessee by accepting the lease, discharges the bankrupt from any claim upon him for rent. (r) It is no defence at law to an action on an indenture of lease by the trustee of the party who has become bankrupt, that the defendants (the lessees) have performed their covenants with the assignees of the cestui que trust.(s)

(9) Tuck v. Tyson, 6 Bing. 321. 3 M. & P. 715 (see p. 153); and see note (s) to same page, as to the effect of bankruptcy on covenant not to assign without licence.

(r) Onslow v. Corrie, 2 Madd. 330.

(s) Britten v. Britten, 2 C. and M. 597. 4 Tyr. 473.

Significa

tion of.

How made.

Why for merly made in grants.

ATTORNMENT.

ATTORNMENT signifies the acknowledgment of a new lord on the alienation of lands, and the assent or agreement of the tenant to attorn; as, I become tenant to the purchaser. It may be made by payment of a penny rent to the grantee, or assent in writing. (t) It was formerly usual upon grants and conveyances of manors, lands, rents, reversions, &c., that attornment should be made, and for the following reasons: First, that the tenant in possession might not be subjected to a stranger or new lord without his own approbation and consent. Secondly, that he might know to whom he was to render his services, and distinguish the lawful distress from the tortious taking of his cattle. Thirdly, that by such attornment the grantee of the reversion or seigniory might be put into the possession of it, and that others might be apprised and informed of the transfer. In short, this attornment was nothing else but the tenant's knowing of the grant, and assenting thereunto, which used to be indorsed on the grant, and signed by him. But Stat. 4 Anne by the statute 4 Anne, c. 16, s. 9, attornments are rendered unnecessary to the completion of a grant; and by 11 G. 2, c. 19, attornments of lands made by tenants to strangers shall be void, and their landlord's possession not effected thereby, though this will not extend to vacate any attornment made pursuant to a judgment at law, or with the consent of landlord.(u)

What attornment amounted

to.

11 G. 2.

How far

now appli

The reason, however, for attornment, so far as it eable to a proceeded on notice to the tenant, is still applicable to the case of a mortgage, where the mortgage is made subsequently to the lease; for a mortgagee will

mortgage.

(t) Co. Litt. 309.

(u) Attornment, in a great measure, ceased from the change of manners, and the decline of feudal principles.-See Watk. Prin. c. 2. (Grant.)

الة

G

61

te

W

O

a

not be entitled to rent under a lease made prior to the mortgage until he shall have given notice to the tenant (v) of the mortgagor, and required payment of the rent to himself; otherwise than this, actual attornment is seldom heard of in practice except to a receiver, or in the case of a recovery in ejectment, Applicable where the tenants frequently attorn to the lessor of and in cases the plaintiff, in order to save the expenses of of ejectment sheriff's poundage and officer's fees on executing a

writ of possession.

(1.)

Attornment in an Action of Ejectment, to save the Expense of executing a Writ of Possession.

IN the Q. B. (C. P., or Exch.)

Between John Doe on the demise of

to receivers,

tornment.

To all to whom it may concern, we, whose names Form of atare hereunto subscribed, being tenants in possession of the premises for which this action has been brought, situate, &c., do hereby severally attorn tenants to C. D., of, &c., for such parts of the said premises as are in our respective possessions; and we have this day severally paid unto the said C. D., the sum of one shilling each upon such attornment, on account of, and in part payment of, the rent due, and to become due, from us severally and respectively, for and in respect of the said premises, and we also severally and respectively become tenants thereof, to the said C. D., from the day of, &c. In witness whereof, we have hereunto set our hands this day of, &c.

(v) See the form of this notice under the head "Notices."

Recitals.

(2.)

Another Form by Tenants to a Mortgagee or other Person after Judgment in Ejectment.(w)

To all to whom, &c. WHEREAS, declarations on the demise of A. B., of, &c., (mortgagee,) in ejectment having been delivered to each of us, whose names and seals are hereunto subscribed and set, being respectively tenants or occupiers of or from R. S., (mortgagor,) of, &c., of the messuages, farms, and lands, mentioned opposite to our respective names in the schedule hereunder written, in order to the recovering possession of the same premises. AND WHEREAS, the said (mortgagor), after notice of such declaration in ejectment, hath, as we are advised, suffered judgment by default to be entered of record for the plaintiff in ejectment, or his lessor, in the said Attornment. action. Now KNOW YE, that we, whose names are so subscribed, and seals affixed, as aforesaid, have, and each of us (so far as respects the messuage or messuages, farm, and lands, mentioned opposite to our respective names in the schedule to these presents, and now in the occupation of himself, or his under-tenant, at the yearly rent therein mentioned) hath attorned and become tenants and tenant, and by these presents do, and each of us doth, attorn, and become tenants and tenant to the said (mortgagee), for and in respect of the same several messuages, farms, and lands, and every of them; AND in testimony of such attornment, we, the said several tenants, parties hereto, have paid to the said (mortgagee), the sum of sixpence each; AND we do hereby promise and agree henceforth severally to pay, or cause to be paid, our respective rents due and payable, and to become due and

(w) Form by indorsement: "Know all men, that I within named (tenant), did, on the day of, &c., last past, attorn and become tenant to the within named (mortgagee), and agree to pay such rent, and at such times, as are therein mentioned; and in testimony thereof, did give one shilling in the name of attornment, in the presence of C. D. and E. F., whose names are hereunto subscribed."