within written indenture of lease, and the premises therein mentioned, for the term therein likewise mentioned. Witness my hand the day of the date within mentioned." A bill being filed for a specific performance of the covenant, the question was, whether the defendant was to be considered as a party to, or bound by the lease. Sir Thomas Plumer, V.C., held, that the indorsement did not make the defendant a party to the lease; and that it was not an agreement to grant a new lease on the determination of that term, but simply an expression of the defendant's consent to a grant of the term mentioned in the lease, namely, a term for ninety-nine years determinable on three lives; and that the memorandum endorsed, being destitute of consideration, amounted merely to a voluntary gratuitous consent to the lease, and cast no obligation on the defendant to renew.

So, where a lease not warranted by a power was granted by a tenant for life, containing a covenant for perpetual renewal, it was held that the remainder-man, by accepting the reserved rent for many years after he came into possession, did not confirm it so far as to make the covenant for renewal binding on him (d); though, under the peculiar circumstances of the case of Earl Brook v. Bulkeley (e), where a father, tenant for life, with a common power of leasing, with remainder to his son in tail, granted a lease, and covenanted (f) to renew, and the son, after his father's death, entered into a similar covenant, a renewal was decreed against the son. "Though it is true," said Lord Hardwicke, "that the son is not bound by the covenant of his father, as his father exceeded his power, yet, as he was entitled to his father's estate, whatever assets his father left, either real or personal, would be liable to that covenant. A bill might be brought for a satisfaction out of assets, or an action for damages on the foot of that covenant; and therefore the son,

(d) Higgins v. Rosse, 3 Bli. P. C.

112.

(e) Earl Brook v. Bulkeley, 2 Ves. 498.

(f) An express covenant is binding at law without any consideration. See Shubrick v. Salmond, 3 Burr. 1637-9. May v. Trye, Freem. K. B. 447.

partly in point of honor to satisfy the covenant of his father, and partly to deliver himself from such a litigation and trouble, covenanted. If so, then I am of opinion that is a sufficient consideration to bind him."

VII. As to the rights in equity of the lessee, and persons claiming through or under him.

We now proceed to inquire, in favor of whom the contract to take a renewal runs in point of benefit in equity: in other words, in whose favor a specific performance will be decreed; a branch of our subject more easily explained by first taking the converse, and showing in whose favor a specific performance will not be decreed; though for an exposition of the general principles on which the court decrees a specific performance of an agreement for a lease the reader is referred to a previous chapter (g).

It seems to be admitted that a party who has treated the land in an unhusbandlike manner, or been guilty of breaches of covenant which confer a right of re-entry on the lessor, has no claim to this species of equitable assistance (h); unless the covenant broken be of such a kind as would warrant the court in granting an injunction to restrain an ejectment, should the lessor, under the clause of re-entry, (in the case of an actual lease,) try to evict the lessee for a breach.

Where the assignees of a bankrupt or insolvent seek a specific performance, it is, I apprehend, immaterial whether they require an original lease under an agreement, or a renewed lease under a covenant or agreement for renewal; the same rules of equity being apparently applicable to both cases. On this subject, therefore, I shall merely refer the reader to a prior chapter where the cases have already been examined at some length (i).

If the lessee be guilty of fraud by wilfully concealing the fact of the cestui que vie being dead, or at the point

(g) Ante, p. 621.

(h) Ante, p. 636.

(i) Ante, p. 629, et seq.

of dissolution, and act under such concealment for his own advantage, the court will not compel the lessor to renew: on the contrary, he may take advantage of the forfeiture, and eject the lessee (k).

But where a lease has been actually granted at an inadequate fine, on the fraudulent representation of the lessee that only one life on which the lease was granted had fallen, when in fact two of the cestuis que vie were dead, equity will compel him to pay the additional sum which he would have been bound to pay, had the circumstances been fairly stated to the lessor, with interest at 4 per cent. (7). Nor will the lessee be allowed the option of rescinding the contract, and holding under his old lease (m). In the case cited, the lessee's ignorance, at the time of the execution of the new lease, of the second cestui que vie's death did not avail him, as he was aware of the circumstance at the time of the lease being actually delivered up to him by the lessor; for although the fraud originated after the execution of the deed, yet as before its delivery to the lessee he concealed a fact, which would have induced the lessor, had he been made acquainted with it, to withhold such delivery, the lease was in a correct sense of the word obtained by fraud (n).

An act of parliament (0), already referred to (p), has also made provision for renewals of leases taken by infants, femes covert, idiots, lunatics, and persons of unsound mind. And it was enacted (q), that in all cases where any person being under the age of twenty-one years, or a feme covert, was or should become entitled to any lease or leases made or granted, or to be made or granted, for the life or lives of one or more person or persons, or for any term of years either absolute or determinable upon the death of one or more persons or person, or otherwise, it should be lawful for such person under

(k) Pendred v. Griffith, 4 Bro. P. C. 512; S. C. Toml. Ed. vol. 1, p. 314; Journ. vol. 26, p. 383. Ellard v. Llandaff, 1 Ball & Beat. 241.

(1) Lord Abingdon v. Butler, 3 Bro. C. C. 112; S. C. 1 Ves. jun. 206; 2

Cox, 260.

(m) Ibid.
(n) Ibid.

(0) 11 Geo. 4 & 1 W. 4. c. 65.
(p) Ante, p. 529.
(q) Sect. 12.

the age of twenty-one years, or for his or her guardian, or other person on his behalf, and for such feme covert, or any person on her behalf, to apply to the court of Chancery in England, and the courts of equity of the counties palatine of Chester, Lancaster, and Durham (r), respectively, as to land within their respective jurisdiction, by petition or motion in a summary way; and that, by the order and direction of the said courts respectively, such infant, or feme covert, or his guardian, or any person appointed in the place of such infant or feme covert by the said courts respectively, should and might be enabled from time to time by deed or deeds to surrender such lease or leases, and accept and take, in the place and for the benefit of such person under the age of twenty-one years, or feme covert, one or more new lease or leases of the premises comprised in such lease surrendered by virtue of the act, for and during such number of lives, or for such term or terms of years determinable upon such number of lives, or for such term or terms of years absolute, as was or were mentioned or contained in the lease or leases so surrendered at the making thereof respectively, or otherwise, as the said courts should respectively direct:

And (8) that in all cases where any person being lunatic should become entitled to any lease or leases made or granted, or to be made or granted, for the life or lives of one or more person or persons, or for any term of years either absolute, or determinable upon the death of one or more person or persons, or otherwise, it should be lawful for the committee of the estate of such person to apply to the Lord Chancellor of Great Britain, being entrusted by virtue of the King's sign manual with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind, by petition or motion in a summary way; and that, by the order and direction of the said Lord Chancellor so entrusted, such committee should and might be enabled

(r) And also of the courts of Great Session of the principality of Wales before their abolition by 11 Geo. 4 &

1 W. 4, c. 70. s. 14.
(8) Sect. 13.

from time to time, by deed or deeds, in the place of such lunatic, to surrender such lease or leases, and accept and take, in the name and for the benefit of such lunatic, one or more new lease or leases of the premises comprised in such lease or leases surrendered by virtue of the act, for and during such number of lives, or for such term or terms of years absolute, or determinable as therein aforesaid, as was or were mentioned or contained in the lease or leases so surrendered at the making thereof respectively, or otherwise, as the said Lord Chancellor so entrusted should direct:

And (t) that every sum of money and other consideration paid by any guardian, trustee, committee, or other person, as a fine, premium, or income, or in the nature of a fine, premium, or income, for the renewal of any such lease, and all reasonable charges incident thereto, should be paid out of the estate or effects of the infant or lunatic for whose benefit the lease should be renewed, or should be a charge upon the leasehold premises, together with interest for the same, as the said courts and Lord Chancellor so entrusted respectively should direct and determine; and that, as to leases to be made upon surrenders by femes covert, unless the fine or consideration of such lease and the reasonable charges should be otherwise paid or secured, the same together with interest should be a charge upon such leasehold premises for the benefit of the person who should advance the same:

And further (u), that every lease to be renewed as aforesaid should operate and be to the same uses, and be liable to the same trusts, charges, incumbrances, dispositions, devises, and conditions, as the lease to be from time to time surrendered was or would have been subject to in case such surrender had not been made.

The powers given by the act to the court of Chancery and the Lord Chancellor may be exercised by other judicial dignitaries, as we have already had occasion to notice (x).

(t) Sect. 14. (u) Sect. 15.

(x) See ante, p. 739, sections of the act 36 et seq.