(c) Re Higgins and Percival, 1888, W. N. 172.

(d) Rinqer to Thompson, 51 L.J. Oh. 42.

(e) Ahove, pp. 80, 357.

(f) See Wms. Real Prop. .508. 509, .515, 21st ed. By stat. 55 & 56 Vict. c. 13, s. 3, agreements in leases against assigning or underletting without licence shall, unless the lease contain an express provision to the contrary, be be deemed to be subject to a proviso that no fine shall be payable for such licence. It has been held that this enactment does not make the payment of such a fine an illegal payment; so that if a fine be voluntarily paid, it cannot be recovered back. But if the lessor refuse to give the licence on on payment of a fine, the lessee may lawfully assign or underlet without the licence; see Waite v. Jennings, 1906, 2 K. B. 11: Jenkins v. Price, 1907, 2 Ch. 229, 233, 234, reversed on other grounds, 1908, 1 Ch. 10; Andrew v. Bridgman, 1908, 1 KB. 596. So if a lease contain a covenant not to assign without the lessor's licence, such licence not to be unreasonably withheld, and the lessor do unreasonably refuse his licence to assign the lessee may lawfully assign the demised premises without the licence: Botes v. Donaldson, 1896, 2 Q. B. 241; Jenkins v. Price, ubi sup. But he has no right of action against the lessor to recover damages for unreasonably refusing the licence: Treloar v. Bigge, L. R. 9 Ex. 151; Sear v. Souse Property, etc. Society, 16 Ch. D. 387. He may, however, bring an action against the lessor for a declaration that he is entitled to assign without licence: Young v. Ashley Gardens, etc, 1903. 2 Ch. 112. This case was not cited in Jenkins v. Price, ubi sup., where Swinfen Eady, J., considered that the lessee ought not to have the costs of bringing such an action. But this ruling was followed by Eve, J., in Evans v. Levy, 1910, 1 Ch. 453.

(g) Bain v. Fothergill, L. R. 7 H.L. 158.

(h) See above, pp. 164 - 166.

(i) Monro v. Tat/lor, 3 Mac. & G. 713. 714, 722: Ellis v. Sogers, 29 Ch. D. 661; Day v. Singleton, 1899, 2 Ch. 320, 327: and Smith v. Butler, 1900, 1 Q. B. 694.

(k) Lehmann v. McArthur, L. R.

3 Ch. 496. In Day v. Singleton, 1899, 2 Ch. 320, 327, 328, there are dicta to the apparent effect that the vendor would in such case he liable at law for breach of the contract; but it is submitted that they must be read as referring to an open contract to sell such leaseholds. In that case the sale was expressly made subject to the landlord's consent to the transference of the lease. This, it it is submitted, would clearly absolve the vendor from breach of the contract at law, if he tried Lis best but failed to obtain the necessary consent.

(l) Bay v. Singleton, ubi sup.

(m) Above, p. 37.

(n) See above, p. 351.

(0) See 1 Davidson, Prec. Conv. 562, 5th ed.; Davidson's Concise Prec. 120, 18th ed.

(p) See 1 Key & Elph. Prec. Conv. 292, 8th ed.

(q) Crusoe d. Blencowe v. Bugby, 2 W. Bl. 766; Church v. Brown, 15 Ves. 258, 265.

(r) Gentle v. Faulkner, 1900, 2 Q. B. 267. See also Horsey Estate, Limited v. Steiger, 1899, 2 Q. B. 79; Grove v. Portal, 1902, 1 Ch. 727.

Where land-lord's consent not to be unreasonably withheld.

If a lessee for years, holding at a rent and subject to lessee's covenants, assign over part of the demised land, the assignee is liable to be distrained upon for the whole of the rent reserved (x); although if the lessor sue him personally for the rent, either in debt or on the covenant to pay the rent, he will only be liable to pay an apportioned part of the rent proportionate to the value of the land he holds, as his personal liability to pay the rent arises only from the privity of estate between him and the lessor (y). It has been held that, if an assignee of part of land let on lease pay the whole rent reserved by the lease under threat of distress, he cannot assert a right of contribution to such payment against an under-lessee of the other part of the land, for the right to contribution only arises either at law or in equity where both parties are subject to a common liability (a). It is submitted, however, that in such case the party so coerced to pay the whole rent is not without remedy. He has paid off a charge upon the whole of the lands comprised in the lease (a), and on general principles of equity he should be entitled to the benefit of the charge, and to stand in the lessor's place as against that part of the demised premises which he does not hold himself (b). If a lessee for years holding subject to a proviso for re-entry on breach of covenant assign over part of the demised land, the lease remains determinable as to the whole of the demised premises on any breach of covenant; so that the lessor could re-enter upon the assignee for breach of covenant committed after the assignment by the original lessee with respect to the other part of the land (c). If, therefore, a tenant for years holding at a rent and subject to lessee's covenants and a proviso for re-entry on breach of covenant sell part of the land leased to him, and represent that the property sold is held at a rent less than that which he has to pay for the whole of the land, the purchaser could object to the title on the ground that the land sold is charged with the whole of the rent, and is subject to forfeiture for breach of covenant committed in respect of the rest of the land leased (d). It follows that on a sale of part only of land held on lease for years, special stipulation must be made precluding objection to the title on these grounds, and providing for apportionment of the rent as between the vendor and the purchaser (e). As already mentioned, when leasehold property is sold in lots, it is usually stipulated that one of the purchasers shall take an assignment of the lease, and the others shall accept underleases either from that purchaser or from the vendor (f).

Sale of part of land held by lease for years.

(s) See above, p. 359, n. (f). But of course the vendor would have a good title to assign after he had obtained, in an action against his landlord, a declaration of his right to assign without the landlord's consent.