eration of the license he would perform all the covenants and conditions of the original lease, to be kept and performed by the lessee. There is such a wide difference between the case cited and the case under consideration that we do not regard the former case one which should control here, even if we were inclined to follow the Dumpor Case. We perceive no reason why the rule that a license once granted removes the condition may not be controlled by the contract of the parties. The stipulations in the first assignment are plain, and we see no reason why they did not carry with them the provisions for re-entry, contained in the lease, for a violation of its provisions."

The rule was stated in Springer v. Chicago Real Estate Loan & T. Co. (1903) 202 Ill. 17, 66 N. E. 850, as follows: "The assent declared that the assignment should be subject to each and every covenant, condition, and provision of the lease, and expressly provided that no further assignment of the said lease shall be. made without written consent,' and the law has no arbitrary rule that, under an assent so conditioned, the assignee who has accepted such assent and enters into possession thereunder is discharged from the condition of the lease and the assent, and may assign the lease at will."

Where the lessor, in consenting to an assignment by the lessee, agrees to consent to further assignment by the assignee, but on the condition that the proposed transferee must be a responsible person and one acceptable to the lessor, the assignor cannot transfer the lease without the approval of the transferee by the lessor. Adams v. Shirk (1901) 43 C. C. A. 407, 104 Fed. 54, rehearing denied in (1901) 44 C. C. A. 653, 105 Fed. 659.

III. Consent to sublease. The rule extending the consent of the landlord to an assignment of the lease to subsequent assignments has been held to be inapplicable to a provision against underletting or subleasing without consent. Seaver v. Coburn (1852) 10 Cush. (Mass.) 324; Miller v. Newton-Humphreville Co. (1920)

- N. J. Eq. 116 Atl. 325; Heeter v. Eckstein (1874) 50 How. Pr. (N. Y.) 445; Conger v. Duryee (1882) 90 N. Y. 594; Fidelity Trust Co. v. Kohn (1904) 27 Pa. Super. Ct. 374; Albig v. Norton (1905) 33 Pa. Co. Ct. 93; Farr v. Kenyon (1898) 20 R. I. 376, 39 Atl. 241; McKildoe v. Darracott (1856) 13 Gratt. (Va.) 278; Doe ex dem. Griffith v. Pritchard (1833) 5 Barn. & Ad. 781, 110 Eng. Reprint, 979, 2 Nev. & M. 489, 3 L. J. K. B. N. S. 11. See also Bleecker v. Smith (1835) 13 Wend. (N. Y.) 530, and West Shore R. Co. v. Wenner (1903) 70 N. J. L. 233, 103 Am. St. Rep. 801, 57 Atl. 408, 1 Ann. Cas. 790, affirmed in (1905) 71 N. J. L. 682, 60 Atl. 1134.

The rule as to subletting was stated in Fidelity Trust Co. v. Kohn (1904) 27 Pa. Super. Ct. 374, as follows: "A condition against underletting, though held by some authorities not to be strictly continuous, is not a single condition, since it is susceptible of more than one breach during the term; hence, a lessor who has a right of reentry in the breach of a covenant not to underlet does not, by waiving his right on one underletting, lose his right to re-enter on a subsequent underletting. Doe ex dem. Boscawen v. Bliss (1813) 4 Taunt. 735, 128 Eng. Reprint, 519; Taylor, Land. & T. 6th ed. §§ 412, 501; Jackson & G. Land & T. § 358, p. 217; 18 Am. & Eng. Enc. Law, 2d ed. 384. The evidence discloses nothing which would take this case out of the general rule above stated. also, it has been held that a consent by a lessor that a third party may occupy the leased premises for a specified business, under the lessee who is to be responsible for the rent, is a restrictive waiver of conditions not to sublet or carry on any other than the kind of business to which the lessee is restricted by the lease, and applies only to such third persons and to his specified business. Wertheimer v. Hosmer (1890) 83 Mich. 56, 47 N. W. 47. Whether the second subletting be regarded as within this principle, or as being a breach of the covenant which was waived by the subsequent acceptance of rent, the result is the same. This did not amount to a waiver

So,

of the condition against subletting, as the appellant's counsel argue, but only of that breach. The condition remained; and the defendants were not justified in assuming that a subsequent breach, by subletting another part of the premises to another subtenant, no matter who he might be, would be waived."

The difference between an assignment and a subletting, with respect to the rule in Dumpor's Case, was stated in McKildoe V. Darracott (1856) 13 Gratt. (Va.) 278, as follows: "The only difference between an assignment and an underlease, in this respect, is that the doctrine in Dumpor's Case (1578) 4 Coke, 119, 76 Eng. Reprint, 1110, in regard to assignments, has not been extended to underleases. It was held in that case that a license to assign any part is a dispensation of the whole condition, and the lessee or his assigns may assign all the residue without license. Whereas it has been since held that a lessor who has a right of re-entry on a breach of covenant not to underlet does not, by waiving his entry on one underletting, waive his right to re-enter on a subsequent underletting. Doe ex dem. Boscawen v. Bliss (1813) 4 Taunt. 735, 128 Eng. Reprint, 519, Archbold, 97. In the former case, the waiver is of the condition itself. In the latter, only of the forfeiture for a particular breach. But, in the latter, each breach is a complete, and not a continuing, act of forfeiture."

In Miller v. Newton-Humphreville

Co. (1920) - N. J. Eq. - 116 Atl.

325, it was contended that the consent by the lessor to the subletting in one instance, in effect, removed the provision in the lease requiring the lessor's consent. The court, however, pointed out that the rule relied on was limited to assignments, and did not apply to subleases. On this point it was said: "A distinction has almost uniformly been drawn by the courts, in the application of this rule, between an assignment of the lease and a subletting, and . . . the unsatisfactory rule of Dumpor's Case has been limited to assignments of the lease, and has not been extended to a subletting of the

premises, regarding such subletting as a continuing condition of the lease, which is not extinguished by a single consent. Gear, Land. & T. p. 285; Taylor, Land. & T. ¶ 501. The true rule applicable to the present situation is stated in 18 Am. & Eng. Enc. Law, at page 681, as follows: 'If the lessor consents to a subletting, the sublease is, of course, valid, though the lease expressly forbids all subletting; but the consent of the lessor to one subletting, or the waiver of one breach of the covenant against subletting, is no defense to a breach of the covenant by another and distinct sublease.' And this, I think, must be the rule to be followed in a case where, as here, the parties have expressly agreed that all the terms of the lease, including the provision against subletting, are made a condition of the consent to the present subletting; for, by this provision of the agreement, the original lease became a part of the contract to sublet."

In Wertheimer v. Hosmer (Mich.) supra, it was held that consent by the lessor that a third person might occupy the leased premises under the lessee for a specified business was operative only pro tanto, on the condition against subletting, or carrying on of other than certain business. The court said: "A covenant not to assign or underlet the leased premises without the assent of the lessor is frequently inserted in a lease, and is regarded as a fair and reasonable covenant. But a license once given removes the restriction forever, as the condition is treated as entire, and therefore not capable of being waived or released as to part; but in order to have that effect it must be such a license as is contemplated in the lease; that is, if the lease provides that the license shall be in writing, an oral license is not good. It is not to be understood, however, that this written stipulation not to sublet, unless by consent of the lessor in writing, may not be waived by an oral agreement; and such is not the contention of the counsel for the complainants here. The agreement to waive the condition as to Sprague, however, was not a

waiver of the condition in the lease as to other parties, or for the carrying on of other business not contemplated by the lease, or the business to be carried on by Sprague. The consent that Sprague might enter and conduct the business of selling small musical instruments and sheet music was a restrictive waiver of the condition, and applied only to Sprague and the business to be carried on by him. It gave Michell [the tenant] no right to lease to any other party, or to carry on a different business; and Sprague certainly could gain no greater rights than Michell had. The terms of the lease were not waived, but a license given to Sprague to enter and carry on that particular business, Michell to be holden for the rent. Sprague had no right to sublet, and Michell had no right to sublet, to anyone but Sprague, and for that particular business."

In Doe ex dem. Boscawen v. Bliss (Eng.) supra, while the court did not specifically distinguish between an assignment and a sublease, it was held that a lessor does not, by waiving his right of re-entry on one underletting, lose his right to re-enter on a subsequent underletting, the court stating that the rule in Dumpor's Case did not apply.

In Heeter v. Eckstein (1874) 50 How. Pr. (N. Y.) 445, which was a case of assignment, it was insisted that the rule governing underletting was applicable to consent to an assignment. This the court denied, and stated the difference between underletting and assignment as follows: "In the one case the lessee still remains the owner of the leasehold premises, and in the other he parts with his whole interest or estate. In

the one case the landlord could not, if he wished, maintain an action for rent against an undertenant, whereas against an assignee of a lease such an action by the landlord will lie. In the case of an assignment of a lease, no part of the estate ever reverts back to the original lessee, whereas, in the case of an underletting, at the expiration of the term the whole estate reverts to the original lessee, and he takes it again subject to the covenant. All of the cases which the counsel for the plaintiff has cited to show that the acceptance of rent after breach of a covenant is not tantamount to a license, but for any subsequent underletting the landlord may re-enter, are cases underletting only, and not cases of assignment."

In German-American Sav. Bank v. Gollmer (1909) 155 Cal. 683, 24 L.R.A. (N.S.) 1066, 102 Pac. 932, it was said: "Where the conditions are continuing in their nature, such as covenants for the payment of rent at stated intervals, or for the carrying on of only certain kinds of business in the demised premises, or against subletting without written consent, the consent to, or waiver of, a breach, does not preclude the right of the lessor to proceed against the lessee for subsequent breaches."

In Dreyfuss v. Process Oil & Fuel Co. (1917) 142 La. 564, 77 So. 283, it was held, without discussion of the operation of a consent to sublet as an abrogation of the provision requiring consent, that the consent given a lessee to sublet the ground floor of the premises for a certain business did not include a consent to sublet to the same person an upper floor for residential purposes. M. B.