wrote to the plaintiff a letter, in which they said: "By the lease granted by you to Messrs. Tedder and Pridham, the lessees cannot underlet without your written consent, and the object of this communication is to ask you to be kind enough to give your written consent to the lease being vested in Messrs. Chirgwin and Hamilton, as you did when Mr. Wade took possession." In reply, the plaintiff wrote: "I have no objection to consent to the trustees, Messrs. Chirgwin and Hamilton, acting for Mr. Wade in respect of the two farms, to vest the same in their hands similar to the transfer I allowed Mr. Wade from Messrs. Tedder and Pridham." In February, 1867, Wade executed an assignment of all his estate and effects, including his interest in the premises, to Chirgwin and Hamilton as trustees, for the benefit of his creditors, and they entered into possession, paying rent, and so remained until November, 1867, when they entered into and signed an agreement with Mrs. Dobb (the defendant) for the sale to her of their interest in the farms. Mrs. Dobb thereupon took possession of the premises, and the plaintiff brought eject ment. The learned Judge was of opinion that there had been no forfeiture, and nonsuited the plaintiff, with leave to move to enter a verdict in his favour. A rule having been obtained accordingly, Pinder shewed cause.- - The defendant will contend, first, that the act of the trustees in selling the premises did not work a forfeiture, for the trustees and Wade, under whom they claimed, were only equitable assignees, and nothing done by them ought to affect Tedder and Pridham, who remained legal owners of the term; secondly, even if there had been a legal assignment to the trustees there would not have been a forfeiture, as the covenant was not expressed to be made by the lessees on behalf of their assigns, and therefore only bound the original lessees, who have committed no breach. With regard to the first point, the following decisions are material: Doe v. Payne (1), where the covenant was "not to assign, set over, or otherwise let the demised premises," and proof was given (1) 1 Stark. 86. that the defendant in ejectment was in possession of the premises, carried on business there, had placed his name over the door, and had said that he took the premises from two of the directors of the Commercial Sale Room, Lord Ellenborough said, "this does not prove that Dyer (the lessee) either assigned or let, and it is incumbent on the plaintiff to shew that he did either the one or the other: upon the evidence non constat that the defendant was not a tortious intruder. This evidence would not be sufficient even though Dyer had covenanted not to part with the possession." Seers v. Hind (2), where the Lord Chancellor said, "If A. lets a farm to B. with covenant not to alien, and B. dies, may not his executors dispose of it? I think it has been determined that they may; and I have always taken it as clear law. It is an alienation by the act of God." Roe v. Harrison (3), where Ashurst, J. says, speaking of a covenant not to assign, “If indeed the word 'executors' had not been inserted in the proviso, but it had been confined to an assignment by the lessee himself, it might have been doubted whether the restriction would have extended to the present case." With regard to the second point, that the covenant does not run with the land so as to bind the defendant, Whitchcot v. Fox (4) seems to shew that the right to enforce the clause of reentry is founded on contract, and that it does not run with the land so as to bind the assignee. But the more important cases are, Doe d. Cheere v. Smith (5) and Paul v. Nurse (6). In the first of these cases the covenant, for breach of which the power of re-entry was given, was that the lessee, his executors, or administrators, should not grant, demise, let, sell, assign, set over or part with the indenture of lease without the consent of the lessor. The lessee became bankrupt, his assignees took to the lease and sold it to a purchaser who underlet to the defendant. It was held that there was no forfeiture, the Court saying, "If he (the lessee) had actually assigned the lease while he remained lessee no doubt it would have been a breach of (2) 1 Ves. jun. 295. (3) 2 Term Rep. 425. (4) Cro. Jac. 398. (5) 5 Taunt. 795. covenant, but the covenant does not extend to assigns." The act of the lessee is therefore no forfeiture. In Paul v. Nurse (6) Bayley, J., speaking of the liability of the defendant, who was assignee of the lessee, says, "The plaintiff's remedy is by an action on the covenant not to assign. Besides, it may admit of some doubt whether the defendant is within the covenant, for the lessee only covenants that he, his executors or administrators, will not assign." The recent case of Williams v. Earle (7) is no authority against the defendant, for it merely decided that when in a covenant like this assigns are mentioned, it runs with the land. He also referred to 2 Platt on Leases, 272, 273, Woodfall's Landlord and Tenant, 9th edit., p. 550, Davidson's Conveyancing, vol. 5, 176 n. (c). Kingdon and Charles, in support of the rule.- Williams v. Earle (7) is identical with the present case. [BLACKBURN, J.-All I said in my judgment in that case was that the covenant so far touched and concerned the land as to come within the second resolution in Spencer's case (8) as to covenants where assigns are mentioned.] In Tatem v. Chaplin (9) a covenant that the lessee, his executors and administrators, should constantly reside upon the demised premises during the demise was held binding on the assignee though not named in the covenant. There can be no distinction in principle between such a covenant and the present one. Doe d. Cheere v. Smith (5) was decided upon the construction of the bankruptcy statutes; and it is submitted that this covenant runs with the land equally with those a list of which is given in Spencer's case (8). But, assuming that the covenant does not run with the land, the lessees have been guilty of a breach. Neither of the two succeeding assignees was ever anything at law, but tenant at sufferance. [BLACKBURN, J.-The only fact relied on as a forfeiture is that the lessees, with the assent of the lessor, have put themselves in a position in which they cannot prevent a breach of the covenant. A covenant not to part with possession does not amount to a covenant to resume possession when you have lawfully parted with it.] The moment that the lessor finds any one in possession of the premises without his permission he is entitled to bring eject ment. [BLACKBURN, J.-As soon as Wade was discovered to be in possession the prima facie inference was that he came in under the lessees, but when the real facts were known the inference was rebutted.] A tenant at sufferance has nothing to assign. To adopt the defendant's view would enable the premises to be transferred to a number of paupers in succession. Thirdly, the terms of the letter authorizing the first transfer only permitted a proper legal transfer of the lease and have not been pursued. The receipt of rent from Wade did not waive this irregularity, as the plaintiff was not aware of the real state of the case. They also referred to Bally v. Wells (10). Cur. adv. vult. The judgment of the Court (11) was (on May 31) delivered by BLACKBURN, J.-This was an action of ejectment tried, before myself, during the Spring Assizes, 1868, at Bodmin. It appeared on the trial that the plaintiff had, in 1860, demised the premises in question for fourteen years to Tedder and Pridham. This lease contained various covenants made by the lessees not expressed to be on behalf of their assigns; and amongst others, a covenant not to assign or part with the possession of the demised premises without the written assent of the landlord; and there was a clause of re-entry in case of the breach of any of the covenants. As the term had not expired by efflux of time, the question at the trial was whether it had been forfeited or not. The facts were not disputed. The plaintiff, by a letter addressed to Tedder and Pridham, dated the 25th of March, 1865, assented to a transfer (10) 3 Wils. 25, 33. (11) Cockburn, C.J., Blackburn, J. and Mellor, J. of the lease by them to one Wade, on the same terms as those on which they held it. Wade, who had purchased the term from them, entered into possession without having any formal assignment of the term. Wade continued in possession, paying rent, until 1867, when, by the written licence of the plaintiff, he assigned (inter alia) all his interest in the lease to Chirgwin and Hamilton as trustees for his creditors. It appeared that the plaintiff had assented to this transfer under the belief that, by an arrangement between the trustees and Wade, the family of Wade were to be allowed to continue in possession; but the trustees, taking a different view of the matter, sold the term to the defendant, and the defendant entered into possession. Two grounds of forfeiture were relied on at the trial: first, the unlicensed parting with the possession by Chirgwin and Hamilton, the trustees, to the defendants; and, secondly, the parting with the possession by the original lessees, Tedder and Pridham, to Wade without executing a transfer of the lease, so as to make him an assignee, and as such bound by all such covenants as ran with the land. A nonsuit was directed, reserving leave to enter a verdict for the plaintiff. Mr. Kingdon obtained a rule nisi accordingly, which was argued in the last term. There was much argument at the bar as to whether, upon the true construction of the covenant, as expressed in the lease, it bound the lessees themselves only not to assign, and was merely a personal restriction not affecting their assigns, or whether it was a covenant running with the land and binding every assign. In the view we take of the matter, it is not necessary to express any opinion on this point, as there never was, in our opinion, any assignee of the whole term, so as to be subject to any of the covenants in the lease; and therefore, if there was any forfeiture of the term, it could only be in consequence of a breach of covenant by the original lessees, Tedder and Pridham. It was also argued that the parting with the possession by Chirgwin and Hamilton, the trustees for Wade's creditors, to the defendant, was such a breach of covenant on the part of Tedder and Pridham, the original lessees, because, it was said, the law takes no notice of the relation of trustee and cestui que trust, and therefore it was argued that the possession of Chirgwin and Hamilton, the cestuis que trust, must be considered at law as the possession of Tedder and Pridham, and the change of the cestuis que trust from Chirgwin and Hamilton to the defendant must be considered a parting with the possession by the trustees, Tedder and Pridham, and consequently a breach of covenant on their part for which they would be liable in damages, though they neither were parties to the change nor had any power to prevent it. But no authority was cited in support of this very artificial reasoning. And we think it obvious that it involves in itself the fallacy of requiring the Court to hold (contrary to the fact) that Chirgwin and Hamilton (the assigning cestuis que trust) were merely servants to Tedder and Pridham, and yet to take notice that the defendant, to whom they transferred their equitable interest, was more than a servant to Tedder and Pridham. The second ground of forfeiture depends upon the effect of the written licence of the 25th of March, 1865. We do not doubt that the plaintiff might have granted a licence to assign the term so expressed as to forbid the lessees parting with the possession until a complete transfer of the legal interest had been executed. But the practice of letting a purchaser into possession before the legal estate is transferred is so common that, if it was intended to forbid such a change of possession, it ought to have been clearly expressed; and in the present case it was not. The utmost effect which can be given to the expressions in the letter is, that the landlord had a right to call upon the parties to complete the transfer of the legal estate; which he never did. The rule, therefore, must be discharged. Rule discharged. Attorneys-Coode, Kingdon & Co., for plaintiff; Hooke & Street, for defendant. Insurance on Life-Policy not containing Name of Person interested-Husband and Wife-14 Geo. 3. c. 48. s. 2. By the 14 Geo. 3. c. 48. s. 2, a life policy in which there is not inserted the name or names of the person or persons interested therein, or for whose use, benefit, or on whose account the policy is made, is unlawful. A husband, whose wife was a minor and entitled to a sum of money on attaining the age of twenty-one, applied to her trustees for an advance, which they agreed to make upon having the repayment of it secured by one J. in the event of the wife dying before attaining twenty-one. J. having consented to become security upon condition that an insurance was effected on the life of the wife, a policy was executed by an insurance company which was expressed to be made between them and the wife, who was described as a married woman. Neither the name of the husband nor that of any other person besides the wife was inserted in the policy as being interested in it:-Held, that the policy was void, as not containing the name of the husband or other person interested in it. Declaration by the plaintiff, William Evans, administrator of the personal estate and effects which were of Mary Ann Evans, deceased, who died intestate, against the defendant, as secretary of the Norwich Life Insurance Society, and duly appointed and liable by virtue of a statute passed in the fifty-third year of the reign of his late Majesty King George the Third to be sued as nominal defendant for the society, upon a policy of assurance bearing date the 2nd of November, 1863, made by the society in the lifetime of Mary Ann Evans, in which, -after reciting that Mary Ann Evans had agreed to effect an assurance on her own life with the society in the sum of 2001., according to the rules, regulations and conditions prescribed by the constitution thereof, and had, by herself or by her agent, made and signed a declaration in writing setting forth her age and certain particulars relative to her health, and had agreed to pay to the society the sum of 31. 19s. as a premium for the first year of such insur ance, and to continue such payment yearly during the term of her life,—it was declared that if Mary Ann Evans should die between the day of the date of the policy and the 1st of November, A.D. 1864, inclusive, or in the event of her living beyond the lastmentioned day, if she or her assigns should pay unto the society the sum of 37. 198. on or before the 2nd day of November in every subsequent year of the term, the funds and property of the society should, pursuant to the regulations, be subject and liable to the payment unto the executors, administrators and assigns of the assured, within three calendar months after satisfactory proof of her death should have been received by the directors of the society, of the sum of 200l., and such further sum or sums as should, at any time or times thereafter, be appropriated under the regulations of the society, as a bonus upon the insurance; provided always, that the policy should be void in any or either of the cases mentioned on the back of the policy, and the money paid on account of the insurance should be forfeited to the society. Averment, that afterwards, and whilst the policy remained in force, Mary Ann Evans died, and satisfactory proof of her death was, more than three months before this suit, given by the plaintiff to the directors of the society, and all premiums were paid and all conditions were observed and performed (except so far as the society waived and dispensed with the same), yet the plaintiff, as such administrator, has not been paid the sum of 2001. out of the funds and property of the society. Plea-That the policy was, in truth and in fact, made by the plaintiff in the name and on the pretended behalf of Mary Ann Evans, but for the use and benefit and on the account and behalf of the plaintiff, and not for the use, benefit, or on account of Mary Ann Evans, and that the name of the plaintiff was not inserted in the policy as the name of the person interested therein, or for whose use, benefit, or on whose account such policy was made; and the policy was and is an unlawful policy under and pursuant to the provisions of the statute in such case made and provided (1). (1) By the 14 Geo. 3. c. 48, after reciting that it has been found by experience that the making Replication, joining issue upon the plea. The following CASE was, by the consent of the parties, stated for the opinion of the Court, a copy of the pleadings to be annexed and to form part of the case, but the Court to have the power of amending the pleadings in accordance with the facts as found, should any amendment be neces sary. The late Mrs. Mary Ann Evans, the wife of the plaintiff, to whom she was married during her minority, was entitled under the will of her father to a sum of money upon her attaining the age of twenty-one years, viz., 2277. and upwards. After her marriage, and during her minority, her husband was in want of a sum of 2007., and applied to the trustees of her father's will to advance that sum to him in part payment of his wife's legacy, which the trustees agreed to do upon having the repayment of the money secured by a Mr. Jacobs in the event of Mrs. Evans dying before she attained the age of twenty-one years. Mr. Jacobs having consented to become security for the repayment of the money on condition of an insurance being effected on the life of Mrs. Evans, the 2001. was accordingly advanced by the trustees to the plaintiff, and the following policy of insurance was, on the 2nd of November, 1863, at the request of Mr. Jacobs, effected by the plaintiff with the Norwich Union Life Insurance Society in insurances on lives, or other events wherein the assured shall have no interest, has introduced a mischievous kind of gaming, it is enacted that, from and after the passing of the act, no insurance shall be made by any person or persons, bodies politic or corporate, on the life or lives of any person or persons, or any other event or events whatsoever wherein the person or persons for whose use, benefit, or on whose account such policies shall be made shall have no interest, or by gaming or wagering; and that every assurance made contrary to the true intent and meaning hereof shall be null and void to all intents and purposes whatsoever. 2. That it shall not be lawful to make any policy or policies on the life or lives of any person or persons, or other event or events, without inserting in such policy or policies the person or persons' name or names interested therein, or for whose use, benefit, or on whose account such policy is so made or underwrote. the name of his wife. The policy was in the words and figures following: "No. 34,766. 2007. Annual premium, 31. 198. - "Whereas Mary Ann Evans, of No. 44, South William Street, Cardiff, wife of William Evans, hath agreed to effect an insurance upon her own life with the Norwich Union Life Insurance Society, in the sum of two hundred pounds, according to the rules, regulations and conditions prescribed by the constitution thereof, and hath by herself, or by her assent, made and signed a declaration in writing, setting forth her age and certain particulars relative to her health, and hath agreed to pay to the said society the sum of three pounds nineteen shillings and pence as a premium for the first year of such insurance, and to continue such payment yearly during the term of her life. Now, know all men by these presents, that if the said Mary Ann Evans shall die between the day of the date of this policy and the 1st of November, 1864, inclusive, or in the event of her living beyond the last-mentioned day, if she or her assigns shall pay to the said society the sum of three pounds nineteen shillings and pence on or before the 2nd day of November in every subsequent year of the said term, the funds and property of the said society shall, pursuant to the said regulations, be subject and liable to the payment unto the executors or assigns of the said assured, within three calendar months after satisfactory proof of her death shall have been received by the directors of the said society, of the sum of two hundred pounds, and such further sum or sums as shall at any time or times hereafter be appropriated under the regulations of the said society as a bonus upon this insurance; provided always, that this policy shall be void in any or either of the cases mentioned on the back hereof, and the money paid on account of the said insurance shall be forfeited to the said society. In witness whereof the undersigned, being three of the directors of the said society, have hereunto set our hands and seals, the 2nd of November, A.D. 1863. "Thomas Beevor (L.S.) The conditions indorsed on the policy |