of Wee Majorly Majesty Cap. 30, to amend
Properly
Queen Victoria
the Law of
in relation to Covenants
and conditions in Leases, N:11 of
1898.
Lendose the Attorney
General's report, and trust that
This enactment will receive Oter
jesty's gracions confirmation
Majesty'
and all avance).
I have the hover to be.
My Lord. Your Lordship is most obredient
humble sement.
Lellesmede
Governor.
Endore Me
12850
73
86
Mongh Torig.... Ordinance N.11 of tep
top.
Law of Property, (Lease)
of
Statement of Objects and Reasons.
The tenure of land in this Colony being exclusively Lenschold, it is very desirable to keep pace as much as possible with recent Imperial Legislation relating to Leases and to extend to this Co- lony such Amendments in the Law on that subject applicable to local circumstances as are from time to time introduced in England. The Provisions of the proposed Ordinance are taken from the Imperial Act 22 and 23 Vic., c. 35, and are of so technical a nature that it would be scarcely practicable in the space allowed by this Report to enter into any detailed explanation of them. The fol- lowing sketch however of the origin and history of the Act of Parliament will suffice to show its practical importance as affecting the law of Leasehold Property.
The doctrine of the Common Law is that a condition is indi- visible and cannot be apportioned. Therefore it was held so far back as the reign of Queen Elizabeth, that if there be in a Lease a con- dition not to assign without the licence of the Lessor and such Licence be once granted in favor of a particular person the con- dition is released and extingiushed and such person and all sub- sequent Assigness of the Lease may dispose of their interest therein without any further licence from the Lessor (Dumpor's case 4, Coke 119.)
"The Profession have always wondered at Dumpor's case" says Lord Mansfield (in Doe v. Bliss, 4 Taunton 736) "but it has been Law so many centuries that we cannot now reverse it.' Lord Eldon also remarks (ia Brummel v. Macpherson, 14 Vesey 173) "Though Dumpor's case always struck me as extraordinary it is the Law of the land."
Much discussion appears to have arisen as to whether the Rule applicable to a condition governs a covenant to the like effect by the Lessee "his Executors, Administrators and Assigns." Ne- vertheless the Real Property Commissioners in 1832 declared the rule to be the same with respect to a covenant as it is with respect to a condition and they recommended an Amendment of the Law by the Imperial Legislature (3rd Real Property Report 49). Ac- cordingly in 1836 a Bill for "An Act to simplify the transfer of Property" was presented to Parliament by Lord Lyndhurst con- taining a clause intended to carry into effect the recommendation of the Real Property Commissioners, but the Bill did not pass into Law. A similar clause was afterwards contained in another Bill presented by Lord Lyndhurst in 1844 for "An Act to simplify the Transfer of Property," but the clause was expunged and the Act was passed without it.
The Law was shortly afterwards amended in Ireland, but it was not until the year 1859 that the Imperial Act was passed from which the clauses of the proposed Ordinance are taken.
The Bill comprises other Provisions taken from the same Act of Farliament conferring Power upon the Supreme Court to grant relief from Forfeiture of Leases for breach of conditions relating to Fire Insurance.
12th August, 1873.
JULIAN PAUNCEFOTE,
Attorney General.