seem, to have inserted the words, "reasonable wear and tear excepted" (27 S. J. 177).

Default in payment of rent (qy. also Bankry of lessee, Church v. Brown, 15 Ves. 268: Haines v. Burnett, 27 Bea. 500: but certainly not the words "if any execution should issue against him," Hyde v. Warden, 47 L. J. Ex. 128; 3 Ex. D. 72) is the only "Usual " ground of Forfeiture (Hodgkinson v. Crowe, 10 Ch. 622; 44 L. J. Ch. 680; 23 W. R. 885: Conv. & L. P. Act, 1881, s. 18, sub-s. 7): except where the use, or non-use, of the premises for particular purposes is of the essence of the bargain between the parties, e.g. a proviso in a lease of a public-house for re-entry in the event of the premises being used for carrying on another business than that of a licensed victualler, which is a "usual" proviso (Bennett v. Wormack, 6 L. J. O. S. K. B. 175; 7 B. & C. 627: Vh. Seton, 1322).

A covenant against assigning or underletting is not "Usual," not even when it is stipulated that the landlord's assent shall not be unreasonably withheld (Church v. Brown, 15 Ves. 258: Hodgkinson v. Crowe, sup. : which latter case distinctly over-rules Haines v. Burnett, 27 Bea. 500; 29 L. J. Ch. 289, per Jessel, M. R., Hampshire v. Wickens, 47 L. J. Ch. 245 ; 7 Ch. D. 555. And of course the nisi prius decision of Lord Kenyon in Morgan v. Slaughter, 1 Esp. 8, is now of no value. Va. Wilcox v. Redhead, 49 L. J. Ch. 539: Buckland v. Papillon, 2 Ch. 67); nor is it a "usual” clause which requires a lessee of a public-house to give notice to the lessor or his solicitor of an assignment of the lease (Brookes v. Drysdale, 3 C. P. D. 52; 26 W. R. 331).

Note.-Although the law is thus clear against the usuality of clauses restricting assignment, yet when a clause restricting assignment is in fact inserted in a lease and forfeiture is prescribed to follow on its breach, that is not a forfeiture against which relief is provided by the Conv. & L. P. Act, 1881 (s. 14, sub-s. 6).

A question has been raised (27 S. J. 177) as to whether a covenant obliging the Lessee to Insure could be insisted on as "Usual." The opinion there expressed is that it could: Mr. Davidson says that "probably " it could not (Prec. 3 Ed., "Leases," Vol. 5, pt. 1, p. 53); and to that effect is Wilcor v. Redhead, 49 L. J. Ch. 539.

Probably the most difficult question on what "Usual" clauses might be insisted on in leases, would arise as to Restrictions prohibiting the absolutely unfettered use and enjoyment of the premises during the term at the free will of the lessee. It is merely common learning to say that, generally speaking, no such restrictions could be insisted on (Church v. Brown : Hodgkinson v. Crowe, sup.). But where, as previously suggested, the use, or non-use, of the premises for particular purposes is of the essence of the bargain between the parties, there it would be proper and "usual” to provide for such use, or against such non-use. Such a doctrine would seem to be well within the meaning of "special circumstances" referred to in the extract given above from Davidson and the commentary of the M. R.

thereon in Hampshire v. Wickens. No doubt the application of the doctrine just enunciated would, in many cases, be difficult. But in Bennett v. Wormack (sup.) it was held that a lessor of a public-house is entitled, as a "usual" clause, to have a proviso forfeiting the lease in case of the premises being used for a business other than that of a licensed victualler; and à fortiori he would be entitled to a covenant against such a use and if so, why should he not be entitled to a similar covenant with an accompanying proviso for re-entry for the purpose of ensuring that the business. of a licensed victualler shall be carried on uninterruptedly during the whole of the term and the necessary certificates and licences duly taken out by the lessee? This would be only the completion of the rule of which the other part was established by Bennett v. Wormack. Without this further provision a lessee might destroy or imperil that part of the property-its character of monopoly as licensed premises, which is the subject-matter of the lease, and the upholding of which may fairly be regarded as of the essence of the bargain between the parties.

But besides public-houses may not there be other property the peculiar characteristics of which would as much be entitled to protection? Thus in Hyde v. Warden (47 L. J.121; 3 Ex. D.72: Vth. Reeve v. Berridge, 20 Q.B.D. 523) a covenant not to mow meadow land more than once a year was held not unreasonable or unusual. Of course conditions in restraint of trade are, generally speaking, not "usual" (Propert v. Parker, 3 My. & K. 280 : Van v. Corpe, Ib. 269; 6 L. J. Ch. 208: Wilcox v. Redhead, 49 L. J. Ch. 539: Wilbraham v. Livesey, 18 Bea. 206); but as was suggested in the last-named case, supposing a house be situate in the most fashionable part of London, with circumstances under which to carry on trade in it would be seriously to diminish its value; would not that be pro tanto destroying the thing leased, against which the lessor would be entitled to a covenant and clause of forfeiture as a fair and "usual" term of the contract? So, too, of premises where a business of very long standing has been carried on, and the continuance of which business on the premises demised would be fairly collected as of the essence of the bargain. So, too, perhaps, where premises are specially and exclusively adapted for a special kind of occupation, that kind of occupation ought to be preserved by proper "usual" clauses. So again where the continuance of workings goes to the preservation of the thing demised,-e.g. pumping water from a mine,—that would seem of the essence of the bargain which the lessor should be able to insist on providing for (V. Strelley v. Pearson, 15 Ch. D. 113; 49 L. J. Ch. 406; 28 W. R. 752; 43 L. T. 155).

It may be added that an Agreement for a Lease, which stipulates that the lessee is not to use the premises for other than a specified trade, and providing for all usual covenants, does not warrant the insertion in the Lease of an affirmative covenant by the lessee that he will carry on such trade during the term (Doe d. Bute v. Guest, 15 M. & W. 160).

S.J.D.

3 I

Vf. as to usual covenants in Leases, Dart. 191, 192; Woodf. 120–123, 664; and in Mining Leases, MacS. 196, 197.

Leases under Powers.-Where the power requires that "the Usual and Reasonable covenants " shall be inserted, the lease must contain such covenants as were contained in leases of the same property at the time of the creation of the power; otherwise the power will not be well executed (Doe d. Egremont v. Stephens, 13 L. J. Q. B. 350; 6 Q. B. 208): but, there the court "inclined to think" that such words in a Power as "usually so leased," would not prevent the joining in one lease of tenements that had generally been let separately, provided all the tenements were comprised within the power. Vf. Doe d. Egremont v. Williams, 17 L. J. Q. B. 154 ; 11 Q. B. 688: Woodf. 205, 206.

As to "Usual" clauses in Underleases ; V. Williamson v. Williamson, 43 L. J. Ch. 738; 9 Ch. 729: Haywood v. Silber, 30 Ch. D. 404; 34 W. R. 114.

As regards Deeds in general; what is "Usual" has (when the point is uncovered by authority) to be determined "according to the practice and customs of conveyancers in such cases" (per Kay, J., Hart v. Hart, 50 L. J. Ch. 702; 18 Ch. D. 670; 30 W. R. 8); in which case it was held that the dum casta clause, in a Deed of Separation between husband and wife securing an allowance to the latter, is not "usual" (Va. Gandy v. Gandy, 51 L. J. P. D. & A. 41; 7 P. D. 168: Harrison v. Harrison, 56 L. J. P. D. & A. 76; 12 P. D. 130; 57 L. T. 119; 35 W. R. 703. Vƒ. Lister v. Lister, 24 L. J. Notes of Ca. 104); but a clause that a trustee shall be found for the wife "who will enter into such covenants as in such a deed a trustee usually enters into on behalf of the wife with the husband" (Hart v. Hart, sup.) is "usual."

A clause providing for a three months' notice prior to sale is usual in a Mortgage (Craddock v. Rogers, 53 L. J. Ch. 968).

As to Usual Clauses in Partnership Articles; V. Lindl. 830 et seq. The cases there digested, though full of valuable suggestion as to what ought to be inserted in Partnership Articles, hardly lay down rules for determining what clauses would be judicially inserted under an agreement stipulating for "usual" clauses. Still they throw much light even on that difficult question.

The following are Usual Powers in Settlements pursuant to articles : -Leasing for 21 years: Sale and Exchange: Maintenance and Advancement Varying Securities: Appointment of New Trustees: Partition where Property joint: Leasing Mines: Building Leases where the land is fit for building, unless mere occupation Leases for (say) 21 years have been expressly prescribed and then, on the principle expressio unius exclusio alterius, building leases would be excluded (Lewin, 127, 128, and cases there cited). Powers to Jointure or other powers to confer personal privileges would not, generally speaking, be "usual” (Ib. 127). Va. Settled Land

Act, 1882, ss. 3, 4, 6 et seq.; Conv. & L. P. Act, 1881, ss. 42, 66; and Vth. Lewin, 129. Vf. Macqueen on Husband and Wife, 3 Ed. 240.

In an open Contract to sell a Lease, and even where the liability of the lessee to deliver up in good repair is excluded in the case of " Fire," it is not "usual" to further restrict such liability by adding the words " or other Casualty" (Crosse v. Morgan, 60 L. T. 703; 37 W. R. 543).

"Usual and Proper" Books of Account; V. BUSINESS TRANSACTIONS. V. PROPER.

USUAL AGENCY TERMS.-" Usual Agency Terms," as between a Country Solicitor and his London Agent, means, that "the London Agent is entitled to be paid by the Country Solicitor all his disbursements out of pocket. But there are a number of other charges which are known as 'Profit Charges,' and the question has been raised whether the London Agent is entitled to half the profit made by the Country Solicitor, or only to half the 'Profit Charges.' We have consulted Mr. Ryland, the Taxing Master, and he has told us that the London Agent is only entitled to half the Profit Charges,'-that is, the charges which do not involve any expenditure by him, and that the London Agent has nothing to do with. the profit made by the Country Solicitor" (per Cotton, L. J., Ward v. Lawson, 38 W. R. 300; 43 Ch. D. 353: Vh. 34 S. J. 190, 191).

USUAL AND CUSTOMARY MANNER.-"Where by the terms of a Charter-Party the ship is to Deliver the Cargo' in the Usual and Customary Manner,' the obligation which attaches is only that the merchant and shipowner shall each use reasonable despatch in performing his part, and there is no implied contract that the discharge shall at all events be performed in the time usually occupied at the particular port. Therefore, where, owing to a threatened bombardment, the authorities at the port of discharge refused for several days to allow the discharge of cargo to proceed, so that during those days neither party to the contract could perform his part of the contract, it was held that the loss from delay must fall on the ship-owner" (1 Maude & P. 409, citing Ford v. Cotesworth, L. R. 4 Q. B. 127; 5 Ib. 544; 38 L. J. Q. B. 52; 39 Ib. 188; 9 B. & S. 559; 10 Ib. 991 Cunningham v. Dunn, 3 C. P. D. 443; 48 L. J. C. P. 62).

"Load in the usual and customary manner: "-this phrase seems to apply only to the mode of loading when the vessel has arrived at the loading berth, and to have no reference to a detention outside the loading place (1 Maude & P. 408, citing Tapscott v. Balfour, L. R. 8 C. P. 46; 42 L. J. C. P. 16 per Pollock, C. B., Lawson v. Burness, 1 H. & C. 400 : and per Brett, L. J., Nelson v. Dahl, 12 Ch. D. 588: Va. Kay v. Field, 8 Q. B. D. 598; 10 Ib. 241; 52 L. J. Q. B. 17).

USUAL AND MOST APPROVED WAY.-A compliance with a covenant to work Mines "in the usual and most approved way" will not

exonerate from responsibility on other grounds for letting down the Surface (Davis v. Treharne, 6 App. Ca. 460; 50 L. J. Q. B. 665; 29 W. R. 869).

USUAL BUSINESS.-As to what is the "Usual Business of an Hotel and Tavern ;" V. Simpson v. Westminster Palace Hotel Co., 29 L. J. Ch. 561; 2 D. G. F. & J. 141.

USUAL COVENANTS: CLAUSES.-V. USUAL.

USUAL DESPATCH.-"Where Charterers contracted to load a cargo of coals on board with Usual Despatch,' it was held that they were bound to load the vessel with the usual despatch of persons who have a cargo ready for loading at the port; and that they were liable for a delay caused by a severe frost which rendered unnavigable the canal along which coals were to be brought" (1 Maude & P. 317, citing Kearon v. Pearson, 7 H. & N. 386; 31 L. J. Ex. 1).

"To be loaded with the Usual Despatch of the Port;" V. Ashcroft v. Crow Co., 43 L. J. Q. B. 194; L. R. 9 Q. B. 540.

Vh. Postlethwaite v. Freeland, 5 App. Ca. 622; 49 L. J. Ex. 630: Elliott v. Lord, 52 L. J. P. C. 23; 48 L. T. 542; 5 Asp. 63.

USUAL PLACE OF ABODE.-A clause of Forfeiture in case of the devisee not making the mansion-house "his Usual and Common Place of Abode and Residence," is not void for uncertainty (Wynne v. Fletcher, 24 Bea. 430). V. RESIDE.

"Last or most Usual Place of Abode," s. 1, 11 & 12 V. c. 43 ; V. R. v. Smith, L. R. 10 Q. B. 604: LAST.

"Place of Abode ; " V. PLACE.

USUAL PLACE OF RELIGIOUS WORSHIP.-By s. 32, 3 G. 4, c. 126, persons "going to or returning from his, her, or their Usual Place of Religious Worship, tolerated by law on Sundays," were exempted from Turnpike Toll ;-A Primitive Methodist Minister had assigned to him the Sunday and other services of a district comprising the parish of F. The days on which, and the places at which, he was to attend were fixed at regular quarterly meetings of the Methodists and printed on a "Plan." According to this Plan the Minister had to preach at F. on three Sundays each quarter, and elsewhere on other Sundays; held, that in going to F., on the Sundays indicated in the Plan, to conduct the Services there, the Minister was going to his "Usual Place of Religious Worship," within the exemption (Smith v. Barnett, L. R. 6 Q. B. 34; 40 L. J. M. C. 15 ; 23 L. T. 746: Vf. Lewis v. Hammond, 2 B. & Ald. 206). The fact of the carriage being driven by another person than the Minister would not, semble, subject the carriage to toll (28 J. P. 735: Layard v. Ovey, 37 L. J. M. C. 148; L. R. 3 Q. B. 415; 18 L. T. 632; 32 J. P. 293).