When an instrument should be construed a lease or agreement.

Mode of preparing executory agreements.

If under a mere agreement for a lease at a certain rent, the tenant is let into possession before the lease is executed, the lessor cannot distrain during the first year, for there is in that case no actual demise, either express or implied. (Hegan v. Johnson, ubi suprâ.) The mere act of taking possession under an agreement renders the party tenant at will; and while that relation subsists no distress can be made; but an action on a quantum valebat may be maintained; but as soon as rent is paid under the agree ment, the occupier becomes tenant under an implied demise from year to year, according to the provisions of that agreement, and continues so until an actual lease is executed. (Hammerton v. Steed, 3 B. and C. 478.)

Whether an instrument shall be construed as a lease, or only an agreement for a lease, depends on the intention of the parties, as it is to be collected from the whole instrument. Although there be words of present demise, if it appear that the intent of the parties was to give a future lease, it shall be considered as an agreement only. (Morgan v. Bissell, 3 Taunt. 65. Doe v. Ashburner, 5 T. R. 163. Hammerton v. Steed, ubi suprâ.) And, è converso, words importing an intention of future completion may by the context work a present demise. (Barry v. Nugent, 5 T. R. 165.)

It seems that the best course to be pursued in preparing executory agreements for leases, when the term is to exceed three years, is to add a provision, that in the meantime, until a lease shall be executed in pursuance thereof, the tenant shall enter and occupy from a certain day, as tenant from year to year, and under the rents, covenants, and agreements stipulated to be inserted in the lease; but the agreement must not be under seal, for in that case it will require a deed-stamp. (Clayton v. Burtenshaw, 5 Barn. and Cress. 41; Robinson v. Dryborough, 6 T. R. 317.)

An Agreement for building a House.

Memorandum, that on this day of, &c., it is Parties. agreed between A. B., of, &c., and C. D., of, &c., in manner and form following. The said C. D., for the considerations hereinafter mentioned, doth for himself, his heirs, executors, and administrators, covenant and agree with the said A. B., his executors, administrators, and assigns, that he, the said C. D., or his assigns, shall and will, within the space of

next

after the date hereof, in a good and workmanlike manner, and according to the best of his knowledge and skill, well and substantially erect, build, and finish at

part

tion.

a house or messuage, according to the plan hereunto annexed, of the dimensions following, viz.: and erect the same with such stone or brick, timber, and other materials, as the said A. B. or his assigns shall find and provide for such purpose: In consideration whereof, the said A. B. doth Considerafor himself, his executors and administrators, covenant with the said C. D., his executors, administrators, and assigns, well and truly to pay unto the said C. D., his executors, administrators, or assigns, the sum of L. of lawful money of Great Britain, in manner following; (that is to say,) L. thereof at the beginning of the said work; L. more, another part thereof, when the said work shall be half done; and the remaining L in full for the said work, when the same shall be completely finished; and also that he, the said A. B., his executors, administrators, or assigns, shall and will, at his and their own proper expense, find and provide all the stone, brick, tile, timber, and other materials necessary for making and building of the said house. And for the true performance of all and every the Penal clause. articles, clauses, and agreements above mentioned, the said A. B. and C. D. do hereby bind themselves, their executors, administrators, and assigns, each to

K

Considera

tion.

the other of them in the sum of L.
to be re-
covered as liquidated damages." In witness, &c.

Agreement to let a Field for Building, &c. Memorandum of agreement made this day of, &c., between I. C., of, &c., Esq., of the one part, and W. H., of, &c., of the other part, as follows: That is to say,

In consideration of the said W. H., having agreed to build a dwelling-house, with all proper appurtenances thereto, on the piece or parcel of land, &c., as hereinafter mentioned, he, the said I. C., doth hereby promise and agree to and with the said W. H., that as soon as such dwelling-house as above-mentioned. shall be covered in, he, the said I. C., shall and will grant and execute a demise and lease of the said piece or parcel of land to him, the said W. H., his executors, administrators, and assigns, from day now last past for the term of then next ensuing, subject to the payment by the said W. H., his executors, administrators, or assigns, of an annual rent of L. besides all charges and taxes whatsoever; but so that during the first three years of the said term, it shall be lawful for the said W. H. to deduct and retain thereout one-third part of the said annual

By fixing the amount of damages in the penal clause, the necessity of a reference to a jury is prevented; (Astley v. Welden, 2 Bos. and Pull. 346.) Unless it be mentioned as liquidated or ascertained damages, the court will not consider it as such; the insertion of the words "penal sum" or "penalty" precludes the court from considering it as liqui dated damages; (Smith v. Dickenson, 3 Bos. and Pull. 630; Street v. Rigby, 6 Ves. 218;) but if the damages are inadequate, a court of equity will compel a specific performance; (Hobson v. Trevor, 2 P. Wms. 191; Goring v. Nash, 3 Atk. 186; Prebble v. Boghurst, 1 Swanst. 309;) but covenanting under a penalty will not prevent the covenantee waiving the penalty, and recovering damages for breach of the covenant; (Harrison v. Wright, 13 East, 343.)

rent for his own use and benefit; and it is hereby agreed that the said intended lease shall contain all usual covenants, and also covenants on the part of the said W. H., that no bricks, tiles, or other wares, shall be made upon the said premises; that the said premises shall not be used as inn, tavern, or public-house; that no trade or manufactory whatsoever shall be carried on, in, or upon said premises; that no gravel or loam shall be dug and sold, or any dilapidations or waste be committed or suffered on any part of the said premises; and that the said W. H. shall and will insure, and keep the said premises insured from fire in the sum of L.

And the said W. H. doth hereby promise and agree Counterpart. to accept and take such lease, and to execute a counterpart thereof, when tendered to him for that purpose, and to pay the said I. C., or his solicitor, the costs and charges of preparing and completing the said lease and a counterpart thereof.

And also, that he, the said W. H., shall and will, Plan. before he shall erect any building upon the said piece of land, submit to the inspection of the said I. C. a plan and elevation of the dwelling-house, out-offices, and apartments thereon to be erected as after-mentioned, for his approbation; and when and so soon as such plan and elevation shall have been approved by him, shall and will forthwith proceed to erect, and, within the space of months then next ensuing, cover in, finish, and complete, in a substantial and workmanlike manner, a good and substantial brick-built messuage or dwelling-house, with suitable chaisehouse, stables, offices, and appurtenances, and fencewalls, agreeably to the said plan so approved, at his, the said W. H.'s, own proper costs and charges; and that the dwelling-house shall be placed at not less than feet from a private road, intended to be made on the north-east side of the said land, at the expense of the said I. C.; and that no building which shall be erected at more than the space of

feet beyond the back line of the back front of

Parties.

Considerations.

To serve.

Secrecy.

the said dwelling-house shall be built of any height
above feet from the surface of the ground; and
that the said W. H. shall lay out and expend in the
building of the dwelling-house, exclusive of all other
erections, a sum not less than L.
; and shall and
will, at his own expense, erect forthwith a park paling
of oak of five feet in height from the surface of the
ground, on the sides of the said piece of land so agreed
to be taken by him as aforesaid.

In witness, &c.

Agreement between a Master and his Clerk." Articles of Agreement, &c., between A. B., of, &c., and C. D., of, &c.

The said C. D., for the considerations hereinafter mentioned, doth hereby, for himself, his executors, and administrators, covenant, promise, and agree to and with the said A. B., his executors and administrators, by these presents, that he, the said C. D., shall and will, during the space of to commence from the day of the date hereof, dwell, continue, and abide in the house of the said A. B., and him diligently and faithfully serve during the said term in keeping the books of account of him, the said A. B., and in such other employment, business, and affairs, as he, the said A. B., shall think proper to employ him in during the said term; and therein shall, from time to time, and at all times during the said term, observe, fulfil, and keep the lawful and reasonable commands and directions of the said A. B., without disclosing the same, or the secrets of his employment, business, or dealings, to any person or persons whomsoever; and shall not at any time hereafter during the said term correspond with any person or persons corresponding with the said A. B., nor use any traffic or dealing in the way of the said A. B., either for himself or any person or persons, other than the said A. B., without the permission and

"This precedent may be applied to a master and servant.