Doe dem. Palk, Bart. against Marchetti
| Jurisdiction | England & Wales |
| Judgment Date | 14 January 1831 |
| Date | 14 January 1831 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 953
IN THE COURT OF KING'S BENCH.
S. C. 9 L. J. K. B. O. S. 126. Referred to, Wadham v. Postmaster-General, 1871, L. R. 6 Q. B. 648; Harman v. Ainslie, [1904] 1 K. B. 704.
doe dem. palk, bart, against makohetti. Friday, January 14th, 1831. A proviso in a lease, giving power of re-entry if the tenant make default in performance of any of the clauses by the space of thirty days after notice, does not apply to the breach of a covenant not to allow alterations in the premises, or permit new buildings to be made upon them without permission ; and an undertenant having erected a portico contrary to the covenant, and notice having been given to him to replace the premises in their former state, which he neglected to do for thirty days: Held, that no forfeiture was incurred. Premises being demised and under-let, the first tenant surrendered his lease and took a new one with similar covenants. The under-tenant continued in possession, and never surrendered. QuOTe, whether special covenants in the new lease, coextensive with those in the old, (as not to erect new buildings without leave,) could be enforced by the head landlord against such under-tenant, as " duties reserved " by the second lease, within 4 G. 2, e. 28, s. 6 ? [S. C. 9 L. J. K. B. 0. S. 126. Referred to, Wadham v. Postmaster-General, 1871, L. R. 6 Q. B. 648; Harmon v. Ainslie, [1904] 1 K. B. 704.] This cause came on to be tried at the Devon Spring Assizes 1830, and was referred to a gentleman of the Bar. The award having been made, a rule was obtained calling on the lessors of the plaintiff to shew cause why [716] it should not be set aside, on the grounds hereafter stated. The material parts of the award were in substance as follows:- By indenture, August 10th, 1815, Sir Lawrence Vaughan Palk demised to Gilbert Hearder a dwelling-house at Torquay for ninety-nine years, if the said Gilbert and two other persons, or either of them, should so long live, yielding a certain rent. The indenture contained the following covenant:-" That the said G. H., his executors, administrators, or assigns shall not permit any part of the walls or buildings of the said demised premises at any time to be raised higher than is stated in the plan thereof, nor to be varied therefrom in any respect whatsoever; and shall not suffer any sort of buildings to be erected in the garden or curtilage, nor any windows or opening to be made in the walls of the said premises, without the previous written consent of the said Sir L. V. Palk or his heirs therefore." To which the following proviso was added :-" And if...
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