attached; Parke, B., observing, "that where words are so clear, parties must be bound by their own express stipulations, however absurd."(a) Where the lease contained a proviso for re-entry on the lessee assigning without license, and the lessee executed a deed purporting to con vey all his property, real and personal, to trustees, for the benefit of his creditors, and afterwards a commission of bankrupt was taken out against him, and he was duly declared a bankrupt; it was held that the trust-deed, being an act of bankruptcy and void, did not [*182] *operate as a *valid assignment of the lessee's interest in the lease, nor create a forfeiture.(b) It has been doubted whether a proviso that the lease shall cease, and from thenceforth become absolutely void if the lessee shall, during the continuance of the term, "happen to become insolvent and unable in circumstances to go on with the management of the farm," attaches upon the attaintment of the lessee of felony. But at all events it is not a continuing breach. It attaches, if at all, upon the conviction, and may be removed by a subsequent receipt of rent.(c) Where a lease contained an exception out of the demise of all the trees upon the demised premises, and also a proviso, for re-entry if the defendant should commit any waste in or upon the said demised premises, it was held to be no forfeiture of the lease, to cut down the trees excepted; for that waste could only be committed of the thing demised, and the trees were excepted out of the demise.(d)[1] (a) Doe d. William v. Davies, 6 C. & P. 614; S. C., 5 Tyrr. 125. (b) Doe d. Lloyd v. Powell, 5 B. & C. 308. (c) Doe d. Griffith v. Evans, 5 B. & Ad. 765. (d) Goodright d. Peters v. Vivian, 8 East, 190. [1] Where a jury would not be warranted by the evidence in an action under the statute for waste, to find a verdict for the plaintiff, a judge is not authorised in an action of eject. ment, founded on an alleged forfeiture for waste, to instruct a jury that the acts complained of, simply because done without the permission of the landlord, work a forfeiture of the tenant's right; he should submit the question to the jury to determine whether the acts done were in fact prejudicial to the plaintiff's interest. Jackson ex dem. Thomas v. Tibbits, 3 Wen. Rep. 341. It seems, that if the waste be committed in a dwelling-house, part of the property demised, only such parts of the dwelling-house are forfeited as the waste is committed in. Ib. Waste by dowress, or other tenant for life, will not support a recovery in ejectment by the revisioner. Robinson v. Miller, 2 B. Monroe Rep. 284. A covenant, "not to permit any trade or business whatsoever," to be exercised upon the demised premises, is broken by an assignment to a schoolmaster, who kept his school upon the premises. (a) A covenant that the lessee shall not exercise the trade of a butcher upon the premises, is broken by selling there raw meat by retail, although no beasts were there slaughtered. (b) A covenant not "to use premises for the sale of pork," would, it seems, be broken by exposing carcasses of swine on *the premises, and making bargains there for sale, although the carcasses be taken to other premises to be cut up, and the bills for the meat supplied be made out as from such other premises. (c) A proviso for re-entry if the lessee shall permit *any person [*183] to inhabit the premises who should carry on certain specified trades, (that of a licensed victualler not being one,) or any other business that might be, or grow, or lead to be offensive, or any annoyance or disturbance to any of the lessor's tenants, is not broken by the opening of a public house.(d) Where a lease contained a covenant "to insure and keep insured a a given sum of money upon the premises during the term, in some suf ficient insurance office," the covenant was interpreted, by reasonable intendment, to mean insurance against fire; and the lessee, having insured the proper sum, but omitted to pay the annual premium within the time allowed by the office for payment, was held to have forfeited his lease upon a clause of re-entry, although he paid the premium within fourteen days after such time, and no action had been commenced, and no accident had happened by fire, to the premises, in the mean time.(e) But where, in pursuance of a similar covenant, the les (a) Doe d. Bish v. Keeling, 1 M. & S. 95. (b) Doe d. Gaskell v. Spry, 1 B. & A. 617. (e) Coe d. Davis v. Elsam, 1 M. & M. 189. In this case, the proviso was thus worded, that it should be lawful for the lessor to re-enter, "if any auction should be had on the premises, or use them for the sale of pork," it was objected that these words were ungrammatical and insensible; but it was ruled by Lord Tenterden, that the proviso must be considered to have the same effect as if it had been expressed “in case the premises should be used for the sale of pork." (d) Jones v. Thorne, 1 B. & C. 715. (e) Doe d. Pitt v. Sherwin, 3 Campb. 134; Doe d. Flower v. Peck, 1 B. & Ad. 428; vide, Rolfe v. Harris, and Reynolds v. Pitt, 2 Price, 206, 212; and Bracebridge v. Buckley, 2 Price, 200. see effected an insurance, (the policy containing a memorandum, that in case of the death of the assured, the policy might be continued to his personal representative, provided an indorsement to that effect was made upon it within three months after his death), and died, and the representative, after the three months had expired, [*184] but *before ejectment brought, obtained the proper indorsement, Lord Ellenborough, C. J., was of opinion that the policy did not become void for want of the indorsement within the three months, but at most was only rendered voidable at the option of the company, and ruled, that no forfeiture was incurred. (a) He also expressed strong doubts of the legality of the proviso on the policy requiring the indorsement, considering that the benefit of the policy enured to the representative, the same being for a definite time. A covenant in a lease to deliver up at the end of the term, all the trees standing in an orchard at the time of the demise, "reasonable use and wear only excepted," is not broken by removing trees decayed and past bearing, from a part of the orchard which was too crowded ;(b) but a covenant not to remove or grub up trees, is broken by removing trees from one part of the premises to another; and also by taking away trees, although the lessee plant a greater quantity than he takes away.(c) A lease with a clause of re-entry, for non-performance of covenants, contained a general covenant on the part of the lessee, to keep the premises in repair, and also another independent covenant to repair, within three months after notice; the landlord, after serving the tenant with a notice to repair forthwith, was allowed to bring an ejectment within the three months, for a breach of the general covenant to repair.(d) But where, on similar covenants, and with a similar clause of re-entry, the landlord gave a notice to repair within the three calendar months from the date of the notice, it was held that the had, by such notice, precluded himself from insisting on the forfeiture until the expiration of the three months.(e) (a) Doe d. Pitt v. Laming, 4 Campb. 76. (e) Doe d. Morecraft v. Meux, 4 B. & C. 606; vide Doe d. Rankin v. Brindley, 4 B. & A. 84. A covenant "forthwith" to put premises into complete repair, must receive a reasonable construction, and is not to be limited to any specific time, and it is for the jury to say, upon the evidence, whether the lessee has done what he reasonably ought in the performance of it.(a) A proviso giving power of re-entry, if the lessee "shall do or cause to be done any act, matter, or thing contrary to and in breach of any of the covenants," does not apply to a breach of covenant to repair, the omission to repair not being an act done within the meaning of the proviso.(b) A proviso 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 no forfeiture is incurred by the erection of a portico contrary to such covenant, and a neglect to remove it after notice.(c) *The breaking of a door-way through the wall of a demised [*185] house into an adjoining house, and keeping it open for a long space of time, has been held to amount to a breach of covenant to repair.(d) So also pulling down a brick wall dividing two court-yards, has been held a breach of covenant "to repair and maintain the brick walls, &c.;"(e) but where the covenant was "to repair and keep in repair the premises, and *also such buildings, improvements, and additions as should be made thereon by the lessee," it was held, that no forfeiture was incurred by changing the lower windows into shop windows, stopping up a door-way, and making a new one in a different place; the covenant being only against non-repair, and it being implied by the terms of the lease, that additions or improvements were to be made.(g) Where a lease contained a general covenant to repair, and a further covenant that if the lessee did not repair after notice, the lessor might enter and do the repairs himself, with right of distress for the amount (a) Doe d. Pitman v. Sutton, 9 C. & P. 706. of such repairs, and the lease also contained a proviso for re-entry upon breach of any covenant, and the lessor gave the lessee notice to repair the premises within the period given by the lease, and that if he the lessee did not repair within such period, he the lessor would perform the repairs, and charge the lessee with the expense, and the premises were not in fact repaired by either party; it was held, that the lessor, having elected to perform the repairs, and charge the lessee with the expense, could not proceed to recover the premises as on a forfeit ure.(a) Where a lease contained a proviso for re-entry, if the lessee committed waste to the value of 107. and the tenant pulled down some old buildings of more than 107. value, and substituted others of a different description; it was held that the waste contemplated in the proviso was waste producing an injury to the reversion; and that it was a ques tion for the jury whether such waste had been committed.(b) A covenant for a landlord to be allowed to come into a house to see the state of repair at "convenient times," is not broken *by his not being allowed to go into some of the rooms, if the tenant had no previous notice of his coming.(c) Where a lease contained a covenant that the lessee should not as sign without leave, after which covenant was a proviso, that if the rent should be in arrear, or if all or any of the covenants thereinafter contained on the part of the lessee, should be broken, it should be lawful for the lessor to re-enter, and there were no covenants on the part of the lessee after the proviso, but only a covenant by the lessor, that the lessee paying rent, and performing all and every the covenants thereinbefore contained on his part to be performed, should quietly enjoy; it was held that the lessor could not re-enter for breach of the covenant not to assign, the proviso being restrained by the [*186] word "thereinafter" to subsequent *covenants, and although there was none such, yet the Court could not reject the word.(d) (a) Doe d. De Rutzen v. Lewis, 5 Ad. & Ell. 277. (c) Doe d. Wetherell v. Bird, 6 C. & P. 195. (d) Doe d. Spencer v. Godwin, 4 M. & S. 265. |