part with the possession" of the premises, for H. to give up possession thereof to B. S. C., C. A. Taking a lodger is not a breach of a covenant not to underlet the house. Doe d. Pitt v. Laming, 4 Camp. 77; unless there be a distinct agreement for exclusive occupation of particular rooms. Greenslade v. Tap scott, 1 C. M. & R. 59, per Parke, B. See further as to the nature of a lodger's occupation, sub tit. Action for Illegal Distress, post.

On a covenant "not to let, assign, transfer, or otherwise part with the premises demised, or the lease," depositing the lease as a security is no breach. Doe d. Pitt v. Hogg, 4 D. & Ry. 226; Doe d. Pitt v. Laming, Ry. & M. 36. A lease contained a stipulation that for every acre, and so in proportion for a less quantity, of the land which the lessee should "suffer to be occupied" by any other person without the consent of the landlord, an additional rent should be paid; and the tenant undertook to “ux, occupy," dress and manure the land according to the custom of the country. The tenant, without the consent of the landlord, suffered other persons to use small portions of the land for the purpose of raising a potato crop, and it was proved to be the custom of the country for farmers to pursue that course: it was held, that the landlord was entitled to the additional rent, this being an occupation of the land by other persons. Greenslade v. Tap scott, supra. The lessee of a theatre, under a covenant not to grant, assign, or dispose of stalls or boxes " for a longer period than one year or season,' let a box for a year, and then let it to another person in reversion for one year, commencing on a day certain in the following year or "such subsequent day during the year on which the theatre may be opened;" this was held to be no breach. Croft v. Lumley, 6 H. L. C. 672; 27 L. J., Q. B. 321.

So,

A compulsory assignment by law is not a breach of a covenant not to assign. Thus the sale of a lease under a bona fide execution against the lessee is not a forfeiture of a condition not to assign. Doe d. Mitchenson v. Carter, 8 T. R. 57. But if the tenant give a warrant of attorney to his creditor, for the express purpose of enabling him to take the lease in execution, it will be a fraud, and a breach of the condition. S. C. Id. 300. an assignment under a commission of bankruptcy was no breach of a covenant not to assign. Doe d. Goodbehere v. Bevan, 3 M. & S. 353. But, an assignment of the whole of the debtor's personal property, registered under the Bankruptcy Act, 1861, s. 192, was a breach of the covenant. Holland v. Cole, 1 H. & C. 67; 31 L. J., Ex. 481; and see Doe d. Cheere v. Smith, 5 Taunt. 795. An assignment, operating as an act of bankruptcy, and therefore void, will not be a breach of the covenant. Doe d. Lloyd v. Powell, 5 B. & C. 308. Where the covenant binds the lessee "and his assigns" not to assign over without licence, the compulsory assignment, by bankruptcy, will not discharge the covenant in the hands of subsequent voluntary assignees. See Winter v. Dumergue, 14 W. R. 281, M. T. 1865, C. P.; S. C. in Ex. Ch., Id. 699, E. T. 1866. So, although the devolution on an executor is not a breach of the covenant, yet if executors are named therein, the executor cannot assign without licence. Roe d. Gregson v. Harrison, 2 T. R. 425. Whether a devise by will is a breach of a covenant not to assign seems to be an unsettled question: Shep. Touch. 144. For v. Swann, Styles, 482; Crusoe d. Blencowe v. Bugby, 3 Wils. 237; Doe d. Goodbehere v. Bevan, 3 M. & S. 361; Doe d. Evans v. Evans, 9 Ad. & E. 719.

A covenant not to assign, where the assigns are named, binds the assignee of the lessee, although the assignment was made without the required licence; Williams v. Earle, L. R., 3 Q. B. 739; but it is only the assignee of the whole term that is bound, and if the lessee parts with the possession of the premises to A. under a licence to assign to A., but the assignment is never perfected, A. commits no forfeiture by assigning and giving up possession to B. without licence. West v. Dobb, L. R., 4 Q. B. 634; Ex. Ch., L. R. 5 Q. B. 460.

Breach of Covenant as to Trade on Premises.

649

A covenant not to assign without the consent of the lessor, "such consent not being arbitrarily withheld," does not amount to a covenant by the lessor, but qualifies the lessee's covenant, so that if the lessor arbitrarily withhold his consent, the lessee may assign without any breach of covenant. Sear v. House Property & Investment Soc., 16 Ch. D. 387; Treloar v. Bigge, L. R., 9 Ex. 147. It seems that a refusal " upon advice," though without stating the grounds, is not “ arbitrary," and that to be such, it must be "unfair and unreasonable." S. C. Id. 155, per Kelly, C. B., and Pollock, B. So where consent was not to be withheld from assignment "to any responsible and respectable person," an assignment to such a person is no breach. Hyde v. Warden, 3 Ex. D. 72, C. A. Where a lease contains a condition against sub-letting, &c., without the lessor's consent, and a sublease is granted with such consent to B., B. is under no restriction as to parting with his possession of the land so demised to him. Williamson v. Williamson, L. R., 9 Ch. 729.

To prove the breach of a covenant not to assign or underlet, Ld. Alvanley held it to be prima facie sufficient to show that a stranger was in possession of the premises, apparently as a tenant, and that on inquiry such stranger said he rented the house. Doe d. Hindly v. Rickarby, 5 Esp. 4. But on a covenant "not to assign, set over, or otherwise let," Ld. Ellenborough held that evidence that a stranger was in possession of the premises, with his name on the door, and that he said he had taken the premises from another stranger, was not sufficient; for non constat that the party in possession was not a tortious intruder. Doe v. Payne, 1 Stark. 86. According to Doe d. Morris v. Williams, 6 B. & C. 41, ante, p. 645, mere possession would seem to be evidence of an assignment.

The measure of damages in an action for a breach of a covenant not to assign, &c., is such a sum of money as will put the plaintiff in the same position as if the covenant had not been broken, and the plaintiff had retained the liability of the defendant instead of an inferior liability. Williams v. Earle, ante, p. 648. As a right of re-entry is commonly annexed to this covenant, its effect is more likely to come into question in an action for the recovery of land than in an action of covenant.

Breach of covenant as to trade on premises.] A covenant not to use a building as a public-house for the sale of beer, wine, malt liquors or spirits," Pearse v. Coats, L. R., 2 Eq. 689; or as a beerhouse, inn, or public-house for the sale of spirituous liquors," L. & N. W. Ry. Co., v. Garnett, L. R., 9 Eq. 26; Holt v. Collyer, 16 Ch. D. 718; is not broken by the sale of beer by retail under a licence "not to be drunk on the premises," for "beerhouse" means a house for the sale of beer to be consumed on the premises, S. CC. Nor is a covenant entered into in 1854, that "the trade or calling of an hotel or tavern keeper, publican, or beer shop keeper, or seller by retail of wine, beer, spirits, or spirituous liquors," should not be carried on on the premises, broken by the sale of wine in bottle by a grocer in the ordinary course of his trade; for the covenant is directed against the trade of a gin palace, and not that of a wine merchant. Jones v. Bone, L. R., 9 Eq. 674. But, where the covenant was not to use the building, as an inn, public-house or tap-room, or for the sale of spirituous liquors or ale or beer," it was held that although the covenant did not prevent the sale of wine, it extended to the sale by a grocer of spirituous liquors in bottle. Fielden v. Slater, L. R. 7 Eq. 523. So a covenant not to use the premises "as a beershop or public-house," is broken by the sale by a grocer of beer not to be consumed on the premises, for "beer shop means any place where beer is sold. S. Albans, Bp. of, v. Battersby, 3 Q. B. D. 359; accord. L. & Suburban Land & Building Co. v. Field, 16 Ch. D. 645, C. A.

A covenant that the plaintiff "should have the exclusive right of supplying all ale, &c., which might be consumed in any house, &c., which might be erected on the land (conveyed), and which should be opened or used as an inn, &c.," is equivalent to a negative covenant that no other person than the plaintiff shall supply ale, &c. Catt v. Tourle, L. R., 4 Ch. 654. Such a covenant is conditional on the plaintiff being willing to supply the defendant with good marketable ale, &c., at reasonable prices. Luker v. Dennis, 7 Ch. D. 227; see also Edwick v. Hawkes, 18 Ch. D. 199.

A covenant not to use or exercise "any public trade or business” in a house, and that it should "be used and occupied as a private dwellinghouse only" is broken by opening a school thereon. Wickenden v. Webster, 6 E. & B. 387; 25 L. J., Q. B. 264; German v. Chapman, 7 Ch. D. 271. So a covenant not to carry on, or permit to be carried on, any trade or business of any description whatsoever, is broken by opening thereon a charitable institution in which working girls are lodged and boarded; Rolls v. Miller, 25 Ch. D. 206, even although gratuitously, Id., W. N., 1884, p. 69; or a hospital where the patients make small payments. Bramwell v. Lacy, 10 Ch. D. 691. But a covenant not to do anything on land that may be a nuisance to the occupiers of the adjoining premises is not broken by opening a national school thereon. Harrison v. Good, L. R., 11 Eq. 338.

As to waiver by plaintiff of his right to an injunction, by his acquie cence in breaches of similar covenants, by tenants of other plots on the same estate. Peek v. Matthews, L. R., 3 Eq. 515; German v. Chapman, supra,

Breach of covenants for good husbandry, &c.] The proof of any act which, according to the natural and ordinary meaning of their words, is forbidden by these covenants, will entitle the plaintiff to a verdict. If the breach alleges that the defendant did not use the farm in a husbandlike manner, "but, on the contrary, committed waste," the plaintiff is bound to prove waste. Harris v. Mantle, 3 T. R. 307. See post, p. 659, and Edge v. Pem berton, 12 M. & W. 187, cited post, p. 654. Where the breach is for bad husbandry, and the particulars delivered rely on non-cultivation, the plaintiff cannot show mere bad cultivation. Doe d. Winnall v. Broad, 2 M. & Gr. 523. But in such cases as these, the judge would probably now amend the breach or the particulars. A judge, however, will not amend, as of course, if the amendment will only entitle to nominal damages for a breach, which defendant probably would not have contested. Times Insurance Co. v. Hawke, 28 L. J., Ex. 317. A covenant to spend on the farm all manure collected on it, extends to manure made by the cattle of strangers not fed on the farm, but turned on by a temporary licence, Hindle v. Pollitt, 6 M. & W. 529. A covenant by the tenant in a farm lease, that he would not "during the last year of the said term thereby granted, sell or remove from the said farm and lands any of the hay, straw, and fodder which should arise and grow on the said farmi," extends to all hay, &c., which had grown on the land at any time during the term. Gale v. Bates, 3 H. & C. 84; 33 L. J., Ex. 235.

We have seen, ante, p. 25, that husbandry covenants may be controlled or explained by proof of custom not expressly or impliedly excluded by the covenant. See also ante, pp. 316, 317. Such customs apply to leases under seal as well as by parol. Wigglesworth v. Dallison, 1 Doug. 201; 1 Smith's Lead. Cases. But the course of pleading on covenants will sometimes require that the custom should be pleaded by the defendant, except where it is only used to explain the covenant. In a covenant to pay a penal rent for using land otherwise than for pasture or meadow, it is for the jury to say whether the use of it as a race-course was in fact incompatible with the covenant. Semb. Aldridge v. Howard, 4 M. & Gr. 921. A covenant that

1

Breach of Covenant to Insure.

651

the tenant will when required perform each year for the landlord a certain amount of team-work, gives the landlord a right to team-work generally, and not merely for agricultural purposes. Marlborough, Dk. of, v. Osborne, 5 B. & S. 67; 33 L. J., Q. B. 148.

A covenant not to sell or carry away from the demised premises any hay, straw, &c., grown or produced there, without the consent in writing of the plaintiff first had and obtained, under the increased rent of 10l. for every ton so given, sold, or carried away, was held to give the tenant a right to remove hay, straw, &c., upon paying the increased rent. Legh v. Lillie, 6 H. & N. 165; 30 L. J., Ex. 25.

If a lease provides that the tenant shall not cut down nor lop trees under a penalty of 201. for each tree cut or lopped, the lessor, upon breach, may proceed either for the penalty, or for unliquidated damages; in the latter case the jury are not bound to give the whole penalty. Hurst v. Hurst, 4 Exch. 571.

When there was a lease reserving yearly rent, payable on half-yearly days, and a further rent, payable on the same days, for every acre converted into tillage without licence, or planted with rape, woad or potatoes, or from which successive crops should be taken, without summer fallows, &c., it was held that, after one breach of covenant, the increased rent attached and continued to the end of the term. Bowers v. Nixon, 12 Q. B. 558, n., affirm. in error. A covenant not to take more than two crops during four years, means any four years, and not each succeeding four years reckoning from taking the lease. Fleming v. Snook, 5 Beav. 250. Where the grantee H., of the right of sporting over certain lands in the occupation of R. covenanted with the grantor W. to keep down the rabbits "so that no appreciable damage may be done to the crops thereon," it was held that W. being under no liability to compensate R. for injury done to the crops, by breach of the covenant, could only recover nominal damages therefor from H. West v. Houghton, 4 C. P. D. 197.

Breach of covenant to insure.] The covenant to insure has always been construed strictly in courts of common law. As to the onus of proof in actions for not insuring, see cases cited ante, Onus Probandi, p. 90. The covenant, however, usually provides some mode of proof, as that the lessee shall produce his policy when required. In Doe d. Darlington v. Ulph, 13 Q. B. 204, where there was a covenant" to insure at all times previously to the expiration of the term thereby granted," and the lessee did not effect an insurance till a month after the creation of the term, it was held, that in the absence of evidence to explain this delay, the plaintiff was entitled to a verdict, and that the jury ought not to be asked whether the insurance was effected within a reasonable time. Semble, if the lessee had insured the premises shortly after the execution of the lease, he would have complied with his covenant. Id. per Pattison, J. In Price v. Worwood, 4 H. & N. 512; 28 L. J., Ex. 329, the omission to insure had been repeatedly confessed by the tenant, who excused himself by saying that he could not afford the insurance. As he appeared to be no richer at the time of issuing the writ, it was held that there was some evidence to go to the jury of the breach.

If the covenant is to insure in the name of A., it is a breach to insure in the joint names of A. and the lessee. Penniall v. Harborne, 11 Q. B. 368. But see Havens v. Middleton, 10 Hare, 641; 22 L. J., Ch. 746.

A covenant to keep buildings insured against fire runs with the land, for the stat. 14 Geo. 3, c. 78, s. 83, enables the landlord to have the insurance money laid out in reinstating the premises, so that the covenant, with the aid of the statute, amounts to a covenant to repair. Vernon v.

Smith, 5 B. & A. 1. The operation of this section has been held to be general, and not to be confined to the metropolitan district. Ex pte. Gorely, 34 L. J., Bky. 1.

Breach of covenant to repair.] As to buildings then erected, a covenant to repair, or put in repair, or deliver up in repair, runs with land, and binds assignees though not named in it. Martyn v. Clue, 18 Q. B. 661 ; 22 L. J., Q. B. 147. The assignee of a lease is not liable, on a general covenant, to repair buildings erected during the term, unless assigns are named in it. Spencer's case, 5 Rep. 61; Bally v. Wells, 3 Wils. 25; Doughty v. Bowman, 11 Q. B. 444. Contra, Minshull v. Oakes, 2 H. & N. 793; 27 L. J., Ex. 194; but this case was decided on a misapprehension of Spencer's case (see notes thereto in 1 Smith's Lead. Cas., 8th ed. 80, et seq.), and has been much disapproved. In Cornish v. Cleife, 3 H. & C. 446; 34 L. J., Ex. 19, a covenant, in a demise of three houses and a field, "well and sufficiently to repair sustain and keep the said tenements or dwelling-houses, field or plot of ground and premises, and every part thereof, as well in houses, buildings," &c., during the term; was held not to extend to houses erected during the term in the field. This case agrees with the ruling in Doe d. Worcester School, &c. Trustees v. Rowlands, 9 C. & P. 734; but is clearly inconsistent with the decision in Brown v. Blunden, Skin. 121; and the opinions of the judges expressed in Darcy v. Ashwith, Hob. 234; and Dowse v. Earle, 3 Lev. 265; S. C. sub nom. Dowse v. Call, 2 Vent. 128, cited in Bac. Abr. Covenant (F). A covenant to keep a house in repair is satisfied by keeping it in substantial repair according to the nature of the building; and with a view to determine the sufficiency of the repair, the jury may inquire whether the house was new or old at the time of the demise. Stanley v. Towgood, 3 N. C. 4; accord. Mantz v. Goring, 4 N. C. 451. It has been said that such a covenant did not mean that the house should be delivered up in an improved state, or that the consequences of the elements should be averted; but the tenant has the duty of keeping the house in the state in which it was at the time of the demise, by the timely expenditure of money and care; Gutteridge v. Munyard, 1 M. & Rob. 334; and that accordingly on an issue as to the amount of damages for not keeping in repair, the bad state of the premises when demised was legitimate evidence for the defendant. Burdett v. Withers, 7 Ad. & E. 136. See also Walker v. Hatton, 10 M. & W. 249; Martyn v. Clue, 18 Q. B. 661, 674. But, in Payne v. Haine, 16 M. & W. 541, a tenant under such covenant was held bound to put in repair; though the nature of the repairs ought to be measured by the age and class of the demised premises. In Easton v. Pratt, 2 H. & C. 683; 33 L. J., Ex. 233, Ex. Ch., it was held that a lease, whereby the lessee covenanted that he would "well and sufficiently repair, uphold, support, paint, maintain, amend and keep" the demised premises, and the said premises "so well and sufficiently repaired," &c., at the expiration of the terin surrender, was a "repairing lease," on the ground that "whatever was the state of the premises at the time of the demise, the tenant would be bound under this covenant to put the premises into, and keep the premises in, a state of good and sufficient repair. Payne v. Haine (supra) is an authority on this point; " 33 L. J., Ex. 235; the report in 2 H. & C. 687 is to the same effect. Accord. Saner v. Bilton, 7 Ch. D. 815; Truscott v. Diamond Rock Boring Co., 20 Ch. D. 251, C. A. See also Inglis v. Buttery, 3 Ap. Ca. 552, D. P. But the tenant under such a covenant is liable for repairs only, and not for the extra expense of laying a new floor on an improved plan, or the like. Soward v. Leggatt, 7 C. & P. 613. And a lessee under a covenant to put in repair, or to keep in repair, is not bound in either case to substitute new buildings for old. Belcher v. M'Intosh, 2