-and that the garden shall not be used for

other purposes;

-that lessee shall not make alterations without consent;

TO A BUILDER. demised, or any part thereof respectively, without the consent in writing of the said E. F., his heirs or assigns, or his or their steward or agent for the time being: AND THAT the said garden or yard shall not, at any time during the said term, be used in any other manner than as a garden or yard, without such consent as aforesaid: AND THAT no alteration or addition shall, at any time or times during the said term, be made in or to the height, sides, front, back, roofs, walls, timbers, or elevation of the said messuage or tenement, and premises hereby demised, or the yard or garden walls thereof, or the area, or area rails thereof, without such consent as aforesaid: AND ALSO, THAT the said messuage or tenement hereby demised shall not, at dwelling-house; any time during the said term, be converted into, or let or occupied as chambers, nor used or occupied as a boarding or lodging house, and that no school or seminary, or any art, trade, or business whatsoever (h), shall, at any

-that the

house shall be used only as a

Covenants against carrying on trades or businesses;

-or specified trades and businesses;

(h) A covenant not to carry on a trade does not, perhaps, restrain the lessee from carrying on a business for profit, if the profit does not arise from buying and selling. Thus, where there was a covenant not to exercise certain specified "trades or businesses," or 66 any offensive trade," it was held that the lessee might keep a lunatic asylum, (which was not one of the specified businesses), for even if it were an offensive business, it was not a trade. (Doe d. Wetherell v. Bird, 2 Ad. & Ell. 161; S. C. 4 Nev. & Man. 285). But the decision was grounded chiefly on the language of the covenant, which mentioned "trades or businesses" in the first place, and " trade" only in the second. Where, however, a lessee covenanted "not to use or exercise, or permit or suffer to be used or exercised, any trade or business whatsoever," and assigned the lease to a person who kept a school on the premises; it was held that this was a breach of the covenant, the court being of opinion that keeping a school was clearly a business within the meaning of the covenant. (Doe d. Bish v. Keeling, 1 Mau. & Sel. 95). The language of the covenant in the text would, it is apprehended, admit of no doubt as to the intention.

The covenant is sometimes framed so as to restrain the exercise only of certain trades or businesses, and some cases are reported as to what is a particular trade within the meaning of the covenant. Thus, a covenant not to exercise the trade of a butcher, is broken by the tenant (who kept a chandler's shop) selling raw meat by retail, although no animals were killed on the premises, and the meat was in the interior of the shop, and not exposed in the window. (Doe d.

time or times during the said term, be used, exercised, or To A builder. carried on, in or upon the premises hereby demised, or

Gaskell v. Spry, 1 B. & Ald. 617). But a covenant (in a lease granted in 1830) not to carry on the trade or business of "a retailer of beer, ale, or spirituous liquors," was not broken by carrying on the business, of a retail brewer; for the court, referring to the statute 5 Geo. 4, c. 54, s. 6, said that a retail brewer did not ex vi termini mean a retailer of beer. (Simons v. Farren, 1 Bing. N. C. 126 ; S. C. 4 Moo, & Scott, 672).

sinesses,

The covenant is not unfrequently framed so as to prohibit only of--or offensive fensive trades or businesses, (see infra, Precedent VI.), or to protrades or buhibit occupations which may be a nuisance or annoyance to the neighbours or other tenants of the lessors. (See the next covenant in the text). A public-house, it seems, is not necessarily an annoyance. For where a lessee covenanted not to do any act, matter, or thing in the premises which might be, grow, or lead to the damage, annoyance, or disturbance of the lessor, or any of his tenants, or to any part of the neighbourhood; and the lease contained a proviso for re-entry, if any occupier of the premises should carry on certain specified trades or businesses, (that of a licensed victualler not being one of them), or any other business that might be, or grow, or lead to be offensive, or any annoyance, or disturbance of the lessor's tenants, it was held that the opening of a public-house on the premises was not a breach of the covenant or proviso. (Jones v. Thorne, 1 B. & C. 715; S. C. 3 Dow. & Ry. 152). Keeping a school is offensive; (Doe d. Bish v. Keeling, ubi supra); and so, probably is keeping a lunatic asylum. (Doe d. Wetherell v. Bird, ubi supra). But it is to be observed that the construction of a covenant of this nature depends much on the situation of the premises, and on the trade (if any) carried on upon them at the time of the demise. (Gutteridge v. Munyard, 7 Car. & Pay. 129; S. C. 1 Moo. & Rob. 334). And it seems that a trade actually carried on on the premises at the time of the demise could not be taken to be prohibited by the covenant. (Id.) If the prohibition be to use the premises for a trade, it clearly is not necessary, to constitute a breach of the covenant, that the act done should be a public or private nuisance in law. (Macher v. The Foundling Hospital, 1 Ves. & Bea. 190). See further with respect to nuisances, infra, Precedent VI., n. (b). The covenant is frequently so framed as not to prohibit trades, or certain trades, absolutely, but only to prohibit them without the license of the lessor. If the license be required to be in writing, it seems clear that a verbal or implied license to carry on a particular the license of trade will not sanction the carrying on of any other trade, whether the lessor. more or less offensive than that licensed. (Macher v. The Foundling Hospital, ubi supra). But it is doubtful, whether, by a license in writing to carry on a particular trade, the condition would not, in

Covenants

not to carry on

trades or businesses without

-and that no nuisance shall

-or light obstructed;

-and that if lessee do not, on notice, paint the outside of

the house so as

to

preserve uniformity of appearance

TO A BUILDER. any part thereof, but that the same shall, during the whole of the said term hereby granted, be used and occupied as and for a private dwelling-house only: AND ALSO, THAT no be committed; act, matter, or thing whatsoever, shall, at any time during the said term, be done in or upon the said premises, or any part thereof, which shall or may be, or grow to the annoyance, nuisance, grievance, damage, or disturbance of the said E. F., his heirs or assigns, or any of his or their tenants, or whereby any window or light belonging to any messuage or tenement, or building, being the estate of the said E. F., his heirs or assigns, shall or may be in any manner stopped or obstructed: AND ALSO, THAT if he the said C. D., his executors, administrators, and assigns, shall not, from time to time during the said term, whenever thereunto required by the said E. F., his heirs or assigns, or his or their steward or agent for the time being, by notice in writing, to be left on or at the said premises hereby demised, (such notice not being given oftener than once in every three years), during the said term, paint or colour all the outside stucco of the said premises, in imitation of Bath stone, and paint all the outside wood and iron. work thereof, within one month after every such notice, in such manner as to preserve an uniformity of appearance with the other houses built and to be built on the east side of X. square aforesaid, then that the said L. M., his executors, administrators, or assigns, shall be at liberty to cause the same to be done, and be entitled to recover the from the tenant expense thereof from the said C. D., his executors, administrators, or assigns; and in default of payment thereof by the said C. D., his executors, administrators, or assigns, or the occupier of the premises for the time being, to the said L. M., his executors, administrators, or assigns, or the said

with those adjoining, lessor

may do so;

-and recover

the expense

by distraint.

analogy to the decision in Dumpor's case, be gone. (Id.) It is probable that a license would be implied or presumed, if the lessee were, for the purpose of carrying on a prohibited trade, to lay out money on the premises, with the knowledge of the lessor. (Id.; see, too, Doe d. Shephard v. Allen, 3 Taunt. 78). But without some such implied assent, or some positive act by the lessor, as the subsequent receipt of rent, the mere lapse of time is not a waiver, by the lessor, of the forfeiture. (Doe d. Shephard v. Allen, ubi supra).

E. F., his heirs or assigns, within one month after payment TO A BUIlder. thereof shall be demanded by the said L. M., his executors, administrators, or assigns, or by the said E. F., his heirs or assigns, or their, or either of their, stewards or agents, for the time being, at or on the said premises, to distrain for the same on the said premises, in the same manner in every respect as if the same were rent in arrear, and had been reserved in addition to the rent hereby reserved: PROVIDED Proviso for reALWAYS, and it is hereby agreed, that if the yearly rent entry. hereby reserved, or any part thereof, shall be unpaid for twenty-one days next after any of the days of payment whereon the same ought to be paid as aforesaid, or on breach, neglect, non-performance, or non-observance of any of the covenants or agreements herein before contained, then and from thenceforth, and in either of such cases, it shall be lawful for the said L. M., his executors, administrators, and assigns, into the said hereby demised premises, or any part thereof in the name of the whole, to re-enter, and the same to re-possess and enjoy, as if this lease had never been made: AND THE SAID L. M., for himself, his execu- Qualified cotors, administrators, and assigns, (so as, and to the intent, venants by the as far as may be, to bind all and every persons and person enjoyment. who shall, for the time being, be possessed of or entitled to the reversion of the premises expressed to be hereby demised, while he or they shall be so possessed or entitled, but so as not to render himself, or his executors or administrators, answerable out of his own personal estate, further or otherwise than for or in respect of any breach or breaches of covenant which may happen while he or they shall be so possessed), doth hereby covenant with the said C. D., his executors, administrators, and assigns, in the manner following, (that is to say), that he and they, paying the rent hereby reserved, and performing and observing all and every the covenants and agreements hereinbefore contained, shall and 'may peaceably hold and enjoy the said premises hereby demised, during the said term hereby granted (i), without the lawful let, suit, trouble, eviction,

(i) In a covenant for quiet enjoyment, during the "term," the Meaning of term which the lessor purported to grant must be that intended, and "term" in the

TO A BUILDER. or interruption of the said L. M., his executors, administrators, or assigns, or of any person or persons lawfully claiming or to claim by, from, or under him, them, or any of them (k): AND THAT he the said L. M., his executors,

-and for the

covenant for quiet enjoy. ment.

Implied covenant for quiet enjoyment,

from the words

of demise ;

- superseded by the express

covenant.

Difference of extent of implied and express covenants.

Construction of express ccvenants for quiet enjoy. ment;

not the term actually granted, if it happen that he had no power to grant the term purported to be granted. (Evans v. Vaughan, 4 B. & C. 261; S. C. 6 Dow. & Ry. 349).

(k) The words "grant and demise," in a lease for years, create a covenant for quiet enjoyment. (4 Rep. 80 b; 5 Rep. 17 a; Com. Dig. tit. Covenant, A. 4; 9 Ves. £20; Schlenker v. Mcxsy, 3 B. & C. 789; S. C. 7 Dow. & Ry. 747); and so, likewise, does the word "grant" in an assignment. (Baber v. Harris, 1 Per. & Dav. 360). The word "demise," too, implies a covenant for title. (Line v. Stephenson, 5 Bing. N. C. 183; Fraser v. Skey, 2 Chit. 646). But the operation of these implied covenants is superseded by an express covenant for quiet enjoyment. (Nokes' case, 4 Rep. 80 b ; 1 Mod. 113; 1 Ves. Sen. 101; 2 Ves. Jun. 544; Merrill v. Frame, 4 Taunt. 329; Woodhouse v. Jenkins, 9 Bing. 431; S. C. 2 Moo. & Scott, 599; Line v. Stephenson, ubi supra). The covenant for quiet enjoyment should never be omitted, because the implied covenant extends to the acts of all persons, while the express covenant is restricted to the acts of the lessor himself, and of the persons claiming under him. The implied covenant determines with the estate and interest of the lessor; thus, where a tenant for life demised for a term, without any express covenant for quiet enjoyment, and the lessee, after the death of the tenant for life, was evicted by the remainderman before the expiration of the term, it was held that the lessee could not maintain an action of covenant against the executor of the tenant for life. (Adams v. Gibney, 6 Bing. 656; S. C. 4 Moo. & Pay. 491).

Both the implied covenants arising from the words "grant and demise," and express general covenants, are confined to lawful, and do not extend to wrongful, evictions, (Dudley v. Folliott, 3 T. R. 584; and the cases cited Id. 587, n. (a); Foster v. Pierson, 4 T. R. 617), except the lessor be himself the disturber. (Corus v. Cro. Eliz. 544). But when the covenant is special against the acts of particular persons, it extends to all their acts, whether lawful or wrongful. (Nash v. Palmer, 5 Mau. & Sel. 374; Fowle v. Welsh, 1 B. & C. 29).

Questions often arise as to whether persons who have evicted the lessee are persons claiming according to the covenant. As, where a fine was levied of a feme covert's estate, with a power to the husband and wife to declare the uses, which they exercising, appointed the estate in remainder to A., and the husband made a lease, and covenanted for quiet enjoyment against any person claiming under him, and A.