damages on breach, in which case the covenantor does not lose his right to an injunction or is in the nature of an alternative for performance, in which case an injunction will not be granted.

But in general this question will not be determined upon interlocutory motion Coles v. Sims, 5 D. M. & G. 1; Kay, 56.

For the numerous cases upon this distinction, see Kerr, 454 et seq.; Elphinstone v. Monkland Iron and Coal Co., 11 App. Cas. 332; National Provincial Bank of England v. Marshall, 40 Ch. Div. 112.

ILLEGALITY.

A contract involving illegality (Davies v. Makuna, 29 Ch. Div. 596), as the stifling of a prosecution for not repairing a road (Windhill L. B. v. Vint, 45 Ch. Div. 351; and see Jones v. Merionethshire Building Society, (1891) 2 Ch. 587), or against the public policy of this country (Rousillon v. R., 14 Ch. D. 351), will not be enforced; secus, a contract which is only void as being against the policy of a foreign country, and not immoral or forbidden by positive law: Re Missouri Steamship Co., 42 Ch. Div. 321. And as to the effect of the Lottery Acts, see Macnee v. Persian Investment Corporation, 44 Ch. D. 306. And as to contracts of cos. illegal or ultra vires, v. inf. Sect. XIII.

An assignment for value of a pension for military service, being void under 47 Geo. 3, c. 25 (see now 44 & 45 V. c. 58, s. 141), could not be enforced by injunction: Lloyd v. Cheetham, 3 Giff. 171 (overruling Knight v. Bulkeley, 4 Jur. N.S. 527; 5 Jur. N.S. 817). But the Act did not apply to a pension by the late E. I. Co.: Heald v. Hay, 3 Giff. 467; and the assignment of a superannuation allowance from the Treasury has been enforced by injunction: Lloyd v. Eagle, 5 Jur. N.S. 187.

Covenants in a separation deed may be enforced against husband or wife, e.g., by restraining proceedings for restitution of conjugal rights: Besant v. Wood, 12 Ch. D. 605; Sanders v. Rodway, 16 Beav. 207; Hunt v. H., 4 D. F. & J. 221; Flower v. F., 20 W. R. 231. And see further on this question, inf. Chap. XXXVII., "MARRIED WOMEN"; Chap. L., “SPECIFIC PERFORMANCE."

RESTRICTIVE COVENANTS.

Restrictive covenants (as distinguished from affirmative covenants involving expenditure of money, e.g., to build or keep in repair: see Haywood v. Brunswick Soc., 8 Q. B. Div. 403; L. & S. W. Ry. v. Gomm, 20 Ch. Div. 562; Austerberry v. Oldham Corp., 29 Ch. Div. 750; Hall v. Ewin, 37 Ch. Div. 74), may be enforced by injunction against purchasers taking with notice of the covenants, though they do not run with the land at common law: Tulk v. Moxhay, 2 Ph. 774; Keppell v. Bailey, 2 M. & K. 517. Whether a covenant not to carry on a particular trade on premises can be so enforced, quære : Stuart v. Diplock, 43 Ch. Div. 343.

Upon the question what covenants run with the land, see Haywood v. Brunswick Soc., sup.; Fleetwood v. Hull, 33 Q. B. D. 35; Austerberry v. Oldham Corp., sup.; Andrew v. Aitken, 22 Ch. D. 218; Gower v. PostmasterGeneral, 57 L. T. N.S. 527; Carter v. Williams, 9 Eq. 678; Catt v. Tourle, 4 Ch. 654; Western v. McDermott, 2 Ch. 72; 1 Eq. 499; Wilson v. Hart, 1 Ch. 463; 2 H. & M. 551; Tulk v. Moxhay, 2 Ph. 774; Keppell v. Bailey, 2 M. & K. 517. See also Pollock, Contr. 226; Dart, V. & P. 862, &c., for the former distinction between the rules of Equity and Common Law on this subject.

The right to enforce a restrictive covenant may be lost by acquiescence, though not by a change in the character of the neighbourhood beyond the control, and independent of, the action of Plt: Sayers v. Collyer, 28 Ch. Div. 103; 24 Ib. 180. And as to acquiescence generally, see Willmott v. Barber, 15 Ch. D. 96; Kelsey v. Dodd, 57 L. J. Ch. 34; Duke of Northumberland v. Bowman, 56 L. T. N.S. 773. To give the reversioner a right of action, permanent injury so as to affect the reversion must be shown: Cooper v. Crabtree, 20 Ch. Div. 589; 19 Ib. 193.

The effect of constructive notice of a title subject to a restrictive covenant is not done away with by express representation on the part of the lessor or vendor of the non-existence of such a covenant: Patman v. Harland, 17

Ch. D. 353; nor has sect. 2, sub-sect. 2, of the V. & P. Act, 1874, precluding investigation of the lessor's title, affected the law in this respect: S. C.; Thornewell v. Johnson, 50 L. J. Ch. 641; 29 W. R. 677.

As to the liability of an underlessee of one of two houses comprised in an original lease, see Cresswell v. Davidson, 56 L. T. N.S. 811.

And upon the question whether sub-purchasers or assignees are affected with notice of the restrictive covenant, see Feilden v. Slater, 7 Eq. 523; Keates v. Lyon, 4 Ch. 218; Clements v. Welles, 1 Eq. 200; Hodson v. Coppard, 29 Beav. 4; Thornewell v. Johnson, sup. ; Nicoll v. Fenning, 19 Ch. D. 258. And that the assignee of a purchaser for value without notice is not affected by an agreement not running with the land, though he himself have notice of it, see A. G. v. Biphosphated Guano Co., 49 L. J. Ch. 68.

Restrictive covenants, when part of a building scheme, and intended for the common advantage of purchasers, and not merely for the benefit and protection of the vendor, may be enforced by the purchaser of one lot against the vendors or the purchaser of another: Spicer v. Martin, 14 App. Cas. 12; Mackenzie v. Childers, 43 Ch. D. 265; Collins v. Castle, 36 Ch. D. 242; Nottingham, &c. Co. v. Butler, 16 Q. B. Div. 778; and see Taite v. Gosling, 11 Ch. D. 273; Sheppard v. Gilmore, 57 L. J. Ch. 6; Russell v. Watts, 10 App. Cas. 598; but if a purchaser alienates part of his lot, there is no implied obligation as between him and the alienee: King v. Dickeson, 40 Ch. D. 596. But if the covenant is merely for the advantage of the vendor, a subsequent purchaser of land remaining in the vendor's hands has no right to sue on it: Renals v. Cowlishaw, 9 Ch. D. 129; 11 Ch. Div. 866.

On the general question when a restrictive covenant can be enforced by an assignee of the covenantee, see Clegg v. Hands, 44 Ch. Div. 503; Davies v. D., 36 Ch. Div. 359; Renals v. Cowlishaw, sup.

The injunction should be to restrain the Deft from authorizing the breach of covenant, not from "permitting" it, as that word might render him liable if he did not prevent breaches by his tenants (which he is not bound to do: Hall v. Ewin, 37 Ch. Div. 74): Martin v. Spicer, 34 Ch. Div. 1; Mackenzie v. Childers, 43 Ch. D. 265.

As to the right of mortgagor to sue without joining mortgagee, see Fairclough v. Marshall, 4 Ex. Div. 37.

A restrictive covenant, not being a limitation of property, is not obnoxious to the rule against perpetuities: Mackenzie v. Childers, 43 Ch. D. 265.

See also the following cases upon the construction and enforcement of restrictive covenants and agreements relating to—

(a) Beerhouses and sale of liquors: Allsopp v. Wheatcroft, 15 Eq. 59; L. & N. W. Ry. v. Garnett; Jones v. Bone, 9 Eq. 26, 674; Feilden v. Slater, 7 Eq. 523; Pease v. Coates, 2 Eq. 688; Luker v. Dennis, 7 Ch. D. 227; Bp. of St. Albans v. Battersby, 3 Q. B. D. 359 (beer-shop); Holt v. Collyer, 16 Ch. D. 718 (grocer's licence); Nicholl v. Fenning, 19 Ch. D. 258 (off-licence); London and Suburban Co. v. Field, 10 Ch. Div. 645 ("beer-shop"); Buckle v. Fredericks, 44 Ch. Div. 244 (" retailer of wine, spirits, or beer); Fleetwood v. Hull, 33 Q. B. D. 35 (convictions not endorsed on licence).

(b) Buildings: Master v. Hansard, 4 Ch. Div. 718; L. Manners v. Johnson, 1 Ch. D. 673; Bowes v. Law, 9 Eq. 636; Peek v. Matthews, 3 Eq. 515; Baily v. De Crespigny, L. R. 4 Q. B. 180; A. G. v. Briggs, 1 Jur. N.S. 1085; Child v. Douglas, Kay, 560; D. Bedford v. British Museum, 2 M. & K. 552; Kilbey v. Haviland, 19 W. R. 698.

(c) Offensive trades and nuisances: Johnstone v. Hall, 2 K. & J. 414; Kemp v. Sober, 1 Sim. N.S. 517; Harrison v. Good, 11 Eq. 338; Todheatley y. Benham, 40 Ch. Div. 80 (hospital for throat diseases).

(d) Farming covenants: Fleming v. Snook, 5 Beav. 250; Drury v. Molins, 6 Ves. 328; Burrow v. Sharp, sup. Form 6; Crosse v. Duckers, 21 W. R. 287; Phipps v. Jackson, 56 L. J. Ch. 550; 35 W. R. 378; Lybbe v. Hart, 29 Ch. Div. 8 (where assignee of bankrupt, notwithstanding disclaimer of lease, was restrained from selling hay, straw, &c.); and see Schofield v. Hincks, 58 L. J. Q. B. 147.

(e) Right of shooting: Gearns v. Baker, 10 Ch. 355; Pattisson v. Gilford, 18 Eq. 259; and see Jeffryes v. Evans, 19 C. B. N.S. 246; and (as to a covenant to keep down rabbits) West v. Houghton, 4 C. P. D. 197; Erskine v. Adeane, 8 Ch. 756.

(f) Covenants against assignment: Dyke v. Taylor, 3 D. F. & J. 467;. West v. Dobb, L. R. 5 Q. B. (Ex. Ch.) 460; 4 Q. B. 634; Lehmann v,

McArthur, 3 Ch. 496; 3 Eq. 746; and as to the construction of covenant not to assign without lessor's consent, "such consent not to be unreasonably withheld," see Sear v. House Property Co., 16 Ch. D. 387; Lehmann v. McArthur, 3 Ch. 496.

(g) Against use of private dwelling-house for business or trade purposes, or anything which should be a nuisance or annoyance to the neighbourhood: Parker v. Whyte, 1 H. & M. 167; Wilkinson v. Rogers, 2 D. J. & S. 62; Kemp v. Sober, 1 Sim. N.S. 517 (keeping a girls' school restrained as a breach of such a covenant); Johnstone v. Hall, 2 K. & J. 414 (injunction in like case refused on application of remainderman); Rolls v. Miller, 27 Ch. Div. 71 (free home for working girls); German v. Chapman, 7 Ch. D. 271 (school for education and lodging of missionaries' daughters); Bramwell v. Lacy, 10 Ch. D. 691 (throat and chest hospital supported mainly by voluntary contributions); Portman v. Home Hospital Association, 27 Ch. D. 81, n. (hospital with home comforts and advantages not carried on with a view to profit); Watson v. Leamington Coll., M. R., 6 Nov. 1880, sup. Form 3 (sanatorium).

These cases show that, in order to constitute a breach of such a covenant, it is not material that the covenantee has not suffered actual pecuniary damage, or that the premises are not being used for purposes of profit, or even that payment is not required from the inmates; and semble, that such a covenant excludes all use beyond that of ordinary domestic life. A sale by auction on the premises of furniture of the house is no breach of such a covenant: Reeves v. Cattell, 24 W. R. 485. A covenant by a publican to purchase beer from his landlord is not broken by his buying such beer from an agent of the landlord without the landlord's knowledge: Edwick v. Hawkes, 18 Ch. D.

199.

SECTION III.-WASTE.

1. Injunction to stay felling Ornamental Timber and other Waste. LET the Deft D., her servants, workmen, and agents, be restrained by injunction from cutting down any timber or other trees growing on the estate in the statement of claim mentioned, which are planted or growing thereon for the protection or shelter of the several mansionhouses belonging to the said estate, or for the ornament of the said houses, or which grow in lines, walks, vistas, or otherwise, for the ornament of the said houses, or of the gardens, or parks, or pleasure grounds thereunto belonging; And also from cutting down any timber or other trees, except at seasonable times, and in a husbandlike manner; and likewise from cutting down saplings and young trees, not fit to be cut as and for the purposes of timber; until &c.—See Chamberlayne v. Dummer, L. C., 9 July, 1782, A. 421; 1 B. C. C. 166; 2 Dick. 600.

That this is the form which has been always used in cases of equitable waste, see Eden, Inj. 182; L. Tamworth v. Ferrers, 6 Ves. 420.

2. The Like, against the Tenant for Life where the Estate was limited to Trustees without Impeachment of Waste, if with his Privity. LET the Deft, Sir J. M. (the father of Plt), his servants &c., be restrained by injunction from felling or cutting down any timber or other trees now standing in and upon such parts of the lawns, gardens,

and pleasure-grounds of C. in the statement of claim mentioned, or the lands belonging or adjoining thereto, as were comprised in and were settled by the indenture dated &c., and which were planted or left standing or growing there by Sir John M., deceased (Pli's grandfather, for the ornament, protection, or shelter of the mansion-house in the statement of claim mentioned (which Deft had since pulled down), and the said lawn, gardens, or pleasure-grounds; and from felling or cutting down any other timber or other trees which have been planted and are now standing or growing in avenues, vistas, lines, or clumps, or separately or singly upon some parts of the said lawn, gardens, and pleasure-grounds of C. aforesaid, for the ornament, protection, or shelter of the said lawn, gardens, or pleasure-grounds, or the other grounds or lands thereto belonging or adjoining; until &c.—See Morris v. M., V.-C. E., 13 Feb. 1847, B. 444; S. C., 15 Sim. 505; affirmed by L. C.

66

"Or which were planted for the purpose of intercepting the view of objects intended to be kept out of sight.' And also from committing any other spoil or destruction on the said estate": Day v. Merry, L. C., 15 Jan. 1810, A. 87.

Standing or growing for ornament, shade, or shelter of the mansion and buildings at, &c., or any other houses or buildings on the settled estates": M. Downshire v. Sandys, 6 Ves. 108.

3. Inquiry as to felling Timber-Life Tenant sans Waste.

LET the following &c., 1. "An inquiry whether the woods called &c., or any or either, and which of them, and the six elm trees, and one oak tree on L. farm, and the oak trees and elm trees on the pasture land in W. farm, which have been marked for cutting, or any or either and which of such trees, were or was, or have or has been, planted, or left standing, by any owner in fee or in tail of the H. estate or any parts thereof, for the ornament or shelter of the mansionhouse on the said estate, or of the gardens, park, or pleasure-grounds thereto belonging, or of any road or roads, drive or drives, path or paths leading thereto, for the purpose of interrupting the view of any object or objects intended to be kept out of sight from the said mansion-house, gardens, park, or pleasure-grounds, or any part thereof.

"2. And in case it shall be so found as to the said woods or any or either of them-an inquiry whether the trees therein have ordinarily or otherwise, and under what circumstances, been cut for repairs or for sale; and what estate or interest the person or persons by whom, or by whose order or direction, the same were so cut, had in the said H. estate at the time of the cutting thereof; and whether the trees in the said woods, and the said other trees which have been marked for cutting, or any or either and which of such trees, injure or impede the growth of any other trees adjoining or near thereto, which are of so much importance to the purposes of ornament or shelter to the said mansion-house, gardens, park, or pleasure-grounds, that the

removal of the trees so marked for cutting is essential to such purposes of ornament or shelter." Reserve the question of the costs of this application to be dealt with by the V.-C.-Ford v. Tynte, L. JJ., 10th March, 1864, A. 570; 2 D. J. & S. 127 (penned by L. J. Turner).

For similar inquiries as to ornamental timber, see Lushington v. Boldero, M. R., 5 Aug. 1815. And for further inquiry in the same case whether any and which of the timber and other trees so cut and sold injured or impeded the growth of any other trees adjoining thereto, which were of so much importance to the purposes of ornament or shelter intended by the devisor, that the removal of the timber and other trees so cut and sold was essential to such purposes of ornament and shelter, see S. C., V.-C., 26 July, 1819, B. 765-767; on exceptions to report under the above inquiries, 6 Madd. 149, S. C.

For like inquiry, and also whether any and which of the trees cut were prejudicial to the health of the inmates, or interfered with the comfortable enjoyment of the mansion-house, or of any other building on the estate, see Baker v. Sebright, 13 Ch. D. 179, 181.

For declaration that the personal estate of the deceased life tenant is liable to account for all the benefit and profits received from acts of equitable waste, with interest at 4 p. c., and decree for an account of money received by the sale of the materials of the mansion and buildings pulled down, and inquiry as to the ornamental timber felled, and for account of the proceeds, with interest at 4 p. c. from the day of the life tenant's decease; and in case assets not admitted direction for the admon of his personal and real estate, see Duke of Leeds v. Earl Amherst, V.-C. E., 3 July, 1846, A. 1655; 14 Sim. 367; affirmed 2 Phil. 120.

For issue as to the right to cut ornamental timber, and the directions and declarations with which it should be guarded, see Wombwell v. Bellasyse, 6 Ves. 110 a.

For decree declaring Deft entitled to fell all such timber on the devised estate as is mature and fit to be cut, except such as is planted or left standing by way of ornament or shelter with reference to the occupation of the mansion, but not to fell any unripe timber, or timber planted or left for ornament or shelter, with inquiry as to timber cut or marked for cutting, and injunction pending it, Plt undertaking to answer damages, see Turner v. Wright, V.-C. W., 27 Mar. 1860, B. 1084; S. C., Joh. 753; 2 D. F. & J.

234.

For injunction on bill by the patron of a living against the rector to stay his cutting timber on the glebe, or other lands of the rectory, except for repairs necessary on the buildings or lands, and from selling timber theretofore cut and remaining unsold, see D. Marlborough v. St. John, 5 D. & S. 181 ; against cutting timber in the churchyard, except for repairs of the parsonage or chancel, see Strachy v. Francis, 2 Atk. 217.

4. Life Tenant impeachable of Waste allowed such Wind-felled Timber as he might properly have cut—Inquiry.

"LET, in carrying into effect the order dated &c., the Deft H. be allowed the benefit of the sale of all such trees felled by the wind which he would have been entitled to fell and cut himself, and to all proper thinnings, and all coppices which are periodically cut in the nature of crops, whether osiers, hazel, or oak; And Let an inquiry be made what portion of the sum of £- received by the Deft H., derived from timber or cuttings of that description contained in the account brought in by him under the said order, the said Deft H., is entitled to."-Costs of application to be costs in the cause.—