assignee of the covenantee, see Clegg v. Hands, 44 Ch. D. 503, C. A.; Davies v. D., 36 Ch. D. 359, C. A.; Renals v. Cowlishaw, 9 Ch. D. 129; 11 Ch. D. 866, C. A.; White v. Southend Hotel Co., (1897) 1 Ch. 767, C. A.; John Bros Abergarw Brewery v. Holmes, (1900) 1 Ch. 188; Rogers v. Hosegood, (1900) 2 Ch. 388, C. A.; Muller v. Trafford, (1901) 1 Ch. 54.

Where the covenant was against building without the consent of D. (the owner of the building estate), his heirs, or assigns, it was held by Romer, J., that the consent required was that of the owner of the estate in its popular and broad sense, and not of all the assigns subsequently acquiring title to other lots: Everett v. Remington, (1892) 3 Ch. 148. Upon the question what evidence is sufficient to entitle a purchaser to assume the existence of a general building scheme, see Tucker v. Vowles, (1893) 1 Ch. 195; Davis v. Corp. of Leicester, (1894) 2 Ch. 208, C. A.; and that a school board acquiring land for the purposes of the Elementary Education Act, 1870, are not bound by notice of a restrictive covenant binding their vendor, and that the covenantee's only remedy is compensation under sect. 68 of the Lands Clauses Consolidation Act, 1845: see Kirby v. School Board for Harrogate, (1896) 1 Ch. 437, C. A. Where a corporation sell land subject to a building scheme, the approval of the Treasury, under sects. 108, 109 of the Municipal Corporations Act, 1882, must be obtained not merely to the particular conveyances, but to the disposition involved in the scheme: Davis v. Corporation of Leicester, (1894) 2 Ch. 208, C. A. 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. D. 74, C. A.): Martin v. Spicer, 34 Ch. D. 1, C. A. ; Mackenzie v. Childers, 43 Ch. D. 265.

As to the presumption that a restrictive covenant when once annexed to a piece of land passes by conveyance thereof, and as to the validity in equity of a covenant with mortgagor only, see Rogers v. Hosegood, sup. As to the right of mortgagor to sue without joining mortgagee, see Fairclough v. Marshall, 4 Ex. Ď. 37, C. A.

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. D. 645, C. A. (beer-shop); Buckle v. Fredericks, 44 Ch. D. 244, C. A. (retailer of wine, spirits, or beer); Fitz v. Iles, (1893) 1 Ch. 77, C. A. (coffee-house); Fleetwood v. Hull, 33 Q. B. D. 35 (convictions not endorsed on licence); White v. Southend Hotel Co., sup.; John Bros Abergarw Brewery v. Holmes, sup. (benefit of covenant running with business of brewer).

(b) Buildings: Master v. Hansard, 4 Ch. D. 718, C. A.; 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; Wood v. Cooper, (1894) Ch. 671 (trellis work screen a building" and "annoyance"); Kimber v. Admans, (1900) 1 Ch. 412, C. A. (a building containing several residential flats is prima facie one "house" within covenant not to erect more than a certain number of houses); Rogers v. Hosegood, sup. (secus, where covenant provides for erection of one "private residence"); Hudson v. Cripps, (1896) 1 Ch. 265 (conversion into a club of building agreed to be used as residential flats).

(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 v. Benham, 40 Ch. D. 80, C. A. (hospital for throat diseases); Wauton v. Coppard, (1899) 1 Ch. 92 (boys' school a breach of a covenant against business or occupation causing noise or nuisance).

(d) Farming covenants: Fleming v. Snook, 5 Beav. 250; Drury v. Molins, 6 Ves. 328; Burrow v. Sharp, sup. Form 9; Crosse v. Duckers, 21 W. R. 287; 27 L. T. 816; Phipps v. Jackson, 56 L. J. Ch. 550; 35 W. R. 378; Lybbe v. Hart, 29 Ch. D. 8, C. A. (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; 60 L. T. 573; 37 W. R. 157.

(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 F. 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; Re Marshall and Salt, (1900) 2 Ch. 202.

(9) 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); Wauton v. Coppard, (1899) 1 Ch. 92 (a boys' school); Hobson v. Tulloch, (1898) 1 Ch. 424 (boarding-house for girls at school); Johnstone v. Hall, 2 K. & J. 414 (injunction in like case refused on application of remainderman); Rolls v. Miller, 27 Ch. D. 71, C. A. (free home for working girls); German v. Chapman, 7 Ch. D. 271 (school for education and lodging of missionaries' daughters); Bramwell v. Lacey, 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 5 (sanatorium); Hudson v. Cripps, (1896) 1 Ch. 265 (a club); Wood v. Cooper, (1894) 3 Ch. 671 (trelliswork screen).

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.

A lessor who enters into a covenant with a lessee not to let the adjoining premises for the purpose of the trade carried on by the lessee, has discharged his liability if on granting a lease of the adjoining premises he takes from the lessee thereof a covenant that the premises shall be used only for the purposes of a different trade: Ashby v. Wilson, (1900) 1 Ch. 66; following Kemp v. Bird (1877), 5 Ch. D. 549, 974; and distinguishing Fitz v. Iles, (1893) 1 Ch. 77.

SECTION III.-WASTE.

1. Injunction to stay felling Ornamental Timber and other Waste. LET the Deft D., her servants, workmen, and agents, be restrained 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 mansion-houses 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 a 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 from felling or cutting down any timber or other trees now standing in and upon such parts of the lawns, gardens, and pleasuregrounds 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 (Plt'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 pleasuregrounds 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.

"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 certified 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., 10 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 D. Leeds v. E. 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. 110a.

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 March, 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 thereto

fore 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.— Bateman v. Hotchkin, M. R., 8th Nov. 1862, A. 2109; S. C., 31 Beav. 486.

As to the meaning of the expression "timber" in this Form, see observations of Chitty, J., in Dashwood v. Magniac, (1891) 1 Ch. 306.

5. Injunction against felling Timber already sold, on Security for Damages, with Inquiry as to felling without impairing &c.

LET the Deft be restrained from felling 500 oak trees, or any other trees serving for ornament or shelter to the mansion-house &c.Direction "to approve of a proper security to be given by the Plt to the said Deft for the value of the said 500 trees, and for any loss or damage which the said Deft may incur or sustain by reason of his being prevented from completing the sale of the said 500 oak trees, or any of them, in case this Court shall hereafter be of opinion that this order ought not to have been made; And at the request of the said Deft, but without prejudice to his right to appeal, Let an inquiry be made whether any and which of the said 500 oak trees, or any and what other trees standing and growing in the said three woods, can be cut without impairing the beauty of the place, as it stood at the time of the execution of the settlement of &c."-Liberty to apply.-Marker v. M., V.-C. T., 17th April, 1851; S. C., 9 Ha. 1; and see Wombwell v. Bellasyse, 6 Ves. 110 a.

6. Inquiries as to Minerals as between Tenant for Life and Remainderman and Consequent Accounts and Directions.

LET the following &c. 1. An inquiry what coal and minerals were gotten and won from the settled estates by the said E. A. B. (tenant for life), or any person or persons by his order or under his authority, from mines other than such as were in the course of being worked at

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