Trading with

particular per

sons, or within

a particular

radius.

nant not to use a house as a beer-house, is not broken by the sale, under a license, of beer by retail to be consumed on the premises (x). As to the effect of a license granted and waiver in case of forfeiture, see infra, 8 and 9, and Part 3, c. 3, s. 1.

Sometimes the lessee covenants that he will deal with the lessor alone, as in the case where a publichouse-keeper agrees to buy all his beer of his landlord. Such contracts are not favoured by the Courts, and it must be shown that the lessor faithfully performed his part of the contract, by supplying good beer (y). Such covenants are binding on an assignee with notice (z).

Where, upon a lease of limeworks, it was stipulated that the lessor should furnish, and the lessee take, coals from certain collieries, the collieries not furnishing sufficient, it was held that the lessee could not go elsewhere for the whole of his coals, but could only supply the deficiency (a).

A covenant is sometimes inserted in a lease to prevent one or other of the parties from exercising his trade within a certain radius (6). The covenant will not be good, if it be to the prejudice of the public generally ; and therefore it must only affect a limited area, and must be made for a bona fide consideration (c). But

(x) London and North-Western Railway Co. v. Garnett, L. R. 9 Eq. 26.

(y) Thornton v. Sherratt, 8 Taunt. 529; Holcombe v. Hewson, 2 Camp. 391; Jones v. Edney, 3 Camp. 285.

(2) Wilson v. Hart, L. R. 1. Ch. Ap. 463; Catt v. Tourle, L. R. 4 Ch. Ap. 654, and see ante, p. 127, n. (t).

(a) Wight v. Dicksons, 1 Dow.

141.

(b) The distance is to be measured as the crow flies. See Duigan v. Walker, 1 Johns. 446, 28 L. J. Ch. 867; Reg. v. Saffron Walden, 9 Q. B. 76; Jewel v. Stead, 6 E. & B. 350.

(c) Davis v. Mason, 5 T. R. 118; Morris v. Coleman, 18 Ves. 438;

if there be no limit as to space, the contract is void, whether with or without consideration (d). In the case of Horner v. Graves (e), which turned on the question of space, it was stated that whatever restraint is larger than is necessary for the protection of the party, is oppressive, and therefore unreasonable. This proposition was supported by the Court of Exchequer Chamber (ƒ), but they held, in the case before them, that there being no limit as to time did not make the contract unreasonable. But in the subsequent case of Archer v. Marsh, in which there was no limit as to time, the Court of Queen's Bench stated that the principle of the decision of the Court of Exchequer Chamber was, that the restraint of trade in that case could not really be injurious to the public, and that the parties must act on their view of what restraint may be adequate to the protection of the one, and what advantage a fair compensation for the sacrifice made by the other. They also stated that Horner v. Graves was overruled by the decision in Error (g).

The Court will not consider whether the consideration is adequate to the restraint, though there must be some consideration (h).

It seems that an injunction will issue to restrain a man who, as foreman or workman for another person,

Hitchcock v. Coker, 6 A. & E. 438; Archer v. Marsh, 6 A. & E. 959; Pilkington v. Scott, 15 M. & W. 657; Procter v. Sargent, 2 M. & E. 20; Rannie v. Irving, 7 M. & E. 969; Pemberton v. Vaughan, 10 Q. B. 87; Elves v. Crofts, 10 C. B. 241; Mumford v. Gething, 7 C. B. N.S. 305, 29 L. J. C. P. 105.

(d) Hinde v. Gray, 1 M. & G. 195. But see the Leather-cloth

Quiet enjoy

ment.

engages in a trade contrary to his covenant (); but where the covenant was not to carry on a business "in his own name, or that of any other person," it was no breach to act as manager for another at a weekly salary (j).

Although an implied covenant for quiet enjoyment in a lease arises on the words demise, let, &c. (k), the lease in general contains an express covenant by the lessor, which may be either qualified or unqualified. A form of qualified covenant is given by the second schedule of the 8 & 9 Vict., c. 124, and is as follows:

"And the lessor doth hereby, for himself, his heirs, executors, administrators, and assigns, covenant with the said lessee, his executors, administrators, and assigns, that he and they, paying the rent hereby reserved, and performing the covenants hereinbefore on his and their part contained, shall and may peaceably possess and enjoy the said demised premises for the term hereby granted, without any interruption or disturbance from the said lessor, his executors, administrators, or assigns, or any other person or persons lawfully claiming by, from, or under him, them, or any of them."

Under a covenant of this description, any subsequent ejectment, or other interruption or disturbance, by any person who does not claim "by, from, or under" the lessor, would be no breach (1). So under such a covenant, a distress for previous arrears of land-tax, due from the lessor, would be no breach,

(i) Newling v. Dobell, 19 L. T. N.S. 408.

(j) Allan v. Taylor, 39 L. J. Ch. 627.

(k) See Implied Covenants, post, p. 139.

(7) Year Book, 26 Hen. VIII. 3 b; Merrill v. Frame, 4 Taunt. 329.

the words implying a claim by title from the lessor, and not a claim against him (m).

A general or unqualified covenant extends to the acts of all persons having lawful title, and is not confined to the acts of persons claiming through the lessor. Such covenants generally purport to assure against disturbance by "any person or persons whomsoever;" but these words will not include persons having no title, for "the law shall never judge that a man covenants against the wrongful acts of strangers, unless the covenant be full and express to that purpose" (n).

A covenant against the acts of a particular person by name will, however, include the acts of that person, whether he has title or not (o). And if there be express words in the covenant showing a clear intent. to protect the lessee from unlawful as well as from lawful interruption-as, for instance, that the lessee shall enjoy against all "claiming, or pretending to claim," any right, &c.—the lessor will be bound by the express words (p). So when the lessor is a party named in the covenant, it will extend to all interruptions by him, whether rightful or wrongful (q). In Smith v. Compton, it was said that a covenant for title, unqualified in itself, and unconnected by words

(m) Stanley v. Hayes, 3 Q. B.

105.

(n) Year Book, 22 Hen. VI. 52 b; 32 Hen. VI. 32 b; Hayes v. Bickerstaff, Vaugh. 118; Tisdale v. Essex, Hob. 34; Chantflower v. Priestley, Cro. Eliz. 914; Broking v. Cham, Cro. Jac. 425; Hammond v. Dod, Cro. Car. 5; Nokes' case, 4 Rep. 80 b; Jerritt v. Weare, 3 Price, 595. See Dudley v. Folliott, 3 T. R. 584.

(0) Foster v. Mapes, Cro. Eliz. 212; Fowle v. Welsh, 1 B. & C.

29; Nash v. Palmer, 5 M. & S. 374; Shep. Touch. 166; Perry v. Edwards, 1 Stra. 400. See also Rashleigh v. Williams, 2 Vent.

62.

(p) Southgate v. Chaplan, in C. P. Com, 230 S.C.; Chaplan v. Southgate, in K. B. 10 Mod. 383; Lucy v. Levington, 1 Vent. 175; Hunt v. Allen, Wynch. 25.

(q) Lloyd v. Tomkies, 1 T. R. 671; Andrews v. Paradise, 8 Mod. 319; Shaw v. Stenton, 2 H. & N. 858.

Renewal of leases.

with a qualifying covenant in the lease, must in a court of law be regarded as an absolute covenant for title (r).

Where the lessor covenanted that he had not done, nor permitted, nor suffered to be done, any act, &c., it was held that consenting to an act, which he could not prevent, was not a breach (s).

A breach of this covenant may be made, either by proceedings in law or by other acts. Where the covenant was, that the lessee should enjoy the estate discharged of tithes, it was held that the covenant was broken by a suit for the tithes, although the term was at an end (t); but a suit for waste is not a breach of the covenant for quiet enjoyment (u).

An act done in the assertion of title (v), and which disturbs the lessee in the full enjoyment of his property, amounts to a breach, as, for instance, the erection of a gate so as to interfere with the use of a close (w), or digging a quarry so as to interfere with the working of a mine (x).

A covenant for the renewal of a lease runs with the land (y). But a covenant for a perpetual renewal,

(r) Smith v. Compton, 3 B. & Ad. 189, overruling Milner v. Horton, M'Clel. 647; and see Browning v. Wright, 2 B. & P. 13, where the qualifying covenants were connected with the unqualified covenant.

(s) Hobson v. Middleton, 6 B. & C. 295.

(t) Laming v. Laming, Cro. Eliz. 316.

(u) Morgan v. Hunt, 2 Ventr, 215.

(v) Sedden v. Senate, 13 East. 72.

(w) Andrews v. Paradise, 8 Mod. 318.

(x) Shaw v. Stenton, 2 H. & W. 858. As to remedies for a breach, see Part 3, Div. 2, c. 1.

(y) Earl of Shelburn v. Biddulph, 6 Bro. P. C. 363.