tain lands to plaintiff for years, and warranted the same against all men during the term; in an action of covenant on this warranty, the breach assigned was, that one S. after the commencement of the term, and during the term, having lawful right and title to the premises, entered and ejected plaintiff: defendant tendered issue on the ejectment; after verdict for plaintiff, it was moved in arrest of judgment, that the breach was not well assigned; because S. might have had, at the time of his entry, a lawful right and title to the premises under the plaintiff himself: and as it was not stated in the declaration, that S. had title to the premises before the fine was levied, it should be intended, that he had a right to the premises, at the time of his entry, by a puisne title, to which the covenant of defendant did not extend. The court (absente Kelynge, C. J.) held that the breach was not well assigned. So in an action against executors, (in their own right,) who had assigned a lease belonging to their testator by way of mortgage, and had covenanted for good title and quiet enjoyment of the plaintiff, without disturbance from them or any other person; the breach assigned was, that the plaintiff was evicted in consequence of a judgment in ejectment, by one Yates, having lawful title to the premises. On special demurrer it was objected, that it did not appear that Yates's title commenced by any act of the defendants, or prior to the assignment made by them to the plaintiff, who might therefore have been evicted by means of some act doue by himself since the assignment. Judgment for the defendants.

This intendment, viz. that the title of the party evicting was derived from the plaintiff, may be precluded by averring, (if the facts of the case warrant such an averment) that the person evicting entered by lawful title, which accrued to him before the date of the conveyance to the plaintiff (23), as in Buckly v. Williams, 3 Lev. 325. Covenant upon articles, whereby defendant covenanted that plaintiff should quietly enjoy a close, and that one Knolls (who had a title to

e Noble v. King & Smith, 1 H. Bl. 34.

(23) Or by averring that at the time of the demise to the plaintiff, the party evicting had lawful title; as was done in Foster v. Pierson, 4 T: R. 617. and ante, p. 473, or that the party evicting entered by virtue of a title theretofore made, by, from, and under the defendant, as was done in Hodgson v. East India Company, 8 T. R. 278. But merely averring that J. S. entered claiming title from the defendant, is not sufficient, Aleyn, 38. Eeles v. Lambert.

the premises by virtue of a certain lease to him thereof, made before the making of the articles aforesaid,) entered upon the plaintiff and expelled him. After verdict for plaintiff, it was moved in arrest of judgment, that the breach was not well assigned; because plaintiff did not shew what title Knolls had; and, perhaps, the title which he had was under the plaintiff; but the objection was overruled; for the title of Knolls could not be supposed to be under the plaintiff'; for the declaration states, that Knolls had a title by virtue of a demise made to him before the making of the articles to the plaintiff, and let the title be derived from whom it will, yet being before the articles made with the plaintiff, the covenant is broken. The preceding remarks have been confined to the cases of general covenants and evictions by strangers; but in cases where the covenant is particular, as against interruption by the grantor or lessor, or by any person expressly named; upon the eviction of the covenantee by the grantor or lessor, or by the person expressly named, it is not necessary for the plaintiff to aver title in the party evicting.

In covenant', the declaration stated that the defendant granted a messuage, with the appurtenances, to plaintiff in fee, and covenanted for plaintiff's quiet enjoyment thereof, without the lawful let, entry, eviction, or interruption of the defendant: and assigned for breach, that defendant hindered plaintiff in the enjoyment of a pew appurtenant to the messuage; on general demurrer it was objected, that the injury complained of ought to be the subject of an action of trespass, but could not be the foundation of this action, the covenant being against all lawful disturbance: to this it was answered, that, where the breach complained of was the act of the covenantor, any interruption was sufficient to support this action against him. Judgment for the plaintiff; Ashhurst, J. observing, that it was not necessary that the party against whom the action was brought should have a title; it was sufficient if he did the act under a claim of title; that in this case the act itself asserted a title; for the defendant locked up the pew, which was as strong an assertion of right as could well be imagined. So where, in covenant, the plaintiff set forth a covenant, which recited that defendant had sold, to the plaintiff's testator, goods which had been seised by one Bell, and therefore defendant covenanted to plaintiff's testator, to save him harmless from any costs or damages relating to such seisure, and then assigned for breach, that the said Bell had seised the goods under pretence of a

f Lloyd v. Tomkies, 1 T. R. 671.

g Perry v. Edwards, 1 Str. 400.

debt due from defendant to him, touching which seisure testator was put to great expense, which defendant neglected to pay. It was objected, that the covenant did not extend to tortious acts, for which the plaintiff had a remedy, and therefore the title of Edward Bell ought to have been set forth; that "having lawful title" was not sufficient; that here it was only said under pretence," which was not so strong. The counsel for the plaintiff admitted it to be a general rule, that the plaintiff must shew a title in the disturber; but insisted that that rule extended only to the case of a general covenant, and not where it was particular against the acts of particular persons; for in that case it comprehended even tortious acts. And by the court: This pretence of Bell's being recited in the covenant, shews it was meant as a security against it in all events; and though it should be tortious, yet being particular, it falls within the distinction that has been well taken. Adjourned, and Hil. T. following, judgment for plaintiff, defendant's counsel declining to argue it.

The result of the foregoing cases is, that where a person covenants to indemnify, against all persons, this is but a covenant to indemnify against lawful title. And the reason is, because, as it regards such acts as may arise from rightful claim, a man may well be supposed to covenant against all the world; but it would be an extravagant extension of such a covenant, if it were good against all the acts which the folly or malice of strangers might suggest; and, therefore, the law has properly restrained it within its reasonable import; that is to rightful title. It is, however, different when an individual is named; for, there, the covenantor is presumed to know the person against whose acts he is content to covenant, and may, therefore, be reasonably expected to stipulate against any disturbance from him, whether by lawful title or otherwise. Hence where the condition of a bond which recited the purchase from W. by plaintiffs of lands, was to save them and the lands harmless from all manner of mortgages, judgments, extents, executions, and other incumbrances, had and obtained, or thereafter to be had and obtained, by T. T. or any other person; it was holden to bind the obligor against the wrongful entry of T. T.

6. Of the Covenant not to assign without License.

A covenant not to assign or under-let without license of

h Nash v. Palmer, 5 M. & S. 374. See also Southgate v. Chaplin, Comyns, R. 230. and Fowle, Exc. v. Welsh,

Gent. one, &c. B. R. M. T. 3 G. 4. 1
B. & C. 29.

con

the lessor, with a clause of re-entry in case of breach, is frequently introduced into leases, for the purpose of securing to the lessor a responsible tenant in whom he can repose fidence (24). It will be proper, therefore, to consider the effect and operation of such covenant; what will amount to a breach of it, and what to a dispensation from it.

The general principle is, that a lessee may assign his interest in the term. But the lessor may restrain the lessee from assigning by covenant or proviso; and if the lessor grants the term subject to a condition, that it shall cease, if the lessee assigns, an assignment by the lessee will be void. But if the lessor restrain the lessee from assigning by covenant only, although the lessee by assigning commits a breach of covenant, yet the assignment itself is not void1.

Lessee for years covenanted not to assign, transfer, or set over*, or otherwise do or put away the lease of the premises thereby demised, or any part thereof, to any person, without the license of the lessor in writing; it was holden, that an underlease was not a breach of this covenant. So where the covenant was not to assign or otherwise part with the premises, or that present indenture of lease; it was holden', that a deposit of the lease with a creditor, as a security for money advanced, was not a breach. But where the words of the covenant were, that the lessee would not set, let, or assign over the whole or part of the premises without leave; it was

i Per Holroyd, J. Paul v. Nurse, 8 B. and C. 488.

k Crusoe dem. Bugby v. Blencowe, 3 Wils. 234. 2 Bl. R. 766, S. C.

1 Doe d. Pitt v. Laming, 1 R. and M. 36.

m Roe d. Gregson v. Harrison, 2. T. R. 426.

(24) In Henderson v. Hay, 3 Bro. Ch. Cas. 632. upon a bill filed for the specific performance of an agreement by a landlord to grant a lease of a public-house, containing the common and usual covenants; Lord Thurlow, Ch. was of opinion, that though the covenant not to assign without license might be a very usual one, where a brewer or vintner let a public-house, that would not make it a common covenant; and declared, that the landlord was not entitled to have it inserted in the lease. In Morgan v. Slaughter, 1 Esp. N. P. C. 8. Lord Kenyon, C. J. held such a covenant to be a fair and usual coBut in Church v. Brown, 15 Ves. 258. 531., the opinion of Lord Thurlow was recognised by Lord Eldon, Chr.; and in Brown v. Ruban, 15 Ves. 529. Sir W. Grant, M. R. held, that under an agreement for a lease "with usual covenants," the lessor was not entitled to this covenant against assigning or underletting without license. See further on this subject, Bennet v. Womack, 7 B. and C. 627. Vere v. Loveden, 12 Ves. 183, and Jones v. Jones, 12 Ves. 188.

venant.

holden, that an underlease amounted to a breach. So where the proviso was, that the lease should be void", "if the lessee assigned or otherwise parted with the indenture of lease, or the premises thereby demised, or any part thereof, for the whole or any part of the term, without leave in writing;" it was holden, that the words included an underlease. And here it is to be observed, that a lease by the lessee for the whole term amounts to an assignment, although the rent be reserved to the lessee, and a power of re-entry given to him, and not to the reversioner (25). But if a day only be excepted out of the term, then it is an underlease P. If a lease contain a proviso, making it void if the lessee, his executors, or administrators, alien without license in writing, a voluntary assignment by the executor or administrator, without such leave, will amount to a forfeiture (26). Provisoes for re-entry in a lease are to be construed as other contracts, according to fair and obvious construction; and not with the strictness of conditions at common law. Per Lord Tenterden, C. J. Doe d. Davis v. Elsam, 1 M. and Malk. 189.

An assignment by operation of law will not amount to a forfeiture: this point was decided for the first time in Doe d. Mitchinson v. Carter, 8 T. R. 57. where it was holden, that

n Doe d. Holland v. Worsley, 1 Campb. 20. Ellenborough, C. J.

o Palmer v. Edwards, Doug. 186 n.

p Holford v. Hatch, Doug. 182.

q Roe d. Gregson v. Harrison, 2 T. R. 425.

(25) In Poultney v. Holmes, 1 Str. 405. where the question was, whether a parol agreement by the lessee to transfer the remaining interest in a term of more than three years originally, when there was only a year and half to run, reserving the rent to himself, and not to the reversioner, was void within the meaning of the statute of frauds, Pratt, C. J. ruled at Nisi Prius, that this must be taken as a lease, and not as an assignment; because the rent was reserved to the lessee. It is observable, that when this case was cited in Palmer v. Edwards, Buller, J. said, that it did not come up to that case; for Poultney v. Holmes only determined, that what could not be supported as an assignment should be good as an underlease.

(26) In Seers v. Hind, 1 Ves. Jun. 295. one of the questions was, whether executors were warranted in disposing of a lease as assets of the testator, where there was a proviso against alienation by the lessee. Lord Thurlow, Ch. said, "If A. lets a farm to B., with a covenant not to alien, and B. dies, may not his executors dispose of the term? I think it has been determined that they may, and I have always taken it to be clear law. It is an alienation by the act of God. I remember Lord Camden entered into the question much in the same way. He took it to be clear law, that an alienation by