in his favour. (x) Thus a specific performance of a covenant to repair will not be decreed; (a) and, though it was said by Lord Hardwicke that, upon a covenant to build, the party was clearly entitled to come into a court of equity for a specific performance; (b) it appears to have been the opinion of both Lord Thurlow, and Lord Kenyon, that a specific performance of such a covenant could not properly be decreed. (c) But where the tenant is about to do an act against which he has expressly covenanted, a court of equity will interfere and restrain him by injunction. (d) If in a lease there is a stipulation that the landlord may retain the rent, or any part, on giving bond for payment of it with interest, and the rent being in arrear, the landlord brings his action for the amount, the Court will not stay proceedings on an affidavit, that since the commencement of the suit the lessee has executed and tendered to the landlord a bond for the amount of the rent in arrear with interest. (e) (z) Errington v. Aynesly, 2 Br. Ch. Ca. 341. Flint v. Brandon, 8 Ves. 159. Rayner v. Stone, 2 Eden, 128, and note. (a) Sparkes v. Smith, 2 Vern. 275. City of London v. Nash, 3 Atk. 515. S. C. 1 Ves. 12. Hill v. Barclay, 16 Ves. 404. (b) City of London v. Nash, sup. And see Anon. 2 Freem. 253. Allen v. Harding, 2 Eq. Ca. Abr. 17, and Mosely v. Virgin, 3 Ves. 184. (c) Lucas v. Commerford, 3 Br. Ch. Rep. 166. Errington v. Aynesly, sup. And see Flint v. Brandon, 8 Ves. 164, where Sir W. Grant, M. R., treats the question as unsettled. (d) Barret v. Blagrave, 5 Ves. 555. And see further as to this in the next section. (e) Jones v. Winkfield and another, 10 Bing. 308. 3 Moore & Sc. 846. SECTION V. OF THE LANDLORD'S REMEDIES AGAINST THE TENANT IN by writ of estrepement. The remedy for waste is two-fold; preventive and cor- 1. Means of rective. At common law, a writ of estrepement lay after waste, preventing judgment obtained in any action real, to prevent the party against whom the judgment had been recovered, but who until execution remained in possession, from committing waste; and by the statute of Glo'ster, (g) this remedy was extended to waste pending the suit. By virtue of this writ, therefore, as soon as a real action was commenced, the sheriff might forcibly resist such persons as offered to do waste to the premises: and, if he could not otherwise prevent the mischief, imprison the wasters. Moreover, if the tenant proceeded to commit waste after the delivery of the writ, an action founded upon the writ might be proceeded in, and damages thereupon recovered. (h) In such an action it was not sufficient that the jury found for the plaintiff, and assessed the damages in a writ of waste, the verdict must expressly find the place wasted. (i) The remedy given by this statute became almost obsolete, having given place to the more ready course of application to a court of equity. (k) By the 3 & 4 Wm. IV. c. 27, real actions are abolished. Where the tenant is about to do an act which may operate By injunction as a permanent injury to the estate, a court of equity will interfere, and restrain him by injunction until he shall have put in his answer, and the Court shall thereupon make further (g) 6 Edw. I. c. 13. (k) 2 Inst. 328. 2 Bl. Com. 281. (i) Redfern v. Smith, 2 Bing. 262. order. Therefore, if the tenant begin, or threaten, or shew an intention to commit waste, or if he be guilty of permissive waste, an injunction will be granted; (7) and that, not merely upon the application of the immediate landlord, but it may be had by the ground landlord against the under-lessee. (m) So a court of equity will grant an injunction to restrain the tenant from an act whether it amount to waste or not, provided it be contrary to the tenant's own covenant. (») Where the lessee covenanted not to plough pasture land, under a penalty of 20s. per annum for every acre ploughed, the Court refused an injunction; because the parties had themselves agreed upon the damage, and the compensation to be therefore made; (o) but in a modern case, in which the breach of covenant was secured by a penalty and forfeiture of the lease, the Court granted an injunction. (p) Where a tenant, after notice to quit, and ejectment brought thereon, made default at the trial, and then proceeded to do great mischief to the farm, the Lord Chancellor granted an injunction against his carrying off the dung, soil, compost, &c., and committing wilful waste. (g) When upon a lease of alum works, with a covenant by the lessee to leave stock of a certain amount upon the premises, there was a fair ground to suspect that he did not mean to perform his covenant in that respect; the Court of Chancery made a decree to prevent a breach of the covenant, which was affirmed in the House of Lords. (r) (7) Gibson v. Smith, 2 Atk. 182. Hanson v. Gardiner, 7 Ves. 308. Mayor, &c. of London v. Hedger, 18 Ves. 355. Kimpton v. Eve, 2 Ves. & Bea. 349. Caldwell v. Baylis, 2 Meriv. 408. (m) Farrant v. Loval, 3 Atk. 723. S. C. (mis-stated) Amb. 105. (n) Lord Grey de Wilton v. Saxon, 6 Ves. 106. Drury v. Molins, ibid. 328. London (Mayor) v. Hedger, 18 Ves. 353. (0) Woodward v. Gyles, 2 Vern. 119. (p) Barret v. Blagrave, 5 Ves. 555. (9) Sir Wm. Pulteney v. Shelton, 5 Ves. 147, 260, n. (a). Lathropp v. Marsh, 5 Ves. 259, et ride 1 Geo. IV. c. 87, s. 3, noticed, supra. (r) Ward v. Duke of Buckingham, 10 Ves. 161. A distinction, however, is to be made between those cases where an actual and express covenant exists, and where the tenant is merely bound by an implied covenant arising out of the custom of the country, or evidenced by his having previously held under an expired lease containing covenants as to the management of the premises. Where there is only an implied covenant, and the tenant's proceedings do not amount to actual waste, the Court will not in general interfere. (r) And where a tenant under a written agreement to manage and quit premises agreeably to the manner in which they had been managed and quitted by former tenants, having received notice to quit, proceeded to carry off crops, Lord Eldon, C., held, that he was not bound to conform to the covenants in the lease of a former tenant, without notice, and that the custom of the country could not be considered where there was a written agreement. (s) But where a tenant from year to year, having received notice to quit, was proceeding to take away the crops, manure, &c., contrary to the usual course of husbandry, and to cut and damage the hedge-rows, &c., the Lord Chancellor granted an injunction, observing, that "the principle applied equally to the case of a tenancy from year to year, as to a lease for a longer term. The judges have uniformly said in modern times, that a tenant from year to year must treat the farm in a husbandlike manner, according to the custom of the country; and the Court must give its aid equally in that case; with the qualification that he is not to remove any thing, except according to the custom of the country." (t) And where the tenant, in revenge for the landlord's having distrained, threatened to sow the land with mustard seed, which is very injurious to the soil, and requires many years to eradicate it, the Court granted an injunction. (u) (r) Kimpton v. Eve, 2 Ves. & Bea. 349. (s) Liebenrood v. Vines, 1 Meriv. 15. (t) Onslow v. 16 Ves. 173. And see Pulteney v. Shelton, 5 Ves. 147, 260, n. and Lathropp c. Marsh, ibid. 259. (u) Pratt v. Brett, 2 Mad. Ch. Rep. 62. Where tenants abuse their right of cutting estovers, the Court will grant an injunction, as if they cut turf for sale although on affidavit it is stated that the tenants and those under whom they derived as tenants to the plaintiff, had been in the habit of cutting turf for sale for upwards of eighty years. (v) But if the landlord lie by, and suffer the tenant to lay out money in altering the premises, the Court will construe this into a consent, and will refuse him an injunction, although such alterations may in strictness amount to waste. As where a lease was granted in 1725, and a logwood-mill was erected; and in 1775 the lease being renewed, the mill was included under the description of a logwood-mill; the lessee subsequently altered the mill into a cotton mill of great value;—and upon the landlord's contending that this alteration was waste, and praying an injunction, Mr. Justice Buller, who sat for the Lord Chancellor, refused the injunction because it appeared that the landlord had lain by, had seen the cotton-mill erected, and had approved of the lessee's planting about the mill. (w) Where the defendants applied to the plaintiffs, who were coachmakers, and also owners of a private house adjoining the premises in which they carried on their business, for a lease of the private house; and this being accordingly granted to them, upon an agreement that the lessees should lay out 1007. upon exterior repairs under the direction of the plaintiffs, the defendants instantly proceeded to make alterations in the house for the purpose of carrying on the business of coachmakers, and the house being old, was in danger of falling the Lord Chancellor, under the circumstances, granted an injunction to restrain the defendants from proceeding to pull down the house. (x) : (v) Lord Courtown v. Ward, 1 Sch. & Lef. 8. (w) Brydges v. Kilburne, cited in Jackson v. Cator, 5 Ves. 689. (x) Bonnett v. Sadler, 14 Ves. 526. As to tenant for years without impeachment of waste, vide Bishop of London c. Webb, 1 P. Wms. 527. |