only to prospective differences: so much, then, of the award as relates to these, may be rejected as surplusage, and the rest retained. The rule must, therefore, be discharged.

LITTLEDALE and TAUNTON JS. (a) concurred.

Rule discharged.

(a) Patteson J. had gone into the Bail Court to dispose of motions.

1832.

MANSER

against HEAVER.

DoE dem. Sir W. ABDY against STEVENS and Monday,

Another.

EJECTMENT for messuages, dwelling-houses, and land in the parish of St. John, Southwark, in the county of Surrey, for a forfeiture alleged to have been incurred by the defendants' non-performance of a covenant to repair. At the trial before Bayley B., at Spring assizes for Surrey 1831, it appeared that the defendants held the premises by a lease granted in 1792,

the

by the father of the lessor of the plaintiff, for forty-three years. The lease contained covenants by the lessee, first, to pay the rent; secondly, to lay out 1507. in repairing and improving the premises; thirdly, well and sufficiently to repair, support, sustain, maintain, amend,

and keep the premises; fourthly, to insure the buildings during the term against fire; fifthly, not to permit any reed stack to be made, or any considerable quantity of pitch to be kept or laid in or upon any part of the premises without carefully housing the same; sixthly, to permit and suffer the lessor to view the premises; seventhly, not to assign without leave of the lessor.

There

January 30th.

Proviso in a 5.30
lease, giving
power of re-

entry if the

lessee "shall

do or cause to

be done any

act, matter, or
thing contrary

to and in

breach of any
of the cove-

nants," does

not apply to a

breach of the

covenant to

repair, the

omission to
repair not being

an act done

within the
meaning of the
proviso.

4 Bac. 1022.

656

1832.

DoE dem.

Sir W. ABDY against STEVENS.

There was a proviso for re-entry, "if the rent should be in arrear for fourteen days, or the lessee should assign without leave of the lessor, or do or cause to be done any act, matter, or thing whatsoever contrary to or in breach of any one or more of the covenants thereinbefore contained." Covenant by the lessor "that the lessee, his executors, &c. paying the rent and performing all and every the covenants and provisoes according to the true intent and meaning of the lease, should quietly enjoy the premises." It was objected, that the nonperformance of the covenant to repair was not a doing or causing to be done any act, matter, or thing within the meaning of the proviso. The learned Judge was of that opinion, and directed a nonsuit, with liberty to the plaintiff to move to enter a verdict. A rule nisi having been obtained for that purpose,

Platt on a former day of the term shewed cause (a). A proviso for re-entry must be construed strictly. In order to bring a case within the terms of this proviso, the plaintiff should have shewn some act done by the tenant in breach of a covenant; but here he has shewn only an omission to do certain acts. There are other covenants in the lease to which the words of the proviso may be referred, particularly that whereby the lessee undertakes not to permit any reed stack, &c. to be made, or any considerable quantity of pitch to be kept on any part of the premises without housing the same.

Gurney and Dowling contrà. Covenants must be interpreted according to the real intent of the parties

(a) Before Lord Tenterden C. J., Littledale and Taunton Js.

expressed

expressed by their own words; and if there be any
doubt as to the sense of the words, such construction
shall be made as is most strong against the covenantor,
lest by the obscure wording of his contract he should
find means to evade and elude it, Bacon's Abr. tit. Cove-

nant, (F); and in the same work, tit. Condition, (O 2.) it
is also said that conditions must be interpreted according
to the real intention of the parties. Now, applying that
rule to the present case, it may be collected from the
lease that the intention of the parties was, that there
should be a right of entry in case of the non-perform-
ance of
any of the covenants. If that were not so, the
proviso would be almost nugatory, for it would not
apply to a breach of the covenant to pay rent, to lay
out money in improving the premises, to repair, to
insure the buildings against fire, or to suffer the lessor
to view the premises. Besides, the covenant of the
lessor for quiet enjoyment is, that the lessee, paying the
rent and performing all and every the covenants, shall
quietly enjoy, &c. The import of those words is, that
on the breach of any of the lessee's covenants, the land-
lord's covenant for quiet enjoyment shall be at an end.
Now, as the proviso for re-entry and the covenant for
quiet enjoyment both relate to the termination or enjoy-
ment of the estate, they ought to be construed together,
and so as to make them consistent with each other, Doe
d. Spencer v. Godwin (a). If the tenant had been ousted
by a stranger, and sued the lessor on the covenant for
quiet enjoyment, it would have been an answer, to shew
that the lessee had broken the covenant to repair. The
proviso is for breach of any one of the covenants; and as

(a) 4 M. & S. 265.

1832.

DOE dem. Sir W. ABDY against STEVENS.

VOL. III.

X

several

1832.

several of the covenants can only be broken by an omission to do some act, they must be included in it. Sir W. ABDY In Doe d. Palk v. Marchetti (a) the action was brought

DoE dem.

against

STEVENS.

on a proviso giving a power of re-entry if the tenant should make default in the performance of any of the covenants for thirty days after notice, and the clause was held not applicable to the breach of a covenant "not to allow alterations in the premises, or permit new buildings to be made upon them without permission;" but the reason was, that the default was of such a nature that the parties could not have contemplated a notice not to make it; and there Lord Tenterden said, "The words make default properly apply to affirmative covenants, though the expression to make default has been applied to negative ones." So the words here," do or cause to be done any act, matter, or thing contrary to or in breach of any of the covenants," apply strictly to negative covenants, but they may be extended to affirmative covenants, if that appears to be the intention of the parties. Here that intention, for the reasons already stated, is manifest. Cur. adv. vult.

Lord TENTERDEN C. J. now delivered the judgment of the Court.

This was an ejectment brought for a forfeiture supposed to have been incurred by the non-performance of a covenant to repair. The clause reserving the right of re-entry was, "if the lessee shall do or cause to be done any act, matter, or thing whatsoever contrary to or in breach of any one or more of the covenants and agreements hereinbefore contained." The clause, being

(a) 1 B. & Ad. 715.

1832.

Doɛ dem.

against STEVENS.

in this peculiar and special form, it was contended, did not apply to an omission to repair. It is a general rule of construction, that the words of a covenant must be Sir W. ABDY taken most strongly against the covenantor, and that rule applies more strongly to a proviso for re-entry which contains a condition that destroys or defeats the estate. In Doe v. Godwin (a) the lessce covenanted that he would not assign without leave of the lessor, proviso that if the rent be in arrear, "or if all or any of the covenants hereinafter contained on the part of the lessee shall be broken, it shall be lawful for the lessor to re-enter;" and there were no covenants on the part of the lessee after the proviso, but only a covenant by the lessor, that the lessee, performing all and every the covenants hereinbefore contained on his part to be performed, should quietly enjoy. The question was, whether the proviso for re-entry would apply to the breach of a covenant preceding the proviso; and although Lord Ellenborough doubted whether the covenant for quiet enjoyment and the proviso for re-entry, relating to the same subject-matter (the enjoyment or the termination of the estate), ought not to be construed together, and the words hereinafter and hereinbefore in each of them (evidently relating to the same covenants) be taken in the same sense, yet, on the whole, the Court held that the word hereinafter in the proviso could not be rejected, and consequently that that clause did not apply to the breach of a covenant preceding it in the lease. Here the words do or cause to be done import an act, and there is nothing in the other parts of the instrument from which we can clearly collect that it was the intention of