thereafter erected, and all the gates, &c., and the same being so repaired, he, the lessee, his executors, administrators, and assigns, at the end of the term would yield up. There was a breach alleged, in non-repair and not yielding up in repair. The third plea was pleaded to a part of this, viz., to so much as complained in respect of a water corn mill, cottages, and other buildings erected and built during the term, and showed that they were buildings erected during the term, and not erected in place of others previously existing. It was contended that this plea was good on the authority of the first resolution in Spencer's Case, the lessee not having covenanted for his assigns. The state of the authorities in question seems as follows: The proposition, that a covenant which would run with the land if the assignee were named, does not where he is not named and the thing was not in esse at the time of the making of the covenant, is laid down in Spencer's Case, 5 Rep. 16 a. The same is to be found in Comyns' Digest, Covt. (C.) 3, citing Spencer's Case and Jones, 223, which however does not support the doctrine. It is not found in Rolle. It is in Viner's Abridgment," Covenant" (L.), where however Moor. 159, is cited as establishing the same, when in truth it established the contrary. It is negatively sanctioned by the silence of the author and editors of Smith's Leading Cases, and it is cited in Doughty v. Bowman, 11 Q. B. 444, where however, with submission, it was inapplicable. There the question was if an assignee of the reversion was bound, which depends on different considerations. 1 Wms. Saunders, 241 d. In Shepherd's Touchstone, 180, it is thus put: "If the lessee covenant for himself, or for himself, his executors, or administrators only, to build a new house upon the land, the assignee is not bound;" the editor adds, because he is not named. In page 179, Spencer's Case is cited, but the case put is of a new house. A similar remark applies to Cockson v. Cock, Cro. Jac. 125, where a covenant to build de novo is called collateral. But it may not be unreasonably said that to build a new house does not "extend to the support of the thing demised." Indeed Lord Coke thought it waste. Co. Lit. 53 a. On the other hand, Moor. p. 159, pl. 300 (which is evidently Spencer's Case, though the date is later), gives the decision the other way. The explanation may be that Lord Coke is reporting a variety of arguments and opinions expressed, while Moore gives the ultimate decision. Smith v. Arnold, 3 Salk. 4, is directly contrary; and in Bally v. Wells, 3 Wils. 25, the contrary is stated. No reason is given for the alleged difference between where the assignee is and is not named; on the contrary, given for binding in any case an assignee not named, viz., that he takes the benefit and burden, seems equally to apply to every the reason such case. No doubt, as Mr. Atherton said, if the law were clearly laid down without contradiction (as he contends it is), it ought to be abided by, no reason could be given for it. It would not be enough to a departure from it, that it was without a known reason; it though justify ought to be followed, at least unless contrary and repugnant to other rules and principles. But in deciding which of two conflicting sets of authorities is correct, it is not irrelevant to look at the reason of the thing. No doubt the resolution in Spencer's Case has been repeatedly cited, or the same thing said as is said there; but that resolution is the foundation of the opinion; it never appears to have been acted on; on the contrary, Moor. 159, and Smith v. Arnold are decisions the other way. In the present case we think it sufficient to say, that as the covenant is not a covenant absolutely to do a new thing, but to do something conditionally, viz., if there are new buildings, to repair them; as when built they will be part of the thing demised, and consequently the covenant extends to its support, and as the covenant clearly binds the assignee to repair things in esse at the time of the lease, so does it also those in posse, and consequently the assignee is bound. There is only one covenant to repair; if the assignee is included as to part, why not as to all? On these grounds we think the third plea bad.1 Judgment for the plaintiff. Welsby, for the plaintiff. Atherton (Field with him) for the defendant.2 WILLIAMS v. EARLE. QUEEN'S BENCH. 1868. [Reported L. R. 3 Q. B. 739.] BLACKBURN, J.3 This is an action by the lessor against the assignee of a lease for breach of covenants in the lease, and the rule has been well established ever since Spencer's Case, 5 Rep. 16 a; 1 Sm. L. C. (6th ed.) 45, that, when covenants are contained in a lease (at all events if, as in the present case, the covenants are on behalf of the lessee and his assigns), and the covenants touch or concern the land, although the original covenants are made by the original lessee with the lessor, yet they run with the land, and there being privity of estate between the assignee and the lessor, the lessor may sue the assignee for breach of any of them. But this is only in the case of a covenant which touches or concerns" the land. 66 Now the first and chief point to be determined here is, there being a covenant in the original lease by which the lessees, on behalf of themselves and their assigns, covenant with the lessor that neither they nor their assigns will assign the lease without the license of the mortgagor and mortgagee, and the defendant the assignee having assigned without 1 The rest of the opinion, relating to another point, is omitted. 2 See 1 Sm. L. C. (9th ed.) 81-84. 8 The opinion only is given. their license, whether that is a covenant which touches or concerns the land, and therefore runs with it and binds the defendant. I have been unable to perceive, after listening attentively to the argument of the counsel for the defendant, any reason why this covenant should not be considered a covenant touching and concerning the land. It is an express covenant as to who shall have and occupy the land, and it is inserted with a view that the landlord shall not be deprived of a voice as to who shall be substituted for the original lessee in the possession of the landlord's premises. It is certainly very material as touching the interest of the landlord and tenant, and touches and concerns the thing demised quite as directly as the many covenants that have been held to do so, such as a covenant to renew a lease, which has been held to run with the land in more than one case cited in the judgment of the court in Roe v. Hayley, 12 East, at p. 469; or a covenant to reside in the demised premises, which was held in Tatem v. Chaplin, 2 H. Bl. 133, to bind the assignee though not named. Again, in Bally v. Wells, 3 Wils. 25, 33, a covenant not to let any of the farmers take the tithes demised without the consent of the lessor was held to run with the tithes and bind the assignee, assigns being mentioned in the covenant. And the expression made use of by the court at the end of the judgment, which Mr. Jones relied upon as showing that a covenant to assign without a license could not run with the land, seems to have no such meaning, but the contrary. The expression is, "a covenant not to assign generally must be personal and collateral, and can only bind the lessor himself, there never can be an assignee;" but the court adds, "whereas the present lease grants to executors, administrators, and assigns;" and what they seem to have meant is, that when the lessee covenants, not that he will not assign without license, but that he will not assign at all, then the covenant of course does not run with the land, because the covenant is gone whether the assignment be with a license or without. But when there is a covenant that the lessee and his assigns will not assign without license, it is different, and the covenant may run with the land toties quoties. It seems to me, therefore, both upon principle and authority, that the present covenant not to assign without license from the landlord from time to time, does run with the land, and consequently the defendant, the assignee, is liable for the breach. But though there is a covenant binding on the defendant not to assign, the assignment is nevertheless operative, and the estate passed from the defendant to Banks, and the breaches of covenant which have occurred since are not breaches for which the defendant can be liable in the present form of action; anything done by the defendant on the premises since then he may be liable for in an action on the case; but the remedy on the covenants must be against the new tenant Banks. But the plaintiff is entitled to recover indirectly in the present action by way of damages for the breach of the covenant not to assign; for inasmuch as, if the covenant not to assign had not been broken, the assignee would have remained liable to the plaintiff to fulfil all these covenants, the breaches of which are mentioned in the first count, and there would have been, if he remained solvent, a complete and sufficient remedy in his liability, the defendant having assigned over to a person, who no doubt is selected because he has nothing to lose and so loses nothing by incurring the liability under the covenants, there has been damage sustained by the plaintiff by the defendant's breach of covenant not to assign, by reason of the plaintiff only having the liability of this inferior person, instead of the liability of the defendant, for the breaches of the other covenants; and the arbitrator, in assessing the damages on the second count, must put the plaintiff, as far as possible, in the same position, so far as money will do it, as if the covenant had not been broken. The arbitrator will take into consideration how much the worse the plaintiff will be both in respect of breaches of covenant already incurred, as well as in respect of breaches which may in future be incurred. The arbitrator must see what sum of money will put the plaintiff in the same position as he would have been in if the covenant not to assign the lease had not been broken, and the plaintiff had retained the liability of the defendant instead of an inferior liability. I agree with Mr. Jones that this will be a matter of some difficulty, and the parties would do well to agree that the lease shall be surrendered to the plaintiff, and then the measure of damages will be by how much worse off the plaintiff is than he would have been had the defendant continued bound as lessee all the time, as he would have been had he not broken his covenant not to assign. There are some further questions for our consideration, which will be material for the arbitrator's guidance in assessing the damages, both on the first and second counts. In this form of action the defendant is only liable for a breach of covenant; and, as has been already stated, a covenant to run with the land must touch and concern the land; and it appears from the lease that there were demised, not only fixtures, but movable things, which are mentioned in the schedule, - tools, utensils, and other things. And there is a covenant that the fixtures and other things should be kept in order and restored when worn out, and when restored kept in the same good working order. So far as that covenant relates to anything fixed to the land, the covenant runs with the land, and for any breach committed during the defendant's time he will be liable on the first count; and any breach which may have been committed during Banks's time, after the assignment from the defendant, will be matter to be taken into account in assessing the damages against the defendant on the second count. But as to the movable things, the covenant does not run with the land, as the mode in which they were dealt with could not have affected the land, and for anything connected with them the plaintiff cannot recover in the present form of action. For instance, a boiler, fixed to the land, though the tenant might be able to remove it at the end of the term, yet the keeping it there during the term would relate to the occupation and enjoyment of the land, and the covenant for keeping it there would run with the land. But covenants as to mere chattels cannot run with the land, and, as to such things, if the parties cannot wisely agree to refer all matters to the arbitrator, the mortgagor, who is the real plaintiff, will take advice as to bringing another action. LUSH, J. I am of the same opinion, and have nothing to add to what my Brother Blackburn has said. Holker, for the plaintiff. Judgment for the plaintiff.1 T. Jones, Q. C. (with him Herschell), for the defendant. DECLARATION by the assignee of a lease against the lessor, on a covenant in the lease, by which, the lessee having covenanted for himself, his executors, administrators, and assigns, during the continuance of the term to use and continue the demised house for the sale of spirits, the defendant, for himself, his executors, administrators, and assigns, covenanted"not to build, erect, or keep, or be interested or concerned in building, erecting, or keeping, any house for the sale of spirits or beer within the distance of half a mile from the premises thereby demised, during the continuance of the said term." Demurrer and joinder. Brown, Q. C., for the defendant, supported the demurrer. BRAMWELL, B. The covenant does not touch or concern the thing dennised. It touches the beneficial occupation of the thing, but not the thing itself; and this becomes manifest when it is considered that, supposing the lessee's covenant to carry on the sale of spirits on the premise to be discharged by agreement between the lessor and lessee, or that without such discharge, the lessee, in fact, discontinued the business, the defendant's covenant would obviously in no way concern the land. This shows that the covenant relates only to the mode of occupying the land, not to the land itself. It does not, therefore, run with the land so as to enable the plaintiff to sue upon it. Сн ANNELL, B. I am of the same opinion. A covenant runs with the land only when it touches, that is, when its operation directly, and not merely collaterally, affects the thing demised. It cannot be said that this covenant does so. CLEASBY, B. I am of the same opinion. It has been argued that 1 See West v. Dobb, L. R. 4 Q. B. 634; 1 Sm. L. C. (9th ed.) 84. VOL. II.-28 |