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English High Court of Justice in a case where the to be such covenants as were just as well known in defendant had entered into an agreement to take a

such leases as the usual covenants under an agreelease for a dwelling-house, to contain “the usual ment to convey an estate, and though the word covenants and provisos." The lease tendered to incidental' is not very precise, I conceive Lord the defendant contained a covenant that the lessee Thorlow's meaning to have been that the party had would not, without the lessor's consent, “ assign, a right to those covenants that would be ivserted underlet or part with the premises.” The court in the execution of an agreement for a lease arising held that a covenant not to assign was not a usual out of the general well-known practice as to such covenant.” The master of the rolls said: “ This leases, and not contradicting the incidents of the was decided by Lord Thurlow in Henderson v.

estate belonging to a lessee, one of which is the Hay, 15 by Lord Eldon in Church v. Brown,lsa and right to have the estate without restraint beyond more recently by the Court of Appeal in Hodgkin- what is imposed upon it by operation of law, unless son v. Crowe, i6 and by Bacon, V. C., in the same

there is an express contract for more." case, so that it cannot now be fairly disputed. It

§ 4. Same--Same— Rule of property. - Lord Eldon is true that a contrary decision of Romilly was cited

says tbat the safest rule for property is that a per-Haines v. Burnett--but that case appears to me

son shall be taken to grant the interest in an estate to be opposed to principle and authority, and it must

which he proposes to convey, or the lease he pronow be treated as distinctly overruled by Hodgkin- poses to make, and that nothing which flows out of son v. Crowe.

In Haines v. Burnett, Lord Romilly, that interest as an incident is to be done away by without any special provision having been made in

loose expressions to be constructed by fucts more the contract to that effect, held that a covenant loose, that it is upon the party who has forborne to should be inserted making the lease determinable insert a covenant for his own benefit to show his on the bankruptcy of the lessce or on his making title to it, and that it is safer to require the lessor any arrangement for the benefit of his creditors.

to protect himself by express stipulation than for That was, in fact, nothing less than a variation of the contract. I cannot see any reason for holding shall insert, not restraints expressed by the contract

courts of equity to hold that contracting parties such a covenant to be usual, and it is rather difficult,

or implied by law, but such, more or less in number, in looking at the case, to understand how it was

as individual conveyancers shall from day to day decided. Lord Romilly seems to have thought that, in considering general covenants and all such other prescribe as proper to be imposed upon the lessee,

and that all those restraints so imposed from time covenants as are usually inserted in leases of prop

to time are to be introduced as the aggregate of erty of a similar description, some regard might be

the agreement.? had to the peculiar nature and tenure of the property; but I cannot find any evidence on that point

$ 5. Same--Same-- Covenant to pay rent.--A covementioned in that report, and it would seem that

nant to pay rent is necessarily implied from the the judge, from his view of the nature of the prop

nature of the relation of a tenantcy for years, and erty, inserted the clause. But when we look at the

the reservation in the lease of a stipulated sum. 2? reasoning of Bacon, V. C., in Hodgkinson v. Crowe, Such implied covenant is separate and distinct from I think it is conclusive against any judge being any expressed covenants contained in the lease.? allowed to say from his own view that such a cove

In the absence of an express agreement the law impant ought to be introduced. 18

plies a promise on the part of the lessee to pay a $ 3. Same— Sume-Same- Lord Elion's vieur.--In

fair rent, but this obligation upon his part lasts only Church v. Brown, 19 Lord Eldon says: “Before the

so long as he continues to occupy the premises, and case of Henderson v. Hay, 20 therefore, upon an

he may, by assigning his term, discharge himself agreement to grant a lease with nothing more than

from all future responsibility; but if there is an ex“proper covenants,” I should have said they were press covenant on the part of the lessee to pay rent,

he will continue to be bound by his contract al15 3 Brown C. C. 632.

though he assign over his lease. 24 For this reason 16a 15 Ves. 258; S. C., 10 Rev. Rep. 74.

a covenant to pay rent is always desirable, and 16 L. R., 10 Ch. 622; S. C., 14 Moak’s Eng. 823; found in all well-drawn leases, for the protection of 33 L. T. (N. S.) 388.

11 L. R., 19 Eq. 593; S. C., 33 L. T. (N. S.) 122. 21 Church v. Brown, 15 Ves. 258, 258; S. C., 10

18 See In re Lander Contact, 3 Ch. 41; S. C., 61 Rev. Rep. 74. L. J. Ch. 707; 67 L. T. 521; Hampshire v. Wick- 92 1 Schoul, Pers. Prop. (2d ed.), $ 31. ens, 7 Ch. Div. 555, 560; S. C., 23 Moak's Eng. 13 Van Rensselaer v. Smith, 27 Barb. 104; Royer 708, 711.

v. Ake, 9 Penn. St. 461; Kimpton v. Walker, 9 Vt. 19 15 Ves. 258; 8. C., 10 Rev. Rep. 74.

191, 198. 20 15 Ves. 264.

See post, $ 9.

24

the landlord. Such a covenant runs with the land taxes on the leased premises is frequently inserted and binds not only the lessee but his assigns whether in a lease. In such cases he becomes personally named or not. 25 Such covenants as are implied by responsible for the taxes assessed against the premlaw receive more liberal construction than express ises, and on his failure to pay them, the lessor can covenants. When

person assumes a liability and recover the amount assessed, although he may not makes no provision for accident the law presumes himself have paid such tax;31 but a covenant to pay him to take the risk upon himself, and he will be taxes of every name and kind that shall be assessed held to make good his contract although he is de- against the premises, will not obligate the lessee to prived of the benefits of the premises by inevitable pay assessments for benefits accruing from street accident. Thus we have already seen that a cove- improvements, and the like. In those cases, hownant to repair and keep in repair will bind the lessee ever, where there are words evincing an intention to rebuild in case of destruction by fire or other ac- of the parties to the lease to extend the liability, cident;26 and where there is no saving clause the the lessee will be held liable for benefits. 33 lessee will be bound to continue paying rent after destruction of the buildings by fire or other casu

31 Rector, etc., of Trinity Church v. Higgins, 48 alty." For this reason there is usually a proviso

N. Y. 532. See Rector, etc., of Trinity Church v inserted to protect the lessee, which relieves him

Vanderbilt, 98 id. 170, 174; Sage v. Truslow, 88 id. from the payment of rent where the building is de

240, 244. In the case of Rector, etc., of Trinity stroyed by fire or other casualty, without any fault

Church v. Higgins, supra, there was a covenant in a or neglect on his part.

lease whereby the lessee agreed to bear, pay and $ 6. Same-Same— Covenant to pay taxes. In the discharge all taxes and assessments which shall be absence of any express covenant in the lease the imposed upon the demised premises during the lessor is bound to pay the taxes, 28 and if he fails to

term, and the court held the covenant broken by do so the lessee may for bis own protection, do so

neglect to pay taxes or assessments duly imposed, when demanded, and charge the same to the ac- holding that it is not simply a contract of indemcount of rent, 29 and if the amount of taxes thus nity, but by it the tax or assessment, as between the paid by the lessee exceeds the rent due; the excess parties, becomes the debt of the lessee; that the may be recovered from the lessor as money paid to

lessor could therefore maintain an action thereon his use. 30 A covenant requiring the lessee to pay without first paying the tax or assessment, and as

damages he is entitled to recover the amount of

*the *5 Dolph v. White, 12 N. Y. 296; Main v. Feath

such tax or assessment. The court say that ers, 21 Barb. 646; Harmony Lodge v. White, 30

rule may be definitely drawn from numerous cases,

that where indemnity only is expressed, damages Ohio St. 569; Sutliff v. Atwood, 15 id. 186, 194. In

must be sustained before a recovery can be had; but Webb v. Russell Kenyon, C. J., said: “It is not sufficient that a covenant is concerning the land;

a positive agreement to do an act which is to prebut in order to make it run with the land there

vent damage to the plaintiff will sustain an action

where the defendant neglects or refuses to do such must be privity of estate between the covenanting

act."

Citing Gilbert v. Wiman, 1 N. Y. 550; S. C., parties.” In that case the covenant to pay rent was

49 Am. Dec. 359; McGee v. Roen, 4 Abb. Pr. 8; to one who, it was held, had no legal interest in the

Cady v. Allen, 22 Barb. 388; Churchill v. Hunt, :3 land, and it was held that the covenant was collateral. It is added : “Though a party may covenant

Den. 321; Aberdeen v. Blabkmar, 6 Hill, 324;

Thomas v. Allen, 1 id. 145; Port v. Jackson, 17 with a stranger to pay certain rent, in consideration of a benefit to be derived under a third person, yet Mann v. Eckford's Exrs., 15 id. 502, 514; Chance

Johns. 239, 479; Webb v. Pond, 19 Wend. 423; such a covenant cannot run with the land." See

v. Hinman, 8 id. 453; Matter v. Negus, 7 id. 499, Dolph v. White, 12 N. Y. 296, 301; Bacon's Abr.,

501. tit. “ Covenant, C.; " Shep. Touch. 176.

39 Beals v. Providence Rubber Co., 11 R. I. 381; * See ante, 1.

S. C., 9 Chic. Leg. N. 35. See Harvard College v. * Coy V. Downie, 14 Fla. 544; Robinson v.

Boston, 104 Mass. 470, 482, 483; People v. Mayor L'Engle, 13 id. 482, 496; Helburn v. Moffard, 7

of Brooklyn, 4 N. Y. 419, 432; 8. C., 55 Am. Dec. Bush, 169; Leavitt v. Fletcher, 92 Mass. 121; Fow- 266; In re College Street, 8 R. I. 474; Love v. ler v. Payne, 49 Miss. 32; Witty v. Matthews, 52 Howard, 6 id. 116; Baker v. Greenhill, 3 Ad. & E. N. Y. 512; Moffatt v. Smith, 4 id. 126.

(N. S.) 148; S. C., 43 Eng. C. L. 672; Barrett v. ** Prettyman v. Walston, 34 III. 175, 191.

Bedford, 8 Durnf. & E. 602; Southall v. Leadbetter, * See Hunt v. Amidon, 4 Hill, 345; S. C., 40 Am. 3 id. 458; Jeffrey v. Neale, L. R., 6 C. P. 240; TidsDec. 283.

well v. Whitworth, L. R., 2 C. P. 326. 30 Taylor v. Zamira, 6 Taunt. 524; S. C., 1 Eng. 33 See Blake v. Baker, 115 Mass. 188; Curtis v. C. L. 736.

Pierce, id. 168; Codman v. Johnson, 104 id. 491.

English High Court of Justice in a case where the to be such covenants as were just as well known in defendant had entered into an agreement to take a

such leases as the usual covenants under an agreelease for a dwelling-house, to contain “ the usual ment to convey an estate, and though the word covenants and provisos.” The lease tendered to 'incidental' is not very precise, I conceive Lord the defendant contained a covenant that the lessee Thorlow's meaning to have been that the party had would not, without the lessor's consent, “ assign, a right to those covenants that would be inserted underlet or part with the premises." The court in the execution of an agreement for a lease arising held that a covenant not to assign was not a “ usual out of the general well-known practice as to such covenant.” The master of the rolls said: “ This leases, and not contradicting the incidents of the was decided by Lord Thurlow in Henderson v. estate belonging to a lessee, one of which is the Hay, 15 by Lord Eldon in Church v. Brown, 154 and right to have the estate without restraint beyond more recently by the Court of Appeal in Hodgkin- what is imposed upon by operation of law, unless son v. Crowe, 16 and by Bacon, V. C., in the same

there is an express contract for more." case,'' so that it cannot now be fairly disputed. It

§ 4. Same-Same— Rule of property. - Lord Eldon is true that a contrary decision of Romilly was cited

says tbat the safest rule for property is that a per-Haines v. Burnett--but that case appears to me

son shall be taken to grant the interest in an estate to be opposed to principle and authority, and it must which he proposes to convey, or the lease he pronow be treated as distinctly overruled by Hodgkin- poses to make, and that nothing which flows out of son v. Crowe. In Haines v. Burnett, Lord Romilly, that interest as an incident is to be done away by without any special provision having been made in

loose expressions to be constructed by fucts more the contract to that effect, held that a covenant should be inserted making the lease determivable insert a covenant for his own benefit to show his

loose, that it is upon the party who has forborne to on the bankruptcy of the lessee or on his making title to it, and that it is safer to require the lessor any arrangement for the benefit of his creditors.

to protect himself by express stipulation than for That was, in fact, nothing less tha a variation of the contract. I cannot see any reason for holding shall insert, not restraints expressed by the contract

courts of equity to hold that contracting parties such a covenant to be usual, and it is rather difficult,

or implied by law, but such, more or less in number, in looking at the case, to understand how it was

as individual conveyancers shall from day to day decided. Lord Romilly seems to have thought that,

prescribe as proper to be imposed upon the lessee, in considering general covenants and all such other

and that all those restraints so imposed from time covenants as are usually inserted in leases of prop

to time are to be introduced as the aggregate of erty of a similar description, some regard might be

the agreement.” had to the peculiar nature and tenure of the property; but I cannot find any evidence on that point

$ 5. Same-Same - Covenant to pay rent. -A covementioned in that report, and it would seem that

nant to pay rent is necessarily implied from the the judge, from his view of the nature of the prop

nature of the relation of a tenantcy for years, and erty, inserted the clause. But when we look at the the reservation in the lease of a stipulated sum. ?? reasoning of Bacon, V. C., in Hodgkinson v. Crowe, Such implied covenant is separate and distinct from I think it is conclusive against any judge being any expressed covenants contained in the lease. 23 allowed to say from his own view that such a cove

In the absence of an express agreement the law imnant ought to be introduced.18

plies a promise on the part of the lessee to pay a $ 3. Same- Sume-Same— Lord Elon's view.--In

fair rent, but this obligation upon his part lasts only Church v. Brown, 19 Lord Eldon says: “Before the

so long as he continues to occupy the premises, and case of Henderson v. Hay, 20 therefore, upon an

he may, by assigning his term, discharge himself agreement to grant a lease with nothing more than from all future responsibility; but if there is an exproper covenants,” I should have said they were press covenant on the part of the lessee to pay rent,

he will continue to be bound by his contract al15 3 Brown C. C. 632.

though he assign over his lease. 24 For this reason 16a 15 Ves. 258; S. C., 10 Rev. Rep. 74.

a covenant to pay rent is always desirable, and 16 L. R., 10 Ch. 622; S. C., 14 Moak’s Eng. 823; found in all well-drawn leases, for the protection of 33 L. T. (N. S.) 388. 1 L. R., 19 Eq. 593; S. C., 33 L. T. (N. S.) 122.

31 Church v. Brown, 15 Ves. 258, 258; S. C., 10 18 See In re Lander Contact, 3 Ch. 41; S. C., 61

Rev. Rep. 74. L. J. Ch. 707; 67 L. T. 521; Hampshire v. Wick- 22 1 Schoul. Pers. Prop. (2d ed.), $ 31. ens, 7 Ch. Div. 555, 560; S. C., 23 Moak’s Eng. 13 Van Rensselaer v. Smith, 27 Barb. 104; Royer 708, 711.

v. Ake, 9 Penn. St. 461; Kimpton v. Walker, 9 Vt. 19 15 Ves. 258; 8. C., 10 Rev. Rep. 74.

191, 198. 20 15 Ves. 264.

24 See post, $ 9.

the landlord. Such a covenant runs with the land taxes on the leased premises is frequently inserted and binds not only the lessee but his assigns whether in a lease. In such cases he becomes personally named or not. 25 Such covenants as are implied by responsible for the taxes assessed against the premlaw receive more liberal construction than express ises, and on his failure to pay them, the lessor can covenants. When a person assumes a liability and recover the amount assessed, although he may not makes no provision for accident the law presumes himself have paid such tax;31 but a covenant to pay him to take the risk upon himself, and he will be taxes of every name and kind that shall be assessed held to make good his contract although he is de- against the premises, will not obligate the lessee to prived of the benefits of the premises by inevitable pay assessments for benefits accruing from street accident. Thus we have already seen that a cove- improvements, and the like.9: In those cases, hownant to repair and keep in repair will bind the lessee ever, where there are words evincing an intention to rebuild in case of destruction by fire or other ac- of the parties to the lease to extend the liability, cident;*and where there is no saving clause the the lessee will be held liable for benefits. 33 lessee will be bound to continue paying rent after destruction of the buildings hy fire or other casu

31 Rector, etc., of Trinity Church v. Higgins, 48

etc alty.” For this reason there is usually a proviso N. Y. 532. See Rect of Trinity Church v inserted to protect the lessee, which relieves him Vanderbilt, 98 id. 170, 174; Sage v. Truslow, 88 id. from the payment of rent where the building is de- | 240, 244. In the case of Rector, etc., of Trinity stroyed by tire or other casualty, without any fault Church v. Higgins, supra, there was a covenant in a or neglect on bis part.

lease whereby the lessee agreed to bear, pay and $ 6. Same-Same— Covenant to pay taxes. In the discharge all taxes and assessments which shall be absence of any express covenant in the lease the imposed upon the demised premises during the lessor is bound to pay the taxes, 28 and if he fails to

term, and the court held the covenant broken by do so the lessee may for his own protection, do so

neglect to pay taxes or assessments duly imposed, when demanded, and charge the same to the ac-holding that it is not simply a contract of indemcount of rent,” and if the amount of taxes thus nity, but by it the tax or assessment, as between the paid by the lessee exceeds the rent due; the excess

parties, becomes the debt of the lessee; that the may be recovered from the lessor as money paid to

lessor could therefore maintain an action thereon his use. 30 A covenant requiring the lessee to pay

without first paying the tax or assessment, and as

damages he is entitled to recover the amount of Dolph v. White, 12 N. Y. 296; Main v. Feath

such tax or assessment. The court say that “the ers, 21 Barb. 646; Harmony Lodge v. White, 30

rule may be definitely drawn from numerous cases,

that where indemnity only is expressed, damages Ohio St. 569; Sutliff v. Atwood, 15 id. 186, 194. In

must be sustained before a recovery can be had; but Webb v. Russell Kenyon, C. J., said: “It is not

a positive agreement to do an act which is to presufficient that a covenant is concerning the land;

vent damage to the plaintiff will sustain an action but in order to make it run with the land there must be privity of estate between the covenanting act.” Citing Gilbert v. Wiman, 1 N. Y. 550; S. C.,

where the defendant neglects or refuses to do such parties.” In that case the covenant to pay rent was

49 Am. Dec. 359; McGee v. Roen, 4 Abb. Pr. 8; to one who, it was held, had no legal interest in the land, and it was held that the covenant was collat- Cady v. Allen, 22 Barb. 388; Churchill v. Hunt, :

Den. 321; Aberdeen V. Blabkmar, 6 Hill, 324; eral. It is added: “Though a party may covenant

Thomas v. Allen, 1 id. 145; Port v. Jackson, 17 with a stranger to pay certain rent, in consideration of a benefit to be derived under a third person, yet Mann v. Eckford's Exrs., 15 id. 502, 514; Chance

Johns. 239, 479; Webb v. Pond, 19 Wend. 423; such a covenant cannot run with the land." See

v. Hinman, 8 id. 453; Matter v. Negus, 7 id, 499, Dolpb v. White, 12 N. Y. 296, 301; Bacon's Abr.,

501. tit. “Covenant, C.;” Shep. Touch. 176.

32 Beals v. Providence Rubber Co., 11 R. I. 381; 16 See ante, $ 1.

S. C., 9 Chic. Leg. N. 35. See Harvard College v. Coy v. Downie, 14 Fla. 544; Robinson v.

Boston, 104 Mass. 470, 482, 483; People v. Mayor L'Engle, 13 id. 482, 496; Helburn v. Moffard, 7

of Brooklyn, 4 N. Y. 419, 432; 8. C., 55 Am. Dec. Bush, 169; Leavitt v. Fletcher, 92 Mass. 121; Fow-266; In re College Street, 8 R. I. 474; Love v. ler v. Payne, 49 Miss. 32; Witty v. Matthews, 52 Howard, 6 id. 116; Baker v. Greenhill, 3 Ad. & E. N. Y. 512; Moffatt v. Smith, 4 id. 126.

(N. S.) 148; S. C., 43 Eng. C. L. 672; Barrett v. 98 Prettyman v. Walston, 34 III. 175, 191.

Bedford, 8 Durnf. & E. 602; Southall v. Leadbetter, 99 See Hunt v. Amidon, 4 Hill, 345; S. C., 40 Am. 3 id. 458; Jeffrey v. Ncale, L. R., 6 C. P. 240; TidsDec. 283.

well v. Whitworth, L. R., 2 C. P. 326. 30 Taylor v. Zamira, 6 Taunt. 524; S. C., 1 Eng. 33 See Blake v. Baker, 115 Mass. 188; Curtis v. C. L. 736.

Pierce, id. 168; Codman v. Johnson, 104 id. 491.

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§ 7. Same-Same- Covenant to insure premises.- A covenant not to carry on certain specified trades It is not infrequently the case that a covenant is will not be considered as prohibiting any trade not inserted in the lease requiring that the lessee shall specified ;“ but a mere retail in the lease, of the keep the premises insured in a given amount, and purpose for which the premises are let has been in case of loss to apply the proceeds to the rebuild held to constitute a covenant as to use. In those ing or repairing of the premises. Such a covenant

cases where the mode of occupation is fixed by the is broken if the lessee permits the premises to re

lease, or where the intention of the purpose is exmain uninsured for any time, however short.34 And pressed therein so as to show the intention to conwhere such covenant requires the insurance to be fine the leased premises to a special use, then the taken out in the name of the lessor, an insurance lessee will be prohibited from converting the proptaken in the name of the lessee will not constitute erty to other purposes. Should the lessee exera compliance with the covenant. 35 In other cases

cise a forbidden trade, or use the premises in a the insurance is required to be taken out in the

manner prohibited, by which the lease is forfeited,

the mere fact that the lessor suffers the trade to be joint names of the lessor and the lessce, and in case of fire the insurance money to be applied in rebuild

carried on, or passively permits the prohibited use,

this does not amount to a waver of the forfeiture; ing or repairing the premises. When in this form the covenant becomes a real covenant and runs with

but should he permit the tenant to go on and make the land; but a mere covenant to insure, which improvements upon the premises which are necesdoes not provide for the application of the money

sary in order to adapt them to the trade or use to

which it is put, this will be evidence of his consent arising from the policy of insurance in case of fire,

to the premises being so used and occupied. 4? is merely a personal covenant, extending only to

$ 9. Same-Same-- Covenant not to assign or underthe covenantor and his personal representatives, and

let.- One of the usual covenants inserted in a lease gives to the lessor no right to receive the insurance money from the insurer, In some States, however, the consent of the lessor. is that the lessor will not assign or sublet without

Such covenants, however, it is provided by statute, that the insurance money

are not favored by law, because looked upon as prein such cases shall be applied to repairing and re

judicial to the interests of commerce. They are building the premises injured or destroyed, and in strictly construed by the courts. This disfavor of these States such covenant is real and runs with the

restrictions being placed upon estates, either as to land.36

use or alienation, has led the courts to allow sub§ 8. SameSame - Covenant as to use of premises. letting where the lease simply prohibits assignment, -It is usual to insert in a lease a covenant restrict- and to allow an assignment where the lease simply ing the uses to which the premises may be put. In prohibits sub-letting.*3 It has been said that a some it is an affirmative covenant to use the premises for a particular purpose, while in others it is a 41 Simions v. Farren, Bing. N. C. 126; S. C., 27 negative covenant not to carry on a particular trade, Eng. C. L. 572. or any trade that shall be offensive to the neighbors. 4's Maddox v. White, 4 Md. 72; S. C., 59 Am. Such a covenant is real and runs with the land, and Dec. 67; Steward v. Winters, 4 Sandf. Ch. 587. its breach may work a forfeiture of the lease, 37 or a See Reed v. Lewis, 74 Ind. 433; S. C., 39 Am. Rep. court of equity may enforce the covenant and by 88, 90. injunction regulate or restrain the use of the prem- 4? Doe, d. Sheppard, v. Allen, 3 Taunt. 78; S. C., ises demised. In the absence of a special provi- | 12 Rev. Rep. 597; Griffin v. Tompkins, 42 L. T. 359. sion or recital of use in the lease, there is no implied 43 Parker v. Copeland, 4 Mich. 528, 660; Field v. covenant to use the premises demised for a particular Mills, 33 M. J. L. 254; Collins v. Hasbrouck, 56 purpose ;39 but where there is a covenant to use the N. Y. 157; S. C., 15 Am. Rep. 407; Lynde v. premises in a particular way, or for a particular Hough, 27 Barb. 415; Jackson, ex d. Weldon, v. purpose, this covenant will be specifically enforced.40 | Harrison, 17 Johns. 66; Jackson, ex d. Stevens, v. 34 Doe v. Shewin, 3 Campb. 135.

Silvernail, 15 id. 278; Hargrave v. King, 5 Ired. 35 See Sherwood v. Harral, 39 Conn. 333; Keteltas Eq. 430. In Greenway v. Adams (12 Ves. 395), it

was held that a covenant not to sublet was violated v. Coleman, 2 E. D. Smith, 408. 36 Thomas v. Kapff, 6 Gill. & J. 372; Masury v.

by an assignment, and this opinion was spoken of Southworth, 9 Ohio St. 340.

approvingly by the Supreme Court of New Jersey in See Brouwer v. Jones, 23 Barb, 153.

a dictum in the case of Den, ex d. Bockouver, v. 38 Gillian v. Norton, 33 How. Pr. 373; Ambler v. Post (25 N. J. L. 285, 291), but was disapproved in Skinner, 7 Robt. 561, 563; Howard v. Ellis, 4 Sandf. the subsequent case of Field v. Mills (33 id. 254). 369. See Steward v. Winters, 4 Sandf. Ch. 587. The general rule is that a right to sublet exists in 39 Brugman v. Noyes, 6 Wis. 1.

the lessee in the absence of a stipulation to the 40 Steward v. Winters, 4 Sandf, Ch. 587.

contrary, and such sub-lessee may use the premises

37

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