whom Injunctions granted.

Persons for pasture would not be left; the plaintiff having beand against fore the bill, been nonsuited in an action of trespass, and entered into an agreement with some of the tenants, the injunction was dissolved on the answer (a). And in another case, where the plaintiffs claimed as devisees, and the defendant, the heir-atlaw, insisted by his answer that the will was not well executed; Lord Eldon refused a motion for an injunction (b). The same motion was also refused, in a prior case where the defendant was in possession, the tenants had attorned, and the plaintiff having brought an ejectment had failed in it, but as the bill alleged, not on the merits (c).

Tenant at will and tenant by sufferance.

Copyholder.

It may now, therefore, be considered as established, that in every case in which the plaintiff's title is not controverted, a court of equity will interpose to restrain irreparable mischief. To the cases already cited might be added those of a Tenant at will, or a Tenant by sufferance, whose tenancy is ipso facto determined by the commission of waste, and who are from thenceforth considered as trespassers, and yet who would probably, be considered as coming within the reach of the principle of the modern decisions.

The right of the lord to restrain a Copyholder from committing waste, seems also to admit of as

(a) Hanson v. Gardiner, 7 Ves. 305.

(6) Smith v. Collyer, 8 Ves. 89. The same thing appears to have been done in the case of Lee v. Lee, 54 Harg. MSS. 158. Vide, however, Sir W. Grant's observations in Jones v. Jones, 3 Meriv. 173. there being apparently no reason why the court should not interpose on the ground of preserving property pendente lite. (c) Pillsworth v. Hopton, 6 Ves. 51.

little doubt. In the case of Dench v. Bampton (a), Persons for and against however, where a bill was filed by the lord against a whom Incopyholder for an account of timber cut, and an in- junctions granted. junction, Lord Rosslyn stated his opinion, that the copyholder was not to be restrained from cutting timber, if he chose to do so, at the risk of forfeiture. That it was not like the case of tenant for life and remainder man, who claim under the same title; that the reversioner enters for the forfeiture of the estate for life; that the lord has no right of entry; he must have the forfeiture presented by the homage: that there could be no action of waste between the lord and tenant: the lord could get no more than the forfeiture: and the bill was dismissed with costs.

The point, however, afterwards came before Lord Eldon, upon a demurrer to a bill by a lord for an account of turves cut and taken, and for an injunction not waiving the forfeiture, and Dench v. Bampton was much relied upon in support of the demurrer. His Lordship, however, observed that in many cases the forfeiture was a very inadequate remedy: as in the instance of a barren spot upon which valuable timber was growing; if the copyholder only forfeited his copyhold by cutting down these trees, he might be a considerable gainer by his wrongful conduct. His Lordship accordingly overruled the demurrer, and upon affidavit of the principal facts alleged by the bill, an injunction was afterwards granted (b).

(a) 4 Ves. 700.

(b) Richards v. Noble, 3 Meriv. 673.

Persons for

whom In

junctions

granted.

Injunctions to restrain

breaches of

It has already been noticed, that a court of equity

and against will frequently grant injunctions in the nature of a specific performance, to restrain the violation by a tenant, of covenants contained in his lease. The cases upon this subject, are so closely connected with the head of waste, that they may not improperly be inserted in this place. Although many of them have been granted solely on the equity of restraining a breach of covenant, it is impossible not to observe, that in the greater injunctions might have been supported, on the ground of waste.

covenant.

Thus injunctions have frequently been granted to restrain lessees, who had covenanted to keep the banks of rivers or ponds in repair, from destroying or impairing them (a); or an outgoing tenant from removing dung or crops, contrary to express covenants contained in his lease (b); or where the violation of the covenant was not provided for by liquidated damages, to restrain the ploughing up of meadow, &c. (c).

In one of the earliest cases upon this subject an injunction was granted till the hearing, upon an appeal to the House of Lords, to restrain a lessee from digging sand, gravel, &c. in violation of a

(a) Lord Bathurst v. Burden, 2 Bro. C. C. 64. Lord Kilmorey v. Thackeray, cit. ib.

(b) Johnson v. Goldswaine, 3 Anst. 749. Geast v. Lord Belfast, ib. n. Pulteney v. Warren, 5 Ves. 147. 260. and errata, ib. Lord Grey de Wilton v. Saxon, 6 Ves. 106. The case of Lathropp v. Marsh, 5 Ves. 259. is clearly wrong, as there were not only breaches of covenant, but also distinct acts of waste committed and threatened.

(c) Aylet v. Dodd, 2 Atk. 329. Woodward v. Gyles, 2 Vern. 119. Rolfe . Peterson, 2 Bro. P. C. Ed. Toml. 436.

covenant secured by a penalty (a). And in a case Persons for and against shortly afterwards before Lord Hardwicke, an in- whom Injunction was granted, expressly on the ground of junctions granted. restraining a breach of covenant, against a tenant, who was converting houses to a different use, from that prescribed by his lease (b).

vation in a

formable to

country.

Though a lessee is required by law to cultivate As to cultithe lands demised to him in a husbandlike manner, husbandlike conformable to the custom of the country (c), yet manner, conthis is usually defined by some express covenant. the custom It has upon this subject been determined at law, of the that a covenant to occupy in a good and husbandlike manner, according to the custom of the country, will be broken by contravening the prevalent course of husbandry in the neighbourhood, and that even if the contract be simply to occupy the estate in a good and husbandlike manner, this will throw a liability upon the tenant to cultivate the land according to the practice of the neighbourhood (d); and even, though a farm be held under a written agreement, the custom of the neighbourhood may well be insisted upon, provided it be not either expressly or by implication excluded by the terms of the agreement (e).

In equity an injunction has been granted to re

(a) City of London v. Pugh, 4 Bro. P. C. Ed. Toml. 395.

(b) Worden v. Ellers, 18th December, 1739. There is a very full account of Lord Hardwicke's judgment, 6 Serj. Hill, MSS. 2. and 12 ib. 76.

(c) Powley v. Walker, 5 T. R. 373.

(d) Leigh v. Hewitt, 4 East, 154.

(e) Wigglesworth v. Dallison, Dougl. 201. Senior v. Armitage, 1 Holt, N. P. C. 197. Webb v. Plummer, 2 B. & A. 746.

Persons for and against whom Injunctions granted.

Distinction

between express and implied

covenants.

Covenant to

leave premises in repair, does

not preclude an injunction.

strain a tenant from year to year (who, it was said, was equally bound as a tenant for a longer period to manage his farm in a husbandlike manner), from removing crops, manure, &c. except according to the custom of the country (a): in a previous case a tenant was restrained from ploughing up pasture land: the lease did not contain an express covenant not to convert pasture into arable, but the landlord was holden entitled to the injunction, on the ground of there being a covenant to manage pasture in a husbandlike manner (b). Upon the same principle the court has interfered to restrain a tenant from sowing mustard, saffron, woad, or other deleterious crops, as being contrary to the course of husbandry (c).

A distinction has been made as to enforcing by injunction the specific performance of express covenants and implied agreements; and the court has refused to interfere to restrain a tenant, who was holding over, from removing articles contrary to the custom of the country, as the court would not imply special covenants as to cultivation from the mere act of holding over (d).

A covenant to repair, and at the end of the term to surrender buildings in good condition, does not preclude an injunction against pulling them down and carrying away the materials just before the end of the term (e).