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1806.

Wilsox

VOTSUS, WILLYS.

for the purpose for which it has been immemorially
used.”
' Lawes, contrà. “The immemorialusage is admitted,
in support of these customs, by the demurrer; and the
only question is, whether any one of them is consistent
with the law, and sufficiently reasonable and certain.
It is indeed said, that they are inconsistent with a
right of common of pasture: But there are various
sorts of common such as laid down in Co. Lit. 122,
(a), ' as cominon of estovers, of turbary, of pischary, of
digging for coals, minerals, and the like,' which latter
go to the taking of the soil : and in Duberley v. Page
and others,* there was a custom stated, in the manor of
Harrow, which is nearly adjacent to this, of digging for
sand, which is also a taking of the soil. And, although
this may be somewhat prejudicial to the ordinary right of
common of pasture, yet it may not be wholly destructive
of it, and it is not bad, unless it is wholly inconsis.
tent with the right of common of pasture.”

Le BLANC, J. “ There may be a right of digging for sand ; but bow was it stated there ?”

LAWRENCE, J. "That right could only be exer cised partially."

Lord ELLENBOROUGH; C. J. “ In Batesone v. Green,t a right to dig pipe-clay, which might extend to the injury of the tenant's right of common, was held bad."

Lawes, was not able to state precisely the form of laying the custom in the case of Duberley v. Page ; but he said that in Hopkins v. Robinson, fit was held, that a custom for a copyholder of a manor to hate the sole pasture, was good as against the lord, for that it did not operate in exclusion of all the lord's rights. In Shakespeare v.

* 2 Term. Rep. 391. + 5 Term. Rep. 411. 1 2 Lev. 2.

1806.

WILSON

versus WILLIS,

Peppin* a right of common was stated to exist, as well as a right for digging for sand, in the same person. As to the unreasonableness of the custom, however it might operate against other tenants, the lord cannot well complain of the tenant, who takes the turves for the improvement of bis lord's lands, . especially when there is a fine upon every death and alieuation, which will be increased by such improvement."

LAWRENCE, J. “ That argument does but ill apply, because the fine may be certain. The right to dig gravel is stated for repairs generally; which is quite as uncertain as the word ' improvements. You can only contend, that, from the mode of stating the custom, it must be considered to be solely for ancient gardens."

LAwes. “ The custom in the third plea is good, for that can only operate for the improvement of the land.”

LAWRENCE, J. “But you claim a right to make these mounds and fences, as occasion may require. Do you find any pleadings, which state necessary repair in so loose a manner ? Suppose you have occasion to erect atarget against the bank, for shooting with arrows, would not that fall within the custom ?"

Lord ELLENBOROUGH, C. J. « All the customs are too general. They are stated for improvement;' but what sort of improvement is meant ? It is not agricultural merely. One man may choose to cover the whole garden with grass, and every part of the ancient tenements may be covered with grass at the expence and to the injury of the commoners. Then the two rights must necessarily interfere. There ought to be some limitation. As occasion shall require.' It is not

* 6 Term Rep.741, 748.

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stated what occasion; and, therefore, it resolves itself into the occasion of the party who claims it. Neither is it claimed for the repairing of ancient banks and mounds, but it may be for any transient and temporary subdivision of the land, at the will of the tenant. All these customs are, therefore, too indefinite and uncertain to be sustained.”

JUDGMENT for the PLAINTIFF.

Rhodes aguinst BULLAND.-Jan. 28.
Covenant by Jessor, to give the lessee of a messuage free in-

Covenant

Exceptior. gress and egress through a certain passage, with a yard, with the free use of the pump in the said yard, jointly with the lessor, whilst the same shoulıl remain there, paying half the expence of keeping it in repair. Held, this is not an absolute demise of the use of the pump ; but the lessor might remove it at pleasure, and an action is not maintainable, though it is alledged that the lessor moved it

wilfully and without cause. THE plaintiff declared in covenant upon an indenture Ruodes

of lease, dated the 1st of January, 1806, between the defendant of the one part, and the plaintiff' and one. Richard Hawkins of the other part, whereby the de. fendant deinised to the plaintiff and the said Richard Hawkins, their executors, administrators, and assigns, all that part of a messuage, No. 13, in Clerkenwell Close, which then had been lately parted off by the said defendant from the part occupied by himself, consislivg of, &c. together with all ways, paths, passages, waters, water-courses, lights, easements, profits, privileges, and appurtenances to the said messuages or tenements, and premises belonging, &c. for a certain term thereby demised, subject to a certain

ve sus BI'LLAND RHODES

1806.

versus BULLAND.

condition for determining the said term ; and the said defendant covenanted with the said plaintiff and the said Richard Hawkins, that he the said defendant, his executors and assigns, would, during the said term, pay the land tax and ał other taxes imposed on the said demised premises : and also should and would permit, and suffer the said Richard Hawkins and the plaintiff', their executors, administrators, and assigns, at all times during the continuance of the said term, to have free ingress, egress, and regress with horses, carts, and carriages, goods and merchandizes, through the gate at the bottom of the yard, belonging to the said messuage or tenement and premises, to the warehouse aforesaid ; and also free ingress, egress, and regress, for themselves, friends, and servants, by and through the passage leading from Clerkenwell Close aforesaid, through the said messuage or tenement, into the said yard, and the use of the pump in the said yard jointly with the said defendant, his executors, administrators, and assigns, wbilst the same should remain there, paying half the expences of keeping it in repair. That the lessees entered and were possessed, and that Richard Hawkins assigned all his interest therein to the plaintif', and the plaintiff assigned by way of breach of the said covenant, that the defendant did not permit aud suffer the plaintiff to have the use of the said pump in the yard jointly with the defendant and his assigns, whilst the same remained there; and further, that after the making of the said indenture, to wit, on, &c. at, &c. the said defendant unnecessarily and without any reasonable cause, and in order to aggrieve and injure the plaintifs, took up, took away, and removed the said pump, contrary to the form and effect of the said indenture, and his covenant in that behalf made as aforesaid, although the same would otherwise have remained and continued there, for the purposes in the said indeature

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mentioned, and although the said plaiatiff was then and there always, and is ready and willing to pay half the expences of keeping the same in repair, according to the said indenture, whereby and not from any want of repair or decay of the said pump, or any necessity, but notwithstanding that the same might and otherwise would have remained there, the said plaintiff wholly lost the use of the same, and ali profit, benefit, and advantage thereof, &c.

The defendant took issue upon the first breach, and demurred generally to the second, and the plaintis joined in the deinurrer.

ABBOTT, in support of the demurrer. “ This is not a covenant, that the pump should remain there, and consequently there can be no action of covenant. As to the allegations of wilfulness and malice, which are contained in the declaration, they are not material; for in covenant, the manner of doing the act may enhance the damages, but cannot give the right of action. Nor is this like the cases which may be cited as to the destruction of the thing, which there is a covenant that the person shall enjoy. In those cases the covenani is absolute, that the party shall enjoy the use of the thing, and this destruction of it, which prevents that enjoyment, is clearly a breach. Here are inserted the words 'whilst the said pump shall remain,' and the plaintiff is allowed only the joint use of the pump; this is, therefore, in clear limitation of the use of it. The words with half the expence of the repairs,' cannot alter the case ; and the whole question turns upon the construction of the words of the covenant; the plain meaning of which is, that the plaintiff shall have the use of the pump only so long as it continues."

WIGLEY, contrà. “It is not necessary that a co

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