It

intervals of time, but when once acted upon is more likely to be
confined to the same spot until the subject matter is exhausted;
it cannot therefore be expected that it should be proved to have
been exercised in every place to which it may extend, for that
would be proving a right to a thing which had ceased to be of
any value.
If it had been before exercised on the lands in
dispute, there could have been no question: but the evidence of
the general indiscriminate exercise of it over the new land does
apply by shewing that every part of the new land lies within the
general ambit of the lord's right. The same objection might as
well be made in the case of an encroachment on a waste.
might not be proved that any acts of ownership had been exer-
eised by the lord upon the very spot, but shewing acts of owner-
ship upon other parts within the general ambit of the waste has
always been deemed sufficient. There is therefore nothing in
that objection. There is however evidence applicable to the
particular spot in the circumstance that took place upon the
sale from Mortimer to Hurst, which strongly marks that the
tenant at that time considered his interest not to go beyond the
surface. As to the reservation contained in the deed of 1655
under the term of tithe-money, if it could be considered as a
modus applicable to the particular tenement, it would be
undoubtedly strong evidence for the plaintiff: the term however
is ambiguous, and may perhaps be more properly applied to a
composition real portioned out, than to a particular modus.
Without therefore anticipating the result of another trial, I
think it is fit that this case should be again submitted to another
jury, who may appreciate the weight of it more justly and con-
siderately. The evidence quoad the enjoyment is all one way:
on the other hand, the presumption *in favour of the plaintiff's
title is strong until encountered by evidence, but it seems to me
that it has been encountered in the strongest manner. The
lord's right is evidenced by shewing that the same right was
exercised by him over other lands similarly circumstanced.

GROSE, J. agreed.

LE BLANC, J.:

The Court in determining that there should be a new trial in

BARNES

v.

MAWSON.

[ *86 ]

BARNES

v.

MAWSON.

[ *87]

this case do not mean to withdraw the decision of the question from the jury, but only to submit it to the consideration of another jury. There is no rule that the Court will not grant a new trial on a question of fact where there has been evidence. given on both sides, but only where the evidence on one side does not preponderate. But where the Court see such a preponderance against the verdict, they are in the habit of sending the case back to another jury.

BAYLEY, J.:

There is no contrariety of evidence in this case: the right to the surface was clearly in the plaintiff; and the evidence was extremely strong to shew that the coal within the new land belonged to the lord. Then as to whether the plaintiff's land was subject to this claim, I would only ask the former possessor of the same land what the lord's right in it was: and I find that in 1789 he sold this land, and was contented to take for it 1401., when the man who valued it for him thought it worth 3401. including the coal; which would have been foregoing nearly three-fifths of its actual value, provided he was entitled to the minerals. That is strong evidence therefore to shew that both the seller and purchaser considered that they were bargaining only for the surface. To give effect to the observation that the conveyance between them included mines, it would be material to shew, if it could be shewn, that 1407. was a compensation for the minerals, otherwise to be sure the import of the evidence is strong the other way.

Rule absolute on payment of costs.

Clayton, Serjt. and Holroyd prayed that it might be without costs, but the Court said that it was not reported by the learned Judge to be a verdict so clearly against evidence, as to induce them to depart from the general rule.

DOE, ON THE DEMISE OF BISH, v. KEELING. (1 M. & S. 95-100.)

Where a lessee of a house and garden for term of years covenanted with the lessor "not to use or exercise, or permit or suffer to be used or exercised, upon the demised premises, or any part thereof, any trade or business whatsoever, &c. without the licence of the lessor, &c." and afterwards, without the licence of the lessor, assigned the lease to a schoolmaster, who carried on his business in the house and premises: held, that the assignment was a breach of this covenant, and the lessor was entitled to re-enter under a proviso for re-entry for non-performance of covenants.†

THIS was an ejectment brought for a messuage and garden, on a proviso contained in a lease, for re-entry for the non-performance of covenants. Plea, not guilty.

At the trial before Lord Ellenborough, Ch. J. at the Surrey assizes, 1811, the jury, under the direction of his Lordship, found a verdict for the plaintiff, subject to the opinion of the Court on the following case.

By a lease dated the 8th of June, 1809, and made between Thomas Bish the younger (the lessor of the plaintiff) *of the one part, and Lady Georgina Anne Mac Neill, of the other part, Thomas Bish, demised to Georgina Anne Mac Neill, her executors, administrators and assigns, the messuage and premises in question for the term of 14 years from the 25th of March then last past at the yearly rent of 50l. The house is situated on Richmond Green, and the lease contained, amongst others, the following covenant: "And the said Georgina Anne Mac Neill, for herself, her executors, administrators, and assigns, doth further covenant, promise, and agree, to and with the said Thomas Bish, his executors, administrators, and assigns, that she the said Georgina Anne Mac Neill, her executors, administrators, and assigns, shall not nor will during the said term hereby granted erect or build any new edifice or building, edifices or buildings, on the piece or parcel of ground and premises hereby demised, or any part thereof, and shall not nor will at

Secus, where there was merely a covenant against permitting a "nuisance." Harrison v. Good (1871) L. R. 11 Eq. 338, 351, 40 L. J. Ch. 294, 24 L. T. 263. The principle of

any time or times during the

the above case is applied to the use
of the house as a home for working
girls, in Rolls v. Miller (C. A. 1884)
27 Ch. D. 71, 75, 53 L. J. Ch. 682,
50 L. T. 597.-R. C.

1813

Jan. 29.

. [95]

[ *96 J

DOE,

Lessee of

BISH,

V.

KEELING.

[97]

[99]

term convert the same premises, or any part thereof, or permit or suffer the same to be converted into or used as and for a shop or shops, or to have any mark or shew of trade or business thereon, or on any part thereof, nor use or exercise, or permit or suffer to be used or exercised in or upon the same premises, or any part thereof, any trade or business whatsoever, or permit or suffer any sale or sales by public auction in or upon the said demised premises, or any part thereof, without the licence or consent of the said Thomas Bish, his executors, administrators, or assigns, for these purposes respectively first had and obtained." On or about the 24th of June, 1809, Lady Mac Neill assigned her interest in the premises to the defendant, *who in pursuance of such assignment entered upon and took possession of them.

The defendant is a schoolmaster, and immediately upon taking possession of the premises opened a school in the house, and published and distributed hand-bills containing the particulars of the school, the nature of the instruction furnished, and the terms upon which pupils were boarded and educated by the defendant. No licence or consent was granted by Thomas Bish to Lady Mac Neill to permit or suffer the defendant, nor to the defendant, to open the school in the house. There are from 50 to 60 boys in the school, but no board or sign whatever is affixed to the house or premises, nor is there any mark or show of trade or business on the premises, or any part thereof.

The question for the opinion of the Court is, Whether the keeping and carrying on the said school by the defendant upon the premises is a breach of the covenant or not. If the Court shall be of opinion that the keeping and carrying on the said school is a breach of the covenant, the verdict is to stand. And if the Court shall be of opinion that it is not a breach of the covenant, a nonsuit is to be entered.

[After argument: ]

LORD ELLENBOROUGH, Ch. J.:

I own I have no doubt that this is a business within the meaning of the covenant, and one which is likely to create as much annoyance as can be predicated of almost any business.

It surely cannot be contended, that the noise and tumult which sixty boys create, are not a considerable annoyance, as well to the neighbourhood as to the house, from which any landlord may fairly be supposed to be desirous of redeeming his premises; and the exhibition too of the boys may be said somewhat to resemble a shew of business, within the terms of the covenant. The intention of the covenant was, that the house should not be converted to any purposes which might be likely to annoy the neighbourhood, and by that means to depreciate its value at any future period, when another tenant might be required. But a business of this kind would necessarily produce inconvenience to the neighbourhood, both by the disturbance which the inmates of the house would create, and by drawing to the spot a large resort of persons, *such as the parents and friends of the children; and it is therefore that species of business which would have most prominently offered itself as fit to be excluded. It is certain that the words of the covenant in some places relate to that species of trade which is carried on by means of sale and an open exhibition of trade; but can we say that the word "business" does not comprise such an occupation as the present? It seems to me that we cannot; and as to the intention, if the party had it in his contemplation either to secure his own privacy or that of the neighbourhood, there can be no doubt that this is a species of business that he would have particularly excluded. He has not done so by express words; but still the words are sufficient, and the intention is clear.

GROSE, J.:

I think this was a wise provision on the part of the landlord; there is not any business more likely to injure a house than that of a schoolmaster; and it was proper, by way of securing the neighbourhood from annoyance.

LE BLANC, J.:

I do not think that the meaning of the parties can be fairly confined to trade, because they have used in addition the word "business;" which must be intended of something not falling within the description of trade. The question then is, whether

DOE, Lessee of BISH,

v.

KEELING.

[ *100 ]