might be detrimental to the sale or publication of that work, was restrained from publishing a rival work on the same subject (k). So also an agreement between a publisher and an author that the latter should write a tale for the former and should not during the continuance of the agreement write for any other publication, was enforced by injunction, so far as regards the negative part of the stipulation (1). Chap. X. Sect. 1. restrain breach covenants. So also tenants were restrained from having more than two Injunction to grain crops in any five years of the term (m), from breaking of negative up pasture land (n), and from removing straw or green crops from a farm (0), contrary to covenants in their lease (p). So also a man who had covenanted not to perform or write for any other than a particular theatre, was restrained according to the terms of the covenant (q). So also a public body (44) was restrained from erecting buildings on a plot of land, opposite a club-house, contrary to agreement (»). So also the lessee of a mine who had covenanted not to remove machinery from a mine was restrained according to the terms of the covenant (s). So also where the lessee of trade premises has entered into a covenant to deliver up at the end of the term all the fixtures which were or should be at any time during the term affixed to the freehold, he will be restrained from removing trade fixtures (t). So also a railway company which had bought land from a man, and had covenanted with him in the purchase deed not to erect any building upon it to a greater height than eighteen feet within the distance of Chap. X. Injunction to restrain breach of negative Covenants. eighty feet from certain other property of his, was restrained (x) Holmes v. Eastern Counties Railway Co., 3 K. & J. 675. (y) Taylor v. Mostyn, 23 C. D. 584. (z) Att.-Gen. v. Briggs, 1 Jur. N. S. 1084; Haigh v. Waterman, W. N. (1867) 150; De Nichols v. Abel, W. N. (1869) 14; but see Everett v. Remington, (1892) 3 Ch. 148. (a) Rogers v. Hosegood, (1900) 2 Ch. 388 (C. A.); but see Kimber v. Admans, (1900) 1 Ch. 412. (b) Rogers v. Hosegood, (1900) 2 Ch. 388 (C. A.). (c) Hobson v. Tulloch, (1898) 1 Ch. 424. (d) Kemp v. Sober, 1 Sim. N. S. 520, on appeal, 19 L. T. O. S. 308; Johnstone v. Hall, 2 K. & J. 423; Wickenden v. Webster, 6 E. & B. 387; German v. Chapman, 7 C. D. 271. A covenant by a purchaser of building land not to do or suffer anything to be done on the premises which should be a Inuisance" to purchasers of other lots, is not broken by establishing a school: Harrison v. Good, 11 Eq. 338; but see Wauton v. Coppard, (1899) 1 Ch. 92, where the covenant was not to 66 carry on any business" whereby any injurious or offensive or disagreeable noise or nuisance" should be occasioned. (e) Hodson v. Coppard, 29 Beav. 4. (f) Clements v. Welles, 1 Eq. 200. (y) Parker v. Whyte, 1 H. & M. converting the premises into an hospital and receiving patients who made small payments according to their 167. See Moses v. Taylor, 11 W. R. $1. Comp. Reeves v. Cattell, 24 W. R. 485. A covenant not to use a house as a shop may be broken by user of it for the sale of goods without any structural or architectural alteration of the house: Wilkinson v. Rogers, 2 D. J. & S. 62. A covenant not to carry on the trade of a butcher is broken by selling raw meat, though it was not exposed in the shop windows, but was visible to passers by if they looked in: Doe v. Spry, 1 B. & Ald. 617. A covenant not to use a building as a "public-house for sale of beer, wine, malt liquor, or spirits," is not broken by taking out an ordinary excise licence, for the sale of beer not to be drunk on the premises: Pease v. Coats, 2 Eq. 688; London and North Western Railway Co. v. Garnett, 9 Eq. 26. See Marks v. Benjamin, 5 M. & W. 565. Nor is a covenant not to use a house as a public-house, tavern or beerhouse broken by opening a grocer's shop there at which beer is sold to be drunk off the premises as ancillary to the grocer's business: Holt & Co. v. Collyer, 16C. D. 718. But a covenant not to use a house as a beershop is broken by taking out a licence to sell beer not to be drunk on the premises and selling it there accordingly: Bishop of St. Albans v. Battersby, 3 Q. B. D. 359; London and Suburban Land, &c., Co. v. Field, 16 C. D. 645. See as to distinction between beershop and beerhouse, ib.: Nicholl v. Fenning, 19 C. D. p. 267. See as to covenant by tenant of a public-house with his landlord (a brewer) to purchase from him all the beer to be consumed on the premises: Edwick v. Hawkes, 18 C. D. 199; Clegg v. Hands, 44 C. D. 503 (C. A.); Manchester Brewery Co. v. Coombs, (1901) 2 Ch. 608. The burden of a covenant by a lessee not to buy or sell on the demised premises any wines other than wines purchased from the lessor, his successors or assigns, runs with the land, although assigns are not named: White v. Southend Hotel Co., (1897) 1 Ch. 767 (C. A.). A covenant not to use a shop "for the sale of spirituous liquors" is broken by the sale of spirituous liquors in bottle, but is not broken by the sale of wines in bottle: Fielden v. Slater, 7 Eq. 523; but see Stuart v. Diplock, 43 C. D. 343; nor by the sale of wine and spirits in bottle by a grocer in the course of his business: Jones v. Bone, 9 Eq. 674; but see Buckle v. Fredericks, 44 C. D. 244. See as to the trade of a vintner, Wells v. Attenborough, 19 W. R. 466. A covenant not to carry on the business of a horsehair manufacturer is not broken by merely dealing in horsehair: Harms v. Parsons, 32 Beav. 328. A covenant not to carry on the business of a wholesale or retail confectioner is not broken by the sale by a grocer and tea dealer of a particular kind of sweetmeat in which a confectioner may happen to deal: Lumley v. Metropolitan Railway Co., 34 L. T. 774. The trade of a coachmaker does not fall within the provisions of a covenant against carrying on an offensive trade: Bonnett v. Sadler, 14 Ves. 525. See Moses v. Taylor, 11 W. R. 81, as to whether the setting up a mock auction is an offensive trade Chap. X. Chap. X. Injunction against breach of negative covenants. means (h), and from setting up a charitable institution called Home for Working Girls where the inmates were received upon payment of a small sum for board and lodging from which no profit was derived (i). So also where a lessee entered into a covenant not to affix or permit any outward mark or show of business to be affixed on the demised premises, he was restrained from doing acts in breach of the covenant (). So also where a man had covenanted not to carry on a retail business as a chemist, druggist and soda water manufacturer, he was restrained from selling single bottles (). So also a lessee who had covenanted not to suffer anything to be done on the premises to the annoyance of the lessor or the adjoining occupiers, was restrained from using the premises as a place of public entertainment (m). So also a man who had covenanted in a separation deed not to molest his wife, was restrained according to the terms of his covenant (n). So also an injunction was granted to restrain a wife in accordance with the covenants in a separation deed from molesting her husband and taking any action or other proceeding for the purpose of compelling him to cohabit with her (o). So also an injunction was granted to within the meaning of the covenant. Patching v. Dubbins, Kay, 1; Child v. Douglas, ib. 560; Bowes v. Law, 9 Eq. 636; Russell v. Baber, 18 W. R. 1021. A covenant may be broken by permitting acts of a third party in contravention of it: Borgins v. Edwards, 2 F. & F. 111, 113. (h) Bramwell v. Lacy, 10 C. D. 691. (i) Rolls v. Miller, 27 C. D. 71. (k) Evans v. Davies, 10 C. D. 747. (1) Treacher v. Treacher, W. N. (1874) 4. (m) Collins v. Slade, W. N. (1874) 205. (n) Sanders v. Rodway, 16 Beav. 211. See Hunt v. Hunt, 4 D. F. & J. 221; Cahill v. Cahill, 8 App. Ca. 421. (0) Besant v. Wood, 12 C. D. 603. restrain the publication of the recovery of a judgment debt against a man contrary to agreement, where the threat to sell the judgment debt by auction was not bonâ fide but for the purpose of getting better terms (p). So also the Court will enforce by injunction a covenant in a lease not to assign without the lessor's consent. Such a covenant runs with the land, and is broken even where an assignee of the lease assigns to the original lessee, and an injunction will lie to restrain such assignment (q). But a mere licence to use the premises is not a breach of such a covenant (r). Where a lessee has covenanted not to assign or underlet without the lessor's consent, such consent not to be unreasonably withheld, the lessee cannot maintain an action for an injunction to restrain the lessor from unreasonably withholding his consent, but can assign or underlet in spite of such refusal (s). But the lessee cannot justify the omission to apply for the lessor's consent (t). Chap. X. Sect. 1. be too vague to be enforced by injunction. If the covenant is vague or uncertain in its terms, or of such A covenant may a nature that the Court cannot, consistently with its rules and principles, enforce it, an injunction will not be granted (u). Thus the Court would not enforce by injunction a covenant not to build, except so as to be an ornament rather than otherwise to the adjoining property (x). in restraint of trade. A class of negative covenants which the Court will enforce Covenants by injunction are covenants in partial restraint of trade, where the limitation is reasonable. Covenants in total restraint of See Marshall v. Marshall, 5 P. D. 19; Clark v. Clark, 10 P. D. 188. As to what amounts to molestation, see Fearon v. Aylesford, 14 Q. B. D. 792 (C. A.); Hunt v. Hunt, (1897) 2 Q. B. 547 (C. A.). (p) Jamieson v. Teague, 3 Jur. N. S. 1206. (1) McEacharn v. Colton, (1902) A. C. 104. (r) Daly v. Edwards, 83 L. T. 548 (C. A.); 18 T. L. R. 169. (8) Sear v. House Property, &c., Society, 16 C. D. 387; Treloar v. Bigge, L. R. 9 Ex. 151; and see Bates v. Donaldson, (1896) 2 Q. B. (t) Barrow v. Isaacs, (1891) 1 Q. (u) Ante, p. 360. (x) Mann v. Stephens, 15 Sim. 379. |