Page:The English Reports v1 1900.pdf/1065

as should be wanted to repair the rest of the fences, to he set out by the appellant, his heirs and assigns, as therein after mentioned; and in default of such setting out, then where the same could be well spared, and to be of least damage to the premises; and also except the top-wood of pollards, underwoods, and thorns, where the ditching, cutting, and scowering therein after mentioned should be done; which, after making a good hedge there, and applying the overplus thorns towards repairing the rest of the fences, the respondents, their executors, administrators, and assigns, were to have and take to their own proper use, as therein after mentioned,) under the penalty of forfeiting and paying unto the appellant, his heirs or assigns, the sum of £5 for every load that should be so hewn, felled, cut down, stubbed up, lopped, or topped, taken or carried away as aforesaid, and so proportionably for any greater quantity than a load. And also that the respondents, their executors, administrators, and assigns, should and would from time to time, and at all times during the said term, de his and their best endeavours to preserve all the young trees, layers and quicks, of all kinds, then standing, growing, or being, or to stand, grow, or be, in, upon, or about the said demised premises or any part thereof and in case any person or persons should destroy, spoil, or damage the same, at any time or times during the said term, that then the respondents, their executors, administrators, and assigns, should and would forthwith from time to time give notice thereof to the appellant, his heirs or assigns, and by whom, to the best of their knowledge, the same was done, or how otherwise the same happened, that such person or persons committing the same might be prosecuted as the law directs. Also, that the respondents, their executors, administrators, or assigns, at their or one of their proper costs and charges, should and would from time to time, and at all times during the said term of 14 years, [438] keep and maintain, and at the end or other sooner determination thereof. leave and yield up to the appellant, his heirs and assigns, the gardens of or belonging to the premises, (except such part thereof as was thereby agreed to be converted into an orchard,) and also the court-yards, and the orchard, and the part of the garden which was to be converted into an orchard, in an handsome, good, and proper manner, as gardens, court-yards, and orchards respectively; and also keep and preserve all and every the fruit trees and other trees there growing and being, or to grow and be there during the said term, by pruning and managing the same and the fences thereof, in a careful and proper manner; the same being to be put into a like state by the appellant, his heirs or assigns, at the commencement of the terin. And further, that the respondents, their executors and administrators, should not nor would at any time or times during the said term, sow or cause to be sown any part of the arable lands with winter corn, without first summer-tilling, mucking and tathing the same in an husband-like manner, except in a dry season, when the lands could not be broke up at or about Midsummer time, in which case the same might be sown with winter corn upon the flagg.

The respondents soon after the execution of this lease entered upon the demised premises, and there being a piece of land part thereof, containing ten acres, and called the Whinns or Furze-cover, which had not been in tillage within 20 years before the date of the lease, (which was not only a cover for and preservation of the game, but also a cover or shelter for sheep in winter time and snowy weather, and being cut at proper seasons produced a considerable profit, such furzes or whinns being used in that country for firing or fencing,) the respondents in the beginning of the year 1762, stubbed up all the whinns and furzes growing therein, and sold and disposed of such whinns and furzes for a considerable sum of money, and afterwards converted the said piece of land into tillage, contrary to their covenant, and without the consent or privity of the appellant.

The respondents also committed breaches of the other covenants before mentioned; but before any of these breaches of covenant came to the knowledge of the appellant, a question arose between him and the respondents, respecting an allowance of five guineas a year to the respondents, which had been formerly paid for the right of fold-course belonging to the farm, and also with respect to other matters; which questions the appellant and the respondents, on the 22d of July 1765, referred to arbitration, and the same were decided in favour of the appellant, by the award of Henry Partridge and Charles Turner, Esqrs. on the 30th of November 1765.

In the month of April 1766, the appellant first had notice of the ploughing up