1838. ALEXANDER V. BONNIN. number of &c., and execute counterparts thereof, and pay the costs of preparing the same, and also of the reciting agreement and plan thereto annexed, &c., and (amongst other things) that he, the defendant, his executors, administrators, or assigns, should, within two years from the to erect an iron railing, date of the said agreement, erect a good iron railing, to be approved of by the said surveyor of the said John Alexander, in front of the Terrace; and, within to erect a brick wall, the space of three years, erect a good brick wall seven feet high along the west side of the said piece or parcel of ground; and should in the meantime erect and keep up a good and sufficient close fence along the west side of the piece or parcel of ground; and should, within five years, make sewers &c.; and should lay out the said piece or parcel of ground in forming the said terrace and streets according to a plan to be approved of by the surveyor of John Alexander; and also should, within eight to build a given years from the date of the reciting agreement, build as houses. many messuages or tenements as were specified in the plan thereto annexed; and should finish in each year of the said eight years not less than eight of such messuages or tenements, all of which should be built according to the specification to the reciting agreement annexed; and also should pave the foot-ways and make good the carriage ways of the said streets &c. And it was further agreed Apportionment by the parties to the now reciting agreement, that, in proportioning the ground-rents to be reserved by the said indentures of lease, no such ground-rent should exceed the sum of 101. or be less than 21. for each messuage or tenement thereby demised; but, in such proportionment, one eighth part at least of the said full rent of 4007. should be secured to the said John Alexander, his heirs or assigns, for each and every year ensuing the date of the now reciting agreement; and also that there should be at least two messuages or tenements unleased until the whole of such messuages or tenements should have been completed, and the stipulations in the reciting agreement, or in the plan of ground-rents. 1838. ALEXANDER v. BONNIN. Proviso for reentry. No lessee liable and specification thereto annexed, contained, should have been fulfilled; and that the said James Bonnin, his executors, administrators, and assigns, should not remove, or dispose of, or use for making bricks, any surface-mould or earth from the ground thereby demised: And it was provided, that, if any of the said yearly rents thereinbefore reserved should be unpaid by the space of twenty-one days next after any of the appointed days of payment, or if the said James Bonnin, his executors, administrators, or assigns, should not perform the covenants and agreements thereinbefore expressed, according to the true intent and meaning of the now reciting agreement, then, in any of the said cases, it should be lawful for the said John Alexander, upon any undemised part or parts of the said premises to re-enter, and the same to re-possess and enjoy as of his former estate. And it was further agreed that the lessee of of the said messuages or tenements should not be liable for more than the performance of his own respective covenants; nor should any covenant contained in the leases thereby to be granted, be construed to extend or apply to any thing further than the messuages or tenements, or messuage or tenement, in such leases respectively Abstract of title. demised. And it was lastly agreed that the said John Alexander, his heirs or assigns, should, when required so to do by the said James Bonnin, his executors or administrators, deliver unto the said James Bonnin, his executors or administrators, a full and perfect abstract of his the said John Alexander's title to the said piece or parcel of ground; but that the said John Alexander should not deliver any abstract or give any evidence of title to any purchaser from the said James Bonnin, his executors, administrators, or assigns, or to any lessee of any of the messuages or tenements thereby agreed to be built. except to the performance of his own covenants. Ground plan. any To the above-recited agreement the following ground plan was annexed, shewing the laying out of the ground and the proposed buildings thereon; and also a specification of the works to be done by the defendant : 1838. ALEXANDER v. BONNIN. Death of John Payment of rent. The defendant entered on the ground in the articles of agreement mentioned, and built the messuages shewn in the plan in the recited agreement; and the same were built, and the sewers, drains, and roads, and all other things made and done (unless the court should consider what appears afterwards in this case not to be so) in pursuance of the said agreement; and the messuages, as they were from time to time completed, were demised by the said John Alexander in his life-time, and afterwards by the plaintiff (by distinct leases) to the nominees of the defendant, and in some instances to the defendant himself. In each lease was reserved a separate rent; and the aggregate of those rents made up the total amount to be secured, according to the said agreement, viz. 400l. a year. Each lessee was liable for his own rent and covenants only. The whole of the messuages were thus leased in pursuance of the said recited agreement. All works done by the defendant under the articles of agreement upon the piece or parcel of ground comprised therein were completed previously to October, 1833. The brick wall along the west side of the piece or parcel of ground was partly erected in the manner prescribed by the aforesaid indenture, and in lieu of the residue a dwarf wall with an iron railing was erected at the end of the three streets, under the express sanction and approval of the plaintiff's surveyor, and with the knowledge, privity, and approbation of the plaintiff. In January, 1831, John Alexander died, and the plaintiff, as his only surviving son and heir at law, became possessed of his real estate, including the hereditaments comprised in the said recited agreement, and granted leases of the remaining messuages to the defendant, or his nominees, according to the said recited agreement. The defendant by himself, and the lessees of the houses agreed to be built, paid the rent stipulated for in the agreement. 1838. ALEXANDER ย. BONNIN. school erected. In the year 1832, in consequence of the bankruptcy of Harrison, the lease of the 29th December, 1821, was determined, and the remaining part of the nursery ground comprised therein came into the possession of the plaintiff. A proprietary school was erected and finished near the Proprietary locus in quo in the year 1836: it was wider than and forms the third side of North Street, being set back about forty feet beyond the dwarf wall and railing already mentioned (which was erected on the locus in quo, being part of the land mentioned in the articles of agreement) at the end of the street, the front looking up the street to the Fulham road. wall-the tres On the 25th May, 1835, the dwarf wall and railing on Erection of the the west end of North Street were removed for the pur- pass complained pose of making the approach to the intended building for of the proprietary school, which had then been just commenced. Afterwards, on the same day, the defendant with his workmen came and erected a close wooden fence across the street, on the site of the dwarf wall and railing which had been removed. About a fortnight afterwards the defendant caused the wooden fence to be taken down, and erected in its place a dwarf wall, with iron railings. On the completion of the building, the plaintiff, on the 10th March, 1836, had the dwarf wall and railing again removed; upon which the defendant caused a wooden fence to be put up where the dwarf wall and railing had been, viz. on part of the land mentioned in the articles of agreement and on the 20th March, 1836, the defendant removed the wooden fence, and erected in its place a solid brick wall. The above acts committed by the defendant were the trespasses complained of in the first and second counts of the declaration, upon which the present action was brought. The question for the opinion of the court was, whether Question. the plaintiff was entitled to recover; if so, the verdict was |