brown case the city of London appellant even pugh and other respondent that  march Mews dig seven see brook v Cavanagh l r ir a lessee covenant not to dig  up a particular part of the demise premise for raise sand gravel etcetera  under the penalty of pound per acre he break this covenant and thereupon the  lessor file a bill for a injunction on affidavit of the waste commit the  injunction be grant till answer and further order after the answer put in a  motion be make to dissolve the injunction and upon show cause the defendant  consent to appear and plead to a action of debt or trover and to take short  notice of trial and thereupon the injunction be dissolve but on a appeal this  order be discharge and a injunction grant to continue till the hear of the  cause order of Lord chancellor king discharge the appellant be seize in fee of  several estate for the benefit and support of the poor sick person in saint  Thomas hospital and particular of a house at hackney call the bowlinggreen  house with the building garden yard and appurtenance and also of a bare and  green use for bowl adjoin to and usual let with the say house they by  indenture under their common seal date the that of June demise the premise to  the respondent for a term of twentyone year from Michaelmas at a rend of pound  per and the bowl bare contain one acre two rood twentynine perch the green one  acre two rood thirtytwo perch the garden two rood five perch and a piece of  ground adjoin to the green one acre one good in all five acre twentysix perch  in order to preserve the bare and green for bowl both to keep up the value of  the premise and to accommodate many gentleman of that neighbourhood who be  either tenant or governor of saint Thomas hospital a express covenant be  insert in the lease that the lessee shall during the term keep and maintain  the say bowl green and bare respective in good order and condition and fit for  bowl and from time to time as occasion shall require amend supply and renew  the turf of the green and maintain the building in or near the bare or green  for the entertainment of company and shall leave the say bare green and  building in good order condition and repair at the end of the term or other  soon determination of the lease which shall first happen and the respondent  further covenant that in case any part of the demise premise shall at any time  during the term be blow dig or break up or convert into tillage other than and  except such part as be use for garden which may be dig or break up as usual  for that purpose only or if any part of the premise shall be dig or break up  for the raise or talk away of brickearth sand or gravel then the lessee shall  in every or in any such case pay to the lessors brown pound for every acre  which shall be so blow dig break up or convert into tillage or which shall be  so blow dig or break up for the raise or take away of brickearth sand or  gravel and so in proportion for any great or less quantity than a acre the  respondent enter and enjoy the premise and find a great demand for gravel for  mend the road and highway about hackney they in the second year of their lease  think fit to convert the bare into a gravelpit and by a considerable number of  workman soon get a pit thirteen foot deep and spread to thirtyfour square rod  of the bare out of which they in a very little time raise load of gravel and  sell part of it at S per load the appellant thereupon in Hilary term exhibit  their bill in chancery set forth the lease and covenant and pray that the  respondent may be restrain from break up or dig the bare or any other part of  the demise premise and from commit any waste or spoil thereon and from remove  and dispose of the gravel then dig and lie on the premise and brown er p upon  affidavit of the waste the appellant obtain a injunction accord until answer  and further order the injunction be serve the respondent put in their answer  and thereby admit the lease and covenant to be as in the bill set forth and  also admit that the bare have be dig between October and February to such  depth and for such space and that such quantity of gravel have be raise as  above mention and that such gravel as have be sell be sell for S per load but  insist that they ought not to be restrain from dig the bare as they shall be  advice and from sell the gravel and sand arise from it they be Willing to pay  pound per acre for what they shall so dig pursuant to the covenant in the  lease upon come in of this answer the respondent obtain the common order to  dissolve the injunction unless cause shall be show to the contrary and on the  that of march the appellant do show cause before the Lord chancellor king when  his lordship be please to disallow such cause and order that the injunction  shall be dissolve the respondent consent if the appellant shall bring a action  of debt or trover to appear and plead and try the same the then next term but  from this order the appellant appeal insist c Talbot W Hamilton that the break  up of ground by tenant for year by dig pit to raise any earth or mineral  whatsoever be a actual commit of waste unless a liberty be grant by the owner  of the inheritance for that purpose and that the respondent be tenant for year  not only without any such liberty but express restrain by their own positive  covenant to keep and maintain the bowl green and bare in good order and  condition and fit for bowl as to the objection that the appellant have give a  licence amount to a agreement to permit the respondent to brown commit this  waste by annex a penalty which they have agree to accept in consideration of  the damage sustain it be answer that there be not in the respondent answer the  least pretence or suggestion that any such agreement be intend or in the  contemplation of any of the party at the time of make the lease on the  contrary it manifest appear to be the intention of the appellant to guard  their estate from all waste and damage whatsoever beside such a agreement will  on their part have be high ridiculous for it will have be sell the estate  itself to the respondent at their own price and leave it entire at their  option to keep a good bargain or leave a bad one and it now plain appear by  the respondent answer what the consequence will have be since in about four  month time and from about a six part of the bare they have raise load of  gravel and which at S per load amount to pound so that in a year or two about  load may be get from the bare only which will produce pound and if the green  and adjacent ground shall also yield gravel in like manner there may in a few  year be raise from thence to the amount of pound or pound more and the  respondent for every pound penalty will have about pound and at the end of the  term leave the appellant the bottom of the gravelpit for their estate which  sure can not be imagine to have be any part of the agreement for the lease and  therefore it be hope that the order will be reverse and the injunction  continue till the hear of the cause on the other side it be argue p York I  brown that the pound per acre require to be pay for every acre of the premise  which shall be dig or break up be not intend as a penalty but as a  satisfaction and recompense for such part of the premise as shall be dig or  break up during the term and therefore such dig or break up ought not to be  consider as commit of waste if however the appellant conceive themselves  aggrieve by the respondent in this respect they may have their remedy at law  against they by action of trover or otherwise and therefore there be no reason  for a court of equity to interpose by grant any injunction to restrain the  respondent from dig but after hear counsel on this appeal it be order and  adjudge that the order therein complain of shall be discharge and that the  court of chancery shall grant a injunction till the hear of the cause jour vol  p brown er p