case city of London versus NS may SC Ves where a person on a building lease  covenant to newbuild the brick message on the premise the rebuilding some and  repair other be not sufficient to answer the covenant but the lessee must  rebuild the whole Lord Hardwicke state the case as follow the bill be bring by  the city of London against Nash to have a specific performance of a agreement  for a building lease of some old house near leadenhall market the point in the  cause be what be the true intent of the covenant in the lease and agreement  enter into between the city of London and George greaves a builder the  original lessee and whether the covenant be sufficient perform another point  have be make on the circumstance of fraud and misbehaviour in atkins er p  obtain of this lease the defendant be at that time committeeman for let the  city land it appear these be very old house and that the city have a intention  by their committee for let the city land to let these premise in the year a  order thereupon be make to survey the premise on the first of may and it be  report they be much out of repair and proper for a repair lease the utmost  term allow for repair be one and twenty year but the city be not bind down  upon building lease for any certain term the proposal for take a repair lease  be reject and come to nothing the consideration of these house be take up  again in Mr Nash who be then of the committee be appoint to inspect the d of  November a report be make to which Nash be a party in pursuance of a order in  may before that the inspector be of opinion the house ought to be rebuild as  atkins they be in a very bad and ruinous condition and to which report Mr Nash  sign in the first place on the that of November a advertisement be order to be  put in the public paper that the premise be to be let on a building lease of  year every one of these act import in the strong manner a building lease Mr  George greaves offer to give the city a pound fine upon a year lease and that  proposal be accept and he be declare the best bidder after this a draft of a  lease be prepare in which be these word the lessee to newbuild the premise or  any part thereof but it appear that the word or any part thereof be strike out  in the draft a leave out in the original the lease be to be approve of by two  of the committeemen and be so accord by Mr Heaton and defendant Nash afterward  this lease be execute on the that of February and those word or any part  thereof be leave out prove they have be under the consideration of the whole  committee and drop by their express direction Mr greaves come into possession  under this lease the first question be what be the true intent and meaning of  the covenant it be insist by the counsel for the city of London the meaning be  that all the message shall be entire newbuilt whereas but two have be newbuilt  and the rest repair and by the counsel for the defendant Nash that if he build  new message in the plural number which must be two at least and the rest be  put into repair that this be sufficient to answer the covenant I be of opinion  the true construction be all the message shall be rebuild Mr greaves covenant  that he will newbuild the brick message on the premise within the compass of  three year what can be the meaning of such a covenant why to rebuild the whole  for a indefinite proposition be equal to a universal proposition for have it  be leave to Mr Greavess direction to build two or three or four house it will  have be so very uncertain that it can never be the meaning atkins it be a  omission that there be not a plan annex to the lease describe what sort of  house greaves be to build if there can be any doubt upon the covenant it must  be consider on the nature of the contract what do that import a building lease  even by the term only which be for year suppose a action at law have he have  assign a breach that greaves all the premise and the defendant must have have  judgement for building two only be not a performance of the covenant the  distinction between a repair a building lease appear by the act do by the city  on the two report of repair that no person have appear to make proposal a  advertisement be thereupon order for proposal to build contract c all this  speak a intention of let a building lease in opposition to and in  contradistinction to a repair lease it have be prove by Mr dance the city  surveyor that on a repair lease the city of London never let but for year but  if on a building lease for or more and then all the premise shall be newbuilt  but what great strengthen the case be the insertion of the word or any part  thereof in the draft and their be strike out afterward which show the city of  atkins er p London see this will be a evasion and strike out these word to  prevent any misapprehension in the sense of the lease the defendant be now  contend for the very thing which the city disarm to and disapprove of before  the lease be execute a observation have be make on the part of the defendant  that there be no mention in the advertisement that all the premise be to be  newbuilt but to be sure the true construction be that all be to be newbuilt  the next question then will be whether that have be perform I be of opinion it  have not for all the defendant have do be to build two new house and to repair  the old and though it be indeed a very large repair for he have pull down the  before and back front and newbuilt they and that what be chief atkins leave be  party wall yet this be very different from newbuilding of house for  notwithstanding newfronting house they very often drop down afterward and  therefore be not equivalent to house entire newbuilt great deal of evidence  have be read to prove that this be a substantial repair and that the house  will be as good at the end of year to let on a repair lease as if new build  the witness vary and it be difficult to reconcile they unless take in the  sense in which it be swear and explain by one of the witness who swear he can  have build all these house for a hundred pound a house provide he be not tie  to a proper thickness of wall c and I believe he may but though Mr greaves be  not confine to particular dimension yet it must be understand that the whole  ought to be build in a proper workmanlike manner the next question will be  what kind of decree I ought to make it be insist at the beginning of the cause  for the plaintiff that they be entitle to a specific performance and that the  defendant must rebuild all the house which by necessary implication will  import that the defendant must pull down all the house which have be n only  repair and newbuild they it be object on the part of the defendant that the  plaintiff be not proper to come here for a specific performance but ought to  be leave to their action at law the objection will not hold for upon a  covenant to build the plaintiff be clear entitle to come into this court for a  specific performance send vide Lucas v Commerford bro Charles Rep otherwise on  a covenant to repair for to build be one entire single thing and if not do  prevent that security which the city of London have for the rend by virtue of  the lease but the most material objection for the defendant be that the court  be not oblige to decree a specific performance where it will be attend with  great loss and hardship to one of the party and though not specifical perform  yet the defendant have lie out pound at least in the repair and therefore to  be sure have put they in a very good condition at present now if the defendant  be mistake in the sense of this covenant or perhaps have even know evade it  still it will be bare to decree a specific performance and such a decree too  will be contrary to the good of the public by pull down house which from the  evidence chief appear to be in such a good condition as that they may stand a  great number of year atkins it will be of no service to the city of London to  make such a decree for all they want be to be compensate in damage and  therefore the court ought not to make a decree for a specific performance but  then it have be say on the part of the defendant if so there be no occasion  for any other decree in this court but the plaintiff shall be leave to law now  though this be a covenant unperformed and run with the land and will affect a  assignee yet if the breach be make before the assignment it will not affect he  vide valiant v Dodemede ante atk churchwarden of saint saviour Southwark v  smith burr and if a action be bring against the representative of greaves then  they must come into court against Nash for a indemnity and this will occasion  a circuity so that the question will be what the relief be I ought to give  whether a action or whether I shall direct a issue I shall not direct a action  because all proper party be before I the representative of the original lessee  and the assignee of the lease but I shall order a issue it be evident to I  that this lease have be obtain in a improper manner take atkins er p by Mr  greaves as a trustee only for the defendant Mr Nash and appear to be plain a  beneficial lease Mr greaves die before the three year expire for building  these house and his administrator assign this lease for the consideration of  five shilling only to Mr Nash all the other circumstance show that this be  take original for Mr nash benefit because no body can imagine Mr Greavess  representative will have assign it over for so small a consideration as five  shilling if Mr greaves have ever have any beneficial interest Mr Nash likewise  be a member of the committee of city land and all committeemen be express  exclude from be a buyer or a seller which be a good rule and hope they will  continue it because it prevent fraud and collusion this be a scheme of Mr Nash  to increase the term to year instead of and yet to do nothing more than repair  notwithstanding the term in the lease be Triple and though Mr Nash have twice  under his hand report they be in a very bad and ruinous condition still he  have think proper to examine witness to prove they be atkins I shall give more  credit to his own report than to his witness the relief must be by way of  inquiry of damage before a jury and I be more incline to this than to decree a  specific performance because it appear upon the dispute of the extent of the  building that there be a formal committee with Mr dance the surveyor of the  city of London at the head of it view the repair while the workman be employ  about it and yet make no objection to Mr Greavess go on and therefore be too  late in come here for a specific performance unless they bad bring a bill  recent and immediate after this survey Lord Hardwicke direct a issue to try  what damage the mayor commonalty and citizen of London have sustain by the  nonperformance of the covenant in the lease to Mr greaves and appoint the city  of London plaintiff and Nash alone defendant