Thomas Tredwell against Reuben Steele

Thomas Tredwell against Reuben Steele. ALBANY, August, 1805. IN covenant, by which the defendant agreed that “ he w would neither cut, or carry off the premises, or suffer u to be cut and carried off by others, any timber but from M the lands which then were, or should thereafter be clear- “ ed,” the plaintiff laid his breach, that the defendant u did “ cut and cany off the premises, other than such parts of {C the same as the defendant had, or has yet cleared,, divers a large quantities of timber, &c. .and did also suffer divers other persons to cut and cany away off the premises, “ other than such parts as the defendant' had., or yet has M cleared\ divers other, &c.” Shephard in arrest of judgment, said the covenant did not restrict from cutting wood'on parts then cleared, though by others. Under a covenant not to cut wood but from lands “ then “ cleared or “ which should “ thereafter be “ cleared,” if the breach be assigned in cutting on lands which the defendant had not cleared, it is bad, as they might have been cleared by others. [MAJORITY — Per curiam.] Per curiam. The breach is clearly bad j the fact assigned may be true, and yet the defendant might under the covenant have lawfully taken the timber, as it might have been from land cleared by others.