The pleadings raise several questions to the court, which we will decide in the order in which they are presented:
First. We think that under Gen. Stat. R.I. cap. 73, § 4, a mere use of leasehold premises for the purposes prohibited in § 1 does not, ipso facto, render the lease absolutely void, but that § 4 was intended for the benefit of the lessor, and that he alone can take advantage of the avoidance, at least unless he has been cognizant of the illegal use and has consented to it. This is the view which has been taken by the Supreme Judicial Court of Massachusetts of a statute from which § 4 was probably copied.Way v. Reed, 6 Allen, 364; Trask v. Wheeler, 7 Allen, 109; Codman v. Hall, 9 Allen, 335. The plaintiff's demurrers to the first and second pleas in bar are therefore sustained.
Second. The decision of the court is that knowledge on the part of the lessor, before and at the time of the execution of the lease, that the lessee intended to use the demised premises in violation of Gen. Stat. R.I. cap. 73, § 1, was not sufficient to render the lease void in the absence of any other participation *Page 353 in, or furtherance of, the illegal purpose by the lessor.Kreiss v. Seligman, 8 Barb. S.C. 439; Dater v. Earl, 3 Gray, 482; Ralston v. Boady, 20 Ga. 449; Sortwell v.Hughes, 1 Curtis, 244; Hill v. Spear, 50 N.H. 253;Gaylord v. Soragen, 32 Vt. 110; Aiken v. Blaisdell,41 Vt. 655; Green v. Collins, 3 Clifford, 494; Benjamin on Sales, § 511, note. The plaintiff's demurrers to the third and fourth pleas are therefore sustained.
Third. We think the fifth plea bad. An assignment of a lease by the lessee does not discharge either the lessee or his surety from the covenants. It does not have this effect even when the lessor recognizes the assignment by accepting rent from the assignee. Way v. Reed, 6 Allen, 364; Hunt v. Gardner, 39 N.J. Law, 530; Damb v. Hoffman, 3 E.D. Smith, 361; Taylor on Landlord and Tenant, § 438. The demurrer to the fifth plea is sustained.
Fourth. The sixth plea is also bad. It alleges generally that after the lease was made the lessor and lessee by agreement, to which the defendant was not a party, altered the terms of the lease, whereby the defendant's covenant became void. The agreement is not duly pleaded. The court cannot determine until it is more fully set forth whether it would have the effect which is claimed for it or not, or, in fact, whether it was a legally binding agreement. The demurrer to the sixth plea is likewise sustained.
The seventh plea, which is a plea of general performance, is bad in point of form, and will be stricken out, unless the defendant wishes to amend by pleading directly and specifically to the breach assigned.
Demurrers sustained.