The court cannot doubt that the value ot a leasehold estate may be greater when it is assignable than when it is not.

In this case it appeared, at the trial, that the defendant fitted up the premises that were leased to him, and intended to occupy them for his own use during the term; and the judge instructed the jury that, in estimating the damages sustained by the defendant, by reason of his being evicted, the fact, that the lease was not assignable without the lessor’s consent, was immaterial. But the defendant’s affairs or his purposes might have changed; and it is manifestly a diminution of the value of property, that its beneficial enjoyment must depend upon the continuance of the purposes, condition or employment of its possessor, or on the. will of another person.

The refusal of the judge to instruct the jury, when expressly requested, that they might, in estimating the value of the unexpired term, take into consideration the circumstance that the lease was not assignable, shows that his previous instruction that this was immaterial, was not what the defendant’s counsel has suggested that it was, to wit, merely the intimation of an opinion on a question of fact. The plaintiff is therefore entitled to a new trial.

Exceptions sustained.