delivered the opinion of the court.

*291The lessor of the plaintiff claims title to the premises in question, as assignee of a lease for years made by the c efendant to Joseph Ilalsted. The original lessee having left the premises, the defendant, as landlord and owner of the reversion, entered into possession, and holds it to the exclusion of the lessor of the plaintiff. A verdict having been rendered against the defendant, he asks a new trial.

It is insisted that the assignment is invalid, and passed no title to the assignee, because, by the terms of the lease the tenant was not to underlet the premises without the consent of the landlord. Whether an assignment of the entire term is a violation of a covenant not to underlet, is a question not free from doubt, It is perfectly well settled that underletting is not a violation of the covenant not to assign them. Crusoe v. Bugby, 2 W. Bl. 766 ; S. C. 3 Wils. 234; Jackson v. Silvernail, 15 J. R. 278; Jackson v. Harrison, 17 J. R. 66; Adams on Ej 177.

But the better opinion seems to be that the converse of the proposition is not true, and that an assignment- is a violation of the covenant not to underlet. It was so expressly held by the master of the rolls in Greenaway v. Adams, 12 Ves. 400. He said, this case is not like Crusoe v. Bughy, where all the words of the covenant could have distinct effect and operation without referring at all to an underlease; and it did not necessarily follow that the lessor, as he did not choose that the tenant should assign, therefore intended to restrain underletting. But, upon the other hand, it would be very strange, if the landlord meant to restrain underletting, that he should not mean to forbid the tenant to part with the whole interest.

The terms used in that covenant are in reality no stronger than in the present. They are all appropriate to a lease, not to an assigment. A covenant not to underlet necessarily includes the underletting of all or any part of the term. The real design of the parties in the present case was obviously to exclude an alienation of the whole or any part of the term. No motive can be imagined *292wliich could induce the lessor to restrain an underlease, and to peimit an absolute assignment of the term. In Berry v. Taunton, Cro. Eliz. 331, a devise of lands was held to be a breach of a' condition, that the lessee should not demise them more than from year to year. “ For” (say the court) “ a condition shall not be taken so strictly that it shall be according to tbe precise words ; and if the meaning be broken, it is a breach of the condition.” See Platt on Cov. 408.

But if the assignment be a violation of the covenant of the tenant, the mere breach of the covenant can give the landlord no right of re-entry, unless there be a stipulation in the lease that such breach of covenant shall work a forfeiture or determination of the tenant’s interest. No ejectment can be maintained by the landlord for a mere breach of covenant not coupled with a proviso for reentry. His only remedy would be an action for breach of covenant. Neither the lease nor the assignment is avoided by reason of the breach of covenant. Willson v. Phillips, 2 Bing. 13; Platt on Cov. 424.

The mere fact that the covenants of the lease were violated by the tenant, either by underletting or by nonpayment of rent, gives the landlord no right of re-entry, except in the mode or under the circumstances particularly prescribed by the statute for nonpayment of rent.

Whether the assignment was merely colorable or fraudulent, was, under the circumstances, *a question of fact for the jury. The verdict cannot be disturbed upon that ground.

If the assignment be valid, and transferred • the term to the assignee, the proceeding before the justice against the original lessep, under the act of 1847 (Nixon's Dig. 422), is a mere nullity, and can afford no protection to the defendant.

Even if the rent was payable monthly, and was due when the proceeding was instituted, it is obvious,'from. *293the evidence, that the premises were not then occupied by Ilalsted, and that Post knew that Bockover claimed by assignment. Whether the assignee was in possession or not, is immaterial to the validity of his title. He was entitled to the possession. The landlord had no right of entry, and the plaintiff is entitled to recover the possession.

Nor has the landlord any ground of complaint, if his rent be paid according to the terms of tlie lease. The assignee holds under the terms of the original contract.

The motion for new trial is denied.

Cited in Field v. Mills. 4 Vr. 259; Grigg v. Landis, 6 C. E. Gr. 512.