
    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.
   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.  