enjoyment, on the ground that there was a privity of estate between A. and C (a). In covenant by the lessor against the lessee upon a lease reserving an increased rent for every acre of certain lands converted into tillage, the jury, by their verdict, having given damages for the actual injury sustained, instead of the increased rent, the Court will not refuse the plaintiff a new trial, on the ground that the verdict was consistent with justice; secondly, the Judge having expressly directed the jury to find damages to the amount of the increased rent, the Court granted the new trial, without payment of costs (b), SECTION II. Of the Action of Assumpsit. If the lease be by writing without deed, or by parol demise, the landlord's remedy for the breach of such stipulations, as the terms of the agreement express or the contract implies, is by an action of assumpsit; for an action upon the case on assumpsit, (or as it is also called on promises) is an action which the law gives the party injured by the breach, or non-performance of a contract legally entered into ; it is founded on a contract either express or implied by law, and gives the party damages in proportion to the loss he has sustained by the violation of the contract. An agreement to leave a farm as he found it, is an agreement to leave it in tenantable repair, if he found it so; and will maintain a declaration so laid (c). In an action against a tenant upon promises that he would occupy the farm "in a good and husbandmanlike manner, according to the custom of the country;" an allegation that he had treated the estate contrary to "good husbandry and the custom of the country," is proved by shewing that he had treated it contrary to the prevalent course of husbandry in that "neighbourhood," as by tilling half his farm at once, when no other farmer there tilled more than a third, though many tilled only a fourth: and it is not sufficient to shew any precise definitive custom or usage in respect of the quantity tilled (d). In special assumspit against the tenant for not performing his agreements, the estate of the lessor is an immaterial averment, if the tenant have had the enjoyment of his lease. For the true rule is, that on the general issue in an action on the case, all material averments are denied, and put in issue, but nothing else. The estate of the (a) Campbell v. Lewis. 3. B. & A. 392. (b) Farrant v. Olmius. 3 B, & A, 692. (c) Winn v. White. 2 Bl. R. 840. plaintiff is not a material averment; for a lease by a tenant in tail (as the plaintiff in this case was) is not void, but only voidable by the issue in tail: it had not been nor could be avoided during the life of the lessor; nor does it lie in the mouth of the defendant, who has enjoyed the fruit of it, to dispute its validity. That therefore being an immaterial averment, the plaintiff, (notwithstanding he was mistaken in his title) was held to be entitled to recover on the first count of the declaration, which stated that the lands descended to him in fee on the death of his father, as son and heir (a). A tenant at will even is bound to keep the premises in repair, and to use the land fairly according to the course of husbandry which the nature of the soil may require, and the custom of the country points out as being proper. It seems, indeed, that those covenants which are implied in a lease, (of which we have in a preceding part of this work made more particular mention,) subsist between landlord and tenant as resulting from their relative situation, by whatever means that situation is created; so that the breach of any of them is a wrong for which the law affords a remedy: an action on the case therefore will lie for damages arising from the neglect to repair (6). An agreement, (as has been before observed) though not under seal may be declared on specially, in which case it may be said to bind the parties by its own force; or the plaintiff may in some instances declare generally, and give the written contract in evidence (c). A tenant from year to year is bound (as has been observed) only to fair and tenantable repairs, so as to prevent waste or decay of the premises, but is not bound to do substantial and lasting repairs (d). So, a declaration that in consideration that the defendant had become tenant to the plaintiff of a farm, the defendant undertook to make a certain quantity of fallow, and to spend 60l. worth of manure every year thereon, and to keep the buildings in repair, was held bad on general demurrer: those obligations not arising out of the bare relation of landlord and tenant (e). But if after the expiration of a written lease containing a covenant by the tenant to keep the premises in repair, he verbally agree to hold over, paying an additional rent, nothing more being expressed between the parties respecting the terms of the new tenancy, he is presumed to hold under the covenants of the former lease, as far as they are applicable to his new situation; and if the premises be afterwards burnt down by accidental fire, he is bound to rebuild them (ƒ). (a) Legh. v. Hewitt. 4 East. 154. (b) Co. Lit. 56. b. n. 2. (c) Robinson v. Drybrough. 6 T. R. 317 (d) Furgason v. —. 2 Esp. R. 590. But where a tenant came in under an agreement to manage and quit the premises agreeably to the manner in which the same had been managed and quitted by the former tenants; and it appeared upona bill filed to restrain him from removing crops, &c. after a notice to quit, that the former tenant held under a lease, containing a covenant not to remove crops, &c. at the end of the term, but of which lease the defendant had no notice; and that in point of fact the last tenant did remove the crops, &c. when he quitted the premises; the Lord Chancellor ruled that the tenant was not bound by the covenants of the lease, and refused the injunction (a). By an agreement between plaintiff and defendant, the defendant was to accept of the assignment of the lease of a term from the plaintiffs, and to take the fixtures and crops at a valuation; he was afterwards let into possession of the fixtures, and the crops were valued to him; but the lease was never assigned: held that indebitatus assumpsit would not lie for the price of the fixtures and crops, and that the plaintiff's only remedy was by a special action on the agreement (b). Where an agreement between an out-going and an in-coming tenant was that the latter should buy the hay, &c. upon the farm, and that the former should allow to the latter the expense of repairing the gates and fences; and that the value of the hay, &c. and of the repairs should be settled by third persons; held that the balance settled to be due for the hay, &c. after deducting the value of the repairs, might be recovered by the out-going tenant in a count upon a general indebitatus assumpsit for goods sold and delivered (c). A custom for the tenant of a farm in a particular district to provide work and labour, tillage, sowing, and all materials for the same, in his away-going year, and for the landlord to give him a reasonable compensation for the same, is valid in law, notwithstanding the farm is held under a written agreement; provided such agreement does not in express terms exclude the custom (d). But where, by the custom of the country, the out-going tenant was entitled to an allowance for foldage from the in-coming tenant, and the tenant held under a lease which specified certain payments to be made by the in-coming to the out-going tenant, at the time of quitting the premises, among which there was not included any payment for foldage; it was held that the terms of the lease excluded the custom, and that the out-going tenant was not entitled to any allowance in respect of foldage (e). (a) Liebenrood v. Vines. 1 Merivale. 15. (b) Neal v. Viney. I Campb. 471. (d) Senior v. Armytage. Holt. N. P. Rep. 197. (c) Leeds v. Burrows. 12 East. 1. (e) Webb v. Plummer. 2 B. & A. 746. CHAPTER XVI. Of the Remedies for Wasle. SECTION I. By Action of Waste on the Statute of Gloucester; and Trover for Waste. SECTION II. Action on the Case in the Nature of Waste. SECTION III. In Equity. SECTION I. Of Waste on the Statute of Gloucester. R EMEDIES for waste lie at common law by prohibition of waste and action of waste in favour of the owner of the inheritance; however, the statutes of Marlbridge, 52 H. 3. c. 23. and of Gloucester, 6 E. 1. c. 5. provided that the writ of waste shall not only lie against tenants by the law of England (or curtesy) and those in dower, but against any farmer or other that holds in any manner for life or years: so that for above five hundred years past all tenants merely for life or for any less estate have been punishable or liable to be impeached for waste both voluntary and permissive: unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere or sue him for waste committed (a). But tenant in tail, after possibility of issue extinct, is not impeachable for waste; because his estate was at its creation an estate of inheritance, and so not within the statutes. The first incident to an estate tail is, that the tenant shall not be punishable for committing waste, by felling timber, pulling down houses, opening and working mines, &c. But this power must be exercised during the life of the tenant in tail, for at the instant of his death it ceases. If, therefore, a tenant in tail sell trees, growing on the land, the vendee must cut them down during the life of the tenant in tail; for otherwise they will descend to the heir, as parcel of the inheritance (b). The Court of Chancery will not, in any case whatever, restrain the tenant in tail from committing waste. It is said also, that if he grant all his estate, the grantee is dispunishable for waste: so if grantee grant it over, his grantee is likewise dispunishable. Neither does waste lie for the debtor against tenant by statute, recognizance, (6) Cruise's Dig. tit. 2. c. I. s. 33. (a) 2 Bl. Com. 285. or elegit, because against them the debtor may set off the damages in account: but it seems reasonable that it should lie for the reversioner expectant on the determination of the debtor's own estate, or of those estates derived from the debtor (a). By the statute of Marlbridge, single damages only could be recovered, except in the case of a guardian; but the statute of Gloucester directs that tenant in dower, by the curtesy, for life, or years, shall lose and forfeit the place wherein the waste is committed, and also treble damages to him that hath the inheritance. The statute speaks of terms of years in the plural number; but though it be a penal law, whereby treble damages and the place wasted shall be recovered, yet a tenant for half a year, being within the same mischief, shall be within the same remedy, though it be out of the letter of the law. The expression of the statute is that "he shall forfeit the thing which he hath wasted;" and it hath been determined that, under these words, the place is also included.-If waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a house, the whole house shall be forfeited; because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only at one end of a wood (or perhaps in one room of a house, if that can be conveniently separated from the rest), that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner (b). The redress under this statute for this injury of waste is of two kinds, preventive and corrective; the former by writ of estrepement ; the latter by action of waste. Estrepement.-Estrepement from extirpare, signifies to draw away the heart of the ground, by plowing and sowing it continually, without manuring or other good husbandry, whereby it is impaired; and may be also applied to the cutting down trees, or lopping them farther than the law allows. The word is used for a writ, which lies in two cases: the one by the statute of Gloucester, when a person having an action depending, as a formedon, writ of right, &c. sues to prohibit the tenant from making waste during the suit: the other is for the demandant, who is adjudged to recover seisin of the land in question after judgment and before execution sued by the writ of habere facias possessionem, to prevent waste being made before he gets into possession. By an equitable construction of the statute of Gloucester, and in advancement of the remedy, it is now held that a writ of estrepement to prevent waste may be had in every stage, as well of such ac tions wherein damages are recovered, as of those wherein only possession is had of the lands; for perhaps the tenant may not be able (e) Cruise's Dig. tit. 2. c. I. s. 22. Anon. 3 Leon, 121, (b) Co. Lit. 54. |