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Covenant will lie by the assignee of the reversion of part of the demised premises, against the lessee for not repairing (a).

A covenant by a lessor to supply the premises demised (which were two houses) with a sufficient quantity of good water, at a rate therein mentioned for each house, is a covenant that runs with the land, and for the breach of which the assignee of the lessee may maintain an action against the reversioner (i).

As to the extent to which the lessee or assignee is liable in covenant, there is a considerable difference (c).

1. The lessee has, from his covenant, both a privity of contract and of estate; and though he assigns, and thereby destroy the privity of estate, yet the privity of contract continues, and he is liable in covenant notwithstanding the assignment (d).

2. But the assignee comes in only in privity of estate, and therefore is liable only while he continues to be in possession, and therefore has the legal estate: except in the case of rent, for which though he assign over he is liable as to the arrears incurred before as well as during his

enjoyment; and such assignee was made liable in equity, though the

privity of estate were destroyed at common law (e).

Assignees of a bankrupt are not liable for the rent of premises assigned to them by the commissioners unless they take possession (/).

Where assignees of a bankrupt advertised a lease of certain premises, of which the bankrupt was lessee, for sale by auction, without stating themselves to be the owners or possessors tl ere )f, and no bidder offering, they never took possession in fact of the premises: held that this was no more than an experiment to ascertain the value, whether the lease were beneficial or not to the creditors, and did not amount to an assent on the part of the assignees to take the term, or support an averment in a declaration in covenant against them by the landlord, that all right, title, interest, &c. of the bankrupt in the premises came to defendants by assignment thereof (#).

Where the breach assigned was in two covenants, and it appeared, that for the one, the plaintiff had no cause of action, and for the other a good cause, and issue was joined on both, and found for the plaintiff in both and damages entirely assessed; the plaintiff could not have judgment (g).

To an action of covenant for not pulling down part of a house called The Cherry Tree at Southgate, in Middlesex, which had been let by the plaintiff to the defendant's testator •, the plea was, that the testator had repaired and beautified other parts of the premises, at the plaintiff's request, which the plaintiff had accepted in satisfaction; replication, protesting that the plaintiff did not request the testator to repair; and replying that he did not accept the repairs in satisfaction. It appeared that the plaintiff had demised the house to the testator, who had covenanted to pull down the corner of it for the purpose of letting the plaintiff make a cart-way over the place where the corner of the house stood. Lord Kenyon. —The plaintiff has demised the house called the Cherry Tree, and consequently the ground on which it stood. The way he claims is to be made over part of the ground on which the house so demised stood. Every deed is to be taken most strongly against the grantor. If the corner of the house be pulled down, the plaintiff cannot use the ground on which it stood, because it passed by the demise; and not having reserved in the deed any right to use it, unless the plaintiff had so reserved it, he cannot claim it as a ■way but by prescription: but as the testator did covenant to pull down the corner of the house, and has not done so, there must be a verdict for the plaintiff, but only for nominal damages (a).

(«) Twynam v. PicJurd. 1 B. & A. 105. (<) Jourdain v. Wilson. 4 B. & A. 166. (c) C. XL anti.

(d) Eaton r. Jaques. Doug. 455-58. Chancellor v. Poole. Ibid. 764.

to Bac, Abr. tit, Covenant, (E. 4.) Taylor

v. Shum. I Bos. & Pull. 11-13. Stevenson v. Lambard. 2 East. 575-80. Stone v. Evans. ante, 84.

(f) Bourdillon v. Dalton. Peake's R. 138.

(X) Turner v. Richardson, 7 East. 335.

As to bringing money into Court in this action: where there are several counts or breaches in the declaration, and as to some of them, the defendant may bring money into Court, but not as to the others, he may obtain a rule for bringing it in specially. Thus, where in covenant upon a lease for non-payment of rent," and not repairing, &c, the Court made a rule, that upon payment of what should appear to be due for rent, the proceedings as to that should be stayed; and as to the other breaches, that the plaintiff should proceed as he should think fit (*).

Respecting relief by bill in equity, the party cannot seek for specific performance of a covenant to repair (c).

But upon a covenant to build, the covenantee is clearly entitled to apply to a Court of equity for a specific performance •, for to build is one entire thing, and if not done prevents that security for his rent to which the lessor is entitled by virtue of a building lease (c).

Where a person on a building lease covenants to new build thebnck messuages on the premises, the rebuilding some and repairing others was held not to be sufficient to answer the covenant, but the lessee must rebuild the whole (r).

Where A. being possessed of certain premises for a term of years assigned part of them over to B. for the residue of his term, with a covenant for quiet enjoyment, and B. afterwards assigned them over to C. Held that C. having been evicted by J. C. (the lessor of A.) ^n breach of covenant, committed by A. previously to the assignment to B., might maintain an action against A., upon the covenant for quiet enjoyment, on the ground that there was a privity of estate between A. and C (a).

(«) Good v. Hill, a Esp. R. 690. I (e) City of London v. N»sl>- 5 ** J»>

0) I Tidd's Pract. ice. | IS. Mosdy v. Virgin. 3 Vo. lU

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 assumpsits 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

(•) Campbtll v. Lewis. 3. B. & A. 39a. I (r) Winn v. Whitt. * Bl. R. 840. (0 Famnt v. Olauus. 3 B, k A. 69J. | (J) Ltgb v. Htwitt, 4 East. 154

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 (i).

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 (r).

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 60/. 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 (/).

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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 upon 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. I Merivale.15. I (d) Senior v. Armytage. Holt. N. P. Rep. (A) Neal v. Viney. 1 Campb.47i. 1 197.

4/) Leeds v. Burrows. 11 East. I. | («) Webb v. Pluromer. a B. & A. 746.

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