If it is a general covenant to keep old premises in repair, the lessee is not liable for dilapidations which are the result of time and the elements (q). But a covenant to keep old premises, and deliver them up, in good repair, means to put them into such repair as is suitable to their age and class; and the lessee is not justified in keeping them in bad repair because they were in that condition at the time when the covenant began to operate (r). The sufficiency of the repairs is a question of fact for the jury, who may consider generally the state of repair of the premises at the time of the making of the lease (s). Where a lessee agrees to put the premises in "habitable repair," he is to put them in a state fit for the occupation of the class of persons likely to inhabit them (t). A lessee under a general covenant to repair is not liable for the extra expense of laying a new floor on an improved plan (u). A covenant to repair "all the external parts of the demised premises," includes the partition wall between the premises and an adjoining house, the external parts of premises being those which form the inclosure of them (v). Sometimes the covenant is of a conditional nature, and it is part of the agreement that the landlord should in the first place put the premises into good repair (w); and until that is done, the lessee is not (2) Gutteridge v. Munyard, 1 Moo. & R. 334. (r) Payne v. Haine, 16 M. & W. 541, Easton v. Pratt, 33 L. & J. Ex. 233. See Schroder v. Ward, 13 C. B., N.S. 410. (8) Stanley v. Towgood, 3 Bing. N. C. 4; Burdett v. Withers, 7 A. & E. 136; Mantz v. Goring, 4 Bing. N. C. 451; Young v. Manton, 6 Scott, 277. (t) Belcher v. Mackintosh, 8 C. & P. 720, 2 Moo. & Ry. 186. (u) Saward v. Leggatt, 6 C. & P. 613. (v) Green v. Eales, 2 Q. B. 225. (w) See Slater v. Stone, Cro. Jac. 645; Cannock v. Jones, 3 Exch. 233, 5 Id. 713. Husbandry. Insurance. liable for repairs (x). But a covenant to repair, "having or taking" sufficient wood, &c., from the premises "for the doing thereof," is an absolute covenant to repair, and not conditional to there being a sufficient supply of timber (y). In farming leases () it is usual for the lessee to covenant that he will manage his farm in a husbandlike manner. The mere relation, however, of landlord and tenant creates an implied obligation to farm according to the custom of the country (a). Sometimes, however, the custom of the country may be excluded by the express provisions of the lease (6). The lease should contain a covenant by the lessee, his executors, administrators, and assigns, to insure and keep insured during the term the buildings demised for a certain amount in some insurance office (c), in the joint names of the lessor and lessee, or either of them, according to the terms of the covenant (d). The covenant should also contain a clause for the production of the policy, and of the receipt for the premium during the year (e), and a provision that the money recoverable from the insurance office shall be applied in repairing or rebuilding the premises destroyed by fire. But where there is a covenant to (x) Neale v. Ratcliff, 15 Q. B. 916, 20 L. J. Q. B. 120; Coward v. Gregory, L. R. 2 C. P. 153, 36 L. J. C. P. 1. See also Thomas v. Cadwaller, Willes, 496; Martyn v. Clue, 18 Q. B. 661. (y) Dean of Bristol v. Jones, 1 E. & E. 484, 28 L. J. Q. B, 201. (z) See Implied Covenants, post, sub.-sect. (b). (a) Powley v. Walker, 5 T. R. 357. See Implied Covenants, post, sub.-sect. (b), and Repairs and Cultivation, post, Part 2, Divis. 1, c. 3. (b) Webb v. Plummer, 2 B. & Ald. 750: Hutton v. Warren, 1 M. & W. 466, 477. (c) Doe d. Pitt v. Shewin, 3 Camp. 134. (d) Doe d. Muston v. Gladwin, 6 Q. B. 953; Penniall v. Harborne, 11 Q. B. 368. (e) Doe d. Bridger v. Whitehead, 8 A. & E. 571. See Toleman v. Portbury, L. R. 5 Q. B. Ex. Ch. 288, 39 L. J. Q. B. 136. not limited to the repair, the lessee's liability is In general the lessee also covenants not to underlet Not to undernor assign the premises, nor any part thereof, without let nor assign. the written consent or license of the lessor (). If the covenant only restrains the lessee from assigning, he may underlet without his lessor's consent; but although an under-lease is no breach of a covenant not to assign, yet the converse of the proposition cannot be maintained (k). Covenants denying the privilege (ƒ) Digby v. Atkinson, 4 Camp. 275. (g) Doed. Pittv. Shewin, 3 Camp. 134; Doe d. Darlington v. Ulph, 13 Q. B. 204; Wilson v. Wilson, 14 C. B. 616; Doe d. Flower v. Peck, 1 B. & A. 428; Hyde v. Watts, 12 M. & W. 254; Doe d. Baker v. Jones, 5 Exch. 498; but see Doe d. Pitt v. Laming, 4 Camp. 73. (h) Doe d. Muston v. Gladwin, 6 Q. B. 953. (i) Doe d. Knight v. Rowe, Ry. & Moo. 343; Doe d. Pitman v. Sutton, 9 C. & P. 706. (j) It seems that a covenant of this kind, if inserted in very long leases, might be open to the ob- (k) Church v. Brown, 15 Ves. of underletting can only extend to such underletting as would require a license. The exclusive enjoyment, therefore, of a room in the premises by a lodger will not occasion a breach of such a covenant (1). Where the lessor is desirous that the possession, as well as the property, should be confined to his lessee, express words prohibiting the privilege of taking in lodgers, or parting with the possession of the premises, or any part thereof, must be contained in the deed (m). Although it is the practice to insert a covenant against underletting and assigning without the lessor's consent, and although such a covenant may be fair and reasonable, yet the better opinion seems to be, that an agreement for a lease, containing a stipulation that the lease to be granted shall contain all common and usual covenants, will not include this covenant, as common and usual covenants mean such covenants as are incidental to the lease (n). A lease made to the lessee and his assigns, provided he shall not assign, is void; but it would have been good if the proviso had been that he shall not assign without consent (o). The former part of this proposition, however, has been denied (p). A covenant that the lessee, "his executors or administrators," will (1) Doe d. Pitt v. Laming, 4 Camp. 73. (m) Roe d. Dingley v. Sales, 1 M. & S. 297; Marsh v. Curtis, 2 And. 42, 90; Doe d. Holland v. Worsley, 1 Camp. 20; Church v. Brown, 15 Ves. 265. See Williams v. Cheney, 3 Ves. 61; Collins v. Silley, Sty. 265. (n) Henderson v. Hay, 3 Bro. C. C. 632; Church v. Brown, 15 Ves. 258, 271; Morgan v. Slaugh ter, 1 Esp. 8; Folkingham v. Croft, 3 Anst. 700; Judgment of Sir W. Grant, M.R., in Jones v. Jones, 12 Ves. 186; Vere v. Loveden, 12 Ves. 179; Brown v. Raymond, 15 Ves. 528; Buckland v. Papillon, L. R. 1. Eq. 477. (0) Shep. Touch. 123 n. (p) Denis v. Laurie, Hardr. 427; Wetherall v. Gearing, 12 Ves. 511. not assign, does not bind his assigns (q); but it will bind his executors or administrators (r). trades. Leases very generally contain a covenant restrain- Not to carry ing the exercise of certain specified trades on the on certain premises, and sometimes they go further and totally prohibit the carrying on of all trades and businesses whatsoever; also to prevent any sale by auction in the house (8). Covenants of this kind, when they affect the mode of occupation or enjoyment of the land demised, run with the land (t). Covenants in restraint of trade in a trading locality, and restrictions against particular trades, are not common and usual covenants (u). But where a public-house was described as held at a certain net rent, under common and usual covenants, and the lease contained a proviso for re-entry by the lessor, if any business but that of a victualler should be carried on in the house, it was held, upon proof that such a proviso was inserted in at least six out of ten leases of public-houses, that the proviso was common and usual (v). A covenant not to sell spirituous liquors, will not include wine (w). A cove (q) Doe d. Cheere v. Smith, 5 Taunt. 795; Bally v. Wells, 3 Wils. 33; Paul v. Nurse, 8 B. & C. 486. (r) Roe d. Gregson v. Harrison, 2 T. R. 425. (8) Parker v. White, 32 L. J. Ch. 520, 1 H. & M. 167. As to the person upon whom the burden of proof lies, see Toleman v. Portbury, L. R. 5 Q. B. Ex. Ch. 288, 39 L. J. Q. B. 136. (t) Mayor of Congleton v. Pattison, 10 East. 136; Wilkinson v. Rogers, 2 De Gex J. & S. 62. When they are collateral,and relate to something to be done elsewhere than on the land demised, they do not run with the land; Thomas v. Hayward, L. R. 4 Ex. 311. Such (u) Wilbraham v. Livsey, 18 (v) Bennett v. Womach, 7 B. & C. 627. (w) Fielden v. Slater, supra. |