burned down and destroyed, and has not since been rebuilt;" it was held that the plea was no answer to the breach of covenant, and that on a general covenant to repair, the lessee was bound to rebuild in case of an accidental fire. (t)

It has been previously stated, that where a tenant has entered into possession under a lease void as to the duration of the term, or holds over and pays rent after a former lease has expired, he is bound by all such of the terms and stipulations of the lease as are applicable to a yearly tenancy. If, therefore, such lease, or the agreement under which he entered and took possession, contains a covenant to repair, he is bound to rebuild in case of accidental fire. (u)

Articles of agreement under seal were entered into between an intended lessor and lessee for the grant of a lease for twenty-one years, as soon as a license from the lord of the manor (the land being copyhold land) could be obtained; and the lessee covenanted to keep the premises in repair during the term so to be granted, and subsequently entered and took possession of the land, and occupied the same under the agreement for the full term of twenty-one years; and it was held that he was responsible upon his covenant to repair, although the intended lease had never been made. (x)

General obligations, duties, and liabilities of the lessee in respect of the maintenance and preservation of the demised premises.-In the absence of an express covenant or agreement to repair, the lessee is not bound to rebuild a house demised to him, which has been burned by an accidental fire, or consumed through the negligence and folly of his own servants. (y) But there results from the demise and acceptance of the lease by the lessee an implied covenant or promise, to use the property demised in a tenant-like and proper manner; to take reasonable care of it, and restore it, at the expiration of the term for which it is hired, in the same state and condition as it was in when demised, subject only to the deterioration produced by ordinary wear and tear, and the reasonable use of it for the purpose for which it was known to be required. (2) In fulfilment of this implied covenant or promise, the lessee is bound to keep the premises wind and water tight, and in a habitable state, if they were in good repair and condition at the time of the demise. He must cleanse

(t) Bullock v. Dommitt, 6 T. R. 650. (u) Digby v. Atkinson, 4 Campb. 275. (x) Pistor v. Cater, 9 M. & W. 315. As to the amount of damages recoverable in actions for breaches of covenants to repair, see Walker v. Hatton, 10 M. & W. 249. Clow v. Brogden,

2 Sc. N. R. 303.

(y) M'Kenzie v. M'Leod, 4 M. & Sc. 253; 10 Bing. 385, s. c.

(2) White v. Nicholson, Stanley v. Agnew, 12 M. & W. 827.

the drains and sewers, (a) and amend all trifling external injuries to the buildings, which, if neglected and left unrepaired, would operate to the serious and lasting injury of the inheritance.

He must not suffer the roof

If windows are broken

to remain uncovered, so as to let the timbers rot. by the wind and hail, or tiles are blown off, or accidentally broken, he is liable for the non-repair of them, if the consequences of his neglect would be damage to the building from rain. (b)

But the lessee is not bound to make substantial and lasting repairs, such as new roofing; nor is he responsible for ordinary wear and tear, deterioration from age, or inevitable accident; and the extent of his liability depends upon the age and general state and condition of the demised premises at the time he took possession of them, and the duration and value of his own term and interest in the property. A tenant from year to year, for example, whose estate may be determined by the lessor by a six months' notice to quit, ending with the current year of hiring, would never be expected to go to the same amount of expense for the repair and preservation of the property, as a tenant for a term of twentyone years, or a tenant for life. (c) And "if a house be leased to hold at will, the lessor is not bound to sustain or repair the house as tenant, for term of years is tied." (d)

The lessee of house property, moreover, must not remove wainscots or floors, or things fixed to the soil and freehold; he must not pull down and rebuild, open new windows and doors, and change the form and arrangement of the house, without the consent of the owner. He cannot convert one species of edifice into another, such as a cornmill into a fullingmill, or maltmill, or a watermill into a windmill, though the conversion. be to the pecuniary advantage of the landlord, as well as to the benefit of the tenant. (e)

The lessee of farms, orchards, gardens, and lands for tillage and cultivation, likewise impliedly covenants or promises, according as the demise. may have been made by deed or by simple contract, to use and cultivate the land, and manure the soil, according to the custom of the country, and the prevalent course of good husbandry in the district where the land

(a) Russell v. Shenton, 3 Ad. & E. N. s. 449. Bell v. Twentyman, 1 ib. 766.

(b) Mansfield, C. J., Taylor v. Whitehead, Doug. 749. Cheetham v. Hampson, 4 T. R. 319. Parteriche v. Powlett, 2 Atk. 383. Holford v. Dunnett, 7 M. & W. 348. Stanley v. Agnew, 12 M. & W. 827. (c) Ferguson v.

2 Esp. 590. Au

worth v. Johnson, 5 C. & P. 241. Torriano v. Young, 6 C. & P. 12. Leach v. Thomas, 7 C. & P. 327. The same principle prevails in the French law. See the Cod. civ. liv. 3, tit. 8, art. 1719, 1720, 1754, 5 and 6.

(d) Litt. sec. 71. Horsefall v. Mather, Holt, 9. (e) Woodfall, ut sup. 443.

is situate; (f) to take all reasonable care of fruit-trees, vines, strawberrybeds, gardens, and orchards; and generally to exercise such an amount of diligence for the conservation and preservation of the subject matter of the demise, as a prudent and cautious master would exercise for the safety and well being of his own property. (g) He must not impoverish the soil, or seek unjustifiably to enrich himself at the expense of his landlord. He must not fell timber trees, (except for the necessary repairs of a house demised to him with the land); he must not dig for gravel, lime, clay, brick, earth, stone, or the like, except for the necessary repair and improvement of the demised premises. He must not remove virgin soil, (h) nor open quarries or mines of metal or coal, for the purpose of selling the produce thereof; but he may work mines and quarries which were open and in existence at the time of the demise, as they then form part of the annual profits of the land. He must not convert arable land into pasture, or pasture into arable land, or plough up a warren, or divert the courses of streams. (i) He must not take all the fish out of a fish-pond, or the doves from a dovecote, or the deer from a park, or the rabbits and conies from a warren, or the game from preserves. He is entitled to the reasonable use and enjoyment of them, leaving as many in store for the landlord when he goes out, as he found when he was entrusted with the possession and use of the property.

The lessee is moreover bound to keep the fences and ditches, sea walls and boundaries, in good order, and a reasonable state of repair; (k) the extent of his liability in this respect, and for the cleansing of ditches and drains, and the reconstruction of water-courses, will materially depend upon the duration of his lease. A mere tenant at will, whose interest the Roman lawyers called "precarium," is not bound, as we have already seen, to expend money in permanent and lasting repairs and improve

ments.

But "if tenant at will commit voluntary waste, as in pulling down of

(ƒ) Ante, 151, 153; 5 T. R. 373. Legh v. Hewitt, 4 East, 154. Clarke v. Roystone, 13 M. & W. 752. Hindle v. Pollitt, 6 M. & W. 529. Brown v. Crump, 1 Marsh. 567; Woodfall, 428. So by the French law, "Le fermier d'une vigne doit la bien façonner, la bien fumer, la bien entretenir d'echalas, la provigner, et generalement la cultiver de la même manière qu'un bon et soigneux vigneron cultiverait sa propre vigne. Le fermier d'une metairie doit pareillement bien faconner les terres en saison convenable. Il ne lui est pas permi de les charger, de les dessaisonner; il doit avoir des bestiaux en

quantité suffisantes pour l'exploiter, &c. Pothier. Louage, No. 190.

(g) Qualem diligentissimus pater-familias suis rebus adhibet. Instit. Lib. 3, tit. 25, § 5.

(h) Higgon v. Mortimer, 6 C. & P. 616, (b). Ferrand v. Wilson, 15 Law J., N. s. (Ch.) 41, 53, 54.

(i) Aldridge v. Howard, 5 Sc. N. R. 623. As to the construction of a covenant to work mines in a workman-like manner, Quarrington v. Arthur, 10 M. & W.338.

(k) Cheetham v. Hampson, 4 T. R. 318.

houses, or in felling of trees, the lessor shall have an action of trespass for this against the lessee." (m)

The general duties and obligations of the tenant are the same in the Roman law as in our own law, and are ably and familiarly expounded and set forth by Domat in his treatise on the civil law. (n) "The engagements," says he, "of the person who takes anything to hire, are to put the thing to no other use than that for which it was hired; to use it well; to take care of it; to restore it at the time appointed; to pay the rent or hire, and generally to observe whatever is prescribed by covenant, by law, or by custom. The farmer ought to use the lands he has in farm as any prudent and discreet man would use his own, and to keep them, preserve them, and cultivate them at the proper seasons, in the manner agreed on by the lease, or regulated by custom. He cannot increase his profits out of the lands to the prejudice of the proprietor. He cannot sow arable lands when they ought to lie fallow, nor sow wheat when he ought only to sow barley or oats, if these changes would make the lands to be in a worse condition at the end of the lease than they ought to be.

Short form of lease. From the preceding observations on the general doctrines and principles of the common law respecting leases and demises of realty, it will be seen that the implied terms of the contract will frequently meet the reasonable requirements of the parties better than the verbose and complicated provisions and stipulations so frequently inserted in leases; and that if parties were to confine themselves to a simple grant of the subject matter of the demise to the lessee, to be holden by him for a certain determinate term, at a certain specified rent, the law would carry out their intentions and provide for their respective interests much better than they are ordinarily provided for by express stipulations. To correct the prolixity, diffuseness, and expense of modern leases, the legislature has provided by stat. 8 & 9 Vict. c. 124, the following short form of demise, which may be used by parties with all the effect of a much more lengthy document :in the year in pursuance of an act to facilitate the granting of certain leases, between —, witnesseth that the said tors, and assigns, all&c., from the

"This indenture, made the

day of

doth demise unto the said

his

day of

executors, administrafor the term of —,

thence next ensuing, yielding therefor during the said term the rent of £, to be paid, &c., -. In witness thereof, the said parties have hereunto set their hands and seals."

(Ante, 90, 91.)

(m) Litt. sec. 71. Countess of Shrewsbury's case,, 5 Co. 13 a.; Cro. Eliz. 777.

(n) Les lois civiles dans leur ordre naturelle, L. 1, tit. 4, s. 2.

And if the parties are desirous of annexing other express terms to the contract beyond those which would be added by intendment and implication of law, they may insert one, or more, or all of the following short sentences, which, by the provisions of the act, are to have all the effect of the ordinary lengthy and diffuse covenants-1. That the said (the lessee) covenants with the said―(the lessor) to pay RENT ;-2. And to pay TAXES ; -3. And to REPAIR ;-4. And to paint outside every-year;—5. And to paint and paper inside every year;-6. And to insure from fire in the joint names of the said (the lessor) and the said (the lessee) to show receipts and to rebuild in case of fire;-7. And that the said (the lessor) may enter and view the state of repairs; and that the said (the lessee) will repair according to notice;-8. That the said-(the lessee) will not use premises as a shop;-9. And will not assign without leave ;— 10. And that he will leave premises in good repair;-11. Proviso for reentry by the said lessor on nonpayment of rent, or nonperformance of covenants ;- -12. The said (the lessor) covenants with the said lessee) for quiet enjoyment.

(the

The effect of the use of each of these numbered sentences is explained in the schedule of the act, and they will be found to meet the ordinary requirements of leases of house property.

SECTION II.

LETTING AND HIRING OF CHATTELS.

Liability of the lessor or grantor of a chattel to be used for hire.—If a man lets out a chattel upon the express or implied understanding that it is to be put into a serviceable state and made ready for immediate use by the hirer, there is no implied warranty or undertaking on the part of the owner that the chattel is in any particular state or condition, or fit for any particular purpose. But if he expressly or impliedly represents it to be fit for immediate use, or to be applicable to any particular purpose, he impliedly warrants the use for which he receives the hire. If a man, for