London, for the term of three years from the date thereof, at Claim for the yearly rent of £105, the first year's rent to be paid in ad- rent. Liability for repairs.]—It is usual in leases of houses to introduce a Liability covenant to repair during the term, and to leave in a proper state of of tenant reparation, and also a covenant to repair after notice. These covenants for repairs. are usually distinct and independent, but they may be so framed as only to form one covenant, so that the one is engrafted on the other. In the former case a tenant is liable for non-repair, though no notice to repair has been given; but in the latter case no liability arises until after notice to repair has been given. (See Woodfall's Landlord and Tenant, p. 486, 9th ed., for the tests for determining when the covenants are separate and when dependent.) A breach of covenant to put in repair is not a continuing breach. (Coward v. Gregory, L. R. 2 C. P. 153.) No contract to repair is implied from the fact of the relation of landlord and tenant being created. (Standen v. Christmas, 10 Q. B. 135; and see Granger v. Collins, 6 M. & W. 458.) Where the tenant covenanted to keep the demised premises in repair, the same being first put into repair by the landlord, the repairing by the landlord is a condition precedent to the tenant's obligation on the covenant. (Neale v. Ratcliffe, 20 L. J. Q. B. 130; Coward v. Gregory, supra.) Measure of damage. ]-In actions for breaches of covenant or promise to repair, the measure of damages during the continuance of the lease is the diminution of the value of the reversion. (Turner v. Lamb, 14 M. & W. 412; Doe v. Rowlands, 9 C. & P. 734; Smith v. Peat, 23 L. J. Ex. 84; Mills v. East London Union, L. R. 8 C. P. 79; Williams v. Williams, L. R. 9 C. P. 659.) Where the landlord's interest in the lease is determined by forfeiture or otherwise, the preceding test would be inapplicable, and the measure of damages would be the sum it would cost to put the premises in the state of repair agreed upon. (Davies v. Underwood, 27 L. J. Ex. 113; 2 H. & M. 570.) The measure of damage also depends on the state of the premises on the creation of the tenancy, the tenant's liability being measured by reference to the condition of the premises at that time. (Payne v. Haine, 16 M. & W. 541; Stanley v. Towgood, 3 Bing. N. C. 4; Burdett v. Withers, 7 A. & E. 136.) The fact that the dilapidation prevented the landlord from letting, may semble be considered where special damages are claimed. ( (Woods v. Page, 1 Bing. N. C. 467.) If a second action be brought on a covenant to keep in repair, the verdict in the former action may be given in evidence in mitigation of damages. (Coward v. Gregory, supra.) Measure of damages in actions for nonrepair. State of Tenant may recover from sub-tenant for forfeiture of lease for Where the tenant has sublet, and the underlessee has neglected to repair, the tenant in an action against him may claim as special damage, the forfeiture of his lease on account of the breach of covenant. (Clow v. Brogden, 2 M. & G. 39), or the loss sustained by him through being sued for breach of the covenant to repair. (Walker v. Hatton, 10 M. & W. 249.) In cases where the lessor covenants to repair, the tenant, in an action for non-repair, may allege as special damage that he was unable to carry non-repair. on his trade in the premises, and was obliged to remove. (Green v. Eales, 2 Q. B. 225.) Covenant to insure.]—The covenant to keep buildings insured against Covenant fire runs with the land, as the 14 Geo. 3, c. 78, s. 83, enables the land- to insure lord to have the insurance money laid out in reinstating the premises, runs with so that the covenant with the aid of the statute amounts to a cove- land. nant to repair. (Vernon v. Smith, 5 B. & A. 1.) The operation of this section is not confined to the metropolitan district. (Ex parte Gorley, 34 L. J. Bkcy. 1.) A covenant" to insure at all times previously to the expiration of the D D Claim for rent. Covenant in hus- manner. Covenant not to carry on } articular trade. Covenant not to assign. Where assignment subject to consent. vance, and the rent during the residue of the said term to be paid quarterly, the first of such quarterly payments to be made term,” is satisfied by an insurance within a reasonably short time after the execution of the lease. A covenant to insure in the name of A. is not satisfied by an insurance in the joint names of A. and the lessee. (Pennial v. Harborne, 11 Q. B. 368. But see Havens v. Middleton, 22 L. J. Ch. 746.) Covenant to cultivate in a husbandlike manner. &c.]-Actions on covenants of this kind are not very common, particularly during recent years. The reader is referred to Woodfall's Landlord and Tenant, 11th ed., for the law on the subject. If the plaintiff means to rely on bad cultivation by the defendant, he should state that distinctly as his ground of complaint, as under a claim for non-cultivation, he would not be allowed to give evidence of bad cultivation merely, though it is probable that the plaintiff would in such a case obtain leave to amend on the trial, unless where on the amendment he would only be entitled to merely nominal damages. (Times Insurance Co. v. Hawke, 28 L. J. Ex. 317.) Where covenants of this kind are controlled or modified by particular customs as to the mode of cultivation or as to the rights of the parties on the termination of the tenancy, the plaintiff should mention them in the statement of claim. If, however, the plaintiff ignores the custom, but the defendant relies on it, it is for the latter to set it out in his statement of defence. Covenant not to carry on a particular trade on the premises.]-A covenant not to do anything on the demised premises which may be a nuisance to the occupiers of the adjoining premises, was held not to be broken by opening a national school thereon. (Harrison v. Good, L. R. 11 Eq. 338.) A covenant not to use the premises as a beerhouse, inn, or public-house for the sale of spirituous liquors is not broken by the sale of beer by retail under a license preventing its being drunk on the premises. (London & North-Western Rail. Co. v. Garnett, L. R. 9 Eq. 26.) Nor is a covenant not to use a building as a public-house for the sale of wine, beer, malt liquors, or spirits broken by such sale under a similar license, (Pearse v. Coates, L. R. 2 Eq. 689.) A covenant that the trade or calling of a hotel or tavern-keeper, publican, beershop keeper, or seller by retail of wine, beer, spirits, or spirituous liquors should not be carried on on the premises, was held, per James, V.-C., now Lord Justice, not broken by the sale of wine in bottles by a grocer in the ordinary course of his trade. (Jones v. Bone, L. R. 9 Eq. 674. But see Feilden v. Slater, L. R. 7 Eq. 523, in which a decision apparently inconsistent with that in Jones v. Bone is given, and which must be considered as overruled by it.) Covenant not to assign.]—A sub-demise is not a breach of this cove nant. See 1 Sm. L. C., 7th ed., Spencer's case. It would be different if the covenant were " not to let, or assign over" the demised premises, "or any part thereof." (Gregson v. Harrison, 2 T. R. 425.) Where the covenant contained words against "demising," "leasing," or "aliening," the premises. or any part thereof, for the term or any part thereof, it was held a breach to give a partner of the tenant the exclusive possession of part of the house. (Dingley v. Sales, 1 M. & S. 297.) Taking a lodger is not a breach of a covenant not to under-let the house, unless there be a distinct agreement for the exclusive occupation of particular rooms. (Greenslade v. Tapscott, 1 C. M. & R. 59.) An assignment by one joint assignee of a lease to the other is a breach of the covenant not to assign. (Varley v. Coppard, L. R. 7 C. P. 505.) A covenant not to assign without the consent of the lessor, such consent not to be arbitrarily withheld, does not entail a forfeiture, or enable the lessor to sue when the tenant assigns after the lessor has arbitrarily refused his consent. The refusal must be unfair and unreasonable to on the 25th day of December, 1872, and the defendant to pay Claim for all rates and taxes except property tax. enable the tenant to disregard it, and a refusal "upon advice" is not unfair and unreasonable. (Treloar v. Bigge, L. R. 9 Ex. 147, 155.) Measure of damages for breach of covenant not to assign.]-The measure of damages in an action for breach of covenant not to assign is such an amount as will put the plaintiff in the same position as if the covenant had not been broken, and the plaintiff had retained the liability of the defendant instead of that of the assignee. (Williams v. Earle, L. R. 3 Q. B. 739.) Covenant or promise to yield possession on the determination of the lease.]-In actions under this covenant or promise the landlord is entitled to recover all the loss he has sustained by not being put in entire possession of the premises at the end of the term; thus he is entitled to a sum equivalent to the rent he has lost, and to the costs of an ejectment against an under-tenant, who has wrongfully held over. (Henderson v. Squire, L. R. 4 Q. B. 170.) So he may recover for damages occasioned by his having to compromise an action by a person to whom he had let in reversion for not giving possession. (Bramley v. Chesterden, 27 L. J. C. P. 23.) And the acceptance of rent for the period of holding over does not affect the landlord's right to recover on the promise or covenant. (Ib.) rent. Measure of damages assign. Covenant to yield up at termi nation of term. Actions against assignees of lease.]-The 8 & 9 Vict. c. 106, s. 3, re- Actions quires assignments to be by deed, but as leases for the whole remaining against term are but assignments thereof (Beardman v. Wilson, L. R. 4 C. P. 57), assignees if the remainder of the term does not exceed three years, it is clear that of lease. the assignment of it may in effect be made by parol in the form of an underlease, as neither the Statute of Frauds nor the 8 & 9 Vict. c. 106, applies to such a case. It seems that an executor de son tort, who has entered on the demised premises and taken possession of the lease, will be held liable as an assignee. (Paull v. Simpson, 9 Q. B. 365.) Where a person has entered into possession of or received the rents and profits of premises demised to the intestate, and paid the rent reserved thereon, he is estopped from denying that he is the assignee of the lease, even though he is not chargeable as executor de son tort. (Williams v. Heales, L. R. 9 C. P. 177.) A trustee to whom a debtor's estate has been assigned for the benefit Trustee of creditors is liable as assignee if he has not repudiated the lease. (White under v. Hunt, L. R. 6 Ex. 32.) Where the assignee of a lease became bank- assignment rupt and his trustee disclaimed, it was held that the trustee was at all for benefit events liable for rent falling due between the adjudication and disclaimer. of creditors (Smith v. North, L. R. 7 Ex. 242.) liable on lease not action for breach of A covenant not to assign without license where the assigns are named, binds the assignee of the lease, although the assignment was made repudiated. without license. (Williams v. Earle, L. R. 3 Q. B. 739.) But it is only the assignee of the whole term that is bound. (West v. Dobb, L. R. 5 Q. B. 460, Ex. Ch.) The assignee can resist an covenant by showing that he assigned away before liable for breaches during the time he is assignee. & C. 486.) The execution of the assignment is sufficient without delivery of it to Assignthe assignee, as where it remains in the hands of the assignee's solicitor, who kept it under a lien. (Odell v. Wake, 3 Camp. 394.) Notice of the assignment to the plaintiff is unnecessary. The fact that the assignment was made to a man of straw in order to get rid of the liability would not affect its validity as amounting to a fraud. (Lekeux v. Nash, 2 Str. fraud. 1221; Onslow v. Corrie, 2 Madd. 330.) But if there was a secret trust in favour of the assignor, this would be a fraud, and would avoid the ment to pauper not invalid on ground of Claim for rent. Actions for double rent. c. 19. 2. The defendant took possession under the said agreement of the premises therein mentioned, and paid rent for the same assignment. (Ex parte Budd, 31 L. J. Ch. 4, and Ex parte Bugg, 35 L. J. Ch. 43.) The assignee may after the assignment be sued for breaches by him before assignment. (Harley v. King, 2 C. M. & R. 18.) An assignee is not liable for breaches committed before the assignment to him. (See Coward v. Gregory, L. R. 2 C. P. 153.) Actions for double rent.]-By the 11 Geo. 2, c. 19, s. 18, "in case any tenant or tenants shall give notice of his, her, or their intention to quit the premises by him, her, or them holden at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the 11 Geo. 2, time in such notice contained, that then the said tenant or tenants, his. her, or their executors or administrators shall from thence-forward pay to the landlord or landlords, lessor or lessors, double the rent or sum which he, she, or they should otherwise have paid, to be levied, sued for, and recovered at the same time and in the same manner as the single rent or sum before the giving such notice, could be levied, sued for, and recovered; and such double rent or sum shall continue to be paid during all the time such tenant or tenants shall continue in possession as aforesaid." Act only applies where tenant has given valid notice. Landlord may claim special damage for overholding independently of Act. Actions for double value. 4 Geo. 2, e. 28. It has been held that this statute only applies where the tenant had the power of determining his tenancy by notice, and has given a valid notice for that purpose. (Johnstone v. Huddlestone, 4 B. & C. 922.) To bring a case within this provision, the holding over must be wilful and contumaceous, and not either by mistake or bonâ fide though unfounded claim of right. (Wright v. Smith, 5 Esp. 203; Swinfen v. Bacon, 30 L. J. Ex. 33 and 368.) A person to whom the landlord granted a lease to commence on the determination of the defendant's tenancy is not a person entitled to the possession within the meaning of the above enactment, and cannot consequently maintain an action for double value under it. (Blatchford v. Cole, 28 L. J. C. P. 140.) The double value given by this Act is in the nature of a penalty, and therefore action must be brought to recover it within two years. Independently of this provision a landlord may claim special damages from an overholding tenant in respect of damages, to which he has been rendered liable to a third person, to whom he has let the premises, and is unable to deliver possession in consequence of the defendant holding over. (Bramley v. Chesterden, 27 L. J. C. P. 23.) Actions for double value.]—By 4 Geo. 2, c. 28, s. 1, it is provided that "in case any tenant or tenants for any term for life, lives, or years, or other person or persons who are or shall come into possession of any lands, tenements, or hereditaments by, from, or under or by collusion with such tenant or tenants, shall wilfully hold over any lands, tenements or hereditaments after the determination of such term or terms, and after demand made and notice in writing given, for delivering the possession thereof by his or their landlords or lessors, or the person or persons to whom the remainder or reversion of such lands, tenements, or hereditaments shall belong, his or their agent or agents thereunto lawfully authorized, then and in such case such person or persons so holding over shall, for and during the time he, she, and they shall so hold over, or keep the person or persons entitled out of possession of the said lands, tenements, and hereditaments as aforesaid, pay to the person or persons so kept out of possession, their executors, administrators, or assigns, at the rate of double the yearly value of the lands, tenements, and hereditaments so detained, for so long time as the same are detained, to be recovered in any of His Majesty's Courts of Record by action of debt, to the plaintiff pursuant to the terms thereof during a certain Claim for period of the said term. rent. Action for Rent and Royalty on Lease of Colliery, and for Breach of Covenant to Work it in Miner-like manner. 1. The plaintiff is owner in fee and sole surviving lessor of certain mines, seams, beds, and strata of coal under seven closes in the township of B., in the parish of S., in the county of S. The defendants are the assignees of the lease of the said premises hereinafter mentioned. of March, 1867, 2. By indenture of lease, bearing date the plaintiff and one J. M., since deceased, granted, demised, and leased the aforesaid premises to W. S. and J. B., their executors, administrators, and assigns, for the term of twenty-one years from the 1st day of July, 1867, with liberty to enter upon the land and work the said minerals at a yearly rent or royalty of £per foot of thickness for every statute acre surface measure of coal worked or gotten during the said term, (such coal to be measured as in the said lease agreed), and at a yearly rent of £150, or such part thereof as with the said rent or royalty therein before reserved should amount to that sum, from 1st July, 1867, provided that if in any year after the second year of the said term sufficient coal should not be gotten to amount to the sum of £100 at the rent or royalty aforesaid, the lessees, their executors, administrators, and assigns, having first paid the minimum rent reserved, should be at liberty, in any subsequent year of the term when the excess in quantity should permit, to make up the deficiency by taking whereunto the defendant or defendants shall be obliged to give special bail, against the recovering of which said penalty there shall be no relief in equity." The defendant may show that the plaintiff waived the notice to quit or demand of possession. Before the Judicature Acts such waiver need not have been specially pleaded. (Rawlinson v. Marriot, 16 L. T. N. S. 207.) But that would scarcely hold now. Where the plaintiff accepted rent due from the defendant after the expiration of the notice, it is a question whether it was accepted in part satisfaction of the double value or as a waiver of it. (Ryall v. Rich, 10 East, 52.) Claim for rent and royalties on lease of breach of mine, and covenant to work in miner-like manner. Defence that plaintiff waived notice or demand of possession. |