possession from one who has no title, and the case where he has merely attorned, by mistake, to one who has no title. In the former case the tenant cannot, (except under very special circumstances,) dispute the title; in the latter he may." But if a party take a lease from a receiver, appointed by Chancery, by which rent is reserved to such receiver, or any future receiver, he cannot successfully plead non tenuit, in replevin (p).

Although a tenant cannot in general object that his landlord never had any title, yet he may in some cases shew, in ejectment, &c., that it has expired (q). And where the defendant, having only a defeasible title, demised to the plaintiff for years, and before the first quarter's rent was due, the plaintiff was evicted by a title paramount to the defendant's, and remained out of possession for some weeks, and then entered under a new demise from the owner of the premises; it was held, that the defendant could not legally distrain, and that the eviction might be shewn on non tenuit (r). It is a good plea to an action by a landlord for rent, that the ground landlord (s); or the grantee of an annuity (t); or a mortgagee (u); of the landlord, claimed the arrears; and that the tenant paid them to such party, under a threat of distress or eviction.

2ndly. Of the Tenant's Liability to repair.

In the absence of an express agreement so to do, a tenant from year to year is not bound to make substantial and lasting, or general, repairs; such as putting a new roof on an old worn-out house. He is only impliedly liable to make fair and tenantable repairs such as putting in windows or doors that have been broken by him, so as to prevent obvious waste and decay of the

(p) Dancer v. Hastings, 4 Bing. 2; 12 Moor, 34, S. C.

(q) England d. Syburn v. Slade, 3 T. R. 692; Doe d. Jackson v. Ramsbotham, 3 M. & Selw. 516; Alchorne v. Gomme, 2 Bing. R. 54, 61; Hopcraft v. Keys, 2 M. & Scott, 760; 9 Bing. 613, S. C.; Fenner v. Duplock, ubi supra; Gravenorv. Woodhouse, 7 Moore, 289. May shew in covenant on a lease by husband and wife, reserving rent to her heirs, that the estate was the wife's, and that she died, and her heirs claimed the rent, and threatened

to evict, &c. Hill v. Saunders, 7 D. & R. 17; 4 B. & C. 529, S. C.

(r) Hopcraft v. Keys, 2 M. & Scott, 760; 9 Bing. 613, S. C.

(s) Sapsford v. Fletcher, 4 T. R. 511. As to the landlord's implied promise of indemnity against the superior, or ground rent, see Schlencker v. Moxsy, 3 B. & C. 789; 5 D. & R. 747, S. C.; Carter v. Carter, 5 Bing. 406; 2 M. & P. 732, S. C.; Evans v. Curtis, 2 C. & P. 296.

(1) Taylor v. Zemira, 6 Taunt. 527. (u) Hope v. Biggs, 9 B. & C. 245.

premises (x). In a recent edition of Woodfall's Law of Landlord and Tenant (y), it is laid down, that such a tenant "is only liable where an injury happens to the premises through voluntary neglect; and not for injuries arising from accidental fire, wear and tear of time, or the like." This appears to be the true principle. A tenant from year to year is liable, if he omit to adopt reasonable and usual precautions to obviate, at a slight expense, the occurrence of great and manifest injury to the premises. If a window or tile were even accidentally broken, it seems that he would be liable if he did not repair it, if the plain consequence of his neglect would be a serious damage to the house from wet, &c. (≈).

A declaration that, "in consideration that the defendant had become and was tenant to the plaintiff, of a certain messuage, &c., he undertook to keep the place in good tenantable repair, to uphold and support, and to leave the premises in the state he found them," is bad; such an undertaking not resulting from the relation of landlord and yearly tenant (a). Where there is an

2

(x) Co. Litt. 57 a; 2 Saund. 352, note (7); Farquarson v. Esp. R. 589; Gibson v. Wells, 1 New R. 291; Horsefall v. Mathew, Holt, Rep. N. P. 7, 8; Winn v. White, 2 Bla. R. 840; Colley v. Streeton, 2 B. & C. 278.

(y) By Harrison, 433, cited Salop v. Crompton, Cro. El. 777, 784.

(z) It would seem, from the observations of Bayley, J., in delivering the judgment of the Court in Wise v. Metcalfe, 10 B. & C. 312, that an outgoing tenant, not obliged by covenant to do any repairs, is only bound to leave the premises wind and water tight: and that painting, white-washing, and papering are matters of ornament only, (unless necessary to preserve exposed timber from decay,) which a tenant is not bound to do, though he be under covenant to leave premises"in good and sufficient repair, order, and condition." The French law is to the following effect: Civil Code, book 3, tit. 8, arts. 1719, 1720, 1754, 1755, 1756.

"The lessor is bound by the nature of the contract, and without the necessity of any particular stipulation, to maintain the thing hired in a state to be employed for the use for which it was hired."

"The lessor is bound to deliver the

thing in a good state of complete repair."

"He must make in it, during the continuance of the lease, all the reparations which may become necessary other than tenants' repairs."

"Tenants' repairs, or ordinary reparations in which the lessee is bound, if there be no article to the contrary, are those marked out as such by the usage of places; and among others, the rcparations to be made, are,-to hearths, chimney-backs, jambs, and chimney pieces; to the plastering of the bottom of the walls of apartments, and other places of habitation, to the height of a metre; to the pavement and windows of chambers, when some of them only are broken; to glass, unless it be broken by hail, or other extraordinary accidents, or arising from superior force, for which the tenant shall not be bound; to doors, casements, bars or shutters of shops, hinges, window bolts, and locks."

"None of the reparations deemed to belong to tenants are chargeable on lessees, when they are only occasioned by antiquity or superior force."

"The cleansing of wells and houses of office are charges of the lessor, if there be no clause to the contrary."

(a) Id., Brown v. Crump, 1 Marsh. 567; 6 Taunt. 300, S.C. Ante, 54, 5.

express and unconditional agreement to repair and keep in repair, the tenant is bound so to do, though the premises be destroyed by fire, or other accident (b).

The law implies a promise on the part of a yearly tenant of a farm, that he will use the farm in a husbandlike manner; and cultivate the lands according to the custom of the country where they are situate (c). And in an action against a tenant upon promises that he would occupy the farm "in a good and husbandlike 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 showing 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 unnecessary to show any precise definite custom or usage in respect of the quantity tilled (d).

The custom of the country cannot be considered where the parties have entered into express stipulations in regard to the mode of cultivation; but the existence of a written demise, or a lease under scal, will not exclude the operation of the custom, if the instrument contain no provisions having relevance to the subject (e).

If the tenant refuse to repair, according to agreement, and his landlord, (the plaintiff,) who is himself a lessee, and bound under pain of forfeiture to keep the premises in repair, enter and repair them without the defendant's assent, the measure of damages in assumpsit for not repairing, shall be the sum necessarily expended (ƒ). And if the landlord, (the plaintiff,) do not enter and repair, and be sued by his lessor, and the tenant refuse to repair, or defend the action, the damages and costs recovered by the ground landlord, against the plaintiff, may form the measure of damages against the tenant (g).

A landlord is not liable to an action for not repairing, if he has not expressly agreed to repair (h). But the tenant will, in some cases, be at liberty to quit without notice, and will be exempt from future rent, if the premises become uninhabitable, or there be no beneficial occupation, in consequence of the landlord's default in repairing. And even where a tenant holds a house for a term certain, (as three years,) under a written agreement by which he contracted to keep the premises in tenantable repair, yet he may quit without notice, and by so doing free himself from future responsibility for rent, if the premises become unwholesome for want of sufficient drainage, and cannot be kept dry without extravagant and unreasonable labour and expense on his part (i).

The lessee of a house underlet it at Lady-day to A., as tenant from year to year, and before the end of the half year, put workmen into the house, with A.'s consent, for the purpose of repairing a party wall; but the danger and inconvenience occasioned thereby were so great, that 4.'s lodgers quitted the house, and he was obliged to take lodgings for his own family elsewhere, and after paying the rent up to Midsummer-day, he remained in possession, carrying on his trade, till the fifth of July, and then quitted, (the repairs being nearly completed,) without notice to his landlord: it was held that the latter could not maintain an action to recover the rent for the second half year which had thus commenced; the jury finding that there had been no beneficial occupation (k).

So, where the defendant had agreed, in writing, "to become tenant by occupying" a house, it was held that he was not liable to an action for use and occupation, on his proving that the house was not in such a reasonable and decent state of repair as to be fit for convenient and comfortable occupation (7).

3rdly. Of Taxes, as between Landlord and Tenant.

There are certain taxes and rates, such as land tax and sewers' rates, which are eventually charges upon the landlord; though

(h) Pindar v. Ainsley, cited 1 T. R. 312; Leeds v. Cheetham, 1 Sim. 151; Brown v. Quilter, Ambler, 619.

(i) Collins v. Barrow, 1 M. & Rob. 112.

(k) Edwards v. Hetherington, R. & M. 268; 7 D. & R. 117, S. C.

(Salisbury v. Marshall, 4 C. & P. 65. There was a parol understanding between the parties that the premises should be put in proper repair; but he had done only some slight colourable repairs.

primarily chargeable upon the tenant, as regards the public. If the demise contain no provision to the contrary, upon the subject of these charges, the landlord has to bear them. There are other taxes and assessments which the tenant, even as between himself and his landlord, is impliedly bound to sustain; such as the assessed taxes, or house and window duties, and parochial rates (m).

The tenant may become liable to bear the burthen of taxes which would otherwise be payable by the landlord, and might be deducted from the rent (n), by entering into a contract to pay them. This contract need not be in express terms: any words showing clearly that the landlord was to have the full rent reserved, without any deduction in respect of any charges upon the premises, are sufficient to fix the tenant. As if he agree to pay "all taxes (o);" or agree to pay rent "free from all manner of taxes, charges, and impositions whatsoever" (p); or agree to pay a "net rent" (q).

4thly. Of Notices to quit.

1. When necessary-In the case of a tenancy from year to year (r), of a house or land, the law requires, in order to determine such tenancy, (in the absence of any express agreement, or immemorial custom or usage in any particular place, to the contrary,) that one party should give to the other half a year's (s) notice to quit; expiring at that period of the year when the tenancy

(m) See Woodf. by Harrison, 387, 388, 421. As to the redemption of land tax by landlord, Ward v. Const, 10 B. & Č. 635.

(n) The general rule is, that if a statute direct a tenant to pay a tax in the first instance, and then deduct it from his rent, he must deduct it from the next payment he makes for rent. Andrew v. Hancock, 1 B. & B. 37; Spragg v. Hammond, 2 id., 59; Stubbs v. Parsons, 3 B. & Ald. 516; Saunderson v. Hanson, 3 C. & P. 314. Effect of a landlord's allowing deductions, (which he was not bound to permit); in regard to a future distress on a new tenant; Bramston v. Robins, 4 Bing. 11; 12 Moore, 68, S.C.

(0) Amfield v. White, 1 R. & M.

246. This means taxes then in force. Davenant v. Salisbury, Vent. 223. See further, and when otherwise, Watson v. Atkins, 3 B. & Ald. 647; Graham v. Wade, 16 East, 29.

(p) Bradbury v. Wright, Dougl. 624; Cranston v. Clarke, Sayer R. 78; Woodf. by Harrison, 392.

(q) Bennett v. Womack, 7 B. & C. 627, S. C., in 1 M. & R. 644, and 3 C. & P. 96.

(r) What creates this tenancy impliedly, &c., see ante, 257.

(s) Not six months' notice; see Adams Ej. 3rd ed., 128; Johnstone v. Huddlestone, 4 B. & C. 932. Notice on 28th Sept. to quit 25th March, good; Roe v. Doe, 6 Bing. 574; 4 M. & P. 391, S. C.