treatment of diseases which may be infectious. S. C. And it is sufficient that annoyance is in fact caused to the inhabitants of the neighbouring houses. S. C. A covenant not to do anything on land that may be a nuisance to the occupiers of the adjoining premises was held by Bacon, V.-C., not to have been broken by opening a national school thereon. Harrison v. Good, L. R., 11 Eq. 338. See, however, the observations of the C. A. thereon in Tod-Heatley v. Benham, ante, p. 698.

As to waiver by plaintiff of his right to an injunction, by his acquiescence in breaches of similar covenants by tenants of other plots on the same estate, see Peek v. Matthews, L. R., 3 Eq. 515; German v. Chapman, ante, p. 698.

Breach of covenants for good husbandry, &c.] The proof of any act which, according to the natural and ordinary meaning of their words, is forbidden by these covenants, will entitle the plaintiff to a verdict. If the breach allege that the defendant did not use the farm in a husbandlike manner, but, on the contrary, committed waste," the plaintiff is bound to prove waste. Harris v. Mantle, 3 T. R. 307. See post, p. 709, and Edge v. Pemberton, 12 M. & W. 187, cited post, p. 703. Where the breach is for bad husbandry, and the particulars delivered rely on non-cultivation, the plaintiff cannot show mere bad cultivation. Doe d. Winnall v. Broad, 2 M. & Gr. 523. But in such cases as these, the judge would probably now amend the breach or the particulars. A judge, however, will not amend as of course, if the amendment will only entitle to nominal damages for a breach, which defendant probably would not have contested. Times Insurance Co. v. Hawke, 28 L. J. Ex. 317. A covenant to spend on the farm all manure collected on it, extends to manure made by the cattle of strangers not fed on the farm, but turned on by a temporary licence. Hindle v. Pollitt, 6 M. & W. 529. A covenant by the tenant in a farm lease, that he would not "during the last year of the said term thereby granted, sell or remove from the said farm and lands any of the hay, straw, and fodder which should arise and grow on the said farm," extends to all hay, &c., which had grown on the land at any time during the term. Gale v. Bates, 3 H. & C. 84; 33 L. J., Ex. 235.

We have seen, ante, pp. 26, 27, that husbandry covenants may be controlled or explained by proof of custom not expressly or impliedly excluded by the covenant. See also ante, pp. 337, 338. Such customs apply to leases under seal as well as by parol. Wigglesworth v. Dallison, 1 Doug. 201; 1 Smith's Lead. Cases. But the course of pleading on covenants will sometimes require that the custom should be pleaded by the defendant, except where it is only used to explain the covenant. In a covenant to pay a penal rent for using land otherwise than for pasture or meadow, it is for the jury to say whether the use of it as a race-course was in fact incompatible with the covenant. Semb. Aldridge v. Howard, 4 M. & Gr. 921. A covenant that the tenant will when required perform each year for the landlord a certain amount of team-work, gives the landlord a right to team-work generally, and not merely for agricultural purposes. Marlborough, Dk. of v. Osborne, 5 B. & S. 67; 33 L. J., Q. B. 148.

A covenant not to sell or carry away from the demised premises any hay, straw, &c., grown or produced there, without the consent in writing of the plaintiff first had and obtained, under the increased rent of 101. for every ton so given, sold, or carried away, was held to give the tenant a right to remove hay, straw, &c., upon paying the increased rent. Legh v. Lillie, 6 H. & N. 165; 30 L. J., Ex. 25.

If a lease provide that the tenant shall not cut down nor lop trees under a penalty of 201. for each tree cut or lopped, the lessor, upon breach,

may proceed either for the penalty, or for unliquidated damages; in the latter case the jury are not bound to give the whole penalty. Hurst v. Hurst, 4 Exch. 571.

When there was a lease reserving yearly rent, payable on half-yearly days, and a further rent, payable on the same days, for every acre converted into tillage without licence, or planted with rape, woad, or potatoes, or from which successive crops should be taken, without summer fallows, &c., it was held that, after one breach of covenant, the increased rent attached and continued to the end of the term. Bowers v. Nixon, 12 Q. B. 558, n., affirm. in error. A covenant not to take more than two crops during four years, means any four years, and not each succeeding four years, reckoning from taking the lease. Fleming v. Snook, 5 Beav. 250. Where the grantee, H., of the right of sporting over certain lands in the occupation of R. covenanted with the grantor, W., to keep down the rabbits "so that no appreciable damage may be done to the crops thereon," it was held that W., being under no liability to compensate R. for injury done to the crops, by breach of the covenant, could only recover nominal damages therefor from H. West v. Houghton, 4 C. P. D. 197.

Breach of covenant to insure.] The covenant to insure has always been construed strictly in courts of common law. As to the onus of proof in actions for not insuring, see cases cited Onus Probandi, ante, p. 95. The covenant, however, usually provides some mode of proof, as that the lessee shall produce his policy when required. In Doe d. Darlington v. Ulph, 13 Q. B. 204, where there was a covenant "to insure at all times previously to the expiration of the term thereby granted," and the lessee did not effect an insurance till a month after the creation of the term, it was held, that, in the absence of evidence to explain this delay, the plaintiff was entitled to a verdict, and that the jury ought not to be asked whether the insurance was effected within a reasonable time. Semble, if the lessee had insured the premises shortly after the execution of the lease, he would have complied with his covenant. Id. per Pattison, J. In Price v. Worwood, 4 H. & N. 512; 28 L. J., Ex. 329, the omission to insure had been repeatedly confessed by the tenant, who excused himself by saying that he could not afford the insurance. As he appeared to be no richer at the time of issuing the writ, it was held that there was some evidence to go to the jury of the breach.

If the covenant is to insure in the name of A., it is a breach to ensure in the joint names of A. and the lessee. Penniall v. Harborne, 11 Q. B. 368. But see Havens v. Middleton, 10 Hare, 641; 22 L. J., Ch. 746.

A covenant to keep buildings insured against fire runs with the land, for the stat. 14 Geo. 3, c. 78, s. 83, enables the landlord to have the insurance money laid out in reinstating the premises, so that the covenant, with the aid of the statute, amounts to a covenants to repair. Vernon v. Smith, 5 B. & A. 1. The operation of this section has been held to be general, and not to be confined to the metropolitan district. Ex pte. Gorely, 4 D. J. & S. 477; 34 L. J., Bky. 1.

Breach of covenant to repair.] As to buildings then erected, a covenant to repair, or put in repair, or deliver up in repair, runs with land, and binds assignees though not named in it. Martyn v. Clue, 18 Q. B. 661; 22 L. J., Q. B. 147. The assignee of a lease is not liable, on a general covenant, to repair buildings erected during the term. unless assigns are named in it. Spencer's case, 5 Rep. 61; Bally v. Wells, 3 Wils. 25; Doughty v. Bowman, 11 Q. B. 444. Contra, Minshull v. Oakes, 2 H. & N. 793; 27 L. J., Ex. 194; but this case was decided on a misapprehension of Spencer's case (see notes thereto in 1 Smith's Lead. Cas., 9th ed. 80 et seq.),

and has been much disapproved. In Cornish v. Cleife, 3 H. & C. 446; 34 L. J., Ex. 19, a covenant, in a demise of three houses and a field, “well and sufficiently to repair, sustain and keep the said tenements or dwellinghouses, field or plot of ground and premises, and every part thereof, as well in houses, buildings," &c., during the term, was held not to extend to houses erected during the term in the field. This case agrees with the ruling in Doe d. Worcester School, &c. Trustees v. Rowlands, 9 C. & P. 734; but is clearly inconsistent with the decision in Brown v. Blunden, Skin. 121; and the opinions of the judges expressed in Darcy v. Ashwith, Hob. 234; and Dowse v. Earle, 3 Lev. 265; S. C., sub nom. Dowse v. Call, 2 Vent. 128, cited in Bac. Abr. Covenant (F).

A covenant to keep a house in repair is satisfied by keeping it in substantial repair according to the nature of the building; and with a view to determine the sufficiency of the repair, the jury may inquire whether the house was new or old at the time of the demise. Stanley v. Towgood, 3 N. C. 4; accord. Mantz v. Goring, 4 N. C. 451. It has been said that such a covenant did not mean that the house should be delivered up in an improved state, or that the consequences of the elements should be averted; but the tenant has the duty of keeping the house in the state in which it was at the time of the demise, by the timely expenditure of money and care; Gutteridge v. Munyard, 1 M. & Rob. 334; and that accordingly on an issue as to the amount of damages for not keeping in repair, the bad state of the premises when demised was legitimate evidence for the defendant. Burdett v. Withers, 7 Ad. & E. 136. See also Walker v. Hatton, 10 M. & W. 249; Martyn v. Clue, 18 Q. B. 661, 674. But in Payne v. Haine, 16 M. & W. 541, a tenant under such covenant was held bound to put in repair, though the nature of the repairs ought to be measured by the age and class of the demised premises. In Easton v. Pratt, 2 H. & C. 683; 33 L. J., Ex. 233, Ex. Ch., it was held that a lease, whereby the lessee covenanted that he wouldwell and sufficiently repair, uphold, support, paint, maintain, amend and keep" the demised premises, and the said premises "so well and sufficiently repaired," &c., at the expiration of the term surrender, was a "repairing lease," on the ground that "whatever was the state of the premises at the time of the demise, the tenant would be bound under this covenant to put the premises into, and keep the premises in, a state of good and sufficient repair. Payne v. Haine (supra) is an authority on this point; "33 L. J., Ex. 235; the report in 2 H. & C. 687 is to the same effect. Accord. Saner v. Bilton, 7 Ch. D. 815; Truscott v. Diamond Rock Boring Co., 20 Ch. D. 251, C. A. See also Inglis v. Buttery, 3 Ap. Ca. 552, D. P. But the tenant under such a covenant is liable for repairs only, and not for the extra expense of laying a new floor on an improved plan, or the like. Soward v. Leggatt, 7 C. & P. 613. And a lessee under a covenant to put in repair, or to keep in repair, is not bound in either case to substitute new buildings for old. Belcher v. M'Intosh, 2 M. & Rob. 186. And the result of the above cases is that an agreement to keep a house "in good tenantable repair, and so to leave the same at the expiration thereof," obliges the tenant to put and keep the premises in such "repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it." Proudfoot v. Hart, 25 Q. B. D. 42, C. A. This repair may involve re-papering and re-painting, but, semble, not regilding. S.C. Where the covenant is to keep and leave the house in as good a plight as it was in at the time of the making of the lease, it is said that ordinary and natural decay is no breach of the covenant, and that the covenantor is only bound to do his best to keep it in the same plight, and therefore

to keep it covered, &c.; Fitz. Ab. Cov. 4; Shep. Touch. 169; Johnson v. S. Peter, Hereford, 4 Ad. & E. 520. The lessee, under the covenants to repair, is not bound to reinstate the house, which was altered by him before the lease was executed, though since the date fixed by the habendum for the beginning of the term. Shaw v. Kay, 1 Exch. 412.

On a covenant to repair, it is not sufficient evidence of a breach to show that the house has been thrown down by a tempest, unless the covenantor has not repaired within a reasonable time after. Shep. Touch. 173. Where the defendant pleads that he was always ready to repair, but a reasonable time had not elapsed, and issue is taken thereon, proof that the defendant absolutely refused to repair entitles the plaintiff to a verdict. Green v. Eales, 2 Q. B. 225. Where the damage was alleged to be occasioned by the defendant's neglect to repair and "from no other cause," it was held sufficient to show that the premises became insecure by the removal of an adjoining wall by a third party, and that the defendant did not set about the repair in time to prevent the mischief consequent on such removal. S. C. If the lessee were bound to repair and leave the house in the same plight as he found it, and it were burnt by sparks from the chimney of the lessor's house near, it was held that the lessee was excused from rebuilding, for this came by the act of the lessor himself. 1 Rol. Ab. 454, pl. 8.

Where the premises have passed through successive hands, it is sometimes not easy to prove in whose hands the want of repair occurred, and each assignee is liable to the lessor for his own default only. But where the plaintiff, a lessee under covenant to repair, assigned over to defendant, who assigned to B., who assigned to C., &c., and the plaintiff, being then obliged to pay damages for non-repair to the ground landlord, sued defendant for the amount, there being evidence of want of repair while in the hands of one of defendant's assignees: it was held, that the plaintiff was entitled to substantial, and not nominal, damages, without showing the exact amount of non-repair attributable to the defendant himself. Smith v. Peat, 9 Exch. 161; 23 L. J., Ex. 84. A lessee, under covenant to deliver up certain fixtures at the end of his term, on the 1st of April, remained in possession till the 10th, when possession was demanded by the lessor, and on the 13th he bought the title of a mortgagee of the lessor and refused to re-deliver: held, that the lessor was entitled only to damage for the detention of the fixtures between the 10th and 13th, and not to the full value of them. Watson v. Lane, 11 Exch. 769; 25 L. J., Ex. 101. The breach of a covenant to put premises in repair is not a continuing breach. Coward v. Gregory, L. R., 2 C. P. 153. See, however, Martyn v. Clue, 18 Q. B. 661; 22 L. J., Q. B. 147.

Where the covenant is to keep in repair during the continuance of the term, an action for the breach of the covenant may be maintained before the term has expired. Luxmore v. Robson, 1 B. & A. 584. In the case of Marriott v. Cotton, 2 Car. & K. 533, Rolfe, B., directed the jury that nominal damages only could be recovered in such an action, for the lessor (as he said) might pocket the damages and leave the premises unrepaired, and so oblige the lessee to repair them for his own convenience; but the Ct. of Q. B. held the direction wrong, and a verdict was subsequently entered for substantial damages. See Bell v. Hayden, 9 Ir. C. L. R. 301, 303, per O'Brien, J.; Smith v. Peat, ante, p. 702. The proper measure of damages is the diminution to the value of the reversion at the time of action. Doe d. Worcester School, &c. Trustees v. Rowlands, 9 C. & P. 734; Bell v. Hayden, supra; Mills v. E. London Union, L. R., 8 C. P. 79; Williams v. Williams, L. R., 9 C. P. 659. In this last case it was held that where the landlord had himself repaired the premises before action,

he could not recover more than nominal damages; sed quære. Where, however, the above-mentioned measure of damages is inapplicable, such diminution of value is not the only test; thus, the lessor may sue, though he has forfeited his reversion by the entry of the ground landlord for the breach, and the test is what will be the cost of repair. Davies v. Underwood, 2 H. & N. 570; 27 L. J., Ex. 113. This is indeed the general rule laid down by Ld. Holt in Vivian v. Champion, 2 Ld. Raym. 1125, and was approved by the court in Davies v. Underwood, supra, but was not followed in Mills v. E. London Union, ante, p. 702. See also Rawlings v. Morgan, 18 C. B., N. S. 776; 34 L. J., C. P. 185. Where an action was brought for non-repair of premises, demised by the plaintiff to the defendant, the defendant being bound to repair and insure, and the jury found that the premises, which had been burnt down, would cost 1,600/. to rebuild, and that this would exceed by 600l. the value of the old premises, if they had been repaired by the defendant before the fire, the court held that 1,000l. was the measure of damage. Yates v. Dunster, 11 Exch. 15; 24 L. J., Ex. 226. See also Russell v. Shoolbred, 29 Ch. D. 254, C. A. If a second action be brought on a covenant to keep premises in repair, the verdict recovered in the former action may be proved in mitigation of damages, but is not pleadable in bar. Coward v. Gregory, L. R., 2 C. P. 153. Where the action is brought after the expiration of the lease, the damages recoverable, are the cost of putting the premises into the state of repair contemplated by the covenant, and changes in the surrounding neighbourhood are not to be considered. Morgan v. Hardy, 17 Q. B. D. 770. See further on the measure of damages on repairing covenant, Minshull v. Oakes, 2 H. & N. 793; 27 L. J., Ex. 194; and Mayne on Damages, 3rd ed. pp. 299 et seq.

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Breaking a doorway through the wall of the demised house amounts to a breach of a covenant to keep in repair. Doe d. Vickery v. Jackson, 2 Stark. 293. A lessee covenanted to repair, uphold, support, sustain, maintain, &c., all the houses and brick walls. Pulling down a brick wall dividing the courtyard in front from another yard at the side was held a breach of the covenant. Doe d. Wetherall v. Bird, 6 C. & P. 195. But a mere covenant to repair is not broken by alterations and improvements where they are evidently contemplated by the lease; as where a private dwelling-house is demised by lease containing a covenant to repair the premises and all such buildings, improvements and additions, as should be made thereupon by the lessee. Doe d. Dalton v. Jones, 4 B. & Ad. 126; see also Doherty v. Allman, 3 Ap. Ca. 709, D. P. A covenant to deliver all "windows" then or thereafter affixed or belonging to the premises, extends to a plate-glass shop window put up by the lessee, so as to be moveable without screws, nails, or glue, and fastened only by wedges. Burt v. Haslett, 25 L. J., C. P. 201; Ex. Ch., 18 C. B. 893; 25 L. J., C. P. 295. On a covenant to repair, the breach alleged that defendant did not repair, "but on the contrary permitted the premises to be ruinous for want of repair." Held, that plaintiff must show permissive and not voluntary waste. Edge v. Pemberton, 12 M. & W. 187.

Where the lessee is obliged to repair in consequence of his lessor's refusal to do so, he cannot recover the expense of finding other premises for use during the repairs. Green v. Eales, 2 Q. B. 225. A lessee, who underlets with covenants to repair in the same terms as in his own lease, is not necessarily entitled to recover from the under-lessee the cost of an action for non-repair brought against himself; for though the covenants of the lessee and under-lessee may be in words the same, they are, in substance, different if entered into at different times. Walker v. Hatton, 10 M. & W. 249. This case was decided on the ground that a covenant to repair is to be construed with reference to the state of the premises when it began to