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The Annotations are prepared by the following Erlitors and Assistants :
Department of PRACTICE, PLEADING and Evidence.
Ilon: Girorge M. Dallas, P.ditor. Assistants : Ardemus Stewart,

Henry .. Smaltz, John A. McCarthy, William Sanderson Furst.
Department of CuratoTUTIOSAL LAW.
Prof. Christopher fi, Tiedeman, Editor. Assistants : Wm. Draper

Louis, W'm. Struthers Ellis. Department of MUNICIPAL CORPORATIONS. Hon. John F. Dillon, IL. D., Editor. Assistant : Mayne R. Long

streth. Department of liquity. Richard C. Memurtrir, LL. D., Editor. Assistants : Sydney G.

Fisher, Jolin Douglass Brown, Jr., Robert P. Bradford. Department of Torts.

Melville J. Bigelow, Fist., Editor. Assistants : Benjamin H.


Angelo T. Freedley. Esq., Editor. Assistants : Lewis Lawrence

Smith, Clinton Rogers Woodruff, llaurice G. Belknap, H.

Borce Scherincrhorn. Department of CARRIERS AND TRANSPORTATION COMPANIES. (harles F. Beach, Jr., Esq., Editor. Assistants : Lawrence God.

kin, Owca Wister, Victor Leovy, Cyrus E. Woods. Department of ADMIRALTY.

Morton P. Henry, Esq., Editor. Assistant : Horace L. Cheyney. Department of COMMERCIAL LAW.

Frank P. Prichard, Esq., Editor. Assistants : H. Gordon Mc

Couch, Chas. C. Binncy, Chas. C. Townsend, Francis H.

Bohlen, Oliver Boyce Judson. Department of Ix-CRANCE. George Richards, Esq., Eilitor. Assistants: George Wharton

Pepper, Luther E. Hewitt, Samuel Kabo Loucheim. Department of CivisaL LAW AND CRIMINAL PRACTICE. Prof. Geo. S. Giraham, Editor. Assistants : E. Clinton Rhoads

C. Percy Wilcox. Department of Patent Law.

George Harding, Esq., Editor. Assistant : Hector T. Fenton. Department of PROPERTY. Hon. Clement B. Penrose, Editor. Assistants: Alfred Roland

Haig, Wm. A. Davis, Jos. T. Taylor. Department of MEDICAI. JURISPRUDENCE. Hon. Marsball D. Ewell, LL. D., Editor. Assistants : Thomas

E. D. Bradley, Milton 0. Naramore. Department of Wilis, EXECUTORS AND ADMINISTRATORS. Ilon. Wm. X. dshman, Editor. Assistants : Howard W. Page,

Charles Wilfred Conrad, Joseph Howard Rhoads, William

Henry Loyd, Jr., Edward Brooks, Jr. Department of TRUSTS AND COMBINATIONS is RESTRAINT OF TRADE. H. La Barre Jayne, Esq., Editor. Assistants: George S. Patterson,

Charles F. Eggleston,



Assisted by


Lease-- Warranty as lo Condition of Ilouse. Where one leases a house and lot or ground for a term of years, there is no implied warranty on the part of the lessor, that the house is habit. able, and fit to dwell in, even though the situation of the house is such that it could not be used for anything else than a dwelling house ; and an affidavit of defence to an action for rent, which makes only this deferice, is insufficient. IMPLIED WARRANTIES IX , LEASE. HABITAHLK CONDITION,

Dwering Hou'sr. The almove case finally settles the Wilson, i Crum. (Pa.) 303 ; Hazlett law in Pennsylvania on the ques 7. Powell, 6 Casey, 297. As we tion involveri, is, indeed, it had shall sce, is in accordance with not been practically settled by pre the general drift of authority in vious decisions, scc infra. Habitable the United States. It is not, howcondition is not implial in the lease ever, on the exact point involved. of a dwelling house. d. may rent a as the law or England. We will first house from B. for five years, and trace the English authorities on the day after find it uninhabitable the subject. hoy reason of its faulty construc. As long ago as 1811, Lori MAXSrion, yel A. has to pay the rent for FIXID (lecided the case of Baker ?". the term. The rule carcal emp Holt pratsell, 4 Tuunt, 44. This was for applies. There is no escape, an action for rent. The premises because there is no implied war. in question had been let for one ranty that the house was habitable. year. Shortly after the first quarThis is in accordance with the pre ter's rent had been paid, the house vious trend of lecisions in the was burnt down. It was held that State : See Wheeler 1'. Crawlori, 86 the tenant had to pay the rent for

The opinion of Judge the remainder of the term. The WOODWARD, in Carson v. Godley, ground, on which Lord MANSFIELD 26 Pa. 117; Moore v. Weber, put the decision, was one peculiar 71 PR. 429, page 432; Barng v. to the common law. The civil law

Pa. 327.

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Weile have lexkel at the least as favor of the tenant. He had leased

b suul for the cominon law rule. a contract. Doing so, the question The burning of the house is the Would be necessarily decided in fault of neither party to the con

tract. It is as fair that it should a particular thing. i. c., a house, fall on the tenant as on the landand the house, the subject matter lord. Had equity interfered, it of the contract, had disappeared. might have divided the loss, reThe coutract was necessarily ter quiring the tenant to pay half the minated. But Lord MANSFIELD rent. alvanced at the question from the As we have stil, the decision in Sandpoint of the English law of this first English case is undoubtreal property. What was rented edly still law on the point involved was not the house but the land. both in England and America. "The land," he says. “is still in Where, however, the preinises beexistence, and there was yo offer

come uninhabitable, through a deou the part of the defendant to de

fece existing at the time of the liver it up. The landloril could

lease, the English lecisions cannot not enter to rebuild." While

be made to agree with the reason. Judge HEATH adıls, on this last

ing of Luril MANSFIELD or with point, "the defendant miglit have

the Pennsylvania case. rebuilt at any period of the term, In 1825, the case of Ellwarıls a'. whereas the landlord would have Etherington, Ry. & Moody, 11, 268, been a trespasser, if he entered for

came up for decision. It appeared that punxene." This was good that the walls of the house, for logic from the point of view laken, rent of which the action but the alssurlity or telling the ten broughi, were iu a dilapidated conant, who was liable to lxe turned out

dition. The defendant, who had within a twelfth montii, that because occupied the house as tenant from he could build a new house for the

year to year, finding that the benefit of his landlord and, there. house was unsafe, left it. The fure, must pay rent, is evident.

landlord did not accept a release It is said by Justice HEATH that the for some time. The question incase haul often ben decirle before volveel was wliether the landlord at nisi prius, though this is the could demand rent from the tinie first reporter decision. The eles

the defendant had quitted the senlant evidently knew his case preniis's to the late when he had was hopeless, for he had appealed finally agreeil to accept them from for relief to Loril E1ION (Holtp the tenant. Lord Chief Justice zaffell z'. Baker, 18 Ves. 116). But un ABHOTT charge the jury that it like the life tenant in possession, was for them to say whether such the lessee is not a favorite with the

serious reasons for quitting existed Chancellor, so the bill was dis

in the case, as would exempt the missed.

defenılant from the demand on the The law of this country, unlike ground of his having no beneficial the English law, except where use and occupalion of the premaltered by statute as in Ohio and ises ; and that, through no fault of Illinois, has followed this leading his own, but through the fault of

the plaintiff, who ought to have Aller all, there is something to taken care that the premises should




have been in such a state as to con ment, is material. In any case, tinue useful to the defendant, the the tenunt is bound to pay rent house becamic unfit for use.


during the time for which he has verdict was for the defendant. contracteil, unless he satisfies the

l'som the first of the report of jury that, under the circumstances, this case, there is no way in which he was justified in quitting. I it can be reconciled with the prin- think, however, that in point of ciple cruciated in Baker law lie will be free from liis obHoltpzaffell, Iord Chief Justice ligation to reside on the premises, ARBOTT seeins to allvance towards ir lie makes out, to the satisfaction the question from an entirely dir. of the jury, that the premises were ferent standpoint than that taken noxious and wholesome to reby Lori MAXSILD. He looks side in, and that this state arose at the lease as he would at a con from no iesault or neglect of his tract for goods and chattels, and own, but from

something over asks whether there has been any which lie laid no control, except at hencficial use and enjoyınent by an extravagant and unreasonable the tenant. In his mind, the bene expense." The lionsc in aliis case ficial use amol enjoyment was the was practically uninhabitable until essence of the contract. In Lord a sewer was built, and the court MASSED:ld's mind, the question held that the tenant was not bound seems to have been simple whether to build a sewer, and is the landthe tenia:at had been given control lord dill not build it, the tenant of a certain ponion of the carth's coulil irove out and terminate the su:face, the fact that the lease lease. In the subsequent case of scally contemplated the occupation Arilen 7. Pullen, so M. & W. 321, of a house being left out of consid it is intimate that the report of eration.

the case of Collins t. Barrow is The next case, that of Collins i'. not complete, and that it is possiRarrow (1831), 1 M. & R. 112, de ble there existed an express stipuparts, if anything, still farther from lation on the part of the landlord the case of Baker ?'. Holtpzaffell. that he would build a sewer. From There the defendant took the the whole opinion, however, of house, the rent or which was in Raron BATRY, it is evident that question, under a written agreement this express stipulation was not hy which lie was to occupy for necessary for his decision. He three years and to keep the prem. took the point of view, which had ises in a tenantable condition. He been taken by Lord Chier Justice had, in fact, quited the premises ABBOTT, and which was the point without notice at the expiration of of view of the civil and not of the the first six months. The defen common law. Had the rest of the dant said that the house was unfit English judges advanced at the for habitation for want of sufficient question from the same standpoint, drainage, whereby it becamie un they would have soon expressly wholesome, noisome and offensive. overruled the earlier decision in Baron BAILEY, in his decision Taunton, but Lord ABINGER, in resnarked: "I do not see that the later case of Arden v. Pullen, the fact of the tenancy in this 10 M. & W. 321, returned to the case, being under a written agree. common law rule.

The declaration in that case the plaintiff, the contract for let. stated that on the 25th of March, ting the liouse was perfectly good, 1839. by an agreement mailc and implied no warranty that the between the plaintiff and defen- premises were in a good condition ; dant, the plaintiff agreed to let, that the landlor, under the lease, and the delendant agreed to take had only one obligation to perform, of the plaintiff, for the term of to wit : not to disturb the quiet three years, from the 25th of De possession of the tenant during the cember, 1839, a house and premises term. The allegation in the plea, at the yearly rent of thirty pounds, he assertel, would not be good, payable quarterly, and the defen had it not contained the assertion dant, among other things, agreed that the defects in the house arose with the plaintiff that he, the de through the fault of the plaintiff. fendant, would keep the said As this allegation could not be premises in as goori repair and con proved by the defendant, the real dition as the same then were, and question was, whether, when a would so leave the same on the house turns out to be uninbabit. termination of the said Icase, fair able, the landlord is bound to rewear and tear excepter. The

pair it.

“I think," says Lord breach set out was that the defen ABINGER," that without some exdant had not paid the two quar press stipulations he is under no ter's rent, which became due on such obligation."

the 25th of March, 1842. The ex Baron ALDERSOx was of the same cuse of the defendants in their view in his opinion, he cites the plea was that the said house and case of Iron a'. Gorton, 5 Bing. N. premises, by means and in conse C. Sol (1839). The case follows quence of age and natural decay, Baker. '. Hol:pznffell, the circumanl the balness of the material stances presenting exactly the same thereof, and the bad and improper question, the premises for the rent manner, in which thcy were orig. of which the suit was brought inally built, and the rotten found having been consumed by fire. The rous miry and unsafe state and peculiar circumstances of this last condition of the walls, timbers suit, however, bring out very forci. and foundations thereof, and for bly the absurdity of the English reawant of good and sufficient sewerage son, for the Lord MANSFIELD had and drainage, etc., that the prem decided the case Ixefore him on the ises were in a ruinous, bad, and un. ground that the landlord could not sale and dangerous condition and enter to repair without being a wholly unfit and unsafe for habi. trespasser, and that the only person tation, and that the defendant had who had a power to repair was the requested the plaintiff to put the tenant. lo Izon . Gorton the house in good condition, and he tenant occupied two upper stories refused. Counsel for the defence in a house. The landlord actually argued that the case of Collins r'. did enter and repair. A man who Bastow was in point, as it un rents so many square feet of air space doubtedly was. Lord AAINGER, fifty feet in the air, enclosed by however, took the position that, four walls of a room, is obliged to unless there was some fraud or im pay rent for the space when the proper concealment on the part of house is consumed by fire, and a

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