occupation been advantageous to the occupier, Lord Kenyon would have considered him liable although there was no privity between the parties in the character of landlord and tenant; another judge (Graham, B.) had difficulty in reconciling such a rule with Kirtland v. Pounsett, where the opinion was expressed by Mansfield, C. J. that a contract could not arise by implication of law under circumstances, the occurrence of which neither of the parties had in contemplation. Hull v. Vaughan, 6 Price 157. Notwithstanding what is said of this case in Peake's N. P. Cas. 157, note, it determines nothing more than this, that an equitable owner may maintain use and occupation under the particular circumstances there proved. 7 Adol. & El. N. S. 618.

Assuming that a defendant entered into possession under an agreement for sale which was to be carried into effect by a conveyance, Parke, B. thought there might be difficulty in saying that while that agreement existed the relation of landlord and tenant subsisted between the parties. Lord Abinger was of opinion that while the defendant occupied under a valid contract for the sale of the property to him, he could not be considered as a tenant; the parties, he said, could not convert the contract for purchase into a contract of tenancy, nor while the former was pending infer another of a different nature. Howard v. Shaw, 8 M. & W. 122. In this case Parke, B. agreed that while the agreement subsisted, the defendant was not bound to pay a compensation for the occupation of the land, because the contract shewed that he was to occupy without compensation, and so long as it subsisted, he was entitled so to occupy. And Alderson, B. was of the same opinion. He said "while the defendant was in possession under the contract of sale, he was a tenant at will, under a distinct stipulation that he should be rent free; therefore, for that time, no action for use and occupation can be brought against him.”

The real question in Howard v. Shaw was, "what is the relation of the parties when the contract of sale has gone off?” "The defendant," said Lord Abinger, "remains in possession with the consent of the landlord, but without any title to, or contract to purchase, the land itself. Under these circumstances he is a tenant at will; and if the occupation is beneficial to him that is sufficient to imply a contract to pay a reasonable sum by way of compensation for such occupation." The other judges were of the same opinion. They held that for the time that elapsed after the agreement went off, the defendant was liable to be sued for such compensation in an action for use and occupation.

Although this decision was made in 1841, it was not before the supreme court of Massachusetts when in 1842 that court passed on a question somewhat similar. There was a parol agreement to purchase a house and lot, the chief value of which was in the house; the vendee paid in advance the amount of the agreed purchase money; and by the vendor's permission, the vendee entered and took possession. In about four days—and before the contract was executed by the delivery of the deed,-the house was destroyed by fire. The vendee then recovered back the purchase money, as money paid on a consideration which had failed. Thompson v. Gould, 20 Pick. 134. Whereupon the vendor brought an action in the form of a quantum meruit for use and occupation. The court was of opinion that when the vendee entered he became tenant at will of the vendor; but that there was a determination of his will at the time of the fire, and notice thereof to the owner, and that the tenancy at will could not be extended beyond the four days, and the vendor had judgment only for four days' rent. Gould v. Thompson, 4 Metcalf 228.

In 1845 the court of queen's bench had before it the question whether one who contracts for the purchase of landed property, but is prevented from completing the purchase by the vendor's failing to make a good title, is liable to the latter in an action for use and occupation in respect of the time of his holding in the expectation that such good title would be made and the purchase completed. And the court decided that the action could not be maintained; Lord Denman saying "the defendant certainly was considered both by himself and the plaintiff as purchaser and not as tenant; and the plaintiff cannot convert him into an occupier, liable to pay for his occupation, by his own wrongful act in not completing the contract of sale." Though the defendant had occupied by the plaintiff's permission, the court thought the plaintiff could not maintain the proposition that the defendant promised to pay, when both parties understood that the defendant had made no such promise. Winterbottom v. Ingham, 7 Adol. & El. N. S. 616-620. Lord Denman remarked in this case that "parties may easily secure themselves by stipulating for the event of a non-completion of the purchase in their contract of sale and purchase."

11. Action lies against tenant for not using premises in a tenant-like manner; or for breach of contract to deliver up same in good repair.

Out of the relation of landlord and tenant there arises on

the part of a tenant an implied contract to use the leased premises in a tenant-like manner. It arises notwithstanding that in the articles of agreement there is an express stipulation to leave the premises in the same state as they were at the commencement of the tenancy. White v. Nicholson, 4 Man. & Grang. 95, 43 Eng. Com. Law Rep. 58. But it does not arise where the tenant holds under an express contract which provides for the very matter-keeping the premises in tenantable repair. Standen v. Chrismas &c. 10 Adol. & El. N. S. 135, 59 Eng. Com. Law Rep. 135.

Where a tenant agrees to keep, and at the expiration of the tenancy deliver up, the premises in good repair, the cases all shew that the age and class of the premises let, with their general condition as to repair, may be estimated, in order to measure the extent of the repairs to be done. Ferguson v. 2 Esp. 589; Harris v. Jones, 1 Mood. & Rob. 173; Gutteridge v. Munyard, Id. 334; Stanley v. 1owgood c. 3 Bingh. N. C. 4, 32 Eng. Com. Law Rep. 12; Burdett v. Withers, 7 Adol. & El. 136, 34 Eng. Com. Law Rep. 57. The same nicety of repair is not exacted for an old building as a new one. Mantz v. Goring, 4 Biugh. N. C. 451, 33 Eng. Com. Law Rep. 409. A house in one place, and of one kind, may be repaired with materials inferior to those requisite for repairing a mansion in a different place, and of a different kind. 16 M. & W. 545.

If the agreement be to put the premises into habitable repair, regard is to be had to the state in which the house was at the time of the agreement, and also to the situation, and the class of persons who are likely to inhabit, and it is to be put into a condition fit for a tenant to inhabit. Belcher &c.

v. McIntosh, 8 C. & P. 720, 34 Eng. Com. Law Rep. 601. It is no doubt, in practice, difficult to say what is a putting premises, so old as to be ready to perish, into good repair, or keeping them in it; but a contract to put premises in good repair, cannot mean to furnish new ones, when those demised were old, but to put and keep them in good tenantable repair, with reference to the purpose for which they are to be used. Alderson, B., 16 M. & W. 546.

If the agreement be to keep, and, at the expiration of the tenancy, deliver up, the premises in good repair, and they at the time of the demise are old, and in bad repair, the lessee is bound to put them in good repair as old premises; for he cannot keep them in good repair without putting them into it. Under such an agreement, he is not at liberty to say he will do no repairs, or leave the premises in bad repair, because VOL. II.-25

they were old and out of repair when he took them. He is to keep them in good repair, and in that state, with reference to their age and class, he is to deliver them up at the end of the term. Payne v. Haine, 16 M. & W. 545.

CHAPTER XXXV.

ACTION FOR PROPORTION OF GENERAL AVERAGE.

1. General rule in case of jettison. Exception of goods

stowed on deck.

The rule as to general average, is derived to us from the Rhodian law, as promulgated and adopted in the Roman jurisprudence. The Digest states it thus: If goods are thrown overboard in order to lighten a ship, the loss incurred for the good of all shall be made good by the contribution of all. Dig. lib. 14, tit. 2, c. 1; 13 Peters 338.

The French ordinance in express terms excludes from the benefit of general average, goods stowed upon the deck of the ship. Liv. 3, tit. 8, du jet., art. 13; Boulay-Paty, tom. iv., 566; Code de Commerce, art. 421. The same rule prevails in England. Abb. on Ship. 355. The law of Portugal is stated to be otherwise. Lenox v. United Ins. Co. 3 Johns. Cas. 178. In the United States the decisions have been according to the English rule; the owners of the cargo under cover are not required to contribute to the jettison of the goods on deck. S. C.; Smith &c. v. Wrights, 1 Caines's Rep. 43; Dodge v. Bartol, 5 Greenl. 286; Brig Thaddeus, 4 Mart. Louis. Rep. 582; Barber v. Bruce, 5 Conn. 9; 3 Kent's Com. 240. They increase the danger of the navigation, and are taken on board under an implied agreement that they shall be sacrificed if it be necessary to eject. 1 Caines's Rep. 43, note; Valin. Tom. 2, p. 203. There is, says Allen, J., good reason for the rule. "With the loading under hatches, and the decks clear, so that proper exertions could be made for her safety, the vessel would ride out a storm securely, which, with her decks encumbered with loading, would endanger her safety." Doane &c. v. Keating, 12 Leigh 402.

In France there is an exception, under which it is said, contribution may be claimed for goods thrown overboard from the deck of small coasting vessels, or river craft, which usu

ally carry a part of their cargoes on deck. Valin. Tom. 2, p. 205. No such exception has been admitted in respect to the coasting trade of England or of the United States. The kind of lading and navigation in which the exception is allowed in France, differs essentially from the lading and navigation of our coasting trade. In the former the instances put. by Valin are of a very limited navigation between ports in the immediate neighbourhood of each other, and where it was scarcely necessary to venture into the open sea: no distinction is made in the freight, and the master, under the usage, has the discretion to put any part of the lading on deck which he thinks proper, without special contract, and without incurring any responsibility for so doing. Our coasting trade extends hundreds of miles in the main ocean, and is exposed to sea risks; and the master is only authorized to load on deck by special contract with the shipper. Allen and Stanard, J's, S. C. 402, 405.

2. Rule as to jettison of goods not on deck illustrates a more general principle, that all for whose benefit a sacrifice is made, should contribute to pay for it. When the voluntary stranding of a ship comes within the principle.

That the case of jettison put in the Digest, (lib. 14, tit. 2, c. 1,) was here understood to be put as a mere illustration of a more general principle, Mr. Justice Story thinks is abundantly clear from the context of the Roman law, where a ransom paid to pirates to redeem the ship is declared to be governed by the same rule. Dig. lib. 14, tit. 2, c. 2, § 3. The same rule, he remarks, was applied to the case of cutting away or throwing overboard of the masts or other tackle of the ship to avert the impending calamity, Dig. lib. 14, tit. 2, c. 3, c. 5, § 2; and the incidental damage occasioned thereby to other things, 13 Peters 338.

There may properly be brought into general average a cable, mast or boat cut away for the benefit of the cargo, as well as the ship. Berkley &c. v. Presgrave, 1 East 220; Lenox v. United Ins. Co. 3 Johns. Cas. 179; Maggrath v. Church, 1 Caines's Rep. 215. And where in the act of sacrificing the mast, or as a necessary consequence, corn was damaged, such damage to the corn was included in a general contribution. S. C.

The principle is, that all ordinary loss and damage sustained by the ship must be borne by the ship owners; but if upon a particular emergency articles are used or expenses incurred for the general benefit of all the parties interested in ship,