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No. 3. — Hart v. Windsor, 12 Mees. & Wels. 70, 71.

notice or knowledge thereof; and the defendant afterwards, and after he so entered and became possessed of the said messuage or tenement, and before the said sum of £12 10s., or any part thereof, became due or payable, to wit, on the 25th of June, 1843, discovered and first had notice of the said state and condition of the said messuage or tenement, and of the same being so infested, swarmed, and overrun with bugs as aforesaid; and thereupon the defendant upon such discovery and notice, and before the said sum of £12 10s., or any part thereof, became due or payable, to wit, on the day and year last aforesaid, quitted, vacated, and abandoned the possession, and wholly ceased and abstained from all further occupation or possession of the said messuage or tenement and premises so demised as aforesaid, and then gave notice of the premises to the plaintiff of the defendant's having so quitted, vacated, and abandoned the possession of the said messuage or tenement and premises, and suffered and permitted him to take and have and retain, and he could and might have taken and retained, possession of the said messuage or tenement and premises; and the defendant from thence hitherto hath ceased all further possession, use, or occupation of the said messuage or tenement and premises, and not derived any benefit therefrom and that at and from the time of the commencement of the said term, until the time of his so quitting, vacating, and abandoning possession of the said * messuage or tenement and premises, and [* 71] ceasing all further occupation thereof, he had no beneficial use or occupation whatever of the same. Verification.

Thirdly, that he was induced and persuaded to make, and did make and enter into the said agreement and promise in the said declaration mentioned, by the fraud, covin, and misrepresentation of the plaintiff and others in collusion with him. Verification.

Replication to the second plea, de injuria; and to the third, that the defendant was not induced to make, and did not make or enter into the said agreement by the fraud, covin, or misrepresentation in the plea mentioned.

The cause was tried before ROLFE, B., at the sittings in Hilary Term, 1844, when, the facts alleged in the second plea having been fully proved, a verdict was found for the defendant on the issue raised by that plea. C. G. Addison, on a subsequent day in the same term, obtained a rule for judgment non obstante veredicto, on the ground that the facts stated in the plea were no answer to the action. Against which rule

No. 3. — Hart v. Windsor, 12 Mees. & Wels. 71-75.

Watson and Humfrey showed cause (Feb. 10, 1844). ... [72] The law on the subject of implied warranty in the case of

specific chattels is thus laid down by PARKE, B., in Sutton v. Temple, 17 M. & W. p. 64: “One class of cases is, where the agreement is for a specific chattel in its then state, as in Parkinson v. Lee, 2 East, 314 (6 R. R. 429): there there is no implied warranty of its fitness or merchantable quality. Another class of cases is, where a person is employed to make a specific chattel: there the law implies a contract on his part that it shall be fit for the purpose for which it is ordinarily used; and there is an inter

mediate class of cases, where goods are ordered for a specific (* 73] purpose, from a person in a * particular department of trade,

in which case, also, Brown v. Edgington, 2 Man. & Gr. 279; 2 Scott, N. R. 496, is an authority for saying there is an implied undertaking that they shall be fit for that specific purpose.” Bridge v. Wain, 1 Stark. 504 (18 R. R. 815), and Shepherd v. Kain, 5 B. & Ald. 240 (24 R. R. 344), are also authorities in support of that view of the law. Warranties of this nature run through the whole law of this country. If I insure a ship from London to Calcutta, there is an implied warranty that she is seaworthy, and fit for the intended voyage. So in a contract between landlord and tenant on the letting of premises, there is an implied warranty that the tenant will keep the premises in repair: or in the case of a farming lease, that he will manage the farm according to the custom of the country. There is a variety of other cases stated in Com. Dig., Condition in Law (R). There is no sound distinction in this respect between real and personal property. The law is the same on the sale of a chattel and the letting of real property; and if I let a house for the purpose of habitation, it is implied that I warrant that it is fit for that purpose. The nearest case to the present is that of Smith v. Marrable, and there it was expressly held to be an implied condition in the

letting of a house, that it should be reasonably fit for habi[* 75] tation. . . . In * Sutton v. Temple, 12 M. & W. p. 64, it

was attempted to distinguish the case of Smith v. Marrable on the ground that there the demise was of a furnished house,

1 11 M. & W.5, 12 L. J. Ex. 223. That B., and Gurner, B., from which it did was the case of a furnished house let for not appear that the house being furnished five or six weeks. In the above argument made any difference. Lord ABINGER, reliance was placed on the judgment of C. B., however put his judgment expressly Parke, B., concurred in by ALDERSON, on that ground. R. C.

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No. 3. — Hart v. Windsor, 12 Mees. & Wels. 75-77.

and therefore it was not merely a contract relating to the realty, but a mixed contract, relating both to the house and the personal chattels of which the furniture was composed. But Edwards v. Etherington, Ry. & M. 268; 7 D. & R. 117, and Collins v. Barrow, 1 M. & Rob. 112, were not cases of furnished houses; nor was the furniture mentioned in the agreement in Smith v. Marrable, or the case put upon that ground; and it is difficult to see any sound distinction in this respect between a house being furnished or unfurnished. If, however, there is such a distinction, the agreement in this case was that the defendant was to have the use of the fixtures, which would bring this case within the same principle. Cases may be cited where a tenant has been held liable for the rent of a house which has been destroyed by fire; but those cases have no application, as they must be understood to be cases where the fire has occurred after the commencement of the tenancy.

But, secondly, it will be said that here there is a [76] covenant by the defendant “ to preserve the messuage * and [* 77] premises in tenantable repair and condition," and that the defendant therefore took upon himself to remove the nuisance, and to render the house habitable. But there is no covenant to put the premises in repair; the covenant is only to preserve or keep in tenantable repair: which imports that the premises were, at the time of the demise, in a tenantable condition. Such a covenant would not impose on the tenant the duty of removing such a nuisance, existing at the time of the demise. In actions for non-repair, the state of the premises at the time of the demise is a material circumstance to be taken into consideration. Burdett v. Withers, 7 Ad. & Ell. 136; 2 Nev. & P. 122 (p. 476, post); Mantz v. Goring, 4 Bing. N. C. 451; 6 Scott, 277; nom. Young v. Mantz. [PARKE, B. Those cases establish that the age and general condition of the house, at the commencement of the tenancy, is to be taken into consideration; and a tenant who enters upon an old house would not be bound to leave it in the same state as if it were a new one. Stanley v. Tvogood, 3 Bing. N. C. 4; 3 Scott, 313]. The words“ to preserve in tenantable repair " necessarily import that the premises are in tenantable repair at the instant of letting them. The word “ preserve” can only mean that the tenant is to keep the premises in the same condition as they are given to him. In Coe v. Clay, 5 Bing. 440; 3 M. & P. 57, it was held

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No. 3. - Hart v. Windsor, 12 Mees. & Wels. 77, 78.

that he who lets agrees to give possession. Now, that is a condition which is not expressed, but is implied, because the tenant is to occupy the premises. So here there is an implied warranty that the house is fit for habitation. This case, then, is not distinguishable from Smith v. Marrable ; for there is no distinction in this respect between a furnished and an unfurnished house. The habitableness of a house is a question of fact for the jury, and here they must be taken to have found that the house was in such

a state and condition as to be quite unfit for habitation, [* 78] and that without any default or omission on the part * of

the defendant. The plea is, therefore, a good answer to the action. — They also referred to Neale v. Mackenzie, 1 M. & W. 747.

C. G. Addison, in support of the rule. — The plaintiff is entitled to succeed on several grounds: First, even supposing there be such an implied undertaking on the part of the lessor as that contended for, this plea is no answer to the action. The declaration is founded on a demise of a house and garden ground, into which it alleges the defendant entered, and became and was possessed, until the rent became due; but the plea passes by the demise of the land altogether, and professes to answer the action only in respect of a nuisance to the house; and the plaintiff, upon this ground alone, is entitled to judgment, on the authority of Richards Le Taverner's case, Dyer, 56 (a), pl. 15, where it is said, that“ if the sea gain upon part of the land demised, or part be burned with wild fire, the entire rent shall issue out of the remainder.” But all the old authorities (whatever may be the effect of the modern cases of Edwards v. Etherington, Collins v. Barrow, and Salisbury v. Marshall, 4 C. & P. 65, which were all actions for use and occupation, and not for the rent) are clear to the point, that the rent reserved on a demise issues out of the land, and is payable in every event, and in every state and condition of the demised premises; for although houses be burned by lightning, or accidental fire, or be thrown down by enemies, and although crops be destroyed by inundation or tempest, yet is the tenant liable to pay the rent so long as the land remains to him, the only answer in law to an action of rent to recover it being an eviction by title paramount. [PARKE, B. Or an eviction by the lessor. ] Yes; an eviction by the lessor, or any person claiming by lawful title. Besides, the tenant has not pleaded an evic

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tion, but states that he quitted the demised premises of * his own accord. In Paradine v. Jane (23 Car. I.), Sty. [* 79] 47; Aleyn, 27, the defendant pleaded, that Prince Rupert and an army of aliens entered upon the demised premises, and did drive away the defendant's cattle, and expelled him from the lands let to him by the plaintiff, and kept him out, so that he could not enjoy the lands during the term; and it was holden that the plea was insufficient, and that the defendant must pay his rent; for where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract, and the rent is a duty created by the parties upon the reservation. And another reason is added, that as the lessee is to have the advantage of casual profits, so he must run the hazard of casual losses, and not lay the burthen of them on his lessor. So, in the case of Harrison v. Lord North, 1 Ch. Ca. 84, where the Parliament, during the civil wars, turned a house into a hospital for sick and maimed soldiers, and so prevented the lessee from having any beneficial occupation thereof for several years, notwithstanding which the lessor brought an action of debt for the rent, no question appears to have been made but that the lessee was bound by law to make good the rent. The lessee consequently brought his bill in equity for relief, on the ground that he had no remedy over against the wrongdoers, because it was an act of force in the Parliament, which had been pardoned by the Act of Oblivion; but it does not appear that he got relief even in equity. So, again, in Carter v. Cummins, cited i Ch. Ca. 84, where Carter, being the tenant of a wharf, which was carried away by an extraordinary high tide of the river Thames, filed a bill in equity to be relieved against the lessor's claim for rent, all the relief he had was against the penalty of his bond, which had been broken by the non-payment of the rent, and the lessor was ordered to * bring debt only for the rent. [* 80] In Brooke's Abr." Dette," fol. 220, pl. 18, it appears that, to an action of debt for rent, the tenant pleaded, that, by the custom of London, the landlord was bound to repair and uphold the house sufficiently for habitation; and that before the rent accrued due, the house became so ruinous, by reason of a tempest, that the defendant could not abide in it, and the defendant thereupon requested the landlord to amend the house, and he would not,

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