whereupon the defendant left the house; and it was held, that this was no plea, and constituted no answer in law to the demand for the rent. So, where the lessor is bound by covenant to repair, and does not, the lessee cannot avail himself of the landlord's neglect, as an answer to an action of debt for the rent. Bro. Abr. * Dette," pl. 72. In Monk v. Cooper, 2 Stra. 763, an action of covenant was brought for non-payment of rent, and the defendant craved oyer of the lease, in which there was a covenant on the part of the lessee to repair, except the premises should be demolished by fire, and then pleaded that the premises were burnt down, and not rebuilt by the plaintiff during the whole term for which the rent was demanded, and that defendant had no enjoyment of the premises; it was held, on demurrer, that the plea was bad; and the Court said, that if the defendant had sustained any injury, he would have his remedy, but could not set it off against the demand for rent. And in Pindar v. Ainsley, cited, 1 T. R. 312 (p. 438, ante), Lord MANSFIELD observes, that "the consequence of the house being burned down, is, that the landlord is not obliged to rebuild, but the tenant is obliged to pay the rent during the whole term." Belfour v. Weston, 1 T. R. 310 (p. 436, ante), where there was a covenant to pay rent, and a covenant to repair, with an express exception of casualties by fire in the latter covenant. In the case

The same point was decided in

of Arden v. Pullen, 10 M. & W. 321, the house became [* 81] * uninhabitable, and utterly useless to the tenant, by reason of original defects in the foundations, and it was held that the tenant could not, in consequence thereof, throw up the house, and refuse to pay rent. "The tenant ought," observes ALDERSON, B., to examine the house before he takes it." The principle to be deduced from these cases is, that the rent issues out of the land, without reference to the condition of the buildings or structures upon it; and though the buildings may be destroyed or become uninhabitable, the lessee is nevertheless bound to pay his rent. The plea, moreover, in this case, does not show a permanent and incurable obstruction to the beneficial enjoyment of the demised premises, which could not have been got rid of. Floods and inundations frequently render houses temporarily uninhabitable, but such accidents have never been supposed to constitute an answer to a demand for the rent. Even where lands are permanently covered with water, the lessee is not excused, as appears

No. 3.Hart v. Windsor, 12 Mees. & Wels. 81, 82.

But this aver

A house withtenant. There

by Rolle's Abr., p. 236, where it is said, in such a case, that, “le soile remaine, et le lessee avera le pisce en le eue." But it may be said that these accidents, rendering the demised premises untenantable and useless, occurred subsequently to the demise, and do not, therefore, conclusively show that there is no implied. condition, on the demise of a house for habitation, that it is in a tenantable state at the time of such demise. The plea here alleges that, at the time when the lease was made, and at the time when the defendant entered into and became possessed of the demised. premises, the said messuage or tenement was not in a reasonably fit and proper state or condition for habitation. ment is perfectly true of every unfurnished house. out furniture is not fit for the habitation of a cannot, therefore, be any such implied contract or undertaking as that contended for on the demise of a house simply. The landlord lets the mere fabric of the house, without grates or stoves, or any article of * furniture, and it is the duty of [* 82] the tenant to put the house in a habitable condition, unless, indeed, he has contracted for a ready-furnished house, in which case, according to Smith v. Marrable, the house is taken under an implied condition that it is properly furnished, and fit for occupation. If the lessor furnishes the house, and by so doing holds. it out as fit for immediate occupation, and secures to himself a greatly increased rent in consequence, that is a very different case. As to the arguments drawn from the cases of implied warranties of chattels, those cases rest upon peculiar grounds, and do not apply to the present case. The only warranty known to the law, on demises of realty, is a warranty of the estate or term of years created in the land; there is no warranty as to the particular state or condition of the premises at the time of the demise. Garranter signifie a defendre son tenant en sa siesin: " Britton fol. 197, b. "Nihil aliud est quam defendere et acquietare tenentem in siesinâ suâ:" Bracton, lib. 5, fol. 480. And so long as the estate created in the land remains, the lessee is bound to pay the rent, whatever may be the particular state or condition of the demised premises. There are several cases in the Year Books, where it became a question, whether, if a man made a lease of a house and other tenements, and, at the time of the demise, the house was so ruinous and in decay as to be in danger of falling, the termor had authority in law to cut down timber to repair it or

not: 5 Ed. IV., Longo Quinto, 100 b. fol. 9; 32 Hen. VIII., fol. 1; Dyer, 36 a. and b. These cases could not have arisen, if the law implied on the demise of the house such a warranty as that contended for. But it is notorious that ruinous and untenantable houses are constantly let to tenants at reduced rents, in order that they themselves may repair them, and re-edify them for their own profit and advantage.

[* 83]

* But, even supposing such an implied contract or warranty to exist, the nuisance here complained of forms no answer to the demand for the rent, but must be made the subject of a cross-action against the lessor. It is a clear proposition of law, that if the defendant has derived any benefit from the contract, he is bound to fulfil his part of the engagement, and is driven to his cross-action in respect of the default of the other contracting party. [PARKE, B. That is so.] Here, then, it appears by the plea, that the defendant entered into and became possessed of the demised premises as in the declaration mentioned, which is a benefit to the defendant: Hunt v. Silk, 5 East, 449 (2 Smith, 15; 7 R. R. 739), Havelock v. Geddes, 10 East, 555 (10 R. R. 380). But the main point in the present case is, that there is no such implied warranty as that contended for. This is not an action for use and occupation (see 2 H. Bl. 323, 3 R. R. 387), as were Edwards v. Etherington, Collins v. Barrow, and Salisbury v. Marshall, but an action of debt on the implied covenant in law, arising out of the reservation of the rent made on the creation of the estate granted in the land: Holder v. Taylor, Hob. 12, Gilb. on Rents, 33, Nokes's case, 4 Co. Rep. 80 b., Bacon's Abr., " Leases," 633; and so long as that estate remains, the rent is payable, whatever may be the condition of the demised premises.

The judgment of the Court was now delivered by

PARKE, B. This was a case very fully and ably argued a few days ago, upon showing cause against a rule for judgment non obstante veredicto. The declaration is not for use and occupa tion, but on an agreement in the nature of a lease. [His Lordship here read the declaration and the second plea.] The question is, whether the plea contains substantially a good answer to [*84] the plaintiff's claim for a quarter's rent, becoming due after the defendant quitted.

On the part of the plaintiff, it was insisted that it did not, for

several reasons; the principal one being, that where there is an actual demise of the unfurnished fabric of a specific messuage for a term, there is no contract implied by law on the part of the lessor, that the messuage was at the time of the demise, or should be at the commencement of the term, in a reasonably fit and proper state and condition for habitation (that is, so far as concerned the fabric), though it was demised and let for the purpose of immediate habitation. As we are all of opinion in favour of the plaintiff upon this objection, it is unnecessary to observe upon the others in detail; but it may not be useless to remark, that two of them are very important, and have not been satisfactorily answered; viz., that if such a contract is implied by law, it would be no defence, where the tenant has actually occupied; his remedy would be by a cross-action; and to constitute a valid defence on the ground of the breach of this contract, the law must give also a right to abandon the lease upon the breach of it; that is, to make a defence, the law must imply, not merely a contract, but a condition that the lease should be void if the house was unfit for occupation. The cases cited from Brooke's Abr. "Dette, " 18 and 72, are decisive, that where the lessor is bound by the custom of London, or by covenant, to repair, and does not, the tenant cannot quit. The other objection, which we think right to notice is, that in this case the house and some garden ground are both demised; and to make the plea good, it must be held, that, if a messuage be taken for habitation, and land for occupation, by the same lease, there is such an implied contract for the fitness of the house for habitation, as that its breach would authorize the tenant to give up both. Whether, if there were such a contract or condition implied by law, generally, it would be implied in this case, where the defendant agrees to preserve in [* 85] tenantable condition, is a question on which it is quite unnecessary to enter.

*

The point to be considered, then, is, whether the law implies any contract as to the condition of the property demised, where there is a lease of a certain ascertained subject, being real property, and that lease is made for a particular object.

The question relates to a case of actual demise of a specific tenement, and we have not to inquire what the obligations of a party would be under an executory agreement, to procure a lease of some house for the habitation of another; nor whether the VOL. IX.-29

defendant would not be exonerated on the ground of fraud in the plaintiff, if the plaintiff knew of the defect in the house himself, and that the defendant would not have taken the house if he knew it; nor have we to consider whether the defendant would be responsible, if at the time of the demise there was no house at all, he may be, by reason of the implied contract for title to a house, not the land merely: which imports that the subject of the contract exists. The simple question is, what is the implied obligation on the part of the landlord to his tenant, under a lease of a house for years.

Considering this case without reference to the modern authorities, which are said to be at variance, it is clear that from the word" demise," in a lease under seal, the law implies a covenant, in a lease not under seal, a contract, for title to the estate merely, that is, for quiet enjoyment against the lessor and all that come in under him by title, and against others claiming by title paramount during the term; and the word "let," or any equivalent words (Shepp. Touch. 272), which constitute a lease, have, no doubt, the same effect, but not more. Shepp. Touch. 165, 167. There is no authority for saying that these words imply a contract. for any particular state of the property at the time of the demise; and there are many, which clearly show that there is no [86] implied contract that the property shall continue fit for the purpose for which it is demised; as the tenant can neither maintain an action, nor is he exonerated from the payment of rent, if the house demised is blown down, or destroyed by fire, Monk v. Cooper, 2 Stra. 763, Belfour v. Weston, 1 T. R. 310 (p. 436, ante), and Pindar v. Ainsley & Rutter there cited; or gained upon by the sea, Taverner's case, Dyer, 56 a; or the occupation rendered impracticable by the King's enemies, Paradine v. Jane, Aleyn, 26; Sty. 47; or where a wharf demised was swept away by the Thames, Carter v. Cummins, cited in 1 Chanc. Ca. 84. In all these cases, the estate of the lessor continues, and that is all the lessor impliedly warrants.

*

It appears, therefore, to us to be clear upon the old authorities, that there is no implied warranty on a lease of a house, or of land, that it is, or shall be, reasonably fit for habitation or cultivation. The implied contract relates only to the estate, not to the condition of the property.

But the defendant's counsel rely upon some modern decisions