L. R., 20 Eq. 539, 44 L. J. Ch. 658; Doherty v. Allman (H. L. 1878), 3 App. Cas. 709, 39 L. T. 129, 26 W. R. 513; Re Me Intosh & Pontypridd, &c. Co. (1892), 61 L. J. Q. B. 164; Meux v. Cobley (1892), 1892, 2 Ch. 253, 61 L. J. Ch. 449, 66 L. T. 86.

In Jones v. Chapple, supra, the passage from Co. Litt. 53a was cited: "If a tenant build a new house that is waste," upon which the MASTER OF THE ROLLS (Sir G. JESSEL) interposed: "That is not the law at the present time. In Williams's note on Saunders (Vol. II. p. 652), it is said: 'It is a question whether it is waste to build a new house.' In Lord Darcy v. Ashworth (Hob. 234, ed. 1724), the law is thus stated: 'A lessee may build a new house where none was before,' and thus in Doe v. Earl of Burlington (5 B. & Ad. 507, 517); Upon the whole, there is no authority for saying that any act can be waste which is not injurious to the inheritance, either, first, by diminishing the value of the estate, or secondly, by increasing the burden upon it, or thirdly, by impairing the evidence of title, and the law is distinctly laid down by Chief Justice RICHARDSON in Barret v. Barret (Hetley, 35)." Where a tenant has committed an act of waste, and the jury award nominal damages, the tenant is entitled to judgment. Harrow School v. Alderton (1800), 2 Bos. & P. 86, 5 R. R. 546.

In the judgments in Doherty v. Allman, supra, the Law Lords were at pains to distinguish those cases in which an injunction has been granted to restrain the breach of a negative stipulation. The law on the subject is summed up by the LORD CHANCELLOR (Earl CAIRNS) thus: "My Lords, if there had been a negative covenant, I apprehend, according to well settled practice, a Court of Equity would have no discretion to exercise. If parties for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done, and in such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury, it is the specific performance, by the Court, of that negative bargain which the parties have made, with their eyes open, between themselves." Where the Court, from the terms of an affirmative cov enant, construes the covenant as containing an undertaking not to do anything else but what is affirmatively stated, the covenant will be construed as if it contained a negative stipulation. Kehoe v. Marquis of Lansdowne (H. L. 1893), 1893, A. C. 451, 62 L. J. P. C. 97.

The liability of a tenant for years, as distinguished from a tenant from year to year, depends upon Yellowby v. Gower (1855), 11 Ex.

294, 24 L. J. Ex. 289. The law is thus stated by PARKE, B.: "A doubt has been stated, indeed, in a note to 2 Saunders, 252, b, whether a tenant for years is liable to permissive waste, and if he were not, then a covenant by the landlord to repair could not amount to an implied permission to the tenant to omit to repair. These doubts arise from three cases in the Common Pleas: Gibson v. Wells (No. 4, p. 460, ante); Herne v. Bembow (4 Taunt. 764), and Jones v. Hill (7 Taunt. 392, 2 Moore, 100, 18 R. R. 508). Upon examining these cases, none of which appear to be well reported, the Court seems to have contemplated the case only of a tenant at will, in the two first cases; and in the last no such proposition is stated, that a tenant for years is not liable for permissive waste. We conceive that there is no doubt of the liability of tenants for terms of years; for they are clearly put on the same footing as tenants for life, both as to voluntary and permissive waste, by Lord COKE, in 1 Inst. 53, and Harnet v. Maitland (16 M. & W. 257, 16 L. J. Ex. 134), though the liability to repair by a tenant from year to year is by modern decisions much limited. See Smith's Lectures on Landlord and Tenant, p. 195."

The view that a legal tenant for life is liable for permissive waste was rejected by KAY, J., in Re Cartwright, Avis v. Newman (1889), 41 Ch. D. 532, 58 L. J. Ch. 590. After referring to many authorities on the subject his Lordship said: "Since the Statutes of Marlbridge and of Gloucester, there must have been hundreds of thousands of tenants for life who have died leaving their estate in a condition of great dilapidation. Not once, so far as legal records go, have damages been recovered against the estate of the tenant for life on that ground. To ask me in that state of the authorities to hold that a tenant for life is liable for permissive waste to a remainderman is altogether startling. I should not think of coming to such a decision without direct authority upon the point. Such authority as there is seems to me to be against the contention, and in opposition to the positive decisions in Gibson v. Wells, Herne v. Bembow, and Jones v. Hill, there are only to be found the dicta of Baron PARKE and the late Lord Justice LUSH, which seem to amount to this, that the words of the Statutes of Marlbridge and of Gloucester are sufficient to include the case of permissive waste, at any rate where there is an obligation on the person who has the particular estate not to permit waste, whether that obligation does or does not exist at the common law in the case of a tenant for life."

In Jones v. Hill (1817), 7 Taunt. 392, 2 Moore, 100, 18 R. R. 508, the lessee had covenanted from time to time and at all times during the term, when need should require, to sufficiently repair the premises, with all necessary reparations, and to yield up the same so well

repaired at the end of the term in as good a condition as the same should be in when finished under the direction of J. M. (reasonable use and wear excepted). An action on the case was brought, stating as the ground of action that the defendant, who was assignee of the term, suffered the premises to become and be in decay and ruinous during a large part of the term, and after the term yielded them up in. a much worse order and condition than when the same were finished under the direction of J. M. The plaintiff was nonsuited at the trial, on the ground that an action on the case would not lie for permissive waste, and a rule to set aside the nonsuit was refused. The only judgment given is that of Sir V. GIBBS, Ch. J., who said that, whether an action on the case for permissive waste would lie or not, it could not be waste to omit to put the premises in such repair as A. B. had put them into; and waste would only lie for that which would be waste, if there were no stipulation respecting it. The modern cases treat the decision as resting on covenant, for the defendant in Jones v. Hill was bound as an assignee, and would have been so bound if assigns had not been named. Martyn v. Clue (1852), 18 Q. B. 661, 22 L. J. Q. B. 147; Minshull v. Oakes (1858), 2 H. & N. 793, 27 L. J. Ex. 194; Williams v. Earle (1868), L. R., 3 Q. B. 739, 37, L. J. Q. B. 231, 9 B. & S. 740. In the case of White v. Nicholson (1842), 4 Scott N. R. 264, 11 L. J. Ch. 264, the landlord covenanted to take the fixtures at the end of the tenancy, "provided they are in the same condition as they now are," and the defendant agreed to leave the premises in the same state as they now are. The demise did not contain any exception as in Jones v. Hill, supra. The word "now 99 was construed as referring to the commencement of the tenancy, and a breach "that the defendant did not leave the premises in the same state as at the commencement of the tenancy," was held to be properly assigned. In Scales v. Lawrence (1860), 2 Fost. & Finl. 289, which is a nisi prius decision, there was an exception of reasonable wear and tear. It was held that if the tenant had repaired within a reasonable time before leaving, he would only be bound, in addition to the repair of actual dilapidations, to clean old paint but not to repaint.

The liability of a tenant from year to year for repairs, apart from contract, rests on the principal case, and the decision of Lord KENYON in the case there cited (p. 464, supra), which is variously cited as Ferguson v. Nightingale, or Ferguson v. Black (1797), 2 Esp. 590, 5 R. R. 757, and other nisi prius decisions. The obligation has been stated as one to keep the property wind and water tight. Anworth v. Johnson (1832), 5 C. & P. 239; Torriano v. Young (1833), 6 C. & P. 8; Leach v. Thomas (1835), 7 C. & P. 327. There is nothing incon sistent with a tenancy from year to year that the tenant should under

take by express agreement to do repairs of a substantial character. Richardson v. Gifford (1834), 1 Ad. & Ell. 52; Beale v. Sanders (1837), 3 Bing. N. C. 850, 5 Scott, 58, 3 Hodges, 147, 1 Jur. 1083.

The remedy for an act of waste is not merged in a covenant to repair. Kinlyside v. Thornton (1776), 2 W. Bl. 111.

There are two classes of cases upon covenants to repair, namely, those in which the obligation to repair arises only after notice to repair has been given, and those in which there are two covenants, one to repair generally, and one to repair after notice. As examples of the first class may be cited Horsefall v. Testar (1817), 7 Taunt. 385, 1 Moore, 89; and of the second class, Baylis v. Le Gros (1858), 4 C. B. (N. S.) 537, 4 Jur. (N. S.) 513; Few v. Perkins (1867), L. R., 2 Ex. 92, 36 L. J. Ex. 54, 16 L. T. 62, 15 W. R. 713. Where an underlessee has covenanted to repair after notice, the notice to be effectual must in general be served by his immediate landlord, and a notice served by the superior landlord will not be sufficient. Williams v. Williams (1874), L. R., 9 C. P. 659, 43 L. J. C. P. 382, 30 L. T. 638, 22 W. R. 716.

So too where the landlord has covenanted to put the premises into repair, the performance of his covenant may be a condition precedent to the liability of tenant under a covenant to maintain in repair. Coward v. Gregory (1866), L. R., 2 C. P. 153, 36 L. J. C. P. 1, 12 Jur. (N. S.) 1000, 15 L. T. 279, 15 W. R. 170.

A covenant to repair and to leave in repair are generally treated as independent covenants, and the landlord may maintain an action for want of repair before the expiration of the term. Luxmore v. Robson (1818), 1 B. & Ald. 584, 19 R. R. 396. The cases relating to the measure of damage, and the considerations affecting the amount, will be found under the next rule.

The assignee of the reversion cannot sue under 32 Hen. VIII. c. 34, unless the assignment is by deed. Standen v. Christmas (1847), 10 Q. B. 135, 16 L. J. Q. B. 265, 11 Jur. 694. Where the demise was by a document not under seal the original lessor was the proper person to sue after assignment. Bickford v. Parson (1848), 5 C. B. 921, 17 L. J. C. P. 193, 12 Jur. 377. The Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41) s. 10, has extended the provisions of the 32 Hen. VIII. c. 34 to leases by parol. The Act of Henry VIII. enabled the assignee of the reversion of part of the demised property to maintain covenant against the lessee for not repairing. Twyman v. Pickard (1818), 2 B. & Ald. 105, 20 R. R. 368. The lessee continues after assignment to be liable on his covenant. Russell v. Stokes (Ex. Ch. 1791), 1 H. Bl. 562, 3 T. R. 678, 1 R. R. 732; Auriol v. Mills (1790), 4 T. R. 94, 2 R. R. 341.

No. 5. - Horsefall v. Mather. Notes.

Where there is a breach of covenant the executor may maintain an action without showing that the personal estate of the testator has suffered damage. Raymond v. Fitch (1835), 2 Cr. M. & R. 588, 5 Tyrw. 985, 5 L. J. Ex. 45; Ricketts v. Weaver (1844), 12 M. & W. 718, 13 L. J. Ex. 195. Where however the covenants run with the land, and descend to the heir, though there may be a formal breach in the ancestor's lifetime, yet if the substantial damage has taken place since his death, the real representative, and not the personal, is the proper plaintiff. Per PARKE, B., in Raymond v. Fitch, supra, citing Kingdon v. Nottle (1813), 1 M. & S. 355, 14 R. R. 462; King v. Jones (1814), 5 Taunt. 418, 15 R. R. 533.

Before the landlord can enforce a proviso for re-entry on breach of a covenant to repair he must now give notice under the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 14. The sec tion does not apply in the case of a tenant who has taken possession under an agreement to grant a lease for 21 years but has paid no rent. as the agreement under these circumstances creates merely a tenancy at will. Coatesworth v. Johnson (C. A. 1886), 55 L. J. Q. B. 220, 54 L. T. 52. Where the tenant under an agreement has paid rent, but has no title to have an agreement for a lease specifically performed by the execution of a lease, he is not entitled to a notice under the section. Swain v. Ayers (C. A. 1888), 21 Q. B. D. 289, 57 L. J. Q. B. 424, 36 W. R. 798. The notice must specify the particular breach complained of, and, if the breach is capable of remedy, require the lessee to remedy the breach, and, in any case, require the lessee to make compensation in money for the breach. Conveyancing and Law of Property Act, 1881, s. 14 (1). Notwithstanding the words of the subsection, "and, in any case, requiring the lessee to make compensation in money for the breach," it has been held that the words are directory merely, and that a notice by which compensation is not claimed is a good notice under the Act. Lock v. Pearce (C. A. 1893), 1893, 2 Ch. 271, 62 L. J. Ch. 582, 68 L. T. 569, 41 W. R. 369. The compensation mentioned in the section was measured by the same rules as damages in an action for the breach. Skinner's Co. v. Knight (C. A. 1891), 1891, 2 Q. B. 542, 60 L. J. Q. B. 629, 65 L. T. 240, 40 W. R. 57. Now by the Conveyancing and Law of Property Act, 1892 (55 & 56 Vict. c. 13), s. 2 (1), where the lessor at the request of the lessee waives the breach by writing under his hand, or if the lessee is relieved under the provisions of the Acts of 1881, or 1892, the lessor is entitled to recover as a debt due to him from the lessee, and in addition to the damages (if any), all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor, or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture.