This subsection, which was designed to override the decision in the Skinners Co. v. Knight, supra, has failed in practice to attain that object. It frequently happens that the lessee has complied within a reasonable time with the terms of the notice to repair the breach of covenant, and where he has done this he is not "relieved" from a forfeiture. Nind v. Nineteenth Century Building Society (C. A. 1894), 1894, 2Q. B. 226, 63 L. J. Q. B. 636, 70 L. T. 831, 42 W. R. 481. Having complied with the notice the right of action becomes unenforceable, and if the tenant is only wise enough, and he generally is, not to request the lessor to waive the breach by writing, the landlord is saddled with the expense of employing a solicitor, and surveyor, although the expense is incurred by reason of the tenant's own default.

Sub-section 2 of section 14 of the Act of 1881, to which a passing reference has been made, is as follows: "Where a lessor is proceeding by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any, or in any action brought by himself, apply to the Court for relief; and the Court may grant or refuse relief, as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit." Where the lessee applies in an independent action the proceedings must be commenced by Writ. Loch v. Pearce (C. A. 1893), 1893, 2 Ch. 271, 62 L. J. Ch. 582, 68 L. T. 569, 41 W. R. 369. Where the benefit of this section is invoked by the tenant the Court may award, as part of the damages recoverable by the landlord, costs as between solicitor and client, and fees paid for surveys and schedule of dilapidations. Bridge v. Quick (1892), 61 L. J. Q. B. 375, 67 L. T. 54.

The provisions of the Act of 1881 did not apply as between the superior landlord and an under-tenant. Burt v. Gray (1891), 1891, 2 Q. B. 98, 60 L. J. Q. B. 604, 65 L. T. 229, 39 W. R. 429. This is remedied by the Act of 1892, s. 4: "Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso, or stipulation in a lease, the Court may, on application by any person claiming as underlessee any estate or interest in the property comprised in the lease or any part thereof, either in the lessor's action (if any) or in any action brought by such person for that purpose, make an order vesting for the whole term of the lease or any less term the property comprised in the lease or any

part thereof, in any person entitled as underlessee to any estate or interest in such property upon such conditions as to the execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security or otherwise, as the Court in the circumstances of each case shall think fit, but in no case shall any underlessee be entitled to require a lease to be granted to him for any longer term than he had under his original sublease." Where the underlessee intervenes in the lessor's action he may claim the relief by defence and counter-claim. Cholmley School Highgate v. Sewell (1893), 1893, 2 Q. B. 254, 62 L. J. Q. B. 476, 69 L. T. 118, 41 W. R. 637. At the trial of the same case the defendant underlessee was required to execute a counter-part lease, in effect substituting himself for the original lessee, and covenanting to perform the obligations which the original lessee had undertaken. s. c. (1894), 1894, 2 Q. B. 906, 63 L. J. Q. B. 820, 71 L. T. 88.

AMERICAN NOTES.

The principal case is cited in Mr. Washburn's important work on Real Property (vol. 1, p. 537), to the statement: "But neither the lessor, nor the lessee, if he uses the premises in a husbandlike manner, will be bound to rebuild or repair the premises, if destroyed or damaged without his fault, in the absence of an express covenant to that effect in the lease.”

Tiedeman on Real Property (sect. 79), says: "Tenants for life or for years are required to make all the repairs necessary to keep the premises in as good condition as they were when they entered into possession. . . . He will not however be forced to expend any very large sums of money, where there has been any extraordinary decay or destruction of the buildings.”

"A tenant must use ordinary care to prevent buildings going to decay." Boone on Real Property, sect. 115.

“It is true that a tenant for life is required to keep the buildings in which he may have a life estate from going to decay, by using ordinary care; but he is not required to expend any extraordinary sums." Wilson v. Edmonds, 24 New Hampshire, 545, citing 4 Kent Com., 76.

"A tenant is bound to commit no waste, and to make fair and tenantable repairs, such as putting in windows or doors that have been broken by him, so as to prevent waste and decay of the premises; but not to make substantial and lasting repairs, such as to put on new roofing (2 Esp. N. P. 590). He is not liable for general repairs. Horsefall v. Mather (Holt's N. P. C. 7); nor is he compellable to restore premises if burned down or become ruinous by any other accident, without any default on his part." Long v. Fitzimmons, 1 Watts & Sergeant (Penn.), 530; cited and approved, Libbey v. Tolford, 48 Maine, 316; 77 Am. Dec. 229. A tenant for life "will be required to make no other repairs than such as are necessary to prevent waste." Kearney v. Ex'r of Kearney, 17 New Jersey Equity, 504. The tenant is not bound to repair dilapidations existing when he comes into possession. Clemence v.

Steere, 1 Rhode Island, 272. Lessee is under obligation to use premises in proper and tenantable manner, and not to expose buildings to ruin or waste by acts of omission or commission. Powell v. Dayton, &c. R. Co., 16 Oregon, 33; 8 Am. St. Rep. 251: "This implied obligation is not a covenant to repair generally, but to so use the property as to avoid the necessity for repairs as far as possible." Citing the principal case. Brown v. Crump, 1 Marshall, 569; United States v. Bostwick, 94 United States, 56.

...

In Suydum v. Jackson, 54 New York, 450, the Court said: "But the lessee was under an implied covenant to his landlord to make what are called 'tenantable repairs.'" (Citing Comyn: He is bound therefore to keep the soil in a proper state of cultivation, to preserve the timber, and to support and repair the buildings. These duties fall upon him without any express covenant on his part, and a breach of them will in general render him liable to be punished for waste.') "The lessee was not bound to make substantial, general, or lasting repairs, but only such ordinary repairs as were necessary to prevent waste and decay of the premises. If a window in a dwelling should blow in, the tenant could not permit it to remain out and the storms to beat in and greatly injure the premises without liability for permissive waste; and if a shingle or board on the roof should blow off or become out of repair, the tenant could not permit the water, in time of rain, to flood the premises, and thus injure them, without a similar liability. He being present, a slight effort and expense on his part could save a great loss; and hence the law justly casts the burden upon him." To the same effect, Hughes v. Vanstone, 24 Missouri Appeals, 637.

The tenant is liable for unreasonably overloading a barn, causing it to fall. Chalmers v. Smith, 152 Massachusetts, 561; 11 Lawyers' Rep. Annotated, 769.

The tenant may cut timber for firewood and for repairs of buildings, but may not cut ornamental timber. Caivert v. Rice, 91 Kentucky, 533; 34 Am. St. Rep. 240, and note, 242.

In the absence of an express covenant, the tenant is not liable for the destruction of buildings by fire without his fault. Tiedeman on Real Property, sect. 79; United States v. Bostwick, 94 United States, 56, citing the principal case: "It has never been so construed as to make a tenant answerable for accidental damages, or to bind him to rebuild if the buildings are burned down or otherwise destroyed by accident." (By Chief Justice WAITE.) Warren v. Wagner, 75 Alabama, 188.

A tenant in dower may delay a reasonable time in making repairs, provided no injury ensues, in order to get materials cheaper. Harvey v. Harvey, 41 Vermont, 373.

No. 6. Gutteridge v. Munyard, 1 Moo. & Rob. 384. — Rule.

IN ascertaining the liability of a tenant who has agreed or covenanted to keep in repair, or to keep and leave in repair, the demised property, its age and class and general condition, but not particular defects or want of repair, at the time the term commenced, must be taken into consideration.

Gutteridge v. Munyard.

1 Moody & Robinson 334-337 (s. c. 7 Carr. & Payne, 129).

Covenant to Repair. — Extent of Liability.

[334] Where a lessee covenants to keep old premises in repair, he is not liable for such dilapidations as result from the natural operation of time and the elements.

This was an issue from the Court of Chancery.

John Stayley, by a lease dated 16th November, 1808, demised a house and premises called the Chicken House estate, situate at Hampstead, to James Daniell, his executors, &c., for the term of twenty-one years, at the yearly rent of £50. The lessee covenanted, "that he, his executors, administrators, or assigns should, and would from time to time, and at all times during, &c., at his and their own proper costs and charges, well and sufficiently repair, uphold, support, maintain, glaze and amend, and keep the said messuage or tenement, and other the buildings, and the windows and sashes, tilings, &c., and all other the appurtenances thereby demised, in, by, and with all and all manner of needful and necessary reparations and amendments whatsoever. And should and would at the end or other sooner determination of the

No. 6. Gutteridge v. Munyard, 1 Moo. & Rob. 334-336.

said demise, leave, surrender, and yield up unto the said John Stayley, his heirs and assigns, the said messuage or tenement, and all and singular other the premises, with the appurtenances thereby demised, so well and sufficiently re- [* 335] paired, upheld, supported, maintained, glazed, &c., and kept as aforesaid, and all new erections, buildings, and improvements that should or might be made in or upon the said premises. in the mean time (reasonable use and wear thereof in the meantime only excepted)." Proviso for re-entry on breach of covenants. The plaintiffs represented John Stayley, the lessor above named, and the defendants were the executors of Daniell, the lessee; but the premises were in the occupation of under-lessees.

The plaintiffs having brought ejectments against the tenants in possession, on the ground that the interest of the lessee had become forfeited by breaches of the covenant, the defendants filed a bill in the Court of Chancery against the plaintiffs for an injunction: whereupon the LORD CHANCELLOR directed the following issue to be tried:

1st, Whether the said James Daniell, his executors, &c., did from time to time, &c., well and sufficiently repair, &c. (following the words of the covenant), according to the true intent and meaning of the said indenture?

There were three other issues, which it is not necessary to notice. As to the breach of the covenant to repair, it was proved that the Chicken House was a very old building, of the age of between two and three centuries at the least, and it was described as being now in a very dilapidated state, the walls with cracks in them, and out of the perpendicular; the floors sunk; many of the timbers rotten; the tilings and woodwork of the sashes broken, &c. The tenant had painted the inside at the time of the cholera, two or three years before the trial; but * it did not [* 336] appear that much else had ever been done to it. It did not appear that the defendants had ever been required to perform the covenants before the commencement of these proceedings.

The defendants called no witnesses; but Wilde, Serjt., contended that no such substantial breach of covenant had been proved by the plaintiffs as could create a forfeiture; and he cited Harris v. Jones, 1 Moo. & Rob. 173.

TINDAL, C. J., in commenting on the evidence to the jury, said, Where a very old building is demised, and the lessee enters into