Nos. 6-8.

Gutteridge v. Munyard; Burdett v. Withers; Lister v. Lane, &c. - Notes.

& Chapter of Bristol v. Jones (1859), 1 Ell. & Ell. 484, 28 L. J. Q. B. 201, 5 Jur. (N. S.) 956, 7 W. R. 307; Tucker v. Linger (1882), 21 Ch. D. 18, 51 L. J. Ch. 713, 46 L. T. 198, 30 W. R. 425. But the landlord is liable in damages for the breach of his undertaking. Snell v. Snell (1825), 4 B. & C. 741, 7 Dowl. & Ry. 249.

The measure of damages for the breach of a covenant to repair, and also for the breach of a covenant to keep and leave in repair, depends upon the principles enunciated in Hadley v. Baxendale, No. 5 of "Carrier," 5 R. C. p. 502. Upon a breach of covenant to repair, the measure of damages is the injury to the marketable value of the reversion. Mills v. Guardians of East London Union (1872), L. R., 8 C. P. 79, 42 L. J. C. P. 46, 27 L. T. 557, 21 W. R. 142. A similar principle was applied where the tenant had committed a breach of the covenant, implied in law, not to commit voluntary waste. Witham v. Kershaw (C. A. 1885), 16 Q. B. D. 613, 54 L. T. 124, 34 W. R. 340. This rule was applied with a curious result in Williams v. Williams (1874), L. R., 9 C. P. 659, 43 L. J. C. P. 382, 30 L. T. 638, 22 W. R. 706. The defendant in that case had covenanted to repair generally, and also to repair after notice. The plaintiff was in fact a lessee, and to prevent the superior landlord from re-entering, gave notice to the tenant to repair, but before the notice expired entered and did the repairs. He was held not entitled to recover the amount expended in repairs from the defendant, on the ground that at the time of action brought the premises were not in fact out of repair, but that he was only entitled to recover nominal damages. Where the lessor sues for the breach of the covenant to repair before the expiration of the term, the tenant is entitled to a deduction, in the nature of a discount, for the immediate payment. Witham v. Kershaw, supra.

The measure of damages for a breach of a covenant to leave in repair is the amount of money necessary to put the premises into the state of of repair required by the covenant. Joyner v. Weeks (C. A. 1891), 1891, 2 Q. B. 31, 60 L. J. Q. B. 510, 65 L. T. 16, 39 W. R. 583.

Where there has been a breach of a covenant to repair, and the landlord is himself compelled to do the repairs after the determination of the term, the landlord is entitled as part of the damages recoverable by by him to a compensation for the loss of the use of the premises which has presumably been suffered during the time while the repairs were being executed. Woods v. Pope (1835), 1 Bing. N. C. 467, 1 Scott, 536; Proudfoot v. Hart (1890), 25 Q. B. D. 42, 59 L. J. Q. B. 129.

The tenant is not entitled to show, in mitigation of damages, that the landlord has, by an arrangement with the incoming tenant, relieved himself from the necessity of expending his own money upon repairs. Rawlings v. Morgan (1865), 18 C. B. (N. S.) 776, 34 L. J. C.

the

Nos. 6-8. Gutteridge v. Munyard; Burdett v. Withers; Lister v. Lane, &c. -Notes.

-

P. 185, 11 Jur. (N. S.) 564, 12 L. T. 348, 13 W. R. 746; Joyner v. Weeks, supra.

Where the landlord has recovered damages for breach of a covenant to repair during the term, and sues for the breach of a covenant to leave in repair at the end of the term, the measure of damage is the cost of putting the property in repair less the amount recovered in the first action with an allowance to the tenant for the depreciation of the property. Henderson v. Thorne (1893), 1893, 2 Q. B. 164, 62 L. J. Q. B. 586, 69 L. T. 430, 41 W. R. 509.

Where the property is sublet, and the undertenant has notice of the obligations of his immediate landlord, the covenants of the undertenant to keep and leave in repair are treated as analogous to a covenant of indemnity. Ebbets v. Conquest (C. A. 1895), 1895, 2 Ch. 377, 64 L. J. Ch. 702, 73 L. T. 69, 44 W. R. 56. The analogy, as was pointed out in Ebbetts v. Conquest, must not be pressed too far, for in every case, so far as can be judged, the Court has refused to allow the original lessee to recover, as part of the damages payable by the undertenant, the costs of the proceedings brought against him by the superior landlord. Short v. Kalloway (1839), 11 Ad. & Ell. 28; Penley v. Watts (1841), 7 M. & W. 601, 10 L. J. Ex. 229; Walker v. Hatton (1842), 10 M. & W. 249, 11 L. J. Ex. 361, 2 Dowl. N. S. 263; Smith v. Howells (1851), 6 Ex. 730, 20 L. J. Ex. 377.

AMERICAN NOTES.

The first two principal cases are cited by Wood on Landlord and Tenant, sect. 388; and by Taylor on Landlord and Tenant, sects. 358, 359, and the doctrine is approved. The latter author says: "These cases establish that where there is a general covenant to repair, the age and condition of the house at the commencement of the tenancy are to be taken into consideration in considering whether the covenant has been broken; and that a tenant who enters into an old house is not bound to leave it in the same state as if it were a new one. He must put the property in as good condition as can be done without change of form or material.”

In Ardesco Oil Co. v. Richardson, 63 Pennsylvania State, 162, it was held that where a company leased a leaking iron oil-tank, with a wooden bottom, the lessee agreeing, in lieu of rent, to put it "in perfectly good repair," this did not imply anything more than putting it in as good condition as possible with a wooden bottom. The Court asked: "If a landlord should lease to a tenant a house with a shingle roof, which leaked badly, and bind the tenant to put the house in perfectly good repair, would it be the understanding of the parties that he was to repair the roof with the same kind of materials, although it might not be as tight or as warm, as permanent, or as secure against fire as a slate roof?" "The words, perfectly good repair' do not mean that any particular material must be used. Iron, brass, copper, lead, zine, wood, or stone may be used, if either will make such a job as was con

- Vane v. Lord Barnard (or Lord Bernard's Case,) Pre. Ch. 454. — Rule.

templated by the parties when they entered into this agreement." "If you are to repair a wooden building, you are not to make it brick, stone, or iron, but you are to repair wood with wood." So although iron bottoms were in use it was held that the lessee was not bound to substitute one.

No. 9.- VANE v. LORD BARNARD (OR LORD BERNARD'S CASE.)

(CH. 1716.)

RULE.

A COURT of Equity will interfere, at the instance of those entitled in remainder, to restrain a tenant for life without impeachment of waste, from committing an act of wanton or malicious destruction.

Lord Bernard's Case.

Pre. Ch. (Finch) 454-455 (s. c., s. n. Vane v. Lord Barnard, 2 Vern. 738; Eq. Cas. Abr. 399, pl. 3).

Tenant for Life. — Waste. - Equitable Waste.

[454] A Court of equity will not ouly grant an injunction to stay tenant for life, without impeachment of waste, from defacing the mansion-house, but will likewise oblige him to put it in the same plight it was in at the time of his entry.

Lord Bernard was tenant for life, without impeachment of waste; and this bill was brought against him by those in remainder, for an injunction to stay his committing of waste; and by the proofs in the cause it appeared that he had almost totally defaced the mansion-house, by pulling down great part, and was going on entirely to ruin it; whereupon the Court not only granted an injunction against him, to stay his committing further waste, but also ordered a commission to issue to six commissioners, whereof he to have notice, and to appoint three on his part; or, in default thereof, the six commissioners to be named ex parte, to take a view, and to make a report, of the waste committed; and that he should be obliged to rebuild, and put it in the same plight and condition it was at the time of his entry thereon; and it was said that the like injunctions had frequently been granted in this Court; and that the clauses of without impeachment of waste never were extended to allow the very

No. 9. Vane v. Lord Barnard (or Lord Bernard's Case.) — Notes.

destruction of the estate itself, but only to excuse from permissive waste; and therefore such a clause would *not [* 455] give leave to fell and cut down the trees which were for

the ornament or shelter of a house, much less to destroy or demolish the house; and so it was ruled in my Lord NOTTINGHAM'S time, 2 Ch. Cas. 32.

ENGLISH NOTES.

A tenant for life is not entitled to commit an act of voluntary waste. Lewis Bowles' Case (1617), 11 Co. Rep. 79 b., Tudor Lead. Cas. Conv. 37, 3rd ed. But may at the common law, where the property is limited to him without impeachment of waste, deal with the property as if he were tenant in tail, s. c. There is no remedy against a tenant for life for an act of permissive waste. Re Cartwright, Avis v. Newman (1889), 41 Ch. D. 532, 58 L. J. Ch. 590.

This right of a tenant for life without impeachment of waste, to deal with the property as the absolute owner was restricted by the Court of Chancery. This gave rise to the distinction between legal and equitable waste, a distinction in recent times recognized by the legislature, which has provided that, "an estate for life without impeachment of waste shall not confer, or be deemed to have conferred, upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such waste:" Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25 (3).

The Court of Chancery interposed in cases of waste upon two grounds. First, where the interest of the parties presented an obstacle to an application to the common-law Courts. The person in remainder must have had an immediate estate of inheritance to entitle him to proceed in a common-law action, and where the limitations were to A. for life, remainder to B. for life, remainder over in fee, the tenant for life in possession could (at common law) commit waste with impunity so long as a life estate was interposed between his interest and the inheritance. This was the subject-matter of a decree for an injunction. so early as the reign of Richard II. Anon. (1600) Moo. 554. At the common law, contingent uses were not recognized as having any existence until the use had vested on the happening of the contingency. Lewis Bowles' Case (1617), 11 Co. Rep. 79 b; Udal v. Udal (1649), Aleyn, 81. At one time, where a tenant in fee with an executory devise over, whether the limitations were legal or equitable, committed waste, the Court of Chancery would have interfered to stay waste. Robinson v. Litton (1744), 3 Atk. 209; Stanfield v. Habergham (1804),

No. 9. Vane v. Lord Barnard (or Lord Bernard's Case.) — Notes.

10 Ves. 273, 278, 7 R. R. 409, 412. It is however now settled that this power of a Court of Equity will only be applied in the case of equitable waste. Turner v. Wright (1860), 2 De G. F. & J. 234, 29 L. J. Ch. 598. It is however settled that a tenant in fee with an executory devise over may be made impeachable for legal waste. Blake v. Peters (1863), 1 De G. J. & S. 345, 32 L. J. Ch. 200. In Garth v. Cotton (1750), 1 Ves. 524, 526, 1 Dick. 183, 1 Wh. & Tud. Lead. Cas. Eq. 806, 6th ed., estates were limited to A. for 99 years if he should so long live, without impeachment of waste, voluntary waste excepted; remainder to trustees during his life to preserve contingent remainders; remainder to the first and other sons of A. in tail; remainder to B. in fee. Before a son was born, A. and B., acting in collusion, cut down timber on the estate and divided the plunder. Subsequently a son was born to A., and he was held entitled to recover from the representatives of B., the share of the proceeds of sale received by the latter in respect of the timber.

But the jurisdiction of the Court of Chancery was chiefly invoked to restrain the commission of equitable waste. The definition has always been expressed in somewhat large terms. It is called "extravagant and humoursome waste," in Abraham v. Bubb, Freem. Chy. 54 (No. 10, p. 495, post). In Aston v. Aston (1749), 1 Ves. Sen. 264, Lord HARDWICKE said: "If tenant for life without impeachment of waste pulled down farm houses, in general I should no more scruple restraining him, than I should from pulling down the mansion-house (unless he pulled down two to make into one in order to bear the burden but of one) it tending equally to the destruction of the thing settled. If therefore he should grub up a wood settled, so as to destroy the wood absolutely, I should restrain him; which is the meaning of the words in that case, 5 Jac. I. [an Anonymous Case cited by Lord HARDWICKE], viz. Such voluntary, malicious, intended waste; and in Abrahall v. Bubb, Pasc. 1680 (said to be in a manuscript of Lord NOTTINGHAM'S collection, which I believe I have also seen) it is termed extravagant and humoursome waste." From the same case (Aston v. Aston), it appears that Lord HARDWICKE first determined that trees planted for ornament and shelter were to be protected from the ravages of tenants for life. He says: "Since Lord Bernard's Case (the principal case) I have gone farther, and restrained the taking down trees planted for oruament and shelter to the house, as in the case of Packington v. Layton (3 Atk. 215), and other cases; but a little farther still in Sir Francis Charlton's Case, who was restrained from cutting down timber growing in an avenue and planted walk in a park; but it depended on the same principle; and though there was a lane between the house and park, yet it was the same kind with Packington's Case, where the