Application of current rent. well as a residuary devise, and under it a current halfyear's rent is apportionable between the heir or the devisee of the land and the testator's personal estate (u). If a lease is assigned between two rent days, the rent is apportioned by section 2, and as the case is not within the proviso in section 4, the lessor has a separate right of action against the assignor for the proportion of rent up to the date of the assignment, and against the assignee for the proportion accruing afterwards (2). What are usual covenants in a lease. The term bonuses, &c., III. The covenants usually inserted in leases in relation to rates and taxes, and the preservation, repair and insurance of the demised property. The usual covenants in a lease for a term of years are, on the part of the lessee, (1) to pay the rent; (2) to pay rates and taxes; (3) to keep the demised premises in repair during the term; (4) to deliver them up in good repair and condition at the end of the term; (5) to permit the landlord to enter and view state of repair, and to do specific repairs on notice (y); and (6) to insure against fire, if this is intended and stipulated for. If the lease is of a farm, there are generally covenants as to cultivation. Other covenants are often stipulated for, but cannot be insisted on upon an open contract. These will be considered in a subsequent section. (u) Capron v. Capron, 17 Eq. 288; Hasluck v. Pedley, ubi supra. Under the 5th section of the Act the term "dividends" includes all payments made by the name of dividend, bonus, or otherwise out of the revenue of trading or other public companies. But this definition does not extend to the dividends and income of a private partnership. Jones v. Ogle, 8 Ch. 192. See In re Griffith, 12 Ch. D. 655, as to what is a public company as distinguished from a private partnership. (x) Swansea Bank v. Thomas, Ex. D. 94. If the assignor is the original lessee, the whole rent could be recovered against him under the covenant. (y) Blakesley. Whieldon, 1 Hare, 176. It is doubtful whether, in the absence of stipulation, a covenant to do specific repairs after notice could be insisted on. Rates and Taxes. covenant to exception, in rate and land property tax. A covenant to pay "all rates, taxes, and assess- General ments payable for or in respect of the demised pre- pay rates and mises," without any exception, includes not only ordi- taxes without nary rates payable by the tenant, but also taxes and cludes sewers assessments imposed by Parliament, and which, in the tax, but not absence of agreement, a tenant is allowed to deduct the landlord's from his rent, e.g., sewers rate and land tax (2). The property or income-tax is, however, an exception, as it is provided by the Act imposing it that the tenant is to deduct it from the rent, and that no contract, covenant, or agreement between landlord and tenant or any other persons touching the payment of taxes and assessments to be charged on their respective premises shall be deemed to extend to property or income-tax, nor be binding contrary to the true intent and meaning of the Act (a). charge. Tithe rent-charge is not a tax or assessment, and is Nor tithe renttherefore not included in a general covenant to pay rates, taxes, and assessments (b). thrown by Act on the owner; tends in terms all assess Nor does a covenant in the above form apply to Nor to charges charges thrown by an Act of Parliament on the owner, of Parliament although as an additional security power is given to but secus, if the levy it against the tenant, e. g., the expense of paving covenant exand sewering a street or abating a nuisance under a to local Act (c). But if the terms of the covenant are to charges impay all taxes, assessments, &c., imposed on the landlord posed on the or tenant in respect of the premises, charges of this respect of the kind are within the covenant (d). (z) Amfield. White, 1 Ry. & Mo. 246; Brewster . Kidgell, 12 Mod. 166; Bradbury v. Wright, Dougl. 624. (a) 5 & 6 Vict. c. 35, s. 60, sch. A. No. 4, rule 9. See also sect. 73. (b) Jeffrey v. Neale, L. R. 6 C. P. 240. But see Parish v. Sleeman, 1 D. F. & J. 326, where tithe rentcharge was held an "outgoing," the agreement being to pay the rent "free of outgoings." (c) Tidswell v. Whitworth, L. R. (d) Thompson r. Lapworth, 3 C. ments and landlord in premises. Tenant liable for actual waste The preservation, repair, and insurance of the demised property. Every tenant for a term of years, or from year to year or at will, is liable at law for actual waste, e. g., pulling down houses or walls, cutting timber, cutting fruit-trees in a garden or orchard, opening mines, altering the nature of the property by converting meadow into arable, &c. (e). But no action for waste if there is any will lie unless there is injury to the inheritance in one of the following ways, viz., by diminishing the value of the estate, or increasing the burden on it, or destroying identity and thus impairing the evidence of title (f). Thus it is not waste to erect new buildings whereby the value of the estate is increased (g), or to pull down a ruinous barn without rebuilding it, if the estate is not injured thereby (h). injury to the inheritance. Action may be brought by reversioner. Liability of tenant for life or for years, or at will, or from year to year, as to repairs. An act of waste by a tenant is a present injury to the reversion, for which the lessor may bring an action during the term (¿). It is apprehended that, in the absence of express covenant, a lessee for life (k), or for a term of years, is liable under the Statute of Gloucester (1) for permissive waste, i. e., for allowing the property to fall into decay for want of necessary repairs (m); but the question is of little practical importance, as a covenant by the lessee to do repairs is an ordinary part of a lease, and can be insisted on under an open contract. equity cannot interfere against the former for permissive waste. Powys v. Blagrave, 4 D. M. & G. 458; In re Courtier, 34 C. D. 136. (1) 6 Edw. 1, c. 5. (m) In some cases doubt has been thrown on this. See Herne v. Benbow, 4 Taunt. 764. But in others the liability is clearly laid down. See Cheetham v. Hampson, 4 T. R. 319; Gregory v. Mighell, 18 Ves. 328; Yellowly v. Gower, 24 L. J. Ex. 289. See also Woodhouse v. Walker, 5 Q. B. D. 404; Davis v. Davis, 38 C. D. 499. A tenant at will is not liable for permissive waste (n). A tenant from year to year (who occupies an intermediate position) is bound, it has been said, to keep the premises wind and water tight, but not to do substantial repairs, such as new roofing (0). of covenants Under a general covenant by a lessee to keep the Construction premises in good repair and to deliver them up in good repair and condition at the end of the term, it is not sufficient to keep them in the same state of repair as they were in at the commencement, if they were then in bad repair. The class and description of the house may, however, be taken into account, viz., whether it is an old or a new one, and it must be kept and delivered up in good repair with reference to the class to which it belongs (p). The rule is difficult of application. Measure of damages on breach of cove nant to repair. Where an action is brought during the continuance of the term upon the covenant to repair, the measure of damages is the diminution in the selling value of the reversion by reason of the non-repair (7); and if an action is brought at the end of the term on the covenant to deliver up in repair, the measure of damages is the sum which it will take to put the premises in the state of repair in which the tenant ought to have left them (?). A tenant who is under no obligation to do repairs No warranty cannot require the landlord to do them, nor is it any to condition of defence to an action by the landlord for rent, that the unfurnished house is uninhabitable for want of substantial repairs(s), or by reason of its being infested with noxious insects, or for any other reason, there being no implied condition in a demise of an unfurnished fabric of a house that it is in a reasonably fit state and condition for habitation(t). But a different rule applies to a (n) Lady Shrewsbury's case, 5 Co. 13b; Harnett v. Maitland, 16 L. J. Ex. 134. (0) Ferguson v. 2 Esp. 590; Amworth v. Thomas, 5 Car. & P. 239; Leach v. Thomas, 7 ib. 327. (p) Gutteridge v. Munyard, 1 M. & Rob. 334; Stanley v. Towgood, 3 Bing. N. C. 4; 6 L. J. (N. S.) C. P. 129; Brown v. Trumper, 26 Beav. 11; Payne v. Haine, 16 M. & W. by landlord as house. house is let furnished. Secus, when furnished house, in which case there is an implied condition that it is fit for occupation, and that the tenant may rescind the contract on the ground that it is infested by bugs, or unwholesome for want of proper drainage (u). Liability of tenant in case of fire. stipulation, lessee not bound to rebuild in case of fire, but he under general must do so covenant to repair. As regards destruction by fire, it is provided by the statute 14 Geo. 3, c. 78, s. 86, that no action, suit, or process shall be had or prosecuted against any person in whose house or building or on whose estate any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby; but agreements between landlord and tenant In absence of are excepted. In the absence, therefore, of any special stipulation, the lessee is not bound to rebuild a house accidentally burnt down, but if he enters into a general covenant to repair, without any exception, he is liable to restore any house or buildings which may be destroyed by fire, tempest, lightning, or any other accident (v). It should be borne in mind also that a fire caused by negligence has been held not to be accidental within the meaning of the above enactment (w). Where there is no obligation on either party to lessee liable to insure, the lessee remains liable for his rent although rent although the house has been burnt down (a); and it has been held that he has no equity to compel the lessor to expend the money received from an insurance office in rebuilding (y). But these decisions must be taken in connection with sect. 83 of 14 Geo. 3, c. 78, which authorizes and requires directors of insurance offices, on the request of any person interested in or entitled unto any houses or buildings which may be burnt down or damaged by fire, to cause the insurance money to be laid out in rebuilding (2). It would In absence of stipulation, house has been burnt down. (u) Smith v. Marrable, 11 M. & W. 5; Wilson v. Finch Hatton, 2 Ex. D. 336. (v) 2 Saund. Rep. by Williams, 422, n.; Pym v. Blackburn, 3 Ves. 34. (w) Filliter v. Phippard, 11 Q. B. 347; 17 L. J. Q. B. 89. (x) Belfour v. Weston, 1 T. R. 310; Holzapffell v. Baker, 18 Ves. 115. (y) Leeds v. Cheetham, 1 Sim. 146; Loft v. Dennis, 28 L. J. Q. B. 169. The case of Steele v. Right, cited in 1 T. R. 708, and the dictum in Brown v. Quilter, Amb. 619, contrary to the statement in the text, must be considered to be overruled. (z) It has been held that this provision is a general enactment, and not limited in its operation to the metropolitan districts. Ex parte Goreley, 34 L. J. Bankruptcy, 1. |