LORD AGAINST TENANT. BY LAND- tember, A. D. 1830, to wit, at [London] aforesaid, in consideration of the premises, the said defendant undertook, and then and there faithfully promised the said plaintiff that he the said defendant should and would at all times during the continuance of his said last-mentioned tenancy, [here again set out the substance of the covenant broken, as before] at his own costs and charges, well and sufficiently repair, maintain, amend, and in good order and tenantable repair keep the said last-mentioned messuage and premises, and all party and other walls, fences, and drain's thereto belonging, and all erections and buildings erected and built, or thereafter to be erected and built, upon the said premises or any part thereof (damages by fire only excepted.) And the said plaintiff in fact says, that the said defendant did continue such tenant of the said last-mentioned messuage and premises, with the appurtenances, to the said plaintiff, under the said last-mentioned tenancy, from the making of his said last-mentioned promise and undertaking, hitherto, to wit, at [London] aforesaid; yet the said defendant, not regarding his said last-mentioned promise and undertaking, but contriving and intending to injure and deceive the said plaintiff in this behalf, during the time he so continued such tenant of the said last-mentioned messuage and premises, with the appurtenances, under the said tenancy as aforesaid, did not nor would, at all times during the continuance of the said defendant's said last-mentioned tenancy as aforesaid, [here negative the performance of the corenant, which may be thus:] at his own proper costs and charges, well and sufficiently repair, maintain, amend, and in good order and tenantable repair keep the said last-mentioned messuage and premises, and all party and other walls, fences, and drains thereto belonging, and all erections and buildings erected and built upon the said premises during the said term, (damages happening thereto by fire only excepted,) according to the said last-mentioned promise and undertaking, but on the contrary thereof, he the said defendant after the making of his said last-mentioned promise and undertaking, and during the continuance of the said defendant's said last-mentioned tenancy, to wit, on the 30th day of September, A. D. 1830, and from thence hitherto, suffered and permitted the said last-mentioned messuage and premises, together with all party and other walls, fences, and drains thereto belonging, and all erections and buildings erected and built upon the said premises, to be and continue, and the same were, for and during all that time, ruinous, dilapidated, fallen down, and in great decay, out of repair, and in bad order and condition for want of well and sufficiently repairing, maintaining, amending, and keeping the same in good order and tenantable repair, and not from any damage happening thereto by fire, contrary to his said last-mentioned promise and undertaking, to wit, at [London] aforesaid, and thereby the said plaintiff has been and is greatly injured and damnified, to wit, at, [London] aforesaid.-[Add a general count for not keeping the premises in tenantable repair, as post, 312.] Landlord against a For that-whereas the said defendant, heretofore, to wit, on, &c. at, &c. was tenant from tenant to the said plaintiff, of a certain *farm, lands and premises, with the apyear to year, purtenances, situate in the parish of on implied in the county of, and in consicontract to deration thereof, he the said defendant then and there undertook, and faithfully use the pre [ *308 ] promised the said plaintiff to manage, use, and cultivate the said farm, lands, day of BY LAND- AGAINST TENANT. mises in a manner, custom of (y). Breaches, over-cropping and carrying off manure, &c. and premises, with the appurtenances, during the said tenancy, in a good and husbandlike manner(≈) and according to the custom of the country where the said farm, lands, and premises were so situate, as aforesaid. And the said plaintiff in fact saith, that the said defendant was and continued tenant to the husbandlike said plaintiff of the said farm, lands, and premises, with the appurtenances, and accordfor a long space of time, to wit, from the time of making his said promise ing to the and undertaking, until the A. D. 1811, (or, "hitherto") the country to wit, at, &c. (venue) aforesaid; yet the said defendant, not regarding his said promise and undertaking, but contriving, and wrongfully and unjustly intending to injure the said plaintiff in this behalf, did not nor would, during the continuance of the said tenancy as aforesaid, manage, use, or cultivate the said farm, lands, and premises, with the appurtenances, in a good and husbandlike manner, and according to the custom of the country, where the said farm, lands, and premises were so situate as aforesaid, but on the contrary thereof, after the making of the said promise and undertaking, and during the continuance of the said tenancy, to wit,* in the successive years of our Lord and — wrongfully and injuriously overcropped the said land, and cropped, planted, and sowed divers, to wit, acres of the said farm, lands, and premises, with divers, to wit, two successive crops of wheat, barley, peas, beans, tares, and oats, that is to say, acres, part thereof with wheat, acres, other part thereof *with barley, acres, other part thereof with peas, acres, other [*309 ] part thereof with tares, and the residue thereof with oats, the same, according to the course of good husbandry, then and there being excessive and unreasonable crops for the said land, and contrary to the course of good husbandry, and the custom of the country where the said farm, lands, and premises were so situate as aforesaid, and contrary to the said promise and undertaking of the said defendant, to wit, at, &c. (venue) aforesaid. And the said plaintiff in fact further saith, that the said defendant, further disregarding his said promise and - (y) See Forms, Morg. 70 to 96.3 Term Rep. 307. 4 East, 155; 1 Gale, 8; and Earl of Falmouth v. Thomas, 3 Tyr. 31. In that case the court held, that a count like this precedent, by assigning the breach generally, in using the farm in a bad, improper, and unhusbandlike manner, without stating the particular acts of bad husbandry, was sufficient, even on special demurrer, but at the same time recommended the plaintiff to amend, rather than incur the risk of a writ of erTor. The law implies a promise on the part of a yearly tenant, that he will use the farm in a husbandlike manner, and according to the custom of the country where they are situate, 5 T. R. 373. -Holt, C. N. P. 7.—I Marsh. 569; and an action against a tenant upon promises that he would occupy the farm "in a good and husbandlike manner, according to the custom of the country" is sustainable by showing that he had treated it contrary to the prevalent course of husbandry in that "neighborhood," as by tilling half his farm at once, when no other farmer there tilled more than a third, though many tilled a fourth; and it is unnecessary to show any precise definite custom or usage in respect of the quantity tilled. 4 East, 154. When the plaintiff may declare as on a demise, see 13 East, 18. If the tenancy be under a lease, containing a covenant to repair, &c. and the lessee executed the same, or a counterpart, (see 4 Esp. Rep. 42.) the remedy is by covenant, 1 J. B. Moore, (2) A count stating that the defendant was ten- It seems the safer course, in the absence of any precise express agreement, or proof of a precise custom, to declare only on the implied contract to cultivate and use the farm and land in a tenant-like manner, and at all events not to aver any precise custom; for if there be an averment of a custom, and the tenant take issue on the existence of the custom, and it be found for the defendant, the plaintiff will fail, although it was proved that the defendant mismanaged and injured the farm. Angustien v. Handson, 1 Gale, 8. 1 Crom. M. & R. 789: 5 Tyr. 383. S. C. } Second breach, for ing straw, LORD AGAINST BY LAND- undertaking, and further contriving and intending to injure the said plaintiff in this behalf, after the making of his said promise and undertaking, and during the continuance of the said tenancy, did not nor would spend, use, and employ on the said farm, lands, and premises, the hay, straw, soil, dung, compost, and manure, which grew, arose, and were made thereon, during the continuance of the said tenancy, as he, the said defendant, according to the course of good husbandry, ought to have done, but on the contrary thereof, he the said defendant, during the continuance of the said tenancy, to wit, on, &c. aforesaid, and on divers other days and times between that day and the day of at, &c. (venue) aforesaid, took and carried away, off and from the said farm, lands, and premises, divers large quantities, to wit, two hundred cart-loads of soil, two hundred cart-loads of straw, two hundred cart-loads of dung, two hundred cartloads of compost, and two hundred cart-loads of manure of great value, to wit, of the value of £200, and which had arisen and been made on the said farm, lands, and premises, during the said tenancy, and spent and consumed the same elsewhere than on the said farm, lands, and premises, or any part thereof, contrary to the course of good husbandry, and the custom of the country where the said farm, lands, and premises were so situate as aforesaid; and also contrary to the said promise and undertaking of the said defendant. By means of which said several premises, the said farm, lands, and premises, with the appurtenances, became and were greatly impoverished, and rendered less productive than the same otherwise would have been, and greatly deteriorated in value, to wit, at, &c. (venue) aforesaid. [It may in some cases, be advisable to add a second count, similar to the first, leaving out what relates to the custom [ *310] of the country, lands, &c.; and also to insert a count, as in *4 East, 155, ante, 307, stating the promise as in the first count, and a general breach of good husbandry, without stating the particulars, see 3 T. R. 307.] Breach for ploughing up grass land, and cropping the land with out manur ing the same. For taking successive crops, with out manur ing the land. [Same as the above precedent, to the asterisk, and then proceed, as follows:]— On, &c. ploughed up and converted into tillage, a certain piece or parcel of land then in grass, called, &c. and parcel of the said farm and lands, and cropped and sowed the same without manuring or dressing the same with sand and other manure, as he the said defendant ought to have done, according to the course of good husbandry, and the custom of the country where the same farm, &c. were so situate as aforesaid; contrary to the course of good husbandry, and the custom of the country aforesaid, and to the said promise, &c. of the said defendant, to wit, at, &c. (venue) aforesaid. [Same as the above precedent, to the asterisk.]-In the successive years of our Lord 1828, 1829, and 1830, wrongfully and injuriously cropped, planted, and sowed a certain other piece or parcel of land, called, &c. part and parcel of the said farm and lands, with divers, to wit, four successive crops of corn, potatoes, and turnips, to wit, wheat, potatoes, turnips, and wheat; and also without manuring or dressing the said last-mentioned land with sand or manure, as, according to the course of good husbandry, he the said defendant ought to have done, contrary to the course, &c. and custom, &c. where the said farm, &c. were so situate as aforesaid, and contrary to his said promise, &c. to wit, at, &c. (venue) aforesaid.-[Add a count for not using the premises in a tenantable way, upon the principle of that, post, 312.] BY LAND- AGAINST TENANT. Against tenant for keeping and leaving the premises out of repair(a). *For that whereas heretofore, to wit, on, &c. (day of letting, or about it) at, [ *311 ] &c. (venue) in consideration that the said plaintiff, at the special instance and request of the said defendant, would demise and let to the said defendant a certain messuage, garden, and premises, with the appurtenances, situate in the county of to hold the same to the said defendant, as tenant thereof to the said plaintiff, to wit, from the day of then next, for one whole year, and so from year to year, so long as the said plaintiff and defendant should respectively pleasc, he the said defendant undertook, and then and there faithfully promised the said plaintiff that he the said defendant would, during the continuance of the said tenancy, keep the said messuage, garden, and premises, with the appurtenances, in good and tenantable repair, order, and condition. And the said plaintiff avers, that he, confiding in the said promise and undertaking of the said defendant, afterwards to wit, on the day and year first aforesaid, at, &c. (venue) aforesaid *did demise and let the said messuage, garden, and premises, with the appurtenances, to the said defendant, for the time and upon the terms aforesaid, and that the said defendant was, and continued tenant to the said plaintiff of the said messuage, garden, and premises, with the appurtenances, under and by virtue of the said tenancy, for a long space of time, to wit, from the time of making his promise and undertaking aforesaid, until and upon the day of, &c. Nevertheless the said defendant not regarding his said promise and undertaking, but contriving and intending to deceive and defraud the said plaintiff in this behalf, did not nor would, after the making of his promise and undertaking, and during the continuance of the said tenancy, keep the said messuage, garden, and premises, with the appurtenances, in good and tenantable repair, order, and condition, according to his said promise and undertaking; but on the contrary thereof, he the said defendant, after the mak (a) In this case also, if there were a written agreement, it may be as well to declare upon it, as recommended in the note to the precedent, ante, 307, note. When plaintiff may declare as upon a demise, see 13 East, 18. If the action be for not taking care of furniture, &c. see a precedent, post, 339. It has been supposed that the law implies a contract on the part of a tenant from year to year, to keep the premises in tenantable repair, and not to commit waste. 1 Saund. 323 b. n. 7.-Co. Lit. 57. a. 7.-1 J. B. Moore, 100. He is not bound to make substantial and lasting or general repairs, such as putting a new roof on an old house, putting in new main beams, &c. 2 Esp. 589.-Co. Lit. 57 a.-2 Saund. 352, n. 7.-Holt, C. N. P. 7, 8.-2 Bla. Rep. 840.-2 B. & C. 278.-Chit. jun. Contr. 101. He is only impliedly liable to make fair and substantial repairs, such as putting in windows, &c. broken by him, so as to prevent waste and decay. Id. And it should seem that the law only implies a contract to use the premises in a tenant-like manner, and not to contract to keep the premises in repair, and consequently, where a tenant from year to year is sued for not repairing, an express contract must be stated in the declaration, and proved on the trial. 1 Marsh. 567.-6 Taunt. 301.-Holt Rep. 7.—Sed vide 2 B. & C. 273.— If a tenant refuse to repair contrary to agree- As to what fixtures a tenant may remove, and at what time, see 2 East, 88.-3 East, 38-and cases cited in note, ante, 301. It has been considered that Case may be supported against a tenant from year to year, for permissive as well as voluntary waste, see 2 Saund. 252 c., and the forms there given; and see 5 B. & C. 603. Sed vide 7 Taunt. 392.-1 J. B. Moore, 100, S. C.-2 Bla. Rep. 1111.-Case cannot be supported for permissive waste against a mere tenant at will. 1 New Rep. 290.-1 Saund. 323 b. See more fully, ante, vol. í. Index, tit. "Waste." [ *312 ] LORD AGAINST BY LAND- ing of his said promise and undertaking, and during the continuance of his said tenancy, to wit, on the day and year first above mentioned, and from thence until and upon the said, &c. wrongfully and unjustly suffered and permitted the said messuage, garden, and premises, with the appurtenances, to be and continue, and the same were, for and during all that time, ruinous prostrate, foul, and in bad and untenantable repair, order, and condition, for want of good and needful and necessary repairing, cleansing, and amending thereof. And afterwards, to wit, on the day and year last aforesaid, he the said defendant wrongfully and unjustly yielded and delivered up to the said plaintiff the said premises so ruinous, prostrate, broken down, foul, and in bad and untenantable order, repair, and condition as aforesaid, contrary to his said promise and undertaking, to wit, at, &c. (venue) aforesaid.—[Add the following counts.] Second count, for using the premises in an unten And whereas also heretofore, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in consideration that the *said defendant had become, and then was, tenant to the said plaintiff of a certain other messuage, garden, and ant-like premises, with the appurtenances, he the said defendant undertook, and then manner(b). [*313] and there faithfully promised the said plaintiff to use the said last-mentioned messuage, garden, and premises, with the appurtenances, in a tenant-like and proper manner, for and during the continuance of the said last-mentioned tenancy. And although the said last-mentioned tenancy did continue and endure for a long space of time, to wit, from the day and year last aforesaid, until and upon, &c. (or hitherto) to wit, at, &c. (venue) aforesaid, yet the said defendant, not regarding his said last-mentioned promise and undertaking, but contriving and fraudulently intending to deceive and injure the said plaintiff, did not nor would, during the continuance of the said last-mentioned tenancy, use the said last-mentioned messuage, garden, and premises, with the appurtenances, in a tenant-like and proper manner; but on the contrary thereof, he the said defendant, during the continuance of the said last-mentioned tenancy, so improperly behaved and conducted himself in that behalf, and used the said last-mentioned messuage, garden, and premises, with the appurtenances, and the trees and chattels therein, in so untenant-like and improper a manner, that by reason thereof the said last-mentioned messuage, garden, and premises, with the appurtenances, to wit, on the day and year first aforesaid, then and there became, and were, and still are, ruinous, broken down, destroyed, prostrated, foul, miry, and greatly dilapidated, and the trees of the said plaintiff growing in and upon the said last-mentioned premises, then and there became and were greatly damaged and spoiled, to wit, at &c. (venue) aforesaid.—[If plaintiff has expended any money in repairs, add an averment of damage to that effect, and counts for money paid and account stated, and breach.] (b) This count, founded on the implied contract, is sustainable against any tenant, however short his interest, Holt, C. N. P. 2.-1 Marsh. Rep. 567. -4 East, 154.-4 T. R. 379; and though there be a special agreement (which is to be the basis of a future lease) containing several obligations, one of which is to keep the premises in tenantable repair, this count will suffice, without setting out the agree ment, which may be given in evidence to support this count. 2 Barn. & Cres. 273.-9 Dow. & Ry. 522. S. C. See a form for not taking care of furniture, post, 339. The action might be framed in Case for the breach of duty. |