goods to the full value of the rent, if he have sold them for a less sum. If he have sold them at too low a rate, the tenant's remedy is by action on the case. Efford v. Burgess, 1 M. & Rob. 23, per Parke, B. But, so long as the landlord retains the distress, though insufficient in amount, he cannot maintain the action. Lehain v. Philpott, L. R., 10 Ex. 242. It is no defence that the tenant quitted, without giving notice, in the fear of a distress by the superior landlord. Rickett v. Tullick, 6 C. & P. 66.

ACTION FOR WASTE, BAD HUSBANDRY, ETC.

This action lies on a contract not under seal, express or implied, and is in some cases founded on wrong independent of contract, arising out of the relation of landlord and tenant. It may in some cases be maintained by a married woman alone, vide ante, p. 325.

Claims under the Agricultural Holdings (England) Act, 1883 (46 & 47 Vict. c. 61), are in case of difference settled by a reference: see sect. 8. So in the case of claims under stat. 50 & 51 Vict. c. 26 (allotments and cottage gardens), and 53 & 54 Vict. c. 57 (land under mortgage).

The Demise. Statute of Frauds.] By the Stat. of Frauds (29 Car. 2, c. 3), s. 1, all leases and terms, whether freehold or for years, not in writing and signed by the party making them, or their agents authorised by writing, shall have the effect of leases at will only, except (sect. 2) leases not exceeding three years from the making thereof, whereon the reserved rent is equal to two-thirds of the improved value. These sections apply only to leases whereby a rent is reserved. Crosby v. Wadsworth, 6 East, 602.

Sect. 4 of the same statute is stated ante, p. 303, and applies to contracts for creating a tenancy as well as to sales; but although sect. 2 excepts leases for three years at rack rent out of sect. 4, as well as out of sect. 1; Bolton, Ld. v. Tomlin, 5 Ad. & E. 856; yet agreements for such leases are not so excepted; Edge v. Strafford, 1 Cr. & J. 391; and though the leases are valid, and any remedy on them in their character of leases may be resorted to, yet they do not confer the right to sue the lessee for damages for not taking possession. S. C. It seems, however, that the lessee might have been sued in debt for the rent reserved, for, where there has been an actual demise, debt lies before entry; vide ante, p. 326. An oral lease valid under sects. 1, 2, may be as special in its terms as a written one. Bolton, Ld. v. Tomlin, supra.

The three years must be from the making, and not from the commencement only. Baker v. Reynolds, Hill MSS., 2 Selw. N. P., 13th ed. 759. An oral lease for two years, with an option to the lessee to continue the holding beyond three years from the making of the lease, is severable, and is good as to the two years. Hand v. Hall, 2 Ex. D. 355, C. A., reversing S. C., Id. 318. Special terms, not necessarily implied in a tenancy, may yet be incorporated with an oral demise by implication. Thus, where an oral lease is bad for want of proper formalities required by sect. 1, yet if the lessee enter and pay rent, he becomes tenant from year to year on such of the terms of the invalid lease as are not inconsistent with such a tenancy; Doe d. Rigge v. Bell, 5 T. R. 471; Richardson v. Gifford, 1 Ad. & E. 52; and see Martin v. Smith, post, p. 337; but, upon entry under an oral lease for more than three years, the lessee is strict tenant at will, and only becomes a yearly tenant on payment of any rent.

Berrey v. Lindley, 3 M. & Gr. 512; 2 Smith's L. C., notes to Doe

d. Rigge v. Bell, and Clayton v. Blakey. The Act 8 & 9 Vict. c. 106, s. 3, now requires a deed wherever the Statute of Frauds required a writing, otherwise the lease is void at law. It is, however, good as an agreement. See on this statute, post, tit. Action for recovery of possession of land by landlord-Lease. In order to show an implied promise to hold on the terms of a former lease, the old lease must be produced (unless admitted) duly stamped. Walliss v. Broadbent, 4 Ad. & E. 877; ante, p. 219. By Rules 1883, Ord. xix. r. 20 (ante, p. 302), any objection on the ground of insufficiency in law of the contract must be specially pleaded.

Where lands are held of a corporation under a parol demise, a yearly tenancy is created upon payment of rent. Wood v. Tate, 2 N. R. 247; Ecclesiastical Commissioners v. Merral, L. R., 4 Ex. 162.

Where the defendant has enjoyed an incorporeal hereditament under an agreement, void as a grant because not under seal, for the whole period named therein, he is bound by the terms of the agreement; Thomas v. Fredricks, 10 Q. B. 775; Adams v. Clutterbuck, 10 Q. B. D. 403; but not if he have entered only. Bird v. Higginson, 6 Ad. & E. 824, Ex. Ch.

Waste.] By the common law, an action for waste lay only against the tenant by the curtesy, tenant in dower, or guardian, for these estates were created by law. The tenants for life or years, having obtained their estates by grant, were not punishable for waste until the Stat. of Marlbridge (52 Hen. 3, c. 24), which gave an action for damages against the lessee for life or years or pur autre vie. 2 Inst. 144, 148. Subsequently the Stat. of Gloucester (6 Edw. 1, c. 5), gave the additional remedy against them of the writ of waste, to recover the land wasted, as well as damages for the waste. 2 Inst. 300, 301. The ordinary remedy for waste has for a long while been by an action on the case in the nature of waste; and now, by 3 & 4 Will. 4, c. 27, s. 36, the writ of waste is itself abolished, and consequently that action is now the only remedy. 2 Wms. Saund. 252 et seq. (7). By the J. Act, 1873, s. 25 (3), a tenant for life without impeachment of waste may not commit equitable waste unless an intention to allow him to do so shall expressly appear by the instrument creating the estate.

The general rule as to waste at common law is that, in order to constitute it, there must be a diminution of value of the estate by it; or an increased burden upon it; or an impairing of the evidence of title. Per Patteson, J., in Huntley v. Russell, 13 Q. B. 572. It is not waste for a tenant to dig gravel from pits, or work mines already open on the land when leased, if they are not excepted; Co. Lit. 546; Bac. Abr. Waste (C. 3); nor to work quarries which have been worked by the owners of the inheritance for the purpose of making a profit. Elias v. Griffith, 8 Ch. D. 521, C. A., affirm. sub nom. Elias v. Snowdon Slate Quarries Co., 4 Ap. Ca. 454, D. P. In this case Ld. Selborne was of opinion that working for use would be sufficient. Id. p. 465. But where gravel pits are opened by surveyors of highways under the Highway Acts, the tenant cannot continue to work and sell gravel for his own profit. Huntley v. Russell, supra (case of rector for dilapidations by predecessor). If anything is done to destroy the evidence of title, an action is maintainable by the landlord against his tenant. Thus, if the tenant open a new door, the landlord may recover against him in this action pending the lease, though the house itself may not be the worse for it, provided the jury find that his reversionary interest is injured; for the mere alteration of the property may tend to the injury of the owner. Young v. Spencer, 10 B. & C. 145, 152. It is observable that an act of the nature here referred to seems to be actionable without regard to its effect on the evidence of title; for the

alteration cannot be made without destroying at least some part of the freehold, which no tenant has a right to do, even although compensating improvement may in other respects result from it. In this latter case, however, the waste was known in equity as "meliorating waste," and an injunction will not be granted to restrain it. Doherty v. Allman, 3 Ap. Ca. 709, D. P. The erection of buildings on the land demised is not waste unless the building is an injury to the inheritance. Jones v. Chappell, L. R., 20 Eq. 539. The tenant is bound during the term to keep distinctly marked the boundaries between the demised land and his own land adjoining. Spike v. Harding, 7 Ch. D. 871. See Searle v. Cooke, 43 Ch. D. 518, C. A.

Harnett v. Maitland,

A tenant at will is not liable for permissive waste. 16 M. & W. 257. But, tenants for years are liable for permissive, as well as for voluntary waste. See S. C. and Yellowly v. Gower, 11 Exch. 274, 293, 294; 24 L. J., Ex. 289, 298; in which cases some earlier decisions are explained or overruled. Accord. Davies v. Davies, 38 Ch. D. 499. See also Litt. s. 67; Co. Litt. 53 a; 2 Inst. 299; and 1 Wms. Saund. 323 d (x), and Woodhouse v. Walker, 5 Q. B. D. 404. In Avis v. Newman, 41 Ch. D. 532, a tenant for life was held, by Kay, J., not liable for permissive waste; the decision seems, however, to be inconsistent with the opinions expressed by the courts (not mere dicta of Parke, B., and Lush, J.) in Yellowly v. Gower, and Woodhouse v. Walker, supra, that tenants for life and for years are under the same liability.

An action for waste will lie by the lessor although the waste amounts also to a breach of covenant in the lease for which he might sue; Kinly· side v. Thornton, 2 Wm. Bl. 1112; Marker v. Kenrick, 13 C. B. 188; 22 L. J., C. P. 129; but the acts for which the action is brought must be waste per se and not mere breach of covenant. Jones v. Hill, 7 Taunt. 392. And, the covenants may restrict the liability for acts that would otherwise be waste. Doe d. Dalton v. Jones, 4 B. & Ad. 126; Yellowly v. Gower, 11 Exch. 274; 24 L. J., Ex. 289. Where the destruction of a building demised is caused by its user in an apparently reasonable and proper manner, having regard to its character and the purposes for which it was intended to be used, this is not waste. Manchester Bonded Warehouse Co. v. Carr, 5 C. P. D. 507.

The right of a remainderman to sue tenant for life for waste arises when the waste is committed, and the Statute of Limitations then begins to run. Higginbotham v. Hawkins, L. R., 7 Ch. 676. As to right to trees as between tenant for life and remainderman, see Honywood v. Honywood, L. R., 18 Eq. 306.

In an action of waste the defendant is entitled to the verdict unless the damages are substantial. Doherty v. Allman, 3 Ap. Ca. 709, 733, per Ld. Blackburn, citing Harrow School, Governors of v. Alderton, 2 B. & P. 86, per Ld. Eldon. The measure of damages is the diminution of the value of the reversion, less a discount for immediate payment. Whitham v. Kershaw, 16 Q. B. D. 613, C. A.

By 14 & 15 Vict. c. 25, s. 3, the tenant of a farm who shall erect any buildings on the farm for agricultural or trade purposes by written consent of his landlord, will be at liberty to remove them if the lessor shall not buy them within a month after notice of removal, at a valuation fixed by referees. See further the Agricultural Holdings (England) Act, 1883 (46 & 47 Vict. c. 61), ss. 34, 54, 55.

Where a lease provides that at the expiration of the tenancy all damages done by the tenant should “be made good or paid for by the tenant, the amount of such payment, if in dispute, to be referred to and settled by two valuers," the settlement of the amount of the payment is a condition

precedent to an action in respect of dilapidations. Babbage v. Coulburn, 9 Q. B. D. 235. It is otherwise where there is also an independent contract to pay fair compensation. Dawson v. Fitzgerald, 1 Ex. D. 257, C. A.

Non-repairs.] The obligation to repair implied in a tenancy for years, in the absence of express stipulation, is not well defined. A tenant from year to year is only bound to keep the premises wind and water-tight, and to use them in a "tenantlike" or "husbandlike" manner. Ferguson 2 Esp. 590; Horsefall v. Mather, Holt, N. P. 7; Auworth v. Johnson, 5 C. & P. 239; Leach v. Thomas, 7 C. & P. 327. As to the tenant's liability when the non-repair amounts to waste, vide ante, p. 336.

V.

If the tenant hold over after a lease with a repairing covenant, he presumably continues liable for the same repairs, so far as they are consistent with a yearly tenancy; Digby v. Atkinson, 4 Camp. 275; Beale v. Sanders, 3 N. C. 850; Arden v. Sullivan, 14 Q. B. 832; Ecclesiastical Commrs. v. Merral, L. R., 4 Ex. 162; unless altered circumstances rebut the presumption. Johnson v. St. Peter, Hereford, 4 Ad. & E. 520. Where a tenant enters under a lease for seven years, not under seal, and thereby agrees to do certain repairs in the 7th year of the term, and he occupies and pays rent during the whole term, he is bound to do the repairs. Martin v. Smith, L. R., 9 Ex. 50.

An express contract to repair supersedes implied obligations of the like nature. Standen v. Chrismas, 10 Q. B. 135. The law with regard to the obligation to repair under such a covenant, is stated under tit. Action on covenant to repair, post, pp. 700 et seq.

There is no implied obligation of the landlord to do substantial repairs though the premises be in a dangerous state. Gott v. Gandy, 2 E. & B. 845; 23 L. J., Q. B. 1. Nor, to inform a proposed tenant of their state. Keates v. Cadogan, El. of, 10 C. B. 591; 20 L. J., C. P. 76. As to how far it might be an answer to an action on the lessee's covenant to repair, see Colebeck v. Girdlers' Co., 1 Q. B. 231. The tenant in common of a house is under no liability to contribute to expense of repairs done by his co-tenant. See Leigh v. Dickeson, 15 Q. B. D. 60, C. A.

Good husbandry-Custom.] The obligation to good husbandry arises. either by contract, or the mere relation of tenant, or from local custom, or other circumstances. The custom is not necessarily excluded by proof of express agreement, if the two be consistent. Hutton v. Warren, 1 M. & W. 466. But, a custom that an outgoing tenant should leave the manure, being paid for it, is excluded by an express stipulation that he should leave it without any mention of payment. Roberts v. Barker, 1 Cr. & M. 808. A tenant who holds over after a lease has expired, or enters under an agreement for a lease, holds subject to the terms of the lease, as to the course of husbandry. S. C.: Doe d. Thomson v. Amey, 12 Ad. & E. 476. See also the cases cited supra. But, if after holding over and paying rent, he by deed assign his interest to a third person, the assignee does not, until his tenancy has been recognized by the lessor, hold on the terms of the original lease. Elliott v. Johnson, L. R., 2 Q. B. 120. In this case there was a clause in the lease against assignment, but the majority of the court rested their judgment on the ground that the doctrine of conditions running with the land is confined to covenants annexed to the land by indenture of demise, and a mere assignment of a parol tenancy does not pass to the assignees the right to enforce collateral stipulations. Id. 124, 127.

Though it is generally treated as a custom for the incoming tenant to pay the value of fallows, &c., to the outgoing tenant, yet when there is no

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incoming tenant, the contract implied by the custom is that the landlord shall pay the value. Faviell v. Gaskoin, 7 Exch. 273; 21 L. J., Ex. 85. In such case the person in receipt of the rents is liable, although only tenant for life. Mansel v. Norton, 22 Ch. D. 769, C. A. Prima facie, the outgoing tenant's remedy for tillages or tenant right is against the landlord, for there is, under ordinary circumstances, no privity between the outgoing and incoming tenants. The mere fact of the incoming tenant entering upon the land does not render him liable for such tillages, but it is a question of fact whether the contract between the outgoing tenant and the landlord subsists, or a new contract has been entered into with the incoming tenant, the landlord being discharged. Codd v. Brown, 15 L. T., N. S. 536; H. T. 1867, C. P.; Sucksmith v. Wilson, 4 F. & F. 1083, Martin, B.; and see Faviell v. Gaskoin, supra, and Bradburn v. Foley, 3 C. P. D. 128. And, a usage that the outgoing tenant should look to the incoming tenant for payment for such tillages, to the exclusion of the landlord's liability, is unreasonable and bad. S. C. Whatever the arrangement between the outgoing and incoming tenant, the landlord is entitled to a payment of arrears of rent due from the former out of the valuation. Stafford v. Gardner, L. R., 7 C. P. 242. The amount is recoverable by the tenant from the landlord on a quantum meruit, and the ascertainment of the amount by valuation is not a condition precedent to his right to sue when it is not made such by the terms of the lease. Sucksmith v. Wilson, supra. Where a tenant holds on the general terms of cultivating according to good husbandry, drainage may be part of it, and a custom for the outgoing tenant to charge his landlord with part of the expense of such drainage, though done without his knowledge, is reasonable and consistent with the terms. Mousley v. Ludlam, 21 L. J., Q. B. 64. As to the allowance of interest on the valuation, see Marsh v. Jones, 40 Ch. D. 563. A stipulation that the tenant shall not sell any straw or manure produced on the farm without licence, disables him from selling it even after the tenancy has expired. Massey v. Goodall, 17 Q. B. 310; 20 L. J., Q. B. 526. By the Agricultural Holdings (England) Act, 1883 (46 & 47 Vict. c. 61), sect. 57," a tenant shall not be entitled to claim compensation by custom, or otherwise, than in manner authorized by this Act, in respect of any improvement for which he is entitled to compensation under or in pursuance of this Act."

A valuation made in the usual way cannot be reopened, although the valuers have included therein things which by the custom of the country should not have been valued or which did not exist. Per Kelly, C. B., Martin and Pigott, BB., Freeman v. Jeffries, L. R., 4 Ex. 189.

Action by and against assignee of lessor.] The stat. 32 Hen. 8, c. 34, does not extend to parol contracts; Standen v. Chrismas, 10 Q. B. 135: but where the assignee can determine the tenancy, the continued holding of the tenant under him is evidence of an agreement with the assignee to hold on the old terms. Buckworth v. Simpson, 1 C. M. & R. 834, 844; Arden v. Sullivan, 14 Q. B. 832; Cornish v. Stubbs, L. R., 5 C. P. 334; Smith v. Eggington, L. R., 9 C. P. 145. In other cases the action must have been in the name of the original lessor. Bickford v. Parson, 5 C. B. 923. See Elliott v. Johnson, L. R., 2 Q. B. 120; Allcock v. Moorhouse, ante, p. 325. Now, however, under the Conveyancing and Law of Property Act, 1881, s. 10 (1), post, p. 689, the person entitled to the income of the land may enforce any provision contained in a lease, made after December 31st, 1881, having reference to the subject-matter thereof, and this section seems to apply to parol leases.

Where a demise is determined by the expiration of the landlord's estate,