in support of the positions which they are to maintain.

It is not

necessary to refer to the cases on the implied warranty of chattels, further than to say that the rule of the common law, which prevails in general (Co. Lit. 102, a), that there is no implied warranty on the sale of specific goods, has had exceptions engrafted upon it, where the goods are ordered from a manufacturer, or tradesman, who impliedly engages to use a proper degree of skill and care in constructing or supplying them. Such are the cases of Brown v. Edgington, 2 Man. & Gr. 279; 2 Scott, N. R. 496; Shepherd v. Pybus, 3 Man. & Gr. 868; 4 Scott, N. R. 434, and others. These have no bearing on the present case.

But the defendant chiefly rests his case upon the decision of Smith v. Marrable, 11 M. & W. 5. My judgment in that case certainly proceeded upon the authority of two previous * decisions, which, though they contained a novel doctrine, [* 87] had not been questioned in Westminster Hall, and had received, to a certain degree, the sanction of the Lord Chief Justice TINDAL, in a subsequent case. Those cases were Edwards v. Etherington, before Lord TENTERDEN, and afterwards the Court of King's Bench, Ry. & M. 268, and 7 D. & R. 117, and Collins v. Barrow, 1 M. & Rob. 112; and the last, that before Lord Chief Justice TINDAL, was Salisbury v. Marshall, 4 Car. & P. 65; and I thought they established the doctrine, not merely that there was an implied contract on the part of the lessor that the house demised should be habitable, but an implied condition, that the lease should be void if it were not, and the tenant chose to quit. From the full discussion which those cases have now undergone, on the present argument, and that in the recent case of Sutton v. Temple, 12 M. & W. 64, I feel satisfied they cannot be supported, if the reports of them are correct; and we all concur in opinion that they are not law, an opinion strongly intimated, in the case of Sutton v. Temple, in which this Court decided, that there was no implied warranty of condition or fitness for a particular purpose on a lease of aftermath.

We are under no necessity of deciding in the present case, whether that of Smith v. Marrable be law or not. It is distinguishable from the present case on the ground on which it was put by Lord ABINGER, both on the argument of the case itself, but more fully in that of Sutton v. Temple; for it was the case of a demise of a ready-furnished house for a temporary residence at a

Nos. 2, 3.

Belfour v. Weston; Hart v. Windsor. —Notes.

watering-place. It was not a lease of real estate merely. But that case certainly cannot be supported on the ground on which I rested my judgment.

We are all of opinion, for these reasons, that there is no con

tract, still less a condition, implied by law on the demise of [* 88] real property only, that it is fit for the purpose for * which it is let. The principles of the common law do not warrant such a position; and though, in the case of a dwelling-house taken for habitation, there is no apparent injustice in inferring a contract of this nature, the same rule must apply to land taken for other purposes, for building upon, or for cultivation; and there would be no limit to the inconvenience which would ensue. It is much better to leave the parties in every case to protect their interests themselves, by proper stipulations, and if they really mean a lease to be void by reason of any unfitness in the subject for the purpose intended, they should express that meaning. Judgment for the plaintiff.

ENGLISH NOTES.

The principles which regulate the liability of the lessor are thus stated by Lord ROMILLY, M. R., in Chappell v. Gregory (1863), 34 Beav. 250. "A promise by a lessor to put the house into a complete state of repair before the lease is executed, and upon the faith of which a lease is taken, is a distinct engagement which must be fulfilled by him. But, in the absence of such a promise, a man who takes a house from a lessor, takes it as it stands, it is his business to make stipulations beforehand, and if he does not, he cannot say to the lessor, this house is not in a proper condition, and you or your builder must put it into a condition which makes it fit for my living in."" A representation that an unfurnished house is fit for immediate occupation made before the commencement of a tenancy is a warranty, and entitles the tenant to rescind if untrue. Burn v. Harrison (C. A. 1886), 3 Times L. R. 146. That case is an illustration of the rule deduced from Behn v. Burness (Ex. Ch. 1863), No. 44 of "Contract," 6 R. C. 492. "Statements intended to be a substantive part of the contract, and which are essential to its primary objects, constitute a warranty in the sense of a condition on the failure or non-performance of which the other party may repudiate the contract in toto."

In Burn v. Harrison, supra, the Court of Appeal expressly left open the question whether the case of Smith v. Marrable (cited in the ruling case, and further noted below), would or would not apply where it was

Nos. 2, 3. Belfour v. Weston; Hart v. Windsor. Notes.

understood by both parties that an unfurnished house was required for immediate occupation. It is only in a Court of review that the point is open, if at all. Keates v. Earl Cadogan (1851), 10 C. B. 591, 20 L. J. C. P. 76. In that case the declaration alleged that the defendant knew, and that the plaintiff did not know, that the house was in a ruinous condition, and the plaintiff "proposed to the defendant that the defendant should lease to him, and that the plaintiff should take from him as his tenant for the purpose of the plaintiff immediately occupying and dwelling in the same," the demised property. It was held on demurrer, that this declaration was bad, and that the plaintiff would have to show, in order to entitle him to succeed, that the defendant knew that the intended lessee was influenced by his belief that the house was sound in agreeing to take it, or that the conduct of the defendant amounted to a deceit practised upon the plaintiff. In the second principal case also an immediate occupation was apparently contemplated. The principle stated in the same case is accepted by Lord BLACKBURN, without any expression of dissent and without limitation, in Searle v. Laverick (1874), L. R., 9 Q. B. 122, 131, 43 L. J. Q. B. 43, 30 L. T. 89, 22 W. R. 367; and in Westropp v. Elligott (H. L. 1884), 9 App. Cas. 815, 827, 52 L. T. 147. The principle is also accepted in Manchester Bonded Warehouse Co. v. Carr (1880), 5 C. P. D. 507, 49 L. J. C. P. 809, 43 L. T. 476, 29 W. R. 354. Upon a contract to hire a specified vessel, there is no implied undertaking by the shipowner that the vessel is reasonably efficient for the purposes of the voyage contemplated. Robertson v. Amazon Tug Co. (C. A. 1881), 7 Q. B. D. 598, 51 L. J. Q. B. 68, 46 L. T. 146, 30 W. R. 308.

The legislature has introduced an implied condition into contracts for letting houses for habitation by the working classes. By s. 75 of the Housing of the Working Classes Act 1890 (53 & 54 Vict. c. 70), s. 75, reproducing sect. 12 of the earlier Act of 1885 (48 & 49 Vict. c. 72), it is enacted that in such contracts there shall be implied "a condition that the house is at the commencement of the holding in all respects reasonably fit for human habitation."

There is no implied undertaking on the part of the landlord that the house shall continue fit during the term, and the landlord is not, in the absence of an express contract, bound to do repairs during the continuance of the term. Gott v. Gandy (1853), 2 Ell. & Bl. 845, 23 L. J. Q. B. 1; Colebeck v. Girdlers' Co. (1876), 1 Q. B. D. 235. The law in Scotland is the same. Bayne v. Walker (H. L. 1815), 3 Dow. 233, 15 R. R. 53.

This exemption of the landlord is affected by the provisions of the Public Health Act 1875 (38 & 39 Vict. c. 55), ss. 94 and following, and the Public Health (London) Act 1891 (54 & 55 Vict. c. 76), ss. 11

Nos. 2, 3. Belfour v. Weston; Hart v. Windsor. Notes.

may

however by

and 121, so far as regards nuisances. The landlord contract throw the liability upon the tenant. Public Health Act 1875, s. 104; Public Health (London), Act, 1891, s. 121.

Where a house has become dilapidated during the term it has sometimes been attempted to fix the landlord with liability, on the principle that a man cannot derogate from his own grant.

In Grosvenor Hotel Co. v. Hamilton (C. A. 1894), 1894, 2 Q. B. 836, 63 L. J. Q. B. 661, 71 L. T. 362, 42 W. R. 626, the defendant had demised lands, on which stood a house, to the plaintiff company. The defendant, by working engines on adjacent property, caused vibration which wrecked the house. The defendant attempted to show that the house was at the date of its destruction, and at the date of the demise, in an unstable condition, but this contention was rejected on the ground above mentioned. The judgment in this case is rested on tort and not in contract. The Court also distinguished the case from their earlier decision in Robinson v. Kilvert (C. A. 1889), 41 Ch. D. 88, 58 L. J. Ch. 392, 61 L. T. 60, 37 W. R. 545. In that case the defendants leased a part of the house to the plaintiff, who used the same to store paper. The defendants then commenced on their part of the premises another business which required heat, and raised the temperature of the plaintiff's floor, which had the effect of causing the plaintiff's paper to become deteriorated. The act complained of did not amount to an actionable nuisance, and an application for an injunction against the landlord, to restrain him from continuing his user of the part of the house in the manner complained of, was refused.

Miller v. Hancock (C. A. 1893), 1893, 2 Q. B. 177, 69 L. T. 214, 41 W. R. 578, rests on a different principle, and belongs to that class of cases which are sometimes called trap" cases. The principle of these cases is this, that where a man invites another to come upon his property, he impliedly warrants that there shall be no hidden dangers or traps. In Miller v. Hancock, the defendant was the owner of a building which he let out in tenements, but the staircase by which access was obtained to the different rooms remained in the possession of and under the control of the defendant. The plaintiff, who was using the staircase as a means of access to a room occupied by a tenant, sustained injuries through the defective condition of one of the stairs. It was held that the defendant was liable by implication to repair the stairs and was bound to compensate the plaintiff. On the other side of the line appear such cases as Ivay v. Hedges (1882), 9 Q. B. D. 80. In that case the landlord of a house which was let out in tenements, permitted the tenants to use the roof for the purpose of drying their linen. A rail ran round the outer edge of the roof, but was known to the landlord to be out of repair. The plaintiff went on the roof to

Nos. 2, 3. Belfour v. Weston; Hart v. Windsor. —Notes.

remove some linen, when he slipped and fell against the rail, which gave way, and the plaintiff fell into the courtyard below. In this case the landlord was held not to be liable, on the ground that the user of the roof was not a necessary part of the holding, as a staircase or passage giving access to rooms would be.

Where a furnished house or apartments is or are let for immediate occupation, the tenant is entitled to assume that the same is or are fit for habitation, and if this is not the case, he may put an end to his tenancy. Smith v. Marrable (1843), 11 M. & W. 5, 12 L. J. Ex. 223 (the well-known bug case); Wilson v. Finch Hatton (1877), 2 Ex. D. 336, 46 L. J. Ex. 489, 36 L. T. 473, 25 W. R. 537 (defective drains). There is, however, no implied agreement that the property will continue fit for habitation during the term. Sarson v. Roberts (C. A. 1895), 1895, 2 Q. B. 395, 73 L. T. 174, 43 W. R. 690.

Where the landlord agrees to do the repairs, and fails to perform that obligation, the tenant cannot throw up the lease, but his remedy against the landlord is by a cross-action. Hunt v. Silk (1804), 5 East, 449, 2 Smith, 15, 7 R. R. 739; Manchester Bonded Warehouse Co. v. Carr (1880), 5 C. P. D. 507, 49 L. J. C. P. 809, 43 L. T. 476, 29 W. R. 354.

Where the landlord is bound to repair he is entitled to notice from the tenant of want of reparation. Manchester Bonded Warehouse Co. v. Carr, supra.

A landlord bound to repair is responsible for damages suffered by a third person from want of repair. Payne v. Rogers (1794), 2 H. Bl. 350, 3 R. R. 415; Sandford v. Clarke (1888), 21 Q. B. D. 398, 57 L. J. Q. B. 507; Miller v. Hancock (C. A. 1893), 1893, 2 Q. B.177, 69 L. T. 214, 41 W. R. 578.

Questions relating to leases under powers whether contained in a deed or will or conferred by statute, may be here briefly adverted to. In Doe d. Ellis v. Sandham (1787), 1 T. R. 705, 1 R. R. 369, where the tenant for life under a will was empowered to grant leases for years reserving the usual covenants, a lease containing a proviso that in case the premises were blown down or burnt the lessor should rebuild, otherwise the rent should cease, was held void,— the jury having found that such proviso was unusual. A bill was subsequently filed to rectify the lease so as to bring it within the power, but the bill was dismissed. Medwin v. Sandham (1789), 3 Swanston, 685. The Chancery Division would now (under the Act 12 & 13 Vict. c. 26, s. 2) have power to treat a lease, invalid by reason of deviation from the terms of the power, as a contract in equity for such a lease as might have been granted under power. To enable this to be done, however, the lease must have been granted bona fide, and there must have been an entry by the lessee,

the