No. 8.-Lister v. Lane and Nesham, 1893, 2 Q. B. 214–216.

would be gradual, and it would get worse from 1890 to 1891. I do not think it would have been profitable to [* 215] repair it without pulling it down. The soil is very boggy,

and the gravel is seventeen feet down.

"

T. Terrell, for the plaintiffs. There was a breach of the defendants' covenant to repair during the lease and at the end of it. The defendants might have underpinned the wall; but the learned Judge at the trial held that that would have cost so much that it did not reasonably come within the covenant. No doubt the authorities show that such a covenant must be construed with regard to the nature and the age of the demised premises. here the covenant is not only to "repair," but also to " uphold, maintain, and keep" the premises. Under a general covenant to repair the tenant is bound to rebuild a house if it is accidentally destroyed by fire. Bullock v. Dommitt, 6 T. R. 650 (3 R. R. 300).

But

The principles applicable to the construction of repairing covenants are shown by Payne v. Haine, 16 M. & W. 541, 16 L. J. Ex. 130; Easton v. Pratt, 2 H. & C. 676; Proudfoot v. Hart, 25 Q. B. D. 42; Gutteridge v. Munyard, 7 C. & P. 129; 1 Mood. & Rob. 334 (p. 474, ante).

[BOWEN, L. J., referred to Soward v. Leggatt, 7 C. & P. 613.] McCall, Q. C., and Stewart-Smith, for the defendant Nesham, were not heard.

Lord ESHER, M. R. In deciding this case we have to consider by what rules we ought to govern our inquiry. In Smith's Law of Landlord and Tenant, 3d ed. at p. 302, I think that the result of the cases is properly stated. I do not cite that work as an authority, but only as stating correctly the rule to be deduced from the cases. The learned author says, referring to Gutteridge v. Munyard and other cases: These cases establish that, where there is a general covenant to repair, the age and general 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 upon an old house is not bound to leave it in the same * state as if it [* 216] were a new one." You have to consider not only what the damage is what is the amount of repair required — but also whether the covenant has been broken. That I take to be the right rule, and it is derived partly from the summing up of TINDAL, C. J., in Gutteridge v. Munyard, 1 Mood. & Rob. 334;

VOL. IX. - -31

No. 8. Lister v. Lane and Nesham, 1893, 2 Q. B. 216, 217.

7 C. & P. 129 (p. 474, ante), which is always cited on this point. The learned Chief Justice said, 1 Mood. & Rob. at p. 336 (p. 475, ante): "Where a very old building is demised, and the lessee enters into a covenant to repair, it is not meant that the old building is to be restored in a renewed form at the end of the term or of greater value than it was at the commencement of the term. What the natural operation of time flowing on effects, and all that the elements bring about in diminishing the value, constitute a loss which, so far as it results from time and nature, falls upon the landlord. "

You have then to look at the condition of the house at the time of the demise, and, amongst other things, the nature of the house, - what kind of a house it is. If it is a timber house, the lessee is not bound to repair it by making a brick or a stone house. If it is a house built upon wooden piles in soft ground, the lessee is not bound to take them out and to put in concrete piles. That seems to me to be the effect of Soward v. Leggatt, 7 C. & P. 613, in which Lord ABINGER, C. B., said (at p. 617): "The surveyor who has been called on the part of the plaintiff, has given you an estimate; but it is also proved that, when the repairs came to be done, they amounted to considerably more than the estimate and that is generally the case, because, when the work is actually done, improvements are made for which the tenant is not liable, of which the improved mode of laying the joists in the kitchen is an example, and if the joists have been now laid in a manner which will make them more durable and last longer before new ones are again wanted, that is a thing for which the tenant is not liable on the covenant to repair.

Those cases seem to me to show that, if a tenant takes a house which is of such a kind that by its own inherent nature it will in course of time fall into a particular condition, the effects of that result are not within the tenant's covenant to repair. [* 217] However * large the words of the covenant may be, a covenant to repair a house is not a covenant to give a different thing from that which the tenant took when he entered into the covenant. He has to repair that thing which he took; he is not obliged to make a new and different thing; and, moreover, the result of the nature and condition of the house itself, the result of time upon that state of things, is not a breach of the covenant to repair.

No. 8.-Lister v. Lane and Nesham, 1893, 2 Q. B. 217, 218.

What is the evidence in the present case? The house is an old house built in Lambeth. Lambeth, as we know, was formerly at every unusually high spring tide under water. Therefore, the

soil on which this house was built was saturated with water and turned into mud. The high tides in the Thames that is, the natural elements made that soil from time to time a boggy and muddy soil, and a shifting soil, for the moment it becomes liquid it shifts like a moss. How did people build at that time upon that muddy soil? They did not go down to the gravel below, but they placed a platform of timber, which, as it were, floated on the muddy soil, in the same way as when the railway went through Chatmoss, the engineer put into the moss as many fagots as possible, and then built the railway on them. So here the builder placed a platform of timber on this muddy soil, and built the house upon it. That is the nature of this house. Whatever happens by natural causes to such a house in course of timethe effects of natural causes upon such a house in the course of time are "results from time and nature which fall upon the landlord," and they are not a breach of the covenant to repair. They are matters which must be taken into account in considering whether the covenant to repair has been broken, and, when they are the results of time and nature operating on such a house, they are not a breach of the covenant, and the tenant is not bound to do anything with regard to them. That, as it seems to me, is the state of things in this case, and therefore the decision of GRANTHAM, J., was quite right. The tenant from time to time. did the proper repairs, and now the plaintiffs want him to do something for which he is not liable, and which would be of no avail unless he built a house of an entirely different kind.

BOWEN, L. J., I agree.

*KAY, L. J. I am of the same opinion. I will add a [*218] few words with regard to the law. In construing such a covenant, regard must be had to the character and condition of the demised property, and, assuming that this covenant is, as has been argued, expressed in the largest terms, that it is a covenant to keep in repair and to put in repair, still Payne v. Haine, 16 M. & W. 541, 16 L. J. Ex. 130, shows that regard must be had to the character of the house to which the covenant applies. Here the house was built upon a timber structure laid upon mud, the solid gravel being seventeen feet below the timber structure,

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

the tenancy.

and the only way in which the effect of time upon the house could be obviated is, according to the surveyor's evidence, by "underpinning" the house. That was the only way to repair it during Underpinning," as I understand, means digging down through the mud until you reach the solid gravel, and then building up from that to the brickwork of the house. Would that be repairing, or upholding, or maintaining the house? To my mind, it would not; it would be making an entirely new and different house. It might be just as costly to underpin as to pull the house down and rebuild it. No one says, as I judge from the evidence, that you could repair the house by putting in a new timber foundation. The only way, as the surveyor says, to repair it is by this underpinning. That would not be either repairing, or upholding, or maintaining such a house as this was when the lessee took it, and he is not liable under his covenant for damage which accrued from such a radical defect in the original structure. The appeal must be dismissed with costs.

ENGLISH NOTES.

Appeal dismissed.

A covenant to repair runs with the land, and the assignee of a lease is bound by the terms of a covenant to repair, although the assigns are not named in the covenant. Martyn v. Clue (1852), 18 Q. B. 661, 22 L. J. Q. B. 147; Minshull v. Oakes (1858), 2 H. & N. 793, 27 L. J. Ex. 194; Williams v. Williams (1868), L. R., 3 Q. B. 739, 37 L. J. Q. B. 231, 9 B. & S. 740.

The original lessee continues liable on his covenant to repair, after he has assigned: "It is extremely clear, that a person who enters into an express covenant in a lease, continues liable on his covenant notwithstanding the lease be assigned over. The distinction between the actions of debt and covenant, which was taken in early times, is equally clear; if the lessee assign over the lease, and the lessor accept the assignee as his lessee, either tacitly or expressly, it appears by the authorities that an action of debt will not lie against the original lessee; but all those cases with one voice declare, that if there be an express covenant, the obligation on such covenant still continues. And this is founded not on precedents, but on reason; for when the landlord grants a lease he selects his tenant; he trusts to the skill and responsibility of that tenant; and it cannot be endured that he should afterwards be deprived of his action on the covenant to which he trusted by an act to which he cannot object, as in the case of an execution." Per Lord KENYON, CH., J., Auriol v. Mills (1790), 4 T. R. 94, 98, 2

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

R. R. 341. In 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, the interest of the lessees had been compulsorily acquired by a railway company. The question, in the action by the lessor against the lessee upon the covenants in a lease, was whether the state of repair should be taken at the time when the notice to treat was given, or when the assignment was executed and possession given to the railway company. The landlord was willing to accept the latter period as the proper time, and did not attempt to argue that the liability of the tenant continued. after the date of the execution of the assignment. For the tenant it was argued that the time for estimating the damages was the date of the notice to treat, but this contention was rejected by the Court.

The Court has construed covenants to repair, whatever form of expression has been used, as involving practically similar obligations. Thus "good repair" and "habitable repair" have been treated as amounting to the same thing. Cooke v. Cholmondeley (1858), 4 Drew. 326, 27 L. J. Ch. 826. "Habitable repair" has been defined to be a state of repair fit for the occupation of an inhabitant. Belcher v. McIntosh (1839), 8 Car. & P. 720, 2 Moo. & Rob. 186. The qualification of a covenant "to keep a house in tenantable repair" by the adjective "good" does not seem to extend materially the liability of the tenant. Proudfoot v. Hart (C. A. 1890), 25 Q. B. D. 42, 59 L. J. Q. B. 389, 63 L. T. 171, 38 W. R. 730. Leases sometimes contain covenants to do particular items of repairs, and specify the periods at which these matters shall be executed, e. g., that the tenant shall once in every seven years whitewash, paint, and paper the inside of the demised property, where the same are accustomed to be whitewashed, painted, and papered. Upon a proof of the breach of the latter covenant the plaintiff would be entitled to nominal damages. Harris v. Jones (1832), 2 Moo. & Rob. 173. In that case the jury notwithstanding the direction of the judge at the trial found a verdict generally for the defendant, and a rule for a new trial was discharged, on the ground that in any event the plaintiff would not have been entitled to £20 damages.

Although the landlord has covenanted to do the repairs the tenant is not entitled to give up the premises on the ground that the landlord has failed to do the repairs, although the premises are thereby made. unfit for the purpose for which they were taken. Surplice v. Farns worth (1844), 7 Man. & Gr. 576, 8 Scott, N. R. 307, 13 L. J. C. P. 215. Where there is an engagement on the part of the tenant to do repairs, and an undertaking by the landlord to supply the materials, or a liberty to use materials growing or being on the land, the obligation of the tenant in general is not qualified, but he must repair, whether the landlord fulfils his obligation, or the materials exist or not. Dean