341.

1 A lessee from year to year holding over becomes a trespasser or continues to he a tenant, as the landlord elects. Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151 - K.

(a) Ferguson v. ---------, 2 Esp. 590;

Gibson v. Wells, 4 B. & P. 290; Pomfret v Ricroft, 1 Wms. Saund. 323 b, n. (7); Horsefall v. Mather, Holt, 7; Auworth v. Johnson, 5 C. & P. 239; Torriano v. Young, 6 id. 8; Libbey v. Tolford, 48 Me. 316; U. S. v. Bostwick, 94 U. S. 53; Miller v. Shields, 55 Ind. 71.

(b) Wise v. Metcalf, 10 B. & C. 312. But a declaration stating, that in consideration that the defendant had become tenant to the plaintiff of a farm, the defendant undertook to make a certain quantity of fallow, and to spend £60 worth of manure every year thereon, and to keep the buildings in repair, was held bad on general demurrer; those obligations not arising out of the bare relation of landlord and tenant. Brown v. Crump, 1 Marsh. 567. See also Granger v. Collins, 6 M. & W. 458; Jackson v. Cobbin, 8 id. 790.

(c) Payne v. Haine, 16 M. & W. 541. But the age and character of the premises must be considered in determining the proper extent of the repairs. Id. See also Mantz v. Goring, 4 Bing. N. C. 451; Burdett v. Withers, 7 A. & E. 36; Belcher v. Mcintosh, 2 Man. & R. 186.

(d) Mumford v. Bowen, 6 Cowen, 475; Witty v. Matthews, 52 N. Y. 512; Colbeck v. Girdlers Co. 1 Q. B. D. 234; as on a hotel, Morris v. Tillson, 81 Ill. 607 , waterworks, Skillen v. Waterworks, 49 Ind. 193; or salt-works, Clark v. Babcock, 23 Mich. 164.

(e) 40 Ed. 3, 6, pl. 11; Paradine v. Jane, Aleyn, 27; Bullock v. Dommitt, 6 T. R. 650; Brecknock Canal Co. v. Prit-chard, 6 T. R. 750. In re Skingley, 3 E. L. & E. 91; Allen v. Culver, 3 Denio, 284; Spence v. Chadwick, 10 Q. B. 517, 530; Phillips v. Stevens, 16 Mass. 238; Fowler v. Bott, 6 Mass. 63.

(f) Bayley v. Lawrence, 1 Bay, 499; Pollard v. Shaaffer, 1 Dallas, 210. See Proctor v. Keith, 12 B. Mon. 252.

(ff) Buschman v. Wilson, 29 Md. 553.

1 As to leaving rubbish on the premises, see Thorndike v. Burrage, 111 Mass. 531. 2 He must leave in as good condition as can be done without changing form or material. Ardesco Oil Co. v. Richardson, 63 Penn. St. 162.

repair, there is no implied promise to use premises in a tenantlike manner, (g) but such tenant is liable to third parties for damages resulting from the ruinous state of the premises; and the landlord is not, if the premises were in good order when leased. (h) But the tenant is not made liable by this agreement for acts done before the execution of the indenture, although its habendum states that the premises are to be held from a day prior to the day of the execution. (i) And an underlessee, with covenants to repair, is liable to his immediate landlord only for such damages as result directly from the breach of his * own contract; and not for such as the owner may recover from the mesne landlord. (j)

The tenant of a farm is bound, without express covenants, to manage and cultivate the same in such manner as may be required by good husbandry and the usual course of management of such farms in that vicinity. And if he fails to do so, assumpsit may be maintained on the breach of the implied promise. (k) If he be tenant for years, he may cut on the land a reasonable quantity of wood for fires and repairs. (kk)

It is no answer to a demand for rent that the premises are not in a fit and proper state and condition for the purposes for which they are hired. (l)1 If, therefore, the premises are burned down, and the tenant is under no obligation to rebuild (not having agreed to keep in repair), or are destroyed by the act of God or the public enemies, yet he is bound to pay rent thereafter, (m)

(g) Standen v. Christen, 10 Q. B. 35.

(h) Bears v. Ambler, 9 Penn. St. 193; Hoy v. Holt, 91 Penn. St. 88; Ely v. Ely, 80 Ill. 532.

(0 Shaw v. Kay, 1 Exch. 412.

(j) Logan v. Hall, 4 C. B 598; Walker v. Hatton, 10 M. & W. 249; Pen-lev v. Watts, 7 id. 601. See Williams v. Williams, L. R. 9 C. P. 659. But see contra, Neale v. Wvllie,3 B. & C. 533.

(k) Powley v. Walker, 5 T. R. 373; Beale v. Sanders, 3 Bing. N C 850; Brown v. Cramp, 1 Marsh. 567. See also Wigglesworth v. Dallison, Dougl. 201; Legh v. Hewitt, 4 East, 154; Senior v. Armytage, Holt, 197; Gough v. Howard, Peake, Ad. Cas. 197; Dalby v. Hirst, 1 Br. & B. 224, 3 Moore, 536; Angerstein v. Hanson, 1 C. M. & R. 789; Hutton v.

Warren, 1 M. & W. 466; Halifax v. Chambers, 4 id. 663; Lewis v. Jones, 17 Penn. St. 262.

(kk) Hubbard V. Shaw, 12 Allen. 120.

(l) Hart v. Windsor, 12 M. & W. 68; Surplice v. Farnsworth, 7 Man. & G. 576; Harrison v. Lord North, 1 Ch. Cas 83.

(m) Pollard v. Shaaffer, 1 Dallas, 210; Niedelet v. Wales, 16 Mo. 214; Fowler '•. Bott, 6 Mass. 62; Lemott v. Skerrett, 1 Har. & J.42; Wagner v. White, 4 Har & J. 546; Redding v. Hall, 1 Bibb, 586. But see Wood v. Hubbell, 5 Barb, 601, where the buildings were burned after the lease was executed but before the term began, or the lessee took possession; and he was held not liable for rent And in Warner v. Hitchins, 5 Barb. 66, where the premises were burned down during the unless, as is now frequently done in this country, the lease contains a provision, that the rent shall cease or proportionally abate while the premises remain wholly or in part unfit for use. 1

1 A tenant is still liable on an express covenant, though the lessor has collected insurance money and refuses to rebuild, Lofft v. Dennis, 1 E. & E. 474; Bussman v. Ganster, 72 Pa. 285; and his guarantor is equally bound, Kingsbury v. Westfall, 61 N. Y. 356; and rent paid in advance cannot be recovered hack, Diamond v. Harris, Tex. 634. - K.

In the absence of express agreement to repair, the lessee is not bound to rebuild a house, which has been burned through the negligence and folly of his own servants. (n)

A lessee may assign over the whole or a part of his term in the premises.2 If he parts with the whole of his interest it is an assignment; if with less than the whole it is an underleasing, leaving a reversion in the original lessee. An underlease is not * a breach of a covenant " not to assign, transfer, or set over" the premises, or the lease, or the interest or estate of the lessee; (o) but if there be added to the covenant the words " or any part thereof," it is equally a breach, to underlet or to assign. The assignment must be of the whole term, to make the assignee tenant of the lessor; hence where the last day of the term was reserved by the lessee, the assignee was liable to him and not to the lessor. (oo) By such breach the original lessee becomes liable for damages; but the lease is not terminated, or the interest of the sub-lessee destroyed, unless the original lease is made on condition that there shall be no assignment, nor underleasing; or provides that the original lessor may, upon any term, it was held that the lessee was not bound to rebuild, because there was no covenant to repair or rebuild, although there was a covenant to return the premises in the same condition as taken, and natural wear excepted. See Graves v. Berden, 26 N. Y. 498.