The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1880-12-11

I vi fvOG TtpdIf ~ tUf cDu OI tue term. Inc
lessee during The term committed waste,
| for which The lessor brought an action
in The case against bim. II was
objected on the trial that the plaintiff opgbt
to have brought covenant and not case. a
verdict was found for the plainiin, subject
TO that point.
| The Court Of Common Pleas was clearly
OF opinion that an action on The case was
maintainable as well as covenant. Had
there been no deed Of covenant, an action
OF waste, or ease In The nature OF waste,
would have lain; because the landlord by
his special covenant acquires a new remedy
he does not thereby lose his old. These au-
ihorities seem to be decisive OF the ques-
tion.
II has been said, however, that at all
events the action will not lie until after the
expiration OF the lease, because the de.
fendants' covenant is simply 10 leave
the premises 10 good repair. He has,
therefore, lhe whole term TO make such re-
pairs-and non coasidt; bu, that be may
make them, and thus save The breach. This
position IS equally untenable With the other,
both upon principle and authority. The
operation and effect OF the covenant TO re-
pair are well understood. II extends not
only to ordinary and gradual decay OF the
premises, but also accidental injuries by
| fire and tempesls. SO that under this COW
enant the lessee is bound to repair even
when the damage to The inheritance
Is produced by causes over which he has no
control. speak OF course with reference
TO the doctrines OF the common law, for the
rule has been changed by statute, which
provides that no covenant or promise by
! the lessee that he will leave the premises in
good repair shall have the effect, IL the build.
/ ings are destroyed by fire or otherwise
without fault or negligence on his part, OF
binding bim TO erect brick buildings again,
unless there be other causes showing it 10
he the intention OF the parties that he
should be 80 bound. Code OF 1913, chapter
| ll3. section 20
Whilst, therefore, at common law the ten
ant was liable for waste from accidental
causes, it was only where there was an
agreement TO repair. In all such cases the
only remedy was by suit on The covenant.
Where, however, the tenant Is guilty OF
voluntary waste. where ny his act iDjury
is done TO the revPrsioner, then the lessee
may bring his action during the lease,
even though the tenant NAV have il in his
power TO restore the premises TO their
original state before lis expiration.
T1e case Of the Provost, &c. OF Enew Col
/ 'legc rs. Hallett, II Curt, 4S9. is leading
ease on this subject. There the action was
| for an injury TO the Inheritance. 1t was
objected that rs the lease had not expired
the action would not lie, because before the
expiration OF the tenants lease be might 'e-
store the premises to their former condi-
ton. Lord Ellenburgh, with whom the
other Judges cOncurreG, said The act OF the
tenant Is an injury to the title OF the reyer-
sioner and : present damage 10 them, and
! that Lord Mansfield had held that building
wall where none was before was sufficient
to eniiile tue reveIsIOner 10 this KIND Il ac'
! lion pending the lease, although 1t migjt be
pulled down again b"fore the lease expired.
| See, also, Jen6r rs. Clifford. 1 Burr. 2l4l ;
Ray as. Ayres, Duer, 1874; | Addison on
! Torts, 42l: 3 fuckers Re-, 252, b. nOie.
| This doctrine Is founded on good sense
aud sound reason. II, as in the present
case the injury TO the estlte is OF perma-
nent character and the landlord cannot re-
pair and the tenant will not, both are de.
prlyed OF the use OF The property. Should
| the landlord desire TO sell, the marketable
value Of the property is so affected he eau
not do so except ut sacrifice. When the
| lease is a long one-ten or twenty Years
I Is
the expense OF repairing but the more
burthensome TO bear.
III The landlord l. compelled To wait the
eyplration OF the term before he can sue, he
must, of course, run all tho risks of the ten
ants continued >oIvency. and OF the loss
OF evidence by the death or absence OF Wit
nesSpS. And all this loss and Inconvenience
are to be borne because, perchance, tue ten
am NAV conclude IN repair the property du
rin0 the term. The very fact Of his declara
ticuihai be will not repair, and OF his express
denial of all liability for the Injury TO tDt
estate. il the tenant refuses to repair tht
nremises he cannot complain that The land
lord did so. lie is thereby restored To III
former occupation, whereas he might have
been compelled to pay the rent without th'
use and enjoyment. Ii by bis negligence
or uisfeasance the properly bls Deel mate
rally injured, he ought alone To make S0ot
the loss by repairing 1t or by indemniyine
the landlord for the expense he has neces
sar,ly incurred in making such repairs.
II has been said, however, the lessee
on0bt not to be held TO answer for all lh'
nrjncipsI or eXtravagiDt outl1ys tDe lesso'
may choose TO make In repairing the Du1u
incs. That il very true. The measure
the lesspe's liability is not whist Inc ies>o
NAV think proper to eXpend, but what Il
necessarily eXpcnded in restoring the pro
perty 10 It's former condition. or perhap
such sum as will be sufficient To compensate
the lessor for the actual damage ant
loss sustained by the injury 10 TN
nroprrty. These are matters OF cal
culation to be made by the lur.
upon the testimony OF witnesses. ii
what has been siid, our opinion Is expresse'
or intended 10 be expressed with respect L
the matters in controversy here. Wbetbe
: the injury 10 the building was caused D.
the negligence or misconduct OF the defen
dants. as charged in the declaration, or wa
owing 10 a defect liz the construction,
claimed bv defendants, was matter exclu
siyely for the jury under the supervision o
the Court. A.
The instruction given by the Cireui
Judge maniestly proceeded upon tue lue
that the plaintif having repaired the Dui'e
jpps with a view TO prevent an abaDdot
ment of the premises by the defendants
and the relation Of landlord and tenant Dt
ing thus restored by mutual consent, u
plaiptiff could not during the term recove
damages for the loss. although the injury wa
caused by the misconduct oil the deiendant'
and although the repairs were made VIII
their consent-the instruction being IN cor
fijct with the views herein expressed-tn
indrment must be reversed, the verdict 81
; aside, and new trial awarded; beioi
which trial the Circuit Court, II required
will instruct the jury in conformity wit
the views herein expressed.
ROLL OF HONOR AT THE RICHMOND HiGl
| ScuooI The following is list OF the pt