is it waste to continue to dig in mines or pits already open, the products of which have become part of the annual profits of the lands.

The special action of waste, given by the common law, has fallen into disuse as a remedy for voluntary waste, and an action on the case has, to a considerable extent, taken its place. Substantially the same remedy is given in actions brought under the codes of New York and other States.

Originally the action of waste could be brought only by the immediate reversioner having a freehold estate, but by statute in New York and some other States it may now be maintained by any person seized of an estate in remainder or reversion, notwithstanding an intervening life estate; and he can maintain it, even though before suit brought he alienates the estate. The heir of a lessor may sue for waste committed in the time of his ancestor.

In the absence of special agreement, a lessee is liable to his lessor for all waste, by whomsoever committed, and may have his action over against the actual wrong-doers. Cook v. Champlain Trans. Co., 1 Denio, 91; Parrott v. Barney, 2 Abb. (U. S.) 197. This rule does not apply to a tenant at will or by sufferance. Coale v. Hannibal, etc., R. R. Co., 60 Mo. 227. The executor or administrator of a lessee is liable to an action for waste committed by himself, but not for that committed by his decedent, except so far as it has benefited the personal estate. Hambly v. Trott Cowp. 376.

The action will also lie against a guardian, a tenant by curtesy or in dower, or any tenant for life or years, or his assigns. It will also lie against a tenant who, after letting or granting his estate, still retains possession and commits waste. Joint tenants and tenants in common are liable to their co-tenants for waste committed by themselves. It is now held that a tenant for years or from year to year is not liable to an· action for permissive waste, unless he has covenanted to repair. Herne v. Bembow, 4 Taunt. 764.

An action at law furnishes a remedy only for waste already committed, but equity supplements it by restraining the commission of waste. The latter remedy will not be granted, however, unless there are clear grounds for it, in an actual attempt, or serious threats; nor where the plaintiff's title is denied. Gibson v. Smith, 2 Atk. 182; Lord de Wil ton v. Saxon, 6 Ves. 106; Pillsworth v. Hopton, id. 51. See Vol. 3, 694-700, tit. Injunctions.

§ 5. Ejectment. This remedy for the recovery of the possession of demised premises after the expiration or termination of the tenancy, has been so fully treated under the title "Ejectment" (Vol. 3, p. 1, etc.), that nothing further need be said here on the subject.

ARTICLE XI.

TENANTS' REMEDIES.

Section 1. In general. As between two co-tenants, both equally bound to repair, if one refuses to join the other in making necessary repairs, after reasonable notice, the latter may make them himself, and charge his co-tenant.

For breaches of covenant by his landlord, a tenant may either maintain an action of covenant against him, or he may recoup his damages in an action for the rent. Tibbits v. Percy, 24 Barb. 39; Whitbeck v. Skinner, 7 Hill, 53; Mayor, etc., of N. Y. v. Mabie, 13 N. Y. (3 Kern.) 151. He may also, in such an action, recoup for fraud on the part of the landlord. Whitney v. Allaire, 1 N. Y. (1 Comst.) 305. For a wrongful withholding of the possession of the premises by his landlord or a stranger, when he is entitled to enter, he may either bring ejectment, or sue on the covenant for quiet enjoyment. Trull v. Granger, 8 N. Y. (4 Seld.) 115; Berrington v. Casey, 78 Ill. 317.

If demised lodgings are unfit for occupation when the tenant takes them, by reason of vermin or nuisances, he may leave them; but ordinarily a tenant cannot do so unless there was some fraud on the part of the landlord. Surplice v. Farnsworth, 7 M. & G. 576; S. C., 8 Scott N. R. 307.

If a landlord refuses to perform an agreement to execute a lease, or a covenant to renew, the tenant, having substantially performed on his part, can enforce specific performance, by action for that purpose. Walker v. Walker, 2 Atk. 100; Owen v. Davies, 1 Ves. 83; Setton v. Slade, 7 id. 265; Arnot v. Alexander, 44 Mo. 25; Reed v. St. John, 2 Daly (N. Y.), 213; Williams v. Evans, L. R., 19 Eq. 547; 13 Eng. Rep. 490; S. C., 44 L. J. Ch. 319; 23 W. R. 466; Cole v. White, cited in 1 Bro. C. C. 409; Grant v. Ramsey, 7 Ohio St. 165; Foxcroft v. Lester, 2 Vern. 456.

Want of a sufficient and reasonable consideration for the agreement; fraud or misrepresentation in procuring it; willful breaches of the covenants to be inserted in a new lease; insolvency, or felony, or the commission of waste, on the part of the person seeking a renewal of his lease, are sufficient grounds for refusing specific performance. Redshaw v. Bedford Level, 1 Eden, 346; Dowling v. Mill, 1 Madd. 541; Robertson v. St. John, 2 Bro. C. C. 140; Pendred v. Griffith, 1 Bro. P. C. 314; Willingham v. Joyce, 3 Ves. 169; Hill v. Barclay, 18 id. 63; Neale v. Mackenzie, 1 Keen, 474. See "Specific Performance."

§ 2. Replevin. This is a form of action adapted to the recovery of the possession of personal property which has been wrongfully taken or detained, and the one usually resorted to in former times for the trial of the legality of a distress. It would also lie for any tortions or unlawful taking, as, where there was no rent due, or not so much as was distrained for, or for a distress after a tender made, or for a distress of exempt or privileged goods. Connah v. Hale, 23 Wend. 462; Perreau v. Bevan, 5 B. & C. 284; Hamilton v. Windolf, 36 Md. 301; 11 Am. Rep. 491; Sassman v. Griffith, 7 Phil. (Penn.) 159. See title "Replevin."

§ 3. Trespass. A tenant in the actual possession of demised premises is entitled to a remedy for all unlawful entries upon or injuries to them which affect his rights, as well as for all injuries to his rights in personal property. An action of trespass was the proper remedy at common law, for all forcible or immediate injuries to such property or rights. An action of the same nature may be brought under the codes of New York and other States, and it will be governed by substantially the same principles. Those principles are stated at large under the title "Trespass."

Among the injuries for which a tenant may maintain trespass are, an entry upon the demised premises without leave, express or implied, by a person or by his cattle, for any purpose, even for that of removing his property; a continuance on the premises after a request to leave; injuries to the dwelling, rendering it uncomfortable or untenantable; or to the land by overflowing it, or to a way by obstructing it; or to fences by throwing them down; cutting down fruit, shade or ornamental trees; erecting a building so near the demised premises as to throw the eaves drip on them, or obstruct the access of light to them; or erecting a nuisance so near as to injuriously affect the air. Barker v. Barker, 3 C. & P. 557; Foster v. Elliott, 33 Iowa, 216; Frout v. Hardin, 56 Ind. 165.

If the injury affects the reversion, both landlord and tenant may sometimes bring separate actions; but, as a general rule, a landlord cannot maintain trespass when another person is in the actual possession of the premises, unless he placed him there as his agent. Shadwell v. Hutchinson, 4 C. & P. 333; Thurston v. Hancock, 12 Mass. 220; Davis v. Clancy, 3 McCord (S. C.), 422.

A tenant for years can maintain this action against his landlord as well as against a stranger; but a tenant at will or sufferance cannot do so, even though violently dispossessed. Faulkner v. Alderson, Gilm(Va.) 221; Hyatt v. Wood, 4 Johns. 150. An assignee of a tenant's interest in crops can sue in trespass for an injury thereto. Carter v. Jarvis,

9 Johns. 143. Even a party in possession under a mere parol license can maintain trespass for a wrongful entry. Graham v. Peat, 1 East, 246; Lewis v. Ponsford, 8 C. & P. 687; Wilber v. Paine, 1 Ohio, 251.

An entry given by law, such as one to see that the tenant keeps the premises in repair, or to levy a distress, is a trespass only when it is abused, and then it becomes one from the beginning. Allen v. Crofoot, 5 Wend. 506; Oxley v. Watts, 1 Terin R. 12. But if a landlord removes his tenant, lawfully in possession, otherwise than by due process of law; or distrains when there is no rent due, or after a tender duly made; or seizes exempt or privileged property; or enters an outer door which is shut, for the purpose of distraining; or distrains twice for the same rent when there was a sufficient distress on the premises at the first time, unless he was mistaken as to its value, he is directly liable to the tenant in trespass. Nowlan v. Trevor, 2 Sweeney, 67; Batterson v. Ferguson, 5 N. Y. Leg. Obs. 100; Ward v. Ventom, Peake's Add. C. 126; Moore v. Beamont, 6 Term, 138; Smith v. Goodwin, 4 B. & Ad. 413; Virtue v. Beasley, 1 Mood. & R. 21; Hutchins v. Chambers, 1 Burr. 589. And see Williams v. Cleaver, 4 Houst. (Del.) 453. A mere irregularity in the proceedings for a distress, however, does not render him so liable.

A lodger, whose goods are distrained by the superior landlord, can maintain either trespass or case; and in the case of an abuse of a distress, as well as in many other cases, the tenant may waive the trespass and sue in case.

The mortgagee of a crop may, after the maturity of his rights under the mortgage, maintain trover against the owner of the land who takes possession of the crop and converts it for the rent. Robinson v. Kruse, 29 Ark. 575. If a landlord remove his tenant during the term by entering and holding possession, because the house is used as a place of prostitution, and kept in a disorderly manner, he cannot plead nor prove these facts in justification of his trespass in an action brought against him by the tenant. Miller v. Forman, 37 N. J. Law, 55.

§ 4. Action on the case. As stated in the chapter devoted to this subject (Vol. 2, 99), this is the appropriate remedy for any injury to the person or to personal rights, when such injury is not direct, immediate and with force, but consequential merely. A tenant may bring case for an excessive distress or an irregular sale (Messing v. Kemble, 2 Camp. N. P. C. 115; Field v. Mitchell, 6 Esp. 71; Marquissee v. Ormston, 15 Wend. 368); for the erection or continuance of a nuisance of any kind by the landlord or a third party near the tenant's dwelling (Alston v. Grant, 3 E. & B. 128; 2 C. L. R. 933); or for a disturbance of incorporeal property, such as franchises, rights of com

mon, or of private way, or other easement; for a neglect to repair a way, by a party bound so to do (Seneca R. R. v. Auburn R. R. Co., 5 Hill, 170); or for obstructing the tenant's use of the door bell, knocker, sky-light, or water-closet, belonging to the premises. Underwood v. Burrows, 7 C. & P. 26; Wilson v. Smith, 10 Wend. 324; Browning v. Dalesme, 3 Sandf. (N. Y.) 13.

The action will also lie if the landlord lets a house which he knows to be infected with a contagious disease, without disclosing that fact, and the tenant takes such disease. Minor v. Sharon, 112 Mass. 477; S. C., 17 Am. Rep. 122; Cesar v. Karutz, 60 N. Y. (15 Sick.) 229; S. C., 19 Am. Rep. 164.

If a tenant of rooms beneath those occupied by the landlord suffers damage by reason of the leakage of injurious substances from the rooms above, through want of repair or negligence on the part of the landlord, he can sue in case therefor (Stapenhorst v. Am. Manf. Co., 46 How. Pr. [N. Y.] 510; S. C., 15 Abb. [N. S.] 355; 4 J. & Sp. 392; ante, p. 262); but one tenant cannot sue his co-tenant for damages, caused by inherent defects in the premises, although the latter is bound to the landlord to repair. Martin v. Washburn, 23 La. Ann. 427.

5. Forcible entry and detainer. Under the statutes now generally prevailing, persons disseized of lands are strictly forbidden to enter thereon for the purpose of regaining possession, except in cases where an entry is given by law, and then such entry must be peaceable and not with strong hand or multitude of people. The remedy known as forcible entry and detainer is one expressly provided by law for restoring a person to possession who has been forcibly removed, and for punishing the wrong-doer. Its nature, extent and application to the case of tenants has already been sufficiently explained. See Vol. 3, 395-406.

§ 6. Eviction. A brief view of the nature and effect of an eviction as between landlord and tenant is all that need be given here, the subject in its general application having been considered ante, Vol. 3, pp. 46-65.

The taking from a tenant of the whole or any part of the demised premises of which he has been in possession, or of something which he was entitled to enjoy in connection therewith, is an eviction. Etheridge v. Osborn, 12 Wend. 529. An actual entry or physical exclusion of the tenant is not necessary to constitute it, but any obstruction or interruption by the landlord of his beneficial enjoyment of the thing demised, and on which rent is reserved, is sufficient. Thus, the erection of a nuisance near the premises; the use of parts of the same building for a house of prostitution; or even petty annoyances, injuri