B is liable to repair, as B expressly covenants that C shall not. Therefore C could sue for breach of covenant.

C.

HENRY LOVEGROVE, Fellow.

The only repairing covenant in force is, I understand, the one made by B with the superior lessor. In my opinion C is not in a position to enforce this, and in the absence of any express covenant with him by B, he cannot call upon the latter to do any repairs whatever.

EDWARD W. REBBECK, Fellow.

D.

The question is rather vague, but I gather (1) that the agreement between B and C is not under seal; (2) that there is no covenant by B with C to do repairs, but only a proviso for his entering for that purpose.

I do not see how C can compel B to do internal repairs.

C has no right to inspect the superior lease, but it would be unreasonable in B to refuse inspection. C should have inspected before entering into the agreement. The proper course would have been to have recited in that document the covenants in the superior lease which C had to perform.

T. J. HANKINSON, Fellow.

E

1. In the absence of a covenant by B, C cannot claim internal repairs from him.

2. C cannot force B to do internal repairs under these circumstances. This can only be done by B's lessors, and if the condition of the premises is sufficiently bad to warrant it, C would probably effect his object by informing the superior lessors of the state of the premises.

Having signed the agreement, C has no right to inspect the superior

lease.

E. HORACE GREEN, Fellow.

Replies to Query 692 (Vol. XI., p. 26).

RATING-CONTRACTOR'S SHEDS AND TEMPORARY RAILWAY.

A.

I fail to see that this case, except in point of magnitude, differs from any ordinary building operation, and it is, in my experience, an unheard-of

thing to assess for rating purposes the plant of a builder in respect of any job he may be carrying out.

The contractor is not such an occupier as will render him subject to the assessment; he has merely a licence from the employers to use the premises for a certain defined purpose, and so soon as that purpose is accomplished his occupancy ceases.

E. J. GAIRDNER, Fellow.

B.

There appears to be a beneficial occupation. I should say that all the items are rateable.

C.

J. R. EVE, Fellow.

I agree with the conclusion arrived at by the member making inquiry, viz., that some of the premises may fairly be rated.

EDWARD W. REBBECK, Fellow.

Replies to Query 693 (Vol. XI., p. 26.)

LANDLORD AND TENANT-RESERVATION OF UNDERGROUND RIGHTS

A.

66

The above question reduced to its shortest form appears to be, "Is "water matter?" Without refining too much or trespassing on legal ground, I will quote four (out of many) definitions of "matter" which appear to me most pertinent to the question. (1) "In a general or 'philosophic sense, the substance of which all bodies are constituted.' It "is usually divided into four classes, viz. solid, liquid, aëriform, and im"ponderable or radiant" (Ogilvie). (2) Subject, thing treated; that "about which we write or speak" (Ib.). (3) "The very thing supposed or “intended" (Tillotson). (4) “Matter is 'that which can be perceived by "the senses,' or 'that which can be acted upon by or can exert force."" Loney, who cites these two in his Dynamics, 1899, adds with irresistible humour (in which I join): "No definition can, however, be given that "would convey an idea of what matter is to any one who did not already possess that idea." After this crowning aphorism I venture to express a lay opinion that the landlord might do worse than consider his chance of succeeding in an application for an injunction.

JOSEPH LUCAS, Professional Associate.

B.

Unless the lease in any of its clauses reserves the right of underground water to the owner, A, I do not think he can prevent the tenant B from selling water to a public water company during the continuance of his lease, because, as the law now stands, there is no right in underground water. B is not selling water to the injury of A's land by causing subsidence or otherwise, only pumping water which is flowing past A's land underground.

ARTHUR C. PAIN, Associate.

Replies to Query 694 (Vol. XI., p. 26).

LEASE ASSIGNMENT FOR LESS THAN WHOLE TERM-SUBSEQUENT PURCHASE OF FEE BY ASSIGNEE.

Robinson owns his property in a dual capacity. He is the owner in fee simple, subject to the lease granted to Jones. He is also owner by underlease of the term granted to Jones, except the last ten days thereof. His underlease granted to Brown and afterwards assigned to Robinson can never merge in the fee simple while the intermediate estate of ten days is vested in Jones or his personal representatives. Probably Jones's underlease was by way of mortgage, and Jones is a trustee for Robinson of the nominal reversion of ten days, and if the latter likes to incur the expense he can get in the nominal reversion of ten days, and then the whole original term of 99 years will merge in the fee simple. To accomplish this he must consult his solicitor.

J. H. REDMAN, Associate.

Replies to Query 695 (Vol. XI., p. 27).

AGRICULTURAL YEARLY TENANCY-TWO YEARS' NOTICE TO QUIT.

A.

This is a difficult point and clearly a legal one.

I have been advised that where an agreement is actually signed before the Michaelmas at which the farm is actually taken, the notice is a good one, if served between the signing of the agreement and the actual date on which the tenancy commences.

R. H. POWELL, Fellow.

B.

I have never before heard of a similar case, although I have known instances where new tenants, who have taken a farm on a yearly tenancy

and entered into possession before their tenancy and rent began, threatened to give a year's notice to quit, which they regarded as sufficient, and which I was inclined to agree with.

But on reflection, and with regard to the case in question, I am of opinion that although the agreement was signed on the 31st August, the actual tenancy did not commence before the 29th September, and that it is not therefore a good and sufficient notice. At the time there existed no relationship of landlord and tenant between the parties, nor could there be until the date at which the tenancy starts and rent begins, and therefore none of the covenants (save specific ones, e.g. pre-entry) are operative.

THOMAS DREWEATT, Fellow.

C.

I think most agreements are worded to let for "the term," i.e. of one year definitely fixed, and then go on to say, subject to so much notice to quit. Without the agreement of course one is not in so good a position to judge, but if it were worded as I suggest, with two years' notice to quit, the one year would be fixed, and the two years' notice, given before the 29th September, 1901, to quit on September 29th, 1903, would be informal.

In my opinion the landlord's action should be affected by the cause of notice, as the tenant may have taken the land to farm it out, or may be giving up through illness or for other reasons.

R. G. GURNEY, Professional Associate.

Replies to Query 696 (Vol. XI., p. 27).

DILAPIDATIONS COVENANT TO PAINT EVERY SEVENTH YEAR.

A.

The covenant is specific; if, therefore, the lessee has not painted twice in oil in the seventh year, he is liable.

No special mention is made of paper in the covenant; if, therefore, the papers are in the condition stated, this should satisfy

I do not consider that the lessee is liable to pay the cost of the survey.

W. BENNETT ROGERS, Fellow.

B.

This case is governed by the clear and specific covenant to repair.

(1) In the absence of a distinct papering clause, Proudfoot v. Hart would apply.

(2) The painting clause must be followed closely.

(3) There is, so far as I am aware, no legal decision as to the costs of the survey.

PHILIP E. PILDITCH, Fellow.

C.

(1) In my opinion, unless the paper is damaged beyond being" slightly faded "-there being no specific covenant to paper-the lessee would not be held liable.

(2) The specific covenant to paint in the seventh year would involve repainting in that year though such painting had been done previously to such seventh year.

(3) Unless there is an express covenant for the lessee to pay the lessor's surveyor's fees, I am of opinion that the claim could not be maintained.

SIDNEY R. CHESTERTON, Fellow.

Replies to Query 697 (Vol. XI., p. 28).

AGRICULTURAL TENANCY-CLAIM FOR CAKE, &C.-SUFFICIENCY OF NOTICE.

A.

No. Section 7 of the Act of 1900 provides that " an improvement made "before this Act comes into operation shall be such (if any) as could have "been claimed if this Act had not been passed, but shall be ascertained in "the manner provided by this Act ;" and again, Section 7 of the Act of 1883 requiring two months' notice of claim is repealed by the new Act. I think therefore any claim made before the expiration of the tenancy for cake, &c. consumed would be in order, although it may have been consumed prior to the commencement of the Act of 1900.

ALFRED MICHELMORE, Fellow.

B.

The Act of August, 1900, came into operation on the first day of January, 1901. There is nothing in the Act to prevent the tenant claiming back any number of years for unexhausted values.

The notice is undoubtedly a good one.

R. H. POWELL, Fellow.