charge one more than another, or any one more than his established rates.1

1 A common carrier has no right to discriminate, in forwarding freight, between two classes of shippers, by deliberately delaying or stopping the property of one class in order to give preference to that of another, contrary to the usual course of business. (Keeny v. G. T. R. R. Co. 59 Barb. 104; McDuffy v. R. R. Co. 52 N. H. 730.)

Story on Bailments, Sec. 508. "One of the duties of a common carrier is to receive and carry all goods offered for transportation, by any person whatsoever, upon receiving a suitable hire. This is the result of his public employment as a carrier; and, according to the custom of the realm, if he will not carry goods for a reasonable compensation, upon a tender of it, and a refusal of the goods, he will be liable to an action, unless there is reasonable ground for the refusal; and he has no right to charge one higher rates than he serves others for."

Bac. Abridg. Carriers, B; Boulston v. Sandford, Skin. R. 279; Jackson v. Rogers, 2 Shower, 327; Rex v. Kilderby, 1 Saund. 312; Riley v. Horne, 5 Bing. 217; Crouch v. London & North Western R. R. Co. 25 Eng. Law & Eq. 287. But carriers may discriminate, in some instances, between different classes of freight, as where, from special causes, they are put to greater risk or expense in handling the goods, as in goods which are in small parcels, by different shippers, necessitating more clerical labor and additional trouble." (Parker v. G. W. R. R. Co. 6 Ellis & Blackburn, 77; Story on Bailments, 508 note 1.)

§ 309. Distinction, as to removal of fixtures, against agricultural tenants.

§ 296. Covenant for quiet enjoyment.-The principal covenant on the part of the landlord is that, for the time included within the term for which the premises are leased, the tenant shall have the quiet enjoyment and possession of the premises. The law imposes this covenant from the nature of the relation of the parties to each other, and the subject-matter of the transaction; it is to be assumed, against a lessor, that he owns the land leased; that, therefore, he has the right and power, by lease, to assign the possession for the term, and an engagement to this effect on his part is always implied.

Resulting from this covenant, the right to demand rent depends on the undisturbed possession of the tenant, the engagement on his part to pay it being in consideration of his having the use of the premises: if that fails, the consideration for the contract is gone, and it cannot be enforced.1

1 Wilson v. Raybould, 56 Ill. 417; Mack v. Patchin, 42 N. Y. 167; Home Etc. Ins. Co. v. Sherman, 46 N. Y. 370; Taylor's Landlord and Tenant, Sec. 304. A mere disturbance of the tenant's possession by a trespasser does not, however, discharge him from payment of rent; that is not breaking the covenant by the landlord, because the injury is one which he is not responsible for. He simply

§ 297. Covenant that the land is free from incumbrances.—Another covenant on the part of the landlord, which the law implies, is that the demised premises are free from incumbrances; otherwise the tenant might, notwithstanding the lessor owns the land and has a technical right to lease, be deprived of his term by the act of the lessor. It appears that, even without being actually ousted by the holder of the incumbrance, the tenant may maintain an action for breach of this covenant, the mere liability or chance that he may be disturbed being a technical breach of the covenant; but no more than nominal damages could be recovered.1

§ 298. Obligation to pay taxes.-Another agreement incident to the reasoning which imposes upon the landlord a covenant that the premises are unincumbered, is the obligation to pay the taxes and lawful assessments upon the premises during

covenants that the land is his and that he has a right to lease it. Hence, an eviction by a superior title is a breach of the covenant that he is the owner, but the act of a stranger to the title is not sufficient to discharge the tenant, even if his possession is disturbed. (Taylor's Ld. and Ten. Secs. 305, 306; Gartside v. Oakley, 58 Ill. 210; Gardner v. Ketellas, 3 Hill, 330.)

From the covenant for quiet enjoyment has resulted a strict rule against the landlord. A stranger, who is a trespasser, may oust the tenant, and he still be held to pay the rent, but if the landlord disturb the possession in the least he does so at his peril, and if he willfully enter upon, and expel the tenant, actually or constructively, from a part of the demised premises, the rule has been held to be that the whole rent is suspended during the term, though the tenant continue in possession of the residue. (Johnson v. Oppenheimer, 12 Abb. [N. Y.] Pr. N. S. 454; 43 How. Pr. 433.)

Taylor's Ld. and Ten. Sec. 378; Tunis v. Grandy, 22 Gratt. (Va.) 109. "When a lessee is evicted of a part of the demised premises, by one claiming under a title superior to that of the lessor, he is discharged from the payment of so much of the rent only as is properly chargeable to the part of the premises from which he was evicted. But when a tenant is evicted, though from a part of the demised premises only, by the wrongful act of the landlord, he is discharged from the payment of the whole rent."

"Where a tenant is, by his lessor, wrongfully evicted from a portion of the demised premises, he is thereby excused from payment of any of the rent, although he remains in possession of the remaining portion of the premises to the end of the term." (Hagner v. Smith, 63 Ill. 432.)

But to constitute an eviction, there must be more than a mere trespass by the landlord. There must be something of a grave and permanent character done by the landlord, with the intention of depriving the tenant of the enjoyment of the premises; the question of eviction or no eviction depending upon the circumstances, and being a matter for the jury to decide. (Ibid.)

1 Taylor's Landlord and Tenant, Secs. 318-22; Jenkins v. Hopkins, 8 Pick. 346; Chapel v. Bull, 17 Mass. 220; People v. Nelson, 13 Johns. 340; Jackson v. Sternberg, 20 Johns. 49; Barrett v. Porter, 14 Mass. 143.

the term; these the landlord must keep paid, in order that, the claim of the law being paramount, the tenant cannot be otherwise protected in his possession; and if the tenant pay the taxes, he may deduct the amount paid from rent due, the rule in such matters being that when a tenant has been compelled to pay out money to protect his possession, he is considered as having been authorized by the landlord so to apply his rent, whether it was due or to become due.1

§ 299. Common-law rule as to repairs.-As to repairs, the common-law rule is that the expenses of them must be borne by the tenant, and no covenant is implied which will compel the landlord to become liable for them; even if the buildings burn down, the rent for them may be collected by the landlord, from the tenant, and if they were insured in favor of the landlord, the tenant cannot compel him to appropriate the insurance money to rebuilding.2

In New York, the statute has changed the common law, and made the rule that the landlord must keep the premises in repair. And in Louisiana, the converse of the common-law rule is held to be the law.4

1 It is not unusual to insert in the lease a covenant on the part of the tenant to pay the taxes. Of course, it will be understood that the covenants mentioned as implied by law may be waived or changed by the parties; the law only makes for the parties the contract, where they have not done it for themselves. "The obligation of the landlord to pay all public charges against the property, except such as the tenant has undertaken to pay, renders him liable also to reimburse the tenant for all such payments as he has been obliged to make, in order to protect his goods, or the property leased, from other demands of the public collector." (Taylor's Ld. and Ten. Sec. 342; Ibid, Sec. 341; Taylor v. Zamira, 6 Taunt. 524; Roe v. Hayley, 12 East, 469; Carter v. Carter, 5 Bing. 409.) But a tenant for life is bound for taxes. (Prettyman v. Walston, 34 III. 191; Taylor's Land, and Ten. Sec. 318.)

2 Mumford v. Brown, 6 Cow. 478. "The tenant takes the premises for better and for worse; he cannot involve his landlord in the expense of repairs without his consent-Brewster v. De Fremery, 33 Cal. 345, in which the Court held “that a landlord is in no case bound to repair, unless by force of an express covenant or contract." (Casad v. Hughes, 27 Ind. 141; Howard v. Doolittle, 3 Duer, 464; Sherwood v. Seaman, 2 Bosw. 127; Kellenberger v. Foresman, 13 Ind. 475; Doupe ?. Genin, 45 N. Y. 119; Taylor's Land and Ten. Sec. 327-8; Wiltz v. Mathews, 52 N. Y. 312; Kline v. Jacobs, 68 Penn. St. 57.)

3 Laws of 1860, N. Y. 592, under which a tenant may surrender when the premises become untenable, and free himself from payment of rent thereafter, so that in effect, if the landlord desires to keep his tenant, he must repair.

4 Perrett v. Dupré, 3 Rob. La. 52; Coleman v. Haight, 14 La. An. 564. But it is apparent that Louisiana is the exception, and such from the fact that the civil

But, as in other cases, the parties may make such contracts as they please, and change the rule as to themselves; where the landlord assumes the cost of keeping the buildings in repair the tenant is justified in deducting from the rent due so much as he has been compelled to pay out for repairs such as the landlord has agreed to make; this he may do, however, only upon due notice to the landlord of the necessity, accompanied with a demand that he comply with his engagement, for the covenant is not that he will permit the tenant to make the repairs and reserve the cost from the rent, but that he, the landlord, will do, or cause to be done, the work; hence, default must be shown before the tenant can be sustained in making and charging to his landlord the requisite disbursement.1

§ 300. Distinction in farming leases as to repairs.— Farming leases differ from others in the matter of repairs. Generally, under the common-law rule, and where local statutes have not otherwise provided, the tenant must keep in repair the demised premises, but an exception to this rule is made in favor of the tenant of farming lands. Like tenants of other premises, he is bound to keep in repair the dwelling-house, but there his obligation ceases; he is not bound to repair the barns, stables, or other buildings, nor the fences, further than in so far as the law imposes that duty upon him under the implied covenant on his part to treat the farm in a husbandlike manner; as to what that is to be deemed, depends upon the usages of the vicinity, and the implied covenant to repair by the tenant is generally considered to extend no further than those which may be required upon the dwelling-house.2

law appears always to have recognized the proposition that he who leases property guarantees its present and continued fitness for the purposes to which by the lease it is devoted. (Code Nap. 1722; Code of Louisiana, Art. 2667; Scudder v. Paulding, 4 Rob. La. 428.)

1 Kip v. Merwin, 52 N. Y. 542; Farrot v. Mettler, 21 La An. 220; Gerzebeck v. Lord, 33 N. J. L. 240; Norfleet v. Cromwell, 64 N. C. 1.

2 Taylor's Landlord and Tenant, Sec. 344.

"As to farming leases, a tenant is also under a similar obligation to repair, but it differs from his liability to repair houses in this respect, that it extends only to the dwelling-house occupied by the tenant; the burden of repairing the out-buildings and other erections on the farm being sustained either by the landlord or the tenant, (in the absence of any express provision in the lease) according to the particular custom of the country in which the farm is situated."