build arises from circumstances not contemplated by the parties when the covenant was entered into.11

Illustrations.

1. (a) An old house, built on timber which has rotted, is only repairable by "underpinning" (i.e., rebuilding on walls carried down 17 feet to the subjacent gravel; (b) a house is destroyed by an underground mining explosion, another by the combined effect of earthquake and irruption of the sea, and a third by oceanic erosion; and (c) a house is destroyed by fire. In illustration (a) 15 and [and it is submitted] in illustration (b) (assuming that the events described are held not to have been in the contemplation of the parties), the covenantor is excused from rebuilding the whole of the premises, but in illustration (c) he is liable, fire being a presumable contingency.16

III. Unless the terms of the lease are repugnant, the surrounding circumstances may (as in the case of other documents), be regarded in construing repairing covenants therein. Therefore the age, class, and locality1 of the premises may be taken into account in order to measure the extent of the repairs.18

IV. "Good tenantable repair," and similar expressions1mean such state of repair, having regard to the age, character, and locality of the premises, as would make them rea sonably fit for the occupation of a reasonably minded tenant of the class who would be likely to take them.

V. The words "reasonable wear and tear excepted," and clauses of similar import qualifying repairing covenants mean that if the covenantor has performed those covenants

Lister v. Lane, [1893] 2 Q. B. 212; Wright v. Lawson, 19 T. L. R. 203; Torrens v. Walker, [1906] 2 Ch. 166; as to the last case Bee Lurcott v. Wakely, [1911] 1 K. B. pp. 913, 923, 926; and see Hugall v. McKean (1 C. & E. 391), where a lessor's covenant 'to repair drains was held to apply to drains existing at the date of the lease and not to mean reconstruction of the whole drainage system. Lister v. Lane (supra)

16 Bullock v. Dommitt, 3 R. R. 300.

17 Proudfoot v. Hart, 25 Q. B. Div. p. 52. It is submitted that the rule as stated in the case cited has a general application unless repugnant to the lease. Cp. Payne v. Haine, 73 R. R. p. 631

19

18 As to also implying the test of what a reasonable incoming tenant would require (Rule IV.), except where repugnant, see ante. Query, e.g., "habitable repair," Proudfoot v. Hart (supra, p. 51), Belcher v. McIntosh (56 R. R. 867); "thorough repair," good condition," Lurcott v. Wakely, [1911] 1 K. B. p. 918.

at the times specified, or as usage20 prescribes, he will not be liable for dilapidations arising from (a) the ordinary action of the elements or (b) wear and tear caused by reasonable user of the premises by persons using them.22

Illustrations.

(a) Lease to A of a public-house for 10 years, covenants by him to repair every fifth year, qualified by a wear and tear" clause. At end of fifth year A. does the necessary repairs, and during the eighth year determines the lease; (b) B. enters into repairing covenants qualified as above. It is proved to be usual to repair the inside of similar houses every seventh and the outside every third year. B. has done this. A. and B.23 having repaired at the proper times will not be liable for such dilapidations afterwards occurring as are caused by the ordinary action of the elements, or by wear and tear arising from reasonable user of the premises.

VI. (a) The measure of damages for breach of covenants to repair in an action commenced during the continuance of the lease is usually the amount by which the reversion of the premises is injured by the non-repair.25

(b) The measure of damages for breach of covenant to deliver up the premises in repair, is the cost of putting them into the state of repair required by the covenant.26

(c) Where a sub-lease contains repairing covenants similar to those in the head lease (with notice thereof to the

If this has not been done the surveyor would have to estimate when each item of dilapidation requiring repair was previously done. The covenantor cannot contend that if he had done the repairs at the proper time the benefit would have been subsequently lost and that the exception clause excuses him; he must fulfil his covenant to repair and at the proper time, irrespective of other events (Joyner v. Weeks, [1891] 2 Q. B. 31 C. A.). Possibly he is also liable for dam ages caused by not repairing earlier, see Foa's Land. and Ten. (1907), p. 225.

21 I.e., "dilapidations caused by the friction of the air, dilapidations caused by exposure." Terrell v. Murray (45 S. I. 579). Dilapidation arising from extraordinary causes, e.g., tempest, or snow-storm, would not appear to come within the exception.

Davies v. Davies (38 Ch. D. 505); Terrell v. Murray (supra); Foa, p. 224, Ency. Laws of Eng., vol. vii., p. 669.

28 Scales V. Lawrence, 121 R. R. 791.

"The soundness of the rule is apparent from the circumstances that were it otherwise a freeholder entitled to a small ground-rent incident to a lease for ten thousand years could harass the lessee with continual actions for repairs.

Doe d. Worcester Trustees V. Rowlands, 62 R. R. 766; Conquest v. Ebbetts, [1896] A. C. p. 494.

Joyner v. Weeks, [1891] 2 Q. B. 31; C. A.; Ebbetts v. Conquest, [1895] 2 Ch. p. 384, C. A.

sub-lessee), and the sub-lessor sues the sub-lessee for breach of his covenant to repair, the liability of the sub-lessor under his head lease must be taken into account in assessing the damages against the sub-lessee.27

The writer hopes that the foregoing attempt to codify the law under discussion may prove useful to lawyers, and also indirectly to surveyors when receiving instructions to schedule dilapidations according to the terms of the lease.

The Court of Appeal, in Lurcott v. Wakely, Proudfoot v. Hart, and 'Lister v. Lane (all of which have been referred to, but cases like the last must be rare), has done much to enlighten the task of legal advisers, as also presumably that of surveyors, but it could be wished in dealing with questions concerning repairing covenants that the embarrassing "wear and tear" exception had reached the same tribunal. The writer has stated his notions of the law on that subject with much diffidence. Notwithstanding the advice of eminent and experienced conveyancers28 this disputatious clause still finds its way into leases, and until it is finally relegated to the limbo of forgotten things it is destined to remain a perpetual cause of perplexity and trouble to all concerned.20 WALTER STRACHAN.

THE RECALL OF JUDGES.

WHAT PRESIDENT TAFT THINKS ABOUT IT.

If I sign this joint resolution, I do not see how I can escape responsibility for the judicial recall of the Arizona constitution. The joint resolution admits Arizona with the judicial recall, but requires the submission of the question of its wisdom to the voters. In other words, the resolu

27 Conquest v. Ebbetts, [1896] A. C. 490. Damages for loss to lessor of the premises whilst being repaired are recoverable, see Foa's Land. and Ten. (1907), p. 231; Mayne on Damages (1903), p. 287. 28 K. & E. Conveyancing (1909), p. 775.

The writer would like to add that in a case within his knowledge the surveyor found no difficulty in acting upon his explanation as expressed, ante, though such repairs as had been done had been executed at irregular intervals in a haphazard way. He would have to inquire (1) when each item of the repair ought to have been done according to the lease, (2) when it was actually done, and (3) if not done, it remains to be done, the fact that if it had been done the benefit would not be lost affording no excuse. See Joyner v. Weeks already cited, ante.

tion approves the admission of Arizona with the judicial recall, unless the voters themselves repudiate it. Under the Arizona constitution all elective officers, and this includes county and State Judges, six months after their election, are subject to the recall. It is initiated by a petition signed by electors equal to 25 per cent. of the total number of votes cast for all the candidates for the office at the previous general election. Within five days after the petition is filed, the officer may resign. Whether he does or not, an election ensues in which his name, if he does not resign, is placed on the ballot with that of all other candidates. The petitioners may print on the official ballot 200 words shewing their reasons for recalling the officer, and he is permitted to make defence in the same place in 200 words. If the incumbent receives the highest number of the votes, he continues in his office; if not, he is removed from office and is succeeded by the candidate who does receive the highest number.

This provision of the Arizona constitution, in its application to county and State Judges, seems to me so pernicious in its effect, so destructive of independence in the judiciary, so likely to subject the rights of the individual to the possible tyranny of a popular majority, and, therefore, to be so injurious to the cause of free government, that I must disapprove a constitution containing it. I am not now engaged in performing the office given me in the enabling Act already referred to, approved June 20, 1910, which was that of approving the constitution ratified by the peoples of the Territories. It may be argued from the text of that Act that in giving or withholding the approval under the Act, my only duty is to examine the proposed constitution, and if I find nothing in it inconsistent with the Federal Constitution, the principles of the Declaration of Independence, or the enabling Act, to register my approval. But now I am discharging my constitutional function in respect to the enactment of laws, and my discretion is equal to that of the Houses of Congress. I must therefore withhold my approval from this resolution if in fact I do not approve it as a matter of governmental policy. Of course, a mere difference of opinion as to the wisdom of details in a state constitution ought not to lead me to set up my opinion against that of the people of the Territory. It is to be their government, and while the power of Congress to

withhold or grant statehood is absolute, the people about to constitute a state should generally know better the kind of government and constitution suited to their needs than Congress or the Executive. But when such a constitution contains something so destructive of free government as the judicial recall, it should be disapproved.

A government is for the benefit of all the people. We believe that this benefit is best accomplished by popular government, because in the long run each class of individuals is apt to secure better provision for themselves through their own voice in government than through the altruistic interest of others, however intelligent or philanthropic. The wisdom of ages has taught that no government can exist except in accordance with laws and unless the people under it either obey the laws voluntarily or are made to obey them. Ir a popular government the laws are made by the people— not by all the people-but by those supposed and declared to be competent for the purpose, as males over 21 years of age, and not by all of these-but by a majority of them only, Now, as the government is for all the people, and is not solely for a majority of them, the majority in exercising control either directly or through its agents is bound to exercise the power for the benefit of the minority as well as the majority. But all have recognized that the majority of a people, unrestrained by law, when aroused and without the sobering effect of deliberation and discussion, may do injustice to the minority or to the individual when the selfish interest of the majority prompts. Hence arises the necessity for a constitution by which the will of the majority shall be permitted to guide the course of the government only under controlling checks that experience has shewn to be necessary to secure for the minority its share of the benefit to the whole people that a popular government is established to bestow. A popular government is not a government of a majority, by a majority, for a majority of the people. It is a government of the whole people, by a majority of the whole people under such rules and checks as will secure a wise, just, and beneficent government for all the people. It is said you can always trust the people to do justice. If that means all the people and they all agree, you can. But ordinarily they do not all agree, and the maxim is interpreted to mean that you can always trust a majority of the people. This is not invariably true; and