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under a continuing obligation to repair acts which would amount to voluntary waste and which involve a breach of the obligation to use the premises in a husbandlike manner. It is clear that these tenants, by entirely altering the character of the premises, did acts amounting to voluntary waste and to a breach of this obligation. The result is that in 1923 they were in default as regards that continuing obligation, which involved an obligation to make good the breach. That is all we need decide in this case. Mr. Archer argued that this obligation in regard to the character of the premises, if it existed, was not broken by the defendants, because in 1923 it passed to their assignees. I do not decide whether the obligation passed to the assignees, or whether if it did it so passed as to absolve the defendants or to leave them still liable, because that point was not taken in the

Court below. Apart from those questions the breach of the defendants' obligation is sufficient to support the plaintiff's claim. In other circumstances the measure of damages might have to be considered, because they are damages to the reversion, and we do not know what they are; but in the present case the parties have agreed, reasonably considering that the tenancy is from year to year, that if the defendants should be held liable the cost of necessary repairs should represent the damages. There will therefore be judgment for the plaintiff for

that amount.

Appeal allowed.

Solicitors for appellant: Woodcock, Ryland, & Parker, for Russell & Russell, Bolton.

Solicitors for respondents: H. Isaacs, Lewis & Company for F. O. S. Leak & Company, Manchester.

ANNOTATION.

Limitation of action against tenant for years or for life for waste or breach of obligation as to use and care of property. [Limitation of Actions, § 143.]

The annotation is not concerned with equitable suits seeking incidentally to enjoin waste, in connection with trying to establish a right of title or possession, as in Phillips v. Williamson (1919) 184 Ky. 396, 212 S. W. 121.

The general principles applicable to limitation in the case of injuries to real property are that, when the original act or cause of injury is permanent in its nature, and the damages both present and prospective, may be recovered in one action, the statute will generally be regarded as attaching at the time the act complained of is done; but that, where a wrongful act results in a recurring or continuing injury, there is a cause of action not only for the injury consequent upon the original act, but also for such successive ones as may result in the future, in which case the statute attaches at the time of the occurrence of the injury. 17 R. C. L. 785.

In holding that a six-year limitation was inapplicable, the court in the reported case (MARSDEN V. EDWARD HEYES, ante, 42), where the tenancy continued until about two years before suit, took the ground that, although the tenant's original act of voluntary waste, by completely changing the inside of the building, was concededly committed more than six years before suit, yet his implied obligation to restore the premises to their original condition continued throughout the remaining years of the ten

ancy.

This decision is in accord with the principle applied in Prescott v. Grimes (1911) 143 Ky. 191, 33 L.R.A. (N.S.) 669, 136 S. W. 206, where, in reply to the contention that a remainderman, suing the estate of a tenant in dower for permissive waste (in allowing a dwelling, outbuildings, and fences to become dilapidated in the course of an occupancy of over forty years), should

be restricted to damages incurred during the five years, or at most ten years, next before the institution of suit, which was apparently started within a year or two after the widow's death. The court said: "As it is the duty of the life tenant to so manage the property as to leave it in a reasonable condition of repair at the expiration of his tenancy, the plea of the Statute of Limitations cannot avail. The duty of the tenant is to leave the property in reasonable condition and repair at the end of the term, and this duty keeps pace with the life of the tenancy. It is an ever-present, existing duty, and, when the court comes to enforce this duty, the inquiry is not when the waste occurred, or how long it has been permitted to run, but what is the extent thereof, and what sum will be required to make the necessary repairs. During the life of the tenancy, there is no limitation to the time within which the action to compel reparation for permissive waste must be commenced." This case was expressly followed in Fisher v. Haney (1918) 180 Ky. 257, 202 S. W. 495, infra, so far as permissive waste of the same sort was concerned. Compare Sherrill v. Connor (1890) 107 N. C. 630, 12 S. E. 589, infra.

In Powell v. Dayton, S. & G. R. Co. (1888) 16 Or. 33, 8 Am. St. Rep. 251, 16 Pac. 863, where a lessee for a term of years had the privilege of purchasing, it was held that he could be sued within six years after the end of the term, for waste which he committed at any time during the term, upon the ground that the statute did not start to run until the end of the term, the court reasoning that he could not have been sued before that time; since at any time during the term he could have defeated any claim for waste by exercising his right to purchase and thus absorbing the reversion.

It was apparently assumed in Harcourt v. White (1860) 28 Beav. 303, 54 Eng. Reprint, 382, that a suit for an accounting in respect to timber cut by a life tenant, which was filed only two days less than twenty years after his death, would not be barred by a twenty-year statute, but the suit was

held to be barred by the remainderman's laches.

Upon the ground that a claim against the estate of a life tenant, for waste committed by him, must be commenced within six years after his death, a suit commenced about ten years thereafter was held to be barred in Birch-Wolfe v. Birch (1870) L. R. 9 Eq. (Eng.) 683. Compare Higginbotham v. Hawkins (1872) L. R. 7 Ch. (Eng.) 676, infra.

In deciding that an express covenant to restore the property as it was when first occupied made the statute run from the end of the lease, the court in Davenport v. United States (1891) 26 Ct. Cl. (Fed.) 338 (where damages were awarded against the government, which had occupied a building under several leases for about twelve years, for leaving it in a dilapidated condition), said that all questions of the Statute of Limitations were removed by virtue of the covenant (no point having been made as to the claim having been filed within the time allowed after the termination of the lease to file such claims).

The view taken in the cases heretofore referred to, that the running of the statute will not start until the end of the tenancy, upon the theory of a continuing obligation to restore the premises at the end of the tenancy in substantially the same condition as they were (except, of course, for ordinary wear and tear), appears to be a modification of the ordinary rule, that an action for waste will begin to run at the time when the waste is actually committed, or at least when it is or should be discovered, barring any suspension of the statute by reason of a personal disability. As applying the ordinary rule, see the following cases:

So far as voluntary waste committed by the life tenant (who had occupied the premises for over twenty years) was concerned, in Fisher v. Haney (1918) 180 Ky. 257, 202 S. W. 495, supra, the remainderman's action after the life tenant's death was held to be barred by a five-year statute, upon the ground that the limitation against his cause of action began to run from the time when such waste was committed,

which was more than five years before suit was commenced. And it was held in Adams v. Bates (1921) 191 Ky. 710, 231 S. W. 238, that a five-year statute would begin to run from the time of the cutting of trees by a life tenant, so as to bar the remainderman's action for waste where the trees were cut more than five years before the suit.

In Sherrill v. Connor (N. C.) supra, where a tenant in dower was sued for permissive waste in allowing a barn to fall into decay, it was held that, even though such waste was of a continuous character, a three-year Statute of Limitation was applicable and barred any recovery except for waste committed during the three years immediately preceding the suit; the court noting that the reversioners labored under no disability such as prevented the statute from running, and that they might have sued at any time after the dower was assigned.

A six-year statute covering all forms of personal actions was held to be applicable to an action against the lessee under a long-term lease, for unlawfully removing coal from under the land, in Kingston v. Lehigh Valley Coal Co. (1913) 241 Pa. 469, 49 L.R.A. (N.S.) 557, 88 Atl. 763, even though the reversioner was the trustee for a charity and would not be entitled to possession for several centuries,-it being held that the statute would begin to run from the time the reversioner discovered, or should have discovered, about the lessee's unlawful removal of coal, so as to bar damages resulting from a trespass before that time.

Although the relation of landlord and tenant was not relied on in Liles v. Producers' Oil Co. (1924) 155 La. 385, 99 So. 339, where the defendant, having leased property from some of the owners, was sued by other owners for unlawfully extracting oil, it may be noted that a one-year prescription, dating from the time the plaintiffs knew of the wrongful appropriation, was applied in limiting the damages to that period before suit. And in Findley v. Warren (1915) 248 Pa. 315, 94 Atl. 69, where oil had been taken for more than twenty years under a lease,

which was executed by a life tenant, without authority, it was held that the six-year statute barred any recovery by the remaindermen except for oil taken within that time before their suit was instituted, they being all of age more than six years before the suit was brought.

Upon the ground that an immediate right of action accrued at the time when the timber was cut by the life tenant in question, rather than being postponed until the time of his death, the remaindermen's suit against the former's estate for an account was held to be barred in Higginbotham v. Hawkins (1872) L. R. 7 Ch. (Eng.) 676, the defense, having insisted that no timber was shown to have been cut within six years before the suit was filed.

So far as the cutting of trees by a life tenant before a remainderman became of age was concerned, the latter's remedy was held to be barred when he died, ten years after he became of age, the statute having begun to run when he became of age, in Seagram v. Knight (1867) L. R. 2 Ch. (Eng.) 628, affirming as to this point (1867) L. R. 3 Eq. 398. But, so far as subsequent cuttings were concerned, within two years preceding that remainderman's death, the running of the statute was held to have been suspended for the period thereafter (of about twenty years) until the life tenant subsequently died, since the latter had during all that time held an anomalous position as the former's administrator while indebted to the estate, and accordingly no suit in respect to the waste could be commenced during that time. The result was that since the suit in respect to these subsequent cuttings was commenced within two years after the life tenant's death, by a new administrator, it was not barred by the statute, the decision below being reversed as to this point.

Prior to the enactment of a statute expressly limiting actions of waste to six years, the question whether any general limitation statute would be applicable to such an action was

raised, but not decided, in an action against a tenant in dower in Padelford v. Padelford (1828) 7 Pick. (Mass.) 152.

In holding that no prescription as to an action arising ex delicto was applicable to a lessor's action for breach of the lessee's express covenant to return the premises in good order, the court in Bourdette v. School Directors (1881) 1 McGloin (La.) 4 (where suit was filed about two and a half years after possession was given up), observed that on their face the allegations arose ex contractu.

In Learned v. Ogden (1902) 80 Miss. 769, 92 Am. St. Rep. 621, 32 So. 278, it was held that, so far as it accrued to remaindermen after the oldest of them became of age, a joint right of action for certain acts of waste committed by a tenant by the curtesy was barred as to all of them after the lapse of the statutory period.

But, in respect to prior acts of waste, the court apparently took the view that, their right having accrued to them while they were all infants, the statute would not begin to run until the youngest became of age. And it further held that the fact that the life tenant became guardian for the remaindermen did not cause the statute to run, since he did not have the legal title.

That the value of timber cut by a life tenant more than six years before suit could not be recovered by the reversioner upon an implied assumpsit, as for waste committed, where the tenant had devested the reversioner's estate, by levying a fine, before the cutting, and had sold the timber, receiving the money therefor within six years of the time when the suit was started, was the decision of Hughes v. Thomas (1811) 13 East, 474, 104 Eng. Reprint, 454. E. W. H.

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Assumpsit, § 6 when lies.

1. Assumpsit lies against one who, after having secured merchandise on faith of a letter of credit, induces the bank to dishonor the letter, in favor of a purchaser for value of a draft drawn against the letter by one furnishing the merchandise.

[See annotation on this question beginning on page 57.]

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APPEAL by plaintiff from a decree of the District Court of the United States for the Eastern District of New York dismissing a complaint filed to enforce payment of a draft. Reversed.

Statement by Rogers, Circuit J.: This cause comes here on appeal from a decree entered in the United States district court for the eastern district of New York, which dismissed the complaint herein for want of equity.

The plaintiff, as its name indicates, is a national banking corporation organized under the laws of the United States, and is engaged in the business of banking in the city of Toledo, in the state of Ohio. The defendant is a corporation organized under the laws of the state of New York, and it has its principal office for the transaction of business in the borough of Brooklyn, in the city and state of New York, and it is engaged in the business of buying, selling, and dealing in scrap metal. The jurisdiction depends on diversity of citizenship and the allegation that the value of the property right in question is more than $3,000.

It brought this suit in equity and filed an amended bill of complaint. The defendant filed an answer, portions of which answer the plaintiff moved to strike out. And the defendant also moved for judgment on a distinct defense, which it pleaded. The court ordered certain parts of the complaint stricken out, and then ordered the complaint dismissed without prejudice and without

costs. The facts are stated in the opinion.

Argued before Rogers, Manton, and Hand, Circuit Judges.

Messrs. Morris, Plante, & Saxe and Merton E. Lewis for appellant.

Messrs. Morris D. Kopple and Herbert D. Cohen for appellee.

Rogers, Circuit Judge, delivered the opinion of the court:

It appears that the War Department of the government of the United States on October 17, 1922, sent to dealers in metal scrap material a circular letter soliciting bids for the purchase of about 1,880 gross tons of Stokes trench mortar shells scrap and trench mortar fuse bodies scrap, then at the Ordnance Reserve Depot at Toledo, Ohio. It required all bids to be presented at the Toledo depot on.or before November 13, 1922. The defendant submitted its bid within the specified period, and its bid was accepted, and the material was awarded to the defendant.

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