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[Reported Fitz. Ab. Wast, pl. 30.) Waste, and it was found by the inquest, where it was pleaded for the party that there was no waste, that as to a kitchen, it was burned by a strange woman without the knowledge of the defendant (because he was living elsewhere); and that to rebuild this kitchen he cut the oaks in the woods and hedges near the close; and that the house is now better than it was before the fire; and that he had also cut down a certain number of oaks in the woods and hedges near the close and sold them, and had cut down some to repair the houses, and had cut down one which lay there yet unsold.
Pole prayed judgment on the verdict for the plaintiff because all that is found should be adjudged waste by the form of his plea, where. fore the defendant ought to have pleaded this matter if he wished to have availed himself of it.
WILUGHBY [C. J.]. The fire is waste for the want of good watch.
THORPE [J.). Now lately here on a writ of waste it was found by an inquest taken on default that the Welsh arrived on the sea-coast and burned a manor, and it was adjudged no waste, so here.
WILUGHBY [C. J.]. Against the Welsh the party can never have disturbance. But do you think if your household [? main] lodges a stranger who puts the houses in fire and flame, that that will not be adjudged waste? As if he would say it was. Wherefore the fire is adjudged waste, and so the kitchen is wasted ; but the cutting to repair the house is not waste, and as to that which is cut and not sold, that is waste, and that which is cut for repairs, although it was not pleaded, is adjudged no waste, wherefore the court awards that the plaintiff recover the place wasted and treble damages.
THE ABBOT OF SHIRBOURNE'S CASE.
COMMON PLEAS. 1411.
[Reported Year Book, 12 Hen. IV. 5.] THE Abbot of Shirbourne brought a writ of waste."
Norton traversed the waste except in a barn, and said that half of the barn had fallen before the lease, and as to the other half, he said that it was unroofed by a sudden storm, and before he could roof it, the plaintiff entered on him and was seised on the day of the purchase of the writ, and he demanded judgment, if he could maintain an action for this waste.
i Part of the case is omitted.
Skrene. We have alleged that he has done waste in a barn, which we let to him, and he says that the waste was made in one half before the lease, which is no answer to our action because, &c., and if he has made a new barn there himself, and waste has been done in that, our action is maintainable.
HILL [J.]. If the matter is so, allege it on your part, for his answer is good.
Skrene. Well, then as to the other half his plea is double, one is the sudden storm, the other is our entry on him, wherefore we pray he may be held to one of them.
Hill [J.]. The plea is not double, because the effect of this plea is
Skrene. If I traverse the entry, he will rely against me [reliera sur moy] on the sudden storm, which excuses him from waste ; for if I let houses for a term of years, and they are unroofed by sudden chance, I
Hill [J.]. What you say is not law, for although at the beginning it will not be adjudged waste made by him, but by the act of God, yet if he suffers the house to be unroofed, by reason of which the timber is injured, he shall answer for this waste, because it is his own fault, and by law he is bound to roof the house.
Skrene. If the whole house is blown down by a sudden wind, I shall not make a new one.
Hill (J.]. I grant it; but when the timbers are standing, which are the substance of the house, and they fall for lack of roofing, it is clearly waste.
HANKFORD [J.] If I do waste in tenements which I hold for term of years, and within the term I am put out by the lessor, it is a question whether he has an action of waste or not, namels, during the term; and it is proved here by the count that the term still continues; and yet if he wishes to say that the houses were unroofed hy your fault and not by a sudden wind, he will be concluded by the entry which he made without cause, wherefore the plea seems double.
And then Norton alleged the cause of the entry of the plaintiff specially ; viz., that the lease was made by indenture on condition, that if waste was done, he could re-enter, and by reason of the unroofing be re-entered, wherefore, &c.
HANKFORD [J.]. Again you prove by your plea that his entry was tortious, and so the plea is double.
Hill [J.]. The plaintiff can say that the defendant bad sufficient time before his entry to have repaired the house, and did not repair it, and so prove the waste in the defendant's default, and so prove his entry lawful by the condition aforesaid ; wherefore
HANKFORD [J.] to Norton. Be advised, &c.?
1 “Waste and destruction are nearly equivalent, and are used indifferently in reference to houses, woods, and gardens ; but exile can be used when serfs are manumitted,
LIT. § 71. Also, if a house be leased to hold at will, the lessee is not bound to sustain or repair the house, as tenant for term of
and wrongly ejected from their tenements ; but the chance of fire, or an unexpected event of that kind, excuses all tenants." Fleta, lib. 1, c. 12, § 20.
“In an action of waste bronght against tenant by the curtesy, tenant for life, tenant for years, or tenant in dower, which before hath been named in this Act, the entry of the plea of the tenant is quod predict (talis) non fecit vastum, and yet all these by construction of law shall answer for the waste done by any stranger, for he in the reversion cannot have any remedy but against the tenant, and the tenant shall have his remedy against the wrong-doer, and recover all in damages against him, and by this means the loss shall light upon the wrong-doer ; for voluntary waste and permissive waste is all one to him that hath the inheritance. But if the waste be done by the enemies of the king, the tenant shall not answer for the waste done by them, for the tenant hath no remedy over against them. The same law it is if the waste be done by tempest, lightning, or the like, the tenant shall not answer for it. It is adjudged in 9 E. 2, that if thieves burn the house of tenant for life, without evil keeping of lessee's for lives fire, the lessee shall not be punished therefore in an action of waste ; nota the case of fire, &c.” 2 Inst. 303.
"Perhaps the universal silence in our courts upon the subject of any such responsibility of the tenant for accidental fires, is presumptive evidence that the doctrine of permissive waste has never been introduced, and carried to that extent, in the common law jurisprudence of the United States." 4 Kent, Com. 82.
In Cook v. Champlain Transportation Co., 1 Denio, 91 (1845), the plaintiffs, assignees of a lease of land, brought an action against a steamboat company for carelessly setting fire to a mili on the demised premises by sparks from the steamboat. The lease under which the lessees held provided that the buildings erected on the premises after the making of the lease (which was the case with the mill), should, “without damages of any kind, other than the natural wear of the same, revert to and become the property of the lessors." BEARDSLEY, J., delivering the opinion of the court, said: “Upon this state of facts, it was argued that the plaintiffs were bound to rebuild the mill for the benefit of the lessors, and therefore were entitled to recover its full value from the defendants; and if such was the liability of the plaintiffs, the consequence stated would seem to follow.
“ This liability of the plaintiffs was placed on two distinct grounds :
“1. It was said the lessees were bound by their covenant to rebuild; that the cov. enant ran with the land, and bound their assignees; and therefore the plaintiffs were liable.
“2. That the destruction of the mill by tortious negligence was waste, for which the plaintiffs, being tenants for a term of years, were answerable to the reversioner, wholly irrespective of any express agreement, and therefore they were entitled to a corresponding redress from the defendants.
"I pass by the first ground stated, for the last seems decisive of the question. The plaintiffs claim that the mill was destroyed by the wrongful act of the defendants; and if so, it was waste, for which the plaintiffs, being tenants for years, were responsible. * It is common learning,' said Heath, J., in Attersoll v. Stevens (1 Taunt. 198), that every lessee of land, whether for life or years, is liable in an action of waste to his lessor for all waste done on the land in lease, by whomsoever it may be committed.' Chambre, J., in the same case, p. 196, said: “The situation of the tenant is extremely analogous to that of a common carrier; to prevent collusion (and not on the presumption of actual collusion), both are charged with the protection of the property in. trusted to them against all but the acts of God and the king's enemies; and as the tenant in the one case is charged with the actual commission of the waste done by others, so, in the other case, the carrier is charged with actual default and negligence, though he loses the goods by a force that was irresistible, or by fraud, against which no ordinary degree of care and caution could have protected him.' Lord Coke is not years is tied. But if tenant at will commit voluntary waste, as in pulling down of houses, or in felling of trees, it is said that the lessor shall have an action of trespass for this against the lessee. As if I lend to one my sheep to tathe his land, or my oxen to plough the land, and he killeth my cattle, I may well have an action of trespass against him, notwithstanding the tending
Co. Lit. 57 a. " If a house be leased to hold at will, the lessee is not bound, &c.” For the Statute of Gloucester above mentioned extends not to a tenant at will, and therefore for permissive waste, the lessor hath no remedy at all.
“But if tenant at will commit voluntary waste, &c.” And true it is, that if tenant at will cutteth down timber trees, or voluntarily pull down and prostrate houses, the lessor shall have an action of trespass against him, quare vi et armis, for the taking upon him power to cut timber, or prostrate houses, concerneth so much the freehold and inheritance, as it doth amount in law to a determination of his will; and so hath it been adjudged.
Co. Lit. 53 a, 53 b. Waste, Vastum dicitur a vastando, of wasting and depopulating: and for that waste is often alleged to be in timber, which we call in Latin maremium, or maresnium, or maresmium, it is good to fetch both of them from the original. First, timber is a Saxon word. Secondly, maremium is derived of the French word marreim, or marrein, which properly signifieth timber.
An action of waste doth lie against tenant by the curtesy, tenant in dower, tenant for life, for years, or half a year, or guardian in chivalry, by him that hath the immediate estate of inheritance, for waste or destruction in houses, gardens, woods, trees, or in lands, meadows, &c., or in exile of men to the disherison of him in the reversion or remainder. There be two kinds of waste, viz., voluntary or actual, and permissive. Waste may be done in houses, by pulling or prostrating them down, or by suffering the same to be uncovered, whereby the spars
less explicit, for he says: “Tenant by the curtesy, tenant in dower, tenant for life, years, &c., shall answer for the waste done by a stranger, and shall take their remedy over.' (1 Inst. 54 a ; see also 2 Id. 145, 303; 1 Chit. Gen. Pr. 388; 4 Kent's Com. 77 ; 2 R. S. 334, $ 1; 1 Inst. 57 a, note 377; 2 Roll. Abr. 821 ; 3 Black. Com. 228 ; Comyn's Land. and Ten. 188.)
“The plaintiffs thus being bound to answer to their landlord for the full value of the building which was destroyed, were entitled to recover a like amount from the defendants,” pp. 103, 104.
“As to the destruction of a part of the buildings by fire. There was, as has been seen, no express agreement to repair in the lease. The implied obligation is not to repair generally, but to so use the property as to make repairs unnecessary, as far as possible. It is in effect a covenant against voluntary waste, and nothing more. It has never been so construed as to make a tenant answerable for accidental damages, or to bind him to rebuild, if the buildings are burned down or otherwise destroyed by accident. In this case it has not been found, neither is it claimed in the petition, that these premises were burned through the neglect of the United States. No judg. ment can, therefore, he rendered against the United States on this account." Per WAITE, C. J., in United States v. Bostwick, 94 U. S. 53, 68. See White v. M Cann, 1 Ir. C. L. 205.