Contra to

for years for permissive waste. 2. Because the lease between the parties measures and limits the liability of the tenant, in the matter of repairs.

Argued at November Term, 1868, before the CHIEF JUSTICE and Justices DALRIMPLE and DEPUE.

For the rule, J. T. Nixon and the Attorney-General, George M. Robeson.

Against the rule, F. F. Westcott and Mr. Browning.

DEPUE, J. The action on the case, in the nature of waste, has Here✓ Bemborr spy almost entirely superseded the common law action of waste, as well for permissive as for voluntary waste, as furnishing a more easy and ex'peditious remedy than a writ of waste. It is also an action encouraged by the courts, the recovery being confined to single damages, and not being accompanied by a forfeiture of the place wasted.

Development and discussion of ract

At common law, waste lay against a tenant in dower, tenant by the curtesy and guardian in chivalry, but not against lessees for life or years. 2 Inst. 299, 305; Co. Lit. 54. The reason of this diversity

was, that the estates and interests of the former were created by the law,
and therefore the law gave a remedy against them, but the latter came
in by the act of the owner who might have provided in his demise
against the doing of waste by his lessee, and if he did not, it was his
negligence and default. 2 Inst. 299; Doct. & Stu., ch. 1, p. 102.
This doctrine was found extremely inconvenient, as tenants took advan-
tage of the ignorance of their landlords, and committed acts of waste
with impunity. To remedy this inconvenience the Statute of Marlbridge
(52 Hen. 3, ch. 23) was passed. But as the recompense given by this
Statute was frequently inadequate to the loss sustained, the Statute of
Gloucester (6 Edw. 1, ch. 5) increased the punishment by enacting
that the place wasted should be recovered, together with treble dam-
ages. 1 Cruise Dig. 119, §§ 25, 26; Sackett v. Sackett, 8 Pick., p. 313,
per Parker, C. J. The Statute of Marlbridge is in the following words:
"Also fermors, during their terms, shall not make waste, sale, nor
exile of house, woods, and men, nor of anything belonging to the tene-
ments that they have to ferm, without special license had by writing of
covenant, making mention that they may do it; which thing, if they do
and thereof be convict, they shall yield full damage, and shall be pun-
ished by amercement grievously." 2 Inst. 145. The word "fermor
(firmarii) in this Statute comprehended all such as held by lease for
life or lives, or for years, by deed or without deed (2 Inst. 145, note 1),
and also devisees for life or years (2 Roll. Abr. 826, l. 35). By the
Statute of Gloucester, "it is provided, also, that a man, from hence-
forth, shall have a writ of waste, in the Chancery, against him that
holdeth by law of England or otherwise, for term of life, or for term of
years, or a woman in dower. And he which shall be attainted of
waste, shall lease the thing that he hath wasted, and, moreover, shall
recompense thrice so much as the waste shall be taxed at. And for
waste made in the time of wardship, it shall be done as is contained in

the Great Charter." 2 Inst. 299. At the common law, a tenant at will was punishable for voluntary waste, but not for permissive waste. Countess of Salop v. Crompton, Cro. Eliz. 777, 784; The Countess of Shrewsbury's Cuse, 5 Rep. 14; Harnett and Wife v. Maitland, 16 M. & W. 258. Tenants in dower, by the curtesy, for life or lives, and for years, were included in the Statute of Gloucester. Tenants at will were always considered as omitted from the Statute of Marlbridge as well as from the Statute of Gloucester, and, therefore, continued to be dispunishable for mere permissive waste, and punishable for voluntary waste by action of trespass as at common law. The reason of this exemption of tenants at will from liability for permissive waste, was the uncertain nature of their tenure, which would make it a hardship to compel them to go to any expense for repairs. Their exemption from the highly remedial process of waste provided by the Statute of Gloucester, is attributable to the fact that the owner of the inheritance might at any time, by entry, determine the estate of the tenant, and thus protect the inheritance from spoil or destruction.

66

The language of the Statute of Marlbridge is, "shall not make (non facient) waste," and in the Statute of Gloucester, in speaking of guardians, the words used are, "he which did waste" (que aver fait waste). The settled construction of these Statutes in the English law until a comparatively recent period was, that they included permissive waste as well as voluntary waste. In a note in exposition of the Statute of Marlbridge, Lord Coke, in commenting on the words non facient," says: "To do or make waste, in legal understanding in this place, includes as well permissive waste, which is waste by reason of omission or not doing as for want of reparation, as waste by reason of commission, as to cut down timber, trees, or prostrate houses, or the like; and the same word hath the Statute of Gloucester, ch. 5, que aver fait waste, and yet is understood as well of passive as active waste, for he that suffereth a house to decay which he ought to repair, doth the waste." 2 Inst. 145; 7 Bac. Abr. 250; 3 Bl. Com. 225; 2 Saund. 252; 4 Kent, 76. So under the prohibition to do waste, the tenant is held to be bounden for the waste of a stranger, though he assented not to the doing of waste. Doct. & Stu., ch. 4, p. 113; 2 Inst. 303; Fay v. Brewer, 3 Pick. 203; 1 Washburn, R. Prop. 116. It is common learning 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, per Heath, J., in Attersoll v. Stevens, 1 Taunt. 198; with the exception of the acts of God, public enemies, and the acts of the lessor himself. White v. Wagner, 4 Harr. & Johns. 373; 4 Kent, 77; Heydon and Smith's Case, 13 Coke, 69. The instances in the earlier reports in which lessees for life or years, were held liable for permissive waste, which consisted in injuries resulting from acts of negligence or omission, are quite frequent; and their liability is grounded, not on the covenants or agreements in the instruments of demise, but on the Statute, which subjected them to the

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action of waste. Griffith's Case, Moore, 69, No. 187; Ib. 62, No. 173; Ib. 73, No. 200; Keilway, 206; Darcy v. Askwith, Hobart, 234; Glover v. Pipe, Owen, 92; 3 Dyer, 281; 2 Roll. Abr. 816 1. 40; 22 Vin. Abr. Waste, "c" and "d," pp. 436–440, 443; Co. Lit. 52 a, 53 b; 5 Com. Dig. Waste, d 2, d 4; Bissett on Estates, 299, 300. So uniformly had the courts determined that lessees for life or years, had committed waste by the application of the common law rules, with respect to waste, whether of omission or commission, that the learned commentator on English law says, "that for above five hundred years past, all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste." 2 Bl. Com. 283.

This construction of the Statutes of Marlbridge and Gloucester continued to be received without dissent until the decision of the case of Gibson v. Wells, 4 B. & P. 290, in the year 1805, which was followed by the case of Herne v. Bembow, 4 Taunt. 764 (1813). These cases, it is insisted, have settled the construction against the liability of a tenant for years for permissive waste. Gibson v. Wells is not an authority for this position. The tenant against whom the action there was brought was a tenant at will, who is not included within the Statutes, and who, at common law, was punishable for voluntary, but not for permissive waste. In Herne v. Bembow it does not clearly appear that the lease was for a term. It is certain that the opinion of the court proceeded upon the principles applicable to tenants at will. the case is reported in Taunton, it appears to have been decided, without argument or consideration. The opinion is a per Curiam opinion, and the only case cited is The Countess of Shrewsbury's Case, 5 Co. 14, which was a case of a tenancy at will.

The only subsequent case which sustains these cases is Torriano v. Young, 6 C. & P. 8; a case at Nisi Prius. In other cases where Herne v. Bembow was cited, the English courts show no disposition to follow it. In Jones v. Hill, 7 Taunt. 392, Gibbs, C. J., expressly guards himself against being supposed to concur in the position that an action will not lie against a lessee for years for permissive waste. In Martin v. Gilham, 7 A. & E. 540, and in Beale v. Sanders, 3 Bing. N. C. 850, a decision of that question is avoided; and in Harnett v. Maitland, 16 M. & W. 256, 261, Parke, B., on Gibson v. Wells, Herne v. Bembow, and Torriano v. Young being cited, intimates an opinion against those cases as necessarily involving the result that a tenant for life is also dispunishable for permissive waste. Text-writers of acknowledged authority have not recognized these cases as settling the law against the older cases and the opinions of Coke and Blackstone, but have regarded them as merely throwing a doubt upon a principle that had previously been set at rest. 2 Saund. 252 b, note i; Arch. L. & T. 196, 7; Smith on L. & T. 196; Comyn on L. & T. 495, and note e; 2 Bouvier's Law Dict. 645, Waste, § 14; 1 Washburn on R. Prop. 124,

and note 1. By other unsound in principle. tures, 278, 281, note; 257; 4 Kent, 76, 79; Independent of authority, the true construction of the Statute of Gloucester, leads to the conclusion that tenant for life or years, was made liable for permissive as well as voluntary waste. Before either this Act or the Statute of Marlbridge was passed, waste was recognized in the law, as an injury to the inheritance, resulting either from acts of commission or of omission. Neither of these Statutes created new kinds of waste, but gave a new remedy for old wastes, leaving what was waste, and what not, to be determined by the common law (2 Inst. 300); and by the Statute of Gloucester the writ of waste was suable out of Chancery as well against lessee for life or years, as against tenant by the curtesy, or in dower, putting the former, as to the newly created remedy, on the same footing as the latter. "It hath been used as an ancient maxim in the law, that tenant by the curtesy, and the tenant in dower, should take the land with this charge, that is to say, that they should do no waste themselves, nor suffer none to be done; and when an action of waste was given after, against a tenant for term of life, then he was taken to be in the same case, as to the point of waste, as tenant by the curtesy, and tenant in dower was, that is to say, that he should do no waste, nor suffer none to be done." Doct. & Stu., ch. 4, p. 113. No distinction can be made between lessee for life and lessee for years. Both are mer tioned in the Statute conjointly; and each derives his interest in the premises from the act of the owner of the inheritance.

legal writers they are doubted or condemned as Roscoe on Real Actions, 385; Ferrard on Fix1 Evans' Statutes, 193, note; Broom on Parties, Elines on Dilapidations, 257.

The second section of the Act for the prevention of waste, which is in force in this State (Nix. Dig., 4th ed., 1022) provides that no tenant for life or years, or for any other term, shall during the term make or suffer any waste, sale or destruction of houses, gardens, orchards, lands, or woods, or anything belonging to the tenements demised, without special license in writing, making mention that he may do it. The third section is in substance the same as the Statute of Gloucester. The Act was passed in 1795. The use of the words "make or suffer," in the second section, which are equivalent to Coke's interpretation of facient in the Statute of Marlbridge, manifests an intent to adopt as the law of this State, the doctrine of the English courts, as to the liability of tenants for life or years for permissive waste, which was universally received at the time of the passage of the Act.

The second reason assigned involves the effect of the lease in this action.

Premising that the act or omission, to constitute waste must be either an invasion of the lord's property, or at least be some act or neglect which tends, materially, to deteriorate the tenement, or to destroy the evidence of its identity (Burton's Comp. R. Prop. 411; Doe ex dem. Grubb v. Earl of Burlington, 5 B. & Ad. 507; 2 Saund. 259 a,

note o; Pynchon v. Stearns, 11 Met. 304; 1 Washburn R. Prop. 108); and that the action is founded partly upon the common law and partly upon the Statute, and does not depend for its support on any covenants of the tenant (22 Viner, Abr. 457, Waste M. 4; 3 Bl. Com. 227; Kinlyside v. Thornton, 2 W. Black. 1111; Marker v. Kenrick, 13 C. B. 188); it is obvious that we must resort to the Statute for the conditions on which the tenant is excusable for the waste done.

There is a class of cases in which tenants have been held not to be liable for waste resulting from non-repair where the lessor has entered into a covenant to make the repairs for the want of which the injury has happened. These cases go upon the ground that the injury was caused by the lessor's own default, on which he can base no right to recover. There is no such covenant in the lease now under consideration.

The Statute forbids waste by the tenant" without special license, in writing, making mention that he may do it." The consent of the landlord by parol will not be sufficient authority. McGregor v. Brown, 6 Seld. 114. The words usually employed for this purpose are "" without impeachment of waste," but any words of equivalent import will be sufficient, provided they amount to a license to do the acts. The defendant, to bring himself within the Statute, relies on that part of the lease which relates to the re-delivery of the personal property leased, in connection with the stipulation giving the defendant the privilege of expending a portion of the rent in each year for repairs. The covenant as to the personal property is entirely distinct from the obligations of the tenant, with respect to the real estate. The privilege of expending a portion of the rent reserved in repairs, is not a license to the tenant to omit a duty put upon him by the Statute, growing out of the relations between the parties. To construe a privilege given by the landlord to expend his money in the reparation of the demised premises, as a license to the tenant to omit his duty, to the spoil or destruction of the inheritance, would be an entire subversion of the obvious intent of the landlord. If it falls short of a license for the act complained of, it does qualify or abridge the obligations of the tenant which exist independent of the provisions of the lease.

It was further insisted that if any action lies, it should be an action ex contractu, and not in tort. As already observed, the gravamen of the action is the breach of a statutory duty. An action on the case founded in tort will lie for the breach of a duty though it be such as that the law will imply a promise on which an action ex contractu may be maintained. Brunell v. Lynch, 5 B. & C. 589. To the same effect are the cases of Kinlyside v. Thornton and Marker v. Kenrick, already cited, in which it was held that an action on the case in the nature of waste, will lie, although the act complained of might also be the subject of an action for the breach of an express covenant.

BEASLEY, C. J., and DALRIMPLE, J., concurred.

Rule discharged.