No. 4.- Gibson v. Wells, 1 Bos. & P. (N. R.) 291, 292.

repairs he ought to do thereto, so as to prejudice the [* 291] plaintiff's reversionary interest. Breaches were assigned

in the three last counts upon the manner as in the second count.

respective conditions in the same The defendant pleaded not guilty.

At the trial before Sir JAMES MANSFIELD, C. J., at the Westminster sittings after last Easter term, it was proved, that the defendant had occupied the house in question for a considerable time as tenant at will to the plaintiff, who was seised in fee thereof, and that the house was much out of repair. But his Lordship, being of opinion that the dilapidations proved amounted only to permissive waste, nonsuited the plaintiff, saying that although an action on the case in the nature of waste might be maintained for commissive waste, yet that he had never known an instance of such an action being maintained for permissive waste only.

Bayley, Serjt., moved for a rule to show cause why the nonsuit should not be set aside and a new trial be granted, and urged that, as there was no doubt that an action on the case might be maintained for acts of commission, there was no reason why such an action should not be maintainable for neglect amounting to waste at law; that the foundation of the action was, that an injury was done to the reversion by the default of the tenant, and the reversion was equally injured whether the dilapidations were occasioned by commission or neglect.

Sir JAMES MANSFIELD, C. J. There is no doubt but an action on the case may be maintained for wilful waste; but at common law, if any part of the premises are suffered to be dilapidated, it amounts to permissive waste; and if this action be maintainable, such an action might be brought against a tenant at will who omitted to repair a broken window. I think this [* 292] action is an innovation, and I am not disposed to encourage it.

The other Judges concurring,

Bayley, Serjt., took nothing by his motion.

On a subsequent day, Bayley mentioned this case again, and referred the Court to several precedents of counts in declarations for permissive waste similar to those in the present case; but it appearing that they had been joined with counts for waste wilfully committed, and that on the point now in question no express decision could be produced,

No. 4. — Gibson v. Wells, 1 Bos. & P. (N. R.) 292. — Notes.

The Court adhered to their former opinion, and refused a rule to show cause.

ENGLISH NOTES.

The writ of waste which is so often mentioned in the earlier cases had become obsolete before the commencement of the present century. See Hill on Real Actions. When actions were commenced in the Common Law Courts, the proceedings were usually commenced by an action on the case. When recourse was had to Courts of Equity, the remedy was by injunction. The writ of waste was abolished in the year 1833 by Statute 3 & 4 Will. IV. c. 27, ss. 36 & 37.

The law is thus summed up by the late Mr. Cruise. "Tenants at will... not being within the Statute of Gloucester (6 Ed. I. c. 5), no action of waste lies against them, and as to permissive waste, there is no remedy against them, for they are not bound to repair or sustain houses like tenants for years." 1 Cruise, Dig. tit. IX., ch. 1, s. 11. The authority cited by Cruise for this proposition is The Countess of Shrewsbury's Case (1600), 5 Co. Rep. 13 b., Cro. Eliz. 777, which is apparently the earliest case. The material part of the report is as follows: "The Countess of Shrewsbury brought an action on the case against Richard Crompton, a lawyer of the Temple, and declared that she leased to him a house at will, et quod ille tam negligenter et impro vide custodivit ignem suum, quod domus illa combusta fuit; to which the defendant pleaded not guilty, and was found guilty, &c. And it was adjudged that for this permissive waste no action lay, against the opinion of Brooke, in the abridgment of the case of 48 E. III. 35, waste 52. And the reason of the judgment was, because at the common law no remedy lay for waste, either voluntary or permissive, against a lessee for life or years, because the lessee had interest in the land by the act of the lessor, and it was his folly to make such lease, and not restrain him by covenant, condition, or otherwise, that he should not do waste. So, and for the same reason, a tenant at will shall not be punished for per missive waste. But the opinion of Littleton is good law, fol. (15) 152. If a lessee at will commits voluntary waste, scil. in abatement of the houses, or in cutting of the woods, there an action of trespass lies against him. For, as it is said in 2 & 3 Ph. & M., Dyer 122 b., where tenant at will takes upon him to do such things which none can do but the owner of the land, these amount to the determination of the will, and of his possession, and the lessor shall have a general action of trespass notwithstanding any entry; . . . wherefore it was awarded, that the plaintiff take nothing by her bill." The principal case is also supported by the judgment of the Court in Harnett v. Maitland (1847), 16 M. & W. 257, 16 L. J. Ex. 134. "It is agreed on all hands," said

PARKE, B., "that a tenant at will would not be liable to an action for permissive waste." To the same effect is Pantam v. Isham (1702), 1 Salk, 19, 3 Lev. 359.

A tenant by elegit is not liable for permissive waste. Dean, &c. of Worcester's Case (1606), 6 Co. Rep. 37. If a tenant by elegit committed an act of waste, the proper remedy was not a writ of waste, but an action for an account. Bro. Abr. tit. Waste, pl. 78.

A legal tenant for life is not liable to an action for permissive waste. In re Cartwright, Avis v. Newman (1889), 41 Ch. D. 532, 58 L. J. Ch. 590, 60 L. T. 891. The case will give a clue to the more important cases on the question of liability for permissive waste, and will be dealt with more at large under the ruling case of Vane v. Lord Barnard (or Lord Bernard's Case), No. 9, p. 488, post.

AMERICAN NOTES.

This doctrine is accepted by the American text writers. The principal case is cited by Wood on Landlord and Tenant, sect. 424, but no American cases in point are cited.

A TENANT from year to year is bound to use the premises in a husbandlike manner, but is not, in the absence of express stipulation, liable for dilapidations arising in the course of such use.

Horsefall v. Mather.

Holt, N. P., 7-9 (17 R. R. 589).

Landlord and Tenant. - Tenant from Year to Year. — Dilapidations. Tenant at will is not liable to general repairs; he is bound to use the [7] premises in a husbandlike manner, but no farther.

This was an action of assumpsit brought against the defendant, who had been tenant from year to year to the plaintiff, for dilapidations and injury to the premises recently in his occupation. The declaration stated, that in consideration that the [*8]

defendant had become and was tenant to the plaintiff of a certain messuage, &c., he undertook to keep the same in good and tenantable repair; to uphold and support, and to deliver up the same to the plaintiff at the expiration of his term, in the condition in which he received it.

It appeared that the defendant had occupied the house about three years at a rack rent. It was in good repair when he entered it; but, upon quitting possession, he had in some degree damaged the ceiling, the walls, and other parts of the house, by removing the shelves and fixtures, and had not left the house in a good tenantable condition. The plaintiff had been put to some small expense in refitting it for the occupation of a new tenant. The plaintiff gave no other evidence than the occupation of the premises by the defendant.

Lens, Serj., for the plaintiff, contended, that there was a general assumpsit in law, founded in the relation of landlord and tenant, that the latter should keep the premises in tenantable condition; and that this obligation attached upon a tenant from year to year, or a tenant at will. He relied upon Ferguson v. Black, 2 Esp. 590 (5 R. R. 757).

Best, Serj. contra: The declaration states the implied assumpsit in terms too large. This is an extensive obligation, which, in the absence of a specific contract, does not result from the relation of landlord and tenant. An implied promise to conduct himself as a good tenant is very different from an implied promise to [*9] keep premises in * repair, to uphold and maintain them, and to surrender them, at the expiration of the tenancy, in that condition.

GIBBS, C. J. :

I am of opinion that the plaintiff is not entitled to recover. He has laid his ground too broadly. The defendant is answerable to some extent, but not to the extent stated in the declaration. Can it be contended that a tenant at will is answerable if premises are burned down? Would he be bound to rebuild if they became ruinous by any other accident? And yet, if bound to repair generally, he might be called upon to this extent. He is bound to use the premises in a husbandlike manner; the law implies this duty and no more. I am sure it has always been holden that a tenant from year to year is not liable to general repairs. Plaintiff nonsuited.

No. 5. Horsefall v. Mather. Notes.

ENGLISH NOTES.

The mere relation of landlord and tenant raises an implied promise on the part of the tenant to manage or deal with the property demised in a husbandlike and tenantable manner; Powley v. Walker (1793), 5 T. R. 373, 2 R. R. 619 (a lease of a farm); Holford v. Dunnett (1841), 7 M. & W. 348, 10 L. J. Ex. 101 (a lease of a house, garden, orchard and appurtenances); Dietrichsen v. Giubilei (1845), 14 M. & W. 845, 15 L. J. Ex. 73 (lease of a house).

The tenant must farm his land according to the custom of the country. Wigglesworth v. Dallison (1779), 1 Doug. 210, 1 Smith Lead. Cas. 569, 9th ed. Where there is a written contract, the custom will be excluded if the terms of the lease are inconsistent with the custom

or exclude the operation of the custom. Webb v. Plummer (1819), 2 B. & Ald. 746, 21 R. R. 479; Roberts v. Barber (1833), 1 Crompt. & M. 808, 2 L. J. Ex. 266; Hutton v. Warren (1836), 1 M. & W. 466. Where the custom is not excluded in express terms or by necessary implication it will be deemed incorporated in the contract. Senior v. Armytage (1816), Holt, 197, 17 R. R. 627; Tucker v. Linger (H. L. 1883), 8 App. Cas. 508, 52 L. J. Ch. 941, 49 L. T. 373, 32 W. R. 40. The terms upon which the tenant holds may be collected from a written document which is void as a lease. Richardson v. Gifford (1834), 1 Ad. & El. 52; Beale v. Saunders (1837), 3 Bing. N. C. 850, 6 L. J. C. P. 283; Lee v. Kay (1854), 6 Ex. 662, 22 L. J. Ex. 198. In Richardson v. Gifford, supra, it was contended that a covenant to repair was inconsistent with a tenancy from year to year, implied from the payment of rent under a demise void by the Statute of Frauds, according to the principle of Doe d. Rigge v. Bell (1793), 5 T. R. 471, 2 R. R. 642, 2 Smith's Lead. Cas. 110, 9th ed.; but the Court rejected the contention. Where a tenant holds over he will be presumed to hold upon the terms as to repair or otherwise contained in the original demise. Digby v. Atkinson (1815), 4 Camp. 275, 16 R. R. 792; Torriano v. Young (1833), 6 Carr. & Payne, 8.

Where a tenant has covenanted to repair, and the premises are burnt down, he is liable to rebuild them. Bullock v. Dommitt (1796), 6 T. R. 650, 3 R. R. 300; Pym v. Blackburn (1796), 3 Ves. 34. Where there is a covenant to repair and also a covenant to insure the demised property for a specific sum, the liability of the tenant is not measured by the amount fixed for the insurance. Digby v. Atkinson, supra.

A Court of Equity will interpose to stay an act of waste on the part of a tenant from year to year. Kimpton v. Eve (1813), 2 Ves. & Bea. 349, 13 R. R. 116. But the Court will not grant an injunction to stay what is known as meliorating waste. Jones v. Chapple (1875),