Depue, J. - The action on the case, in the nature of waste, has almost entirely superseded the common-law action of waste, as well for permissive as for voluntary waste, as furnishing a more easy and expeditious remedy than a writ of waste.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.
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. Litt. 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 advantage 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. I., ch. 5), increased the punishment by enacting that the place wasted should be recovered, together with treble damages. 1 Cruise Dig. 119, secs. 25, 26; Sackett v. Sackett, 8 Pick. 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 tenements 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 punished by amercement grievously." 2 Inst. 145. The word fermer (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 henceforth, 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 leese 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 the 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 Case, 5 Rep. 14; Hartnett 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 Marl-bridge 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.
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 avera 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 " 11011 fit/rut," 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 action of waste. Griffith' s Case, Moore, 69, No. 187; lb. 62, No. 173; lb. 73, No. 200; Keilway, 206; Darcy v. Askwith, Hobart, 234; Glover v. Pipe, Owen, 92; 3 Dyer, 281; 2 Roil. Abr. 816 1, 40: 22 Win. Abr. Waste, "c" and "d," pp. 436-440, 443; Co. Litt. 52a, 53b; 5 Com. Dig. Waste, d 2, d4; 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.