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 Heme 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. As 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. Gilliam, 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 Torraino 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 Bou-vier's Law Dict. 645, Waste, § 14; 1 Washburn on R. Prop. 124, and note 1. By other legal writers they are doubted or condemned as unsound in principles. Roscoe on Real Actions, 385; Ferrard on Fixtures, 278, 281, note; 1 Evans' Statutes, 193, note; Brown on Parties, 257; 4 Kent, 76, 79; Elmes on Dilapidations, 257.
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 mentioned in the statute conjointly; and each derives his interest in the premises from the act of the owner of the inheritance.
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. 259a, note 0.; Pynchon v. Stearns,. II Met. 304; I 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; Market 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.