Ventre de novo.

II. General restrictions upon tenant's use.

1. The Maxim " Sic utere tuo ut alienum non laedas."

Bishop V. Banks

33 Connecticut, 118. - 1865. [Reported herein at p. 382. ]1

III. Special restrictions protecting the inheritance for general owner. Waste.

1. Nature and Kinds of Waste.

a. Voluntary waste.

Cannon V. Barry

59 Mississippi, 289. - 1881. [Reported herein at p. 433.]

b. Permissive waste.

Herne V. Bembow

4 Taunton (Eng. C. P., etc.), 764. - 1813.

The plaintiff declared in case in the nature of waste, and alleged certain buildings in the defendant's occupation to be ruinous, prostrate, and in decay for want of needful and necessary reparations. There was also a count for obstructing a way. The defendant suffered judgment by default. The premises were demised by the plaintiff to the defendant by lease, which contained no covenant to repair. Upon the execution of a writ of inquiry, the under-sheriff directed the jury to inquire what sum it would take to put the premises into tenantable repair. The jury, however, rejected that rule, and gave very small damages.

Shepherd, Sergt., now moved to set aside the inquisition, and that the case might be submitted to another jury, contending that the damages ought to have been the sum sufficient to enable the defendant to keep up the premises in as good repair as they were in when the defendant took them.

1 This case is an illustration of the application of the maxim to an estate in fee, but this maxim and the rules relating to the preservation of public health apply as well to any mode of occupation of land. - Ed.

Per Curiam. - Whatever duties the law casts on the tenant, the law will raise an assumpsit from him to perform, if there be no covenant in his lease for the performance, but that is a very different case from a declaration framed in tort like this. If this action could be maintained, a lessor might declare in case for not occupying in an husbandlike manner, which cannot be. * The facts alleged are permissive waste; an action on the case does not lie against a tenant for permissive waste. Countess of Shrewsbury' s Case, 5 Co. 13. If, therefore, we were to grant this motion, the defendant would meet the plaintiff in a manner he would not like.

Rule refused.

Ferguson V. -------------

2 Espinasse (Eng. K. B.), 590. - 1797.

Action to recover damages for suffering an house of the plaintiff to be out of repair.

The case on the part of the plaintiff was, that the defendant had rented an house of him, as tenant at will, at a rent of 31 per annum, which he had quitted. After the defendant had given up the possession, the house was found to be very much out of repair; and the plaintiff had an estimate made of the sum necessary to put it into complete and tenantable repair, which sum he sought to recover in the present action.

Lord Kenyon said it was not to be permitted to plaintiff to go for the damages so claimed. A tenant from year to year is bound to commit no waste, and to make fair and tenantable repairs, such as putting in windows or doors that have been broken by him, so as to prevent waste and decay of the premises; but in the present case the plaintiff has claimed a sum for putting on a new roof on an old worn-out house; this, I think, the tenant is not bound to do, and that the plaintiff has no title to recover it.


41 Chancery Division (Eng.), 532. - 1889.

Adjourned Summons. - John Cartwright, who died in 1850, by his will, dated in that year, devised land in the county of Suffolk unto and to the use of his daughter Mary Anne Cartwright and her assigns for and during the term of her natural life, and from and immediately after her decease to the use of her children, if any, in manner therein mentioned, and if all such children should have departed this life without issue at the time of the decease of his daughter and on failure of her issue, he devised the land to the defendant Newman, his heirs and assigns, forever. The will contained no provisions touching the liability of the testator's daughter for waste.

Mary Anne Cartwright died a spinster on the 15th of December, 1888, and the plaintiff Avis was her executor. At the time of her death the buildings, gates and fences on the devised land were in a dilapidated condition, owing to the necessary repairs not having been done, and the probable cost of the works necessary to place the property in repair was estimated by a survey or to be 166 12s. 9d. The defendant claimed this sum from the plaintiff, who, on the 28th of March, 1889, took out an originating summons to have it determined whether any and what sum should be allowed and paid to the defendant as compensation in respect of waste suffered by Mary Anne Cartwright during her estate in the premises.

At the hearing, by the direction of the court, the summons was amended by claiming administration of the estate of Mary Anne Cartwright.

Ingpen, for the plaintiff, stated the case. W. C. Druce, for the defendant.

As legal remainderman in fee the defendant is entitled to compensation by way of damages for permissive waste by the deceased tenant for life. No doubt it is well established that equity will not interfere by injunction in cases of permissive waste by tenants for life, but the question whether or not an action for damages for permissive waste can be maintained against a tenant for life upon whom no express duty to repair is imposed by the instrument which creates the estate, rests upon a different footing, and was treated by Lush, J., in Woodhouse v. Walker, 5 Q. B. D. 404, 407, as an open question.

[ Kay, J.: Can you show me a case in which a court of common law has given damages in such an action?]

No such case can be shown, but principle and authority are in favor of the existence of such a right of action. Before the statutes of Marlbridge, 52 Hen. 3, and of Gloucester, 6 Edw. 1, c. 8, though an action for waste lay against a tenant in dower or by the curtesy (whose estates are created by the law), it did not lie against a tenant for life or years. Those statutes were passed to remedy the mischief, and Lord Coke, 2 Inst. 145, treats them as extending to permissive waste, saying: " For he that suffereth a house to decay, which he ought to repaire, doth the waste;" and there are statements in the notes to Greene v. Cole, 2 Wms. Saund. 251, to the same effect.