The tenant in possession has been regarded as liable for waste which is committed by a stranger, on the ground, it is said, that he, the tenant, is bound to prevent the waste, and that furthermore he can recover damages against the stranger in an action of trespass.43 And so a tenant has been held liable for waste done by his tenant, though not by his assignee.44 Whether, in the case of waste by a stranger, the tenant is liable as for voluntary or as for permissive waste does not clearly appear from the authorities.45

41. Moore v. Townshend, 33 N. J. Law, 284.

42. Castlemain v. Craven, 22 Vin. Abr. 523; Powys v. Blagrave, 4 De Gex, M. & G. 448; In re Hotchkys, 32 Ch. Div. 418; Cannon v. Barry, 59 Miss. 289. See Morris v. Cairncross, 14 Ont. Law Rep. 544: and 20 Solicitors Journal. 522, 543. Contra, Prescott v.

Grimes, 143 Ky. 191, 136, S. W. 206; Gleason v. Gleason, 43 Ind. App. 426, 87 N. E. 689.

43. 2 Co. Inst. 303; co. Litt. 54a;' Vin Abr., Waste (K); At-tersol v. Stevens, 1 Taunt. 183. 198; Parrott v. Barney, 2 Abb. 197, Fed. Cas. No. 10,773; Consolidated Coal Co. v. Savitz, 57 111. App. 659; Cargill v. Sewell, 19 Me. 288; Fay v. Brewer, 3 Pick. (Mass.) 203; Mason v. Stiles, 21 Mo. 374; Wood v. Griffin, 46 N. H. 230, 88 Am.

Dec. 199; Moore v. Townshend, 33 N. J. Law 284; Cook v. Champlain Transp. Co., 1 Denio (N. Y.) 91. Austin v. Hudson River R. Co., 25 N. Y. 334; Williams v. Lanier, 44 N. C. 30.

A case often referred to, in which this rule was applied, is that of White v. Wagner, 4 Har. & J. (Md.) 373, 7 Am. Dec. 674. where a tenant was held liable for the destruction of the building by a mob. In Powell v. Dayton, S. & G. R. Co., 16 Ore. 33, 16 Pac. 863, 8 Am. St. Rep. 251, a railroad company was, on the strength of this rule, held liable for waste committed by its receiver.

44. Y. B. 49 Edw. 3, 26 b; Hicks v. Downing, 1 Ld. Raym. 99; Vin. Abr. Waste (K) 6.

Sec. 287]

Rights of Enjoyment.

As a reason for imposing such liability for the acts of strangers, it is said by Lor'd Coke that otherwise a landlord would be without redress.46 But even if this were a valid reason in his day, which appears questionable,47 at the present day the landlord no doubt can, in spite of the outstanding leasehold estate, bring suit against a stranger injuring the premises to the damage of the reversion.48 It is furthermore stated that the case is analogous to that of a common carrier, who is liable for reasons of public policy for injuries by third persons to goods in his custody.49 But the application of such an analogy would carry the liability of the tenant further than has ever been done, since, on the same theory, a tenant would be liable for any

45. Lord Coke appears to regard this as permissive waste, he saying (2 Co. Inst. 303) that the tenant is liable for the act of a stranger "for he in the reversion cannot have any remedy but against the wrongdoer, and recover all in damages against him. and by this means the loss shall light upon the wrongdoer; for voluntary waste and permissive waste is all one to him that hath the inheritance." And the late Professor Minor advanced a like opinion. 2 .Minor's Inst. 543. ,See also Coale v. Hannibal & St. J. R. Co., 60 Mo. 227. But that it is voluntary waste, see White v. Wagner, 4 Har. & J. (Md.) 373, 7 Am. Dec. 674; Regan v. Lutly, 16 Daly, 413, 11 N. Y. Supp. 709; Consolidated Coal Co. v. Savitz, 57 111. App. 659. In Rogers v. Atlantic Gull & Pacific Co., 213 N. Y. 246, 107

X. E. 667, it appears to be assum-e1 that if the damage is the result merely of the negligence of a stranger, it is permissive waste, for which a tenant for life is not liable, it being intimated that the rule might be different in case the damage is intentionally caused by a stranger, this being voluntary waste.

46. 2 Co. Inst 146, 303.

47. See the remarks of Chambre, J., in Attersol v. Stevens, I Taunt. 182, referring to the suggestion made by two judges in Jefferson v. Jefferson. 3 Lev. 130, that Coke means merely that there would be no redress by action of waste.

48. See 2 Tiffany, Landl'd. & Ten. ch. 33.

49. Attersol v. Stevens, 1 Taunt. 183 198; Cook v. Cham-plain Transp. Co., l Denio. (N.

Real Property.

[Sec. 287 injuries to the premises if not caused by vis major, although caused neither by his negligence nor by third persons, thus making him, as is a carrier, an insurer of the safety of the property50 In the somewhat analogous case of an ordinary bailment of chattels, for the mutual benefit of the bailor and bailee, as in the ordinary contract of hiring, no such liability for the acts of third persons is imposed on the custodian of the property;, he being bound to use merely ordinary diligence to protect it.51

This rule making the tenant liable for injuries by third persons, regardless of whether he could, by the exercise of reasonable care, have prevented such injuries, may have had its origin in a liberal construction, in favor of the feudal lord, of the provisions of the statute of Marlebridge imposing liability on the tenant if he make waste of house or woods, but however this may be, it is evidently not in accord with the principle, ordinarily applied at the present day, that one is liable for injuries to specific property, not directly Caused by him, only when they are the result of his failure to exercise reasonable care. That this is so, plainly appears from the conflict which, in case a building on the premises is burnt by a third person without any negligence or collusion on the part of the tenant, necessarily arises between this rule and the modern rule exempting the tenant from liability for fire not caused by his negligence.52 The question of the tenant's liability for such incendiary fire has, singularly enough, but seldom arisen, and has never received any adequate judicial discussion.53 There seems no

Y.) 91; Parrctt v. Barney, 2 Abb. 197, Fed. Cas. No. 10,773. See argument of Mr. Pinkney in White v. Wagner, 4 Har. J. (Md.) 373, 7 Am. Dec. 674.

50. The modern cases do not hold a carrier liable for injuries to goods by a mob if the carrier has taken reasonable measures to protect the goods. See 5 Am. & Eng. Enc. Law (2d Ed.) 236.

51. Story, Bailments, Sec.Sec. 403, 406; Lawson, Bailments, Sec. 40.

52. post Sec. 288, note 59.

53. In Cook v. Champlain Transp. Co., 1 Denio ;N. Y.) 91,

Sec. 288] against waste.66 Owing, however, to the frequent commission of waste by lessees, the Statute of Marlbridge67 was passed, by which it was provided that "fermors, during their terms, shall not make waste, sale, nor exile of houses, woods, and men, nor of anything belonging to the tenements that they have to ferm," and that, if they do so, they shall yield full damage.68 Subsequently, the Statute of Gloucester69 gave a writ of waste "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 provided that the person guilty of waste should "lose the thing that he has wasted" and pay "thrice so much as the waste shall be taxed at."

Rights of Enjoyment.

Along reason For casting the liability in such case upon the tenant than when the fire results from a hidden defect in a flue or other appliance.

A joint lessee is liable, it seems, According to the weight of authority, for waste done by his colessee.54