Buchanan, J.
delivered the opinion of the Court, dissenting from the opinion of the court below in the second bill of exceptions.
Johnson, J.
The action in this case was brought in Baltimore county court, to recover damages for a dwelling-house on Charles sti eet, in the city of Baltimore, which was materially injured during the time it was let by the plaintiff to the defendant.
The facts as they present themselves on the bill of exceptions are: (He here stated the case.)
The declaration contains two counts, the one an action on the case in the nature of waste, the other on an implied undertaking to restore the property in good tenantable repair, alleging as the breach the destruction of the property by the defendant.
Actions of the present nature have been seldom if ever brought in this state; indeed a transaction similar to the present never before, and it is greatly to be deplored ever did, and it is hoped never will arise again, in which private property has been by force destroyed against the exertions of the civil authority, collected on the spur of the occasion for its preservation. But as the property has been destroyed, as between the landlord and tenant, the question is who must bear the burden of the loss?
In forming an opinion on the present suhject it is not necessary to trace the law of waste, as it existed at common law, or as changed by the statutes of Marlbrklge and of Gloucester; it is sufficient to observe, that those statutes make a lessee for years liable to the action of waste, in which when determined against the tenant, he forfeited the place wasted^ and was compelled to pay treble damages.
[391]*391Waste, vastum, is a spoil or destruction in houses, &c. io the disherison of him that hath the remainder cr reversion in fee simple or fee tail. The removing wainscot floors,, or other things once fixed to the freehold, is waste. Co. Litt. 53. 4 Rep. 64. 2 Blk. 281.
Waste is voluntary, a crime of commission, as pulling down a house; or permissive, which is matter of omission only, as by suffering it to fall for necessary repairs.
If the property in question had been destroyed, as set forth in the plaintiff’s claim, by the defendant himself, or by others at his instance, it is clear he made himself liable to an action of waste; wherein not only would have been recovered the house let, (supposing the lease not expired,) but treble damages. The injury done to the property would have assumed the denomination of wilful waste. But as the destruction was not, in the common acceptation of the term, made by himself, or by others at his instance, is he liable?
It is not novel in the law to make persons, morally innocent, responsible for the acts of those over whom they had no control. In various instances, where the property of the owner is placed in the care of another, such prison is liable to the owner for its loss, or for injuries done to it, which the possessor could not restrain.
The common carrier, the inn-keeper, the sheriff, and others not thought material to enumerate, are responsible for losses which they could not prevent. They stand liable to the owner for all losses, whether sustained by highway robbers, or others, no matter how incontrollable and irresistible may be the foice with which they are assailed. The act of God, and of the public enemies, will only free them from the demand, when the loss proceeded from such act or such enemies, and then only when they are free from every exception.
If the law was otherwise, by conniving with the robbers and thieves, no property could be safe in their custody; it would scarcely ever be in the owner’s power to ascertain whether the loss was the result of concert, or of force — ■ whether the alleged attack might or might not have been resisted. To free them from all temptation to swerve from their duty, and to secure an effectual remedy to those who Intrust them with their property, all excuses of the kind spoken of are precluded; for it is better that, occasionally, the loss should fall on an innocent person, than to relax, and in effect, to defeat all liability.
At the common law all such as were liable to the action ef waste, no matter what might be their situation, no matter vvliat might be the power to repel the waste from being done, if it was committed, they were bound to respond. The infant age of the tenant would not free him from the responsibility. Under the statutes of Marlbridge and Gloucester, the same liabilities are cast on the tenant for years.
[392]*392The defendant, in the case before the court, comes within the purview of those statutes, and must therefore be responsible, unless the overwhelming force, by which the injury was done, exonerates him.
As the property of the landlord is placed in the tenant’s possession, who has the legal power to prevent all waste from being done to it, and to recover for it, when committed, as in most instances it would be impossible for the landlord to ascertain in time, or come at the wrongdoer, it appears to have been the policy of the law, to cast the liability on the part of the tenant for all waste committed on the property, except when caused by the act of God, or of the King’s enemies. But let it, for argument’s sake, be conceded, that if the defendant had continued to use the-bouse for the purpose it was let to him, and that whilst so used, the lawless multitude attacked and destroyed it, that he would not have been liable, a point not necessary to be determined, in this case; yet as he did of his own authority, without the consent of the plaintiff, divert the house to a totally different and much more dangerous purpose, well aware of the risk which the property would thereby have to encounter, on principles of law and justice, as between him and the plaintiff, he becomes responsible for the consequences.
If the common carrier, who puts to sea during a storm, or on its approaching, cannot exonerate himself from the loss the storm may produce, which he attempted to buffet, so it appears equally just that a tenant, who applies the property to a different purpose than it was let to him, aware of the great increase of risk, in consequence of such diversion, must bear, and not cast the responsibility on the landlord. My opinion, therefore, is, that on piinciples of law and justice, the merits of the case are with the plaintiff.
The action of waste appears to have given way to, or been superseded by, ¡he action on the case in nature of waste, which is the first count in the present declaration. Two grounds have been relied on against the first count:
1st. That the evidence does not support the count; and
2d. That if the defendant was liable, yet as the waste was permissive, and not voluntary, an action on the case, in the nature of waste, will not lie.
The declaration, it is true, states the destruction of the property to have been made by the defendant, and by those taken into the house by him.
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Buchanan, J.
delivered the opinion of the Court, dissenting from the opinion of the court below in the second bill of exceptions.
Johnson, J.
The action in this case was brought in Baltimore county court, to recover damages for a dwelling-house on Charles sti eet, in the city of Baltimore, which was materially injured during the time it was let by the plaintiff to the defendant.
The facts as they present themselves on the bill of exceptions are: (He here stated the case.)
The declaration contains two counts, the one an action on the case in the nature of waste, the other on an implied undertaking to restore the property in good tenantable repair, alleging as the breach the destruction of the property by the defendant.
Actions of the present nature have been seldom if ever brought in this state; indeed a transaction similar to the present never before, and it is greatly to be deplored ever did, and it is hoped never will arise again, in which private property has been by force destroyed against the exertions of the civil authority, collected on the spur of the occasion for its preservation. But as the property has been destroyed, as between the landlord and tenant, the question is who must bear the burden of the loss?
In forming an opinion on the present suhject it is not necessary to trace the law of waste, as it existed at common law, or as changed by the statutes of Marlbrklge and of Gloucester; it is sufficient to observe, that those statutes make a lessee for years liable to the action of waste, in which when determined against the tenant, he forfeited the place wasted^ and was compelled to pay treble damages.
[391]*391Waste, vastum, is a spoil or destruction in houses, &c. io the disherison of him that hath the remainder cr reversion in fee simple or fee tail. The removing wainscot floors,, or other things once fixed to the freehold, is waste. Co. Litt. 53. 4 Rep. 64. 2 Blk. 281.
Waste is voluntary, a crime of commission, as pulling down a house; or permissive, which is matter of omission only, as by suffering it to fall for necessary repairs.
If the property in question had been destroyed, as set forth in the plaintiff’s claim, by the defendant himself, or by others at his instance, it is clear he made himself liable to an action of waste; wherein not only would have been recovered the house let, (supposing the lease not expired,) but treble damages. The injury done to the property would have assumed the denomination of wilful waste. But as the destruction was not, in the common acceptation of the term, made by himself, or by others at his instance, is he liable?
It is not novel in the law to make persons, morally innocent, responsible for the acts of those over whom they had no control. In various instances, where the property of the owner is placed in the care of another, such prison is liable to the owner for its loss, or for injuries done to it, which the possessor could not restrain.
The common carrier, the inn-keeper, the sheriff, and others not thought material to enumerate, are responsible for losses which they could not prevent. They stand liable to the owner for all losses, whether sustained by highway robbers, or others, no matter how incontrollable and irresistible may be the foice with which they are assailed. The act of God, and of the public enemies, will only free them from the demand, when the loss proceeded from such act or such enemies, and then only when they are free from every exception.
If the law was otherwise, by conniving with the robbers and thieves, no property could be safe in their custody; it would scarcely ever be in the owner’s power to ascertain whether the loss was the result of concert, or of force — ■ whether the alleged attack might or might not have been resisted. To free them from all temptation to swerve from their duty, and to secure an effectual remedy to those who Intrust them with their property, all excuses of the kind spoken of are precluded; for it is better that, occasionally, the loss should fall on an innocent person, than to relax, and in effect, to defeat all liability.
At the common law all such as were liable to the action ef waste, no matter what might be their situation, no matter vvliat might be the power to repel the waste from being done, if it was committed, they were bound to respond. The infant age of the tenant would not free him from the responsibility. Under the statutes of Marlbridge and Gloucester, the same liabilities are cast on the tenant for years.
[392]*392The defendant, in the case before the court, comes within the purview of those statutes, and must therefore be responsible, unless the overwhelming force, by which the injury was done, exonerates him.
As the property of the landlord is placed in the tenant’s possession, who has the legal power to prevent all waste from being done to it, and to recover for it, when committed, as in most instances it would be impossible for the landlord to ascertain in time, or come at the wrongdoer, it appears to have been the policy of the law, to cast the liability on the part of the tenant for all waste committed on the property, except when caused by the act of God, or of the King’s enemies. But let it, for argument’s sake, be conceded, that if the defendant had continued to use the-bouse for the purpose it was let to him, and that whilst so used, the lawless multitude attacked and destroyed it, that he would not have been liable, a point not necessary to be determined, in this case; yet as he did of his own authority, without the consent of the plaintiff, divert the house to a totally different and much more dangerous purpose, well aware of the risk which the property would thereby have to encounter, on principles of law and justice, as between him and the plaintiff, he becomes responsible for the consequences.
If the common carrier, who puts to sea during a storm, or on its approaching, cannot exonerate himself from the loss the storm may produce, which he attempted to buffet, so it appears equally just that a tenant, who applies the property to a different purpose than it was let to him, aware of the great increase of risk, in consequence of such diversion, must bear, and not cast the responsibility on the landlord. My opinion, therefore, is, that on piinciples of law and justice, the merits of the case are with the plaintiff.
The action of waste appears to have given way to, or been superseded by, ¡he action on the case in nature of waste, which is the first count in the present declaration. Two grounds have been relied on against the first count:
1st. That the evidence does not support the count; and
2d. That if the defendant was liable, yet as the waste was permissive, and not voluntary, an action on the case, in the nature of waste, will not lie.
The declaration, it is true, states the destruction of the property to have been made by the defendant, and by those taken into the house by him.
In common parlance a person cannot be said to have' done an act which was done by another; nor can he be charged with causing a destruction to take place when eve.-ry exertion in his power was used to prevent it. But in the legal acceptation of the charge, he who does certain acts, by others, is said to have done them himself. Qui faeit per alium facit per se. If the tenant is generally responsible for all waste committed by strangers, no matter how overwhelming the power, how much more strong is the case [393]*393before the court, when the property in question was applied to a different object than that for which it was let} the defendant having reason to believe that in consequence of ouch application “the house would be attacked by a lawless armed and unknown multitude” — As, between the plaintiff and defendant, the acts of the multitude produced by the acts of the defendant, and those in concert with him, must be imputable to the defendant himself, and of course the charge, as contained in the count, is correct.
The second objection to the count by the [(receding rea» soningis also removed; for, if the defendant is to be liable as of himself, for the waste committed by the lawless multitude, then it follows that the destruction to the property in question, comes strictly under the denomination of vo* luntary waste, for which, no doubt is entertained blit that the present action is applicable It would then appear that thete is no need to form an opinion, whether the action on the case, in the nature of waste, will, or will not lie for permissive waste; but the inclination of my mind is, that that action will be sustained as well for the one as for the other description of waste. It is a form of action, long since introduced, to recover for such injuries; it is an equitable action, and ought not to be discountenanced; it confines the recovery to the real loss sustained; and I see no reason to say that it will not lie in all cases, and against all persons, who are at common law, or under the statutes of Marlbridge and Gloucester, made liable to the action of toaste.
As the case is covered by the first count in the declaration, I deem it totally unnecessary to add whether the evidence sustains the second.
The opinion of the court below, as pronounced on the second bill of exceptions is erroneous, and the judgment obtained in consequence thereof is reversed.
Martin, J. dissented.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.