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(116 Ohio St. 586, 157 N. E. 325.)

was doing precisely what his duties required him to do."

It is further contended that the judgment upon which the suit against the surety is predicated, being against Wollitz as an individual and based upon charges of negligence as an individual, the plaintiff herein has waived all right to collect on the judgment against Wollitz's official bond.

While it did not appear in the pleadings in the former case that Wollitz was a city police officer and operating an automobile of the city in the course of his employment and in the discharge of his duties as such officer, those facts do appear in the agreed statement of facts in this case. The absence of averments in the petition that Wollitz was a city policeman, and at the time in question was in the performance of his duties as such, would not operate as

a waiver of the plaintiff's right to maintain this action upon the official bond. We have not before us the record in the previous case, but, under the agreed statement of facts as shown by the record in this case, it must be assumed that it was found upon the trial that the injury of the plaintiff resulted from the acts of negligence charged, which included, not only driving at a reckless and unreasonable rate of speed with an automobile having defective brakes, but also driving on the wrong side of the highway. The defense that the driver was a police officer would have been of no avail in an action by one injured as a result of such reckless conduct.

Judgment affirmed.

Marshall, Ch. J., and Day, Allen, Kinkade, Robinson, and Jones, JJ.,

concur.

ANNOTATION.

Personal liability of peace officer or his bond for negligence causing damage to property.

[Bonds, §§ 68, 69; Police, § 7.]

This annotation, discussing the personal liability of a peace officer or his bond for negligence causing damage to property, is intended as a companion annotation to those in 18 A.L.R. 197, and 39 A.L.R. 1306 [Bonds, §§ 68, 69; Police, § 7], discussing the personal liability of a peace officer or his bond for negligence causing personal injury or death.

No discussion is attempted of the liability of a sheriff, constable, or other peace officer with respect to property which he has taken into custody by virtue of legal process, or of the liability of such an officer for a negligent, excessive, or wrongful levy.

The precise question under consideration has apparently come before the courts in but few cases.

The reported case (UNITED STATES FIDELITY & G. Co. v. SAMUELS, ante, 36) holds that a surety on the bond

of a police officer with a condition that he shall faithfully discharge his duties is liable for damage to another automobile, resulting from the officer's reckless and negligent driving of a police car while in the performance of his duty.

So, in Goodman v. Condo (1900) 12 Pa. Super. Ct. 456, it was held that a sheriff was personally liable for negligently and wrongfully, beyond the scope of his powers and duties, setting fire to outbuildings, which spread to a dwelling and burned it, during a siege to capture a felon.

However, in Koger v. Keller (1926) 120 Kan. 196, 243 Pac. 294, it was held that a motorcycle policeman was not liable for damage to an auto truck with which he collided while necessarily responding to a fire, and not under duty to obey speed limitations and other traffic regulations.

R. E. La G.

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1. In 1914 the plaintiff became the owner of the reversion in certain premises, consisting of a dwelling house and shop let to the defendants on an oral tenancy from year to year. In the same year the defendants removed a partition wall, staircase, and fireplaces, and converted the premises into one large shop. In 1923 they assigned their tenancy to third persons. In 1925 the plaintiff brought an action against the defendants for waste and for breach of obligations which, as she contended, were implied by law to use the premises in a tenant-like and proper manner, and, having so used them, to yield them up at the end of the term. The defendants pleaded the Statute of Limitations. Held, that the defendants were under an implied obligation to use the premises in a tenant-like manner; that they had committed a breach of this obligation; that the breach was continuing in 1923, and that the plaintiff was entitled to damages for injury to the reversion.

[See annotation on this question beginning on page 46.] Landlord and tenant, § 125 tenant.

duty of

2. A tenant from year to year is under an implied obligation to use the demised premises in a tenant-like manner and to yield them up so used at the end of the tenancy. The obliga

tion continues as long as he continues
tenant. If he alters the character of
the premises, he commits a breach of
the obligation, and is liable in dam-
ages for the injury to the reversion.
[See 16 R. C. L. 746; 6 R. C. L. Supp.
972.]

APPEAL from the judgment of Mr. Commissioner Courthope Wilson, K. C., in an action tried at Manchester Assizes on May 11, 1926, before the learned Commissioner without a jury.

By an oral agreement made on or about July 12, 1895, between one William Henry Marsden, then the husband of the plaintiff, but since deceased, and the defendant company, the company became tenants to the said William Henry Marsden of a shop and dwelling-house, No. 179 Derby Street, Bolton, in the county of Lancaster, at a rent of 261. a year, payable quarterly. The demised premises then consisted of a shop facing the street and a kitchen separated from the shop by a partition wall. The shop and kitchen had each a fireplace. These were on the ground floor. On the first floor were a front bedroom and a back bedroom separated by a partition wall, which was a continuation of

the wall separating the shop from the kitchen. Each bedroom had a fireplace. There was a staircase from the ground floor to the first floor.

On January 14, 1914, W. H. Marsden died, leaving all his property to his widow, the plaintiff. The defendants remained tenants of the demised premises until June 25, 1923.

The plaintiff alleged that it was an implied term of the agreement of tenancy that the defendants should during the tenancy use the premises in a tenantlike and proper manner, and should keep them in repair and deliver them up with all the fixtures therein in the same state and condition as they were in at the com

([1927] 2 K. B. 1.)

mencement of the tenancy, reasonable wear and tear only excepted; but that they had used them in an untenantlike and improper way and had failed to keep them in repair and to deliver them up in the same condition as they were in at the commencement of the tenancy, reasonable wear and tear excepted; and had committed waste in pulling down and removing walls, doors, windows and fixtures, and carrying them away and disposing of them to their own use.

It was proved at the trial that some time in 1914 the defendants had taken down and removed the partition wall between the front and back rooms on both floors, all the fireplaces, the staircase and the windows and doors at the back of the premises, and had turned the ground floor into one large shop and the first floor into a loft approached by a ladder in place of the staircase. In the words of the learned Commissioner's judgment: "The evidence shows that the premises have been gutted by the defendants and there is nothing left except the four walls of the building. All the internal fixtures and fittings and some of the walls and grates, and so on, have all been removed."

On June 25, 1923, the defendants sold their undertaking and assets to George G. Mason & Co., Ld., and assigned their tenancy of the premises to that company, who thereupon entered into and mained in possession of the premises and carried on business there until May, 1925.

re

The defendants contended that if they had committed any waste, which they denied, it was committed more than six years before September 25, 1925, the date of the writ, and was barred by the Limitation Act, 1623; and that it was of an ameliorative character and improved the value of the premises, regard being had to their nature and user or probable user and the purpose for which they were let.

The learned Commissioner held that the acts of the defendants,

whether acts of waste or breaches of an implied obligation with regard to the user of the demised premises, were all committed in the year 1914, and that any relief in respect of them was barred by the Limitation Act, 1623. He further held that the only implied obligation upon a tenant from year to year under a parol agreement was to keep the demised premises wind and water tight and that there was no evidence of any breach of this obligation. He therefore gave judgment for the defendants.

The plaintiff appealed.

Cyril Atkinson, K. C. and T. T. Russell, for the appellant: The learned Commissioner has unduly limited the implied obligation upon a tenant from year to year in relation to the demised premises. In ordinary circumstances an agreement is implied on the part of such a tenant to use the premises in a tenantlike manner (Ferguson v.

2 Esp. 590, 170 Eng. Reprint, 465; Horsefall v. Mather Holt, N. P. 7, 171 Eng. Reprint, 141, 9 Eng. Rul. Cas. 463; Foà Land. & T. 6th ed. (1924), p. 325); and on the expiration or sooner determination of his tenancy deliver up to his landlord the peaceable and quiet possession of the premises and every part thereof, together with all erections, buildings, improvements, and fixtures which he is not entitled to remove: Woodfall, Land. & T. 21st ed. (1924), p. 909. This is a continuing liability: Doe ex dem. Vickery v. Jackson, 2 Starkie, 293, 171 Eng. Reprint, 651.

[Scrutton, L. J. referred to Henderson v. Squire, L.R. 4 Q. B. 170.]

It follows that in 1923, when the defendants assigned their tenancy, they were under a liability for breach of the agreement to use the premises properly; for it cannot be denied that their acts in relation to them were a breach of the agreement. In the circumstances the parties have agreed that the cost of the repairs, 215l. 6s. 7d., is the fair measure of damages if the defendants are liable.

Archer, K. C. (Laski with him) for the respondents: There was no waste here. The premises as shop premises, which was their main use, are greatly increased in value by the defendants' alterations.

[Bankes, L. J.: The Court is unani

mously of opinion that voluntary waste has been committed.]

A tenant from year to year is not liable for permissive waste: Martin v. Gilham, 7 Ad. & El. 540, 112 Eng. Reprint, 574. He is no doubt liable for voluntary waste, but then he is only liable in tort. A covenant not to commit waste will not be implied. Foà Land. & T. 6th ed. p. 326, citing Defries v. Milne [1913] 1 Ch. 98, Ann. Cas. 1914C, 257—C. A., where a dictum of Lord Esher, M. R., to the contrary in Whitham V. Kershaw (1885) L. R. 16 Q. B. Div. 613, 616-C. A., was disapproved. The tortious acts were all committed in 1914, more than six years before the writ was issued. The implied agreement to yield up possession is one of the class of covenants for title. It obliges the tenant to give back the whole interest in the premises, but does not relate to their physical condition.

Counsel for the appellant were not called upon in reply.

Bankes, L.J. [after stating the facts]:

I take the evidence as establishing that the defendants have completely altered the character of the demised premises. This was done. more than six years before the action was brought and while the defendants' tenancy was continuing.

When the tests laid down in West Ham Central Charity Bd. v. East London Waterworks Co. [1900] 1 Ch. 624, and Hyman v. Rose [1912] A. C. 623-H. L., are applied it is clear that this was voluntary waste. I would cite the words of Lord Loreburn in the House of Lords suggesting as a matter to be considered the question whether what has been done is inconsistent with the terms of the letting. He says [1912] A. C. 632: "It is a question of fact whether such an act changes the nature of the thing demised, and regard must be had to the user of the demised premises which is permissible under the lease." In the Court below two points were taken: first, that the plaintiff had no vested interest in the reversion in the premises at the time when the acts of waste were committed. That point is not insisted on here. Secondly,

that the waste, assuming it to have been wrongful, was committed more than six years before action brought. To this contention Mr. Atkinson answers that it is not conclusive, if sound; because apart from any tort the law recognizes a contractual obligation upon the defendants as tenants towards their landlord in reference to the user to which the premises were to be put and the extent to which they were to be maintained and repaired. It is not necessary to define the extent of the obligation. It is enough to say that the facts

Limitation of

of this case lead to actions-waste by tenant. the clear conclusion that there was a breach of that obligation. In Horsefall v. Mather, Holt, N. P. 7, 171 Eng. Reprint, 141, 9 Eng. Rul. Cas. 463, in an action of assumpsit against a tenant at will of a dwelling-house, Gibbs, Ch. J., held that the defendant was not bound to repair generally, but said: "He is bound to use the premises in a husbandlike manner; the law implies this duty and no more." In Ferguson v. 2 Esp. 590,

170 Eng. Reprint, 465, Lord Kenyon said: "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;" indicating thereby that if a tenant commits. waste he must do such repairs to the premises as will enable them to exclude wind and water. It may be that he must restore them to the state they would be in if he had committed no waste, or deliver up premises as they were demised to him, fair wear and tear excepted. But at any rate he must deliver up premises of the same character as those which were' Landlord and demised to him; for tenant-duty of example, a tenant who takes a dwelling-house cannot at the end of the tenancy yield up a storehouse, or a stable, or cowhouse, however elaborately structed. But it is not necessary

tenant.

con

([1927] 2 K. B. 1.)

further to define the obligation, because it cannot be contended that a tenant from year to year, who completely alters the premises, does not commit a breach of his implied obligation in respect of the premises. Mr. Archer properly admitted that if there was a continuing breach the Statute of Limitations would not assist the defendants. It follows that on June 25, 1923, the plaintiff had a cause of action for damages. The parties have agreed that the cost of repairs is the measure of the damages. The appeal will therefore be allowed and judgment will be entered for the plaintiff for 215l. 6s. 7d.

Scrutton, L.J.:

I am of the same opinion. The defendants became tenants of premises, which included a dwellinghouse. They have made alterations in the premises to such an extent that there is no longer any dwelling-house. That is voluntary waste. The defendants say that waste committed is committed once for all, and that as the writ was issued more than six years after it was committed the plaintiff cannot sue for it. That argument overlooks their implied obligation as tenants to deliver up the demised premises. In my opinion there is an implied contract by a tenant to use the premises in a tenantlike manner and to deliver them up at the end of the term unless prevented from so doing by the act of God. To use premises in a tenantlike manner means at any rate that a tenant will not make such structural alterations in the premises as will change their character. If a dwelling-house is let and something which is not a dwelling-house is delivered up, the contract to deliver up in a tenantlike condition is broken. Henderson v. Squire, L. R. 4 Q. B. 170, decides that the contract is not merely in the nature of a covenant for title. It imposes an obligation to deliver up possession of the entire premises at the end of the term, and has relation to their physical condition. Mr. Archer contended that as it was

merely an implied and not an express contract, and there was a subsequent assignment and a recognition of the assignee as tenant by the landlord, the implied obligation ceased; but that point was not taken in the Court below, and we cannot consider it here. The case was argued on the footing that all the acts of waste were done before the assignment took place. The parties agreed that 2151. 6s. 7d., which is all that is necessary in order to put the premises in proper order, should be taken as the amount of damages, assuming the defendants were liable. In the result there must be judgment for the plaintiff for the agreed amount.

Atkin, L.J.:

I agree. I do not think this is a case in which the plaintiff's only remedy is by way of an action for waste. It may be that voluntary waste is the subject-matter of an action of tort. See Defries v. Milne [1913] 1 Ch. 98, Ann. Cas. 1914C, 257-C. A., but no doubt the tenant. would also be liable upon an obligation express or implied in the contract of tenancy. The contract of tenancy in the present case was oral, and contained no express obligation on the part of the tenants relating to their user of the premises, and so the question is whether there is an implied term in an oral agreement for a yearly tenancy that the tenant will abstain from such acts as the defendants have committed in this case. The precise obligation of such a tenant in relation to the premises has been the subject of discussion for over a century, and I am not sure that the obligation can be satisfactorily defined, for it must depend upon the relation between the parties, the character and state of the demised premises, and other varying circumstances. But the cases cited from Espinasse and Holt's Nisi Prius Reports, at least 110 years old, show that there is an obligation upon the tenant to use the premises in a tenantlike or, which is the same thing, a husbandlike manner. It follows that he is

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