Sivut kuvina

the land. These three are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value of the inheritance, is considered by the law as waste.


for committing


Let us next see, who are liable to be punished for com- Who are liable mitting waste. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vassals or feudatories; "si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, privabitur (x).” But, in our antient common law, the rule was by no means so large; for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant


by the *curtesy (y); and not in tenant for life or years (z). [ *283 ] And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the

(x) Wright, 44.

(y) It was however a doubt whether waste was punishable at the common law in tenant by the curtesy. Regist.

72. Bro. Abr. tit. Waste, 88. 2 Inst.

(*) 2 Inst. 299.

to preserve contingent remainders will be prohibited from joining with the tenant for life in the destruction of that estate, for the purpose of bringing forward a remainder, and thereby ena. bling him to gain a property in timber, so as to defeat contingent remaindermen; and wherever there is an executory devise over, after an estate for life subject to impeachment of waste, equity will not permit timber to be cut. (Stansfield v. Habergham, 10 Ves. 278. Oxenden v. Lord Compton, 2 Ves. jun.

[blocks in formation]

71). So, though the property of timber
severed during the estate of a strict
tenant for life vests in the first owner
of the inheritance; (see ante, note 15);
yet, where a party having the reversion
in fee, is, by settlement, made tenant
for life, if he, in fraud of that settle-
ment, cuts timber, equity will take care
that the property shall be restored to,
and carried throughout all the uses of,
the settlement. (Powlett v. Duchess of
Bolton, 3 Ves. 377. Williams v. Duke
of Bolton, 1 Cox, 73).

Punishment for waste.

committing of waste by his lessee; and if he did not, it was his own default. But in favour of the owners of the inheritance, the statutes of Marlbridge 52 Hen. III. c. 23, and of Gloucester 6 Edw. I. c. 5, provided that the writ of waste shall not only lie against tenants by the law of England, (or curtesy), and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants merely for life (21) or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him for waste committed. But tenant in tail after possibility of issue extinct is not impeachable for waste; because his estate was at its creation an estate of inheritance, and so not within the statutes (a) (22). Neither does an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; because against them the debtor may set off the damages in account (b): but it seems reasonable that it should lie for the reversioner, expectant on the determination of the debtor's own estate, or of these estates derived from the debtor (c).

The punishment for waste committed was, by common law and the statute of Marlbridge, only single damages (d); except in the case of a guardian, who also forfeited his wardship (e) by the provisions of the great charter (f): but the statute of Gloucester directs, that the other four species of tenants shall lose and forfeit the place wherein the waste is

[blocks in formation]

committed, and also treble damages, to him that hath the inheritance. The expression of the statute is," he shall "forfeit the thing which he hath wasted;" and it hath been determined that under these words the place is also included (g). And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a house, the whole house shall be for- [ 284 ] feited (h); because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood, (or perhaps in one room of a house, if that can be conveniently separated from the rest), that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner (i).


customs of the


VII. A seventh species of forfeiture is that of copyhold VII. Of copyestates, by breach of the customs of the manor. Copyhold breach of the estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste: whereupon the lord may seize them without any presentment by the homage (k); but also to peculiar forfeitures annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vassals (23), the marks of feodal dominion continue much the strongest upon this mode of property. Most of the offences which occasioned a resumption of the fief by the feodal law, and were denominated feloniæ, per quas vasallus amitteret feudum (1), still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service (m); si

[blocks in formation]

on copyhold tenants.

Offences which dominum deservire noluerit (n): by disclaiming to hold of entail forfeitures the lord, or swearing himself not his copyholder (0); si dominum ejuravit, i. e. negavit se a domino feudum habere(p): by neglect to be admitted tenant within a year and a day (q); si per annum et diem cessaverit in petenda investitura (r): by contumacy in not appearing in court after three proclamations (s); si a domino ter citatus non comparuerit (t): or by refusing, when sworn of the homage, to present the truth [*285] according to his oath (u): *si pares veritatem noverint, et dicant se nescire, cum sciant (w). In these and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord's court baron (x): per laudamentum parium suorum (y); or, as it is more fully expressed in another place (z), nemo miles adimatur de possessione sui beneficii, nisi convicta culpa, quæ sit laudanda (a) per judicium parium suorum.

VIII. By bankruptcy.

VIII. The eighth and last method, whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt: which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined: a trader, who secretes himself, or does certain other acts, tending to defraud his creditors.

Who shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter (24); when we

[blocks in formation]

shall endeavour more fully to explain its nature, as it most immediately relates to personal goods and chattels. I shall only here observe the manner in which the property of lands and tenements is transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.


By statute 13 Eliz. c. 7, the commissioners for that pur- 13 Eliz. c. 7. pose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which shall descend or come to him at any time afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as *he may lawfully part with), or purchased with [286] other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and inrolled, or divide them proportionably among the creditors. This statute expressly included not only free, but customary and copyhold, lands; but did not extend to estates-tail, farther than for the bankrupt's life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. 1, 21 Jac. I. c. 19. c. 19, enacts, that the commissioners shall be empowered to sell or convey, by deed indented and inrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remainder-men, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means; and that all equities of redemption upon mortgaged estates, shall be at the disposal of the commissioners; for they shall have power to redeem the same as the bankrupt himself might have done, and after redemption to sell them.

« EdellinenJatka »