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which is conveyed and described as pasture, is found to be arable, and e converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value (u). To open the land to search for mines of metal, coal, &c. is waste; for that is a detriment to the inheritance (v) (20): but, if the pits or mines were open before, it

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(20) It is in order to prevent irre- verse title, it has been said, states himmediable injury to the inheritance that self out of court. (Pillsworth v. Hopton, the court of Chancery will grant in- 6 Ves. 51). This dictum may perhaps junctions against waste, and allow affi- admit occasional qualification; (see Nordavits to be read in support of such in- way v. Rowe, 19 Ves. 154. Kinder v. junctions: the defendant might possibly Jones, 17 Ves. 110. Hodgson v. Dean, be able to pay for the mischief done, 2 Sim. & Stu. 224); but, clearly, where if it could ultimately be proved that his the title is disputed as between a deact was tortious; but, if any thing is visee and the heir-at-law, neither an about to be abstracted which cannot be injunction to stay waste, nor a receiver, restored in specie, no may ought to be will be granted on the application of liable to have that taken away which either party. (Jones v. Jones, 3 Meriv. cannot be replaced, merely because he 174. Smith v. Collyer, 8 Ves. 90). It may possibly recover (what others is not, however, to be understood, that may deem) an equivalent in money. a plaintiff, who, though he has no legal (Berkeley v. Brymer, 9 Ves. 356). title, has concluded a contract authoBut, although Lord Nottingham, (in rizing him to call upon the court to Tonson v. Walker, 3 Swanst. 679), clothe his possession with the legal tiintimated that a probability of right tle, cannot sustain a motion in restraint might authorize an application for an of waste; provided the defendant's aninjunction against waste, this was only swer admits such contract. (Norway v. an obiter dictum: it is a general rule Rowe, 19 Ves. 155). that, in order to sustain a motion in re- In general cases, for the purpose of straint of waste, the party making the dissolving an injunction granted ex application must set forth and verify parte, the established practice is to an express and positive title in him- give credit to the answer when it comes self, (or in those whose interests he has in, if it denies all the circumstances to support; see ante, note (15)); an upon which the equity of the plaintiff's hypothetical or disputed title will not application rests, and not to allow affido. (Davis v. Leo, 6 Ves. 787. White- davits to be read in contradiction to legg v. Blacklegg, 1 Brown, 57). A such answer: (Clapham v. White, 8 plaintiff

' who, after failing in ejectment, Ves. 36): but, an exception to this rule comes to equity to restrain waste, stat. is made in cases of alleged irremediing that the defendant claims by ad- able waste; (Potter v. Chapman, Ambl.

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is no waste for the tenant to continue digging them for his own use (w); for it is now become the mere annual profit of

(w) Hob. 295.

99); and in cases analogous to waste; acts, but, at least,) to explicit threats. (Peacock v. Peacock, 16 Ves. 51. Gibbs A court of equity never grants an inv. Cole, 3 P. Wms. 254); yet, even in junction on the notion that it will do such cases, the plaintiff's affidavits no harm to the defendant, if he does must not go to the question of title, but not intend to commit the act in quesbe confined to the question of fact as to tion; an injunction will not issue unless waste done or threatened. (Morphett some positive reasons are shewn to call v. Jones, 19 Ves. 351. Norway v. for it. (Hannay v. M'Entire, 11 Ves. Rowe, 19 Ves. 153. Countess of Strath- 54. Coffin v. Coffin, Jacob's Rep. 72). more v. Bowes, 1 Cox, 264). And as It was formerly held, that an into matters which the plaintiff was ac- junction ought not to go against a perquainted with when he filed his bill, he son who was a mere stranger, and who ought at that time to have stated them consequently might, by summary legal upon affidavit, in order to give the de- process, be turned out of possession of fendant an opportunity of explaining or premises which he was injuring. Such denying them by his answer; (Lawson a person, it was said, was a trespasser ; v. Morgan, 1 Price, 306); though of but, there not being any privity of escourse, acts of waste done subsequently tate, waste, strictly speaking, could not to the filing of the bill would be entitled be alleged against him. (Mortimer v. to a distinct consideration: (Smythe v. Cottrell, 2 Cox, 205). But this techSmythe, 1 Swanst. 253): and where nical rule is overturned; it is now esallegations in an injunction bill have tablished by numerous precedents, that, been neither admitted nor denied in the wherever a defendant is taking the subanswer, there can be no surprise on the stance of a plaintiff's inheritance, or defendant; and it should seem, that committing or threatening irremediable affidavits in support of those allegations mischief, equity ought to grant an inmay be read, though they were not junction; although the acts are such as, filed till after the answer was put in. in correct technical denomination, ought (Morgan v. Goode, 3 Meriv. 11. Jeffe- rather to be termed trespasses than ries v. Smith, 1 Jac. & Walk. 300. waste. (Mitchell v. Dors, 6 Ves. 147. Barrett v. Tickell, Jacob's Rep. 155. Hanson v. Gardiner, 7 Ves. 309. Twort Taggart v. Hewlett, 1 Meriv. 499). v. Twort, 16 Ves. 130. Earl Cowper

Neither vague apprehension of an v. Baker, 17 Ves. 128. Thomas v. intention to commit waste; nor inform- Oakley, 18 Ves. 186). ation given of such intention by a Any collusion, by which the legal remethird

person, who merely states his be- dies against waste may be evaded, will lief, but not the grounds of his belief, give to courts of equity a jurisdiction will sustain an application for an in- over such cases, often beyond, and even junction. The affidavits should go contrary to, the rules of law: (Garth (not neces

cessarily, indeed, to positive v. Cotton, 3 Atk. 755): thus, trustees

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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.

Let us next see, who are liable to be punished for com- Who are liable mitting waste.

for committing And by the feodal law, feuds being origin- waste. ally 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, privabi

tur (w).” 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 (2). [ *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

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(x) Wright, 44.

72. Bro. Abr. tit. Waste, 88. 2 Inst. (y) It was however a doubt whether 301. waste was punishable at the common (2) 2 Inst. 299. law in tenant by the curtesy. Regist.

to preserve contingent remainders will 71). So, though the property of timber
be prohibited from joining with the severed during the estate of a strict
tenant for life in the destruction of that tenant for life vests in the first owner
estate, for the purpose of bringing for- of the inheritance; (see ante, note 15);
ward a remainder, and thereby ena. yet, where a party having the reversion
bling him to gain a property in timber, in fee, is, by settlement, made tenant
so as to defeat contingent remainder- for life, if he, in fraud of that settle-
men; and wherever there is an execu- ment, cuts timber, equity will take care
tory devise over, after an estate for life that the property shall be restored to,
subject to impeachment of waste, equity and carried throughout all the uses of,
will not permit timber to be cut. (Stans- the settlement. (Powlett v. Duchess of
field v. Habergham, 10 Ves. 278. Bolton, 3 Ves. 377. Williams v. Duke
Oxenden v. Lord Compton, 2 Ves. jun. of Bolton, 1 Cox, 73).
VOL. II.

II

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

Punishment for waste.

(a) Co. Litt. 27. 2 Roll. Abr. 826.
828.

(6) Co. Litt. 54.
(c) F. N. B. 58.

(d) 2 Inst. 146.
(e) Ibid. 300.
() 9 Hen. III. c. 4.

(21) See ante, p. 122, and notes (22) See ante, p. 125, and note (10) (15), (16), and (20) to the present at the foot thereof. chapter.

а

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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 (0). VII. A seventh species of forfeiture is that of copyhold vii. Of copy

—by estates, by breach of the customs of the manor. Copyhold breach of the estates are not only liable to the same forfeitures as those customs of the 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

manor.

(8) 2 Inst. 303.
(h) Co. Litt. 54.
(i) 2 Inst. 304.

(k) 2 Ventr. 38. Cro. Eliz. 499.
(1) Feud. l. 2, t. 26, in calc.
(m) 3 Leon. 108. Dyer, 211.

(23) See ante, pp. 92. 95.

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