of forfeiture, and thereby of transferring the property of real estates. I shall therefore here only beg leave to remind the student, that waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demolishing not the temporary profits only, but the very substance of the thing; thereby rendering it wild and desolate; which the common law expresses very significantly by the word vastum: and that this vastum, or waste, is either voluntary, or permissive; the one by an actual and designed demolition of the lands, woods, and houses; the other arising from mere negligence, and want of sufficient care in reparations, fences, and the like. So that my only business is at present to shew, to whom this waste is an injury; and of course who is entitled to any, and what, remedy by action. I. The persons who may be injured by waste, are such as have some interest in the estate wasted; for if a man be the absolute tenant in fee

one.

simple (3), without any incumbrance or charge on the premises, [*224] he may commit whatever waste his own indiscretion may prompt him to, without being impeachable, or accountable for it to any And, though his heir is sure to be the sufferer, yet nemo est haeres viventis; no man is certain of succeeding him, as well on account of the uncertainty which shall die first, as also because he has it in his power to constitute what heir he pleases, according to the civil law notion of an haeres natus and an haeres factus: or, in the more accurate phraseology of our English law, he may aliene or devise his estate to whomever he thinks proper, and by such alienation or devise may disinherit his heir at law. Into whose hands soever therefore the estate wasted comes, after a tenant in fee-simple, though the waste is undoubtedly damnum, it is damnum absque injuria.

One species of interest, which is injured by waste, is that of a person who has a right of common in the place wasted; especially if it be common of estovers, or a right of cutting and carrying away wood for housebote, plough-bote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, amounting to no less than a disseisin of his common of estovers, if he chooses so to consider it; for which he has his remedy to recover possession and damages by assise,50 if entitled to a freehold in such common; but if he has only a chattel interest, then he can only recover damages by an action on the case for this waste and destruction of the woods, out of which his estovers were to issue (b).

But the most usual and important interest, that is hurt by this commission of waste, is that of him who hath the remainder or reversion of the inheritance, after a particular estate for life or years in being. Here, if the particular tenant (be it the tenant in dower or by courtesy, who was an

swerable for waste at the common law (c), or the lessee for life or [*225] years, *who was first made liable by the statutes of Marlbridge (d) and of Glocester) (e) (4), if the particular tenant, I say, commits or suffers any waste, it is a manifest injury to him that has the inheritance, as it tends to mangle and dismember it of its most desirable incidents and ornaments, among which timber and houses may justly be reckoned the

(b) F. N. B. 59. 9 Rep. 112. (c) 2 Inst. 299.

(3) A tenant in fee-tail has the same uncontrolled and unlimited power in committing waste, as a tenant in fee-simple, unless expressly restrained from committing waste by

(d) 52 Hen. III. c. 23.

(e) 6 Edw. I. c. 5.

the terms of the deed or will under which he claims.

(4) See 2 R. S. 234, § 1.

(50) See Hov. n. (50) at the end of the Vol. B. III.

principal. To him therefore in remainder and reversion, to whom the inheritance appertains in expectancy (f), the law hath given an adequate remedy. For he, who hath the remainder for life only, is not entitled to sue for waste; since his interest may never perhaps come into possession, and then he hath suffered no injury (5). Yet a parson, vicar, archdeacon, prebendary, and the like, who are seised in right of their churches of any remainder or reversion, may have an action of waste; for they, in many cases, have for the benefit of the church and of the successor a fee-simple qualified and yet, as they are not seised in their own right, the writ of waste shall not say, ad exhaeredationem ipsius, as for other tenants in feesimple; but ad exhaeredationem ecclesiae, in whose right the fee-simple is holden (g).

II. The redress for this injury of waste is of two kinds; preventive, and corrective the former of which is by writ of estrepement, the latter by that of waste.51

1. Estrepement is an old French word, signifying the same as waste or extirpation and the writ of estrepement lay at the common law, after judgment obtained in any action real (h), and before possession was delivered by the sheriff; to stop any waste which the vanquished party might be tempted to commit in lands, which were determined to be no longer his. But as in some cases the demandant may be justly apprehensive, that the tenant may make waste or estrepement pending the suit, well knowing the weakness of his title, therefore the statute of Glocester (i) gave another writ of estrepement, pendente placito, commanding the sheriff firmly *to inhibit the tenant "ne faciat vastum vel estrepementum pendente [*226] placito dicto indiscusso (k) (6)." And, by virtue of either of these writs the sheriff may resist them that do, or offer to do waste; and, if otherwise he cannot prevent them, he may lawfully imprison the wasters, or make a warrant to others to imprison them: or, if necessity require, he may take the posse comitatus to his assistance. So odious in the sight of the law is waste and destruction (1). In suing out these two writs this difference was formerly observed; that in actions merely possessory, where no damages are recovered, a writ of estrepement might be had at any time pendente lite, nay even at the time of suing out the original writ, or first process: but, in an action where damages were recovered, the demandant could only have a writ of estrepement, if he was apprehensive of waste after verdict had (m); for, with regard to waste done before the verdict was given, it was presumed the jury would consider that in assessing the quantum of damages. But now it seems to be held, by an equitable construction of the statute of Glocester, and in advancement of the remedy,

(k) Registr. 77.
(7) 2 Inst. 329.
(m) F. N. B. 60, 61.

pended; and if the first tenant for life dies during the continuance of such interposed estate, the action is gone for ever. Co. Litt. 218. b. 2 Saund. 252. note 7. See further, as to the persons who may maintain a writ or action for waste, id. ibid.

(6) See, as to New-York, 2 R. S. 338, § 18, &c. the court prevents waste by an order on the defendant, and enforces its order as the court of chancery does.

† See contra in New-York, 1 R. S. 750, § 8.
(51) See Hov. n. (51) at the end of the Vol. B. III.

that a writ of estrepement, to prevent waste, may be had in every stage, as well of such actions wherein damages are recovered, as of those wherein only possession is had of the lands; for peradventure, saith the law, the tenant may not be of ability to satisfy the demandant his full damages (n). And therefore now, in an action of waste itself, to recover the place wasted and also damages, a writ of estrepement will lie, as well before as after judgment. For the plaintiff cannot recover damages for more waste than is contained in his original complaint; neither is he at liberty to assign or give in evidence any waste made after the suing out of the writ: it is therefore reasonable that he should have this writ of preventive justice, since he is in his present suit debarred of any farther remedial (o). If a writ of estrepement, forbidding waste, be directed and de

livered to the tenant himself, as it may be, and he afterwards pro[*227] ceeds to commit waste, an action may be carried on upon the *foun

dation of this writ; wherein the only plea of the tenant can be, non fecit vastum contra prohibitionem: and, if upon verdict it be found that he did, the plaintiff may recover costs and damages (p), or the party may proceed to punish the defendant for the contempt: for, if after the writ directed and delivered to the tenant or his servants, they proceed to commit waste, the court will imprison them for this contempt of the writ (9). But not so, if it be directed to the sheriff, for then it is incumbent upon him to prevent the estrepement absolutely, even by raising the posse comitatus, if it can be done no other way.

Besides this preventive redress at common law, the courts of equity, upon bill exhibited therein, complaining of waste and destruction, will grant an injunction in order to stay waste, until the defendant shall have put in his answer, and the court shall thereupon make further order. Which is now become the most usual way of preventing waste.

2. A writ of waste (7)52is also an action, partly founded upon the common law, and partly upon the statute of Glocester (r); and may be brought by him who hath the immediate estate of inheritance in reversion or re

(n) F. N. B. 61. (0) 5 Rep. 115. (p) Moor, 100.

(g) Hob. 85.

(r) 6 Edw. I. c. 5.

(7) The action or writ of waste is now very seldom brought, and has given way to a much more expeditious and easy remedy, by an action on the case in the nature of waste. The plaintiff derives the same benefit from it, as from an action of waste in the tenuit, where the term is expired, and he has got possession of his estate, and consequently can only recover damages for the waste; and though the plaintiff cannot in an action on the case recover the place wasted, where the tenant is still in possession, as he may do in an action of waste in the tenet, yet this latter action was found by experience to be so imperfect and defective a mode of recovering seisin of the place wasted, that the plaintiff obtained little or no advantage from it; and therefore, where the demise was by deed, care was taken to give the lessor power of re-entry, in case the lessee committed any waste or destruction, and an action on the case was then found to be much better adapted for the recovery of mere damages, than an action of waste in the tenuit. + In New-York, the plaintiff in an action of waste may recover costs. (2 R. S. 334. 613, § 3 ) (52) See Hov. n. (52) at the end of the Vol. B. III.

It has also this further advantage over an action of waste, that it may be brought by him, in the reversion or remainder for life or years, as well as in fee, or in tail; and the plaintiff is entitled to costs in this action, which he cannot have in an action of waste. However, this action on the case prevailed at first, with some difficulty. 3 Lev. 130. 4 Burr. 2141.

But now it is become the usual action, as well for permissive as voluntary waste. Some recent decisions have made it doubtful, whether an action on the case, for permissive waste, can be maintained against any tenant for years. See 1 New. Rep. 290. 4 Taunt. 764. 7 Taunt. 302. 1 Moore, 100. S. C. See also 1 Saund. 323. a. n. (i).—Where the lessee even covenants not to do waste, the lessor has his election, to bring either an action on the case, or of covenant against the lessee, for waste done by him during the term. 2 Black. Rep. 1111. See further, 2 Saund. 252. and ▲ Chitty on Pl. 4 ed. 132, 3.

mainder, against the tenant for life, tenant in dower, tenant by courtesy, or tonant for years. This action is also maintainable in pursuance of statute (s) Westm. 2. by one tenant in common of the inheritance against another, who makes waste in the estate holden in common. The equity of which statute extends to joint-tenants, but not to coparceners; because by the old law coparceners might make partition, whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint-tenants could not; and therefore the statute gave them this remedy, compelling the defendant either to make partition, and take the place wasted to his own share, or to give security not to commit any farther waste (t). But these tenants in common and joint-tenants are *not liable to the penalties of the statute of Glocester, which ex- [*228] tends only to such as have life-estates, and do waste to the prejudice of the inheritance. The waste however must be something considerable; for if it amount only to twelve pence, or some such petty sum, the plaintiff shall not recover in an action of waste: nam de minimis non curat lex (u) (8).

This action of waste is a mixed action; partly real, so far as it recovers land; and partly personal, so far as it recovers damages. For it is brought for both those purposes; and, if the waste be proved, the plaintiff shall recover the thing or place wasted, and also treble damages by the statute of Glocester. The writ of waste calls upon the tenant to appear and shew cause why he hath committed waste and destruction in the place named, ad exhaeredationem, to the disinherison, of the plaintiff (w). And if the defendant makes default, or does not appear at the day assigned him, then the sheriff is to take with him a jury of twelve men, and go in person to the place alleged to be wasted, and there inquire of the waste done, and the damages; and make a return or report of the same to the court, upon which report the judgment is founded (x). For the law will not suffer so heavy a judgment, as the forfeiture and treble damages, to be passed upon a mere default, without full assurance that the fact is according as it is stated in the writ. But if the defendant appears to the writ, and afterwards suffers judgment to go against him by default, or upon a nihil dicit (when he makes no answer, puts in no plea, in defence), this amounts to a confession of the waste; since, having once appeared, he cannot now pretend ignorance of the charge. Now therefore the sheriff shall not go to the place to inquire of the fact, whether any waste has, or has not, been committed; for this is already ascertained by the silent confession of the defendant: but he shall only, as in defaults upon other actions, make inquiry of the quantum of damages (y). The defendant, on the trial, may give in evidence any thing that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king's enemies, or other inevitable accident (~) (9). But it is no defence

(s) 13 Ed. I. c. 22.

(t) 2 Inst. 403, 404. (u) Finch, L. 29.

(10) F. N. B. 55.

(8) See 2 Bos. & Pul. 86. But the doctrine that the smallness of the damages given by the jury shall defeat the action, does not extend to other actions. See 1 Dow. Rep. 209. 2 East, 154.

(9) Action on the case doth not lie for permissive waste. 5 Rep. 13. Hale MSS. The

(z) Poph. 24.

(y) Cro. Eliz. 18. 290.
(z) Co. Litt. 53.

case cited by lord Hale, is that of the countess of Salop, who brought an action on the case against her tenant at will, for negligently keeping his fire, so that the house was burnt; and the whole court held that neither action on the case nor any other action lay; because at common law, and before the statute of Gloces

to say, that a stranger did the waste, for against him the plaintiff hath no remedy though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act (a) (10).

When the waste and damages are thus ascertained, either by confession, verdict, or inquiry of the sheriff, judgment is given in pursuance of the statute of Glocester, c. 5. that the plaintiff shall recover the place wasted;

for which he has immediately a writ of seisin, provided the parti[*229] cular estate be still subsisting (for, if it be expired, there can be no forfeiture of the land), and also that the plaintiff shall recover treble the damages assessed by the jury (11), which he must obtain in the same manner as all other damages, in actions personal and mixed, are obtained, whether the particular estate be expired, or still in being.

CHAPTER XV.

OF SUBTRACTION.

SUBTRACTION, which is the fifth species of injuries affecting a man's real property, happens when any person who owes any suit, duty, custom, or service to another, withdraws or neglects to perform it. It differs from a disseisin, in that this is committed without any denial of the right, consisting merely of non-performance; that strikes at the very title of the party injured, and amounts to an ouster or actual dispossession. Subtraction however, being clearly an injury, is remediable by due course of

(a) Law of nisi prius, 112.

ter, action did not lie for waste against tenant for life or years, or any other tenant coming in by agreement of parties, and tenant at will is not within the statute. But if tenant at will stipulates with his lessor to be responsible for fire by negligence, or for other permissive waste, without doubt an action will lie on such express agreement. The same observation holds with respect to tenants for life or years before the statute of Glocester; for though the law did not make them liable to any action, yet it did not restrain them from making them selves liable by agreement. At the common law, lessees were not answerable to landlords for accidental or negligent burning; for as to fires by accident, it is expressed in Fleta, that fortuna ignis vel hujusmodi eventus inopinati omnes tenentes excusant; and lady Shrewsbury's case is a direct authority to prove that tenants are equally excusable for fires by negligence. Fleta, lib. 1. c. 12. Then came the statute of Glocester, which, by making tenants for life and years liable to waste without exception, consequently rendered them answerable for destruction by fire; but now by the 6 Ann. c. 31. the ancient law is restored,

In New-York the act corresponding to the Statute of Glocester is in 2 R. S. 334, § 1, &c.

for the statute of Anne exempts all persons from actions for accidental fire in any house, except in the case of special agreements between landlord and tenant. See 14 Geo. III. c. 78. s. 86. It was doubted under this sta tute, whether a covenant to repair generally extends to the case of fire, and so becomes an agreement within the statute; and therefore, where it is intended that the tenant shall not be liable, it has been usual in the covenant for repairing, expressly to except accidents by fire. See Harg. Co. Litt. 57. a. But it is now settled, that a general unqualified covenant to repair, subjects the tenant to the expense of rebuilding. 6 T. R. 650. The tenant at all events continues liable to pay rent. 3 Anst. 687. 3 Dow. 233. 1 T. R. 310. 4 Taunton, 45. 18 Ves. J. 115.

(10) The verdict for the plaintiff, in a writ of waste, ought to find the place wasted. 2 Bingh. R. 262.

(11) See 2 R. S. 335, § 10. A view is unnecessary if an issue of fact is joined, unless then the court direct it on application of one of the parties. (Id. § 9.)

but there is no act similar to 6 Ann. c. 31. or 14 Geo. III. c. 78.