to recover damages. (8) Yet, as therein it is not necessary that the freehold should be in the plaintiff and defendant respectively, as it must be in these real actions, but it is maintainable by one that hath possession only, against another that hath like possession, the process is therefore easier: and the effect will be much the same, unless a man has a very obstinate as well as an ill-natured neighbour: who had rather continue to pay damages than remove his nuisance. For in such a case, recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant's perverseness, by sending the sheriff with his posse comitatus, or power of the county, to level it. CHAPTER XIV. OF WASTE. THE fourth species of injury, that may be offered to one's real property is by waste, or destruction in lands and tenements. What shall be called waste was considered at large in a former book, (a) as it was a means 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 show 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-simple, (1) without any incumbrance or charge on the premises, he may commit whatever waste his own indiscretion may prompt him to, without being impeachable or accountable for it to any one. [*224] And, though his heir is sure to be the sufferer, yet nemo est hæres 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 hæres natus and an hæres factus: or, in the more accurate phraseology of our English law, he may alien 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 house-bote, 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 (a) See Book II, ch. 18. (8) This action may be brought by a reversionor where the nuisance affects injuriously his reversionary interest. Jackson v. Pesked, 1 M. and S. 234; Alston v. Scales, 9 Bing. 3; Biddlesford v. Onslow, 3 Lev. 209; Tucker v. Newman, 11 Ad. and El. 40. (1) [A tenant in fee-tale has the same uncontrolled and unlimited power in committing waste, as a tenant in fee-simple, unless expressly restrained from committing waste by the terms of the deed or will under which he claims. it; for which he has his remedy to recover possession and damages by assize, 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 curtesy, who was answerable for waste at the [ *225] common law, (c) or the lessee for life or years, *who was first made liable by the statutes of Marlbridge (d) and of Gloucester), (e) 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 principal. To him therefore in remainder or 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. Yet a parson, vicar, archdeacon, prebendary, and the like, who are seized 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 successors a fee-simple qualified; and yet, as they are not seized in their own right, the writ of waste shall not say, ad ex hæredationem ipsius, as for other tenants in fee-simple; but ad exhæredationem ecclesiæ, in whose right the fee-simple is holden. (g) II. The redress for this inquiry of waste is of two kinds; preventive, and corrective: the former of which is by writ of estrepement, the latter by that of waste. (2) 1. Estrepement is an old French word, signifying the same as waste or extir pation 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 Gloucester (i) gave another writ of estrepement pendente placito, [ *226 ] commanding the sheriff firmly *to inhibit the tenant "ne faciat vastum vel estrepementum pendente placito dicto indiscusso." (k) 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 Gloucester, and in advancement of the remedy, that a writ of estrepement, to prevent waste, may be had in every stage, as well of such actions wherein damages are recovered, as (b) F. N. B. 59. 9 Rep. 112. (f) Co. Litt. 53. (1) 2 Inst. 329. (c) 2 Inst. 299. (d) 52 Hen. III, c. 23. (e) 6 Edw. I, c. 5. (h) 2 Inst. 328. (i) 6 Edw. I, c. 13. (k) Registr. 77. (2) Both these writs are now abolished. The remedy to recover damages is by action on the case, and to recover possessión is by ejectment. 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. (0) If a writ of estrepement, forbidding waste, be directed and delivered to the tenant himself, as it may be, and he afterwards proceeds to commit waste, an action may be carried on upon the *foundation of this writ; wherein the only plea of the tenant can be, non fecit vastum contra prohibitionem: and, if upon verdict it be found [ *227 ] 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. (q) 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 (3) is also an action, partly founded upon the common law, and partly upon the statute of Gloucester; (7) and may be brought by him who hath the immediate estate of inheritance in reversion or remainder against the tenant for life, tenant in dower, tenant by the curtesy, or tenant 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. (f) But these tenants in common and joint-tenants are *not [ *228] liable to the penalties of the statute of Gloucester, which extends 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) (4) 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 (3) This writ, before it was abolished, had almost entirely fallen into disuse, having given way to the more simple proceeding by special action on the case. And this action may be brought not only in those cases in which a writ of waste might formerly have been maintained, but also in any other case where by the wrongful act or default of a party in possession an injury occurs to the rights of one entitled to succeed him in the possession. A purchaser at a judicial sale, where the defendant had a right of redemption, may maintain this action, after his title becomes absolute, against one who had previously, but after the sale, committed waste on the premises. Thomas v. Crofut, 14 N. Y. 474; Stout v. Keyes, 2 Doug. Mich. 184. (4) See this maxim illustrated in Broom's Legal Maxims, 106. Generally the smallness of injury will not preclude the maintenance of an action: Pindar v. Wadsworth, 2 East, 154; but the difficulty in drawing a precise line between what is and what is not waste in all cases, is sufficient reason for taking no notice of slight injuries. 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 Gloucester. The writ of waste calls upon the tenant to appear and show cause why he hath committed waste and destruction in the place named, ad exhæredationem, 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. (2) 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. (z) But it is no defence 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) (5) 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 Gloucester, c. 5, that the plaintiff shall recover the place wasted; for which he has immediately a writ of scisin, provided the particular estate be still subsisting (for, if it be expired, there can be no forfeiture of the land), and [*229 ] also that the plaintiff shall recover treble the damages assessed by the jury, 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 nonperformance; 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 law: but the remedy differs according to the (5) But one having a vested interest in reversion, may maintain a special action on the case against a stranger who commits waste to the injury of the inheritance. Randall v. Cleveland, 6 Conn. 328; Elliot v. Smith, 2 N. H. 430; Chase v. Hazleton, 7 id. 171; Ripka v. Sergeant, 7 W. and S. 1. The tenant may also sue for the injury to his possession. Id. Or the landlord may hold the tenant responsible for the injury by the stranger. Fay v. Brewer, 3 Pick. 203. Threatened waste may be restrained by injunction. nature of the services. whether they be due by virtue of any tenure, or by custom only. I. Fealty, suit of court, and rent, are duties and services usually issuing and arising ratione tenure being the conditions upon which the ancient lords granted out their lands to their feudatories; whereby it was stipulated that they and thei heirs should take the oath of fealty or fidelity to their lord, which was the feudal bond, or commune vinculum, between lord and tenant; that they should do suit, or duly attend and follow the lord's courts, and there from time to time give their assistance, by serving on juries, either to decide the property of their neighbours in the court-baron, or correct their misdemeanors in the court-leet; and, lastly, that they should yield to the lord certain annual stated returns, in military attendance, in provisions, in arms, in matters of ornament or pleasure, in rustic employments or *prædial labours, or (which is instar omnium) in money, which will provide all the rest; all which are [ *231 ] comprised under the one general name of reditus, return, or rent. And the subtraction or non-observance of any of these conditions, by neglecting to swear fealty, to do suit of court, or to render the rent or service reserved, is an injury to the freehold of the lord, by diminishing and depreciating the value of his seigniory. The general remedy for all these is by distress; and it is the only remedy at the common law for the first two of them. The naure of distresses, their incidents and consequences, we have before more than once explained: (a) it may here suffice to remember, that they are a taking of beasts, or other personal property, by way of pledge to enforce the performance of something due from the party distrained upon. And for the most part it is provided that distresses be reasonable and moderate; but in the case of distress for fealty or suit of court, no distress can be unreasonable, immoderate, or too large: (b) for this is the only remedy to which the party aggrieved is entitled, and therefore, it ought to be such as is sufficiently compulsory; and, be it of what value it will, there is no harm done, especially as it cannot be sold or made away with, but must be restored immediately on satisfaction made. A distress of this nature, that has no bounds with regard to its quantity, and may be repeated from time to time, until the stubbornness of the party is conquered, is called a distress infinite; which is also used for some other purposes, as in summoning jurors, and the like. Other remedies for subtraction of rents or services are, 1. By action of debt, for the breach of this express contract, of which enough has been formerly said. This is the most usual remedy, when recourse is had to any action at all for the recovery of pecuniary rents, to which species of render almost all free services are now reduced, since the abolition of the military tenures. But for a freehold rent, reserved on a lease for life, &c., no action of debt lay by the common law, during the continuance of the freehold out of which it [*232] issued; (c) for the law would not suffer a real injury to be remedied by an action. that was merely personal. However, by the statutes 8 Ann. c. 14, and 5 Geo. III, c. 17, actions of debt may now be brought at any time to recover such freehold rents. 2. An assize of mort d' ancestor or novel disseisin will lie of rents as well as of lands; (d) if the lord, for the sake of trying the possessory right, will make it his election to suppose himself ousted or disseised thereof. This is now seldom heard of; and all other real actions to recover rents, being in the nature of writs of right, and therefore more dilatory in their progress, are entirely disused, though not formally abolished by law. (1) Of this species however is, 3. The writ de consuetudinibus et servitiis, which lies for the lord against his tenant, who witholds from him the rents and services due by custom, or tenure, for his land. (e) This compels a specific payment or perform |