re-entry for waste, may re-enter, but not immediately upon the tempest, for it is no waste until the tenant suffers it to be so long unrepaired that the timber be rotted, and then it is waste. Bro. Cond. pl. 40.

Likewise if a house be abated by lightning, or thrown down by a great wind, it is not waste. 1 Inst. 53 a. So if appletrees are torn up by a great wind, if lessee afterwards cuts them, it is not waste. Bro. Waste, pl. 39. If the banks are well repaired by the lessee, and the water notwithstanding subverts them, and surrounds his meadow, by which it is become rushy, it is not waste. 2 Rol. Abr. 280; contrà, 20 Hen. 6. c. 1 b.

II. 1. THE persons who are injured by waste are such as have some interest in the estate wasted; for if a man be the absolute tenant in fee-simple, without any incumbrance or charge on the premises, he may commit whatever waste his own indiscretion may prompt him to, without being impeachable and accountable for it to any one. 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 own 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 injurid. 3 Comm. c. 14.

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 it, for which he formerly had his remedy to recover possession and damages by assize if entitled to a free-hold 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. F.N.B. 59; 9 Rep. 112.

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 common law, 2 Inst. 299; or the lessee for life or years, who was first made liable by the statutes of Marlebridge, 52 Hen. 3. c. 23, and of Gloucester, 6 Edw. 1. c. 5.) if such particular tenant 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, the law hath given an adequate remedy. Co. Litt. 63. 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 seised in right of their churches of any remainder or reversion, might have had an action of waste; for they, in many cases, have for the benefit of the church and of the successor, a fee-simple qualified: but as they are not seised in their own right, the writ of waste did not lay ad exhæredationem ipsius, as for other tenants in fee-simple; but ad exhæredationem ecclesiæ, in whose right the fee-simple is holden. 1 Inst. 341; 3 Comm. c. 14.

The writ of waste is now abolished, but the persons by whom it might have been maintained may still have a remedy at law by an action on the case in the nature of a writ of waste, which has long been the ordinary course of proceeding (see post, III.) The instances given in former editions of this work, of cases in which the writ of waste might be supported, are in a great measure retained, as although no longer applicable to that action, they contain and illustrate the general doctrine upon the subject of waste.

By 13 Edw. 1. c. 22. the action of waste was given to one tenant in common against another. Where there are tenants in common for life, the one should not have trespass of trees cut against the other, but should have waste pro indiviso, though they were only tenants for term of life, &c. Bro. Waste, pl. 79. If one coparcener, before partition, made feoffment to another, and one of them did waste in the trees, waste lay. 11 Rep. 49 a, Lifford's case. See post, III.

By 20 Edw. 1. st. 2. an action of waste was maintainable by the heir for waste done in the time of his ancestor, as well as for waste done in his own time.

This action must have been brought by him that had the immediate estate and inheritance in fee-simple or fee-tail, but sometimes another might join with him. 1 Inst. 53 a, 285 a. It is said that the reversion must have continued in the same state that it was at the time of the waste done, and not been granted over; for though the reversion took the estate back again, the action was gone, because the estate did not continue. But in some special cases an action of waste lay, though the lessor had nothing in the reversion at the time of the waste done; as if a bishop made a lease for life or years, and died, and the lessee, the see being void, did waste, the successor should have an action of waste: this was allowed, though the 20 Edw. 1. spoke only of those that were inheritors. 1 Inst. 53 b, 356 a; 2 Rol. Abr. 825.

If a tenant did waste, and he in reversion died, the heir should not have an action of waste, for waste done in the life of the ancestor; for he could not say that the waste was done to his disinherison, &c. 1 Inst. 341 a, 53 b, 356 a. If a lease was made to A. for life, the remainder to B. for life, remainder to C. in fee, no action of waste lay against the first lessee during the estate in the mean remainder, for then his estate would have been destroyed. Otherwise if B. had had a mean remainder for years, for that would have been no impediment, the recovery not destroying the term of years. 5 Rep. 76, 77; 1 Inst. 54 a.

No person was entitled to an action of waste against a te

nant for life but he who had the immediate estate of inheritance in remainder or reversion expectant upon the estate for life. If, therefore, between the estate of the tenant for life, who committed waste, and the subsequent estate of inheritance, there was interposed an estate of freehold to any person in esse, then during the continuance of such interposed estate the action of waste was suspended; and if the first tenant for life died during the continuance of such interposed estate, the action was gone for ever. But though while there was an estate for life interposed between the estate of the person committing waste, and that of the reversioner or remainder-man in fee, the remainder-man could not bring his action of waste; yet if the waste were done by cutting down trees, &c. such remainder-man in fee might and may still seize them; and if they are taken away or made use of before he seizes them, he may bring an action of trover. For in the eye of the law a remainder-man for life has not the property of the thing wasted and even a tenant for life in possession has not the absolute property of it, but merely a right to the enjoyment or benefit of it, as long as it is annexed to the inheritance of which it is considered a part, and therefore belongs to the owner of the fee. 1 Inst. 218 b, in note, refers to 1 Inst. 53; 5 Rep. 77, Paget's case, All. 81; 3 P. Wms. 267; 22 Vin. Abr. 523; 2 Eq. Abr. 727; 3 Atk. 757.

If lessee for years committed waste, and the years expired,

reason he assigns is this, for that by having issue the estate | of the tenant by the curtesy is originally created, and yet after that he shall do homage alone in the life of the wife, which proves a larger estate; and seeing that at the creation of his estate he might do waste, the prohibition of waste lay not against him after his wife's decease; but in the case of tenant in dower she is punishable of waste at the first creation of her estate. 2 Inst. 145. But see 2 Inst. 299. and the reasons there, as quoted above.

Neither this act nor the statute of Marlebridge created new kind of wastes, but gave new remedies for old wastes; and what is waste, and what is not, must be determined by the common law. 2 Inst. 300, 301.

Against him.] If two are joint tenants for years or for life, and one of them does waste, this is the waste of them both as to the place wasted, notwithstanding the words of the act are him that holds. 2 Inst. 302.

Holds by the Law of England.] Here tenant by the curtesy was named for two causes: 1st, For that albeit the common opinion was, that an action of waste did lie against him, yet some doubted of the same in respect to this word (tenet) in the writ, for that the tenant by the curtesy did not hold of the heir, but of the lord paramount; and after this act the writ of waste grounded thereupon recited this statute. 2dly, For that greater penalties were inflicted by this act than were at the common law. 2 Inst. 301.

Or otherwise for Term of Life or Term of Years.] A lessee for his own life, or for another man's life, is within the words and meaning of this law, and in this point this act introduces that which was not at the common law. 2 Inst. 301.

He that has an estate for life by conveyance at common law, or by limitation of use, is a tenant within the statute. 2 Inst. 302. Tenant for years of a moiety, third or fourth part pro indiviso, is within this act; and so it is of a tenant by the curtesy, or other tenant for life of a moiety, &c. 2 Inst. 302.

Or a Woman in Dower.] If tenant in dower were of a manor, and a copyholder thereof committed waste, an action of waste lay against tenant in dower. 2 Inst. 303. Action of waste lay against an occupant life because he had the estate of the lessee for life, and held for life, as the statute mentioned. 6 Rep. 37 b. If a lessee for life were attainted of treason, by which the lease was forfeited to the king, who granted it over to I. S. and he afterwards did waste, though he came en le post, yet action of waste lay against him. 2 Roll. Abr. 826. So if a man disseised the tenant for life, and did waste, yet action of waste lay against the tenant for term of life; for he might have had his remedy over against the disseisor. Bro. Waste, pl. 138. Likewise if an estate were made to A. and his heirs during the life of B., A. died, the heir of A. should be punished in an action of waste. 1 Inst. 54 a.

If a man make a lease for years, and put out the lessee, and make a lease for life, and the lessee for years enters upon the lessee for life, and does waste, the lessee for life shall not be punished for it. 2 Inst. 303. If lessee for years make a lease of one moiety to A. and of the other moiety to B., and A. does waste, the action shall be against both, for the waste of the one is the waste of the other. Brownl. 38.

An action of waste lay against a devisee, and the writ might suppose it ex legatione, for it was within the equity of the statute. Bro. Waste, pl. 132. If an estate of land were made to baron and feme, to hold to them during the coverture, &c., if they wasted, the feoffor should have had a writ of waste against them. Lit. § 381. If feme lessee for life married, and the husband did waste, action lay against both. And if, in the above case, the husband died, action of waste lay against the feme for the waste he committed. But if tenant in dower married, and the husband did waste, and died, the feme should not be punished for this. Likewise if baron

and feme were lessees for life, and baron did waste, and died, the feme should be punished in waste, if she agreed to the estate. 2 Roll. Abr. 827; 1 Inst. 54; Kel. 113. But if she waived the estate, she should not be charged. So upon lease for years made to the baron and feme, waste lay against both. And if baron and feme were joint lessees for years, and baron did waste, and died, action of waste lay for this against the feme. Upon lease for life to baron and feme, waste lay against both. Likewise if feme committed waste, and then married, the action should be brought against both. 2 Roll. Abr. 827. And the writ might be quod fecerunt vastum, or quod uxor, dum sola fuit, fecit vastum. Bro. Waste, pl. 55.

If baron seised for life in right of his wife did waste, and after the feme died, no action of waste lay against the baron in the tenuit, because he was seised only in right of his wife, and the frank-tenement was in the feme. 1 Inst. 54; 5 Rep. 75 b. But if the baron, possessed for years in right of the feme, did waste, and after the feme died, action of waste lay against the baron, because the law gave the term to him. 1 Inst. 54. See Godb. 4, 5, pl. 6; Ow. 49.

Few cases, if any, can now happen of waste or injury done to premises, but the landlord, or person who has the inheritance, or even he who has a longer term in the premises, or who is himself liable to answer over, may maintain an action on the case, in nature of an action of waste, against the person committing the injury, for damages. See post, III. IV.

All tenants merely for life, or for any less estate, are punishable or liable to be impeached for waste both voluntary and permissive, unless their leases be made without impeachment of waste, that is, with a provision or protection that no man shall sue them for waste committed; but the words "without impeachment of waste," will not permit a tenant for life to unlead a house and pull down the tiles. 1 T. R. 55, n.

But a tenant for life, without impeachment of waste, has as full power of cutting down timber, and of opening new mines for his own use, as if he had an estate of inheritance; and is in the same manner entitled to the timber, if severed by others. 1 T. R. 56; 1 Inst. 220, n. And a tenant in tail after possibility, &c. has equally with such tenant for life an interest and property in the timber. 15 Ves. 419. But although such tenant for life may commit waste for his own benefit, yet he (and also a tenant in tail after possibility, &c.) may be restrained by an injunction out of the Court of Chancery, from making spoil and destruction on the estate. This distinction was first introduced in the case of Lord Barnard as to Raby Castle. See post, IV.

III. THE Punishment for waste committed was, by common law and the statute of Marlebridge, only single damages, except in the case of a guardian, who also forfeited his wardship by the provisions of the great charter. 2 Inst. 146, 300; Mag. Charta, c. 4. But the statute of Gloucester, 6 Edw. 1. c. 5. directed that the other four species of tenants (for life, for years, by curtesy, or in dower) should lose and forfeit the place wherein the waste is committed, and also treble damages, to him that had the inheritance. The expression of the statute was, "he shall forfeit the thing which he hath wasted;" and it was determined, that under these words the place was also included. 2 Inst. 303. And if waste were done sparsim, or here and there, all over a wood, the whole wood should be recovered; or if in several rooms of a house, the whole house should be forfeited; because it was impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. Co. Litt. 54. But if waste were done only in one end of a wood (or perhaps in one room of a house, if that could be conveniently separated from the rest,) that part only was the locus vastatus, or thing wasted, and that only should be forfeited to the reversioner. 2 Inst. 304; 2 Comm. c. 18.

The redress for this injury of waste was of two kinds;

One of two tenants in common cannot maintain an action on the case in nature of waste against his co-tenant (in possession of the whole, having a demise of the moiety) for cutting down trees of a proper age and growth for being cut: but he will be entitled to recover a moiety of the value in another form of action: aliter, if the trees be not fit to cut. 8 T. R. 145.

A more effectual remedy against voluntary waste is in many cases attainable by injunction in equity. See post, IV.

IV. 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. 3 Comm. c. 14.

If a tenant for life plant wood on the land, which is of so poisonous a quality that it destroys the principles of vegetation, without an express power in his lease, where it is usual to have such powers, it may be considered as waste, and the Court of Chancery may grant an injunction. Bac. Abr.; MSS. Rep. Marquis of Powis v. Dorall, Canc.

If there be lessee for life, remainder for life, the reversion or remainder in fee, and the lessee in possession waste the lands, though he is not punishable for waste by the common law, by reason of the mean remainder for life; yet he shall be restrained in Chancery, for this is a particular mischief. Moor, 554; 1 Vern. 23. But if such lessee has in his lease an express clause of without impeachment of waste, he shall not be injoined in equity. 1 Vern. 23.

If A. is tenant for life, remainder to B. for life, remainder to first and other sons of B. in tail male, remainder to B. in tail, &c.; and B. (before the birth of any son,) brings a bill against A. to stay waste; and A. demurs to this bill, because the plaintiff had no right to the trees, and no one that had the inheritance was party: yet the demurrer will be overruled, because waste is to the damage of the public, and B. is to take care of the inheritance for his children, if he has any, and has a particular interest himself, in case he comes to the estate. 1 Eq. Abr. 400.

It seems to be a general principle, that tenant in tail after possibility shall be restrained in equity from doing waste, by injunction, &c. because the court will never see a man disinherited; per Chan. Finch. And he took a diversity, where a man is not punishable for waste, and where he hath a right to do waste; and cited Uvedale's case, (24 Car. 1.) ruled by Lord Rolle to warrant that distinction. 2 Show. 69, pl. 53.

The right to restrain tenant in tail after possibility from committing equitable waste, is as fully settled as it is in the case of tenant for life without impeachment of waste. 2 Freem. 53; 2 Eq. Ab. 757; 3 Mad. 528.

A lease without impeachment of waste takes off all restraint from the tenant of doing it; and he may, in such case, pull up or cut down wood or timber, or dig mines, &c. at his pleasure, and not be liable to any action. Plowd. 135. But though the tenant may let the houses be out of repair, and cut down trees, and convert them to his own use; yet where a tenant in fee-simple made a lease for years without impeachment of waste, it was adjudged that the lessor had still such property, that if he cut and carried away the trees, the lessee could only recover damages in action for the trespass, and not for the trees: also it hath been held, that the tenant for life without impeachment of waste, if he cuts down trees, is only exempt from an action of waste, &c. 11 Rep. 82; 1 Inst. 220; 2 Inst. 146; 6 Rep. 63; Dyer, 184. And if the words are, "to hold without impeachment of waste, or any writ or action of waste," the lessor may seize the trees if the lessee cuts them down, or bring trover for them. Wood's Inst. 574. See ante, II.

In many cases, likewise, the Court of Chancery will restrain waste, though the lease, &c. be made without impeachment of

waste for the clause of "without impeachment of waste" never was extended to allow the destruction of the estate itself, but only to excuse for permissive waste; and therefore such a clause would not give leave to fell or cut down trees ornamental or sheltering of a house, much less to destroy or demolish a house itself. And if such waste be committed, an injunction will be granted to stay the waste; and the Court of Chancery will enforce the repair by the offender. 2 Vern. 738, 739; 1 Salk. 161, Vane v. Lord Barnard. See 1 P. Wms. 527; Bac. Ab. Waste, N. (7th ed.)

There has been much uncertainty as to what is and what is not to be considered ornamental timber. The principle on which the court has gone is, that if the testator or author of the interest by deed, had gratified his own taste by planting for ornament, though he had adopted the species the most disgusting to the tenant for life, and the most agreeable to the tenant in tail, and upon the competition between those parties the court should see that the tenant for life was right and the other wrong, in point of taste, yet the taste of the testator, like his will, binds them; and it is not competent to them to substitute another species of ornament for that which the testator designed. The question which is the most fit method of clothing an estate with timber for the purpose of ornament, cannot be safely trusted to the court. Per Lord Eldon, 6 Ves. 149; and see acc. 6 Mad. 149.

And therefore it is not enough for the affidavits to ground an injunction to show that the trees are ornamental. It must be shown that they were planted or left standing for the purpose of ornament. 1 Jacob, 70.

The principle has been extended from the ornament of the house to outhouses and grounds, then to plantations, vistas, avenues, and all the rides about the estate for ten miles round; and in the case of the Marquis of Downshire v. Sandys it was held to extend to clumps of firs on a common two miles distant from the house, they having been planted for ornament. 6 Ves. 107, 419, 787.

And the court granted the injunction where the trees were planted to exclude objects from view, holding this within the principle. 16 Ves. 174, 375.

con

But the injunction will not be extended to trees which protect the premises from the effects of the sea. And the court refused in one case to insert in the order the words, " tributing to ornament," and the injunction was accordingly taken according to a prior case in the terms "standing for ornament or shelter." 1 Jacob, 70; 8 Ves. 375; and see 1 Jacob, 71, notá.

The subject of interposition by prohibition in the case of waste committed by ecclesiastical persons, was discussed with a degree of learning and research, in the case of Jefferson v. Bishop of Durham, 1 B. & P. 105, that makes it impossible to add any thing to what is there collected. It appears from thence, that not one of the early text writers were aware of any common law remedy against churchmen committing waste, and that the Year Book, 2 Hen. 4. contained an extrajudicial opinion of Thirning, C. J., that if a bishop or archdeacon cut down all his wood, he shall not be punished at common law. In the reign of James I., however, Lord Coke unassisted by, and indeed, contrary to all practice, sagaciously inferred from two ancient records, 1 B. & P. 109, n., that a writ of prohibition lay at common law against a churchman who committed waste; and upon these authorities in the reign of Charles I. Lord Keeper Coventry, 2 Ro. Ab. 813. issued a prohibition of waste to a churchman under the great seal, on the application of the patron. Lord Coke in one case, 1 Rol. 86, 335; 3 Bulst. 91. went so far as to say that any one might have a prohibition as well as the patron, for it was the king's writ, and any one might have a prohibition for the king. It appears, however, most satisfactorily, from a review of the doctrine collected in Jefferson v. Bishop of Durham, that Lord Coke was not justified in the extent to which he carried this doctrine; and though that case, in point of actual de