Copyholds, however, are not forfeitable for outlawry (j). As to trust and mortgage estates, it is provided by the Trustee Act, 1850 (k) (practically re-enacting the provisions of the Act 4 & 5 Will. IV. c. 23, s. 3) that no lands vested in any person upon any trust, or by way of mortgage, shall escheat or be forfeited to the lord or lady of a manor by reason of the attainder or conviction for any offence of such trustee or mortgagee, but shall remain in the trustee or mortgagee, or survive to his or her cotrustee, or descend to or vest in his or her representatives, as if no such attainder or conviction had taken place. By an Act passed in 1870, attainders and forfeitures for treason and felony, except forfeitures upon outlawry, were abolished (7). The Act, however, is in general terms, copyholds not being mentioned, and it might be a question how far, according to the general rules for interpreting such statutes, it can be extended to take away forfeitures from lords of manors, especially where the custom authorises forfeiture for conviction of felony without attainder (m). The Act 54 Geo. III. c. 145, which provides that no attainder for felony (except in cases of treason or murder) shall prejudice the title of any person, other than the title of the felon during his life, has been considered not to be applicable to copyholds (n). breach of obliger Lupaur 1995.2K.B. 258 Forfeiture for waste is incurred by an act or neglect. 1.2h. 293 which changes the nature of the tenement granted to the prejudice of the inheritance (o). Waste is either voluntary or permissive, the former including all acts which destroy or materially alter the tenement, the latter consisting in the neglect of repairs which the tenant is bound to do. (j) Gilb. Ten. 242, 328; but see Co. Copyh. s. 58. (k) 13 & 14 Vict. c. 60, s. 46. (7) 33 & 34 Vict. c. 23. (m) Heydon's Case, 3 Rep. 7 a, E. 8a; ante, p. 121. (n) Scriv. Copyh. 440, n. (o) Darcy (Lord) v. Askwith, Hob. 234; Phillips v. Smith, 14 M. & W. 589. Courts of equity have usually relieved against forfeitures for merely permissive waste, if it has not been wilful (p). As a general rule, the courts of equity have declined to restrain permissive waste, but they have done so under special circumstances. Where a tenant for life had promised to repair a copyhold tenement, and had so induced the tenant in remainder to forego proceedings against him, upon neglect of the promise, an injunction was granted to restrain the tenant from permitting or suffering any further waste (g). Where there is no damage there is no waste, and the lord cannot enter for a forfeiture (). The lord may enter for waste committed by a copyholder for life, though there is another copyhold tenant in remainder (s). "If a copyholder," says Lord Coke (t), "commits waste, either voluntary or permissive, it is a forfeiture ipso facto: voluntary, as if he plucketh down any ancient-built house, or if he buildeth any new house and then pulleth it down again; or if he plougheth meadow, so that thereby the ground is made worse, or loppeth the trees and selleth the loppings, or if he cutteth down fruit trees for fuel, having other wood sufficient, these and the like voluntary wastes are forfeitures: permissive, as if he suffereth his house to decay or fall to the ground for want of necessary reparations, or if he suffereth his meadow for want of mending his banks to be surrounded, so that it becomes rushy or worth nothing, or his arable ground so to be surrounded that it becomes unprofitable, these and the like permissive wastes are forfeitures." Waste may be done in houses by pulling them down, or suffering them to remain uncovered or to fall into decay; but if the house is uncovered or ruinous when the tenant (p) Andrews v. Hulse, 4 K. & J. 392. (q) Caldwall v. Baylis, 2 Mer. (Earl of), 5 B. & Ad. 507. (s) Doe d. Folkes v. Clements, 2 M. & S. 68. (t) Co. Copyh. s. 57; Co. Litt. 408. (r) Doe d. Grubb v. Burlington 53 b. receives it, it is not waste to permit it to fall down, though it would be waste to pull it down (u). It is waste to build a new house, or if built to pull it down. A tenant, however, may pull down a ruinous house in order to build a better one (x). It is waste to plough up old pasture, to stub up a wood or hedge, to destroy or neglect to repair necessary banks, mounds, or drains, and generally to do anything against the rules of good husbandry which may damage the land (y). Where the copyholder is not entitled to the minerals, it is waste to open a mine or quarry, or to take stone, gravel, sand, &c., for any purpose, except as reasonable estovers for use upon the copyhold tenement (≈). And so, if the trees do not belong to the copyholder by custom, he will have only a possessory interest in them, and may only take his reasonable estovers for fuel and purposes of husbandry. It will be waste to fell timbertrees, or any trees which are not intended for renewable underwood, or to do anything which will injure the growth of the trees; and the eradication or the cutting down of a fir-tree or other tree which will not grow again, or any similar act of destruction, will be waste and will occasion a forfeiture (a). An injunction against waste will be granted to the copyholder against his lessee, to a remainderman against a copyholder for life, or to the lord against his tenants (6). (u) Co. Litt. 54 b. (x) Hardy v. Reeves, 4 Ves. jun. 466, 480. (y) See Darcy (Lord) v. Askwith, Hob. 234. (z) Peachy v. Somerset (Duke of), 1 Stra. 447; Ely (Dean and Ch. of) v. Warren, 2 Atk. 189; Winchester (Bishop of) v. Knight, 1 P. Wms. 406. (a) Co. Litt. 53 a; Swayne's Case, 8 Rep. 63a; Phillips v. Smith, 14 M. & W. 589. As to what are timber trees, see Honywood v. Honywood, L. R. 18 Eq. 306. (b) Att.-Gen. v. Vincent, Bunb. 192; Richards v. Noble, 3 Mer. 673; Parrott v. Palmer, 3 Myl. & K. 639; Cuddon v. Morley, 7 Hare, 202; Alteration of boundaries. A forfeiture may also be incurred by inclosing without authority, or by removing old inclosures, or landmarks, or by wilful confusion of boundaries (c). Where the boundaries of a copyhold have become confused by the fault of the tenant, whose duty it is to keep them distinct, the Court of Chancery has issued commissions to distinguish copyholds from freeholds, and one kind of copyholds from another kind, and generally to ascertain the boundaries; "and if they cannot be distinguished, to set out lands of the tenant of equal value with so much of the copyhold lands as cannot be distinguished" (d). To sustain a claim of this kind, the plaintiff must establish a clear title to some land in the possession of the defendant, and also a default or neglect of the defendant, or those from whom he claims, and must show that the confusion cannot be remedied without the aid of the Court (e). "It is the duty of the tenant to keep the boundaries: the confusion does not infer any negligence on the part of the lord, for the tenant is in possession of the land" (f), and the enfranchisement of the land will not relieve the tenant from the consequences of a previous neglect of duty to keep up the boundaries while he was copyhold tenant (g). The relief is given not only against the person guilty of the negligence, but also against all claiming under him, either as volunteers or as purchasers with notice (h). But before obtaining the aid of the Court in a case of confusion of boundaries, the lord must disclaim taking any advantage of the forfeiture (i). Forfeiture for alienation. The tenant may incur a forfeiture by alienating the land by a common-law deed, as by making a lease for more than one year, or whatever period the custom of the manor may have fixed for granting leases without licence (k). But no forfeiture is incurred by making a lease for the proper period, with a covenant to renew from time to time as the lord's licence shall be obtained (1). The principle was very clearly shown in the case of Peachy v. Duke of Somerset (m), where a copyholder prayed to be relieved against a forfeiture caused by his leasing part of the copyhold tenement for eleven years without licence. The Court refused the relief, and said "that a copyholder is considered at law as a tenant at will to all purposes except the continuance of his estate; the will cannot be determined, except where the custom allows it so to be, and in the case of the tenant making a greater estate than he lawfully may, that determines the will; for it is an usurpation upon the right of the lord, and the cases of tenant for life leasing pur autre vie, or tenant for a great number of years leasing for life, have been held forfeitures, not from any notion of their intending damage to the inheritance, but as it is a quitting or disclaiming their ancient right, which is thereby determined." But to occasion a forfeiture a common law interest must actually pass from the tenant; thus it will not be occasioned by a covenant to lease for more than the authorised period (n), or by a feoffment, which has now no tortious operation (0), or by a bargain and sale or lease and release, which could (k) Co. Litt. 59 a; Jackman v. Hoddesdon, Cro. Eliz. 351. (1) Lady Montague's Case, Cro. Jac. 301; Lenthall v. Thomas, 2 Keb. 267; Doe d. Wood v. Morris, 2 Taunt. 52. (m) 1 Stra. 447; and see Vin. Abr. vi. 112, 114, citing Shelley v. Mason, where a copyholder was relieved against a similar forfeiture. (n) Jackson v. Neal, Cro. Eliz. 395. (0) Co. Litt. 59 a; 8 & 9 Vict. c. 106, s. 4. |