them; and I leave the eftate as I received it. Therefore we are of opinion they go to the heir. Judgment for the defendant. If a house be destroyed by tempeft, lightening, or the 2 Bl. Com. 2" like, which is the act of Providence, it is no wafte: and I T. R. ? the ftat. 6 Anna, c. 31. enacts, that no action fhall be profecuted against any perfon in whofe houfe any fire fhall accidentally begin; with a provifo that the act shall not defeat any agreement between landlord and tenant. But a leffee who covenants to pay rent, and to repair, with exprefs exception of casualties by fire, is liable upon the covenant for rent, though the premiffes are burned down and not rebuilt by the leffor after notice: and if he covenants generally to 6 T. R. 650. repair, he is bound to rebuild the premiffes, if they be burned by an accidental fire. Waste may be done in houfes, by pulling them down, or Co. Lit. 53, 4 fuffering them to be uncovered, whereby the rafters or other and notes. timber of the house are rotten: but the bare fuffering them to be uncovered, without rotting the timber, is not waste. Converting two chambers into one, or è converfo, or converting an hand-mill into an horse-mill, is wafte. But if a house be uncovered when the tenant cometh in, it is no wafte in the tenant to fuffer the fame to fall down. But though the house be ruinous at the tenant's coming in, yet if he pull it down it is wafte, uniefs he re-edify it again; yet if a house built de novo was never covered in, it is no wafte to abate it. Alfo, if glafs-windows (though glazed by the tenant himfelf) be broken down or carried away, it is wafte; for the glafs is part of his houfe. If the house be difcovered [uncovered] by tempeft, the tenant must in convenient time repair it: and though there be no timber growing upon the ground, yet the tenant muft at his peril keep the house from wafting. The law favours the fupport and maintenance of houses for the habitation of mankind: therefore if two or more joint-tenants or tenants in common be of a house of habitation, and the one will not repair the house, the other shall have by the law a writ of de reparatione facienda, and the writ faith ad fuftentationem ejufdem domus teneantur. So it is, if the leffor, by his covenant, undertake to repair the P houses, Ibid. Ibid. houses, yet the leffee (if the leffor doth it not) may with the timber growing upon the ground repair it, though he be not compellable thereunto. But if the tenant do or fuffer waste to be done in houses, yet if he repair them before any action brought, there lieth no action of waste against him; but he cannot plead quod non fecit vaflum, but the special matter. The tenant cuts down trees for reparations, and fells them, and afterwards buys them again and employs them about neceffary reparations; yet it is wafte by the vendition: he cannot fell trees and with the money cover the house. If the tenant of a dove-houfe, warren, park, vivary a fifh pond], eftangues, or the like, do take fo many as fuch fufficient store be not left as he found when he came in, this is wafte; and to fuffer the pale to decay, whereby the deer is difperfed, is wafte: but a wall uncovered when the tenant cometh in, is no wafte if it be fuffered to decay. If B. leffee of warren by charter or prefcription, ploughs the land, it is wafte: contra, if it be only land ftored with. conies, and not a legal warren; and ftopping and digging coney-burrows is not wafte in a warren If tenant cut down or destroy any fruit-trees, growing in the garden or orchard, it is wafte; but if fuch trees grow upon any of the ground which the tenant holdeth out of the garden or orchard, it is no waffe. Wafte may also be committed in respect of timber trees, (viz. oak, afh, and elm, and these be timber trees in all places), either by cutting them down or topping them, or doing any act whereby the timber may decay; for timber is part of the inheritance. Alfo, in countries where timber is fcant, and beech or the like are converted to building for the habitation of man, or the like, they are all accounted timber. Cutting down of willows, beech, birch, aspe, maple, or the like, ftanding in the defence and fafeguard of the houfe, is destruction: so, if there be a quickfet fence of white thorn, if the tenant ftub it up, or fuffer it to be deftroyed, this is deftruction; and for all thefe and the like destructions, an action of waste lieth. But cutting up of quick-fets is not wafte, if it preferves the fpring; nor is cutting of ash under the growth of twenty years waste. I If, during the estate of a mere tenant for life, timber is 3 P. Wms. 263: fevered either by accident or by wrong, it belongs to the first person who has a vefted eftate of inheritance. But where there are intermediate contingent eftates of inheritance, and the timber is cut down by combination between the tenant for life and the person who has the next vested eftate of inheritance; or if the tenant for life himself has fuch estate and fells timber; in these cafes, the Court of Chancery will order it to be preserved for him who has the first contingent estate of inheritance under the fettlement. A tenant for life without impeachment of wafle has as full 1 T. R. 54. power to cut down trees and open new mines, for his own ufe, as if he had an eftate of inheritance; and is in the fame manner entitled to the timber, if fevered by others. This privilege, given by the words without impeachment of Co.Lit.220. n.1. wafte, is annexed to the privity of eftate; fo that if the 3 Wood. 399. person to whom that privilege is given change his eftate, he lofes the privilege. It has been held that the intent of this clause is only to enable the tenant to cut down timber and open new mines, and that it does not extend to allow deftructive or malicious wafte; fuch as cutting down timber which ferves for the fhelter or ornament of the estate. If the tenant fuffer the houses to be wafted and then fell Co. Lit. 53. down timber to repair the fame, this is a double wafte. Digging for gravel, lime, clay, brick, earth, ftone, or the like, or for mines of metal, coal, or the like, hidden in the earth, and not open when the tenant came in, is waste; but the tenant may dig for gravel or clay for the reparation of the house, as well as he may take convenient timber trees. But if the pits or mines were open before, it is no 2 Bl. Com. 282. wafte in the tenant continuing to dig them for his own use; for it is now become the mere annual profit of the land. A party may come into a court of equity to restrain another 2 Atk. 183. from opening mines, &c. even if he has only threatened to do it; nor is it neceffary that the plaintiff fhould have waited till the wafte is actually committed, where the intention appears, and the defendant, even by his anfwer, infifts on his right to do it: indeed, if the defendant, by his answer, had difclaimed any right, there would be no grounds for fuch P 2 Co Lit. 53. fuch a fuit. Though mines be open at the time, one cannot take timber to use in them. It is wafte to fuffer a wall of the fea to be in decay, so as by the flowing and re-flowing of the sea the meadow or marsh is furrounded, whereby the fame becomes unprofitable; but if it be furrounded fuddenly by the rage or violence of the sea, as by tempeft, without any default of the tenant, it is no waste punishable. So it is, if the tenant repair not the banks or walls against rivers, or other waters, whereby the meadows or marshes be furrounded, and become rushy and unprofitable. It is a general principle, that the law will not allow that to be wafte, which is not in any way prejudicial to the inheritance: nevertheless it has been held, that a tenant or leffee cannot change the nature of the thing demised.Therefore if the tenant convert arable land into wood, or è conuerfo, or meadow into arable, it is wafte; for it changes not only the course of husbandry, but the proof of Cro. Jac. 182, his evidence. The fame rule is to be observed with regard to converting one fpecies of edifice into another, even though it be thereby improved in its value. Thus if a leffee convert a corn-mill into a fulling-mill, it is waste, though the converfion be to the leffor's advantage. So, the converfion of a brewhouse of 120l. per annum into other houses let for 200l. per annum is wafte; because of the alteration of the nature of the thing, and of the evidence. So, if the tenant pull down a malt-mill and build a cornmill it is waste.-Waste in the houfe is wafte in the curtilage, and wafte in the hall is wafte in the whole house. 1 Lev. 309. I Mod 95. Co. Lit. 122. a. SECTION II. Of Common of Eftovers; wherein of Wood. Common imports a privilege to take a profit in common 2 Bl. Com. 35 with many. Common of eftovers, or eftouviers, that is neceffaries, (from eftoffer to furnish,) is a liberty of taking neceffary wood for the use and furniture of a house or farm from off another's eftate. Eftovers are three kinds in law, and are incident to the eftate of every tenant, whether for life or years; but not at will, for fuch estate is too mean. Ibid. The Saxon word bote, which fignifies allowance or compenfation, is ufed by us as fynonymous to the French eftovers, and therefore houfe-bote is a fufficient allowance of of wood to build or repair the house, or to burn in it, which Wood's Inft. latter is fometimes called fire-bote; plough-bote and cart- 344. bote are wood to be employed in making and repairing all inftruments of husbandry, as ploughs, carts, harrows, rakes, forks, &c.; and hay-bote or hedge-bote is wood for repairing hedges or fences, as pales, ftiles, and gates, to secure inclofures. These botes or eftovers must be reasonable ones, and fuch any tenant or leffee may take off the land let or demised to him, without waiting for any leave, affignment, or appointment of the leffor, unless he be restrained by special covenant to the contrary, (which is usually the cafe): for F. N. B. 59. M. house-bote, hay-bote, and fire-bote, do appertain unto a termor of common right, and he may take wood for the fame but if the tenant take more house-bote than needful Terms de Ley. he may be punished for waste. Co. Lit. 121. b. F.N.B. 180. C.b. Common of eftovers cannot be appendant to land, unlefs it be by prescription; but to a houfe to be spent there. 12 Mod. 95. Therefore, though it be faid, that a custom that if the house 4 Rep. 87. 4 Leon. 383. fall the materials fhall be the tenant's, would not be good; yet when a house, having eftoppers appendant or appurtenant, is blown down by wind, if the owner rebuild it in the fame place and manner as before, his eftovers fhall continue. So, if he alter the rooms and chambers, without making new chimnies; but if he erect any new chimnies he will not be allowed to spend any eftovers in fuch new chimnies. But a prescription to have eftovers, not only for Cro. Jac. 25. repairing, but building new houses on the land is good: yet F.N.B. 180. H. it seems, if a man have common of eftovers by grant, he cannot build new houses to have common of eftovers for thofe houses. It may not, here, be fuperfluous, to explain the meaning of the terms appendant and appurtenant.-A thing appen- Co. Lit. 121. 6. dant is that which beyond memory has belonged to another thing more worthy, which it agrees with in its nature and quality. Therefore a common of turbary [that is a right to dig turf] eftovers, &c. may be appendant to a houfe; for a thing incorporeal may be appendant or appurtenant to a thing corporeal; but a thing corporeal cannot be appendant 1 Rol. 230. 1.36. to a thing corporeal, as land cannot be appendant to land: Ibid. 396, 1.42. and common appendant must be by prefcription, for it I Ibid. 50. |