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the venire facias directs them to have,) though the issue be upon a collateral point, and the wafte be confeffed. Whether the venire facias be returned or not, the Court may examine as to the fact of the jury having viewed or not; for the return does not conclude the parties: but it is not necessary, that the officer return upon the diftringas juratorum," that the jury have viewed; or that he was prefent at the view.

If however the wafte be affigned in a wood fparfim, it is fufficient if the jury view the wood, though they do not enter into it. So, if it be in feveral rooms of a house.

ment.

'Touching the judgment in waste, if there be judgment of the Judg for want of an appearance upon the diftringas by the stat. W. 2.c. 14. the Sheriff taking twelve, &c. fhall go to the place wafted and take inquifition of the damage, and upon the return thereof, there'fhall be damage.

When the wafte and damages are àfcertained, either by 3 Bl. Com. confeffion, verdict, or enquiry of the sheriff, judgment is given in pursuance of the statute of Gloucester c. 5. that the plaintiff fhall recover the place wafted; for which he has immediately a writ of feifin, provided the particular eftate be ftill fubfifting; (for if it be expired there can be no forfeiture of the land;) and alfo, that the plaintiff shall recover treble the damages affeffed by the jury; which he must obtain in the fame manner as all other damages in actions perfonal or mixed are obtained, whether the particular eftate be expired, or be fill in being.

86.

In an action of wafte upon this ftatute against the tenant 2 Bof. & Pull. for years, for converting three closes of meadow into garden ground, if the jury give only one farthing damages for each clofe; the Court (who have a kind of difcretionary power therein) will give the defendant leave to enter up judgment for himself.

By flat. 8. & 9. W. 3. c. 11. s. 3. a plaintiff fhall have cofts in all actions of wafte, where the damages found do not exceed twenty nobles; which he could not at common law.

Waste is a tort, and the remedy lies at law. Therefore 3 Atk. 263-755where timber is cut down, trover may be brought to recover

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Ibid. 757

2 P. Wms. 241.

r P. Wms. 406.

aft.

the value. In an action of wafte, the place wafled is recovered in an action of trover, damages.

Trover may be brought against the executor of the perfon .who converts the timber to his own use.

But though trover will lie at law, it may be very necessary for the party who has the inheritance to bring his bill in equity, because it may be impoffible to discover the value of the timber, it being in the poffeffion of and cut down by the tenant.

Yet whether a bill for an account may be brought by the 3 Atk.264 neg. lord of a manor, or a leffor, against a tenant for timber felled, feems to be doubtful.

SECTION II. Of the Action upon the Cafe in the Nature of

Waste.

Since the ftatute of Gloucefter, which gives no more cofts than damages, it is ufual to bring trefpafs or cafe in the nature of waste instead of the action of waste.

Cro. Car. 187. Either an action in the cafe or trefpafs will lie, at the plaintiff's election, against his tenant at fufferance [more properly yearly tenant] for defpoiling the premiffes: and cafe is the better action to recover as much as he may be damnified because he is fubject to an action of wafte.

8 T. R. 145.

4 T. R. 319.

a Efp. R. 590.

One tenant in common cannot maintain an action on the case in the nature of waste against another tenant in common (in poffeffion of the whole, having a demife of the moiety from the first) for cutting down trees of proper age and growth for being cut; for it is no hurt to the inheritance. If however the trees were not fit to be cut, he might maintain fuch action.

It is fo notoriously the duty of the actual occupier to repair the fences, and fo little the duty of the landlord, that without any agreement to that effect, the landlord may maintain an action against his tenant for not fo doing, upon the ground of the injury done to the inheritance.

A tenant from year to year is only bound to fair and tenantable repairs, fo as to prevent wafte or decay of the premiffes, not to fubftantial ones.

SECTION

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SECTION III. Of the Remedies in Equity, in the Cafe of
Wafe..

On the fubject of wafle, the Court of Chancery has, it fhould feem, a concurrent jurifdiction with the Courts of common law."

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The relief afforded by that Court, is in many cafes the moft eligible, and in fome, abfolutely neceffary to be fought, in order to prevent the commiffion of threatened, or impending wafte: for the Court will stay wafte upon application by bill brought for that purpose praying an 'injunction.

At the cominon law, prohibition went out of Chancery, Com. Dig. tit. against the tenant by the cartefy, in dower, or as guardian, (D: 11.) Chancery at the prayer of him who had the inheritance, to inhibit wafte, and that before waffe committed.

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399. in n.

Refpecting the remedy of the remainder-man or rever. 2 Eq. Ca. Abr. fioner (or, in the cafe of copyholds, of the ford,) against a tenant about to commit, or committing wafte, although a Court of Equity will not affift a forfeiture, yet the tenant in poffeffion fhall be reftrained in equity from wafte in all cafes in which wafte is punishable by law; and for this purpofe, an injunction will be granted before the bill! is filed. Alfo an injunction will be granted to stay waste in behalf of an infant in ventre fa mere. Equity will likewise, în some particular cafes, reftrain the tenant from committing wafte, where he is difpunishable by law, either by the nature of the effate, or by exprefs grant "without impeach"ment of wafte": but where, by agreement of the parties, the leafe is made without impeachment of wafte, equity will not restrain the leffee from cutting timber, ploughing, opening mines, &c. though fuch leffee fhall be reftrained from pulling down houfes, defacing feats, &c.

When a bill is filed to restrain wafte or any other injury Park. An. 47, very detrimental, fo that it is neceffary to lofe no time, an injunction may be applied for immediately after the bill is filed, by fpecial motion fupported by affidavit of the grievance.

So now, an injunction fhall be granted upon an affidavit of walle committed, to inhibit any wafte to be committed by

Com. Dig. tit.

Chancery
(D. 11.)

Ibid.

Ibid.

by tenant for life or years; as to inhibit meadow, or other pafture, not ploughed within twenty years, being ploughed; but not againit a leffee, who had agreed to pay 205, per acre per ann. increase of rent, if he ploughed a meadow, &c. So it will be granted to inhibit antient inclosures being thrown down; or houses being pulled down.

So, against tenant after poffibility &c. or him who in refpect of a truft, &c. is not liable an action of waste.

So, against tenant for life, at the fuit of the remainderman in fee, though there is an intermediate remainder: and if tenant for life, without impeachment of waste, or any other leffee, has cut timber, so as not to leave sufficient for repairs, the Court will restrain him from cutting any 3 Atk. 215.755, more without leave of the Court. Tenant for life, without

Com. Dig.

ut ante.

3 Atk. 723.

Ibid.

Fbid, & 210.

a Atk. 217.

3 Atk. 496.

impeachment of waste, will be restrained alfo from cutting down trees in lines or avenues, or ridings in a park, whether planted or growing naturally, or trees not of a proper growth to be cut; fo, if he will be reftrained from pulling down the antient and capital house, and not only fo, but the Court will compel him to put it in the same plight in which he found it.

The Court will grant an injunction at the suit of a ground landlord to stay wafte in an under leffee, who holds by leafe from the original landlord; upon a certificate being produced of the waste.

So, the mortgagor may have an injunction to stay wafte against the mortgagee, if he cut down timber, and do not apply the money arising from the fale in finking the interest and principal. So, where the mortgagor commits waste, the Court will grant the mortgagee an injunction; for they will not fuffer the mortgagor to prejudice the incumbrance.

So, though a rector may cut down timber for the repairs of the parfonage house or chancel, (but not for any common purpose) and is entitled to botes for repairing barns and outhouses belonging to the parfonage, an injunction to stay waste in cutting down timber in the church yard, will be granted till the cause be heard.

The Court will not grant an injunction to stay wafte in digging mines where the defendant fets up a right to the inheritance of the eftate, till the answer is come in or the

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defendant

defendant has made default in not putting in his anfwer, for fuch injunctions are never granted before the hearing, unless the defendant had only a term in the eftate, for years, or for life, and the reverfion was in the plaintiff.

Com. Dig.

On motion to stay waste, a particular title must be shewn; Ibid. and the motion fhould be made upon affidavit of the title, tant wafte committed, and a certificate of the bill filed.

CHAPTER

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