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Of the Remedies for Waste.

Section I. By Action of Waste on the Statute of Gloucester; and Trover for Waste.

Section II. Action on the Case in the Nature of Waste.

Section III. In Equity.

Section I. Of Waste on the Statute of Gloucester.

REMEDIES for waste lie at common law by prohibition of waste and action of waste: in favour of the owner of the inheritance j however, the statutes of Marlbrldge, 52 ff. 3. c. 23. and of Gloucester, 6 E. 1. c. 5. provided that the writ of waste shall not only lie against tenants by the law of England (or curtesy) and those in dower, but against any farmer or other that holds in any manner for life or years: so that for above five hundred years past all tenants merely for life or for any less estate have been punishable or liable to be impeached for waste both voluntary and permissive: unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitim vasti s that is, with a provision or protection that no man shall impetere or sue him for waste committed (a).

But tenant in tail, after possibility of issue extinct, is not impeachable for waste; because his estate was at its creation an estate of inheritance, and so not within the statutes. The first incident to an estate tail is, that the tenant shall not be punishable for committing waste, by felling timber, pulling down houses, opening and working mines, &c. But this power must be exercised during the life of the tenant in tail, for at the instant of his death it ceases. If, therefore, a tenant in tail sell trees, growing on the land, the vendee must cut them down during the life of the tenant in tail; for otherwise they will descend to the heir, as parcel of the inheritance (S).

The Court of Chancery will not, in any case whatever, restrain the tenant in tail from committing waste. It is said also, that if he grant all his estate, the grantee is dispunishable for waste: so if grantee grant it over, his grantee is likewise dispunishable. Neither does w aste lie for the debtor against tenant by statute, recognizance,

(«) » Bl. Com. its- (*/ Cruise's Dig. tit. a. c. 1. >. j3

or elegit, because against them the debtor may set off the damages in account: but it seems reasonable that it should lie for the reversioner expectant on the determination of the debtor's own estate, or of those estates derived from the debtor (a).

By the statute of Marlbridge, single damages only could be recovered, except in the case of a guardian ; but the statute of Gloucester directs that tenant in dower, by the curtesy, for life, or years, shall lose and forfeit the place wherein the waste is committed, and also treble damages to him that hath the inheritance. The statute speaks of terms of years in the plural number; but though it be a penal law, whereby treble damages and the place wasted shall be recovered, yet a tenant for half a year, being within the same mischief, shall be within the same remedy, though it be out of the letter of the law. The expression of the statute is that "he shall forfeit the thing which he hath wasted;" and it hath been determined that, under these words, the place is also included.—If waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a house, the whole house shall be forfeited; because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only at one end of a wood (or perhaps in one room of a house, if that can be conveniently separated from the rest), that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner (t).

The redress under this statute for this injury of waste is of two kinds, preventive and corrective; the former by writ of tstrepement; the latter by action of waste.

Estrepement.Estrepement from extirpare, signifies to draw away the heart of the ground, by plowing and sowing it continually, without manuring or other good husbandry, whereby it is impaired; and may be also applied to the cutting down trees, or lopping them farther than the law allows. The word is used for a writ, which lies in two cases: the one by the statute of Gloucester, when a person having an action depending, as a formedon, writ of right, &c. sues to prohibit the tenant from making waste during the suit: the other is for the demandant, who is adjudged to recover seisin of the land in question after judgment and before execution sued by the writ of habere facias possessionem, to prevent waste being made before he gets into possession. By an equitable construction of the statute of Gloucester, and in advancement of the remedy, it is now held that a writ of estrepement to prevent waste may be had in every stage, as well of such actions wherein damages are recovered, as of those wherein only possession is had of the lands; for perhaps the tenant may not be able

(«) Ciuiic'i Dig. t«. 3. c. i, %. it, Anon, i Leon. lax. (i) Co. Uu J+

to satisfy the demandant his full damage. In an action of waste itself, therefore, (of which hereafter,) to recover the place wasted and also damages, this writ 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 suing out 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 further remedy (a).

If a writ of estrepement forbidding waste be directed and delivered to the tenant himself, as it may be, and he afterwards proceed to commit waste, an action may be carried on founded upon this writ, wherein the only plea of the tenant can be non fecit vastum centra prabibitionein, and if upon verdict it be found that he did, the plaintiff may recover damages and costs, or the party may proceed to punish the defendant for the contempt (J).

This writ lies properly where the plaintiff in a real action shall not recover damages by his action, and as it were supplies damages; for damages and costs may be recovered for waste, after the writ of en trepement is brought (c).

By virtue of either of these writs, the sheriff may resist those 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 it, he may take the posse comitatus to his assistance (d).

Writ of Waste.—The writ of waste is also an action partly founded on the common law, and partly upon the statute of Gloucester, and may be brought by him that hath the immediate estate of inheritance, whether it be fee-simple or fee-tail; provided the reversion continue with him, in the same state in which it was at the time of the waste done, and be not granted over; for though he take the estate back again, the action is gone, because the estate did not continue (A This is a remedy and yet a penal law, and therefore shall have a favourable construction (f).

A purchaser (as contradistinguished from one by descent) shall have an action of waste.

So, a parson, &c. for it is the dowry of the church.

But if a lease be made to A. for life, remainder to B. for life, remainder to C. in fee, no action of waste lies against the first lessee during the estate in the mesne remainder, for then his estate would be destroyed •, otherwise if B. had a mesne remainder for years, for that would have been no impediment, the recovery not destroying the term for years. But though B. cannot bring waste, he may hare an injunction (unless it be meliorating waste, as by building houses, &c.); but the reversioner or remainder-man in fee must be made a party, for possibly they may approve of the waste (a).

(a) F. N. B. 3 Inst. 328. 5 Rep. Iij.

(i) Moor. 100.

(c) Ibid. 1 Inst. 328.

(</; Ibid. 329.

(e) a Wood's Inst. 951. (f) The Mayor of Norwich T. Johnson. 3 Mod. 90.

If the lessee for years commit waste, and his term expires, yet the lessor shall have an action of waste for the treble damages (h). If a bishop make a lease for life or years, and die, and the lessee, the fee being void, doth waste, the successor shall have no action of waste [c). Tenant in common need not join in action of waste (d). This action is also maintainable in pursuance of the stat. of Westm. 2. (13 E. i.e. 22.) by one tenant in common of the inheritance against another, who makes waste in estate holden in common: the equity of which statute extends to joint-tenants; but not to copartners, because they, by the old law, might make partition; but tenants in common and joint-tenants could not, whereof the statute gave them this remedy, compelling the defendant either to make partition and take the place wasted to his own share, or give security not to commit any farther waste. But these tenants in common and joint-tenants are not 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 (e).

The grantee of a reversion shall have waste: therefore if the lessee of land open a coal mine and grant all his interest, excepting the mine, waste will lie by an assignee of the reversion against the grantee for coals afterwards dug by the grantor; for the exception being of a thing with which he had not power to meddle, was void [f).

A proviso in a lease that the lessor shall cut down trees, is a covenant and not an exception: therefore the heir may maintain waste if they be cut down (g). But if a lease be made excepting the wood and timber, an action of waste will not lie against the lessee for cutting it down, because not demised. If the termor assign his term, except the trees, and afterwards the trees are cut down, waste will lie against the assignee, for the exception was void: but if tenant for life make a lease for years, he may except the trees, because he still remains tenant and is chargeable in waste (h).

Waste lies against an executor de son tort of a term of years or of other chattels, by stat. 30 C. 2. e. 7, and 4 er 5 W.& M.c. 24. s. 12.

An occupant shall be punished for waste.—So, if the tenant for life or years, or their assignee make a grant over, and notwithstanding take the profits, an action of waste lies against him, by him in the reversion or remainder by the statute (a).

(a) Mayor of Norwich v. Johnson. 3 Mod. 90.

(4) Bewick v. Whitfield. 3P.Wms.a66.

in nQtU.

{/) Co. Lit. 3j6.

(d) Curtis v. Bourn, a Mod. 6a.

(0 a Inst. 433.

(/) Co. Lit. 5a. in no:is.

(g) Ibid. 690.

(*) Bull. N. P. 119.

One may have an action of waste upon several leases, and upon several grants of a reversion (3).

By the custom of London, waste lies at common law, for waste in houses there; and now since the statute of Gloucester, waste lies there in cases within the statute as well as in others ; for though the statute give an action of waste in cases where it would not lie before, and give also treble damages et locum vastatum, yet it does not take away the jurisdiction of any Court that before held plea of waste—So I writ of estrepement lies in London pendente placito, or after judgment and before execution, to stay waste (c ).

No person is entitled to an action of waste against a tenant for life, but he who has the immediate estate of inheritance in remainder or reversion, expectant upon the estate for life. If between the estate of the tenant for life who commits waste and the subsequent estate of inheritance there be interposed an estate of freehold to any person w esse, then during the continuance of such interposed estate, the action of waste is suspended; and if the first tenant for life die during the continuance of such interposed estate, the action is gone for ever. But though while there is an estate for life interposed between the estate of the person committing waste, and that of the reversion or remainder-man in fee, the remainder-man cannot bring waste; yet if the waste be done by cutting down trees, &c. such remainder-man in fee may seize them, and if they be taken away or made use of before he seizes them, he may bring 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 it belongs to the owner of the fee (d).

But the lord of a manor may enter for waste committed by a copyholder for life, though there be an intermediate estate in remainder between the estate of the copyholder for life, and the Lord's reversion (t).

The action of waste is a mixed action: partly real, so far as it recovers land; and partly personal, so far as it recovers damages; 'or it is brought for both of those purposes, and if waste be proved, the plaintiff shall recover the thing or place wasted, and also treble damages by the statute of Gloucester.

The process in the action of waste is, first a writ of $umm<»>s

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