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made by the cursitor of the county where the land lies, and on the return of this writ the defendant may essoign and the plaintiff adjourn, &c. Then a pone is made out by the filazer of the county, on the return of which a distringas issues for the defendant to appear, and upon his appearing the plaintiff declares, and the defendant pleads, &c.

The writ of waste calls upon the tenant to appear to shew cause why he hath committed waste and destruction in the place named to the disinherison of the plaintiff. If the defendant makes default and does not appear at the day assigned him,. then the sheriff is to take with him a jury of twelve men, and go in person to the place alleged to be wasted, and there inquire of the waste done and the damages, and make a return or report of the same to the Court, upon which report the judgment is founded (a).—But if the defendant appears to the writ and afterwards suffers judgment to go against him by default, or upon a nil dicet (when he makes no answer or puts in no plea in defence), this amounts to a confession of the waste, since having once appeared, he cannot pretend ignorance of the charge. The sheriff, therefore, shall not go to the place to inquire of the fact, but shall only (as in default in other actions) make inquiry of the quantum of damages (b).

In waste the plaintiff must shew how he is entitled to the inheritance; therefore, if he counts upon a lease by himself, he must shew his seisin in fee, and demise to the defendant (c).

In every case the plaintiff in this action must shew his title. Thus, if he claim by fine, he must plead the fine and the uses of it; if by common recovery, he must shew the recovery and uses: so, if by grant of the reversion, he must shew how he claims by assignment; and if the husband and wife in right of the wife sue, they must allege the reversion in both: so, if the plaintiffs sue as parceners or jointtenants, the declaration shall shew that they are so (c).

If, however, the plaintiff conclude ad exhareditationem, it supplies the omission of the estate of which he was seised, after verdict: so if he shews the special matter it is sufficient, though he does not name himself assignee: so, if the writ is general, cujus hares the plaintiff is, though he has a special inheritance (c).

If the plaintiff has the reversion, he shall say that the defendant holds of him: but it is otherwise, if waste be brought by him in remainder ■, or by the lord who has by escheat, for there is no tenure of him (c).

The plaintiff must always charge the defendant in the tenet, or in the tenuit; for there is no other form: and must charge him as assignee, executor, &c. So, he must charge him by virtue of the

(a") Crocker v. Dormer. Poph. ao-24. I Warneford v. Haddock. Ibid. 190. (i) Foster v. Spooner. Cro. Eliz. 17-18. | (c) Com. Dig. tit. Pleader. (3O. a.)


lease by which he is possessed: as, if the defendant be in by devise, he must charge him as tenant ex tegatione. If defendant claims by a remainder for life or for years, which is now in possession, he may be charged upon a demise to him; but if he be in by the statute of uses, it is sufficient to charge him generally, without saying on whose demise (a).

The declaration must assign the waste conformably to the WTit: for if the writ is for waste in land, and it is assigned in cutting wood, it is bad (b).

If waste be assigned in land, it must say in what parish it lies (r).

It is sufficient to assign waste directly, without shewing the particular manner in which it was committed; as, if it is in germins, it is sufficient to say, that he destroyed the germins generally, without saying that he suffered the hedges of the wood to be neglected, whereby cattle entered and ate the germins; and if a stranger commit the waste, that fact need not be mentioned.

But the declaration must particularize the quality or quantity of the waste; as if it is in cutting trees, the plaintiff must shew the number of the trees.—If the demise is of a moiety of a manor, and other lands, and the waste assigned in a wood, parcel of the premises, it is bad; for it cannot be parcel of the manor, and also of the other lands.

If trees be excepted out of a demise, waste cannot be committed by cutting them down; and therefore ejectment cannot be brought as for waste committed in or upon the demised premises (d).

A declaration in waste that the defendant ploughed up the land, which was pasture, et sic vast um fecit, was held bad for uncertainty; even after verdict {e).—After verdict, nothing is to be presumed but what is either expressly stated in the declaration, or necessarily implied from those facts which are stated (f) : for a verdict will cure ambiguity only, but will not aid where the gist of the action is omitted to be laid in the declaration (g).

The declaration must be ad exhareditationem of the plaintiff: if he be seised in right of his wife, it shall be ad exhareditationem of the wife. So, if there are several plaintiffs, there may be summons and severance; for it is a real action, and ad exhareditationem (h).

The general issue to an action of waste, is "no waste done;" but this admits nothing, but puts the whole declaration in issue; and may be pleaded in all cases were there is no waste, as if destruction happens by tempest, &c. If therefore the defendant plead nut -waste fait, and issue is taken thereupon, the plaintiff must prove his title as

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laid in the declaration: he must likewise prove the kind of waste laid in the declaration; and therefore if he allege waste in cutting trees, and the jury find that he stubbed them and did not cut them, it is variance (a).—Defendant may also, under the general issue, give in evidence any thing which proves that it is no waste; as that it was by tempest, &c. as before observed; but not that it was for repairs, or that the plaintiff gave him leave to cut, or that he had repaired before the action brought. Neither will it be any defence that a stranger did it, for if the plaintiff should not have his action of waste, he would be without remedy; and the defendant may bring trespass against the stranger, and recover his damages. But it would be a good plea to say that the plaintiff himself did it (b).

If several wastes are assigned, and the defendant is not guilty of part of any, he may plead " no waste done" to the whole, and need not say to every part severally " no waste (t)."

If the tenant repairs before action brought, it is said, he in reversion cannot have an action of waste; but the tenant cannot, in such case, plead that he did not waste, but must plead the special matter (d); for

"No waste done" is no plea where the defendant has matter of justification, or excuse. Therefore, if there be a lease to A. for two years, and afterwards a lease to B. for ten years, in waste against B. for waste during the two years, he cannot plead " no waste done (c)."

The defendant may plead in justification that he took for repairs; as for repair of the fences and other necessary uses : or, that he pulled down to rebuild and repair the houses, fences, &c. Therefore tenant for life may justify cutting down timber upon the ground letten, and repairing the house therewith, though he is not compellable to repair it if it were ruinous when the lease was made (c).—But it is not sufficient to say, that he took for repairs, if he does not add that he used or keeps for repairs: for it is waste for a lessee to cut down timbertrees for the purposes of repairs when there is no occasion, for were it otherwise, every farmer might cut down all the trees growing upon the land under pretence that he keeps them to employ about reparations whenever such shall become necessary (f).

So, he may plead that he took them for other necessary botes; as for wain-bote, cart-bote, plough-bote, or hedge-bote, or for gates, or stiles; or for making utensils in husbandry ; or for fuel. So, he may plead that they were dead wood, bearing neither fruit nor foliage (g).

So, he may plead that the lease was without impeachment of waste; or, that the plaintiff's ancestor made a bargain and sale of the trees to him: or, that the lessor covenanted that the lessee might cut down trees.—But it is no bar, that the lessor covenanted to repair, and that he did it for him (<?).

(a) Bull. N.P.I 19.

(4) Ibid. i»o.

(f) Com. Dig. tit. Pleader. (3 O. 7.)

(d) 1 Inst. J8j.


(?) Co. Lit. J4. U.

(f) Com. Dig. tit. Pleader. (3 O. XI.) Georges v. Stanfield- Cro. Eli*. 593. (g) Com. Dig. tit. Pleader. (3 O. Ij.)

He may also plead, that he has rebuilt and since kept in repair; for he may plead in excuse, that he repaired before action brought, for the jury must view the place wasted; but "repaired pending the suit" is no plea. So he may plead that it was so ruinous at the commencement of his lease, that he could not repair (£).

So, he may plead a release from the plaintiff, or one of the plaintiffs, in bar: for if waste be by two plaintiffs in the tenuit, a release by one is a bar to both: but where waste is in the tenet, a release by one plaintiff bars himself only (c)■.

So, to waste in the tenuit, he may plead accord with satisfaction (r).

So, the defendant may plead in abatement to the plaintiff's title, or that the plaintiff has nothing in reversion; but he ought to shew how the reversion is devested, for "nothing in reversion," generally, will be bad; except where waste is brought by a grantee of the reversion (d).

So, if the plaintiff's title fails pendente lite, the defendant may plead it after the last continuance.

So, he may plead a mesne remainder-man still alive.

So, the defendant may plead no demise made to him: or, no demise as to part: or, that wood was excepted by the demise.—So, that he has nothing by the assignment of B. or that after the demise, the defendant assigned, before which assignment no waste was done(f).

To the plea of assignment before waste done, the plaintiff may reply, that the assignment was by fraud, and he afterwards took the profits: and if the defendant rejoins, he must traverse the pernancy of the profits, not the fraud (e).

In waste, if issue is joined, six jurors at the least ought to lure a view of the place wasted, otherwise the trial shall be staid: if therefore waste be assigned in several places, the jury may find " no waste done" in a place of which they had no view, and they ought, it seems, to have a view (as the venire facias directs them to have), though the issue be upon a collateral point, and the waste be confessed. Whether the venire facias be returned or not, the Court may examine as to tie 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 distringas juratorum, that the jury have viewed; or that he ** present at the view (f).

If, however, the waste be assigned in a wood sparsim, it is sufficient f the jury view the wood, though they do not enter into it. So, if it be in several rooms of a house.

(a) Com. Dig. tit. Pleader. (3 O. 4.) I (d) Com. Dig. tit. Pleader. (3 °-10->

(4) Ibid. (3 0.15.) (,) Ibid. (3 O. 19.) Ibid. (3 0. »*■)

f» Ibid. (3 O. 8. x6.) I (/) Ibid. (3 0. 31.)

Of the Judgment.—Touching the judgment in waste, if there be judgment for want of an appearance upon the distringas by the stat. W. 2. c. 14. the sheriff taking twelve, &c. shall go to the place wasted and take inquisition of the damage, and upon the return thereof, there shall be damage.

When the waste and damages are ascertained, either by confession, verdict or inquiry of the sheriff, judgment is given in pursuance of the statute of Gloucester, c. 5. that the plaintiff shall recover the place wasted; -for which he has immediately a writ of seisin, provided the particular estate be still subsisting; (for if it be expired, there can be no forfeiture of the land;) and also, that the plaintiff shall recover treble the damages assessed by the jury; which he must obtain in the same manner as all other damages in actions personal or mixed are obtained, whether the particular estate be expired, or be still in being (a).

In an action of waste upon this statute against the tenant for years, for converting three closes of meadow into garden ground, if the jury give only one farthing damages for each close: the Court (who have a kind of discretionary power therein) will give the defendant leave to enter up judgment for himself (b).

By stat. 8 & 9 W. 3. c. II. t. 3. a plaintiff shall have costs in all actions of waste, where the damages found do not exceed twenty nobles; which he could not at common law.

Trover for Waste.—Waste is a tort, and the remedy lies at law. Therefore, where timber is cut down, trover may be brought to recover the value.—In an action of waste, the place wasted is recovered; in an action of trover, damages (c).

Trover may be brought against the executor of the person who converts the timber to his own use (d).

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 impossible to discover the value of the timber, being in possession of and cut down by the tenant (e).

Yet whether a bill for an account may be brought by the lord of a manor, or a lessor, against a tenant for timber felled, seems to be doubtful (/).

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