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Section II. Of the Action upon the Case in the Nature of

Waste.

Since the statute of Gloucester, which gives no more costs than damages, it is usual to bring trespass or case in the nature of waste instead of the action of waste.

An action on the case does not lie for permissive waste (a).

Either an action on the case or trespass will lie, at the plaintiff's election, against his tenant for despoiling the premises: and case is the better action to recover as much as he may be damnified, because he is subject to an action of waste (b).

One tenant in common cannot maintain an action on the case in the nature of waste against another tenant in common (in possession of the whole, having a demise 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 such action (c).

Tenant at will has no power to commit any kind of voluntary waste: but he is not within the statute of Gloucester: and therefore an action of waste lies against him (d). If, however, a tenant at will cut down timber-trees, or pull down houses, the lessor shall have an action of trespass against him (e).

So, with respect to permissive waste; no remedy whatever lies against tenant at will; for he is not bound to repair or sustain houses like tenant for years (f).

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

Where a lessee covenanted to repair the premises during the term, and yield them up at its expiration "in as good condition as the same should be in when finished under the direction of J. M.," it was ruled that an action on the case, in the nature of waste, would not lie against the assignee for yielding up the premises at the expiration of the term "in a much worse order and condition than when the same were finished under the direction of 'J. M. ,•" for waste can only lie for that which could be waste, if there was no stipulation respecting it; but if there were no stipulation, it could not be waste to leave the premises in a worse condition than J. M. had put them into if).

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Section III. Of the Remedies in Equity in the Case of

Waste.

On the subject of waste, the Court of Chancery has, it should seem, a concurrent jurisdiction with the Courts of common law.

The relief afforded by that Court is in many cases the most eligible, and in some absolutely necessary to be sought, in order to prevent the commission of threatened or impending waste: for the Court will stay waste upon application by bill brought for that purpose praying an injunction.

At the common law, a prohibition went out of Chancery, against the tenant by the curtesy, in dower, or as guardian, at the prayer of him who had the inheritance, to inhibit waste, and that before waste committed (a).

Respecting the remedy of the remainder-man or reversioner (or in the case of copyholds, of the lord) against the tenant about to commit, or committing waste, although a Court of Equity will not assist a forfeiture, yet the tenant in possession shall be restrained in equity from waste in all cases in which waste is punishable by law; and for this purpose, an injunction will be granted before the bill is filed. Also an injunction will be granted to stay waste in behalf of an infant in ventre sa mere. Equity will likewise, in some particular cases, restrain the tenant from committing waste, where he is dispunishable by law, either by the nature of the estate, or by express grant "without impeachment of waste:" but where, by agreement of the parties, the lease is made without impeachment of waste, equity will not restrain the lessee from cutting timber, ploughing, opening mines, &c. though such lessee shall be restrained from pulling down houses, defacing seats, &c. (i).

With respect to threatened or impending waste; the act of sending a surveyor to mark out trees, is a sufficient ground for an injunction (c).

So, a threat to open mines, entitles a party to come into this Court to restrain him (d). Even if a tenant for life insists on a right to do waste, and has none, the reversioner may have an injunction, though no proof of waste appear (*).

When a bill is filed to restrain waste or any other injury very detrimental, so that it is necessary to lose no time, an injunction may be applied for immediately after the bill is filed by special motion supported by affidavit of the grievance (/).

(a) Com. Dig. tit. Chancery. (D. II.) I (J) Gibson v. Smith, i Atk. i8». (*) » Eq. Ca. Abr. 399. in Htdii. (e) Barnard. 491.

\c) Jackson v. Caior. 5 Vcs. jun. 688. | (/) Park. An. 47

So, now an injunction shall be granted upon an affidavit of waste committed, to inhibit any waste to be committed by tenant for life or years; as to inhibit meadow, or other pasture, not ploughed within twenty years, being ploughed; but not against a lessee, who had agreed to pay 20J. 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 (a).

So, against tenant after possibility, &c. or him who in respect of a trust, &c. is not, liable to an action of waste (a).

So, against tenant for life, at the suit of the remainder-man in fee, though there is an intermediate remainder: and if tenant for life, without impeachment of waste, or any other lessee, has cut timber, so as not to leave sufficient for repairs, the Court will restrain him from cutting any more without leave of the Court (a). Tenant for life, without impeachment of waste, will be restrained also 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 (3) ; and though he be tenant for life, with liberty to cut timber "at seasonable times," he is not to cut trees planted for ornament or shelter to the mansion-house, or sapling trees not fit to be cut or felled for timber (c).

So, he will be restrained from pulling down the antient and capital house, and not only so, but the Court will compel him to put it in the same plight in which he found it (a).

But the Court of Chancery, it is said, will not decree a tenant for life to repair, or appoint a receiver with directions to repair (d),

However, where a jointress gave leave to the next in remainder for life without impeachment of waste, to cut timber on the jointure estate, and he dying without issue, the remainder-man over m tail having acquiesced in and encouraged the so doing, he was restrained from an action of waste against the jointress (e).

Where the plaintiff and defendant in possession were tenants in common, an injunction to stay waste was refused: but on affidavit of the defendant's insolvency it was granted (/).

The Court will grant an injunction at the suit of a ground landlord to stay waste in an under-lessee, who holds by lease from the original" landlord; upon a certificate being produced of the waste (g).

So, the mortgagor may have an injunction to stay waste against the mortgagee, if he cut down timber, and do not apply the money arising from the sale in sinking the interest and principal (a). So, where the mortgagor commits waste, the Court will grant the mortgagee an injunction; for they will not suffer the mortgagor to prejudice the incumbrance (a).

(a) Com.Dig. tit. Chancery. (D. ii.)
(6) Anon. 3 Atk. S15. Garth v. Cotton.

Ibid. 7S1-SS

(c) Chamberlayne v. Drummer. 3 Br. R.

549

(d) Wood v. Gaynon. Ambl. 395
(«) Aston v. Aston, 1 Ves. 396

(/) Smallman v. Onions. 3

Br.R.&''

(g) Farrant v. Lovel. 3 Atk. ins v. Lee. Ambl. 105..

Fin*

So, though a rector may cut down timber for the repairs of the parsonage-house or chancel (but not for any common purpose), and is entitled to botes for repairing barns and out-houses belonging to the parsonage, an injunction to stay waste in cutting down timber in the church-yard, will be granted till the cause be heard (J) ; and an injunction was granted to stay waste against the widow of a rector, at the suit of the patroness, during a vacancy (c).

An injunction to stay waste may be granted in favour of a child in ventre sa mere (d).

But where a clause " without impeachment of waste," is inserted in a lease or demise for years, it will have the same effect as when it is inserted in a conveyance of an estate for life; and the Court of Chancery will restrain the import of it, in the same manner as in the case of an estate for life (e).

The Court will not grant an injunction to stay waste in digging mines, where the defendant sets up a right to the inheritance of the estate, till the answer [is come in or the defendant has made default in not putting in his answer, for such injunctions are never granted before the hearing, unless the defendant had only a term in the estate, for years, or for life, and the reversion was in the plaintiff (f).

The lord of a manor may bring a bill for an account of ore dug, or timber cut, by the defendant's testator. Indeed, as to the property of the ore or timber, it would be clear even at law that if it came to the executor's hands, trover would lie for it; and if it had been disposed of in the testator's lifetime, the executor, if assets are left, ought to answer for it: but it is stronger here, by reason that the tenant is a sort of fiduciary to the lord, and it is a breach of trust, which the law reposes in the tenant, for him to take away the property of the lord (g).

A bill, however, for a mere account of timber cut down, was dismissed by Lord Hardwicke, as being the proper subject of an action at law; but his Lordship added, that there were many instances where the Court had decreed an account in the case of mines, which they would not have done in that of timber; because the digging of mines is a sort of trade (h).

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But as to the trespass of breaking up meadow, or antient pasture ground, it dies with the person; wherefore no bill will be entertained for an account thereof (a).

Neither is every common trespass a foundation for an injunction, where it is only contingent and temporary: but if it continue so long as to become a nuisance, in such case the Court will interfere and grant an injunction to restrain the person from committing it (b).

But the Court will award a perpetual injunction to restrain waste by ploughing, burning, breaking, or sowing down lands (c).

So, an injunction shall go to restrain the defendant from injuring fish-ponds (d).

Where a bishop was directed by the Court of Chancery, to bring trover in order to try the right as to certain ore dug and disposed of by the tenant of a manor of which the bishop was lord; upon trial thereof it appeared that there never had been any mine of copper before discovered in the manor, wherefore the jury could not find that the customary tenant might by custom dig and open new copper mines; so that upon the production of the postea, the Court held that neither the tenant without the license of the lord, nor the lord without consent of the tenant, could dig in those copper mines, being new mines (e).

On motion to stay waste, a particular title must be shewn; and the motion should be made upon affidavit of the title, waste committed, and a certificate of the bill filed (/).

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