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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 (c).”
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 (e).—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 (8).
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
(a) Bull. N. P. 119.
(e) Co. Lit. 54. b. (6) Ibid. 120.
(f) Com. Dig. tit. Pleader. (3 0. 11.) (s) Com, Dig. tit. Pleader. (3 0.7.) Georges v. Stanfield. Cro. Eliz. 593. (d) i Inst. 282.
(8) Com. Dig. cit. Pleader. (3 0. 12.)
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).
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 (6).
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 (c).
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 (e).
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 have 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 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 distringas juratorum, that the jury have viewed; or that he was present at the view (f).
If, however, the waste be assigned in a wood sparsim, it is sufficient
(a) Com. Dig. tit. Pleader. (3 0. 4.)
(d) Com. Dig. tit. Pleader. (3 0. 10.)
if the jury view the wood, though they do not enter into it. So, if it be in several rooms of a house,
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 (6).
By stat. 8 & 9 W. 3. c. 11. s. 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 (f).
(a) 3 Bl. Com. 229.
(6) Governors of Harrow School v. Alderton. 2. Bos. and Pul. 86.
(c) Jesus College v. Bloome. 3 Atk. 263. (d) Garth v. Cotton. Ibid. 752-57.
(e) Whitfield v. Bewit. 2 P. Wms. 241.
(f) Bishop of Winchester v. Knight. 1 P. Wms. 406. aff. Jesus College v. Bloome. 3 Atk. 362. neg.
Section II. Of the Action upon the Case in the Nature of
II aste. 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 (6).
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 7. 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 (b).
(a) Gibson v. Wells. i Bos. and Pul. N.
(6) West v. Treude. Cro. Car. 187.
(e) i Inst. 57. a.
Section III. Of the Remedies in Equity in the Case of
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. (b).
With respect to threatened or impending waste; the act of sending a surveyor to mark out trees, is a sufficient ground for an injunc
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 (e).
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 (f).
(a) Com. Dig. tit. Chancery. (D. 11.)
(d) Gibson v. Smith. 2 Atk. 182.