at any future time to the living, is direct and palpable fimony. But, 3. It is held that for a father to purchase such a presentation, in order to provide for his fon, is not fimony: for the fon is not concerned in the bargain, and the father is by nature bound to make a provision for him ". 4. That if a fimoniacal contract be made with the patron, the clerk not being privy thereto, the presentation for that turn fhall indeed devolve to the crown, as a punishment of the guilty patron; but the clerk, who is innocent, does not incur any disability or forfeiture 6. 5. That bonds given to pay money to charitable ufes, on receiving a presentation to a living, are not fimoniacal, provided the patron or his relations be not benefited thereby ; for this is no corrupt confideration, moving to the patron. 6. That bonds of refignation, in case of non-refidence or taking any other living, are not fimoniacal; there being no corrupt confideration herein, but fuch only as is for the good of the public. So alfo bonds to refign, when the patron's fon comes to canonical age, are legal; upon the reafon before given, that the father is bound to provide for his fonf. 7. Lastly, general bonds to resign at the patron's requeft are held to be legal: for they may poffibly be given for one of the legal confiderations beforementioned; and where there is a poffibility that a transaction may be fair, the law will not fuppofe it iniquitous without proof. But, if the party can prove the contract to have been a corrupt one, fuch proof will be admitted, in order to fhew the bond fimoniacal, and therefore void. Neither will the patron be fuffered to make an ill use of such a general bond of refignation; as by extorting a composition for tithes, procuring an annuity for his relation, or by demanding a refignation wantonly or without good cause, fuch as is approved by the law; as, for the benefit of his own fon, or on account of non-refidence, plurality of livings, or grofs immorality in the incumbent ".

V. THE next kind of forfeitures are those by breach or non-performance of a condition annexed to the estate, either exprefsly by deed at it's original creation, or impliedly by law from a principle of natural reason. Both which we confidered at large in a former chapter i.

VI. I THEREFORE now proceed to another species of forfeiture, viz. by wafte. Wafte, vaftum, is a fpoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the difherifon of him that hath the remainder or reverfion in fee-fimple or fee-tail *.

WASTE is either voluntary, which is a crime of commiffion, as by pulling down a house; or it is permissive, which is a matter of omiffion only, as by fuffering it to fall for want of neceffary reparations. Whatever does a lafting damage to the freehold or inheritance is waste'. Therefore removing wainscot, floors, or other things once fixed to the freehold of a houfe, is waftem. If a houfe be destroyed by tempeft, lightening, or the like, which is the act of providence, it is no waste : but otherwise, if the house be burnt by the careleffness or negligence of the leffee; though now by the ftatute 6 Ann. c. 31. no action will lie against a tenant for an accident of this kind. Wafte may also be committed in ponds, dove-houses, warrens, and the like; by fo reducing the number of the creatures therein, that there will not be fufficient for the reverfioner when he comes to the inheritance". Timber alfo is part of the inheritance". Such are oak, afh, and elm in all places: and in fome particular countries, by local cuftom, where other trees are generally used for building, they are thereupon confidered as timber; and to cut down fuch trees, or top them, or do any other act whereby the timber may decay, is wafte P. But underwood the tenant may cut down at any seasonable timę

i See chap. 10. pag. 152.

k Co. Litt. 53.

1 Hetl. 35.

- 4 Rep. 64.

n Co. Litt. 53.

4 Rep. 62.

➤ Co. Litt. 53.

that

that he pleases; and may take fufficient eftovers of common right for house-bote and cart-bote; unless reftrained (which is ufual) by particular covenants or exceptions". The converfion of land from one fpecies to another is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pafture, into woodland; or to turn arable or woodland into meadow or pafture; are all of them wafte. For, as fir Edward Coke obferves, it not only changes the course of husbandry, but the evidence of the eftate; when such a clofe, which is conveyed and described as pasture, is found to be arable, and e converfo. And the fame rule is observed, for the fame reafon, with regard to converting one fpecies of edifice into another, even though it is improved in it's value ". To open the land to fearch for mines of metal, coal, &c, is wafte; for that is a detriment to the inheritance: but, if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own ufe ; for it is now become the mere annual profit of the land. These three are the general heads of wafte, viz. in houses, in timber, and in land. Though, as was before faid, whatever else tends to the deftruction, or depreciating the value, of the inheritance, is confidered by the law as wafte.

W

LET us next fee, who are liable to be punished for committing wafte. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vafals or feudatories; "fi vafallus feudum dissipaverit, "aut infigni detrimento deterius fecerit, privabitur *.” But in our antient common law the rule was by no means fo large: for not only he that was feifed of an eftate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three perfons; guardian in chivalry, tenant in dower, and tenant by the cur

a

tefy; and not in tenant for life or years. And the reafon of the diverfity was, that the eftate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and leafe of the owner of the fee, and therefore he might have provided against the committing of waste by his leffee; and if he did not, it was his own default. But, in favour of the owners of the inheritance, the statutes of Marlbridge and Glocefter provided, that the writ of wafte fhall not only lie against tenants by the law of England, (or curtefy) 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 paft, all tenants merely for life, or for any lefs eftate (except tenants by ftatute merchant, ftatute ftaple, recognizance, or elegit, against whom the debtor may fet off the damages in account ) have been punifhable or liable to be impeached for wafte, both voluntary and permiffive; unless their leafes be made, as sometimes they are, without impeachment of wafte, abfque impetitione vafti; that is, with a provifion or protection that no man fhall impetere, or fue him, for wafte committed.

e

THE punishment for wafte committed was, by common law and the statute of Marlbridge, only fingle damages d; except in the cafe of a guardian, who alfo forfeited his wardfhip by the provisions of the great charterf: but the statute of Glocefter directs, that the other four fpecies of tenants fhall lofe and forfeit the place wherein the wafte is committed, and also treble damages, to him that hath the inheritance. The expreffion of the statute is," he shall forfeit "the thing which he hath wafted;" and it hath been determined, that under these words the place is also included %. And if wafte be done fparfim, or here and there, all over a wood, the whole wood shall be recovered; or if in feveral rooms of a

house, the whole house shall be forfeited; because it is impracticable for the reverfioner to enjoy only the identical places wafted, when lying interfperfed with the other. But if wafte be done only in one end of a wood (or perhaps in one room of a house, if that can be conveniently separated from the reft) that part only is the locus vaftatus, or thing wafted, and that only fhall be forfeited to the reverfioner 1.

VII. A SEVENTH fpecies of forfeiture is that of copyhold eftates, by breach of the customs of the manor. Copyhold eftates are not only liable to the fame forfeitures as those which are held in focage, for treason, felony, alienation, and wafte; whereupon the lord may seize them without any prefentment by the homage ; but also to peculiar forfeitures, annexed to this fpecies of tenure, which are incurred by the breach of either the general cuftoms of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vasals, the marks of feodal dominion continue much the strongest upon this mode of property. Moft of the offences, which occafioned a refumption of the fief by the feodal law, and were denominated feloniae, per quas vafallus amitteret feudum ', ftill continue to be causes of forfeiture in many of our modern copyholds. As, by fubtraction of fuit and service"; fi dominum defervire noluerit: by difclaiming to hold of the lord, or swearing himself not his copyholder ° ; fi dominum ejuravit, i. e. negavit se a domino feudum habere: by neglect to be admitted tenant within a year and a day a ; fi per annum et diem ceffaverit in petenda inveftitura: by contumacy in not appearing in court after three proclamations; fi a domino ter citatus non comparuerit: or by refufing, when fworn of the homage, to present the truth according to his oath ";