the patron be fuffered to make an ill use of such a general bond of refignation; as by extorting a compofition for tithes, procuring an annuity for his relation, or by demanding a refignation wantonly or without good caufe, 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 1 (9). [281] V. THE next kind of forfeitures are thofe by breach or non-performance of a condition annexed to the eftate, either' exprefsly by deed at it's original creation, or impliedly by law from a principle of natural reason. Both which we con❤ fidered at large in a former chapter', VI. I THEREFORE now proceed to another species of forfeiture, viz. by wafte. Waste, vaftum, is a spoil or deftruction 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 commif fion, as by pulling down a house; or it is permiffive, which is a matter of omission only, as by suffering it to fall for want of neceffary reparations. Whatever does a lafting da 1 Vern. 411. 1 Equ. Caf. Abr. 86, 87. Stra. 534. i See chap. 10. pag. 152. But in a late cafe where a bond was given to refign a rectory, when the patron's fon came of age, and before that time, to refide, and to keep the chancel and rectory in repair, as this cafe differed from the former, and it was understood that it was intended to carry it up to the house of lords, it was decided by the court of king's bench in favour of the bond, without an argument. T. R. 359. & 78. 4 (9) In an action by the incumbent for the ufe and occupation of his glebe, the defendant cannot give in evidence the fimoniacal prefentation of the plaintiff. 5 T. R. 4. But it may be given in evidence by a defendant who is fued for the tithes, Hob. 168. m mage to the freehold or inheritance is wafte'. Therefore removing wainscot, floors, or other things once fixed to the freehold of a house, is waste (10). If a house be destroyed by tempeft, lightning, or the like, which is the act of providence, it is no wafte: but otherwife, if the house be burnt by the careleffnefs 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 (11). 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°(12). 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 for that reason considered n Co. Litt. 53. 4 Rep. 62. J Hetl. 35. (10) The law upon this fubject has been relaxed; for during the term the tenant may take away chimney-pieces or wainscot, which he has put up; but not after the term, for he would then be a trefpaffer. 1 Atk. 477. A fire-engine erected by tenant for life fhall go to his executor. 3 Atk. 13. But the rule is different between the heir and executor, with regard to fixtures upon the inheritance that defcends to the heir. H. Bl. 258. (11) But if a leffee covenants to pay rent, and to repair, with an exprefs exception of cafualties by fire, he may be obliged to pay rent during the whole term, though the premises are burnt down by accident, and never rebuilt by the leffor. 1 T. R. 310. (12) If during the eftate of a mere tenant for life, timber is fevered either by accident or by wrong, it belongs to the first perfon who has a vefted eftate of inheritance. But where there are intermediate contingent eftates of inheritance, and the timber is cut down by a combination between the tenant for life and the perfon who has the next vefted cftate of inheritance; or if the tenant for life has himself fuch eftate and fells timber; in thefe cafes the chancellor will order it to be preferved for him who has the first contingent eftate of inheritance under the fettlement. 3 Cox's P. Wms. 267. 3 Woodd. 400. as timber; and to cut down fuch trees, or top them, or do any other act whereby the timber may decay, is wafte". But [282] underwood the tenant may cut down at any seasonable time that he pleases; and may take fufficient eftovers of common right for houfe-bote and cart-bote; unless reftrained (which is usual) by particular covenants or exceptions ". The converfion of land from one fpecies to another is waste. To convert wood, meadow, or pafture, into arable; to turn arable, meadow, or pasture, 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 courfe of hufbandry, but the evidence of the eftate; when fuch a clofe, which is conveyed and described as pafture, is found to be arable, and e converfo. And the fame rule is obferved, for the fame reason, 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 inheritancev: but, if the pits or mines were open before, it is no wafte 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 houfes, in timber, and in land. Though, as was before faid, whatever elfe tends to the deftruction, or depreciating the value of the inheritance, is confidered by the law as waste. 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 diffipaverit, "aut infigni detrimento deterius fecerit, privabitur*" But in our antient common law the rule was by no means fo large : P Co. Litt. 53. 92 Roll Abr. 817. r Co. Litt. 41. ■ Hob. 296. ↑ 3 Inft. 53. u 1 Lev. 309. w Hob. 295. for for not only he that was feifed of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, fave only in three perfons; guardian in chivalry, tenant in dower, and tenant by the curtefy ; and not in tenant for life or years 2. And the reason of the diverfity was, that the estate 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 demife and leafe of the owner of the fee, and therefore he might have provided against the committing of wafte by his leffee; and if he did not, it was his own default. But, in favour of the owners of the inheritance, the ftatutes of Marlbridge 52 Hen. III. c. 23. and of Glocefter 6 Edw. I. c. 5. provided that the writ of waste shall not only lie against tenants by the law of England, (or curtesy) and thofe 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 less estate, have been punishable or liable to be impeached for wafte, both voluntary and permitive; unless their leases be made, as fometimes they are, without impeachment of waste, abfque impetitione vafti; that is, with a provision or protection that no man fhall impetere, or fue him, for wafte committed (13). But tenant y It was however a doubt whether wafte was punishable at the common law in tenant by the curtefy. Regit. 72. Bro, Abr. tit. wafte, 88. 2 Inft. 30L [283] (13) A tenant for life without impeachment of waste has as full power of cutting down timber, and of opening new mines for his own use, as if he had an eftate of inheritance; and is in the fame manner entitled to the timber, if severed by others. 1 T. R. 56. Harg. Co. Litt. 220. But although fuch a tenant for life may commit wafte for his own benefit, yet he may be restrained by an injunction out of the court of chancery from making spoil and deftruction upon the estate. This diftinction was first introduced in the çafe of lord Barnard, who was tenant for life without impeachment of wafte, with remainder to his eldest son in tail; and having conceived a displeasure against his fon, from motives of spleen, began to the purchase, his heir may either waive or accept the estate at his option. In like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heirs may waive it after him. Perfons alfo, who purchase or convey under durefs, may athrm or avoid fuch tranfaction, whenever the duress is ceased. For all these are under the protection of the law; which will not fuffer them to be impofed upon, through the imbecillity of their prefent condition; fo that their acts are only binding, in case they be afterwards agreed to, when fuch imbecillity ceases. Yet the guardians or committees of a lunatic, by the ftatute of 11 Geo. III. c. 20. are impowered to renew in his right, under the directions of the court of chancery, any leafe for lives or years, and apply the profits of fuch renewal for the benefit of fuch lunatic, his heirs, or executors. THE cafe of a feme-covert is fomewhat different. She may purchase an estate without the confent of her husband, and the conveyance is good during the coverture, till he avoids [293] it by fome act declaring his diffent. And, though he does nothing to avoid it, or even if he actually consents, the femecovert herself may, after the death of her husband, waive or disagree to the fame: nay, even her heirs may waive it after her, if the dies before her husband, or if in her widowhood fhe does nothing to exprefs her confent or agreement'. But the conveyance or other contract of a feme-covert (except by some matter of record) is abfolutely void, and not merely voidable"; and therefore cannot be affirmed or made good by any fubfequent agreement. THE cafe of an alien born is alfo peculiar. For he may purchase any thing; but after purchase he can hold nothing except a leafe for years of a houfe for convenience of mer g Co. Litt. 2. 12 Int. 483. 5 Rep. 119. * Co. Litt. 3. Ibid. Perkins. 154. 1 Sid. 120. chandize, |