be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance (n). Timber also is part of the inheritance (o)(33). Such are oak, ash, and elm, in all places; and in some particular countries, by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste (p). But underwood the tenant may cut [282] down at any seasonable time that he pleases (q); and may take sufficient estovers (34) of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions (r). The conversion of land from one species to another is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pasture, into woodland; or to turn arable or woodland into meadow or pasture, are all of them waste (s). For, as Sir Edward Coke observes (t), it not only changes the course of husbandry, but the evidence of the estate; when such a close, which is conveyed and described as pasture, is found to be arable and e converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value (u). To open the land to search for mines of metal, coal, &c. is waste; for that is a detriment to the inheritance (v) (35); but, if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use (w); for it (w) Hob. 295. ought to be liable to have that taken away which cannot be replaced, merely because he may possibly recover (what others may deem) an equivalent in money. (Berkeley v. Brymer, 9 Ves. 356.) But, although Lord Nottingham, (in Tonson v. Walker, 3 Swanst. 679,) intimated that a probability of right might authorise an application for an injunction against waste, this was only an obiter dictum: it is a general rule that, in order to sustain a motion in restraint of waste, the party making the application must set forth and verify an express and positive title in himself, (or in those whose interests he has to support; see ante, note (27) ;) an hypothetical or disputed title will not do. (Davis v. Leo, 6 Ves. 787; Whiteleggv. Blacklegg, 1 Brown, 57.) A plaintiff who, after failing in ejectment, comes to equity to restrain waste, stating that the defendant claims by adverse title, it has been said, states himself out of court. (Pillsworth v. Hopton, 6 Ves. 51.) This dictum may perhaps admit occasional qualification; (see Norway v. Rowe, 19 Ves. 154; Kinder v. Jones, 17 Ves. 110; Hodgson v. Dean, 2 Sim. & Stu. 224;) but, clearly, where the title is disputed as between a devisee and the heir-at-law, neither an injunction to stay waste, nor a receiver, will be granted on the application of either party. (Jones v. Jones, 3 Meriv. 174; Smith v. Collyer, 8 Ves. 90.) It is not, however, to be understood, that a plaintiff, who, though he has no legal title, has concluded a contract authorising him to call upon the court to clothe his possession with the legal title, cannot sustain a motion in restraint of waste; provided the defendant's answer admits such contract. (Norway v. Rowe, 19 Ves. 155.) In general cases, for the purpose of dissolving an injunction granted ex parte, the established practice is to give credit to the answer when it comes in, if it denies all the circumstances upon which the equity of the plaintiff's application rests, and not to allow affidavits to be read in contradiction to such answer: (Clapham v. White, 8 Ves. 36:) but, an exception to this rule is made in cases of alleged irremediable waste; (Potter v. Chapman, Ambl. 99;) and in cases analogous to waste; (Peacock v. Peacock, 16 Ves. 51; Gibbs v. Cole, 3 P. Wms. 254;) yet, even in such cases, the plaintiff's affidavits must not go to the question of title, but be confined to the question of fact as to waste done or threatened. (Morphett v. Jones, 19 Ves. 351; Norway v. Rowe, 19 Ves. 153; Countess of Strathmore v. Bowes, 1 Cox, 264.) And as to matters which the plaintiff was acquainted with when he filed his bill, he ought at that time to have stated them upon affidavit, in order to give the defendant an opportunity of explaining or denying them by his answer; (Lawson v. Morgan, 1 Price, 306;) though of course, acts of waste done subsequently to the filing of the bill would be entitled to a distinct consideration: (Smythe v. Smythe, 1 Swanst. 253 :) and where allegations in an injunction bill have been neither admitted nor denied in the answer, there can be no surprise on the defendant; and it should seem, that affidavits in support of those allegations may be read, though they were not filed till after the answer was put in. (Morgan v. Goode, 3 Meriv. 11; Jefferies v. Smith, 1 Jac. & Walk. 300; Barrett v. Tickell, Jacob's Rep. 155; Taggart v. Hewlett, 1 Meriv. 499.) Who are liable for committing waste. is now become the mere annual profit of the land. These three are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value of the inheritance, is considered by the law as waste. Let us next see, who are liable to be punished for committing waste. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vassals or feudatories; "si vasallus feudum dissipa Neither vague apprehension of an intention to commit waste; nor information given of such intention by a third person, who merely states his belief, but not the grounds of his belief, will sustain an application for an injunction. The affidavits should go (not necessarily, indeed, to positive acts, but, at least,) to explicit threats. A court of equity never grants an injunction on the notion that it will do no harm to the defendant, if he does not intend to commit the act in question; an injunction will not issue unless some positive reasons are shown to call for it. (Hannay v. M'Entire, 11 Ves. 54; Coffin v. Coffin, Jacob's Rep. 72.) It was formerly held, that an injunction ought not to go against a person who was a mere stranger, and who consequently might, by summary legal process, be turned out of possession of premises which he was injuring. Such a person, it was said, was a trespasser; but, there not being any privity of estate, waste, strictly speaking, could not be alleged against him. (Mortimer v. Cottrell, 2 Cox, 205.) But this technical rule is overturned; it is now established by numerous precedents, that, wherever a defendant is taking the substance of a plaintiff's inheritance, or committing or threatening irremediable mischief, equity ought to grant an injunction; although the acts are such as, in correct technical denomination, ought rather to be termed trespasses than waste. (Mitchell v. Dors, 6 Ves. 147; Hanson v. Gardiner, 7 Ves. 309; Twort v. Twort, 16 Ves. 130; Earl Cowper v. Baker, 17 Ves. 128; Thomas v. Oakley, 18 Ves. 186.) Any collusion, by which the legal remedies against waste may be evaded, will give to courts of equity a jurisdiction over such cases, often beyond, and even contrary to, the rules of law: (Garth v. Cotton, 3 Atk. 755 :) thus, trustees to preserve contingent remainders will be prohibited from joining with the tenant for life in the destruction of that estate, for the purpose of bringing forward a remainder, and thereby enabling him to gain a property in timber, so as to defeat contingent remainder-men; and wherever there is an executory devise over, after an estate for life subject to impeachment of waste, equity will not permit timber to be cut. (Stansfield v. Habergham, 10 Ves. 278; Oxenden v. Lord Compton, 2 Ves. jun. 71.) So though the property of timber severed during the estate of a strict tenant for life vests in the first owner of the inheritance; (see ante, note to p. 281;) yet, where a party having the reversion in fee, is, by settlement, made tenant for life, if he, in fraud of that settlement, cuts timber, equity will take care that the property shall be restored to, and carried throughout all the uses of, the settlement. (Powlett v. Duchess of Bolton, 3 Ves. 377; Williams v. Duke of Bolton, 1 Cox, 73.) "verit, aut insigni detrimento deterius fecerit, privabi“tur” (x). But, in our ancient common law, the rule was by no means so large; for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the *curtesy (y); and not in tenant for life or years (z). [283] And the reason of the diversity 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 demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and if he did not, it was his own default. But in favour of the owners of the inheritance, the statutes of Marlbridge 52 Hen. III. c. 23, and of Gloucester 6 Edw. I. c. 5, provided that the writ of waste (36) shall not only lie against tenants by the law of England, (or curtesy,) 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 past, all tenants merely for life (37) or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him for waste committed. But tenant in tail after possibility of issue extinct is not impeachable for waste; because his estate was at its creation an estate of inheritance, and so not within the statutes (a) (38). Neither does an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; because against them the debtor may set off the damages in account (b): but it seems reasonable that it should lie for the reversioner, expectant on Punishment for waste. the determination of the debtor's own estate, or of these estates derived from the debtor (c). The punishment for waste committed was, by common law and the statute of Marlbridge, only single damages (d); except in the case of a guardian, who also forfeited his wardship (e) by the provisions of the great charter (f): but the statute of Gloucester directs, that the other four species of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages, to him that hath the inheritance. The expression of the statute is," he shall "forfeit the thing which he hath wasted;" and it hath been determined that under these words the place is also included (g). And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if [*284] in several rooms of a *house, the whole house shall be forfeited (h); because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste 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 rest,) that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner (i). VII. Of copyholds-by breach of the customs of the manor. VII. A seventh species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste whereupon the lord may seise them without any presentment by the homage (k); but also to peculiar forfeitures annexed to this species of tenure, which are incurred by the breach of either the general customs 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 vassals (39), the marks of feodal dominion continue much the strongest upon this mode of property. Most of the offences which occasioned (c) F. N. B. 58. (e) Ibid. 300. (f) 9 Hen. III. c. 4. (g) 2 Inst. 303. (h) Co. Litt. 54. (i) 2 Inst. 304. (k) 2 Ventr. 38; Cro. Eliz. 499. (39) See ante, pp. 92, 95. |