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CHAPTER THE FOURTEENTH.
THE fourth species of injury, that may be offered to one's real property, is by -waste, or destruction on land* and tenements. What fliall be called waste was considered at large in a former volume", as it was a means of forfeiture, and thereby of transferring the property of real estates. I shall therefore here only beg leave to remind the student, that waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demolishing not the temporary profits only, but the very substance of the thing; thereby rendering it wild and desolate; which the common law expresses very significantly by the word vastum: and that this vastum, or waste, is either voluntary, or permissive; the one by an actual and designed demolition of the lands, woods, and houses; the other arising from mere negligence, and want of sufficient care in reparations, fences, and the like. So that my only business is at present to shew, to whom this waste is an injury; and of course who is entitled to any, and what, remedy by action.
I. The persons, who may be injured by waste, are such as havj: some interest in the estate wasted; for if a man be the absolute tenant in see-simple (1), without any incumbrance or
•See vol. II. ch. iS.
(1) A tenant in fee-tail has the fame uncontrolled and unlimited power in commuting wallej as a tenant in fee-simple.
charge charge on the premises, he may commit whatever waste his own indiscretion may prompt him to, without being impeachable or accountable for it to any one. And, though his heir is sure to be the sufferer, yet nemo est kacres viventis.: no man is certain of succeeding him, as well on account of the uncertainty which shall die f rst, as also because he has it in his own power to constitute what heir lie pleases, according to the civil law notion of an hacres tutus and an kaerczfactus: or, in the more accurate phraseology of our English law, he may aliene or devise his estate to whomever he thinks proper, and by such alienation or devise may disinherit his heir at law. Into whose hands soever therefore the! estate wasted comes, after a tenant in fee-simple, though the waste is undoubtedly damnum, it is damnum abfque injuria.
One species of interest, which is injured by waste, is that of a person who has a right of common in the place wasted; especially if it be common of ejlovers, or a right of cutting and carrying away wood for house-bote, ploughbote, C5V. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, amounting to no less than a disseisin of his common of estovers, if he chooses so to consider it; for which he has his remedy to recover possession and damages by assise, if entitled to a freehold in such common: but if he has only a chattel interest, then he can only recover damages by an action on the cafe for this waste and destruction of the woods, out of which his estovers were to issueb.
But the most usual and important interest, that is hurt by this commission of waste, is that of him who hath the remainder orreversion of the inheritance after a particular estate for life or years in being. Here, if the particular tenant, (be it the tenant in dower or by curtesy, who was answerable for waste at the common law ", or the lessee for life or years,
* F. N. B. 59. 9 Rep. 112. «1 lest. 159.
who was first, made liable by the statutes of Marlbridged and of Glocester*,) if the particular tenant, I fay, commits or suffers any waste, it is a manifest injury to him that has the inheritance, as it tends to mangle and dismember it of it's most desirable incidents and ornaments, among which timber and houses may justly be reckoned the principal. To him therefore in remainder or reversion, to whom the inheritance appertains in expectancy f, the law hath given an adequate remedy. For he, who hath the remainder for life only, is not entitled to sue for waste; since his interest may never perhaps come into possession, and then he hath suffered no injury (2). Yet a parson, vicar, arch-deacon, prebendary, and the like, who are seised in right of their churches of any remainder or reversion, may have an action of waste; for they, in many cafes, have for the benefit of the church and of the successor a fee-simple qualified: and yet, as they are not seised in their own right, the writ of waste shall not say< ad exhaeredationem ipfius, as for other tenants in fee-simple $ but ad exhaeredationem ecclestae, in whose right the fee-simple is liolden <='.
II. The redress for this injury of waste is of two kinds; preventive, and corrective: the former of which is by writ of estrepement, the latter by that of waste.
1. Estrepement is an old French word, signifying the fame as waste or extirpation: and the writ of estrepement lay
* 5* Hen. 1IF. c. 23. f Co iitt. 53.
« 6 Edw. I. 0 5. E Ibid. 34.I.
(2) No person is entitled to an action of waste against a tenant for life, but he who has the immediate estate of inheritance in remainder or reversion, expectant upon the estate for life. If between the estate of the tenant for life who commits waste, and the subsequent estate of inheritance, there is interposed an estate of freehold to any person in ejfe, then, during the continuance of such interposed estate, the action of waste is suspended; and if the first tenant for life dies during the continuance of such interposed estate, the action is gone for ever. Harg. Co. Litt, 218. 6.
13 at at the common law, after judgment obtained in any action reals, and before possession was delivered by the sheriff; to stop any waste which the vanquished party might be tempted to commit in lands, which were determined to be no longer his. But as in some cafes the demandant may be justly apprehensive, that the tenant may make waste or ejlrepemcfit pending the suit, well knowing the weakness of his title, therefore the statute of Glocester' gave another writ of efirepement, pendente placita, commanding the stieriff firmly T 22^ 1 to inhibit the tenant "nefaciat vajlumvel tstrepamentum pen** denseplncito dicto indiseujso k." And, by virtue of either of these writs the sheriff may resist them that do, or offer to do waste; and, if otherwise he cannot prevent them, he may lawfully imprison the wasters, or make a warrant to others to imprison them: or, is necessity require, he may take the pijp comiintus to his assistance. So odious in the sight of the law is waste and destruction '. In suin,g out these two writs this difference was formerly observed; that in actions merely possessory, where no damages are recovered, a writ of ejlrepe^ ment might be had at any time pendetite lite, nay even at the time of suing out the original writ, or first process: but, in au action where damages were recovered, the demandant could only have a writ of eflrepement, if he was apprehensive of waste after verdict had m; for, with regard to waste done before the verdict was given, it was presumed the jury would consider that in assessing the quantum of damages. 15ut now it seems to be held, by an equitable construction of the statute of Glocester, and in advancement of the remedy, that a writ pf ejlrepetnent, to prevent waste, may be had in every stage, as well of such actions wherein damages arc recovered, as of those wherein only possession is had of the lands; for perrdventure, faith the law, the tenant may not be of ability to satisfy the demandant his full damages". And therefore, now, in an action of waste itself, to recover the place wasted and also damages, a writ of ejirepement will lie, as well before as
l> i Inst. 32?. I I Inst. 319.
i 6 Edw I. c. IJ. »' F. N. B. 60, 61,
k t-pfi- 77. "IM- 6«.
after after judgment. For the plaintiff cannot recover damages for more wade than is contained in his original complaint; neither is he at liberty to assign or give in evidence any wade made after the suing out of the writ: it is therefore reasonable that he should have this writ of preventive justice, since he is in his present suit debarred of any faither remedial0. If a writ of ejlrepement, forbidding waste, be directed and delivered to the tenant himself, as it may be, and he afterwards proceeds to commit waste, an action may be carried on upon the foundation of this writ •, wherein the only plea of the tenant s 227 J can be, non fecit vastuvi centra prokibitionem; and, if upon verdict it be found that he did, the plaintiff may recover costs and damagesp, or the party may proceed to punish the defendant for the contempt: for if, after the writ directed and delivered to the tenant or his servants, they proceed to commit waste, the court will imprison them for this contempt of the writ 1. But not so, if it be directed to the sheriff, for then it is incumbent upon him to prevent the ejirepement absolutely, even by raising the pojse comitatusy if it can be done no other way.
Besides this preventive redress at common law, the courts of equity, upon bill exhibited therein, complaining of waste and destruction, will, grant an injunction or order to staywaste, until the defendant shall have put in his answer, and th« court shall thereupon make farther order. Which is now become the most usual way of preventing waste.
2. A Writ of ivnjle is also an action, partly sounded upon the common law and partly upon the statute of Glocester'; and may be brought by him who hath the immediate estate os inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by the curtesy, or tenant for years. This action is also maintainable in pursuance of statute • Westm. 2. by one tenant in common of the inherit
<• 5 Rep. 115. '6 ti. I. c. J.
f Moor. ico. * 13 £d. I. c. 22.
4 Hob. 85.