Page images

at the common law, after judgment obtained in any action real", 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 cases the demandant may be juftly apprehensive, that the tenant may make waste or etrepement pending the suit, well knowing the weakness of his title, therefore the statute of Glocestergave another writ of

efirepenient, pendente placito, commanding the sheriff firmly 5 226 ) to inhibit the tenant « ne faciat vaffum vel eftrepamentum pen

dente plocito dicto indisculo 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, if necessity require, he may take the pale comitatus to his aslistance. So odious in the light of the Jaw is waste and destruction'. In suing out these two writs this difference was formerly observed ; that in actions merely poffessory, where no damages are recovered, a writ of ejtrepe. ment might be had at any time pendente lite, nay even at the time of suing out the original writ, or first process : but, in an action where damages were recovered, the demandant could only have a writ of efirepiment, if he was apprehensive of waste after verdict had“; for, with regard to waste done before the verdict was given, it was presumed the jury would consider that in aflessing the quantum of damages. But now it seems to be held, by an equitable construction of the statute of Glocester, and in advancement of the remedy, that a writ of estrepement, to prevent waste, may be had in every stage, as well of such actions wherein damages are recovered, as of those wherein only poffesion is had of the lands; for peradventure, faith the law, the tenant may not be of ability to satisfy the demandant his rull damages ". And therefore, now, in an action of waste itself, to recover the place wasted and also damages, a writ of estrepement will lie, as well before as after judgment. For the plaintiff cannot recover damages for more walle than is contained in his original complaint : neither is he at liberty to allign or give in evidence any waste 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 farther remedial'. If a writ of eftrepement, 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 [ 227 ) can be, non fecit vastım çontra prohibitionem : and, if upon verdict it be found that he did, the plaintiff may recover coats and damages, 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 9. But not so, if it be directed to the sheriff, for then it is incumbent upon him to prevent the eftrepement absolutely, even by raising the polle comitatus, if it can be done no other way.

h z In A. 328.
i 6 Edw I. c. 1;.
ki Rigil. 77

1 2 Inft. 329.
* F. N. B. 60, 61.
Ibid. 61,


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 stay walte, until the defendant shall have put in his answer, and the court shall thereupon make farther order. Which is now become the most usual way of preventing waite.

2. A writ of wnsie is also an action, partly founded upon the common law and partly upon the flatute of Glocester'; and may be brought by him who hath the immediate estate of 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 Itatute · Westm. 2. by one tenant in common of the inherit

os Rep. 115.

Moor. ico. 4 Heb. 85.

16 Ed. I. c. S.
•13 Ed. I. 6. 22.


ance against another, who makes waste in the estate holden in common. The equity of which statute extends to joints tenants, but not to coparceners : because by the old law com parceners might make partition, whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint-tenants could not; and there. fore the statute gave them this remedy, compelling the defendant either to make partition, and take the place wasted to his own share, or to give security not to commit any farther

wastet. But these tenants in common and joint-tenants are [ 228 ] not liable to the penalties of the statute of Glocester, which

extends only to such as have life-eftates, and do waste to the prejudice of the inheritance. The waste however must be something considerable; for if it amount only to twelve pence, or some such petty sum, the plaintiff shall not recover in an action of waste: nam de minimis non curat lex,

This a&tion of waste is a mixed action ; partly real, so far
as it recovers land, and partly personal, fo far as it recovers
damages. For it is brought for both those purposes; and, if
the waste be proved, the plaintiff shall recover the thing or
place wasted, and also treble damages by the statute of Glo-
cefter. The writ of waste calls upon the tenant to appear
and shew cause, why he hath committed waste and destruction
in the place named, ad exhaeredationem, to the disinherison,
of the plaintiff W. And if the defendant makes default, or
does not appear at the day assigned him, then the sheriff is
to take with him a jury of twelve men, and go in person to
the place alleged to be wasted, and there inquire of the waste
done, and the damages; and make a return or report of
the same to the court, upon which report the judgment is
founded *. For the law will not suffer so heavy a judgment,
as the forfeiture and treble damages, to be passed upon a
mere default, without full assurance that the fact is according
as it is stated in the writ. But if the defendant appears to
the writ, and afterwards suffers judgment to go against him
t 2 Inft. 403, 404.

WF. N.B. 55.
N Finch. L. 29,

* Puph. 24.


by default, or upon a nihil dicit, (when he makes no answer, puts in no plea, in defence,) this amounts to a confession of the waste; since, having once appeared, he cannot now pretend ignorance of the charge. Now therefore the sheriff shall not go to the place to inquire of the fact, whether any waste has, or has not, been committed ; for this is already ascertained by the filent confession of the defendant: but he shall only, as in defaults upon other actions, make inquiry of the quantum of damages, The defendant, on the trial, may give in evidence any thing that proves there [ 229 1 was no waste committed, as that the destruction happened by lightning, tempest, the king's enemies, or other inevitable accident 2(3). But it is no defence to say, that a stranger did the waste, for against him the plaintiff hath no remedy: though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act ?

When the waste and damages are thus ascertained, either by confession, verdict, or inquiry of the sheriff, judginent is given, in pursuance of the statute of Glocester, c. 5. that the plaintiff shall recover the place wasted; for which he has immediately a writ of frifin, provided the particular estate bę ftill subfifting, (for, if it be expired, there can be no forfeiture of the land,) and also that the plaintiff shall recover treble the damages aflessed by the jury; which he must obtain in the same manner as all other damages, in actions personal and mixed, are obtained, whether the particular estate be expired, or still in being. y Cro. Eliz. 18. 290.

a Law of nifi prius. 112. 3 Co. Litt. 53.

(3) But the destruction of a house by fire, unless in convenient time repaired, is waste. So between landlord and tenant, though there be no covenant to repair or rebuild, the tenant is subject to waste in general; and, if the house be burnt by fire, he mult rebuild. I Vej. 462. .



CUBTRACTION, which is the fifth species of inju. D ries affecting a man's real property, happens when any person who owes any suit, duty, custom, or service to another, withdraws or neglects to perform it. It differs from a disleisin, in that this is committed without any denial of the right, consisting merely in non-performance; that strikes at the very title of the party injured, and amounts to an oufter or actual difpoffefsion. Subtraction however, being clearly an injury, is remediable by due course of law: but the re. medy differs according to the nature of the services; whether they be due by virtue of any tenure, or by custom only.

1. PEALTY, suit of court, and rent, are duties and fervices usually issuing and arising ratione tenurae, being the conditions upon which the antient lords granted out their lands to their feudatories : whereby it was stipulated, that they and their heirs should take the oath of fealty or fidelity to their lord, which was the feodal bond or commune vinculum between lord and tenant; that they should do suit, or duly attend and follow the lord's courts, and there from time to time give their assistance, by serving on juries, either to de cide the property of their neighbours in the court-baron, or correct their misdemesnors in the court-leet; and, lastly, that they should yield to the lord certain annual stated returns, in military attendance, in provisions, in arms, in matters of ornament or pleasure, in rustic employments or


« PreviousContinue »