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at the common law, after judgment obtained in any action. real, and before possession was delivered by the sheriff; to ftop any wafte which the vanquished party might be tempted to commit in lands, which were determined to be no longer his. But as in fome cafes the demandant may be juftly apprehenfive, that the tenant may make wafte or eftrepement pending the fuit, well knowing the weakness of his title, therefore the ftatute of Glocefter gave another writ of eftrepement, pendente placito, commanding the fheriff firmly [226] to inhibit the tenant "ne faciat vaflum vel eftrepamentum pen"dente placito dito indifcuffo." And, by virtue of either of thefe writs the fheriff may refift them that do, or offer to do wafte; and, if otherwife he cannot prevent them, he may lawfully imprison the wafters, or make a warrant to others to imprison them: or, if neceffity require, he may take the poffe comitatus to his affiftance. So odious in the fight of the law is waste and deftruction'. In fuing out thefe two writs this difference was formerly obferved; that in actions merely poffeffory, where no damages are recovered, a writ of eftrepement might be had at any time pendente lite, nay even at the time of fuing out the original writ, or first process: but, in an action where damages were recovered, the demandant. could only have a writ of eftrepement, if he was apprehensive of waste after verdict had"; for, with regard to waste done before the verdict was given, it was prefumed the jury would confider that in affeffing the quantum of damages. But now it feems to be held, by an equitable conftruction of the ftatute of Glocester, and in advancement of the remedy, that a writ of eftrepement, to prevent wafte, may be had in every stage, as well of fuch actions wherein damages are recovered, as of thofe wherein only poffeflion is had of the lands; for peradventure, faith the law, the tenant may not be of ability to fatisfy the demandant his full damages ". And therefore, now, in an action of wafte itself, to recover the place wafted and alfo damages, a writ of eftrepement will lie, as well before as

h2 Inft. 328.

i 6 Edw I. c. 13.

↳ Regift. 77.

12 Inft. 329.

F. N. B. 60, 61. * Ibid. 61.

after

after judgment. For the plaintiff cannot recover damages for more wafte than is contained in his original complaint: neither is he at liberty to affign or give in evidence any waste made after the fuing out of the writ: it is therefore reasonable that he should have this writ of preventive justice, fince he is in his prefent fuit debarred of any farther remedial. If a writ of eftrepement, forbidding wafte, 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 vaftum çontra prohibitionem: and, if upon verdict it be found that he did, the plaintiff may recover costs 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 fervants, they proceed to commit wafte, the court will imprifon them for this contempt of the writ 9. But not fo, if it be directed to the fheriff, for then it is incumbent upon him to prevent the eftrepement abfolutely, even by railing the poffe comitatus, 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 stay wafte, until the defendant fhall have put in his anfwer, and the court fhall thereupon make farther order. Which is now become the moft ufual way of preventing wafte.

2. A WRIT of wafie is alfo an action, partly founded upon the common law and partly upon the flatute of Glocefter'; and may be brought by him who hath the immediate eftate of inheritance in reverfion or remainder, against the tenant for life, tenant in dower, tenant by the curtefy, or tenant for years. This action is alfo maintainable in purfuance of ftatute Westm. 2. by one tenant in common of the inherit

• 5 Rep. 115.

P Moor. Ico.

4 Hob. 85.

r 6 Ed. I. c. 5.

13 Ed. I. c. 22,

ance

ance against another, who makes waste in the estate holden in common. The equity of which ftatute extends to jointtenants, but not to coparceners: because by the old law coparceners might make partition, whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint-tenants could not; and therefore 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 fecurity not to commit any farther waftet. But these tenants in common and joint-tenants are [228] not liable to the penalties of the statute of Glocefter, which extends only to fuch as have life-eftates, and do waste to the prejudice of the inheritance. The wafte however must be fomething confiderable; for if it amount only to twelve pence, or fome fuch petty fum, the plaintiff fhall not recover in an action of waste: nam de minimis non curat lex".

THIS action of wafte is a mixed action; partly real, so far as it recovers land, and partly perfonal, fo far as it recovers damages. For it is brought for both those purpofes; and, if the wafte be proved, the plaintiff fhall recover the thing or place wafted, and also treble damages by the ftatute of Glocefter. The writ of wafte calls upon the tenant to appear and fhew cause, why he hath committed waste and destruction in the place named, ad exhaeredationem, to the difinherifon, of the plaintiff". And if the defendant makes default, or does not appear at the day afligned 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 wafte done, and the damages; and make a return or report of the fame to the court, upon which report the judgment is founded. For the law will not fuffer fo heavy a judgment, as the forfeiture and treble damages, to be paffed upon a mere default, without full affurance that the fact is according as it is ftated in the writ. But if the defendant appears to the writ, and afterwards suffers judgment to go against him

t 2 Inst. 403, 404.

Finch. L. 29.

w F. N. B. 55.

* Paph. 24.

by

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 wafte; fince, having once appeared, he cannot now pretend ignorance of the charge. Now therefore the sheriff fhall 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 confeffion 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 7 was no waste committed, as that the deftruction happened: by lightning, tempeft, the king's enemies, or other inevitable accident (3). But it is no defence to fay, that a ftranger did the wafte, for against him the plaintiff hath no remedy: though the defendant is entitled to sue such stranger in an action of trefpass vi et armis, and shall recover the damages he has fuffered in confequence of such unlawful act 1.

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WHEN the waste and damages are thus afcertained, either by confeffion, verdict, or inquiry of the fheriff, judgment is given, in pursuance of the ftatute of Glocefter, c. 5. that the plaintiff fhall recover the place wafted; for which he has immediately a writ of feifin, provided the particular estate be still subsisting, (for, if it be expired, there can be no forfeiture of the land,) and alfo that the plaintiff shall recover treble the damages affeffed by the jury; which he must obtain in the fame manner as all other damages, in actions perfonal and mixed, are obtained, whether the particular eftate be expired, or still in being.

y Cro. Eliz. 18. 290.

a Co. Litt. 53.

a Law of nifi prius. 112.

(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 fubject to wafte in general; and, if the house be burnt by fire, he must rebuild. Vef. 462.

OF

CHAPTER THE FIFTEENTH.

SUBTRACTIO N.

SUB

UBTRACTION, which is the fifth fpecies of inju ries affecting a man's real property, happens when any perfon who owes any fuit, duty, custom, or service to ano ther, withdraws or neglects to perform it. It differs from a differfin, in that this is committed without any denial of the right, confisting merely in non-performance; that strikes at the very title of the party injured, and amounts to an oufter or actual difpoffeffion. Subtraction however, being clearly an injury, is remediable by due courfe of law: but the remedy differs according to the nature of the fervices; whether they be due by virtue of any tenure, or by cuftom only.

I. FEALTY, fuit of court, and rent, are duties and fervices ufually iffuing and arifing ratione tenurae, being the conditions upon which the antient lords granted out their lands to their feudatories: whereby it was ftipulated, 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 fhould do fuit, or duly attend and follow the lord's courts, and there from time to time give their affistance, by ferving on juries, either to de cide the property of their neighbours in the court-baron, or correct their mifdemefnors in the court-leet; and, laftly, that they should yield to the lord certain annual stated returns, in military attendance, in provifions, in arms, in matters of ornament or pleafure, in ruftic employments or

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