the time of the decree. (1) It would be monstrous to say that, though a party shall account for waste committed before the injunction, he shall not account for waste done in breach of the injunction. In Bishop of Winchester v. Knight (1 P. Wms. 407), the Chancellor says, "It would be a reproach to equity to say, where a man has taken my property, as my ore or timber, and disposed of it in his lifetime, and dies, that in this case [134] I must be without remedy." It may be considered as a general rule that where a bill would lie against a party when alive, it lies against his representatives after his death; and in such cases the rule "actio personalis moritur cum personâ " does not apply. (See what Lord Hardwicke says, 1 Dick. 215.) From Humbly v. Trott (2 Vern, 738. S. C. Prec. Ch. 454), it is clear that, in a case of legal waste, the representatives are liable, and the maxim alluded to does not avail; and in analogy to the doctrine at law, a Court of Equity will make the representatives account for equitable waste, there being no remedy at law.

As to the objection that the supplemental bill contains interrogatories as to matters inquired of by the former bill, and answered, it must be admitted that these Defendants have a right to insist on grounds of defence to the original bill, not made use of by the late marquis; so the Plaintiffs, on the other hand, may interrogate as to matters before inquired of by the original bill; especially where, as in the present case, the Defendant died so soon after he had put in his answer, that there was not time to take exception.

With regard to the dilapidations, the Court will either order the house to be repaired, as in Vane v. Lord Barnard (2 Vern. 738. S. C. Prec. Ch. 454), or give the Plaintiffs a compensation. Supposing, however, this part of the bill cannot be sustained, yet as the demurrer extends not only to this part of the bill, but also to the account of waste committed after the injunction granted, if it is bad as to the latter, it is bad as to the former; for a [135] demurrer cannot be good in part, and bad in part; but if not altogether good, it must be overruled. Where part only of a bill is demurrable, the demurrer must be confined to that part; and if too general, it is bad. (See as to this, Ld. Redesd. Tr. Pl. 174; and Devonshire v. Newenham, 2 Sch. & Lefr. 207.)

Mr Leach, in reply. This is a case involving points of great importance. It would be to legislate in a Court of Equity if the acknowledged maxim of the law, actio personalis moritur cum persona is here to be overturned. Garth v. Cotton was a case of fraud, and on that ground relief was given. Bishop of Winchester v. Knight was a case as to ore dug, which is a sort of trade, and consideration was had there, of the tenure of the estate; the digging of the ore, being by one who held customary lands of the bishop, was considered as a breach of trust.

If the late marquis had been tenant for life, impeachable for waste, and legal waste had been committed by him, no action could have been sustained against his representatives, because there was no person in esse, or, at least appeared, who had an estate of inheritance: so here, when this equitable waste was committed, there was no owner of the inheritance in esse, Lord Wycombe being born since; and yet it is said as to this equitable waste, the representatives of the marquis are liable; though had it been a case of legal waste, they would not have been liable. The doctrine in Hambly and Trott was not new; it was agreeable to the old authorities. In the case there put, the action against the representatives was held [136] to lie. There the waste might, by agreement, have been made good, but here there were no parties who could affirm the waste-it was a wrong incapable of being made right. The infant tenant in tail was not born when this waste was committed, and yet now claims a compensation as if he had been owner of the inheritance when the waste was committed. It is said we have admitted that the representatives of the late marquis are compellable to account for the waste committed before the injunction; and there is no distinction between the waste committed before and after the injunction. I think not; and that the demurrer might have been extended to an account of all the

(1) In some cases, an account of tithes has been given, up to the time of the decree (2 Atk. 136. Carleton v. Brightwell, 2 P. Wms. 463); in others, to the time of the Master's report (2 Atk. 137); and in another case, it is said, an account will be given "as long as the suit is depending between the parties." Bell v. Read, 3 Atk. 1.

waste committed by the marquis, whether before or after the injunction; but because the demurrer does not extend so far as it might, it is not, therefore, bad so far as it does extend.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. Upon this demurrer two points are to be considered: 1st. How the case stood as to the deceased marquis? 2dly. How the case stands as to his representatives? The late marquis was tenant for life, without impeachment of waste, and as such had a right at law to cut timber on the estate, and had a property in the trees, but having abused that power by cutting ornamental trees, and trees not ripe for cutting, a Court of Equity says he shall not do these things with impunity, but interposes to restrain the legal right; and equity not only restrains him from doing further waste, but directs an account of the waste done, and will not suffer the individual to pocket the produce of the wrong, but directs the money produced by such waste to be laid up for the benefit of those who succeed to the estate.

[137] A bill was filed against the late marquis by Wilmot and Baring, the trustees, to preserve contingent remainders, and not by a person having the next estate of inheritance, no such person appearing; but there were contingent remainders, and the present marquis, the next tenant for life, was entitled to the timber cut, or the substitute for it. The late marquis did not demur to that bill. Many of the objections taken to this supplemental bill would have applied to the bill filed against the late marquis. They obtained an injunction, and thereby their competency to sustain the suit was sanctioned; and Garth and Cotton,(1) certainly, was a conclusive authority in support of that suit. The injunction would not have been granted if the trustees had no right to file such a bill. What is said in Jesus Coll. and Bloom, as to not entertaining a bill after the estate of the tenant for life is determined, applies only to cases where legal waste has been committed, and where the party is liable at law in respect of the waste committed; but here it was equitable waste, as to which a Court of law gives no remedy. Lord Hardwicke, in that case, says, "The party ought to be sent to law;" which shews he was alluding to legal waste. The party had for such waste a remedy under the statute of Marlbridge (52 Henry 3, c. 23), or might have brought an action of trover; but the Court never sends a party to law in cases of equitable waste, they being exclusively of equitable cognizance. As against the late marquis, therefore, a bill might have been filed, [138] though no injunction were prayed. This Court will not permit a man to commit equitable waste, and retain the produce of the injury, which is recoverable in no other Court. Relief is given for the benefit of those who come after. The case, therefore, of Jesus College and Bloom is distinguishable from the present. In Garth and Cotton Lord Hardwicke, alluding to his decision in that case, says, "It affords no conclusive argument that a bill for an account of waste cannot be maintained without praying an injunction." (1 Dick. 211.) The marquis died, after having sold and converted to his use the money produced by his wrongful act; and upon general principles, independent of decision, the assets ought to be liable to pay in respect of his conduct, such assets having been augmented by it.

It has been urged that, if the marquis had committed legal waste, and died, his representatives would not have been answerable, it being a maxim, actio personalis moritur cum persona, and that the same doctrine applies, by analogy, to cases of equitable waste. Let us see in what manner this maxim has been interpreted even at law. In Hambly v. Trott (Cowp. 376), Lord Mansfield says, "When the cause of action is money due, or a contract to be performed, gain or acquisition of the testator by the work and labour, or property, of another, or a promise of the testator, express or implied; where these are the causes of action, the action survives against the executor. But where the cause of action is a tort, or arises ex delicto, supposed to be by force, and against the King's peace, there the action dies, as battery, false imprisonment, trespass, words, nuisance, [139] obstructing lights, diverting a watercourse, escape against the sheriff, and many other cases of the like kind. If it is a sort of injury by which the offender acquires no gain to himself at the expense of the

(1) The judgment in this case is given in 1 Dick. 183 from a copy of Lord Hardwicke's written argument.

sufferer, as beating, or imprisoning a man, &c., there the person injured has only a reparation for the delictum in damages to be assessed by a jury. But where, besides the crime, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. As, for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another man's trees; but for the benefit arising to his testator for the value or sale of the trees he shall. So far as the tort itself goes, an executor shall not be liable; and therefore it is that all public, and all private crimes die with the offender, and the executor is not chargeable; but so far as the act of the offender is beneficial, his assets ought to be answerable; and his executor therefore shall be charged."

This I take to be a just exposition of the qualifications under which the maxim actio personalis moritur cum persona is received at law; and if equity is to decide in analogy to a Court of law, the question in the present case will be, Whether, by the equitable waste committed by the late marquis, he derived any benefit; or, whether it was a naked injury, by which his estate was not benefited? It is clear it was benefited; and as at law if legal waste be committed, and the party dies, an action for money had and received lies against his representative, so upon the same principle, in cases of equitable waste, the party must, through his representatives, refund in respect of the wrong he [140] has done. "It would," says Lord Cowper, in Bishop of Winchester v. Knight (1 P. Wms. 407), "be a reproach to equity to say, where a man has taken my ore or timber, and disposed of it in his lifetime, and dies, that in this case I must be without remedy." It has been argued that, as when legal waste is committed, and there are no persons in being, or appearing, who could authorize it, or bring an action in respect of the waste, the wrong is without remedy; so here, there being no persons in esse, or appearing, when the waste was committed, who could authorize it, a bill will not lie in respect of such waste; but it signifies not whether such person were in esse or not, for waste of this description could not be authorized such destruction cannot be authorized-the Court says it shall not be done. The produce of the waste is laid up for the benefit of the contingent remainder-men. (Williams v. Duke of Bolton, mentioned in Mr. Cox's note to Bewick v. Whitfield, 3 P. Wms. 268.) To adopt such an analogy to the law, in a case where relief is given against the law, would be singular.

Upon these grounds I think the supplemental bill for an account by the new trustees, the tenant for life, and tenant of the inheritance, was properly brought. The trustees were the proper persons to file the bill against the late marquis, and the present Plaintiffs were the proper persons to file the supplemental bill, though one of the Plaintiffs was not in esse when the first bill was filed, inasmuch as the money produced by the waste is not to be pocketed, but to be laid up for the benefit of those who in succession will take the estate.

[141] I think the demurrer objectionable on other grounds, but I decide this case upon the broad principle, that where equitable waste has been committed, which never could have been authorized, the Court has jurisdiction to make the representatives of the party committing such waste accountable.

Demurrer overruled.

[141] Ex parte M'WILLIAMS, In re GRAHAM. Nov. 11, 1815.

Expense of a provisional assignment not allowed except where an extent is apprehended.

In this case considerable expense had been incurred by appointing a provisional assignee, and the commissioners on taxing the solicitor's bill had allowed the same. A petition was now presented, praying a reference to the Master, to review the taxation of the bill, and to inquire whether a provisional assignment was

necessary.

Sir Samuel Romilly and Mr. Montagu, for the petition.

Mr. Parker, against it.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. A provisional assignment is not a

matter of course, but is proper only in cases of necessity. It is only ne-[142]-cessary where an extent is apprehended. Executions threatened do not make such an assignment necessary. There must be a taxation of this bill, and an inquiry whether a provisional assignment was necessary.

NOTE. It was stated that in the north it was very much a matter of course to have a provisional assignment; but the Vice-Chancellor expressed his disapprobation of the practice.

[142] HOWARD v. PAPERA. Nov. 17, 1815.

A receiver will not be appointed merely because an executrix is poor.

Motion for a receiver on a bill filed against an executrix for an account, and that the executrix might be restrained from receiving the testator's property. In the affidavit in support of the motion it was sworn that the executrix, the wife of the deceased, had no property of her own, and, therefore, there was danger to the property of the testator.

Mr. Roupell, for the motion.

Mr. Parker, against it.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. No misapplication or abuse of trust is made out against this executrix, and it would be too much to take the administration of this testator's property out of her hands merely because she is poor; a circumstance [143] known to her husband, the testator, when he appointed her executrix.

Motion refused (1).

(1) The reporter has a note of a similar case before Lord Elgin.

Gladdon v. Stoneman, March 21, 1808.

The testator died possessed of freehold, leasehold and personal property, having made his will in 1793, appointing the Defendant and his (the testator's) wife executor and executrix and trustees.

The will had not yet been proved.

Some time before the testator died, the Defendant became a bankrupt; but no dividend had been made, nor had he obtained his certificate.

Sir Samuel Romilly and Mr. Shadwell moved, under these circumstances, that a receiver might be appointed of the real and personal property, and for an injunction to restrain the Defendant from receiving the rents and profits of the real and personal

estate.

Mr. Hart, on the other side, contended no receiver ought to be appointed, or injunction granted, as the testator must have known this man was a bankrupt; and if he, notwithstanding that, chose to appoint him his executor, he might, and the bankrupt had a right to act.

Sir S. Romilly, in reply. It is probable this testator did not advert to the will he had made, for he thereby constituted his wife residuary legatee, and his wife Idied in his lifetime. If he had adverted to his will, surely this would have been altered.

The Lord Chancellor. Without saying a person known by a testator to be a bankrupt, and yet appointed an executor by such testator, can be controlled here by the appointment of a receiver, in this case it is clear that the testator did not advert to the circumstance of this person being a bankrupt. A receiver must certainly be appointed of the rents and profits of the real and leasehold estates; and without prejudice to an application by the next of kin when the will is proved, for a receiver of the personal estate; and in the meantime the Defendant to be restrained from selling the leasehold estates, and from receiving the rents and produce of the freehold and leasehold estates.

[144] PHIPPS AND ANOTHER v. PILCHER. Nov. 23, 1815.

[S. C. at Law, 6 Taunt. 220; 2 Marsh. 20.]

Will held to be well attested, though one of the subscribing witnesses was executor in trust under the will.

On a bill filed for a specific performance, the Defendant objected that a good title could not be made, the will under which the Plaintiff made out his title to the lands not being duly attested; and the following case was, by an order of the Vice-Chancellor, dated 31st March 1815, sent to the Court of Common Pleas, for the opinion of the Judges.

"Israel Claringbould the elder, of the Parish of River, in the county of Kent, gentleman, deceased, when he was of sound mind, made his will, bearing date the 11th day of June 1811; and thereby, after directing all his just debts to be duly paid by his executors thereinafter named, he gave and bequeathed unto his wife the use of his dwelling-house and furniture, and £50 a year, to be paid unto her out of the rents and profits of his real estate, for her life; and he thereby charged, and made liable to the payment thereof, all and every his real estates and effects: And after the decease of his wife, he gave and bequeathed unto his son, Israel Claringbould, the use and occupation, rents and profits, of and in all that his said dwelling-house, [145] and field thereunto belonging, and in which the said house was built and erected, called or known by the name of Five-acre Field, during the term of his natural life: And after his decease, then the said testator gave, devised and bequeathed all the rest, residue and remainder of his real estates and effects, whatsoever and wheresoever, both real and personal, unto his son Richard and daughter Ann, wife of William Phipps, to be divided between them equally, share and share alike, and to take as tenants in common, and not as joint-tenants, to them, their heirs, executors, administrators and assigns, for ever, in case such remainder shall not exceed £1000; but in case such remainder should exceed £1000 then the said testator thereby gave and bequeathed all such sum as should remain over and above the said sum of £1000 unto the children of his son Israel, to be laid out and expended upon them in such way as his executors should think fit. And after stating the sale by him to his son-in-law, the said William Phipps, of the two bog meadows adjoining the river, for the sum of £100; and he having lodged the said sum of £100 into the hands of the said William Phipps, for the purpose therein mentioned; and after directing the payment of the said sum of £100 as therein mentioned, the said testator thereby appointed the Plaintiffs, John Phipps and Thomas Chester, and the survivor of them, executors and executor of his will: And the said testator thereby further willed and ordained that his executors, or the survivor of them, and the executors or administrators of such survivor, for and towards the performance of his said will, and in order to raise money for the payment of his debts, and of all the several legacies and expenses attending the perform-[146]-ance of the things therein directed and ordained, should and might, with all convenient speed after his decease, bargain, sell and alien in fee-simple, all his freehold lands, houses and premises, except his dwelling-house, and the Five-acre Field before mentioned; for the doing, executing and perfect finishing whereof, the said testator thereby gave his said executors, and the survivor of them, and the executors or administrators of such survivor, full power and absolute authority to grant, alien, sell, convey and assure all the same freehold land and premises to any person or persons, and their heirs, for ever, in fee-simple, by all and every such legal ways and means in the law, as to his executors, or the survivor of them, or the executors and administrators of such survivor, or his or their counsel should seem fit or necessary.

"That the said will was signed and published by the testator, in the presence of Henrietta Rousseau, Mary Chester and Thomas Chester, who signed their names thereto, as attesting the execution thereof, in the presence of the said testator, and at his request.