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principa.. 'fo him therefore in remainder and reversion, to whom the inhe ritance 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 (5). Yet a parson, vicar, archdeacon 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 cases, 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 ipsius, as for other tenants in feesimple; but ad exhaeredationem ecclesiae, in whose right the see-simple is. holden (g).

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.51

1. Estrepement is an old French word, signifying the same as waste or extirpation : and the writ of estrepement lay at the common law, after judga ment obtained in any action real (k), 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 justly apprehensive, that the tenant may make waste or estrepement pending the suit, well knowing the weakness of his title, therefore the statute of Glocester (i) gave another writ of estrepement, pendente placito, commanding the sheriff firmly to inhibit the tenant “ ne faciat vastum vel estrepementum pendente {*226] placito dicto indiscusso (k) (6).” 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 posse comitatus to his assistance. So odious in the sight of the law is waste and destruction (?). In suing out these two writs this difference was formerly observed; that in actions merely possessory, where no damages are recovered, a writ of estrepement 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 estrepement, 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. But now it seems to be held, by an equitable construction of the statute of Glocester, and in advaqcement of the remedy,

(k) Registr. 77.

( Co. Litt. 53. ig) Ibid. 341. (2) 2 Inst. 328. (i) 6 Edw. I. c. 13.

(1) 2 Inst. 329.
(m) F. N. B. 60, 61.

(5) No person is entitled to an action of pended ; and if the first tenant for life dies waste against a tenant for life, but he who during the continuance of such interposed es. was the immediate estate of inheritance in re. tate, the action is gone for ever. Co. Litt "mainder or reversion, expectant upon the 218.b. 2 Saund. 252. note 7. See further, as estate for life.t If between the estate of the to the persons who may maintain a writ or ac texant for life who commits waste, and the tion for waste, id. ibid. absequent estate of inheritance, there is in- (6) See, as to New York, 2 R. S 338, 4 18 terposed an estate of freehold to any person &c. : the court prevents waste by an order on in esse, then, during the continuance of such the defendant, and enforces its ruder as the id'erposed estate, the action of waste is sus. court of chancery does.

+ See contra in New York, 1 R. S. 750, 6 8.

1) See Hov. n. (51) at the end of the Vol. B. III.

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 thoso wherein only possession is had of the lands; for peradventure, saith the law, the tenant may not be of ability to satisfy the demandant his full damages (r). 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 waste than is contained in his original complaint; neither is he at liberty to assign 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 (o). If a writ of estrepement, forbidding waste, be directed and de

livered to the tenant himself, as it may be, and he afterwards pro[*227] ceeds to commit waste, an action may be carried on upon the *foun

dation of this writ; wherein the only plea of the tenant can be, non fecit vastum contra prohibitionem : and, if upon verdict it be found that he did, the plaintiff may recover costs and damages (p), 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 estrepement absolutely, even by raising the posse 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 in order to stay waste, until the defendant shall have put in his answer, and the court shall thereupon make further order. Which is now become the most usual way of preventing waste.

2. A writ of waste (7)52is also an action, partly founded upon the common law, and partly upon the statute of Glocester (r); and may be brought by him who hath the immediate estate of inheritance in reversion or re

(n) F. N. B. 61. (0) 5 Rep. 115. (p) Moor, 100,

(9) Hob. 85.
(0) 6 Edw. I. c. 5.

(7) The action or writ of waste is now very It has also this further advantage over an ac. eldom brought, and has given way to a much tion of waste, that it may be brought by him, more expeditious and easy remedy, by an ac- in the reversion or remainder for life or years, tion on the case in the nature of waste. The as well as in fee, or in tail; and ihe plaintiff plaintiff derives the same benefit from it, as is entitled to costs in this action, which he from an action of waste in the tenuit, where cannot have in an action of waste. However, the term is expired, and he has got possession this action on the case prevailed at first, with of his estate, and consequently can only re- some difficulty. 3 Lev. 130. 4 Burr. 2141. cover damages for the waste ; and thongh the But now it is become the usual action, as plaintiff cannot in an action on the case re. well for permissive as voluntary waste. Some cover the place wasted, where the tenant is recent decisions have made it doubtful, whestill in possession, as he may do in an action ther an action on the case, for permissive of waste in the tenel, yet this latter action was waste, can be maintained against any tenant found by experience to be so imperfect and for years. See 1 New. Rep. 290. 4 Taunt. defective a mode of recovering seisin of the 764.' 7 Taunt. 302. 1 Moore, 100, S.C. See place wasted, that the plaintiff obtained little also I Saund. 323. a. n. (i).--Where the lessee or no advantage from it; and therefore, where even covenants not to do waste, the lessor har the demise was by deed, care was taken to his election, to bring either an action on the give the lessor power of re-entry, in case the case, or of covenant against the lessee, for lessee committed any waste or destruction, waste done by him during the term. 2 Black and an action on the case was then found to be Rep. 1111. See further, 2 Saund. 252. and I much better adapted for the recovery of mere Chitty on Pl. 4 ed. 132, 3. damages, than an action of waste in the tenuit. in New-York, the plaintiff in an action of waste may recover costs. (2 R. S. 334. 613, $:;

(52) See Hor n. (52) at the end of the Vol f. UL.

mainder, against the tenant for life, tenant in dower, tenant by courtesy. or tonant for years. This action is also maintainable in pursuance of stiitute (s) Westm. 2. by one tenant in common of the inheritance against another, who makes waste in the estate holden in common. The equity of which statute extends to joint-tenants, 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 joini-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 security not to commit any farther waste (t). But these tenants in common and joint-tenants are *not liable to the penalties of the statute of Glocester, which ex- [*228) tends only to such as have life-estates, 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 (u) (8).

This action of waste is a mixed action ; partly real, so far as it recovers land, and partly personal, so 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 Glocester. ( 'l'he writ of waste caiis 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 (w). 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 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 silent consession of the defendant : but he shall only, as in defaults upon other actions, make inquiry of the quantum of damages (y). "The defendant, on the trial, may give in evidence any thing that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king's enemies, or other inevitable accident (3) (9). But it is no defence

'3) 13 Ed. I. c. 22.
(0) 2 Inst. 403, 404.
(u) Fuch, L. 29.
(20) F. N. B. 55.

(2) Poph. 24.
(y) Cro. Eliz. 18. 290,
(2) Co. Litt. 33.

(8) See 2 Bos. & Pul. 86. But the doctrine case cited by lord Hale, is that of the countess that the sma.Iness of the damages given by the of Salop, who brought an action on the case jury shall defeat the action, does not extend to against her tenant at will, for negligently other actions. See 1 Dow. Rep. 209. 2 East, keeping his fire, so that the house was burot; 154.

and the whole court held that neither action on 191 Aetior, on the case doth not lie for per- the case nor any other action lay; because at missive waste. 5 Rep. 13. Hale MSS. The common law and before the stalute of Glocey

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w say, that a stranger did the wasto, for against him the plaintiff hath no Iomedy : 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 (a) (10).

When the waste and damages are thus ascertained, either by confession, verdict, or inquiry of the sheriff, judgment is given in pursuance of the tatute of Glocester, c. 5. that the plaintiff shall recover the place wasted ;

for which he has immediately a writ of seisin, provided the parti [*229] cular estate be still subsisting (for, if it be expired, there can be no forfeiture of the land), and also that the plaintiff

' shall recover treble the damages assessed by the jury (11), 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.

CHAPTER XV.

OF SUBTRACTION.

SUBTRACTION, which is the fifth species of injuries affecting a man 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 disseisin, in that this is committed without any denial of the right, consisting merely of non-performance ; that strikes at the very title of the party injured, and amounts to an ouster or actual dispossession. Subtraction however, being clearly an injury, is remediable by due course of

(a) Law of nisi prius, 112.

ter, action did not lie for waste against tenant for the statute of Anne exempts all persons for lise or years, or any other tenant coming in from actions for accidental fire in any house, by agreement of parties, and tenant at will is except in the case of special agreements benot within the statute. But if tenant at will tween landlord and tenant. See 14 Geo. II. stipulates with his lessor lo be responsible for c. 78, s. 86. It was doubled under this stafire by negligence, or for ather permissive lute, whether a covenant to repair generally waste, without doubt an action will lie on such extends to the case of fire, and so becomes an express agreement The same observation agreement within the statute ; and therefore, holds with respect to tenants for life or years where it is intended that the tenant shall not before the statute of Glocester: for though be liable, it has been usual in the covenant for the law did not make them liable to any action, repairing, expressly to except accidents by yet it did not restrain them from making them- fire. See Harg. Co, Litt, 57 å But it is now selves liable by agreement. At the common settled, that a general unqualified covenant to Jaw, lessees were not answerable to landlords repair, subjects the renant to the expense of refor accidental or negligent burning; for as to building. 6 T. R. 650. The tenant at all fires by accident, it is expressed in Fleta, that events continues liable to pay rent. 3 Anst. fortuna ignis vel hujusmodi eventús inopinati 687. 3 Dow. 233. I T. R. 310. 4 Taunton, omnes tenentes excusant ; and lady Shrews. 45. 18 Ves. J. 115. bury's case is a direct authority to prove that (10) The verdict for the plaintiff, in a writ tenants are equally excusable for fires by of waste, ought to find the place wasted. 2 negligence. Fleta, lib. I. c. 12. Then came Bingh. R. 262. the siatute of Glocester, which, by making te (11) See 2 R. S. 335, $ 10. A view is onnants for life and years liable to waste with- necessary if an issue of fact is joined, unless ut exception, consequently rendered them an- then the court direct it on application of one of swerable for destruction by fire; but now by the parties. (ld. 9 9.) the 6 Ann. c. 31. the ancient law is restored,

+ In New-York the act corresponding to the but there is no act similar to 6 Ann. e. si o Statute of Glocester is in 2 R. S. 334, $ 1. &c. 14 Gco. III. c. 78.

law: but the remedy differs according to the nature of the services whether they be due by virtue of any tenure, or by custom only.

I. Fealty, suit of court, and rent, are duties and services usually issuing and arising rationer tenurae, being the conditions upon which the ancient 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 decide the property of their neighbours in the couri-baron, or correct their misdemeanors in the court-leet; and, lastly, that they should yield to the lord certain annual stated returns, in military attend. ance, in provisions, in arms, in matters of ornament or pleasure, in rustic employments or *prædial labours, or (which is instar om- [*231) nium) in money, which will provide all the rest; all which are comprised under the one general name of reditus, return, or rent. And the subtraction or non-observance of any of these conditions, by neglecting to swear fealty, to do suit of court, or to render the rent or service reserved, is an injury to the freehold of the lord, by diminishing and depreciating the value of his seignory.

The general remedy for all these is by distress; and it is the only remedy at the common law for the two first of them. The nature of distresses, their incidents and consequences, we have before more than once explained (a): it may here suffice to remember, that they are a taking of beasts, or other personal property, by way of pledge to enforce the performance of something due from the party distrained upon. And for the most part it is provided that distresses be reasonable and moderate ; but in the case of distress for fealty or suit of court, no distress can be unreasonable, immoderate, or too large (6): for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be such as is sufficiently compulsory (1); and, be it of what value it will, there is no harm done, especially as it cannot be sold or made away with, but must be reslored immediately on satisfaction made. A distress of this nature, that has no bounds with regard to its quantity, and may be repeated from time to time, until the stubbornness of the party is conquered, is called a distress infinite ; which is also used for some other purposes, as in summoning jurors, and the like.

Other remedies for subtraction of rents or services are, 1. By action of debt, for the breach of this express contract, of which enough has been formerly said. This is the most usual remedy, when recourse is had to any action at all for the recovery of pecuniary rents, to which species of render almost all free services are now reduced, since the abolition of the military tenures. But for a freehold rent, reserved on *a [*232) lease for life, fc. no action of debt lay by the common law, during the continuance of the freehold out of which it issued (c); for the law wouid not suffer a real injury to be remedied by an action that was merely personal.63 However, by the statutes 8 Ann. c. 14. and 5 Geo. III. c. 17. actions of debt may now be brought at any time to recover such freehold

(a) See page 6. 148. b) Finch, L. 285.

(c) i Roll. Abr. 595.

(1) Allodial tenures being adopted in New-York in place of feudal, fealty and distress for a seem to be abolished. (1 R. S. 712, 43, &c.) Vol. II.

(53 See H37. n. (53) at the end of the Vol. B. III.

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