principa.. 'fhim 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 fee-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 judgment obtained in any action real (h), 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 (1) 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 (2). 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 advancement of the remedy,

(f) Co. Litt. 53.

(g) Ibid. 341.

(A) 2 Inst. 328.

(1) 6 Edw. I. c. 13.

(5) 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 bsequent estate of inheritance, there is interposed an estate of freehold to any person in esse, then, during the continuance of such interposed estate, the action of waste is sus

(k) Registr. 77.

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

pended; and if the first tenant for life dies during the continuance of such interposed estate, the action is gone for ever. Co. Litt 218. b. 2 Saund. 252. note 7. See further, as to the persons who may maintain a writ or ac tion for waste, id. ibid.

(6) See, as to New-York, 2 R. S 338, § 18 &c. the court prevents waste by an order on the defendant, and enforces its order as the court of chancery does.

+ See contra in New-York, 1 R. S. 750, § 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 those wherem 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 (n). 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 delivered 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 *foundation 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 (q). 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,

(q) Hob. 85.

(r) 6 Edw. I. c. 5.

It has also this further advantage over an ac. tion of waste, that it may be brought by him, in the reversion or remainder for life or years, as well as in fee, or in tail; and the plaintiff is entitled to costs in this action, which he cannot have in an action of waste. However, this action on the case prevailed at first, with some difficulty. 3 Lev. 130. 4 Burr. 2141.

(7) The action or writ of waste is now very seldom brought, and has given way to a much more expeditious and easy remedy, by an action on the case in the nature of waste. The plaintiff derives the same benefit from it, as from an action of waste in the tenuit, where the term is expired, and he has got possession of his estate, and consequently can only recover damages for the waste; and though the plaintiff cannot in an action on the case recover the place wasted, where the tenant is still in possession, as he may do in an action of waste in the tenet, yet this latter action was found by experience to be so imperfect and defective a mode of recovering seisin of the place wasted, that the plaintiff obtained little or no advantage from it; and therefore, where the demise was by deed, care was taken to give the lessor power of re-entry, in case the lessee committed any waste or destruction, and an action on the case was then found to be much better adapted for the recovery of mere 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, §3) (52) See Hov n. (52) at the end of the Vol P III.

But now it is become the usual action, as well for permissive as voluntary waste. Some recent decisions have made it doubtful, whether an action on the case, for permissive waste, can be maintained against any tenant for years. See 1 New. Rep. 290. 4 Taunt. 764. 7 Taunt. 302. 1 Moore, 100. S. C. See also 1 Saund. 323. a. n. (i).—Where the lessee even covenants not to do waste, the lessor has his election, to bring either an action on the case, or of covenant against the lessee, for waste done by him during the term. 2 Black. Rep. 1111. See further, 2 Saund. 252. and I Chitty on Pl. 4 ed. 132, 3.

mainder, against the tenant for life, tenant in dower, tenant by courtesy. or tenant for years. This action is also maintainable in pursuance of statute (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 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 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 preju

dice 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. 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 (x). 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 confession 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 (≈) (9). But it is no defence

1

w 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 ac tion 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 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 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 life or years, or any other tenant coming in by agreement of parties, and tenant at will is not within the statute. But if tenant at will stipulates with his lessor to be responsible for fire by negligence, or for other permissive waste, without doubt an action will lie on such express agreement The same observation holds with respect to tenants for life or years before the statute of Glocester: for though the law did not make them liable to any action, yet it did not restrain them from making them selves liable by agreement. At the common law, lessees were not answerable to landlords for accidental or negligent burning; for as to fires by accident, it is expressed in Fleta, that fortuna ignis vel hujusmodi eventus inopinati omnes tenentes excusant; and lady Shrewsbury's case is a direct authority to prove that tenants are equally excusable for fires by negligence. Fleta, lib. 1. c. 12. Then came the statute of Glocester, which, by making tenants for life and years liable to waste with ut exception, consequently rendered them answerable for destruction by fire; but now by the 6 Ann. c. 31. the ancient law is restored,

+ In New-York the act corresponding to the Statute of Glocester is in 2 R. S. 334, § 1, &c.

for the statute of Anne exempts all persons from actions for accidental fire in any house, except in the case of special agreements be tween landlord and tenant. See 14 Geo. III. c. 78. s. 86.† It was doubted under this statute, whether a covenant to repair generally extends to the case of fire, and so becomes an agreement within the statute; and therefore, where it is intended that the tenant shall not be liable, it has been usual in the covenant for repairing, expressly to except accidents by fire. See Harg. Co, Litt. 57 a But it is now settled, that a general unqualified covenant to repair, subjects the tenant to the expense of rebuilding. 6 T. R. 650. The tenant at al events continues liable to pay rent. 3 Anst. 687. 3 Dow. 233. 1 T. R. 310. 4 Taunton, 45. 18 Ves. J. 115.

(10) The verdict for the plaintiff, in a writ of waste, ought to find the place wasted. 2 Bingh. R. 262.

(11) See 2 R. S. 335, 10. A view is un necessary if an issue of fact is joined, unless then the court direct it on application of one of the parties. (Id. § 9.)

but there is no act similar to 6 Ann. e. 3} œs 14 Geo. 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 ratione 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 court-baron, or correct their misdemeanors 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 *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. 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.

And

The general remedy for all these is by distress; and it is the only reme dy 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 (b) 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 restored 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, &c. no action of debt lay by the common law, during the continuance of the freehold out of which it issued (c); for the law would 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) 1 Roll. Abr. 595.

(1) Allodial tenures being adopted in New-York in place of feudal, fealty and distress for n seem to be abolished. (1 R. S. 713, § 3, &c.)

VOL. II.

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