PRIVATE WRONGS.
BOOK III.
CH. 14.

CHAPTER THE FOURTEENTH.
OF WASTE

THE fourth fpecies of injury, that may be offered to one's real property, is by wafte, or deftruction in lands tenements. What fhall be called wafte was confidered at large in a former volume ^a, as it was a means of forfeiture, and thereby of transferring the property of real eftates. I fhall therefore here only beg leafe to remind the ftudent, that wafte is a fpoil and defruction of the eftate, either in houfes, woods, or lands ; by demolifhing not the temporary profits only, but the very fubftance of the thing ; thereby rendering it wild and defolate ; which the common law expreffs very fignificantly by the word vaftum : and that this vaftum, or wafte, is either voluntary or permiffive ; the one by actual and defigned demolition of the lands, woods, and houfes ; the other arifing form mere negligence, and want of fufficient care in reparations, fences, and the like. So that my only bufinefs is at prifent to fhew, to whom this vafte is an injury ;and of courfe who is entitled to nay, and what, remedy be action.

I. THE perfons, who may be injured by wafte, are fuch as have fome intereft in the eftate wasfted : for if a man be the abfolute tenant in fee-fimple, without any incumbrande or charge on the primifes, he may commit whatever wafte his own indif-

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^a See Vol. II. ch.18.
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cretion
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CH. 14.

cretion may prompt to, without being impeachable or accountable for it to any one. And, though heir is fure to be the fufferer, yet nemo eft haeres viventis : no man is certain of fucceeding him, as well on account of the uncertainty which fhall die firft, as alfof becaufe he has it in his owen power to conftitue what heir he pleafes, according to the civil notion fo an haeres natus and an haeres factus ; or, in the more accurate phrafeology of our Englifh law, he may aliene or devife his eftate to whomever he thinks proper, and by fuch alienation or devife may difinherit his al law. Into whofe hands foever therefore the eftate wafted comes, after a tenant in fee-fimple, though the wafte in undoubtedly damnum, it is abfque injuria.

ONE fpecies of intereft, which in injured by wafte, is that of a perfon who has a right of common in the place wafted ; efpecially if it be common of eftovers, or a right of cutting andcarrying away wood for houfe-bote, plough-bote, &c. Here, if the owner of the woodk demolifhes th whole wood, and thereby deftroys all poffibility of taking eftoves, this is an injury to the commoner, amounting to no lefs than a diffeifin of his common of eftovers, if he choofes fo to confider it ; for which he has his remedy to recover poffeffion and damges by affife, if intitled to a freehold in fuch common : but if he has only a chattel intereft, then he can only recover damages by an action on the café for this wafte and deftruction of the woods, out of which his eftovers were to iffue ^b.

BUT the moft ufual and important intereft, that is huft by this commiffion of wafte, is that of him who hath the remainder or reverfion of the inheritance, after a particular eftate for life or years in being. Here, if the particular tenant, (be it the tenant in dower or by curtefy, who was anfwerable for wafte at the common law ^c, or the leffee for life or years, who was firft

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^b F.N.B.59. 9Rep.112.
^c 2 Inft.299.
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made
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CH. 14.

made liabel by the ftatutes of Marlbridge ^d and of Glocefter ^e) if the particular tenant, I fay, commits or fuffers nay wfte, it is a manifeft injury to him that has the inheritance, as it tends to mangle and difmember it of it's moft defirabel incidents and ornaments, among which timber and houfes may juftly be reckoned the principal. To him therefore in remainder or reverfion the law hath given a remedy ; that is, to him to whom the inheritance appertains in expectancy ^f. For he, who hath the remainder for life only, is not entitled to fue for wafte ; fince his intereft may never perhaps come into poffeffion, and then hath fuffered no injury. Yet a parfon, vicar, arch-deacon, prebendary, and the like, who are feifed in right of their churches of any remainder or reverfion, may have an action of wafte ; for they, in many cafes, have for the benefit of her church and of the fucceffor a fee-fimple qualified : and yet, as they are not feifed in their own right, the writ of wafte fhall not fay, ad exhaeredationem ipfius, as for other tenants in fee-fimple ; but ad exhaeredationem ecclefiae, in whofe right the fee-fimple is holden ^g.

II. THE redrefs for this injury of wafte is of two kinds, priventive, and corrective : the former of which is by writ of eftrepement, the latter by that of wafte.

1. ESTREPEMENT is an old French word, fignifying the fame as wafte or extirpation : and the writ of eftrepement lay at the common law, after judgment obtained in any action real ^h, and before poffeffion was delivered by to fheriff ; ftop any wafte which the vanquifhed party might be tempted to commit in lands, which were determined to be no longer his. But, as in fome cafes the defendant may be juftly apprehenfive, that the tenant may make wafte or eftrepement pending the fuit, well knowing the weaknefs of his title, therefore the ftatute of Glocefter ⁱ gave another writ of eftrepement, pendente placito, com-

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^d 52 Hen.III. c.23.
^e 6 Edw. l. c.5.
^f Co. Litt.53.
^h Ibid.341.
^h 2 Inft.328.
ⁱ 6 Edw. J. c.13.
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VOL. III.
E e
manding
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manding the fheriff firmly to inhibit the tenant “ne faciat vaftum vel eftrepamentum pendente placito dicto indifcuffo ^k.” And, by virtu of either of thefe wrirts the fheriff may refift them that do, or offer to do, wafte ; and, if otherwife he cannot prevent them, he may lawfully imprifon the wafters, or make a warrant to others to imprifon them : or, if neceffity repuire, he may take the poffe comitatus to his affiftance. So odious in the fight of the law is wafte and deftruction ^l. 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 tiem of fuing out the original writ, or firft procefs : but, in an action where damages were recovered, the defendant could only have a writ of eftrepement, if he was apprehenfive of wafte after verdict had ^m ; for, with regard to wafte done before the verdict was given, it was perfumed 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 Glocefter, and in advancement of the remedy, that a writ of eftrepement, to prevent wafte, may be had in every ftage, as well of fuch actions wherein damages are recovered, as fo thofe wherein only poffeffion is had of the lands : for peradventure, faithe the law, the tenant may not be of ability to fatisfy the demandant his full damages ⁿ. And therefore now, in an action of wafte itfelf, to recover the place wafted and alfo damages, a writ of eftrepement will lie, as well before as 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 wafte mede after the fuing out of the writ : it is therefore reafonable that he fhould have this writ of preventive juftice, fince he in his prifent fuit debarred of any farther remedial ^o. If a writ of eftrepement, forbidding wafte, directed and delivered to the tenant, as it may be, and he afterwards proceeds to commit wafte, and action may

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^k Regift.77.
^l 2 Inft.329.
^m F.N.B.60,61.
ⁿ Ibid.61.
^o 5 Rep.115.
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be
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CH. 14.

be carried on upon the foundation of this writ ; wherein the only plea of the tenant can be , non fecit vaftum contra prohibitionem : and, if upon verdict it be found that he did, the plaintiff may recover cofts and damages ^p ; or the party may proceed to punifh 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 ^q. But not fo, if it be directed to the fheriff, for then it is incumbent upon him to prevent the eftrepement abfolutely, even by raifing the poffe comitatus, if it can be done no other way.

BESIDES this preventive redrefs at common law, the courts of equity, upon bill exhibited therein, complaining of waft and deftruction, will grant an injunction or order to ftay 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 wafte is alfo an action, partly founded upon the common law and partly upon the ftatute of Glocefter ^r ; and may be brought by him who hath the immediate eftate of inheritance in reverfion or remainder, againft the tenant for life, tenant in dower, tenant by the curtefy, or tenant for years. This action is alfo maintainable in pufuance ^s of ftatute Weftm.2.by one tenant in common of the inheritance againft another, who makes wafte in the eftate holden in common. The equity of which ftatute extends to joint-tenant, but not to coparceners : becaufe by the old law coparceners might make partition, whenever either of them thought proper, and thereby prevent future wafte, but tenants in common and joint-tenants could not ; and therefore the ftatute gave them this remedy, compelling the defendant either to make partition, and take the place wafted to his own fhare, or to give fecurity not to commit any farther wafte ^t. But thefe te-

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^p Moor.100.
^q Hob. 85.
^r 6 Edw. I. c.5.
^s 13 Edw. I. c.22.
^t 2 Inft403,404.
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E e 2
nants
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nants in common and joint-tenants not liable to the penalties of the ftatute of Glocefter, which extends only to fuch as have life-eftates, and do wafte to the prejudice of the inheritance. The wafte however muft 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 wafte : nam de minimis non curat lex ^u.

THIS action of wafte is a mixed ; partly real, fo far as it recovers land, and partly perfonal, fo far as it recovers damages. For it is brought for both thofe purpofes ; and, if the wafte be proved, the plaintiff fhall recover the thing or place wafte, and alfo treble damages by the ftatute of Glocefter. The writ of wafte calls upon the tenant to appear and fhew cufe, why he hath committed wafte and deftruction in the place named, ad exhderedationem, to the difinherifon, of the plaintiff ^w. And if the defendant makes default, or does not appear at the day affigned him, then the fheriff is to take with him a jury of twelve men, go in perfon to the place alleged to be wafted, and there enquire 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 ^x. 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 fuffers judgment to go againft him by default, or uu a nihil dicit, (when he makes no anfwer, puts in no plea, in defence) this amounts to a confeffion of the wafte ; fince, having once appeared, he cannot now pretend ignorance of the charge. Now therefore the fheriff fhall not go to the place to enquire of the fact, whether any wafte has, or has not, been committed ; for this is already afcertained by the filent confeffion of the defendant : but he fhall only, as in defaults upon other actions, make enquiry of the quantum of

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^u Finch. L.29.
^w F.N.B.55.
^x Poph.24.
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damages ^y.
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damages ^y. The defendant, on the trial, may give in evidence any thing that proves there was no wafte committed, as that the deftruction happened by lightning, tempeft, the king's enemies, or other inevitable accident ^z. But it is no defence to fay, that a ftranger did the wafte, for againft him the plaintiff has no remedy : though the defendant is intitled to fue fuch ftranger in an action of trefpafs vi et armis, and fhall recover the damages he has fuffered in confequence of fuch unlawful act ^a.

WHEN the wafte and damages are thus afcertained, either by confeffion, verdict, or enquiry of the fheriff, judgment is given, in purfuance of the ftatute of Gloccefter, c.5. that the plaintiff fhall recover the place wafted ; for which he has immediately a writ of feifin, provided the particular eftate be ftill fubfifting, (for, if be expired, there can be no forfeiture of the land) and alfo that the plaintiff fhall recover treble the damages affeffed by the jury ; which he muft obtain in the fame manner as all other damages, in actions perfonal and mixed, are obtained, whether the particular eftate be expired, or ftill in being.

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^y Cro. Eliz.18.290.
^z Co. Litt.53.
^a Law of nifi prius.112.
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