WASTE, (continued). Nor lord by escheat for waste done before the escheat, 109. Where the reversion is changed, the action of waste is lost, 109. Where tenant in tail leases for his own life and afterwards releases all his right to the Tenant in tail after possibility cannot have waste, 109. AGAINST WHOM BROUght. At common law only against guardian in chivalry, tenant in dower, and by the curtesy, By stat. of Gloucester against tenant for life or years, 110. Where tenant in dower, or by the curtesy, assigns, and assignee commits waste, such te- But if after such assignment the heir grants the reversion, grantee of reversion may Tenant pur autre vie, occupant and devisee within the statute of Gloucester, 110, 111. Tenant for life or years answerable for waste done by a stranger, 111. Even though feme covert or infant, 111. Waste by one jointenant is the waste of his cotenant, 111. But damages recoverable against the former only, 111. Baron and Feme.-Feme lessee for life, Baron does waste, action lies against both, 111. But if feme dies, not against baron, 111.. Aliter in case of lease for years, 111. Lease to both, and baron does waste and dies, feme punishable if she assents to the lease, 111. Assignees. Tenant for life or years who commits waste and assigns, may be sued, and premises recover- But if waste is done after assignment, assignee must be sued, 111. Aliter in case of tenant in dower, and by the curtesy, 110. And if tenant for life grants his estate on condition, and grantee does waste, and Where tenant for life or years continues to take the profits, he may be sued after Tenant in tail after possibility dispunishable, 112. But not his assignee, 112. Tenant for half a year or less time, 112. Lessee for years after lease expired, 112. Under-lessee after death of lessee, 112. Executors for waste in their own time, 112. And for waste done, where term is devised, before assent, 112. De son tort, 112. Waste does not lie against. Tenant by statute merchant, staple, or elegit, 113. At will, 113. Quare guardian in socage, 113. WHAT IS WASTE. In houses. Pulling them down, or suffering them to be uncovered, 113. Even then it is waste to pull them down, 113. Unless in case of new house never covered in, 113. Suffering walls to decay for want of plaistering, 113. Suffering timbers to rot where house is uncovered by tempest, 113. Pulling down house and rebuilding it larger or smaller, 113. Building new house semble not waste, 113. But it is waste to suffer it to decay when built, 113. Altering house or building to lessor's prejudice, 114. Tenant bound to repair, though there be no timber for the purpose, 114. Fixtures removal of waste. (See title Fixtures.) In land. Digging up the surface and carrying it away, 115. WASTE, (continued). Changing the course of husbandry, 116. But where ploughing a meadow or digging trenches in it is good husbandry, it is not So if the land is sometimes arable and sometimes meadow, 116. Suffering land to lie fallow and over-run with bushes, not waste, 116. Destroying coney-burrows not waste, 116. Suffering a wall of the sea to be in decay whereby land is surrounded, 116. Aliter if by violence of the sea, 116. Digging for gravel, brick-earth, stone, &c. 116. Unless for reparation of the house, 116. In woods. Cutting down timber, or trees accounted timber, 117. Or trees standing in the defence and safeguard of the house, 117. Lopping or topping trees, 117. Waste done sparsim in a wood forfeits the whole, 117. Not waste to cut seasonable wood or underwood, 117. Aliter to dig them up by the roots or suffer the germins to be destroyed, 117. Repairs, taking wood for, not waste, 118. Though the tenant was not bound to make them, 118. And though he covenanted to repair at his own charge, 118. Or though the lessor covenanted to repair, 118. To repair old walls, pales, &c., but not to make new ones, 118. Tenant must not sell timber and employ the money in repairs, 118. Nor cut timber, unless the repairs are actually wanted, 118. For things useful though not absolutely necessary, 118. But not where repairs are wanted through his own default, 118. In Gardens, &c. Cutting down fruit trees, 119. Ploughing up strawberry beds, though paid for to outgoing tenant, 119. Throwing down the pales of a park, the banks of a fish-pond, &c., 119. Where the value does not amount to 40d. 119. If damages under that amount, judgment for defendant, 119. Where the thing wasted is not part of the demise, 120. As where trees are excepted, 120. But proviso that lessor may cut down trees, is no exception, 120. When lessee assigns, excepting trees, and assignee cuts them down, waste lies by Where the lease is made without impeachment of waste, 120. But lessee cannot utterly waste the premises, 120. Clause "without impeachment," must be contained in the same deed as the demise, 120. The privilege is annexed to the estate, 120. Lease by tenant in tail" without impeachment," does not bind the issue, though he Lease with all timber trees, sales of wood," &c. not without impeachment, 120. If lessor after waste done accept surrender, waste dispunishable, 121. Where the waste is done by tempest, or the king's enemies, 121. Or by fire. (See title Fire.) FORM OF THE WRIT. As to the plaintiff. Must state the demise to be made by the person by whose lease the tenant is in in law, 121. Defendant not said to hold of the demise of plaintiff where there is no tenure between In waste by remainderman, writ must shew the creation of the particular estate, and of In waste against tenant by the curtesy, defendant is said to hold ex hæreditate, 122. Semble the same against tenant in dower, 122. Quare as to tenant in by the statute of uses, 122. Form when brought by assignee of reversion, 122. WASTE, (continued). As to the defendant. In the tenet. Lies against tenant for life or years, who has committed waste and assigned over, 123, 111. Where the term expires pendente lite, the writ does not abate, 125. In the tenuit. Lies where term is ended by effluxion of time, or act of God, 125. But not after surrender and acceptance by the lessor, 123. Need not be expressly brought in the tenuit; sufficient if it can be implied, 123. If by husband and wife jure uxoris, to disherison of wife, 124. Limitation of, 11. Process in, 124, 154. Essoign in, 124. Summons and severance in, 173. Count in, 186. (See title Count.) Pleas in bar in, 242. View in, 255. Receit in, 290. Damages in, 317. Costs in, 322. Judgment in, 336. WASTE, action on the case in the nature of. Nature and advantages of the modern mode of proceeding, 383. Costs recoverable, 383. Whether maintainable for permissive waste, 383, 384, 385. Where tenant covenants not to do waste, covenant or case lies, 385. Declaration in. No title stated, 386. But the nature and kind of waste must be stated and proved, 386. WATERCOURSE, action on the case for disturbance of. Nature of the right to, and how acquired, 358, 372. By adverse enjoyment, 372. Mode of enjoying need have been always the same, 358. Mere obstruction without damage no ground of action, 359. Obstruction of public navigable river for twenty years no bar to the right of user, 359. Watercourse need not be stated to be an ancient one, 375. Nor the mill to which it flows, but if stated, semble it must be proved, 375. Action for stopping whereby plaintiff's land is overflowed, 357. WAY. Different kinds of, 359. HIGHWAYS, 359. Outlets where highway is foundrous part of highway, 360. Navigable river in the nature of a highway, 360. Dedication of way to the public, 360. Presumption of, how rebutted, 360. Length of time necessary to create presumption, 361. Particular tenant cannot dedicate so as to bind owner of fee, S61. But the assent of the latter may be presumed, 361. Right of public not barred by non user, 361. PRIVATE WAYS. Modes of claiming, 362. By grant, 362. Presumed after twenty years adverse user, 362, 371. By implied grant or way of necessity, 363. Not extinguished by unity of possession, 363. But limited by the necessity which created it, 363. Other ways of necessity, 363, 364. What powers and incidents follow a grant of a way, 364. Cannot be used as a way to a close beyond the terminus ad quem, 364. Nor for other purposes than those for which it was granted, 364. Right to repair incident to, grantor not bound to repair, 364. If way impassable, grantee cannot go extra viam, 364. By prescription, 565. (See title Trespass ) Extinguished by unity of possession, 365. Old way stopped, and new way at pleasure of both parties only, 365. By custom, 365. By express reservation, 365. ACTION ON THE CASE FOR DISTURBANCE of, 365. Nature of the injury, 366. Not maintainable for disturbance in a highway, unless there be special damage, 566. For not repairing a highway where individual liable and special damage, 366. Where damages arise by unskilfulness or neglect of plaintiff no action lies, 366. Right of, how pleaded in trespass, 678 to 680. Replication to, 693. WILL, TENANT AT. Cannot be sued in waste, 113. But is liable in trespass for voluntary waste, 113. Whether liable for permissive waste, 383. Chargeable only in respect of occupation, 472. What will not be accounted tenancies at will, 523. WILLS. What competent to prove right of common, 381. Sub-lessee competent to prove performance of covenants by lessee, 465. Lessor, whose title is admitted, competent to prove, whether he demised first to plaintiff or a Tenant in possession incompetent to support landlord's title in ejectment, 583. Heir apparent, good witness in ejectment, but not remainderman, 583. What competent to prove will by stat. 25 Geo. 2, c. 6, 590. WRIT IN REAL ACTIONS. General or special, 16. Quia timet, 16. Statement of title in, 17. Words by which tenements may be demanded, 17. - Venue, 17. J. M'Creery, Tooks-court, Chancery-lane, London. ERRATA. Page 35, line 6, for "grantor," read “grantec." 66 526, note (b), for "Wells," read "Watts." 532, note (i) for "Coe," read "Doe." 566, note (g), for "540," read “538.” |