Tit. 2. c. 1. § 32. 3 Atk. 210. 756. 2 Atk. 383. How far restrained in Equity. Vane v. Lord 2 Veru. 738. 59. The power which a tenant for life without impeachment of waste has over his estate, with respect to cutting down timber, must be exercised during his life; and cannot be delegated to any other person, so as to enable such person to execute it after his death. 60. Lord Hardwicke has said, that where there is tenant for life restrained from waste, remainder to another for life, without impeachment for waste; the Court of Chancery will not suffer any agreement between the two tenants for life, to commit waste, to take place, prior to the period at which the second tenant for life's power properly commences. 61. A tenant for life, without impeachment of waste, is notwithstanding obliged to keep tenants houses in repair, unless the charge is excessive; and shall not suffer them to run to ruin. 62. The clause without impeachment of waste is so far restrained in equity, that it does not enable a tenant for life to commit malicious waste, by pulling down houses: for in that case the Court of Chancery will not only stop him by injunction, but will also order him to repair them. 63. Lord Bernard, on the marriage of his son, settled Raby Castle on himself for life, without impeachment of waste, remainder to his son for life, &c. Afterwards Lord B., having taken some dislike to his son, got 200 workmen together, and stripped the castle of the iron, lead, doors, &c. to the value of 3000 1. The Court of Chancery immediately granted an injunction to stay committing of waste, în pulling down the castle; and, upon the hearing of the 2 Ab. Eq.759. cause, decreed not only the injunction to continue, Rolt v. but that the castle should be restored to its former condition. 3 Atk. 215. 64. The Court of Chancery will also restrain a tenant for life, without impeachment of waste, from cutting down timber, serving for shelter or ornament to a mansion-house; as also timber not fit to be felled. 65. A bill was brought by a remainder man to Packington v. Packington, restrain a tenant for life, without impeachment of waste, from cutting down timber which served as ornament or shelter to the mansion-house, or which was unfit to be felled. Lord Hardwicke granted an Aston v. Aston, injunction to restrain the defendant from cutting 1 Ves. 264. down trees standing in lines, avenues, or ridings in O'Brien v. the park. O'Brien, 2 Bro. R. 88. 66. An injunction was moved for to restrain Strathmore v. Bowes, Mr. Bowes, the husband of Lady Strathmore, who was tenant for life, without impeachment of waste, from cutting trees in the rides or avenues to the house, or that served for shade or ornament, or were unfit to be cut as timber. v. Sands, 6 Ves. 108. v. Ferrers, Lord Kenyon (M. R.) granted the injunction, Downshire saying it ought to include every thing useful or ornamental to the house; and said he thought himself Tamworth bound to grant it as to the ornamental trees, though Id. 419. they should not be planted trees, but growing na- Day v. Merry, turally; also to extend it to young saplins, and trees not fit to cut as timber. 67. The Court of Chancery will not however, in cases of this kind, give any satisfaction to the remainder man for timber actually cut down. 68. The Court of Chancery will not permit a tenant for life, without impeachment of waste, to commit double waste. 16 Ves. 375. Rolt v. Somerville, 69. Lord Archer being tenant for life, without im- Plymouth peachment of waste, of an estate which was decreed v. Archer, 1 Bro. R. 159. Burges v. 16 Ves. 174. Is annexed to the Privity of Estate. to be sold, and the money invested in the purchase of another estate to be settled to the same uses, cut down timber. Lord Thurlow held that Lord Archer's personal representatives were bound to account for the timber cut for as Lord A. was to be tenant for life, without impeachment of waste, of the estate to be purchased, if he might commit waste upon the other estate, before it was sold, he would have the benefit of double waste. 70. The privileges given to a tenant for life, by the words, without impeachment of waste, are annexed to the privity of estate, and determine with it. Thus 11 Rep. 83 b. it is said, that if a lease be made to one for the term of another's life, without impeachment of waste, the remainder to him for his own life, he becomes punishable for waste; for the first estate is gone and drowned. Of partial Powers to do Waste. Hewit v. Amb. 508. Chamberlain v. Dummer, 1 Bro. R. 166. 3-549. 71. Some cases have arisen where estates for life have been given, with partial powers of committing waste. And the Court of Chancery has interposed to restrain the tenants for life from exceeding such powers. 72. Lands were devised to a person for life, with power to cut down such trees as four persons named in the will should allow of, or direct by writing, All these persons being dead, it was decreed that the power of cutting down timber remained; but the Court would preserve the check. It was referred to the Master to see what trees were fit to be cut down. 73. Mr. Dummer devised his estate at C. to his wife for life. In a codicil he said, "Whereas by my will my wife cannot cut any timber, now my will and mind is, that she may, during so long time as she continues my widow, cut timber, for her own use and benefit, at seasonable times in the year. Mrs. Dummer began to fell timber; the person in reversion applied for an injunction. Lord Thurlow utterly rejected the idea that Mrs. Dummer was only to cut timber for her own use, or for estovers; and thought her entitled to cut, not only such timber as would suffer by standing, but every thing which could fairly be called timber; although she could not cut such sticks as would only make paling; or saplins not proper to be cut as timber.. ante, c. 1. 74. Bishops, rectors, parsons, vicars, and other eccle- Of Waste by siastical persons, being considered in most respects Ecclesiastics, as tenants for life of the lands, which they hold jure § 57. ecclesiæ, if they cut down trees, unless for reparations, Vin. Ab. Tit. they may be punished for the same in the ecclesiasti- Dilapidation. cal courts'; as also by writ of prohibition. 75. By the statute 35 Edw. I. it is declared, that parsons shall not presume to fell trees growing in the church-yard, but when the chancel or the body of the church requires reparations. And Lord Coke has cited a case where, upon complaint to the king in 11 Rep. 49 a parliament that the Bishop of Durham had committed waste by destroying timber, a prohibition had issued against him. In another case, he is reported Stockman v. to have said, that if a bishop cut down and sold trees, Roll. Rep. Whither, and did not employ them for reparation, and any one 86. would move it, he would grant a prohibition out of the King's Bench. 1 Bos. & Pul.. 105. 76. The authority of this dictum has been doubted Jefferson v. in a modern case, in which the Court of Common Ep. Durham, Pleas held that it had no power to issue an original writ of prohibition, to restrain a bishop from committing waste, in the possessions of his see, at least at the suit of an uninterested person; and doubted Ackland v. Strachy v. Knight v. whether even the Court of King's Bench had such a power. 77. It appears however, that the Court of Chancery has long exercised this kind of jurisdiction; for there is a case stated in 2 Roll. Ab. 813, in which Lord Keeper Coventry granted a prohibition, at the suit of a patron, against a prebendary, for having wasted the trees of his prebend; and this doctrine is now fully established. 78. The patron of a living moved for an injunction against the rector to stay waste, in cutting down timber in the church-yard. Lord Hardwicke said, that a rector might cut down timber for the repairs of the parsonage-house, or the chancel, but not for any common purpose: and this he might be justified in doing under the statute 35 Edw. I. stat. 2. that by the custom of the country he might cut down underwood for any purpose; but if he grubbed it up, it was waste. He might cut down timber likewise for repairing any old pews that belonged to the rectory; and was also entitled to botes for repairing barns and outhouses belonging to the parsonage. The injunction was granted. 79. A bill was brought by a patron against a rector to stay waste in digging stones, &c. on the glebe, other than what was necessary for repairing and improving the rectory; and for an account of what had been dug and sold. The defendant demurred as to the account; as also to the staying the digging of stones, other than for repairs and improvements: and by way of answer set out that the quarries were opened before. The Court said, the parson had a fee simple qualified, under restrictions, in right of the church; but he could not do every thing that a private owner of |