an inheritance could: he could not commit waste, nor open mines, but might work those already opened. Even a bishop could not. Talbot Bishop of Durham Rutland's Case, applied to parliament to enable him to open mines, 1 Lev. 107. but it was rejected. Parsons may fell timber, or dig contras stone to repair; they have also been indulged in selling such timber or stone, where the money has been applied in repairs. Injunctions have been granted even against bishops, to restrain them from felling large quantities of timber, at the instance of the Attorney General on behalf of the crown, the patron of bishopricks. If the demurrer had only gone to an account, it had been good; for the patron cannot have any profit from the living; but it was too general, and must be overruled. Feather stone, Jones v. Hill, Carth. 224. 3 Lev. 268. 80. In a modern case Lord Thurlow granted an in- Hoskins v. junction to stay waste, against the widow of a rector, during the vacancy, at the suit of the patroness. 81. It was resolved in 4 Will. & Mary, that an action on the case for dilapidations might be sued against a late incumbent who had resigned a benefice, or against the personal representatives of a deceased rector or vicar, by the successor. modern case it was held that an action for dilapida- Radcliffe v. tions also lay for the neglect of repairing a prebendal 2 Term R. house, by a succeeding prebendary, against his prede- 630. cessor, or his personal representative. And in a D'Oyley, 82. By the statute 56 Geo. III. c. 52. the incumbents of any benefice, with the consent of the patron and the bishop, are enabled to pay the monies to arise by sale of any timber cut from the glebe lands of such benefice, either for equality of exchange, or Tit. 32. c. 2. for the price of any house or lands purchased by them, under the authority of a statute which will be stated hereafter. Ꮮ Ꮞ Of Accidents by Fire. Chesterfield v. Bolton, 2 Com. R. 626. 6 Term. R. 651. 83.- At common law, tenants for life were not answerable for damages done by fire, whether it arose from accident or negligence. When the statute of Gloucester rendered tenants for life answerable for waste, without any exception, it rendered them responsible for all damages done by fire. But now by the statute 6 Ann. c. 31. § 6. it is enacted, "That no action, suit, or process whatsoever, shall be had, maintained, or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompence be made by such person for any damage suffered or occasioned thereby; any law, usage, or custom to the contrary notwithstanding."-By the 7th section of this statute it is provided, that nothing in this act shall defeat any contract or agreement made between landlord and tenant. 84. In consequence of this last clause it has been determined, that where a tenant for life under a settlement covenanted to keep a house in good and sufficient repair, and the house was burnt down by accident, he was bound to rebuild it. 85. It is now become usual, where the intention of the parties is that the tenant shall not be liable to rebuild in case of accidental fire to except it in the covenant to repair. WE SECTION 1. E now come to treat of those estates for life How it arises, which are derived from the operation of some principle of law. Of these the first is called an estate tail after possibility of issue extinct; which is thus described by Littleton: "Where tenements are given § 32. to a man and to his wife in especial tail, if one of them die without issue, the survivor is tenant in tail after possibility of issue extinct.” 2. "So if they have issue, and the one die, albeit that during the life of the issue, the survivor shall not be said tenant in tail after possibility of issue extinct ; yet if the issue die without issue, so as there be not any issue alive which may inherit, by force of the entail, then the surviving party is tenant in tail after possibility of issue extinct." 3. "Also if tenements be given to a man and to his heirs which he shall beget on the body of his wife; in this case the wife hath nothing in the tenements, and the husband is seised as donee in special tail: and in this case, if the wife die without issue of her body, begotten by her husband, then the husband is tenant in tail after possibility of issue extinct." Idem. Id. § 33. Littleton, $34. 1 Inst. 28 a. Idem. Bowles s 11 Rep. 81 a. 4. "And note that none can be tenant in tail after possibility of issue extinct, but one of the donees, or the donee in especial tail. For the donee in general tail cannot be said to be tenant in tail after possibility of issue extinct; because always during his life he may by possibility have issue, which may inherit by force of the same entail. And in the same manner the issue which is heir to the donees in especial tail, cannot be tenant in tail after possibility of issue extinct, for the reason abovesaid." 5. Nothing but a moral impossibility of having issue can give rise to this estate. Thus if a person gives lands to a man and his wife, and to the heirs of their two bodies, and they live to a hundred years, without having issue, yet they are tenants in tail; for the law sees no impossibility of their having issue. 6. The impossibility of having issue must proceed from the act of God, and not from the act of the parties. For if lands be given to a man and his wife, and to the heirs of their two bodies, and after they are divorced, causa præcontractus, or consanguinitatis, their estate of inheritance is turned to a joint estate for life; and although they had once an inheritance in them, yet for that the estate is altered by their own act, and not by the act of God; viz, by the death of either party without issue, they are not tenants in tail after possibility of issue extinct. 7. A person may be tenant in tail, after possibility of issue extinct, of an estate in remainder, as well as of an estate in possession. Thus if a lease be made to A. for life, remainder to B. and his wife, in special tail; and B. dies without issue, his widow will immediately become tenant in tail after possibility of issue extinct. an Estate 1 Roll. R. 184. 8. This estate, though, strictly speaking, not more It has some than an estate for life, partakes in some circum- Qualities of stances of the nature of an estate tail. For a tenant Tail. in tail, after possibility of issue extinct, has eight❘ Inst. 27 b. qualities or privileges in common with a tenant in tail. 1. He is dispunishable for waste, because he 2 Inst. 302. continues in by virtue of the livery upon the estate tail; and having once had the power of committing waste, he shall not be deprived of it by the act of God. 2. He shall not be compellable to attorn. 3. He shall not have aid of the person in reversion; because he having originally the inheritance, by the first gift, has likewise the custody of the writings, which are necessary to defend it. 4. Upon his alienation no writ of entry in consimili casu lies. 5. After his death no writ of intrusion lies. 6. He may join the mise in a writ of right in a special manner. 7. In a præcipe brought by him, he shall not name himself tenant for life. 8. In a præcipe brought against him, he shall not be named barely tenant for life. an Estate 9. There are however four qualities annexed to But is in fact only this estate, which prove it to be in fact only an estate for life. 1. If this tenant makes a feoffment for Life. in fee, it is a forfeiture; because having no longer a descendible estate in him, he cannot transfer it to another, without the prejudice and disherison of the person in remainder. 2. If an estate tail or in fee descends upon him, the estate tail after possibility of issue extinct is merged. 3. If he is impleaded, and makes default, the person in reversion shall be received; as upon default of any other tenant for life. 4. An exchange between this tenant, and a Tit. 32. c. 6. bare tenant for life, is good: for, with respect to duration, their estates are equal. This Tenant 10. It is said by Wray, Chief Justice, that if this has the Pro perty of the tenant fells the trees, the person entitled to the Timber. |