Cases and Dyer, 23 b. 1 Ab. Eq. 319. 1 Atk. 460. Went. Ex. 34. Idem, 226. Ewer v. 2 P. Wms. A Freehold cannot be goods of the person who was last possessed of the 30. Where a person appoints two or more executors, if only one of them proves the will, he alone will become entitled to any terms for years whereof the testator died possessed, and may assign them accordingly. 31. Where there are several executors, who all prove the will, they have a joint and several interest in all the goods and chattels of the testator; therefore a disposition, by one of them only, of a term for years, is good. But one administrator cannot convey an interest, so as to bind the other. 32. An executor may assign a term for years, before he has proved the will: the will must however be afterwards proved in the ecclesiastical court having jurisdiction over the place where the lands lie; otherwise it will have no effect as to the term. 33. Where a term for years is specifically devised, the assent of the executor is necessary; but if the legatee disposes of the term at any future period, the assent of the executor will be presumed. 34. A purchaser of a term for years, from an executor, is not bound to see to the application of the purchase money; even though the term be charged with the payment of a particular debt, or specifically bequeathed. Because terms for years are subject to the payment of all debts, in the first instance. 35. An estate of freehold cannot be derived from derived from a term for years. Thus, where a rent was granted for life, out of a long term for years; it was resolved to a Term. be a good charge, as long as the term lasted; but that it was only a chattel, and not a freehold; for it was repugnant to have a freehold out of a term for years. 36. Estates from year to year will be treated of in the next title. Tenants for tled to 1 Inst. 41 b. But not allowed to commit Waste. Lit. § 71. 1 Inst. 57 a. EV SECTION 1. VERY tenant for years has incident` to, and inseparable from his estate, unless restrained by special agreement, the same estovers, to which tenants for life are entitled. 2. But a tenant for years having an interest much inferior to an estate for life, has only a right to the temporary and annual profits of the land; and is therefore restrained, as well as tenant for life, from cutting down timber trees, or committing any other kind of waste. 3. Tenant for years is also punishable for permissive waste: he is therefore bound to keep all houses and other buildings upon the land in proper and tenantable repair, by keeping the roof in such a state as to prevent the rain from falling on the timbers. But Lord Coke says, if a house be ruinous at the time of Id. 54 b. the lease made, and the lessee suffers it to fall down, he is not punishable; for in that case he is not bound by law to repair it. Yet if he cuts down timber on the land, and repairs it, he may well justify. 815. Hob. 234. 4. Lord Coke also says, if tenant for years builds 1 Inst. 53 a. a new house, it is waste; and if he suffers it to be wasted, it is a new waste. The first of these propositions has been frequently contradicted. And Roll 2 Roll. Ab. lays it down, that if a lessee for years builds a new house upon the land, where there was not any before, this is not waste, for it was for the benefit of the lessor. 5. The statutes of Marlbridge and Gloucester Tit. 3. c. 2. extend to tenants for years: so that they are liable to the same actions, and the same penalties, for waste Attersol v. committed, as tenants for life are. 6. If a woman possessed of a term for years, takes husband, who commits waste, and the wife dies; the § 28. Stevens, 1 Taunt. 183. husband shall be charged in an action of waste; 1 Inst. 54 a. because by the marriage he became entitled to the term. 7. It is enacted by the statute 11 Hen. VI. c. 5. that where a tenant for years assigns over his estate, and continues in the receipt of the profits, an action of waste shall lie against him. In a case upon this statute, in 36 Eliz., it was resolved, 1. That every Booth's Case, assignee of the first lessee, mediate or immediate, was 5 Rep. 77. within the act. For the statute was made to suppress fraud and deceit; therefore should be taken beneficially. 2. That the person in remainder was within the act, as well as the person in reversion; because in equal mischief. v. Powell, cited 3 P. 8. Where there is tenant for years, remainder for Mollineux life, remainder in fee, and the tenant for mits waste; though the remainder-man for life can- Wms. 267. years com Tit. 3. c. 2. $35. Jesus Coll. v. Bloome, 3 Atk. 262. not bring an action of waste, as not having the inheritance, yet he is entitled in equity to an injunc tion. If the waste be of a trivial nature; and d fortiori if it be meliorating waste, as by building on the premises, the court will not injoin; nor if the reversioner or remainder-man in fee be not made a party, who possibly may approve of the waste. 9. The Court of Chancery will not entertain a bill against a tenant for years, after he has assigned his term, with the consent of the lessor, for an account of timber cut down by him; and without praying an injunction. 10. A bill was brought for an account of timber cut down by the defendant, and of the profit of some stones, carried off the premises by him also, while tenant; he having afterwards assigned his term, with the consent of the plaintiffs, his lessors, to a third person: and consequently no prayer for an injunction to stay waste. Lord Hardwicke." The question is, whether a bill can be brought here against a tenant, after the estate is gone out of him, for an account of waste committed, where there is no prayer of an injunction. I am of opinion that such a bill is improper, nor has any authority been cited to support it. Waste is a tort, and punishable as such, and the party has also a remedy for the trees cut down, by an action of trover. The staying waste is a specific remedy; and while the lessee continues tenant, it is to prevent a mischief for which, when done, an adequate satisfaction by way of damages cannot in many instances be given. This is the ground of the jurisdiction of this Court in such cases; and the Court having such ground, will, in order to prevent a double suit, and as incident to the other relief, decree an account of the timber felled, |