Tit. 3. c. 2. § 44. or the waste done. This is a general principle to prevent suits; and as some decree must be made, the Court will make a complete one. But without such a foundation there is no precedent of the Court's decreeing damages; and I think it would be very improper to do it, as it would tend to great vexation and oppression of tenants: and I am glad no such precedent is to be found; for the cases cited do not come up to the present. In 2 P. Wms. 240. it is not Whitfield clear that no injunction was prayed. If there was, v. Bewett, then it is but a common case; if there was not, the plaintiff was entitled to a moiety of the timber against the defendant, and therefore proper matter of account only between them. As to 1 P. Wms. 406, the bill was against an executor for an account of assets; and in a case of a mine, which differs from timber, or other waste, it being a sort of trade, and proper for an account, not trover: and the Court has decreed accounts in cases of mines, which they would not do in any other, for that very resason; and because a better remedy can be given here than at law, by decreeing inspections under ground, &c. And here, if the plaintiffs have a right, they may have their action of trover." 11. If a lessee for years commits waste and dies, 2 Inst. 302. no action of waste will lie against his executors or administrators. But the executors or administrators of a tenant for years are punishable for waste done while they are in possession. 12. Tenants for years are exempted by the statute Accidents 6 Anne, which has been already stated, from all Tit.3.c.2. by Fire. actions for damages on account of accidental fire. $ 83. Dommitt, 13. In a modern case, where there was a covenant Bullock v. in a lease for years of a house, to rebuild, without any 6 Term R. exception; and the house was burnt down by acci- 650. Clause without Impeachment of Waste. Tit. 3. c. 2. $ 55. Ep. London v. Webb, 1 P. Wms. 527. Abraham v. Bubb, 2 Freem. 63. When enti blements. dent; it was held, that the lessee was bound to rebuild it. 14. Where the clause, without impeachment of waste, is inserted in a lease for years, it will have the same effect as where it is inserted in a conveyance of an estate for life. And the Court of Chancery will in general restrain the import of it in the same manner. 15. Thus a tenant for years, without impeachment of waste, will not be allowed to dig and carry away the soil, for the purpose of making bricks. 16. The Bishop of London made a long lease of some lands at Ealing in Middlesex, without impeachment of waste; of which there were about twenty years unexpired. The lessee agreed with some brickmakers, that they might dig and carry away the soil. The Bishop applied to the Court of Chancery for an injunction; which was granted. 17. The Court of Chancery will not permit a tenant for years, without impeachment of waste, to fell timber, just before the expiration of his lease. 18. A lease was made by a bishop for 21 years, without impeachment of waste, of lands upon which there were several timber trees. The tenant had not cut down any of them, till about half a year before the expiration of his term; but then began to fell them. Upon an application to the Court of Chancery, an injunction was granted against him. For although he might have felled trees every year, from the beginning of the term, and then they would have been growing up gradually: yet it was unreasonable that he should let them grow till near the end of his term, and then cut them all down. 19. Where the determination of an estate for years is certain, as where lands are let for a certain number 1 Inst. 55 b. of years, the tenant is not entitled to emblements; Tit. 2. c. 1. because it was his own folly to sow, when he knew § 23. he could not reap. But when the determination of an estate for years depends on an uncertain event; as where a tenant for life lets for years; or where lands are let for a term of years, determinable upon the death of a person; there the tenant will be entitled to emblements, in the same manner as a tenant for life. 20. If however an estate for years determines by Idem.. the act of the tenant himself; as if he commits a forfeiture; he will not be entitled to emblements. 21. Estates for years being chattel interests, and Estates for vesting in executors or administrators, are subject to Years subject the payment of simple contract debts; and are also liable to be sold by execution, for the payment of to Debts. debts due by judgement. But if a term for years be Tit. 14. § 69. assigned to a bona fide purchaser, before execution is actually sued out, and delivered to the sheriff; it cannot afterwards be taken by a creditor. Debts. 22. Estates for years are also subject to the pay- Of Crown ment of all debts due to the crown, while such estates continue in the possession of the debtor. But it has been long settled that a bona fide assignment of an estate for years, before any execution awarded by the crown, is good. Case, 8 Rep. 171. 23. Sir W. Fleetwood being possessed of a house, Fleetwood's for a term of years, was appointed receiver general of the court of wards, and entered into bonds to the crown to render a yearly account. Having become indebted by reason of his office, he afterwards sold the house. The question was, whether this house was extendible for the debt? It was, resolved that the sale should bind the crown, because it was but a chattel, and there was no covin in the case. That a 8 Rep. 171 a. Vide 2 Roll. May be limited for Life with a Re mainder over. Dyer, 74. pl. 18. But not entailed. Dyer, 7 a. pl. 8. 8 Rep. 87 a. sale bona fide of chattels was good, after judgment; but not after execution awarded. And Lord Coke said, that a receiver or other accountant shall not be in a worse case than a felon or traitor, who may, after felony or treason, and before conviction, sell bona fide, for his sustenance, his chattels, be they real or personal. 24. It was resolved in an old case, where the king's debtor took a lease, to him and his wife for years, and before execution the husband died, that execution might be sued against the wife. For it was the act of the husband, who had power over the term at the time of his death. And his wife came into it without valuable consideration; and quodammodo continued in of the interest of her husband. 25. By the old law, a gift of a term for years, like that of any other chattel, for an hour, was a gift of the whole estate and interest; therefore it was held that there could be no limitation of a term for years, after an estate for life was created out of it. This was however soon altered, and it has been long settled that a term for years may be limited to a person for life, with a limitation over to any number of persons for life, provided they are all in existence at the time. 26. Terms for years are not capable of being entailed. 1. Because they are not within the statute De Donis, not being estates of inheritance. 2. Because if a quasi entail of a term were allowed, it would be unalienable; as no fine or recovery can be had of a term. So that the disposition of a term for years to a person and the heirs of his body, is a disposal of the entire interest in the term. 27. A distinction has been made by Lord Coke between a limitation of a term in gross, or subsisting term, to a man and the heirs of his body, and a similar 10 Rep. 78. limitation of a term de novo. In the first case the Leventhorpe residue of the term will vest in the executors of the 1 Roll. Ab. v. Ashby, person to whom it is so limited. But in the latter 831. case he was of opinion that the term would only continue as long as the person to whom it was limited had heirs of his body; and that upon failure of such Leonard heirs, the term would cease. This distinction has Lovie's Case, been long since exploded; and it is now settled, that where a term for years is limited to a person and the heirs of his body, it will continue, though the person to whom it is so limited should die without issue. 28. A. Pile by indenture demised lands to a trustee, Hayter v. his executors and administrators, for 99 years, in trust Rod, 1 P. for himself and his wife for their lives, and the life of the survivor; and after the death of the survivor, in trust for the heirs of their two bodies; and in default of such issue, then in trust for the heirs of the survivor. They had issue one son. The husband died; afterwards the son died, an infant; the mother administered to her husband and son; and assigned the term to the defendant Rod. The question was, who was entitled to the trust of this term? whether it belonged to the plaintiff, who was the heir at law of A. Pile, or to the defendant Rod, as assignee of the wife? It was decreed that it belonged to Rod, and had not ceased. Wms. 360. Union with the Freehold. 29. Where a term for years becomes vested in the Merged by a person who is seised of the freehold, by which there is a union of the two interests in one person, at the same time, the term merges in the freehold, and Dyer, 112. becomes extinct. .pl. 49. years, Chamberlain v. Ewer, 30. Tenant pour auter vie made a lease for and died, living the cestui que vie; it was agreed, that Bulst. 12. by this the lessee for years, having the possession, became occupant; and the accession of the freehold |