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Joseph Dayani v. London Borough of Bromley [1999] EWHC Technology 186 (11th December, 1999)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

BEFORE HIS HONOUR JUDGE RICHARD HAVERY Q.C.

BETWEEN

JOSEPH DAYANI

Claimant

and

LONDON BOROUGH OF BROMLEY

Defendant

Case number 1996 ORB 1077

Date of Trial: 25th June 1999

Date of Judgment: 12th November 1999

Barry Denyer-Green for the Plaintiff ( Solicitors: Courts & Co. )

Edwin Buckett for the Defendant (Solicitors: A.E.Wyeth & Co. )

JUDGMENT

The subject-matter of this action is three leases of dwellings which were granted by the claimant to the defendant local authority. The defendant took the leases to enable it to use the dwellings to house homeless people pursuant to its obligations under the Housing Act 1985. The leases were for fixed terms of 156 weeks and, apart from the identities of the premises, the dates and the rents they were in identical terms. I have to decide two preliminary issues.

The First Issue

The first issue is whether the last nine words of clause 2.2 are effective to limit the amount of damages recoverable for breach of that clause to the amount of eight weeks' rent.
By clause 2.2, the tenant covenanted as follows:-

To keep or cause to be kept the interior of the Property in tenantable repair (reasonable wear and tear and damage by an insured risk excepted) and at the determination of this Agreement to give back the Property in such condition as it was in on entering such condition being set out in the Schedule of Condition (reasonable wear and tear and damage by an insured risk excepted including chipped paintware, some marks on walls, etc.), up to a maximum value of eight weeks rent.

The clause contains two obligations: first, to keep the interior of the property in tenantable repair; and second, to give back the property in such condition as it was in on entering. Both those obligations contain parenthetical exceptions. Ignoring the last nine words, the clause is meaningful and clear. It cannot be that either of those obligations is qualified by the last nine words. That would make no sense at all.
Syntactically, the last nine words cannot possibly qualify the first parenthetical exception. If one were to move the second closing bracket from its existing position to the end of the clause, then the last nine words could syntactically govern the second parenthetical exception. The wording would still be infelicitous. One could read it as providing that there is a breach of the second obligation if the cost of remedying reasonable wear and tear in such a manner as to put the property in such condition as it was in on entering exceeds the value of eight weeks' rent. In that case, however, the syntax would also require that the exception of damage by an insured risk would likewise be limited. That would appear to make no commercial sense.
Mr Edwin Buckett, counsel for the defendants, expressly disclaimed that approach. He submitted that the last nine words of the clause did not qualify the words in brackets. He submitted that any reasonable person would read the clause as limiting the liability of the tenant to the landlord. The landlord knew that the properties were to be let as short term lets for homeless people, at a modest rent with short notice periods (twelve weeks). Clearly it was contemplated that there might well be some damage to the property by the nature of the letting and it was liability for that that was sought to be limited by clause 2.2. He submitted that the clause should be read as though the last nine words were replaced by the words "The tenant's liability for breach of this clause shall be limited to a maximum value of eight weeks' rent". I see no reason to suppose that the intention was to limit the tenant's liability. The clause is not ostensibly a clause relating to damages. The background referred to by Mr Buckett could in my judgment equally well justify a limitation of the exception rather than of the tenant's liability.
The primary submission of Mr Barry Denyer-Green, counsel for the claimant, was that the nine words were meaningless and could be disregarded as superfluous. His fall back position was that they limited a dilapidations claim for loss of rent arising during a period when repairs were carried out to the value of eight weeks' rent.
Mr Buckett submitted that if the last nine words were meaningless, the whole clause should be struck down.
I find that the nine words in question are unintelligible in this context. I cannot find any meaning that is plausible. A clause that is meaningless can be ignored. I have to decide whether the nine words should be ignored or the whole clause. I have no hesitation in concluding that the rest of the clause, which must at least approximate to the parties' intentions, must stand. To strike it down would surely depart further from their intentions than to strike down the nine words. Thus clause 2.2 is to be construed as though the last nine words were not there.

The Second Issue

The second issue is whether the tenant under the leases in question can be liable for permissive waste.
The tenancies in question were for fixed terms. It follows that the defendant was a tenant for years: see Woodfall on Landlord and Tenant, release 41, paragraph 6.010. It is there stated that every estate which must expire at a period certain and pre-fixed, by whatever words created, is an estate for years. A leasehold interest may be a term of years, even though it is for less than two years. Those propositions were not in issue.
In this judgment I have to quote a number of ancient statutes. I use the translations contained in Statutes of the Realm, volume 1, 1810. That work was prepared by the Record Commissioners set up by royal command pursuant to an address of the House of Commons. A description of the publications of the statutes and a history of the various translations into English, the first of which date from the early 16th century, are contained in chapter I, section I of the introduction. The sources of the text are given in chapter III, section II of the introduction. There is a useful explanation of the contractions used by the early scriveners and later printers at appendix D to the introduction. The Commissioners compared the various printed and manuscript texts of each statute, which are not always by any means identical, and produced or used translations which they considered best fitted to the available source material. Those translations I regard as definitive. They are expressed in somewhat archaic language, and I have made, here and elsewhere in this judgment where I have quoted archaic English, minor amendments to put them into modern English, without altering the sense.
The Statute of Marlborough, 1267, chapter 23, section 2, provides as follows:

1. Also farmers, during their terms, shall not make waste, sale or exile of house, woods, men, or of anything belonging to the tenements that they have to farm, without special licence had by writing of covenant, making mention that they may do it; which thing if they do, and thereof be convicted, they shall yield full damage and shall be punished by amerciament grievously.

2. The Commissioners noted that the word "house" should read "houses".

3. The statute was commented upon by Lord Coke, C.J., in Part 2 of his Institutes of the Laws of England, (the ed. of W Clarke & Sons 1817 p.145) as follows:

4. The mischief before this statute was, that against lessees for life or years, there lay no prohibition of waste at the common law, because they came in by the act of the lessor, and he might have provided upon the making of the lease, against waste to be done, and him that might and would not provide for himself, the common law would not provide for: otherwise it is of estates created by law, as tenant in dower, and the guardian; but seeing waste and destruction is hurtful to the commonwealth, this act provides remedy for waste done by lessee for life, or lessee for years, and it is the first statute that gave remedy in those cases: for the rule of the Register is, that there are five manner of writs of wastes, viz. two at the common law, as for waste done by tenant in dower, or by the guardian; and three by statute, or special law, as against tenant for life, tenant for years, and tenant by the curtesy.

He said that firmarii (farmers) comprehend all such as hold by lease for life, or lives, or for years, by deed or without deed; and went on to say:

5. To do or make waste, in legal understanding in this place, includes as well permissive waste, which is waste by reason of omission, or not doing, as for want of reparation, as waste by reason of commission, as to cut down timber trees, or prostrate houses, or the like; . .

6. He said that single damages were given by the statute against lessee for life and lessee for years.
If those passages were correct, it is clear that at the time of Charles I, when they were written, a tenant for years was liable for permissive waste. However, Mr Buckett submitted that they were wrong. I shall return to that question.
The point arose, but was not decided, in Harnett v. Maitland (1847) 16 M & W 257, a decision of Parke, Alderson, Rolfe and Platt, BB, in the Court of Exchequer. The claim failed upon a demurrer, but the following remarks were made in the unanimous judgment:

7. As to the question, whether the action for permissive waste lies against a tenant for years, all the authorities are collected in the notes to Greene v. Cole, in 2 Saund. 252, where it is stated as clear law, that at common law the action only lay against tenant by the curtesy, tenant in dower, or guardian, but that by the statute of Gloucester, 6 Edw. 1, c. 5, the action is given against lessee for life or years, or tenant pur auter vie, or against the assignee of tenant for life or years for waste done after the assignment. The same authorities are referred to in Vol. 1, p.323 b, where, however, it is said that the point cannot yet be considered as absolutely settled. We are all of opinion, however, that this declaration is defective on general demurrer, for not bringing the case within the class of persons who are liable for permissive waste, for want of an averment that the defendant was tenant for life or years, it being agreed on all hands that a tenant at will is not liable for permissive waste. On this ground there will be judgment for the defendant, without saying anything upon the other point.
In Yellowly v. Gower (1855) 11 Ex. 274 the Court of Exchequer, in a judgment delivered by Parke, B., unanimously decided that a tenant for years was liable for permissive waste. Parke B., said (p. 293):

8. A doubt has been stated indeed in a note to 2 Saund. 252b, whether a tenant for years is liable for permissive waste . . .These doubts arise from three cases in the Common Pleas: Gibson v. Wells 1 N.R. 290, Herne v. Benbow 4 Taunt 764, Jones v. Hill 7 Taunt 392. Upon examining these cases, none of which appears to be well reported, the Court seems to have contemplated the case only of a tenant at will in the two first cases, and in the last no such proposition is stated, that a tenant for years is not liable for permissive waste. We conceive that there is no doubt of the liability of tenants for terms of years, for they are clearly put on the same footing as tenants for life, both as to voluntary and permissive waste by Lord Coke, 1 Inst. 53, Harnet v. Maitland.
In Morris v. Cairncross (1906) 14 Ontario L.R. 544, 570 the Divisional Court of Ontario, in a judgment delivered by Meredith C.J., after thorough consideration of ancient and modern authorities, concluded that Yellowly v. Gower was rightly decided, and that its authority had not been impugned or affected by any subsequent case, or displaced by the provisions of the Judicature Act. However, Meredith, C.J., pointed out that the Statute of Marlborough as revised in its application to Canada by virtue of the Constitutional Act of 1792 reads: "Lessees making or suffering waste on the demised premises without licence of the lessors shall be liable for the full damage so sustained". Thus it would seem that that statute, as so revised, was sufficient for the decision on the point.

In Davies v. Davies (1888) 38 Ch D 499, Kekewich J. held that a tenant for years was liable for permissive waste. He said at p. 503:

9. Actual waste, that is to say, waste committed by him, would of course render him liable to eviction; but it is said that that does not apply to a case of this kind - that a lessee for years is not liable to an action for permissive waste - that is to say, for allowing waste which has not come about by his own acts, but comes about by a revolution, or by wear and tear, or by the action of the elements, or in any other way not being his own act.

10. Cases have been cited to shew that a tenant from year to year is not so liable, and I am told that a case was recently argued and decided in a Divisional Court on that subject. But it seems to me that on the face of the case that point was not raised. If, when reported, it shews that my judgment is wrong, I must leave counsel to use it as an authority elsewhere. No doubt from time to time there has been a good deal of discussion on this point, and we have the very high authority of the late Mr Justice Williams for saying that some modern decisions had given rise to a doubt whether an action on the case for permissive waste can be maintained against any tenant for years, but he adds that this was stifled by the case of Yellowly v. Gower.

11. Kekewich, J. was there referring to the note in the 1871 ed. of Williams on Saunders edited by Sir Edward Vaughan Williams. Kekewich, J. continued, with reference to Yellowly v. Gower:

12. That case has been discussed a good deal, but I do not intend to go into it further here than to say that it seems to me to shew that what is said there by Mr Justice Williams as to stifling the question, was also the view of Mr Justice Lush and Mr Justice Field, who heard the case of Woodhouse v. Walker (1880) 5 Q.B.D. 404. The decision in that case no doubt went on the ground that there was a condition on the part of the tenant for life to keep the premises in repair. The case also is reported on a point with which we have nothing to do here, namely, as to the person who is entitled to sue (which, apparently, was likewise a question in the case which has been mentioned) but judgment was reserved, and was ultimately delivered by Mr Justice Lush, and he went into the old law, and on page 407 he thus refers to this conflict of modern authorities:- "It is not necessary in this case to enter into the question whether an action on the case for permissive waste can be maintained against a tenant for life or years, upon whom no express duty to repair is imposed by the instrument which creates the estate. The modern authorities, or rather the dicta upon this point, appear to be strangely in conflict with the ancient reading of the statutes." I should have no doubt, after reading that sentence, that at any rate both Mr Justice Lush and Mr Justice Field thought as Mr Justice Williams did, that a tenant for years was impeachable for permissive waste. That being so, and myself holding that opinion, I look at the lease to see whether this lessee is freed from the obligation which the law would otherwise impose on him of being liable for permissive waste.

13. The doubt, however, does not seem to have gone away. In Woodfall on Landlord and Tenant release 41 at paragraph 13.124 it is said:

14. The question whether permissive waste fell within these statutes has been much discussed . . . Lord Coke's view appears open to question, on the grounds (1) that the Statute of Marlborough, by the words "make" waste, sale or exile, points to positive acts only; (2) that the special licence spoken of in that statute points to such acts only, being inappropriate to a mere omission to repair; and (3) that it is unreasonable to suppose that the Statutes of Gloucester would have prescribed so harsh a penalty as forfeiture and treble damages for such mere omission. The question arises whether Yellowly v. Gower would be considered as having been too long accepted to be now overruled, whatever might be the opinion of a court upon the correctness of that judgment . . . If the supposed liability of a tenant for years for permissive waste was founded to any extent on chapter 5 of the Statutes of Gloucester, then it is material to note that Yellowly v. Gower was decided before the repeal of that statute. It is thought there must be considerable doubt whether a tenant for years would be found liable for permissive waste if the matter were thoroughly tested at the present day.

15. Having regard to the doubt which seems to have prevailed for two centuries, Mr Denyer-Green asked me to give a definitive decision on this question. Whether this judgment will turn out to be definitive, I cannot say; but the question clearly merits thorough testing, to use the language of Woodfall quoted above. Accordingly, I have thought it right to research the authorities, going beyond those cited to me by counsel at the initial hearing (which include all the authorities cited above).

16. Mr Buckett submitted that Coke was wrong. It is indeed true that his Institutes were a textbook and not a binding judicial decision. In particular, Mr Buckett submitted that the Statute of Marlborough, chapter 23, was a criminal statute not a civil statute. He cited the definition of amerciament in Jowitt's Dictionary of English Law (1977):

Amerciament or Amercement; Amerce.

17. An amercement was a pecuniary punishment for an offence in respect of which the offender stood in the court of his lord, whether the king or a subject, at the mercy (à merci, in misericordia) of the lord. The amount of an amercement appears to have been originally arbitrary (Britton 219b), but gradually the amount became fixed by custom in many cases; and, after Magna Carta, 1215, the law was that a freeman should, except where the amount was fixed, be amerced only according to his means, being assessed or affeered (see AFFEERORS) by his peers, and that no amercement should be made for a small fault (8 Co.Rep. 39b); and if the amercement was made elsewhere than in a court of record, a remedy in respect of its amount was provided by the writ moderata misericordia. The court which decided that an amercement was payable was said to amerce; and its decision was indicated by the writing, in the roll of the court, of the words, Ideo est in misericordia. The court might be a court leet, a court baron, or any court of record (q.v).

18. Amercements were made, not only on individuals, but on counties, hundreds, and towns, such amercements being made by the superior courts andbeing affeered by the coroners. The same practice prevailed with regard to amercements on sheriffs or officers of the superior courts. Amercements so made were known as amercements royal.

19. Amercements also applied to judicial proceedings. A suitor, for instance, was "in mercy" if he failed in his suit, and a jury was "in mercy" for making a false presentment. Amercements, being a source of revenue to the Crown, were levied at almost every stage of proceedings.

20. The distinction between an amercement and a fine (q.v.) was that, except where the courts were restrained by custom or legislation, an amercement was entirely in the discretion of the court, while a fine was fixed and certain (8 Co.Rep. 39a). This distinction led to the amercement being described by the old writers as a more merciful punishment than a fine. Amercements have long been obsolete but their meaning was considered in Re Nottingham Corporation [1897] 2 QB 502.

Whatever may have been the nature of the remedy provided by the Statute of Marlborough, c.23, a civil remedy was provided by the Statute of Gloucester, 1278, c.5:

21. It is provided also, that a man from henceforth shall have a writ of waste in the Chancery against him that holds by law of England, or otherwise for term of life, or for term of years, or a woman in dower; and he who shall be attainted of waste, shall lose the thing that he has wasted, and moreover shall recompense thrice so much as the waste shall be taxed at.

22. Law of England refers to curtesy; apparently no such law existed in France (Holdsworth's History of English Law 3rd. ed. vol 3, p.186).
23. A further civil remedy was provided by the Statute of Westminster 2 (1285) c.14, which provided:

24. Whereas for waste done in the inheritance of any person, by guardians, tenants in dower, tenants by the curtesy of England, or otherwise for a term of life [or years] a writ of prohibition of waste has been used to be granted, by which writs many were deceived, thinking that such as had done the waste should not need to answer but only for waste done after the prohibition to them directed; our lord the king, to remove from henceforth this error, has ordained, that of all manner of waste done to the damage of any person, there shall from henceforth be no writ of prohibition awarded, but a writ of summons, so that he of whom complaint is shall answer for waste done at any time; . . . .

(The words in square brackets do not appear in the Latin. It is explained in the introduction to the Statutes of the Realm, at p. xliii, that in square brackets are "words contained in all translations, and authorised by printed copies of the Latin or French text; though not authorised by the text, or by any various reading, here given, from manuscript records or authorities"). The statute went on to provide for what happened if he of whom complaint was did not answer the summons. The procedure culminated in a sheriff's inquest of the waste done, "and after the inquest shall pass into judgment like as it is contained in the Statute of Gloucester". The expression writ of summons has a modern, though not ultra-modern, ring in the context of the institution of civil proceedings.
25. The question of criminal and civil remedies is discussed in Holdsworth's History of English Law 3rd. ed., volume 3, p.404 in the context of the writ of conspiracy given by the so-called Statute of Conspirators, probably of 1293:

26. The writ of conspiracy resembles many other writs of the 13th century in that it is by no means clear whether the remedy contemplated by it was criminal or civil. In fact, like the writ of trespass, the remedy given by it was both of a criminal and civil nature, and so in later law a plaintiff could either indict the defendants, or sue them for damages.

Holdsworth continues at p. 406:

27. Thus it is quite clear that the scope of the offence was being very much extended by the application to it of the action on the case. And not only was its scope being extended by the action on the case, but its nature was becoming somewhat altered by reason of a difference in the character of the conditions needed to support such an action. The gist of all actions on the case was the damage suffered by the plaintiff. Hence the cause of action was not, as in the proceedings under the writ of conspiracy, the act of conspiring, but the resulting damage.

28. As to the action on the case, there is a note of Serjeant Williams, the father of Sir Edward Vaughan Williams, to the report of Greene v. Cole (1670) in 2 Wms. Saund. 252. (The note goes back at least to the 4th ed. (1809) of Williams on Saunders, which was edited by Serjeant Williams). It says, with reference to the action of waste:

29. But this action is now very seldom brought, and has given way to a much more expeditious and easy remedy by an action on the case in the nature of waste. The plaintiff derives the same benefit from it, as from an action of waste in the tenuit, where the term is expired, and he has got possession of his estate, and consequently can only recover damages for the waste; and though the plaintiff cannot in an action on the case recover the place wasted, where the tenant is still in possession, as he may do in an action of waste in the tenet, yet this latter action was found by experience to be so imperfect and defective a mode of recovering seisin of the place wasted, that the plaintiff obtained little or no advantage from it; and therefore where the demise was by deed, care was taken to give the lessor a power of re-entry, in case the lessee committed any waste or destruction; and an action on the case was then found to be much better adapted for the recovery of mere damages than an action of waste in the tenuit. It has also this further advantage over an action of waste, that it may be brought by him in the reversion or remainder for life or years as well as in fee, or in tail; and the plaintiff is entitled to costs in this action, which he cannot have in an action of waste . . . . But now it has become the usual action as well for permissive as voluntary waste.

30. The problem for a plaintiff whose estate was for life or years is explained by an illustration given by Holdsworth, op.cit., vol. 7, p. 279. Suppose property is given to A for life, remainder to B for life, remainder to C and his heirs. A committed waste. B could not sue because he had no estate of inheritance. C could not then sue because his estate was not immediately depending upon the estate of A. C could sue when B's estate determined; but only if he was still alive, for the person bringing the action must have an estate of inheritance in him at the time when the waste was committed; so that if C had died when B's estate determined, C's heir could not sue.

31. Mr Buckett submitted that in Yellowly v. Gower Parke B. was wrong to distinguish Gibson v. Wells, Herne v. Benbow and Jones v. Hill. Parke B. said that the court seemed to have contemplated only a tenant at will in the first two cases. The headnote in Gibson v. Wells (1805) 1 Bos. & Pul. (N.R.) 290 reads "An action on the case does not lie for permissive waste". The case was an action on the case in the nature of waste. The first count alleged that the defendant was a tenant for a certain term and had committed voluntary waste. What was proved at the trial before Sir James Mansfield, C.J., was that the defendant had occupied the house in question as tenant at will. The judge, being of the opinion that dilapidations proved amounted only to permissive waste, nonsuited the plaintiff, saying that although an action on the case in the nature of waste might be maintained for commissive waste, he had never known an instance of such an action being maintained for permissive waste only. On a motion to set aside the nonsuit, the same judge observed that if the action were maintainable, such an action might be brought against a tenant at will who omitted to repair a broken window. He thought the action was an innovation. Serjeant Bayley subsequently referred the court unavailingly to several precedents of counts and declarations for permissive waste similar to those in the case in question, but apparently they had been joined with counts for voluntary waste. Whether those precedents related to tenancies at will does not appear. On the point in question no express decision could be produced.

32. It is clear that the decision itself related only to a tenancy at will, that being the only tenancy that according to the report had been found to exist. What is not clear is whether Sir James Mansfield, C.J., was intending to lay down a broader rule, as set out in the headnote. The case cannot be regarded as binding authority for a broader rule.

In Herne v. Bembow (1813) 4 Taunt. 764, the headnote says "Case for permissive waste does not lie against a tenant by lease, who has not covenanted to repair". This again was an action on the case in the nature of waste. The premises were demised by the plaintiff to the defendant by lease. The reference to a lease does not in my judgment imply a term of years; it could create a periodic tenancy or a tenancy at will. The court said that an action on the case did not lie against a tenant for permissive waste, apparently relying on the Countess of Shrewsbury's Case (1600) 5 Co. Rep. 13. The Countess of Shrewsbury's case decided that a tenant at will is not liable for permissive waste where confidence has not been reposed in him. The reference by the court in Herne v. Bembow to the Countess of Shrewsbury's case suggests that the tenancy was a tenancy at will. Parke B., in Yellowly v. Gower appears to have arrived at the same conclusion.
In Jones v. Hill (1817) 7 Taunt. 392 a lessor had granted a lease for 21 years from 24th June 1794 and had covenanted thereby to cause the alterations and improvements then going on under the direction of J.M., and the lessee covenanted to repair the premises and to yield them up in as good plight and condition as they should be in when finished under the direction of J.M. It was pleaded that the defendant tenant had neglected to repair the premises and had suffered and permitted them to be ruinous and yielded them up to the plaintiff so ruinous and in much worse order and condition than when the same were finished under the direction of J.M. At nisi prius Dallas J. directed a nonsuit, with liberty to move to set it aside, on the ground that an action upon the case could not be maintained for permissive waste. The headnote says "Semble that case will not lie against a lessee for years for permissive waste". In a motion in the Court of Common Pleas to set aside the nonsuit, Gibbs C.J. declined to express an opinion whether permissive waste might lie. He said this:

33. I do not say whether permissive waste may or may not lie, but it is impossible that it should be waste, to omit to put the premises into such repair as A.B. had put them into. Waste can only lie for that which would be waste if there were no stipulation respecting it; but if there were no stipulation, it could not be waste to leave the premises in a worse condition than A.B. had put them into. I think that is certainly not waste.

34. The report goes on to say that the rest of the court concurred in refusing the rule, and there is a footnote to the following effect:

35. The reporter did not collect whether the Court expressed any decided opinion on the 2d and 3d counts, on which the counsel did not much dilate, but which had no reference to the repairs done by J. Middleton.
I reject Mr Buckett's submission that in Yellowly v. Gower Parke B was wrong to distinguish Gibson v. Wells, Herne v. Bembow and Jones v. Hill. There is, however, the decision of Dallas J. at nisi prius in his favour.
Mr Buckett submitted that a tenant for life was not liable for permissive waste; it followed that Lord Coke, C.J. was wrong in expressing the contrary view; and that it would be anomalous for a tenant for years to be so liable if a tenant for life was not. As to the first proposition, he relied on the decision of Kay, J. in Re Cartwright. Avis v. Newman (1889) 41 Ch. D. 532. I shall return to that decision; but Mr Denyer-Green did not argue that it was wrong. If that decision is right and Mr Denyer-Green is otherwise right, it follows that the law on this subject in relation to tenants for life has diverged from the law in relation to tenants for years.
Before considering the cases further, I shall consider the views of jurists. Littleton wrote his Tenures about 1475 as a monograph to teach law to his son Richard. He said, somewhat parenthetically, in the context of tenancies at will:

36. Also, if a house be leased to hold at will, the lessee is not bound to sustain or repair the house, as tenant for term of years is tied. But if tenant at will commit voluntary waste, as in pulling down of houses, or in felling of trees, it is said that the lessor shall have an action of trespass for this against the lessee . . .

(Littleton's Tenures in English, pub. Butterworth 1825, section 71, emphasis added. It is

stated that the translation given in the 2nd. ed. of Coke on Littleton has been followed).
In part 1 of Coke's Institutes, on Littleton (pub. 1628), section 67, Coke comments at p. 53a:

37. An action of waste lies against tenant by the curtesy, tenant in dower, tenant for life, for years, or half a year, or guardian in chivalry, by him that has the immediate estate of inheritance, for waste or destruction in houses, gardens, woods, trees, or in lands, meadows, etc. or in exile of men to the disherison of him in the reversion or remainder. There are two kinds of waste, viz. voluntary or actual, and permissive. Waste may be done in houses by pulling or prostrating them down, or by suffering the same to be uncovered, whereby the spars or rafters, boarding, or other timber of the house are rotten. But if the house be uncovered when the tenant comes in, it is no waste in the tenant to suffer the same to fall down.

38. The following propositions also appear on the same page:

39. Though there be no timber growing upon the ground, yet the tenant at his peril must keep the houses from wasting.

40. A wall uncovered when the tenant comes in, is no waste if it be suffered to decay.

41. To suffer the pale to decay, whereby the deer are dispersed, is waste [of a park].

42. And it is to be observed, that there is waste, destruction and exile . . . So it is, if the tenant cut down underwood, (as he may by law) yet if he suffer the young shoots to be destroyed, or if he stub up the same, this is destruction.

43. The following propositions appear on p. 53b:

44. If the tenant suffer the houses to be wasted, and then fell down timber to repair the same, this is a double waste.

45. It is waste to suffer a wall of the sea to be in decay, so that by the flowing and re-flowing of the sea, the meadow or marsh is surrounded, whereby the same becomes unprofitable; but if it be surrounded suddenly by the rage or violence of the sea, occasioned by wind, tempest, or the like, without any default in the tenant, this is no waste punishable. So it is, if the tenant does not repair the banks or walls against rivers, or other waters, whereby the meadows or marshes are surrounded, and become rushy and unprofitable.

Blackstone in his Commentaries (1774 ed.), Book II, ch. XVIII section V, wrote this:

46. But, in our ancient common law . . .waste was not punishable in any tenant save only in three persons; guardian in chivalry, tenant in dower, and tenant by the curtesy; and not in tenant for life or years. . .But in favour of the owners of the inheritance, the Statutes of Marlborough, 52 Hen.III c.23, and of Gloucester, 6 Ed. 1 ch.5, provided that the action for waste should not only lie against tenants by the law of England, or curtesy, or those in dower, but against any farmer or other that held in any manner for life or years. So that, for above 500 years past, all tenants merely for life or for any less estate have been punishable or liable to be impeached for waste, both voluntary and permissive; . . .

47. The punishment for waste committed was, by common law and the Statute of Marlborough, only single damages; except in the case of a guardian, who also forfeited his wardship by the provisions of the great charter; but the Statute of Gloucester directs, that the other four species of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages, to him that has the inheritance.
I turn now to the old cases, beginning with the Year Books.
21 E.1 (1293) YB (R.S.)21 & 22 Ed.1 30

48. If the sheriff hold the inquest and return that the grange and bakehouse were burned by accident, and do not say whether the conflagration was caused by the default of the tenant or not, the sheriff will be again ordered to enquire whether the conflagration was caused by the default of the tenant or not; and if he return that it was by the default of the tenant, he (Adam) will recover his damages.

49. Adam was the person of whom the defendant held the tenement for life.
Translations of numerous Year Book cases referred to in Coke and in Viner's Abridgement have been kindly prepared for me by Dr Paul Brand, of All Souls College, Oxford. Those that bear upon the point in question follow. The sources of the references are given in brackets; the references to Viner are references to volume 22 of his General Abridgement of Law and Equity 2nd. ed. 1794.

29. E.3.33 [1355] [Co. Litt. 53a (b)]

50. In waste for a chamber demolished and sold Gower says that at the time of the making of the lease it was very weak and so it collapsed through a storm and we did not demolish it nor did it collapse by our fault. And this was held a good response.

But note that Ousefleet challenged this because he did not deny that he had sold the wood etc. and thus an action of waste was given to him because no other action is given to us. This was not allowed by the court because he had made a full response to the main point of the action, namely that the chamber did not fall by his default, because the sale of the wood is not accessory to the other etc.

51. The nature of the lease is not clear, but the tenancy can scarcely have been by way of dower, curtesy or guardianship. A tenant's liability for permissive waste is assumed.

42 E.3.21 [1368] [Co.Litt.53a (f)]

52. The prior of the Hospital of St John brought a writ of waste against one J. and alleged that he had committed waste in certain tenements which he held for the term of his life by the lease of his predecessor, namely in respect of a chamber, a bakehouse, a grange and other buildings to the disinheritance of the said house and hospital . . . .

Belknap. . . . As to the bakehouse it was so weak at the time of the making of the lease that it fell down and he could not prevent this, and so judgment if you can have action for this etc.

Cavendish. It was in good enough repair at the time of the making of the lease and decayed by your default and thus you committed waste, as we are ready etc.

53. It seems from the argument of both counsel to have been common ground that the tenant for life would have been liable if, by reason of his failure to keep the bakehouse in the state of repair in which it was at the commencement of the lease, it fell down.
12. H.4.5 [1410] [Co. Litt. 53a (g)]

54. The abbot of Sherborne brought a writ of waste against two husbands and their wives and when the grand distress was returned one husband and wife defaulted and the other husband and wife appeared.

Skrene. . . . if I lease buildings for a term of years and they are unroofed by a sudden accident I will have no action of waste for that.

55. HULL, J. What you say is not law because although initially it will not be adjudged waste committed by him but by act of God if he allows the building to remain without a roof and so the timber is damaged he is answerable for that waste because that is his default and by law he is obliged to roof the building.

Skrene. If the whole building is blown down by a sudden wind I am not obliged to rebuild it.

56. HULL, J. I concede that but where the timbers are standing, which are the substance of the building, and decay for lack of roofing, that is obviously waste.

57. Hull J. (sitting with Thirning, C.J. and Hankford, J.) thus expressed the view (to which there was no reported dissent) arguendo that a tenant for years is liable if through his default he fails to keep the building in repair.

7 H.6.38 [1429] [Co. Litt. 53a (e) and Viner 442, no. 17]

58. Waste was brought against one and waste was assigned in respect of a chamber because he had allowed it to fall down for lack of roofing and also in certain cottages, . . .

Newton. . . .As for the chamber we tell you that it was unroofed at the time of the lease and beforehand and for lack of great timbers was weak and rotten at the time of the lease and after the lease we roofed it as soon as we could and it did not collapse for lack of roofing after the lease. As for one cottage, the great timber was so weak and so rotten at the time of the lease that it could not stand and so it collapsed; judgment whether waste is to be adjudged against them. . .

Cottesmore. As for the chamber, it fell down for lack of roofing after the lease, as we are ready etc.; as for the cottages, the great timber was not rotten at the time of the lease as we are ready etc.; . . .

59. So note from this plea that if trees are felled by the wind they belong to the tenant for life and not the reversioner: but query.

60. The note at the end implies that the lease was a lease for life. The case was brought and argued on the basis that the tenant is liable where a building falls down in consequence of his not having kept the roof in repair.

11. H.6.1 [1432] [Co. Litt. 53a (i) and Viner 438, no. 10]

61. Waste brought against a tenant for term of years for the cutting down of one hundred oaks and allowing the wood to lie unenclosed so that animals have eaten the shoots of the said wood so that they have ceased to grow.

Danby It was not the practice in such cases until recently to count in this way but to count generally that he has felled the trees and destroyed the underwood and the shoots; no more than one would mention it in the count if it was a stranger who came on to the land and felled the wood; but it is now the practice to count thus about 'allowing'.

62. MARTIN, J. It is a good practice for if he counts generally in this case and the other plead 'no waste committed' the lay men will perhaps find that none was committed . . .

63. And then MARTIN, J. ordered Rolf to plead in respect of the shoots.

Rolf. As to them we tell you that our servants when they carted away wood negligently left the gates to the wood open and animals entered and ate the shoots but they grew back and we committed no other waste.

Fulthorpe. We ask that he be convicted on his own admission because if the animals have eaten the shoots they will never afterwards become timber but only shrubs.

Rolf (maintaining our claim that the animals entered the wood by the negligence of our servants and ate the shoots and they grew again afterwards) by way of plea we say no waste committed.

64. MARTIN, J. If in your protestation you admit waste the plaintiff will be able to take advantage of this as much as if you had admitted it in your plea; and so etc.

And then Rolf. No waste committed in the manner etc., as we are ready etc.

Danby. Nothing will be entered on the roll except generally 'no waste committed'.

65. Here, the case was brought on the basis that a tenant for years can be liable for permissive waste. Counsel appears to have admitted permissive waste on the facts, though subsequently making a tactical withdrawal of that admission. It also appears that by 1432 it was the practice to allege permissive waste as such.

5 E.4 89 [1465] [Viner 446, no. 9]

66. A writ of waste was brought and declaration made that the waste had been committed in a messuage, namely in one hall and assigned the waste in a chamber etc. and in a kitchen and assigned the waste in allowing the kitchen to fall down because he did not put piers under the walls of the kitchen called the 'grunsel' etc. Judgment was asked of the count as this could not be waste to allow the 'grunsels' of a building to waste, for the tenant, namely the termor or lessee, is not obliged to have this thing repaired any more than the timber of the messuage because if he keep the buildings roofed so that the timber does not waste because of lack of this nor the grunsels of the building nor the timber of the walls the tenant does enough on his part because he is not obliged to repair the timber of the house nor of the 'grunsels' which is the basic structure of the building as much as the posts and the timber of the building. But repairs of this sort belong solely, as it seems, to the lessor, the lord, and not to the tenant and thus it seems that this previously mentioned is not waste in the tenant etc. According to some of the court it seemed to the contrary for if the tenant allow the 'grunsels' to waste and by his failure to protect or to remove water which flows or runs onto this or earth or dung or other nuisance which lies or rests on it the tenant will be charged with this as much as if he broke the 'grunsels' and caused the building to fall down because the tenant is at least obliged to ensure that which is leased to him is in as good a condition as it was when it was leased to him. So in the case here if the plaintiff had declared that he leased this kitchen to him well-roofed and with good 'grunsels' and good walls and all in good condition and then the tenant allowed the 'grunsels' to waste and rot and so the building fell down then the tenant, as it seems, will be charged with waste as a result of his own folly. Likewise here because by this declaration it will be taken by common understanding that the kitchen was prima facie sufficient and was good throughout, that is, in good repair above and below etc. and so then by his sufferance, he declared further, he suffered the 'grunsels' to be wasted and that cannot be taken otherwise than that everything was fine at first and now by his sufferance was otherwise and a tenant will be put by the law at least to repair it because he leased it to him to be left in as good a condition every time and thus to repair and look after it in at least as good a condition as he found it; and otherwise he is chargeable with waste etc.

Littleton. This matter goes to our action in this respect.

Catesby. I was taught that this is an exception to the count and by this the whole count is abatable.

67. CHOKE, J. If this is or is not adjudged waste, whichever one, that will only affect the action in this respect, for if it is not adjudged waste the plaintiff will not be barred by this except from this part of his claim and the remainder will still stand etc.

68. And because the better opinion of the court was that the count was good the defendant passed over and pleaded no waste.

69. The court apparently expressed the opinion that a count in a writ of waste against a tenant for years (termor) alleging waste by failure to repair the premises was a good count.

10. H.7.2 [1494] [Co. Litt. 53a [b]]

70. Waste brought by an abbot; and he counted how the defendant had committed waste in various things in lands leased to him by his predecessor for a term of years; and assigned as waste . . . the permitting of a certain house to fall . . .

71. The court apparently said in the course of argument:

72. Also the non-covering of a house is not waste except for the 'putrefaction' of bare timbers for lack of roofing of a house. . . .

73. The report continues:

74. And it was adjudged that one who holds for the same term is punishable for permissive waste, where he allows a ruinous house to fall down where the house was not ruinous at the time of the initial lease. But if the house was ruinous at the time of the initial lease and falls down during the time of one who holds for such a term there is no remedy for the initial lessor because he does not have nor could he have any cause of action against anyone in this case. But where the house was in good repair at the beginning and after becomes ruinous he in whose time it falls down will be punished during the lifetime of the lessor or his lessee.

. . . . .

75. And it was held by all the justices that if I lease a house for a life term or term of years if the house is not roofed at the time of the making of the lease the lessee is not obliged to roof it; and also if the house is ruinous at the time of the making of the lease this is good matter for the termor to show in a writ of waste. . . .

76. I summarise the relevant holding of the judges in this case (Bryan C.J., Fyneux and Vavasour, J.J.) as this: that whilst a tenant for years is not liable for waste simply by failing to roof a house that was not roofed at the commencement of the lease, he is liable for permissive waste if he allows sound timbers of the house to decay. It would seem to be otherwise in the case of a wall: see the next case.

10 H.7.5a [1494] [Co. Litt. 53b (s)]

77. In the Common Bench a writ of waste was brought and the plaintiff assigned as waste allowing an earthwall to stand uncovered so that it was destroyed by rain-storms; and he also assigned as waste allowing another wall made of wood to decay and also in cutting down 'silber' trees and apple trees in an orchard.

Rede and Wood. It seems that it cannot be adjudged waste in respect of the walls for waste cannot be adjudged in respect of any thing other than something which has permanent existence, but an earthwall cannot exist for more than ten or twelve years and if something that exists for so short a time is damaged that cannot be called waste. . . .

Keble (to the contrary). As to the timber wall that is waste because it is part of the free tenement and the defendant may not transform the buildings leased to him but must keep them in as good a state as he received them. And if this wall had been within a building it would be waste without doubt. For if I lease a house to a man in which there are several chambers and the lessee knock down the walls which divide the chambers and turn this house into a single chamber it is waste. For the same reason that the knocking down of a wall within a house is waste the knocking down of a wall outside a house will be accounted waste. . . .

Fineux. To my understanding (and he rehearsed the reasoning of Keble) and he also understood the waste assigned in the wall to be well assigned because by its destruction the inheritance is harmed and if the inheritance is harmed by the act or the negligence of the lessor it will be accounted waste. . . .

78. VAVASOUR, J. To the same purpose with respect to the trees. But as to the waste assigned in the wall, none has been assigned because it appears that it was uncovered at the time of the lease and so the lessee is not obliged to cover it. For if I lease a building that is unroofed to a man for term of years the lessee is not obliged to roof it. So the waste in the wall is not well assigned.
13. H.7.21 [1498] (recte 13 H.7. 20) [Co. Litt. 53a (c)]

79. In waste the plaintiff counted of the lease of a mill for term of years and assigned waste committed in the floodgates and other things belonging to the mill. And the defendant said that there had been an agreement out of court between the plaintiff and the defendant that he would repair the floodgates in recompense for the remainder of the waste that he had committed and asked for judgment if the action lay and pleaded all this in certain. . . .

80. VAVASOUR, J. ...Sir, in an action relating to permissive waste it is a good bar for the defendant to plead that prior to the acquisition of the writ he has rebuilt the house; . . .

81. In that comment, Vavasour, J. implicitly took for granted the liability of a tenant for permissive waste; although the case, and his judgment, relate to a tenant for a term of years, it is not clear that the particular comment I have quoted applies to such a tenant, the general argument being on another point.
12. H.8. 1 [1520] [Co. Litt. 53a (c)]
82. One N. brought an action of waste against J., suggesting that he had cut down certain trees etc. And the defendant pleaded that he had committed no waste. Subsequently at nisi prius in the county he gave in evidence that the plaintiff had leased him a messuage with certain lands for a term of years by a deed and had granted to him that he might cut down trees to repair the house; and he also showed that the house was ruinous at the time of the lease and how he had cut down certain trees to repair it. And the plaintiff demurred on this evidence. And subsequently this was argued in the Common Bench. And BROOKE, J. said . . . And if the house is ruinous at the time of the lease or rotten or consumed and collapses within the term no action lies for this waste for the lessee is not bound to repair unless he agrees this, but he may cut trees and repair with them and justify this in an action of waste. But if the lessee of a park allows the park fence to decay to the point that the park is no longer enclosed an action of waste does lie in respect of a wall or a hedge that is 'quickset' and a fortiori if the lessee destroys it, as also if he allows the house to fall into decay.

83. POLLARD AND ELYOT, JJ. argued like Brooke in effect.

Anon 2 Mar 1 (1554-55) Brooke's new cases 190; 73 E.R. 930; 22 Vin.Abr. 447

84. It was held by the Chief Justice that the erasing of a new frame, which was never covered, is not waste. But it was agreed that if a house be ruinous for default of any covering at the time of the death of the lessor, and afterwards the tenant suffer it to be more ruinous, for the new ruin the heir shall have an action of waste: for this is waste which continues: for the decay which came in the time of the heir, the heir shall have an action of waste: it is otherwise in the case of the waste which existed in the lifetime of his father.

85. The nature of the lease is not stated, but the tenant is liable for permissive waste. The same applies to the next two cases.

Anon Trin. 6 Eliz (1564); Moore (K.B.) 62, no. 173 Waste; 72 E.R. 442

86. Waste in a marsh was alleged, in that the lessee had allowed a sea wall adjoining the marsh to become ruinous, as a result of which the sea had caused damage to the land. Counsel submitted that the allegation was not good, because the overflowing of the sea could not make waste, since the sea could not be controlled. Dyer, J. said that it seemed reasonable that if there were a small breach in the wall which the lessee did not repair, but allowed it to continue, so that after the violence the sea broke the whole wall and surrounded the land, that was waste, because it could have been avoided by thelessee at the beginning. But if it occurred suddenly, that could be pleaded in bar of the accusation. But he said that it would be a rare case and asked the clerks whether they had any precedents of such an allegation: and they answered no.

Griffith's Case 6 Eliz.1 (1564). Moore (K.B.) 70 Case No. 187; 72 E.R. 447.

87. I adopt the following translation, from the French, of W.A.Bures, the Law of Waste, 1894, p.214:

88. Walter Griffith assigned waste in that the lessee suffered the banks of the River Trent, which flowed through the said lands, to be unrepaired, whereby the water burst the banks and surrounded the lands by default of the lessee. It was held by all the justices that this was waste, because the Trent is not so violent but that the lessee by his policy and industry could well preserve the banks, and cause the water to flow within its limits. But the violence of the sea is such, that it cannot by any policy be restrained; wherefore if by tempestuousness the sea bursts the walls and surrounds the land this is no waste.

Anon Mich. 10 and 11 Eliz. (1568) 3 Dyer 281b; 73 E.R. 632

89. Meade, Serjeant, moved this case at the bar: A man made a lease for years by indenture of a messuage and divers lands, with this clause in it, s. that if it happen the lessee to do any waste in and upon the premises, it shall be lawful for the lessor to re-enter &c. The lessee suffered the house to fall in for want of covering and repairs; Whether the lessor for this matter of negligent and permissive waste (which does not consist in feasance according to the words of the condition, which shall be taken strictly, and most strong against the lessor) may re-enter or not? And Welsh and Dyer thought prima facie that he might, for such waste is punishable by the statute of Gloucester [Marlborough, c. 23], the words of which are, "Vastum vendic' seu destruction, facere de terris domibus &c." Also this word (any waste) is general and indifferent to either of the two kinds of waste, s. voluntary or negligent, &c. wherefore &c quaere.

90. The words in Latin do not appear in the Statute of Marlborough c.23 or in the Statute of Gloucester c.5 in the versions of those statutes given in Statutes of the Realm, though as stated above there are various texts of each statute. I have not found the source of the words in Latin unless it be writ 165 in the Rawlinson MS C292 in the Bodleian Library, apparently dating from 1318 to 1320 (see Early Registers of Writs, ed. de Haas and Hall, Selden Society, vol. 87, 1970, pp lvi, 108, 149, 150). The writ begins by reciting the Statute of Gloucester c.5 and goes on to use the words in question. It is unnecessary to quote the whole passage, but it relates to making waste, sale and destruction; there is no express reference to suffering or permitting waste.

Welsh and Dyer, J.J. were evidently in doubt as to the effect of the postulated clause, but apparently not in doubt as to the liability of a tenant for years for permissive waste.

Darcy v. Askwith Hil. 15 Jac.1 (1617-18) Hobart 234, Case 296; 80 E.R. 380

. . . It is generally true that the lessee has no power to change the nature of the thing demised; he cannot ... decay the pale of a park, for then it ceases to be a park, nor may he drive away the stock, . . . because it disherits and takes away the perpetuity of succession . . .

A lessee may build a new house where none was before, but that must be every way at his own charge: he must not take either timber or other wastable things to build or repair it ... And yet if he keep it not in repair, an action of waste lies. . .

That was a decision of the court of King's Bench. The case related to a lease for a term of 80 years.

Weymouth v. Gilbert 8 Car.1 (1632-33) 2 Roll. Abr. 816, case no. 36. 22 Vin.Abr. 439

If a lessee allow a chamber to fall into disrepair through a defect of plastering, by which great timbers become rotten and the chamber becomes foul, there lies an action of waste. Decision of the Court of King's Bench in banc on writ of error, affirming the first judgment.

The nature of the lease does not appear.

Newall v. Donning 9 Car. 1 (1633-34) 2 Roll.Abr.816 case no. 37; 22 Vin. Abr. 439

If a lessee permit the walls to be in decay for default of daubing, by which timbers become rotten, an action of waste lies. Decision of Court of King's Bench in banc on writ of error, and the first judgment affirmed accordingly.

Dr. Brand has kindly found out, by examining the plea roll, that the lease was for a term of years.

Hammond v. Webb Hil.1.Geo.1 (1715) 10 Mod.281, 282; 88 E.R.728, 729

The following was included in the argument of counsel, Serjeant Salkeld:

The Statute of Marlborough is a penal law; and yet, because a remedial law, it has been interpreted by equity. That Act says firmarii non faciant vastum; and it has been resolved . . . . that this Act extended to waste omittendo, though the word is faciant, which literally imports active waste.

The subject-matter of the case was not waste. The court of King's Bench did not accept Serjeant Salkeld's argument; nor did it comment on the passage quoted above.
Rastell's Entries contains precedents of pleadings, judgments and other documents. In a count for waste against a tenant for years (ed. 1670 p.689b) and a tenant by curtesy (p.692b), but not in a count for waste against a tenant in dower (p. 692b), the Statute of Gloucester is recited. The expression vastum, vendicionem seu destructionem facere appears in a pleading against a tenant for years, and the expression fecerunt vastum vendicionem et destructionem appears in a pleading against a tenant in dower. Doubtless both expressions are derived from the old writs. There are allegations of non-repair in counts against a tenant in dower (p. 692b) and in a count against a tenant for life (p. 694b). There is a precedent of a judgment against a tenant for life on the basis of permissive as well as voluntary waste which contains a writ of enquiry into the waste (p.695a). In a separate paragraph (p.695b) there is a return to such an enquiry, and judgment for recovery of seisin and triple damages. Whilst the two paragraphs doubtless do not have to be used together, I see no reason to infer an intention that they never should be.
In my judgment, the position in the common law courts by the 18th century was this. The reported cases showed that a tenant for life and a tenant for years could be liable for permissive waste. I have not found a single case up to that time which contradicts or expresses doubt about that proposition. The cases go back to the end of the 13th century. Littleton, Coke and Blackstone were in agreement that the proposition was true. Published precedents of pleadings were based on the assumption that it was true.
But I must consider the argument set forth in Woodfall on Landlord and Tenant which I have mentioned above. For convenience, I shall repeat it in summary form here.
1. In the Statute of Marlborough, c. 23, the words "make" waste, sale, or exile point to positive acts only;
2. the special licence spoken of in that statute points to such acts only, being inappropriate to a mere omission to repair;
3. it is unreasonable to suppose that the Statutes of Gloucester would have prescribed so harsh a penalty as forfeiture and treble damages for such mere omission;
4. if the supposed liability of a tenant for years for permissive waste was founded to any extent on chapter 5 of the Statutes of Gloucester, it has been affected by the repeal of that statute.
I shall consider first the points on construction, namely points (1), (2) and (3).
The first point is, I think, the most cogent. As to the second, in my judgment "special licence by writing of covenant, making mention that they may do it", is apt to include a provision that the lease is made without impeachment of waste, notwithstanding that the verb "to do" does not appear in the wording of such provision. As to the third point, the importance of preserving landed estates was no doubt at least as important in the days of the feudal system as it is today; I cannot say that forfeiture and treble damages in a case of permissive waste would have been considered unduly harsh by the standards of the day.
The principles which I shall apply in construing the statutes of Marlborough and Gloucester are contained in the following statements:

In Lord Advocate v. Walker Trustees [1912] AC 95, 102, Lord Atkinson said this:

In Hebbert v. Purchas (1871) L.R. 3 P.C. 605, at p. 650 Lord Hatherley is reported to have said: "It is quite true that neither contrary practice nor disuse can repeal the positive enactment of a statute, but contemporaneous and continuous usage is of the greatest efficacy in law in determining the true construction of obscurely framed documents." In The Trustees of Clyde Navigation v. Laird & Sons (1883) 8 App. Cas. 658, at p. 673 Lord Watson says: "When there are ambiguous expressions in an Act passed one or two centuries ago, it may be legitimate to refer to the construction put upon these expressions throughout a long course of years by the unanimous consent of all parties interested as evidencing what must presumably have been the intention of the Legislature at that remote period."

In Campbell College, Belfast v. Commissioner of Valuation for Northern Ireland [1964] 1 W.L.R. 912, 941, H.L., Lord Upjohn said:

91. As to contemporanea expositio, this doctrine is I believe truly confined to the construction of ambiguous language used in very old statutes where indeed the language itself may have had a rather different meaning in those days. As Martin B. said in Morgan v. Crawshay [1871] L.R. 5 H.L. 304, 315, H.L. in delivering the opinion of the judges to your Lordships' House: "In construing old statutes it has been usual to pay great regard to the construction put on them by the judges who lived at or soon after the time when they were made because they were best able to judge of the intention of the makers at the time."

92. Finally, Lord Buckmaster said this in Bourne v. Keane [1919] A.C. 815, 874:

. . . The construction of a statute of doubtful meaning, once laid down and accepted for a long time, ought not to be altered unless your Lordships could say positively that it was wrong and productive of inconvenience.

I cannot be sure, by reference only to the Statute of Marlborough, 1267, c. 23, whether or not permissive waste was intended to be included. It does not even appear whether the concept of permissive waste had been developed by then, though it may have been by 1293, as appears from the case of that date cited above. The year book cases show the construction put on the Statute of Marlborough c. 23 and on the Statute of Gloucester c. 5 by the judges who lived at or soon after the time when those statutes were made. Those judges were best able to judge of the intention of the makers of the statutes. Even those sitting in the 15th century were in a better position than a modern judge to judge the intention of the makers of those statutes.
If I were to adopt the construction of the Statute of Marlborough suggested by Woodfall, I should be flying in the face of overwhelming authority. Whether that authority is considered as binding, or simply as evidence of the true construction of the statute, it leads me to conclude that the statute on its true construction did provide a remedy against a tenant for life or for years for permissive waste.
Moreover, it seems that the writs in the register were construed in the same way as the Statute of Marlborough. Writs in the register refer to making (not suffering) waste, not only in the case of tenants for life or for years, but also in the case of tenants in dower, in wardship and by curtesy (see writs 162, 164 and 167 in Early Registers of Writs, Selden Society, vol. 87, 1970, pp. 149, 150). It is a striking fact that no distinction relevant for present purposes is drawn in the cases up to the eighteenth century (including the old cases based on the writ of waste), between tenants for life, tenants for years, tenants in dower and tenants by curtesy in relation to liability for waste. All such tenants were regarded as being liable for permissive waste.
I turn to Woodfall's fourth point. Mr Denyer-Green submitted, without opposition, that the Statute of Gloucester, c. 5 introduced a remedy for waste, but not the underlying rights and liabilities. I accept that submission. The writ of waste, along with many other old forms of action, was abolished by the Real Property Limitation Act 1833, section 36. The Statute of Gloucester, chapter 5 was repealed by the Civil Procedure Acts Repeal Act 1879. Thus it is no longer possible to claim treble damages for waste. In my judgment, the repeal of the Statute of Gloucester, c. 5 has no bearing on the liability of a tenant for life or for years to single damages for permissive waste.
Moreover, the action on the case in the nature of waste was a development of the common law. No doubt in so far as it affected life tenants and tenants for years, it was historically based on the Statute of Marlborough. But in my judgment it did not logically depend upon the construction or existence of that statute. The common law determined that waste included permissive waste.
I turn now to the line of cases in equity culminating in the decision of Kay, J. in Avis v. Newman (1889) 41 Ch. D 532 that a tenant for life is not liable in damages for permissive waste. Kay, J. referred to Powys v. Blagrave (1854) 4 De G.M.& G. 448, 43 E.R. 582. In that case Lord Cranworth, L.C. cited with approval Lord Castlemain v. Lord Craven (1733) 22 Vin. Abr. 523, 2 Eq. Ca. Abr. 758, 22 E.R. 644 for the proposition that a court of equity never interposes in case of permissive waste either to prohibit or to give satisfaction, as it does in the case of wilful waste. In Lord Castlemain's case both voluntary and permissive waste (suffering houses to go out of repair) were alleged against a tenant for life. The relief sought was an account and an injunction. In relation to the permissive waste, the court refused to order an account or an injunction requiring the tenant to rebuild, notwithstanding an argument that the court ought to intervene since the plaintiff had no remedy at law by reason of the intervention of another estate between the plaintiff's remainder and the defendant's estate for life.
Lord Cranworth, L.C. also referred to Wood v. Gaynon (1761) Amb. 395, 27 E.R. 263. In that case the plaintiff sought a decree to compel a life tenant and her husband to put and keep the premises in repair, or the appointment of a receiver with directions to repair the premises. The plaintiff could not sue at law because a party who shared the remainder with the plaintiff refused to join in the action as a plaintiff. It was argued on behalf of the defendants:

93. That no precedent could be produced where this court had made such a decree, which was a reason why none should be made now. That it would tend to harass tenants for life, and jointresses, and suits of this kind would be attended with great expense in depositions about the repairs.

94. The report continues:

95. The Master of the Rolls declared, that as there was no precedent, he would not make one.
In Powys v. Blagrave the relevant question was whether a tenant for life in possession was accountable in equity at the instance of a remainderman for permissive waste. The appellants were tenants in tail in remainder and were not able to proceed at law against their co-defendant since he was only an equitable tenant for life. They argued that he ought by analogy to have the obligation not to commit permissive waste imposed on him in the court of equity, and to be impeachable of waste in equity. The Lord Chancellor rejected the argument, expressed the view that even legal liability was then (1854) very doubtful, and cited the argument against relief put forward in Wood v. Gaynon. He declined to be the first to make a precedent for the order asked.
It is, I think, clear on those authorities that the court will not grant an equitable remedy for permissive waste, at any rate permissive waste on the part of a tenant for life. However, the courts of equity recognised the liability at law of a tenant for life for permissive waste. In Lord Bernard's Case (1716) Prec.Ch.454, 24 E.R. 203, the court of the lord chancellor (Earl Cowper) granted an injunction restraining a tenant for life without impeachment of waste who had committed voluntary waste of the mansion-house from committing further waste and obliging him to rebuild the mansion-house and put it into the same condition as it was in at the time of his entry, observing that the clauses of without impeachment of waste extended only to excuse from permissive waste.
Kay, J. also referred to Barnes v. Dowling (1881) 44 L.T. 809. The nature of the relief claimed in that case does not appear from the report. The trial was apparently of a preliminary issue whether the plaintiff had an estate or interest entitling him to maintain an action for waste, either voluntary or permissive, against the defendant, who was tenant for life or lives. The Queen's Bench Divisional Court, on the basis that equity would afford no relief in an action for permissive waste against a tenant for life, and that if there is any variance between the rules of equity and the rules of common law the former must prevail, decided that the action for permissive waste was not maintainable.
Kay, J. in Avis v. Newman (1889) 41 Ch.D. at p.536 said this:

96. Since the Statutes of Marlbridge and of Gloucester there must have been hundreds of thousands of tenants for life who have died leaving their estates in a condition of great dilapidation. Not once, so far as legal records go, have damages been recovered against the estate of a tenant for life on that ground. To ask me in that state of the authorities to hold that a tenant for life is liable for permissive waste to a remainderman is to my mind a proposition altogether startling. I should not think of coming to such a decision without direct authority upon the point. Such authority as there is seems to me to be against the contention, and in opposition to the positive decisions in Gibson v. Wells, Herne v. Bembow, and Jones v. Hill 7 Taunt. 392, there are only to be found certain dicta of Baron Parke and the late Lord Justice Lush which seem to amount to this, that the words of the Statutes of Marlbridge and Gloucester are sufficient to include the case of permissive waste, at any rate where there is an obligation on the person who has the particular estate not to permit waste, whether that obligation does or does not exist at the common law in the case of a tenant for life. But at the present day it would certainly require either an Act of Parliament or a very deliberate decision of a Court of great authority to establish the law that a tenant for life is liable to a remainderman in case he should have permitted the buildings on the land to fall into a state of dilapidation. I therefore think that this claim must be disallowed.
I am aware of no case where an award of damages against a tenant for life for permissive waste has been reported. Most of the year book cases that I have seen in translation make no reference to an award of damages; none reports a jury award. The case of 1293, 21 and 22 E. 1 (R.S.) 30 shows that the tenant for life would have had to pay damages if the jury found that an accidental fire had been caused by his default; but whether they so found does not appear to have been reported.
It is no part of Mr Denyer-Green's case that Kay, J. was wrong in his conclusion that a tenant for life is not liable for permissive waste. Kay, J. did, however, make a remark in the course of argument which impinges on the liability of a tenant for years in relation to permissive waste. He said (p.534):

97. Lord Coke's words only include permissive waste where there is an obligation to repair. He says in effect that where the grantor imposes the obligation to repair, it is waste to allow the property to go out of repair.

98. Lord Coke was making the point that to do or make waste was understood as well of passive, as active waste. He said (2 Co.Inst.145):

. . .for he that suffers a house to decay, which he ought to repair, does the waste: and therefore if a man makes a lease for years by indenture of a house and lands, upon condition, that if it happen the lessee to do any waste, that the lessor shall re-enter, in this case if the lessee suffer the houses to be wasted, the lessor shall re-enter, so that this word facere, has not only this signification in a penal statute, but in a condition also.

99. Coke did not say that his argument was confined to a case where the grantor imposed the obligation. In my judgment, he was simply excluding the case where damage to the property would not constitute waste, e.g. because the owner of the house had an absolute interest in it, or because the circumstances precluded liability, as in some of the year book cases cited above; the word in the first sixteen words that requires emphasis is "does": suffering decay is doing waste. The rest of the passage illustrates that point.

100. I conclude that a tenant for life and a tenant for years were liable in damages for permissive waste for about 600 years from 1267. The decisions in Barnes v. Dowling and Avis v. Newman represent a departure from the pre-existing law. Mr Bucket submitted that since the same interpretation of the Statute of Marlborough must apply to tenants for years as to tenants for life, it follows from Avis v. Newman that no action for permissive waste lies against a tenant for years. I reject that conclusion.

101. My answer to the second issue is yes: a tenant for years can be liable for permissive waste.

102. In those circumstances it is unnecessary for me to decide whether I am bound by the decision of the Court of King's Bench in banc in Newall v. Donning.

103. In arriving at this judgment, I considered numerous year book cases and other ancient authorities which had been translated for me by Dr. Brand. In the event, I have cited, from that material, only parts of some of the year book cases.

104. Before handing down the judgment, I made available to counsel a copy of it and of all the material translated for me by Dr. Brand, and gave them an opportunity to make further submissions on the second issue. In the event, they made no further submissions.

105. Note: Since the above material is not generally available, I append to this judgment Dr. Brand's translations of it.

TRANSLATED AUTHORITIES

106. On the following pages are set out Year Book and other authorities translated into English by Dr. Paul Brand, Fellow of All Souls College, Oxford, and considered by the court in Dayani v. London Borough of Bromley. The annotations are by Dr. Brand.

7 H.3 wast 141 [1223] [Co Litt. 53a (h)]

107. Attachment against a tenant in dower as to why she had assarted one hundred oak trees and a mill had been broken and drained and the mill-pond also. The tenant said that her late husband M.by the king's order had broken the mill-pond and taken all the fish for the king's benefit and she had subsequently repaired it as best she could; as to the mill, she said it is not wasted because in winter it can grind though not in summer for lack of water; on the wood she says that in war-time her neighbours cut it down because of the war but no waste was committed by her. This was adjudged a good plea. The complainant said that she had committed waste after the prohibition and produced suit of this and thus a jury trial on this etc.

[PAB notes (i) tenant in dower; (ii) voluntary waste]

Plowden Comm. 322 [Co. Litt. 53a (h)]

passing reference here only to the preceding HIII case: Gerard argues that as adjudged good plea appears that king or other by his order could break a mill-pond belonging to the free tenement of another and take the fish for his provision by force of his prerogative (in context of argument as to whether Prerogativa Regis is full description of all the king's prerogatives or not)

108. Temps E.1wast 128 [Co. Litt 53a (h)]

109. Waste and counted of waste in relationship to wood and fish-ponds, namely of skeine, pasche and assouy , so that all the fish-pond is drained.

Pashley. His writ recites only that 'whereas no-one is allowed to waste lands and woods and gardens' but at the end of his count he alleges waste in fish-ponds and that does not fit the words of his writ and he could have had a writ in general form and mentioned fish-ponds as one can for the 'exile' [of villeins] and he has not done this etc. Moreover, he has said in his writ 'of lands, buildings and gardens granted to him for a term of life or years' and then assigned waste of fish-ponds of which he mentions no lease.

110. HOWARD, J. He has counted that he leased the manor of M. and within the manor may be contained moor and meadow, turbary etc. and so here also a fish-pond.

111. METTINGHAM, C.J. agreed with this.

112. So the defendant pleaded that the lease had been made to both her husband and herself for the term of their two lives and if any waste was committed this was during our husband's lifetime. Judgment if we are answerable for that etc.

Scrope. If we had recovered against you and your husband by a writ of waste you would have no recovery of this land after his death.

Warwick. That is true.

Scrope. And if we had brought the writ of waste against you and your husband for this waste and your husband had died while the writ was pending we could bring this writ against you, for the husband's death does not extinguish the action.

113. HOWARD, J. If a woman is a tenant for term of years and takes a husband who commits waste and dies the wife will be charged with this. A fortiori here.

114. BEREFORD, J. (Ad idem). In so far as the wife agreed to the lease after the death of her husband she will be charged. If I disseise a man and make estate of the land to my wife and after my death my wife continues in this land she will be punished for the disseisin; so here.

115. Then the defendant demurred for judgment as to whether she is punishable or not etc.

[PAB notes (i) tenancy for two lives; (ii) voluntary waste apparently]

8 E.2 wast. 111 [1315][Co. Litt:53a (l)]

In waste where the waste was found of three oak-trees worth etc. and two hundred willow-trees the plaintiff asked for judgment in accordance with the verdict.

INGE, J. did not adjudge waste in such form that he recover the place wasted for the small amount and it is not properly to be accounted waste in respect of the willows in case they grow again.

Herle. Then adjudge her damages.

1NGE, J.. We can never adjudge one without the other and so you are to take nothing by your writ etc. neither damages nor the place wasted.

[PAB notes: (i) nature of tenancy uncertain; (ii) voluntary waste]

17 E.2 wast 119 [1324] [Co. Litt. 53a (f)]

116. Waste: the inquest says in respect of one building that he was said to have wasted that at the time the tenements were leased there was no building there but that the lessee had built it and then it was demolished and it was adjudged waste. In respect of the exile of tenants the inquest says that he burdened one with various amercements to the damage of twenty shillings and because he had not abandoned the land as a result the justices took no notice of this.

[PAB: (i) nature of tenancy uncertain; (ii) voluntary waste]

4 E.3. wast 22 [eyre of Derbyshire, 1330-1] [Co. Litt. 53a (d)]

117. Waste alleging that he held for a term of years by his lease

Pole. No waste committed etc.

118. The inquest found that he had committed waste in a bakehouse and a rapine and in a mill to the damage of one mark and that he had felled an ash-tree to repair the mill-stream to the damage of twelve pence.

Pole. We ask for relief in respect of the ash-tree as it was found that it was felled for the purpose of an improvement.

Herle. Do you think that you may knock down my trees to repair what you hold for a term? You may not. So the court adjudges that he recover damages assessed by the inquest three-fold, amounting to 43 shillings.

[PAB notes (i) tenant for term of years; (ii) voluntary waste]

17 E.3. 7 [1343] [Co.Litt. 53b (p)]

119. John de Hull and Maud his wife brought a writ of waste against H. Hadenham and assigned the waste in buildings, namely the knocking down of a hall, chamber, cowshed and grange, and in lands in the digging for ironstone and coal, and in gardens and woods etc.

Pulteney. We tell you that by this deed they leased to us the buildings where the waste is alleged on terms that allowed us to dispose of the buildings there except for a chamber and a hall at the end of the chamber and that has been kept in repair; judgment if they are receivable against their own deed. As to the grange and cowshed there were none when the lease was made and none thereafter, as we are ready etc. As to the waste in respect of the land we tell you that they leased to us certain acres of land where there was a mine for ironstone and coal, with all the profits arising therefrom; judgment whether they can be received etc. As for eighteen oaks and an ash he granted us them by his deed etc. that we might fell them for the repair of a mill etc.; judgment. As to waste in the wood that is a place where wood was growing and adjacent to the garden, he granted us permission by this deed to cut it down.

Gaynesford. As for the grange and the oxshed whereas they say there were none etc. that is tantamount to saying no waste committed (and this was not allowed).

And so Gaynesford said that he wished to prove that there were some etc. and that these were wasted and the same went for the chamber which they said was in good repair, ready to prove etc.

120. And as to the waste in respect of the remainder of the buildings they have not denied the knocking down and sale which is a matter of disinheritance and he does not have express warranty by our deed to do this but only to make his profit, which Common Law would give him even if he did not have it by this specialty. So we ask for seisin by virtue of his acknowledgment and our damages. And as to the waste in respect of the land he has not denied that he has dug and sold and that amounts to disinheritance and he does not have warranty for that by our deed but only to make his profit, which cannot be interpreted so broadly but only to take his necessary requirements and not to make a sale which amounts to permanent disinheritance. Judgment.

Thorpe. Then is this your deed?

121. SHARESHILL, J. You must both be agreed and thus we assume that you are.

Thorpe. If I lease you a pond and a fishery with all the profits etc. are you not allowed to fish and sell the fish?

R. Thorpe. For that there lies no action of waste unless they sues; but if you lease me a wood with the profits am I allowed to cut down and sell? (Implying not)

Thorpe. It appears that you can for you may cut for your own benefit and erect buildings otherwise than in the messuage to which the wood is appendant and so you can give and sell.

R. Thorpe. Certainly not you will have nothing other than what common right gives you for if you take that broadly 'all kind of profit' it follows that you might alienate.

Thorpe. We ask for judgment as he has admitted that at the time of the lease there was a mine for stone and coal and this was leased to us with the profits by his own deed; and as we ask for judgment if he is receivable against his own deed.

SHARDLOW, J. What profit can one have from a mine when it is leased to one other than by selling etc.?

Thorpe. He may have his necessary requirements without making any sale of gift.

[PAB notes (i) lease (either for term of years or for life); (ii) voluntary waste]

17 E.3. 45 [Viner 439, no. 33]

[reference not work: perhaps 17 E.3. 65]

17 E.3. 65 [1343] [Co. Litt. 53b (q)]

Two brothers, J. Gray and his brother W., brought a writ of waste against a woman who held in dower of their inheritance and alleged by their count that this was because the lands were partible and counted of waste committed in buildings, lands and marshes and counted that the marsh was adjoining the sea and there was a wall for the defence of the marsh which she and all tenants of these lands are obliged to keep repaired and have done so and she had dug a perch in the wall and also because of lack of repair the wall is not repaired and so the sea has entered the marsh and has taken away around twenty-four acres to the depth of one foot and the remainder of the marsh is under water.

Mowbray. Judgment of the count because he does not allege that the woman held the wall in dower (and not allowed)

Mowbray. Again judgment of the count for they have alleged that the woman holds of their inheritance and they are males and this is against common right and they do not affirm that this belongs to them by descent as to say in the count that the woman holds of the endowment of their ancestor whose heirs they are etc. For it is possible that their ancestor never had anything but that they are purchasers.

SHARESHILL, J. Then they would have had another writ but by this writ and count we understand that they are heirs of the woman's husband and there is no other count or writ in this case.

Mowbray. We tell you that there are several marshes and with respect to all except one no waste committed, as we are ready etc. As to that one we tell you that there is a wall by which this marsh is enclosed against the sea. And in respect of the digging in the wall he traverses; and where they suppose that the sea entered for lack of custody we tell you that the sea is so strong that by a storm it has carried off the soil and undermined the wall so that no-one could prevent it and so it was not carried off by our default. Judgment whether you can assign any wrong in our person etc.

122. And on that they were at issue as whether it was for lack of guard or not etc.

[PAB notes (i) tenant in dower; (ii) permissive waste alleged and suggested she is liable]

18 E.3.15 (recte 14) [1344] [Viner 438, no. 16]

123. John Stapleton on another occasion brought a writ of waste in three villages (as see above) where it was pleaded that one place which was called a village was a hamlet of one of the other villages named in the writ and they were at issue on this in relation to the whole writ. And by nisi prius before STOWFORD, J. it was found that each was a separate village and he enquired further relating to the waste and it was found that waste had been committed in two villages, namely in such a building and in such a building etc. (with the value of each being given) which had been wasted and destroyed for lack of roofing and also in woods to the value of such etc. to the damages of such. And it was mentioned by SHARESHILL, J. that the damages for the tenements wasted in the third village (which waste by the plea pleaded even though the reverse was found will be considered as not denied) ought not to have been the subject of an enquiry for this enquiry as to waste was not warranted either by statute or by common law for at common law there was not enquiry into waste except where the waste was denied in pleading nor did statute warrant it except by the defendant's default.

124. WILLOUGHBY, J. said that there needed to be an enquiry as to waste.

Green. Whatever the law may be we agree to have judgment in accordance with the verdict.

125. SHARDLOW, J.. Then we are discharged.

126. WILLOUGHBY, J.. The court therefore adjudges that the plaintiff recovers the

places wasted and damages in triplicate as assessed etc. which amount to so much etc. and

the plaintiff to be amerced in respect of his complaint in regard to the third village where no waste was found.

Green asked for execution in the lands which he had on the day the plea was pleaded.

127. STONOR, C.J.. You will first have execution generally on that which he has and if the sheriff returns that he has nothing you will have execution then on the lands which he had on the day the inquest was taken and you will have no more.

And note that Mowbray mentioned to delay judgment first that it had not been found that the tenants had committed the waste (and that it is not in the charge of the court for they should find it whoever had committed the waste); and also in the buildings it was not waste that was found but lack of roofing.

Hilary said that the verdict said that for lack of roofing they had become wasted and destroyed and so we understand that they are wasted.

And it was mentioned by some that if they were unroofed even if the timber was still standing it will be adjudged waste.

128. And note that a writ of waste brought in Barton where there was traverse that there was no Barton without addition and by inquest taken before INGE, J. the writ was found good and he did not enquire further as to waste. The court remanded for further inquiry for even though the writ was found good the land cannot be lost unless the waste is found etc.

[PAB notes (i) nature of tenancy not specified; (ii) discussion here of liability for permissive waste]

19 E.3. [1345] Wast 30

129. Waste: where it was found by an inquest where the party pleaded that no waste had been committed that in respect of a kitchen that was burned by a woman who was a stranger without the knowledge of the defendant because they lived elsewhere and to rebuild this kitchen he had cut oaks in a wood and the hedge around the close and that the house is now better than it was before the fire and that he had also cut down and sold a certain number of oaks in a wood around the close and cut down some for repair of buildings and cut down some which were still lying there unsold.

Pole asked for judgment on the verdict for the plaintiff because all that is found will be adjudged waste because of the form of his plea because the defendant ought to have pleaded it specially if he wished to take advantage of it.

130. WILLOUGHBY, J. The fire is waste for lack of proper keeping.

Thorpe. Recently here in a writ of waste it was found by an inquest taken by default that galleys came to the sea coast and burned down a manor and it was adjudged no waste; so also here.

131. WILLOUGHBY, J. The party could not have prevented the galleys. But do you believe that if your servant lodges a stranger who burns down the buildings that this will not be adjudged waste? (As if to say, hardly not). So the fire will be adjudged waste and so the kitchen has been wasted but the cutting down of trees for rebuilding is not waste; and as to that which has been cut down but not sold that is waste.

132. And that which was cut down for repairs (even though that was not specially pleaded) is adjudged no waste: so the court adjudged that the plaintiff recover the place wasted and damages in triplicate.

[PAB notes: (i) nature of tenancy unclear; (ii) discussion of liability for acts of third parties]

20 E.3. [1346] wast 32 [Co. Litt. 53a (k)]

133. Waste assigned in a building and in land dug with pits, namely one acre, and in clay carried off, and in timber cut down, namely oaks and ashes etc. and the defendant pleaded no waste committed and by the nis iprius it was found that the building was burned down by a servant of the defendant by lack of care and the defendant had cut down part of the oaks of which he had assigned waste and from them had made a new building as good as the old one and in the same place as the old and that he had dug clay in old pits for the construction of the house and also to repair old buildings, and also that the defendant had felled forty oaks which were dead and the inquest understood that this was no waste and also that the defendant had felled forty oaks that were still living and had made of them charcoal to burn within the house as required.

Greene. As to the building it has been found that it has been newly built and of the same value as it was before and so no waste can be adjudged for this. It is also found that we dug in old pits that were waste before and also that what we did there was for the improvement of the new building so this cannot be adjudged waste. Also with respect to the dead wood we are discharged because it seemed to the inquest that this cannot be waste. As for the felling of trees for charcoal etc. that is avowable by law.

134. SHARESHILL, J. It is to be seen whether waste is to be adjudged in respect of the buildings being burned or for the cutting down of the trees from which the building is constructed for he cannot recover the place wasted in respect of both.

Thorpe. You adjudged the building waste and not the trees in the case of a kitchen in the case of Anthony Fisseron (and it was said that the waste will be adjudged in respect of the trees and not of the building).

135. SHARESHILL, J. There was no enquiry as to how many trees he cut down for the erection of the building.

Mowbray. It was not necessary when the trees were cut for this reason and the building erected etc.

Greene. The venire facias which issued said nothing about the jurors having to make a view although the writ mentioned this and also after the return of the habeas corpora the sicut alias was issued where a distraint ought to have been adjudged and thus the process was discontinued.

Notton. Even if the venire facias ought to have mentioned that they were to make the view it is at least proved by the record that they were asked whether they had made a view and they said yes and so this is sufficient for the purpose.

Sadelyngstanes. Even if they made the view if it did not have in the writ the words 'quod interim videant tenementa' all that they have done is without warrant.

Notton. He has not assigned a discontinuance of process for subsequently other process was made which he accepted as good and he has also been essoined since the inquest.

SHARESHILL, J. With the habeas corpora we have nothing to do but we wish to consider further the fact that the view was made without any warrant.

Notton. We therefore seek a new venire facias (and he had it by judgment).

Mowbray says that if a tenant in dower puts her animals in land on which young chollers are growing and the animals destroy them by grazing even if not all are destroyed it will be adjudged waste.

Green. That is true but there it is necessary to assign the waste as that by the grazing of the animals there has been destruction and not assign that she knocked them down because on such a count you will take nothing on such facts etc.

Nott' says that since he had felled green wood to make charcoal for burning where there was dead wood this is waste etc.

Sch' says that if there is high wood one cannot say that the cutting of underwood is waste etc.

(See on waste under title of Amendment E.3 with a good conceit).

[PAB notes (i) nature of tenancy uncertain; (ii) voluntary waste]

26 E.3. 76 [recte? 26 E.3. 22] [1352] [Co. Litt. 53a (g)]

136. In a writ of waste brought against a tenant in dower the count was that she held in dower of his inheritance and that she had committed waste in the manor of W. and he assigned the waste.

Birton. He does not show how we hold of his inheritance, whether as heir to our husband or as strange purchasor or by whose assignment we hold; so judgment of his writ etc.

Muttelowe. Our writ is general and we can have no other writ in the chancery and so etc.

137. So she was put to answer further.

Birton. Whereas he alleges that we hold the whole of the manor in dower we hold only one third of the manor; judgment of the writ.

Muttelowe. Whether you hold only one third or more you have committed waste in what you hold and you do not answer on that; judgment etc.

Birton. As to all he alleges as waste other than in respect of a sheepshed, no waste committed, as we are ready etc. As to this sheepshed it was ruinous when our dower was assigned and so collapsed and we have erected a new sheepshed with our own timber; judgment etc.

Muttelowe. In respect of that: that you have committed waste as we have suggested by our writ, as we are ready to prove etc.

STOWFORD, J. She has alleged a matter on which you may demur for judgment if you wish; but you will not get to a general averment on what she has said. So answer what she has said.

Muttelowe. She has committed waste as we alleged and has not erected a new building as she has said, as we are ready etc.

[PAB notes (i) tenant in dower; (ii) permissive waste discussed]

29 E.3.33 [1355] [Co. Litt. 53a (b)]

138. In waste for a chamber demolished and sold Gower says that at the time of the making of the lease it was very weak and so it collapsed through a storm and we did not demolish it nor did it collapse by our fault. And this was held a good response.

But note that Ousefleet challenged this because he did not deny that he had sold the wood etc. and thus an action of waste was given to him because no other action is given to us. This was not allowed by the court because he had made a full response to the main point of the action, namely that the chamber did not fall by his default, because the sale of the wood is not accessory to the other etc.

[PAB notes (i) tenancy for term of years perhaps (though might be life lease); (ii) liability for permissive waste]

34 E.3 [1360] Wast 143 (recte 145 in 1577 edition) [Co. Litt. 53a (a)]

139. Waste of a messuage. The tenant pleads 'no waste committed' and it was found that

they were ruinous for lack of roofing within the term but that the buildings were still standing; notwithstanding this it was adjudged waste.

[PAB notes (i) uncertain tenancy; (ii) nature of permissive waste]

38 Ass.1 [1364] [Co. Litt. 53a (d)]

In a nisi prius at Winchester there was a writ of waste and where the tenant had pleaded that he had committed no waste it was found that the tenant had committed waste before the acquisition of the writ to the damage of one hundred shillings but it was found that while the writ was pending he had spent money to repair the houses wasted to a great amount, so that the tenements were now properly repaired except for a chamber. It was the opinion of the Justices that they should take no notice of repair made while the writ was pending; and it was adjourned into the Bench etc.

[PAB notes (i) nature of tenancy uncertain; (ii) perhaps permissive waste (but on effect of subsequent repair)]

40 E.3. 15b [1366] [Co. Litt. 53a (1)]

140. In a writ it was found that he had committed waste in respect of willows to the value of etc. and it was asked of the inquest jury whether it seemed to them that this was waste and they said that they were growing within the view and the site of the manor and for this reason the court adjudged it waste. (As to what is deemed waste see P.E. 12 E.4, f. 1 and f. 26 of this same year there is good matter. See also T.46 E.3, f. 14 etc.)

[PAB notes (i) nature of tenancy uncertain; (ii) voluntary waste]

40 E.3. 35 [recte 40 E.3. 25] [1366] [Co. Litt. 53a (l)]

In a writ of waste the plaintiff counted that he had committed waste in respect of hazels and oak trees. And in respect of all except the hazels Belknap pleaded no waste committed and in respect of them he said that they were growing in a park under great oaks and were of an age to be felled and we ask for judgment whether this is to be adjudged waste.

Kirton. We tell you that there is an area in the wood where the waste is assigned and no oaks grow there and no other large trees except for hazels etc. and he has committed waste and we ask that he be convicted for the waste committed.

Belknap. Since you do not deny that they were of an age for cutting after seven years growth and were then cut since waste is that which is cut and will not grow again but underwood at the end of seven years will be as good as it was at the time of cutting and this cannot be adjudged waste where it is suitable for cutting every seven or ten years.

141. THORPE, C.J. You who have an estate for term of life cannot allege a prescriptive title that this is not waste.

FINCHDEAN, J. (ad idem). He has said that there were no great trees growing in that area but there was an area growing a certain quantity of wood and whatever wood that was you committed waste if you cut it down.

142. WITCHINGHAM, J. If the underwood is suitable for cutting every nine years a tenant in dower or tenant for life can cut it down.

143. But this was denied and the case was adjourned. So query.

(See fo. 15 above where I have vouched another three Year Book cases and also see

14 H.4, f. 11; 2 H.6, f. 10; 46 E.3, f. 17)

[PAB notes (i) tenant for life; (ii) voluntary waste]

40 Ass. p. 22 [1366] [Liber Assisarum 40 E3 plea 22 on p. 243] [Co. Litt. 53a (b)]

144. It was presented in King's Bench that John P. who held the manor of E. and H. of the king's lease had committed waste in the tenements which he had in wardship by reason of the nonage of John the son and heir of John Darcy knight, namely by knocking down certain houses and cutting down certain trees etc. J.P. came by the process of distraint and pleaded by Cavendish with regard to the houses no waste committed; with regard to the trees he says they were knocked down by the great wind and others have carried them off; and asks for judgment whether he has committed any wrong. To which Kirkton (for the King) said that inasmuch as he was guardian he might have had a writ of trespass for what was in his wardship and carried off by a stranger and so as a consequence he is answerable to the heir and thus also to the King. Judgment.

Cavendish. When by law we are excused of waste of the principal we are also excused of waste of the accessory; but even if he had himself burned the trees no action of waste would have been maintainable against him.

Knivet. Even though he is guardian of the minor and the trees which have fallen down are severed from the free tenement he still has no property in the chattels but it belongs to the heir for which [he?]will have his action of trespass against a stranger, and not the guardian etc. No more would the bailiff of a manor have an action of trespass in these circumstances.

Ingleby. If the guardian had put this towards the improvement of the manor he would be excused because this would come to the profit of the minor. So it seems that he is answerable to the minor for this chattel.

Knivet. Neither by way of waste nor by [way] of trespass.

Kirkton. If the posts of a house are standing and the remainder has decayed (eschu) if the guardian demolishes this and carries it off or sells it he will have an action of waste against his guardian.

Cavendish. He would not for it is necessary to assign the waste as committed in respect of a house and he cannot say that.

Knivet. A house newly built and not yet roofed was demolished by a guardian and it was not accounted waste. And this was adjudged Easter 39 [E 3] in a writ of waste.

[PAB notes (i) guardian; (ii) voluntary waste]

41 E.3. [1367] wast 82 [Co. Litt. 53a (k)]

145. Waste against one alleging that he had felled certain oak trees growing in a wood and also hazels, thorns and willows only in ten acres of land adjoining the wood. He had committed waste by cutting down all the hazels, worth twelve pence each, and also uprooted all the roots and also he had felled all the thorns and willows, each worth four pence, and uprooted all the roots; also he had committed waste in one acre of land by digging and grave under the land and selling it.

Kirkton. He has counted that he has cut down etc. and also uprooted the roots of the hazels and thus he has assigned two causes of waste in a single tree and so we ask that he choose one (and this was not allowed).

Kirkton. As for the two hundred oak trees we only cut down thirty for the repair of buildings; and as for the ten acres these were full of oaks and the hazels, thorns and willows were underwood and by the deed which is here he granted us the right to cut down underwood and make our profit from it and we cut it etc. and we ask for judgment whether this is wrong. As for our uprooting of the roots he ordered us to do this and we did this by agreement etc. and so we ask for judgment; as for the acre of land etc. we tell you that we dug and grava underneath for repair of the buildings and we allowed what was over to lie on the ground without selling any of it, as we are ready etc.

FINCHDEAN, J. If you dug and gravastes more than you needed for the repair of the buildings you committed waste etc.

Kirkton. The fact is that this acre is a valley which is full of water and to drain it we dug there and put part to the repair of the buildings and we left the rest lying on the ground.

146. FINCHDEAN, J .That is the first you have said of that and so plead that against the other party.

And Kirkton did so.

Finch'. You sold one hundred cart-loads of this and more which you did not use for repair of the houses as we are ready etc. (And the others to the contrary). And as to the oaks he uprooted two hundred more than he used for rebuilding etc. And Finch' as to that which you said about having uprooted the roots etc. by our assent etc. what do you have to show our assent?

Kirkton. Nothing other than your word and that is enough etc.

Finch'. We did not assent, as we are ready etc.

Kirkton. That is no issue.

147. FINCHDEAN, J. You should be satisfied that he has offered that averment and so accept it etc. (Implying that if he had demurred for judgment that the defendant would have been convicted of waste).

And so Kirkton says that he did assent, as we are ready etc.

Finch'. As to that which he says about that being underwood etc. we will prove that those ten acres are full of hazels, thorns and willows growing there and there are no other trees there, as we are ready etc.

Kirkton'. We are already at issue on the uprooting of the roots and if verdict is given in our favour that we who are plaintiffs did it with your assent then we will be discharged of waste done on the main trunks of the trees and so it will be in vain to take issue on the felling and so we ask to be discharged of this issue.

148. And the court discharged him etc.

[PAB notes (i) nature of tenancy uncertain but possible term of years; (ii) voluntary waste]

42.E.3. 6b [1368] [Co. Litt. 53a (k)] -~

149. Waste brought against a man and it was alleged that he had demolished buildings and sold them and that he had cut down the underwood each year, so that it could not grow without being sold and also that he had razed an oven and sold it in the tenements leased to him for a term of years.

Cavendish. As to the buildings they were blown down by a great wind and we ask for judgment

whether they could assign wrong etc.; as to the underwood you have seen how he counted that we cut the underwood although cutting the underwood cannot be adjudged waste etc. and so we ask for judgment if he can have action by this writ of waste etc. and as for the oven you see that it is something that is movable and removable and so we ask for judgment.

Belknap. As for the buildings you have committed waste as we have alleged as we are ready etc.; and as to the underwood as he does not deny the cutting we ask for judgment and asked that he be convicted etc.

Cavendish. If he had counted that we have uprooted the underwood then that would have been a good cause of action etc. because it could not have grown afterwards but not for cutting down as they can grow again.

Belknap. As for the oven since it is something fixed to the free tenement we ask for judgment and ask that he be convicted etc.

Kirkton. If an oven were assigned to a tenant in dower she could not carry it off.

Cavendish. As it is something that can be removed and is removable it is wrong that it should be adjudged waste.

Belknap. It is something fixed to the free tenement and where you say that it can be removed so can a post in a building and also a door or a window but they are still adjudged waste.

Cavendish. As for a door I deny that but in respect of a post I concede it as a post is part of a house.

150. And the case was adjourned.

[PAB notes (i) form of tenancy uncertain; (ii) voluntary waste]

42 E.3. 21 [1368] [Co. Litt. 53a (~]

151. The prior of the Hospital of St John brought a writ of waste against one J. and alleged that he had committed waste in certain tenements which he held for the term of his life by the lease of his predecessor, namely in respect of a chamber, a bakehouse, a grange and other buildings to the disinheritance of the said house and hospital.

Belknap. Judgment of the writ for it says 'to the disinheritance of the said house and

hospital' where the writ ought to say 'to the disinheritance of the hospital of the said church' (and this was not allowed)

Belknap. There was no chamber at the time of the making of the lease, as we are ready etc.

Cavendish. That is no issue unless you will say 'nor at any time since the making of the lease'.

Belknap. There was no chamber at the time of the making of the lease or at any

time since, as we are ready etc.

152. The others to the contrary etc.

153. As to the bakehouse it was so weak at the time of the making of the lease that it fell

down and he could not prevent this, and so judgment if you can have action for this etc.

C'avendish.It was in good enough repair at the time of the making of the lease and decayed by your default and thus you committed waste, as we are ready etc.

Belknap. As for the grange, this burned down in the time of his predecessor by accident and his predecessor released all action in respect of this and we ask for judgment if action etc. and proffered the deed of his predecessor.

Cavendish. This is a double plea: one is that the grange was burned down by accident; the other is the release of our predecessor. So choose one of these.

Kirkton. I will stick to the deed and so answer the deed.

Cavendish. Sir, you have seen that he has pleaded nothing but the deed of our predecessor which is ineffective other than for his own life and so we ask for judgment and for our damages.

Belknap. We ask for judgment as you have admitted that this is the deed of your predecessor and by this deed he released all kinds of personal actions and this is a personal action and so the action has been extinguished; and so etc.

Cavendish. This is a real action for he will recover free tenement and his predecessor could not release this free tenement except for his own lifetime and since he is dead it seems that this release cannot bar us.

Belknap. His predecessor during his lifetime could have granted to us the right to dismantle the building and sell it and his predecessor would have had no action for this; and since he could have granted this he could for the same reason have released this.

Kirkton. As soon as the waste was done the right to the free tenement accrued to his predecessor and once it had accrued he could not release this free tenement except for his own lifetime without the assent of his convent because it becomes the right of their church as soon as the waste has been committed.

Thorpe. If a disseisin is committed against a man of religion and he release all kinds of personal action his successor will have an action notwithstanding the release.

Belknap. I concede that he will recover free tenement but not damages for the free tenement can be recovered in this writ without damages and that is wholly in the realty. But here all is in the personalty, because although one recovers lands in this writ that is something given by statute and the cause is the wrong he has committed and that wrong is wholly in the personalty and recovery of the free tenement is the punishment together with treble damages for the wrong and that punishment is wholly in the personalty. So when he released the personalty because the punishment is in the personalty and the recovery of the free tenement is part of this punishment and cannot be severed from the damages it seems that he is not entitled to action. Likewise an heir will have no action of waste committed in the time of his ancestor even though the ancestor never released it and the reason for this is because he cannot recover damages for the time of his ancestor because this sounds wholly in money and thus in personalty and it is the case that he will have no recovery. So here too.

FINCHDEAN, J. I concede that the heir will have no writ of waste for waste committed in the time of his ancestor but it has often been seen that a successor has a writ of waste for waste committed in the time of his predecessor and the writ will speak generally as of waste committed in his time and the reason is that the writ does not suppose that the writ was committed to his disinheritance but only to the disinheritance of the house. And thus even if he releases what was to the disinheritance of the house this will be of no effect unless he has the assent of the house as it is their right of the house and so it is necessarily so that this action is maintainable.

Belknap. By your argument even if the tenant satisfied his predecessor for the waste notwithstanding this the succesor will recover by writ of waste.

FINCHDEAN, J. If he satisfied him, that is different.

Belknap. It cannot be understood otherwise than that he made him satisfaction when he made the release for if I am bound by an obligation and I have a release of all kinds of actions it is as good as an acquittance which specifies the payment. So too here when he made the release it is not otherwise to be understood than that he made satisfaction and so it is not right that he should have action. And, sir, before the statute he would have had no recovery except a prohibition of waste and that was wholly in the personalty.

154. FINCHDEAN, J. Where you say the writ of waste is in the personalty it is in the realty for if two bring a writ of waste and one is non-suited the other will be allowed to sue alone and recover a moiety of the land and the reason is because he is attempting to recover free tenement and so it seems clear that it is in the realty and a right of realty accrues to the house and this cannot be released without the assent of his convent.

Belknap. If two bring a writ of wardship one can be summoned and severed and the other will be received to sue alone and this is nonetheless in the personalty and can be taken into the realty.

155. FINCHDEAN, J.. In a writ of waste brought against a husband and wife the wife will be received to defend her right because it is in the realty, but if a writ of wardship is brought against husband and wife in right of the wife and the husband makes default the wife will not be received to defend her right.

Thorpe. In a quod permittat the successor will recover even if the predecessor has released the damages even though all lies in damages, and so etc.

156. On another day

Belknap. If his predecessor had given permission to the tenant to dismantle a hall or cut down trees or to sell them and he had satisfied him his successor would never have recovered for this by writ of waste. So neither here either for the same reason: because if he could have given these things he could also for the same reason have released them.

Cavendish. When he gave such things in your case there would be no waste and so it could be adjudged no waste; but here the waste was committed before the release and so by the waste right accrued in this case at once to the house because this was to the disinheritance of the house and so once a right to the land had accrued to the house this could not be released without the assent of the house. And so it seems that the two cases are not the same.

Belknap. If tenements are leased to a man and his wife for their lives and the husband commits waste and dies the wife will not be impeachable for the waste done in the lifetime of her husband and the reason is that this is in the personalty and the wife is not chargeable in respect of a personal trespass committed by the husband; and so as this writ is in the personalty and his predecessor has made a release it is not right that we should be charged.

157. On another day

Belknap said. That the grange was burned and he has erected another grange in its place that is good and suitable; and we ask judgment whether you can assign wrong etc.

Kirkton. We demurred for judgment on the release and so you cannot now plead a new plea.

Belknap. We ask for the court's record that I did not say that I wished to imparl on that.

158. And the Court recorded that Belknap did not demur for judgment.

And so Kirkton says that he did not erect a grange as good as that which was there before and in the same place etc., as we are ready to prove etc.

Belknap. That is not an issue unless you are willing to say that I have not erected any grange as good and suitable.

Kirkton. Although he has erected a grange which is suitable enough if it is not of as high a value as the other was it would be right that he should be convicted.

FINCHDEAN, J.. He has said that he has erected another suitable one. It will be understood that it is of the same value as the other was which was burned down unless you wish to show specifically how much the one he has now erected is worth and how much the other was worth. And so it would be good if you showed that.

Kirkton. Sir, we tell you that the grange which was burned down was worth forty pounds and that which he has now erected is worth only twenty marks, as we are ready etc. and we ask that be convicted of waste etc.

[PAB notes: (i) tenant for life; (ii) both voluntary and permissive waste discussed]

43 E.3. 6 [1369] [Co. Litt. 53a (g)]

159. A writ of waste was brought and it was alleged that he had committed waste in lands that he held for the term of life and it was assigned that he had committed waste in respect of a grange.

Cavendish. The waste that was committed in the grange was the result of a great storm before the lease began; judgment if we have committed any wrong.

Belknap. We leased the land by indented deed (which is here) and he agreed by the same deed to repair the buildings and everything else and to maintain them during his term and to leave them at the end of his term in as good a state as when he took them; and so since he obliged himself by his own deed to maintain the buildings no plea that he has pleaded can excuse him from waste (and this was not allowed because law discharges him of waste that happens in this way because it happens by sudden chance).

160. Then he said that the grange was not maintained in respect of its roofing and it decayed for lack of roofing and so he committed waste etc.

Cavendish. It was well and suitably roofed as we are ready to prove etc.

161. The others to the contrary etc.

[PAB notes (i) tenant for life; (ii) permissive waste]

44 E.3.21 [1370] [Co. Litt. 53a (d)]

162. Waste brought against John Exter by the abbot of Waltham, alleging that he had committed waste in a wood to the value of etc. and in a grange to the value of etc. and in certain cottages etc.

Cavendish. As to the wood, no waste committed, ready etc.; as to the grange he showed an indenture from the abbot's predecessor with the assent of his convent, and that he was to have sufficient timber in a certain wood and then to repair the buildings and we came and asked for the timber and he refused to hand it over to us and so it was by his fault that the grange fell down and we ask for judgment; as to the cottages the tenant died in the Plague and we were unable to find others and so for lack of tenants they fell down.

Belknap. Where he says no waste committed, we say he did; as for the grange you have seen how he has admitted the lease made to him for his lifetime in which case it was permissible for him without any indenture to have taken timber for repair of the buildings without us handing it over and even if we have agreed to hand over timber to him by the indenture that does not excuse him from waste since he could have taken it without us handing it over; judgment.

Cavendish. We have said that you agreed to hand over to us timber from a wood which does not form part of the tenements leased to us, so that we were unable to take anything there without you handing it over and we tell you that there is no timber growing on the tenements leased to us.

Belknap. You never said that before (and see thus that if there had been timber growing on the land he would not have committed waste) and so he said that he attempted to hand over sufficient timber but he refused to receive it unless we would give to him more than seemed sufficient, and so it weas his fault, ready etc.

[PAB notes: (i) tenant for life; (ii) liability for permissive waste]

44 E.3.44 [1370] [Co. Litt 53a [b]]

163. A man brought a writ of waste against a woman and supposed by his writ that she had committed waste in respect of a wall and one hundred apple trees and had cut down one hundred oaks and a grange.

Kirkton. As to the wall we ask judgment if this can be called waste as this is outside the case of the statute; and as to the apple-trees they were uprooted by the great wind and we cut them up etc., judgment if this is waste. As to the grange it was blown down by the wind; as to the oaks we cut them down to repair the grange and the plaintiff took and carried them off; judgment etc.

Belknap. As for the wall he says that it was covered with tile etc. and asks for judgment and seeks that she be convicted etc. As to the apple-trees he says that they were knocked down by the great wind and fell on the crops and many of the roots lay in the ground and we say that the trees bore fruit for two years afterwards until he uprooted them; judgment etc. and we seek that he be convicted. As to the grange he says it decayed for lack of roofing, ready etc. And as she admits the cutting down of the oaks if it be found that she has committed waste in the grange the waste in respect of the oak-trees is sufficiently clearly admitted, and so etc.

Kirton. She will not be convicted of waste of the oak-trees as he himself took them and carried them off (and this was not allowed as for this she would have a writ of trespass against the same plaintiff).

Kirton. It is necessary that he plead with us as by saying that we have made waste in

respect of the oak-trees but this was not allowed because if she is convicted of waste in the grange she will be convicted of waste committed in respect of the oak-trees etc.

[PAB: (i) tenancy uncertain (perhaps doweress); (ii) voluntary and permissive waste]

46 E.3. 17 [1372] [Co. Litt. 53a (m)]

164. Waste brought by a man and alleging that the tenant held by his lease for the term of his life and the tenant came and showed a deed by which the plaintiff and four others had leased the tenements to him for the term of his life, reserving the reversion to all four of them, and asked for judgment of the writ.

Belknap produced a release made by three of them to the fourth rehearsing how they had reserved the reversion and how they had released to the fourth their right in the reversion.

Percy. His writ is false in its contents as it supposes that he holds by his lease alone.

165. FINCHDEAN, J. What kind of writ ought he to have?

Percy. A writ that is in accordance with the facts of his case.

166. WITCHINGHAM, J. The writ is not false for even if the others did lease the land with him he did lease it together with them and thus he leased.

Percy. He ought to have had a writ rehearsing the lease and the release made to him in this way and thus would be shown expressly in the writ how the reversion was to him alone for in as much as the three released to him he is in as of their estate, just as if the reversion had been granted to a stranger in which case they would have to have made mention ex assignacione etc. or otherwise the writ would have been bad and so here etc.

FINCHDEAN, J. In a case where the reversion is to two persons and to the heirs of one of them if the one who has the fee make a release to his companion if he wishes to have a writ of waste it is necessary to say that de eo tenet ex assignacione etc. And long ago there was a great debate in chancery on the drafting of the writ in this form. But here all the right of reversion was in his person even if he had others joined with him and even though they have made a release while their right existed the fee continues in him and so the writ seems to us to be good.

Percy. If two parceners lease for a life term and one parcener dies without issue the other parcener will not be able to maintain a writ of waste against the tenant that alleges that he holds of her lease because a moiety is descended to her from her parcener.

FINCHDEAN, J. So she will have even though their right was several because the reversion was continued in them without a severance between them. And in the case where land is leased to someone for the term of their life and after their death to someone else for a term of years a writ of waste has been adjudged against the tenant during the term.

Belknap. If two acquire jointly to themselves and the heir of one of them and lease for a life term the two will have a writ of waste.

167. And then the writ was adjudged good on this point.

Tauke. Again we ask for judgment of the writ because he has alleged the cutting of willows and that cannot be accounted waste unless they are uprooted. Also he has said that we have cut blackthorns and whitethorns and that cannot be accounted waste.

Belknap. As for the whitethorns we have mentioned a certain number and as to the blackthorns we have supposed that he cut none as wood and underwood generally.

Tauke. The blackthorns are growing in the common of another; judgement if action lies; as for the whitethorns we say that you granted us permission to make our profit by the deed which is here; judgment if that can be accounted waste.

Belknap. We will imparl.

Percy You have seen how he has alleged that we have cut so many cartloads of blackthorns where it should have been so many thorns as one does with other kinds of tree for waste, so that the damages could be assessed more certainly (and this was not allowed). And then he said that thorns are not trees for the purpose of waste, judgment (and it was not allowed). And then he said with respect to an ash of the value of two pence we cut it down and with it made a way at the place and we ask if we are impeachable. And as to that which Belknap said in his count that we cut so many cartloads of thorns, box, briars and other young trees in the wood and that other persons have common there, so that as a result of our cutting they could not grow again because of the frequent grazing of the commoners we tell you that we cut briars and firewood for enclosing our closes and as housbote as law allows and that we did not commit any other waste and we ask for judgment.

Belknap. And we ask for judgment as you have admitted the cutting where others have common, so that they did not grow again, and thus open disinheritance.

Tank. In the case where someone is entitled to certain estovers in a wood and I fell or cut certain boxtrees or briars as husbote or heybote as law allows and after they have started growing he who is entitled to estovers cuts then down it is not right that I be impeaded for something which is the fault of another.

Finchdean. I believe that you will be because it is necessarily understood by the law that one ought not commit waste in disinheritance; but when one goes to small trees that can grow again even when they are cut down it is allowable to cut them down for repair of the close or buildings but not otherwise.

168. And so to judgment.

[PAB notes (i) tenancy for life; (ii) voluntary waste]

49 E.3.2 (recte 49 E.3.1) [1375] [Co. Litt. 53a (f)]

169. A man brought a writ of waste against Thomas Grey of York and alleged that he held for a life term by his lease and assigned waste in respect of a house namely in a grange, a hall and a cottage.

Fulthorpe. As for the hall and the grange we tell you that they were weak and the wood rotten at the time of the lease so that they were not able to stand and so subsequently they collapsed and we ask for judgment if we are chargeable with that; as to the cottage we say that you erected it after the commencement of the lease without our agreement and ask for judgment if you can assign waste there.

Hanmer. As for the cottage we wish to prove that there was one at the time of the lease and so it is waste and ask for judgment against you; as for your allegation that the buildings were in bad repair at the time of the lease we respond that by your indenture (which we show) you agreed to repair these buildings and maintain them in as good a state and better than they were when you received them, and thus he is obliged to repair them by his own deed and we ask for judgment whether he is receivable to say that they collapsed through bad repair.

Fulthorpe. Since we have alleged that they were in bad repair at the time of the lease and that they collapsed subsequently through their weakness and this excuses us in this action of waste, as we understand. As to what you say about us agreeing to repair the buildings by our indented deed, that is something that would charge us in an action of covenant and so whatever you may say about this deed there is no law to make me answer it.

170. WITCHINGHAM, J. Sir, the deed which you produce shows you might have an action of covenant against him in which you would be able to recover only single damages for the breach of the covenant whereas if you were to succeed against him through this indented deed in this writ of waste you would recover triple damages, which would not be right.

And so Ham'. Do you have anything else to say to charge him in this action of waste?

Hanmer. We tell you that at the time of the lease the great timbers were in sufficiently good state and suitable and not perished and subsequently for lack of roofing in your time after the making of the lease they perished by your default. We ask that you be convicted of waste.

Hasty. He does not allege that all the timber was in good condition but speaks only of the great timbers and so what he alleges is not sufficient matter to charge us with waste.

Kirkton. It may be that the great timber was in good condition but the beams were decayed at the time of the lease and so he could not roof the buildings without the beams and was not obliged to substitute others and then roof them, and so.

Hanmer. Then we tell you that after the making of the lease the walls collapsed by his default and so the building collapsed, and thus it is waste.

Hasty. The walls had collapsed at the time of the lease and so the building collapsed since and not by our default, as we are ready etc.

171. The others to the contrary.

[PAB notes (i) tenant for life; (ii) permissive waste]

5 R.2 wast 97 [1382] [Co. Litt. 53a (h)]

172. Waste where the count was that he had committed waste in ponds which he held in wardship, namely one pond which he had drained and the other in which he destroyed the fish.

Burgh. The writ does not state whether we are guardian de facto or de jure; judgment of the writ for uncertainty (and this was not allowed).

Burgh. The writ does not speak of ponds but of buildings, woods etc.; judgment of the count (and this not allowed)

Burgh. As to one pond because it was so full of reeds that we could not catch the fishes we allowed the water to run out by a pipe and took the fishes and we tell you that when the plaintiff came of age the pond was properly stocked; judgment if action etc. As to the other pond it was common and is now; judgment etc.

Clopton. We say as to the pond that you sold the fish and it is therefore waste etc. and you took more than was appropriate.

173. BELKNAP, C.J. Be certain that he could have taken sufficient and have left sufficient and committed no waste and have taken for his store enough as in the case of game animals in a park where even if he take for his larder if he leaves enough this will not be adjudged waste.

Clopton. How will this sufficiency be tried?

174. BELKNAP, C.J. If he be wise he will take his neighbours and show them in what he has found waste, will have his pond tested and show them what he has found there and then I believe that by their view it can be adjudged whether or not waste has been committed and if enough remains or not. And so you will take issue that the ponds were sufficiently stocked when he came of age and so no waste was committed etc. and the others to the contrary that he left sufficient stock at his coming of age and so issue will be taken on that.

Clopton. He has departed from his count because he declared that waste had been committed in one pond by draining it and now he is at issue on the sufficiency of fish which is another cause.

175. BELKNAP, C.J. I say for certain that is not waste but good and profitable for fish and necessary that a pond be allowed to dry out for one season in the year as for example one summer or in some places for a whole year because after the fry of the pike has come onto the land it likes to remain there without damage for a good while if the land is good for fish and then come from this to the bank of the water at a sufficient time for fish.

176. So he took issue as above.

[PAB notes (i) guardian; (ii) voluntary waste]

11 H.4.32 [1409] [Co. Litt. 53a (g)]

177. Thomas earl of Arundel brought a writ of waste alleging that his ancestor had leased a manor to the defendant for a term of years and specified waste in a hall, a kitchen, a stable and certain oak trees.

Norton (for the defendant) says that the plaintiff's ancestor had sold the hall to the prior of Mendham before the lease and by virtue of that sale the prior had dismantled the building after the ancestor's death and asked for judgment. As to the stable he says that the timber of the same was so rotten in the lifetime of his ancestor that it fell down in his lifetime and asked for judgment; and as to the oaks he says that he had cut them down to erect a new stable and had built it with the same oak trees and asked for judgment. As to the rest he pleads that he had committed no waste, and was ready etc.

Skrene. The first plea with regard to the hall amounts to saying no waste committed; but we are ready to prove that it was.

Norton. In as much as we have alleged that your ancestor sold the hall and by force of that sale it was dismantled in your time and you may have your action in respect of that dismantling and intend to have your action against us and you do not respond to this matter we ask for judgment because we have admitted the fact of the waste in this manner and the dismantling and have justified it by reason of the sale by your ancestor and the prior's action, and so etc.

Skrene. Again we ask for judgment for another reason in as much as he has admitted the waste committed by a third party in the dismantling of the hall and the tenant could have stopped him doing this and if the third party did it without his consent he could bring an action against him and so the defendant has not answered us and we ask for judgment etc.

178. HANKFORD, J.. Although the ancestor sold the hail if the purchaser did not dismantle and remove it in his lifetime after the ancestor's death the hall which was annexed to the free tenement descended to the heir and so no-one was allowed to dismantle it. Cutting a wood or the like are not similar to the dismantling of a building because one can bring a precipe quod reddat for a building and that proves that a building is free tenement and inheritance.

179. HILL, J. By the ancestor's sale it was at once unannexed from the free tenement and vested in the purchaser as chattel. So, even if he did not dismantle it in the lifetime of the ancestor, he was able to do so after his death, particularly as his entry into the manor was no wrong to anyone except to the lessee. If the manor had been entailed there would be some colour to the heir's claim because then the deed of the ancestor who was tenant in tail would not prejudice him; but when the ancestor had fee simple in the manor (the contrary to this not being pleaded here) it seems his plea is good.

180. COLEPEPER, J. In this case the plaintiff ought to be in no better position than his ancestor and his ancestor would be barred from action by his own deed, and so etc.

Skrene. Then we say that he himself dismantled the same hall and ask for judgment etc.

181. THIRNING, C.J. Even if he himself dismantled the hall he could have done this in the name of the prior who acquired it and so you have as yet pleaded nothing to charge him with waste, and so etc.

Skrene. We will make things easier for you and say that he dismantled the hall and sold it for his own profit, as we are ready etc.

Norton. In as much as you do not deny the sale made by your ancestor to the prior and by force of that the ownership belonged to him the dismantling was a wrong to the prior and not to you and we ask for judgment.

And then Norton because of what had said said as before and added 'and that he did not did this for his own profit etc.'

182. And the others to the contrary.

Skrene. As to the stable his plea is double. One plea is that the wood was rotten in his ancestor's lifetime, which is a matter of 1aw to bar us from action, because the cause of the waste arose in the ancestor's time. The other is that it collapsed in fact in the same ancestor's lifetime.

Norton. What we said about the timber being rotten in your ancestor's lifetime and so the stable collapsed during the same time is only to prove and justify the cutting of the oak timber for I know well that whether it was by our default or by the weakness of the building that it fell in your ancestor's lifetime we cannot be impeached for that waste; but perhaps if it fell by our default in the lifetime of your ancestor we could not cut down the trees in your lifetime and erect a new building (but query as to this).

183. COLEPEPER, J. If I lease land to you for a term of years and there is no building there at the time of the lease you cannot cut down my wood to make a new building.

THIRNING, C.J. What of that?

184. COLEPEPER, J. In effect that is the case here.

185. THIRNING, C.J. Not so, for he has shown that there was a stable at one time in the manor and that it collapsed without his fault during his ancestor's lifetime and so if there was a need for a stable he could erect one because here the necessity can be tried by a jury.

Skrene. It was strong enough and sufficient and in good repair in our lifetime and collapsed during the same, as we are ready etc.

186. The others to the contrary etc.

[PAB notes (i) tenant for term of years; (b)permissive as well as voluntary waste

12 H.4. 5 [1410] [Co. Litt. 53a (g)]

187. The abbot of Sherborne brought a writ of waste against two husbands and their wives and when the grand distress was returned one husband and wife defaulted and the other husband and wife appeared.

Skrene. Against those who have defaulted we ask for a writ to the sheriff and we are ready to count against those who have appeared.

188. HANKFORD, J. It is better that those who have appeared should plead and the business can be done by their plea.

Skrene. By the statute of Westminster II, c. 14 a writ will issue to the sheriff by the default of one who makes default and although the writ is brought against them jointly it is not right that those who have defaulted should take advantage of the appearance of their companions; and it might be that the waste was committed by those who have defaulted and in this case it will appear to the laymen that those who have appeared ought not to be convicted of this waste.

189. THIRNING, C.J. In such a case the waste committed by one will be adjudged the waste of them all which will be explained at trial and it is not here as it is in a precipe quod reddat where each can lose his share by default for in a writ of waste the land cannot be lost by default but tried by the action and those who have appeared can as well be party to the trial of the whole action as if all had appeared.

190. HANKFORD, J. If the writ should go to the sheriff by default and waste was found and then on the plea of those who did appear no waste was found what would the court be able to do? I do not know and so for the problems that would ensue you may have process at common law by distraint against those who have made default or else those who have appeared may plead and all be tried in accordance with their plea for if it is found that no waste has been committed all will be acquitted by this.

191. THIRNING, C.J. But if waste is found by their plea it would be hard that the others should be convicted by an inquest to which they were not party and so we wish to be advised (and see there that attaint would not lie for them as I believe for they were not parties to the plea and so a mischief would ensue).

192. And then they were made to answer.

Norton traversed the waste except in respect of a grange and said that half the grange fell down before the lease and as for the other half he says that it was an unroofed by a sudden storm and before he could re-roof it the plaintiff entered on him and was seised on the day the writ was obtained and we ask for judgment whether he may maintain an action for this waste.

Skrene. We alleged that he committed waste in a grange which we leased to him and he has said that waste was committed in one half of it before the lease commenced and this is no answer to our action, and so etc. For if he himself had erected a new grange there and waste was committed in respect of that our action would be maintainable.

193. HULL, J. If that is the case show that yourself for his answer is a good one.

Skrene. Good. Then as to the other half his plea is double: one plea related to the sudden storm; the other talks of our entry against him. So we ask that he chooses one.

194. HULL. J. The plea is not double because the thrust of this plea is that your entry on him was before he could repair the unroofing.

Skrene. If I wished to traverse the entry he would rejoin against me asserting the sudden storm which excused him from waste: for if I lease buildings for a term of years and they are unroofed by a sudden accident I will have no action of waste for that.

195. HULL, J. What you say is not law because although initially it will not be adjudged waste committed by him but by act of God if he allows the building to remain without a roof and so the timber is damaged he is answerable for that waste because that is his default and by law he is obliged to roof the building.

Skrene. If the whole building is blown down by a sudden wind I am not obliged to rebuild it.

196. HULL, J. I concede that but where the timbers are standing, which are the substance of the building, and decay for lack of roofing, that is obviously waste.

197. HANKFORD, J. If I commit waste in tenements which I hold for a term of years and within that term I am ousted by the lessor it needs to be seen whether or not he may have an action of waste especially within the term and it is here proved by the count that the term is still in existence and then if he wishes to say that the buildings were left without roofs by your default rather than by a sudden wind he would be excluded by the entry which he made without cause and so it seems that the plea is double.

And then Norton alleged that the cause of the plaintiff's entry was that the lease was made by an indenture with the condition that if waste was committed he could re-enter and he re-entered because of the unroofing of the building, and so etc.

HANKFORD, J. You still prove by your plea that his entry was tortious and so the plea is double.

198. HULL, J. The plaintiff can say that the defendant had enough time before his entry to have repaired the building and failed to do so and thus to prove that the waste was by the default of the defendant and also prove that his entry was allowable under the said condition.

HANKFORD, J. (to Norton). Seek further instruction etc.

[PAB notes (i) tenant for term of years; (ii) liability for permissive waste discussed here]

7 H.6. 38 [1429] [Co. Litt. 53a (e) and Viner 442, no. 17]

199. Waste was brought against one and waste was assigned in respect of a chamber because he had allowed it to fall down for lack of roofing and also in certain cottages, certain oak trees and certain ash-trees, certain pear-trees and certain apple-trees cut down and sold.

Newton. As to any waste done except in the chamber, five cottages, ten oak-trees, three pear-trees and four apple-trees, no waste committed, ready etc. (And the others to the contrary). As for the chamber we tell you that it was unroofed at the time of the lease and beforehand and for lack of great timbers was weak and rotten at the time of the lease and after the lease we roofed it as soon as we could and it did not collapse for lack of roofing after the lease. As for one cottage, the great timber was so weak and so rotten at the time of the lease that it could not stand and so it collapsed; judgment whether waste is to be adjudged against them. As to the ten oak-trees we tell you that he leased us a manor together with the things in which he has assigned waste and we cut down the oak-trees to repair certain buildings within the manor and we repaired them with these same oaks. Judgment etc. As to the five ash-trees, they are timber that is cut every ten years and we cut them as housebote and heybote; judgment. As for the pear-trees and apple-trees they were felled by a great wind and then ceased to bear fruit and we took them for fuel and we did not cut them down as you have alleged as we are ready to prove etc.

Cottesmore. As for the chamber, it fell down for lack of roofing after the lease, as we are ready etc.; as for the cottages, the great timber was not rotten at the time of the lease, as we are ready etc.; as for the oak-trees, he has said that he used them for repair of the buildings of the manor but has not specified which.

200. BABINGTON, C.J. It may be that one was used in one, another in another etc.

Cottesmore. He cut them down for sale and did not put them to the repair of the manor as he claimed, as we are ready etc. As for the ash-trees they were great trees nine years old and suitable as great timber, ready to prove etc.

Newton. They are grown as a crop and we cut them at the proper time for housebote and heybote and they were not large enough to use as timber, ready to prove etc. (But query here as to the form of pleading)

Cottesmore. As to the pear and apple trees he cut them and sold them, as we are ready to prove etc.

201. So note from this plea that if trees are felled by the wind they belong to the tenant for life and not the reversioner: but query.

[PAB notes (i) tenant for life according to note at end but may be for years; (ii) permissive as well as voluntary waste alleged]

9 H.6. 10 [1431] [Co. Litt. 53a (m)]

202. In a writ of waste

Fulthorpe. Judgment of the count. He has alleged waste in oaks and thorns and thorns cannot be considered waste.

Goderede. What do you say in respect of the oaks?

Fulthorpe. That goes for all.

203. PASTON, J. That is only against the action for part.

204. MARTIN, J. The whole writ will abate because it appears that if his writ does not lie in respect of part then his action is false in respect of part.

STRANGEWAYS, J.. If the demandant acknowledges some plea which is contrary to his action in part then all the writ abates but that is not an admission but an allowance in his declaration.

205. MARTIN, J. His declaration is his own words; so he has admitted that his action does not lie in part.

206. PASTON, J. If a woman in an action of dower makes claim to one third of a manor and of a common, as to the common her claim is void but as to the remainder her claim is good. Moreover he has assigned waste in that the stumps of the thorns have been destroyed for lack of enclosure.

207. MARTIN, J. If one brings a writ against two and one dies the whole writ abates.

Brown (one of the clerks) says that this is because the writ is false but in this case the writ is good in itself.

208. And then as to the part Fulthorpe showed how Alice the claimant had a brother who had survived his father and died; and after his death no waste committed etc.

(11 H.4.3.82. Reg. Brev. 119, 124; Executors have a writ of trespass for the breach of a close and good carried off in the lifetime of the testator etc. See 54 below)

[PAB notes (i) nature of tenancy unclear; (ii) voluntary waste]

9 H.6. 52 [Co. Litt. 53a (f)]

[does not work]

9H.6.1.66 [recte 9 H.6. 65 and runs to 67] [1431] [Co. Litt. 53a (i); Viner 438, no. 9]

209. Remainder of an action of waste brought by duke of York against the Duchess and H.B. her husband [mostly about questions of procedure relating to jury trial in this case which related to waste committed by a guardian during wardship] and then

210. �on the morrow the inquest was taken. They said that Woodch' was a separate village and as to the waste assigned in two acres of land by digging two hundred cartloads of slate stone and one hundred cartloads of coal they assessed the damages at eight shillings for the whole.

211. BABINGTON, J. It is necessary that you assess the damage for each cartload separately.

212. MARTIN, J. That is not necessary any more than in a writ of trespass for ten cartloads of coal taken off.

213. At this the justices of King's Bench were requested to come into the Common Bench and they came and all the justices discussed together and then the jurors were charged to assess the damages for each cartload separately.

214. And then in respect of the waste assigned in respect of a hall they said that the tenant had no land or tenement or building in the same village other than a rent and so they could have no damage.

215. MARTIN, J. That is no verdict for the waste is assigned here before us in the record because the defendants did not deny it and so you are not to enquire if waste was committed but only to assess damages in accordance with the waste assigned and thus you are charged to give damages even if no waste has been committed.

216. This was conceded by the whole Court. But one of the jurors said that then we will be perjured.

217. BABINGTON, C.J. The law is as Martin has said and it is not for you to say in respect of a place that no waste has been committed because you were first examined if you had had a view of each parcel where waste was attested to have been committed and you said yes and this verdict you have given will be taken as contrary to what you said before and that is your own foolishness.

218. Then they assessed the damages for the hall at one penny and in respect of the 400 oak trees they were forced to assess the damages of each oak tree separately and they said that each oak tree was worth one hundredth of a penny.

Chaunterel. That is no verdict for a penny cannot be cut up into so many parts.

219. MARTIN, J. The verdict is good because one can hold land by the thousandth part of a knight's fee.

PASTON, J. (to Chaunterel). And thus to my understanding it would have been better to have ensured that the verdict was taken for a gross sum for all the waste committed in a manor.

Chaunterel. We cannot do otherwise for the court does not wish to take the verdict otherwise.

220. BABINGTON, C.J. If you the plaintiff wish to ask that the verdict be taken for a gross sum for all the waste assigned at your peril it will be so taken but then take guard as to whether it may not be an error.

BABINGTON, C.J. (to the plaintiffs). What do you ask?

Chaunterel. We ask that they assess the damages for each item separately.

221. So the jurors assessed each oak by itself at one hundredth of a penny as before and for the damage of the exile of a villein five marks and for another forty shillings.

Chaunterel. We ask for the costs of our suit.

222. BABINGTON, C.J. You will not get them for these damages did not exist at common law but are given by statute (and the whole court agreed with this).

223. Note that in the declaration the plaintiff put each cartload, each building and each oak at a particular individual value. And BABINGTON, C.J said that if an action of waste was brought for so small a thing as one it would not be maintainable quia de minimis non curat lex but here it is good because he had declared for a great waste and the jury had given different damages as for a great waste. And if the tenant pleaded no waste committed and it was found waste to the damage of one penny then perhaps the plaintiff would not secure judgment for the above reason but in this present case the plaintiff had declared damages and this is not denied by the defendant.

224. MARTIN, J. A writ of debt lies only for forty shillings or more and the defendant pleads that he owes him nothing and it is found that the plaintiff owes him twelve pence and no more the plaintiff will have a judgment to recover.

And then Rolf. You ought not to proceed to judgment because you ought to enquire through a separate jury of each hundred when the waste is assigned in separate villages which are in different hundreds and you have enquired only through a jury of the hundred of W.

225. MARTIN, J. That was argued before the venire facias issued and by the advice of all the judges it was held that there should be an enquiry into damages by the same jury that passed on the special issue taken for all the villages where waste is assigned are within a single county and in a writ of trespass for trespasses committed in several different hundreds where the defendant pleads a release or other matter in another hundred in the same county and a verdict is taken on this those who give their verdict on this issue are also to assess the damages if they give verdict for the plaintiff. So is there anything else you wish to say? (Michaelmas 38 agrees with this)

Rolf. You ought to have enquired about the waste and have only enquired about the damages. As in an assize if the tenant pleads a plea which is found against him there will still be an enquiry on the seisin and disseisin.

226. PASTON, J. What you say is true of the assize for the plaintiff is only asking for the assize to pass but it is different in other actions and so etc.

Rolf. He has assigned waste in the felling of the trees and also in the stumps and shoots of the same trees and so he has assigned waste of the same thing twice over.

227. BABINGTON, C.J. That is not so and this exception was taken at the beginning of the plea and not allowed because the plaintiff did not put the value of these trees but of the stumps and shoots alone etc.

PASTON, J. (to Rolf). Even if he had assigned waste in the trees and also in the stumps and shoots the count would still have been good, to my understanding, for the felling of the trees is one waste which he has assigned as waste and if he allowed the shoots to be destroyed by animals that is also waste.

And then Rolf said 'in quickthorn' and that cannot be except by special matter shown.

228. PASTON, J. That is a good matter to be seen and also if that is not adjudged waste either the count abates in part or as whole.

229. BABINGTON, C.J. The statute is that he is not to commit waste or destruction and even if that not be waste it is still destruction.

Rolf. We still wish to have a writ of error on that.

230. BABINGTON, C.J. Recover the place wasted and damages as assessed by the inquest in triplicate.

And Rolf immediately delivered to the justices a writ of error.

[PAB notes (i) nature of tenancy unclear from case; (ii) voluntary waste

11 H.6.1 [1432] [Co. Litt. 53a (i) and Viner 438, no. 10]

231. Waste brought against a tenant for term of years for the cutting down of one hundred oaks and in allowing the wood to lie unenclosed so that animals have eaten the shoots of the said wood so that they have ceased to grow.

Danby. It was not the practice in such cases until recently to count in this way but to count generally that he has felled the trees and destroyed the underwood and the shoots; no more than one would mention it in the count if it was a stranger who came on to the land and felled the wood; but it is now the practice to count thus about 'allowing'.

232. MARTIN, J. It is a good practice for if he counts generally in this case and the other plead 'no waste committed' the lay men will perhaps find that none was committed.

Danby. You will show in evidence to the inquest the whole state of things and if it is so found it will be adjudged waste. And one time in the Chancery it was found by an ex officio inquisition that the lands and tenements contained in the verdict had been given to one in tail and that he after whose death the inquisition was taken had died seised and that by the permission of the tenant in tail and the verdict was held good because notwithstanding that it was found that he died seised of a good estate for each man who dies seised it is by my permission because it is my fault to allow them seisin of their own land.

Rolf. You are not entitled to bring action because we say in respect of the oaks that they are a crop and we say that all the wood growing in this wood which has been leased for a life term or a term of years has always been lopped at the age of twenty years or less as a crop. And since it is of the age of twenty years he lopped it as a crop. Judgment.

Fulthorpe. Oaks cannot be described as a crop to lop at a certain age; and so we ask for judgment on his own admission and ask that he be convicted of waste.

Rolf. We have alleged that this has always been the usage for them to be felled at that age, and thus we have committed no waste etc.

Fulthorpe. You have not alleged that the custom of such a hundred or county within which the wood lies is such and so the custom you allege is not to the purpose.

233. MARTIN, J. There is no need to say more. In some places that which is called high timber is only croppable wood and underwood and vice versa according to whether timber if plentiful or not. For where there is great plenty of wood great oaks of the age of twenty years or below are customarily lopped as croppable wood but where there is a scarcity of wood it is not customary to lop it as croppable timber. So if it has not been the usage to cut it as cultivated timber show this to the court because there can be cultivated timber and oaks called 'wranlons' which will not become timber but are good only for burning and it is not adjudged waste and in some places it is so; and thus etc.

234. And then MARTIN, J. ordered Rolf to plead in respect of the shoots.

Rolf. As to them we tell you that our servants when they carted away wood negligently left the gates to the wood open and animals entered and ate the shoots but they grew back and we committed no other waste.

Fulthorpe. We ask that he be convicted on his own admission because if the animals have eaten the shoots they will never afterwards become timber but only shrubs.

Rolf (maintaining our claim that the animals entered the wood by the negligence of our servants and ate the shoots and they grew again afterwards) by way of plea we say no waste committed.

235. MARTIN, J. If in your protestation you admit waste the plaintiff will be able to take advantage of this as much as if you had admitted it in your plea; and so etc.

And then Rolf. No waste committed in the manner etc., as we are ready etc.

Danby. Nothing will be entered on the roll except generally 'no waste committed'.

236. And so they pleaded thus 'Ready etc. and the others to the contrary'.

237. And as to the oaks the opinion of the whole court was that Rolf could not have justified the lopping as of a crop unless he had said they were of the age of twenty years because if they were over the age of twenty years it is not a croppable wood.

And so Fulthorpe said they were over the age of twenty years at the time of cutting, as he was ready etc.

238. And the others to the contrary, namely that they were under the age of twenty years.

[PAB notes (i) tenant for term of years; (ii) voluntary waste (though sounds as if permissive)]

18 H. 6. 33b [1440] [Viner, 449, no. 3]

A very long scire facias case mainly concerned with other matters. Viner is picking up a passing reference in an argument by Markham that runs as follows

Markham. In a writ of waste brought against me I may well plead that at the time the lease was made the building was ruinous and then collapsed or that it was knocked down by a sudden chance or burned by lightning and ask for judgment if action lies and will not be compelled to take the common issue 'no waste committed' because the lay men cannot judge whether this is waste or not. So also here.

[PAB notes (i) form of tenancy not specified; (ii) permissive and voluntary waste]

20 H.6. 1 [1441] [Co. Litt. 53b (r) and Viner 439, nos. 33, 34]

239. The plaintiff counted that the defendant had committed waste in certain land that he held by curtesy of his inheritance and assigned as waste allowing a sewer within the land not to be maintained so that so much meadow being part of the land is flooded, to the disinheritance etc.

Markham. That cannot be waste for the banks of the sewer can be repaired and then the meadow will be as good as before and so there is no disinheritance of the plaintiff.

NEWTON, J. If the sea breaks through the sea dikes and floods my meadow so that I cannot get it back that will be accounted waste; and the same reasoning applies where it is done by fresh water and so this waste seems to be well assigned.

Fortescue. Even if the banks are repaired if the water has caused my meadow to become rushy that is waste; and so etc.

Portington. The writ is that per inundacionem et loturam the meadow has become wasted and that proves that the waste etc. for if the land had been arable and not meadow and had been well cultivated and well looked after if the water per inundaciones et loturam had washed away and voided this good land so that nothing remained except the 'tough clay' that would have been waste; and so here and therefore etc.

AYSCOUGH, J. This waste is surprisingly assigned.

Portington. Even if the meadow by repair of the banks is able to grow again and become as good as before that cannot be for a long time because if a wood is wasted that can grow as well as before but that cannot be for such a long time it will be accounted waste; here too.

Markham. We may have advantage of that afterwards as much as belongs because whereas he has supposed by his count that the waste was committed in lands held by curtesy after the death of our wife we tell you that our wife never had anything in these lands after the marriage.

Portington wished to have demurred on the plea because it was no more than an assertion.

So Markham said that one Ellis enfeoffed him without him ever having anything by way of curtesy.

[PAB notes: (i) tenant by the curtesy; (ii) permissive waste]

22 H.6. 12a [1443] [Co. Litt. 53a (i)]

240. In a writ of waste the plaintiff made a declaration through Danby and assigned as waste the felling of one hundred oaks and also the waste made to the stumps of these same oaks

Bingham. It appears by the count that the waste is assigned in respect of the same thing twice over, namely the cutting down of the oaks is one waste assigned and the other is of the growth on the stumps of the same oaks, but this is in law all one waste.

NEWTON AND PORTINGTON, JJ. AND ALL THE COURT. These are different wastes because if the growth growing from the stumps had been safely looked after it would have grown eventually back into oaks. For if a tenant for life cuts down forty oaks and afterwards perhaps continues in possession for twenty years and then because they are well grown he cuts them at the same place the reversioner will have an action of waste and may count of both wastes and recover triple damages twice over.

Bingham. How can that be? For the plaintiff in an action of waste aims to recover the place wasted and he cannot recover it twice.

NEWTON AND PORTINGTON, JJ. That is true. He ought to recover the place wasted just once but the damages in triplicate twice.

241. And then the defendant pleaded: no waste committed etc.

[PAB notes (i) tenancy unspecified; (ii) voluntary waste]

22 H.6. 18 [1443] [Co. Litt. 53a (c)]

242. In a writ of waste the waste assigned was in respect of a house, twenty oaks, forty cart-loads of clay.

Markham. Clay cannot be called waste.

243. To which it was said by the Court that it is waste in as much as the soil is made poorer by removal of the clay.

Markham. As for the house, it was so ruinous and rotten that it was about to fall down and so it was demolished and rebuilt (judgment if action lies etc.); as for the oaks they were cut down for timber for the house and the timber was used in the house as for posts, spars and panels (judgment if action lies etc.); as for the clay he dug this out of the soil to take for the house. Judgment if action etc.

Danvers (not admitting that the house was ruinous or rotten): the previous house was forty-eight feet in length and forty feet wide and the new house is forty-eight feet in length; and in so far as he has thereby admitted waste we ask that he be treated as confessing etc.

Markham. The new house is as good and as profitable as the old one was.

244. NEWTON, J. How can it be thought that a house forty-eight feet long and forty feet wide will be of as great value and as profitable as a house that is eight foot wide and of the appropriate width? And as Danvers well said when the defendant demolished the house that was his folly because in this case he must make a new house of the same length and width as the other, but if the house had fallen down and he had erected a new one he would not have had to erect it to the same dimensions as the old house.

Markham. We tell you that we demolished the house with the assent and by the agreement of the plaintiff and erected a new one as good and profitable as the old one, ready etc.

Danvers. We hold to the plea as we pleaded it etc.

NEWTON, J. You say well.

Markham. We ask for judgment etc. and ask that he be barred.

245. And thus they demurred for judgment and then nothing was entered of this save a licence to imparl.

[PAB notes: (i) nature of tenancy unclear; (ii) ?all voluntary waste]

23 H.6. 24 [but this cannot be right as there are no reports for this year; must be 22 H. 6 24] [1443] [Co. Litt. 53a (b); Viner 446, no. 12]

246. In a writ of waste

Danby. Judgment of the writ for the writ supposes the waste to have been committed in terris, domibus, boscis et pratis and he has counted among other things of waste committed in knocking down a fence that surrounds a house and this cannot be adjudged waste; judgment of the writ.

247. And by the whole of the Court this was adjudged no waste; nor is a wall uncovered waste but a wall roofed in thatch or a fence covered with timber can be waste, but here is no such matter shown; and no waste can be shown in the breaking down of a hedge.

Danby. We now ask that all the writ be abated because it appears by his own acknowledgement that this writ is defective in part and when he acknowledges that it is defective in any part the whole writ abates.

NEWTON, J. If this is by the acknowledgment of the party then that is true but it is different when it is a surmise from the writ or declaration; so answer to what remains.

Danby. Again, judgment of the writ because it appears from the writ that the lease was made by the wife and one T. then her husband in which case during the coverture she can make no lease but it will be adjudged the lease and the deed of the husband. So, judgment of the writ.

248. NEWTON, J. We cannot adjudge this the deed of the husband alone because she can assent to the lease if she wishes and then it will be said to be a lease of the husband and of the wife. So the court adjudged the writ good.

Danby. Again judgment of the writ because we tell you that the wife and her then husband T. held only in parcenry with R.K. and his wife A. as of the right of A. Judgment of the writ.

249. NEWTON, J. AND THE WHOLE COURT. That is not a plea unless you wish to show that A. is still living and it is still not a plea because if there are two joint tenants and one makes a lease of the whole that is a disseisin committed against her companion in respect of the moiety and so the reversion belongs only to the one who made the lease of the entirety.

Danby. We tell you that the woman who is now plaintiff and T.H. then her husband and R.K. and A. his wife were seised as of the right of their wives and made the lease jointly for the terms of their lives and R. is still living, and that T.H. and his wife did not make the lease alone as the plaintiffs have suggested; so judgment of the writ.

250. NEWTON, J. AND THE WHOLE COURT. That is still no plea without showing that A. is still alive or that A. had issue which is still living or else that R. had issue with the said A. and so he is tenant by the curtesy at least, for you cannot abate this writ unless you are willing to give the claimant a better writ.

Danby. It is not right that the tenant be charged jointly against those who made the lease and also severally and the said R. Kend' has an action of debt for the arrears.

251. And THE COURT said that Robert would have an action of debt for the arrears accrued during his wife's lifetime, otherwise not. So etc.

Danby says (as before) that the lease was made jointly and that R. had issue with the said A., one John, and this R. is still living and that the lease was not made by T.H. and his wife alone; judgment of the writ.

252. On another day

NEWTON, J. It seems that the plea is good because there is enough privity to make the husband and wife and the said R. privy in an action, because a writ of partition lies against the tenant by curtesy and it is not inappropriate that one who has the fee simple in reversion should join in an action of waste with one who has in reversion only a life interest, for suppose that the reversion of a tenancy for life is granted to two people and the heirs of one of them, then they ought both to join in an action of waste and it will be supposed by the writ that the waste was committed to the disinheritance of the one, namely the one who has the fee simple. Suppose also that a husband makes a lease for life of his wife's right: does he have the reversion in his own right or in right of his wife?

Danby. In right of his wife.

253. NEWTON, J. That is right because such estate as he had in the land before the lease he has now in the reversion (but query because this is surprising to me)

Moyle. If R. ought to join in this action with the husband and wife then it would seem to me that the tenant by curtesy and their of that tenant ought to join in any action of waste brought by the tenant by curtesy by himself.

254. NEWTON, J. That is not so because there is no privity there.

And then Danby said that the plaintiffs had never had anything except in coparcenry with the said R.K. and his wife A. as in right of their wives, who were indebted to the lessee in forty pounds and for the better surety they made the said lease to him, which R.. and A. had issue between them, one J. A. who died and R.. is still living, and the woman who is now plaintiff and T.H. then her husband did not make the lease by themselves in the form they assert; judgment of the writ.

255. The others said: that they made the lease etc., ready etc. and so to the jury.

[PAB notes (i) lease pur autre vie; (ii) voluntary waste]

5 E.4. 89 [1465] [Viner 446, no. 9]

256. A writ of waste was brought and declaration made that the waste had been committed in a messuage, namely in one hall and assigned the waste in a chamber etc. and in a kitchen and assigned the waste in allowing the kitchen to fall down because he did not put piers under the walls of the kitchen called the 'grunsel' etc. Judgment was asked of the count as this could not be waste to allow the 'grunsels' of a building to waste, for the tenant, namely the termor or lessee, is not obliged to have this thing repaired any more than the timber of the messuage because if he keep the buildings roofed so that the timber does not waste because of lack of this nor the grunsels of the building nor the timber of the walls the tenant does enough on his part because he is not obliged to repair the timber of the house nor of the 'grunsels' which is the basic structure of the building as much as the posts and the timber of the building. But repairs of this sort belong solely, as it seems, to the lessor, the lord, and not to the tenant and thus it seems that this previously mentioned is not waste in the tenant etc. According to some of the court it seemed to the contrary for if the tenant allow the 'grunsels' to waste and by his failure to protect or to remove water which flows or runs onto this or earth or dung or other nuisance which lies or rests on it the tenant will be charged with this as much as if he broke the 'grunsels' and caused the building to fall down because the tenant is at least obliged to ensure that which is leased to

him is in as good a condition as it was when it was leased to him. So in the case here if the

plaintiff had declared that he leased this kitchen to him well-roofed and with good 'grunsels' and good walls and all in good condition and then the tenant allowed the 'grunsels' to waste and rot and so the building fell down then the tenant, as it seems, will be charged with waste as a result of his own folly. Likewise here because by this declaration it will be taken by common understanding that the kitchen was prima facie sufficient and was good throughout, that is, in good repair above and below etc. and so then by his sufferance, he declared further, he suffered the 'grunsels' to be wasted and that cannot be taken otherwise than that everything was fine at first and now by his sufferance was otherwise and a tenant will be put by the law at least to repair it because he leased it to him to be left in as good a condition every time and thus to repair and look after it in at least as good a condition as he found it; and otherwise he is chargeable with waste etc.

Littleton. This matter goes to our action in this respect.

Catesby. Iwas taught that this is an exception to the count and by this the whole count is abatable.

CHOKE, J. Ifthis is or is not adjudged waste, whichever one, that will only affect the action in this respect, for if it is not adjudged waste the plaintiff will not be barred by this except from this part of his claim and the remainder will still stand etc.

257. And because the better opinion of the court was that the count was good the defendant passed over and pleaded no waste.

[PAB notes: (i) tenancy for term of years; (ii) permissive waste]

5 E. 4. 100 [1465] [Co.Litt. 53a (p)]

258. A writ of waste was brought alleging that waste had been committed in respect of a building etc. and also in respect of wood, namely certain trees. And in the count in respect of the trees he counted that the defendant cut down the trees and sold them. With respect to the building he pleaded that he had committed no waste; with respect to the cutting down of the wood, namely the trees, the defendant pleaded justification because at the time of the making of the lease the building was ruinous in the 'grunsels' of the building and so the defendant cut down the trees to repair the building and with the said trees he erected the 'grundsels' of the building.

Littleton. That is no plea because he does not respond to our action, namely the sale to which an answer ought to have been given, because if he cut the trees to make repairs and sold them before he did so the cutting cannot be justified; and so it is necessary to answer with respect to the sale as well as to the cutting.

Catesby. Although we sold the trees that is no wrong in us when we made repairs with them for now the sale is not material when repair has been made with these trees; for if I waste a building and knock it down and before an action of waste is sued against me I make another and better building I will not be punished for the waste so that, although the defendant made the said sale because it is not denied that he made repairs with them it will not be called waste because of the repair.

259. NEEDHAM, J. The cutting of the trees to make repairs with them is well done but if he makes the sale before the repairs are made with the wood, namely of the trees, yet the sale made beforehand is wrong and waste and however the lessee gets these trees back by gift or purchase or otherwise and make repairs of a building that is included in the lease even if this excuses the waste of the building it does not excuse the waste of the wood.

260. DANBY, C.J. By the sale of the trees there is at once waste even if he afterwards recovers the same trees by gift, exchange or sale or otherwise and repairs of the building are made with them yet this does not excuse the waste that was previously made by the sale because the cutting of the wood to make repairs is not justifiable nor will such cutting ever excuse the waste committed unless repairs were actually made with them, because even if he cut the trees intending to make repairs with them and then the lessee puts them to his own use or sell or give them or lets them rot or perish and does not put them into repairs that is waste and once it is accounted waste it cannot be purged by the subsequent repair. And this situation is not like to the situation alleged where a building is knocked down by the lessee and a new building erected before action commenced for there is no waste if this building is as good as the other. But that is not the case here because even if the waste of the house is excused by the repair made with the trees so that in respect of the building it is true that no waste has been committed yet where trees were growing and cut and sold that is waste even if the trees were used in the repair of the building, so that the waste of the building is excused by this but where the trees were growing is waste because no new trees are growing there and so this was initially waste through the sale and so at all times afterwards it will be regarded as waste for the repair of the building with them only excuses that waste but if there had been no sale then the cutting of the wood and the repair made with it of the building, then the waste of the house and the wood is excused by the repair made and so in the case before of a declaration of the cutting of the trees and the sale of this wood this is waste and cannot be excused afterwards and so the sale is material.

Catesby. If you bring an action against me for land such as an assize or the like and I plead in bar that the plaintiff enfeoffed such a one in fee simple without any condition whose estate I have it is a perfectly good title for the plaintiff to say that he enfeoffed him on such a condition etc. and because of the breach of conditions he entered and was seised until the defendant disseised him, that is sufficient without responding or saying also that I did not enfeoff him simply without any condition, for those words are merely surplus and nugatory and are not material. And thus it seems that in the case of waste the sale shown is not material etc.

NEEDHAM, J. That is not so but it is material in this action here as the action and declaration is made. And, sir, your plea is not incompatible with his declaration, namely that you cut the trees to make repairs and before doing so you sold them and then took them back or made repairs and this repair made after the wrong does not excuse the waste.

261. And then this matter was well argued in court: whether the count was good on this point and material. And it was held by the better opinion of the court that it is and it was good enough because the statute is that no-one is allowed to make waste, sale or destruction etc. And also the prothonotary Comberford said to the court that it is the common form of declaration on a writ of waste for sale of wood to enter 'by sale or by burning' and so in the declaration before-mentioned by the common form it is good to show the cutting of the wood and the sale. And yet it is not a traverse nor a plea that he did not sell the trees but it is necessary to answer on the waste as by saying 'no waste committed' or otherwise to justify the waste by reason of the repair made with the trees and that he did not sell them where he justifies by reason of repair as before. So the defendant must answer over for otherwise he does not respond to the action of the plaintiff as alleged in his declaration for the same is material etc.

262. NEEDHAM, J. In the writ of waste it is the plaintiff's choice in declaring the waste of the wood whether to allege just the waste committed as by cutting down a wood and showing how many trees without saying anything of sale or to declare the cutting of the wood and also the sale and where the sale is alleged by the declaration that must be answered for that is more specific waste than where no sale is mentioned for where there is no mention in the declaration of sale there is no need to answer to it but only to justify the cutting of the trees for repairs without saying any more provided repairs have been made.

Catesby. If the sale is material then it is necessary to say to whom he made the sale for a declaration ought to be specific.

263. DANBY, C.J. There is no need because it is sufficient to say as has been said without more and when you traverse him by saying that you cut the trees and made repairs with them and you did not sell them it is enough for his part to say by way of replication that you sold them to such a one or such a one. Just as is true of a release pleaded without showing where specifically it was made in bar and when the plaintiff traverse this it will be time enough for the defendant to say your deed was made at such a place and thus before.

Catesby. For a release pleaded by way of bar the norm has been as you say but for other matter in deed like an arbitration or accord it is necessary to show the place and the year and day specifically and so here it with specifying to whom the same was made.

264. CHOKE, J. The action and the declaration seem sufficient to show the waste by specifying the cutting of oak trees and their sale and this is a double cause of action and as pleading has been made this has to be coupled with a denial of the sale; but it is not a sufficient plea to deny the sale even though it would be a good plea to say no waste committed, just as in various other actions which have double matter though the action is a single one. As where you take my animals and then kill them I can have a general action if I wish alleging that you took my animals by force so as to recover my damages thereby. And so, if I wish, I can subsequently have a special action on my case because you took my animals with force and killed them and it is not enough for the defendant to say that he did not take them but he must respond to the killing though if he wishes to plead not guilty of the whole trespass this will answer the whole action. So too in various other cases it is at the plaintiff's election to have a general action or a special one and an answer has to be given in accordance with what the action alleges. So too can the plaintiff act in this case of waste as it seems. And as for the sale it does not seem necessary to show to whom it was made for in some cases the certainty may be shown after the tender of issue as in formedon where the tenant pleads the warranty of the ancestor of the demandant with assets against which the plaintiff will say that nothing has descended to him. It will be enough now for the tenant to say assets at such a place. And in some cases the issue or the plea will be put without certainty for if I plead joint-tenancy on the part of the plaintiff or demandant I will not be driven to show by whose gift or feoffment because I am a stranger to that, though on my own part it would be different. So in this case the plaintiff alleges waste committed by the defendant through the cutting of the trees and their sale and this is enough for the plaintiff as he is a stranger to this act of the defendant and so there is no need on his part to show to whom and so the count seems good enough etc.

265. And MOYLE, J. being in court it seemed to him that it was necessary to show to whom the sale was made as in an action of account for receipt by the defendant at the hands of others the plaintiff has to show by whose hands at his own peril and otherwise the continuance was good even though he is a stranger to the defendant's actions

266. DANBY, C.J. As to your case, Catesby, of a feoffment pleaded simply without any condition these words 'simply without condition' are not material but void because by common understanding a feoffment is prima facie simple, so the plaintiff has no need to answer these words. But in this case the sale is material for even if cutting to make repairs is justifiable prima facie yet if he then sell them after having had this intention the cutting is not now lawful. And if the count had only been in general form of waste committed by cutting down wood and had shown which trees and the defendant had justified the cutting down for repairs it would have been a good replication for the plaintiff to say that he made no repairs, if he wished, or otherwise to say that he sold them, for if he did not make repairs or sold them he is chargeable with waste. And even though the plaintiff has all his matter in his declaration the count is none the worse for this nor bad but good. And the common form is thus as the prothonotary has told us.

267. MOYLE, J.. This is a surprising case where someone in his declaration includes all his matter and it is not laudable to include in his action the substance of the bar and of the possible replication to it nor is a writ having such content good as it seems.

268. DANBY, C.J. Truly they will not here change the form nor their form either for you or for me because it may happen that something inappropriate will ensue from the change, particularly where the form is in accordance with reason as this action is just as several actions are double in themselves etc.

Littleton. If they will not help us we see in respect of the plea pleaded in the manner it is that we are not bound in law to respond.

DANBY, C.J. (to Catesby). Despatch the matter one way or another.

And then Catesby said I will gladly despatch the matter: either the declaration is good or I will make a 'jeofaile' if it is not.

269. DANBY, C.J. If it is thus it is to your advantage and you will not be prejudiced however it comes out, for this matter appears etc.

Catesby. We cut the trees and made repairs to the building with them (and showed how) and we did not sell them etc.

Littleton. With your permission we wish to imparl on this.

270. And in this same plea it was shown by NEEDHAM, J. that uprooting of underwood or thorns is waste and ought to be specially declared. And also of the roots of trees so that the shoots cannot grow or leaving the close open so that animals enter and destroy the shoots and that is also special waste etc.

271. MOYLE, J. For shoots wasted in this way one will have a special writ of waste etc.

272. DANBY, C.J. That is not the case but the declaration needs to specify this and not otherwise etc.

Catesby. If the declaration in a writ of waste for wood is as is said by 'selling or burning' then if the case is such that the lessee cut these trees and did not sell them or burn them in his house but allowed them to lie in his house or on the ground and did not make repairs with them or if he gave them away if this matter of the sale or burning is material then the tenant (the lessee) must answer it as by pleading that he cut the trees for repairs and made repairs and that he did not sell or burn them, it will be found against the plaintiff if he traverse the sale or burning because in truth they are and were cut for repairs and no repair was made or sale or burning but the defendant gave them freely to another or allowed them to lie on the ground etc.

DANBY, C.J. The plaintiff will assist himself perfectly well in your case by saying that he made no repairs and so his action will be maintainable without having to respond or maintain the sale or burning, because both causes are waste. Also where the lessee cuts trees to make repairs and does so with them he can justify this cutting if repairs were made and otherwise not but the lessee will pay the wages and the salaries of the workmen at his own cost and is not to cut wood or take other such profits and sell them and with the money from the sale pay the costs of his repairs (and this was granted by two or three in the court of the Justices and the serjeants).

Jenney. In an assize for rent if the plaintiff wishes to make a title in his plaint as by showing that he has the rent by a grant or otherwise as he can if he wishes it is no plea against this to say 'outside his fee, judgment whether without showing other title' because the plaint contained in itself a title. But where the plaint is general and says nothing of a grant of the rent nor how the rent came to him there it is a good plea to say 'outside his fee, judgment if the action lies without showing title'; there it is a good plea because no title was contained in it before. So in a writ of waste if the plaintiff wishes he can his declaration of wood cut 'and by sale or burning etc.' and then it is necessary to speak and answer to this for even though he says that he cut the trees to make repairs and made repairs it is not enough without answering on the same. But if the writ of waste be general as it can be as it seems of waste in a wood and cutting down trees without talking of any sale, then it is enough to justify the cutting down for repairs and that he did do so etc.

[PAB notes: (i) tenant for term of years; (ii) voluntary waste

9 E.4. 35 [1469] [Co. Litt. 53b: (p)]

report of an action of right for land which then half way through seems to become a report of a quite different action of trespass or of nuisance in which there is one relevant speech by NEEDHAM, J. If a man erect a building to the nuisance of my house I can remain on my land or in my house and demolish his building and I will without doubt be able to justify this; so in this case the defendant will not be punished for the demolition of the building or uprooting of the stakes, but as to the entry into his land the action is not brought for the entry etc. and so etc. But it seems to me that the entry is not allowable for if I lease land to someone for a term of years in which there is a mine of tin, iron or lead or coal and I enter and take the tin, iron etc, the termor ought not to punish me for this taking for he is not entitled to this tin etc. It is likewise for great trees. But for entry onto the land and trampling down of the earth he may punish me.

273. DANBY, C.J. It is doubtful whether if the law gives you the trees or the tin and you cannot take them without entering your entry is not lawful.

NEEDHAM, J. It is folly on the part of the lessor to make such a lease....

12 E.4. 1 [1472] [Co. Litt. 53a (k)]

274. In waste brought by two on a lease for life. One of the plaintiffs was summoned and severed and the other sued on and alleged waste in respect of various matters etc. and also in cutting down willow trees. The waste was found and the damages assessed and he had judgment to recover a moiety of the damages and a moiety of the place wasted and as to the willows the court wished to consider further whether or not it was waste etc. (40 E.3.15; 12 H.8.l where willows were considered waste)

[PAB notes (i) tenant for life; (ii) voluntary waste]

21 E.4.39 [1481]

275. Only a passing passage in a writ of error: where Pigot says in passing 'As where a tenant for life commits waste and before the writ is brought he repairs it here the action is gone and the land saved, but here the obligation was forfeit because the party failed to perform the condition..

22 E.4.18 [1482]

276. Again only a passing passage in a non-waste report (of an action of error) and of no relevance in the present context.

277. 2 H.7. 24 [recte 2 H.7. 14] [1487] [Co. Litt. 53b (p)]

278. In a writ of waste brought against a tenant for a life term who pleaded an order of the plaintiff and that he ordered him to dig for gravel. On which there was a demurrer for judgment as to whether or not the order was good.

Keble. It seems that it is not good and this order was void in law for there is no good order except that he who gave it had power over the thing and here the lessor had no power over the land during the life of the tenant for life. For the tenant for the term of his life can have an action of trespass against the lessor for digging his land and that proves that he has no power to order something in relation to something in which he has no interest and thus the order is void. For if I order a man to take the goods of J.A. and afterwards J.A. makes me his executor I will have an action against him as executor and this order will not help him because I had no power to give the order. And so if I order a man to kill my father I will have an appeal against him. And if I bring a formedon against a man and deliver to him a writ of estrepment and I order him to cut trees I say that this order will be of no avail to him afterwards.

279. And BRYAN, C.J. said that it was equally dubious.

Wood (to the same effect). And said that this action is given by the statute of Westminster II and this order by words alone could not bar the statute and said that if a man has an apprentice a discharge or licence in words alone is not valid.

Jay and Rede argued to the contrary.

Haugh of the same opinion.

280. TOWNSHEND, J. to the contrary: for it is gravel and land is part of the inheritance of the lessor as much as the reversion, for digging the land is disinheritance of him and it is part of his inheritance; so he cannot grant this by bare words for inheritance cannot pass by bare words and if he wishes to grant his reversion by words it will not pass; no more is his order good without a deed.

281. BRYAN, C.J. To the same effect and said that it is necessary to show a specialty to extinguish some thing when a man has confessed his duty on one occasion and afterwards wants to avoid it; otherwise not; for if the deed makes the duty conditional then there is no need of any writing as if I make an agreement to construct a building by indenture I will say that I have done that. And there is a difference between gravel and trees for the lessor cannot take land as it is not his but the trees are his and so he can order them to be cut; but not to dig any land whether in writing or without it.

[PAB notes: (i) tenant for life; (ii) voluntary waste]

10 H.7.2 [1494] [Co. Litt. 53a [b]]

282. Waste brought by an abbot; and he counted how the defendant had committed waste in various things in lands leased to him by his predecessor for a term of years; and assigned as waste the demolition de uno muro lapideo et in permittendo quandam domum cadere et succidendo tot pomera, tot prunos vocatos damisen trees. And as to the waste committed in respect of the wall the matter was well debated. First as to whether a wall within a house demolished by a termor was waste; and it seemed to all the Court that it was because this was part of the free tenement and if there is a division within the house between the chambers the termor is not allowed to destroy them and join together all the chambers. Also as to whether destruction of a wood of hazel and willow is waste as well as of an oak wood but cutting down hazels and willows growing in a wood of ashes among them is only underwood and so there is no waste there: so note the difference. Nor is it to cut such hazels growing in various places as where one of two are growing together in one place and the same number elsewhere that is no waste. The same rule applies to apple trees, but destruction of a garden of apple trees is waste and that by the express words of the statute, namely in boscis et gardinis. Also it seems that [destruction of a] mudwall is waste because it is something annexed to the free tenement which can to our understanding last for a man's lifetime and longer. Also the non-covering of a house is not waste except for the 'putrefaction' of bare timbers for lack of roofing of a house. Also the destruction of all the saffron heads of a saffron garden is not waste nor the ploughing of a meadow: all this is only bad husbandry because they are such things as can be made and destroyed by annual labour. And it was adjudged that one who holds for the same term is punishable for permissive waste, where he allows a ruinous house to fall down where the house was not ruinous at the time of the initial lease. But if the house was ruinous at the time of the initial lease and falls down during the time of one who holds for such a term there is no remedy for the initial lessor because he does not have nor could he have any cause of action against anyone in this case. But where the house was in good repair at the beginning and after becomes ruinous he in whose time it falls down will be punished during the lifetime of the lessor or his lessee.

283. As to the waste assigned in respect of the wall the defendant pleaded that his predecessor gave him licence to demolish the wall.

Keble. It seems that this is no plea for this licence is void for when a lease is made for a term of years the interest in the trees there lies in the lessee for a term of years during the term and by common law if a stranger cuts any tree there the termor will have an action of trespass for this and will recover damages. And at this time if a lease is made for a term of years the lessor cannot part with his interest without the assent of the termor. So this licence is void for the interest in the trees is in the lessee, for if trees are knocked down by the wind the termor will have them and not the lessor. So this licence is invalid and especially when he shows no deed of this. For if I lease lands for a term of years and then license the termor to cut down the trees this is not valid without a deed, for if the lease were made initially without impeachment of waste this would not be valid without a deed.

284. FYNEUX, J. To the contrary, for I think that if the lessor had demolished the wall the termor could show this by way of discharge. And in this respect there is no difference between a gift and a licence where the lessor gives me this. But in another respect there is a difference because where the lessor gives a tree he can take this but it is different with a licence for he can countermand this at any time. But when a licence has been exercised he to whom it was given can justify this as well as the lessor because it is all one, whether the lessor does this in person or does this through another. So when he licenses the termor to do this the lessor does this through him and during the term the lessee has no interest in the trees except through the lop or through the shadow for his animals; and thus etc.

Keble says that when the lessor enters and cuts the trees he will not himself have any action because he will have no action on his own deed for his own wrong; so that does not prove this case.

285. VAVASOUR, J. The plea seems good. For the interest in the wall or the trees that are growing is not solely in the lessee but in both one and the other; so when an action is done by their common assent it will be effectual. As in the case of a feoffment made by the tenant for life and the reversioner if this is done by deed it will be a good feoffment because the interest in the land is in both of them. So also in this case. The licence is good without a deed because the defendant is charged with a matter of fact; it is otherwise where he is charged with a matter of record. As where I have a man in execution and I command the jailor to let him free this order is invalid without a writing; but if I take him out of his possession he will be able to show this satisfactorily.

286. BRYAN, C.J. Whether the licence is in writing or not the plea is not good for this licence is much the same as if the plaintiff's predecessor had made his lease under seal without impeachment of waste: if the termor had made waste, notwithstanding this deed, and if the abbot die his successor will have a writ of waste because an abbot by his own deed can grant nothing to the disinheritance of his house.

287. As for the waste assigned in the house the defendant showed how the predecessor leased this to one J.S., who leased to him his estate, and he wished to prove that at the time of the said lease the house was ruinous.

Rede. It seems that this is a good plea because if the house was ruinous at the time of the lease he will be discharged.

Keble. It seems that this is no plea. Because even if the house was ruinous by default of the first lessee at the time of the making of the second lease and thus the beginning of the wrong in the first lessee this is not waste until the house fell down which was during the time of the second lessee. For if I lease land for a term of years and the termor sells an oak to another and leases his estate over and then the vendor cut the oak the second lessee will be charged; thus the ordering of this wrong begun by the sale but he will not be charged because it was not executed within his time.

288. And it was held by all the justices that if I lease a house for a life term or term of years if the house is not roofed at the time of the making of the lease the lessee is not obliged to roof it; and also if the house is ruinous at the time of the making of the lease this is good matter for the termor to show in a writ of waste.

289. And then issue was taken on the licence in London for the waste in respect of the wall and was found in favour of the abbot and an enquiry into possible collusion made.

290. And on the remainder he pleaded 'no waste committed' and this was found in Essex (where the writ was brought) for the plaintiff and no enquiry conducted on collusion.

Mordaunt. It seems that the plaintiff will not have his judgment for various causes. One, because there ought to have been an enquiry into collusion in the county of Essex where the land is and not in London for that ought to be tried on the land because they can have better knowledge of this because the collusion is in respect of the whole matter and they will enquire as to his right and also as to which of his predecessors were seised, which will be tried on the land. Nor is it like to trespass where a release in another county is pleaded because there they will enquire of damages because it is only an accessory matter (see on this 11 H.4). But this collusion is a principal matter which will be enquired into on the land.

Frowike. To the contrary and that the plaintiff will have judgment for if collusion is to be enquired into this will be by a jury or by other judgment for this enquiry is not a matter between the parties but for the court. In 34 H.6 an abbot brought a precipe quod reddat and issue was taken and found for the plaintiff and there was no enquiry as to collusion and the plaintiff got judgment and a special writ was adjudged to enquire into collusion and this enquiry was solely at the discretion of the court. But if an abbot recover by default quale jus will issue by statute Westminster II, c. 32 and by the equity of the same statute there will be an enquiry by the same jury where a verdict is found for the plaintiff and as to whether the plaintiff has cause to recover by default or by verdict he will have

judgment immediately. Again the words of the same statute are inquiratur per patriam utrum petens habeat jus in sua peticione an non; et si compertum fuerit quod petens jus habeat procedatur ad judicium. So the law is taken that he will have judgment immediately after the defeat of the tenant. And the statute says further remaneat terra postquam judicium fuerit datum in manu domini regis quousque tenementum per petentem vel per aliquem capitalem dorninum disracionetur. Again, it does not seem to me that in this case there should be an enquiry into collusion since this action at common law is purely personal and he is claiming no land by this writ and even if it be true that it bars the tenant from his right there will be no enquiry as to the collusion. No more than in trespass or other personal action where issue arises in the realty, in which case the tenant will be excluded: for there he claims no free tenement and also no judgment is given for him on land, and where an abbot avows for rent and issue is taken on the avowry and it finds for the abbot there will be no enquiry on collusion there and there he will keep the distress till he is paid; but the reason is as above. So in this case the fee simple is in the abbot by implication but he did not recover this by his writ. And in the writ of entry ad communem legem there will be no enquiry as to collusion for the same reason.

Kingsmill affirmed and said there will be an enquiry into collusion in a quare impedit brought by an abbot, and in an assize but not in an avowry as Frowike had said.

[PAB notes (i) tenant for term of years; (ii) permissive waste specifically discussed]

10 H.7. 5a [1494] [Co. Litt. 53b (s)]

291. In the Common Bench a writ of waste was brought and the plaintiff assigned as waste allowing an earthwall to stand uncovered so that it was destroyed by rain-storms; and he also assigned as waste allowing another wall made of wood to decay and also in cutting down 'silber' trees and apple trees in an orchard.

Rede and Wood. It seems that it cannot be adjudged waste in respect of the walls for waste cannot be adjudged in respect of any thing other than something which has permanent existence, but an earthwall cannot exist for more than ten or twelve years and if something that exists for so short a time is damaged that cannot be called waste. So also the cutting of the trees cannot be adjudged waste for those trees are underwood and one ought not to be impeached for cutting them down, for if such trees are cut down they will grow the better and one can plant new trees and have fruit within three or four years and if they are not cut when they come to the right age they rot and decay; and so etc.

Keble (to the contrary). As to the timber wall that is waste because it is part of the free tenement and the defendant may not transform the buildings leased to him but must keep them in as good a state as he received them. And if this wall had been within a building it would be waste without doubt. For if I lease a house to a man in which there are several chambers and the lessee knock down the walls which divide the chambers and turn this house into a single chamber it is waste. For the same reason that the knocking down of a wall within a house is waste the knocking down of a wall outside a house will be accounted waste. Also the waste in the cutting down of trees is well assigned for they can grow in a certain place and their cutting be accounted waste and in another place where it will not be. For if such trees are growing in a wood and are cut down that will not be called waste for there they are nothing but underwood but if this underwood be planted within the site of a manor or house to provide shelter from the wood it will be called waste if they are cut down. And if I have a wood of willows and hazels and there are no oaks there their cutting will be accounted waste. So in this case, in so far as etc.

Fineux. To my understanding (and he rehearsed the reasoning of Keble) and he also understood the waste assigned in the wall to be well assigned because by its destruction the inheritance is harmed and if the inheritance is harmed by the act or the negligence of the lessor it will be accounted waste. If the lessee remove an oven, bench, door or window that will be accounted waste.

VAVASOUR, J. to the same purpose with respect to the trees. But as to the waste assigned in the wall, none has been assigned because it appears that it was uncovered at the time of the lease

and so the lessee is not obliged to cover it. For if I lease a building that is unroofed to a man for term of years the lessee is not obliged to roof it. So the waste in the wall is not well assigned.

[PAB notes: (i) apparently tenant for term of years; (ii) discussed permissive as well as voluntary waste]

13 H.7. 21 [1498] (recte 13 H.7. 20) [Co. Litt. 53a (c)] 1/

292. In waste the plaintiff counted of the lease of a mill for term of years and assigned waste committed in the floodgates and other things belonging to the mill. And the defendant said that there had been an agreement out of court between the plaintiff and the defendant that he would repair the floodgates in recompense for the remainder of the waste that he had committed and asked for judgment if the action lay and pleaded all this in certain.

Keble. It appears that the plea is good for waste is something done only to a person for if waste was done in the father's time the son will not punish this waste after his death because it is a personal punishment and is not something which can descend. And in ravishment of ward an agreement out of court is a good plea and the same applies in ejectione firme even though the action is to recover the remainder of the term and it is still a good plea. So too in an assize of novel disseisin brought by tenant by statute merchant or elegit but brought by an ordinary tenant of the free tenement he doubted. So in waste on a lease for life he doubted if an out of court agreement was good. But here it seems a good plea for we have carried out the agreement which was of something that was burdensome to us, though perhaps a nude agreement without specialty would be ineffective. And it seemed to him clearly without doubt that if the writ was brought against a tenant for waste before the end of his term that such an agreement would be a bar.

WOOD, J. To the contrary for the wrong is committed against the inheritance as well as against the person and this sounds in realty and by this wrong the plaintiff is attempting to recover by this kind of action the place wasted and in such a case where one is attempting to recover the matter being claimed an out of court agreement cannot be pleaded because it is an action to recover the thing being claimed. But in such cases where the nature of the action is only to recover damages an out of court agreement will perhaps be good (as in ravishment of ward, entry on the statute of king Richard or 8 Henry and thus a difference; why?)

VAVASOUR, J. (to the contrary). In this case the plea seems good because the action is brought against a termor for a term of years but it is other against a tenant for life because the plaintiff is acting to recover the free tenement. But here the action is wholly in the personalty because he will only recover a chattel for although summons and severance lie that is no argument for the action being real for in ravishment of ward summons and severance lie but the action is still personal. At Common Law there was only a prohibition of waste and that against the guardian in chivalry and tenant in dower and then came Westminster II which said 'in future there will not be a writ of prohibition but only a summons' and the statute of Gloucester which gave recovery of the place wasted. Thus the penalty was enlarged by statute but the nature of the action was not changed, which at Common Law was only personal. And so if an abbot has released all personal actions that will be a bar to action to him and also to his successor for damages but in respect of the land no bar to his successor although a bar to him for both. And it has been adjudged that if an abbot avow for service and has judgment for a return there will be no enquiry as to collusion and the same law applies in an action of waste if he declares on a lease for term of years. And this matter was agreed on a declaration made against a termor in 3E.4when the serjeants were created and the writ of waste brought by the abbot was in the tenet and not in the tenuit for it seems that this would perhaps have altered the case. And the reason why there will be no enquiry into collusion in these cases is because the actions are purely personal and there is no decision relating to the free tenement. Sir, in an action relating to permissive waste it is a good bar for the defendant to plead that prior to the acquisition of the writ he has rebuilt the house; so in the same way that the defendant can by his own action do something after the waste that bars the plaintiff so (and a fortiori) it also seems that he can do something in bar after the waste with the agreement and consent of the lessor and so etc.

TOWNSHEND, J. To the contrary as the waste is supposed to be 'to the disinheritance' and thus the prohibition was at common law and sounds wholly in realty. And even if the right to secure punishment cannot descend it is still clear that the wrong was done 'to the disinheritance' and a nude out of court agreement cannot bar. Moreover, the performance of the agreement is alleged to be in a part of the things in which the waste was assigned and so the repair of this part cannot by any means be said to be a recompense for the remainder; but if it was elsewhere in something where no waste was assigned there would be at least a colourable argument; so it seems that the plea is bad.

293. BRYAN, C.J. was clearly of the same opinion but he did not argue because he got up and went off to Chancery.

294. Then on another day

295. BRYAN, C.J. In a writ of waste one cannot assign waste in young oak trees, namely those only seven or eight years old, and on that I have this day seen books (reports) and thus it seems to be the law. Because waste will only be said for matters prejudicial to the inheritance, as for example houses, great oaks and the like but not of little things like young oaks and the like. Moreover the writ of trespass does not lie as between lessor and lessee for things for which the action of waste lies. So how will you have an out of court agreement to lie in a case where a writ of trespass does not lie but a writ of a higher nature touching the free tenement? So it seems to me clear that the plea is not good.

Danvers. If the lessee commits waste in respect of a house and builds a new house before the writ is acquired the action will not lie because the lessor has sufficient recompense in the law's understanding. The like applies if the lessee builds a new house elsewhere than where the old house was, if this was by agreement with the lessor. Consequently also if the lessor reaches an agreement with him for some other recompense. So the plea seems to be a good one.

Keble (ad idem). Although the harm done was done to the inheritance, the recovery was wholly in damages at Common Law though now it has been enlarged by statute to recovery of the place wasted, and treble damages in lieu of the single damages at Common Law. But the nature of the action at Common Law remains the same even the penalty has been enlarged by the statute. And supposing that the harm or damage done to the inheritance was done by a stranger while the land was in the possession of the lessor without there being a lease, as for example by the cutting down of great oaks or demolition of a house, he would have no remedy other than an action of trespass, in which action you are all agreed that an agreement would be a good plea, but there as great a harm would be done to the inheritance or greater than here. He also said that the floodgates were not among the matters assigned as waste, as Townsend took the case to be.

Townsend. Then the case is the better for that but because the case is still one that greatly touches the inheritance the plea seems to be insufficient (and Brian conceded this).

So Keble because of the opinion of these two did not dare to demur but pleaded only in respect of a cartload of clay and said that he would plea to jeopardy on that to clarify the law; and pleaded over on the remainder.

296. See the beginning in 11 H.7 13

[PAB notes (i) tenant for term of years; (ii) discusses permissive waste in passing in general terms]

12 H.8. 1 [1520] [Co. Litt. 53a (c)]

297. One N. brought an action of waste against J., suggesting that he had cut down certain trees etc. And the defendant pleaded that he had committed no waste. Subsequently at nisi prius in the county he gave in evidence that the plaintiff had leased him a messuage with certain lands for a term of years by a deed and had granted to him that he might cut down trees to repair the house; and he also showed that the house was ruinous at the time of the lease and how he had cut down certain trees to repair it. And the plaintiff demurred on this evidence. And subsequently this was argued in the Common Bench. And

BROOKE, J. said that where one pleads the general issue in detinue or trespass or similar actions and then gives special matter in evidence which is in discharge of the action this evidence is not good nor will it support this issue and if the plaintiff demur on this evidence it is peremptory to the defendant. As for example if in debt he pleads that he owes him nothing and they join issue on this and the defendant gives in evidence a release made to him by the plaintiff he does not discharge his action in accordance with the evidence by this evidence. So too in trespass, if he pleads not guilty and gives in evidence a release; the same in battery if he pleads not guilty and gives in evidence that he acted in self-defence; the same in maintenance, if he pleads not guilty and gives in evidence a lawful maintenance; the same in an action for poaching, if he pleads not guilty and gives in evidence a licence; the same in an appeal, if he pleads not guilty and shows how he was sheriff and was carrying out his duties, or that he was a forester and killed him because he was fleeing and would not surrender. So also in waste if he pleads 'no waste committed' and shows that he cut down the trees to repair the house and so he has done here. But where a special evidence shows that he himself has title to the thing, that is a good evidence and will support the issue. As in the case of trespass for entering the land, if the defendant pleads not guilty and gives in evidence a lease of the same land; or in the case of trespass for carrying off goods the defendant pleads not guilty and gives in evidence a gift of them; so in waste to plead 'no waste committed' and to give in evidence things that show it was not waste, as where a house was burned by enemies or by lightning or that it was ruinous at the time the lease was made and fell down as a result or that a house or trees fell down as a result of wind or storm.

298. Then as to whether this is to be called waste and it seems not for he shows that the house was ruinous at the time the lease was made and thus he could well cut down trees to repair it. And this was not to the disinheritance of the lessor because it was to repair the house for otherwise it would decay. But if the house was rotten or ruinous at the time of the lease and the lessee agreed to repair all the houses on the land then by that deed he is bound to maintain and support them and otherwise an action of waste lies against him and he can take trees for this and it is certainly justifiable. For by the Common Law where the lessee is bound and charged with repairs and he may take trees or other necessary things such as stones that are on the land for repairs. And so at Common Law the lessee will have heybote, ploughbote, housebote and hedgebote on the land for necessary use even though that is not expressed in the lease. (This ALL THE JUSTICES agreed). But if he took more than is necessary then he will be punished in waste. And if the house is ruinous at the time of the lease or rotten or consumed and collapses within the term no action lies for this waste for the lessee is not bound to repair unless he agrees this, but he may cut trees and repair with them and justify this in an action of waste. But if the lessee of a park allows the park fence to decay to the point that the park is no longer enclosed an action of waste does lie in respect of a wall or a hedge that is 'quickset' and a fortiori if the lessee destroys it, as also if he allows the house to fall into decay or cuts great trees and sells them or converts them to his own use. So too if he himself burns down the house even if this is against his wishes as where others destroy or burn it an action lies. Again if the house is sufficiently repaired but burned by the king's enemies or by lightning that is no waste. So in this case it is not waste because he did this by virtue of his lease and it was also ruinous at the time of the making of the lease and he might cut down trees at Common Law and it is justifiable. But because he did not plead justification nor plead this is in bar he has lost the advantage of this and the plaintiff will recover.

POLLARD AND ELYOT, JJ. argued like Brooke in effect.

BRUDENEL, J. If one has special matter to plead in bar but takes the general issue he may not give special matter in evidence and will never have any advantage from this and that is if the evidence is contrary to the issue as here where he pleaded 'no waste committed' and showed in evidence that he had committed waste but for such a purpose; now he will have no advantage of this. As if someone gives me licence to commit waste and then makes a lease to me and brings a writ of waste against me I may plead this matter but if I take the general issue I will never have advantage of this matter. Then as the other point, it seems that it is waste but not punishable. As where the reversioner cuts down trees it is waste because it is prejudicial to the inheritance but it is not punishable. So if the lessor ought to repair the house and allows it to decay it is waste but not punishable; but if the lessee is obliged to repair it then it is waste. As cutting down willows is not waste if they are growing in one place but if they are within view of a manor to shield it from the wind or on a bank to support the bank then it is waste. But in this case it was waste but justifiable. For if the lessor agrees to repair a house and refuses to do so the lessee can do so and keep back as much money as is needed and if there are trees growing there he can cut them down and use them in repair (which was agreed). But here because he has not shown this he has lost the advantage of it.

299. And the plaintiff had judgment to recover.

[PAB notes (i) tenant for term of years; (ii) discussion of permissive waste (but in passing)]

F.N.B. 59b [Co. Litt. 53a (o)]

300. If the King commit the wardship of an heir in his keeping to another and the grantee commits waste then on an allegation of this in chancery the king will send a writ to the escheator to go to the land and see if waste has been committed and to certify the king on this in Chancery

301. If escheators commit waste in lands which they have in their hands the heir, whether under age or above age, will have a writ of waste and will recover triple damages against them and they will be sentenced to imprisonment for two years and will pay a fine at the king's will.

302. And so if escheators commit waste in other lands seized into the king's hands by ex officio inquisition by statute 36 E.3, c. 13

303. And neither escheators nor other keepers of lands in vacancies are to commit waste in vacancies of the temporalities of bishoprics and abbeys by the statute pro Clero of 14 E.3, cc. 4 and 5.

F.N.B 59 m [Co. Litt. 53a (i)]

304. Cutting of dead wood is not waste; but if one cuts wood for burning where there is sufficient dead wood that is waste.

305. Also it is not waste to leave land lying uncultivated and not worked and to let elms or thorns grow there. Also it is not waste to cut mature wood that is customarily cut every twenty years or within that period of time.

306. If one cuts down trees that is waste and if one allows the shoots from the stumps of the trees to be destroyed afresh that is also a new waste.

F.N.B 59 n [Co. Litt. 53b (p)]

307. If one does not repair banks, and so the land is flooded, that is waste.

308. And if one ploughs a meadow etc. that is waste. A wall or fence that is covered with thatch or timber can be waste if the tenant allows it to be left uncovered. And to dig out clay or stone or coal will be accounted waste.

309. Housebote, heybote and firebote belong to the termor of common right and he can take timber for this: Hil. 21 H.6

310. F.N.B 149c [admeasurement of dower] [Co. Litt. 53b (p)]

311. But if the widow after assignment improve the land and make it better than it was at the time of the assignment admeasurement does not lie in respect of that improvement. But if this improvement be from the royalties of a mine for coal or lead which are in the ground which was occupied in the husband's lifetime then it is more doubtful; but she cannot make new mines for that will be accounted waste if she does that.

312. Britton f. 34 [Co. Litt. 53a (h)]

� Nichols edition, i. 85

articles of enquiry [at Eyre]: on conduct of escheators and sub-escheators: includes enquiry into waste committed by them in parks and 'vivaries' [ponds] of venison, fish and rabbits and other destruction done by them in warrens and woods and other things and of value thereof�

313. Britton, f. 168b [Co. Litt. 53b (q)]

= Nichols edition, ii, 22

314. And if the lords make waste, sale, destruction or exile in such inheritances before the heirs have proved their age then the heirs may be aided either by our writs of trespass or of waste or by assize of novel disseisin, to be brought by themselves or their friends according as is contained in our statutes in which the penalties are ordained. All guardians shall however be excused from liability in respect of accident by fire or water or other like waste, where they shall not be found guilty of any malice.

315. Reg. Judic. 26 [Co. Litt. 53a (c)]

for enquiring in a writ of waste on the default of the defendant

316. The king to the sheriff greeting. Whereas we recently ordered you to distrain Henry de F. by all his lands etc. and that you were to answer for the issues etc. and that you were to produce his body etc. on such a day immediately past to answer Henry de C. on a plea that whereas by the common council of our kingdom of England it has been provided that no-one is allowed to commit waste, sale or destruction of the lands, buildings, woods or gardens leased to them for a life term or a term of years the same Henry de F. had committed waste etc. in respect of the buildings and gardens in C. which the said Henry de C. had leased to him for his life etc. to his disinheritance etc. contrary to the terms of the said provision as it is said, on which day the said Henry of F. made default and so it was adjudged in our same court that you should go in your own person to the said tenements which have been wasted and to enquire there concerning the waste committed there. We therefore order you to go in person to the said tenements which have been wasted and produce before you twelve free and lawworthy men of that neighbourhood through whom etc. and who have no connexion with the said Henry de C., and diligently enquire by their oaths what waste, sale and destruction the said Henry de C. has committed in the said tenements, namely by demolishing a hall and taking and selling the timber to the value of one hundred shillings, one bakery to the value of one hundred shillings, one stable to the value of forty shillings, and in the gardens, namely by cutting down and selling twelve ash-trees each worth twelve pence, twelve apple-trees each worth etc. to his disinheritance and against the terms of the said statute. And you are to transmit the inquest verdict which you have taken to us on the morrow of All Souls under your seal and the seals of those by whose oaths you took that inquest verdict and this writ. Witness etc.'