the assignees, who, in matters of this description, stand in exactly the same position as the tenants for life, to prevent their being held liable precisely in the same manner as the tenants for life themselves. They have themselves done this wrongful act; and neither they nor the persons for whom they are trustees can gain any advantage by reason of it. I am of opinion, therefore, that, upon the petition, I must make an order according to the prayer. NOTE. In the argument of this case, both before Lord Langdale and Sir John Romilly, two authorities which are in point were overlooked. In Rolt v. Lord Somerville, 2 Eq. Ca. Ab. 759, Lady Somerville was tenant for life, without impeachment of waste, with remainder to the plaintiff Rolt for life, without impeachment of waste, with several remainders over. Lord Somerville cut down several groves of trees planted for the shelter and ornament of the mansion, and did other waste. Rolt, the tenant for life, filed a bill to compel the defendant to account for the moneys thus raised. To this the defendant demurred, and insisted that "the plaintiff could not call him to an account because he was not a remainderman of the inheritance." Lord Hardwicke observed, "I cannot say the plaintiff is entitled to a satisfaction for the timber, which is a damage to the inheritance;" and the demurrer was allowed as to satisfaction on account of the timber. The second case is that of the Marquis of Ormonde v. Kynnersley, or Butler v. Kynnersley, 7 Law J. (O. S.) Ch. 150; and 8 Law. J. (O. S.) Ch. 67; and reported on other points in 5 Mad. 369, 2 Sim. & St. 15, and 2 Bli. (N. S.) 374, decided by Sir John Leach, and afterwards by Lord Lyndhurst. In that case, equitable waste was, in 1805, committed by Clement Kynnersley, who was then in possession as the tenant for life, without impeachment of waste. The estate was limited in remainder to his first and other sons in tail, with remainder to the Marchioness of Ormonde and Job H. P. Clarke for life, in a moiety, with remainder, as to the whole, to her first and other sons in tail, with an ultimate remainder to Job H. P. Clarke in fee. Neither Clement Kynnersley nor the Marchioness of Ormonde had any issue, and Job H. P. Clarke had therefore the first vested estate of inheritance. Upon a bill by the Marchioness of Ormonde for an account of the timber, a decree was, in the first instance, made by Sir John Leach, 5 Mad. 369, for an account of the timber (6th May, 1820). There was a reference to arbitration; and on a motion to enforce the award (reported 2 Sim. & St. 15), (1824), it was suggested, that "the representative of Job H. P. Clarke (if any one) was entitled to the proceeds of the timber cut down." (See 2 Bli. (N. S.) 385. The cause was reheard by Sir John Leach (23d April, 1825), who dismissed the bill, on the ground that the right to the money vested in Job H. P. Clarke (see 2 Bli. (N. S.) 386). The cause then went by appeal to the House of Lords (1828). and was remitted to Chancery, 2 Bli. (N. S.) 392, with liberty to appeal ; and ultimately (20th April, 1830), Lord Lyndhurst dismissed the appeal with costs (7 Law J. (O. S.) Ch. 150, and 8 L. J. (O. S.) Ch. 67, and Reg. Lib. 1829, A, folio 2190), on the ground that the trees belonged to Job H. P. Clarke, as the person entitled to the first vested estate of inheritance, and that the plaintiff had no interest. It is to be observed, that the decision of the Marquis of Ormonde v. Kynnersley is scarcely reconcileable: first, with the order for the investment and accumulation in Lushington v. Boldero, instead of for immediate payment to the plaintiff, the owner of the first estate of inheritance; nor, secondly, with Wellesley v. Wellesley, 6 Simons, 503, where, instead of directing payment to the plaintiff, the fund was paid into court, and formed part of the settlement fund; nor, thirdly, with the grounds on which the defence to the Statute of Limitations was overruled by Sir L. Shadwell and Lord Cottenham, in The Duke of Leeds v. Lord Amherst, 2 Phillips, pp. 120 and 125.-REP. Wien. is not allowed IN SMYTH v. CARTER. I told that in for y is liable for both ✓ kinds Text books gen. say BEFORE SIR JOHN ROMILLY, M. R. 1853. that only [Reported 18 Beav. 78.] only for, hidd a house, even if no Mr. Roupell and Mr. C. M. Roupell, in support of the motion. THE MASTER OF THE ROLLS. Assuming the plaintiffs to be landlords, In this case, the defendant alleges he is owner in fee, subject to a quit rent. I shall not now determine or express any opinion on that subject, but I shall preserve the rights of the parties until the question has been determined at law.1 1 "A doubt has been stated, indeed, in a note to 2 Saund. 252 b, whether a tenant for years is liable for permissive waste, and if he were not, then a covenant by the landlord to repair would not amount to an implied permission to the tenant to omit to repair. 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, 16 M. & W. 257; though the degree of repairs required for a tenant from year to year, by modern decisions, is much limited." Per PARKE, B., in Yellowly v. Gower, 11 Exch. 274, 293, 294. In Doherty v. Allman, 3 Ap. Cas. 709, fields, on which were buildings that had been used as store warehouses, and afterwards as artillery barracks and dwellings for GENT v. HARRISON. Geals with CHANCERY. 1859. [Reported H. R. V. Johns. 517.] ques. f what becondes qweasle GEORGE GENT, by his will dated the 8th of July, 1808, devised certain real estate to the use of George William Gent for life, with remainder to trustees to preserve, with remainder to his first and other sons in tail male, with remainder to John Gould Gent for life, with remainder to the said trustees to preserve, with remainder to his first and other sons in tail male, with remainder to John Gent for life, with remainder to the said trustees to preserve, with remainder to his first and other sons in tail male, with remainder to the plaintiff George Gent for his life without impeachment of waste, with remainder to the said trustees to preserve, with remainder to his first and other sons in tail male, with remainder to William Gent in fee. By certain codicils the testator revoked the ultimate devise in fee, and declared that the remainder of his real estates should go as the law might direct. The testator died in 1838, and George William Gent entered and continued in possession of the devised estate until the 17th of March, 1855, when he died, without having had any issue male. John Gould Gent then entered, and continued in possession until the 26th of May, 1856, when he died, without having had any issue male. John Gent had previously died without having had any issue male. The plaintiff then entered, and had since continued in possession, and had never had any issue male. The bill alleged that the plaintiff had been unable to discover the testator's heir. In the year 1820 George William Gent cut a quantity of timber, and invested the greater part of the proceeds of the sale of it in the names of the trustees to preserve; and this fund consisted, at the date of the bill, of a debenture for £5,000 of the North Western Railway Company. The rest of the proceeds, amounting to £739 14s. 6d., were retained by the said George William Gent. The trustees paid the income of the fund so invested to George William Gent, John Gould Gent, and the plaintiff, during their successive occupations. In 1848 George William Gent cut other timber, which he sold; and married soldiers, were demised, part in 1798, for a term of 999 years, and part in 1824, for a term of 988 years. The buildings having been for some time unoccupied, and, as was said, falling into decay, the assignees of the leases proposed to change the buildings into dwelling-houses. The reversioner brought a bill for an injunction to restrain the making of these changes, on account of the proximity to his private residence of the buildings proposed to be altered. The Vice-Chancellor of Ireland granted a perpetual injunction; but the Court of Appeal ordered the injunction to be dissolved, without prejudice to the plaintiff's right to proceed at law, and the House of Lords affirmed the order. it was agreed that the amount so received and appropriated should be taken to be £1,000, and the date of receipt Midsummer, 1854. In 1856, John Gould Gent cut and sold other timber, and received the proceeds; and it was agreed that the amount should be taken to be £900, received on the 2d of January, 1856. The said sums of £1,000 and £900 were paid by the executors of George William Gent and John Gould Gent respectively to the trustee who held the other fund. The plaintiff, by his bill, claimed to have all the capital which had arisen from the sales of timber, and to be paid by the executors of George William Gent and John Gould Gent the amounts received by their respective testators as income of the fund in which the proceeds of the timber were invested. There was some conflict of evidence as to whether the timber was properly or improperly cut. Mr. Rolt, Q. C., Mr. Shapter, Q. C., and Mr. Busk, for the plaintiff. Mr. Willcock, Q. C., for the representatives of George William Gent. Mr. Speed, for the representative of John Gould Gent. Mr. Chapman, for the trustee. VICE-CHANCELLOR SIR W. PAGE WOOD. The plaintiff would be put in very considerable difficulty if this were treated otherwise than as a proper cutting, followed by the investment of the proceeds for the purposes of the trust. The authorities seem to go to the full extent, that, where timber is properly cut for the benefit of the estate (as the ViceChancellor of England says in the case of Waldo v. Waldo [12 Sim. 107]), either by the act of the court, or out of court by the act of trustees, which the court has adopted, there it is treated as so much of the estate. Thus, in a much earlier case, Mildmay v. Mildmay [4 B. C. C. 76], before Lord Thurlow, the court preferred not treating the proceeds as money, because that would change the character of the fund, but directed them to be invested in land, the effect being, that the tenant for life, although impeachable for waste, would obtain the benefit of the money when so invested. Therefore, where the timber is properly cut, the purchase-money of the timber follows the land, and the tenant for life, although impeachable for waste, receives the income during his life; and when you reach the first tenant for life unimpeachable for waste, as in the case of Phillips v. Barlow [14 Sim. 263], he takes the capital. There would therefore be no difficulty if the plaintiff in this case had treated the timber as having been properly cut, and the fund as being his from the date of his coming into possession of the estate; but he seeks the past interest on this ground (and it is only on this ground that he can seek it), that when the tenant for life, by his own wrong, creates the fund, as in The Duke of Leeds v. Lord Amherst [2 Ph. 117], and some other cases, the tenant for life shall not be allowed to avail himself of his own wrong, and to receive the interest from a fund which would never have existed but for his own wrongful act. But the cases which were cited have been cases of equitable waste, where, the whole matter having to be administered in equity, the legal right which might spring from such a wrongful act could never have arisen. In the case of legal waste, you have only to consider the legal consequences of the wrongful act as to which trover may be brought. There is no account asked for in this bill, for the whole amount is ascertained and settled, which was one of the points that arose in the last cited case of Hony v. Hony [1 S. & S. 568]. No account is asked of what timber has been cut, what it has been sold for, and the like. No account has been rendered, but the tenant for life, who has now come into possession unimpeachable for waste, comes into court with this simple case. He says: "I find the exact value of the timber cut; I ask for that value; I ask to have it paid to me; I ask to have the back interest paid on that; I do not ask for anything else: and I, being legal tenant for life unimpeachable for waste, say, this is my money." In that state of things, if he has any right at all, it is plainly a legal right, treating the original act as a wrong. There is nothing which the Court of Chancery is called upon to do; and, therefore, he should be left to his remedy at law. But who may have the legal right, is, I think, a matter of great doubt. I am by no means satisfied at present, that, when the timber was cut, assuming the cutting to have been a wrongful act from the first moment, it did not belong to the first person having an estate of inheritance. The limitations are to the tenants for life, with contingent remainders to their issue, and then a remainder to the tenant for life unimpeachable for waste, and remainders in tail to his issue. All the authorities are uniform in this respect, that, where there has been an improper fall of timber on the estate by a person having a limited interest, the first owner of the inheritance is the person who has a right to bring trover, passing over all the intermediate estates. It certainly does not appear that there was, in any of these cases, an intervening tenant for life unimpeachable; but there were contingent remainders, that might come into esse and defeat the estate of inheritance vested in the heir or the person taking in remainder, as the case might be. The reason of the thing was this: that there must be the property in somebody when the wrongful act is done. The court will not allow the tenant impeachable for waste to avail himself of his own wrong; and the law therefore vests the timber wrongfully cut in the person having the first legal estate of inheritance. The answer made by Mr. Rolt is, "that the tenant for life, although in remainder, if he is unimpeachable for waste, as in Lewis Bowles' Case, has not merely an immunity from liability for waste, but the actual property in the timber. But how has he the property? The doctrine laid down in the 7th resolution in Lewis Bowles' Case is this: The clause without impeachment of waste gives a power to the lessee which will produce an interest in him, if he executes his power during the pendency of his estate. That is to say, if he ever comes into possession of the estate, and ever exercises his power of cutting the timber thereupon, the timber belongs to him; and the reason of its belonging to |