or rafters, planchers, or other timber of the house are rotten.

But if

the house be uncovered when the tenant cometh in, it is no waste in the tenant to suffer the same to fall down. But though the house be ruinous at the tenant's coming in, yet if he pull it down, it is waste unless he re-edify it again. Also, if glass windows (though glazed by the tenant himself) be broken down, or carried away, it is waste, for the glass is part of his house. And so it is of wainscot, benches, doors, windows, furnaces, and the like, annexed or fixed to the house, either by him in the reversion, or the tenant.

Though there be no timber growing upon the ground, yet the tenant, at his peril, must keep the houses from wasting. If the tenant do or suffer waste to be done in houses, yet if he repair them before any action brought, there lieth no action of waste against him, but he cannot plead quod non fecit vastum, but the special matter.

A wall, uncovered when the tenant cometh in, is no waste if it be suffered to decay. If the tenant cut down or destroy any fruit trees growing in the garden or orchard, it is waste; but if such trees grow upon any of the ground which the tenant holdeth out of the garden or orchard, it is no waste.

If the tenant build a new house it is waste, and if he suffer it to be wasted, it is a new waste. If the house fall down by tempest, or be burnt by lightning, or prostrated by enemies, or the like, without a default of the tenant, or was ruinous at his coming in, and fall down, the tenant may build the same again with such materials as remain, and with other timber which he may take growing on the ground for his habitation; but he must not make the house larger than it was. If the house be discovered by tempest, the tenant must, in convenient time, repair it.

If the tenant of a dove-house, warren, park, vivary, estangues, or the like, do take so many, as such sufficient store be not left as he found when he came in, this is waste; and to suffer the pale to decay, whereby the deer are dispersed, is waste.

And it is to be observed that there is waste, destruction, and exile. Waste properly is in houses, gardens (as is aforesaid), in timber trees (viz., oak, ash, and elm, and these be timber trees in all places), either by cutting of them down, or topping of them, or doing any act whereby the timber may decay. Also, in countries where timber is scant, and beeches or the like are converted to building for the habitation of man, or the like, they are all accounted timber. If the tenant cut down timber trees, or such as are accounted timber, as is aforesaid, this is waste; and if he suffer the young germins to be destroyed, this is destruction. So it is, if the tenant cut down underwood (as he may by law), yet if he suffer the young germins to be destroyed, or if he stub up the same, this is destruction.1

Cutting down of willows, beech, birch, aspe, maple, or the like, stand

1 See Phillipps v. Smith, 14 M. & W. 589.

ing in the defence and safeguard of the house, is destruction. If there be a quickset fence of white thorn, if the tenant stub it up, or suffer it to be destroyed, this is destruction; and for all these, and the like destructions, an action of waste lieth. The cutting of dead wood, that is, ubi arbores sunt arida, mortuæ, cavæ, non existentes maremium, nec portantes fructus, nec folia in æstate, is no waste; but turning of trees to coals for fuel, when there is sufficient dead wood, is waste.

If the tenant suffer the houses to be wasted, and then fell down timber to repair the same, this is a double waste. Digging for gravel, lime, clay, brick, earth, stone, or the like, or for mines of metal, coal, or the like, hidden in the earth, and were not open when the tenant came in, is waste; but the tenant may dig for gravel or clay for the reparation of the house, as well as he may take convenient timber trees.

It is waste to suffer a wall of the sea to be in decay, so as by the flowing and reflowing 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 repair not the banks or walls against rivers, or other waters, whereby the meadows or marshes be surrounded, and become rushy and unprofitable.

If the tenant convert arable land into wood, or e converso, or meadow into arable, it is waste, for it changeth not only the course of his husbandry, but the proof of his evidence.1

The tenant may take sufficient wood to repair the walls, pales, fences, hedges, and ditches, as he found them; but he can make no new and he may take also sufficient ploughbote, firebote, and other housebote.

The tenant cutteth down trees for reparations, and selleth them, and after buyeth them again, and employs them about necessary reparations, yet it is waste by the vendition; he cannot sell trees, and with the money cover the house. Burning of the house by negligence or

mischance is waste.

Co. LIT. 53 b. No person shall have an action of waste, unless he hath the immediate state of inheritance.

Co. LIT. 54 a. If a lease be made to A. for life, the remainder to B. for life, the remainder to C. in fee, in this case, where it is said in the Register, and in F. N. B., that an action of waste doth lie, it is to be understood after the death or surrender of B. in the mean remainder, for during his life no action of waste doth lie.

But if a lease for life be made, the remainder for years, the remainder in fee, an action doth lie presently during the term in remainder, for the mean term for years is no impediment.

There is waste of a small value, as Bracton saith, Nisi vastum ita

1 See Atkins v. Temple, 1 Ch. Rep. 13; Fermier v. Maund, Ib. 116; Cole v. Greene, 1 Lev. 309.

2 See Gower v. Eyre, G. Coop. 156.

modicum sit propter quod non sit inquisitio facienda. Yet trees to the value of three shillings and four pence hath been adjudged waste, and many things together may make waste to a value.

Co. LIT. 54 b. A man hath land in which there is a mine of coals, or of the like, and maketh a lease of the land (without mentioning any mines) for life or for years, the lessee for such mines as were open at the time of the lease made, may dig and take the profits thereof. But he cannot dig for any new mine, that was not open at the time of the lease made, for that should be adjudged waste. And if there be open mines, and the owner make a lease of the land, with the mines therein, this shall extend to the open mines only, and not to any hidden mine; but if there be no open mine, and the lease is made of the land together with all mines therein, there the lessee may dig for mines, and enjoy the benefit thereof, otherwise those words should be void. I have been the more spacious concerning this learning of waste, for that it is most necessary to be known of all men.1

COUNTESS OF SHREWSBURY'S CASE.
KING'S BENCH. 1600.

[Reported 5 Co. 13.]

THE Countess of Shrewsbury brought an action on the case against Richard Crompton, a lawyer of the Temple, and declared, that she leased to him a house at will, & quod ille tam negligenter & improvide custodivit ignem suum, quod domus illa combusta fuit: to which the defendant pleaded not guilty, and was found guilty, &c. And it was adjudged that for this permissive waste no action lay, against the opinion of Brook in the abridgment of the case of 48 E. 3, 25; Wast. 52. And the reason of the judgment was, because at the common law no remedy lay for waste, either voluntary or permissive against lessee for life or years, because the lessee had interest in the land by the act of the lessor, and it was his folly to make such lease, and not restrain him by covenant, condition, or otherwise, that he should not do waste. So and for the same reason, a tenant at will shall not be punished for permissive waste. But the opinion of Littleton is good law, fol. (15) 152. If lessee at will commits voluntary waste, scil. in abatement of the houses, or in cutting of the woods, there a general action of trespass lies against him. For as it is said in 2 and 3 Phil. & Mar. Dyer 122 b, when tenant at will takes upon him to do such things which none can do but the owner of the land, these amount to the determination of the will, and of his possession, and the lessor shall have a general action of trespass without any entry: and there 15 E. 4, 20 b, is cited, that if a bailee of goods as of a horse, &c. kill them, the bailor shall have a general action

1 See Co. Lit. 316 a.

of trespass, for by the killing the privity was determined. But it was agreed that in some cases, when there is a confidence reposed in the party, the action upon the case will lie for negligence, although the defendant comes to the possession by the act of the plaintiff. As 12 E. 4, 13 a, b, where a man delivers a horse to another to keep safe, the defendant equum illum tam negligenter custodivit, quod ob defectum bonæ custodia interiit; the action on the case lies for this breach of the trust. So 2 H. 7, 11, if my shepherd, whom I trust with my sheep, and by his negligence they be drowned, or otherwise perish, an action upon the case lies: but in the case at bar it was a lease at will made to the defendant, and no confidence reposed in him; wherefore it was awarded, that the plaintiff take nothing by her bill.

BOWLES'S CASE.

KING'S BENCH. 1615.

[Reported 11 Co. 79.]

LEWIS BOWLES, Esq., brought an action upon the case upon trover against Haseldine Bury the younger (which began in the King's Bench, Hil. 10 Jacobi Regis, Rot. 1319), and declared that he was possessed of thirty cart loads of timber, and lost them, and that they came into the hands of the defendant, and that he 20 Feb. anno 9 Jac. Regis, at Norton, in the county of Hertford, converted them to his own use; and upon not guilty pleaded, the jury gave a special verdict to this effect. Thomas Bowles, Esq., grandfather of the said Lewis, was seised of the manor of Norton-Bury, in the said county in fee, and, 1 Sept. anno 12 by indenture, betwixt him on the one part, and William Hide and Leonard Hide of the other part, in consideration of a marriage to be had betwixt the said Thomas Bowles and Anne, daughter of the said William Hide, &c. covenanted, that after the said marriage had and solemnized, that the said Thomas, his heirs and assigns, would stand seised of the said manor of Norton-Bury, to the use of the said Thomas and Anne, for the term of their lives, without impeachment of waste, and after their deceases, to the use of their first issue male, and to the heirs male of such issue lawfully begotten, and so over to the second, third, and fourth issue male, &c. and for want of such issue, to the use of the heirs males of the body of the said Thomas and Anne lawfully begotten; and for want of such issue, to the use of Thomas Bowles, son and heir apparent of Thomas Bowles the grandfather, and the heirs males of his body issuing, and for want of such issue, to the use of the heirs of the body of the said Thomas and Anne lawfully issuing. Which marriage was solemnized accordingly, and the said Thomas the grandfather, and Anne, had issue John; and afterwards the said Thomas the grandfather died without any issue on the body of Anne, but the said John; after whose death the said Anne entered into the said manor,

and was thereof seised, with the said remainder over, as aforesaid, and afterwards the said John Bowles died, and afterwards Thomas the son conveyed by fine his remainder to the use of Lewis Bowles the plaintiff, and Diana his wife, and the heirs males of his body; and the said Anne being so seised of the said manor, with the remainder over as aforesaid, viz. 20 Feb. an. Reg. Jac. reg. 9, a barn, parcel of the said manor per vim ventorum et tempestať penitus subvers. et ad terram deject fuit, and that the said thirty cart loads of timber, in the declaration mentioned, were parcel of the said barn, and that the said timber was sound and fit for building, wherefore the defendant, as servant of the said Anne, and by her command, took the said timber, and carried it out of the limits of the said manor to Radial, in the same county; and afterwards the said Anne, 24 Feb. anno 9 Jac. Reg. made her last will, and thereof made Robert Osborne and Leon. Hide, Knts. her executors, and died, after whose death the plaintiff seized the said timber, and afterward the defendant, by the command of the said executors, converted it to his use; and if upon the whole matter the defendant was guilty or not, the jury prayed the opinion of the court.

And in this case two questions were moved. 1. If upon the whole matter the wife should be tenant in tail after possibility, or that she should have the privilege of a tenant in tail after possibility, sc. to do waste, &c. 2. Admitting that she should not have the privilege, &c. if the clause of" without impeachment of waste," shall give her property in the timber so blown down by the wind.

And in this case eight points were resolved by the whole court.

1. That till issue, Thomas the grandfather and Anne, were seised of an estate tail executed sub modo, sc. until the birth of issue male, and then by the operation of law the estates are divided, sc. Thomas and Anne become tenants for their lives, the remainder to the issue male in tail, the reversion to the heirs males of Thomas and Anne, the remainder over as aforesaid; for the estate for their lives is not absolutely merged, but (exists) with this implied limitation until they have issue male. Vide Chudleigh's Case in the First Part of my Reports, fol. 120, and Archer's Case, fol. 66 b.

2. That tenant in tail, after possibility, has a greater pre-eminence and privilege, in respect of the quality of his estate, than tenant for life, but he has not a greater quantity of estate than tenant for life; in respect of the quality of his estate, it tastes much of the quality of an estate in tail, out of which it is derived: and, therefore, 1. She shall not be punished for waste. 2. She shall not be compelled to attorn. 3. She shall not have aid. 4. On her alienation no Consimili casu lies. 5. After her death no writ of intrusion lies. 6. She may join the mise in a writ of right in a special manner, temp. E. 1; Wast. 125; 39 E. 3, 16 a, b; 31 E. 3; Aid. 35; 43 E. 3, 1 a; 45 E. 3, 22; 46 E. 3, 13 a, 27; 11 H. 4, 15a; 7 H. 4, 10 b; 2 H. 4, 17 b; 42 E. 3, 22; 3 E. 4, 11 a; 21 H. 6, 56; 10 H. 6, 1 b; 13 E. 2; Entre Congeable, 56; 28 E. 3, 96 b; 26 H. 6; Aid. 77; F. N. B. 203. 7. In an action brought by her,