stand it: et qui non obstat, quod obstare potest, facere videtur. Secondly, the law gives to every man his proper action; therefore the lessor shall have his action of waste against the lessee; and the lessee his action of trespass, against the person who committed the waste.

33. The late Mr. Serjeant Williams, in his excellent Notes on Saunders's Reports, observes that the action for waste is now very seldom brought; having given way to a much more expeditious and easy remedy, by an action on the case, in the nature of waste which may be brought by the person in reversion or remainder for life or years, as well as in fee; and the plaintiff is entitled to costs, which he cannot have in an action of waste.

34. Lord Cowper says, that, without some particular circumstances, there is no remedy, in law or equity, for permissive waste, after the death of the particular tenant.

35. It is said in 1 Roll. Ab. 377. pl. 13. that if there be lessee for life, the remainder for life, the remainder or reversion in fee, and the lessee in possession wastes the land; though he is not punishable by the common law, during the remainder for life, yet he may be restrained in Chancery, for this is a particular mischief. Lord Keeper Egerton is reported to have said that he had seen a precedent in the time of Richard II. where in such a case it was decreed in Chancery, by the advice of the Judges, on complaint of the remainder-man in fee, that the first tenant should not commit waste; and an injunction was granted.

36. The courts of equity have long pursued this principle, and will award a perpetual injunction against waste whenever the case requires it.

Stewart,

Ca. 377.

37. Mr. Worsley being tenant for life of a farm in Worsley v.. Dorsetshire, consisting of poor arable land, with a 4 Bro. Parl. sheep walk, and about 400 acres of down land, under the will of Lady Stewart, who also left a writing under her hand forbidding the ploughing of such land as ought not to be plowed; he ploughed up, broke, and burnt part of the down land. A perpetual injunction was granted by the court of Exchequer; and cònfirmed by the House of Lords.

38. A court of equity will also grant an injunction against waste pendente lite, and Lord Hardwicke has 2 Atk. 182. said it is not necessary the plaintiff should wait till waste is actually committed; for where an intention to commit waste appears, and the defendant insists on his right to commit waste, the court will grant an injunction.

39. The court of Chancery has also frequently granted an injunction against waste, where no action for waste lay at law.

40. There was a limitation in a settlement to a Perrrot v.

person for life, remainder to trustees to preserve contingent remainders, remainder to his first and other sons in tail, remainder to A. for life, remainder to his first and other sons in tail. The first tenant for life cut down timber; A. the second tenant for life, brought his bill for an injunction to stay waste. Lord Hardwicke said, that though A. had no right to the timber, yet if the first tenant for life should die without sons, the plaintiff would have an interest in the mast and shade of the timber. Therefore upon the authority of those cases, which had been very numerous in the court, of interposing to stay waste in the tenant for life, where no action could be maintained against him at law, as the plaintiff had not the immediate remainder; the injunction was granted.

Perrot,

3 Atk. 94.

Farrant v.
Lovell,

41. A bill was brought by a ground landlord to

3 Atk. 723. stay waste in an under lessee, Lord Hardwicke said, that a certificate being produced of the waste,

he was of opinion the plaintiff had the same equity as in other cases of injunctions; and granted the 3 Atk. 211. injunction. In another case, he said that he would have no scruple to grant an injunction to stay waste in favour of an unborn child.

The Timber belongs to the Person entitled to the Inheritance.

Bowle's case, 11 Rep. 79.

Uvedale v.

42. Although no action of waste lies where there is an intermediate estate; yet if waste be done, by felling timber trees, the person entitled, at that time, to the inheritance in fee or in tail, may seize them; or bring an action of trover for the recovery of them: for a tenant for life has but a special interest in trees growing on the land, so long as they are annexed to the land; but if he or any other person severs them from the land, the interest of the tenant for life in them is thereby determined; and they become the property of the owner of the inheritance.

43. It follows that where an estate is limited to several persons for life, with remainder to their first and other sons in tail, the first tenant in tail who is born becomes entitled to any timber felled by the tenant for life.

43. A feoffment was made to the use of A. for 2 Roll. Ab. life, remainder to the use of his first and other sons

Uvedale,

119.

in tail; remainder to B. for life, remainder to his first and other sons in tail. B. had issue a son, and after, A., not having any son, cut down timber. It was resolved that the son of B. might have an action of trover against A. for the timber: because the pro. perty of the trees was in him who had the inheritance of the land when they were cut; and though the remainder for life to B. was an impediment to an action of waste during his life, yet it was not any

impediment to his son, as to the property of the trees, when severed from the land; which B. could not have for the debility of his estate. And the possibility of the estate which might come to the son of A., if A. should have a son, was not any impediment; inasmuch as it was a mere possibility, which peradventure never would happen, and was nothing in law till it happened, and might be destroyed by the feoffment of A.

v. Bewitt,

44. One seised in fee of lands, conveyed them to Whitfield trustees and their heirs, to the use of A. for life, re- 2 P. Wms. mainder to his first and other sons in tail, remainder 240. to B. for life, remainder to his first and other sons in tail, remainder to his two sisters and the heirs of their bodies, remainder to the grantor in fee. A. and B. had no sons, and one of the sisters died without issue, by which the heir of the grantor, as to one moiety of the premises, had the first estate of inheritance. A. having cut down timber, sold it; the heir of the grantor brought his bill for an account of a moiety. It was objected that it would be more agreeable to the rules of equity, that the money produced by the sale of the timber should be brought into court, and put out for the benefit of the sons unborn, and which might be born: that these contingent remainders being in gremio legis, and under the protection of the law, it would be most reasonable that the money should be secured for the use of the sons, when there should be any born. But as soon as it became impossible there should be a son, then a moiety to be paid to the plaintiff. And the case would be the same if there were a son in ventre matris, or the plaintiff might bring trover; and then what reason had he to come into equity. Lord Macclesfield said, the right of this timber be

1 Bro. R. 194.

3

37.

Pigot v. Bul-
lock, infra.
Newcastle v.
Vane, cited

2 P. Wms.

241.

longed to those who, at the time of its being severed from the freehold, were entitled to the first estate of inheritance; and the property became vested in them. As to the objection that trover would lie at law, it might be very necessary for the party whe had the inheritance to bring his bill; because it might be impossible for him to discover the value of the timber, it being in the possession, and cut down by the tenant for life.

The cause was reheard by Lord King, who was of the same opinion.

45. It is the same where timber is severed from the freehold by accident. Thus, where a great quantity of timber having been blown down by a storm at Welbeck, the seat of the Duke of Newcastle; though there were several tenants for life, with remainder to their first and other sons in tail, yet these having no sons born, the timber was decreed to belong to the first remainder-man in tail. 46. Where there are trustees to preserve continTit. 16. c.7. gent remainders, the Court of Chancery will not allow of waste by collusion, between the tenant for life and the person entitled to the first vested estate of inheritance; to the prejudice of persons not in

Vide Garth v. Cotton,

Williams v.

Duke of

esse.

47. Where the tenant for life has also the next existing estate of inheritance, subject to intermediate contingent remainders in tail; the Court of Chancery will not allow him to take advantage of that circumstance, by cutting down timber, but will preserve it for the benefit of the intermediate contingent remainder-men.

48. The Duke of Bolton was tenant for life, with Bolton, cited remainder to his first and other sons in tail, remainder to Mrs. Orde for life, remainder to her first. and

3 P. Wms.

268.