1833. Dox dem. GRUBB against alteration which affects the evidence of its identity. Suppose the fine for alienation were uncertain, and to be assessed according to the value for the time The Earl of being (a), and the alienation were to take place after a building had been pulled down and before it was rebuilt, the lord's fine would be diminished, though, ultimately, the new building was of greater value than the old one. BURLINGTON. Sir J. Scarlett and Austin contrà. If there be any distinction between the application of the law of forfeiture for waste to landlord and tenant, and that to lord and copyholder, it cannot be more peremptorily applied in the latter case than in the former. The landlord is a real loser by the waste: the lord loses nothing, for he has no practical enjoyment of the inheritance. A lessee holds the land subject to the conditions annexed to the particular species of estate, as much as a copyholder. The arguments as to the deterioration which might ensue from the loss of evidence, or diminution of fines, are inapplicable here, because the jury have negatived the production of any damage. Cole v. Green (b) was a case of landlord and tenant, and there the evidence of the title was injured; if that case be applicable generally, a copyholder could not build a new house on his land. [Parke J. According to Watkins on Copyholds (c), he could not.] If Lord Darcy v. Ashworth (d) be applicable, a copyholder cannot plough up land which has not been ploughed before. But that rule appears to be qualified as to any occupier. In 2 Rolle's Abr., 814. Waste, 1. 47., it is said, that where, by the custom of the country, it is good husbandry to plough the meadow, and it is for the (a) Com. Dig. Copyhold, H. 4. (b) 1 Lev. 309. ame 1833. DoE dem. against BURLINGTON. amelioration of the meadow, it is not waste to plough it. The general rule is, that the law will not allow that to be waste which is not any ways prejudicial to the inheritance: per Richardson C. J. in Barret v. Barret (a). The Earl of Thus in 2 Rolle's Abr. Waste, p. 815. pl. 17, 18. it is said, that it is waste to pull down a house and rebuild a smaller, or a larger; the reason given in the latter case is, that the new house will be a greater charge to the lessee; which brings the question to the same test. In Keil. 38. (b) it is said, that if a lessee plead, in waste for pulling down a house, that he has built a larger, if it be to the lessor's advantage, he may shew it. The division of a meadow into many parts, by making ditches, is said not to be waste, for the meadows may be the better for it: Vin. Abr. Waste, D. 46. The change of one kind of mill for another may be waste; but that would be from the change in the nature of the property causing some damage. In Alston v. Scales (c) there was actual damage done, though very minute; and the Court said that it altered the evidence of the title. The Court looks to the actual effect upon the value of the interest of the reversioner; this rule has been adopted in actions on the case for injury to the reversion, as in Jesser v. Gifford (d), Jackson v. Pesked (e), Strother v. Barr and Another (g), Ferguson v. Cristall (h), Young v. Spencer and Another (i). The passage in Bracton mentioned on the other side is perfectly general; and it was written (a) Het. 35. (b) Per Constable, arg. in the Abbot of Stratford's case, assented to by Brian C. J. of C. P., Keil. 39. 1833. Doɛ dem. GRUBB against The Earl of BURLINGTON. now. before the statute of Gloucester passed: and the inqui sition, there spoken of, answers to the verdict of a jury Bracton's doctrine is recognised in Lord Coke's first (a) and second (b) institutes, and in Topping v. King (c). In the case of a copyhold, the Lord Chancellor doubted whether a legal forfeiture was incurred by the copyholder working a quarry, as to which it did not appear whether it had been opened before the copyholder's time; or by grubbing up boundary hedges, as to which it did not appear whether they were between parts of the copyhold or between the copyhold and adjoining freehold; and by topping timber trees: Peachy v. The Duke of Somerset (d). So it was doubted whether it were waste for a copyholder in fee to dig or open mines, in Lord Rutland v. Gie (e). The erection of a new house on a copyhold, without licence, was held to be no forfeiture, as being for the improvement of the tenement, though the nature of the land was altered: Cecill v. Cave (g). In Simmons v. Norton (h), it was held that, in support of a general plea of nul wast, evidence could not be given that the act was in conformity to the custom of the country, and in amelioration of the land; but that was a decision merely as to the proper method of raising the question on the record. In Burton's Law of Real Property (i) it is said, "The tenant of a copyhold estate of inheritance may also forfeit that estate by waste. But reason seems to require that the waste which is attended with such penal consequences should be either an invasion of the lord's property, as by cutting down trees without being autho (a) Co. Litt. 54. a. (c) Winch. 5. (e) 1 Sid. 152. (h) 7 Bing. 640. (b) 2 Inst. 306. (11). (g) Vin. Abr. Copyhold, L. c. rized by the custom; or, at least, some act or neglect which tends materially to deteriorate the tenement, or to destroy the evidence of its identity. To this last reason may also be referred the forfeiture which is incurred by an inclosure, or other alteration of boundaries." [Parke J. Suppose the barn had been the sole object of the grant.] In that case the act might have destroyed the identity of the property, and then the jury would probably have found that it did damage. In ejectment against a termor, upon a special proviso in the lease, giving a right of re-entry upon the commission of waste to the value of 10s., it was held that, when buildings of more than that value had been pulled down and others substituted for them, the jury should have been directed to ascertain whether, on the whole, waste had been committed to the value of 10s.: Doe dem. Earl of Darlington v. Bond and Others (a); and Bayley J. gave as a reason, that it was possible that the value of the reversion might be increased by the alteration. Cur. adv. vult. DENMAN C. J. in the course of this term delivered the judgment of the Court. This was an ejectment for ten messuages, in the manor of Princes Risborough, in the county of Bucks, which was, after a former trial, again tried before my brother Gaselee and a special jury at the Summer assizes 1832, for that county. The lessor of the plaintiff was lord of the manor of Risborough, and the defendant was a copyhold tenant of that manor; and the (a) 5 B. & C. 855. premises 1833. Doz dem. GRUBB against The Earl of BURLINGTON. 1833. Doɛ dem. GRUBB against The Earl of BURLINGTON. premises for which the ejectment was brought were in the occupation of a tenant. On the 31st of May 1819, Charles Currie was admitted tenant of the premises, in trust for Lord George Henry Cavendish (now the Earl of Burlington), the defendant. The premises, as described in the admission, were a messuage or farmhouse, with all outhouses, edifices, buildings, barns, stables, yards, gardens, orchards, and backsides thereto belonging, and also certain lands therein particularly mentioned and described. There were two barns on the premises: one of them was in a ruinous state, and was pulled down by the tenant. Leave was asked of the steward to take it down, but it was refused: the barn was some time afterwards rebuilt by the defendant. The ejectment was brought for alleged waste, in having taken down and removed the barn without license. Upon the evidence given on the trial, the Judge left three questions to the jury. 1st. Whether, at the time when the barn was pulled down, the defendant had an intention to rebuild it; for that if he had, there was no ground of forfeiture. 2dly. Whether any damage was occasioned to the estate by the pulling down and rebuilding the barn; stating, that if they found there was not, he would reserve for the opinion of the Court whether this was an answer to the action. 3dly. As to the existence of the custom, and particularly whether it authorised the pulling down all buildings generally, or only those additional ones which the tenant himself had erected. The jury found that the defendant did not contemplate the rebuilding the barn; that the estate would have sustained no damage if the barn had not been rebuilt; |