So, now an injunction shall be granted upon an affidavit of waste committed, to inhibit any waste to be committed by tenant for life or years; as to inhibit meadow, or other pasture, not ploughed within twenty years, being ploughed; but not against a lessee, who had agreed to pay 20s. per acre per ann. increase of rent, if he ploughed a meadow, &c. So it will be granted to inhibit antient inclosures being thrown down; or houses being pulled down (a). So, against tenant after possibility, &c. or him who in respect of a trust, &c. is not liable to an action of waste (a). So, against tenant for life, at the suit of the remainder-man in fee, though there is an intermediate remainder: and if tenant for life, without impeachment of waste, or any other lessee, has cut timber, so as not to leave sufficient for repairs, the Court will restrain him from cutting any more without leave of the Court (a). Tenant for life, without impeachment of waste, will be restrained also from cutting down trees in lines or avenues, or ridings in a park, whether planted or growing naturally, or trees not of a proper growth to be cut (b); and though he be tenant for life, with liberty to cut timber "at seasonable times," he is not to cut trees planted for ornament or shelter to the mansion-house, or sapling trees not fit to be cut or felled for timber (c). So, he will be restrained from pulling down the antient and capital house, and not only so, but the Court will compel him to put it in the same plight in which he found it (a). But the Court of Chancery, it is said, will not decree a tenant for life to repair, or appoint a receiver with directions to repair (d). However, where a jointress gave leave to the next in remainder for life without impeachment of waste, to cut timber on the jointure estate, and he dying without issue, the remainder-man over in tail having acquiesced in and encouraged the so doing, he was restrained from an action of waste against the jointress (e). Where the plaintiff and defendant in possession were tenants in common, an injunction to stay waste was refused: but on affidavit of the defendant's insolvency it was granted (ƒ). The Court will grant an injunction at the suit of a ground landlord to stay waste in an under-lessee, who holds by lease from the original landlord; upon a certificate being produced of the waste (g). So, the mortgagor may have an injunction to stay waste against the mortgagee, if he cut down timber, and do not apply the money arising (a) Com. Dig. tit. Chancery. (D. 11.) (b) Anon. 3 Atk. 215. Garth v. Cotton. Ibid. 751-55. (c) Chamberlayne v. Drummer. 3 Br. R. 549. (d) Wood v. Gaynon. Ambl. 395. (f) Smallman v. Onions. 3 Br. R. 621. from the sale in sinking the interest and principal (a). So, where the mortgagor commits waste, the Court will grant the mortgagee an injunction; for they will not suffer the mortgagor to prejudice the incumbrance (a). So, though a rector may cut down timber for the repairs of the parsonage-house or chancel (but not for any common purpose), and is entitled to botes for repairing barns and out-houses belonging to the parsonage, an injunction to stay waste in cutting down timber in the church-yard, will be granted till the cause be heard (b); and an injunction was granted to stay waste against the widow of a rector, at the suit of the patroness, during a vacancy (c). An injunction to stay waste may be granted in favour of a child in ventre sa mere (d). But where a clause "without impeachment of waste," is inserted in a lease or demise for years, it will have the same effect as when it is inserted in a conveyance of an estate for life; and the Court of Chancery will restrain the import of it, in the same manner as in the case of an estate for life (e). The Court will not grant an injunction to stay waste in digging mines, where the defendant sets up a right to the inheritance of the estate, till the answer is come in or the defendant has made default in not putting in his answer, for such injunctions are never granted before the hearing, unless the defendant had only a term in the estate, for years, or for life, and the reversion was in the plaintiff (ƒ). The lord of a manor may bring a bill for an account of ore dug, or timber cut, by the defendant's testator. Indeed, as to the property of the ore or timber, it would be clear even at law that if it came to the executor's hands, trover would lie for it; and if it had been disposed of in the testator's lifetime, the executor, if assets are left, ought to answer for it: but it is stronger here, by reason that the tenant is a sort of fiduciary to the lord, and it is a breach of trust, which the law reposes in the tenant, for him to take away the property of the lord (g). A bill, however, for a mere account of timber cut down, was dismissed by Lord Hardwicke, as being the proper subject of an action at law; but his Lordship added, that there were many instances where the Court had decreed an account in the case of mines, which they would not have done in that of timber; because the digging of mines is a sort of trade (b). (a) Farrant v. Lovel. 3 Atk. 723. Farrant v. Lee. Amb. 105. (b) Strachy v. Francis. 2 Atk. 217. (f) Lowther v. Stamper. 3 Atk. 496. (g) Bishop of Winchester v. Knight. 1 P. Wms. 406. (h) Jesus College v. Bloome. 3 Atk. 362. S. C. Amb. 54. But as to the trespass of breaking up meadow, or antient pasture ground, it dies with the person; wherefore no bill will be entertained for an account thereof (a). Neither is every common trespass a foundation for an injunction, where it is only contingent and temporary: but if it continue so long as to become a nuisance, in such case the Court will interfere and grant an injunction to restrain the person from committing it (6). But the Court will award a perpetual injunction to restrain waste by ploughing, burning, breaking, or sowing down lands (c). So, an injunction shall go to restrain the defendant from injuring fish-ponds (d). Where a bishop was directed by the Court of Chancery, to bring trover in order to try the right as to certain ore dug and disposed of by the tenant of a manor of which the bishop was lord; upon trial thereof it appeared that there never had been any mine of copper be fore discovered in the manor, wherefore the jury could not find that the customary tenant might by custom dig and open new copper mines; so that upon the production of the postea, the Court held that neither the tenant without the license of the lord, nor the lord without consent of the tenant, could dig in those copper mines, being new mines (e). On motion to stay waste, a particular title must be shewn; and the motion should be made upon affidavit of the title, waste committed, and a certificate of the bill filed (ƒ). (a) Bishop of Winchester v. Knight. 1 P. Wms. 407. (b) Coulson v. White. 3 Atk. 21. (c) Hartpole v. Hunt. 4 Br. Ca. in Parl. 369-77. (d) Bathurst v. Burden. 2 Br. R. 64. (e) Bishop of Winchester v. Wms. 406. Knight. 1 P. (f) Lowther v. Stamper. 3 Atk. 496. Com. Dig. tit. Chancery. (D. 11.) CHAPTER XVII. Of the Landlord's Remedy against third Persons. SECTION I. By Action on the Case for Nuisances, to the Injury of his Reversion. SECTION II. By Action against the Sheriff, on Stat. 8 Ann. c. 14. for removing the Tenant's Goods under an Execution without paying a Year's Rent. SECTION III. By Action on the Stat. 11 G. 2. c. 19. for assisting the Tenant in a fraudulent Removal of his Goods. SECTION I. Action on the Case for Nuisances to the Injury of his Reversion. AN action of trespass on the case lies for a nuisance to the habita tion or estate of another, by which remedy the landlord may recover damages commensurate with the degree of injury that he has sustained by the deterioration of that property of which the reversion is in him. Indeed, touching the remedies afforded to the landlord and the tenant respectively for a nuisance to the thing demised, an action may be brought by one in respect of his inheritance, for the injury done to the value of it, and by the other, in respect of his possession (a). As, if a man have an antient house, and another build so near as to darken his windows, he may have an action upon the case (b). So, if a man build a new house, and afterwards grant the adjacent soil, and the grantee by an edifice upon it stop the lights of the other house, though it was not an antient house; for if a man build a new house upon part of his land, and afterwards sell the house to another, neither the vendor, nor any other claiming under him, may stop the lights: but if he sell the vacant ground to another, and keep the (a) Jesser v. Gifford. 4 Burr. 2141. (b) Com. Dig. tit. Action, &c. for a Nuisance. (A). But as to the trespass of breaking up meadow, or antient pasture ground, it dies with the person; wherefore no bill will be entertained for an account thereof (a). Neither is every common trespass a foundation for an injunction, where it is only contingent and temporary: but if it continue so long as to become a nuisance, in such case the Court will interfere and grant an injunction to restrain the person from committing it (b). But the Court will award a perpetual injunction to restrain waste by ploughing, burning, breaking, or sowing down lands (c). So, an injunction shall go to restrain the defendant from injuring fish-ponds (d). Where a bishop was directed by the Court of Chancery, to bring trover in order to try the right as to certain ore dug and disposed of by the tenant of a manor of which the bishop was lord; upon trial thereof it appeared that there never had been any mine of copper before discovered in the manor, wherefore the jury could not find that the customary tenant might by custom dig and open new copper mines; so that upon the production of the postea, the Court held that neither the tenant without the license of the lord, nor the lord without consent of the tenant, could dig in those copper mines, being new mines (e). On motion to stay waste, a particular title must be shewn; and the motion should be made upon affidavit of the title, waste committed, and a certificate of the bill filed (ƒ). (a) Bishop of Winchester v. Knight. 1 P. Wms. 407. (b) Coulson v. White. 3 Atk. 21. (c) Hartpole v. Hunt. 4 Br. Ca. in Parl. 369-77. (d) Bathurst v. Burden. 2 Br. R. 64. (e) Bishop of Winchester v. Knight. 1 P. Wms. 406. (ƒ) Lowther v. Stamper. 3 Atk. 496. Com. Dig. tit. Chancery. (D. 11.) |