Persons for and against whom injunction granted.

being generally substituted in its place; but as it has been determined that an action on the case will lie for permissive

statute Westm. 2, by one tenant in common of the inheritance against another, who makes waste in the estate holden in common. The equity of which statute extends to joint tenants, but not to co-parconers; because by the old law, co-parceners might make partition whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint tenants could not; and therefore the statute gave them this remedy, compelling the defendant either to make partition and take the place wasted to his own share, or to give security not to commit any further waste. But these tenants in common and joint tenants are not liable to the penalties of the statute of Gloucester, which extends only to such as have life estates and do waste to the prejudice of the inheritance. The waste, however, must be something considerable; for if it amount only to twelve pence, or some such petty sum, the plaintiff shall not recover in an action of waste: nam de minimis curat lex. This action of waste is a mixed action; partly real, so far as it recovers land, and partly personal, so far as it recovers damages. For it is brought for both those purposes; and if the waste be proved, the plaintiff shall recover the thing or place wasted, and also treble damages by the statute of Gloucester. The writ of waste calls upon the tenant to appear and show cause why he hath committed waste and destruction in the placed named, ad exhæredationem, to the disinherison of the plaintiff. And if the defendant makes default or does not appear at the day assigned him, then the sheriff is to take with him a jury of twelve man, and go in person to the place alleged to be wasted, and there inquire of the waste done, and the damages; and make a return or report of the same to the court, upon which report the judgment is founded. For the law will not suffer so heavy a judgment, as the forfeiture and treble damages, to be passed upon a mere default, without full assurance that the fact is according as it is stated in the writ. But if the defendant appears to the writ, and afterwards suffers judgment to go against him by default or upon a nihil dicit (when he makes no answer, puts in no plea in defence) this amounts to a confession of the waste; since having once appeared, he cannot now pretend ignorance of the charge. Now, therefore, the sheriff shall not go to the place to inquire of the fact, whether any waste has or has not been committed; for this is already ascertained by the silent confession of the defendant; but he shall only, as in defaults upon other actions, make inquiry of the quantum of damages. The defendant on the trial may give in evidence anything that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king's enemies or other inevitable accident. But it is no defence to say that a stranger did the waste, for against him the plaintiff hath no remedy: though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act. When the waste and damages are thus ascertained, either by confession, verdict or inquiry of the sheriff, judgment is given in pursuance of the statute of Gloucester, c. 5, that the plaintiff shall recover the place wasted, for which he has immediately a writ of seisin, provided the particular estate be still subsisting, (for, if it be expired, there can be no forfeiture of the land) and also, that the plaintiff shall recover treble the damages assessed by the jury, which he must obtain in the same manner as all other damages in actions personal and mixed, are obtained, whether the particular estate be expired or is still in being." 3 Blk. Com. 227, 228, 229.

waste,(a) it may possibly still become necessary to have re- Persons for course to the ancient mode of proceeding.

and against whom injunc

The common law had also another remedy for the injury tion granted. of waste, of a preventive nature, in the writ of Estrepement.[3] Writ of Es

trepement.

(a) Gibson v. Wells, 1 N. P. 290. Herne v. Benbow, 4 Taunt. 764.

[3] By the common law, the action of waste did not lie, except against those who came to their estates by act of law, as, tenants by the curtesy, or in dower. For as the law gave the estate, without and even against the will of the party, it was reasonable that the reversioner should have this remedy for the protection of the inheritance. And hence this action lay against such tenant, as long as he lived, even for waste done by one to whom he had assigned over his estate; and did not lie against the assignee, who was deemed only his servant. Which law, says Lord Coke, continueth to this day. The statutes of Marl. bridge and of Gloucester gave the action of waste, in general terms, against every tenant, holding in any manner for life or years; but this was held not to supersede nor affect the remedy already existing by the common law, which is always esteemed the safer and better remedy. But if the heir grants away the reversion, and the tenant also assigns his estate, the assignee attorning to the grantee of the reversion, a new estate for life is thus created by act of the parties. The remedy at common law is, therefore, gone, and the action of waste lies only by force of the statute, and hence it lies against the wrong doer himself. So, if the heir grants away the reversion, and the tenant in dower or by the curtesy attorns to the grantee, a new estate for life is here created by act of the parties, and the grantee of the reversion can sue only upon the statute, the remedy at common law having failed. 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.

In the State of New York, the statute 1 Rev. Laws, p. 62, secs. 2, 3; 2 Ib. sec. 7; 3 Ib. sec. 5; 4 Ib. sec 6; and Rev. Stat. vol. 2, p. 334, correspond to the statute of Gloucester.

[3] Blackstone (3 Com. 225, et seq.) gives the following account of this process: "Estrepement is an old French word, signifying the same as waste or extirpation; and the writ of estrepement lay at the common law after judgment obtained in any action real and before possession was delivered by the sheriff; to stop any waste which the vanquished party might be tempted to commit in lands which were determined to be no longer his. But as in some cases the demandant may be justly apprehensive that the tenant may make waste or estrepement pending the suit, well knowing the weakness of his title, therefore the statute of Gloucester gave another writ of estrepement pendente placito, commanding the sheriff firmly to inhibit the tenant ne faciat vastum vel estrepementum pendente placito dicto indiscusso. And by virtue of either of these writs the sheriff may resist them that do or offer to do waste; and if otherwise he cannot prevent them, he may lawfully imprison the wasters, or make a warrant to others to imprison them; or if necessity require, he may take the posse comitatus to his assistance. So odious in the sight of the law is

Persons for and against

whom injunc

tion granted.

This lay after a judgment obtained in a real action, before possession delivered by the sheriff, to prevent the defendant

waste and destruction. In suing out these two writs this difference was formerly observed; that in actions merely possessory where no damages are recovered, a writ of estrepement might be had at any time pendente lite, nay, even at the time of suing out the original writ or first process; but in an action where damages were recovered the demandant could only have a writ of estrepement if he was apprehensive of waste after verdict had; for with regard to waste done before the verdict was given, it was presumed the jury would consider that in assessing the quantum of damages. But now it seems to be held, by an equitable construction of the statute of Gloucester, and in advancement of the remedy that a writ of estrepement to prevent waste may be had in every stage, as well of such actions wherein damages are recovered as of those wherein only possession is had of the lands; for peradventure saith the law, the tenant may not be of ability to satisfy the demandant his full damages. And therefore, now, in an action of waste itself, to recover the place wasted and also damages, a writ of estrepement will lie as well before as after judgment. For the plaintiff cannot recover damages for more waste than is contained in his original complaint; neither is he at liberty to assign or give in evidence any waste made after the suing out of the writ; it is therefore reasonable that he should have this writ of preventive justice since he is in his present suit debarred of any further remedial. If a writ of estrepement forbidding waste be directed and delivered to the tenant himself, as it may be, and he afterwards proceeds to commit waste, an action may be carried on upon the foundation of this writ; wherein the only plea of the defendant can be non fecit vastum contra prohibitionem; and if, upon verdict, it be found that he did, the plaintiff may recover costs and damages, or the party may proceed to punish the defendant for the contempt; for if after the writ directed and delivered to the tenant or his servants, they proceed to commit waste, the court will imprison them for the contempt of the writ. But not so if it be directed to the sheriff, for then it is incumbent upon him to prevent the estrepement absolutely, even by raising the posse comitatus, if it can be done no other way."

In Pennsylvania, the ancient writ of estrepement to prevent the commission of waste is in use. This writ does not issue of course, but must be grounded on an affidavit of actual waste done or permitted. Dickenson v. Nicholson, 2 Yeates, 281. The statute of Gloucester, 6, ed. 1, c. 13, was adopted in Pennsylvania. The act of 1803 merely facilitates the suing out of the writ authorized by the statute. Brown v. O'Brien, 4 Penn. Law Jour. 454, Hays, P. J. By the act of the 27th March, 1833, No. 60, sec. 3, quarrying and mining are waste; but estrepement to prevent working in mines or quarries opened before an ejectment brought for the land, cannot be issued until the term next succeeding that to which the writ of estrepement is returnable, unless the plaintiff file an affidavit of title with a certificate of his attorney. Ib. A tenant from year to year is bound by law to treat a farm in a husband-like manner, according to the custom of the country, and when he does not, a court of common pleas in Pennsylvania will restrain him by writ of estrepement under the act 29th March, 1822, from doing any injury to the premises by acts contrary thereto, and where the lease has expired by its own limitation, such writ of estrepement may issue without a previous notice to quit. Jones v. Whitehead, 2 Am. Law Jour. 6. As between landlord and tenant, manure

and against

from committing waste in the lands recovered. Another Persons for writ was afterwards given by the statute of Gloucester to whom injunc prevent the defendant from committing waste during the suit, tion granted. which was called the writ of estrepement pendente placito.

This method of obtaining preventive redress has now, as Bill in equity. well as the action of waste, fallen entirely into disuse:[4]

on a farm is attached to the freehold and forms part of the real estate; and a tenant who has leased property used for farming purposes has no right to remove from the premises the manure which has accumulated in the barn yard on the farm, and he may be restrained from so doing by writ of estrepement under the act of 29th of March, 1822. Barrington v. Justice, 4 Penn Law Jour. 289.

[4] Formerly in the state of New York, in addition to the remedy by action on the cases, which might be sustained in all cases, and in which the party injured would recover damages to the extent of the injury sustained, the Revised Statutes provided that if any guardian, or any tenant by the curtesy, tenant in dower, or for term of life or years, or the assigns of any such tenant, should commit waste, during their several estates or terms, of the houses, gardens, lands or orchards, or of any other thing belonging to the tenements so held, without a special and lawful license in writing, so to do, they should respectively be subject to an action of waste. 3 R. S. 334, sec. 1. And in case any such tenant should let or grant his estate, and still retain possession of the same, and commit waste, the party entitled to the reversion of the tenements, might maintain his action of waste against such tenant. 2 R. S. 334, sec. 2. And if one joint tenant or tenants in common, should commit waste of the estate held in joint tenancy, or in common, he subjected himself to an action of waste at the suit of his co-tenant, or tenants. 2 R. S. 334, sec. 3. But in such case, if the plaintiff recovered judgment therein, he was entitled at his election, either to take judgment for treble the damages, found by the jury, or to have partition made of the premises, so held in common, or joint tenancy. 2 R. S. 335, sec. 11. So the Revised Statutes provide that whenever any lands or tenements shall be sold by virtue of an execution issued upon any judgment or decree, the person to whom a conveyance may be executed, by the sheriff pursuant to such sale, may maintain an action of waste against any person who may have been in possession of the premises so conveyed, after the sale thereof, for any waste committed on such premises after such sale. 2 R. S. 336, sec. 20. But no person lawfully entitled to the possession of any premises so sold, shall be liable to any such action, for doing either of the acts authorized in the next section, which provides that any person, entitled to the possession of lands or tenements, sold under execution, may, until the expiration of fifteen months from the time of such sale, use and enjoy the same, as follows, without being guilty of waste. 1. He may in all cases, use and enjoy the premises sold, in like manner, and for the like purposes, in and for which they were used and applied, prior to such sale, doing no permanent injury to the freehold; 2. If the premises sold were buildings or any other erections, he may make necessary repairs thereto; but he shall make no alterations in the form or structure thereof; 3. If the premises sold were land, he may use and improve the same, in the ordinary course of husbandry, but he shall not be entitled to any crops growing thereon, at the expiration of the fifteen months; 4. He may apply any wood or timber on such land, to the necessary reparation of

[*199]

Persons for and given way to a more easy, expeditious, and complete and against whom injunc mode of proceeding by bill in equity, to stay waste, either tion granted. threatened or which the party is in the act of committing, and for an account of such waste as may have been already done. This course of proceeding, while it is open to many *persons who could not take advantage of these legal remedies, at once unites the advantages of both, by restraining, in the most expeditious manner, the commission of future waste and enforcing, by means of a decree for an account, a compensation for past. An injunction may be granted to restrain permissive as well as voluntary waste.(a)[1]

(a) Caldwell v. Baylis, 2 Meriv. 408.

any fences, buildings or erections which may have been thereon at the time of the sale; 5. If the land sold is actually occupied by such person, he may take necessary fire wood therefrom, for the use of his family. 2 R. S. 336, secs. 21, 22. See also Graham's Pr. 2 ed. p. 72, 73.

By the New York code, the action of waste, is abolished. But any proceed. ing heretofore commenced, or judgment rendered, or right acquired is not to be affected thereby. Wrongs heretofore remediable by action of waste, are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises (Code, sec. 450.) The provisions of the Revised Statutes, relating to the action of waste, apply to an action brought for waste under the code, so far as the same can be applied, without regard to the form of the action, (Ib. sec. 451.)

[1] The modern remedies of an injunction bill to stop the commission of waste, when the injury would be irreparable, or a special action on the case in the nature of waste, to recover damages, are much better than the dilatory and formidable proceedings of the ancient law.

For the purpose of showing the beneficial nature of the remedial interference of courts of equity in cases of waste, Mr. Story, (2 Eq. Juris. sec. 913, et seq.) gives the following examples:-"Where there is a tenant for life, remainder for life, remainder in fee, the tenant for life will be restrained, by injunction, from committing waste, although if he did commit waste no action of waste could lie against him by the remainderman for life, for he has not the inheritance; or by the remainderman in fee, by reason of the interposed remainder for life. So, a ground landlord may have an injunction to stay waste against an under lessee. So, an injunction may be obtained against a tenant from year to year, after a notice to quit, to restrain him from removing the crops, manure, &c., according to the usual course of husbandry. So it may be obtained against a lessee, to prevent him from making material alterations in a dwelling-house; as by changing it into a shop or warehouse. Courts of equity will grant an injuuction in cases where the aggrieved party has equitable rights only; and, indeed, it has been said that these courts will grant it more strongly, where there is a trust estate. Thus, in cases of mortgages, if the mortgagor or mortgagee in possession commits waste, or threatens to commit it, an injunction will be granted, although there is no remedy at law. So, where there is a contingent estate, or an executory devise over, dependent upon a legal estate, courts of equity will not permit waste to be done to the