mon law, the clause "without impeachment of waste," only Persons for and against exempted tenant for life from the penalty of the statute, and whom injunc did not give him the property of the thing wasted; and those tion granted. learned persons considered Lewis Bowles' case, as having first decided, that these words also gave the property.[2] This opinion must have been founded upon the extrajudicial determination of Wray, C. J. and Manwood, C. B. in the case of Finch v. Finch, which is cited in Herlakenden's case,(a) and upon a passage in Statham's Abridgment, 27 H. 6. Lord Coke has however clearly shown that this doctrine was erroneous; and it appears from the numerous authorities cited by him in Lewis Bowles' case, (b) that "the constant opinion of all ages" was, that these words gave power to the lessee to do waste, *which produced an interest in him if he executed his power during the continuance of his estate. Lord Coke has also shown that the clause was in use at the time of the statute of Marlbridge, and that the effect of it was not only to allow the tenant to commit waste, but also to dispose of the timber to his own use.(c)[1]

(a) 4 Co. 62.

(b) 11 Co. 79.

(c) In the other report of Lewis Bowles' case, which is in Roll. by the name of Bowles v. Berrie, 1 Roll. Rep. 183, we find this doctrine treated with the pedantic subtlety peculiar to the age: the whole court agreed, that whether the trees were thrown down by tempest, or the act of the lessee, he was entitled to them; and two of the judges (Houghton and Dodderidge) held, that the words without impeachment of waste, gave a property in the trees; but the other two judges, (Coke, C. J. and Croke) said, that those words did not give a property in the trees, but only an interest and power in the lessee to take them; and when he had taken them, that he should not be impeached in any action or reprisal, but should have them for his own use!

manent leases are created as real estate, in regard to judgments and executions. But a term for ninety-nine years is to be sold on execution, as a chattel.

[2] A tenant for life, without impeachment for waste, has no interest in the timber on the estate whilst it is standing; nor can he convey any interest in such growing timber to another. Cholmeley v. Paxton, 3 Bing. 211. If in execution of a power he should sell the estate, with the timber growing thereon, he cannot retain, for his own absolute use, that part of the purchasemoney which was the consideration for the timber; though before he sold the estate, he might, it seems, have cut down every sizeable tree, and put the produce into his pocket. Doram v. Wiltshire, 3 Swanst. 701; note to 2 Blk. Com. 126.

[1] A tenant for life, without impeachment of waste, at common law, had much of the character of a tenant in fee, except as to the duration of the estate. Equity gives a narrower construction to the clause, and allows to the tenant

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The necessary consequence of this doctrine was that tenant for life without impeachment of waste, should not be

for life those powers only which a prudent tenant in fee would exercise. In this country such a clause in leases is not in use.

Where trees, or anything else attached to the freehold, are unlawfully detached therefrom, the property thus wrongfully separated belongs to the owner of the inheritance. "Waste is a tort," says Lord Hardwicke, (3 Atk. Rep. 262) "and punishable as such; and the party has also a remedy for the trees cut down by action of trover." 2 Cruise, 268. The case of Farant v. Thompson, 5 Barn. & Ald. 826, is full to the same point. Certain machinery attached to a mill was leased for a number of years. The tenant, without permission of his landlord, severed the machinery from the mill, and in that situation it was sold on an execution against the tenant. It was held that no title passed to the purchaser, and that trover lay for the machinery. The judges, in giving their opinions, compare the machinery, when attached to the freehold, to the case of trees standing which are parcel of the inheritance to the use of which the tenant has a qualified right, during his term, to wit, for shade and fruit. If, however, they are separated by his own wrongful act or the act of God, the tenant has no right to the use during his term, but they become absolutely vested in the person who has the next estate of inheritance; they become his goods and chattels. These cases abundantly show what is agreeable to good sense and sound policy as well as justice; that a tenant who commits waste by cutting timber acquires no title to the timber which he thus unlawfully cuts, and of course can convey none; and further that a bona fide purchaser from the tenant acquires no title, but is liable in trover to the owner. v. Wait, 3 Wend. Rep. 104.

Mooers

In Suffern v. Townsend, 9 John. Rep. 35, it was held that an agreement to sell land does not imply a license to enter and cut trees; and also that a license to enter would not authorize the cutting timber; for that one license does not imply the other. In that case there was a parol contract of sale and purchase, under which the defendant entered and cut timber; but the contract was not consummated, and the plaintiff recovered in trespass for the timber cut, while the defendant was in possession. The same point was again decided in Cooper v. Stower, 9 John. Rep. 331. In that case there was a written contract, much like the contract in the case of Mooers v. Wait, 3 Wend. 104, except that there was no lease of the lot; but the defendants produced a contract, signed by Stower, by which he acknowledged he had received a contract and bond for the consideration money which were to be executed and returned to the plaintiff; and agreed that until the papers were executed, no timber should be cut on the lot; and it was shown that they were executed and returned by the next mail. The defendants contended that a license to enter was implied. The court considered the acceptance of the contract of Stower a license to enter and occupy as tenants at will, but not to commit waste; and that cutting the timber beyond what was necessary for the use and improvement of the farm terminated the tenancy at will; and of course the defendants were trespassers. It was considered that the withholding the deed was the plaintiff's security upon the land; but it would cease to be a security if the defendants might lawfully strip the land of its timber, and render it of no value.

It seems that a tenant for life without impeachment of waste, and a tenant in tail after possibility of issue extinct, stand upon the same footing in regard

restrained in equity; for that would have been to determine Persons for that he should not enjoy the property which the law gave whom injuncand against him.(a) And it was decided, that his assignee has the same tion granted. rights accordingly, where tenant for life, without impeachment of waste, had become a bankrupt, and the commissioners had sold his estate to the defendant, the court dissolved an injunction which had been obtained to restrain him from cutting timber generally.(b)

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It was, however, soon found how much this extensive Equitable power might be abused to the prejudice of the *inheritance; waste. and accordingly when tenant for life, unimpeachable of waste, was making an unconscientious use of that power, courts of equity assumed the jurisdiction of restraining and modelling it.

The case which is frequently referred to, as being the leading decision upon this point, is well known by the name of Lord Barnard's case. It is, however far from being the earliest decision upon the subject, as it appears to have been a well known branch of equitable jurisdiction in the time of Lord Nottingham. In the above noticed case of Abraham

(a) Minshul v. Minshul, 1 Ch. Rep. 128. 1 Vern. 23. 1 Eq. Ab. 399. 1 Ves. 266.

(b) Anon. Mose. 236.

to waste. Atty. Genl. v. Duke of Marlboro, 3 Mad. Rep. 539. In the case of Bowles v. Bertee, 1 Rolles. Rep. 184, it was held that a tenant in tail after possibility has the whole property in trees which he either causes to be cut down or which are blown down on the estate. In the case of Williams v. Williams, 15 Ves. 427, Chancellor Eldon intimated that he could not imagine how it was doubted that the tenant being dispunishable, has not as a consequence the property in the trees. That it was singular there should be an argument raised that such a tenant should be restrained from committing malicious waste by cutting ornamental timber, if it was understood to be the law that he could not commit waste of any kind. But, as all the previous cases in which tenant in tail after possibility of issue extinct had been determined to be dispunishable of waste, were cases in which the tenant had once been tenant in tail with the other donee in possession; and in the case of Williams v. Williams, the tenant claimed in remainder after the death of the joint donee; Lord Eldon thought it advisable, before he made a final decree, to direct a case to the court of king's bench, not describing the claimant as tenant in tail after possibility of issue extinct, but stating the limitations of the settlement under which the claim was made. The case was accordingly argued at law, and a certificate returned that the claimant was tenant in tail after possibility of issue extinct; was unimpeachable of waste upon the estate comprised in the settlement; and having cut timber thereon, was entitled to the timber so cut, as her own property. Contra. Herlakenden's case, 4 Rep. 63; Abraham v. Bubb, 2 Freeman, 53.

Persons for and against

whom injunc tion granted.

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or Abrahall v. Bubb,(a) we find that great judge treating it as a settled point, that if tenant for life does waste "maliciously," a court of equity would restrain him, though he had express power to commit waste; and he added, that he never .knew an injunction in this respect denied, unless it were to Sergeant Peck in Lord Oxford's case, and he believed he never should see this court deny it again. He also cited the Bishop of Winchester's case, and Lady Evelyn's case, as instances in his recollection, in which the court had so interposed. In the former, the bishop had made a lease for twenty-one years without impeachment of waste, of land that had many trees. upon it: the tenant cut down none of the trees till about half a year before the expiration of the term, yet then going to fell the trees, he was enjoined. In several other cases about the same period the court declared that it would restrain both tenant for life without impeachment of waste, and tenant int ail after possibility of issue extinct, from committing "wilful," "destructive," "malicious," "extravagant," or "humorous," waste.(b)[1]

(a) 2 Eq. Ab. 757. 2 Freem. 53, 2 Show. 69.

(b) Williams v. Day, 2 Ch. Ca. 32. Cooke v. Whaley, 1 Eq. Ab. 400. Anon. 1 Freem. 273.

[1] In England it has been usual, from very ancient times, where estates for life are expressly limited, to insert a clause that the tenant for life shall have the lands, "without impeachment of waste;" which words were originally held to exempt the tenant for life from the penalties of the statute of Marlbridge only; not to give the property of the thing wasted. But it is laid down by Lord Coke that the words absque impetitione vasti, that is, without challenge or impeachment of waste, enable the tenant for life to cut down timber and convert it to his own use. Otherwise, if the words were "without impeachment of any action of waste;" for then the discharge would extend to the action only and not to the property of the timber. 1 Inst. 22, a. 11 Rep. 82, b. To the words, "without impeachment of waste," are sometimes added, with full liberty to commit waste. And in some instances words of restriction are inserted, as voluntary waste in houses only excepted. In the case of Garth v. Cotton, Dickens, 183, the words were, "without impeachment of waste, except voluntary waste." And Lord Hardwicke held that there the tenant was punishable for wilful waste; and had no interest in the timber, otherwise than the mast and shade and necessary botes. But some eminent lawyers have lately held that the words voluntary waste only extend to houses, and not to timber trees. 1 Ves. 265; Tit. 16, c. 7.

It has been lately held that the words without impeachment of waste, other than wilful waste, only gave to the tenant for life the interest of the money produced by the sale of decaying timber, cut by order of the court. Wickham V. Wyckham, 19 Ves. 419.

It has been long fully settled that the words without impeachment of waste,

These determinations led to the remarkable case of Vane Persons for v. Lord Barnard, (a) which certainly strongly demanded the whom injunc

(a) The case is reported in several books, and most correctly in the first. Prec. Chan. 454. Gilb. Eq. Rep. 127. 1 Eq. Ab. 390. 1 Salk. 161. 2 Vern. 738.

give to the tenant for life the right to fell timber, and also the property of all timber trees felled, or blown down; and also of all timber, parcel of a building blown down. Anon. Mos. R. 238. Pyne v. Don, 1 Term R. 55. Smythe v. S, 2 Swanst. 251.

Accordingly, where timber is cut by order of court, or by the prudent agreement of all parties in interest, during the life of the tenant for life, impeachable of waste, and the estate is next limited to a tenant for life unimpeachable of waste; the former will be entitled to the interest of the proceeds during his life; but upon his decease the entire proceeds will belong to the latter, and not to the remainderman. It has, however, been held, in a modern case, that a tenant for life, without impeachment of waste, cannot maintain trover for timber cut during the existence of a prior estate; but that it vests immediately in the owner of the inheritance. Pigot v. Bullock, 1 Ves. Jun. 479.

Where a tenant for life, without impeachment of waste, makes a lease for years, and the lessee commits waste, no action of waste will lie against him. For the lease is derived out of an estate privileged; and if waste lay, it must be against the tenant for life who made the lease; and he was dispunishable. Bray v. Tracy, W. Jones, 51.

The power which a tenant for life, without impeachment of waste has over his estate, with respect to cutting down timber, must be exercised during his life; and cannot be delegated to any other person, so as to enable such person to execute it after his death. Tit. 2, c. 1, s. 32.

Lord Hardwicke has said, that where there is tenant for life restrained from waste, remainder to another for life, without impeachment for waste; the court of chancery will not suffer any agreement between the two tenants for life to commit waste to take place prior to the period at which the second tenant for life's power properly commences. Robinson v. Litton, 3 Atk. 210, 756.

A tenant for life, without impeachment of waste, is, notwithstanding, obliged to keep tenants' houses in repair, unless the charge is excessive; and shall not suffer them to run to ruin. Parteriche v. Poulet, 2 Atk. 383.

The clause without impeachment of waste, is, however, so far restrained in equity, that it does not enable a tenant for life to commit malicious waste, so as destroy the estate; which is called equitable waste; for in that case the court of chancery will not only stop him by injunction, but will also order him to repair, if possible, the damage he has done.

The court of chancery will also restrain a tenant for life, without impeachment of waste, from cutting down timber, serving for shelter or ornament to a mansion-house; as also timber not to be felled.

A bill was brought by a remainderman to restrain a tenant for life, without impeachment of waste, from cutting down timber which served as ornament or shelter to the mansion-house, or which was unfit to be felled. Lord Hardwicke granted an injunction to restrain the defendant from cutting down trees standing in lines, avenues, or ridings in the park. Packington v. Packington, 3 Atk. 215. Aston v. Aston, 1 Ves. 264. O'Brien v. O'Brien, Amb. 107.

An injunction was moved for to restrain Mr. Bowes, the husband of Lady

and against

tion granted.

Destruction.