To watercourses.

* 344

the said A B in this behalf, and to deprive him of the use, be-
nefit, and advantage of the water of the said stream or water-
course, and to deprive him of the benefit and profit of his said
last-mentioned works, and his trade and business as such ma-
nufacturer as aforesaid, and to put him to great charge, trou-
ble, expense, and inconvenience, whilst he the said AB was s
possessed of the said last-mentioned works, with the appur-
tenances as aforesaid, and carried on his said business therein,
to wit, on, &c. aforesaid, and on divers other days and times
between that day and the day of exhibiting this bill, wrongfully
and injuriously widened, deepened, and enlarged, divers, to wit,
fenders, sluices,
cuts, and
water-courses,
leading from and out of the said stream or water-course in this
count first above mentioned, and thereby on those several
days and times, drew off and diverted from the same stream
or watercourse a much greater quantity of water than had be-
fore then used to flow or ought then to have flowed from the
said stream or water-course, and away from the said last-men-
tioned works of the said A B, and hindered and prevented the
water of the said last-mentioned stream or water-course from
running or flowing along its usual course to the said last-men-
tioned works of the said A B, and from supplying *the same
with water for the necessary working thereof, as the same
ought to have done, and otherwise would have done, and
wrongfully and injuriously kept and continued the said fenders,
sluices, cuts, and water-courses, so widened, deepened, and en-
larged, and the water so drawn off in larger quantities as afore-
said, from thence hitherto and by reason thereof, the water of
the said stream or water-course, sufficient for the supplying of
the said last-mentioned works, during all or any part of that
time, could not, nor did run or flow to the same, as the same
ought to have done, and otherwise would have done, and the
said A B, thereby, for want of such sufficient water, could not,
during all or any part of that time, use his said last-mentioned
works, or follow, use, or exercise his trade and business
therein, in so large, extensive, and beneficial a manner as he
ought to have done, and otherwise might and would have done,
but was thereby during all that time deprived of the use and
employment of the said last-mentioned works, and of all the
profits, benefits, and advantages, which he otherwise might

c.

and would have made by carrying on his said trade and busi- For waste, ness therein, to wit, at, &c. aforesaid. [Conclusion as ante, 238.3

[Commencement as ante, 238.] For that whereas the said CD, before and at the time of the committing of the grievance hereinafter next mentioned, held and enjoyed a certain messuage or dwelling-house, and land, with the appurtenances, situate, &c. as tenant thereof to the said A B, that is to say, as tenant thereof from year to year for so long time as they the said AB and C D should respectively please, to wit, at, &c. aforesaid. Yet the said CD contriving, and wrongfully and unjustly intending to injure, prejudice and aggrieve the said A B in his reversionary estate and interest of and in the said messuage or dwelling-house, and land, with the appurtenances, whilst the same so were in the possession of the said C D, as tenant thereof to the said A B as aforesaid, to wit, on, &c. and on divers other days and times between that day and the day of exhibiting this bill, at, &c. aforesaid, wrongfully and unjustly felled,(r) cut down and prostrated, and caused and procured to be felled, cut down and prostrated,(s) divers trees, to wit, apple trees, walnut trees, and wit, of the value of

oaks,

elms,

other

trees of the said A B of great value, to

. then standing, growing and being in and upon the said land, and took and carried away the same, and converted and disposed thereof to his own use. Whereby the

(7) See the precedents, 8 Wentw. Index, 67 to 71. By landlord against tenant, or by remainder-man in fee against tenant for life, see 2 Saund. 252. c. d. Mod. Ent. 201. 3 Lev. 128. 3 East, 38. and as to the mode of stating the particular waste, whether voluntary or permissive, in houses, lands, or woods, 2 Saund. 252. d. e. f. 3 East, 38. This action may be supported by any person who has the immediate remainder or reversion, whether in fee, in tail, for life or years against the tenant in possession, or a stranger; see the instances, 2 Saund. 252. n. 7. where see the mode of declaring in general. If the decla

ration be against a stranger for waste,
at the suit of a reversioner, the right
of the plaintiff and the possession of
the defendant should be described as
in the precedent, ante, 336.

(r) It is necessary in this action,
as well as in a writ of waste, to state
in a declaration, the nature and kind
of waste which is the subject of the
action. See the several forms in 2
Saund. 252. d. e. f.

(s) When trees are excepted in the lease, trespass is sustainable, and if not excepted, the interest of the lessor in the body of the trees, continues, 1 Saund. 322. n. 5. 7 T. R. 13

By reversion

er in fee a

gainst his tenaut for years for voluntary waste, by cutting down trees or other waste.(9) * 345

By landlord

against tenant

husbandry, or

for not repairing, &c. * 346

said A B hath been, and still is greatly injured, prejudiced and aggrieved in his reversionary estate and interest of and in the said messuage or dwelling-house and land, with the appurtenances, to wit, at, &c. aforesaid. [Add a count in trover, and conclude as ante, 238.]

For that whereas the said C D, heretofore, to wit, on, &c. for not eulti- at, &c. was and from thence hitherto hath been, and still is, tevating accord- nant to the said A B of a certain messuage, farm, land and ing to good premises, with the appurtenances, situate at, &c. by reason thereof during all that time it was the duty of the said CD, as such tenant as aforesaid, to manage, use and cultivate, the said farm, lands and premises, with the appurtenances, in a good and husbandlike manner, and according to the custom of the country where the said farm, lands and premises were so situate as aforesaid, to wit, at, &c. aforesaid. Yet the said CD, not regarding his duty in that behalf, but contriving, &c. [State the breaches according to the fact, as in assumpsit, ante, 134 to 138. If the action be for not repairing, the obligation to repair, and the breach should be stated as ante, 137. A landtord has an election either to proceed in case or in assumpsit, when the tenancy is by parol, or in covenant when the tenancy is by deed, ante, 137. in notes, and 2 Bla. Rep. 1111. When the ac tion is for the breach of an express covenant, it is usual in one count immediately after the statement of the tenancy, to allege the terms of the tenancy, the breach of which is complained of as follows, "under and subject to certain terms and conditions, to be performed and fulfilled by and on the part of the said CD, that is to say, "that," &c. Here set forth the covenant in the lease, c. Add a count in trover, if there be any evidence to support it, and conclude as ante, 238.]

ministratrix

Against ad- Commencement as ante, 67.] For that whereas by the law of a deceased and custom of England hitherto used and approved of, all and rector at the singular the rectors and vicars of this kingdom for the time being, are bound and ought to repair and sustain all and singu

suit of the suc

cessor, for di-
lapidations.
(1)

268. 1 Lutw. 116. 2 Bulst. 279. 3 Bulst. 158. Moore, pl. 917.

(t) See the precedents, 8 Wentw. 2 Burn. Ecel. Law, 146. 153. 3 Lev. 67. As to the law, see Willes, 421. 3 Wood. 205. 2 T. R. 636. Wats. CL. L. 39. Vin. Abr. Dilapid. 15.

* 347

far the houses buildings, and tenements of and belonging to For waste, their respective rectories and vicarages, and to leave the same &c. so repaired, supported and sustained to their successors, and that if such rectors and vicars do not leave such houses, buildings and tenements to their successors *in repair, but leave them out of repair, and dilapidated then the executors or administrators of the goods and chattels of such rectors and vicars, respectively having sufficient of the goods and chattels of such rectors and vicars are bound and ought to satisfy so much as shall be necessary to be expended or paid for the necessary repairing of such houses, buildings and tenements as aforesaid, to wit, at, &c. And whereas the said E F deceased, in his lifetime, and at the time of his death, to wit, on, &c. at, &c. was vicar of the parish of aforesaid, and was seised in right of the said vicarage, of and in a certain messuage, called the vicarage-house, and the outhouses and gardens thereunto belonging, and also of certain glebe lands lying and being at, &c. aforesaid. And the said E F being so seised, afterwards, to wit, on, &c. aforesaid, died, to wit, at, &c. aforesaid, and the said A B, afterwards, and after the death of the said E F, to wit, on, &c. at, &c. was in due form of law presented, admitted, instituted and inducted(u) into the said vicarage of the said parish church of, &c. so void by the death of the said E F deceased, as aforesaid, and the said A B thereby then and there became, and was, and still is, vicar(x) of the said parish church, and the next successor of the said E F, of and to the same, to wit, at, &c. aforesaid. And the said A B in fact saith, that at the time of the death of the said E F, the said vicaragehouse and the outhouses, and the fences of the garden and glebe lands aforesaid, were and still are, out of repair and greatly dilapidated, ruinous, broken and in great decay, for want of due repairing thereof, and were so left by the said E F out of repair, and greatly dilapidated, ruinous, broken and in great decay, at the time of his death as aforesaid, and that the sums of money sufficient for the necessary repairing of the said pre

(u) It is necessary to state the plaintiff's title. As to the mode, ante, 214. And if the plaintiff entitle himself by the resignation of his predecessor, he ought to shew how the

resignation was made, Lutw. 116.
21 Hen. VIII. c. 13.
Law, tit. Plurality.
Burn. Ecé
(x) Ante, 203, 214.

* 548

For waste,

&c.

For not re

pairing a

mises, se ruinous and in decay at the time of the death of the said E F as aforesaid, will amount to a large sum of money, to wit, to the sum of. to wit, at, &c. aforesaid, of all which said premises the said C D, administratrix as aforesaid, afterwards, and after the death of the said E F, and after the said A B was so presented, admitted, instituted and inducted to the said parish church as aforesaid, to wit, on, &c.(y) at, &c. aforesaid, had no⚫ tice and was then and there requested by the said A B to pay the said sum of money. Nevertheless the said CD so being administratrix as aforesaid, contriving and fraudulently intending to deceive the said AB in this behalf, (although she as administratrix as aforesaid, had sufficient of the goods and chattels of the said E F deceased, in her hands to be administered,(z) to pay the said sum of.) hath not yet paid the said A B the said. or any part thereof, or any sum of money for or towards the repairs aforesaid, although often requested so to do, but hath hitherto altogether neglected and refused, and still doth neglect and refuse, to pay him the same, to wit, at, &c. aforesaid.

[Commencement as ante, 238. The venue is local.] For that fence between whereas the said A B heretofore, to wit, on, &c. was and from plaintiff's and thence and hitherto hath been and still is lawfully possessed, and defendant's

closes, where in the occupation of a certain close, piece or parcel of land, si-
by plaintiff's
cattle escaped tuate, lying and being in the parish of - , in the county of -
And the said CD during the time aforesaid, was, and still is, pos-

and were hun

ted and da

maged, and
defendant's

cattle got in-
to plaintiff's
close, and
committed
damage.(a)

* 349

sessed of, and in the occupation of a certain other close or piece or parcel of land, situate, lying, and being in, &c. aforesaid, and contiguous and next adjoining to the said close or piece or parcel of land, of the said A B. And the said C D, by reason of the possession of his said close or piece or parcel

(y) The precise day is not mate- Abr. tit. Fences. When the de

rial..

(2) This allegation is necessary, as it is held, that an administrator is not liable, unless he has goods of the intestate, Gibs. 758. 3 Keb. 619.

(a) See the precedents, Morg. Prec. 436, 1 Rich. C. P. 131. See Vin.

fendant's cattle have escaped into plaintiff's close, he may declare either in case or trespass, 1 Salk. 335. The action should in general be against the occupier and not the landlord, who is not in possession, 4 T. R. 318. 2 Hen. Bl. $50. 12 Mod. 168