382

Of the evidence.

Evidence of hearsay.

Action on the Case for Nuisance and Disturbance.

To prove a customary right of common, declarations as to the common opinion of the place, made by deceased persons, who from their situation had the means of knowledge, and no interest to misrepresent, are evidence. (a) But the evidence must be confined to what such old persons have said, as were in a situation to know what the rights were: and before a customary right can be proved by such evidence, a foundation ought to be laid by shewing an exercise of the right, or acts of enjoyment, within the period of living memory; it is the exercise of the right, which lets in the evidence of reputation. (b) But though the general opinion of the place is evidence, yet the tradition of a particular fact, as that turf was dug, &c., is not. (c)

Whether hearsay evidence is admissible to prove a prescriptive right strictly private, is an unsettled question. (d) In a late case, the court of King's Bench admitted evidence of reputation to prove a prescriptive right in the plaintiff, which was an abridgment of a general right of common over a waste, and affected a large number of occupiers within the district. (e)

Action on the Case in the Nature of Waste.

In modern practice, the old writ of waste had been almost entirely superseded by the action on the case in the nature of the writ of waste. The effect of it is the same as that of a writ of waste in the tenuit, brought after the term is expired, in which the plaintiff has judgment to recover damages for the waste done, but not the place wasted. (a) Although the plaintiff cannot in this action recover the place wasted, yet this defect is remedied where the demise is by deed, by reserving to the lessor a power of re-entry, in case the lessee commit waste or destruction, so that an action of ejectment, and on the case, now supply the place of the old writ of waste in the tenet. This form of action presents several advantages over the ancient mode of proceeding, as it may be maintained by him in the remainder for life, or years, as well as by the owner of the inheritance (b), and the plaintiff is entitled to costs, which, as already stated, are not recoverable in an action of waste. (c) This action did not at first prevail in the courts without some difficulty. (d)

An action on the case is therefore at the present day, the usual remedy for waste, but from some recent decisions, it is doubtful whether it can be maintained for permissive waste only. In the case of Gibson v. Wells (e), which was an action on the case against a person who is stated in the report to have been tenant at will to the plaintiff (ƒ), the injuries proved amounted only to permissive waste, and Sir James Mansfield, C. J. nonsuited the plaintiff, saying, that although an action on the case in the nature of waste, might be maintained for commissive waste, yet that he had never known an instance of such an action being maintained for permissive waste only, and on a motion for a new trial, he added, that an action on the case

(a) Ante, p. 123. What acts amount to waste have been already stated. Anle, p. 113, to p. 121.

(b) 2 Saund. 252, notes, 5th edit. (c) Ante.

(4) Jefferson v. Jefferson, 3 Lev. 130.

2 Saund. 252, a, notes, 5th edit.

(e) 1 Bos. and Pul. N. R. 290.

(ƒ) The first count of the declaration stated the defendant to hold "for a certain term, not yet determined."

might be maintained for wilful waste, but that at common law, if any part of the premises are suffered to be dilapidated, it amounts to permissive waste, and that if that action were maintainable, such an action might be brought against a tenant at will, who omitted to repair a broken window. In the case of Herne v. Benbow (a), the plaintiff declared in case, and alleged, that certain buildings in the defendant's occupation were ruinous, prostrate, and in decay, for want of needful and necessary reparations. The defendant had suffered judgment by default, and very small damages having been given, on motion to set aside the inquisition, the court said, that, if that action could be maintained, a lessor might declare in case for not occupying in an husband-like manner, which could not be. That the facts alleged were permissive waste, for which an action on the case did not lie, and the countess of Shrewsbury's case (b) was cited. In Jones v. Hill (c), the plaintiff declared in case, and stated, that the defendant held certain messuages as tenant to him for the remainder of a term of years, upon condition to repair and leave the premises in as good plight and condition as the same were in, when finished under the direction of a surveyor; and the breach was for not repairing during the term, and for yielding up the premises in much worse order than when the same were finished under the direction of a surveyor. There were also two other counts, stating facts which amounted to permissive waste. According to the report of this case in Taunton, Gibbs, J. C. appears to have refused to give an opinion on the general question, whether an action on the case will lie for permissive waste; stating, that it could not be waste, to omit to put the premises into such repair as A. B. had put them into.

Of the above cited cases, it is apprehended, that that of Herne v. Benbow alone establishes the position, that an action on the case cannot be maintained against a tenant for years for permissive waste. In Gibson v. Wells, it is expressly stated in the report, that the defendant was tenant at will, who is certainly not answerable in any manner in an action of waste, not being included in the statute of Gloucester (d). This point was determined in the countess of Shrewsbury's case (e), but it was

(a) 4 Taunt. 764.

(b) 5 Rep. 13 Cro. Eliz. 777, 784, S. C.

(c) 7 Taunt. 392. 1 B. Moore, 100,

S. C.

(d) See ante, p. 113.
(e) 5 Rep. 13 b.

at the same time observed, in that case, that if tenant at will committed voluntary waste, as by cutting down trees, &c. he would be answerable in an action of trespass. (a) In the case of Herne v. Benbow (b), it may be collected, that the defendant was tenant for years, but the rule there laid down, "that an action on the case does not lie against a tenant for permissive waste," is certainly not borne out by the authority cited in support of it (c), which only shews, that such an action cannot be maintained against a tenant at will. The case of Jones v. Hill (d), is by no means clearly reported. It appears from the report in Taunton, that the declaration contained two counts, charging the defendant with permissive waste, but no mention of those counts is made in Moore, and Mr. Taunton adds in a note, that he could not collect whether the court expressed any decided opinion on those counts, on which the counsel did not much dilate, but which had no reference to the repairs done by the surveyor. In neither report is the evidence stated, but from the expressions made use of by Gibbs, C. J., it seems that it only appeared in evidence, that the defendant had neglected to leave the premises in as good plight and condition as they were in when finished under the direction of a surveyor, and that no evidence of negligence, amounting to permissive waste, was given, which must have brought the second and third counts into question. Should the case bear this construction (e), it proves nothing more than that, where a tenant for years enters into an engagement, which extends his liability to repair beyond the limits to which he was made answerable by the statute of Gloucester, and the plaintiff declares in case for an injury commensurate with such extended liability, such an action cannot be maintained by the plaintiff, who must resort to his remedy upon the covenant or agreement. (f)

Where the lessee covenants not to do waste, the lessor has his election, either to bring an action on the case or of covenant,

(a) See ante, p. 113.

(b) 4 Taunt. 764.

(c) Countess of Shrewsbury's case, 5

Rep. 13, b.

(d) 1 B. Moore, 100, but quære, how the other counts, stated in 7 Taunt. 392, were disposed of.

(e) But see 1 Saund. 323, b, (note k) promise to use the premises in an hus6th edit. band-like manner, Powley v. Walker, 5 (S) Tenant from year to year, is only T. R. 373. See 1 Marsh, 567.

Declaration.

against the lessee, for waste done by him during the term (a). And where a landlord has given his tenant notice to quit, and the latter holds over after the expiration of the notice, and commits waste, the landlord may either treat him as a trespasser, or may waive the trespass, and bring an action on the case in the nature of waste. (b)

It does not appear to be necessary in this action, whether it be brought by the original lessor, or by his heir or assignee, to state any title in the declaration, and indeed it is better not to set out the estate which the plaintiff has in the remainder or reversion, for if it be incorrectly stated, the variance will be fatal. (c)

But it seems necessary in an action on the case, as well as in an action of waste, to state in the declaration, the nature and kind of waste which is the subject of the action, and the plaintiff will not be permitted to give evidence of a different sort of waste from that which is laid in the declaration. (d) If, for instance, the plaintiff charges the defendant with permissive waste, he cannot give evidence of voluntary waste committed by him; so if the defendant is charged with uncovering the roof of a dwellinghouse, the plaintiff cannot give in evidence, that the defendant removed some fixtures from it; just as if the breach assigned in an action of covenant should be, "that the defendant had not used the demised premises, or any part thereof, in a good and husband-like manner; but, on the contrary thereof, had committed, permitted, and suffered to be made, done, and committed, in and upon the said demised premises, waste, spoil, and destruction;" the plaintiff will not be allowed to give evidence of the defendant's using the farm in an unhusband-like manner, unless it amounts to waste (e); for though the evidence would have been admissible on the former part of the breach, yet, as the plaintiff has in the subsequent part of it narrowed it to waste, spoil, and destruction, it is not competent to him to give evidence of any other particulars, which do not come within the meaning of these words. It is true, that the plaintiff is not bound to prove the whole waste stated, nor is there any necessity for the jury to find the particular circumstances of the waste, as in an action for waste, because there, the plaintiff is to have

(a) Kinlyside v. Thornton, 2 Blacks.

1111.

(b) Burchell v. Hornsby, 1 Campb. N. P. C. 360.

(c) Hardwicke v. Thompson, MS. 2 Saund. 252, c, (note) 5th edit.

(d) 2 Saund. 252, c, (note) 5th edit. (e) Harris v. Mantle, 3 T. R. 307.