at any future time to the living, is direct and palpable fimony. But, 3. It is held that for a father to purchase such a prefentation, in order to provide for his fon, is not fimony: for the fon is not concerned in the bargain, and the father is by nature bound to make a provifion for him a. 4. That if a fimoniacal contract be made with the patron, the clerk not being privy thereto, the prefentation for that turn fhall indeed devolve to the crown, as a punishment of the guilty patron; but the clerk, who is innocent, does not incur any difability or forfeiture ". 5. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not fimoniacal, provided the patron or his relations be not benefited thereby d; for this is no corrupt confideration, moving to the patron. 6. That bonds of resignation, in case of non-refidence or taking any other living, are not fimoniacal; there being no corrupt confideration herein, but such only as is for the good of the public. So alfo bonds to refign, when the patron's fon comes to canonical age, are legal; upon the reason before given, that the father is bound to provide for his fon f. 7. Laftly, general bonds to refign at the patron's request are held to be legal: for they may poffibly be given for one of the legal confiderations beforementioned; and where there is a poffibility that a transaction may be fair, the law will not suppose it iniquitous without proof (b). But, if the party can prove the contract to have been a corrupt one, fuch proof will be admitted, in order to fhew the bond fimoniacal, and therefore void. Neither will the patron be fuffered to make an ill ufe of fuch a general a Cro. Eliz. 686, Moor, 916. b 3 Inft. 154. Cro. Jac. 385. c Noy. 142. d Stra. 534. e Cro. Car. 180, f Cro. Jac. 248. 274. g Cro. Car. 180. Stra. 227. (6) [However, in a late cafe (bifhop of London against Fitch, Dom. Procer. 1783), notwithstanding the authorities cited in the margin, and a series of other decifions in fupport of the validity of general bonds of refignation, by which authorities the Court of Common Pleas in the firft inftance, and the King's Bench afterwards, held themselves bound, it was adjudged, that general bonds to refign at the patron's requeft, are fimoniacal and illegal.] bond bond of refignation; as by extorting a compofition for tithes, procuring an annuity for his relation, or by demanding a refignation wantonly or without good caufe, fuch as is approved by the law; as, for the benefit of his own fon, or on account of non-refidence, plurality of livings, or grofs immorality in the incumbent h V. THE next kind of forfeitures are thofe by breach or non-performance of a condition annexed to the eftate, either exprefsly by deed at it's original creation, or impliedly by law from a principle of natural reason. Both which we confidered at large in a former chapter i. VI. I THEREFORE now proceed to another species of forfeiture, viz. by waste. Waste, vaftum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherifon of him that hath the remainder or reverfion in fee-fimple or fee-tail *. - WASTE is either voluntary, which is a crime of commisfion, as by pulling down a house; or it is permiffive, which is a matter of omiffion only, as by fuffering it to fall for want of neceffary reparations. Whatever does a lasting damage to the freehold or inheritance is waste'. Therefore removing wainscot, floors, or other things once fixed to the freehold of a house, is wafte ". If a house be destroyed by tempeft, lightning, or the like, which is the act of providence, it is no wafte: but otherwise, if the house be burnt by the carelessness or negligence of the leffee; though now by the statute 6 Ann. c. 31. no action will lie against a tenant for an accident of this kind. Waste may also be committed in ponds, dove-houfes, warrens, and the like; by fo reducing the number of the creatures therein, that there will not be fufficient for the reverfioner when he comes to the inheritance". Timber alfo is part of the inheritance. Such are oak, afh, and elm in all places; and in fome particular countries, by local cuftom, where other trees are generally used for building, they are for that reafon considered h1 Vern. 411. 1 Equ. Caf. Abr. 86, 87. Stra. 534. i See chap. 10. pag. 152. * Co. Litt. 53. 1 Hetl. 35. m 4 Rep. 64. as as timber; and to cut down fuch trees, or top them, or do any other act whereby the timber may decay, is wafte P. But underwood the tenant may cut down at any seasonable time that he pleafes; and may take fufficient eftovers of common right for houfe-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions'. The converfion of land from one fpecies to another is waste. To convert wood, meadow, or pafture, into arable; to turn arable, meadow, or pasture, into woodland; or to turn arable or woodland into meadow or pafture; are all of them wafte. For, as fir Edward Coke obferves', it not only changes the courfe of husbandry, but the evidence of the eftate; when fuch a clofe, which is conveyed and defcribed as pafture, is found to be arable, and e converfo. And the fame rule is obferved, for the fame reason, with regard to converting one species of edifice into another, even though it is improved in it's value ". To open the land to fearch for mines of metal, coal, &c. is wafte; for that is a detriment to the inheritance: but, if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own ufe ; for it is now become the mere annual profit of the land. These three are the general heads of waste, viz. in houfes, in timber, and in land. Though, as was before faid, whatever elfe tends to the deftruction, or depreciating the value of the inheritance, is confidered by the law as wafte. W LET us next fee, who are liable to be punished for committing wafte. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vafals or feudatories; "fi vafallus feudum diffipaverit, "aut infigni detrimento deterius fecerit, privabitur." But in our antient common law the rule was by no means fo large: for not only he that was feifed of an eftate of inheritance might do as he pleased with it, but also waste was not punifhable in any tenant, fave only in three perfons; guardian P Co. Litt. 53. 2 Roll. Abr. 817. r Co. Litt. 41. • Hob. 296. ta Inft. 53. u 1 Lev. 309. V 5 Rep. 12. w Hcb. 295. x Wright. 44. in chivalry, tenant in dower, and tenant by the cur tefy; and not in tenant for life or years. And the reason of the diverfity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demife and leafe of the owner of the fee, and therefore he might have provided against the committing of waste by his leffee; and if he did not, it was his own default. But, in favour of the owners of the inheritance, the statutes of Marlbridge 52 Hen. III. c. 23. and of Glocefter 6 Edw. I. c. 5. provided that the writ of wafte fhall not only lie against tenants by the law of England, (or curtefy) and thofe in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years paft, all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permiffive; unless their leafes be made, as fometimes they are, without impeachment of waste, abfque impetitione vafti; that is, with a provifion or protection that no man fhall impetere, or fue him, for wafte committed. Buttenant in tail after poflibility of iffue extinct is not impeachable for waste; because his eftate was at it's creation an eftate of inheritance, and so not within the ftatutes. Neither does an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; becaufe againft them the debtor may fet off the damages in account : but it seems reasonable that it should lie for the reverfioner,expectant on the determination of the debtor's own eftate, or of thefe eftates derived from the debtor. THE punishment for wafte committed was, by common. law and the statute of Marlbridge, only fingle damages‘; except in the cafe of a guardian, who alfo forfeited his wardfhip by the provisions of the great charter: but the statute of Glocefter directs, that the other four fpecies of tenants shall lofe and forfeit the place wherein the wafte is com e mitted, and alfo treble damages, to him that hath the inheritance. The expreffion of the ftatute is, "he fhall forfeit "the thing which he hath wafted ;" and it hath been determined, that under these words the place is also included %. And if wafte be done fparcim, or here and there, all over a wood, the whole wood fhall be recovered; or if in several rooms of a house, the whole house shall be forfeited ; because it is impracticable for the reverfioner to enjoy only the identical places wafted, when lying interspersed with the other. But if wafte be done only in one end of a wood (or perhaps in one room of a houfe, if that can be conveniently separated from the reft) that part only is the locus vaftatus, or thing wafted, and that only fhall be forfeited to the reverfioner i. VII. A SEVENTH species of forfeiture is that of copyhold eftates, by breach of the customs of the manor. Copyhold eftates are not only liable to the fame forfeitures as those which are held in focage, for treafon, felony, alienation, and wafte; whereupon the lord may feize them without any prefentment by the homage *; but alfo to peculiar forfeitures, annexed to this fpecies of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may obferve that, as these tenements were originally holden by the lowest and most abject vafals, the marks of feodal dominion continue much the strongest upon this mode of property. Most of the offences, which occafioned a refumption of the fief by the feodal law, and were denominated feloniae, per quas vafallus amitteret feudum, ftill continue to be caufes of forfeiture in many of our modern copyholds. As, by fubtraction of fuit and fervice m; fi dominum defervire noluerit: by disclaiming to hold of the lord, or fwearing himself not his copyholder °; fi dominum ejuravit, i. e. negavit fe a domino feudum habere : by neglect to be admitted tenant within a year and a day 9; fi per annum |