may have an action of waste; for they, in many cases, have for the benefit of the church and of the successor a fee-simple qualified; and yet, as they are not seised in their own right, the writ of waste shall not say, ad exhæredationem ipsius, as for other tenants in fee-simple; but ad exhæredationem ecclesiæ, in whose right the fee-simple is holden.(g)

II. The redress for this injury of waste is of two kinds; preventive and corrective the former of which is by writ of estrepement, the latter by that of waste.

1. 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,(h) 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 Glocester(i) gave another writ of estrepement pendente placito, commanding the sheriff firmly *to inhibit the tenant "ne faciat vastum *226] vel estrepementum pendente placito dicto indiscusso."(k) 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 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;(m) 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 Glocester, 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. (n) 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.(o) If a writ of estrepement, forbidding waste, be directed and delivered to the tenant himself, as it may be, and he afterwards proceeds to *227] commit waste, an action may be carried on upon the *foundation of this writ; wherein the only plea of the tenant can be, non fecit vastum contra prohibitionem: and, if upon verdict it be found that he did, the plaintiff may recover costs and damages,(p) 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 this contempt of the writ.(q) 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.

Besides this preventive redress at common law, the courts of equity, upon bill exhibited therein, complaining of waste and destruction, will grant an injunctior n order to stay waste, until the defendant shall have put in his answer, and the

court shall thereupon make further order. Which is now become the most usual way of preventing waste."

2. A writ of waste is also an action, partly founded upon the common law, and partly upon the statute of Glocester;(r) and may be brought by him who hath the immediate estate of inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by curtesy, or tenant for years. This action is also maintainable in pursuance of statute(s) 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 coparceners; because by the old law coparceners 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.(t) But these tenants in common and joint-tenants are *not liable to the penalties of the statute of Glocester, which extends only to such [*228 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 non curat lex.(u)

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 Glocester. The writ of waste calls upon the tenant to appear and show cause why he hath committed waste and destruction in the place named, ad exhæredationem, to the disinherison, of the plaintiff.(w) 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 men, 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

3 1 And is now the only one, the writ of estrepement having been abolished. 3 & 4 W. IV. c. 27, s. 36.-STEWART.

The action or writ of waste is now very seldom brought, and has given way to a much more expeditious and easy remedy, by an action on the case in the nature of waste. The plaintiff derives the same benefit from it as from an action of waste in the tenuit, where the term is expired and he has got possession of his estate, and consequently can only recover damages for the waste; and though the plaintiff cannot in an action on the case recover the place wasted, where the tenant is still in possession, as he may do in an action of waste in the tenet, yet this latter action was found by experience to be so imperfect and defective a mode of recovering seisin of the place wasted that the plaintiff obtained little or no advantage from it; and 'therefore, where the demise was by deed, care was taken to give the lessor power of re-entry in case the lessee committed any waste or destruction; and an action on the case was then found to be much better adapted for the recovery of mere damages than an action of waste in the tenuit. It has also this further advantage over an action of waste, that it may be brought by him in the reversion or remainder for life or years, as well as in fee or in tail; and the plaintiff is entitled to costs in this action, which he cannot have in an action of waste. However, this action on the case prevailed at first with some difficulty. 3 Lev. 130. 4 Burr. 2141. But now it is become the usual action as well for permissive as voluntary waste. Some recent decisions have made it doubtful whether an action on the case for permissive waste can be maintained against any tenant for years. See 1 New Rep. 290. 4 Taunt. 764. 7 Taunt. 302. 1 Moore, 100, S. C. See also 1 Saund. 323, a., n. (i.) Where the lessee even covenants not to do waste, the lessor has his election to bring either an action on the case, or of covenant against the lessee, for waste done by him during the term. 2 Black. Rep. 1111. See, further, 2 Saund. 252, and 1 Chitty on Pl. 4th ed. 132, 133.-CHITTY.

* See 2 Bos. & Pul. 86. But the doctrine that the smallness of the damages given by the jury shall defeat the action does not extend to other actions. See 1 Dowl. Rep. 209. 2 East, 154.-CHITTY.

the court, upon which report the judgment is founded.(x) 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. (y) *229] The defendant, on the trial, may give in evidence any thing that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king's enemies, or other inevitable accident.(z) 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.(a)

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 Glocester, 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 still in being.

(*) Poph. 24.

(v) Cro. Eliz. 18, 290.

(*) Co. Litt. 53.

(a) Law of Nisi Prius, 112.

Action on the case doth not lie for permissive waste, 5 Rep. 13. Hale MSS. The case cited by lord Hale is that of the countess of Salop, who brought an action on the case against her tenant at will for negligently keeping his fire so that the house was burned; and the whole court held that neither action on the case nor any other action lay, because at common law, and before the statute of Glocester, action did not lie for waste against tenant for life or years, or any other tenant coming in by agreement of parties, and tenant at will is not within the statute. But if tenant at will stipulates with his lessor to be responsible for fire by negligence or for other permissive waste, without doubt an action will lie on such express agreement. The same observation holds with respect to tenants for life or years before the statute of Glocester; for though the law did not make them liable to any action, yet it did not restrain them from making themselves liable by agreement. At the common law lessees were not answerable to landlords for accidental or negligent burning; for as to fires by accident, it is expressed in Fleta that fortuna ignis vel hujusmodi eventus inopinati omnes tenentes excusant; and lady Shrewsbury's case is a direct authority to prove that tenants are equally excusable for fires by negligence. Fleta, lib. i. c. 12. Then came the statute of Glocester, which, by making tenants for life and years liable to waste without exception, consequently rendered them answerable for destruction by fire; but now, by the 6 Anne, c. 31, the ancient law is restored, for the statute of Anne exempts all persons from actions for accidental fire in any house, except in the case of special agreements between landlord and tenant. See 14 Geo. III. c. 78, s. 86. It was doubted under this statute whether a covenant to repair generally extends to the case of fire, and so becomes an agreement within the statute; and therefore, where it is intended that the tenant shall not be liable, it has been usual in the covenant for repairing expressly to except accidents by fire. See Harg. Co. Litt. 57, a.-CHRISTIAN.

But it is now settled that a general unqualified covenant to repair subjects the tenant to the expense of rebuilding. 6 T. R. 650. The tenant at all events continues liable to pay rent. 3 Anst. 687. 3 Dowl. 233. 1 T. R. 310. 4 Taunt. 45. 18 Ves. Jr. 115.-CHITTY. The verdict for the plaintiff in a writ of waste ought to find the place wasted. 2 Bingh. R. 262.-CHITTY.

8 But this writ of waste has also been abolished, by 3 & 4 W. IV. c. 27, s. 36; and there now only remain therefore the two remedies already referred to: the first, to restrain waste by obtaining an injunction in a court of equity; and the second, to obtain damages for the waste after it has been committed, by an action on the case in a court of law, which action lies not only against the tenant, but against any stranger by whom an act swaste has been committed.--STEWART.

CHAPTER XV.

OF SUBTRACTION.

[*230

*SUBTRACTION, which is the fifth species of injuries affecting a man's real property, happens when any person who owes any suit, duty, custom, or service to another withdraws or neglects to perform it. It differs from a disseisin, in that this is committed without any denial of the right, consisting merely of non-performance; that strikes at the very title of the party injured, and amounts to an ouster or actual dispossession. Subtraction, however, being clearly an injury, is remediable by due course of law; but the remedy differs according to the nature of the services, whether they be due by virtue of any tenure, or by custom only.

I. Fealty, suit of court, and rent are duties and services usually issuing and arising ratione tenure, being the conditions upon which the antient lords granted out their lands to their feudatories, whereby it was stipulated that they and their heirs should take the oath of fealty or fidelity to their lord, which was the feodal bond, or commune vinculum, between lord and tenant; that they should do suit or duly attend and follow the lord's courts, and there from time to time give their assistance, by serving on juries, either to decide the property of their neighbours in the court-baron or correct their misdemeanours in the court-leet; and, lastly, that they should yield to the lord certain annual stated returns, in military attendance, in provisions, in arms, in matters of ornament or pleasure, in rustic employments or *prædial labours, or (which is [*231 instar omnium) in money, which will provide all the rest; all which are comprised under the one general name of reditus, return, or rent. And the subtraction or non-observance of any of these conditions, by neglecting to swear fealty, to do suit of court, or to render the rent or service reserved, is an injury to the freehold of the lord, by diminishing and depreciating the value of his seignory.

The general remedy for all these is by distress; and it is the only remedy at the common law for the two first of them. The nature of distresses, their incidents and consequences, we have before more than once explained:(a) it may here suffice to remember that they are a taking of beasts or other personal property by way of pledge to enforce the performance of something due from the party distrained upon. And, for the most part, it is provided that distresses be reasonable and moderate; but in the case of distress for fealty or suit of court, no distress can be unreasonable, immoderate, or too large :(b) for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be such as is sufficiently compulsory; and, be it of what value it will, there is no harm done, especially as it cannot be sold or made away with, but must be restored immediately on satisfaction made. A distress of this nature, that has no bounds with regard to its quantity and may be repeated from time to time until the stubbornness of the party is conquered, is called a distress infinite; which is also used for some other purposes, as in summoning jurors, and the like.

But for a

Other remedies for subtraction of rents or services are, 1. By action of debt, for the breach of this express contract, of which enough has been formerly said. This is the most usual remedy when recourse is had to any action at all for the recovery of pecuniary rents, to which species of render almost all free services are now reduced since the abolition of the military tenures. freehold rent, reserved on *a lease for life, &c., no action of debt lay by [*232 the common law during the continuance of the freehold out of which it issued ;(c) for the law would not suffer a real injury to be remedied by an action that was merely personal. However, by the statutes 8 Anne, c. 14, and 5 Geo. III. c. 17, actions of debt may now be brought at any time to recover

() 1 Roll. Abr. 595.

such freehold rents. 2. An assize of mort d'ancestor or novel disseisin will lie of rents as well as of lands, (d) if the lord, for the sake of trying the possessory right, will make it his election to suppose himself ousted or disseised thereof. This is now seldom heard of; and all other real actions to recover rents, being in the nature of writs of right, and therefore more dilatory in their progress, are entirely disused, though not formally abolished by law. Of this species, however, is, 3. The writ de consuetudinibus et servitiis, which lies for the lord against his tenant who withholds from him the rents and services due by custom or tenure for his land. (e) This compels a specific payment or performance of the rent or service; and there are also others, whereby the lord shall recover the land itself in lieu of the duty withheld. As, 4. The writ of cessavit; which lies by the statutes of Glocester, 6 Edward I. c. 4, and of Westm. 2, 13 Edw. I. c. 21 and 41, when a man who holds lands of a lord by rent or other services neglects or ceases to perform his services for two years together; or where a religious house hath lands given it on condition of performing some certain spiritual service, as reading prayers or giving alms, and neglects it; in either of which cases, if the cesser or neglect have continued for two years, the lord or donor and his heirs shall have a writ of cessavit to recover the land itself, eo quod tenens in faciendis servitiis per biennium jam cessavit.(ƒ) In like manner, by the civil law, if a tenant who held lands upon payment of rent or services, or "jure emphyteutico," neglected to pay or perform them per totum triennium, he might be ejected from such emphyteutic lands.(g) But, by the statute of Glocester, the cessapit does not lie for lands let upon fee-farm rents, unless they *233] have lain fresh and uncultivated for two years, and there be *not suffi cient distress upon the premises; or unless the tenant hath so enclosed the land that the lord cannot come upon it to distrain.(h) For the law prefers the simple and ordinary remedies by distress or by the actions just now mentioned to this extraordinary one of forfeiture for a cessavit: and therefore the same statute of Glocester has provided further, that upon tender of arrears and damages before judgment, and giving security for the future performance of the services, the process shall be at an end, and the tenant shall retain his land; to which the statute of Westm. 2 conforms so far as may stand with convenience and reason of law.(i) It is easy to observe that the statute(k) 4 Geo. II. c. 28 (which permits landlords who have a right of re-entry for nonpayment of rent to serve an ejectment on their tenants when half a year's rent is due and there is no sufficient distress on the premises) is in some measure copied from the antient writ of cessavit: especially as it may be satisfied and put an end to in a similar manner, by tender of the rent and costs within six months after. And the same remedy is, in substance, adopted by statute 11 Geo. II. c. 19, § 16, which enacts that where any tenant at rackrent shall be one year's rent in arrear, and shall desert the demised premises, leaving the same uncultivated or unoccupied, so that no sufficient distress can be had; two justices of the peace (after notice affixed on the premises for fourteen days without effect) may give the landlord possession thereof, and thenceforth the lease shall be void. 5. There is also another very effectual remedy, which takes place when the tenant upon a writ of assize for rent, or on a replevin, disowns or disclaims his tenure, whereby the lord loses his verdict; in which case the lord may have a writ of right, sur disclaimer, grounded on this denial of tenure; and shall upon proof of the tenure recover back the land itself so holden, as a punishment to the tenant for such his false disclaimer.(1). This piece of retaliating justice, whereby the tenant who endeavours to defraud his lord is himself deprived of the estate,

Now formally abolished, 3 & 4 W. IV. c. 27, s. 36.-STEWART.

And see by 57 Geo. III. c. 52, which gives similar power though only half a year's rent is in arrear, and although no right of re-entry be reserved.-CHITTY.