[TENANT AND LANDLORD.] Tenants in tail, as they have estates of inheritance, are entitled to commit every kind of waste; but this power continues and can be exercised only during the life of the tenant in tail. When it is said that a tenant in tail may commit every kind of waste, the meaning is that he can do those acts to the land which tenants who have not an estate of inheritance cannot do. Tenants in tail after possibility of issue extinct, are not impeachable for waste, but, like tenants for life when their cs tates are given without impeachment of waste, they may be restrained from wilfully destroying the estate. (2 Cha. Ca. 32.) A mortgagee in fee in possession has a right at law to commit any kind of waste, being then considered as the absolute owner of the inheritance ; but he will be restrained by a court of equity, which will direct an account of timber cut down, and order it to be applied in reduction of the mortgage debt. (2 Vern. 392.) Copyholders cannot, unless there be a special custom to warrant it, commit any kind of waste, and every species of waste not warranted by the custom of the manor operates as a forfeiture of the copyhold. (13 Rep., 68.) The original remedy for waste was that under the statute of Marlbridge, 52 Henry III. c. 24, which gave to the owner of the inheritance an action of waste against the tenant for life, in which he was entitled to recover full damages for the waste committed. But as this remedy was often found inadequate, it was enacted by the statute of Gloucester, 6 Edw. I. c. 5, that the place wasted should be recovered, together with treble damages for the injury done to the inhe ritance. No person was entitled to an action of waste against the tenant for life under these statutes, except him who had the estate of inheritance immediately ex pectant on the determination of the estate for life ; so that if there were an existing estate of freehold interposed between the estate for life and that of inheritance, the right of action was suspended. (1 Inst., 53, b.) The action of waste had long given way to the much more expeditious and easy remedy by an action of trespass on the case in the nature of waste, which may be brought by the person in rever sion or remainder for life or for years, as well as in fee, and in which the plain tiff is entitled to costs, which he could not have in an action of waste (2 Saund., 252, n. 7); and the writ of waste is now finally abolished by the 3 and 4 Wm. IV. c. 27, s. 36. It seems that there was formerly no remedy for mere permissive waste after the death of the tenant, though if the estate of the tenant was be nefited by the injury inflicted, as if money was derived to it from the sale of trees cut down, an action for the value of the property might have been sustained against the executor. (Cowp. 376.) Now however, by the 3 and 4 Wm. IV. c 52, s. 2, remedies by action of trespass or trespass on the case are given against the executors of any deceased person for any wrong committed by him in his life time against the real or personal property of another within six months of his death, provided the action be brought within six months after the personal represent atives have taken upon themselves the administration of the estate.
But the most complete remedy in cases of waste is that in the Court of Chancery, which, upon application to it by bill, will not only direct an account to be taken and satisfaction to be made for the da mage done, but will interpose by way of injunction to restrain the commission of future waste. A Court of Equity will grant its assistance against the commis sion of waste wherever the case appears to require it, even though the plaintiff is not in a condition to maintain an action at law. (3 Atk., 91, 211, 723). The
court will also grant an injunction against waste pendente lite ; and in such cases it is not necessary that the plaintiff should i wait till waste is actually committed ; it is sufficient if an intention to commit waste appears, or if the defendant insists upon his right to do so. (2 Atk. 182.) It has long been usual when estates for life are expressly limited, to insert a clause declaring that the tenant shall hold the lands " without impeachment of waste." These words were originally intended merely to exempt the tenant from the penalties of the statute of Marl bridge, though it has long been settled that they enable him to cut down timber and to convert it to his own use ; but he may be restrained in equity from com mitting malicious waste so as to destroy the estate, or cutting down timber, which serves for shelter or ornament to a man sion-house, or timber unfit to be felled. (2 Vern. 738 ; 3 Atk. 215.) This is what is called the doctrine of Equitable Waste. The privileges of the tenant for life under the words " without impeach ment of waste" are annexed in privity to his estate, and determine with it. Thus it seems that if a lease were made to one for the life of another without im peachment of waste, with remainder to him for his own life, he would become punishable for waste, the first estate being merged in the second. (11 Rep. 83, h.) Ecclesiastical persons, who hold lands in right of a church, are disabled from committing waste, though, like other tenants for life, they have the right to take from the land materials for necessary repairs. They may not only fell timber and dig stones for that purpose, but have even been allowed to sell timber or stone, when the money was to be applied in re pairs; also, though they cannot °pea mines, they may work those already open. (Amb. 176.) Ecclesiastical persons may be pro ceeded against for waste in the civil as well as the ecclesiastical courts. It has been held that an action on the case will lie against them for dilapidation, and may be brought by the successor to a benefice either against his predecessor or his per sonal representatives. (3 Lev. 268 ; 2 T. R. 630.) It seems doubtful whether the courts of common law have any power to issue a prohibition against the com mission of waste by ecclesiastical persons. (1 Bos. and Pull. 105.) But there is no doubt as to the jurisdiction of the Court of Chancery to grant an injunction against any ecclesiastical person whatsoever to stay waste in cutting down timber, pull ing down houses, or opening quarries or mines on the glebe. The proper person to make the application is the patron of the living, or, when the living is in the crown, or the application is made against a bishop or a dean and chapter, the attor ney-general on behalf of the crown. (3 Mer. 421.) But the patron of the living in such cases has no right to an account, for he cannot have any profit by the living. (Amb. 176.) An injunction has been granted against waste by the widow of a rector during the vacancy of the living. (2 Bro. ec. 5, 62.) By the 56 Geo. III. c. 52, the incumbents of bene fices are enabled to cut down timber on the glebe-lands for the purposes of the statute (55 Geo. III.) enabling them to exchange their parsonage-houses or glebe lands.
Tenants in tail and tenants in fee have the inheritance in the land, and they are the real owners. Those who have less estates are in the situation of the Roman Usufractuarins. [Ususitucrus.] (See Bacon's 'Abridgment,' art. Waste.)