Jurisdictions, Part 137
Waſte.
And in ſo much that you ought to inquire, if any Farmer which hath part of the Demeſnes of your Lordſhip, hath made waſt, or any Copy-holder, (unleſſe by the Cuſtom of the Mannor he may make waſt) if any of them have made waſt or not. Firſt let us ſee what is waſt in Land, and to be puniſhed, and what not.
IT is not waſt to ſuffer the arable Land to lie freſh, ſo that it is full of thorns, Fitz. fol. 59. N. 2. H. 6. fol. 11.
To ſuffer a Meadow to be drowned which is ruſhie or little worth, or arable land to be drowned, that nothing remains but tough Clay; this is waſt, 20. H. 6. fol. 1.
15. H. 3. Tit. 131. Waſt was brought for making meadow arable, by Plowd. 2. and it ſeems it lies.
If a Farmer plough meadow, it is waſt, Fitzh. fol. 59. N. and 15. H. 3. tit. 131. the ſame, 12. H. 8.
If a Farmer do not repair banks of his Land in Leaſe, by which the Land is drowned, or if he dig for Copper or Stone, or Coals, it is waſt, Fitzh. fol. 59. N. 20. H. 6. fol. 1.
Waſt lies againſt a Farmer, for fiſh in a Poole, 6. R. 2. Statham.
If there be a Myne in the Land, if the Farmer dig the Land, and take it, it is waſt, 9. Ed. 4. fol. 35. B.
Raiſing up a Furnace fixed, is waſt, 42. Ed. 3. fol. 6.
What is waſt in houſes, to be puniſhed, and what not.
IF a houſe be uncovered by ſuddain tempeſt, it is not waſt; but if the Leſſee ſuffer that to be uncovered, that the timber rot, it is waſt, and if the houſe fall by ſuddain tempeſt it is no waſt, 12. H. 4. fol. 4.33. H. 6. Tit. 155. B. By Danby and Choke. If ſtrangers, enemies of the King deſtroy a houſe, or that it be blowen down by ſuddain tempeſt, waſt lies not; contrary where it was by enemies, traitors, ſubjects, 12. H 8. fol. 1. See the time of Ed. 1. tit. 123. where it was burnt by I. S. his Neighbour by miſchance.
It ſeems that not covering of a houſe is no waſt, till the great beam of that is rotten, 10 H. 7. fol. 2. B.
It ſeems waſt may be aſſigned, in breaking a ſtone-wall, and alſo in a mud-wall, for that it is fixt to the free-hold. But the Leſſee may plead that the leſſor licenſed him to break it down, and this is a good barre. And adjudged that if a houſe be not. covered at the time of the Leaſe made, the Leſſe is not bound to cover that: and alſo if a houſe were curious at the time of the Leaſe made, that is a good barr to plead in waſt, 10 H. 7. fol. 2. B. 40 aſſiſ. 22. the ſame, and 10 H. 7. fol. 5. the ſame where a houſe falls by tempeſt, though the leſſee Covenant to repair it, he may plead in barr in a writ of waſt, that it fell by tempeſt, though he cannot plead it in a writ of Covenant, 40. Ed. 3. fol. 6.
If a Farmer build a houſe, where there was none before the Leaſe, and ſuffers that to decay, it is waſt, 11 Ed. 2. Statham, 12 H. 4. fol. 6. the ſame, 42 Ed. 3. fol. 21. the ſame, & 17. Ed. 2. tit. 118. the ſame.
If waſt in a houſe be repaired, hanging the writ of waſt, it is not to purpoſe; but if it were repaired before a writ purchaſed, it is otherwiſe, 38. Book of Aſſiſ. 1. 21. H. 7. fol. 26. by Kingſmill, and not denyed, that a furnace fixed by a Farmer, and not to the walls, Poſts, and ſuch like, by him fixed, and taken away within his tearm, is no waſt, for the houſe is not impaired. But where Tenant in Fee fixes a furnace in the midſt of the houſe, the Heire ſhall have it, and not the Executors: the ſame Law if a Fat fixt in a Brew-houſe.
34 Ed. 3. Tit. 3. where a houſe falls by great wind or tempeſt, it ſeems the leſſor ſhall have the great Timber, for that is not waſt, and the leſſee ſhall not build that, 11 H. 4. fol. 21.
9 H. 6. fol. 52. Leaſe to a woman unmarried which takes a Husband, which builds a houſe and dies, the woman ſhall be charged with that in waſt, 47. book of Aſſ. 22. If Poſts of a houſe be and the reſt is fallen, if the Guardian take away the Poſts it is no waſt; for it is no houſe when it is not walled nor covered, and if one take away a frame of a houſe which was newly built and never covered, it is no waſt.
What is waſt puniſhable in woods, and what not.
IF a ſtable were ruinous, at the time of the Leaſe and falls, the leſſee may cut trees, and make a new houſe; but if no houſe were there before, he cannot cut Trees to make a new houſe, as it ſeems 11 H. 4. fol. 32.
The farmer may cut trees to amend his houſe, and make reparations; but if the houſe be decayed by the default of the farmer, then if he cut trees to repair that, it is waſt, Fitz. 59. K.
Cutting of dead wood by a Termor is no waſte. And if a man cut wood to burn, where he hath dead wood ſufficient, that is waſt, and it is no waſt to cut ſeaſonable wood, which is uſed to be cut every 20. years, or within that time, Fitzh. fol. 59. M.
It was agreed that young Oaks of the age of 20. yeares, nor under 20. yeares, could not be cut by a Farmer for years, nor for life, for they may be Timber, and by this cutting they will never grow to be Timber: time of H. 8. tit. 334. b. ſee 11. H. 6. fol. 1. cutting Willowes within the view and ſight of a Mannor, is waſt. 40. Ed. 3. fol. 15. B.
Cutting of Hazels which do not grow under great Trees, but in a quarter of a wood is waſt, 40. Ed. 3. fol. 25. b. 10. H. 7. fol. 2. the ſame, Fitz. fol. 6. E. the ſame.
Cutting under wood is no waſt, but barking them that they do not grow again is waſt. 42. Ed. 3. fol. 6.
A man cannot aſſign waſt in cutting young Oaks, that is of the age of 7. or 8. yeares, 13. H. 7. fol. 21. by Brian, contrary before the time of H. 1.
Cutting within the age of eight and ten yeares of young Oaks is waſt, becauſe they can never come to be Timber Ed. 46. tit. 13
Young Oaks of the age of twenty yeares and under, Farmer may cut, and it is not waſt, but Martin ſaith, that is in a Country where there is plenty of Wood, if Oakes paſſe the age of twenty yeares they cannot be cut as ſeaſonable for houſe-boote, but by Martin, Wrang-lands of the age of twenty yeares, which can never be Timber, cutting of them for firing is no waſt, 11 H. 6. fol. 1 by the Court.
Oakes of the age of ſixteen yeares may be cut for fuell, for that they are but falling Woods, 21 H. 6. fol. 53. by Newton.
4 Ed. 3. f. 22. Journey to Darby, fol. If a man make waſt in a Mill, and cut Trees to mend it, this cutting is waſte,
12 Ed. 3. tit. 28. Waſt, He cannot cut the Trees to cover the Houſes, and ſell away the old Timber.
Cutting ſmall Trees and ſelling them away is waſt, but a Farmer may cut them to make reparations upon the ſame Land let, but not to repaire other Land, cutting young Samples within the age of ten yeares ſeaſonable, for houſe-boot is no waſt, but where they were of the age of twenty yeares, and able to make great Timber is waſt, 7 H. 6. f. 40.
Termor may take ſmall Trees and ſuch like, which are ſeaſonable, which have been uſed to be felled every 20, 16. 14, or 12. yeares, and is no waſt: For it is called falling wood, 4 Ed. 6. tit. 136.
Where Oakes are cut, and ſuffering the Springs to be eaten with Beaſts that they will not be Timber afterwards but ſhrubs, it is waſt, 11 H. 6. f. 1.
One may aſſigne waſt in a hundred Oaks cut, and alſo in the Stocks of the ſame Oaks, that is in ſprings growing upon the ſame Oakes, for if ſo be they were ſaved they would be Timber, and for that, that they are not, it is waſt, 22 H. 6. f. 14.
Cutting green wood, where there is dead wood for firing, is waſt, 23 Ed. 3. tit. 32.
Cutting Sances is no waſt, 8 Ed. 2. tit. 111.
Cutting Wood to burn where there is dead wood ſufficient is waſt, but not waſt to cut ſeaſonable wood which is uſed to be cut every twenty yeares, or within the time, Fitzh. f. 59. M.
Cutting white Thorn is waſt, and not black Thorn, 46 Ed. 3. f. 17. But ſee, 9 H. 6. f. 10.
What waſt in Gardens is puniſhable, and what not.
WHere Apple Trees fall with great winde, and after become dry, the Termor may take them for Fuell, 7 H. 6. f. 40.
Cutting Apple Trees which have fallen upon Props, and bear Fruit, is waſt, 44 Ed. 3. f. 44.
Cutting Apple Trees and Plum Trees is waſt, 10 H. 7. fol. 2.
If a houſe and wood are let, he cannot cut Apple trees to amend the Houſe if he have Wood, for if he do it is waſt, time Ed. 1. Title 122.
For what waſt Termor ſhall be puniſhed, and for what not.
IF a Termor for life make waſt, and after ſurrender his eſtate, and the Leſſor accept it, the Termor ſhall not be puniſhed for that waſt, Natura brevium f. 36 B. 14 H. 8. fol. 111. By Pollard, but ſee 8 H. 5. fol. 8.
If a ſtranger make waſt upon the Land which one holds for life or for yeares, the Farmer ſhall be puniſhed for this waſt, 5 H. 4. f. 3. and 3 H. 6. fol. 17. B.
If a Leſſor himſelf make waſt the Termor ſhall not be puniſhed for that waſt, 5 H. 4. f. 3.
If a ſtranger make waſte upon the Land in ward, the Guardian in Socage ſhall not be puniſhed for this waſte, Fitzh. f. 60. G.
Where waſte is made by Enemies, or Tempeſt, the Termor is not puniſhable for his waſte, Fitzh. f. 59. L.
If a Termor make waſte before that he attorn, he ſhall not be puniſhed for that waſte, 48 Ed. 3. f. 15.
If a Leſſor covenant to deliver great Timber of the ſaid Land to repair the Houſe let, and will not, and for lack of that the Leſſee will not repair that, but ſuffers the Houſe to fall, he is puniſhable for this waſte: but if the great Timber were to be taken from other Land, and is not delivered, this excuſes him, and he is not puniſhable for this waſte, 44 Ed. 3. f. 21.
If Land be let to a lone Woman, and ſhe takes a Huſband which makes waſte and dies, ſhe ſhall be puniſhed for that waſte; but if the Leaſe were made to the Husband and his Wife, and he makes the waſte and dies, for that waſte ſhe ſhall not be puniſhed, Nat. brev. f. 36. B. 3 Ed. 3. Tit. 20.
Regiſter, f. 72. againſt the Husband and the Wife, ſummoned B. and E. his Wife, that they be, &c. to ſhew why they made waſte, &c. of Lands, &c. which they held for the Dower of the ſaid E.
Regiſter, fol. 74. againſt a Woman, Summon B. which was the Wife of C. that ſhe be, &c. to ſhew wherefore, &c. of the Houſes, &c. which ſhe holds for her life, by a Leaſe, which D. thereof made to the ſaid B. and the aforeſaid C. ſometime her Husband, and to the Heirs of the ſaid C.
14 H. 8. f. 12. When the terme of years is ended, the Writ ſhall be which he held, and where it is during the terme, ſhall be which he holdeth:
40 Ed. 3. f. 23. Where the terme paſſes, and where the Infant is of full age, it ſhall be againſt the Guardian and Termor, which they held.
41 Ed. 3. fol. 23. Againſt Tenant for life the forme is, which he holds for terme of his life, 40 Ed. 3. f. 33. 14 H. 6. f. 14. the ſame.
46 Ed. 3. f. 25. If a Leaſe be made to one for life, which grants over his Eſtate, the VVrit ſhall ſay, (which he holds) but where a Leaſe is made for anothers life, and he for whoſe life dies, the VVrit ſhall ſay, (he held) by Finchden, and not denied. And if a Leaſe be made to a woman for years, which takes a Husband, before the terme ended, which makes waſte, and the VVife dies, waſte lies againſt the Husband for the occupation. See Brook, Tit. 47. The ſame Law where a Leaſe was to the VVoman for life, which takes a Husband, &c.
Nat. Brev. f. 36. If Land be let to a ſingle VVoman, and ſhe take a Husband, and the Husband makes waſte, and dies, the Wife ſhall anſwer for this waſte; but otherwiſe it is where the Land is let to the Husband and his Wife, for terme of their two lives, and the Husband makes waſte, and dies, the wife ſhall not anſwer for that waſte, for it was the folly of the Leſſor to let that to him, 15 H. 3. Tit. 133. Fitzh.
Time of Ed. 1. Tit. 128. Fitzh. If a woman Tenant for life take a husband which makes waſte and dies, it ſeems that the woman ſhall be charged of that, for that, that the woman agreed to the Leaſe after the death of her huſband, 10 E. 3. Tit. 17. & Tit. 21. & 133.
23 H. 8. Tit. 138. If a ſingle woman Tenant for life takes a husband which makes waſte and dies, Action of waſte lies againſt the wife; but if a Leaſe be made to the husband and the wife, and the husband makes waſte and dies, it is otherwiſe, and held there for Law, that if the Termor make waſte, and make his Executors, and dies, the Action of waſte is gone, for it is as a Treſpaſſe which is a perſonal Action which dies with the perſon, but if the Executors make the waſte, it lies againſt them:
Fitzh. f. 56. A. If a Guardian in Knight-ſervice grant over his Eſtate, and the Grantee makes waſte, the writ of waſte ſhall be brought againſt the Grantee, and not againſt the Guardian, but if the Guardian make waſte, and after grant over his Eſtate, waſte lies againſt the Guardian, and not againſt the Grantee: and ſo where Tenant for life, or for years, makes waſte, and grants over his Eſtate, the writ of waſte lies againſt him that made the waſte, but waſte ſhall be alwayes brought againſt Tenant in Dower, or Tenant by the Curteſie, notwithſtanding their Grant over, Fitzh. 550. Regiſter, fol. 72.
40 Ed. 3. Tit. 33. Waſte againſt Tenant for life, it is no Plea to ſay, that he had nothing in the Tenancy, Day of the writ purchaſed, nor ever after; for if he hath made waſte, and granted his Eſtate over, yet he ſhall anſwer for this waſte, and though the writ be. (which he holdeth) it is good; and by Finchden, waſte is a writ of Treſpaſſe in his nature, and cannot be brought but againſt him which is Tenant when the waſte was made, unleſſe he be Tenant by the curteſie, or Tenant in Dower, 41 Ed. 3. fol. 23. & 44 Ed. 3. fol. 21.
Fitzh. 55. C. In waſte againſt Tenant in Dower, the Statute need not be rehearſed, nor in waſte againſt Guardian, but againſt Tenant for life, or for years, by Demiſe, ſhall be rehearſed.
Fitzh. 56. C. In waſte againſt Tenant by the curteſic without rehearſing the Statute, that is, without, when of the common Councel of our Kingdome of England, it is good, and ſo it ſeems it is, if it be rehearſed. Every writ of waſte is to the diſ-inheriting of him which brought the writ, and for that it ſhall be ſhewed in the writ, though the Plaintiff hath Reverſion by the Aſſignement of the Leſſor.
Fitzh. 58. A.B.C.D.E. Regiſter, 74. & 75. And the writ of waſte is of me, that is, the Plaintiff holds, and for that it is ſhewed, by Aſſignement, as 46 Ed. 3. f. 25. Waſte by the Aſſignement of the Defendant, Dd. that you have it by Aſſignement, and the Plaintiff ſhews that he had a Feoffment and Livery, ſaving the terme, and good. Alſo it ſhall be ſhewed in the writ of whoſe Demiſe the Defendant hath it, that is, as by the Demiſe of another. Fitzh. 57. A.B.C.D.E. Regiſter, 745. that is, for the Plaintiff is to recover the place waſted, 34 H. 6. fol. 6. Tit. Waſte Brook 121.
11 H. 6. f. 8. If waſte or (Quare ejecit infra terminum) be brought, and the terme ends, hanging the writ, the writ ſhall not abate; for though he cannot recover the place waſted, he ſhall recover Damages. Alſo if waſte be brought (Quas tenuit) after the terme ended, he ſhall recover Damages, though he do not recover the place waſted. So where one which holds for terme of anothers life makes waſte, and after he for whoſe life dies, the Leſſor ſhall recover Damages, though he do not recover the place waſted, Fitzh. 60.
10 H. 6. fol. 8. Waſte, ſuppoſed, by the writ that the Defendant hath that by Legacy of one ſuch anceſter of the Plaintiff, for that, that the cuſtome was ſo that he might deviſe, and good.
8 Ed. 2. tit. 112. Waſte was found in a Houſe, which was principal, and the Plaintiff by Award recovered all the Houſe.
15 H. 7. fol. 11. By Fineux, where a Farmer of a Wood makes waſte in one corner, this onelyonly is forfeited; but if it be in divers places of the Wood, all is forfeited, and the plots in this alſo, 15 Ed. 3. Tit. 108. See the time of Ed. 1. Tit. 122: VVaſte againſt Guardian.
4 Ed. 6. Tit. 136. By Bromley, if a man make waſte in hedge-rowes, which incloſe a Paſture, nothing ſhall be recovered but the place waſted, that is, the circuit of the Root, and not the whole Paſture, 41 Ed. 3. Tit. 24. B.
Fitzh. 60. T. If a Guardian make waſte, and the Heir being within age, bring a writ of waſte, by this the Guardian ſhall looſe the VVardſhip, and over that his Damages, to as much as the waſte amounts unto. But if the Heir were of full age, that he looſeth not the VVardſhip, then he ought to recover treble Damages, for that that he cannot looſe the VVardſhip, according to the Statute of Gloceſter.
43 Ed. 3. f. 6. VVaſte, it is a good Plea in Barr, that the Houſe fell by Tempeſt, and if he covenant to repair that, it is no plea in Covenant.
49 Ed. 3. fol. 1. VVaſte, it is a good Plea, that at the time of the Leaſe, that the houſe was weak, and that the great Timbers were rotted, that it fell; for if any the principal Timbers were rotten, it is no waſte, though he covenant to repair it.
8 H. 6. f. 57. Waſte, it is a good Plea, that the Plaintiff hath entered into the Land, before which Entry, no waſte made.
8 H. 5. f. 8. Waſte, it is a good Plea, that he ſurrendred, to which the Plaintiff agreed, before that no waſte made.
9 H. 6. f. 11. Waſte by the Heir is a good Plea, that the Plaintiff hath an elder Brother which ſurvived the Plaintiff, and after died, after whoſe Death no waſte made, and a good Plea.
44 Ed. 3. f. 27. Waſte againſt a Guardian in Knight-ſervice, who ſaith, that after the Death of the Anceſtor, J. F. (abated) againſt whom the Defendant recovered in a VVrit of VVard, after which Recovery no waſte made, and it is a good Plea.
12 H. 4. f. 6. VVaſte, it is a good Plea, that that fell before the Leaſe.
19 H. 6. fol. 66. VVaſte, that he ſuffered the Houſe to be uncovered, by which the great Timber rotted; it is no Plea to ſay, Day of the VVrit purchaſed, the Houſe was ſufficiently repaired; but to ſay, after the waſte, and before the VVrit purchaſed, it was ſufficiently repaired.
8 H. 6. fol. 61. VVaſte, held where Land is given to the Husband and the VVife, and the Heirs of the VVife, and the Husband diſcontinues in Fee, and takes an Eſtate for life, and the VVife dies, the Heir of the VVife ſhall not have waſte, before that he hath purged the Diſcontinuance, 8 H. 6. f. 63.
Fitzh. 59. E: The heir within age ſhall have a writ of waſte, againſt a Guardian in Socage, 2 Ed. 2. Fitzh. the ſame, Nat. bre. 58. If a Guardian in Socage make waſte, the Heir when he cometh to full age, ſhall have an action of account for that.
14 Ed. 3. tit. 107. It ſeems that waſte lies againſt a Guardian in Socage, tit. 100. Fitzh.
Fitzh. 58. H. There is a writ of waſte in the Regiſter, for him in reverſion, againſt tenant by Elegit, which hath the Lands in execution, but it ſeems he ſhall not have waſte, for that, that he may have a venire facias to account, and there the waſte ſhall be recompenced in the debt, but by the action of waſte, he ſhall recover treble damages, which he ſhall not have in the account.
Nat. Bre. fol. 37. waſte doth not lie againſt tenant by Elegit, nor againſt tenant by Stat. Merchant; but if they make waſte account lies, 42 Ed. 2. tit. 11. fol. If a Leaſe be made to one to uſe it in the beſt way that he can, now he cannot make waſte.
17 E. 3. tit. 101. If a Leaſe be made to one, ſo that he may make his profit of that, &c. yet it ſhall not be intended, ſuch as common right gives him; for he cannot pull down abouſe and make waſte.