In waste the plaintiff counted of the lease of a mill for term of years and assigned waste committed in the floodgates and other things belonging to the mill. And the defendant said that there had been an agreement out of court between the plaintiff and the defendant that he would repair the floodgates in recompense for the remainder of the waste that he had committed and asked for judgment if the action lay and pleaded all this in certain.
Keble. It appears that the plea is good for waste is something done only to a person for if waste was done in the father’s time the son will not punish this waste after his death because it is a personal punishment and is not something which can descend. And in ravishment of ward an agreement out of court is a good plea and the same applies in ejectione firme even though the action is to recover the remainder of the term and it is still a good plea. So too in an assize of novel disseisin brought by tenant by statute merchant or elegit but brought by an ordinary tenant of the free tenement he doubted. So in waste on a lease for life he doubted if an out of court agreement was good. But here it seems a good plea for we have carried out the agreement which was of something that was burdensome to us, though perhaps a nude agreement without specialty would be ineffective. And it seemed to him clearly without doubt that if the writ was brought against a tenant for waste before the end of his term that such an agreement would be a bar.
WOOD, J. To the contrary for the wrong is committed against the inheritance as well as against the person and this sounds in realty and by this wrong the plaintiff is attempting to recover by this kind of action the place wasted and in such a case where one is attempting to recover the matter being claimed an out of court agreement cannot be pleaded because it is an action to recover the thing being claimed. But in such cases where the nature of the action is only to recover damages an out of court agreement will perhaps be good (as in ravishment of ward, entry on the statute of king Richard or 8 Henry and thus a difference; why?)
VAVASOUR, J. (to the contrary). In this case the plea seems good because the action is brought against a termor for a term of years but it is other against a tenant for life because the plaintiff is acting to recover the free tenement. But here the action is wholly in the personalty because he will only recover a chattel for although summons and severance lie that is no argument for the action being real for in ravishment of ward summons and severance lie but the action is still personal. At Common Law there was only a prohibition of waste and that against the guardian in chivalry and tenant in dower and then came Westminster II which said ‘in future there will not be a writ of prohibition but only a summons’ and the statute of Gloucester which gave recovery of the place wasted. Thus the penalty was enlarged by statute but the nature of the action was not changed, which at Common Law was only personal. And so if an abbot has released all personal actions that will be a bar to action to him and also to his successor for damages but in respect of the land no bar to his successor although a bar to him for both. And it has been adjudged that if an abbot avow for service and has judgment for a return there will be no enquiry as to collusion and the same law applies in an action of waste if he declares on a lease for term of years. And this matter was agreed on a declaration made against a termor in 3E.4when the serjeants were created and the writ of waste brought by the abbot was in the tenet and not in the tenuit for it seems that this would perhaps have altered the case. And the reason why there will be no enquiry into collusion in these cases is because the actions are purely personal and there is no decision relating to the free tenement. Sir, in an action relating to permissive waste it is a good bar for the defendant to plead that prior to the acquisition of the writ he has rebuilt the house; so in the same way that the defendant can by his own action do something after the waste that bars the plaintiff so (and a fortiori) it also seems that he can do something in bar after the waste with the agreement and consent of the lessor and so etc.
TOWNSHEND, J. To the contrary as the waste is supposed to be ‘to the disinheritance’ and thus the prohibition was at common law and sounds wholly in realty. And even if the right to secure punishment cannot descend it is still clear that the wrong was done ‘to the disinheritance’ and a nude out of court agreement cannot bar. Moreover, the performance of the agreement is alleged to be in a part of the things in which the waste was assigned and so the repair of this part cannot by any means be said to be a recompense for the remainder; but if it was elsewhere in something where no waste was assigned there would be at least a colourable argument; so it seems that the plea is bad.
BRYAN, C.J. was clearly of the same opinion but he did not argue because he got up and went off to Chancery.
Then on another day
BRYAN, C.J. In a writ of waste one cannot assign waste in young oak trees, namely those only seven or eight years old, and on that I have this day seen books (reports) and thus it seems to be the law. Because waste will only be said for matters prejudicial to the inheritance, as for example houses, great oaks and the like but not of little things like young oaks and the like. Moreover the writ of trespass does not lie as between lessor and lessee for things for which the action of waste lies. So how will you have an out of court agreement to lie in a case where a writ of trespass does not lie but a writ of a higher nature touching the free tenement? So it seems to me clear that the plea is not good.
Danvers. If the lessee commits waste in respect of a house and builds a new house before the writ is acquired the action will not lie because the lessor has sufficient recompense in the law’s understanding. The like applies if the lessee builds a new house elsewhere than where the old house was, if this was by agreement with the lessor. Consequently also if the lessor reaches an agreement with him for some other recompense. So the plea seems to be a good one.
Keble (ad idem). Although the harm done was done to the inheritance, the recovery was wholly in damages at Common Law though now it has been enlarged by statute to recovery of the place wasted, and treble damages in lieu of the single damages at Common Law. But the nature of the action at Common Law remains the same even the penalty has been enlarged by the statute. And supposing that the harm or damage done to the inheritance was done by a stranger while the land was in the possession of the lessor without there being a lease, as for example by the cutting down of great oaks or demolition of a house, he would have no remedy other than an action of trespass, in which action you are all agreed that an agreement would be a good plea, but there as great a harm would be done to the inheritance or greater than here. He also said that the floodgates were not among the matters assigned as waste, as Townsend took the case to be.
Townsend. Then the case is the better for that but because the case is still one that greatly touches the inheritance the plea seems to be insufficient (and Brian conceded this).
So Keble because of the opinion of these two did not dare to demur but pleaded only in respect of a cartload of clay and said that he would plea to jeopardy on that to clarify the law; and pleaded over on the remainder.
See the beginning in 11 H.7 13
Citations:
[1498] (recte 13 H.7. 20) [Co. Litt. 53a (c)]
Jurisdiction:
England and Wales
Cited by:
Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 06 May 2022; Ref: scu.196992