A writ of waste was brought alleging that waste had been committed in respect of a building etc. and also in respect of wood, namely certain trees. And in the count in respect of the trees he counted that the defendant cut down the trees and sold them. With respect to the building he pleaded that he had committed no waste; with respect to the cutting down of the wood, namely the trees, the defendant pleaded justification because at the time of the making of the lease the building was ruinous in the ‘grunsels’ of the building and so the defendant cut down the trees to repair the building and with the said trees he erected the ‘grundsels’ of the building.
Littleton. That is no plea because he does not respond to our action, namely the sale to which an answer ought to have been given, because if he cut the trees to make repairs and sold them before he did so the cutting cannot be justified; and so it is necessary to answer with respect to the sale as well as to the cutting.
Catesby. Although we sold the trees that is no wrong in us when we made repairs with them for now the sale is not material when repair has been made with these trees; for if I waste a building and knock it down and before an action of waste is sued against me I make another and better building I will not be punished for the waste so that, although the defendant made the said sale because it is not denied that he made repairs with them it will not be called waste because of the repair.
NEEDHAM, J. The cutting of the trees to make repairs with them is well done but if he makes the sale before the repairs are made with the wood, namely of the trees, yet the sale made beforehand is wrong and waste and however the lessee gets these trees back by gift or purchase or otherwise and make repairs of a building that is included in the lease even if this excuses the waste of the building it does not excuse the waste of the wood.
DANBY, C.J. By the sale of the trees there is at once waste even if he afterwards recovers the same trees by gift, exchange or sale or otherwise and repairs of the building are made with them yet this does not excuse the waste that was previously made by the sale because the cutting of the wood to make repairs is not justifiable nor will such cutting ever excuse the waste committed unless repairs were actually made with them, because even if he cut the trees intending to make repairs with them and then the lessee puts them to his own use or sell or give them or lets them rot or perish and does not put them into repairs that is waste and once it is accounted waste it cannot be purged by the subsequent repair. And this situation is not like to the situation alleged where a building is knocked down by the lessee and a new building erected before action commenced for there is no waste if this building is as good as the other. But that is not the case here because even if the waste of the house is excused by the repair made with the trees so that in respect of the building it is true that no waste has been committed yet where trees were growing and cut and sold that is waste even if the trees were used in the repair of the building, so that the waste of the building is excused by this but where the trees were growing is waste because no new trees are growing there and so this was initially waste through the sale and so at all times afterwards it will be regarded as waste for the repair of the building with them only excuses that waste but if there had been no sale then the cutting of the wood and the repair made with it of the building, then the waste of the house and the wood is excused by the repair made and so in the case before of a declaration of the cutting of the trees and the sale of this wood this is waste and cannot be excused afterwards and so the sale is material.
Catesby. If you bring an action against me for land such as an assize or the like and I plead in bar that the plaintiff enfeoffed such a one in fee simple without any condition whose estate I have it is a perfectly good title for the plaintiff to say that he enfeoffed him on such a condition etc. and because of the breach of conditions he entered and was seised until the defendant disseised him, that is sufficient without responding or saying also that I did not enfeoff him simply without any condition, for those words are merely surplus and nugatory and are not material. And thus it seems that in the case of waste the sale shown is not material etc.
NEEDHAM, J. That is not so but it is material in this action here as the action and declaration is made. And, sir, your plea is not incompatible with his declaration, namely that you cut the trees to make repairs and before doing so you sold them and then took them back or made repairs and this repair made after the wrong does not excuse the waste.
And then this matter was well argued in court: whether the count was good on this point and material. And it was held by the better opinion of the court that it is and it was good enough because the statute is that no-one is allowed to make waste, sale or destruction etc. And also the prothonotary Comberford said to the court that it is the common form of declaration on a writ of waste for sale of wood to enter ‘by sale or by burning’ and so in the declaration before-mentioned by the common form it is good to show the cutting of the wood and the sale. And yet it is not a traverse nor a plea that he did not sell the trees but it is necessary to answer on the waste as by saying ‘no waste committed’ or otherwise to justify the waste by reason of the repair made with the trees and that he did not sell them where he justifies by reason of repair as before. So the defendant must answer over for otherwise he does not respond to the action of the plaintiff as alleged in his declaration for the same is material etc.
NEEDHAM, J. In the writ of waste it is the plaintiff’s choice in declaring the waste of the wood whether to allege just the waste committed as by cutting down a wood and showing how many trees without saying anything of sale or to declare the cutting of the wood and also the sale and where the sale is alleged by the declaration that must be answered for that is more specific waste than where no sale is mentioned for where there is no mention in the declaration of sale there is no need to answer to it but only to justify the cutting of the trees for repairs without saying any more provided repairs have been made.
Catesby. If the sale is material then it is necessary to say to whom he made the sale for a declaration ought to be specific.
DANBY, C.J. There is no need because it is sufficient to say as has been said without more and when you traverse him by saying that you cut the trees and made repairs with them and you did not sell them it is enough for his part to say by way of replication that you sold them to such a one or such a one. Just as is true of a release pleaded without showing where specifically it was made in bar and when the plaintiff traverse this it will be time enough for the defendant to say your deed was made at such a place and thus before.
Catesby. For a release pleaded by way of bar the norm has been as you say but for other matter in deed like an arbitration or accord it is necessary to show the place and the year and day specifically and so here it with specifying to whom the same was made.
CHOKE, J. The action and the declaration seem sufficient to show the waste by specifying the cutting of oak trees and their sale and this is a double cause of action and as pleading has been made this has to be coupled with a denial of the sale; but it is not a sufficient plea to deny the sale even though it would be a good plea to say no waste committed, just as in various other actions which have double matter though the action is a single one. As where you take my animals and then kill them I can have a general action if I wish alleging that you took my animals by force so as to recover my damages thereby. And so, if I wish, I can subsequently have a special action on my case because you took my animals with force and killed them and it is not enough for the defendant to say that he did not take them but he must respond to the killing though if he wishes to plead not guilty of the whole trespass this will answer the whole action. So too in various other cases it is at the plaintiff’s election to have a general action or a special one and an answer has to be given in accordance with what the action alleges. So too can the plaintiff act in this case of waste as it seems. And as for the sale it does not seem necessary to show to whom it was made for in some cases the certainty may be shown after the tender of issue as in formedon where the tenant pleads the warranty of the ancestor of the demandant with assets against which the plaintiff will say that nothing has descended to him. It will be enough now for the tenant to say assets at such a place. And in some cases the issue or the plea will be put without certainty for if I plead joint-tenancy on the part of the plaintiff or demandant I will not be driven to show by whose gift or feoffment because I am a stranger to that, though on my own part it would be different. So in this case the plaintiff alleges waste committed by the defendant through the cutting of the trees and their sale and this is enough for the plaintiff as he is a stranger to this act of the defendant and so there is no need on his part to show to whom and so the count seems good enough etc.
And MOYLE, J. being in court it seemed to him that it was necessary to show to whom the sale was made as in an action of account for receipt by the defendant at the hands of others the plaintiff has to show by whose hands at his own peril and otherwise the continuance was good even though he is a stranger to the defendant’s actions
DANBY, C.J. As to your case, Catesby, of a feoffment pleaded simply without any condition these words ‘simply without condition’ are not material but void because by common understanding a feoffment is prima facie simple, so the plaintiff has no need to answer these words. But in this case the sale is material for even if cutting to make repairs is justifiable prima facie yet if he then sell them after having had this intention the cutting is not now lawful. And if the count had only been in general form of waste committed by cutting down wood and had shown which trees and the defendant had justified the cutting down for repairs it would have been a good replication for the plaintiff to say that he made no repairs, if he wished, or otherwise to say that he sold them, for if he did not make repairs or sold them he is chargeable with waste. And even though the plaintiff has all his matter in his declaration the count is none the worse for this nor bad but good. And the common form is thus as the prothonotary has told us.
MOYLE, J.. This is a surprising case where someone in his declaration includes all his matter and it is not laudable to include in his action the substance of the bar and of the possible replication to it nor is a writ having such content good as it seems.
DANBY, C.J. Truly they will not here change the form nor their form either for you or for me because it may happen that something inappropriate will ensue from the change, particularly where the form is in accordance with reason as this action is just as several actions are double in themselves etc.
Littleton. If they will not help us we see in respect of the plea pleaded in the manner it is that we are not bound in law to respond.
DANBY, C.J. (to Catesby). Despatch the matter one way or another.
And then Catesby said I will gladly despatch the matter: either the declaration is good or I will make a ‘jeofaile’ if it is not.
DANBY, C.J. If it is thus it is to your advantage and you will not be prejudiced however it comes out, for this matter appears etc.
Catesby. We cut the trees and made repairs to the building with them (and showed how) and we did not sell them etc.
Littleton. With your permission we wish to imparl on this.
And in this same plea it was shown by NEEDHAM, J. that uprooting of underwood or thorns is waste and ought to be specially declared. And also of the roots of trees so that the shoots cannot grow or leaving the close open so that animals enter and destroy the shoots and that is also special waste etc.
MOYLE, J. For shoots wasted in this way one will have a special writ of waste etc.
DANBY, C.J. That is not the case but the declaration needs to specify this and not otherwise etc.
Catesby. If the declaration in a writ of waste for wood is as is said by ‘selling or burning’ then if the case is such that the lessee cut these trees and did not sell them or burn them in his house but allowed them to lie in his house or on the ground and did not make repairs with them or if he gave them away if this matter of the sale or burning is material then the tenant (the lessee) must answer it as by pleading that he cut the trees for repairs and made repairs and that he did not sell or burn them, it will be found against the plaintiff if he traverse the sale or burning because in truth they are and were cut for repairs and no repair was made or sale or burning but the defendant gave them freely to another or allowed them to lie on the ground etc.
DANBY, C.J. The plaintiff will assist himself perfectly well in your case by saying that he made no repairs and so his action will be maintainable without having to respond or maintain the sale or burning, because both causes are waste. Also where the lessee cuts trees to make repairs and does so with them he can justify this cutting if repairs were made and otherwise not but the lessee will pay the wages and the salaries of the workmen at his own cost and is not to cut wood or take other such profits and sell them and with the money from the sale pay the costs of his repairs (and this was granted by two or three in the court of the Justices and the serjeants).
Jenney. In an assize for rent if the plaintiff wishes to make a title in his plaint as by showing that he has the rent by a grant or otherwise as he can if he wishes it is no plea against this to say ‘outside his fee, judgment whether without showing other title’ because the plaint contained in itself a title. But where the plaint is general and says nothing of a grant of the rent nor how the rent came to him there it is a good plea to say ‘outside his fee, judgment if the action lies without showing title’; there it is a good plea because no title was contained in it before. So in a writ of waste if the plaintiff wishes he can his declaration of wood cut ‘and by sale or burning etc.’ and then it is necessary to speak and answer to this for even though he says that he cut the trees to make repairs and made repairs it is not enough without answering on the same. But if the writ of waste be general as it can be as it seems of waste in a wood and cutting down trees without talking of any sale, then it is enough to justify the cutting down for repairs and that he did do so etc.
Citations:
[1465] [Co.Litt. 53a (p)]
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.196986
