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Landlord and Tenant - From: 1200 To: 1799

This page lists 163 cases, and was prepared on 02 April 2018.

 
2 Jac Cr 40, Earl of Rutland's Case 1 Co 76 A B Curia Wardor', Surrender, Tail, Fines, Discontinuance, Bar Baldwin's Case [1220] EngR 274; (1220-1623) Jenk 321; (1220) 145 ER 233 (D)
1220


Land, Landlord and Tenant
A tenant for life, remainder to B. in tail ; B. levies a fine, with proclamations, sur concessit, to A. and C. for their lives : this fine bars the intail during the said two lives only, and is not a discontinuance omnio : for B. was riot seised by force of the tail, and the fine is sur concessit : it seems that A.'s acceptance of this estate to him and C. is a surrender of the former estate which he had : as in the case of a lease for years made to A. and during the years, he accepts a lease for years of the same land to him and B.
[ Commonlii ]

 
 Case LXIII 1 El Dyer, 169 Patents, Forest Palm 88 2 Buls 290; 1220 - [1220] EngR 12; (1220-1623) Jenk 218; (1220) 145 ER 149 (B)

 
 10 Jac 9 Co 60, Bradshaw's Case; 1220 - [1220] EngR 59; (1220-1623) Jenk 305; (1220) 145 ER 222 (B)
 
Case X 11 El Dyer, 278 Corporation Misnosmer, Faux Message [1220] EngR 74; (1220-1623) Jenk 235; (1220) 145 ER 164 (A)
1220


Landlord and Tenant

[ Commonlii ]
 
Case X. 11 El Dyer, 282 20 H S Br Cases, 10 7 170 Dyer, 17 Leases, Confirmation, Spiritual Persons 1 Inst 301 A Noy, 94 1 Roll Abr 477 2 Roll Rep 98 1 Leon, 234 [1220] EngR 75; (1220-1623) Jenk 235; (1220) 145 ER 164 (B)
1220


Landlord and Tenant

[ Commonlii ]
 
CASE XXXIX 2 Cr 332 1 Roll 768 9 Jac Hob 5, Wilks v Jordan Ejectione Firmae; Brief and Abatement De Ceo, Jurisdiction, B R Seaccarium, Rea's Case, Cr 1 Jac 5 [1220] EngR 230; (1220-1623) Jenk 293; (1220) 145 ER 213 (C)
1220


Landlord and Tenant

[ Commonlii ]
 
Case XIX. 26 H 8, 23 By The Judges of Both Benches 14 H 8, 3 Stat De Glocester, Cap 11 Resceit, Averment Hob 35 [1220] EngR 356; (1220-1623) Jenk 200; (1220) 145 ER 135 (A)
1220


Ecclesiastical, Landlord and Tenant
A quare impedit is brought against the patron and incumbent to present to a rectory, of which the incumbent has made a lease for years to B. by deed ; in this case the patron of the incumbent confesses the action: the lessee for years is not relievable ; although he comes before judgment and shews his lease, and shews the title of his lessor, and the fraud and collusion : for a parson incumbent may, when he will, resign his rectory, and avoid his lease; and the absence of a parson for the space of 80 days in a year shall avoid the said lease ; also if he will suffer a judgment and recovery of it against him, such recovery shall avoid the said lease. The statute of Glocester is to be understood of leases made by such lessors as could not defeat sruch leases by their own acts.
[ Commonlii ]
 
3 Co 78 A 41 Ass Pl 28 [1220] EngR 378; (1220-1623) Jenk 46; (1220) 145 ER 35 (A)
1220


Landlord and Tenant
A. has right to recover in a formedon against B. tenant of the land, A. by covin with C. causes C. to disseise B. to the intent that C. should make default in a formedon against him, and that A, should recover by default ; A. recovers the land against C. accordingly by this covin, by default or confession ; A. enters, he is not remitted ; B. enters, and A. ousts him. Resolved by all the sages in parliament, that this covin makes A. a disseisor of his own land. Farmer’s case, 3 Co. 77. Coke has many cases to this effect.
Fraus & dolus nemini petrocinentur.
[ Commonlii ]
 
Case XX 36 H 8 Dyer, 61 By The Judges of Both Benches Challenge, Hundredors, Panel Sec 4 And 5 Anne;, Cap 16 That Venires At Westm Are To Be De Corpore Comitatus [1220] EngR 456; (1220-1623) Jenk 201; (1220) 145 ER 135 (C)
1220


Land, Landlord and Tenant
Cestuy que use for life (after the statute of 1 R 3, which enables cestuy que use to make leases, and before the statute, of 37 H 8, of uses) makes a lease to A. for the life of A cestuy que use dies : A. is only a tenant at sufferance. An act of parliament cannot work a wrong ; and this Act guides this conveyance, and does not suffer it to extend beyond tbe estate of him who made the lease. 'Tis otherwise of a lessee for life, who makes a feoffment, at common law he has gained a fee-simple : and this case is, and remains at common law, not directed by any Act of parliament. An attorney has power to make a lease for the life of the lessor; he makes a lease for the life of the lessee : this lease is void : in this case, if the lessee enters, he is a disseisor- 'Tis otherwise in the principal case : for the said attorney had only a power, and exceeded it ; in the principal case, the interst of the use is accoupled with the power of the statute As where the statute of 32 II 8 gives a power to devise to any person two parts of land holden by knight's service ; a man devises the whole : this is good for two parts, by reason of the interest and power in the same person, in the devisor.
[ Commonlii ]
 
4 Jac Cr 117, Offley's Case [1220] EngR 509; (1220-1623) Jenk 322; (1220) 145 ER 234 (C)
1220


Landlord and Tenant
A makes a lease of certain land for 21 years the 31 January, 26 Eliz. to begin from the feast of Christmas last passed, rendering certain rent at Christmas yearly, during the term, which lease ends at Christmas 2 Jac. 1. A by common recovery conveys the reversion to B before Christmas, 2 Jac. 1. B. brings debt for this rent, and does not shew in what action the recovery was had, and says that on the first of February, the 2 Jac he had the reversion ; which is not possible; for the lease had ended before, viz. at Christmas, the 2 Jac and the recovery is insufficiently pleaded : yet B in debt for this rent had judgment, affirmed in error. For B had the reversion wheri the rent was due at Christmas, and the said allegation of the reversion being in him on the first of Feb the 2d of James was surplusage : and although the recovery was erroneous, a stranger shall not take advantage of it. Res inter alios acta nemini nocet.
[ Commonlii ]
 
Case LXXVII 43 El 2 Co 91 B, Bingham's Case 13 Co 56 Uses, Leases, Done, Remainder [1220] EngR 538; (1220-1623) Jenk 266; (1220) 145 ER 191 (F)
1220


Landlord and Tenant
A. seised of land in fee, levies a fine of it to B. to the use of C. in tail, remainder to the right heirs of A. A. iri the life of C. makes a lease of this lad for 100 years ; C. dies without issue : this is a good lease against A. for this remainder is it reversion in A. for the use of the fee was not out of him, when the use to C. in tail was limited ; but remained in him, viz. in A. and is a reversion in A. and his heir in this case is not a purchaser, but shall have it by discent.
[ Commonlii ]
 
Case LXV 44 Eliz Raym 149, 219 1 Vent 241, 2 2 Lev 52, 53 3 Co 77, Fermor's Case Fines, Covin, Averment, Bar 2 Ander 176 1 Jones, 35, 211, 317 Winch, 116 Savil, 85, 88, 106, 107, 1 Leon 40 [1220] EngR 547; (1220-1623) Jenk 253; (1220) 145 ER 180 (B)
1220


Landlord and Tenant
A. makes a lease for years of land in Dale to B rendering yearly rent; B has other lands of inheritance in Dale ; E leases to C. for life the said 1ands leased to him for years ; and afterwards B levies a fine with proclamations of all the said lands, which were his inheritance and of those which were leased to him for years ; (the number of acres in the fine amounted to the whole) B paid his rent yearly to A during the years ; the said fine was levied of all the said lands, with proc1amations ; and five years passed : A shall not be barred in this case ; for there is apparent covin in levying this fine.
[ Commonlii ]
 
Case XXXVIII Mich 13 Jac B R Furrer v Snelling, Dyer, 55 [1220] EngR 761; (1220-1623) Jenk 324; (1220) 145 ER 235 (D)
1220


Landlord and Tenant
Covenant for payment of rent of £20 per annum, for four years and a half; and for non-payment of £100 according to the said covenant, the action is brought: adjudged good, and affirmed in error: for in covenant damages only are to be recovered and this surplus in miscomputing shall be abated : it is otherwise in debt for rent, where more is demanded than is due; for in this case the debt demanded only, is to be recovered.
[ Commonlii ]

 
 CASE XLIII Yel 227, 8 Mich 10 Jac Glasse v Gill Error, B R 2 Cr 312; 1220 - [1220] EngR 807; (1220-1623) Jenk 326; (1220) 145 ER 237 (A)
 
CASE XCIL 18 E 4, 8 Prescription, Parson, Jurisdiction [1220] EngR 213; (1220-1623) Jenk 142; (1220) 145 ER 99 (D)
1220


Landlord and Tenant

[ Commonlii ]
 
Case LXIX 1 Lev 198 3 Co 13 A B 29 Ass Pl 23 24 E 3, 28, 30, Sir John Langford's Case Sir William Herbert's Case, 3 Co 11 Dyer, 315 Age, Stat Prerogative, Recognizance, etc [1220] EngR 39; (1220-1623) Jenk 36; (1220) 145 ER 26
3 Jan 1220


Landlord and Tenant
If when the conusor is dead, a scire facias is awarded against the heir and tertenants, and the sheriff returns all warned (though in truth he has omitted one or other) ; the tenants are put to their audita querela, and cannot plead this matter to the scire facias ; for it is against the sheriff's return.
[ Commonlii ]
 
7 H.3 wast 141 [1223] [Co Litt 53a (h)]
1223


Landlord and Tenant
CS Attachment against a tenant in dower as to why she had assarted one hundred oak trees and a mill had been broken and drained and the mill-pond also. The tenant said that her late husband M. by the king's order had broken the millpond and taken all the fish for the king's benefit and she had subsequently repaired it as best she could; as to the mill, she said it is not wasted because in winter it can grind though not in summer for because of the war but no waste was committed by her. This was adjudged a good plea. The complainant said that she had committed waste after the prohibition and produced suit of this and thus a jury trial on this etc.
1 Citers


 
21 E.1 Adam's Case (1293) YB (RS) 21 & 22 Ed1 30
1293


Landlord and Tenant
(Year Books) If the sheriff hold the inquest and return that the grange and bakehouse were burned by accident, and do not say whether the conflagration was caused by the default of the tenant or not, the sheriff will be again ordered to enquire whether the conflagration was caused by the default of the tenant or not; and if he return that it was by the default of the tenant, he (Adam) will recover his damages. Adam was the person of whom the defendant held the tenement for life.
1 Citers


 
Doe d. Whayman v Chaplin (1310) 3 Taunt 120
1310


Landlord and Tenant
Four persons were the joint lessors on a periodic tenancy. Three only of the joint lessors gave notice to quit against the wishes of the fourth. At one stage the court inclined to the view that in order to determine the tenancy all four lessors had to agree. However after further argument it was held that each of the three who had given notice to quit was entitled to put an end to the tenancy of his share and the three who had given notice to quit were therefore entitled to recover three parts of the land. As a result, the defendant apparently was entitled to stay on the land in right of his tenancy of one part as tenant in common with the three lessors who had given notice. the giving of notice to quit by three out of the four joint lessors was not sufficient to determine the tenancy of the whole land.
1 Citers


 
8 E.2 wast. 111 [1315] [Co. Litt:53a (l)]
1315


Landlord and Tenant
In waste where the waste was found of three oak-trees worth etc. and two hundred willow-trees the plaintiff asked for judgment in accordance with the verdict.
INGE, J. did not adjudge waste in such form that he recover the place wasted for the small amount and it is not properly to be accounted waste in respect of the willows in case they grow again.
Herle. Then adjudge her damages.
1NGE, J.. We can never adjudge one without the other and so you are to take nothing by your writ etc. neither damages nor the place wasted.
1 Citers


 
17 E.2 wast 119 [1324] [Co. Litt. 53a (f)]
1324


Landlord and Tenant
Waste: the inquest says in respect of one building that he was said to have wasted that at the time the tenements were leased there was no building there but that the lessee had built it and then it was demolished and it was adjudged waste. In respect of the exile of tenants the inquest says that he burdened one with various amercements to the damage of twenty shillings and because he had not abandoned the land as a result the justices took no notice of this.
1 Citers


 
4 E.3. wast 22 [eyre of Derbyshire, 1330-1] [Co. Litt. 53a (d)]
1330


Landlord and Tenant
Waste alleging that he held for a term of years by his lease
Pole. No waste committed etc.
The inquest found that he had committed waste in a bakehouse and a rapine and in a mill to the damage of one mark and that he had felled an ash-tree to repair the mill-stream to the damage of twelve pence.
Pole. We ask for relief in respect of the ash-tree as it was found that it was felled for the purpose of an improvement.
Herle. Do you think that you may knock down my trees to repair what you hold for a term? You may not. So the court adjudges that he recover damages assessed by the inquest three-fold, amounting to 43 shillings.
1 Citers


 
17 E.3. 65 [1343] [Co. Litt. 53b (q)]
1343


Landlord and Tenant
Two brothers, J. Gray and his brother W., brought a writ of waste against a woman who held in dower of their inheritance and alleged by their count that this was because the lands were partible and counted of waste committed in buildings, lands and marshes and counted that the marsh was adjoining the sea and there was a wall for the defence of the marsh which she and all tenants of these lands are obliged to keep repaired and have done so and she had dug a perch in the wall and also because of lack of repair the wall is not repaired and so the sea has entered the marsh and has taken away around twenty-four acres to the depth of one foot and the remainder of the marsh is under water.
Mowbray. Judgment of the count because he does not allege that the woman held the wall in dower (and not allowed)
Mowbray. Again judgment of the count for they have alleged that the woman holds of their inheritance and they are males and this is against common right and they do not affirm that this belongs to them by descent as to say in the count that the woman holds of the endowment of their ancestor whose heirs they are etc. For it is possible that their ancestor never had anything but that they are purchasers.
SHARESHILL, J. Then they would have had another writ but by this writ and count we understand that they are heirs of the woman's husband and there is no other count or writ in this case.
Mowbray. We tell you that there are several marshes and with respect to all except one no waste committed, as we are ready etc. As to that one we tell you that there is a wall by which this marsh is enclosed against the sea. And in respect of the digging in the wall he traverses; and where they suppose that the sea entered for lack of custody we tell you that the sea is so strong that by a storm it has carried off the soil and undermined the wall so that no-one could prevent it and so it was not carried off by our default. Judgment whether you can assign any wrong in our person etc.
And on that they were at issue as whether it was for lack of guard or not etc.
1 Citers


 
17 E.3. 7 [1343] [Co.Litt. 53b (p)]
1343


Landlord and Tenant
John de Hull and Maud his wife brought a writ of waste against H. Hadenham and assigned the waste in buildings, namely the knocking down of a hall, chamber, cowshed and grange, and in lands in the digging for ironstone and coal, and in gardens and woods etc.
Pulteney. We tell you that by this deed they leased to us the buildings where the waste is alleged on terms that allowed us to dispose of the buildings there except for a chamber and a hall at the end of the chamber and that has been kept in repair; judgment if they are receivable against their own deed. As to the grange and cowshed there were none when the lease was made and none thereafter, as we are ready etc. As to the waste in respect of the land we tell you that they leased to us certain acres of land where there was a mine for ironstone and coal, with all the profits arising therefrom; judgment whether they can be received etc. As for eighteen oaks and an ash he granted us them by his deed etc. that we might fell them for the repair of a mill etc.; judgment. As to waste in the wood that is a place where wood was growing and adjacent to the garden, he granted us permission by this deed to cut it down.
Gaynesford. As for the grange and the oxshed whereas they say there were none etc. that is tantamount to saying no waste committed (and this was not allowed).
And so Gaynesford said that he wished to prove that there were some etc. and that these were wasted and the same went for the chamber which they said was in good repair, ready to prove etc.
And as to the waste in respect of the remainder of the buildings they have not denied the knocking down and sale which is a matter of disinheritance and he does not have express warranty by our deed to do this but only to make his profit, which Common Law would give him even if he did not have it by this specialty. So we ask for seisin by virtue of his acknowledgment and our damages. And as to the waste in respect of the land he has not denied that he has dug and sold and that amounts to disinheritance and he does not have warranty for that by our deed but only to make his profit, which cannot be interpreted so broadly but only to take his necessary requirements and not to make a sale which amounts to permanent disinheritance. Judgment.
Thorpe. Then is this your deed?
SHARESHILL, J. You must both be agreed and thus we assume that you are.
Thorpe. If I lease you a pond and a fishery with all the profits etc. are you not allowed to fish and sell the fish?
R. Thorpe. For that there lies no action of waste unless they sues; but if you lease me a wood with the profits am I allowed to cut down and sell? (Implying not)
Thorpe. It appears that you can for you may cut for your own benefit and erect buildings otherwise than in the messuage to which the wood is appendant and so you can give and sell.
R. Thorpe. Certainly not you will have nothing other than what common right gives you for if you take that broadly 'all kind of profit' it follows that you might alienate.
Thorpe. We ask for judgment as he has admitted that at the time of the lease there was a mine for stone and coal and this was leased to us with the profits by his own deed; and as we ask for judgment if he is receivable against his own deed.
SHARDLOW, J. What profit can one have from a mine when it is leased to one other than by selling etc.?
Thorpe. He may have his necessary requirements without making any sale of gift.
1 Citers


 
18 E.3.15 (recte 14) [1344] [Viner 438, no. 16]
1344


Landlord and Tenant
John Stapleton brought a writ of waste in three villages where it was pleaded that one place which was called a village was a hamlet of one of the other villages named in the writ and they were at issue on this in relation to the whole writ. And by nisi prius before STOWFORD, J. it was found that each was a separate village and he enquired further relating to the waste and it was found that waste had been committed in two villages, namely in such a building and in such a building etc. (with the value of each being given) which had been wasted and destroyed for lack of roofing and also in woods to the value of such etc. to the damages of such. And it was mentioned by SHARESHILL, J. that the damages for the tenements wasted in the third village (which waste by the plea pleaded even though the reverse was found will be considered as not denied) ought not to have been the subject of an enquiry for this enquiry as to waste was not warranted either by statute or by common law for at common law there was not enquiry into waste except where the waste was denied in pleading nor did statute warrant it except by the defendant's default.
WILLOUGHBY, J. said that there needed to be an enquiry as to waste.
Green. Whatever the law may be we agree to have judgment in accordance with the verdict.
SHARDLOW, J.. Then we are discharged.
WILLOUGHBY, J.. The court therefore adjudges that the plaintiff recovers the places wasted and damages in triplicate as assessed etc. which amount to so much etc. and the plaintiff to be amerced in respect of his complaint in regard to the third village where no waste was found.
Green asked for execution in the lands which he had on the day the plea was pleaded.
STONOR, C.J.. You will first have execution generally on that which he has and if the sheriff returns that he has nothing you will have execution then on the lands which he had on the day the inquest was taken and you will have no more.
And note that Mowbray mentioned to delay judgment first that it had not been found that the tenants had committed the waste (and that it is not in the charge of the court for they should find it whoever had committed the waste); and also in the buildings it was not waste that was found but lack of roofing.
Hilary said that the verdict said that for lack of roofing they had become wasted and destroyed and so we understand that they are wasted.
And it was mentioned by some that if they were unroofed even if the timber was still standing it will be adjudged waste.
And note that a writ of waste brought in Barton where there was traverse that there was no Barton without addition and by inquest taken before INGE, J. the writ was found good and he did not enquire further as to waste. The court remanded for further inquiry for even though the writ was found good the land cannot be lost unless the waste is found etc.
1 Citers


 
19 E.3. [1345] Wast 30
1345


Landlord and Tenant
Waste: where it was found by an inquest where the party pleaded that no waste had been committed that in respect of a kitchen that was burned by a woman who was a stranger without the knowledge of the defendant because they lived elsewhere and to rebuild this kitchen he had cut oaks in a wood and the hedge around the close and that the house is now better than it was before the fire and that he had also cut down and sold a certain number of oaks in a wood around the close and cut down some for repair of buildings and cut down some which were still lying there unsold.
Pole asked for judgment on the verdict for the plaintiff because all that is found will be adjudged waste because of the form of his plea because the defendant ought to have pleaded it specially if he wished to take advantage of it.
WILLOUGHBY, J. The fire is waste for lack of proper keeping.
Thorpe. Recently here in a writ of waste it was found by an inquest taken by default that galleys came to the sea coast and burned down a manor and it was adjudged no waste; so also here.
WILLOUGHBY, J. The party could not have prevented the galleys. But do you believe that if your servant lodges a stranger who burns down the buildings that this will not be adjudged waste? (As if to say, hardly not). So the fire will be adjudged waste and so the kitchen has been wasted but the cutting down of trees for rebuilding is not waste; and as to that which has been cut down but not sold that is waste.
And that which was cut down for repairs (even though that was not specially pleaded) is adjudged no waste: so the court adjudged that the plaintiff recover the place wasted and damages in triplicate.
1 Citers


 
20 E.3. [1346] wast 32 [Co. Litt. 53a (k)]
1346


Landlord and Tenant
Waste assigned in a building and in land dug with pits, namely one acre, and in clay carried off, and in timber cut down, namely oaks and ashes etc. and the defendant pleaded no waste committed and by the nis iprius it was found that the building was burned down by a servant of the defendant by lack of care and the defendant had cut down part of the oaks of which he had assigned waste and from them had made a new building as good as the old one and in the same place as the old and that he had dug clay in old pits for the construction of the house and also to repair old buildings, and also that the defendant had felled forty oaks which were dead and the inquest understood that this was no waste and also that the defendant had felled forty oaks that were still living and had made of them charcoal to burn within the house as required.
Greene. As to the building it has been found that it has been newly built and of the same value as it was before and so no waste can be adjudged for this. It is also found that we dug in old pits that were waste before and also that what we did there was for the improvement of the new building so this cannot be adjudged waste. Also with respect to the dead wood we are discharged because it seemed to the inquest that this cannot be waste. As for the felling of trees for charcoal etc. that is avowable by law.
SHARESHILL, J. It is to be seen whether waste is to be adjudged in respect of the buildings being burned or for the cutting down of the trees from which the building is constructed for he cannot recover the place wasted in respect of both.
Thorpe. You adjudged the building waste and not the trees in the case of a kitchen in the case of Anthony Fisseron (and it was said that the waste will be adjudged in respect of the trees and not of the building).
SHARESHILL, J. There was no enquiry as to how many trees he cut down for the erection of the building.
Mowbray. It was not necessary when the trees were cut for this reason and the building erected etc.
1 Citers


 
26 E.3. 76 [recte 26 E.3. 22] [1352] [Co. Litt. 53a (g)]
1352


Landlord and Tenant
In a writ of waste brought against a tenant in dower the count was that she held in dower of his inheritance and that she had committed waste in the manor of W. and he assigned the waste.
Birton. He does not show how we hold of his inheritance, whether as heir to our husband or as strange purchasor or by whose assignment we hold; so judgment of his writ etc.
Muttelowe. Our writ is general and we can have no other writ in the chancery and so etc.
So she was put to answer further.
Birton. Whereas he alleges that we hold the whole of the manor in dower we hold only one third of the manor; judgment of the writ.
Muttelowe. Whether you hold only one third or more you have committed waste in what you hold and you do not answer on that; judgment etc.
Birton. As to all he alleges as waste other than in respect of a sheepshed, no waste committed, as we are ready etc. As to this sheepshed it was ruinous when our dower was assigned and so collapsed and we have erected a new sheepshed with our own timber; judgment etc.
Muttelowe. In respect of that: that you have committed waste as we have suggested by our writ, as we are ready to prove etc.
STOWFORD, J. She has alleged a matter on which you may demur for judgment if you wish; but you will not get to a general averment on what she has said. So answer what she has said.
Muttelowe. She has committed waste as we alleged and has not erected a new building as she has said, as we are ready etc.
1 Citers


 
29. E.3.33 [1355] [Co. Litt. 53a (b)]
1355


Landlord and Tenant
(Year Books) In waste for a chamber demolished and sold Gower says that at the time of the making of the lease it was very weak and so it collapsed through a storm and we did not demolish it nor did it collapse by our fault. And this was held a good response.
1 Citers


 
29 E.3.33 [1355] [Co. Litt. 53a (b)]
1355


Landlord and Tenant
In waste for a chamber demolished and sold Gower says that at the time of the making of the lease it was very weak and so it collapsed through a storm and we did not demolish it nor did it collapse by our fault. And this was held a good response. But note that Ousefleet challenged this because he did not deny that he had sold the wood etc. and thus an action of waste was given to him because no other action is given to us. This was not allowed by the court because he had made a full response to the main point of the action, namely that the chamber did not fall by his default, because the sale of the wood is not accessory to the other etc.
1 Citers


 
34 E.3 [1360] Wast 143 (recte 145 in 1577 edition) [Co. Litt. 53a (a)]
1360


Landlord and Tenant
Waste of a messuage. The tenant pleads 'no waste committed' and it was found that they were ruinous for lack of roofing within the term but that the buildings were still standing; notwithstanding this it was adjudged waste.
1 Citers


 
38 Ass.1 [1364] [Co. Litt. 53a (d)]
1364


Landlord and Tenant
In a nisi prius at Winchester there was a writ of waste and where the tenant had pleaded that he had committed no waste it was found that the tenant had committed waste before the acquisition of the writ to the damage of one hundred shillings but it was found that while the writ was pending he had spent money to repair the houses wasted to a great amount, so that the tenements were now properly repaired except for a chamber. It was the opinion of the Justices that they should take no notice of repair made while the writ was pending; and it was adjourned into the Bench etc.
1 Citers


 
40 E.3. 15b [1366] [Co. Litt. 53a (1)]
1366


Landlord and Tenant
In a writ it was found that he had committed waste in respect of willows to the value of etc. and it was asked of the inquest jury whether it seemed to them that this was waste and they said that they were growing within the view and the site of the manor and for this reason the court adjudged it waste. (As to what is deemed waste see P.E. 12 E.4, f. 1 and f. 26 of this same year there is good matter. See also T.46 E.3, f. 14 etc.)
1 Citers


 
40 Ass. p. 22 [1366] [Liber Assisarum 40 E3 plea 22 on p. 243]; [Co Litt 53a (b)]
1366


Landlord and Tenant
It was presented in King's Bench that John P. who held the manor of E. and H. of the king's lease had committed waste in the tenements which he had in wardship by reason of the nonage of John the son and heir of John Darcy knight, namely by knocking down certain houses and cutting down certain trees etc. J.P. came by the process of distraint and pleaded by Cavendish with regard to the houses no waste committed; with regard to the trees he says they were knocked down by the great wind and others have carried them off; and asks for judgment whether he has committed any wrong. To which Kirkton (for the King) said that inasmuch as he was guardian he might have had a writ of trespass for what was in his wardship and carried off by a stranger and so as a consequence he is answerable to the heir and thus also to the King. Judgment.
Cavendish. When by law we are excused of waste of the principal we are also excused of waste of the accessory; but even if he had himself burned the trees no action of waste would have been maintainable against him.
Knivet. Even though he is guardian of the minor and the trees which have fallen down are severed from the free tenement he still has no property in the chattels but it belongs to the heir for which [he?]will have his action of trespass against a stranger, and not the guardian etc. No more would the bailiff of a manor have an action of trespass in these circumstances.
Ingleby. If the guardian had put this towards the improvement of the manor he would be excused because this would come to the profit of the minor. So it seems that he is answerable to the minor for this chattel.
Knivet. Neither by way of waste nor by [way] of trespass.
Kirkton. If the posts of a house are standing and the remainder has decayed (eschu) if the guardian demolishes this and carries it off or sells it he will have an action of waste against his guardian.
Cavendish. He would not for it is necessary to assign the waste as committed in respect of a house and he cannot say that.
Knivet. A house newly built and not yet roofed was demolished by a guardian and it was not accounted waste. And this was adjudged Easter 39 [E 3] in a writ of waste.
1 Citers


 
40 E.3. 35 [recte 40 E.3. 25] [1366] [Co. Litt. 53a (l)]
1366


Landlord and Tenant
In a writ of waste the plaintiff counted that he had committed waste in respect of hazels and oak trees. And in respect of all except the hazels Belknap pleaded no waste committed and in respect of them he said that they were growing in a park under great oaks and were of an age to be felled and we ask for judgment whether this is to be adjudged waste.
Kirton. We tell you that there is an area in the wood where the waste is assigned and no oaks grow there and no other large trees except for hazels etc. and he has committed waste and we ask that he be convicted for the waste committed.
Belknap. Since you do not deny that they were of an age for cutting after seven years growth and were then cut since waste is that which is cut and will not grow again but underwood at the end of seven years will be as good as it was at the time of cutting and this cannot be adjudged waste where it is suitable for cutting every seven or ten years.
THORPE, C.J. You who have an estate for term of life cannot allege a prescriptive title that this is not waste.
FINCHDEAN, J. (ad idem). He has said that there were no great trees growing in that area but there was an area growing a certain quantity of wood and whatever wood that was you committed waste if you cut it down.
WITCHINGHAM, J. If the underwood is suitable for cutting every nine years a tenant in dower or tenant for life can cut it down.
But this was denied and the case was adjourned. So query.
1 Citers


 
41 E.3. [1367] wast 82; [Co. Litt. 53a (k)]
1367


Landlord and Tenant
Waste against one alleging that he had felled certain oak trees growing in a wood and also hazels, thorns and willows only in ten acres of land adjoining the wood. He had committed waste by cutting down all the hazels, worth twelve pence each, and also uprooted all the roots and also he had felled all the thorns and willows, each worth four pence, and uprooted all the roots; also he had committed waste in one acre of land by digging and grave under the land and selling it.
Kirkton. He has counted that he has cut down etc. and also uprooted the roots of the hazels and thus he has assigned two causes of waste in a single tree and so we ask that he choose one (and this was not allowed).
Kirkton. As for the two hundred oak trees we only cut down thirty for the repair of buildings; and as for the ten acres these were full of oaks and the hazels, thorns and willows were underwood and by the deed which is here he granted us the right to cut down underwood and make our profit from it and we cut it etc. and we ask for judgment whether this is wrong. As for our uprooting of the roots he ordered us to do this and we did this by agreement etc. and so we ask for judgment; as for the acre of land etc. we tell you that we dug and grava underneath for repair of the buildings and we allowed what was over to lie on the ground without selling any of it, as we are ready etc.
FINCHDEAN, J. If you dug and gravastes more than you needed for the repair of the buildings you committed waste etc.
Kirkton. The fact is that this acre is a valley which is full of water and to drain it we dug there and put part to the repair of the buildings and we left the rest lying on the ground.
FINCHDEAN, J .That is the first you have said of that and so plead that against the other party.
And Kirkton did so.
Finch'. You sold one hundred cart-loads of this and more which you did not use for repair of the houses as we are ready etc. (And the others to the contrary). And as to the oaks he uprooted two hundred more than he used for rebuilding etc. And Finch' as to that which you said about having uprooted the roots etc. by our assent etc. what do you have to show our assent?
Kirkton. Nothing other than your word and that is enough etc.
Finch'. We did not assent, as we are ready etc.
Kirkton. That is no issue.
FINCHDEAN, J. You should be satisfied that he has offered that averment and so accept it etc. (Implying that if he had demurred for judgment that the defendant would have been convicted of waste).
And so Kirkton says that he did assent, as we are ready etc.
Finch'. As to that which he says about that being underwood etc. we will prove that those ten acres are full of hazels, thorns and willows growing there and there are no other trees there, as we are ready etc.
Kirkton'. We are already at issue on the uprooting of the roots and if verdict is given in our favour that we who are plaintiffs did it with your assent then we will be discharged of waste done on the main trunks of the trees and so it will be in vain to take issue on the felling and so we ask to be discharged of this issue.
And the court discharged him etc.
1 Citers


 
42 E.3.21 [1368] [Co.Litt.53a (f)]
1368


Landlord and Tenant
(Year Books) The prior of the Hospital of St John brought a writ of waste against one J. and alleged that he had committed waste in certain tenements which he held for the term of his life by the lease of his predecessor, namely in respect of a chamber, a bakehouse, a grange and other buildings to the disinheritance of the said house and hospital . . . .
Belknap. . . . As to the bakehouse it was so weak at the time of the making of the lease that it fell down and he could not prevent this, and so judgment if you can have action for this etc.
Cavendish. It was in good enough repair at the time of the making of the lease and decayed by your default and thus you committed waste, as we are ready etc.
1 Citers


 
42 E.3. 21 [1368] [Co. Litt. 53a]
1368


Landlord and Tenant
The prior of the Hospital of St John brought a writ of waste against one J and alleged that he had committed waste in certain tenements which he held for the term of his life by the lease of his predecessor, namely in respect of a chamber, a bakehouse, a grange and other buildings to the disinheritance of the said house and hospital.
Belknap. Judgment of the writ for it says 'to the disinheritance of the said house and hospital' where the writ ought to say 'to the disinheritance of the hospital of the said church' (and this was not allowed)
Belknap. There was no chamber at the time of the making of the lease, as we are ready etc.
Cavendish. That is no issue unless you will say 'nor at any time since the making of the lease'.
Belknap. There was no chamber at the time of the making of the lease or at any time since, as we are ready etc.
The others to the contrary etc.
As to the bakehouse it was so weak at the time of the making of the lease that it fell
down and he could not prevent this, and so judgment if you can have action for this etc.
C'avendish.It was in good enough repair at the time of the making of the lease and decayed by your default and thus you committed waste, as we are ready etc.
Belknap. As for the grange, this burned down in the time of his predecessor by accident and his predecessor released all action in respect of this and we ask for judgment if action etc. and proffered the deed of his predecessor.
Cavendish. This is a double plea: one is that the grange was burned down by accident; the other is the release of our predecessor. So choose one of these.
Kirkton. I will stick to the deed and so answer the deed.
Cavendish. Sir, you have seen that he has pleaded nothing but the deed of our predecessor which is ineffective other than for his own life and so we ask for judgment and for our damages.
Belknap. We ask for judgment as you have admitted that this is the deed of your predecessor and by this deed he released all kinds of personal actions and this is a personal action and so the action has been extinguished; and so etc.
Cavendish. This is a real action for he will recover free tenement and his predecessor could not release this free tenement except for his own lifetime and since he is dead it seems that this release cannot bar us.
Belknap. His predecessor during his lifetime could have granted to us the right to dismantle the building and sell it and his predecessor would have had no action for this; and since he could have granted this he could for the same reason have released this.
Kirkton. As soon as the waste was done the right to the free tenement accrued to his predecessor and once it had accrued he could not release this free tenement except for his own lifetime without the assent of his convent because it becomes the right of their church as soon as the waste has been committed.
Thorpe. If a disseisin is committed against a man of religion and he release all kinds of personal action his successor will have an action notwithstanding the release.
1 Citers


 
42.E.3. 6b [1368] [Co. Litt. 53a (k)]
1368


Landlord and Tenant
Waste brought against a man and it was alleged that he had demolished buildings and sold them and that he had cut down the underwood each year, so that it could not grow without being sold and also that he had razed an oven and sold it in the tenements leased to him for a term of years.
Cavendish. As to the buildings they were blown down by a great wind and we ask for judgment
whether they could assign wrong etc.; as to the underwood you have seen how he counted that we cut the underwood although cutting the underwood cannot be adjudged waste etc. and so we ask for judgment if he can have action by this writ of waste etc. and as for the oven you see that it is something that is movable and removable and so we ask for judgment.
Belknap. As for the buildings you have committed waste as we have alleged as we are ready etc.; and as to the underwood as he does not deny the cutting we ask for judgment and asked that he be convicted etc.
Cavendish. If he had counted that we have uprooted the underwood then that would have been a good cause of action etc. because it could not have grown afterwards but not for cutting down as they can grow again.
Belknap. As for the oven since it is something fixed to the free tenement we ask for judgment and ask that he be convicted etc.
Kirkton. If an oven were assigned to a tenant in dower she could not carry it off.
Cavendish. As it is something that can be removed and is removable it is wrong that it should be adjudged waste.
Belknap. It is something fixed to the free tenement and where you say that it can be removed so can a post in a building and also a door or a window but they are still adjudged waste.
Cavendish. As for a door I deny that but in respect of a post I concede it as a post is part of a house.
And the case was adjourned.
1 Citers


 
43 E.3. 6 [1369] [Co. Litt. 53a (g)]
1369


Landlord and Tenant
A writ of waste was brought and it was alleged that he had committed waste in lands that he held for the term of life and it was assigned that he had committed waste in respect of a grange.
Cavendish. The waste that was committed in the grange was the result of a great storm before the lease began; judgment if we have committed any wrong.
Belknap. We leased the land by indented deed (which is here) and he agreed by the same deed to repair the buildings and everything else and to maintain them during his term and to leave them at the end of his term in as good a state as when he took them; and so since he obliged himself by his own deed to maintain the buildings no plea that he has pleaded can excuse him from waste (and this was not allowed because law discharges him of waste that happens in this way because it happens by sudden chance).
Then he said that the grange was not maintained in respect of its roofing and it decayed for lack of roofing and so he committed waste etc.
Cavendish. It was well and suitably roofed as we are ready to prove etc.
The others to the contrary etc.
1 Citers


 
44 E.3.21 [1370] [Co. Litt. 53a (d)]
1370


Landlord and Tenant
Waste brought against John Exter by the abbot of Waltham, alleging that he had committed waste in a wood to the value of etc. and in a grange to the value of etc. and in certain cottages etc.
Cavendish. As to the wood, no waste committed, ready etc.; as to the grange he showed an indenture from the abbot's predecessor with the assent of his convent, and that he was to have sufficient timber in a certain wood and then to repair the buildings and we came and asked for the timber and he refused to hand it over to us and so it was by his fault that the grange fell down and we ask for judgment; as to the cottages the tenant died in the Plague and we were unable to find others and so for lack of tenants they fell down.
Belknap. Where he says no waste committed, we say he did; as for the grange you have seen how he has admitted the lease made to him for his lifetime in which case it was permissible for him without any indenture to have taken timber for repair of the buildings without us handing it over and even if we have agreed to hand over timber to him by the indenture that does not excuse him from waste since he could have taken it without us handing it over; judgment.
Cavendish. We have said that you agreed to hand over to us timber from a wood which does not form part of the tenements leased to us, so that we were unable to take anything there without you handing it over and we tell you that there is no timber growing on the tenements leased to us.
Belknap. You never said that before (and see thus that if there had been timber growing on the land he would not have committed waste) and so he said that he attempted to hand over sufficient timber but he refused to receive it unless we would give to him more than seemed sufficient, and so it weas his fault, ready etc.
1 Citers


 
44 E.3.44 [1370] [Co. Litt 53a [b]]
1370


Landlord and Tenant
A man brought a writ of waste against a woman and supposed by his writ that she had committed waste in respect of a wall and one hundred apple trees and had cut down one hundred oaks and a grange.
Kirkton. As to the wall we ask judgment if this can be called waste as this is outside the case of the statute; and as to the apple-trees they were uprooted by the great wind and we cut them up etc., judgment if this is waste. As to the grange it was blown down by the wind; as to the oaks we cut them down to repair the grange and the plaintiff took and carried them off; judgment etc.
Belknap. As for the wall he says that it was covered with tile etc. and asks for judgment and seeks that she be convicted etc. As to the apple-trees he says that they were knocked down by the great wind and fell on the crops and many of the roots lay in the ground and we say that the trees bore fruit for two years afterwards until he uprooted them; judgment etc. and we seek that he be convicted. As to the grange he says it decayed for lack of roofing, ready etc. And as she admits the cutting down of the oaks if it be found that she has committed waste in the grange the waste in respect of the oak-trees is sufficiently clearly admitted, and so etc.
Kirton. She will not be convicted of waste of the oak-trees as he himself took them and carried them off (and this was not allowed as for this she would have a writ of trespass against the same plaintiff).
Kirton. It is necessary that he plead with us as by saying that we have made waste in respect of the oak-trees but this was not allowed because if she is convicted of waste in the grange she will be convicted of waste committed in respect of the oak-trees etc.
1 Citers


 
46 E.3. 17 [1372] [Co. Litt. 53a (m)]
1372


Landlord and Tenant
Waste brought by a man and alleging that the tenant held by his lease for the term of his life and the tenant came and showed a deed by which the plaintiff and four others had leased the tenements to him for the term of his life, reserving the reversion to all four of them, and asked for judgment of the writ.
Belknap produced a release made by three of them to the fourth rehearsing how they had reserved the reversion and how they had released to the fourth their right in the reversion.
Percy. His writ is false in its contents as it supposes that he holds by his lease alone.
FINCHDEAN, J. What kind of writ ought he to have?
Percy. A writ that is in accordance with the facts of his case.
WITCHINGHAM, J. The writ is not false for even if the others did lease the land with him he did lease it together with them and thus he leased.
Percy. He ought to have had a writ rehearsing the lease and the release made to him in this way and thus would be shown expressly in the writ how the reversion was to him alone for in as much as the three released to him he is in as of their estate, just as if the reversion had been granted to a stranger in which case they would have to have made mention ex assignacione etc. or otherwise the writ would have been bad and so here etc.
FINCHDEAN, J. In a case where the reversion is to two persons and to the heirs of one of them if the one who has the fee make a release to his companion if he wishes to have a writ of waste it is necessary to say that de eo tenet ex assignacione etc. And long ago there was a great debate in chancery on the drafting of the writ in this form. But here all the right of reversion was in his person even if he had others joined with him and even though they have made a release while their right existed the fee continues in him and so the writ seems to us to be good.
Percy. If two parceners lease for a life term and one parcener dies without issue the other parcener will not be able to maintain a writ of waste against the tenant that alleges that he holds of her lease because a moiety is descended to her from her parcener.
FINCHDEAN, J. So she will have even though their right was several because the reversion was continued in them without a severance between them. And in the case where land is leased to someone for the term of their life and after their death to someone else for a term of years a writ of waste has been adjudged against the tenant during the term.
Belknap. If two acquire jointly to themselves and the heir of one of them and lease for a life term the two will have a writ of waste.
And then the writ was adjudged good on this point.
Tauke. Again we ask for judgment of the writ because he has alleged the cutting of willows and that cannot be accounted waste unless they are uprooted. Also he has said that we have cut blackthorns and whitethorns and that cannot be accounted waste.
Belknap. As for the whitethorns we have mentioned a certain number and as to the blackthorns we have supposed that he cut none as wood and underwood generally.
Tauke. The blackthorns are growing in the common of another; judgement if action lies; as for the whitethorns we say that you granted us permission to make our profit by the deed which is here; judgment if that can be accounted waste.
Belknap. We will imparl.
Percy You have seen how he has alleged that we have cut so many cartloads of blackthorns where it should have been so many thorns as one does with other kinds of tree for waste, so that the damages could be assessed more certainly (and this was not allowed). And then he said that thorns are not trees for the purpose of waste, judgment (and it was not allowed). And then he said with respect to an ash of the value of two pence we cut it down and with it made a way at the place and we ask if we are impeachable.
1 Citers


 
49 E.3.2 (recte 49 E.3.1) [1375] [Co. Litt. 53a (f)]
1375


Landlord and Tenant
A man brought a writ of waste against Thomas Grey of York and alleged that he held for a life term by his lease and assigned waste in respect of a house namely in a grange, a hall and a cottage.
Fulthorpe. As for the hall and the grange we tell you that they were weak and the wood rotten at the time of the lease so that they were not able to stand and so subsequently they collapsed and we ask for judgment if we are chargeable with that; as to the cottage we say that you erected it after the commencement of the lease without our agreement and ask for judgment if you can assign waste there.
Hanmer. As for the cottage we wish to prove that there was one at the time of the lease and so it is waste and ask for judgment against you; as for your allegation that the buildings were in bad repair at the time of the lease we respond that by your indenture (which we show) you agreed to repair these buildings and maintain them in as good a state and better than they were when you received them, and thus he is obliged to repair them by his own deed and we ask for judgment whether he is receivable to say that they collapsed through bad repair.
Fulthorpe. Since we have alleged that they were in bad repair at the time of the lease and that they collapsed subsequently through their weakness and this excuses us in this action of waste, as we understand. As to what you say about us agreeing to repair the buildings by our indented deed, that is something that would charge us in an action of covenant and so whatever you may say about this deed there is no law to make me answer it.
WITCHINGHAM, J. Sir, the deed which you produce shows you might have an action of covenant against him in which you would be able to recover only single damages for the breach of the covenant whereas if you were to succeed against him through this indented deed in this writ of waste you would recover triple damages, which would not be right.
And so Ham'. Do you have anything else to say to charge him in this action of waste?
Hanmer. We tell you that at the time of the lease the great timbers were in sufficiently good state and suitable and not perished and subsequently for lack of roofing in your time after the making of the lease they perished by your default. We ask that you be convicted of waste.
Hasty. He does not allege that all the timber was in good condition but speaks only of the great timbers and so what he alleges is not sufficient matter to charge us with waste.
Kirkton. It may be that the great timber was in good condition but the beams were decayed at the time of the lease and so he could not roof the buildings without the beams and was not obliged to substitute others and then roof them, and so.
Hanmer. Then we tell you that after the making of the lease the walls collapsed by his default and so the building collapsed, and thus it is waste.
Hasty. The walls had collapsed at the time of the lease and so the building collapsed since and not by our default, as we are ready etc.
The others to the contrary.
1 Citers


 
5 R.2 wast 97 [1382] [Co. Litt. 53a (h)]
1382


Landlord and Tenant
Waste where the count was that he had committed waste in ponds which he held in wardship, namely one pond which he had drained and the other in which he destroyed the fish.
Burgh. The writ does not state whether we are guardian de facto or de jure; judgment of the writ for uncertainty (and this was not allowed).
Burgh. The writ does not speak of ponds but of buildings, woods etc.; judgment of the count (and this not allowed)
Burgh. As to one pond because it was so full of reeds that we could not catch the fishes we allowed the water to run out by a pipe and took the fishes and we tell you that when the plaintiff came of age the pond was properly stocked; judgment if action etc. As to the other pond it was common and is now; judgment etc.
Clopton. We say as to the pond that you sold the fish and it is therefore waste etc. and you took more than was appropriate.
BELKNAP, C.J. Be certain that he could have taken sufficient and have left sufficient and committed no waste and have taken for his store enough as in the case of game animals in a park where even if he take for his larder if he leaves enough this will not be adjudged waste.
Clopton. How will this sufficiency be tried?
BELKNAP, C.J. If he be wise he will take his neighbours and show them in what he has found waste, will have his pond tested and show them what he has found there and then I believe that by their view it can be adjudged whether or not waste has been committed and if enough remains or not. And so you will take issue that the ponds were sufficiently stocked when he came of age and so no waste was committed etc. and the others to the contrary that he left sufficient stock at his coming of age and so issue will be taken on that.
Clopton. He has departed from his count because he declared that waste had been committed in one pond by draining it and now he is at issue on the sufficiency of fish which is another cause.
BELKNAP, C.J. I say for certain that is not waste but good and profitable for fish and necessary that a pond be allowed to dry out for one season in the year as for example one summer or in some places for a whole year because after the fry of the pike has come onto the land it likes to remain there without damage for a good while if the land is good for fish and then come from this to the bank of the water at a sufficient time for fish.
So he took issue as above.
1 Citers


 
11 H.4.32 [1409] [Co. Litt. 53a (g)]
1409


Landlord and Tenant
Thomas Earl of Arundel brought a writ of waste alleging that his ancestor had leased a manor to the defendant for a term of years and specified waste in a hall, a kitchen, a stable and certain oak trees.
Norton (for the defendant) says that the plaintiff's ancestor had sold the hall to the prior of Mendham before the lease and by virtue of that sale the prior had dismantled the building after the ancestor's death and asked for judgment. As to the stable he says that the timber of the same was so rotten in the lifetime of his ancestor that it fell down in his lifetime and asked for judgment; and as to the oaks he says that he had cut them down to erect a new stable and had built it with the same oak trees and asked for judgment. As to the rest he pleads that he had committed no waste, and was ready etc.
Skrene. The first plea with regard to the hall amounts to saying no waste committed; but we are ready to prove that it was.
Norton. In as much as we have alleged that your ancestor sold the hall and by force of that sale it was dismantled in your time and you may have your action in respect of that dismantling and intend to have your action against us and you do not respond to this matter we ask for judgment because we have admitted the fact of the waste in this manner and the dismantling and have justified it by reason of the sale by your ancestor and the prior's action, and so etc.
Skrene. Again we ask for judgment for another reason in as much as he has admitted the waste committed by a third party in the dismantling of the hall and the tenant could have stopped him doing this and if the third party did it without his consent he could bring an action against him and so the defendant has not answered us and we ask for judgment etc.
HANKFORD, J.. Although the ancestor sold the hail if the purchaser did not dismantle and remove it in his lifetime after the ancestor's death the hall which was annexed to the free tenement descended to the heir and so no-one was allowed to dismantle it. Cutting a wood or the like are not similar to the dismantling of a building because one can bring a precipe quod reddat for a building and that proves that a building is free tenement and inheritance.
HILL, J. By the ancestor's sale it was at once unannexed from the free tenement and vested in the purchaser as chattel. So, even if he did not dismantle it in the lifetime of the ancestor, he was able to do so after his death, particularly as his entry into the manor was no wrong to anyone except to the lessee. If the manor had been entailed there would be some colour to the heir's claim because then the deed of the ancestor who was tenant in tail would not prejudice him; but when the ancestor had fee simple in the manor (the contrary to this not being pleaded here) it seems his plea is good.
COLEPEPER, J. In this case the plaintiff ought to be in no better position than his ancestor and his ancestor would be barred from action by his own deed, and so etc.
Skrene. Then we say that he himself dismantled the same hall and ask for judgment etc.
THIRNING, C.J. Even if he himself dismantled the hall he could have done this in the name of the prior who acquired it and so you have as yet pleaded nothing to charge him with waste, and so etc.
Skrene. We will make things easier for you and say that he dismantled the hall and sold it for his own profit, as we are ready etc.
Norton. In as much as you do not deny the sale made by your ancestor to the prior and by force of that the ownership belonged to him the dismantling was a wrong to the prior and not to you and we ask for judgment.
And then Norton because of what had said said as before and added 'and that he did not did this for his own profit etc.'
And the others to the contrary.
Skrene. As to the stable his plea is double. One plea is that the wood was rotten in his ancestor's lifetime, which is a matter of 1aw to bar us from action, because the cause of the waste arose in the ancestor's time. The other is that it collapsed in fact in the same ancestor's lifetime.
1 Citers


 
12 H.4. 5 [1410] [Co. Litt. 53a (g)]
1410


Landlord and Tenant
The abbot of Sherborne brought a writ of waste against two husbands and their wives and when the grand distress was returned one husband and wife defaulted and the other husband and wife appeared.
Skrene. Against those who have defaulted we ask for a writ to the sheriff and we are ready to count against those who have appeared.
HANKFORD, J. It is better that those who have appeared should plead and the business can be done by their plea.
Skrene. By the statute of Westminster II, c. 14 a writ will issue to the sheriff by the default of one who makes default and although the writ is brought against them jointly it is not right that those who have defaulted should take advantage of the appearance of their companions; and it might be that the waste was committed by those who have defaulted and in this case it will appear to the laymen that those who have appeared ought not to be convicted of this waste.
THIRNING, C.J. In such a case the waste committed by one will be adjudged the waste of them all which will be explained at trial and it is not here as it is in a precipe quod reddat where each can lose his share by default for in a writ of waste the land cannot be lost by default but tried by the action and those who have appeared can as well be party to the trial of the whole action as if all had appeared.
HANKFORD, J. If the writ should go to the sheriff by default and waste was found and then on the plea of those who did appear no waste was found what would the court be able to do? I do not know and so for the problems that would ensue you may have process at common law by distraint against those who have made default or else those who have appeared may plead and all be tried in accordance with their plea for if it is found that no waste has been committed all will be acquitted by this.
THIRNING, C.J. But if waste is found by their plea it would be hard that the others should be convicted by an inquest to which they were not party and so we wish to be advised (and see there that attaint would not lie for them as I believe for they were not parties to the plea and so a mischief would ensue).
And then they were made to answer.
Norton traversed the waste except in respect of a grange and said that half the grange fell down before the lease and as for the other half he says that it was an unroofed by a sudden storm and before he could re-roof it the plaintiff entered on him and was seised on the day the writ was obtained and we ask for judgment whether he may maintain an action for this waste.
Skrene. We alleged that he committed waste in a grange which we leased to him and he has said that waste was committed in one half of it before the lease commenced and this is no answer to our action, and so etc. For if he himself had erected a new grange there and waste was committed in respect of that our action would be maintainable.
HULL, J. If that is the case show that yourself for his answer is a good one.
Skrene. Good. Then as to the other half his plea is double: one plea related to the sudden storm; the other talks of our entry against him. So we ask that he chooses one.
HULL. J. The plea is not double because the thrust of this plea is that your entry on him was before he could repair the unroofing.
Skrene. If I wished to traverse the entry he would rejoin against me asserting the sudden storm which excused him from waste: for if I lease buildings for a term of years and they are unroofed by a sudden accident I will have no action of waste for that.
HULL, J. What you say is not law because although initially it will not be adjudged waste committed by him but by act of God if he allows the building to remain without a roof and so the timber is damaged he is answerable for that waste because that is his default and by law he is obliged to roof the building.
Skrene. If the whole building is blown down by a sudden wind I am not obliged to rebuild it.
HULL, J. I concede that but where the timbers are standing, which are the substance of the building, and decay for lack of roofing, that is obviously waste.
1 Citers


 
12 H.4.5 [1410] [Co. Litt. 53a (g)]
1410


Landlord and Tenant
(Year Books) The abbot of Sherborne brought a writ of waste against two husbands and their wives and when the grand distress was returned one husband and wife defaulted and the other husband and wife appeared.
Skrene . . if I lease buildings for a term of years and they are unroofed by a sudden accident I will have no action of waste for that.
HULL, J. What you say is not law because although initially it will not be adjudged waste committed by him but by act of God if he allows the building to remain without a roof and so the timber is damaged he is answerable for that waste because that is his default and by law he is obliged to roof the building.
Skrene. If the whole building is blown down by a sudden wind I am not obliged to rebuild it.
HULL, J. I concede that but where the timbers are standing, which are the substance of the building, and decay for lack of roofing, that is obviously waste.
Hull J. (sitting with Thirning, C.J. and Hankford, J.) thus expressed the view (to which there was no reported dissent) arguendo that a tenant for years is liable if through his default he fails to keep the building in repair.
1 Citers


 
7 H.6. 38 [1429] [Co. Litt. 53a (e) and Viner 442, no. 17]
1429


Landlord and Tenant
Waste was brought against one and waste was assigned in respect of a chamber because he had allowed it to fall down for lack of roofing and also in certain cottages, certain oak trees and certain ash-trees, certain pear-trees and certain apple-trees cut down and sold.
Newton. As to any waste done except in the chamber, five cottages, ten oak-trees, three pear-trees and four apple-trees, no waste committed, ready etc. (And the others to the contrary). As for the chamber we tell you that it was unroofed at the time of the lease and beforehand and for lack of great timbers was weak and rotten at the time of the lease and after the lease we roofed it as soon as we could and it did not collapse for lack of roofing after the lease. As for one cottage, the great timber was so weak and so rotten at the time of the lease that it could not stand and so it collapsed; judgment whether waste is to be adjudged against them. As to the ten oak-trees we tell you that he leased us a manor together with the things in which he has assigned waste and we cut down the oak-trees to repair certain buildings within the manor and we repaired them with these same oaks. Judgment etc. As to the five ash-trees, they are timber that is cut every ten years and we cut them as housebote and heybote; judgment. As for the pear-trees and apple-trees they were felled by a great wind and then ceased to bear fruit and we took them for fuel and we did not cut them down as you have alleged as we are ready to prove etc.
Cottesmore. As for the chamber, it fell down for lack of roofing after the lease, as we are ready etc.; as for the cottages, the great timber was not rotten at the time of the lease, as we are ready etc.; as for the oak-trees, he has said that he used them for repair of the buildings of the manor but has not specified which.
BABINGTON, C.J. It may be that one was used in one, another in another etc.
Cottesmore. He cut them down for sale and did not put them to the repair of the manor as he claimed, as we are ready etc. As for the ash-trees they were great trees nine years old and suitable as great timber, ready to prove etc.
Newton. They are grown as a crop and we cut them at the proper time for housebote and heybote and they were not large enough to use as timber, ready to prove etc. (But query here as to the form of pleading)
Cottesmore. As to the pear and apple trees he cut them and sold them, as we are ready to prove etc.
So note from this plea that if trees are felled by the wind they belong to the tenant for life and not the reversioner: but query.
1 Citers


 
7 H.6.38 [1429] [Co. Litt. 53a (e) and Viner 442, no. 17]
1429


Landlord and Tenant
Waste was brought against one and waste was assigned in respect of a chamber because he had allowed it to fall down for lack of roofing and also in certain cottages, . . .
Newton. . . .As for the chamber we tell you that it was unroofed at the time of the lease and beforehand and for lack of great timbers was weak and rotten at the time of the lease and after the lease we roofed it as soon as we could and it did not collapse for lack of roofing after the lease. As for one cottage, the great timber was so weak and so rotten at the time of the lease that it could not stand and so it collapsed; judgment whether waste is to be adjudged against them. . .
Cottesmore. As for the chamber, it fell down for lack of roofing after the lease, as we are ready etc.; as for the cottages, the great timber was not rotten at the time of the lease as we are ready etc.; . . .
So note from this plea that if trees are felled by the wind they belong to the tenant for life and not the reversioner: but query.
The lease was a lease for life. The case was brought and argued on the basis that the tenant is liable where a building falls down in consequence of his not having kept the roof in repair
1 Citers


 
9 H.6. 10 [1431] [Co. Litt. 53a (m)]
1431


Landlord and Tenant
In a writ of waste
Fulthorpe. Judgment of the count. He has alleged waste in oaks and thorns and thorns cannot be considered waste.
Goderede. What do you say in respect of the oaks?
Fulthorpe. That goes for all.
PASTON, J. That is only against the action for part.
MARTIN, J. The whole writ will abate because it appears that if his writ does not lie in respect of part then his action is false in respect of part.
STRANGEWAYS, J.. If the demandant acknowledges some plea which is contrary to his action in part then all the writ abates but that is not an admission but an allowance in his declaration.
MARTIN, J. His declaration is his own words; so he has admitted that his action does not lie in part.
PASTON, J. If a woman in an action of dower makes claim to one third of a manor and of a common, as to the common her claim is void but as to the remainder her claim is good. Moreover he has assigned waste in that the stumps of the thorns have been destroyed for lack of enclosure.
MARTIN, J. If one brings a writ against two and one dies the whole writ abates.
Brown (one of the clerks) says that this is because the writ is false but in this case the writ is good in itself.
And then as to the part Fulthorpe showed how Alice the claimant had a brother who had survived his father and died; and after his death no waste committed etc.
1 Citers


 
11 H.6.1 [1432] [Co. Litt. 53a (i) and Viner 438, no. 10]
1432


Landlord and Tenant
Waste brought against a tenant for term of years for the cutting down of one hundred oaks and in allowing the wood to lie unenclosed so that animals have eaten the shoots of the said wood so that they have ceased to grow.
Danby. It was not the practice in such cases until recently to count in this way but to count generally that he has felled the trees and destroyed the underwood and the shoots; no more than one would mention it in the count if it was a stranger who came on to the land and felled the wood; but it is now the practice to count thus about 'allowing'.
MARTIN, J. It is a good practice for if he counts generally in this case and the other plead 'no waste committed' the lay men will perhaps find that none was committed.
Danby. You will show in evidence to the inquest the whole state of things and if it is so found it will be adjudged waste. And one time in the Chancery it was found by an ex officio inquisition that the lands and tenements contained in the verdict had been given to one in tail and that he after whose death the inquisition was taken had died seised and that by the permission of the tenant in tail and the verdict was held good because notwithstanding that it was found that he died seised of a good estate for each man who dies seised it is by my permission because it is my fault to allow them seisin of their own land.
Rolf. You are not entitled to bring action because we say in respect of the oaks that they are a crop and we say that all the wood growing in this wood which has been leased for a life term or a term of years has always been lopped at the age of twenty years or less as a crop. And since it is of the age of twenty years he lopped it as a crop.
Judgment.
Fulthorpe. Oaks cannot be described as a crop to lop at a certain age; and so we ask for judgment on his own admission and ask that he be convicted of waste.
Rolf. We have alleged that this has always been the usage for them to be felled at that age, and thus we have committed no waste etc.
Fulthorpe. You have not alleged that the custom of such a hundred or county within which the wood lies is such and so the custom you allege is not to the purpose.
MARTIN, J. There is no need to say more. In some places that which is called high timber is only croppable wood and underwood and vice versa according to whether timber if plentiful or not. For where there is great plenty of wood great oaks of the age of twenty years or below are customarily lopped as croppable wood but where there is a scarcity of wood it is not customary to lop it as croppable timber. So if it has not been the usage to cut it as cultivated timber show this to the court because there can be cultivated timber and oaks called 'wranlons' which will not become timber but are good only for burning and it is not adjudged waste and in some places it is so; and thus etc.
And then MARTIN, J. ordered Rolf to plead in respect of the shoots.
Rolf. As to them we tell you that our servants when they carted away wood negligently left the gates to the wood open and animals entered and ate the shoots but they grew back and we committed no other waste.
Fulthorpe. We ask that he be convicted on his own admission because if the animals have eaten the shoots they will never afterwards become timber but only shrubs.
Rolf (maintaining our claim that the animals entered the wood by the negligence of our servants and ate the shoots and they grew again afterwards) by way of plea we say no waste committed.
MARTIN, J. If in your protestation you admit waste the plaintiff will be able to take advantage of this as much as if you had admitted it in your plea; and so etc.
And then Rolf. No waste committed in the manner etc., as we are ready etc.
Danby. Nothing will be entered on the roll except generally 'no waste committed'.
And so they pleaded thus 'Ready etc. and the others to the contrary'.
And as to the oaks the opinion of the whole court was that Rolf could not have justified the lopping as of a crop unless he had said they were of the age of twenty years because if they were over the age of twenty years it is not a croppable wood.
1 Citers


 
11. H.6.1 [1432] [Co Litt 53a (i) and Viner 438 no 10]
1432


Landlord and Tenant
Waste brought against a tenant for term of years for the cutting down of one hundred oaks and allowing the wood to lie unenclosed so that animals have eaten the shoots of the said wood so that they have ceased to grow.
Danby It was not the practice in such cases until recently to count in this way but to count generally that he has felled the trees and destroyed the underwood and the shoots; no more than one would mention it in the count if it was a stranger who came on to the land and felled the wood; but it is now the practice to count thus about 'allowing'.
MARTIN, J. It is a good practice for if he counts generally in this case and the other plead 'no waste committed' the lay men will perhaps find that none was committed . . .
And then MARTIN, J. ordered Rolf to plead in respect of the shoots.
Rolf. As to them we tell you that our servants when they carted away wood negligently left the gates to the wood open and animals entered and ate the shoots but they grew back and we committed no other waste.
Fulthorpe. We ask that he be convicted on his own admission because if the animals have eaten the shoots they will never afterwards become timber but only shrubs.
Rolf (maintaining our claim that the animals entered the wood by the negligence of our servants and ate the shoots and they grew again afterwards) by way of plea we say no waste committed.
MARTIN, J. If in your protestation you admit waste the plaintiff will be able to take advantage of this as much as if you had admitted it in your plea; and so etc.
And then Rolf. No waste committed in the manner etc., as we are ready etc.
Danby. Nothing will be entered on the roll except generally 'no waste committed'.
1 Citers


 
18 H. 6. 33b [1440] [Viner, 449, no. 3]
1440


Landlord and Tenant
A very long scire facias case mainly concerned with other matters. Viner is picking up a passing reference in an argument by Markham that runs as follows: Markham. In a writ of waste brought against me I may well plead that at the time the lease was made the building was ruinous and then collapsed or that it was knocked down by a sudden chance or burned by lightning and ask for judgment if action lies and will not be compelled to take the common issue 'no waste committed' because the lay men cannot judge whether this is waste or not. So also here.
1 Citers


 
20 H.6. 1 [1441] [Co. Litt. 53b (r) and Viner 439, nos. 33, 34]
1441


Landlord and Tenant
The plaintiff counted that the defendant had committed waste in certain land that he held by curtesy of his inheritance and assigned as waste allowing a sewer within the land not to be maintained so that so much meadow being part of the land is flooded, to the disinheritance etc.
Markham. That cannot be waste for the banks of the sewer can be repaired and then the meadow will be as good as before and so there is no disinheritance of the plaintiff.
NEWTON, J. If the sea breaks through the sea dikes and floods my meadow so that I cannot get it back that will be accounted waste; and the same reasoning applies where it is done by fresh water and so this waste seems to be well assigned.
Fortescue. Even if the banks are repaired if the water has caused my meadow to become rushy that is waste; and so etc.
Portington. The writ is that per inundacionem et loturam the meadow has become wasted and that proves that the waste etc. for if the land had been arable and not meadow and had been well cultivated and well looked after if the water per inundaciones et loturam had washed away and voided this good land so that nothing remained except the 'tough clay' that would have been waste; and so here and therefore etc.
AYSCOUGH, J. This waste is surprisingly assigned.
Portington. Even if the meadow by repair of the banks is able to grow again and become as good as before that cannot be for a long time because if a wood is wasted that can grow as well as before but that cannot be for such a long time it will be accounted waste; here too.
Markham. We may have advantage of that afterwards as much as belongs because whereas he has supposed by his count that the waste was committed in lands held by curtesy after the death of our wife we tell you that our wife never had anything in these lands after the marriage.
Portington wished to have demurred on the plea because it was no more than an assertion. So Markham said that one Ellis enfeoffed him without him ever having anything by way of curtesy.
1 Citers


 
22 H.6. 12a [1443] [Co. Litt. 53a (i)]
1443


Landlord and Tenant
In a writ of waste the plaintiff made a declaration through Danby and assigned as waste the felling of one hundred oaks and also the waste made to the stumps of these same oaks.
Bingham. It appears by the count that the waste is assigned in respect of the same thing twice over, namely the cutting down of the oaks is one waste assigned and the other is of the growth on the stumps of the same oaks, but this is in law all one waste.
NEWTON AND PORTINGTON, JJ. AND ALL THE COURT. These are different wastes because if the growth growing from the stumps had been safely looked after it would have grown eventually back into oaks. For if a tenant for life cuts down forty oaks and afterwards perhaps continues in possession for twenty years and then because they are well grown he cuts them at the same place the reversioner will have an action of waste and may count of both wastes and recover triple damages twice over.
Bingham. How can that be? For the plaintiff in an action of waste aims to recover the place wasted and he cannot recover it twice.
NEWTON AND PORTINGTON, JJ. That is true. He ought to recover the place wasted just once but the damages in triplicate twice.
And then the defendant pleaded: no waste committed etc.
1 Citers


 
22 H.6. 18 [1443] [Co. Litt. 53a (c)]
1443


Landlord and Tenant
In a writ of waste the waste assigned was in respect of a house, twenty oaks, forty cart-loads of clay.
Markham. Clay cannot be called waste.
To which it was said by the Court that it is waste in as much as the soil is made poorer by removal of the clay.
Markham. As for the house, it was so ruinous and rotten that it was about to fall down and so it was demolished and rebuilt (judgment if action lies etc.); as for the oaks they were cut down for timber for the house and the timber was used in the house as for posts, spars and panels (judgment if action lies etc.); as for the clay he dug this out of the soil to take for the house. Judgment if action etc.
Danvers (not admitting that the house was ruinous or rotten): the previous house was forty-eight feet in length and forty feet wide and the new house is forty-eight feet in length; and in so far as he has thereby admitted waste we ask that he be treated as confessing etc.
Markham. The new house is as good and as profitable as the old one was.
NEWTON, J. How can it be thought that a house forty-eight feet long and forty feet wide will be of as great value and as profitable as a house that is eight foot wide and of the appropriate width? And as Danvers well said when the defendant demolished the house that was his folly because in this case he must make a new house of the same length and width as the other, but if the house had fallen down and he had erected a new one he would not have had to erect it to the same dimensions as the old house.
Markham. We tell you that we demolished the house with the assent and by the agreement of the plaintiff and erected a new one as good and profitable as the old one, ready etc.
Danvers. We hold to the plea as we pleaded it etc.
NEWTON, J. You say well.
Markham. We ask for judgment etc. and ask that he be barred.
And thus they demurred for judgment and then nothing was entered of this save a licence to imparl.
1 Citers


 
23 H.6. 24/22 H. 6 24 [1443] [Co. Litt. 53a (b); Viner 446, no. 12]
1443


Landlord and Tenant
In a writ of waste
Danby. Judgment of the writ for the writ supposes the waste to have been committed in terris, domibus, boscis et pratis and he has counted among other things of waste committed in knocking down a fence that surrounds a house and this cannot be adjudged waste; judgment of the writ.
And by the whole of the Court this was adjudged no waste; nor is a wall uncovered waste but a wall roofed in thatch or a fence covered with timber can be waste, but here is no such matter shown; and no waste can be shown in the breaking down of a hedge.
Danby. We now ask that all the writ be abated because it appears by his own acknowledgement that this writ is defective in part and when he acknowledges that it is defective in any part the whole writ abates.
NEWTON, J. If this is by the acknowledgment of the party then that is true but it is different when it is a surmise from the writ or declaration; so answer to what remains.
Danby. Again, judgment of the writ because it appears from the writ that the lease was made by the wife and one T. then her husband in which case during the coverture she can make no lease but it will be adjudged the lease and the deed of the husband. So, judgment of the writ.
NEWTON, J. We cannot adjudge this the deed of the husband alone because she can assent to the lease if she wishes and then it will be said to be a lease of the husband and of the wife. So the court adjudged the writ good.
Danby. Again judgment of the writ because we tell you that the wife and her then husband T. held only in parcenry with R.K. and his wife A. as of the right of A. Judgment of the writ.
NEWTON, J. AND THE WHOLE COURT. That is not a plea unless you wish to show that A. is still living and it is still not a plea because if there are two joint tenants and one makes a lease of the whole that is a disseisin committed against her companion in respect of the moiety and so the reversion belongs only to the one who made the lease of the entirety.
Danby. We tell you that the woman who is now plaintiff and T.H. then her husband and R.K. and A. his wife were seised as of the right of their wives and made the lease jointly for the terms of their lives and R. is still living, and that T.H. and his wife did not make the lease alone as the plaintiffs have suggested; so judgment of the writ.
NEWTON, J. AND THE WHOLE COURT. That is still no plea without showing that A. is still alive or that A. had issue which is still living or else that R. had issue with the said A. and so he is tenant by the curtesy at least, for you cannot abate this writ unless you are willing to give the claimant a better writ.
Danby. It is not right that the tenant be charged jointly against those who made the lease and also severally and the said R. Kend' has an action of debt for the arrears.
And THE COURT said that Robert would have an action of debt for the arrears accrued during his wife's lifetime, otherwise not. So etc.
Danby says (as before) that the lease was made jointly and that R. had issue with the said A., one John, and this R. is still living and that the lease was not made by T.H. and his wife alone; judgment of the writ.
On another day
NEWTON, J. It seems that the plea is good because there is enough privity to make the husband and wife and the said R. privy in an action, because a writ of partition lies against the tenant by curtesy and it is not inappropriate that one who has the fee simple in reversion should join in an action of waste with one who has in reversion only a life interest, for suppose that the reversion of a tenancy for life is granted to two people and the heirs of one of them, then they ought both to join in an action of waste and it will be supposed by the writ that the waste was committed to the disinheritance of the one, namely the one who has the fee simple. Suppose also that a husband makes a lease for life of his wife's right: does he have the reversion in his own right or in right of his wife?
Danby. In right of his wife.
NEWTON, J. That is right because such estate as he had in the land before the lease he has now in the reversion (but query because this is surprising to me)
1 Citers


 
5 E.4. 89 [1465] [Viner 446, no. 9]
1465


Landlord and Tenant
A writ of waste was brought and declaration made that the waste had been committed in a messuage, namely in one hall and assigned the waste in a chamber etc. and in a kitchen and assigned the waste in allowing the kitchen to fall down because he did not put piers under the walls of the kitchen called the 'grunsel' etc. Judgment was asked of the count as this could not be waste to allow the 'grunsels' of a building to waste, for the tenant, namely the termor or lessee, is not obliged to have this thing repaired any more than the timber of the messuage because if he keep the buildings roofed so that the timber does not waste because of lack of this nor the grunsels of the building nor the timber of the walls the tenant does enough on his part because he is not obliged to repair the timber of the house nor of the 'grunsels' which is the basic structure of the building as much as the posts and the timber of the building. But repairs of this sort belong solely, as it seems, to the lessor, the lord, and not to the tenant and thus it seems that this previously mentioned is not waste in the tenant etc. According to some of the court it seemed to the contrary for if the tenant allow the 'grunsels' to waste and by his failure to protect or to remove water which flows or runs onto this or earth or dung or other nuisance which lies or rests on it the tenant will be charged with this as much as if he broke the 'grunsels' and caused the building to fall down because the tenant is at least obliged to ensure that which is leased to him is in as good a condition as it was when it was leased to him. So in the case here if the plaintiff had declared that he leased this kitchen to him well-roofed and with good 'grunsels' and good walls and all in good condition and then the tenant allowed the 'grunsels' to waste and rot and so the building fell down then the tenant, as it seems, will be charged with waste as a result of his own folly. Likewise here because by this declaration it will be taken by common understanding that the kitchen was prima facie sufficient and was good throughout, that is, in good repair above and below etc. and so then by his sufferance, he declared further, he suffered the 'grunsels' to be wasted and that cannot be taken otherwise than that everything was fine at first and now by his sufferance was otherwise and a tenant will be put by the law at least to repair it because he leased it to him to be left in as good a condition every time and thus to repair and look after it in at least as good a condition as he found it; and otherwise he is chargeable with waste etc.
Littleton. This matter goes to our action in this respect.
Catesby. Iwas taught that this is an exception to the count and by this the whole count is abatable.
CHOKE, J. Ifthis is or is not adjudged waste, whichever one, that will only affect the action in this respect, for if it is not adjudged waste the plaintiff will not be barred by this except from this part of his claim and the remainder will still stand etc.
And because the better opinion of the court was that the count was good the defendant passed over and pleaded no waste.
1 Citers


 
5 E. 4. 100 [1465] [Co.Litt. 53a (p)]
1465


Landlord and Tenant
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.
1 Citers


 
5 E.4 89 [1465] [Viner 446 no 9]
1465


Landlord and Tenant
A writ of waste was brought and declaration made that the waste had been committed in a messuage, namely in one hall and assigned the waste in a chamber etc. and in a kitchen and assigned the waste in allowing the kitchen to fall down because he did not put piers under the walls of the kitchen called the 'grunsel' etc. Judgment was asked of the count as this could not be waste to allow the 'grunsels' of a building to waste, for the tenant, namely the termor or lessee, is not obliged to have this thing repaired any more than the timber of the messuage because if he keep the buildings roofed so that the timber does not waste because of lack of this nor the grunsels of the building nor the timber of the walls the tenant does enough on his part because he is not obliged to repair the timber of the house nor of the 'grunsels' which is the basic structure of the building as much as the posts and the timber of the building. But repairs of this sort belong solely, as it seems, to the lessor, the lord, and not to the tenant and thus it seems that this previously mentioned is not waste in the tenant etc. According to some of the court it seemed to the contrary for if the tenant allow the 'grunsels' to waste and by his failure to protect or to remove water which flows or runs onto this or earth or dung or other nuisance which lies or rests on it the tenant will be charged with this as much as if he broke the 'grunsels' and caused the building to fall down because the tenant is at least obliged to ensure that which is leased to him is in as good a condition as it was when it was leased to him. So in the case here if the plaintiff had declared that he leased this kitchen to him well-roofed and with good 'grunsels' and good walls and all in good condition and then the tenant allowed the 'grunsels' to waste and rot and so the building fell down then the tenant, as it seems, will be charged with waste as a result of his own folly. Likewise here because by this declaration it will be taken by common understanding that the kitchen was prima facie sufficient and was good throughout, that is, in good repair above and below etc. and so then by his sufferance, he declared further, he suffered the 'grunsels' to be wasted and that cannot be taken otherwise than that everything was fine at first and now by his sufferance was otherwise and a tenant will be put by the law at least to repair it because he leased it to him to be left in as good a condition every time and thus to repair and look after it in at least as good a condition as he found it; and otherwise he is chargeable with waste etc.
Littleton. This matter goes to our action in this respect.
Catesby. I was taught that this is an exception to the count and by this the whole count is abatable.
CHOKE, J. If this is or is not adjudged waste, whichever one, that will only affect the action in this respect, for if it is not adjudged waste the plaintiff will not be barred by this except from this part of his claim and the remainder will still stand etc.
And because the better opinion of the court was that the count was good the defendant passed over and pleaded no waste.
1 Citers


 
9 E.4. 35 [1469] [Co. Litt. 53b: (p)]
1469


Landlord and Tenant
Report of an action of right for land which then half way through seems to become a report of a quite different action of trespass or of nuisance in which there is one relevant speech by NEEDHAM, J. If a man erect a building to the nuisance of my house I can remain on my land or in my house and demolish his building and I will without doubt be able to justify this; so in this case the defendant will not be punished for the demolition of the building or uprooting of the stakes, but as to the entry into his land the action is not brought for the entry etc. and so etc. But it seems to me that the entry is not allowable for if I lease land to someone for a term of years in which there is a mine of tin, iron or lead or coal and I enter and take the tin, iron etc, the termor ought not to punish me for this taking for he is not entitled to this tin etc. It is likewise for great trees. But for entry onto the land and trampling down of the earth he may punish me.
DANBY, C.J. It is doubtful whether if the law gives you the trees or the tin and you cannot take them without entering your entry is not lawful.
NEEDHAM, J. It is folly on the part of the lessor to make such a lease.…
1 Citers


 
12 E.4. 1 [1472] [Co. Litt. 53a (k)]
1472


Landlord and Tenant
In waste brought by two on a lease for life. One of the plaintiffs was summoned and severed and the other sued on and alleged waste in respect of various matters etc. and also in cutting down willow trees. The waste was found and the damages assessed and he had judgment to recover a moiety of the damages and a moiety of the place wasted and as to the willows the court wished to consider further whether or not it was waste etc. (40 E.3.15; 12 H.8.l where willows were considered waste)
1 Citers


 
2 H.7. 24 [recte 2 H.7. 14] [1487] [Co Litt 53b (p)]
1487


Landlord and Tenant
In a writ of waste brought against a tenant for a life term who pleaded an order of the plaintiff and that he ordered him to dig for gravel. On which there was a demurrer for judgment as to whether or not the order was good.
Keble. It seems that it is not good and this order was void in law for there is no good order except that he who gave it had power over the thing and here the lessor had no power over the land during the life of the tenant for life. For the tenant for the term of his life can have an action of trespass against the lessor for digging his land and that proves that he has no power to order something in relation to something in which he has no interest and thus the order is void. For if I order a man to take the goods of J.A. and afterwards J.A. makes me his executor I will have an action against him as executor and this order will not help him because I had no power to give the order. And so if I order a man to kill my father I will have an appeal against him. And if I bring a formedon against a man and deliver to him a writ of estrepment and I order him to cut trees I say that this order will be of no avail to him afterwards.
And BRYAN, C.J. said that it was equally dubious.
Wood (to the same effect). And said that this action is given by the statute of Westminster II and this order by words alone could not bar the statute and said that if a man has an apprentice a discharge or licence in words alone is not valid.
Jay and Rede argued to the contrary.
Haugh of the same opinion.
TOWNSHEND, J. to the contrary: for it is gravel and land is part of the inheritance of the lessor as much as the reversion, for digging the land is disinheritance of him and it is part of his inheritance; so he cannot grant this by bare words for inheritance cannot pass by bare words and if he wishes to grant his reversion by words it will not pass; no more is his order good without a deed.
BRYAN, C.J. To the same effect and said that it is necessary to show a specialty to extinguish some thing when a man has confessed his duty on one occasion and afterwards wants to avoid it; otherwise not; for if the deed makes the duty conditional then there is no need of any writing as if I make an agreement to construct a building by indenture I will say that I have done that. And there is a difference between gravel and trees for the lessor cannot take land as it is not his but the trees are his and so he can order them to be cut; but not to dig any land whether in writing or without it.
1 Citers


 
10 H.7.2 [1494] [Co Litt 53a [b]]
1494

Bryan CJ, Fyneux and Vavasour JJ
Landlord and Tenant
Waste brought by an abbot; and he counted how the defendant had committed waste in various things in lands leased to him by his predecessor for a term of years; and assigned as waste . . . the permitting of a certain house to fall . . .
Also the non-covering of a house is not waste except for the 'putrefaction' of bare timbers for lack of roofing of a house . . .
And it was adjudged that one who holds for the same term is punishable for permissive waste, where he allows a ruinous house to fall down where the house was not ruinous at the time of the initial lease. But if the house was ruinous at the time of the initial lease and falls down during the time of one who holds for such a term there is no remedy for the initial lessor because he does not have nor could he have any cause of action against anyone in this case. But where the house was in good repair at the beginning and after becomes ruinous he in whose time it falls down will be punished during the lifetime of the lessor or his lessee . . .
And it was held by all the justices that if I lease a house for a life term or term of years if the house is not roofed at the time of the making of the lease the lessee is not obliged to roof it; and also if the house is ruinous at the time of the making of the lease this is good matter for the termor to show in a writ of waste. . .
1 Citers


 
10 H.7.5a [1494] [Co Litt 53b (s)]
1494


Landlord and Tenant
In the Common Bench a writ of waste was brought and the plaintiff assigned as waste allowing an earthwall to stand uncovered so that it was destroyed by rain-storms; and he also assigned as waste allowing another wall made of wood to decay and also in cutting down 'silber' trees and apple trees in an orchard.
Rede and Wood. It seems that it cannot be adjudged waste in respect of the walls for waste cannot be adjudged in respect of any thing other than something which has permanent existence, but an earthwall cannot exist for more than ten or twelve years and if something that exists for so short a time is damaged that cannot be called waste. . . .
Keble (to the contrary). As to the timber wall that is waste because it is part of the free tenement and the defendant may not transform the buildings leased to him but must keep them in as good a state as he received them. And if this wall had been within a building it would be waste without doubt. For if I lease a house to a man in which there are several chambers and the lessee knock down the walls which divide the chambers and turn this house into a single chamber it is waste. For the same reason that the knocking down of a wall within a house is waste the knocking down of a wall outside a house will be accounted waste. . . .
Fineux. To my understanding (and he rehearsed the reasoning of Keble) and he also understood the waste assigned in the wall to be well assigned because by its destruction the inheritance is harmed and if the inheritance is harmed by the act or the negligence of the lessor it will be accounted waste. . . .
VAVASOUR, J. To the same purpose with respect to the trees. But as to the waste assigned in the wall, none has been assigned because it appears that it was uncovered at the time of the lease and so the lessee is not obliged to cover it. For if I lease a building that is unroofed to a man for term of years the lessee is not obliged to roof it. So the waste in the wall is not well assigned.
1 Citers


 
10 H.7. 5a [1494] [Co. Litt. 53b (s)]
1494


Landlord and Tenant
In the Common Bench a writ of waste was brought and the plaintiff assigned as waste allowing an earthwall to stand uncovered so that it was destroyed by rain-storms; and he also assigned as waste allowing another wall made of wood to decay and also in cutting down 'silber' trees and apple trees in an orchard.
Rede and Wood. It seems that it cannot be adjudged waste in respect of the walls for waste cannot be adjudged in respect of any thing other than something which has permanent existence, but an earthwall cannot exist for more than ten or twelve years and if something that exists for so short a time is damaged that cannot be called waste. So also the cutting of the trees cannot be adjudged waste for those trees are underwood and one ought not to be impeached for cutting them down, for if such trees are cut down they will grow the better and one can plant new trees and have fruit within three or four years and if they are not cut when they come to the right age they rot and decay; and so etc.
Keble (to the contrary). As to the timber wall that is waste because it is part of the free tenement and the defendant may not transform the buildings leased to him but must keep them in as good a state as he received them. And if this wall had been within a building it would be waste without doubt. For if I lease a house to a man in which there are several chambers and the lessee knock down the walls which divide the chambers and turn this house into a single chamber it is waste. For the same reason that the knocking down of a wall within a house is waste the knocking down of a wall outside a house will be accounted waste. Also the waste in the cutting down of trees is well assigned for they can grow in a certain place and their cutting be accounted waste and in another place where it will not be. For if such trees are growing in a wood and are cut down that will not be called waste for there they are nothing but underwood but if this underwood be planted within the site of a manor or house to provide shelter from the wood it will be called waste if they are cut down. And if I have a wood of willows and hazels and there are no oaks there their cutting will be accounted waste. So in this case, in so far as etc.
Fineux. To my understanding (and he rehearsed the reasoning of Keble) and he also understood the waste assigned in the wall to be well assigned because by its destruction the inheritance is harmed and if the inheritance is harmed by the act or the negligence of the lessor it will be accounted waste. If the lessee remove an oven, bench, door or window that will be accounted waste.
VAVASOUR, J. to the same purpose with respect to the trees. But as to the waste assigned in the wall, none has been assigned because it appears that it was uncovered at the time of the lease and so the lessee is not obliged to cover it. For if I lease a building that is unroofed to a man for term of years the lessee is not obliged to roof it. So the waste in the wall is not well assigned.
1 Citers


 
13 H.7. 21 [1498] (recte 13 H.7. 20) [Co. Litt. 53a (c)]
1498


Landlord and Tenant
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
1 Citers


 
13. H.7.21 [1498] (recte 13 H7 20) [Co Litt 53a (c)]
1498


Landlord and Tenant
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. . .
VAVASOUR, J. ...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; . . .
1 Citers


 
12 H.8. 1 [1520] [Co. Litt. 53a (c)]
1520


Landlord and Tenant
One N. brought an action of waste against J., suggesting that he had cut down certain trees etc. And the defendant pleaded that he had committed no waste. Subsequently at nisi prius in the county he gave in evidence that the plaintiff had leased him a messuage with certain lands for a term of years by a deed and had granted to him that he might cut down trees to repair the house; and he also showed that the house was ruinous at the time of the lease and how he had cut down certain trees to repair it. And the plaintiff demurred on this evidence. And subsequently this was argued in the Common Bench. And
BROOKE, J. said that where one pleads the general issue in detinue or trespass or similar actions and then gives special matter in evidence which is in discharge of the action this evidence is not good nor will it support this issue and if the plaintiff demur on this evidence it is peremptory to the defendant. As for example if in debt he pleads that he owes him nothing and they join issue on this and the defendant gives in evidence a release made to him by the plaintiff he does not discharge his action in accordance with the evidence by this evidence. So too in trespass, if he pleads not guilty and gives in evidence a release; the same in battery if he pleads not guilty and gives in evidence that he acted in self-defence; the same in maintenance, if he pleads not guilty and gives in evidence a lawful maintenance; the same in an action for poaching, if he pleads not guilty and gives in evidence a licence; the same in an appeal, if he pleads not guilty and shows how he was sheriff and was carrying out his duties, or that he was a forester and killed him because he was fleeing and would not surrender. So also in waste if he pleads 'no waste committed' and shows that he cut down the trees to repair the house and so he has done here. But where a special evidence shows that he himself has title to the thing, that is a good evidence and will support the issue. As in the case of trespass for entering the land, if the defendant pleads not guilty and gives in evidence a lease of the same land; or in the case of trespass for carrying off goods the defendant pleads not guilty and gives in evidence a gift of them; so in waste to plead 'no waste committed' and to give in evidence things that show it was not waste, as where a house was burned by enemies or by lightning or that it was ruinous at the time the lease was made and fell down as a result or that a house or trees fell down as a result of wind or storm.
Then as to whether this is to be called waste and it seems not for he shows that the house was ruinous at the time the lease was made and thus he could well cut down trees to repair it. And this was not to the disinheritance of the lessor because it was to repair the house for otherwise it would decay. But if the house was rotten or ruinous at the time of the lease and the lessee agreed to repair all the houses on the land then by that deed he is bound to maintain and support them and otherwise an action of waste lies against him and he can take trees for this and it is certainly justifiable. For by the Common Law where the lessee is bound and charged with repairs and he may take trees or other necessary things such as stones that are on the land for repairs. And so at Common Law the lessee will have heybote, ploughbote, housebote and hedgebote on the land for necessary use even though that is not expressed in the lease. (This ALL THE JUSTICES agreed). But if he took more than is necessary then he will be punished in waste. And if the house is ruinous at the time of the lease or rotten or consumed and collapses within the term no action lies for this waste for the lessee is not bound to repair unless he agrees this, but he may cut trees and repair with them and justify this in an action of waste. But if the lessee of a park allows the park fence to decay to the point that the park is no longer enclosed an action of waste does lie in respect of a wall or a hedge that is 'quickset' and a fortiori if the lessee destroys it, as also if he allows the house to fall into decay or cuts great trees and sells them or converts them to his own use. So too if he himself burns down the house even if this is against his wishes as where others destroy or burn it an action lies. Again if the house is sufficiently repaired but burned by the king's enemies or by lightning that is no waste. So in this case it is not waste because he did this by virtue of his lease and it was also ruinous at the time of the making of the lease and he might cut down trees at Common Law and it is justifiable. But because he did not plead justification nor plead this is in bar he has lost the advantage of this and the plaintiff will recover.
POLLARD AND ELYOT, JJ. argued like Brooke in effect.
BRUDENEL, J. If one has special matter to plead in bar but takes the general issue he may not give special matter in evidence and will never have any advantage from this and that is if the evidence is contrary to the issue as here where he pleaded 'no waste committed' and showed in evidence that he had committed waste but for such a purpose; now he will have no advantage of this. As if someone gives me licence to commit waste and then makes a lease to me and brings a writ of waste against me I may plead this matter but if I take the general issue I will never have advantage of this matter. Then as the other point, it seems that it is waste but not punishable. As where the reversioner cuts down trees it is waste because it is prejudicial to the inheritance but it is not punishable. So if the lessor ought to repair the house and allows it to decay it is waste but not punishable; but if the lessee is obliged to repair it then it is waste. As cutting down willows is not waste if they are growing in one place but if they are within view of a manor to shield it from the wind or on a bank to support the bank then it is waste. But in this case it was waste but justifiable. For if the lessor agrees to repair a house and refuses to do so the lessee can do so and keep back as much money as is needed and if there are trees growing there he can cut them down and use them in repair (which was agreed). But here because he has not shown this he has lost the advantage of it.
And the plaintiff had judgment to recover.
1 Citers


 
12. H.8. 1 [1520] [Co Litt 53a (c)]
1520


Landlord and Tenant
(Year Books) One N. brought an action of waste against J., suggesting that he had cut down certain trees etc. And the defendant pleaded that he had committed no waste. Subsequently at nisi prius in the county he gave in evidence that the plaintiff had leased him a messuage with certain lands for a term of years by a deed and had granted to him that he might cut down trees to repair the house; and he also showed that the house was ruinous at the time of the lease and how he had cut down certain trees to repair it. And the plaintiff demurred on this evidence. And subsequently this was argued in the Common Bench. And BROOKE, J. said . . . And if the house is ruinous at the time of the lease or rotten or consumed and collapses within the term no action lies for this waste for the lessee is not bound to repair unless he agrees this, but he may cut trees and repair with them and justify this in an action of waste. But if the lessee of a park allows the park fence to decay to the point that the park is no longer enclosed an action of waste does lie in respect of a wall or a hedge that is 'quickset' and a fortiori if the lessee destroys it, as also if he allows the house to fall into decay.
POLLARD AND ELYOT, JJ. argued like Brooke in effect.
1 Citers


 
Burgh v Potkyn (1522) YB 14 Hen 8 f10 pl 6
1522


Landlord and Tenant
The court originated the concept in law of a periodic tenancy.
1 Citers


 
Anon 2 Mar 1 22 Vin Abr 447; 73 ER 930; (1554-55) Brooke's new cases 190
1554


Landlord and Tenant
It was held by the Chief Justice that the erasing of a new frame, which was never covered, is not waste. But it was agreed that if a house be ruinous for default of any covering at the time of the death of the lessor, and afterwards the tenant suffer it to be more ruinous, for the new ruin the heir shall have an action of waste: for this is waste which continues: for the decay which came in the time of the heir, the heir shall have an action of waste: it is otherwise in the case of the waste which existed in the lifetime of his father.
1 Citers


 
Say v Smith (1563) 1 Plowden 269; (1563) 75 ER 410
1563

Anthony Brown J
Landlord and Tenant
A lease for a term certain purported to add a term which was uncertain. Held: The lease was valid only as to the certain term. Anthony Brown J said:"Every contract sufficient to make a lease for years ought to have certainty in three limitations, viz. in the commencement of the term, in the continuance of it, and in the end of it; so that all these ought to be known at the commencement of the lease, and words in a lease, which don't make this appear, are but babble.
And these three are in effect but one matter, showing the certainty of the time for which the lessee shall have the land, and if any of these fail, it is not a good lease, for then there wants certainty. Here in the principal case there is none of these three certainties for any term beyond the first ten years are passed, there is a condition here appointed which shall be performed before any new term shall commence, and before the condition is performed there shall be no lease, for such is the limitation of the lessor. Every lease for years ought to have a term certain and or determination. Where the demise and grant is to hold from ten years to ten years out of memory, if the words, out of memory, be referred to the time to come, it does not signify any certainty of continuance, for he said that a thousand years to come are not more out of memory than a day to come, for that which has not come is not within memory, but memory is referred to the time passed. So that it be referred to the time to come, it cannot be known whether the, or a hundred, or a thousand years be intended thereby, for the one of these is nor more out of memory than another."
1 Citers


 
Griffith's Case 72 ER 447; 6 Eliz1 (1564); Moore (K.B.) 70 Case No 187
1564


Landlord and Tenant
Walter Griffith assigned waste in that the lessee suffered the banks of the River Trent, which flowed through the said lands, to be unrepaired, whereby the water burst the banks and surrounded the lands by default of the lessee. It was held by all the justices that this was waste, because the Trent is not so violent but that the lessee by his policy and industry could well preserve the banks, and cause the water to flow within its limits. But the violence of the sea is such, that it cannot by any policy be restrained; wherefore if by tempestuousness the sea bursts the walls and surrounds the land this is no waste.
1 Citers


 
Anon Trin 6 Eliz (1564); Moore (KB) 62 no. 173 Waste; 72 ER 442
1564

Dyer J
Landlord and Tenant
Waste in a marsh was alleged, in that the lessee had allowed a sea wall adjoining the marsh to become ruinous, as a result of which the sea had caused damage to the land. Counsel submitted that the allegation was not good, because the overflowing of the sea could not make waste, since the sea could not be controlled. Dyer, J. said that it seemed reasonable that if there were a small breach in the wall which the lessee did not repair, but allowed it to continue, so that after the violence the sea broke the whole wall and surrounded the land, that was waste, because it could have been avoided by thelessee at the beginning. But if it occurred suddenly, that could be pleaded in bar of the accusation. But he said that it would be a rare case and asked the clerks whether they had any precedents of such an allegation: and they answered no.
1 Citers



 
 Richard Scot v Lord Somerville; SCS 29-May-1565 - [1565] Mor 785

 
 Anon; 1568 - (1568) 3 Dyer 281b; 73 ER 632; Mich 10 and 11 Eliz
 
The Bishop of Bath's Case [1572] EngR 386; (1572-1616) 6 Co Rep 34; (1572) 77 ER 303
1572
CCP

Landlord and Tenant
A Lease was made to A and B for 60 years, with a clause of re-entry immediately after the deaths of A and B and of the longer liver of them within the term. After the death of A within the term another lease of the same lands was made to C habendum et occupandum, when the former lease shall determine, after, or by the death, surrender or forfeiture, of the said B. Held: the second lease shall commence either after the re-entry by force of the proviso, if any be, and if none, then after the determination and end of the first term by any of the other means.
That every lease for years should have a certain beginning, is to be intended when it is to take effect in interest or possession.
That the continuance of a lease for years ought to be certain, is to be intended either when the term is certain by express numbering of years, or by reference to certainty, or by reducing it to certainty by matter ex post facto, or by construction of law by express limitation.
When a lease for years shall be made good by reference, the reference ought to be to a thing which has express certainty at the time of the lease made, and not to a possible or casual certainty.
A demise for the term of one year, and so from one year for a year, as long as both parties shall please, is but a lease for three years at most. If a lease be made for years, it is a good lease for two years.
A void limitation of the commencement of a lease for years, and no limitation, is all one.
In construction of law on the commencement of leases, the construction shall be the strongest against the lessor, and most beneficially for the lessee. If a man makes a lease for years, to commence after the surrender, forfeiture, determination, or end, of a former lease, the lessee shall not have election, but whichever event shall first happen, on the happening of it the second lease, which before consisted in interesse termini, shall begin in possession.
1 Citers

[ Commonlii ]
 
Spencer's Case [1572] EngR 378; (1572-1616) 5 Co Rep 16; (1572) 77 ER 72
1572
KBD

Landlord and Tenant

1 Citers

[ Commonlii ]
 
Spencer's Case [1572] EngR 377; (1572-1616) 6 Co Rep 9; (1572) 77 ER 267
1572


Landlord and Tenant

[ Commonlii ]

 
 Saunders's Case; CCP 1572 - [1572] EngR 330; (1572-1616) 5 Co Rep 12; (1572) 77 ER 66
 
Spencer's Case [1583] 5 Co Rep 16a; [1583] EWHC KB J53
1583


Landlord and Tenant
An assignee of a lease will take both the benefit and burden of the covenants in the lease provided that there is privity of estate as between the person enforcing the covenant and the person against whom enforcement is sought, and the covenant touches and concerns the land.
1 Citers

[ Bailii ]
 
Anon (1587) 2 Leon 174; 74 ER 454
1587


Landlord and Tenant
The division of a great meadow into many parcels by the making of ditches is not waste, for the meadow may be the better for it, and it is for the profit and ease of the occupiers of it. If a termor convert a meadow into a hop garden it is not waste for it is employed to a greater profit and it may be a meadow again.

 
Taylor vBeale (1591) Cro Eliz 222
1591

Macdonald CB
Landlord and Tenant
Where a tenant is required to spend money on remedying the breach of the landlord's covenant to repair, the money so spent could be invoked to abate the rent even if it thereafter falls due to a successor landlord. Discharge by the tenant of the landlord's obligation to pay a rent charge issuing out of the land where this had been requested by the landlord was a good defence to a claim for rent. Macdonald CB: "I do not see how you entitle yourself to the interposition of this court. If the landlord is bound in law or equity to repair in consequence of the accident that has happened, and you were right in expending this sum in repairs for him, it is money paid to his use and may be set off against the demand for rent. If you fail in making out these points your ground of relief is destroyed in equity, as well as at law." The court established a right at common law of recoupment for a tenant against his landlord.
Lord Kenyon CJ said the landlord had no obligation to repair and even had there been he could be no set-off because the damages claimed were uncertain, which in the context must mean unliquidated: "One objection to the plea is that it does not set off any certain debt for uncertain damages. I do not indeed see by what covenant the landlord is bound to repair damages occasioned by fire or tempest. The exception was introduced in the lessee's covenant for his benefit and to exempt him from particular repairs, but if the defendant can maintain any action against the plaintiff, his landlord, the sum to be recovered is uncertain. It must be assessed by a jury and there is no pretence to say that those uncertain damages may be set-off to the present action."
1 Citers


 
Taylor v Heal [1591] EWHC QB J100
15 Apr 1591
QBD

Landlord and Tenant
"the law giveth this liberty to the lessee to expend the rent in reparations, for he shall be otherwise at great mischief, for the house may fall upon his head before it be repaired ; and therefore the law alloweth him to repair it, and recoupe the rent."
[ Bailii ]

 
 Countess of Shrewsbury's Case; 1600 - (1600) 5 Co Rep 13
 
Pigot's Case [1603] EngR 15; (1603) Cary 29; (1603) 21 ER 16 (C)
1603


Landlord and Tenant

[ Commonlii ]

 
 Douglas v Douglas; SCS 19-Jun-1605 - [1605] Mor 1288

 
 Gavin Home's Heirs v The Laird of Blacader; SCS 10-Jun-1612 - [1612] Mor 671

 
 Darcy v Askwith; 1617 - 80 ER 380; (1617-18) Hobart 234 Case 296; Hil 15 Jac 1
 
Darcy (Lord) v Askwith 1618 Hob 234; 80 ER 380
1618


Landlord and Tenant
It is generally true that the lessee has no power to change the nature of the thing demised. He cannot turn meadow into arable land nor stub a wood to make it a pasture.

 
Drury v Drury [1630] EngR 3; (1630-31) 1 Rep Ch 49; (1630) 21 ER 504 (B)
31 Jan 1630


Landlord and Tenant

[ Commonlii ]
 
Congham v King (1631) Cro Car 221
1631


Landlord and Tenant
An action in covenant would lie against an assignee of part of the land comprised in a lease for not repairing his part. Such a covenant was divisible and followed the land.
1 Citers


 
Crighton v Lord Air 1631 Mor 11182
1631


Scotland, Landlord and Tenant
The grant of a lease was to the tenant and his heirs and successors for five years and after that a further five years and then five years for ever. The argument that the lease was a nullity because it did not say when it was to come to an end was repelled. It was noted that the grantor might have objected on this ground in question with a singular successor of the grantee. But it was held that he could not do so in a question with the grantee's heirs, as he had bound himself by the words of the grant never to remove the grantee's heirs.
1 Citers


 
Weymouth v Gilbert case no. 36. 22 Vin.Abr. 439; (1632-33) 2 Roll Abr 816; 8 Car 1
1632


Landlord and Tenant
If a lessee allow a chamber to fall into disrepair through a defect of plastering, by which great timbers become rotten and the chamber becomes foul, there lies an action of waste. Decision of the Court of King's Bench in banc on writ of error, affirming the first judgment.
1 Citers


 
Newall v Donning 22 Vin Abr 439; 9 Car 1; (1633-34) 2 Roll Abr 816 case no 37
1633


Landlord and Tenant
If a lessee permit the walls to be in decay for default of daubing, by which timbers become rotten, an action of waste lies. Decision of Court of King's Bench in banc on writ of error, and the first judgment affirmed accordingly.
1 Citers


 
Pope v Day [1635] EngR 17; (1635-36) 1 Rep Ch 95; (1635) 21 ER 518 (A)
1635


landlord and tenant
Bond of Covenants sued against the Lessor, the Lessor is reliev'd in Equity.
The Plaintiff lets the Defendant a Lease at £3 per Annum Rent, and to enter upon Default of Payment of the Rent in twenty Days, the Plaintiff gives a Bond for the Defendant's quiet Enjoyment of the Premisses, and performing of the Covenants ; the Defendant fails in the Payment of his Rent ; the Plaintiff enters, and the Defendant sues the Bond and gets Judgment, and takes the Plaintiffs Surety in Execution, who pays the Defendant £21.
This Court ordered the Defendant to repay the said £21 to the Plaintiff.
[ Commonlii ]
 
Paradine v Jane [1647] EWHC KB J5; (1647) Aleyn 26; [1658] EngR 486; (1658) Sty 47; (1658) 82 ER 519 (C)
26 Mar 1647
KBD

Landlord and Tenant, Contract
The defendant tenant had had his house occupied by an invading army and he sought to be excused from paying rent. Held: "where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him. As in the case of waste, if a house be destroyed by tempest, or by enemies, the lessee is excused." and "when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract."
The performance of absolute promises is not excused by supervening impossibility of performance.
1 Citers

[ Bailii ] - [ Commonlii ]
 
Woodroff v Greenwood [1653] EngR 2231; (1653) Cro Eliz 518; (1653) 78 ER 766 (B)
1653


Landlord and Tenant
In a covenant that the lessee shall quietly enjoy, &c, with an exception of the King, his heirs aud successors, an interruption by the King's patentee is a breach of the covenant.
[ Commonlii ]
 
Goring Et Al v Ch Bickerstaffe and Others [1660] EngR 232; (1660-1706) 2 Freem Chy 163; (1660) 22 ER 1132
1660


Landlord and Tenant

[ Commonlii ]
 
Duppa v Mayo (1669) 1 Wms Saund 282; [1669] EWHC KB J97
1669
KBD
Lord Coke
Landlord and Tenant
'The law leans against forfeitures.' To forfeit a lease for non payment of rent, the landlord must make a formal demand for payment at the premises, and require the exact sum due to be paid before sunset on the last date for payment in accordance with the lease. Rent is not due until the midnight on the day on which it is reserved.
[ Bailii ]
 
Greene v Cole (1670) 2 Wms Saund 252
1670


Landlord and Tenant
(Note) With regard to an action for waste: "But this action 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 a 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 . . . . But now it has become the usual action as well for permissive as voluntary waste."
1 Citers


 
Southward v Millard [1675] EngR 1535; (1675) March NR 135; (1675) 82 ER 445
1675


Landlord and Tenant, Wills and Probate
In an ejectione firme, the defendant pleaded not guilty. Upon which a special verdict was found. Nicholls possessed of a term for 1000 years, devised the same to E. his daughter for life, the remainder to John Holloway, and made Lowe the husband of the daughter his executor and died : John Holloway devised his interest to Henry and George Holloway, and made Oliver and others his executors and died ; afterwards Lowe spake these words : If E. my wife were dead, my estate in the premisses were ended, and then it remains to the Holloways. E. died, the executors of John Holloway made the lease to the plaintiff, and Lowe made the lease to the defendant, who entred upon the plaintiff who brought ejectione firme; and whether upon the whole matter the defendant were guilty or not of the trespass and ejectment supposed, the jury referred to the Court : and the points upon the case are two. First, whether the words spoken. by Lowe the executor be a sufficient assent to the devise or not: admitting that it is, then the second point is, whether this assent came in due time or not, as to the interest of John Holloway in the remainder, because he died before the words spoken which should make the assent; and as to that, the point is no other, but that the legatee dieth before assent to the legacie, whether aeserit afterwards came too late, or that the legacie shall be thereby lost or not, that is the question : and by Justice Mallet, it is a good assent, and that in due time, and here some things ought to be cleared in the case. First, that the devise to John Holloway in the remainder is good by way of executory devise. Secondly, that the devise by John Holloway to Henry and Gaorge is a void devise, because but a possibility. Thirdly, that the assent to the first devise is an assent also to him in the remainder. And lastly, that if an executor enter generally, he is in as executor arid not as devisee: all which are resolved in Lampetts and in Matthew Mannings case. Now these cases being admitted, the question is, whether that Lowe the executor here hath made a sufficient declaration, to take the term as devisee in the right of his wife, or not : for he hath his election to take it as executor, or all the right of his wife ; and as I conceive he hath made a good election to have it as legatee in the right of his wife.
[ Commonlii ]
 
Garrett v Taylor [1676] EngR 187; (1676) 2 Rolle 162; (1676) 81 ER 726 (A)
1676


Landlord and Tenant

[ Commonlii ]
 
Rich v Rich [1683] EngR 29; (1683) 2 Chan Cas 160; (1683) 22 ER 894 (B)
1683


Landlord and Tenant
In Debate, agreed by the CounseI, and not denied by the Court, that a Lease for Years waiting on the Inheritance of a Citizen, shall not be reckon'd as a Chattel, to be divided among Children by the Custom.
[ Commonlii ]
 
Hodsden v Harris [1685] EngR 1716; (1685) 2 Keb 497; (1685) 84 ER 312 (D)
1685


Landlord and Tenant
In debt upon an award, to which the defendant pleads the Statute of Limitations, and that the cause of action accrewed not within six years ; and to this the plaintiff demurred, and Jones pro deferidant, albeit the award be by writing, yet the submission being paroll it's a good plea, this action being not founded on the specialty nor profert hic in Curiam, altedg'd Hutt. 109, Freeman, &c. it's agreed in debt for rent on a lease paroll, it's a good plea, contra on lease by indenture
[ Commonlii ]
 
Hall And The Bishop of Bath's Case [1687] EngR 330; (1687) 2 Leo 58; (1687) 74 ER 356 (A)
1687


Landlord and Tenant

[ Commonlii ]
 
Rawlins v Turner (1699) 1 Ld Raym 736; 91 ER 1392
1699

Holt CJ
Landlord and Tenant
To be effective a lease by parole for three years must be for three years computed from the time of the agreement, and not from some a future date. "No lease by parol is good which imports to convey an interest for more than three years from the time of the making.
It was ruled by Holt Chief Justice at Lent Assizes at Kingston 1699, that such lease for three years of land, as will be good without deed within the [Statute of Frauds] . . s2, must be for three years, to be computed from the time of the agreement; and not for three years to be computed from any day after."
1 Citers


 
Bushnell v Parsons [1703] EngR 9; (1703) Prec Ch 218; (1703) 24 ER 107 (A)
1703


Landlord and Tenant
A. makes a lease to B. (his wife's nephew) for 21 years, for payment of his debts and legacies, and at the same time by will, taking notice of the said lease, devises the lands, after the expiration of the said lease, to C. his nephew and heir, and makes R executor. A, lives twelve years, and pays all his debts himself ; and the personal estate was sufficient for the legacies. C. brings his bill to have the lease delivered up, the trusts being performed, but dismissed, the reversion only after the expiration of the term being devised to him.
[ Commonlii ]
 
Patrick Lord Kinnaird, and Lady Elizabeth His Wife v John Riddoch The Trustee of Catharine Lyon, and The Said Catharine Lyon [1711] UKHL Robertson_11; (1711) Robertson 11
24 Jan 1711
HL

Scotland, Landlord and Tenant
An appeal dismissed and costs awarded, and directions given to levy the same against Appellants who had entered into no recognizance.
[ Bailii ]
 
John Scott of Hedderwick Esq; v The Magistrates and Town Council of Montrose [1714] UKHL Robertson_96; (1714) Robertson 96
5 Jun 1714
HL

Landlord and Tenant
Teind Court. - An Action of valuation being suffered to fall asleep, the minister lets a tack of the teinds to the magistrates of a royal burgh, and the action being wakened, these magistrates ought to have been called as parties.
A decree of valuation, obtained on a mistake as to the rental, fet aside, and the mistake rectified.
[ Bailii ]
 
Hammond v Webb (1715) 88 ER 728; (1715) Hil 1 Geo 1; (1715) 10 Mod 281
1715


Landlord and Tenant
(Serjeant Salkeld in argument) The Statute of Marlborough is a penal law; and yet, because a remedial law, it has been interpreted by equity. That Act says firmarii non faciant vastum; and it has been resolved . . . . that this Act extended to waste omittendo, though the word is faciant, which literally imports active waste.
1 Citers


 
Lord Bernard's Case 24 ER 203; (1716) Prec Ch 454
1716

Earl Cowper LC
Landlord and Tenant, Equity
The Lord Chancellor's court granted an injunction restraining a tenant for life without impeachment of waste who had committed voluntary waste of the mansion-house from committing further waste and obliging him to rebuild the mansion-house and put it into the same condition as it was in at the time of his entry, observing that the clauses of without impeachment of waste extended only to excuse from permissive waste.
1 Citers


 
James Hamilton of Dalziel Esq v The Principal, Masters, and Professors of The University of Glasgow [1716] UKHL Robertson_172; (1716) Robertson 172
9 Jun 1716
HL

Scotland, Education, Landlord and Tenant
Superior and Vassal - An university having acquired righ to an adjudication of lands, held in ward, for a debt due to them, the Court found that the superior must enter the university, or pay the debt to the extent of the value of the lands: but upon appeal the judgment is reversed; and it is ordered, that the superior should admit such proper person for vassal as the university should nominate.
Bona fide Possession - The superior, notwithstanding the reversal, is obliged to account for the rents since the charter was offered to him by the university, he having deduction of his casualties as if the old vassal then entered.
[ Bailii ]
 
Carruthers v Irvine 1717 Mor 15195
1717


Scotland, Landlord and Tenant
A lease was granted expressed to be "perpetually and continually as long as the grass groweth up and the water runneth down". The grantor died and his heir sought to remove the tenant on the ground that the lease did not say when it was to come to an end. Held: His claim failed because the court found that "by the meaning of [the] parties the contract was intended to be a perpetual right to the tenant and his successors". This did not meet the requirements of the 1449 Act, and it was admitted that the tenant would not have been able to enjoy that right in a question with a singular successor of the grantor . . But the personal right against the heir under the contract was not affected.
1 Citers


 
Sir Matthew Jenison v Lord Lexington [1719] EngR 43; (1719) 1 P Wms 555; (1719) 24 ER 515
1719


Wills and Probate, Landlord and Tenant
J. S. lessee of land to him and his heirs for three lives, assigns the whole estate, reserving a rent to him and his executors, and dies ; his executors, and not his heir, are entitled to the rent.
[ Commonlii ]
 
William Scott of Raeburn, An Infant, By His Guardians v Walter Scott of Harden, Alias Highchester, An Infant By His Guardians [1719] UKHL Robertson_226; (1719) Robertson 226
9 Mar 1719
HL

Landlord and Tenant
Tailzie - A person receives right to an estate from his father, and the son afterwards executes a procuratory of resignation for an entail of the estate, with prohibitory and irritant clauses, to himself in life-rent and to his father in fee, and failing of him to the heirs male to be procreated of his own body, and sailing them to other heirs of entail: This procuratory was registered in the register of Tailzies, and inhibition used against the grantor, but no charter or sasine taken thereon: It is found, that there being no antecedent onerous cause for making this entail, especially in favour of heirs to be begotten and born, and seeing it remained in the terms of a personal right, without being perfected by charter or sasine, it was revocable by the maker thereof, with consent of his father the first institute.
[ Bailii ]
 
John Taylor v Mary Seed In Ejectment [1724] EngR 303; (1724) Comb 383; (1724) 90 ER 543 (B)
1724


Landlord and Tenant
The plaintiff’s lessor had leased a house in London to the defendant for seven years, and, after the seven expired, had accepted a quarter’s rent, whereby a tenancy at will was created; and it was proved by an ancient city-book in French (called liber albua) that by the custom of the City of London, every tenant at will of above 40s. per annum, in the city, ought to give or have half a years warning; and if under 40s. a quarter’s warning, and the lessor of the plaintiff had given no such warning (the house being about 40s. per annum) to the defendant before the ejectment brought.
It was urged for the plaintiff, that this custom doth not alter the nature of an estate at will, as to the determination of it, for then instead of being an estate at will, it would become a fixed estate for half a year, &c. but the meaning is, that if the landlord ousts his tenant without such warning, he may have his remedy upon the custom, and to that opinion Holt inclined.
1 Citers

[ Commonlii ]

 
 Ryley v Hicks; 1725 - (1725) 1 Stra 651; Bull NP 177; 93 ER 760
 
The Governor and Company of Undertakers, for Raising The Thames Water In York Buildings v Sir John Meres, Knight [1728] UKHL 1_Paton_10; (1728) 1 Paton 10
24 Mar 1728
HL

Landlord and Tenant
Arrestment of rents, for security of a sum not payable for four years after the date of the arrestment, ordered to be loosed without caution or consignation, although the debtor was vergens ad inopiam.
[ Bailii ]
 
Gammon v Vernon [1729] EngR 108; (1729) T Jones 104; (1729) 84 ER 1169 (A)
1729


Landlord and Tenant
The lessor brought debt against the assignee of the moiety of the term for the moiety of the rent reserved on the lease, arid it was resolved by the whole Court, that the action well lay.
1 Citers

[ Commonlii ]
 
Quaintrell v Wright [1729] EngR 366; (1729) Bunb 274; (1729) 145 ER 672 (A)
17 Nov 1729


Landlord and Tenant
Plaintiff brought his bill as lessee of the bishop of Norwich of the rectory of Ingham in the county of Norfolk, and produced his lease dated May 8, 1723 : the defendant set forth, that the bishop of Norwich, at Michaelmas in the year 1693, demised the Grainge farm, with all tithes thereto belonging, or therewith usually letten ; that this lease was surrendered July 7, 1714, and a new lease made the next day by the bishop of Norwich to the person under whom the defendants claim, with the same words ; so insist, that at the time of the grant of the rectory the tithes could not pass to the plaintiff (of this farm) they being before expresly granted by the lease in 1693, and which was subsisting at the time of the plaintiff's lease.
But nota, there was proof that the lessees of the rectory had usually received the tithes of the whole parish, farm and all ; and no proof of the defendant's side of the lessees' of the farm ever receiving tithes. Therefore per curiam (Lord Chief Baron Pengelly arid Baron Carter only in court) the defendant was decreed to account, for usage shall explain this matter ; and these tithes cannot be said either to belong to Grainge farm, or to be usually letten with it ; and the word tithes was taken in only as a word of course, and from the old lease : it there had been a dispute between the bishop himself and the lessee of Grainge farm, it might have had another consideration.
[ Commonlii ]
 
Lord Castlemain v Lord Craven 22 ER 644; (1733) 22 Vin Abr 523; 2 Eq Ca Abr 758
1733


Landlord and Tenant, Equity
Both voluntary and permissive waste (suffering houses to go out of repair) were alleged against a tenant for life. The relief sought was an account and an injunction. In relation to the permissive waste, the court refused to order an account or an injunction requiring the tenant to rebuild, notwithstanding an argument that the court ought to intervene since the plaintiff had no remedy at law by reason of the intervention of another estate between the plaintiff's remainder and the defendant's estate for life. A court of equity never interposes in case of permissive waste either to prohibit or to give satisfaction, as it does in the case of wilful waste.
1 Citers


 
Gower and Wife v Hunt (1734) Barnes 291
1734
CCP

Landlord and Tenant
The landlord brought an action of covenant in a lease under seal for non-payment of rent. The tenant wished inter alia to raise a set-off under the statutes of set-off for sums due under other covenants in the same deed relating to 'spurring up land at a certain sum per acre.' At the Suffolk Assizes Denton J refused to allow the tenant to give evidence about this. Held: The evidence should have been received as it was to set off a certain debt of equal degree with the plaintiff's demand.
1 Citers


 
Brown v Holyoak (1734) Barnes 290
1734


Landlord and Tenant
The plaintiff began an action of debt for rents upon a parol lease. The defendant had by his plea set off a debt by simple contract. On demurrer it was held that a debt of an inferior nature cannot be set off against a superior demand. The reason given was that debt for rent is equal to an action upon a bond. In other words, although the lease was a parole lease it was still equivalent to a specialty when suing for debt and the debt under a simple contract was not of equal degree and for that reason could not be set off.
1 Citers


 
Redpath v White 1737 Mor 15196
1737


Scotland, Landlord and Tenant
The court considered the status of a lease of indefinte term.
1 Citers


 
Benjamin Charlewood v The Duke of Bedford, Smith, and Bever [1738] EngR 994; (1738) 1 Atk 497; (1738) 26 ER 314
2 Mar 1738


Landlord and Tenant
The bare entry of a steward in his lord's contract book with his tenmts, is not an evidence itself, that there is an agreement for a lease between the lord and a tenant.der of a ter
[ Commonlii ]
 
Archibald Stewart, Alias Denham v Alexander Denham [1742] UKHL 1_Paton_316
8 Apr 1742
HL

Landlord and Tenant
Tailzie,- Irritancy.- Found that under an entail prohibiting "debts, whereby the estate may be adjudged or evicted," the contracting of personal debts, on which no diligence had followed against the estate, does not infer an irritancy.
Found that the arrear of an annuity reserved to the entailer's widow, is the debt of the entailer, and not of the heir in possession, although the annuity should have been paid by him.
The heirs being prohibited under an irritancy from "contracting debts, or doing other deeds of omission, or commission, whereby the lands, or any part thereof, may be adjudged," &c. and the entailer's widow having led adjudication for the arrears of her annuity,-Found that the right of the heir in possession was not thereby irritated.
[ Bailii ]
 
Absolon v Knight and Barber (1743) Barnes 450
1743


Landlord and Tenant
A landlord's debt to a tenant could not be set off against distress, not because rent is something special, but because distress is something special--not an action, but a remedy without action.
1 Citers


 
Gulliver On The Demise of Tasker v Burr [1746] EngR 232; (1746-1779) 1 Black W 596; (1746) 96 ER 345 (A)
1746


landlord and Tenant
One month's notice was not enough to terminate a lease from year to year.
[ Commonlii ]
 
Earl of Pomfret v Lord Windsor (1) [1752] EngR 145; (1752) 2 Ves Sen 472; (1752) 28 ER 302
30 Jul 1752

Hardwicke LC
Landlord and Tenant
An occupying beneficiary under a settlement, who was in possession by permission of the trustees, was a tenant at will to the trustees.
1 Citers

[ Commonlii ]
 
Earl of Pomfret v Lord Windsor (2) [1752] EngR 146; (1752) Ves Sen Supp 389; (1752) 28 ER 558 (A)
30 Jul 1752


Landlord and Tenant

1 Cites

[ Commonlii ]
 
Hutchins v Chambers (1758) 1 Burr 579
1758


Landlord and Tenant
Distress under the Poor Relief Act 1601 and other like Acts is only partly analogous to common law distress but is much more analogous to common execution; such distress was described as in the nature of an execution.
Poor Relief Act 1601
1 Citers


 
Thomas Scott and James Young of Netherfield, Esq v James Cochran and Janet, His Wife [1759] UKHL 6_Paton_719
18 Jan 1759
HL

Landlord and Tenant
Defective Lease - Possession - Reduction - Deed - Subscription - Service. -
(1) A translation of a lease held not to be reducible under the Act 1696, although it was only signed by the granter on the last page, possession on the lease having followed. (2) Also held it no objection to sue an action of reduction of this lease, that the pursuer had not produced a service as heir, that being unnecessary.
[ Bailii ]
 
Wood v Gaynon 27 ER 263; (1761) Amb 395
1761


Landlord and Tenant
The plaintiff sought a decree to compel a life tenant and her husband to put and keep the premises in repair, or the appointment of a receiver with directions to repair the premises. The plaintiff could not sue at law because a party who shared the remainder with the plaintiff refused to join in the action as a plaintiff. The defendants argued that no precedent could be produced where the court had made such a decree, which was a reason why none should be made now. That it would tend to harass tenants for life, and jointresses, and suits of this kind would be attended with great expense in depositions about the repairs. Held: The Master of the Rolls declared, that as there was no precedent, he would not make one.
1 Citers


 
Captain James Frazer of Belladrum v His Majesty's Advocate [1762] UKHL 2_Paton_66; (1762) 2 Paton 66
30 Mar 1762
HL

Landlord and Tenant
Lease - Duration - Powers.-
A lease was granted for 1140 years for a valuable consideration given, besides a yearly tack duty. Sasine and possession followed: Held, on the forfeiture of the estate, that the lease was good against the granter, and also against the crown, reversing the judgment of the Court of Session.
[ Bailii ]
 
Timmins v Rowlison [1764] 1 Black W 533
1764

Mansfield CJ
Landlord and Tenant
The 1730 and 1737 Acts should be read together to form one consistent scheme. “Statutes in pari materia are to be all taken as one system to suppress the mischief... The Legislature, in [the 1730 Act] made a provision where the landlord gives notice; and afterwards, in [the 1737 Act] this additional provision in case the notice comes from the tenant. The two laws are only parts of the same provision.” “The mischief is an act of vexation, inconvenience, and injustice, by the tenant after notice given by himself, after the landlord has another tenant ready, to stop short and say ´I won’t quit.’
Landlord and Tenant Act 1730 - Distress for Rent Act 1737 (II Geo 2, c 19) 18,
1 Citers


 
The Earl of Abercorn v Andrew Wallace of Woolmet, Esq, Ws [1764] UKHL 6_Paton_757; (1764) 6 Paton 757
25 Jan 1764
HL

Scotland, Landlord and Tenant
Lease of Coal - Clause as to Level. - Held, that a clause in a lease of coal, by which it was agreed that either party was to have the power of communicating the level of the said coal to any neighbouring coal works, did not cease or determine with the lease, but continued so long as the lessee continued to possess a right and interest in the neighbouring coal-work.
[ Bailii ]
 
James Scott of Comieston, Esq v George Straton [1772] UKHL 3_Paton_666
13 Jan 1772
HL

Landlord and Tenant
Lease in Perpetuity - Singular Successor - Homologation - Irritancy. - A lease was granted to a party, and his heirs and assignees, for nineteen years after the death of a party; and after the expiry of these nineteen years, for a second nineteen years, and after the expiry of the second nineteen years', for the space of other nineteen years, and so forth from nineteen years to nineteen years, so long as the said party and his heirs and successors shall desire to possess. The lease had no definite ish, and the tenant was bound to pay for each nineteen years an entry or grassum duty to the landlord. This lease having been sought to be reduced by a singular successor, after he had for some years received rents under this lease. Held, that it was a good lease, and affirmed in the House of Lords. The lease contained a clause providing, that if two years rent ran into the third unpaid, the lease was to be forfeited. Objection on this ground repelled.
[ Bailii ]
 
Andrew Wauchope, Esq v Sir Archibald Hope, Capt John M'Dowall, and John Wauchope, Esq of Edmonstone [1773] UKHL 2_Paton_286
28 Jan 1773
HL

Scotland, Landlord and Tenant
Lease.- Terms of lease of coal, under which held that the tenant had right to communicate the level in the coal grounds to other adjacent colleries also let to him; but reversed in the House of Lords, and held, that by the lease the tenant had no right to do so without the consent of the landlord or proprietor.
[ Bailii ]
 
John Bane Stewart, and Others, Lessees of Glenfinlas v Margaret Countess Dowager of Moray, and Francis Earl of Moray [1773] UKHL 2_Paton_317; (1773) 2 Paton 317
24 Mar 1773
HL

Scotland, Landlord and Tenant
Lease - Incomplete Contract - Possession - Locality Lands - Power to Lease.- An offer for a lease was made in writing by several tenants, and the landlord's factor wrote in answer to the subfactor, through whom the offers had come, that the landlord had read over the offers, and that the rent and duration of the lease were agreed to, but other points not fixed. He thereafter wrote as to those, and with instructions to get the lease drawn out, and signed by the tenants on stamp: This was done, and sent to him for signature, but the landlord kept it for two years, and died without signing it. In the mean time, he had allowed possession to be taken by the tenants;-on the faith of it they had proceeded to make dykes, and other improvements, and had paid two years' increased rent: Held, in all the circumstances of the case, that the lease was as effectual and binding, as if it had been signed by the Earl. Also, held that a lease may be granted by a fiar, after he had granted the same lands in liferent locality to his wife, to take effect in the event of her surviving him.
[ Bailii ]
 
Doe Ex Dim Cheny v Batten [1775] 1 Cowp 243; [1775] EngR 19; (1775) 98 ER 1066
13 Feb 1775

Aston J, Lord Mansfield, Ashhurst J
Landlord and Tenant
The tenant gave notice to quit but failed to leave the premises by the due date (Michaelmas). The landlord sued for ejectment, but then accepted a quarter’s rent (due at Christmas). Did this create a new tenancy? Held. The issue depended on the intention of the parties. Referring to the landlord accepting a single rent: "The taking half, when he is entitled to an action for the whole, is an act of lenity; but it does not import a consent that the tenant shall continue in possession, or a waiver by the landlord of his remedy by ejectment." The acceptance of a single rent was only a waiver of the landlord’s right to double rent under the 1730 Act, and not of the right to possession.
Aston J said: "The only act which appears is, the acceptance of a single quarter’s rent accrued since. I think that is only a waiver of his right to double rent under [the Act of 1730], and does not necessarily imply a consent that the tenancy should continue . . For here, the acceptance of single rent, is only a waiver of his right to double."
Lord Mansfield said: "The question therefore is, quo animo the rent was received, and what the real intention of both parties was? If the truth of the case is, that both parties intended the tenancy should continue, there is an end of the plaintiff's title: if not, the landlord is not barred of his remedy by ejectment."
Distress for Rent Act 1737 (II Geo 2, c 19) 18, - Landlord and Tenant Act 1730
1 Citers

[ Commonlii ]
 
William Lord Falconer, of Halkerton v Robert Taylor, David Beattie, Christian Low The Widow, and James Low The Son of John Low, and Others, Tenants Upon The 'S Estate, In Kincardineshire [1775] UKHL 2_Paton_373
7 Apr 1775
HL

Landlord and Tenant
Lease - Ambiguous Clause - Parole Proof.- Construction of clause in lease for 57 years, to renounce at the end of every 19 years, in the option of lessor and lessee. Held, this not to import an option, to be exercised by the landlord alone, without the consent of the tenant. But reversed in House of Lords, and remitted to the Court of Session, to take proof of what was the understanding of the parties on entering into the lease, the clause itself being ambiguous.
[ Bailii ]
 
Cutting v Derby (1776) 2 W Bla 1075
1776

Blackstone J
Landlord and Tenant
“The statutes of [1730] and [1737] being in pari materia ought to have the same construction”.
Landlord and Tenant Act 1730 - Distress for Rent Act 1737 (II Geo 2, c 19) 18,
1 Citers


 
Hare v Cator [1778] EngR 28; (1778) 2 Cowp 766; (1778) 98 ER 1350
1778


Landlord and Tenant
Declaratiori against the defendant as assignee of all the estate, &c. in certain premises: evidence that he is assignee of part only is a fatal variance.
1 Citers

[ Commonlii ]
 
Keech v Hall (1778) 1 Doug KB 21; [1775-1802] All ER Rep 116; [11778] 99 ER 17
1778

Mansfield CJ
Land, Limitation, Landlord and Tenant
The tenant resisted ejectment by the landlord's mortgagee. His tenancy had been created after the mortgage. Held: The mortgagee seeking ejectment did not first need to give a tenant a notice to quit. Mansfield CJ said: "Whoever wants to be secure when he takes a lease should inquire after and examine the title deeds." For time to run against a mortgagee and bar his right to recovery of the mortgaged land, the mortgagor must be in adverse possession of the land being in possession without any right and without the consent, express or implied, of his mortgagee.
1 Citers


 
Lord Falconer of Halkerton v David Lawson [1778] UKHL 2_Paton_442
23 Feb 1778
HL

Landlord and Tenant, Scotland
In the present case, the lease to the respondent bore to be for 57 years, " in the option of the said David Lawson, and upon the provisions and conditions after mentioned." The conditions aftermentioned were, that he should "renounce at Lammas, before expiring of the first nineteen years of this present tack, or prorogue the same for three years, in the option of the said Lord Halkerton and the said David Lawson." The land-lord gave notice of warning on expiry of the first 19 years, but to this the tenant did not consent, refused to remove, and contended that the option referred to in the lease was one which he alone fell to exercise, or in which his consent was necessary. In this case the Court, of this date, "assoilzied the defender (the respondent), and decerned
[ Bailii ]
 
Lord Falconer of Halkerton v David Lawson [1778] UKHL 6_Paton_799
23 Feb 1778
HL

Landlord and Tenant
Lease - Ambiguous Clause. - A clause in a lease of fifty-seven years, bound the tenant "to renounce at Lammas, before the expiry of the first nineteen years, or prorogue the same for three years, in the option of the said Lord Halkerton, and the said David Lawson." Held, in an action of removing brought against the tenant, that this did not import an option that might be exercised by the landlord alone. Reversed in the House of Lords, and held it an option which either landlord or tenant might use singly and alone.
[ Bailii ]

 
 Somerville v Chapman; 1779 - [1779] EngR 16; (1779) 1 Bro CC 61; (1779) 28 ER 985
 
David Orme, Writer In Edinburgh v John Leslie of Balquhain, Esq [1780] UKHL 2_Paton_533; (1780) 2 Paton 533
25 Feb 1780
HL

Scotland, Landlord and Tenant
Entail - Leases - Alienation.-
How far leases for four nineteen years' duration of an entailed estate were reducible as an "alienation" thereof. Leases sustained, in the special circumstances, for the granter's life, and the life of the heir who ratified them; but a lease of a mansion house, offices, and gardens, &c. reduced, and also of the lands beyond the lifetime of these parties.
[ Bailii ]
 
Goodright, Lessee of Hare, Widow, v Cator And Others [1780] EngR 103; (1780) 2 Doug 477; (1780) 99 ER 304 (B)
22 Nov 1780


Landlord and Tenant
An estate being conveyed by a marriage settlement to trustees, to the use of the settlor for life, with remainders over, and with a power to the settlor, with the consent of the trustees, to revoke all the uses in the Settlement, and the settlor having granted an estate for his own life, in the settled estate, a revocation subsequent thereto, of all the uses, by him, with the consent of the trustees, shall not affect the estate granted for his life. Actual entry is not necessary to take advantage, by ejectment, of a clause in a lease to re-enter for non-payment of rent.
1 Cites

[ Commonlii ]
 
Right, Lessee of Mitchell And His Wife v Sidebotham And Another [1781] EngR 81; (1781) 2 Doug 759; (1781) 99 ER 485
29 Jun 1781


Landlord and Tenant

[ Commonlii ]
 
Wm Campbell, Esq of Shawfield v John Welsh, Esq, and Others, Creditors of The York Buildings Company [1785] UKHL 3_Paton_32; (1785) 3 Paton 32
11 Jun 1785
HL

Landlord and Tenant, Insolvency

[ Bailii ]

 
 Webb v Russell; 1789 - (1789) 3 TR 393
 
Andrew Stration, A Pauper v Thomas Graham of Balgowan, Esq [1789] UKHL 3 - Paton - 119
28 Mar 1789
HL

Landlord and Tenant, Agriculture
Lease - Deviation from Mode of Cropping - Penalty. - A tack stipulated that the tenant was at liberty to deviate from the mode of cropping and management laid down in the tack upon his paying andpound;2. per acre more of additional rent to the landlord. He departed from the mode of cropping. Held, in the Court of Session, that he was liable to pay the andpound;2. of additional rent. Reversed in the House of Lords, and case remitted to ascertain and determine specially what was the number of acres the tenant became bound to cultivate in the manner specified in the tack, and what was the number of acres cultivated contrary to the conditions thereof.
[ Bailii ]
 
Alexander Grant of Edinburgh v Earl of Morton [1789] UKHL 3 - Paton - 145
8 Jun 1789
HL

Landlord and Tenant
Lease - Removing. - A lease, with a clause generally against subsetting, permitted the tenant to subset part of the subject, which was done accordingly. No rent was ever paid by the subtenant to the landlord, nor to the tenant from whom he had his sublease, while there was a clause in the lease that the tenant should be liable in payment of the rents of the whole subject. The tenant failed, and an action of ejection being raised and decree passed, Held that the decree of removing was a good decree, although only raised against the principal tenant, and clearly entitled the landlord to eject the subtenant from the part held by him.
[ Bailii ]

 
 Symonds v Seabourne; 1792 - [1792] EngR 2431; (1792) Cro Car 325; (1792) 79 ER 884

 
 Doe d. Rigge v Bell; 1793 - (1793) 5 Durn & East 471
 
Gamon v Vernon [1793] EngR 433; (1793) 2 Lev 231; (1793) 83 ER 532 (D)
1793


Landlord and Tenant
The landlord sued an assignee of half the land for half the rent. He defended on the ground that he was not liable for any part of the rent because both privity of contract and privity of estate remained in the original tenant. Held: The assignee had privity of estate in half the land, which was enough to make him liable to pay half the rent.
1 Citers

[ Commonlii ]
 
Weigall v Waters (1795) 6 TR 488
1795

Lord Kenyon
Landlord and Tenant, Equity
Where a party has fairly laid out money on repairing what he was not bound to repair, a court of equity might grant him relief. The tenant had paid £ 30 but Lord Kenyon still regarded the cross-claim as one for uncertain damages. The quantum of the sum must have been either unchallenged or unchallengeable before it could be regarded as deductible.
1 Citers


 
Doe d Duke of Bedford v Kightley (1796) 7 Durn & E 63
1796


Landlord and Tenant
The court could take a benevolent approach in construing a notice with a clerical error.
1 Citers


 
Williams, Executor of Elizabeth Breedon, v Bartholomew [1798] EngR 237; (1798) 1 Bos & Pul 326; (1798) 126 ER 930 (B)
19 Nov 1798


Landlord and Tenant
If A, tenant for life subject to forfeiture, remainder over to B., lease to C. for a term, and afterwards apprehending that he has forfeited, acquiesce in B.’s claiming and receiving the rent from C., his executor may, on shewing that be acquiesced under a false apprehension recover from C. the amount of the rent erroneously paid to B.
1 Citers

[ Commonlii ]
 
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