after judgment. For the plaintiff cannot recover damages for more wafte than is contained in his original complaint: neither is he at liberty to affign or give in evidence any wafte made after the fuing out of the writ: it is therefore reasonable that he should have this writ of preventive justice, since he is in his prefent fuit debarred of any farther remedial. If a writ of eftrepement, forbidding waste, be directed and delivered to the tenant himself, as it may be, and he afterwards proceeds to commit waste, an action may be carried on upon the foundation of this writ; wherein the only plea of the tenant [227] can be, non fecit vaftum contra prohibitionem: and, if upon verdict it be found that he did, the plaintiff may recover costs and damages, or the party may proceed to punish the defendant for the contempt: for if, after the writ directed and delivered to the tenant or his fervants, they proceed to commit waste, the court will imprison them for this contempt of the writ. But not fo, if it be directed to the sheriff, for then it is incumbent upon him to prevent the eftrepement abfolutely, even by raifing the poffe comitatus, if it can be done no other way. BESIDES this preventive redress at common law, the courts of equity, upon bill exhibited therein, complaining of waste and destruction, will grant an injunction or order to stay wafte, until the defendant fhall have put in his answer, and the court fhall thereupon make farther order. Which is now become the most ufual way of preventing wafte. 2. A WRIT of wafte is also an action, partly founded upon the common law and partly upon the ftatute of Glocefter'; and may be brought by him who hath the immediate estate of inheritance in reverfion or remainder, against the tenant for life, tenant in dower, tenant by the curtefy, or tenant for years. This action is alfo maintainable in pursuance of itatute Westm. 2. by one tenant in common of the inherit ance against another, who makes wafte in the eftate holden in common. The equity of which statute extends to jointtenants, but not to coparceners: because by the old law coparceners might make partition, whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint-tenants could not; and therefore the ftatute gave them this remedy, compelling the defendant either to make partition, and take the place wafted to his own fhare, or to give fecurity not to commit any farther wafte. But thefe tenants in common and joint-tenants are [228] not liable to the penalties of the ftatute of Glocefter, which extends only to fuch as have life-eftates, and do wafte to the prejudice of the inheritance. The wafle however must be fomething confiderable; for if it amount only to twelve pence, or fome fuch petty fum, the plaintiff fhall not recover in an action of wafte: nam de minimis non curat lex". THIS action of wafte is a mixed action; partly real, fo far as it recovers land, and partly perfonal, fo far as it recovers damages. For it is brought for both those purposes; and, if the wafte be proved, the plaintiff fhall recover the thing or place wafted, and alfo treble damages by the flatute of Glocefter. The writ of wafte calls upon the tenant to appear and fhew cause, why he hath committed waste and destruction in the place named, ad exhaeredationem, to the difinherifon, of the plaintiff. And if the defendant makes default, or does not appear at the day affigned him, then the fheriff is to take with him a jury of twelve men, and go in perfon to the place alleged to be waited, and there inquire of the waste done, and the damages; and make a return or report of the fame to the court, upon which report the judgment is founded. For the law will not suffer fo heavy a judgment, as the forfeiture and treble damages, to be paffed upon a mere default, without full affurance that the fact is according as it is ftated in the writ. But if the defendant appears to the writ, and afterwards fuffers judgment to go against him 2 Inft. 403, 404. Finch. L. 29. w F. N. B. 55. x Poph. 24. by by default, or upon a nihil dicit, (when he makes no answer, puts in no plea, in defence,) this amounts to a confeffion of the wafte; fince, having once appeared, he cannot now pretend ignorance of the charge. Now therefore the sheriff shall not go to the place to inquire of the fact, whether any wafte has, or has not, been committed; for this is already afcertained by the filent confeffion of the defendant: but he fhall only, as in defaults upon other actions, make inquiry of the quantum of damages. The defendant, on the trial, may give in evidence any thing that proves there [229] was no waste committed, as that the destruction happened by lightning, tempeft, the king's enemies, or other inevitable accident (3). But it is no defence to fay, that a ftranger did the wafte, for against him the plaintiff hath no remedy: though the defendant is entitled to fue fuch ftranger in an action of trefpafs vi et armis, and fhall recover the damages he has fuffered in confequence of fuch unlawful act *. WHEN the waste and damages are thus afcertained, either by confeffion, verdict, or inquiry of the fheriff, judgment is given, in pursuance of the ftatute of Glocefter, c. 5. that the plaintiff fhall recover the place wafted; for which he has immediately a writ of feifin, provided the particular estate be ftill fubfifting, (for, if it be expired, there can be no forfeiture of the land,) and alfo that the plaintiff fhall recover treble the damages affeffed by the jury; which he must obtain in the fame manner as all other damages, in actions perfonal and mixed, are obtained, whether the particular estate be expired, or ftill in being. y Cro. Eliz. 18. 290. a Law of nifi prius. 112. (3) But the deftruction of a house by fire, unless in convenient time repaired, is wafte. So between landlord and tenant, though there be no covenant to repair or rebuild, the tenant is subject to wafte in general; and, if the house be burnt by fire, he must rebuild. Vef. 462. OF CHAPTER THE FIFTEENTH. SUBTRACTION. SUB UBTRACTION, which is the fifth fpecies of injuries affecting a man's real property, happens when any perfon who owes any fuit, duty, cuftom, or service to another, withdraws or neglects to perform it. It differs from a diffeifin, in that this is committed without any denial of the right, confifting merely in non-performance; that strikes at the very title of the party injured, and amounts to an oufter or actual difpoffeffion. Subtraction however, being clearly an injury, is remediable by due courfe of law: but the remedy differs according to the nature of the services; whether they be due by virtue of any tenure, or by custom only. I. FEALTY, fuit of court, and rent, are duties and fervices usually iffuing and arising ratione tenurae, being the conditions upon which the antient lords granted out their lands to their feudatories: whereby it was ftipulated, that they and their heirs should take the oath of fealty or fidelity to their lord, which was the feodal bond or commune vinculum between lord and tenant; that they should do fuit, or duly attend and follow the lord's courts, and there from time to time give their assistance, by serving on juries, either to decide the property of their neighbours in the court-baron, or correct their misdemesnors in the court-leet; and, lastly, that they fhould yield to the lord certain annual ftated returns, in military attendance, in provifions, in arms, in matters of ornament or pleasure, in rustic employments or praedial 231 praedial labours, or (which is inftar omnium) in money, which will provide all the reft; all which are comprized under the one general name of reditus, return, or rent. And the subtraction or non-observance of any of thefe conditions, by neglecting to fwear fealty, to do fuit of court, or to render the rent or fervice referved, is an injury to the freehold of the lord, by diminishing and depreciating the value of his feignory. THE general remedy for all these is by diftrefs; and it is the only remedy at the common law for the two firft of them. The nature of diftreffes, their incidents and confequences, we have before more than once explained: it may here fuffice to remember, that they are a taking of beafts, or other perfonal property, by way of pledge to enforce the performance of fomething due from the party diftreined upon. And for the most part it is provided that diftreffes be reasonable and moderate; but, in the case of distress for fealty or suit of court, no distress can be unreasonable, immoderate, or too. large for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be fuch as is fufficiently compulfory; and, be it of what value it will, there is no harm done, especially as it cannot be fold or made away with, but must be restored immediately on fatisfaction made. A distress of this nature, that has no bounds with regard to it's quantity, and may be repeated from time to time, until the ftubbornness of the party is conquered, is called a distress infinite; which is also used for fome other purposes, as in fummoning jurors, and the like. OTHER remedies for subtraction of rents or fervices are, 1. By action of debt, for the breach of this exprefs contract, of which enough has been formerly faid. This is the most ufual remedy, when recourfe is had to any action at all for the recovery of pecuniary rents, to which fpecies of render almost all free services are now reduced, fince the abolition of the military tenures. But for a freehold rent, referved on a See page 6. 148. VOL. III. Finch. L. 285. a leafe |