dig to make a drayne in a Meadow Ibidem Owen 66. 67. Hutt 103. Dy. 37. a. Co. 1. Inst 53. 2 Leon. 174. Lessee builds a new house 't is wast to suffer it to decay not if the Lessor builds it after the Devise Ibidem Co. 1. Inst 35. s. Hutt 103. Whether Tenant by the Curtefie were punishable for wast by the Common Law Or not Vide Co. 2. Instit 299. 145. The first Statute that gave prohibition of wast and damages against Farmers was Marlbcapâ— 23. And where the Statute says vastum c. non facient 't is to be understood also non permittent vastum and so 't is in the Condition of a Lease Co. 2. Inst 145. None can claim to be dispunishable of wast in a particular Estate but by deed because 't is the Lessor's disherison Co. 2. Inst 146. Dyâ— 281. a. Lessee of a Mannor commits wast in a Tenement escheated the Lessor shall declare in wast of a Lease of the Tenement and maintain it by special Matter Co. 2. Inst 146. At the Common Law to prevent wast by Guardian Tenant in dower or by the Curtesie the Party might have a Prohibion to the Sheriff and by that he might have a posse Comitatus and so it may be done at this day And such Remedy as is against them at the Common Law is against Farmers c. by Marlb ca. 23. Co. 2. Inst 299. Vide Stat. 10 R. 2. c 14. If a Lease be made to A. for his own life Remainder to him for the life of B. or where a Remainder for years is upon an Estate for life there if A. does wast it shall be punished because himself had both Estates and in the latter case the Remainder shall not destroy the Term for years Co. 1. Instit 54. 2. Inst 301. The Husband that holds in Right of his Wife Lessee for life does wast the Wife dyes the wast is not punishable because the Husband held not but in his Wife 's Right and the Estate was her's Clifton's Case ibidem Co. 5. Rep. 75. b. Although Tenant in Tail after possibility of Issue extinct be dispun of wast yet if he grant over his Estate it is punishable in the Assignee ibidem 302. Tenant by Statute Merchant Staple or Elegit though they have but a Chattel are not within the Statute of Glocester 1. 5. Executors shall be punished for wast done in their own time not in the Testators He that holds a third or fourth part pro indiviso is within the Act. Tenant for years assigns upon Condition the Assignee does wast and he enters for that Condition the Action must be against the Assignee Ibidem Tenant for Years or Life assigns and takes the profits and does wast the Action lyes against the pernor of the profits by 11 H. 6. c. 5 Co. 5. Rep. Booth's Case 77. Tenant assigns the Term except the Trees Wast is done in the Trees the Action lyes against the Assignee Co. 5. Rep. Saunder's Case Lessee commits Wast and then assigns Wast in the Tenant shall be maintained against the Lessee and the place wasted and treble Damages shall be recovered against him Non Tenure general is no Plea in Wast but special non Tenure is Assignment and no Wast done before the Assignment or Wast done by the King's Enemies or Tempest or Lightning is not punishable Co. 2. Inst 302. 303. The Tenant shall answer for permissive Wast unless in such case where he could not prevent the Wast as where he is ousted by Cotssee of a Statute entred into before his Lease and that Cotssee does wast or by any precedent Title ibid. 303. Feme Tenant in Dower of a Mannor and Copy hold commits Wast the Action lies against the Tenant in Dower Ibid. 303. Femes Coverts and Infants shall answer for Wast done by Strangers though some have held the contrary and so shall the Wife for wast done by the Husband for Lease made to them for Life if she agree to the Estate Ibid. 303. Where the Wast is done Sparsim in houses Woods or Meadow there the whole shall be recovered ibid. 304. One may have an Action of Wast in the Tenct after the Term is determined by Expiration Death or the Act or Wrong of the Tenant and theresore if the Term end hanging the Writ it shall not abate because maintainable for the damages but if the Tenant surrender after the Wast done no Writ is maintainable for the Lessor cannot by his own Act alter the form of the Action Ibid. 304. The Heir cannot maintain an Action for Wast done to the Ancestor because the damage belongs not to him yet if two parceners be and wast is done and one of them dyes and wast is done again one Action shall be maintained for both and the Writ shall say both Wastes were to both their Disherison but the Judgment shall be for the place wasted to them both and for the damages severally in their several Tenures Ibid. 305. Guardian shall not be punished for Wast done by Strangers unless it be such as he might have prevented and would not for then qui non prohibet jubet ibidem 305. If the Gnardian commit Wast he shall by Gloue ' Ca. 5. lose the Wardship and single Damage and if it be done so near his Age as he could not bring his Action of Wast or had not notice of it then he shall recover treble damages upon the said Statute as a common person shall Ibidem 306. Wast upon the Stat. of Glouc ' Ca. 5. lyeth not in Ancient Demesne because they cannot award a Writ to the Sheriff to inquire Ibid. 306. Owen 24. contra In an Action of Wast by two in the Tenuit if one relinguisheth it barrs both not so of an Action in the Tenet Ibid. 307. A. has B. and C. in his Wardship Ratione Custodiae and commits Wast in the Lands of B. yet he shall not lose the Wardship of C. because the Wast was not to his Disherison Ibid. 306. At the Common Law there lay an Estrepement after Judgment Glouc. c. 13. gives it Pendente placito and may be sued out with the Original If the Tenant alien pendent the Plea the Estrepement may be against him and his Alienee and the Defendant shall not have his Age in it And tho the Statute says Du Tenement in demand yet in the Scire Facias to execute a Fine in a Quid juris clamat or in Wast an Estrepement may be had yet no Land is demanded in the Writ Upon the Statute the party shall recover damages after delivery of the Lands Co. 5. Rep. 114. b. It lyes before or after Judgment in Wast and the Sheriff may take the Posse Comitatus to prevent the Wast Co. 2. Inst 328. 329. In Wast the Process is Summons Attachment Distress and then upon default a Writ ad Inquirend ' and the Sheriff by the Statute is to go in Person and with the Jury view every place in every
Dy. negat Tenant for Life Remainder for Life Wast is done he in Remainder surrenders Wast lyes Co. 5. Rep. 76. b. Mo. pl. 64. Co. 5. Rep. 76. b. 2 Cro. 68. b. Tenants in Common cannot joyn in Wast in the Tenet but Joynt-tenants or Parceners may and also Tenants in Common in the Tenuit being only to recover Damages Ibid. Mo. f. 383. Mo. pl. 110. 127. He in Reversion by way of use brings wast against the Feme Tenant for Life of the same use she pleads that the place was left so ruinous at the death of her Husband Quod reparare non potuit and adjudged a good Plea Mo. Pl. 158. Wast assigned in permitting Sea-walls to be ruined whereby c. if not done by sudden violence as if a small breach were and he permits it grow greater it seems wast Et per omnes the permitting Decay in the Banks of the River is wast Mo. 173. 187. 200. Dower Tenant pleads ne unque seisie que Dower and Issue of it Demandant prayed a Writ of Etrepement because great part of his Coppice wood and the Husband dyed not seized so she cannot have damages yet it seems Etrepement lyes not because Damage lyes in the Action Mo. Pl. 186. Wast and the Writ was quod fecit vastum in terr' In the Count assigns wast in cutting Trees and adjudged it maintained not the VVrit but if it had been assigned of digging Clay c. it had Mo. Pl. 200. VVast and Count of VVast done contra prohibitionem after the Estrepement sued upon a Formedon Defendant pleads Quod non fuit vastum contra prohibitionem Issue Verdict and Judgment pro querente Mo. Pl. 1. or 245. 'T is VVast to take away a Partition c. fixed by the Lessee to the Free-hold sic of Benches or Glass-windows to take away Doors of the Houses if they be outer doors for defence of the houses not in ward for Separation of Chambers Mo. Pl. 315. One that had power to make a Joynture of third part makes her Joynture of a third part undivided And this held by Popham not according to the Power which was to be sans impeachment of wast and against the Tenant in common wast lyes not so it should have been done in Severalty by Popham fo 374. But that is denyed by Mo. fo 387. 388. And that wast lyes against the Tenant in Common of a third part also by Popham the Proviso being to do it Sans Impeachment c. And he makes an Estate for Life with Remainder 't is disjunctive by reason of the Remainder whereto More answers that 't is but the effect of the Law not the word of the Party and then Remainder were created before so he must make it by operation of Law Sans Impeachment c. or make none Also 't is not eadem sans Impeachment c. but the Remainder does at present hinder the Action and it is not like Cases upon 32 H. 8. there Tenant in Tail shall not make a Lease for three Lives in Possession So another way to satisfie the Statute Perrot's Case Mo. Pl. 506. Tenant for Life Remainder for Life tho Wast in the Tenant for Life be dispunishable yet the Chancery will by Injunction bind him to do no wast and such a President cited temps R. 2. Mo. Pl. 748. Error to reverse a Recovery in Lancaster and pendant it a Writ of Estrepement granted and so resolved 't is grantable in a Scire Facias Holland c. against Jackson and Ogden sic vid. 2 H. 6. 13. Estrepement granted in Scire facias on a Judgment in a Formedon Mo. Pl. 850. Resolved that great Birch is used in the Country as Timber and esteemed in Law as Timber and 't is wast in the particular Tenant to cut them and so in Cro. are black Thorns in some Countrys Countess of Cumberland's Case Mo. Pl. 1099. 1 Cro. 283. 2 Cro. 126. Writ of Wast in two Towns Count of Wast in three Towns ill but è contra if less be in the Count than is in the Writ 't is good pro tanto Earl of Cumberland against Countess Dowager Cumberland Mo. Pl. 1185. To convert a Horse Mill to a Hand Mill or a Corn Mill to a Fulling Mill is though it be better for the Reversion and the reason seems because it alters the Evidence City of London against Groyme Mo. Pl. 1230. 2 Cro. 182. Lessee covenants to repair at his own Cost and the house being out of Reparation put Timber on the Land to do it and held a bar for the Covenant takes not from him the Liberty the Law gave him but it seems the Court was of another opion Mo. Pl. 80. vid. Dy. 196. b. 314. a. Lease except Trees Lessor grants and sells the Trees to Lessee he cuts them resolved first Lessee has but special Property in Trees till severed and then Lessor may take them be it by Wind or wilfully unless Doatards Secondly Sans Impeachment of wast gives no interest but that is contra to Co. 11. Rep. 82. 83. Popham 195. Dyer 184. b. Thirdly such Interest has Lessee in Timber of Houses if blown down to take to rebuild but if he pulls them down Lessor may take it Fourthly by the sale of Trees to the Lessee they are not so re-united but the Lessee is absolute Owner of them for he has not an equal Interest in them and the Land to extinguish as if Feoffor sells the Trees to Feoffee Fifthly Wast may be in Glass tho in the Lessee's own setting up fixed by Nails or otherwise and so in Wainscot set up by the Lessor or Lessee and fastned either by Nails or otherwise to remove it if nailed Harlakenden's Case Co. 4. Rep. 62. 63. 64. Lessee deviseth the Term Executors do wast and then assent to the Legacy Wast lyes against them in the Tenuit and so if the Grantee on Condition do wast and then the Grantor enters for the Condition yet wast in the Tenuit lyes against the Assignee on Condition And if the Lessee unlawfully open a Mine and not that Term except Mines if after the Assignee dig in it 't is wast in him though the first began it for the Exception is void And resolved first Lessee may dig in Mines opened before not open new Secondly if it be of the Land and all Mines he may open new Mines Sanders Case Co. 5. R. 12. b. Wast lyes against an Occupant for he is within the words of the Statute for he holds Pur Terme de auter vie and it is against all Tenants for Life But it lyes not against Tenant by Elegit Statute Merchant for they hold not but come in by Act in Law Co. 6. R. 37. b. Lessee for years Sans Impeachment of Wast accepts a Confirmation for Life the Priviledge is gone because the Estate whereto it was annexed is removed Co. 8. R. 76. b. If the Sheriff go and see the place wasted and cause the Jury to have the View he may
to cut Beeches is wast Lopping Oak Ash or Elme or any thing to prejudice Trees is wast Making Charcoal of wood is wast Felling Timber to repair voluntary wast is double wast To dig for Gravel Stone c. is wast unless for Reparation of the house To suffer a Sea-wall or against a River to decay is wast To take Timber c. to make new Fences is wast Tenant cuts Trees for Repair and sells them though he buyes them again and employs them 't is wast Burning a house by Negligence or Mischance is wast 1 Inst 53. 40. E. 3. 15. b. Willows cut in view of the House is wast 40 E. 3. 25. b. So to cut Hasels in a Wood where there is no other Timber If one grants in his Leafe that Wast shall be redressed by Neihgbours and not by Plea yet he may bring an Action of Wast for the place wasted is not otherwise recoverable 1 Inst 53. a. If the Tenant repair houses before any Action of Wast be brought the Action of Wast is not maintainable but he must not plead Quòd non fecit vastum but the special matter 38 Ass 1 Reparation after the Writ brought not pending the Action seems no Plea 1 Inst 55. D. None shall have wast unless he had the immediate Inheritance yet an other may joyn with him against Tenant by the Curtesie with the surviving Partner Joyntenant for life with him that hath the Fee Where the Estate is determinable the Wast is general as Tail becomes Tail after possibility c. The Heir cannot have it of Wast in his Ancestors time nor a Bishop of his Predecessor nor shall Executors be punished for Testators wast Aunt and Neece may joyn 45 E. 3. 8. b. Gift to two and the Heirs of one he that hath Fee cannot have Wast against his Joyntenant but his heir may if wast after if the other survive if the Reversion be not continued in the same it was at the time of the wast done the Action is gone though taken back again 1 Inst 53. D. Wast lyes against Tenant by the Curtesie and in Dower though they have assigned unless the Reversioner have assigned also All others shall answer for their own wast unless Guardians And if the Guardian assign it lyes against the Assignee Guardian shall not answer wast by an other because 't is poenal unless he is Joynt-Guardian If one recovers against him under Age he recovers the Land else only Damages Infants Feme coverts c. shall answer Wast c. done by Strangers and she for her Husband Co. 1. Inst 53 b. 54. a. Husband Tenant for Life in his Wives Right does wast she dyes 't is dispunishable but if tenant for years in her Right not because the marriage is a Gift of it to him Tenant for Life grants his Estate on Condition Grantee does wast Grantor entâ—rs Wast lyes against the Grantee and the place shall be recovered Lord not punishable for wast done by his Villein before Entry Occupant punishable generally or specially Tenant afsigns and takes the Profits wast lyes against the Tenant Wast done sparsim in Woods or Houses all is to be recovered No Action of wast lyes against Guardian in Socage but Trespass or Account 3 Cro. 357. If Lessee take Trees c. to repair houses 't is not wast though he was not bound to repair them as his Lessor covenanted to repair them for if it was sans Impeachment of wast for the houses as the house was ruinous at his Entry and this for that Favour the Law gives to houses of Habitation Co. 1. Inst 54. b. a. Dyer 194. 198. b. Brook 463. Tit. Wast Lease of lands he may dig in open Mines and if it were of lands and mines if any were not open he can open none new but if none were then open he may open new ones Co. 1. Inst 54. b. 5 R. 1. 2. Tenant for Life makes Feoffment wast is done 't was upon Condition Lessee enters for Condition broken Lessor shall have wast So Successor of a Bishop shall have Wast on his Predecessors Lease for wast done in time of Vacation So if Lessee for Life be disseised and wast done if he enters he shall be charge able for the rest yet in none of these cases had the Lessor any Reversion in him at the time of the wast as regularly he ought but these cases stand upon their particular Reasons 1 Inst 13. b. The Aunt and Neece joyn in Action of Wast done in the old Sisters Life the Aunt alone recovers the damages Co. 1. Inst 233. b. Tenant for Life makes a Lease for years and enters upon his Lessee and consents to a Recovery in Wast against him the Lessee for years shall be for ever excluded for of necessity the place wasted must be recovered but if he had granted a Rent charge and committed Wast and the land recovered the Rent had continued Co. 1. Inst 233. b. Perkins 844. Tenant for Life does wast and grants over his Estate Lessor releaseth all wast to the Grantee it shall discharge the Lessee Idem of Tenant in Dower or by the Curtesie for besides the Privity that endures if the Lessor should maintain his Action he should recover Locum vastatum against the Grantee contrary to his own Release Co. 1. Inst 269. b. Lessee does wast and then surrenders 't is said the Lessor shall maitain wast but the Book seems to be misprinted and that it should be shall not maintain c. for by his own Act he hath determined his Action in part Co. 1. Inst 285. 5 Rep. 12. b. Wast brought against Tenant pur auter vie in Ass he dyes pending the Writ it shall not abate but proceed for the damages because altered by Act in Law but if Baron and Feme Tenants in Tail special bring Wast and she dies without Issue pendente brevi so as the Husband becomes Tenant in Tail apres possibility d'issue extinct it shall abate because all wast must be ad exheredationem And note that Release of actions real bar wast and so doth Actions personal for he shall not apportion his own Action Co. 1. Inst 285. a. One devises Lands by the general words Bosc ' Maherem ' Miner ' Carbon ' in tam amplis modo forma as the Lessee habuit or habere potuit the Lessee opens a Mine and cuts Trees to use about it the cutting is wast for the Trees were not granted it being a Lease nor do they pass as incident to the Mine it not being open And Hobard holds that if the Mine had been open at the time of the Lease it had been wast Hobard 234. Darcy against Ashwich Hutton 190. 191. Lessee cannot change the nature of the thing devised and therefore not turn Meadow into Arrable or Wood into Pasture dry up an ancient Poole suffer a Park pale to decay destroy a stock of Deer Fish c. but may better a thing in the same kind and therefore may
Town but he may inquire at any Town and there cannot be less than twelve of the Jury Co. 2. Inst 140. or 146. Articuli super Chartas gives an Action of Wast against the Escheator or Sub-Escheator if they do wast in any thing that comes into the King's hands with a Respondeat superior ' Co. 2. Inst 571. Wast may be in distruction of the Game of Deer or Pigeons though all be not destroyed so to stop the holes of Dove-houses to stop Coney burroughs but to dig Stones Marle or stub up old Thorns or plough a Hop-ground is not Ow. 36. 67. Co. 1. Inst 51. K. 2. Leon. 222. Adjudged That if Houses or Ground-sills be putrified for not scouring a Ditch Wast lyes In Domibus pro non escurando c. Ow. 43. To stub up Thorns is not wast unless growing in a hedge-row or on a Wood or old Thorns of fifty or sixty years growth Ow. 67. 1 Inst 53. One made a Feoffment to the use of himself for Life and to another in Fee and was punishable in Wast by him in Remainder therein tho in the Dr. and Stud. 't is said if Feoffment be to one for Life he is not punishable for Wast Ow. 91. 25 Eliz. Com. Banco Rot. 603. Rayer con ' Durat One entred into Bond not to commit Wast and the permitting a house ruinous at the time of the Lease to fall was a Forfeiture of the Obligation such Wast is not punishable if there be no Bond nor Covenant against it Owen 29 Eliz. Glover against Pike It seems that a Quod ei deforceat will lye upon a Recovery by default in a Writ of Wast against Tenant in Dower c. But because the default was after Appearance and so a Contempt it lay not in Elmer's Case not because Damage on the Prin ' or that Wast is a personal Action Vide 3 Cro 263. 2 Rolls 102. 2. 104. 4. Damage Owen 101. p. 33. El. Co. Baneo Rot. 1125. Elmer against Thatcher 1 Inst 355. 198. 2. r. 68. b. Lessee for years waves Possession and a Stranger commits Wast the Lessor shall have wast against Lessee and so if Lessee assigns and continue in Possession and does wast the wast shall be against him Ow. 141. When the Writ to enquire of wast is Awarded upon Nichil dicit there the Command in the Writ that the Sheriff go to the place wasted and enquire c. is but Surplus and the Sheriff needs not go thither but may enquire of it in any place in the County because the wast is confessed but if the Writ be to enquire at the Grand Distress upon Westm 2. 24. There such Command is necessary and the Sheriff must go to the place because that must better appear upon the view yet the Entry in both cases is Per visum Juratorum Pop. 24. Dy. 204. a. Hutt 44. 3 Cro. 18. 290. When the Interest of the Inheritance is in one person and the Lease for years in another though by several Demises part at one time part at another time yet one Action of Wast lyes and so if Lessor have but two third parts of the house in which the wast is done he shall assign wast to be done in the whole for it cannot be done in part but 't is to all and though not in all yet it goes to each part But 14 H. 8. where one lets several Leases of the same Lands to one person not one but several Actions Pop. 24. 25. 3 Cro. 290. 14 H. 8. 12. b. Lease for Life without Impeachment of Wast Lessee has an Interest in the Trees c. and may give them and shall have them whoever cuts them and shall have Trespass against a Stranger that cuts them contrary to Co. 4. 63. a. Dy. 184. a. Hob. 132. Pop. 195. Co. 11. 82. b. Dy. 47. b. Co. 1. Inst 224 a. 2 Cro. 216. When the Wast is confessed by Nil dicit the Writ to enquire is not to enquire of the Wast as it is when the Judgment is upon the Distress by the Statute but only of the Damage Hutt 44. Tippin against Rives Trenching a Meadow whereby it is meliorated is not wast but building a new house is because it puts the Lord to more charge and so is planting a Hop-ground because it alters the Lord's Inheritance Dyer 361. b. Hutton 19. 103. Hob. 234. 1 Inst 53. f. By Fitzh and Baldwin Ch. Inst One Joynt-tenant shall have Wast against his Companion by the Equity of the Statute cum duo vel tres c. but not Parceners because they were compellable to make Partition and not denyed p. 27. H. 8. Pl. 37. Wast Et inter alios Arbores white Thorns each valued at 6 s. 8 d. Defendant pleads that they were for Hedge-boot and House-boot Plaintiff says there were black Thorns enough besides and as to the Hedge-boot is taken that there were not enough besides and found there were as to the House-boot the Defendant demurs and the Plaintiff enters a Nolle prosequi on the Demurrer and Cur. advisare vult on the Verdict and no Judgment given Co. Entr. 708 709. Pl. 11. Wast and Issue of a Confirmation and in the Venire facias was omitted Et Interim Terram illam videant wherefore obj they cannot take the Inquest Responds they may the Issue here being for a collateral thing and the Estate not to be enquired of P. 7. E. 4. Pl. 2. Wast against Baron and Feme and she received in his default pleads an Assignment by them and till then no Wast And it seems she shall have the Plea though it appear she can lose nothing And for Damages she shall not be received Trin. 9. E. 4. 15. Vid. 22. E. 4. 35. a. 21. H. 6. 46. 4. or 40. 42. E. 3. 22. 6. Wast brought by two and one summoned and severed and the other recovers the moyety of the place wasted and the Moyety of the damages quoad the VVillows Assize for wast Cur ' advisari vult P. 12. E. 4. Pl. 1. If one does wast and repairs before Action brought he may plead it and excuse himself but if the Condition of a Bond be not to do wast and he does wast and re-edifies yet Debt lyes for the Bond was once and ever forfeited 20 E. 4. 18. b. Lessor sells Trees Vendee cuts them Lessee's Cattel eat the Germines no Wast for he not bound to fence them in against the Lessor's own tortious Act. Tr. Mo. 9. Lease for years Remainder for Life Tenant for years does wast Action of Wast lyes So if Lessor covenant that he will not sue Lessee for wast within two years yet after the two years he may sue him for wast done within them But if Tenant for Life be Remainder to Baron and Feme in special Tail Feme dyes without Issue wast lyes not otherwise if the Remainder in Fee were to the Baron because the Tenants in Tail after Possibility were merged by the Fee per Browne quod tamen
c. The same law if an Abbot make a Feoffment in Fee and afterwards is deposed and sometime after is made Abbot now he shall have an Action against his Deed which he himself made when he was Abbot because that now he comes in as Successor and not in the place as he was before The same Law of Warden and Schollars But it would have been otherwise if he had disseised a Parson and made Feoffment in Fee with warranty or without warranty and afterwards is made Parson now if he will use an Action his own Feoffment shall be a Barr against him because that all that he shall recover by this Action is to his own use The same Law if a man disseise a woman and makes a Feoffment in Fee and afterwards he takes the woman to Wife in this case the Husband shall be Barred because that he will have advantage of this Recovery to his own use If a man hath right to have Land where his Entry is tolle and releaseth to the Tenant all manner of Actions and dye his Heir shall have his Action and recover the Land because that by such release no right is extinguished and if the Tenant makes Feoffment in Fee or dyes seised he that made the release shall have his Action against the Heir of the Tenant or his Feoffee against his own release and the cause is because that nothing is released but his Action against the same person and not any right If the Son disseise his Father and make a Feoffment with warranty or without warranty and after his Father dyes he cannot ouste his Feoffee because that it was his own Deed. A man hath good cause of Action sometimes and yet by matter ex post facto and by the Act of a Stranger his Action is destroyed As I am disseisee and he is disseisor and I release to the disseisor Also I bail or lend Goods to one a Stranger takes them the bailor sells them to a Stranger c. Action of Debt upon an obligation brought by an Executor the writ shall be detinet and not debet and for this cause they joyn in the same Action for an Horse delivered by themselves to the same Obligor The same Law if a man recover Lands by default in which I have an Estate for life and he recovers by another writ by default Lands wherein I have an Estate Tail I shall have a Quod ei deforceat because the conclusion of the writ serves me And so a man may joyn two or three things in his Action where the conclusion of his Action is pertinent to the several matters and doth not vary If two or three Acres are given severally in tail and the party discontinue the whole his Heir shall have Formedon for the whole because that the writ is le quel un I. dit S. dona and although the Acres are given severally that is not material forasmuch as the common Writ will serve in this case But if the Acres are given by divers or several men or that the one shall be given to the Heirs Males and the other to the Heirs Females and the third to the Heirs General in this case the Heir shall have several writs and not one writ because that one writ cannot serve for such several Gifts If I deliver Goods to one who is indebted to me and he dyes against his Executors I may have a writ for the Goods and for the Debt because that the writ is against the Executors for the Debt in the Detinet and for the detinue it is in the Detinet and therefore the writ well warrants the count to declare partly for debt and partly for Detinue but such an Action he could not have had against the Testator because that for the debt against him the writ ought to have been in the debet and detinet A Feoffment is made upon condition of payment by the Feoffor he commits Trespass and afterwards enters by force of payment c. yet the Feoffee shall have Trespass because his possession is affirm'd 43 E. 3. Assumpsit If he would relinquish such a debt to pay him 30 l. and sayes he did relinquish it c. and after Verdict for the Plaintiff Judgment stayed because he shews not how he relinquished it and it may be by parol which were void Gregory versus Lovell 3 Cro. 292. Assumpsit in Consideration he would discharge him from an Arrest and sayes that exoneravit ipsum moved in Arrest c. he shews not how he discharged him sed non allocatur for they might be per parol or for a time but in Pleading a discharge of a Rent or bond which must be by Deed and perpetual it must be shewed how King versus Hobs. 2. Cro. 930. 960. Assumpsit the Defendant pleads the discharge of the promise whereof Issue taken and found for the Plaintiff and divers defects in the Declaration moved in Arrest of Judgment but by Wrâ—y all these defects tending to the Assumpsit are cured by the collateral Plea Manwood v. Buston 2. Leond. 203 204. Assumpsit If he would make it appear c. and sayes he made it appear by the Court-Roll Good without saying what the Court Rolls were for the Infinitly So a Bond to save harmless from all Estreates good without shewing what for the same reason Vide 9 E. 4. 15. a. 22 E. 4. 41. a Mo. Pl. 1175. 3 Cro. 149 Pl 3. 919. Pl. 3. 3 Bulst 31. Latch 130. H. 2. H. 7. Pl 22. H. 6. H. 7. Pl. 8. 8. 22 E. 4. 15. ab 28. b. 29. a. Assumed he would assign Goods to pay c. and sayes he assigned and shews not how but per scriptum yet good Note after verdict Forth v. Yates Tr. 30 Car. 2. B R. Assumpsit against an Executor who Pleads solvit to such a one on a Bond of 100 l. and to another 100 l. on a Bond and so to divers others which he was forced to do the Payment being post exhibitionem Bille and Pleads a Recognizance in force not satisfied the Plaintiff Pleads non solvit to such a one 100 l. nor to such a one 100 l. Et si de ceteris hoc petit c. and to the Recognizance that it was satisfied and kept in force of Fraud the Defendant demurred quià replicatio multiplyed and double consisting of two matters where one goes to the whole but Judgment for the Plaintiff for the first objection to one 100 l. to another 100 l. make several Issues though que de hoc And in case of an Executor one may answer to every thing alledged by him H. 21 22. Car. 2. B. R. Jeffreys v. Dod. Assumpsit to permit Land to descend breach laid quod non permisit well being in the negative but in the affirmative it ought to be shewed how disposed though they could not descend H. 9. Jac. B. R. rot 3 Bulstr 18. Assumpsit to perform an Award and sets it forth the Defendant pleads
demands a Debt or any thing by Deed he shall not be Barred but by deed or a thing of as high a nature AS Trespass for taking of an Apprentice it is no Plea to say he discharged him â—â—â—â—out speciality Mich. 22 H. 6. The same Law in Debt upon an Obligation it is no Plea for the Defendant to say that the Plaintiff hath received parcel at such a place depending the Writ Judgment 7 E. 3. The same Law in Debt upon Arrearages of Account the Defendant Pleaded Arbitrement it is no Barr because that Debt upon Arbitrement is not of so high a nature as Debt upon Arrearages of Account for there he cannot wage Law The same Law in Debt upon an Obligation it is no Plea to say that he hath paid the Summ in demand to the Plaintiff because that he ought if he will avoid the Deed to say that he hath the Plaintiffs Release or Acquittance to shew The Disseisor Levies a Fine with Proclamations the Five years pass the Disseisee is bound afterwards the Disseisor reverseth the Fine by a Writ of Error then the Disseisee may enter and yet he was once Barred Vide Barr pro tempore Where a man shall Plead a Barr which shall comprehend one matter in fait and where it shall comprehend two matters IF a man Pleads in Barr an Arbitrement he ought to say where the Submission was and also where the Award was made and so to make the Plea certain But when he Pleads a Plea which comprehends two matters he ought not to shew the certainty until the Plaintiff hath Traversed one of them Of Barrs perpetual A Woman is bound to me in an Obligation and I afterwards take her to Wife I am once Barred and allwayes Barred Tenant in Tail leaves Assets which is Pleaded against him who is Heir both he and all his Heirs are Barred for ever A man is bound to pay the Abbot of Westminster and his Successors every year Twenty shillings the Abbey being dissolved he is discharged of the Twenty shillings for ever Also if a man be obliged to keep my Court in Dale I purchase all the Copy-holds and Free-holds of the said Mannor he is discharged from keeping the said Court for ever See Pleas and Pleadings Cinque-Ports AN Elegit to extend Lands within the Cinque-Ports was directed to the Constable of Dover But he would not extend so that the Plaintiff was compelled to have a Certiorari to remove the Record out of the Kings-Bench into the Chancery And from thence by Mittimus sent to the Constable to make Execution Custom 's and Prescriptions ALI Customes against Cannon-Law are to be Tryed at Common-Law and not in the Ecclesiastical Courts Customs are payable to the King by the Common-Law the Reasons why they are so paid see in Davies Rep. fo 9. ct 10. Le case del Customs See the difference between Malum in se etmalum prohibitum and how the King may Pardon it but not licence it to be done 11 H. 7. fo 12. et Davies Rep. fo 73. Where Debt or damages are recovered in a Court-Baron the Bailiff ought not to sell the Goods of the Defendant and deliver the money to the Plaintiff But to impound them and keep them as pledges until the Defendant makes his agreement but where it hath been the use of the Court to award a Levari facias it is good by Custome Where the younger son in Burrough-English dyes the Middle Son not the Eldest shall have the Land The same Law for Customary or Copy-hold Lands It was the Custom of the Kings-Bench every Term once or twice to send the Coroner of that place to the Marshal to view the Prisoners that are in the Marshals Custody by Commititur or matter of Record and if any of them are wanting that he could not find them there then to mark their names in his Coroners Book and to inform the Court thereof And thereupon the Court did pose the Marshal who was to inform the Justices what was become of those Prisoners And if he found not sufficient cause of excuse the Court would Record their escape against the Marshal And the abusing of an Office is the escape of Prisoners in the Marshal an abuse of his Office and just cause of Forfeiture If an Alien have a son that is also an Alien and after the Father is made free and then hath another Son and after purchaseth Lands and dyes The second Son born after the Freedom shall be Heir and not the Eldest by the Common-Law and usage of the Realm And also if there be three Brothers and the middlemost purchaseth Lands and dyes without Heir of his Body the Eldest Brother shall inherit and not the Youngest By the Custom of London a Feme Covert that is to say a Sole Merchant may sue and be sued in absence of her Husband Bulstrode part 1. fo 14. where you may read of three sorts of Customs that are void and against Law 1. a Custom against Justice 2. a Custom against the Benefit of the Common-Wealth and 3. a Custom that is to the Prejudice of a third Person Custom and usage in the intendment of the Law is such a usage as hath obtained the force of Law and is binding to such particular place as Gavelkind in Kent and Burrough-Euglish in many Corporations in England When the Custom of the Realm is the Common Law WHen it is the Common-Law a Custom ought not to be alleadged or Pleaded But an Action against a Carrier Hoyman Common Hosteler and for negligently keeping of Fire the Plaintiff may declare upon the General Custom of the Realm or not at his Election And note That a Custom is always Local and to be alleadged in one certain place but a Prescription is personal and ought to be alledged in some persons certain as in such a man his Ancestors or Predecessors or those whose Estate he hath 22 H. 6. 22. A Prescription is always to be of such a thing and in such manner as may be intended to have a lawful and legal commencement or otherwise it is not good but a Custom may be contrary to the Rules and Maxims of the Law as Borough-English Gavelkind Copy-hold Tenures So Lands devisable by Custom So that the Custom be reasonable Co. 6. Gatewards case lib 5. Perimans Case None can prescribe but who hath Fee but all other Estates derived out of the Fee as Lessee for years Life or at Will ought to prescribe in him who hath the Fee Gatewards case ubi supra A Lord prescribed that he and all those whose Estates he hath in the Mannor have hitherto used to have a Herriot after the death of any Tenant for life or for years within the Mannor and good notwithstanding the Estates of the Tenants have no continuance 21 H. 7. 15. Prescription ought not to be in the Negative but if it be in the Negative with an Affirmative it is good 14 H. 6. 3. 22 H. 6. 36. 11 E. 4
any other Title or to have any other Action to recover the Land than that by which he hath recovered and by the same reason that he shall not have a Cessavit he shall not have Eschete If a man hath Rent in Fee he may distrain or have a Writ of Annuity and if he brings a Writ of Annuity and hath Judgment to recover although that he sues not out Execution yet he shall never distrain for the Rent afterwards Tenant in Tail discontinues for Life and dyes and the Tenant for Life aliens in Fee and the Heir bring in consimili casu and recovers now by this Judgment he shall never have a Formedon of the same Land c. The disseisor enfeoffs the disseisee by deed indented upon Condition or makes a Lease for Life by Deed indented this is a good Conclusion to the disseisee to demand his Right and the Reason is that by the Deed indented the disseisee hath affirmed the Estate of the Disseisor which is as much as if he had confirmed his Estate before the Feoffment In Debt upon an Obligation the Defendant pleads a Release upon which the Plaintiff is Nonsuit afterwards the Plaintiff brings a new Action of Debt the Defendant shall be estopped to say that he was deins age or that the Obligation was made per minas But it is otherwise if the Plea be discontinued An Essoin is cast for the Tenant in a Writ of Dower yet the Tenant shall be received to say that he hath been allways ready to render Dower and because that an Essoin may be cast for a Stranger this Essoin is no Estoppel for an Estoppel shall be good to every intent but because an Essoin may be cast for a Stranger as well as for the Tenant himself it shall be said an Estoppel I bring an Assise of Mortdancestor and recover when in Truth I have no Right c. yet the Wife of the same Father shall be endowed c. Also in Avowry Tenant for life Aliens in Fee the Wife of Tenant for Life shall be endowed against the Feoffee Also Tenant in Tail is bound by Statute and makes Feoffment Execution against the Feoffee Of some Estoppels none shall have advantage but those who are parties or privies AS if I loose Land by Erroneous Judgment or false Verdict those that are Strangers shall have no advantage But of some Estoppels every one shall have advantage As Bastardy certified by the Bishop User of Action is no Estoppel to prejudice an other viz. Heir c. AS a man grants a Rent Charge in Fee to an Abbot and his Successors or to a Feme-Covert and her Heirs if the Abbot or Husband brings an Action it shall not prejudice the Successor or the Wife In no Case one person shall estopp another but in Dower AS where a Woman demands Dower and she hath Writings touching the Inheritance of the Heir for in debt it is no Plea to say that the Plaintiff is indebted to the Defendant in ten pounds because that it cannot be tryed by the Original 3 H. 6. In every Case where I am Barred of Land as if it be found that I am not next Heir this Estoppel shall pass with the Land and every one that claims the Land by me shall be Estopped but of other Lands it shall be no Estoppel against me 33 H. 6. IF I bring a Praecipe quod reddat by the name of Richard when my name is John and recover by default against the Tenant and afterwards I bring another Writ by my right name against the same Tenant he shall not estopp himself by that Recovery So if I have misnamed the Tenant in the first Record because he shall not be grieved by it Mich. 33 H. 6. contra per Prisot contra per Fortescue 34. By Prisot none shall be received to plead an Estoppel against another but he that pleads may be estopped by the same plea and this is where both parties are parties to the Record otherwise not For if I bring an Action by the name of Robert when my name is John against one that pleads with me if afterwards I sue him by the name of John he shall estopp me by that Record but against a Stranger I shall not be estopped by it by Prisott and by Fortescue 30 H. 6. 26 H. 6. 14 E. 4. contra Bastardy certified against me or found against me every Stranger shall estopp me because that every Stranger is estopped to say that I am mulier But if I am certified mulier a Stranger shall not be estopped by it to plead special Bastardy because that it may be that I am a Bastard in our Law and a mulier in the spiritual Law but not è contra No Stranger shall take advantage by an Estoppel but where the Estoppel extinguisheth the Right AS if a Man makes a Lease to me for Term of years of my own Land and the Term passeth and he enters and grants a Rent Charge in Fee and afterwards I recover against the Grantor the Land by default the Grantee shall not falsify the Recovery by Estoppel A Stranger shall not take advantage of an Estoppel in fait if it be in the Realty but by matter of Record it is otherwise A Man takes a Lease of Lands for years or for Life of which Lands he himself â—s seâ—sed in Fee or in Tail at the time of the Lease made if it be by Deed indented he is estopped to say that he had any Estate or Right in those Lands at the time of the Lease The same Law if a man be disseised and takes a Lease of the disseisor for a term of years of the same Lands by Deed indented But if a man takes a Lease for term of life of his disseisor he shall not be thereby estopped notwithstanding it be by Deed indented because that by the Livery he is remitted and the Lease is void ut dicitur quaere tamen for the Indenture is strong against him but if it be indented it is cleer Law but if it be by Fine it shall be an Estoppel because that the Estoppel takes effect before his Entry Or if Livery be made out of the Lands within View c. If a man makes a Lease by Deed indented to one of his own Lands now he is concluded after the Lease determines the Lessor enters by force of the conclusion and a stranger comes in aid of him the Lessee shall punish the stranger for this Trespass and he shall not conclude him by force of the Lease because he is wholly a stranger to the Judgment per totam Curiam 14 H. 6. But quaere if he justify as servant if he shall conclude himself Fines and Recoveries A Fine was Levied of Lands in two Counties and but one County mentioned in the Fine yet because it was for the uses declared in an Indenture which did mention the Lands in the other County all the Lands mentioned in the Indenture did pass If
take the Inquisition at another place Co. 8. R. 15 2. b. Lease for Life Sans Impeachment of Wast per parol mult ' alterâ—at ' and not resolved whether the Priviledge be good without deed but resolved if the Priviledge be void without Deed yet the Estate is good as an Estate without the Priviledge Co. 9. R. 9. a. 10. b. In Wast for cutting down a tree nothing shall be recovered but the Circuit of the Root and not according to the Latitude of the Branches Co. 11. R. 50. a. Lease for years Sans Impeachment c. Lessor confirms his Estate for Life the Term is merged and he punishable for wast so lease pur auter vie Sans Impeachment c. Remainder in him for his own Life it merges his first Estate c. he is bare Tenant for Life punishable for wast Co. 11. R. 83. b. Term expires Lessee continues in Tenant at Sufferance and does voluntary wast his Lessor also being Tenant for years brings Action upon the Case and adjudged it lyes and not Trespass as objected by Littleton it ought to be and the rather here because the Plaintiff being but a Termor subject to Wast ought to sue his Action to have as much in Damages as he may be charged over West against Trend 1 Cro. 135. vid. Co. 5. r. 13. b. Error of a Judgment in wast assigned first because the Wast being assigned in several things entire Damages are taxed which ought not to be for some of them be Pettits not punishable and the Court is to judge Sed non allocatur being found not intended any of them Pettit Secondly thirteen Jurors enquire and they not an Inquest of Office as Writ to enquire of Damages for Attaint lyes but that seemed well enough also Thirdly the Wast is assigned in cutting twenty Trees and the Jury found him guilty but of two and yet no Misericordia pro Resid ' But Barkley held it well for when they find any part of the same thing assigned there needs no Miserecordia pro resid ' But if they find wast in some things and no Wast in any part of one thing as if Wast assigned in Domibus Boscis and they find it in part in Domibus and none in Boscis he shall be in Misericordia pro Boscis but where they find a less number of trees than assigned Jones and Cro. doubted K. uxor against Fitzh 1 Cro. 299. 327. Eradication of white Thorns is wast not succidendo and vendendo unless they grow in places for defence of Cattel and it be so averr'd 2 Cro. 126. Lease for years with House-boot and Hay-boot sine impetitione vasti as good as sine impetitione vasti and traverse to the whole not the House-boot and Hay-boot Ley against Eyre 2 Cro. 226. or 216. Wast and Counts general of wast done ad exhered ' 't is found that the Defendant was Lessee for years Remainder to D. Sans Impeachment of Wast who is dead and if the wast was committed in the Life of B. yet good amover for though then no Action lay and B. might have licensed him to do wast yet now he may count of it as Wast immediately done to himself Bray against Tracey 2 Cro. 688. Wast and Counts of a Lease for Life Defendant pleads 't is part of an Hospital whereto the Plaintiff presented him for life it seems it lyes not for he is in from the Foundation and though in but for Life the person has the time no Revertion in him 21 H. 6. 2. Wast by an Abbot and Counts of a Lease by the Predecessor and assigns wast general without saying whether in the Predecessors time or his own and good for were the wast committed in the Predecessors time the Successor shall punish it and so is 42 E. 3. 22. And if the Predecessor had released it yet the Predecessor may punish it for being in the Realty the Predecessor could only release for his own Life eod Libr. E. 3. yet there 't is doubted if an Agreement had been made with the Predecessor for the wast if it had not been a Bar. And in 21 H. 6. where one justifies to cut Ashes for Fire-wood could be had and that per Curiam yet note in the end of the Case t is pleaded and that no under-wood was there And in this case 't is held by some that Ashes Oaks c. under twenty years growth may be taken for Fire-boot c. but denyed by others for they are Ashes and 't is held that Lessee Sans fait may take House-boot c. as well as if by Deed and that if Lessor in the Deed of Lease granted that he will require the House Lestue may take Trees in his default and pleaded it in Bar of the wast and so seems Dyer 198 b. 124. a 24 H. 6. 46. 47. 48. The Summons Attachment and Distress all retorned nihil and whether a VVrit to enquire of the VVast shall be awarded no VVrit being retorned served or an Alias distringas multum dubitatur alter catur but at last the VVrit was awarded To inquire of Wast vide 41. or 14. H. 6. 2. b per Roll. If Baron and Feme Tenants in Common of a Term be and wast is done wast lyes against her after his Death quod alii concesserunt Trav. denyed Et vide F. N. B. 59. Baron and Feme Tenants for Life she shall not be punishable after his Death for VVast done by him 46 E. 3. 25. vid. Case 21 H. 6 56. a. b. H. 6 25. b. VVast and assigns wast in cutting down so many Oaks and in cutting down the Springs that came up from the Roots again Resolved this is double wast and so may be double Assignment and is not a double Assignment of the same wast and treble Damages shall be given for each cutting tho by some it can be recovered but once 2 H. 12. a. b. Tenant in Dower or by the Courtesie grants over their Estate yet the Husband shall maintain an Action of Wast against them but if he assigned his Reversion his Assignee must have it against their Assignee Co. 1. Inst 316. a. F. N. B. 45. Two bring an Action of VVast one releases it bars both if it be in the Tenuit wherein Damages only are to be recovered not if in the tenet where locum vastatum is to be recovered also Co. 1. Inst 355. b. In Co. 1. Inst 't is held of one side and denyed by the other that an Attachment lyes upon an Inquiry of wast But 1 Cro. 't is held clearly that it does And F. N. B. fays it was fo resolved by the Court 2 H. 4. But his Opinion is contrary Co 1. Inst 355. b. 1 Cro. 299. F. N. B. 107. c. The Reversion must continue in him that brings the Action at the time of the Action brought because 't is said Ad Exheredationem and it must be in him at the time of the wast done unless in special Cases as Tenant for Life
706. Pl. 9. 700. Pl. 7. Feoffment to the use of A. for Life without Impeachment of wast and power to cut and sell Trees and make Leases Remainder for Life to B. with the same power Latch 163. 268. Poph. 193. 706. Pl. 9. A. makes a Lease and dyes quaere whether B. may cut the Trees not agreed but ' t is agreed that the Clause Sans Impeachment gave an Interest and A. might have done what he would with the Trees but not his Executor after his Death because it was an Interest annexed to his Estate and determined with it the doubt of the Remainder chiefly seems to be because the Lease ariseth partly out of the first Feoffment and partly of the Lessors Estate for Life Note the Lease was excepted the Trees and the Exception good because Tenant for Life had an Interest by the Sans Impeachment Secherval versus Dale Latch 163. 268. c. as before Lessor brings wast against Lessee for Trees of the Plaintiff the Lessor himself cut them 't is a good Bar and therefore in Trespass by the Lessee against Lessor for the cutting he shall recover only for the Fruit and Shade because not charged over as if a Stranger had cut them he should Co. 13. r. 96. 70. M. 10. H. 7. Pl. 3. 2 E. 4. 2. or 7. b. In wast for digging Gravel Defendant justifies by Command of the Lessor no plea for 't is the Lessee's Land pur temps not the Lessors so he could not command him also 't is per parol and without Deed and against the Tenant for Life yet dict such a Command to cut Trees good because not the Lessee's but Lessor's and that is agreed in Co. 11. R. 48. b. H. 2. H. 7. Pl. 20. M. 10. H. 7. Pl. 3. Feoffee to use Cestuy que use makes a lease for years according to the Statute R. 3. The Reversion remains in the Feoffee for the Statute does but give Authority to Cestuy que use to dispose as where one wills that his Executor shall sell if Lessee commits wast the Feoffee shall bring the Action tho no Privity because they could not have any so shall the Lord in Escheate maintain Wast yet he had not Privity Mi. 5. H. 7. Pl. 11. H. 8. H. 7. Pl. 1. Tr. 26. H. 8. Pl. 131. or 31. 'T is wast to pull down or suffer a wall to go to Ruine be it made of Wood Mud or Stone or be it within the house for Separation or without for Inclosure so to destroy wood of hasle or willow not to cut them Husbandly To cut Fruit Trees in an Orchard and destroy them is wast not if they grow in Hedges and Closures and if a house be ruinous at the Entry 't is no wast to suffer it to decay otherwise if not ruinous at the Entry but where 't is held ploughing Meadows is no wast 't is no Law Hob. 234. Ow. 66. M. 10. H. 7. Pl. 3. 4. In an Action of Wast in the Tenuit an Accord is a good Plea because only damages to be recovered not in the Tenuit because locum vastatum is to be recovered also Co. Entr. 706. 707. Pl. 9. H. 11. H. 7. Pl. 7. P. 13. H. 7. Pl. 3. Co. 6. R. 44. a. Upon Scire facias of a Judgment in wast one may have a Writ of Estrepement or in any Suit where no Damages are to be recovered but not Scire facias of wast committed after the first Scire facias because he might have had Estrepement at first But for wast after Estrepement a Scire facias lyes to shew Cause why he committed the wast and a Scire facias lyes in Assise for wast done after Judgment not before Judgment because he cannot recover Damages for its after verdict but in a Formedon not because he might have had Estrepement and Pl. 20. Error of a Judgment in Assise and the Piaintiff in the Error prayed an Estrepement and could not have it because he may it seems have Scire facias for damages done after the Judgment c. But questioned per Fennel because by the Statute he finds Security in the Writ specified to answer for all the Damages Mich. 14. H. 7. Pl. 20. but vid. 32 or 33 H. 6. b. a. In Scire facias of a Fine Estrepement lyes Lessee does wast in a corner of a Wood only the part not the whole shall be recovered but if he do in the whole Wood and there be plots of ground within the Wood that shall be recovered with the Wood. Tsin 15. H. 7. Pl. 21. Furnaces Fatts Posts Rails c. fixed to the Free-hold by Lessee for years 't is hâ—ld by some that if he remove them during the Term 't is no Wast quod qu. But agreed that if he leave them there till the Term ended he cannot remove them Vid. 42 E. 3. 6. a. 6. M. 20. H. 7. Pl. 24. Trin. 21. H. 7. Pl. 4. Owen 70. Lease Absque impetitionc vasti in Wast he shall plead that in Excuse but if the Lease at first were given and then a grant after that he shall not be punished in Wast it is not pleadable in Bar but to bind as a Covenant Vide divers such Cases 21 H. 7. 30. Tenant for life grants his Estate to one Parcener in Reversion and her Husband 't is no Surrender and if the Baron and Feme do wast the other Sister shall bring a Writ in all their names and the Baron and Feme shall be summoned and severed M. 2. H. 7. Pl. 60. In wast by Lessor the Lessee pleads not guilty and gives in Evidence a grant to cut c. to repair c. And per Brook Pollard and Elliot it was no wast but ought to have been pleaded and not given in Evidence for thereby the Advantage thereof is lost Ad quod Bradnet concessit but held it wast but not punishable Wast and he held that if a Lessor covenant to repair and do not Lessee may do it and deduct it out of the Rent And if one covenant to repair a ruinous house if he do not 't is wast but he may take Trees else it had not yet in that case he might have repaired it and taken Trees to do it though not bound to do it And at Common law Lessee might take Boots but if excessive it is Wast Lessee suffers Posts Pales c. to decay it is wast Trin. 12. H. 8. Pl. 1. or 4. Wills WIl ls and Testaments were originally proved at the Common Law as Perkins confesses and Leonard says they are by the Curtesie of England proved in the Spiritual Court not de communi jure nor in other Nations and in divers Mannors the Lords have the Probate at this day Co. 5. Rep. 73. b. 16. a. 9. Rep. 38. a. 5. Rep. 30. b. Issue at Common Law for Lands devised by Will and the question whether a Will or not and now they moved at the Spiritual Court to it which will blemish the Evidence at the