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CHAPTER IX.

Of Decrees for Account and Satisfaction of Waste: the

Application of Timber accidentally severed or directed by the Court to be felled.

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As the doctrine respecting the Practice of courts of equity in the granting, continuing, and dissolving injunctions to stay waste is collected in a subsequent part of this Treatise; the present chapter will only contain the consideration of that jurisdiction which is exercised in decreeing an Account and Satisfaction of waste committed, and some minor points of practice connected with the subject.

In all those cases in which a bill for an injunction will lie, the courts of equity, upon the principle of preventing multiplicity of suits, will give an account of and satisfaction for waste already committed. Lord Hardwicke, in one case alluding to this jurisdiction, observed, that as in bills for account of assets, &c., which originally were bills for discovery, without which an account could not be had, the court, in order to make a complete decree, gave the party his debt likewise; in like manner upon bills for injunctions, a court of equity, in order to give complete relief, gave the party an account and satisfaction for the waste committed, without obliging him to bring an action at law, as well as a bill in

equity (a). This doctrine is clearly established Account. where the account prayed is consequential to the injunction, but how far a court of equity will give an account of waste committed, and decree satisfaction, where that relief is not consequential to an injunction, is a point upon which the authorities are much at variance.

In the case of mines and collieries, which are looked Account upon in equity as a species of trade, a decree for an the profits of account of profits has been frequently made, although mines, al

though no no injunction has been prayed by the bill (6). This injunction relief, however, is the same as the account given by prayed. a court of equity of rents and profits, and cannot be maintained upon a mere legal title (c).

The question upon which the dicta and authorities Quære are much at variance is, whether a bill will lie merely in

whether of for an account of timber cut, and not as consequential to an injunction? In the case of Jesus College v. Bloom, which was a bill for an account and satisfaction of waste in cutting down trees brought against an assignee of the lessee, after an assignment of the term, for waste done before assignment, Lord Hardwicke expressed himself, to be clearly of opinion, that a bill could not be brought, for an account of waste, without at the same time praying an injunction : that the ground of coming into the court, was to stay waste; not by way of satisfaction for the

(a) 3 Atk. 263. Redes. Tr. 96. n.

(6) Bishop of Winchester o. Knight, 1 P. W. 406. Story v. Lord Windsor, 2 Atk. 630. Jesus College o. Bloom, 3 Atk. 264. Amb. 54. Pulteney v. Warren, 6 Ves, 89.

(c) Sayer v. Pierce, 1 Ves. 232.

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damage, but by way of prevention of the wrong; and that the account was afterwards granted, only on the maxim, of preventing multiplicity of suits. The bill was accordingly dismissed with costs. In a subsequent case (a), Lord Hardwicke made the same distinction. He said, that after the estate of the lessee was determined, and a new lessee is in possession, a person, merely for an account of timber felled by way of wrong, could not come into a court of equity. But where the person continues in possession, and consequently in a condition of committing more waste, there a person is proper to come into equity for an injunction to stay waste. And he said, “ though the plaintiffs have not actually moved for an injunction, they might reserve that relief till the hearing of the cause, if they thought proper; and I am of opinion it is incident to their estate, and they are entitled to an account of such waste.” It seems also, although his lordship has never had occasion to enter very minutely into the subject, that Lord Eldon entertains the same opinion (6).

On the other hand, in the case of Whitfield v. Bewit (c), the tenant for life in possession having cut down and sold timber, and threatened to open mines ; upon a bill for an account of the timber, and for an injunction to stay opening the mines, it was objected that trover would lie at law. Lord Macclesfield, however, said that it might be very necessary for the party who had the inheritance to bring his

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bill, as it might be impossible for him to discover Account. the value of the timber, it being in possession of and cut down by the tenant for life.

The case of Garth v. Cotton is a remarkable instance of a bill for an account of waste, in which no injunction was prayed : and though it differs in some respects from the case of Jesus College v. Bloom, yet the mode in which Lord Hardwicke endeavoured to avoid the authority of his own determination in that case, cannot be but.considered as a blemish to that celebrated judgment; as the two cases will, upon examination, be found to be perfectly reconcileable. The bill in Garth v. Cotton was filed by a contingent remainder man, who had come into possession long after the waste committed, against the remainder man in fee, for an account of timber which he had cut in collusion with the tenant for life, who was the plaintiff's father. One of the objections to the relief prayed was, that though a bill might have been maintained, for an injunction and account, by the trustees to support contingent remainders, yet it did not follow that a bill could afterwards be brought for an account only; it was : said, that the jurisdiction to decree an account of the value of timber, was only incident and concomitant to the jurisdiction of granting an injunction, and the case of Jesus College v. Bloom was cited. Lord Hardwicke, however, after admitting that the general run of the cases, was of bills for an injunction, as being most remedial to the party, observed, that it did not afford a conclusive argument that a bill for an account could not be maintained without praying an injunction. ' Speaking of Jesus

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College v. Bloom, his Lordship observed, “ at the hearing of the cause I doubted (amongst other things) whether such a bill in equity was maintainable without praying an injunction to stay waste, and it stood over to another day to produce precedents ; none were produced, and the bill was dismissed without costs (a): but the point was not absolutely determined, nor was that the only ground of the dismissal (6), but I was of opinion, that at the utmost it was in the discretion of the court; and if the college had a right, they might clearly bring an action of trover at common law, and it being a matter of small value, I did not think fit to countenance such bills in this court after the lease expired.”

His Lordship, however, afterwards proceeded to draw what, it is submitted, is the true line of distinction between these cases; he said, that the case before him was different from Jesus College v. Bloom in all its circumstances, and particularly as it was admitted that the plaintiff, though greatly damnified, could have no remedy at law : that this was the substantial difference.

There still remains a very important case (c) be'fore Lord Thurlow, in which this distinction was not attended to, and which carries the doctrine of account to a great extent. In one circumstance indeed it differed from the case of Jesus College v. Bloom, as it was a bill against a tenant for life, who had

'(a) This was not so. Vide the report in Mr. Sanders's edition.

(b) These observations are not warranted by the reports of that case.

(c) Lee v. Alston, 1 Bro. C. C. 194. 3 Bro. C. C. 37. i Ves. jun. 78.

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