committed the waste, and who was still in possession; Account. whereas in Jesus College v. Bloom the tenancy was determined. It might therefore perhaps be considered in some respects as a case more proper for a court of equity. But it resembled that case in the broad fact of the plaintiff having a legal remedy. Lord Thurlow observed, that although it was an extreme hardship, that parties should be put to such an expense where there was a clear legal remedy: yet where a bill relates to the cutting of timber, it had always been laid down that the plaintiff has a right to the account; and accordingly a decree was made for an account (a). When the cause afterwards came on upon the Master's report, Lord Thurlow said," the admission in the answer that some had been wrongfully cut, gives a right to an account." And again, "my present opinion is, that if any timber has been cut down from the estate where there was no right to cut any, that circumstance gives a right to an account. If you can make out, that plaintiff has no right to come here, but ought to be left to law, I will turn round her bill because she has not brought an action: but I thought the circumstance of timber being wrongfully cut down entitled her to the account; as in the case of a bailiff; if a man enters upon another's lands and makes money of his property, he will be considered as a bailiff, and must account (b)." The cases are not less contradictory upon the ap- Account against as (a) 1 Bro. C. C. 194. The author finds, on reference to the sets. register's book, b. 1782. fol. 583. that an injunction was not prayed. (b) 1 Ves. jun. 78. 3 Bro. C. C. 37. Account. No account in equity against assets for legal waste. plication of this doctrine, as against the assets of a person deceased, who has committed waste. Lord Cowper, in the Bishop of Winchester v. Knight (a), is reported to have said, "it would be a reproach to equity to say, where a man has taken my property, as my ore or timber, and disposed of it in his lifetime and dies, that in this case I must be without remedy." There is another determination of his Lordship, which shows his opinion that a bill would lie in most cases for an account against the assets of a person who had committed waste. Upon a bill brought against the executors of a jointress to have a satisfaction out of assets for permissive waste; he dismissed the bill on the ground of there being no covenant that the jointress should keep the jointured premises in good repair. And he added, that in the common case, without some particular circumstances, there is no remedy in law or equity for permissive waste after the death of the particular tenant (b). This doctrine of Lord Cowper is, however, laid down too extensively: there is no instance of a decree against assets for an account of legal waste. The remedy in this case is by an action at law, as was so ably explained by Lord Mansfield, in the case of Hambly v. Trott (c). "Where the cause of action is a tort, or arises ex delicto; if it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, the action dies (a) 1 P. W. 407. (b) Turner v. Buck, 22 Vin. Ab. 528. with the person: but where, besides the crime, pro- Account. perty is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. As for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another man's trees; but for the benefit arising to his testator for the value or sale of the trees, he shall. So far as the tort itself goes, an executor shall not be liable, but so far as the act of the offender is beneficial, his assets ought to be answerable, and his executor shall be charged." We may here again notice the justice of Lord Account Hardwicke's observation in Garth v. Cotton, that the assets in against substantial difference is, that a court of equity gives respect of equitable the relief by decree for an account, where the plaintiff waste. can have no remedy at law and it was upon this principle that the decree in that case was granted against the assets of the remainder man in fee, who had died during the progress of the cause. So also in the case of the Marquis of Lansdowne v. Marchioness of Lansdowne (a), Sir T. Plumer overruled a demurrer to a bill for an account of equitable waste brought against the representatives of the late Marquis of Lansdowne, who was tenant for life without impeachment of waste. His Honour said that he decided the case upon the broad principle, that where equitable waste has been committed, which never could have been authorised, the court has jurisdiction to make the representatives of the party committing such waste accountable. That as at law (a) 1 Mad. Rep. 116. Account. if legal waste be committed and the party dies, an action for money had and received lies against his representative, so upon the same principle, in cases of equitable waste the party must, through his representatives, refund in respect of the wrong he has done. In taking an account in equity of timber cut, the proceeding is different from the remedy at law. In an action the plaintiff would obtain the actual value of the timber; in equity, unless there is some special circumstance to vary the terms of it, the account is given only of the money actually received (a). Timber se vered from ance. Wherever timber is blown down by accident or the inherit cut down by the tort of a stranger, or of the tenant for life, the owner of the first vested estate of inheritance has the benefit of it (b). Two remarkable instances of windfalls are mentioned on the Cavendish property, and at Welbeck, (which are not in print), where this point was determined. If, however, the person entitled to the first estate of inheritance is precluded by his own acts from taking, the produce of the timber must be laid up to the uses of the settlement. Thus if the timber be cut, by that species of collusion which took (a) 1 Ves. jun. 82. (b) Whitfield v. Bewit, 2 P. W. 240. Bewick v. Whitfield, 3 P. W. 267. Rolt v. Lord Somerville, 2 Eq. Ab. 759. Garth v. Cotton, 1 Dick. 203. place in Garth v. Cotton, he shall not have the be- Property in nefit of it. A question of this nature arose in the cause of Williams v. Duke of Bolton (a). The Duke was tenant for life, with contingent remainders to his children, with remainder to Mrs. Ord for life, with remainder to her first and other sons in tail, with remainder to the Duke in fee. The Duke being thus tenant for life in possession, and having also the first vested estate of inheritance, while the contingent estates were in expectancy, cut down timber: and the question was to whom the timber should belong. Lord Thurlow observed, that if any other person, entitled in remainder to an estate of inheritance, had been in being at the time, the law would have thrown the timber on that remainder: but he was of opinion, that, although the Duke had a vested remainder, yet as it was not competent for him to cut down the timber in respect of his life estate, he could not take advantage (in respect of his estate in remainder) of his own wrong. In this case after the waste committed, Mrs. Ord, the second tenant for life, had a son born, who became tenant in tail under the limitations: Lord Thurlow was of opinion, that though he took an estate tail, yet that it was subject to be devested by a subsequent estate of a child of the Duke's coming in esse: that the timber was part of the realty; by an accident (as to all but the Duke, whom his Lordship barred), it was severed from the realty: it became in its nature personalty, but yet bound, as far as it (a) Reported as to this, 1 Cox, 72. 3 P. W. 368. n. Timber severed. |