granted. indeed, it did not become necessary to establish the Persons for and against general doctrine by decision, as the testator had whom Indirected a conveyance to be made, which would have junctions been of such a nature, that the heir would have been tenant pur autre vie, and the court must have inserted a limitation to trustees to preserve contingent remainders, after the limitation to him. An injunction was therefore on that ground continued, to restrain him from cutting timber. mere. The above case of Robinson v. Litton, contains Infant in an observation of Lord Hardwicke, which has been ventre sa frequently cited, that though the point had never been determined, he should have no scruple to grant an injunction in favour of a child in ventre sa mere." There are other dicta, both by himself (a) and Lord Somers (b), to the same effect; and it seems, though Lord Hardwicke was not aware of the circumstance, that an injunction had been actually granted by Lord Keeper Bridgman, to an infant in ventre sa mere, to stay waste (c). ceners, joint tenants, and common. Applications between Coparceners, Joint-tenants, Coparand Tenants in common for injunctions against committing what would be considered waste between tenants in landlord and tenant, are not frequent. And though the commission of waste in these cases must oftenoccur, as a person in that relation is more likely to take that liberty than a common tenant: yet the instances in which this application has been made Where reare few; and in those it has always, unless attended (a) Barnard, Ch. Rep. 275. (b) Prec. Can. 50. (c) Lutterel's case, cit. Prec. Can. 50. fused. Persons for with peculiar circumstances, been refused (a). The and against principle, as observed by Lord Eldon, would lead to whom In junctions granted. Where granted. the most inconvenient results: if the court were to interfere on the ground of waste, it must apply that principle throughout, and grant the whole equitable relief, as for instance, to prevent the felling trees planted for ornament (b). Lord King expressed himself dissatisfied with a case (c) before Lord Cowper, in which the Earl of Chesterfield being entitled to one fourth of an estate, and Mr. Viner to three-fourths, the latter wished to cut some timber. Lord Cowper granted an injunction, and referred it to a Master to see what timber was fit to be cut down, and to make sale thereof, and the money to be paid to the parties according to their interests. Lord King, in the case before him, refused an injunction under the following circumstances: one coparcener joined with her husband and sister in a letter of attorney to sell timber, which was sold accordingly; the husband dying, the wife brought a bill to restrain the purchaser and her sister from cutting down the timber; his Lordship, however, said, that since the other sister had a power by law to cut down the timber, he did not know how he could restrain her; but the plaintiff ought to make a partition (d). The few exceptions which have been made to this rule are the following. In the case of Smallman v. (a) 16 Ves. 131. Goodwyn v. Spray, 2 Dick. 667. (b) 16 Ves. 132. (c) Earl of Chesterfield v. Viner, cit. Mose. 305. whom In Onions (a), Lord Thurlow granted an injunction upon Persons for affidavit, that the defendant was insolvent, and unable and against to pay the plaintiffs their share of the money to be junctions granted. produced by the sale of the timber. On the ground of destruction, in Hole v. Thomas (b), Lord Eldon granted an injunction against cutting saplings, and timber trees, and underwood, at unseasonable times: this not being the legitimate exercise of the enjoyment arising out of the nature of the party's title. Lord Redesdale also mentions a case where the court interfered between coparceners on the same ground (c). In another case, one tenant in common was occupying tenant to the other; Lord Eldon considered, that the effect of that contract being to exclude the other from entry for any purpose, the tenant had thereby prohibited any act by himself, but such as an occupying tenant might do; the result of which obligation was, that he could not deal with his own moiety as he otherwise might; and accordingly an injunction was granted to restrain him from committing waste, upon those premises which he held, as occupying tenant (d). tail. It was observed in a recent case, that upon the Tenant in construction which had been given to the statute de donis, a tenant in tail remained with the same unqualified and absolute ownership of the estate which he had before, with the exception of restraint upon alienation; tenant in tail is at this day considered as much the owner of the estate as a tenant (a) 3 Bro. C. C. 621. (b) 7 Ves. 589. (c) Beaumont v. Sharp, May 9, 1751, Redes. Tr. 113. Persons for and against whom Injunctions granted. Tenant renewable for ever. in fee-simple, and as such may do what he pleases with the buildings and timber on the estate (a). Accordingly a gift in tail, on condition that the donee shall not commit waste, has in all times been considered as repugnant and void (b); and the right to be dispunishable for waste, extends not only to the grantee of tenant in tail, but also to the grantee of such grantee (c). There is a case which has frequently been cited to show, that this doctrine has been adopted to its fullest extent in equity. A guardian by nurture cut down timber to the value of 70007, or 80001. upon the estate of an infant tenant in tail who lay dying: Lord King refused an injunction, because the guardian had a right, to make what advantage she could, of the estate for the infant. After his death, a bill by the remainder man for an account against his assets was dismissed, because it was said the tenant in tail had a power over the inheritance, and the guardian might exercise that power in any manner she thought proper (d). The well known tenure so general in Ireland, by under lease lease renewable for ever, is, in that country, considered so much in the nature of a perpetuity, that Lord Redesdale refused an application for an injunction to restrain a tenant from cutting timber. His Lordship considered that the whole inheritance was bound by the contract for renewal, and that without a special contract, the lessee had no interest (a) 3 Mad. Rep. 532. (b) Mildmay's case, 6 Co. 41. a. Co. Lit. 27. b. (d) Saville's case, Mose. 224. For. 16. beyond the performance of the conditions of the Persons for tenure (a). This determination proceeded entirely whom Inand against upon the peculiar local nature of that tenure, and junctions granted. would probably not be found applicable to the case of a tenant holding under a lease, with covenants for perpetual renewal in England, where this species of covenant, though neither unusual nor illegal, is, nevertheless, regarded by the courts with great jealousy (b). Tenant for life without impeach waste. It was observed by Lord Nottingham (c), and he has been followed in that opinion by Lord Hardwicke (d), that at common law, the clause "without ment of impeachment of waste," only exempted tenant for life from the penalty of the statute, and did not give him the property of the thing wasted; and those learned persons considered Lewis Bowles's case, as having first decided, that these words also gave the property. This opinion must have been founded upon the extrajudicial determination of Wray, C. J. and Manwood, C. B. in a case of Finch v. Finch, which is cited in Herlakenden's case (e), and upon a passage in Statham's Abridgment, 27 H. 6. Lord Coke has, however, clearly shown that this doctrine (a) Calvert v. Gason, 2 Sch, & Lef. 561. (b) Hyde v. Skynner, 2 P. W. 196. Redshaw v. Bedford Level Company, 1 Eden, 349. Lee v. Lord Vernon, 5 Bro. C, C. Ed. Toml. 10. Tritton v. Foote, 2 Bro. C. C. 636. 2 Cox, 174. Bayn ham v. Guy's Hospital, 3 Ves. 295. Eaton v. Lyon, ib. 691. Moore v. Foley, 6 Ves. 232. Iggulden v. May, 9 Ves, 325. 7 East, 237. 2 N. R. 449. City of London v. Mitford, 14 Ves. 50. Willan v. Willan, 16 Ves. 72. (c) 2 Freem. 53. (d) 1 Ves. 265. (e) 4 Co. 62. |