An action of waste could not be maintained against the personal representative for waste committed by the testator in his lifetime; because waste is a tort, which in the language of the law "moritur cum personá" (t). However, the executors and administrators of a tenant for years are punishable for waste committed by them while they are in possession of the land (u). And if, by the commission of waste by a testator, his personal estate has been benefited, his executors will be chargeable for it to the value of the property, although not in this form of action (e). Moreover, by the above-mentioned statute, an action is given against the personal representative for injuries committed by the testator to the real estate of another within six calendar months previous to the testator's death, provided the action is brought within six calendar months after the personal representative has taken upon himself the administration. In the case of a continuing injury in the nature of permissive waste, as this is a continuing wrong giving a cause of action de die in diem up to the death of the testator, the period of limitation for bringing the action runs from the death of the testator (w). In respect of the parties between whom this action is maintainable, it has been held that the right to support the action will not be waived by entering into any special covenant, such as not to do waste, &c.; but that the reversioner will have his election either to bring an action upon the case in tort for the waste, or an action upon the special (t) 2 Inst. 302; Vin. Ab. tit. Waste (S. 2). (u) 1 Cru. Dig. tit. 8, ch. 2, § 11. (v) Powell v. Rees, 7 A. & E. 426; Hambly v. Trott, Cowp. 376; Bishop of Winchester v. Knight, 1 P. Wms. 407; Garth v. Cotton, Dick. at p. 215. (w) Woodhouse v. Walker, 5 Q. B. D. 404, 408. But where an action is commenced against a testator in his lifetime in respect of acts not of a continuing nature, and he dies more than six months after the commencement of the action, no action lies against his executors, Kirk v. Todd, 21 Ch. D. 484. covenant. In Kinlyside v. Thornton (x), a lessee covenanted Chap. I. s. 1. to yield up the demised premises, with their appurtenances, at the end of the term. During the term waste had been committed in pulling down and demolishing certain articles described in the declaration as an ale-house bar, and divers doors, partitions, dressers, &c., part of the premises. The plaintiff, after the expiration of the term, brought an action of case in nature of waste; and upon an objection that he ought to have sued on the covenant, the Court were of opinion, that an action on the case was maintainable as well as covenant; for it was said by De Grey, C. J. that the landlord, by acquiring a new remedy by the special covenant, did not therefore lose his old (y). The authority of this decision has, however, been supposed to be impeached by some later cases. In Jones v. Hill (), the plaintiff declared in an action of case in nature of waste, against a lessee who had entered into a special covenant to repair. And according to the report of the case in 1 Moore (C. P.), 100, Gibbs, C. J., in delivering judgment, observed, that "when there is an express stipu"lation or contract between two parties, this species of "action is not maintainable; for such contract is a total "waiver of tort, and it therefore ceases to bear the character "of waste." But it is to be observed of this case, that in the report given of it in Taunton, the dictum attributed to Gibbs, C. J., is wholly omitted. Indeed, the decision itself turned upon a particular point, which did not involve the general question, viz., that the injury complained of by (x) 2 W. Bl. 1111. (y) See 2 Wms. Saund. 252 b. In Elwes v. Maw, 3 East, 38, the plaintiff declared in an action of case in nature of waste, yet it appears that the tenant held under a lease in which there was a special covenant to repair. A cove nant to repair does not pre- Part II. the plaintiff could not in any view be considered to amount to an act of waste. And this is the construction put upon the case in Burnett v. Lynch (a), where the authority of Kinlyside v. Thornton is supported by the Court. There is also another case, Herne v. Benbow (b), which. has been thought to be at variance with the decision of Kinlyside v. Thornton; and is considered to be an authority against an action on the case being maintainable where an assumpsit is to be implied between a landlord and tenant (c). On referring, however, to this case, the determination appears to have proceeded altogether upon a different principle, viz., that an action on the case is not maintainable for permissive waste (d). Moreover, in Marker v. Kenrick (e), the Court of Common Pleas unanimously followed the case of Kinlyside v. Thornton, holding that an action on the case in the nature of waste would lie, as well as an action for breach of a covenant contained in a lease. (a) 5 B & C. at p. 603. (e) See Harg. Co. Lit. 54 b, (d) With respect to the question whether an action for permissive waste can be supported, see Appendix (G.). (e) 13 C. B. 188. SECTION II. Of Injunctions, &c., for Waste in the case of Fixtures. by writ of THE proceedings hitherto described are remedies of a cor- Chap. I. s. 2. rective nature; and they are, in reality, methods of recovering a compensation for injuries already sustained, and for which the party aggrieved can, in general, only receive satisfaction by pecuniary damages (a). But it frequently happens that the consequences attending injuries to real property are of such a nature, that the damages recoverable in an action are a very inadequate compensation for the loss incurred. The Court of Chancery for- Court of Chancery merly provided a very beneficial remedy in these cases, formerly whereby injuries to real property might be anticipated and interfered prevented. This equitable interposition consisted in re- injunction. straining a person from committing waste, either threatened, or which he might be in the act of committing, by means of a writ of injunction, which was a prohibitory writ, issuing by the order and under the seal of a Court of Equity. Prior to the Common Law Procedure Act, 1854, the Courts of law had no power to grant an injunction (b), but by that Act (c), power was given them to grant an injunction in cases where an injury had actually been committed, and the party injured had brought an action. But now, by the Judicature Act, 1873 (d), all acts which a Common Law Court or a Court of Equity only could formerly restrain by injunction, can now be restrained (a) By the old writ of waste in the tenet, the place wasted was recovered. (b) As to the old common law methods of restraining waste by prohibition and writs of estrepement of waste, see Jefferson v. Bishop of Durham, (d) 36 & 37 Vict. c. 66, s. 25, Part II. Power of High Court to grant injunction. In what cases by either of the divisions of the High Court of Justice; and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the Court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does, or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable (e). It has been seen that the right to fixtures is frequently decided upon questions of waste. And as the remedy by injunction is calculated to afford very prompt and effectual protection in cases where injury to this species of property is apprehended, or might be sustained, it will be useful to consider shortly the nature and application of the proceeding (f). There are a great variety of cases in which the Court will thus interfere. The most ordinary occasion, however, is to restrain a tenant for life, or tenant for years, upon the application of the owner of the inheritance. And an injunction may be obtained on the application of a remainder-man for life, as well as on that of a remainderman in fee, notwithstanding there is an intermediate estate for life (g). Formerly, the Court of Chancery in some (e) See the jurisdiction of the High Court to grant injunctions considered in Beddow v. Beddow, 9 Ch. D. 89; Aslatt v. Southampton, 16 Ch. D. 143; Quartz Hill, &c. Mining Co. v. Beall, 20 Ch. D. 501; The North London R. Co. v. G. N. R. Co., 11 Q. B. D. 30. (f) It would be unneces sary for the present purpose to enter into a detail of the various cases in which the remedy by injunction applies. The reader will find them specified in Com. Dig. tit. Chancery (D. 11); Eden on Injunctions; and Kerr on Injunctions. (g) 1 Eq. Cas. Ab. 399; Bewick v. Whitfield, 3 P.Wms. |