was shewn that the defendants knew of the resemblance, and that it was calculated to deceive; but will not recover if the defendants had no such knowledge, and their mark was not calculated to deceive. Crawshay v. Thompson &c. 4 Man. & Grang. 357, 43 Eng. Com. Law Rep. 189.

The Code of Virginia, in chapter 87, 78, p. 413, concerning the inspection of tobacco, provides as follows:

If any person use, or permit to be used, on any cask, box or keg of manufactured tobacco, any brand or mark indicating a place, or a manufacturer, different from the place in which, or the manufacturer by whom, it was really manufactured, he shall forfeit ten dollars for each cask, box or keg so falsely marked or branded, one-half whereof shall be to the informer.

Chapter 88, 43, p. 422, concerning the inspection of flour and certain other commodities, contains this provision:

If any person shall wilfully use or imitate the brand or mark of any other person on any such commodity, or shall pack any such commodity, in a barrel, cask, box, bag or bale, tub, firkin, or keg, previously branded or marked with the name or brand of any other person, or shall alter the brand or mark made by an inspector on such commodity, or shall shift or change the contents of any such barrel, cask, box, bag or bale, after it has been inspected, or mark or brand with the brand or mark of the inspector, or in imitation thereof, any not inspected, and shall sell or offer to sell the same, he shall forfeit twenty dollars for every such offence.

The right of action of any person injured by the violation of either provision, is recognized by the general statute, cited ante, p. 548.

11. Of deceit in the sale of real property.

Notwithstanding the maxim caveat emptor strongly applies in the case of a sale of real property, (ante, p. 460, 61, and 354,) there may yet be cases in which an action will lie for fraud in such a sale. It may be that when a vendor of real estate affirms to the vendee that his estate is worth so much, that he gave so much for it, that he has been offered so much for it, or has refused such a sum for it; the vendee may not always be excused for his neglect in not examining for himself and ascertaining what the facts are, and what credit is to be given to the assertions. 6 Metcalf 259, 60. But it would be going too far to say that assertions of a vendor of real property-though known by him to be false, and though uttered with a view to deceive-are never actionable. That an ac

tion will lie for fraud in the sale of a leasehold estate, clearly appears from the case of Pilmore v. Hood, 5 Bingh. N. C. 97, cited ante, p. 619, 20. And there is an old case of a sale of a messuage where a vendor having falsely affirmed as to the amount for which the estate rented, and thereby induced a person to give a higher price for the estate, an action was sustained on the ground that it was a matter within his own knowledge, and the tenant might not disclose the amount of rent paid by him. Ekins v. Tresham, 1 Lev. 102, 1 Sid. 146. There is besides a marked distinction between cases of false affirmation by the vendor to vendee and those resting upon the false representations of a third person. In the one the buyer is aware of his position; he is dealing with the owner of the property whose aim is to secure a good price, and whose interest it is to put a high estimate upon his estate, and whose great object is to induce the purchaser to make the purchase; while in the other the man who makes the false assertions has apparently no object to gain; he stands in the situation of a disinterested person, in the light of a friend who has no motive nor intention to depart from the truth, and who thus throws the vendee off his guard and exposes him to be misled by the deceitful representations. There is a case in Massachusetts wherein the representations were by a third person, apparently disinterested, and who proposed to aid the plaintiffs in making the purchase and to procure the estate for them for a price which he stated he knew that it cost, and which he affirmed that it was worth; these false representations, made with the intent to defraud, were held actionable. Meabury &c. v. Watson, 6 Metcalf 260.

CHAPTER LXVI.

ACTION FOR WASTE.

1. What is punishable as waste.

How far waste was punishable at common law, and what changes were made by the statute of Marlebridge, (52 Hen. 3,) c. 24; stat. of Gloucester, (6 Edw. 1,) c. 5, 13; stat. of Westminster 2, (13 Edw. 1,) c. 14, 22, and stat. of 11 Hen. 6, c. 5, ⚫ are matters upon which information may be obtained from Bracton, lib. 4, c. 18, cited in Bac. Abr. tit. Waste H., and

from 2 Inst. 13, 135, 144, 201, 299-307, 327, 389; 2 Co. Lit. 247, 249, note R.

Tenants of particular estates, coming in by act of law, as tenant by the curtesy and tenant in dower, Mr. Hargrave thinks, being at common law punishable for waste, were therefore responsible for losses by fire. 1 Tho. Co. Lit. 645, note

19. But at the common lew lessees were not answerable to landlords for accidental or negligent burning; for as to the one it is expressed by Fleta, that fortuna ignis vel hujusmodi eventus inopinati omnes tenentes excusant, Fleta, lib. 1, ch. 12; and as to the other, Lady Shrewsbury's case shews that tenants were excused for fires by negligence, 1 Tho. Co. Lit. 645, note 19. Then came the statute of Gloucester, which, by making tenants for life and years liable to waste, without any exception, was thought to render them answerable for destruction by fire. Thus stood the law of England in Lord Coke's time. Id. Hence he lays down, that "burning of the house by negligence or mischance is waste." 3 Tho. Co. Lit. 235. Lord Holt mentions an action on the case brought by the Countess of Salop against her tenant at will for so negligently keeping his fire that the house was burnt; in which action the whole court held that neither action on the case nor any other action lay, because at common law and before the statute of Gloucester, action did not lie for waste against tenant for life or years, or any other tenant coming in by agreement of parties, and tenant at will is not within the 1 Tho. Co. Lit. 645, note 19. However though the act might be at such a time, or by such a tenant, that the law did not make him liable to an action for waste, yet it did not restrain the tenant from making himself liable by agreement. Id. And the statute of 6 Ann, c. 31, § 6, 7, which enacts that no suit shall be maintained against a person in whose house or chamber any fire shall accidentally begin, provides that nothing contained in the act shall extend to defeat or make void any contract or agreement made between landlord and tenant. 1 Bac. Abr. tit. Actions on the case, (F.) p. 104, Lond. edi. 1832. When, however, an action is brought against a lessee, not on his contract but for waste, it will only lie for that which would be waste if there were no stipulation respecting it. Jones v. Hill, 7 Taunt. 392, 2 Eng. Com. Law Rep. 149.

statute.

What, in the absence of such stipulation would be waste is adverted to in 4 Kent's Com. 76, 7. In regard to mines, the English doctrine (Stoughton v. Leigh, 1 Taunt. 402,) may not be unsuitable for the United States. Crouch v. Puryear &c. 1 Rand. 258; Coates v. Cheever, 1 Cow. 460. But with

respect to waste in woods, the law of waste must be varied and accommodated to the circumstances of our country. Findlay v. Smith &c. 6 Munf. 142-148. It may not be waste to clear tillable land for the necessary support of the tenant's family, though the timber be destroyed in clearing. Parkins v. Core, 2 Hayw. 339. A widow may clear dower land, if she do not exceed the relative proportion of cleared land, considering the tract as a whole. Hastings v. Crunckleton, 3 Yeates 261. The tenant may clear part of wild and uncultivated land for the purpose of cultivation, if he leave wood and timber sufficient for the permanent use of the farm. Jackson v. Brownson, 7 Johns. 227.

In England the tenant may cut and sell the coppice and undergrowth, and even young timber trees under a certain age, at seasonable times, Pigot v. Bullock, 1 Ves. jr. 479; 1 Lomax's Dig. 52; and the reason assigned is that no advantage can arise to a tenant for life from woods of that kind but by the sale of them. In a case in Virginia, the widow's claim was to dower in a large tract of swamp land, incapable of cultivation, and no otherwise productive or valuable than by working the timber and making sale thereof when converted into shingles. "If," said Baldwin, J., "a tenant for life cannot have the use of it for that purpose, it is to such tenant utterly worthless, and a mere burthen. If a dowress may not enjoy it in the only mode of which it is susceptible, she may be left to starve though her husband's whole capital has been invested in it with a view to annual profits."-She may, "in such a case as this, cut down the timber ad libitum, and make all the profit of it she can, provided she does not thereby prevent the reversioner from making the like profit. By our law of waste in woods, the restraint upon the tenant has reference not to the mode but the extent of enjoyment. If enough be left for the successor to the inheritance, he has no cause of complaint; and what will be enough is a question of fact, to be determined upon all the circumstances of the case. In cases like this, the extent of the tract, the quantity of timber, the period of reproduction, the demands of the market, the expenses of the employment, are all elements of the enquiry; and if these should lead in such cases to a just and convenient rule of uniform application, I presume it will be this, that the tenant's use of the timber shall be so restricted as to leave to the successive tenants and owners an equally extensive use of it, at least." Macaulay's ex'or v. Dismal Swamp Land Co. 2 Rob. 528. This was the case of a dowress succeeding to a mode of enjoyment of the property adopted by the husband himself. The tenant in dower may surely use timber for

making staves and shingles, where that is the ordinary use, and the only use, to be made of such lands. Ballentyne v.

Poyner, 2 Hayw. 110.

It has been decided in several of the states, that manure made on a farm occupied by a tenant at will or for years, in the ordinary course of husbandry, consisting of the collections from the stable and barn yard, or of composts formed by an admixture of these with soil and other substances, is by usage so attached to and connected with the realty, that in the absence of any express stipulation on the subject, an outgoing tenant has no right to remove the manure thus collected, or sell it to be removed, and that such removal is a tort, for which the landlord may have redress; and such sale would vest no property in the vendee. Lassell v. Reed, 6 Greenl. 222; Staples v. Emery, 7 Id. 201; Kittredge v. Woods, 3 N. H. 503; Daniels v. Pond, 21 Pick. 371. This rule is not considered as applying to manure made in a livery stable, or in any manner not connected with agriculture, or in a course of husbandry. Shaw, C. J., S. C. 372.

2. By and against whom action will lie for waste under the English statutes.

Where there was a devise to husband and wife during their joint lives, and to the survivor of them during his or her life, and the assignee of the husband's interest committed waste during the husband's life, it was held by the court of queen's bench, that the wife who survived could not maintain an action for such waste. Lord Denman considered there was no vested interest in the plaintiff at the period when the waste was committed; that the husband and wife could not have jointly maintained such an action against the husband's assignees in his lifetime, nor could the wife if the husband had not assigned have sued his executors. Patteson, J. referred to the passage in Co. Lit. 53, b., wherein it is said, "Note, after waste done, there is a special regard to be had to the continuance of the reversion in the same state that it was at the time of the waste done." Observing that the action of waste is there said to "consist in privity," he added, "the passage indeed has immediate reference to the old form of action; but the rule equally applies to an action on the case in the nature of waste." Bacon v. Smith &c. 1 Adol. & El. N. S. 345, 41 Eng. Com. Law Rep.

From the statutes of Marlebridge, (52 Hen. 3,) c. 24, of Gloucester, (6 Edw. 1,) c. 5, 13; of Westm. 2, (13 Edw. 1,) c. 14, 22; and 11 Hen. 6, c. 5, were taken the Virginia acts