and the heirs of their two bodies; afterwards the husband dieth without issue; his wife, being then tenant in tail after possibility of issue extinct, marrieth the defendant; and she and her second husband having felled some trees in a grove that grew near, and was an ornament to the mansion-house, and having an intent to fell the rest, the plaintiff, to whom the lands did belong in remainder, preferred his bill to restrain her from felling those trees, and to have an injunction to stay the committing of waste.

It was insisted upon by the defendants, that tenant in tail after possibility of issue extinct, is by the law dispunishable of waste, as appears in Lewis Bowles's Case, 11 Co. Rep. 80 and 1 Inst. 27 b., Lit. sect. 352, and in the case of Lewis Bowles it is held, that if a lease be made absque impetitione vasti, the tenant is not only dispunishable of waste, but the property of the trees is in him if he fell them; and in the case of Wentworth v. Wentworth it was held by all the Judges of England, that tenant in tail after possibility of issue extinct is dispunishable of waste, and so is Lewis Bowles's Case, 11 Co. Rep. 80.

[* 54]

* PER CURIAM: The law formerly was held to be, that if there were tenant for life, without impeachment of waste, that this did only create an impunity to the tenant for life, although it was the express provision of the party, 4 Co. Rep. 63. But afterwards in Lewis Bowles's Case, 11 Co. Rep. 80, the opinion was, that these words did vest a right and interest in the tenant for life, and did give him liberty to fell and take the trees to his own use; for there is an express provision of the party; but in the case of tenant in tail, after possibility of issue extinct, that is the provision of the law only; and though in some cases fortior est dispositio legis quam hominis, yet that shall not be to incumber estates.

But in many cases, where a person is dispunishable in law for committing of waste, yet this Court shall enjoin him; as where there is a tenant for life, remainder for life, remainder in fee, the tenant for life shall be restrained from committing of waste by the injunction of this Court; though if he do commit waste no action of waste will lie against him (sed semble, that an action of trover will lie for the reversioner, because the property of the trees is in him); and though this action of trover be a new remedy, yet it is a just remedy; and though this was a remedy not known heretofore, yet it is just; and it must be admitted that the law is

No. 10. - Abraham v. Bubb, 2 Freem. 54, 55.

better understood now than formerly it was, and the law by experience and practice is improved, and learned men by study see farther and farther into the depth of it; per Cancellar'.

And he said that in my Lord Chief Justice ROLLE's time, in the case of Eudall v. Eudall (1 Cro. 242, Allen, 84), ROLLE was of opinion, that an action of trover would lie for the reversioner against tenant in tail after possibility of issue extinct, for trees cut down by him; and my LORD CHANCELLOR declared he was of that opinion, though he could not be punished by an action of waste, because he had only an impunity if he committed waste, but no interest in the trees; but Pemberton argued fortiter e

contra.

And my LORD CHANCELLOR said, if there be tenant for life without impeachment of waste, if he goeth to pull down houses, &c., to do waste maliciously, this Court will restrain, although he hath express power by the act of the party to commit waste; for this Court will moderate the exercise of that power, and will restrain extravagant humorous waste, because it is pro bono publico to restrain it, and he said he never knew an injunc- [55] tion denied to stay the pulling down of houses by tenant for life without impeachment of waste, unless it were to Serjeant Peck in my Lord Oxford's Case, cited Cro. Eliz. 777, and he said he did believe he should never see this Court deny it again; and he cited the Bishop of Winchester's Case, who made a lease for twenty-one years, without impeachment of waste, of lands that had many trees upon it; the tenant cuts down none of the trees till about half a year before the expiration of his term, and then goeth to felling down the trees, and in that case he was enjoined by this Court; for though he might have felled trees every year from the beginning of his term, and then they would have been growing up again gradually; yet it is unreasonable that he should let them grow till towards the end of his term, and then sweep them all away; for though he had a power to commit waste, yet this Court will model the exercise of that power. This case he said was in print, reported by J. Jones, but upon search I cannot find it.

And he cited the Lady Evelin's Case, where there was tenant for life, remainder to the first son for life, without impeachment of waste, with remainders over; the first son, by the leave of the lessee of tenant for life, comes upon the land and fells the trees,

VOL. IX. - 32

although he could not in that case be punished by an action of waste, yet he was enjoined by this Court.

In the end this case was referred, and if they could not agree, then to be set down again; but my LORD CHANCELLOR discovered his inclination fortiter for granting an injunction.

[209] By settlement before marriage the husband's estate was conveyed to trustees to the use of the husband for life, sans waste; remainder to trustees to preserve contingent remainders; remainder to the use of the wife for life, for her jointure, and in bar of dower; remainder to the first and other sons of the marriage in tail male; remainder to the first and other daughters in tail male; remainder to the heirs of the body of the husband and wife; remainder to the right heirs of the husband. The wife survived the husband, and had no issue; and after possibility of issue by the husband extinct; held, that she was tenant in tail after possibility, &c.; that she was unimpeachable of waste, and was entitled to the property of the timber when cut by her.

This was a case sent by the LORD CHANCELLOR for the opinion of this Court (15 Ves. 419).

Daniel Williams, now deceased, was, prior to his marriage with Catherine Williams, then Catherine Prosser, seised in fee-simple of certain estates hereinafter mentioned; and by indentures of lease and release of the 7th and 8th of Oct. 1787, made between him of the first part, J. Prosser and Catherine Williams (then Prosser), daughter of the said J. Prosser, of the second part, and

T. Griffin and A. Barnes (trustees) of the third part; after [*210] reciting the intended marriage, it was witnessed that in

consideration thereof, and of £1000 paid by John Prosser to Daniel Williams for the marriage portion of Catherine, and for settling the lands, &c., after mentioned to the uses therein limited and declared, &c. Daniel Williams conveyed to the trustees and their heirs a messuage and other premises called New Wonastow, and other closes of land named in such settlement, containing together 130 acres; and also a tenement and lands belonging thereto, called Worthy Brook Lands, containing 75 acres, all in the parish of Wonastow; to hold to the trustees and their heirs to the use of Daniel Williams in fee until the marriage, and after

that to his use for life, without impeachment of waste; remainder to the use of the trustees to preserve contingent remainders; remainder to the use of Cath. Prosser for life, for her jointure, and in bar of dower; and after the several deceases of D. W. and C. P., remainder to the use of the first and other sons of the marriage in succession in tail male; remainder to the first and other daughters of the marriage in succession in tail male; and in default of such issue, to the use of the heirs of the bodies of Daniel Williams and Catherine Prosser; and in default of such issue, to the use of the right heirs of Daniel Williams for ever. The indenture also contained a power to Daniel Williams during his life, and after his decease to Catherine Prosser during her life, by indenture to demise and lease all or any part of the premises for any term of years not exceeding 21 years, to commence in possession, and not in reversion, or by way of future interest, so as no such demises or leases by any express words therein contained, should be made dispunishable of waste.

The marriage between Daniel Williams and Catherine Prosser afterwards took place, but they never had any * issue. [211] And Daniel Williams afterwards, by his will, properly executed and attested, dated the 5th of Feb. 1803, devised, from and after the decease of Cath. Williams, all his messuage, lands, &c., called New Wonastow and Worthy Brook, in the parish of Wonastow, and all other the settled lands, to his nephews Evan Williams and Daniel Williams (the plaintiffs) as tenants in common in fee. The testator died in 1804, and left Catherine his widow, and his said two nephews, him surviving; one of whom, Evan Williams, is his heir-at-law. Upon the testator's death his widow entered into and hath since been in possession of the settled estates. There are a great many oak and ash timber trees growing on such settled estates so devised to the plaintiffs: and the defendant, Catherine Williams, having threatened to cut them down, in order to sell the same for her own use, the plaintiffs filed their bill in Chancery against her, praying for a perpetual injunction, to restrain her from cutting down any timber trees growing upon the settled estates. To which bill the defendant demurred, because the plaintiffs were not entitled to such relief: and it was insisted by her, that she took such estate and interest in the settled estates by virtue of the said indentures of lease and release, as entitled her to cut the timber growing upon them for

her own benefit. And upon the argument of such demurrer the LORD CHANCELLOR ordered this case to be made for the opinion of the Court, upon the following questions.

First, Whether the defendant, Catherine Williams, were unimpeachable of waste upon the estate and premises comprised in the indentures of lease and release or settlement in the bill mentioned? Secondly, Whether, having cut timber thereon, she be [*212] entitled to the timber so cut, as her own property? And, thirdly, Whether the defendant's estate for life merged in the tenancy in tail after possibility of issue extinct?

Dampier argued for the plaintiffs in last Michaelmas term, and contended for the negative of the several questions proposed. If Catherine Williams were to be considered as tenant in tail after possibility of issue extinct, he admitted, upon the direct authorities of Co. Lit. 27 b., and 2 Inst. 302, that she was not impeachable of waste; though it did not follow that the timber cut would be her property. But, first, he denied that her estate for life. merged in her remainder in tail after possibility, Co. Lit. 28 a, Lewis Bowles's Case, 2d Resolution, 11 Co. Rep. 80, a & b. The two estates are said to be equal in quantity, and to differ only in quality; therefore there can be no merger; for that is only where a greater and a less estate come together in the same person. A life estate may be exchanged (Ibid.) with a tenancy in tail after possibility, &c. ; which shows their equality as to quantity; and it would be absurd that one estate equal in quantity to another should merge in that other; and by the third resolution in Lewis Bowles's Case, 11 Co. Rep. 81, the life estate does not merge in the estate tail after possibility, &c. There, indeed, the tenant for life with remainder in tail after possibility, &c., was held entitled to the timber of the barn which was blown down; but there are these distinctions between the two cases, that there the husband and wife were before the birth of issue seised of an estate tail in possession, liable only to be devested by the birth of issue male and converted into estates for life without impeachment of waste, with remainder in tail: and after the birth and death of [*213] the issue * male, and the death of the husband, the wife was held not to be tenant in tail after possibility, &c., but to have the privilege of such a tenant for the inheritance which was once in her. Now here the widow is merely seised of an estate for life, with a remainder in tail after possibility, &c., in