the act of trustees, which the court has adopted, there it is treated as so much of the estate. Thus, in a much earlier case, Mildmay v. Mildmay [4 B. C. C. 76], before Lord Thurlow, the court preferred not treating the proceeds as money, because that would change the character of the fund, but directed them to be invested in land, the effect being, that the tenant for life, although impeachable for waste, would obtain the benefit of the money when so invested. Therefore, where the timber is properly cut, the purchase-money of the timber follows the land, and the tenant for life, although impeachable for waste, receives the income during his life; and when you reach the first tenant for life unimpeachable for waste, as in the case of Phillips v. Barlow [14 Sim. 263], he takes the capital. There would therefore be no difficulty if the plaintiff in this case had treated the timber as having been properly cut, and the fund as being his from the date of his coming into possession of the estate; but he seeks the past interest on this ground (and it is only on this ground that he can seek it), that when the tenant for life, by his own wrong, creates the fund, as in The Duke of Leeds v. Lord Amherst [2 Ph. 117], and some other cases, the tenant for life shall not be allowed to avail himself of his own wrong, and to receive the interest from a fund which would never have existed but for his own wrongful act. But the cases which were cited have been cases of equitable waste, where, the whole matter having to be administered in equity, the legal right which might spring from such a wrongful act could never have arisen. In the case of legal waste, you have only to consider the legal consequences of the wrongful act as to which trover may be brought. There is no account asked for in this bill, for the whole amount is ascertained and settled, which was one of the points that arose in the last cited case of Hony v. Hony [1 S. & S. 568]. No account is asked of what timber has been cut, what it has been sold for, and the like. No account has been rendered, but the tenant for life, who has now come into possession unimpeachable for waste, comes into court with this simple case. says: "I find the exact value of the timber cut; I ask for that value; I ask to have it paid to me; I ask to have the back interest paid on that; I do not ask for anything else: and I, being legal tenant for life unimpeachable for waste, say, this is my money." In that state of things, if he has any right at all, it is plainly a legal right, treating the original act as a wrong. There is nothing which the Court of Chancery is called upon to do; and, therefore, he should be left to his remedy at law. But who may have the legal right, is, I think, a matter of great doubt. I am by no means satisfied at present, that, when the timber was cut, assuming the cutting to have been a wrongful act from the first moment, it did not belong to the first person having an estate of inheritance. The limitations are to the tenants for life, with contingent remainders to their issue, and then a remainder to the tenant for life unimpeachable for waste, and remainders in tail to his issue. All the authorities are uniform in this

He

respect, that, where there has been an improper fall of timber on the estate by a person having a limited interest, the first owner of the inheritance is the person who has a right to bring trover, passing over all the intermediate estates. It certainly does not appear that there was, in any of these cases, an intervening tenant for life unimpeachable; but there were contingent remainders, that might come into esse and defeat the estate of inheritance vested in the heir or the person taking in remainder, as the case might be. The reason of the thing was this: that there must be the property in somebody when the wrongful act is done. The court will not allow the tenant impeachable for waste to avail himself of his own wrong; and the law therefore vests the timber wrongfully cut in the person having the first legal estate of inheritance. The answer made by Mr. Rolt is, "that the tenant for life, although in remainder, if he is unimpeachable for waste, as in Lewis Bowles' Case, has not merely an immunity from liability for waste, but the actual property in the timber. But how has he the property? The doctrine laid down in the 7th resolution in Lewis Bowles' Case is this: The clause without impeachment of waste gives a power to the lessee which will produce an interest in him, if he executes his power during the pendency of his estate. That is to say,

if he ever comes into possession of the estate, and ever exercises his power of cutting the timber thereupon, the timber belongs to him; and the reason of its belonging to him, which is fully argued out, is this: It is said, if it had been without impeachment of waste by any writ of waste, then, by old authority, the action only would be discharged, and the lessor, after the fall of the timber, might nevertheless seize it; but when it is without impeachment of waste altogether, then the effect is, that the tenant for life cannot be interfered with in any manner in respect of that waste; and as soon, therefore, as he has exercised his power thereupon, the timber at once becomes his own property. But how does that prove, that, when the trees are felled by the wrongful act of some one preceding him, before his property has arisen thereupon, the property is in him? To say the least, that is a doubtful proposition; and that point I am asked to decide, not having the heir before me. The question is, whether such a point as that ought to be decided without the presence of the heir, and against the heir. I think the answer is plain, that, without hearing the heir upon it, I can come to no such conclusion. And further than that I see no reason to go. There seems to be considerable reason for a contention by the heir that his position is just the same in respect of a person having a possible power, which may arise if ever his estate arises, as it is in respect of the contingent interests of unborn issue, in favor of whom the law does not interfere to prevent the heir's right accruing at once, so as to enable him to bring trover immediately after the timber is cut. But there are further difficulties in the plaintiff's way, if he chooses to treat this as a tort. In the first place, of course the tort arose when the act was committed; and, if the plain

tiff had a remedy by an action of trover, I apprehend the action should have been brought some twenty years ago, when the act took place.1 That is the first difficulty. But, secondly, suppose the plaintiff has any right of action now of any kind, his remedy is clearly at law. He is the legal owner, and if he chooses to proceed at law by an action of trover, there is his remedy. In what respect does he want the aid of this court? He asks for no injunction; he asks for no account; he asks nothing which he has not got at law. Why should he come here to insist on his right? It is put in this way: It is said, a person commits a wrong, and hands over the fund which has resulted as the produce of his wrong to another, and says, "Take care of that; I have injured somebody or other, and I ask you to hold the proceeds for anybody who may be interested in them." I apprehend, even supposing the form of action might be varied, and that it might be an action for money had and received to plaintiff's use, the remedy would still be at law. It is not for me to determine the question, whether it should be an action of trover, or an action for money had and received. Still, taking it either way, what does the plaintiff come here for? In truth, it is only by treating the cutting as rightful, as an act which the court would recognize, that the plaintiff can have any ground for coming to this court. On that view, considering that the trustees were applied to in the first instance, there might be ground for directing an inquiry whether this cutting ought to be regarded as an act of the trustees, which the court would recognize, as it did in Waldo v. Waldo. If that were so, the plaintiff would be entitled to the whole of the money produced; but he would be clearly wrong in asking for the intermediate interest. If, on the other hand, he says: "You, the trustee, having received this sum of money as the proceeds of a wrongful act, ought to have held it for all the persons interested; you should not have paid any income to the wrongdoer himself, but you should have held it for me," - that contention entirely fails, because, if the act was wrongful, the remedy is at law, and not here. If he chooses to treat the timber as rightfully cut, then the tenant for life was entitled to interest, and all the plaintiff can get is the principal, his title to which does not seem to be disputed. What seems right for me to do is this, either to dismiss the bill altogether, if the plaintiff insists on treating the cuttings as wrongful acts from the commencement, in which case I ought to dismiss it with costs; or else, if the plaintiff is content to treat the cuttings as rightful, then to make a decree for the payment to him of the capital derived from the proceeds of that timber. But I cannot do this unless the plaintiff waives any inquiry as to whether the cutting was rightful or not.

Mr. Rolt having consented to waive any inquiry, and to treat the timber as rightfully cut, the minutes of decree were as follows:

1 When, after legal waste has been committed, time has run so as to bar the legal remedy, the remedy in equity is also barred. Higginbotham v. Hawkins, L. R. 7 Ch. 676.-ED.

Dismiss the bill, with costs, as against the representatives of George William Gent and John Gould Gent; and, the plaintiff not asking any inquiry whether any of the timber was wrongfully cut, the funds in the hands of the trustee to be transferred to the plaintiff; the trustee's costs to come out of the fund.1

C. Equitable Waste.

VANE v. LORD BARNARD.

CHANCERY. BEFORE LORD COWPER, C. 1717.

[Reported 2 Vern. 738.]

THE defendant on the marriage of the plaintiff his eldest son with the daughter of Morgan Randyll, and £10,000 portion, settled (inter alia) Raby Castle on himself for life, without impeachment of waste, remainder to his son for life, and to his first and other sons in tail male.

The defendant the Lord Barnard having taken some displeasure against his son, got two hundred workmen together, and of a sudden, in a few days, stript the castle of the lead, iron, glass-doors, and boards, &c., to the value of £3,000.

The court upon filing the bill, granted an injunction to stay committing of waste, in pulling down the castle; and now, upon the hearing of the cause, decreed, not only the injunction to continue, but that the castle should be repaired, and put into the same condition it was in. in August 1714, and for that purpose a commission was to issue to ascertain what ought to be repaired, and a Master to see it done at the expense and charge of the defendant the Lord Barnard; and decreed the plaintiff his costs.2

1 "The only point remaining is, whether this tenant for life, not being tenant without impeachment of waste, has any property in the underwood cut, before his estate comes into possession. It is rightly assimilated to the case of tenant for life without impeachment of waste, supposing it only to relate to timber and not to underwood. Upon that it is clear, that tenant for life, without impeachment of waste cannot maintain trover. That was decided in the Court of King's Bench a few years ago upon a case reserved at the assizes upon the Home Circuit, and I think in Kent, which, I suppose, is not in print, or it would have been found by the counsel. There it was determined, that notwithstanding an estate for life without impeachment of waste in being, yet timber falling or cut vested immediately in the owner of the inheritance; for tenant for life without impeachment of waste has no right to the timber cut before his possession." Per BULLER, J, in Pigot v. Bullock, 1 Ves. Jr. 479, 483, 484. See Baker v. Sebright, 13 Ch. D. 179.

As to the disposition of the proceeds of timber lawfully cut, under a settlement with contingent estates, see Lushington v. Boldero, 15 Beav. 1, and the Reporter's note. 2 "A tenant for life, without impeachment of waste, is clearly not compellable to cut timber, in such way, as a tenant in fee would think most advantageous, but is entitled to cut down anything that is timber. This motion requires an affidavit,

ANONYMOUS.

[Reported 2 Eq. Cas. Ab. 757.]

A WOMAN tenant in tail, after possibility of issue extinct, was restrained from committing waste in pulling down houses or in cutting

pledging deponent, that the trees about to be cut are not fit for timber. It is settled, that a tree, which a tenant in fee, acting in a husband-like manner, would not cut, may be cut by a tenant for life, unimpeachable of waste, provided that it is fit for the purpose of timber. A tenant for life unimpeachable of waste might cat down all these trees, without question, at law; and to subject him, in this Court, to the rules which a tenant in fee might observe, for the purpose of husband-like cultivation, would deprive him of almost all his legal rights." LORD ELDON, C., in Smythe v. Smythe, 2 Swanst. 251.

"The doctrine of the Court is extremely well settled. If the object in planting timber, or in leaving timber standing, is ornament, whether that object is effected, whether the effect is truly ornamental, or the most absurd exhibition that ever was produced, this Court will protect that timber; and the protection is not confined to trees planted, or left standing as ornamental to a house or park: nor does it depend on the distance from the mansion; . . . The fact to be determined, is that it was planted for ornament, or if not originally planted for ornament, was, as we express it, left standing for ornament by some person having an absolute power of disposition. If such a proprietor had even the bad taste to plant or leave standing, a couple of yew trees cut in the shape of peacocks on the roadside, I do not shrink from what I laid down in The Marquis of Downshire v. Lady Sandys (6 Ves. 107), that they must be protected until some person, having the same absolute power of disposition with more correct taste, comes into possession; . . . But I do not agree, that a mere tenant for life, coming into possession, can vary the estate. That could be done only by some person having the absolute dominion over it." LORD ELDON, C., in Wombwell v. Belasyse, 6 Ves. 110 a, note.

"At law a tenant for life without impeachment of waste has the absolute power and dominion over the timber upon the estate, but this Court controls him in the exercise of that power, and it does so, as I apprehend, upon this ground, that it will not permit any unconscientious use to be made of a legal power. It regards such an unconscientious use of the legal power as an abuse, and not as a use of it. When, therefore, the Court is called upon to interfere in cases of this description, it is bound, I think, in the first place, to consider whether there are any special circumstances to affe.t the conscience of the tenant for life, for in the absence of special circumstances it cannot be unconscientious in him to avail himself of the power which the testator has vested in him. We have then to consider what are the special circumstances which the Court will regard as affecting the conscience of a tenant for life, and I apprehend that what is particularly to be regarded is the intention of the settlor or devisor. If by his disposition or by his acts he has indicated an intention that there should be a continuous enjoyment in succession of that which he has himself enjoyed, in the state in which he has himself enjoyed it, it must surely be against conscience that a tenant for life, claiming under his disposition should by the exercise of a legal power, defeat that intention." TURNER, L. J, in Micklethwait v. Micklethwait, 1 De G. & J. 504, 524. Approved by JESSEL, M. R., in Baker v. Scbright, 13 Ch. D. 179.

In Obrien v. Obrien, Ambl. 107, LORD HARDWICKE, C., granted an injunction against the assignee of a tenant for life without impeachment of waste, restraining him from cutting not only timber but any other trees growing for ornament or for the shelter of the mansion house.

In Rolt v. Lord Somerville, 2 Eq. Cas. Ab. 759, a tenant for life without impeachment of waste, pulled down houses, took up lead water pipes, and cut down orna