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The Doctor and Student (1518)
Christopher St. Germain
The third question of the student of waste done by a stranger in lands of a tenant
Stud. If a stranger do waste in lands that another holdeth for term of life, without assent of the tenant for term of life, whether may he in the reversion recover treble damages, and the place wasted, against the tenant for term of life, according to the statute, in conscience, as he may by the law, if the stranger be not sufficient to make recompence for the waste done?
Doct. Is the law clear in this case, that he in the reversion shall recover against the tenant for term of life, though that he assented not to the doing of waste?
Stud. Yea verily; and yet if the tenant for term of life had been bounden in an obligation in a certain sum of money, that he should do no waste, he should not forfeit his bond by waste of a stranger. And the diversity is this. It has been used as an ancient maxim of the law, that tenant by the courtesy and tenant in dower should take the land with this charge, that is to say, that they should do no waste themselves, nor suffer none to be done: and when an action of waste was given after against a tenant for term of life, then he was taken to be in the same case, as to the point of waste, as tenant by the courtesy and tenant in dower was, that is to say, that he shall do no waste, nor suffer none to be done; for there is another maxim in the law of England, that all cases like unto other cases shall be judged after the same law as other cases be: and sith no reason of diversity can be assigned why the tenant for term of life, after an action of waste was given against him, should have any more favour in the law than the tenant by the courtesy or tenant in dower should; therefore he is put under the same maxim as they be, that is to say, that he shall do no waste, ne suffer none to be done. And so it seemeth that the law in this case doth not consider the ability of the person that doth the waste, whether he be able to make recompense for the waste or not, but the assent of the said tenants, whereby they have wilfully taken upon them the charge to see that no waste shall be done.
Doct. I have heard that if houses of these tenants be destroyed with sudden tempest, or with strange enemies, that they shall not be charged with waste.
Stud. Truth it is.
Doct. And I think the reason is, because they can have no recovery over.
Stud. I take not that for the reason, but that it is an old reasonable maxim in the law, that they should be discharged in these cases. Howbeit some will say, that in these cases the law of reason doth discharge them: and therefore they say, that if a statute were made that they should be charged in these cases of waste, that the statute were against reason, and not to be observed. But yet nevertheless I take it not so; for they might refuse to take such estate if they would, and if they will take the estate after the law made, it seemeth reasonable that they take it with the charge, and with the condition that is appointed thereto by the law, though hurt might follow to them afterward thereby. For it is oftentimes seen in the law, that the law doth suffer him to have hurt without help of the law that. will wilfully run into it of his own act, not compelled thereto, and judgeth it his folly so to run into it; for which folly lie shall also be many times without remedy in conscience. As if a man take land for term of life, and bindeth himself by obligation that he shall leave the land in as good case as he found it; if the houses be after blown down with tempest, or destroyed with strange; enemies, as in the case that thou hast put before, he shall be bound to repair them, or else he shall forfeit his obligation in law and conscience: because it is his own act to bind him to it, and yet the law would not have bound him thereto, as thou hast said before. So methinketh that the cause why the said tenants be discharged in the law in an action of waste, when the houses be destroyed by sudden tempest, or by strange enemies, is by a special reasonable maxim in the law, whereby they be excepted from the other general bond before rehearsed, that is to say, they shall at their peril see that no waste shall be, done, and not by the law of reason: and sith there is no maxim in this case to help this tenant, ne that he cannot be holpen by the law of reason, it seemeth that he should be charged in this case by his own act both in law and conscience, whether the stranger be able to recompence him or not.
Doct. I doubt in this case whether the maxim that thou speakest of be reasonable or not, that is to say, that tenants by the courtesy, and tenants in dower, were bound by the common law, that they should do no waste themselves, and over that at their peril to see that no waste should be done by none other. For that law seemeth not reasonable that bindeth a man to an impossibility: and it is impossible to prevent that no waste should he done by strangers: for it may be suddenly done in the night, that the tenants can have no notice of, or by great power, that they be not able to resist: and therefore methinketh they ought not to be charged in. those cases for the waste without they may have good remedy over, and then percase the said maxim were sufferable, and else methinketh it is a maxim against reason.
Stud. As I have said before, no man shall be compelled to take the bond upon him, but he that will take the land; and if he will take the land, it is reason he take the charge, as the law hath appointed it: and then if any hurt grow to him thereby, it is through his own act, and his own assent, for he might have refused the lease if he would.
Doct. Though a man may refuse to take estate for term of life, or for term of years, and a woman may refuse to take her dower; yet tenant by the courtesy cannot refuse to take his estate, for immediately after the death of his wife the possession abideth still in him by the act of the law, without entry: and then I put the case, that after the death of his wife he would waive the possession, and after waste were done by a stranger, whether thinkest thou that he ,should answer to the waste?
Stud. I think he should by the law.
Doct. And how standeth that with reason, seeing there is no default in him
Stud. It was his default, and at his own peril, that he would marry an inheritrix, whereupon such danger might follow.
Doct. I put the case that be were within age at the marriage, or that the land descended to his wife after he married her.
Stud. There thou movest a farther doubt than the first question is: and though it were as thou sayest, yet thou canst not say but that there is as great default in him, as in him in the reversion; and that there is as great reason why he should be charged with the waste, as that he in the reversion should be disinherited, and have no manner of remedy, ne yet no profit of the land, as the other hath. And though, the said maxim may be thought very strait to the said tenants; yet it is to be favoured as much as may be reasonably, because it helpeth much the commonwealth; for it hurteth the commonwealth greatly when woods and houses be destroyed; and if, they should answer for no waste, but for waste done by themselves, there might be wastes done by strangers by commandment or assent, in such colourable manner, that they in the reversion should never have proof of their assent.
Doct. I am content thine opinion stand for this time, and I pray thee now proceed to another question.