case james clavering plaintiff lady clavering and sir Francis clavering  defendant S c p wms follow Spencer v fashionable idler Beav Elias v snowdon  slate Quarries company App Cas in court Lord chancellor Sel Cas in canc SC Mr  attorneygeneral for the plaintiff old sir James Clavering on the marriage of  his son John settle his land in the county of Durham in trust to the use of  John for life remainder to his first and every other son in tail male  remainder to Francis Clavering the defendant for life remainder to his first  and every other son in tail male remainder to the plaintiff in tail male  remainder to John in fee with a power to the several tenant in possession to  make a jointure sir John the son by virtue of his power settle the land out of  which the point in question arise on the defendant dame Clavering his wife for  her life for her jointure and die leave a son James a infant of about fourteen  year of age have first make his will and thereby devise the guardianship of  his say son to the defendant lady Clavering who during the minority of her son  open the colliery of Beckley on her jointure land young sir James the son die  abroad on his travel before he come to the age of twentyone year and the  defendant sir f rancis who be next in remainder for life enter upon the estate  and continue to dig in the same I and have also make several new pit and have  cut down several tree and have carry away a great deal of the soil in lie a  wagon way upon which the plaintiff as next in remainder in tail the defendant  sir Francis have no son have file his bill for a injunction to stay waste  mosely report I shall first consider whether the defendant sir Francis have a  power to dig and open new pit in the same seam the soil of Durham be most coal  and if tenant for life may carry on a seam in this manner and dig and open pit  at his pleasure it will in effect be the same thing as if he open a new I  because of the difficulty if not impossibility to distinguish I shall next  consider this case as if the I be open by young sir James Clavering the tenant  in tail and have it ever be adjudge that tenant for life in remainder can work  and carry on a I so open to the prejudice of those in remainder if it have be  open indeed at the time of the settlement we allow he may but we say there be  no evidence that young sir James open the I for he be not in n of that part of  the estate but that it be open by the jointuress possession who enter into  partnership with one pit for dig the coal and she can not treat with he as  guardian on the part of the infant for if it have prove a lose undertake as it  be not carry on by the direction of a court of equity the infant will not have  be bind by it when he come of age he die under age and before he make his  election and shall she now say I open it as guardian to give a right to one in  remainder after the determination of her jointure but suppose the defendant  sir Francis have a right we be proper to pray a mosely report er p injunction  to restrain he from work in a wasteful manner as from dig away the pillar  whereby several tun of coal be lose and the workman afraid to go on and from  work in a unusual manner night and day whereby the vein will be spend in two  or three year time we likewise pray a injunction against a wagon way he have  make by which he have carry away a great deal of the soil and several tree  which be waste in a tenant for life and that thing may be restore to their  former condition Mr Bootle prohibition lie at commonlaw against the tenant in  dower or by the courtesy before the statute of marlbridge and Gloster   light  b and I do not know that a jointuress can any more commit waste than a tenant  in dower unless she have a power express give to her and though waste or  trover lie in this case we have a right to a injunction to hinder thing for  the time to come but waste will not lie against the defendant dame Clavering  the jointuress because mosely report of the intermediate estate for life of  sir Francis nor against the defendant sir Francis for the writ must be bring  either in the tenit or to hold but he neither be or have be in possession but  be take upon he before his time and the damage give in trover will be but a  small recompense for the loss of our inheritance many hill have be level and  many tun of earth carry off in make this wagon way and the ground may have be  arable before and then it be certain waste Mr solicitor general for the  defendant the chief question be whether lady Clavering open this I as guardian  or jointuress the plaintiff have read no evidence to prove she open it for  herself our evidence be very strong that she open it by the advice of her son  friend for his use and benefit that the book be keep in his name and that on  the death of her son though her jointure continue she put a stop to the work  she be in possession of the estate in two capacity in one of which she may  lawful pen the I and not in the other and therefore if there be no particular  evidence to the contrary the law will presume she do it in the rightful manner  and though the son be not in possession the open the I be a injury only to her  which she can and do dispense with for his sake so this case must be consider  as if the I be open by tenant in tail but they say it may have turn to a lose  undertake and that the infant will not be bind by it but where a guardian act  good fide with a good prospect for a infant shall she suffer if any loss  happen and yet the infant have the advantage if it prove a beneficial  undertake and it be plain the plaintiff know this I be open in right of the  son for on the news of his death he go direct to the colliery and order the  work which be discontinue by the order of lady Clavering to be carry on for  the benefit of the defendant sir Francis who be then in London and advice he  afterward to let it and show he where a wagon way may be make which have be  since lie at a great expense and yet now he pray a injunction as to the law I  be far from contend that if one tenant for life commit waste another in  remainder for life may continue it but we say this I be open not in her own  right but in the right of the tenant in tail and it do not signify whether it  be open at the time of the settlement if it be open at the time the defendant  come into possession mosely report they say the defendant can only work in the  same pit but not make new one but their argument will not hold unless they can  prove i and pit to be the same so far as the I run so far the defendant have  possession but they say the whole country be I and yet complain that the  colliery will be work out in two or three year it be no waste either in tenant  for life or for year to pursue i that be open and though the defendant must  agree with lady Clavering for a liberty to work these i and to come over the  soil this be not waste their next complaint be that the defendant work  irregular but if he have a right though he shall work the I quite away no  injunction will lie he may sink as many pit as he please he may make the best  advantage of it he can and if the plaintiff can not bring waste he may have  bring a action of trover and establish his tie to the coal and then file his  bill for a injunction and not have come here in the first place when the right  be so clear against he and this injunction will oblige sir Francis to break  his contract with his lessee and subject he to several action it be not yet  settle at law whether lie a wagon way be waste but suppose it be the real  injury in this case be only the take away a few small tree they own mosely  report er p it have be make at a great expense and instead of impoverish it  will improve the estate and when the plaintiff remainder take place will be  ready lie for he whereas injunction be grant to prevent not to cause waste but  the plaintiff himself first propose the make of it and never object to it  though it be six month in hand which be a bar to he in equity though he have a  right Lord chancellor the proof be express that the plaintiff advice the wagon  way and stand still and see it do and dig in the soil be only a trespass  against the tenant for life and I will not oblige they to pull down this way  after they have lie out pound on it because they have cut down a tree or two  or carry off a little of the soil the case in short be this tenant for life  remainder to his first and every other son in tail with several remainder for  life and in tail with a power to the several tenant in possession to make a  jointure which the first tenant for life do accord and die leave the  jointuress guardian to his son the tenant in tail and a pit be open during her  possession mosely report and the first question be on the fact whether this  pit be open for the benefit of the tenant in tail and there be strong proof  that lady Clavering open it as guardian and none to the contrary and that when  she have news of her son death she immediate order the man to cease from work  and the plaintiff go to the colliery and order the work to be continue for the  defendant sir Francis suppose then the tenant in tail open this I the next  question be whether the tenant for life after his death find it open though it  be not so at the time of the settlement may work it and I be of opinion that  he may the case in coke upon Littleton be all of tenant under lease but the  reason of they will hold in this case tenant for life can take the land as  they be at the time of the settlement the vesture of the land be take away by  he that have a power and therefore he must have the I in lieu of it and if he  have a right to the I the next question be whether he can sink new pit and it  be solemnly find at the assize at well on a issue direct out of this court in  the case of Helyar and Twyford of a coal mendippe I to the satisfaction of the  counsel and of Mr justice Powel that tenant for life may dig new pit in the  same seam of coal and that the open pit be for the benefit of the air and the  easy come at the vein this have be find in a long solemn trial and before so  able a judge can be controvert this be a new case and as the plaintiff have  set the work go for the defendant sir Francis the tenant for life and he have  be at a great expense it will be hard to grant he a injunction and it will be  also hard to dismiss his bill therefore I will retain the bill for a  twelvemonth that he may try his right at law in the mean time Mr Lutwyche for  the defendant I hope your lordship will dismiss their bill and not countenance  they so far as to retain it for that will be in effect to direct a trial  whereas though the plaintiff shall have a verdict at law for he be be not  entitle to any relief in this court the lie the wagon way as well as work the  colliery have be very expensive to the defendant so that we have a strong  equity against the plaintiff though the law shall go for he because he lead US  into this expense and he advice we to let the work which we have do and  covenant with our tenant and will he force we now to break our covenant and  your lordship by dismiss the bill take no right from he mosely report in the  case of mason versus mason the mother be both jointuress and guardian and  enter into article for the sale of pound worth of timber and these article be  carry into execution by this court but she have no power by her jointure to  sell timber in savil case the guardian by nurture cut down seven or eight  thousand pound worth of timber where the tenant in tail lie a die and I move  your lordship for the next in remainder for a injunction and your lordship  deny the motion because the guardian have a power to make what advantage she  think proper of the estate for the infant and after the death of the tenant in  tail a bill bring by the remainderman for relief be dismiss because the tenant  in tail have a power over the inheritance and the guardian may exercise that  power in any manner she think proper and the plaintiff here be in savil  condition he that be in remainder after a tenant in tail must be subject to  the power of the tenant in tail and what he can do the guardian mosely report  er p may do and the land only be in jointure to lady Clavering for the I be  not open at the death of her husband afterward she open the I for her son and  agree to give he a liberty to work it the tenant in tail then be in possession  of the I and after his death it come in possession to the next in remainder  and all we derive from the jointuress be a excuse from trespass and as she may  have surrender to the tenant in tail sure she may dispense with his take part  of the profit Mr attorneygeneral for the plaintiff we have a right to come  into this court to have the title deed produce at the trial and if the verdict  go for we we shall be entitle to a injunction it be say our bill ought to be  dismiss because we encourage the defendant sir Francis to go on with the work  what we do be immediate upon the death of young sir James before we have see  the deed or know our own title which as soon as we be acquaint with we bring  this bill and the great part of the expense the defendant have be at be since  the fill of it Lord chancellor it be too hard to dismiss the bill on this new  point of law and they can go to trial without the aid of this court let the  bill therefore be dismiss as to the wagon way and as for the residue let it be  retain for a twelvemonth till the plaintiff have a opportunity to try at law  in a action of trover to who the property of the coal do belong to which end  the defendant be to produce the deed mosely report at the trial and if a  verdict go for the plaintiff the party may resort back if against the  plaintiff or he do not proceed the residue be to be dismiss with cost Friday  November the saint