case garth versus cotton February S dick wh t l c that ed see Stansfield v  Habergham Ves Jnr Bagot v Bagot Beav sawyer v Goodwin l I Ch Birchwolf v birch  lr Eq Philips v Homfray Ch d SC Ves g tenant for year if he so long live  without impeachment of waste except voluntary remainder to trustee to preserve  g remainder to his first c son in tail male remainder to sir I c in fee g  before a son bear and sir I c agree to cut down timber upon the estate and  that sir I c shall not take advantage of its be waste and the money arise from  it to be divide between they timber cut to the amount of pound g s son bear  tun year after attain and suffer a recovery of the estate to himself and his  heir the son entitle to recover satisfaction for so much value of  hisinheritance as the late sir I c receive under the agreement and his  executor admit asset pound with interest at per cent to be compute from the  fill of the bill direct to be pay to the plaintiff the son of c by the  executor of sir I c Lord Hardwicke have take time to consider of the case this  day deliver his opinion the plaintiff father be tenant for year if he shall so  long live without impeachment of waste except voluntary waste remainder to  trustee to preserve contingent remainder remainder to his first and other son  in tail male remainder to sir John cotton in fee atkins the tenant for year  and sir John cotton before a son be bear of the former agree by article which  recite that the plaintiff father be seize of a estate for life and be indebt  by mortgage c that the plaintiff father shall cut down the timber upon the  estate and that sir John Cottonshould not take advantage of its be waste and  that the money arise from it shall be divide between they timber be cut down  to the amount of two thousand pound as appear by the defendant sir John cotton  answer the plaintiff be afterward bear on the that of may ten year after the  article be execute have since attain his age of twentyone and suffer a  recovery of the estate to himself and his heir the general question be whether  the plaintiff be entitle to satisfaction for so much as sir John cotton  receive out of the inheritance of the estate by sale of the timber before the  plaintiff come in be and consequent before he have any estate in the land and  while the remainder to he vest in contingency it be admit to be a new question  and the plaintiff can have no remedy at law but if entitle to any it must be  in equity several matter be to be consider I will mention some that be in  their nature plain and other that be more doubtful the cut the timber be a  wrong act sir John cotton have no present right the inheritance be in he but  subject to open on the father of the plaintiff have issue a son the plaintiff  father may have bring trespass and ought to have do it upon account of the  privity between he and the remainderman of the inheritance the article be  between person that have not power to do it there be several false recital in  the article as that the plaintiff father have a freehold estate c there can be  a strong proof of collusion both join to injure the remainderman if the event  of his come in be happen before the destruction of the timber be complete this  case will depend entire on the nature of the estate there be in the trustee  and the consequence result from it atkins the four principal thing for the  consideration of the court be first the intent and use of create limitation to  trustee to support contingent remainder second what estate such trustee take  at law and what action they can maintain at law three what be the nature of  such a trust in equity and what remedy they have here atkins er p fourthly how  they be Chargeable for a breach of trust and how other person may be affect by  it first insert trustee to support contingent remainder take its rise from two  great case chudleighs   a and archer   a though not bring in use till after  the usurpation the defect that call for a remedy be the want of a vest estate  in feoff to use in chudleighs case the judge run into refine and speculative  reason one thing the majority of they go on be that such a right in the feoff  to support the contingent use will introduce a perpetuity if it be not capable  of be bar the law be not then settle but afterward in archer case which be  place first in coke report though subsequent this point be adjust and also in  the argument of pollexfen it be full state and allow in the ease of hale and  Risley second it be former a question whether trustee take any estate at all  except only a right of entry in case of forfeiture but this be soon settle in  Cholmeleys case   a a lease to a for life remainder to b during the life of a  be a good remainder Edward Fitzherbert title waste Duncombe versus Duncombe  lev if it be so after a estate for life it be much strong after a estate for  year as be right argue by Lord chief justice lee in the case of smith and  Parkhurst alias dorm versus fortescue Geo in b king atk S c if there be a  seize they must bring the assize they have a interest in the timber but not to  cut it down foot they can not sue at law the owner of the inheritance only can  sue and the statute of Gloucester Edward ch give the writ of waste to the same  person three it be right to construe it in the most liberal manner word and i  be part of the inheritance and the destruction of the former and exhaust the  latter may take away the best part of the inheritance the question be what  remedy the atkins trustee may pursue in this court the present trustee be not  only enable to make entry c as be usual but to do all and every other lawful  act and act and they may take all remedy in law and equity I be clear they may  have have a injunction to stay waste before the contingent remainderman come  in be vide dayrell versus champness Eq Cas Abr the book go still further a  bill may be bring in behalf of a infant in v enter sa mere to stay waste vern  the trustee in this case may have do it suppose they have and a injunction  have be grant and afterward the timber have be fall it have be a contempt of  the court on what term shall the party offend have be discharge this court  will not have fine they but they can have clear the contempt only on the term  of make satisfaction and that may have be by pay the value of the timber to  who shall it have be pay not to the tenant for year he can have no right nor  to the remote remainderman but it shall have be lie up for the contingent use  for without direct this complete justice can not have be do fourthly  notwithstanding what be say in pollexfen the duke of Norfolk case at the end  that trustee for preserve contingent remainder be not punishable in equity  though they break their trust yet that observation be not attend to by Lord  chancellor Harcourt in the case of pie versus George salk Michaelmas term and  in the case of piggot versus piggot in the same term and also in the case of  Mansell versus Mansell p wms it be hold they may be guilty of a breach of  trust and it be also settle that a voluntary grantee under the trustee without  notice will be liable to the the trust suppose the trustee in this case have  consent to the fall and the sale of the timber and have covenant not to bring  a bill for a injunction to stay waste they will have be liable the word of  Lord king who be not dispose to extend the power of this court in the case of  Mansell vers S Mansell be remarkable shall the court he say hold it no breach  of trust or pass it by with impunity it will be make proclamation that the  trustee in all the great settlement in England be at liberty to destroy what  they have be entrust only to preserve but in this case the trustee have not  act that will excuse they it they have not notice in all alienation by trustee  the alienee be not affect by the act of the trustee but by notice of the trust  all the party here claim under the will of and it be recite in the article it  will be strange to say the plaintiff father and sir John cotton will have be  liable if the trustee have join and yet be not so now suppose the trustee have  join atkins in the sale of the estate to a purchaser with notice atkins er p  of the trust and i have be open and exhaust and afterward a son have be bear  accord to the case of Mansell versus Mansell this court will have decree a  reconveyance of the estate and their decree will not have be complete without  give a satisfaction for what have be take away there have be several objection  raise first that the interposition of the trustee to preserve contingent  remainder will not alter the legal right of the tenant for life and the  remainderman of the inheri once but it be demonstrable it be design to abridge  the legal right of the tenant for life to destroy c by forfeiture and the  legal right of the latter to accept by surrender it be true the first owner of  the inheritance in be shall have timber blow down Lewis bowl case   b and  alein a estate in contingency be no estate and the tree must become the  property of somebody and therefore the first remainderman of the inheritance  in be take they but in the present case there be contrivance and collusion  contrary to conscience vide Bewick v Whitfield p W bro Charles Rep bro Charles  Rep Mildmay v Mildmay bro Charles Rep the second objection that there be no  remedy at law but this case depend on principle of equity that be the point of  fraud and collusion which establish the authority of this court often contrary  to and beyond the rule of law consider how this determination coincide with  resolution at law there be a distinction at law between estate that go over  which arise by operation of law and by limitation of the party the former may  go back and open the latter not a action of trover lie by the remainderman for  the tree if there be tenant for life remainder for life remainder in fee if  tenant for life commit waste in tree and afterward he in remainder for life  die the remainderman in fee may bring action of waste vide f arrant v Lovel a  atk paget case   b the commonlaw have intend a remedy in case of waste which  may be by a person where the estate be out of he by wrong and afterward  revested in he   Litt a a bishop after restitution of temporalties have a fee  the freehold when he die be in the king if tenant for life by demise of the  bishop predecessor commit waste during the vacancy the successor shall have a  action for it   Litt a fit nat short catalog and this action be not give he by  the statute of marlbridge Inst Edward b Ro Abr p if it be he may sue for waste  do in the time of his predecessor which he can do but this remedy be by the  policy of the law atkins this court will go further than the commonlaw can as  in the case of a intermediate estate for life there be no remedy at law for  waste more roll Abr vern freeman shower but this court will grant injunction  to stay waste of tree for ornament or belong to a mansionhouse in Abrahall and  Babb Lord Nottingham cite a case that go much further and preserve the  contingent interest of the inheritance the first tenant for life give leave to  the second who be so without impeachment of waste to cut timber and yet the  injunction be grant the case of Fleming and the bishop of Carlisle go on the  same ground because he ought not to do waste by anticipation and before the  estate to which the privilege be annex come into possession Robinson versus  Lytton December ante S c go much further the three objection suppose a bill  may have be bring by the trustee to stay waste yet it do not follow that this  bill be now proper for a account the general run of case be of injunction  because that be the most immediate relief but it do not follow this method be  not proper and only one case cite to support that reason jesus college versus  bloom November vide ante p this point be not absolute determine in that case I  be of opinion the college may bring trover and therefore it wide differ from  this case where no remedy can be at law objection the four if such bill may be  bring yet no decree can be for the value of the timber or that the money shall  be lie out for the benefit of the contingent remainder and in support of this  Whitfield versus bewet p wms be rely upon but the difference between that and  the present case be the collusion and contrivance in this objection the five  the great length of time but there be no statute of limitation in the way nor  be there any laches to be impute to the plaintiff atkins er p the bill be  bring within three year after the plaintiff be of age the inconvenience be not  great than in action at law by a remainderman in fee after the death of the  intermediate tenant for life the plaintiff here agree to accept so much for  satisfaction as the defendant confess in his answer to have receive so that  there be no difficulty in direct the account objection the six I on the  recovery suffer by the plaintiff the reversion be discontinue by it and Lord  coke say after waste be do regard be to he have to the state of the  inheritance which must continue the same at the time of the action bring    Litt a that certain be law but the use on the recovery be declare to the  plaintiff and his heir and in Lord atkins Derwentwater S case Geo this be hold  to be the ancient use agreeable to abbot and Burton salk and so be Martin and  strahan Hilary Geo stram will bro p c bro p c and ed term Rep S c in the court  of king bench and afterward affirm in the house of lord objection the seven  that something new arise in the state of the cause as it now stand by the  revival on thedeath of sir John cotton since the argument at bar if a action  of waste will lie for the plaintiff against sir John cotton yet that the  remedy be go by the death of sir John cotton and consequent a action of trover  will not lie against the executor of the person that convert of this I give no  opinion trover may be bring by a executor and it seem strange and contrary to  justice that those action shall not lie against executor as well as for they  but be that as it will yet the plaintiff be entitle to relief in this court in  many case where at law the action noritur cum mask and party may have remedy  here afterward before the four and five of William and mary c sect there be no  remedy at law against a executor of a executor yet equity give it and it be  lie down as a rule by Lord Nottingham and he say the commonlaw will come to it  in time his prediction prove true for it be determine so at law two year  before the statute Eaton college versus Beauchamp Charles Cas Mod to go  further in all case of fraud the remedy do not die with the person but the  same relief shall he have against his executor collusion in this court be the  same as fraud this general argument ab inconsistency be use on both side which  be of weight especial in a new case on the part of the defendant it be say by  this mean timber will be lock up and give occasion for question to spring up  after a great length of time these be much less than the inconvenience on the  other side if contingent remainderman can have no remedy in this case the law  allow of as many tenant for life as be in be at the same time most family  estate be in settlement and frequent the first owner of the inheritance in be  be a remote remainderman the remainderman in fee may collude with the first  taker and though there be ever so many contingent remainder intervene they may  destroy the wood and exhaust the i and when a son be bear he will have nothing  leave to support the family there be trustee will not alter the case if they  have not notice of it artifice to support necessitous and extravagant tenant  for life increase daily in Fermors case   the resolution be contrary to the  statute of fine but the judge respect the general mischief atkins if the  original limitation have be subsist I must have direct the money to be lie out  and settle but as they be bar and the plaintiff have the fee in the estate he  must have the money as to interest the condition of the timber when fall do  not appear nor whether any and how much be use in repair nor how much be grow  up since I shall direct it therefore to be compute no further back than from  the fill of the bill his lordship declare that on all the circumstance of the  case the plaintiff be entitle to recover satisfaction in this court for so  much value of his inheritance as the defendant testator exhaust and receive by  virtue or colour of the article enter into between he and the plaintiff late  father who be tenant only for the term of year if he shall so long live and  order that the master to who he refer it shall compute interest on the sum of  pound admit by the answer of sir John hind cotton decease to have be receive  by he from the time of fill the plaintiff bill after the rate of pound per  cent per annum and tax the plain tiff his cost and that what shall be so find  due to the plaintiff for the pound interest and cost be consider as a demand  by simple contract on the estate of sir John atkins er p hind cotton decease  and be answer and pay to the plaintiff by the defendant the executor they have  admit asset of their testator sir John hind cotton by their answer to the bill  of revivor Reg lib a fol