TORTS WHICH DIE WITH PEESON. 307 



1837. And 2)er Curiam: "If the defendants intended to show that 

 under the terms of a lease they were not bound to manage this farm 

 according to the custom of the country, that should have been pleaded. 

 The declaration merely states that the defendants were tenants, and 

 that a ^'certain duty devolved upon them in that character ; and no 

 point is raised by either of the issues as to the lease, or the terms of 

 the former holding." (//;.) 



A lord of the manor, though, he inaij hring a hill for an account of ore 

 dug, or timher cut, by defendant's testator, may not bring one for 

 ploughing up meadow or ancient pasture, or such torts as die with the 

 person {Bishop of Winchester v. Knight). It was laid down in Johnson 

 V. Goldswaine, that irremediable injury is the only ground for the 

 summary interposition of courts of equity, and that the ploughing 

 up of ancient meadow was irreparable waste ; but that carrying off the 

 straw and manure which were to have been spent upon the land, was 

 merely a breach of contract. If the breach of a covenant be assigned 

 thus, " that the defendant had not used a farm in a husbandlike mannerj 

 hut on the contrary has committed great waste, spoil, and destruction," 

 the plaintiff cannot give evidence of the defendant using the farm in 

 an unhusbandlike manner, if it do not amount to waste (Harris v. 

 Mantle). Evidence was offered at the trial to show that the defendant 

 had not managed his farm in a husbandlike manner, as he had not 

 sown any clover or turnips on a certain proportion of it, according to 

 the course of husbandry in Worcestershire. Heatlt J., who tried the 

 case, thought, as the lease was not expired, this ^\■as not spoil or des- 

 truction, and nonsuited the plaintiff, and the Court discharged a rule 

 for a new trial without argument. Butler J. said, on the former words 

 of the breach, the evidence would have been admissible ; yet as the 

 plaintiff had in the subsequent part of it narrowed it to waste, spoil, 

 and destruction, it was not competent to him to give evidence of any 

 other particulars, which did not come within the meaning of those 

 words. And per Parhe B. : " It is not waste at common law, either 

 wilful or permissive, to leave tJie land uncultivated. In order to oblige a 

 tenant to farm according to good husbandry, you must either have 

 some express contract, or some implied contract from the custom of the 

 country " {Ilutton v. Warren). A breach in an action by a landlord 

 against an outgoing tenant, that the tenant threatened to commit waste, 

 unless he were paid a certain sum by the incoming tenant, as compensa- 

 tion for ploughings, draggiugs, grass seeds sown, dung, &c., and that 

 the latter was thereby compelled to and did pay him that sum, in order 

 to prevent his committing such waste, is bad {Leach v. Thomas). It 

 was ruled at Nisi Prius by Lord Elknhorough C.J. that it is waste for 



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