tion without it, it is matter, and not form, to set it forth [233 a] And this is a case of some for information of the court. singularity upon this statute. But now to the case in question: the descent to Millington, as cousin and heir, is the substance and body of the plea; and the rest which is required under the vizt. is but a specification and explication of the same thing, by manner how it is, which is not the point issuable, but the general descent, as it is ruled in the case of Challenge for cousinage, 14 Eliz. Dyer 319. 9 E. 4. 3. and 19 H. 8. 7. And note, that this is matter of fact to be tried by jury, whether it were tried generally or specially so it is not like the cases of not showing deeds, or the like, whereof we speak before, whereupon the court is to judge. Note Wimbish & Talboys's case, Plo. Wimbish and his Plo. 42. b. wife plead, that she was the person to whom the interest of the land did belong, after Elizabeth Talboys; and the opinion of the court was equal, whether that were well or not; yet that was at the common law before this statute; but indeed the plea followed the words of the stat. 11 H. 7. which were in the general; whereupon they relied that maintained the plea; and that was less certain than this, for she might be next either by descent or purchase, or by reversion or rem. Now where it was objected by Warburton, that if the pedigree had been set down, the plaintiff might have pleaded a release of any of those ancestors, or pleaded bastardy in any of them; it was answered, that the traverse of the descent of the rent to Millington, must have been the issue in both cases, and would have served, and so will, though the pedigree be not set down. Note, that as a demurrer at the common law did confess all matters formally pleaded; so now, by the statute, a general demurrer doth confess all matters pleaded, though informally, according to the forms meant by this law. 2 Cr. 161. Dy. For such forms are now not material, not being expressed in the demurrer. 89. 3 Cr. 469. [234] Waste. Mesme case. 2, 823. Winch. Entr. 1165. LORD DARCY vs. Askwith. General words, in a lease, will not give the lessee a right to fell timber. If the lessee of a manor open a new mine, it is waste; but if a lessee of mines by If the lessee do any act, by which the nature of the thing demised, is changed, as to turn meadow into arable, wood into pasture, &c. it is waste. Secus if he only better a thing in the same kind, as to dig a meadow to make a drain or sewer, &c. If the lessee build a new house, at his own charge, it is not waste; but if he neglect to keep it in repair, or fell timber to build or repair it, it is waste. (1) JOHN Lord Darcy brought an action of waste against Hutt, 19. Ro. Robert Askwith and John Marshall, upon a lease made by one Edward North to one Arthur Denly, 34 H. 8. of the manor of Swillington, and had general words, boscis, boscorum venditionibus, magno maeremio, magnis arboriwill not give bus, mineris carbonum, &c. in tam amplis modo et, &c. prout the lessor habuit vel jure habere potuit, for the term of eighty years, and conveyed the reversion to the plaintiff, and the lease to the defendant, and then assigned 22 H. 6, 18. 5 Co. 12. Brownlow. Ebor. General words leave to fell timber. 3 East 40. 1 Saund. 234. n. waste in felling of oaks. The defendants plead that they felled those trees for the making of punchions, corfes, rolls, roll-scoops, and other utensils in and about certain coal-mines, parcel of the demise; and without which they could not dig, and get the coals out of the pits, and did bestow the same trees accordingly: whereupon the plaintiff demurred in law. And first, there was no question made, that the lessees might fell timber, by force of the general words, because those words are concluded under a term, which argues that it gives not the trees; as it is resolved 2 Eliz. Dyer Moo. 831. Ac- 180. and 23 Eliz. Dyer 374. But the only question was, whether, by implication of the law, by leasing the coalmines, the lessor gave power to fell the trees for the use of the coal-mines. For the grounds were agreed tempore cord. 11 Co. 48. a. (1) As to what kind of fixtures may be erected and removed by tenants, &c. without committing waste, see 3 East 38, Elwes vs. Maw, where the law on this subject is fully discussed, and all the cases cited. See also 6 Johns. 5, Heermance v. Vernoy. 7 Mass. 432, Goddard v Chase. 1 Camp. 227, Watherell v. Howells. 2 Cro. 170, 190. Ant. 224. L. 54. b. Dy. 815. Co. L. 53. 6 Co. L. 43. b. E. 1. F. Grants 41, that the grant of a thing did carry all [234 a] things included, without which the thing granted cannot be had. But this case was adjudged by the court, und 2 Roll. 60. voce, against the defendant, for that ground is to be understood of things incident and directly necessary. Thus, if I give you the fish in my waters, you may fish with nets, but you may not cut the banks to lay the water dry. If I grant or reserve woods, it implies a liberty to take and carry them away. So the law that allows a fine levied by an infant, allows him likewise to declare the uses. But in the principal case it was first agreed, that this shall be 10 Co. 42. b. taken for a mine opened since the lease, because that is strongest against the defendant that pleads it. Now then if mines had not been granted by special name, it had been waste to open a mine of new. For it is generally 5 Co. 12. Co. true, that the lessee hath no power to change the nature 77. 2 Roll. Ab. of the thing demised; he cannot turn meadow into arable, nor stub a wood to make it pasture, 20 H. 6. 1. nor dry up an ancient pool or piscary, 5 R. 2. Wast. 97. nor suffer ground to be surrounded, nor decay the pale of park; for then it ceaseth to be a park. Nor he may not destroy or drive away the stock or breed of any thing, because it disherits and takes away the perpetuity of succession, as villains, fish, deer, young spring of woods, and the like; but 2 Leo. 174. Ache may better a thing in the same kind, as by digging a meadow, to make a drain or sewer to carry away water. A lessee may build a new house where none was before, but that must be every way at his own charge : for he must neither take timber or other things wastable, neither to build nor repair it, though it be never so needful. And yet if he keep it not in repair, an action of waste lies, though the writ be in domibus dimissis. 42 E. 3. 22. 17 E. 2. 17 E. 3. Fitz. Wast. 118. 101. and 11 H. 4. 34. But if the lessor builds a house after the lease, the lessee is not bound to keep it in repair. 49 E. 3. 1. Now upon the like reason, though it were no waste to open a mine in this case, as it would have been if the demise had not been of mines by special name; yet it is like a house new built, for maintenance whereof, the les cord. Co. Lit. uncore ceo est. 43. a. Wast. 1 Inst. 53. a. [234 b] see can fell no timber; and so much worse, as a new house betters and increaseth the inheritance, whereas the making and digging of mines decays, and perhaps destroys the inheritance of the mine. And therefore it is against reason to make one waste to maintain another. And so the difference is apparent between this case and the liberties inclusive of houseboot, fireboot, hedgeboot, and the like, which all tend to the preservation of the thing demised, and ploughboot depends upon the favor of tillage. This was the judgment and reason of this case, which I did deliver, at the request of the rest of the judges, for us all. [235] And I am of the same opinion, though the mine had been open at the time of the lease, and though both lessor and lessee had used to take timber for those purposes: for the lessor might use his own as pleased him, and the wrong of one lessee cannot warrant another's wrong. Error. Jenk. Cent. 310. Chal lenge may be taken to the panel made by the sheriff, after a tales prayed unto him. Estoppel binds not where it is enforced by necessity. VICARS VS. LANGHAM. There can be no challenge, either to the panel or the poll, until there be a full jury; but a challenge must be taken to the panel before any of the jurors are sworn, The plaintiff may have a challenge to the panel, by exception to the sheriff, after praying a ven. fac. and a tales to him, though the cause of challenge existed before. A juror may be challenged for a cause happening after he was sworn ; but not so of the panel. A WRIT of error, was brought in the exchequer chamber, upon a judgment given in exchequer between Vicars and Langham, and the error assigned was, that the sheriffs of London having returned a jury, and they being called, and some not appearing, the defendant prayed a tales; and after the jury made full by tales, then the plaintiff challenged the whole panel by exception to the sheriffs; whereupon the jury was quashed, and a new jury impannelled by the coroners, by which the cause was tried. Now the exception was, that the plaintiff, having prayed a tales to the sheriffs and obtained it, was estopped to challenge the panel for exception to the sheriffs. But it was resolved, that there could be no challenge. neither to the panel nor to the poll, till first there were a full jury; so that the jury not appearing full, there was a necessity to have a tales, or else the challenge could not have been taken; and so the cause would have remained pro defectu juratorum, if that the plaintiff had not prayed it, for the defendant would not, and so the judgment was affirmed. And note, that in this case there were none sworn before the challenge, but only impannelled. But if the principal panel do once appear full, then the challenge must be taken to the panel before any be sworn, or else it comes too late. Note, that where the plaintiff sues his ven. fac. to the sheriff, he is not estopped thereby, to challenge the panel for kindred or other cause that was before the ven. fac. And though a juror may be challenged for a cause happened since he was sworn, yet the panel cannot be so; for no ill affection of the sheriff, arising since the jury sworn, can make the jury suspected, that was impannelled before. [235 a] ANON. Common apshall be appor purtenant tioned upon division of Common appurtenant may be apportioned on a division of the land. Ir was adjudged, that where one had a common appurtenant to ten acres of land for all his beasts levant and couchant upon the same, and sold part of it, that the common should be apportioned, and every one should have common for his beasts, levant and couchant upon his part; 1704. 1 Cr.422, for, there are things entire in several degrees; some that Co. L. 122. a. cannot be divided by any act of the parties, as warranty, conditions, and such other, which yet by act in law are land. Winch. Entr. 1071, or 151. Noy 30. 4 Co. 38. a. Co. 79. a. utr. 37, 38. a. Ant. 25. 4 Co. 2 Cro. 15. Con divided. But the case of common is not so strict an en- fer pag. 25. tirety; and the mischief of generality of the case requires Ante & Ins. an extension for the common good. 122. |