13 E. 1, STAT. 1, CAP. 22, WASTE. 163
and Assignment of his Neigh-
bours, sworn and tried for the
same Intent, or else he shall
grant to take nothing from
henceforth in the same Wood,
Turfland, and such other, but
as his Partners will take.
(3) And if he do choose to
take his Part in a Place cer-
tain, the Part wasted shall be
assigned for his Part, as it
was before he committed the
Waste. (1) And there is such
a Writ in this case, that is to
say. Cum A & B tenent 'bos-
cum pro indiviso, B fecit vastum, &c.
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em vicinorum ad hoc electorum
& juratorum vel quod concedat
quod nichil capiet decetero in
hun'usmodi bosco turbaria &
aliis nisi secundum quod parti-
cipes sui capere voluerint. Et
si eligat capere partem suam
in certo loco assignetur ei in
sua parte locus vastatus secun-
dum quod fuit antequam vas-
tum fecit. Breve in hoc easu:
Cum A. & B. teneant boscum
pr indiviso B. fecit vastum,
&c.
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21 Ed. 3, f. 29. Fitz. Waste, 25, 96. 2 Inst. 403. Co. Litt. 200. Regist. 76.
This Statute is expounded by the word teneant, translated do hold, to
imply a freehold at least, and so on a lease to one for life and another for
years, they are not within the Statute. And it includes joint-tenants, but
not co-parceners, for the latter were compellable to make partition, and
therefore are not within the purview of the Act. And, on the like prin-
ciple, it does not extend to houses, for one joint-tenant or tenant in com-
mon might have the writ de reparatione facienda for repair of them, 2
Inst. 403, see 4 Kent Comm. 370.
In a case in Moor, 71, pi. 194, cited in Comyn Dig. Waste C. 2, it was
ruled by two Judges, that if there be two tenants in common of a wood and
one of them lease his part to the other, who cuts trees and does waste,
he shall be punished for a moiety of the waste and the lessor shall recover
a moiety of the place wasted; and in Waterman v. Soper, 1 Ld. Raym,
737, Lord Holt ruled, 1st, that if A. plants a tree upon the extremest limits
of his land, and the tree growing extends its root into the land of B. next
adjoining, A. and B. are tenants in common of the tree; but if all the
root grows into the land of A. though the boughs overshadow the land
of B. yet the branches follow the root, and the property of the whole is in
A.; and 2d, that if there be two tenants in common of a tree, and one cut the
whole tree, though the other cannot have an action for the tree, yet he may
have an action for the special damages in this cutting, as where one ten-
ant in common destroys the whole flight of pigeons. These cases were re-
lied on in Martyn v. Knowllys, 8 T. R. 145, where one tenant in common
occupied the* whole land, having a demise of his moiety from the 125
other. The former cut trees of a proper age and growth for being cut, and
the other brought an action on the case in the nature of waste against him,
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