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and if it has been recovered by him, by the payment of a reward or otherwise, the expense so incurred is to be allowed to him by the jury.' (a) If he can be indemnified by a sum of money less than the full value, as, for example, where he has only a special property, subject to which the defendant is entitled to the goods, that sum is the measure of damages. But if he is responsible over to a third person, or if the defendant is not entitled to the balance of the value, the plaintiff is entitled to recover the whole value. Where the action is against an executor de son tort, proof that the goods have been applied in payment of debts of the intestate is admissible to reduce the damages; but he cannot retain for his own debt; nor, as it seems, for moneys of his own which he has expended in payment of other debts of the intestate, if the goods still remain in his hands.3

i Greenfield Bank v. Leavitt, 17 Pick. 1. And see Pierce v. Benjamin, 14 Pick. 356, 361 ; Yale v. Saunders, 16 Vt. 243. So, if the goods have been illegally sold, in discharge of a lien, and bought in by the owner, who sues the seller in trover. Hunt v. Haskell, 11 Shepl. 309.

2 Chamberlain v. Shaw, 18 Pick. 278, 283, 284.

8 Bull. N. P. 48; Whitehall v. Squire, Carth. 104 ; Mountford v. Gibson, 4 East, 441, 447.

(a) Curtis v. Ward, 20 Conn. 204 ; Ew. the property of the plaintiff and he cannot ing v. Blount, 20 Ala. 694. Where a plain- sue a second time. Atwater v. Tupper, 45 tiff has obtained judgment in trover against Conn. 144. one who has converted his goods, he may Judgment recovered (though without sue another who has subsequently con- satisfaction) in trover for conversion by a verted the same goods, and recover the full wrongful sale is a bar to an action for value of the goods. But if the prior judg. money had and received for the proceeds ment has been satisfied in part, such satis- of the same sale, against another, whether faction should be deducted from the judg. a party to the conversion or not. Buckment in the second suit, and if the prior land v. Johnson, 26 Eng. Law & Eq. 328. judgment is satisfied in full, this devests

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WASTE.

$ 650. Waste defined. Waste is “a spoil or destruction in corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail." 1(a) It includes every act of lasting damage to the freehold or inheritance, and is punishable either by an action of waste or by an action on the case. The former is a mixed action, in which the plaintiff generally recovers possession of the place wasted, which is forfeited by the tenant, together with damages for the injury; but, in the latter action, damages only are recovered. § 651. Action of waste.

The old action of waste still lies in some of the United States, the Statute of Gloucester, 6 Edw. I., c. 5, having been brought over and adopted in those States as part of the common law;? (6) though it is seldom resorted to; but, in others, it has never been recognized; the only remedy being either an action on the case or an injunction.3 (c)

1 2 Bl. Comm. 281 ; Co. Lit. 52 6, 53.

2 Jackson on Real Actions, p. 340 ; Carver v. Miller, 4 Mass. 559 ; Randall v. Cleaveland, 6 Conn. 329.

3 Shult' v. Baker, 12 S. & R. 273 ; Findlay v. Smith, 6 Munf. 134; Bright v. Wilson, 1 Cam. & Norw. 24 ; Sheppard v. Sheppard, 2 Hayw. 382 ; Story, Eg. Jur. § 917.

(a) See Cruise's Digest (Greenleaf's ed. dig ores, is not guilty of committing waste 1856), vol. i. p. 120 (115), tit. iii. c. 2, when he takes more ore out than his con88 1-76, and notes. Plaintiff must have tract allows him. Grubb's Appeal, 90 Pa. the legal title. Gillett v. Treganza, 13 St. 228. Wis. 472.

The complainant in a bill praying an (6) Cruise's Digest (Greenleaf's ed. injunction of waste must also show title in 1856), ut supra, $ 26, and n.

the land, and one who is only an attaching (c) The case which must be made out creditor or judgment creditor, or a holder where the reversioner applies to a court of of a certificate of purchase under an execn. equity to have the tenant enjoined from tion before he gets his deed, has not such committing waste, is in most respects sim- a title as will maintain the bill. Law v. ilar to that which would be necessary to Wilgees, 5 Biss. C. C. 13. support an action at law, but it must also Nor will such a title maintain a bill for be shown that the plaintiff's action at law an account of waste. Hughlett v. Harris, would not furnish him with an adequate i Del. Ch. 349. remedy:

But a purchaser under an execution, who If the person who commits the waste is has got his deed of the land, may proceed not a tenant, the injunction will not be immediately. Litka v. Wilcox, 39 Mich. granted. Thus a person who is not ten. 94. ant in possession, but possesses a right to

$ 652. Same subject. The action of waste lies against a tenant for life or for years, in favor of him only who has the next immediate estate of inheritance in reversion or remainder. The material averments in the declaration, and which the plaintiff must be prepared to prove, are (1) the title of the plaintiff, in stating which he must show how he is entitled to the inheritance as fully and correctly as in a writ of entry on intrusion, or any other writ in which an estate for life or years is set forth in the tenant; (2) the demise, if there be one, or other title of the tenant, but with no more particularity than is necessary in stating an adversary's title ; (3) the quality, quantity, and amount of the waste, and the place in which it was committed, as, whether in the whole premises, or in a distinct part of them, and whether it were done sparsim, as by cutting trees in different parts of a wood, or totally, as by prostrating an entire building. The averment of tenure may be either in the tenet "which the said T. holds," or in the tenuit, “ which he held,as it has reference to the time of the waste done, and not the time of bringing the action. In the former case the plaintiff will recover the place wasted, namely, that part of the premises in which the waste was exclusively done, if it were done in a part only, together with treble damages. But in the latter case, the tenancy being at an end, he will have judgment for his damages alone. If the waste was committed by an assignee of a tenant in dower or by the curtesy, the action, if brought by the heir of the husband or feme, must be against the original tenant, the assignee being regarded only as his bailiff or servant. But if the reversioner has also assigned his inheritance, and the assignee of the tenant for life has attorned, the latter is considered as the tenant, and he alone is liable for waste done by himself. So, if any lessee for life or years commits waste, and afterwards assigns his whole estate, the action of waste lies against the original tenant, and the place wasted may be recovered from the assignee, though he is not a party to the suit, the title of his assignor having been forfeited previous to the assignment. But if the assignee himself committed the waste, he alone is liable to the action. It follows that a general plea of non-tenure is not a good plea to this action; but the defendant may plead a special non-tenure, as, for example, if he was lessee for life, and not a tenant in dower or by the curtesy, he may plead that he assigned over all his estate, previous to which no waste was committed; or, if he was the assignee, he may plead the assignment, and that no waste had subsequently been committed.1

$ 653. General issue. The plea usually termed the general issue, in the action of waste is, that the defendant “ did not make any waste, sale, or destruction in the messuage and premises aforesaid, as the plaintiff in his writ and declaration has supposed." This plea has been said to put in issue the whole declaration ;? but the better opinion seems to be, that it puts in issue only the fact and circumstances of the waste done, to which point alone, therefore, is any evidence admissible. If the defendant would contest the plaintiff's title, or would show any matter in justification or excuse, such as, that he cut the timber for repairs, or the wood for fuel, or that his lease was without impeachment of waste, or that he has subsequently repaired the damage prior to the commencement of the action, or that he did the act by license from the plaintiff, or has any other like ground of defence, he must plead it specially.3

§ 654. Case for waste. In an action on the case, in the nature of waste, brought by a landlord, whether lessor, heir, or assignee, against his tenant, whether lessee or assignee, their respective titles are not set out with so much precision as in the action of waste, but their relations to each other are stated in a more general manner; namely, that the defendant was possessed of the described premises during the period mentioned, and held and occupied them as tenant to the plaintiff to whom the reversion during the same period belonged, under a certain demise previously made, and for a certain rent payable therefor to the plaintiff. But if the defendant is tenant for life, and the plaintiff is remainder-man or reversioner, it seems necessary to set forth the quantity of the defendant's estate; but it is not necessary to state the quantity of the estate of the plaintiff; nor is it expedient; for if he does state it, and mistakes it, the variance will be fatal. (a)

See Jackson on Real Actions, pp. 329–337, where also may be found precedents of the various counts in this action. See also 2 Inst. 301-302 ; 2 Saund. 252 a, n. (7) by Williams.

2 This opinion of Serjeant Williams, 2 Saund. 438, n. (5), founded on an implied admission of the point in a case in 2 Lutw. 1547, is shown to be not well founded, in Jackson on Real Actions, pp. 338, 339.

8 2 Saund. 338, n. (5) by Williams ; Jackson on Real Actions, pp. 339, 340. 4 2 Saund. 252 c, d, n. by Williams.

(a) In most States the common-law ac. statutes, but the main features of the old tion of waste is more or less changed by common-law action are generally preserved.

§ 655. Pleadings. In both these kinds of action, it seems necessary to state in the declaration the special waste complained of, as, whether it were voluntary or not, and whether in the house, and in what part thereof, or whether in the fences or trees, and the like; (a) and the plaintiff will not be allowed to give evidence of one kind of waste under an averment of another; as, if the defendant is charged with uncovering the roof of the house, the plaintiff will not be permitted to prove waste in the removal of fixtures; and if the averment is, that the defendant permitted the premises to be out of repair, evidence of acts of voluntary waste is admissible. But it is not necessary in either form of action for the plaintiff to prove the whole waste stated; nor, in an action on the case, is there any need that the jury should find the particular circumstances of the waste, or find for the defendant as to so much of the waste as the plaintiff fails to prove ; for in this action the plaintiff goes only for his damages.2 $ 656. What plaintiff must prove.

Under the general issue of not guilty, in the action on the case, the entire declaration being open, the plaintiff must prove (1) his title, and the holding by the defendant, as alleged ; (2) the waste complained of; and (3) the damages. But it is to be observed that in the United States

1 Saund. 252 d, n. by Williams ; Edge v. Pemberton, 12 M. & W. 187; ante, vol. i. $ 52. If the waste is only permissive, it seems that an action on the case in the nature of waste does not lie, the remedy, if any, being only in contract. Countess of Pembroke's Case, 5 Co. 13 ; Gibson v. Wells, i New Rep. 290 ; Herne v. Bembow, 4 Taunt. 764; Jones v. Hill, 7 Taunt. 392; Martin v. Gislam, 7 Ad. & El. 540. But this action lies for waste done by a tenant, holding over after the expiration of his lease. Kinlyside v. Thornton, 2 W. Bl. 1111; Burchell v. Hornsby, 1 Čampb. 360.

2 2 Saund. 252 d, e, n. by Williams.

It is necessary to prove a legal title in the Phila. 564. The action on the case in the plaintiff.

nature of waste was devised to avoid the Thus where one had lands granted him defective and inadequate remedy afforded by act of Congress but the legal title did by the action of waste at common law, and not vest in him till the patent and sur- as modified by the Statute of Marlbridge, vey had been made, it was held that he 52 Hen. III. c. 23, and by 6 Edw. I. c. 5, had no action of waste till he acquired and to provide an effectual remedy against such legal title. Whitney v. Morrow, 34 tenant or stranger where no privity exists. Wis. 644.

Dickinson v. Mayor, &c. of Baltimore, 48 But the privity of estate required by the Md. 583 ; 4 Kent, Com. 83; Taylor, old action of waste, is not necessary in the Landl. & Ten. § 688 ; 1 Washburn, Real action on the case for waste as it is estab- Prop. 153. lished in most of the States, and whenever (a) The Court, in Strout v. Dunning, 72 an action of waste could be maintained at Ind. 343, say, “We cannot say that it is common law, for an injury committed by waste in a tenant for life to plough up grass, one privy in estate to the plaintiff, the rem. nor that destroying or selling timber is edy for such an injury committed by a waste without some description of the tim. stranger is by an action on the case in the ber destroyed or sold, or some statement of nature of waste. Patterson v. Cunliffe, 11 the attending circumstances.”

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