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.1 (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

1 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. ing v. Blount, 20 Ala. 694. Where a plaintiff has obtained judgment in trover against one who has converted his goods, he may sue another who has subsequently converted the same goods, and recover the full value of the goods. But if the prior judgment has been satisfied in part, such satis faction should be deducted from the judgment in the second suit, and if the prior judgment is satisfied in full, this devests

the property of the plaintiff and he cannot sue a second time. Atwater v. Tupper, 45 Conn. 144.

Judgment recovered (though without satisfaction) in trover for conversion by a wrongful sale is a bar to an action for money had and received for the proceeds of the same sale, against another, whether a party to the conversion or not. Buckland v. Johnson, 26 Eng. Law & Eq. 328.

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; 2 (b) 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. (c)

1 2 Bl. Comm. 281; Co. Lit. 52 b, 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, Eq. Jur. § 917.

(a) See Cruise's Digest (Greenleaf's ed. 1856), vol. i. p. 120 (115), tit. iii. c. 2, §§ 1-76, and notes. Plaintiff must have the legal title. Gillett v. Treganza, 13 Wis. 472.

(b) Cruise's Digest (Greenleaf's ed. 1856), ut supra, § 26, and n.

(c) The case which must be made out where the reversioner applies to a court of equity to have the tenant enjoined from committing waste, is in most respects similar to that which would be necessary to support an action at law, but it must also be shown that the plaintiff's action at law would not furnish him with an adequate remedy.

If the person who commits the waste is not a tenant, the injunction will not be granted. Thus a person who is not tenant in possession, but possesses a right to

dig ores, is not guilty of committing waste when he takes more ore out than his contract allows him. Grubb's Appeal, 90 Pa. St. 228.

The complainant in a bill praying an injunction of waste must also show title in the land, and one who is only an attaching creditor or judgment creditor, or a holder of a certificate of purchase under an execution before he gets his deed, has not such a title as will maintain the bill. Law v. Wilgees, 5 Biss. C. C. 13.

Nor will such a title maintain a bill for an account of waste. Hughlett v. Harris, 1 Del. Ch. 349.

But a purchaser under an execution, who has got his deed of the land, may proceed immediately. Litka v. Wilcox, 39 Mich. 94.

§ 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; 2 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.1 (a)

1 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.

32 Saund. 338, n. (5) by Williams; Jackson on Real Actions, pp. 339, 340. 42 Saund. 252 c, d, n. by Williams.

(a) In most States the common-law action of waste is more or less changed by

statutes, but the main features of the old 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, 1 New Rep. 290; Herne v. Bembow, 4 Taunt. 764; Jones v. Hill, 7 Taunt. 392; Martin v. Gillam, 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 Campb. 360. 2 2 Saund. 252 d, e, n. by Williams.

It is necessary to prove a legal title in the plaintiff.

Thus where one had lands granted him by act of Congress but the legal title did not vest in him till the patent and survey had been made, it was held that he had no action of waste till he acquired such legal title. Whitney v. Morrow, 34 Wis. 644.

But the privity of estate required by the old action of waste, is not necessary in the action on the case for waste as it is established in most of the States, and whenever an action of waste could be maintained at common law, for an injury committed by one privy in estate to the plaintiff, the remedy for such an injury committed by a stranger is by an action on the case in the nature of waste. Patterson v. Cunliffe, 11

Phila. 564. The action on the case in the nature of waste was devised to avoid the defective and inadequate remedy afforded by the action of waste at common law, and as modified by the Statute of Marl bridge, 52 Hen. III. c. 23, and by 6 Edw. I. c. 5, and to provide an effectual remedy against tenant or stranger where no privity exists. Dickinson v. Mayor, &c. of Baltimore, 48 Md. 583; 4 Kent, Com. 83; Taylor, Landl. & Ten. § 688; 1 Washburn, Real Prop. 153.

(a) The Court, in Strout v. Dunning, 72 Ind. 343, say, "We cannot say that it is waste in a tenant for life to plough up grass, nor that destroying or selling timber is waste without some description of the timber destroyed or sold, or some statement of the attending circumstances."