If

under authority of law, the amount realized by the sale will ordinarily be taken as their true value. But it has been held in England, that the Jury are not bound to find the value at the time of the conversion, but they may find, as damages, the value at a subsequent time, at their discretion.2 In this country, however, the courts are inclined to adhere to the value at the time of the conversion, unless this value has subsequently been enhanced by the defendant. But if the property has been restored to the plaintiff, this will go in mitigation of the damages; 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. 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 responsi ble 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.5 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.6

1 Whitmore v. Black, 13 M. & W. 507. If the goods have been converted into money by the defendant, to his own use, this sum, with interest, will be the lowest measure of damages. Ewart v. Kerr, 2 McMullen, 141.

2 Greening v. Wilkinson, 1 C. & P. 625. And see Cook v. Hartle, 8 C. & P. 568; Whitehouse v. Atkinson, 3 C. & P. 344.

3 Supra, tit. DAMAGES, § 276.

4 Greenfield Bank v. Leavitt, 17 Pick 1. And see Pierce v. Benjamin, 14 Pick. 356, 361; Yale v. Saunders, 16 Verm. R. 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.

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

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

WASTE.

§ 650. 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." 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. The old action of waste still lies in some of the United States, the Statute of Gloucester, 6 Edw. 1, c. 5, having been brought over and adopted in those States as part of the Common Law;2 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

§ 652. 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

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. R. 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.

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 nontenure 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. 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. 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 there

1 See Jackson on Real Actions, p. 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, note (7), by Williams.

2 This opinion of Sergeant Williams, 2 Saund. 238, note (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, p. 338, 339.

32 Saund. 338, note (5) by Williams; Jackson on Real Actions, p. 339,

for 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

$655. 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; 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 inadmissible.2 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.3

§ 656. 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,

1 2 Saund. 252, c, d, note by Williams.

22 Saund. 252, d, note by Williams; Edge v. Pemberton, 12 M. & W. 187; Ante, Vol. 1, § 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. 3 2 Saund. 252, d, e, note by Williams.