
    Richmond.
    Dejarnatte v. Allen & wife.
    
    (Absent Cabell, P.)
    1. Husband, during the life of Ms wife, takes the benefit of the act for the relief of insolvent debtors, and surrenders and conveys to the sheriff his interest in his wife’s real estate. The sheriff sells, and conveys the said interest to the purchaser. The purchaser is a tenant for life, and may be sued in an action of waste by the husband and wife.
    2. In an action of waste by husband and wife against the alienee of the husband’s interest in his wife’s land, the declaration alleges that the reversion in fee is in the wife. This is, in effect, to allege, that the reversion in fee is in the husband and wife; and if it is not sufficient on demurrer, is cured by the statute of jeofails.
    
      3. The verdict finds the defendant guilty of the waste, as charged in the declaration, and the plaintiffs waiving a recovery of the place wasted, the verdict proceeds to assess the damages for particular parts of the waste charged, but does not set out the locus in quo, or find any part of the issue for the defendant. The verdict is sufficient.
    4. In an action of waste, the verdict finds for the plaintiff and assesses damages; but subject to the opinion of the Court, whether, upon certain facts stated, the plaintiff can maintain the action. This is a general verdict.
    This was ah action of waste brought in the Circuit Court of Caroline county by Wilson Allen and Sophia his wife, against Elliott Dejarnatte. The declaration contained seven counts. The first count alleges that the defendant held, and still holds, a certain messuage, dwelling-house and lands lying in the county of Caroline, known by the name of Pole Cat, as tenant thereof to the plaintiffs, for the life of the said Wilson Allen, and of which the reversion is in the said Sophia Allen, wife of the said Wilson Allen, and her heirs. And that the said Elliott Dejarnatte, contriving, &c. to injure the said Sophia Allen, wife of the said Wilson Allen, and her heirs, in her reversionary estate and interest in the said messuage, &c., whilst the same so were in the possession of the said Elliott Dejarnatte, as tenant thereof to the plaintiffs as aforesaid, on, &c., at the county aforesaid, wrongfully permitted the dwelling-house and other houses on the said land, to decay, &c., for want of proper and necessary repair; that he did, then and there, commit waste of said land, by unlawfully and improperly changing wood land into arable land, arable land into meadow land, and meadow land into arable land; that he committed further waste of the said land by removing therefrom the straw, forage and litter, and other manures raised upon the said land, and which he should have used upon it. That he committed further waste on the land by grazing the same in an unusual manner, &c. And that he committed further waste by cutting down and carrying away timber trees, to the disinheriting of the said Sophia, wife of the said Wilson Allen, whereby the said Sophia is greatly injured in her reversionary estate and interest in the said messuage, dwelling-house and land, with its appurtenances.
    The other counts only vary from the first, in each charging one of the species of waste set out in the first; and one of them charges waste in the cutting down of eight hundred acres of woodland, part and parcel of said tract.
    The defendant pleaded the general issue; and on the trial the verdict was as follows: We of the jury find the defendant guilty of the waste in manner and form as in the declaration of the plaintiffs is alleged, (and the plaintiffs having here in Court waived the recovery of the place wasted,) we find for the plaintiffs six hundred dollars in damages, for wasting and cutting down and destroying the timber trees, part of the inheritance. And in regard to the waste alleged in converting and changing the character and description of the land in the declaration mentioned we find for the plaintiffs one dollar in damages. But these findings are subject to the judgment of the Court upon the question of law, whether the plaintiffs can maintain this action under the following facts and circumstances, viz: The verdict then proceeds to state, that the plaintiff, Wilson Allen, being seized in right of his wife, the plaintiff, in fee of the lands in the declaration mentioned, took the benefit of the act for the relief of insolvent debtors, when he surrendered in his. schedule his life estate in this tract of land, containing 800 acres, subject to an elegit in favour of Daniel Dejamatte, for about three years; and he executed a deed conveying his life estate in said land to the sheriff. The sheriff afterwards sold Allen’s interest in the land according to the directions of the act of Assembly, when it was purchased by the defendant Elliott 
      
      Dejarnaite, to whom the sheriff regularly conveyed it, subject to the extent in favour of Daniel Dejarnaite. By virtue of all which the said defendant became enti£q jjaye an(j £Q },0]¿ tfje sajd ]an(Js, an(J thereupon entered and became seized thereof, and has always 7 J since so continued entitled and seized, and so continues to the present time. Upon this verdict the Court gave a judgment in favour of the plaintiffs for 1803 dollars, being treble the amount of the damages assessed by the jury. And thereupon Dejarnaite applied to this Court for a supersedeas, which was awarded.
    
      Mor son, for the appellant.
    The declaration shewed no legal cause of action. It is true it was not demurred to ; and a verdict may cure a defective statement of a case. But a verdict cannot cure a defective case. Winston v. Francisco, 2 Wash. 187; Chichester v. Vass, 1 Call 83. Taking these cases as guides, the case at bar is a defective case.
    The declaration says that Dejarnaite is the tenant of Allen and wife, for the life of Allen, with reversion to the wife. This is a radical error. The law does not allow a reversion in the wife, but it is in the husband and wife ; and when there is a forfeiture of the preceding estate, it is to the husband and wife. Green v. Cole, 2 Saund. R. 228, note 2; Roscoe on Real Actions 186, 28 Law Libr. This error could not have been cured by the verdict; and if it could have been thus cured, the verdict has failed to do it; but the error is there repeated. It could not have been cured by the verdict because the plaintiff must state his case as it is, and prove it as laid. 2 Saund. R. 238, note 5. It has not been cured, for the verdict finds the seizin to have been in the husband in right of his wife. This is an error on the other side. A. husband in right of his wife is never seized alone, but it is a joint seizin of husband and wife. 2 Saund. R. 236-7, note 4. Nor does our statute of jeofails cure the defect in the declaration. Ross v. Milne, 12 Leigh 204.
    This Court in several cases of special verdicts where there was something of uncertainty only, has said that no judgment could be given upon them. M'Lean v. Capper & als. 3 Call 367; Cropper v. Carlton, 6 Munf. 277. A special verdict must make out the case completely. Here the title found by the verdict could not exist in law, and therefore could not afford a foundation for a judgment. But if the title could exist in law, the verdict would, according to the cases cited, be insufficient for uncertainty; a special verdict never being helped by intendment. Brown v. Ferguson, 4 Leigh 37.
    In this case the wife of Allen being alive he is only tenant by the curtesy initiate; and on his insolvency Dejarnatte purchased his title at the sale made by the sheriff. Now it is well settled law, that a tenant by the curtesy initiate is not impeachable for waste. Dejarnatte, therefore, coming in by operation of law, and holding the title of Allen by virtue of our insolvent act, which gives the purchaser the estate as it was held by the debtor, must also be unimpeachable for waste; or else he does not take the whole of the debtor’s estate, but only a part of it. In the analogous case of a tenant by elegit taking the husband’s estate held in right of his wife, we see that he is unimpeachable for waste. Roscoe on Real Actions 113, 28 Law Libr.; Scott v. Lenox, 2 Brock. R. 57. And if he, though holding but for years, yet because he comes into the estate by operation of law, is not within the statute of Gloucester, a fortiori, the assignee of the debtor husband, who comes in likewise by operation of law, must be equally exempted from the operation of that statute, or of our own, which is like it. So the assignee of a tenant by the curtesy consummate, is not liable for waste, though the tenant himself may be sued by the heir. 8 Bac. Abr., title Waste, p. 400; Roscoe on Real Actions 110, 28 Law Libr.; 3 Thomas’ Coke 247, note R. The reason of the rule applied to these cases is, that statutes jnfjjct¡ng penalties and forfeitures are construed strictly, ancj w;p not extended further than the strict letter of the statute will carry it.
    In this case the verdict is a general assessment of damages, and no place in which the waste was committed is specified. This is clearly erroneous. 2 Saund. R. 250, note 6. Moreover, the verdict finds only a part of the waste charged in the declaration, and does not find for the defendant as to the waste charged and not proved. A reference to the forms will shew what particularity is required in the verdict. 2 Saund. R. 241.
    Formerly in detinue the verdict was defective if it found a part of the property claimed in the declaration for the plaintiff, and did not find for the defendant as to the residue. Butler v. Parks, 1 Wash. 76; Higgenbotham v. Rucker, 2 Call 313; Cornwell v. Truss, 2 Munf. 195. The two last cases held that it was error to find a general valuation of all the articles claiiped in the declaration, and that there should be a valuation of each article separately. This is now changed by statute. If such was the law in detinue, it must be equally so in waste; and there is no statute changing the law in relation to this action.
    If the plaintiffs had not waived the right to recover the place wasted, there could be no doubt that the verdict in this case must be held to be fatally defective; and this waiver cannot remove the objection. Redfern v. Smith, 9 Eng. C. L. R. 407.
    
      Robinson and Lyons, for the appellees.
    In this case there can be no difficulty about the title of the parties. Dejarnatte, by his purchase, took such an estate in the land as Allen could depart withal. He was therefore tenant pur auter vie, and is embraced in the act 1 Rev. Code, ch. 117, § 1, p. 462. Not having the fee in the land, he must be tenant for life or for years, and therefore liable for waste. The reversion was in Mrs. Allen, and the action was therefore necessarily in the name of the husband and wife.
    It may be true that Allen and wife cannot sue Allen, yet it does not follow that they may not sue Dejarnatte. It is also true that we cannot charge Dejarnatte with waste committed by Allen; but the question here is, may he not be charged with waste committed by himself? There are numerous cases in which a party cannot sue himself, and yet he may sue his assignee. The objection is not to the right of the parties, but the obstacle to suing the husband arises out of the forms of proceeding at common law. It is clear that the husband, whether tenant by the curtesy initiate or consummate, has no right to commit waste. 3 Tho. Coke 305. In the last case, there being no obstacle to a suit against him by the heir, he may be held liable for waste. In the first he is protected, not because he has a right to commit waste of his wife’s estate, but because he cannot be sued. The estate which Allen could depart withal, and which passed to his assignee Dejarnatte, was not that protection to his improper acts, arising out of the rules of the common law, which forbade him to be sued by himself or his wife, but the interest which the law recognized as existing in him in his wife’s estate. When, therefore, the obstacle arising out of the form of proceeding is removed, the security to the wrong doer is at an end; and accordingly we see, that not only the tenant by the curtesy may be sued by the heir; but though, for the reason before stated, a tenant in tail, after possibility of issue extinct, cannot be sued for waste, yet his assignee may be sued. 2 Inst. 301, <§» 11.
    The statute of Gloucester, 2 Inst. 299, and our own act, 1 Rev. Code, ch. 117, p. 462, subjects all tenants, for life or for years, to this action for waste. If, then, . . JJejarnatte is not to be shielded by the peculiar nature of the estate he derived from the husband, as we think ajjim(jant]y evident he is not, then he certainly comes within both the letter and spirit of the law. He is a tenant for life, and though a tenant pur auter vie, he is equally within the statute. 2 Inst. 300, § 3.
    The objection to the finding of the jury is not tenable. The plea is not guilty, and the jury find the defendant guilty of all the waste charged in the declaration. There would, therefore, have been no propriety in finding the defendant not guilty of a part, after they had found him guilty of all.
    ■It is said that the declaration is defective. The objection taken to it is hypercritical; but it is unnecessary to consider the question, as it is settled by the act of jeofails of 1819. 1 Rev. Code, ch. 128, § 103, p. 511; Cleek v. Haines, 2 Rand. 440; Vaiden v. Bell, 3 Id. 448; Bailey v. Clay, 4 Id. 346; Lewis v. Adams, 6 Leigh 320. These cases are on general verdicts. The objection is, that the declaration states the reversion as in Mrs. Allen, and it is insisted that it is in Allen and wife. If this is an inevitable conclusion of law, it is not necessary to be stated.
    The verdict in this case is a general verdict. It is a general finding in favour of the plaintiffs, unless the Court shall be of opinion, upon certain facts found, that the action cannot be maintained. The finding is for the plaintiff, as to all matters stated in the declaration. It is obvious the jury did not find all the facts which made up the plaintiff’s case. They find for them, unless upon certain facts set out as the grounds of defence, the plaintiffs cannot maintain the action. The statement of facts is the defendant’s case; and if they do not defeat the action the general verdict stands. The whole question is, whether the facts stated shew that the plaintiffs cannot maintain this action. Now we have a statute which gives an action of waste against . r \'c every tenant for life. Dejarnatte is a tenant lor lile, aud has committed waste. He must then shew that _ T the statute does not apply to him. How does he attempt this? We are told that a tenant by elegit is not liable for waste, and the case of Scott v. Lenox, 2 Brock. R. 57, is referred to. In that case, Judge Marshall relieved the tenant with hesitation, and only on the ground of authority. He cites Coke Litt. 54 a. But Coke does not tell us that a tenant pur aider vie is not within the statute, but he tells us the contrary. Dejarnatte is but a tenant for the life of Allen; and the statute makes no exception in favour of a purchaser of a husband’s life estate at a sheriff’s sale. In every case, there is a remedy against the tenant for life, except where the remedy is against his assignor. 1 Cruise’s Dig. 129.
    
      Patton, for the appellant.
    The action of waste is exceedingly penal, and for that reason the Courts have been astute in requiring the greatest precision in the pleadings and entries. It must be shewn by the plaintiffs, that in contemplation of the statutes on this subject, Dejarnatte, holding the title he holds, is liable to the action; and being so liable, that the proceedings in the cause are strictly regular.
    Although in fact in this action all objections are substantial, yet let us consider first those which are said to be technical.
    We say this is a special verdict, which if it is insufficient, should be set aside and a new trial awarded; or if it shews that there is no cause of action, there should be a judgment for the defendant. The only difference between this verdict and every other special verdict is, that here the damages are found first and then the facts are stated; whereas, generally, the order is reversed, and the facts are first found and then the damages are assessed. The Court must presume that all the facts are stated, unless the contrary appears from the verdict. I refer for cases which apply to this general remark, as ag tQ wjiat follows, to 2 Tate’s Analytical Digest, title Venire facias de novo, p. 246.
    On this verdict, which refers the law of the case to the Court, there should have been a judgment for the defendant.
    First. There is no proof of waste. When the question of law is referred to the Court, the facts which constitute the waste proved should be stated; because what is waste, is a question of law for the Court, which the Court cannot decide unless the facts are stated.
    Second. As to waste committed after the institution of this suit. The verdict finds possession by the defendant to the time of trial. The waste may therefore have been committed after the suit was brought.
    The verdict and judgment are defective in not finding the place where the waste was committed, and for the defendant where no waste was proved to have been committed. The case of Redfern v. Smith, 9 Eng. C. L. R. 407, was a general verdict for £ 50 damages, but it did not find the place wasted; and although the plaintiff was satisfied with the verdict, yet on the motion of the defendant to set aside the verdict for this cause, the Court held that the count must set out the places wasted specially, and the verdict must respond specially; and this not having been done, the verdict must be set aside.
    Here the verdict finds that waste was committed in cutting down timber trees and changing the land. It is silent as to the other half dozen kinds of waste charged in the declaration. The declaration too charges waste by converting wood land into arable, and meadow into arable. Which does the verdict refer to ?
    The verdict should have found for the defendant in respect to the places not wasted. The law intends that the rights of both parties should be settled by the case. Green v. Cole, 2 Saund. R. 250, note 6. It is said the defendant is guilty of all the waste charged in the declaration. But the verdict shews that it does not find all the waste charged. It has not found for the defendant as to any place ; nor has it found for the plaintiffs as to any particular place.
    The declaration is defective because it alleges a title in Mrs. Allen, which is impossible in law. I shall not contend that this defect would have been fatal on a general verdict; perhaps it would have been cured by the statute. By the common law the plaintiff shewed his title and how it arose. As to any thing not alleged which was necessary to be proved, I admit it is cured. But when the plaintiff states a case which is defective, the Court cannot presume that the plaintiff proved a case different from that stated in his declaration. Ross v. Milne, 12 Leigh 204. But moreover the statute does not apply to a special verdict.
    The special verdict sets out a title which does not authorize the plaintiffs to maintain this action. No case has been found which holds that an action of waste may be maintained for an injury done to the inheritance of the wife by the husband or his assignee ; and there is a legal incongruity in maintaining the action, arising out of the relation of husband and wife. To maintain waste there must be a tenant for life or years, and a person entitled to the reversion in fee under whom the tenant claims either by grant or operation of law, except in the case of assignees. Now the husband’s interest in the wife’s estate is to take the rents and profits. He has no title in her estate during her life. Until her death he is seized in fee with his wife in right of his wife, and for that reason he has a right to commit waste; and no case has been found in which a writ of prohibition or process in chancery has restrained him. To sustain these general views, I refer to 10 Bac. Abr., title Waste, letter H, p. 440-48; Roscoe on Real Actions, p. 111, 28 Law Libr.
    Where the wife is tenant for life and the husband commits waste and dies, the wife is liable. But if the wife dies, the husband is not liable because he is in in right of his wife. 2 Bac. Abr., title Curtesy, letter E, p. 561. It is impossible, therefore, that waste can be committed on the wife’s estate by the husband, or by any person claiming under him. Whether the action is brought against the husband or his assignee, the place wasted is recovered, and then the effect would be that the estate would go back to the husband.
    It is said that though tenant in tail after possibility of issue extinct is not liable for waste, yet his assignee is. It is clear then that such tenant himself is not liable. Williams v. Williams, 12 East’s R. 209; Bowles' Case, 11 Coke’s R. 80. And so on the same principle the husband representing his wife is not liable.
    The assignee of the husband, whether by grant or by operation of law, must take all the estate of the husband ; and must hold such estate as the husband held it. The statute of Gloucester, 2 Inst. 300, made tenant by the curtesy liable to the action of the heir, because it was doubtful whether he was liable at common law. These tenants and also tenants in dower are tenants for life, yet in contemplation of this statute they are not ; and the action must be against them under the words of the statute, and cannot be maintained against their assignee. Id. 302; 3 Bac. Abr., title Curtesy, letter F, p. 18; Walker's Case, 3 Coke’s R. 23 b. This is for want of privity between the reversioner and the assignee of the tenant.
    Although the assignee is not liable to this action, he is not therefore free from all restraint upon his conduct. An action on the case for waste would possibly lie. Indeed, I suppose that any one holding the estate of another would be liable for an injury to it. But the action of waste is an action arising out of the peculiar relations of the parties. There are cases, however, in which neither the action of waste nor on the case would lie. Such is that of the husband. He is possessed in fee with his wife; and therefore cannot be liable for waste. Nor is this a strange principle. The assignee of a lessee was not at common law liable to an action by the lessor or his assignee. The lessor could sue the lessee after the assignment, but not the assignee. This case has been altered by the statute, and the assignee of the lessee may now be sued. But the statute of waste has not given the remedy against the assignee.
    Cases have already been cited to shew that nothing is to be left to inteudment in special verdicts. In this case the defendant is not a tenant for life of the land. He is the assignee of Allen's interest; and Allen, though he was entitled to enjoy the profits of his wife’s property, had no estate in the land. The defendant was not, therefore, tenant for life of Allen and wife. Allen was not tenant for life, but tenant in fee with his wife. 'The averment in the declaration of the defendant’s tenancy was therefore disproved by the rule of law. If it be said that the declaration is cured by the verdict, still the verdict cannot be thus cured; and the verdict finding a title impossible in law, cannot be the foundation of a judgment; or if it be possible in law, it is such as does not subject the defendant to this action.
   Allen, J.

By the first section of the act concerning waste, 1 Rev. Code 462, an action for waste is given against any tenant by the curtesy, tenant in dower, or otherwise for life or years. This section is taken from the statute of Gloucester, 6 Ed. 1, chap. 5. At common law, according to Lord Coke, waste was punishable in three persons, tenant by the curtesy, tenant in dower, and the guardian; but not against tenant for life or for years. 2 Inst. 299. But in this it seems he was mistaken, for tenant for life was punishable for waste at common law. 10 Bacon’s Abr., title Waste, letter H, citing Bracton, lib. 4, c. 18.

rp^g question presented by the case under considerat¡011 j -whether the alienee of the husband who, with 7 / his wife, was seized in fee in right of the wife, is such a tenant for life as by the common law, if according to Bracton, a tenant for life was punishable for waste at common law, or by the statute of Gloucester, could be sued in an action of waste ? We have not been referred to any decision in the English Courts, or our own, which decides the question; and I have not been able to discover any case or dictum which bears directly on the question, in any of the English reporters or elementary writers. The point, indeed, could seldom arise there. The husband and wife being seized in fee in right of the wife, owing to this union of persons by the marriage, the law looking upon them as one person, the alienation of the husband extended to the whole estate of the wife, worked a discontinuance, and the alienee was in of the whole estate of the wife: He did not hold subject to the reversionary interest of the wife, but held the whole fee in his own right; and at common law she was driven to her writ of right or writ of entry cui in vita, until the stat. of 32 Hen. 8, reserved to the wife her right of entry, notwithstanding the alienation of the husband.

By the 20th section of the act concerning conveyances, 1 Rev. Code, p. 368, no man can alien more than he may rightfully pass. Whatever may be the effect of the alienation of the husband of the wife’s estate in fee, whether it would be construed since our statute as passing the whole fee to the alienee subject to, and liable to be defeated by, the wife’s entry; in this case no such question arises; it was a proceeding under the insolvent law, and the surrender and deed purported to be, not of the fee, but of the husband’s life estate.

By the marriage the husband gains a freehold estate in right of the wife, of the lands of which she was seized in fee. Coke Litt. 351. In consequence of the unity of person the husband has the right of possession ; and though he gains only a right to take the rents and profits, he cannot, in consequence of that unity of person, be sued at law by his wife for waste. Strictly speaking, the seizin is in both, yet the husband may alien his possession and the right to the pernancy of the profits ; and such alienation will be good as against himself. Thos. Coke 243, note L.

Does not such alienation create an estate for life in the alienee ? It must endure during the joint lives of husband and wife, and may, if he is tenant by the curtesy initiate, endure during his life. Notwithstanding the wife has not joined, yet as his alienation at common law in fee worked a discontinuance of the whole estate of the wife until avoided by entry, the whole estate of the wife being in the mean time in the alienee; so his alienation now, must have the same effect to the extent of that which he could rightfully pass and lawfully part withal.

That right is, his right to the possession for life or during coverture, and to the pernancy of the profits. To that extent his alienation still operates as a discontinuance of the seizin of the wife, by the creation of a freehold estate in the alienee. Unless this be so, the condition of the alienee must be an anomalous one; he is not the agent of the husband to take the profits for his principal, or his bailiff to enter and hold possession for him. He enters and takes the profits as alienee for his own benefit; the right endures for life; and the freehold must abide somewhere or be in abeyance. It seems to me, we can only reconcile the estate thus created with the principles of the common law in regard to the joint seizin of husband and wife, by treating such separate alienation of the husband as a discontinuance daring life; as at common law his alienation in fee discontinued the whole estate of the wife, and vested it in the alienee. If so, the deed of the husband creates a life estate, and the life-tenant holds, subject to all the incidents of every other life-tenant; one of which, by the words of our statute, is the liability to be punished for waste. The reversion in fee remains with the wife, and the tenant holds under her. It is the same as if she herself had carved a life estate out of her fee. For her husband, with whom she is one, has done so, and by the marriage this he could lawfully do. It would follow, if these views are correct, that the action of waste may be maintained in such a case; and that it is properly brought in the name of husband and wife, for she cannot sue in her own name. And though he may be seized of the reversion with her, as it is a reversion which never can re-unite with the possession during his life, there is no interest in him which could pass to his alienee. Nor can his alienee claim to be exempt from an action of waste because the husband was dispunishable. The exemption of the husband is personal, proceeding from the unity of person, and because the Avife can maintain no action at. law against him. The alienee is vested with all his rights, so far as the subject matter is involved : the right of possession and to take the rents and profits. The law will not presume a wrongful act of the husband to the disherison of the Avife; and if committed by him there is no remedy. To such personal exemption the alienee can set up no pretence. When he commits waste he does an injury to the reversioner, and exceeds the authority which, by law, such a tenant can exercise, and is liable to the action of the one next in reversion.

In conformity with these vietvs, it is said, in 2 Kent’s Comm., Lecture 28, Husband and wife, p. 131, that “if the assignee or the creditor of the husband, who takes possession of the estate, on a sale on execution of his freehold interest, commits waste, the wife has her action against him, in which the husband must join; for, though the assignee succeeds to the husband’s right to , , ° . . the rents and profits, he cannot commit waste with impunity. But if the husband commit waste, the coverture is a suspension of the common law remedy of the wife against him.” And for this doctrine Bab & wife v. Perley, 1 Greenl. R. 6, is cited. That case was an action of trespass on the case, for an injury done to the interest of the wife by wasting the premises. The case was not, technically, an action of waste under the statute of Gloucester; the husband being seized, in right of the wife, the locus in quo was extended by a judgment creditor of the husband; but the general doctrine controlling this case is affirmed by the Court. The Court assimilates that case to one in which the husband had conveyed his interest by deed, and says it would be the common case of a division of a fee-simple estate into a freehold in the alienee and a reversion in the wife; and the alienee, having only a life-estate, could not commit waste, as it would be inconsistent with his estate. Upon principle and authority it would, therefore, seem that the action may be maintained.

It was objected, that the declaration was defective in setting out a defective case; an error which, it is alleged, could not be cured by a verdict. The declaration alleges the reversion to be in the wife. In Green v. Cole, 2 Saund. R. 235, n. 2, it is said, that if husband and wife bring the action, the declaration must state the reversion to be in both : namely, that they are seized of said reversion in their demesne as of fee in right of the wife. Earl of Clanrickard v. Sidney, Hobart’s R. 1. But in that case it was held by two of the Judges against two, that the words “ to the disinheriting” do, after verdict, cure the want of stating the quantity of estate the plaintiff was seized of; but this the annotator thinks questionable.

In the same case, 236, n. 4, it is said that it must be laid to the disinheriting of the wife, for it is her estate that is damnified ; and if alleged to be to the disinherit- ^ wrjt muS{ abate. The objection, it stl’llfes me> would be hypercritical even on a general demurrer. When the reversion is alleged to be in the wife, the conclusion of law is, that they are jointly seized. Here the declaration charges it to be to the disinheriting of the wife, which, in the case referred to, would, in the opinion of two of the Judges, have cured the defect after verdict. The case, as stated, shews that husband and wife were seized of the reversion in right of the wife, for that is the legal consequence of averring that the reversion in fee is in her, and if the omission to aver they were so jointly seized be a defect, it is a defective statement of a good case; and our statute of jeofails cures it after verdict, even though it might have been taken advantage of by a demurrer.

The verdict is said to be objectionable. The verdict is general, so far as it relates to the waste, and finds the defendant guilty of the waste, in manner and form as in the declaration is averred ; but the plaintiff, waiving a recovery of the place wasted, it proceeds to assess the damages for particular parts of the waste. The finding, it seems to me, responds to the whole issue, and finds the party guilty of the waste, charged in the whole, not in any particular part; and as the plaintiffs waived a recovery of the places wasted, it could not have been necessary to set out the locus in quo more particularly, or to find any part of the issue for the defendant; for that would have been inconsistent with the general finding of guilty of the waste, as charged. Nor is it necessary for the protection of the defendant against a future action for the same cause. The verdict and judgment cover all the waste charged.

The facts found, it is said, do not shew that the acts complained of would, in law, amount to waste. The verdict does not purport to be a finding of all the facts necessary to make out the plaintiffs’ case ; it is a general finding in favour of the plaintiffs upon the question of waste, subject to the opinion of the Court, whether, under the state of the title as found, the action could be maintained. Whether the facts in evidence constituted waste in law or not, was a question for the jury, under the instruction of the Court. It has been found, and whether it amounted to waste or not, is not now open for enquiry on this verdict.

The title is, I think, sufficiently found ; for where it is said the husband was seized in fee in right of his wife, it necessarily implies both were seized iti fee in right of the wife. The schedule and deed to the sheriff describe the subject as all the interest of the husband being a life estate in the premises. This estate was vested in the defendant, constituting him a tenant for life, creating an estate to endure either during the joint lives of husband or wife, or during the life of the husband if he was tenant by the curtesy initiate, and as incident to such an estate, subjecting him to an action of waste at the suit of the reversioner.

I think the judgment should be affirmed.

Bhooke, J. The question whether the defendant was liable to an action of waste in this case, depends upon the character of the estate which each of the parties held. It is insisted for the appellant, that Allen was tenant by the curtesy initiate, and not subject to the action of waste until the death of his wife, when ho would be tenant by the curtesy consummate ; and so subject to the action, by the statute of Gloucester, and our act.

The creditor of Allen could get no more than Allen was entitled to; and when Allen's interest was purchased at the sale of the schedule of his property, the purchaser acquired only Allen's interest in it. Allen and wife were the joint tenants in the fee; and Dejarnatte was their tenant for life, and as such liable to an action of waste under the statute. I concur with Judge Allen in wj10]e 0f hjs Opjnion upon this point, and on the details of the proceedings, and think the judgment must be affirmed.

Daniel, J. concurred in the opinion of Judge Allen.

Baldwin, J. dissented.

Judgment affirmed.  