EARLY AND MODERN REMEDIES AT LAW 51 



but the action on the case has a wider use than the old 

 action of waste had. 



Under the common law no one but. a person having an 

 immediate estate of inheritance could bring the action 

 of waste. l There must be privity of estates between the 

 parties to the action. 2 A contingent remainderman could 

 not maintain an action for waste already committed but 

 might obtain equitable relief against future waste. The 

 party bringing the action must have the legal title or a 

 right to it or be a trustee. Although the estate must be 

 in the plaintiff at the time of waste to support the action, 

 it need not continue until the action was brought. Neither 

 a person having a future life estate, nor a mortgagee, could 

 bring the action for the reason that the estate of each might 

 be defeated and thus no injury would be suffered. In some 

 American states many of the restrictions of the old com- 

 mon law regarding the action of waste have been removed 

 by statute. 3 After the passage of the statutes of Marl- 

 bridge and Gloucester the action might be brought against 

 tenants for life or years as well as against those estates 

 which were -created by law, but there is a conflict of opinion 

 as to the extent to which these two statutes affect proced- 

 ure in the United States. 4 



54. Modern Remedies at Law. The action on the 

 case for damages, unlike the old writ of waste, may be 

 maintained where the waste alleged might also form the 

 basis of an action for a breach of an express covenant or 

 of a promise implied by law. 5 Although earlier cases 

 held that action on the case did not he for permissive waste, 



1. 40 Cyc. 527; Co. Litt. 218b. 



2. Co. Litt. 53b; 2 inst. 301; Foot v. Dickinson, 2 Mete. (Mass.) 611; Bates v. 



Shraeder, 13 Johns (N. Y.) 260; Lauder v. Hall, 69 Wis. 331; 1 Washburn Real 

 Prop. 118. 



Cf. Coale v. Hannibal etc. K. R. Co. 60 Mo. 227 (Tenant at will has no action vs. 

 stranger for fire damage, he not being liable for waste). 



3. 40 Cyc. 529. 



4. To effect that they are not in force: Moore v. Ellsworth, 3 Conn. 483; Smith v. 



Follansbee, 13 Me. 273; Parker v. Chambiiss, 12 Ga. 235; Woodward v. Gates, 

 38 Ga. 205, 95 Am. Dec. 385; Moss Point Lumber Company v. Board of Sup. of 

 Harrison County, 89 Miss. 448, 42 So. 290; That they are in force in part or 

 whole: Dozier v. Gregory, 46 N. C. (1 Jones Law) 100; Sackett v. Sackett, 25 



Mass. (8 Pick.) 309; See also Alexandr's British Statutes in force in Maryland, 



pp. 46, 83. 



5. Moere v. Townshend, 33 N, J. L. 284, 



