Northampton County NcArchives Court.....Robert Blick, Peterson Browne V. 1819 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 3, 2009, 7:07 pm Source: Nc Reports Written: 1819 Peterson Browne v. Robert Blick, administrator of Priscilla Hilliard, deceased From Northampton November Term 1819 An action of waste being brought against tenant for life by devise, the tenant pleaded the general issue, and pending the suit, died. The suit abates. It cannot be revived against the representatives of the tenant, either under the provisions of the act of 1799, ch. 18, or of the act of 1805, ch. 8. The action of waste is not within the words of either of those acts: and it will not be considered within their Equity; because, 1. The action is given by the statute of Gloucester, and that is a highly penal statute. The place wasted is forfeited, and treble damages are given. The action must therefore be considered as in some degree vindictive, especially as against the representatives of the wrongdoer. 2. Those acts aim in all cases to apportion the redress to the wrong done as nearly as possible. 3. Those acts are reciprocal in their operation. They confer on the representatives of either party, dying, the like right to prosecute or defend suits; and contemplate only those cases wherein the right may be equally and reciprocally exercised. There is nothing in the theory or principles of the actions enumerated in those acts which forbid their being revived for the Plaintiff, or against the Defendant; but the writ of waste is founded upon principles peculiar to itself, and more especially dependent upon a privily between the reversioner and tenant. No one shall have the action of waste, unless he hath the immediate estate of inheritance; and between the heir of the reversioner and the tenant who commits waste there is no privity, the waste being committed in the life time of the reversioner. This was an action of waste brought against Priscilla Hilliard; and by the writ she was summoned "to answer unto Peterson Browne in a plea, why, in the houses, lands and woods, in the county of Northampton, which she holds and is legally entitled to for the term of her life, by the devise of John Hilliard, her late husband, deceased, she has made waste, spoil and destruction, to the disinheriting of him the said Peterson Browne, against the provisions of law, and to the damage of him the said Peterson one thousand Pounds." The Defendant pleaded the general issue and statute of limitations." Pending the suit, Priscilla Hilliard, the Defendant, died; her death was suggested on the record, and a scire facias was issued to Robert Blick, her administrator, to make him a party and revive the suit, he appeared, and pleaded in abatement, "that the action could not be revived against the administrator of Priscilla Hilliard, his intestate." The Plaintiff replied, "that Priscilla Hilliard, against whom the action was brought, had a life estate in the lands on which the waste alleged was committed, which expired by her death." To this replication the Defendant demurred, and the Plaintiff joined in Demurrer. The Court sustained the plea in abatement, and the Plaintiff appealed. Mordecai, in support of the demurrer. Seawell, for the Plaintiff. Taylor, Chief-Justice: My first impression upon the argument of this case was in favor of the Plaintiff; but upon a careful examination of all the cases cited, and after a full discussion of the subject amongst my brothers, I concur with them in opinion that judgment ought to be rendered for the defendant. The case is shortly this: The Plaintiff sued out a writ of waste against Priscilla Hilliard, who was in possession of the land as tenant for life, under a devise from her husband. Pending the suit she died, and a scire facias issued against her administrator to revive the suit. To this he has pleaded that the action cannot be revived against him; the Plaintiff replies that the intestate was tenant for life, and the Defendant demurs. The question to be decided is, whether the writ of waste is comprehended in the words or spirit of the acts, which provide for the revival of suits for or against the representatives. The act of 1899, provides against the abatement of actions of ejectment, detinue, trover, trespass where property real or personal is in contest, and such action of trespass is not merely vindictive. The act of 1805 preserves in like manner, the actions of trespass vi et armis, and trespass on the case, instituted to recover damages done to property either real or personal. The writ of waste is not within the words of either of these acts; but as it is an action in which real property is in contest, and is not merely vindictive, may it not be within the Equity of the act of 1799, although it be not an action of trespass? And as it is instituted to recover damages done to real property, may it not in like manner be within the Equity of the act of 1805? The solution of these questions may be facilitated by considering the nature of the action. Whether it lay at Common Law against, a tenant for life, such as the Defendant's Intestate was, is not clearly ascertained. Lord Coke asserts that it did not, upon the principle that the party creating the estate might have provided against the commission of waste; and that it lay against those tenants only whose estates were created by the Law, as tenants in dower and by the courtesy. 2 Inst. 299. The authority of Bracton is the other way. 2 Reeve 149. But whichever opinion may be correct, it is certain that a new remedy is given by the statute of Gloucester, and that the action now brought rests its foundation on that statute. The words of it are, "He that shall be attainted of waste shall lose the thing that he hath wasted, and moreover, shall recompense thrice so much as the waste shall be taxed." The word "attaint," which is used in the law to denote the conviction of a crime, the forfeiture of the place wasted, and the treble damages, bespeak this to be a highly penal statute; and when the remedy under it is contrasted with that at Common Law, (which was damages merely, and the appointment of a superintendent) it may be almost pronounced vindictive. But when it is considered further, that real property ceases to be in contest by the death of the tenant, and that three times the amount of the injury sustained, are sought to be recovered out of the assets of him who did the wrong, who is no longer alive to defend himself, to warn by example, or be reformed by punishment; it may be thought with greater confidence, that the action has become vindictive. The Common Law, upon which all the actions specified in the two acts of 1791 and 1805 are founded, aims in all cases to apportion the redress to the wrong really done; and it does not seem to be a sound construction, to extend by Equity those acts to a case so wholly adverse to its spirit. This rule is not less than those which require penal acts to be construed strictly and forbid the creation of a penalty by implication. But the question may be considered in another and perhaps a more satisfactory light. The evident design of the two acts of 1799 and 1805, was to prevent the death of either party operating an abatement of the suit in the cases enumerated, and thus partially to repeal the Common Law maxim of actio personalis moritur cum persona. They intended to confer upon the representative of either party, dying, the like right to prosecute or defend the suits, and hence they contemplated only those cases, wherein the right might be equally and reciprocally exercised. There is nothing in the theory and principles of the action of trespass which forbid the representatives of the Plaintiff from prosecuting it, or those of the Defendant from defending it. This was alone prevented by force of the maxim just quoted. But the writ of waste is founded upon principles peculiar to itself, and more especially dependent upon a privity between the reversioner and tenant. This ligament once broken, the action is gone. No one shall have an action of waste unless he hath the immediate estate of inheritance. Co. Lit. 53, b. Between the heir of the reversioner and the tenant, there was no privity during the life of the reversioner, when the waste was committed. If the reversioner bring the action and die, could the acts mean that his representatives should prosecute the suit, and thus destroy the principle on which it is founded? Assuredly not. Then the action of waste was not contemplated by the Legislature, and is not embraced File at: http://files.usgwarchives.net/nc/northampton/court/robertbl848wl.txt This file has been created by a form at http://www.poppet.org/ncfiles/ File size: 9.1 Kb