| N.C. | May 5, 1819
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 *316 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 scirefacias 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 etarmis, 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 (518) 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 attained 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; *317 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 1799 and 1805 are founded, (519) 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 *318 by the acts, which allow a revival "in behalf of or against the representatives of either party."
To revive the action against the representatives of the (520) Defendant, would in many cases lead to equal innovation and more evident injustice. The same privity requires that the reversioner shall bring the action of waste against the tenant for life, although the waste committed be done by a stranger. The law is the same where the tenant is an infant. Co. Lit. 54, a. Yet if the acts are to be extended to this action, it must be revived against the executors and administrators of innocent persons, who never were "attained" of waste, and against whom it was only suable as the consequence of an artificial system. In many cases the privity is destroyed by the act of the parties in their life time, and, in consequence, the action abates. It would be strangely incongrous to revive it, notwithstanding the destruction of the privity by death.
It has been ably and strenuously argued for the appellant, that the statute of 4 Ed. III, ch. 7, has received an equitable construction, by which other actions, though not within the words, have been held to be within the meaning and intent; and that the decisions thereon will justify the Court in construing the acts of 1799 and 1805 to include the action of waste. That statute, after reciting that in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the said testators carried away in their life, so as such trespasses have remained unpunished, enacts "That the executor in such cases shall have an action against the trespassers, and recover their damage in like manner as they whose executors they be, should have had if they were living." The words of this statute are general, not specifying the kind of action which the executors shall have, but actions against the trespassers. The word trespassers, which is used in the sense of wrongdoers, had a more extensive meaning in that age than it now bears. Cases which approached nearer to the nature of a contract, were comprehended under the term trespasses. 3 Reeve's History E.L. 89. In this view the statute would (521) have borne a larger construction than it has received. Chitty on Plead. 58.
Rules for construing statutes have been cited from Plowden and other books which contain much sound legal reasoning; but the extent of their application in fixing the meaning of modern statutes, is materially limited by the decisions of later times. In Bradly v. Clarke, 5 Term. 201, Lord Kenyon *319 says, "Many cases have been cited to shew that the Courts extended the construction of ancient acts of Parliament beyond the words and in some instances (I should have thought) beyond the fair import of them. However, as such constructions have been made, they become the guide for succeeding Judges." In the same case, the language of Buller, Justice, is more explicit: "With regard to the construction of statutes according to the intention of the Legislature, we must remember that there is an essential difference between the expounding of modern and ancient acts of Parliament. In early times, the Legislature used (and I believe it was a wise course to take) to pass laws in general and in few terms: they were left to the Courts of Law to be construed, so as to reach all the cases within the mischiefs to be remedied. But, in modern times, great care has been taken to mention the particular cases within the contemplation of the Legislature; and, therefore, the Courts are not permitted to take the same liberty in construing them as they did in expounding the ancient statutes."
The same principles governed the decision in the case ofWillson v. Knutly, in which an action of covenant was brought upon the statute of 3 W. and M. ch. 14, against the devisee of land, to recover damages for a breach of covenant by the devisor. That statute recites, that "it is not reasonable or just that, by the practice or contrivance of any debtors, their creditors should be defrauded of their just debts; nevertheless, it hath often happened that several persons, having, by bonds and other specialities, bound themselves, (522) and their heirs, and have afterwards died seised, c., have to the defrauding such their creditors devised the same," c. The enacting clause then provides that in the cases before mentioned, such creditors shall have their actions of debt upon the said bonds and specialties. Here it was agreed that an action of covenant was within the mischief recited, and that it would have been better to have made the remedy coextensive therewith. But the Court say, that in construing a comparatively recent act of Parliament, where a particular remedy is given by action of debt on bonds and specialities, where no remedy was before, they cannot extend it to actions of covenant; that to do so, where the words giving the form of action are precise, would be to legislate, and not to construe the act of the Legislature. The case, too, is rendered stronger, in as much as the act was levelled at a species of fraud, towards the suppression of which it was desirable that it should receive every possible extension 7 East. 128. *320
The words of the preamble of the act of 1805, profess its design to be to remove the doubts which arose out of the act of 1799, whether actions for the recovery of damages for an injury to real or personal property could be revived, where the property itself was not in dispute. If the enacting clause had been as general as the preamble, to-wit: "That actions for injury to real or personal property may be revived, although the property itself is not in contest," they would certainly have included the action of waste after the death of a Defendant who was tenant for life. But where the words of an enacting clause are clear and unambiguous it is neither necessary nor allowable to call in the acid of the preamble to enlarge their meaning. The demurrer must be sustained.
Cited: Southerland v. Jones,
Overruled. Shields v. Lawrence,