Cargill v. Sewall

19 Me. 288 | Me. | 1841

The opinion of the Court was delivered by

Whitman C. J.

The plaintiff claims to have a judgment against him in this Court, wherein the defendant in error was plaintiff, reversed, because the plaintiff, in that action, which was trespass quare clausum fregit, sued, styling himself clerk and minister of the first Congregational parish in Newcastle; and before judgment was rendered therein, had ceased to be such minister; the land on which the trespass was alleged to have been committed, being ministerial land.

The plaintiff in error contends, that when the plaintiff, in that suit, ceased to be the minister of the parish, the suit then pending ipso facto abated, or that it worked a discontinuance; and so that the judgment, thereafter entered up, was erroneous. He contends, that the dissolution of the parochial relations was tantamount to a natural death, as it respected the action pending. The arguments of his counsel, which were in writing, were learned and ingenious on the subject. Many supposed analogous cases were cited, and urged upon the attention of the Court, with great force; and much analogical reasoning has been gone into, which would have had great weight if the state of the case were such as it was assumed to be.

It was assumed, that the suit was by the plaintiff, in his ministerial capacity, solely: and it was likened to that of many other persons, suing in an artificial capacity, which, when it ceases, terminates the power to do and perform any and every act, depending upon such capacity.

But it is apprehended, that this is altogether a mistaken view of the subject. The plaintiff in that suit did, to be sure, style himself clerk and minister. But this may, if the merits of the case will admit of it, be taken and deemed to be merely descriplio persona. It may, and, indeed, must be contended by the plaintiff in error, that the merits are not such as to render this admissible. It is true, that the land, on which the trespass was alleged to have been committed, was described, in the plaintiff’s declaration, as a ministerial lot. This, however, may also be regarded merely as a description of the land on which the trespass was committed, provided it be not essential to the maintenance of the action by the plaintiff in his artificial character or capacity solely.

The plaintiff, in this case was seized and possessed of the locus in quo. His estate was a tenancy of a certain description. If settled for life, as the minister of the parish, it gave him an estate of freehold upon condition; if for a term of years, his estate in the land was commensurate with the term. The usufruct was in him, for the time he might be so continued in the occupancy. He might cut thereform, what in law is denominated, housebote: but like other tenants, having less than a fee, he could not commit waste. Ecclesiastics are punishable for waste on their church lands or glebes. 2 Atk. 217; Bacon, title waste, D. All such tenants are answerable, not only for actual, but for permissive waste. If a trespass be committed, on their tenements, by a stranger, they are answerable for it, as they have their remedy by an action of trespass, against the stranger. 4 Kent, 77; 2 Inst. 145, 6; Bacon, title waste, H.

The tenant, Sewall, then, had all the rights incident to his tenancy. If a stranger trespassed upon the land, a right of action accrued to him, and vested in him personally. He might have brought his action without alluding to the nature of his tenure. His description, then, of himself as minister, and of the land as'a ministerial lot, may be regarded as superfluous, and may be rejected as such or as merely descriptive. If the right of action was in him personally, when commenced, it would follow him, after his tenure ceased. If trespass be committed on land of the owner in fee, or as tenant of - any less estate, and he', subsequently, parts with his estate, his right of action for the trespass remains, whether commenced before or after parting with the estate. As the defendant in error was the tenant of the land, when the trespass was committed; as he was answerable therefor as for waste; as the right of action for the trespass vested in him personally, and continued in him after he parted with the estate, the judgment, against the plaintiff in error, was properly entered up and must be affirmed.

We have taken no notice of the objections, of the defendant in error, to the service or to the sustaining of the writ of error. The view, we have taken of the case, has rendered it unnecessary to do so.