21 F. Cas. 840 | U.S. Circuit Court for the District of Virginia | 1822
This is a demurrer to a declaration in an action of waste; and the only question is, can the action be maintained against a tenant by elegit? Could the court be guided solely by considerations of the reason and policy of the law, the argument of the counsel for the plaintiffs would certainly have great weight; but it is a case of strict authority, and by authority my opinion will be regulated. The Register contains the form of a writ of waste against a tenant by elegit, and the Register is admitted to be a book entitled to great respect. Its authority on this particular point- is, however, in some degree diminished, by the circumstance that the editor has placed this note in the margin: “Quaere, If it be maintainable by the law against him?” Fitzherbert, in his Natura Brevium, says that this writ is in the Register, and that it stands with reason that this action should lie, but adds, that some say the debtor shall not have this action, because he- may have account.
The counsel for the plaintiff assumes that this was a writ of waste; but the case does not say so; nor does it furnish any thing that will justify this inference. A writ to compel a tenant to answer for cutting trees, is not necessarily a writ of waste. The writ was awarded, but I do not find any decision of the cause; a similar case came on at Trinity term the same year, where the judges said it would be advisable for the plaintiff to strike the cutting of the trees out of the suit, as he might bring trespass on the case for that injury. The writ in the Register, then, and the opinion of Fitzherbert, are the only authorities in support of the action.
In support of the demurrer, the counsel for the defendant has cited 1 Inst. 54a, where Lord Coke says, “No action of waste lieth against a guardian in socage, but an account or trespass; nor against a tenant by statute staple, &c., or elegit.” 1 Co. Litt. 54a. It is unnecessary to speak of the high respect which is due to the opinions of Lord Coke, especially on subjects of this sort. He was particularly conversant in all the ancient decisions, and was well acquainted with the writs in the Register, with their reason, and with the authority on which they were founded. He understood, too, all the ancient opinions and doctrines on this subject. In Dean, etc., of Worcester’s Case, 6 Coke, 37, it was contended at the bar, that the lease was void.under the statute of 13 Eliz. c. 10, “because it was made for the life of others, in which case it might happen that there might be an occupant who would not be subject to waste, no more than tenant by statute merchant, or tenant by elegit, &e.” It was admitted by the court, that the dean and chapter are restrained to make leases dis-punishable of waste, but it was resolved that an occupant is punishable for waste, because he has the estate of the lessee for life, and is therefore within the statute of Gloucester; “but tenants by statute merchant, statute staple, or elegit, do not hold for life or years, and therefore they are not of the statute.”
Two objections have been made to the authority of this ease: 1. The question was not a point in the ease, and the opinion, therefore, is a mere obiter dictum. 2. This dictum goes no farther than to deny that the action is given by the statute of Gloucester.
To the first objection, I answer, that although the opinion expressed by a court on a principle stated in argument, as analogous to that contended for in the cause, be not of equal’ authority with a decision on the very point in issue, yet, in such a case as this, it is of great weight. It was the usage of the court, in the time of Lord Goke, to decide the collateral points of law which were stated in argument, and considered by the judges as bearing on the main question. Those points were argued, and deliberately considered and settled. In this case, it was contended at the bar, that an occupant was not punishable for wastes, no more than a tenant by elegit. The court resolved that an occupant was punishable for waste, which was the very point in controversy, though a tenant by elegit was not, and took the distinction between the two tenants. Certainly when a principle is stated at the bar as acknowledged law, and is declared by the court to be law, it deserves great respect, though it may not have all the authority of an express decision on the very point in issue.
2. To the second objection, it is to be observed, that the proposition made at the bar was general, that the action was not maintainable. Of course it was not maintainable either at the common law or by statute. The court assents to this proposition, and gives as a reason, that it is not within the statute. The inference is, that by the admission of all, it was not maintainable at common law; and to show the truth of the general propo
It is argued, that although tenant by elegit is not comprehended in this enumeration, Lord Coke is not to be understood as denying that the action might be maintained independent of any statute, because the estate did not exist at common law, but was created by statute. When created, it is contended, the principles of the common law give the action, because the estate is created by act of law, and not by the act of the party. This argument is not without its weight; but it is opposed by other reasons, which seem to me to be entitled to greater consideration. When we consider the fullness with which Lord Coke discusses every question on which he treats, we cannot resist the conviction that, had he supposed that the action was maintainable on the principles of the common law, he would have said so, and not have left the student to draw the very strong inference against the action which his words justify. But his opinion on this point is expressly declared in his 1st Inst., in the passage already cited.
If this action cannot be maintained at the common law, it depends entirely on an act of assembly. Act Dec. 26, 1792; 1 Rev. Code, 1819, c. 117, p. 462. That act seems to have been intended to comprehend the whole subject, since it enumerates the persons against whom the action lay at common law. If a tenant by elegit be comprehended in this act, it must be under the words “tenant for years.” It has been contended at the bar, that a tenant by elegit is a tenant for years, because that is certain which may be rendered certain, and when the land is delivered to him at a certain annual rent, to be held till it discharges a certain sum, he is tenant for a certain number of years, which may be computed with exactness. Were this a case of the first impression, I should incline strongly to this opinion. I do not clearly perceive the distinction between the tenant who holds lands at ten dollars per acre, until he shall receive one hundred dollars, and a lease for ten years, if J. S. shall so long live. The tenancy by elegit is determinable within the time by the payment of the money, and the estate for ten years is determinable within the time by the death of J. S. But the question is as completely settled as a question of law can be settled by authority. Lord Coke, in his commentary on the statute of Gloucester, says, that tenant by elegit is not within it, because he is not a tenant for years. All the books concur in this opinion. There is not, I believe, a dictum against it.
I think the demurrer must be sustained.
“And there is a writ of waste in the Register for him in the reversion against tenant by elegit, who hath lands and tenements in execution for debt or damages; and so against tenant by
Sir Matthew Halo, in his commentary upon the passages from Fitzherbert above quoted, says: “A scire facias was against a tenant by elegit, who had cut trees, to pay the residue of
Again, Fitzherbert says, “And also if a man hath lands in execution by elegit, and after-wards be in the reversion granteth the reversion to a stranger in fee, that the grantee shall have an action of waste against the tenant by elegit, seems reasonable, because the waste is to his disinheritance, and he ought not to satisfy the debt due by the grantor. And see 21 Edw. III. in title ‘Scire Facias,’ whether recognizor had scire facias upon his surmise that the recog-nizee had levied all the debt by cutting of trees.” Id.
Sir Matthew Hale says: “Note, he cannot in a scire facias compel him to answer to the waste .and cutting of the trees, and therefore it was waived.” Y. B. 21 Edw. III. p. 30. See Fitzh. Nat. Brev, 104, noted that waste lies. Quaere.
