Thruston v. Mustin

23 F. Cas. 1176 | U.S. Circuit Court for the District of District of Columbia | 1828

Ckanch, C. J.,

delivered the opinion of the Court. (ThRüston,

J., not sitting.)

The first demurrer is to the whole bill, both as to discovery and relief.

Upon that demurrer the question is, whether the bill states a case proper for the intervention of a court of equity. It is admitted that a court of equity has jurisdiction to stay waste. Does the present bill aver waste ? Waste is an act done to the injury of the inheritance: Is the cutting and selling of young and green wood such an act?

The bill calls it waste ; and avers that the plaintiff is in imminent danger of great loss by reason of such waste; and that the principal value of the farm consists in the wood. These aver-ments, taken together, seem to pie to amount to an allegation that the cutting and selling of such young and green wood was an injury to the inheritance ; and was, therefore, such waste as it would be proper in a court of equity to restrain.

But it is said that in such a lease, renewable forever, and with a right to purchase the reversion, the relation of landlord and tenant does not exist, inasmuch as it is in the power of the defendant to prevent the- plaintiff and his heirs from ever enjoying the reversion.

But, until the defendant has actually purchased the reversion, it remains in the plaintiff, and the relation of landlord and tenant still subsists in full force.

The plaintiff, therefore, is entitled to relief. Is he also entitled to a .discovery of the waste ?

It is said that a court of equity will not compel a discovery of that which might subject the defendant to a forfeiture; and that the plaintiff may, in an action of waste,' under the statute of Glocester,- have a judgment of forfeiture of the estate against the defendant, and treble damages. That the plaintiff has not waived nor offered to waive that forfeiture, and therefore a court of equity will not compel the defendant to discover the waste.

The statute of Glocester, (6 Ed. 1, c. 5,)’which gives the forfeiture of the thing wasted, and-treble damages, is believed to have been “ by experience found applicable to the local .and other circumstances of the inhabitants of Maryland,” and. to have been adopted by the constitution and bill of rights of that State, and consequently to have become the law of this part of the district, by virtue of the Act of Congress of the 27th of February, 1801, [1 Stafc. at Large, 103.]

That statute is stated, in Chancellor Kilty’s report to the Legislature of Maryland, (p. 211,) to have been extended, in practice, to that State.

I am, therefore, of opinion that, if the defendant has committed waste, he is liable to the forfeiture of the thing wasted, and the treble damages.

The plaintiff has not, in his bill, expressly waived the forfeiture or the penalty. Is the defendant, then, bound to answer to the allegation of waste? Upon this point the case of Botelor v. Allington, 3 Atk. 457, was cited by the counsel of the defendant ; in which case Lord Chancellor Hardwicke says, “ There are two matters in question; one upon the demurrer as to the discovery of the acceptance of the second living; and’as to that, I am of opinion’ that the plaintiff had a right to demur; not because it is of consequence to the plaintiff, for the fact of which he seeks a discovery may very easily be ascertained by the bishop’s register, but for the sake of a rule of the court, that a defendant is not obliged, by a discovery, to subject himself .to a’ forfeiture, or any thing in the.nature of a forfeiture ; and therefore in all bills to stay waste, a plaintiff is not entitled to a discovery, unless he waives the penalty, which is treble damages by the statute of Glocester.” See also Mitford’s Pleadings, pp.’157, 158,161, 3d Ed., and Cooper’s Equity, 205, 207.

To this it is answered, that the forfeiture is in fact waived by the bringing of this bill. That the offer to waive .would have been no bar at law to the action for the treble damages. That it would only have been a ground for an injunction to restrain the plaintiff from enforcing the penalty; and that the filing of this bill is equally a ground for an injunction ; and.that the defendant is now quite as safe against the penalty as he would have been if the plaintiff had expressly offered to waive it.

In support of this position, the counsel for the plaintiff cited the case of Wools v. Wall, Anstruther, 100, where, upon a bill for the single value of tithes, it was holden that it was not necessary for - the plaintiff expressly to waive the treble value. I have not read that case, (not having the book,) but, as I understood it when read at the bar, the question did not arise'upon demurrer to the ’ discovery, but upon exception to the answer of the defendant, who had omitted to make the discovery sought by the bill, relying upon the general rule, that he was not bound to discover that which would subject him to a penalty. The Court, however, adjudged the answer to be insufficient, and compelled the discovery. This decision might have been upon the principle, at that time generally admitted, that if a defendant answer at all he must answer fully. There has been no case cited in which a demurrer, to the discovery of matter leading to a legal forfeiture or penalty, has been overruled, unless the plaintiff expressly waive that forfeiture or penalty.

I am, therefore, of opinion that the defendant in this case is not bound to answer the allegation of waste.

Moksell, J., concurred.