#### Peterson Browne v. Robert Blick, administrator of Priscilla Hilliard, deceased.

¡>From Northampton. J

An action of waste being brought ag’ainst 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 then' 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 itselij and more especially dependent upon a privity 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 rever-sioner 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 ie unto Peterson Browne in a plea, why, in the houses, land “ 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, de- “ ceased, she has made waste, spoil and destruction, to e< the disinheriting of him the said Perterson Browne, “ against the provisions of law, and to the damage of him ¿e the said Peterson one thousand pounds.” The Defen-*512clant pleaded “ the general issue and statute of limita- “ lions.” Pending the suit, Priscilla Hilliard, the Defendant, died ,• her death was suggested on the record, and a scire facias was issued to Hubert Slick, her administrator, to make him a party and revive the suit. He appeared, and pleaded in abatement, “ that the action could <e not be revived against the administrator of Priscilla “ Hilliard, his intestate,.” The Plaintiff replied, “ that e‘ Priscilla Hilliard, against whom the action was brought, <s had a life estatp in the lands on which the waste alleged >e 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.

.Mbrdecai, in support of the demurrer.

It is clear, that by the Common Law, the wrong for which this action is brought dies with the, person, and the action died with it.* Is the abatement prevented by the act of 1799, ch. 18 $ or of 1805, ch. 8 ? It is not. The first section of the act of 1799 declares, that “ no action of ejectment shall abate J< by the death of any Defendant or Defendants in said “ action; but the same may be revived by serving on the “£ heirs at law or devisees of said Defendant, or their “ guardian or guardians, within two terms after his de- “ cease, a copy of the declaration,” &c. The second section provides for the appointment of guardians for such heirs or devisees as are minors. The third section directs notice to be given by advertisement, where such heirs of devisees reside out of the State. The fourth section provides for “ the continuance of any suit, where Plaintiff or “ Defendant shall die, and there shall be a contest for the “ administration or for the probate of the will, till such “ contest shall be determined, and until the expiration of <e one term thereafter.” And the fifth section declares, “ that no action of detinue or trover, or action of trespass, *513 Si where property, either real or personal, is in contest, “ and such action of trespass is not merely vindictive, “ shall, in any cause or Court, abate or be discontinued “ by the death of either party, Plaintiff or Defendant; “ but the same may and shall be revived in the manner “ prescribed for the revival of other cases.”

The act of (805, declares that u no action of trespass “ m ei armis, or trespass on the case, instituted, or which “ shall hereafter be. instituted, in any of the courts of this ie state, to recover damages done to property either real “ or personal, shall abate by the death of either Plaintiff “ or Defendant $ but the same may be revived in behalf ox “ or against the representatives of the deceased Plaintiff “ or Defendant, under the rules and regulations prescribed “ for the revival and continuance of other actions.” The Legislature have expressly named the actions which may be survived : The action of waste is not one of them. Those named-are, ejectment, detinue, trover, trespass vi ct armis, trespass on the case. The reason wherefore Courts of Equity are not bound by the statute of limitations, is because certain actions or remedies are named, and the time of limitation affixed; but bills in Equity are not named. And it was because the action of debt for ar-rearages of rent was expressly mentioned, that it was held the statute applied to that, but not to an action of debt on a contract without specialty.* So here the abatement being prevented when a certain form of action is adopted, the act applies only to those forms of action.

And if the Court would not extend by Equity, the limitation to another form of action, applicable to the subject matter, but would permit a Plaintiff to recover in debt, the very thing which he would have been barred from recovering in case, can they now say, that by the. Equity of this statute, he shall recover a different thing from what could bo recovered in trespass or case, that is, treble damages ?

*514The action of waste differs in ail its features from an action of trespass or case. It is a mixed action, real for the place wasted, and personal for damages. A release of all actions real, will not discharge it.* it will not lie by the heir against assignee of tenant by the courtesy, because being founded on privity of estate, as long as that privity lasts, it must be brought against the tenant himself.† Case would lie by the heir against the assignee.‡

Waste only lies for him who hath an immediate estate of inheritance :§ Case lies for a remainder man for years.

If after waste committed, the reversioner aliens, his action is gone, although he takes the estate immediately back; for the action depends upon privity, and the reversion must remain as it was when the waste was committed,ǁ But case would lie.

Waste doth not lie against guardian in socage; but trespass or account lies.¶

Trespass lies for him in possession: Waste, for him who has no right of possession. Trespass lies against him who hath no right of possession : Waste only against him who hath a right of possession and property.

Waste lies only for him who hath an inheritance in reversion : Trespass for him who hath a mere possession. In trespass the Plaintiff recovers for the injury: In waste, for triple the damage sustained. All these are express distinctions between these actions.

Nor is this within the Equity of the acts of 1799 and 1805. Penal statutes are not to be construed to the prejudice of those on whom the penalty is inflicted.** And if the statute of limitations, which is styled a statute of quiet and repose, shall not be extended, but confined to the forms of action specially enumerated, much less shall the statutes for preventing abatement, be extended to save an action not within their'terms, and an action so highly penal as this.

*515 Seawell, for the Plaintiff, against the demurrer.

— It is admitted that the present action abates at Common Law ; but it is contended that it survives under the acts of 1799 and 1805. By these acts, it is clear that the Legislature had in view a considerable inroad upon the principles of the Common Law. They seemed disposed to bring the surviving of actions to that standard which is supported by reason and interest; namely, that actions brought for actual injury done to men’s property, should follow the property into whosesoever hands the title passed on the death of the owner, when he was Plaintiff; and that in case of the Defendant’s death, he should be accountable, who in law acquired the benefit of sue!) injury done. But that in actions merely vindictive, brought to redress an injury done the feelings, (and on that account may properly be called revengeful) they have wisely left us at Common Law ; for by the death of either party, it became impossible to obtain the object for which the action was brought.

That this was the design of tiie Legislature, is clear from a view of both acts. The first prevents the action of ejectment from abating, and then provides for detinue, tro-ver and trespass, where property cither real or personal is in contest, and such action is not merely vindictive. The second act recites, that whereas doubts had arisen whether the act of 1799 extended to cases for the recovery for injuries done to real estate, and whether suits for such injuries could be revived for or against the representatives of the deceased party j to remove these 6i doubts,” and make actions brought to recover for injuries done to real and personal property survive, although the title did not come in question, the act of 1805 was passed. This being a remedial statute, and the design of the framers expressed in the preamble, (which has been often called the key to unlock the maker’s meaning,) the statute should be extended to every case which comes within the mischief provided against.*

*516The like construction has been put upon the 4th Ed. 3d. He bonis asportatis, which gives executors the light to maintain trespass. Yet it lias been held to extend to administrators ; because within the mischief;* and in like manner to extend to trover, though trespass only is named in the statute and;† for the same reason to a guare impcdit, and ejectione jirmce,‡ And in Ventris 30, cited in Bac. Ab. title Executors and Administrators, letter N, executors were, allowed to maintain debt and recover a penalty, for not setting out titles according to the stat. of Ed. 6th, to their testator iii his life time; and it was said to bo so ruled upon the Equity of the statute of Ed. 3d, de bonis asportatis.

These authorities irresistibly prove, that where the Legislature have designed to permit the cause of action to survive to executors, it shall be extended to every case in principle with the one specially named; and that as the statute of Ed. 3d was to enable the personal representative to recover for damages done to the personal estate, although executors only were named, yet the statute should be construed to extend to administrators | and although trespass only was named, it should extend to trover j and though the manner of doing the damage is specified, “ by carry- “ ing away goods,” yet it should extend to not setting out tythes, to a case where, treble damages are given by the statute, and likewise to an ejectione jirmce.

These authorities prove that where a statute is remedial, and a case is within the mischief intended to be remedied, one thing will be taken for another, one person for another, one action for another. Even where the remedy is in some degree penal, the recovery being for an actual injury, it will make no difference. That the present action is for an actual injury is proven both by its name and its nature ; for if a Jury should find nominal damages, the Plaintiff could not have judgment.

*517It seems to have been the policy of the English Law to let personal actions (lie with the Defendant. Our Legislature have placed both Plaintiff and Defendant upon the same footing, and, consequently, whatever would bring a Plaintiff within the Equity, would make the Defendant liable within the Equity : for the entire Equity of our acts is giving the Plaintiff a right to recover, and making the Defendant liable to answer. The Defendant where he is so made liable, is exposed to no hardship; for he is accountable only to the extent of a fund, which he holds as a volunteer.

*

Co. Lit. 53, b. 2 Saund. 252, in Note.

*

1 Law Repos. 516.

*

Co. Lit. 355, b.

†

Ibid. 54, a.

‡

13 Johns. 260.

§

Co. Lit. 53, b.

ǁ

Ibid.

¶

Ibid. 54, a.

**

Plowd. 17, 18, 47, 86, 125.

*

Co. Lit. 246. 1 Plow. 53, 178, 205, 231. Hard. 210. 2 Plow. 465.

*

Cro. Eliz. 384.

†

Ibid. 377.

‡

Ibid. 207.

Taytor, Chief-Justice,

delivered the opinion of the Court:

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. Peqding the suit she died, and a sáre jadas issued against her administrator to revive the suit. To this he has pleaded that the action cannot be revived against bins ; 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 1799, 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 el armis, and trespass on the case, instituted to recover damages done to property either real or,personal.

*518The 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 i 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 tenant in dower and by the courtesy. 2 Inst. 299. The authority of Bracton is the other way. 2 Reeve 149. But whichever opinion may bo 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 re-sí compense 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 ¡ilace 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 superintemlant) it may be almost pronounced vindictive. But when it is considered further, that real property ceases to be in contest by the deatli 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 *519all .the actions specified in the two acts of 1799 ami Í805 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 just than those which1 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 moritnr cum persona. They intended to confer upon the representatives, of either party, dying, the like light 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.* Between the heir of the reversioner and the tenant, there was no privity during the life of the re-versioner, when the waste was committed. If the rever-sioner 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 by the acts, which allow a revival “ in behalf of or against the representatives of “ either party.”

*520To revive the, action against the representatives of the 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.* 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 iS attainted” 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 incongruous 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. 3, 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 liad 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 ex- “ ccutor in such cases shall have an action against the “ trespassers, and recover their damage in like manner 6e 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 wrong-doers, 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.† In *521this view the statute would have borne a larger construetion than it has received.*

Rules for construing statutes have been cited from. Plowdcn 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,† Lord Kenyon 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 in- “ stances (I should have thought) beyond the fair im- “ port 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 construc-(s tion of statutes according to the intention of the Legis-es la ture, we must remember that there is an essential dif- “ ferenro between the expounding of modern and ancient 4< acts of Parliament. In early times, the Legislature ss 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. Rut, in mo- “ dern times, great care has been taken to mention the “ particular cases within the contemplation of the Legis-<e 1 aturo; and, therefore, the Courts are not permitted to “ take the isame liberty in construing them as they did in “ expounding the ancient statutes.”

The same principles governed the decision in the case of Willson 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 contri- “ vanee of any debtors, their creditors should be defrauded “ of their just debts; nevertheless, it hath often happened *522“ that several persons having, by bonds and otner sped- “ allies, bound themselves, and their heirs, and have after- “ wards died seised, &r. have to the defrauding such their “ creditors devised tlie 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 co\enant 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 amt specialties, where no remedy was before, they cannot extend it to actions of covenant; that to do so, where the words giving tiie form of action are precise, would be to legislate, and not to construe the act of the Legislature. The case, too, is rendered stronger, inasmuch 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.*

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 pro- “ perty 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 aid of the preamble to enlarge their meaning. The demurrer must be sustained.

*

Co. Lit. 53, b.

*

Co. I,it. 54, a.

†

3 Reeve’s His. E. I,. 89.

*

Chitty on Plead. 58.

†

5 Tem Rep. 201.

*

7 East. 128.