James Smith vs. Benjamin Follansbee, Jr. § al., 13 Me. 273

At a subsequent term, the opinion of the Court, having been drawn up by him, was delivered by Weston C. J. The plaintiff claims judgment for the place wasted, and also for treble damages; and he founds his claim upon the statute of 6 Edward 1, ch. 5, called the statute of Gloucester. Whether therefore he is entitled to the judgment, for which he contends, will depend upon the decision of the question, whether as against tenant in dower, that statute at the time when the waste complained of was suffered, was in force in this State as part of our common law. By the third

section of the tenth

article of the constitution, it is provided, that “ all laws now in force in this State, and not repugnant to the constitution, shall remain or be in force, until altered or repealed by the legislature.” The laws of Massachusetts were then the laws of this State. Was a tenant in dower at that time liable to be charged in an action of waste, under the statute of Gloucester? Chief Justice Parsons, in Carver v. Miller, 4 Mass. 559, intimates an opinion, that tenant in dower is liable to forfeit for waste, the place wasted and treble damages.

No question however upon this point, had been raised before the court in that case. In Padelford v. Padelford, 7 Pick. 152, which was an action of waste, the plaintiff claimed treble damages, which are given by the statute of Gloucester; and the question was directly presented to the court whether he was entitled to them. The Court decided, that it was not necessary to resort to the statute of Gloucester ; and that single damages only should be awarded, according to the statute of Massachusetts. Stat. of 1783, ch. 40, § 3. But it is urged, that the same court decided differently in the case of Socket et al. v.

Sacket, 8 Pick. 309. The marginal note to that case is, that the statute of Gloucester has been adopted, as a part of the law of the Commonwealth, though in respect to tenant in dower, modified there by statute. In that case, the court go into an elaborate consideration of the question, whether the statute of Gloucester had been adopted, as a part of the common law of Massachusetts; and they come to an affirmative result, notwithstanding the opposing opinion of Mr. Dane.

As it was a part of the existing law of England, at the time of the emigration of our ancestors, necessary for the protection of real property, it was held that they brought it with them. But the court say further, that they also brought with them “ power to make such new laws, as their exigencies might require. They could live under the old law, or make new ones.

Whenever they legislated upon any subject, their own law regulated them ; when they did not legislate, the law they brought with them was the rule of conduct.” The colonial legislature did legislate upon the subject of dower, in 1641, and the provincial, in 1701 subjecting the widow to an action, for any strip or waste, by her done, committed or suffered. They were silent, as to w'hat she should forfeit, or what should be the nature of the action, to which she was made liable.

And upon the question, whether the law before existing was thereby repealed, and an action on the case for damages substituted, or whether the action intended was one under the statute of Gloucester, the court in the case last cited manifestly incline to the latter opinion. They however make no comment whatever upon the statute of 1783 ; but the result of their reasoning clearly is, that the former law was thereby changed and modified, as the reporter understood it. That statute not only legislated upon the subject of dower, but it prescribed what tenant in dower should forfeit for waste, ¿nd to whom.

Had either the colonial or provincial statute gone as far, the course of reasoning adopted by the court, would have led them at once to regard it, as a substitute for the English law. It would have been held as a clear manifestation of the legislative will, that the new forfeitures, and not the old, should be visited upon the delinquent. So the same court thought in Padelford v. Padelford. We find no discrepancy between the two cases. Sacket v. Sacket was not brought against tenant in dower.

In the former case, the statute of Gloucester was held not to apply, because that of the Commonwealth had substituted a new remedy. Tn the latter, it was held that it did, because no other remedy had been provided. If they had intended to overrule the former case, which was decided only the preceding year, they would have so intimated. But there is no inconsistency between the cases. The same reasoning supports both.

Without giving any opinion upon the question, whether the statute of Gloucester W'as adopted in Massachusetts, before our separation, we are satisfied that if it was, a tenant in dower was relieved from its operation, in virtue of the statute of 1783. At the time therefore of the adoption of our constitution, such tenant was not liable to be charged, under the former statute.

The legislature of Maine did in 1821 repeal the statute of 1783, within this State ; and in the revision of the laws, they legislated upon the subject of dower, without re-enacting the provisions, charging the tenant with a forfeiture for waste. What was the effect of this repeal ? Did it subject the tenant to the severe forfeiture of the statute of Gloucester ?

Without determining that such would have been its effect, if that statute had constituted our common law before, it is sufficient to say, that such could not have been the operation of the repeal, the statute of Gloucester, as it respects tenant in dower, never having been the law of Maine at any former period, at or after the adoption of the constitution. It is insisted, that this action ought to be maintained, because otherwise tenant in dower may commit waste with impunity. If it were so, this view of the case addresses itself to the legislative, rather than to the judicial power.

It is, doubtless however, still an unauthorized act, to the injury of the reversion; and we do not at present perceive any objection to the maintenance of an action on the case, in the nature of waste, against tenant in dower ; but whether or not for permissive waste, may require investigation. 4 Kent, 79. The exceptions are sustained. And the opinion of the Court is, that the action of waste cannot be maintained against the defendants upon the facts. Judgment for the defendants.