Gambar halaman
PDF
ePub

nant for quiet enjoyment would arise by implication in a lease which created the tenancy by the use of the words "agrees to let." The broad question was squarely presented, whether an implied covenant for quiet enjoyment depends upon the use of technical words like "demise or farms to let," or arises from the existence of the relation of landlord and tenant.

Only a few years earlier in the case of Baynes & Co. v. Lloyd & Sons, [1895] 2 K. B. 610, Lord KAY declared that "The weight of authority is in favor of the view that a covenant in law is not implied from the mere relation of landlord and tenant, but only from certain words in creating the lease." The conflict of authority on this subject was due to a failure to distinguish the principles underlying implied warranties in freeholds and implied covenants for quiet enjoyment in leaseholds. The former--the first real covenant known to the law-was one of the incidents of tenure. It was given by the feudal lord in return for homage. When charters and deeds came into the law of real property as a record of feoffments the use of the words "dedi" and "encambium" in them gave rise to their implication of this warranty. Owing its origin to this elaborate ceremony of feoffment, a system so cumbersome and technical that estates were gained or lost by the omission of a word or phrase, a warranty assumed a similarly technical nature and could only be implied by employing these words-dedi or encambium. Sheppard's Touchstone 165. When at a much later date the implied covenant for quiet enjoyment first appeared, it arose by implication in a lease creating the tenancy by the use of the word "demisi,”Noke's Case-(1599) 4 Coke's R. 80,-and upon analogy to an implied warranty the idea was consequently entertained that this covenant could only be implied by the use of its word of art-"demisi." Line v. Stephenson et al., (1838) 4 Bing. N. C. 678; Williams v. Burrell, (1845), 1 C. B. 402. In the former case Chief Justice TINDAL, speaking for the court, said, after discussing the words " dedi and "demisi "--" These words, after they have had their direct operation in creating the estate, have a new and secondary operation given them by law and are held to form a covenant by the feoffor or lessor for quiet enjoyment of such estate as they have already created." But the analogy to warranty, on which this technical treatment of implied covenants for quiet enjoyment was based, fails entirely, The distinction, indeed, extends from their source to their effect. The old warranty of a freehold an incident of tenure— gave to the covenantee the right to recover of the covenantor an estate equal in value and rank to the one he had lost, while the covenant for a quiet enjoyment-a creation of contract-only gave to the lessee the right of compensation for his eviction. The derivation and reason which confined the implication of implied warranties in freeholds within such narrow limits did not apply to this other class of covenants, and the broadening tendency of the law in vouchsafing the greatest possible protection and security to the estate of leasehold was to cast off the technicalities that had fettered the free implication of implied covenants for quiet enjoyment. This change was recognized in the leading case of Bandy v. Cortwright, (1853) 8 Ex. 913, which held a covenant for quiet enjoyment could be

[ocr errors]

implied in a parol lease. In Hall v. London Brewery Co., (1862) 2 B. & S. 737, a much broader principle was established that a covenant for quiet enjoyment would be implied from the ordinary words of letting or their equivalents. This view, which may be described as the modern English rule, prevails in most of the United States where the leading cases of Dexter v. Mauley, (1849) 4 Cush 14, Ross v. Dysart, (1859) 33 Pa. St. 452, Maxwell v. Urban, (1900) 22 Tex. C. A. 565, had anticipated the principal case in deciding that the covenant for quiet enjoyment would be implied in leaseholds from the existence of the relation of landlord and tenant. Since such a result seems so desirable in both theory and practice, it is fortunate that the leading modern case cited as opposed to it--Baynes v. Lloyd, supra-was necessarily decided upon another point so that its authority against this doctrine is entitled to little greater weight than that of a dictum.

Power of the President to PARDON CONTEMPTS OF COURT.-The decision in the recent case in re Nevitt (C. C. A. 8th Circ. 1902) 117 Fed. 448, calls attention to the importance of the distinction between civil and criminal contempts. In civil contempts the defendant is fined or imprisoned for the purpose of securing to the suitor his rights. Criminal contempts, on the contrary, are punitive proceedings instituted to vindicate the dignity of the Court. People ex rel. Munsell v. Court of Oyer & Terminer (1886) 101 N. Y. 245, 247. In re Nevitt decides that the President cannot pardon civil contempts and suggests that he cannot pardon criminal ones. The classification has an historical justification. From Saxon times acts of disrespect to the King were treated as a mild form of treason and known as contempts. The nature of the offence was the same whether or not it was against the King as judge and it was punishable in the same way as other crimes. The use of the present contempt process to punish this offence when committed against the King through his courts was of comparatively late development. It was either worked out from the Stat. Westm. 2, 13 Edw. 1. c. 39, as Gilbert thinks, Hist. C. P. 24, or borrowed by the law courts from Chancery where it was used in aid of a suitor's rights. As the judgments of the Chancellor were in the form of commands of the King failure to obey was rebellion. By the process of attachment, adopted from the civil law, the contemnor was brought before the Chancellor and committed until he obeyed the order. Langdell's Summary of Equity Pleading, p. 30. Thus the same process came to be used to punish a crime and to secure to a suitor his civil rights. There was a significant difference in procedure, however. In the law courts the defendant could disprove his contempt by his own oath. In Chancery the suitor to protect his rights was allowed to contradict the defendant's testimony. King v. Vaughan (1780) 2 Doug. R. 516.

The pardoning power of the King extended to all public offences. That the general pardon specifying "contempts" included what the principal case terms "criminal" contempts, seems never to have been questioned in England. In the earlier law it also included "civil” contempts, This was a natural result, for though the object of the Chancery process was remedial, in form it purported to deal with a

disobedience to the King which it would seem the King could pardon. So in Young v. Chamberlaine (1595) Toth. Ch. Cas. 41, a pardon was held to extend to such a contempt. At that stage of the law it was natural to let the form rather than the substance determine the nature of the proceeding. Likewise, in the old action of appeal, it was held the King could not pardon though the sentence were of death,_the action being civil in form and origin, 3 Coke Inst. p. 236. In Banning v. Fryer (1608) 2 Cro. Jac. 159, where the contempt was the failure to pay costs in the Spiritual Court, it was held that since the King's pardon could not deprive the plaintiff of his right to the costs it could not deprive him of the remedy of the contempt process to secure them. This is substantially the doctrine of the principal case. The point was raised again, however, in Trollop's case (16c9) 8 Co. 68 a, and it was finally decided in Codrington v. Rodman (1631) 3 Cro. Car. 198, that the contempt process of the Spiritual Court was in the nature of a punishment for a public offence and so was discharged by a pardon. Bartram v. Dannett (1676) Finch Rep. 253 decided the same way as to a contempt in Chancery. As late as 1744 ex parte Whitechurch 1 Atk. 55, held that arrest on a process of contempt to secure private rights was for a criminal offence. This case was, however, expressly disapproved in King v. Meyers (1786) 1 Term. R. 265, which decided that where the process was used to enforce private rights it could no longer be treated as criminal in its nature. Lord REDESDALE applying the same distinction in M' Williams' Case (1803) 1 Schoales & Lefroy 169, said, "There can be no doubt that the thing to be considered is not the form of the process but the cause of issuing it." To the same effect are ex parte Jeyes (1834) 3 D. & C. 764, ex parte Thomas (1843) 3 Mont. D. & D. 307. From these cases it would seem that by a natural development, the English courts have ceased to be bound by the form of the contempt process. Where it is used merely in aid of a civil right, and not for punishment, they will treat it as a civil remedy. Blackstone's conclusion that in such cases the process is not within the King's pardon seems justified. 4 Bl. Com. 285.

The pardoning power of the President extends to all offences against the United States, except impeachment. U. S. Const., Art. 2, § 2, subd. 1. The suggestion in the principal case that this power does not extend to criminal contempts of court rests on the argument that the judicial power of the United States is expressly granted to the courts, that the power to punish for criminal contempts is inherent in the judiciary, and that it would therefore be inconsistent with the grant of judicial power for the President to be able to pardon contempts, for by so doing he could render the courts powerless. There is a certain force in this position, but it is unsupported by authority. In cases involving criminal contempts the Supreme Court has repeatedly described and treated them as crimes. Ex parte Kearney (1822) 7 Wheat. 38; New Orleans v. Steamship Co. (1874) 20 Wall 392. It seems improbable that it will ever limit the express grant of the pardoning power to the President by excluding from it this class of offences. Attorney Generals Gilpin and Mason have held that the President could pardon such contempts. Dixon's Case (1841) 3 Op. Atty. Gen. 622; Rowan's Case (1845) 4

Op. Atty. Gen. 458. The latter case is interesting, as the judges who imposed the sentence seem to have signed the petition for pardon, thus indicating that they believed that the committment was a criminal sentence and so could only be remitted by the President. Criminal contempts of court are generally treated and punished by the States as crimes. It has been held that the Governor can pardon them in ex parte Hickey (Miss. 1845) 4 Sm. & M. 751; State v. Sauvinet (1872) 24 La. Ann. 119; Sharp v. State (1899) 102 Tenn. 9. Such a contempt was pardoned in New York by Governor Hill in 1891. Pub. Papers of Gov. D. B. Hill, 1891, p. 270. The opposite view was taken in Taylor v. Goodrich (Tex. Civ. Ap., 1897) 40 S. W. 515.

In re

In holding that, whatever the rule as to criminal contempts, civil contempts are not to be treated as offences against the United States and so cannot be pardoned, the principal case seems sound. It is true, this distinction, now recognized in England, has not yet been drawn by the Supreme Court. It has, however, as yet had no occasion to draw it. There is some contrary authority. AttorneyGeneral Crittenden advised the President that he could pardon contempt in the non-payment of a fine to a private party Drayton and Sears Case, (1852) 5 Op. Atty. Gen. 572. In a similar case Judge BLATCHFORD refused to alter orders of commitment, holding that as the offense was criminal, the President only could grant relief. Mullee (1869) 7 Blatch. 23; Fischer v. Hayes (1879) 6 Fed. 63, but later abandoned his position by admitting the defendant to bail. Fischer v. Hayes (1881) 7 Fed. 96. Several cases in the Circuit Courts intimate that under Rev. St. § 725 defining the power of the courts to punish for contempt, the contempt process cannot be used merely as civil remedy, but must be primarily punitive in purpose and character. U. S. v. Atch. T. & S. F. R. R. (C. C. Col. 1883) 16 Fed. 853; Searles v. Worden (C. C. E. Mich. 1882) 13 Fed. 717. This is a possible interpretation of the Statute, but narrows unwarrantably the use of the contempt process. The better view is taken by Hendryx v. Fitzpatrick (C. C. Mass. 1884) 19 Fed. 810 which holds that the contempt process can be used as a remedy to secure private rights and when so used the commitment is not to be treated as a sentence for a criminal offence, but as a civil remedy. That a civil contempt cannot be pardoned follows logically from this. There is a dictum in State v. Sauvinet, supra that a Governor cannot pardon such a contempt. The distinction between civil and criminal contempts has frequently been recognized in other State courts, but the question of the power of the Governor to pardon the former has not been raised. In the present development of the law it would certainly seem remarkable to hold that the President or a Governor could practically deprive a party to a suit of his rights, by rendering ineffective the well-recognized remedy of the contempt process. Such a result is not justified by the fact that this process is also used to punish crimes and that the peculiar circumstances of its origin impressed on it the form of a vindication of public authority.

EQUITY JURISDICTION OF A FEDERAL COURT TO SET ASIDE A WILL BY FORCE OF A STATE STATUTE.-State Statutes upon which the effort

has been made to obtain equitable action by the Federal Courts, there being the requisite diversity of citizenship, have mainly been of two classes. (1.) Where the enactment gave mere contract creditors rights in equity against the debtor's property. Inferior Federal Courts have sometimes taken jurisdiction in such cases. Fechheimer v. Baum (1889) 37 Fed. 167. But adjudications by the Supreme Court in recent years have established a contrary rule beyond dispute. Scott v. Neely (1890) 140 U. S. 106. The Court, per FIELD, J., at page 109, say: "The general proposition, as to the enforcement in Federal Courts of new equitable rights created by the States, is undoubtedly correct, subject, however, to this qualification, that such enforcement does not impair any right conferred, or conflict with any inhibition imposed, by the Constitution or laws of the United States." The case was held within this qualification as violating the provision for separation of law and equity in Federal courts and infringing upon the right of trial by jury in cases at law. (2.) Where the enactment gave parties not in possession rights in equity to quiet title. Under such a statute the Supreme Court has sanctioned the taking of jurisdiction where neither party was in possession, Holland v. Challen (1883) 110 U. S. 15, but refused to do so where the defendant was seized. Whitehead v. Shattuck (1890) 138 U. S. 146. The test imposed in each case was whether, by allowing action under the statute "controversies properly cognizable in a court of law will be drawn into a court of equity." Holland v. Challen, supra, at page 25. These cases establish the three exceptions to the general rule that a State statute enlarging equitable remedies will be enforced in a Federal court where there are the necessary elements of Federal jurisdiction, as follows: where enforcement would (1) conflict with the distinction, strictly observed in the United States courts, between law and equity, or (2) contravene R. S. § 723 providing that suits in equity shall not be entertained where there is an adequate remedy at law, or (3) violate the constitutional right to trial by jury in actions at law. Adone v. Strahan (1899) 97 Fed. 691. They disclose the inaccuracy of the glibly quoted statement: " A party, by going into a national court, does not lose any right or appropriate remedy of which he might have availed himself in the State courts of the same locality." Cowley v. Railroad Co. (1895) 159 U. S. 569 at p 583.

The inferior courts have lately been called upon in two instances to exercise jurisdiction under State statutes enabling equity courts to set aside the probate of wills for fraud or duress. Each court granted the demand. Williams v. Crabb (C. C. A. 7th. Cir. 1902) 117 Fed. 193; Wart v. Wart (C. C. N. D. la. 1902) 117 Fed. 766. A like result was reached in Richardson v. Green (C. C. A. 9th. Cir. 1894) 61 Fed. 423, an application to review which was denied. Richardson v. Green (1894) 159 U. S. 264. The Supreme Court has never passed directly upon the point. If the remedy provided by these statutes violates any of the three qualifications pointed out, it would seem that the three decisions in question are unsound. It has long been an established rule that equity has no inherent power to revoke the probate of a will. Allen v. M'Pherson (1847) 1 H. L. Cas. 191; Broderick's Will (1874) 21 Wall. 503. The reason for this is that, theoretically, there is an adequate remedy at law and in the probate

« SebelumnyaLanjutkan »