Carpenter v. Spencer , 68 Mass. 407 ( 1854 )

Shaw, C. J.

The court are of opinion that these actions cannot be maintained, for damages accruing after the awards, and that this point is determined by the case of Henderson v. Adams, 5 Cush. 610. That case was well considered, very recent, and we think decisive. And we are satisfied it was decided upon correct grounds. The power to render such judgment, not only affording a remedy for an injury actually incurred, but looking to the future, and declaring the rights of the parties specifically, and giving a remedy by action of debt or assumpsit, by and against privies in estate, depends wholly on statute, and can exist only in the cases provided by statute. The statute gives this right only in cases commenced, prosecuted and determined according to the mill act, Rev. Sts. c. 116. Whether such a judgment, for damages already accrued, would be binding upon the parties and their personal representatives, we have no occasion now to consider; beyond that, we are of opinion that it is void, because not within the statute.

But it is argued that such a judgment, being upon a report of referees, made pursuant to a voluntary submission of the parties, would be good evidence of the right of the landowner to recover damages of the millowner at an agreed rate. But we cannot perceive any evidence of an agreement between the parties. Without a judgment, such an award would not be binding, because the agreement was made in pursuance of a provision of law, requiring the act of the court to give it effect; and the judgment itself is void on the face of it.

But suppose it might be good against the parties and their personal representatives, until reversed, it would not aid either of these cases. The first case is brought by the executor of the original judgment creditor, if we may so call him, the landowner, against one who has come in, by purchase or descent, to the estate, owned at the time of the judgment, by the mill-owner. Whether, if the judgment had been conformable to the statute, the action should have been by the executor or the heir, (a question suggested in the argument,) may depend on the fact whether the damage specifically sued for accrued before the death of testator or after, a fact which does not appear in this case. But it is quite immaterial to this decision, because neither executor nor heir could maintain the action. Each of these actions is brought against one who, since the judgment, has come into the estate by descent or purchase. There is therefore no privity of contract, but an alleged privity of estate only. But what creates that privity of estate, and gives the action ? Clearly, we think, the statute only; and the statute operates only to give effect to a judgment rendered pursuant to its provisions. Judgment for the defendants.