Donelly v. Vandenbergh

3 Johns. 27

Opinion

Thompson, J.

On the argument of this case, several questions were presented to the consideration of the court, .both on the motion in arrest of judgment, and for a new trial. The conclusion, however, to which I have arrived, on examination of these questions, renders it unnecessary for me to consider them all. I shall confine myself to that which goes wholly to exonerate the defendant from the penalty for which he is prosecuted. It is stated, that the defendant offered to prove that he xvas licensed, by two of the grantees named in the act, to ran his stage on the route complained of by the plaintiff. The testimony was rejected, but we must consider it as given, for the purpose of determining its effect on the question before us. • This penalty was given by the act to secure the grantees in the privilege thereby vested in them, against any encroachment by strangers, and not as a security against the acts of each other. As long as they remain tenants in common, they must be subject to the same rules, and like remedies, as other tenants in common. The statute vested a joint interest in them. There is no limitation as to the number of stages to be run, and if each of the grantees had undertaken to run a line, the whole extent of the road, the penalty xvould not have been incurred.

It is said, however, that previous to the licenseunder which the defendant acted, the proprietors had divided the road, among themselves, by which division, those who undertook to license the defendant, had parted with their interest in that portion of the road, for which they gave the license. I should much doubt, whether the privilege or franchise granted by this act is, according to the spirit and intention of the act, susceptible of partition, so as to give exclusive and independent rights, in distinct parcels of the road, Public accommodation and convenience were the objects the legislature had in view, and a common interest to each proprietor in the whole extent of the road, would seem necessary, to prevent cpnfusion xvith respect tc the ccntinuaticn of the line of stages. If the franchise may be so divided as to vest separate rights, in- distinct parts, what would be the consequence of a neglect by any one to perform the duties enjoined by the act ? Would his portion of the road only, be forfeited, or the whole extent ? I apprehend the latter; and this would subject the other in? dividuals to a forfeiture, without a default. Without determining this franchise to be incapable of division, I do not think the evidence in the case will warrant the conclusion, that any such division has been made. The resolutions of the 14th March, 1803, adopted by the proprietors, were relied on, to show such partition. These resolutions must all be taken together, in order to determine their object and effect; and from a general view of them, I consider that nothing more could be intended than to assign to each proprietor the duty to be performed by him, and the proportion of the profits he was to receive ; the proprietors retaining in themselves, collectively, a general superin tendance and management of the whole route. Upon this construction, they are all reconcileable; but some of them are totally inconsistent with the idea of a separate and independent interest. The first resolution assigns to each individual, the distance he was to run. The second provides for the furnishing of able horses and suitable carriages. The third, designates the time and manner of running. The fourth provides for any future meeting of the proprietors, and declares, that any acts done by them, or a majority of them, shall be binding on the whole. And the last declares, that each one shall have the profits of the part assigned to him. If,, by the first resolution, a separate, independent, and permanent interest is vested in the several proprietors, the fourth is absolutely repugnant to it, by authorising a majority of them to divest it whenever they please. Upon this construction also, the last resolution would be useless and absurd ; for if the road was absolutely divided, it would follow, as matter of course, that each one would have the profits only of the part assigned to him. ’ I conclude, therefore, that those resolutions were intended only as a designátion of the duty to be performed by each proprietor, and the proportion of the profits he was to receive, subject to any other modification, which a majority of them should, at any future time, think proper to make. If a permanent division of this interest was intended, it is a little extraordinary, that releases were not executed. The mode here adopted, for tenants in common to sever their interest is unprecedented. If my construction of these resolutions be correct, Vanderhoff and Tremble had not so far divested themselves of all interest in the part of the road now in question, as to subject themselves to the penalty of the act, had they done what the defendant has. The remedy, if any, must have been upon this agreement, for the amount of the profits. The defendant, having acted by their license and permission, cannot be considered as having incurred the penalty. This result would lead to rendering judgment for the defendant, was it authorised by the terms of the case ; as it is, a new trial must be awarded.

Kent, Ch. J.

declared himself to be of the same opinion.

Spencee, J.

The defendant has moved for a new trial, and in arrest of judgment in this case, ánd a variety of points have been made, which I shall examine in their order.

1. That the statute, on which this action is founded, is a private act, and was not well proved, though read from the statute-book, printed by the printer of the state.

Footnotes

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* This act, so far as it respects the right granted exclusively to Donelly and others, to run stage-waggons from the city of Albany to the northern boundary of New-Jersey, was of a private nature; but as it regarded the public, in providing means to subserve their interest and convenience, and, as it went to take from all, under a heavy penalty, a right, before enjoyed by all, to erect or establish any stage on that route, during the term for which the exclusive right was granted, it was, in its nature, public. The objection to receive the printed book, coming forth under the sanction of the state printer, to prove the contents of this statute, is one of a technical kind, for no man can hesitate to yield full faith to the verity of the acts thus published. It is, in general, true, that a private statute must be proved, as other records: there are. however,' exceptions to the rule. Lord Ch. J. Parker,* allowed the printed statute book to be evidence of the truth of a private act, touching the institution of a college, on account of the notoriety of the establishment; and Lord Holt recognizes the authority of those decisions, which admitted in evidence a private act of parliament concerning a whole county, such as the act of Bedford Levels, if printed by the king’s printer ; so, also, the printed proclamation of the king, and the articles of war, printed by the king’s printer, have been, on great deliberation, held to be good evidence.‡ And they have been admitted as gaining some authority, from being printed by the king’s printer, and. from the notoriety of the subject in the vicinage. Upon these principles collectively, I think the statute-book, printed by the printer to the state, was properly read in evidence, to prove the truth of the act, on which this suit was brought.

2d. It is objected, that the defendant, being a grantee of another and definite part of the general route, is, therefore, not responsible for erecting and running a stage on that part for which he is sued.

This act, like others, and like the contracts of individuals, must have a reasonable construction, so as to effectuate, not defeat the intention of parties. The inhibition to establish a stage on the route, must be intended as an Inhibition to establish one on any part of the route, otherwise the act grants nothing. From the nature of the thing, the right granted by the legislature to Donelly and the six others, is partible; and it appears, that it was partitioned among the grantees. The act contemplated the interest conveyed, as capable of being so assigned, and I know of no principle which forbids it. Not only lands and other things which pass by livery, but things, also, that lie in grant, as rents, commons, advowsons, &c. that cannot pass by grant without deed, whether they be in one county or several, may be parted and divided by parol without, deed.§ If so, then the assignment to the defendant of a precise portion of the route, can give him no more right than a total stranger, to erect stages on a different part.

The third objection is already anticipated, and though the original grantees were tenants in common, their subsequent partition divested them, respectively, of any interest beyond such parts of the route as were assigned to them ; their license, therefore, to the defendant to erect stages on a part of the route appertaining to another, by their own agreement, was an attempt to impart a right which they did not possess, and, as such, the act is a nullity.

In arrest of judgment, it has been urged, 1st. that the day and month when the statute passed, should have been stated.

The misrecital of a public act, with a conclusion contra formam statuti, appears, by the authorities, to be fatal; in the present case, there is no question, in relation to variance, and the omission to state the day and month is not material. A reference to the cases cited on the argument shows, that this is the better method of referring to a statute. 2d. That the declaration does not negative the exceptions in the first enacting clause of the act. The right to erect and run stages, is given to Donelly and six others, their executors, administrators and assigns; and the penalty is given against every other person or persons, who shall erect or establish a stage or stages on the route. The objection is, that it is not alleged, that the defendant is not an assignee, executor or administrator. It is, undoubtedly, a rule of law, that an exception contained in an enacting clause, must be negatived by the plaintiff, in his declaration.* In the present case, after alleging^ that the defendant erected and established a stage on the route, the declaration charged it to have been done without the consent or approbation of the grantees in the act named, or either of them, or of their or either of their executors, administrators, or assigns, legally had or obtained, contrary to the form of the statute, &c. This, I think, a full allegation, that the defendant is not an assignee, executor, administrator, and that he derived no right under the grantees, or either of them. In an action on a penal sta tute, it is not necessary to negative, specifically, the exceptions ; it may be done generally, as in the cases mentioned-by Justice Buller, in Spieres v. Parker.* In actions for penalties on the game laws, it is generally alleged, that the defendant was not qualified according to the laws then in being. The third objection is, that the particular manner of erecting and establishing a stage on the route ought to have been stated. This objection comes after verdict, and if the offence is stated to a common intent it is sufficient.† It was matter of evidence what did or did not constitute an erecting or establishing a stage on the routes. A verdict will not mend the matter, where the gist of the action is not laid in the declaration;‡ but it will cure ambiguity. A verdict' will supply, whatever of necessity must be given in evidence.§ The same answer applies to the fifth objectiqn, that the particular route is not set forth; it must be presumed, after verdict, that the route on which the defendant established his stage, was the route to which the grantees had an exclusive right. I think on none of the grounds, urged by the counsel for the defendant, can there be a new trial, nor ought the judgment to be arrested.

Van Ness, J. having formerly been counsel in the cause, gave no opinion. ”

New trial granted.

26 Session, 20.

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1 Loft’s Gilb. Ev. 13.

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5 Term, 436. Bull. N. P. 225, 226.

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16 Vin. 217. part (A.) Co. Litt. 169. Salk. 42.

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1 Term, 144. 6 Mod. 559. 7 Mod. 27.

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1 Term, 141.

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Bluet v. Nees, Com, Rep. 225.

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Cowp. 825. Avery v. Hoole.

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4 Burr. 2018.

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12 Mod. 216.