Fowler v. Tuttle

24 N.H. 9

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Woods, J.

The defendant was entitled to receive the fees to which a recording or certifying officer is entitled by virtue of section 3, ch. 229, of the Revised Statutes. That section provides that “ To all recording or certifying officers, there shall be allowed, for each page of two hundred twenty-four words, copied or recorded, twelve and a half cents ; for any part less than a page, eight cents ; and for every certificate on a copy of a whole case, ten cents.”

The first question for consideration arises upon the ruling of the court, which was to the effect that the several certificates of the justice, appended to the various copies composing the entire copy of the case, were to be computed merely as a part of the copies of the case, and were not to be regarded as separate documents, and estimated as fractional parts of a page, and as such estimated at eight cents each. If there "be any error in this ruling, it consists in determining that the certificates are a part of the copies at all. They are not, in fact, any portion of the copies, but only attestations thereof. And we are of opinion that the statute is not to be construed as embracing these certificates within the provisions prescribing compensation for copies. Payment is to be made “ for each page of two hundred twenty-four words copied or recorded,” &e. Now the certificate of the justice, that what precedes it is a true copy, cannot itself be a copy, nor does it purport to be. And the same action, as we have seen, calls it “ a certificate on a copy.” If, then, the certificates cannot be treated as constituting any part of the copies, they clearly cannot be considered as fractional parts of pages of copies, and proper to be compensated for as such, as the plaintiffs contend they are. Moreover, the statute provides a compensation for a single certificate on a copy of the whole case. One certificate, then, for each case can alone be properly compensated for under the statute. And it is apparent that one is sufficient. A single attestation or certificate upon an envelope embracing the whole case, and referring to each of the parts of the case by number or other designation, is sufficient. For a single certificate, compensation is allowed, and the allowance is in terms for the “ certificate,” and not for that as a part of the copies, and to be paid for as such. The ruling of the court below, although found to be erroneous, was nevertheless too favorable to the defendant, and therefore forms no legal cause entitling him to a new trial.

It was claimed at the trial, by the defendant, that if any single paper, constituting a part of the copies of the case itself, contained more than two hundred and twenty-four words, and less than four hundred and forty-eight words, the same should be taken and compensated for as two pages ; but the court ruled that it was to be taken only as a page and a part of a page. We think the ruling of the court, as it is understood by us, was entirely correct. The true rule of compensation of pages under the statute, as we think, is plain and simple. The entire number of words of the whole copy of a case is to be ascertained by a count, and the whole number of words thus determined is to be divided by 224, the number of words constituting a page, and the quotient will give the number of entire pages of the whole case, and these are to be cdmpensated for at twelve and a half cents per page; and if there be a remainder, or fractional part of a page, that is to be treated as a part of a page, for which eight cents more are to be paid. The fact that the entire copy of the case is made up of various papers or various parts, cannot affect or alter the mode of computation. The whole case is to be regarded as an entirety — as one copy — consisting of various parts, to be sure, but, nevertheless, only one copy of the case, and to be compensated for as such, according to the rule already suggested. The provisions of the statute furnish no ground for holding the rule of computation to be such as the defendant contends for. If the number of words upon a single paper be found to exceed 224, but to be less than 448, the excess is to be added to the words upon the other papers composing the copies of the whole case, and if there be enough in all to amount to 448, then the same must be reckoned as two pages ; but if otherwise, only as one page and a part of a page, in conformity with the ruling at the trial. The statute provides for no number of words less than 224 as constituting one page, nor for any number less than 448 as constituting two pages, nor for any number of words as constituting a part of a page, to be compensated for as such, excepting such fractional part of a page as shall be found to remain after the ascertainment of all the entire pages, upon the rule already stated. The ruling of the court then was clearly right, that any number of words found written upon one paper of the copies of a case, exceeding 224 but less than 448, were not to be taken as two pages. If the ruling were understood to be that the number of words in such a case, beyond 224 on each paper of the base, are to be taken as a part of a page, and to be compensated for as a part of a page each, under the statute, at eight cents for each of such parts of .pages, the ruling must be regarded as erroneous, as being too favorable to the defendant, who excepts to it. But we assume that the ruling having reference to the parts of a page, in this case, was only to the effect that in such a case the number of words beyond 224, that should be found on any of the papers of the case, was not of itself to be regarded as an entire page, but only was to be added in the computation to the other words of the .other papers, and constitute in that way a part of a page of the copies, and be paid for as such. In either view, however, the defendant would have no cause of complaint.

It was contended at the trial that the services for which the $2,50 was demanded and received, according to the allegations in the writ, were not only the making of the copies and the certificates thereon, but also the granting of the appeal and the taking of the recognizance in the case. But we think the declaration is not necessarily thus to be construed. And indeed we think that is not the most obvious or the legal construction. The allegation of the fact of the granting of the appeal, and of the taking of the recognizance, is contained in one paragraph, while the allegation of the preparation and furnishing of the copies is in a separate and independent one; and in the last mentioned paragraph is found the further allegation, “ for which services said James Tuttle, Jr., was entitled to demand and receive the sum of one dollar and fifty-eight cents, and for the certificate on the whole case, ten cents, and no more.” We think it quite obvious and clear that the relative, “ which services,” found in the last paragraph, referred only to the services previously described in the same paragraph, namely, the. preparation and furnishing of the copies to the plaintiff. In the third paragraph of the declaration it is averred that the said James Tuttle, Jr., did knowingly and unlawfully demand and take a greater fee “ for said services” than by law he was entitled, to wit., the sum of two dollars and fifty cents. And we think the term “ said services” in this last paragraph referred only to the services specified in the paragraph next preceding that in which this relative is found. The reference is to the antecedent next preceding the relative. Certainly that must be the construction where there is any ambiguity in reference to the antecedent referred to. Here the reference might be to the services rendered in granting the appeal and taking the recognizance alone, or it might be to those services, together with the services rendered in preparing and furnishing the copies and in making the certificate thereon; or, it might be to the services rendered in preparing and furnishing the copies and certificates only. But the question is, what was the antecedent to which the pleading refers ? And we think upon a fair and legal construction of the declaration, the latter branch of the services mentioned must be taken to be the antecedent referred to by the relative next succeeding it.

This view is in accordance with the rule of construction applicable to statutes, contained in the Revised Statutes, ch. 1, § 12. It is there provided that the words “ said” and “ such,” when used by way of reference to any person or thing, shall apply to the same person or thing last mentioned. And the principle of construction, stated by Mr. Comyn, and cited by the plaintiffs’ counsel, is a very reasonable one, namely: that where an averment admits of two intendments, that shall be preferred which will uphold the pleading. Comyn’s Dig., Pl. C, 25 ; see, also, 4 Taunton 492; 5 East 257; 1 Saund. Pl. & Ev. 416. On the whole we are clearly of the opinion that the presiding justice was entirely correct in holding that in computing the services for which it was declared in the writ that $2,50 were paid, the granting of the appeal and the taking of the recognizance were not to be included. And the allegations of the declaration thus understood, were fully supported in tiffs particular by the evidence in the case.

It was alleged in the writ that the defendant was entitled to receive the sum of one dollar and fifty-eight cents for “ said services,” and for the certificate on the copy of the whole case, ten cents, and no more; but the proof showed that the defendant was entitled to receive for the copies' $2,02-£. The court below ruled that the variance was immaterial, and to be disregarded. We think the ruling was correct. The whole penalty was incurred if any thing more was taken than was allowed by the statute. It is not a case where the penalty is graduated according to the amount of the excess received above the lawful sum, as in the case of usury, where the true sum should be stated. The averment here stated a sum to which the defendant was entitled, and the taking of a larger sum, and therefore stated a perfect cause of action. The proof showed that the defendant was entitled to a larger sum than that to which he was alleged to be entitled, and also that he demanded and received a larger sum than that to which he was in fact entitled. The material matter to be averred and proved was, that the defendant received of the plaintiffs a greater amount of fees than by law he was entitled to receive. All that was done. The proof did not agree with the averment in the declaration in point of amount, as to the sum to which the defendant was entitled, but did correspond with it in relation to the amount actually received. The evidence then did not agree with the declaration as to the amount of the excess received -beyond the lawful fees, but did show an excess in point of fact. The want of agreement between the declaration and proof in relation to the amount of fees to which the party was entitled for the services rendered, is an immaterial variance, and cannot affect the verdict. The averment of the amount to which the party was entitled was wholly an immaterial averment, and therefore might well be regarded as surplusage’. In cases like the present, it is only necessary to state the sum actually received, and that the same is more than at the time of taking was allowed by law. 2 Chitty’s Pl. 303. In Livermore v. Boswell, 4 Mass. Rep. 437, Parsons, Ch. J., remarks : “ The second objection is that there is no allegation of the sum levied and collected by force of the execution. It is alleged that for levying and collecting fifteen dollars, the defendant received four dollars, and that the fees received were greater than are allowed by law for poundage and travel, which is certain enough. For it is not necessary to set forth the whole transaction in this case, as in usury, where the illegal contract must be precisely set forth and proved.” The exception of the defendant to the ruling of the court in this particular, Cannot avail him.

It was objected at the trial that it was not alleged in the plaintiffs’ writ that the $2,50 were received by the defendant within one year next before the time of the commencement of this action, and that alleged omission was made a ground of motion in arrest of judgment. The writ was dated on the 17th day of November, 1848, and the allegation in the declaration is that the copies were furnished and tendered to the plaintiffs on the 13th day of November, 1848, and the defendant did knowingly and unlawfully demand and take a greater fee for “ said services” than by law he was entitled to, to wit., the sum of $2,25, &c. It appears upon the writ, then, as far as any matter appears, that the services for which the payment was made were performed and completed, and the payment therefor demanded and received on the 13th day of November, 1848, and from the date of the writ that the action was commenced on the 17th day of November, 1848. And although it is not directly averred that the §2,50 were received within one year next before the date of the writ, yet it is averred that the defendant did demand and receive for said services a greater fee than by law he was 'entitled to, which is the offence of which complaint is made in the writ, and which, being received “ for said services,” can only be understood as having been received after the performance of the services, and consequently within one year next before the commencement of this action. But if the declaration is to be construed otherwise, and not as containing an allegation that the offence was committed within one year next before the time of commencing the action, the omission of that averment is immaterial, and will not vitiate the declarations. It would seem to be well settled that even where the particular statute giving the penalty limits the time within which the action for the recovery of the penalty should be commenced, although it is usual to aver that the offence by which it was incurred was committed within such time, yet such averment is not material. Lee v. Clarke, 2 East 333, 342; King v. Steventon, 2 East 362; 1 Chitty’s Pl. 372, (Ed. of 1840;) 2 Saund. Pl. & Ev. 830. The statute upon which this action is founded does not limit the time within which the action should be brought. Rev. Statutes, ch. 229, § 25. The limitation is contained in another statute. Rev. Stat., ch. 211, § 9. We think it was then clearly not necessary to aver in the declaration the reception of the §2,50 within one year next before the commencement of the action, or by averment to negative the fact of the limitation of the right of action at the time it was brought. Vavasour v. Ormond, 6 B. & C., 431. The limitation in such á case is matter which should more properly come from the other side, and therefore comes within the well settled rule that in such a case it need not be stated or negatived. That a prima fáeie case was here stated in the declaration cannot be doubted; and that is sufficient. 1 Chitty’s Pl. 222, (Ed. of 1840.) In the case of Pike v. Jenkins, 12 N. H. Rep. 255, which was debt on a penal statute, the defence of the statute of limitations, was interposed under the plea of the general issue. A similar defence was allowed in a similar action in Maine. Moore v. Smith, 5 Greenl. Rep. 490. It is apparent from those two cases that the limitation of the action in a case like the present is a matter of defence, properly coming from the defendant. The motion in arrest of judgment, founded upon this exception to the declaration, cannot prevail.

We entertain no doubt of the entire correctness of the charge of the court to the jury, that the reception of the $2,50 by the attorney of the defendant, subsequently assented to, and recognized by the defendant as being done by his authority, must be regarded as being the same as if it had been received by the defendant in person, and rendered him liable to the penalty of fifty dollars. And we think it is equally clear that if he acted under any misapprehension or mistake, the burthen of proof was on him to show it. This is but reasonable, since the party is presumed to know the law. The act of the attorney, done in behalf of the principal, and adopted by him, becomes the act of the principal. The money in the hands of the attorney was the money of the defendant, and the fact that he, in fulfilment of a prior agreement, left one half of the sum received in the hands of the attorney, as a compensation for his services performed for the defendant, cannot alter the case.

The reply of the juror to the inquiries of his brother as to the result of the .trial, had before him on the previous day, could of itself work no prejudice to the defendant; nor does it indicate any bias in favor of the plaintiff or defendant in the decision of the cause. The verdict had been agreed upon on the previous evening, and on the morning before returning the verdict into court, the juror told his brother, in reply to his inquiry respecting it, that it had gone in favor of the plaintiff. It would have been more in accordance with a just sense of propriety on the part of the juror, if he had declined giving the information sought. Still, since it is seen that it did not influence and could not influence the verdict, and furnished no evidence of partiality or misconduct on the part of the juror in determining, upon it, we are of opinion that the motion of the defendant to set aside the verdict upon this ground must be overruled.

The present action is debt for a penalty, for taking illegal fees, as a magistrate, for the copies of a case upon an appeal. The penalty is claimed for an alleged violation of section 25, ch. 229, of the Revised Statutes. The language of that section is as follows, namely: “ If any person shall demand and take any greater fee for any service than is allowed by law, or any fee to which he is not by law entitled, he shall forfeit fifty dollars for each offence, to the person who will sue for the same.” The action is brought by William W. Fowler and Henry S. Plumer ' as copartners, jointly negotiating business as a firm, who claim to be entitled to the penalty and a right to recover it in that capacity. But we are all of the opinion that the statute gives the penalty only to such individual as shall entitle himself to it by first commencing an action for its recovery. It was not the design of the statute to give the penalty and right of action for its recovery to two or more individuals, who should be copartners for other lawful purposes, nor to such as should associate themselves together and form a copartnership, or a combination or alliance, for the prosecution of an individual for the recovery of a penalty alleged to be incurred. If the statute might be regarded as giving the right of action to two persons sueing as a partnership, or to two persons who might see fit to commence a joint action, so, upon the same rule of construction, the action might be commenced in behalf of many individuals ; — of ten, fifty, or a hundred, or of a greater number. By the most obvious construction of the language of the act, the right of action, as we think, is limited to the individual who shall first, in good faith, commence and prosecute the action, and to him alone. It is not redress for an injury sustained, that is sought or obtained by the action. The party injured is entitled to his remedy, notwithstanding the recovery and payment of the penalty. And partnerships as well as all others are entitled to redress according to the injury sustained. The forfeiture of a penalty is created by statute for another and different object, and not by way of redress to the injured party. It is given by way of example; its object being to deter the party who may have violated the law, and incurred the penalty, and others, from all further extortionate practices. It is in the nature of a penalty for a crime, although the forms of proceeding in the case are not such as are ordinarily adopted for the punishment of crimes. The fact, then, that the individuals injured have brought the action, can furnish no reason why they should be allowed to maintain it, which is not equally applicable in the case of an action commenced by others associated for the purpose. No precedent for the present proceeding has been shown to us by counsel, or found by ourselves. The case is one we think of entirely new impression. No such action, we think, has been maintained in this State, unless it may have been in a case where the penalty may be given in terms to the parties injured. It would not, in our opinion, be in accordance with sound policy, or the analogies of the law, to encourage the combination of men to prosecute for the recovery of mere pecuniary penalties, lest, in doing so, the system should be found fraught with the production rather than the prevention of wrongs. Actions are sometimes commenced for the purpose of oppression, and not for the redress of wrongs. To give the statute the construction contended for by the plaintiffs, would be calculated to increase litigation, which it is not the policy of the law to do, and it is not to be presumed was the design of the statute. No construction should be given it calculated to lead to unnecessary litigation. Such a construction would be attended with mischiefs not contemplated as the objects of the act. We are all fully satisfied that every legitimate object of the statute may be accomplished upon the construction we place upon it; that it is the most natural construction of the language of the act, and that in view of the consequences of allowing many individuals to associate for the purpose of commencing and maintaining actions of the character in question, we would not be justified in holding that this action may be maintained. The effect of the decision is not to shield the defendant from the just penalty of the law, if he has violated the act, as the plaintiffs allege, but it leaves the matter open to such parties as shall be found entitled and willing to commence new proceedings for the recovery of the alleged penalty. Upon this ground of exception to the declaration, the judgment must be arrested, according to the motion of the defendant.

Judgment arrested.