Little v. Perkins

3 N.H. 469

Opinion

RichaRdson, C. J.

delivered the opinion of the court.

Footnotes

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The statute, upon which this action is founded, declares, a that no person, from the first day of May to the last day of “ October, annually, shall erect, build, or continue any mill “ dam, wear, or other obstruction upon or across” certain rivers and streams, where certain fish usually pass, so as to prevent the free passage of said fish in said streams, “ on “ penalty of forfeiting the sum of $50 for every mill dam, “ or other obstruction, so erected, and also the sum of $30 “ for continuing the same one week, and in that proportion “ for a longer or shorter time. Provided nevertheless, that “ it shall be lawful for the owners or proprietors of mill u seats, &c. to build dams across said rivers and streams, “ provided they keep open a sufficient passage wmy for the <£ fish, &c. from the tenth day of May to the twentieth day “ of June, and from the twentieth day of August to the u twentieth day of September annually.”

The language of this statute seems to us to be too clear ’and explicit to be misunderstood, it has made it unlawful to erect, or to continue any obstructions to the free passage of fish in the rivers and streams, mentioned in the statute, between the first day of Aiav and the last day of October annually, under a penalty of $50 for the erection, and a penalty of $80 a week for the continuance of the obstruction. But the proviso exempts from the operation of the statute the owners and proprietors of mill seats, who keep open a sufficient passage way for fish at certain seasons.

In this case the plaintiff demands, in his first count, a penalty of $50 of the defendants, for having, on the 2d May, 1824, a data erected, and a penalty of $210 for continuing the same from the 1st May to the 20th June, in the same year ; and the question is, whether, according to the rules of good pleading, these two sums can be demanded in one •count ?

It is very clear, that under the statute no forfeiture of ⅜50 is incurred merely by having a dam, which has been already erected. That penalty is given for erecting a darn, «nd not Tor having one tnat is already eTepted-. But as the plaintiff demands a distinct penalty for that cause, the question still arises, whether distinct and different penalties, for distinct and different acts, can be demanded in one count ?

Where a statute creates a duty, and declares, that a particular sum shall be forfeited lor every week, month, or year, it is omitted ; or where a statute prohibits an act, and declares, that a certain sum shall be forfeited for every week or month, it is continued ; in such case, the whole sum forfeited may be demanded in one count ; because, in truth, there is but one forfeiture, the amount of which is measured by the lapse of time. Thus, in Lilly’s Entries 151, there is a count against a vicar for non-residence seven months, and seventy pounds are demanded, to wit, ten pounds for every month. And see Lilly's Ent. 175, and 1 Went. PLl. 216.

So, where a statute prohibits a particular act, which may-embrace several particulars of the same nature, under a penalty of a certain sum for each particular, the sum for feited for an act embracing several particulars, may be tie* ninnded in one count ; because the forfeiture is entire, ai» though the amount of it is measured by several particulars. Thus, in 7 Went. Pl. 148, is a count in debt for buying eight partridges contrary to law, in which the sum of forty pound» is demanded, to wit, the sura of five pounds for each, partridge. And see 7 Went. Pl. 225, 280.

Rut we are not aware that it has ever beer, held, that two distinct and different penalties for distinct and different, acts, could be demanded in on» count. 3 D. & E. 509, Brooks vs. Milikin.—5 Mass. Rep 266, Burnham vs. Webster.

We are therefore of opinion, as duplicity is assigned as a Cause of demurrer, that the first count must be adjudged insufficient. And as the second count stands on the same ground, and liable to the same objections, there must be

Judgment for the defendants,

Harris, J. having been of counsel for the plaintiff, did not sit in this action,