Palmer v. Conly & Johnson

4 Denio 374

• Court: New York Supreme Court
• Decided: May 15, 1847
• Status: Published

Opinion

By the Court, Jewett, J.

It may be true, that hereafter it will not be an offence against the provision of the statute in question for the tenant to remove his goods from the demised premises for the purpose of avoiding the payment of rent, or for any person to assist in such removal. The remedy by distress being abolished, the provisions intended to guard and protect that remedy may well be held as to future cases to be abrogated. But at the time this offence was committed, that remedy was in full force. And the instant the thing was done for which the penalty was given, it became a debt or duty vested in the plaintiff. It is in the nature of a satisfaction to him as well as a punishment of the offender. (The Company of Cutlers in Yorkshire v. Ruslin, Skinner's Rep. 363; Grosset v. Ogilvie, 5 Brown’s P. C. 527; College of Physicians v. Harrison, 9 Barn. & Cress. 524.) The plaintiff having acquired a vested right to the penalty, the statute abolishing the right of distress, subsequently passed, which did not in terms repeal the section in question, in no way affects that right.

It is a doctrine founded upon general principles of the law, that no statute shall be construed to have a retrospective operation, without express words to that effect, either by an enumeration of the cases in which the act is to have such retrospective operation, or by words which can have no meaning unless such a construction is adopted. (2 Dwarr. on Stat. 677.) A retrospective statute would partake in its character of the mischiefs of an ex post facto law as to all cases of crimes and penalties, and in measures relating to contracts or property would violate every sound principle.

(a)

In a recent case it was laid down, that when the law is altered by statute pending an action, the law as it existed when the action was commenced must decide the rights of the parties to the suit, unless the legislature express a clear intention to vary the relation of litigant parties to each other. (Hitchcock v. Way, 6 Adol. & Ellis, 943; see also Paddon v. Bartlett, 3 id. 884.) The construction which will repeal a statute by implication is not favored. To have that effect the second statute must be plainly repugnant to the first. (Foster's case, 11 Coke, 56, 63.)(b)

The remaining ground upon which the court below non-suited the plaintiff was, that the offence charged to have been committed upon which the penalty is claimed, was in its nature several; and that therefore each of the defendants was liable separately and not jointly for a penalty for his separate offence. The offence alleged against the defendants consists in having knowingly assisted the plaintiff’s. lessee to remove his goods from the premises demised by the plaintiff to him, for the purpose of avoiding the payment of certain rent remaining due upon the demise. It is plain that an action of debt on a penal statute will not lie against several for what in law is a separate offence in each. But when the act which is made an offence is in its nature single, and is one which cannot be severed, then the penalty shall be only single, and although several persons join in committing it, it still continues but one offence. (Marsh v. Shute, 1 Denio, 230; Ingersoll v. Skinner, id. 540.) This question has sometimes turned upon the nature of the offence, without regard to the terms in which the penalty is imposed in the statute, as in the case of Rex v. Clark, (Cowper, 610.) A better criterion, perhaps, is the apparent intention of the legislature to be collected from the statute, upon which " the prosecution is founded, which was the principle acted upon in the case of Partrige v. Naylor, (Cro. Eliz. 480.) There the action was upon a penal statute against three, and though the' words "'of. the" "act' were":"'"t( Every person' oWéd&ng, shall) for "every- such offence; forfeit;” &c> yet- thé action being giveff only to the party''ihjmied''hy-- the :bff¿ncé;- -it: viras adjudged ■"thhXohly "¿fie penalty^ intended a'sati¡ptc4íon^ than as a '"punishment of tiré-offenders. And-'ffpqn- • this" "it: was that) Powell, X, ‘-‘distinguishe"d:'"t-hat ‘';casé''fróhi'.,;',The Queen v. King (1 Salk. 182,)'whicIf,"wáS:'thé;=cáse- ofh. ■■•conviction for deer "stealing, agaiiist two"the" Words "of "the statute being that tire offenders shall1 “ respectively forfeit £-30 and the forfeiture .Being intended not'as a' satisfaction; but as "a punishment, was áwárdéd against" each of the 'defendants." Hardyman v. Whitaker, (2 East, 573, n.) was an action of debt against nine persons, for a breach "of the game laws. The statute enacted that “ the person or persons convicted” shall forfeit £5. It was adjudged that only one penalty was incurred; because, say the "court, “ the statute itself has made the offence joint, and made them all subject to but one forfeiture,” that “ the distinction is, when the offences are [by the terms of the statute] made joint- and when not.” Barnard v. Gostling, in error, in the exchequer chamber, (1 New Rep. 245,) was an action of debt against two for certain penalties. The words of the statute were, that “if any person shall,” <fcc. “every such person shall, for every such offence forfeit £50.” It was adjudged that the penalties were several, because the statute declared “ every” offender liable to the penalty, and therefore two defendants could not be joined in the action. The King v. Bleasdale, (4 Term Rep. 809,) was the case of a conviction on the statute, 5 Anne, for using a greyhound to destroy game. The court held that the question depended upon the statute, which enacted that “ if any person or persons, shall,” &c. “ the person or persons so convicted shall forfeit”—and that only one penalty was forfeited.

The rule at common law is universal that every crime, as far as respects the guilt and punishment of the parties engaged in the perpetration of it is several; and that if two or more persons concur in the commission of an offence, each offender is liable to a several punishment. , This principle, extends to statute offences as well as to those which are. punishable by the common law; and in general there- is no distinction in the application of it between the higher kinds of punishment, and fines or mere pecuniary penalties. There'are however some exceptions to this rule arising under penal statutes, • but the line of distinction by which' such exceptions are limited is sometimes difficult to ascertain. I take it to be' clear that when a statute creating an" offence shows by its terms an intention in the legislature' to inflict but a single penalty, (as where it is given by way of compensation to the individual injured by the offence, or when the: language of the act makes it single,) there is a plain positive ground of exception to the general rule. The provision now under consideration was taken from and is substantially like the 14th section of the former statute concerning distresses, rents and the renewal of leases, (1 R. L. 437, 8,) and the precise question here arose upon that section in Warren v. Doolittle, (5 Cowen, 678,) and there it was determined by the unanimous opinion of the court for the correction of errors that the offence was single, although several united in its commission, and that only one penalty followed and was imposed on all of the defendants, and not on each and every of them. The common pleas, in my opinion, erred upon both the grounds on which they ordered a nonsuit.

Judgment reversed.

See Dash v. Van Kleeck, (7 John. 477,) and the cases cited by Bronson J. in Sackett v. Andross, (5 Hill, 334 to 336.)

If the section of the statute on which this suit was brought had been actually repealed, it would be difficult to sustain the action, though the judgment appealed from was rendered while the provision was in force. The effect of an appeal is to suspend the judgment and to subject the law as well as the fact to review. It destroys the effect of the judgment as res adjudicates. (Yeaton v. The United States, 5 Cranch, 281, 283; The Schooner Rachel v. The Same, 6 id. 329; Lewis v. Foster, 1 N. Hamp. 61.) And the general rule certainly is that the repeal of a penal statute prevents the recovery of penalties for acts committed before the repeal, though a suit has been commenced and a verdict obtained. (United States v. Passmore, 4 Dall. 372 and the cases cited; Butler v. Palmer, 1 Hill, 324 and cases cited by Cowen J.; Commonwealth v. Welch, 2 Dana, 330; Commonwealth v Leftwich 5 Rand. 657; Anon. 1 Wash. C. C. R. 84.)