author:
Swift, Ch. J. Baldwin, J.
      ( íoults, ,T.

text:
    Tomlinson against Leavenworth and others :
    11ST ERROR.
    TS1.Í& was an action on the statute « to prevent encroach-meals on h i¡chw(njs,*

       brouglii by Leave incur Hi and others, as select-men of the town of Huntington, against Tomlinson, s ⅛ before Mel French, Esq. si justice of the peace for Fairjield county. The declaration alleged, that the defendant, on the ¡5th of May, 1817, erected a fence on and across a certain public highway leading from Zoar bridge, a bridge across Omatannick river, to the centre of *S'ew-Stratford in said Huntington, near the defendant’s dwelling house in said Huntington, so as to enclose and take into the defendant’s field or enclosure a part of said highway; that the plaintiffs, on the next day afterwards, being then select-men of the town of Huntington, gave notice to the defendant to remove, or cause to be removed, said fence or encroachment, within twenty-days from that time, which he neglected and refused to do ; that on the 7th of June following, the plaintiffs, being select-men as aforesaid, threw down and removed from the highway said fence or encroachment; and that the expenses of giving Such notice, and of throwing down and removing such encroachment, amounted to seven dollars ¡ which the plaintiffs sought to recover.

      menof⅛-town of //, brought an A., J5. and tH col/iot _ action on the statute “to prevent encroachments on highways,” (tit, 57.) to recover the expen. ses of giving notice to the defendant, and of throwing down and removing an encroachment, pursuant to the statute ; alleging, that the defendant erected a fence on and across a certain public highway in the town of If, so as to enclose and cake into the defendants field or enclosure a part of said highway. Held, that the plaintiffs, in this transaction, did not act as the agents of the town, and that the town was not interested in the event of the suit.

      Hartford,

    November, 1817.
    The defendant pleaded in abatement, that the justice before whom the suit was brought, was an inhabitant of the town of Huntington, and had real and personal estate in said town liable to taxation : and that he was, therefore, interested in the event of the suit, and incompetent to try the same. The justice decided, that this plea was insufficient, and ordered the defendant to answer over. Final judgment being rendered against him, the defendant brought a writ of error in the superior court: and the judgment of the justice being there affirmed, tiie present writ of error w as brought.

      Sherman for the plaintiff in error.

      Chapman for the defendants in error.

         Stat. Vann. tit'. 57. The three first sections of the statute referred to, are as follows : 1. “ That if any person hath, within the space of fifteen years, taken, or shall take, any part of any highway, or common, or undivided land into his field or enclosure ; or erect any fence thereon, in such manner that the said highway is straitened, and made narrower than before ; or any part of the common or undivided land is encroached upon ; the select-men of the town wherein the offence is committed, or a committee appointed by such town for that purpose, or a committee appointed for that end, by the proprietors of the common or undivided land encroached upon, (which committee such town and proprietors are enabled to appoint) or any three of such proprietors, are hereby directed and empowered to give notice or warning'to the person or persons so offending, to remove, or cause to be removed, such fence or encroachment, within such convenient lime as the said select-men, committee, or proprietors shall-appoint,'not exceeding-one month-after such notice.
      ¾ “And if the person or persons warned as aforesaid, do not cause such fence or encroachment to be removed within the time so limited, it shall be lawful for the said select-men, committee, or the said three proprietors, to remove the same.
      f>. “ And the person who made such encroachment shall pay to such selectmen, committee or proprietors, the charge of suck warning, and throwing down and removing such encroachment; to be recovered by action, before any court propel’ to try the same.”

   Swift, Ch. J.

The question is, whether the justice of the peace w as interested ; and this depends upon the question whether the town had any interest in the matter in dispute.

It appears by our statute laws, that towns are obliged to defray the expense of laying out roads ; to appoint surveyors to keep them in repair : and to authorise the select-mcn to lay the town into districts. When a highway, which it is the duty of a town to maintain and repair, shall not be kept in good and sufficient repair, the county court, on complaint made, may order necessary repairs, and grant a warrant against the select-men of the town to collect the expense. This is all the duty imposed by statutes on towns respecting highways.

The statute has constituted the erecting or making of a nuisance in highways, an offence that may he prosecuted by a common informer, and has authorised any private person to remove obstructions to the passing of highways, but has imposed no duty on the town.

The statute against encroachments has authorised and empowered the select-men, after a month’s warning, to remove them, and to recover the expense from the persons who have made them ; but no duty is any where imposed upon a town to cause them to be removed. The only duty of towns, then, respecting highways, is to keep them in repair ; and they are under no obligation to remove encroachments, as such.

When the legislature empowered select-men to remove encroachments, they could not have considered them as officers of the town ; for this was not the duty of the town. The term select-men” is only a description of the persons the legislature thought proper to designate ; they arc not constituted the agents of the town, but of the public, or, of the law ; and they can have no claim on the town for their services, w ithout an express provision for that purpose.

Further, the statute has provided a mode by which they are to be reimbursed their expense y and this precludes any right to demand it of the town.

It is said, however, if they should fail to recover it in this mode, they would be without remedy ; and it would be unjust that they should be directed to perform services, and .have no means of obtaining a compensation. Rut I apprehend, the statute is not imperative. It merely provides, that it shall be lawful for them to remove encroachments ; that they shall have the power to do it; and this renders it optional with them to do it, or not.

Rut, admitting the statute to be imperative ; this cannot be a reason why they should charge the expense against a community, who are under no obligation to see the service performed. They may as well charge the expense against a society, or school district, within the limits of which, an encroachment has been removed.

But the principal argument is, that it appears from the declaration, this is such an obstruction of the highway as to prevent travelling ; and that it was the duty of the town to remove it, by the act requiring them to keep highways in good and sufficient repair.

It does not, however, appear from the declaration, that this was any thing more than an encroachment; or that it was such an injury to the highway as obliged the town to remove it, in order to repair the road. Nor does it appear, that this was a road which the town were obliged to keep in repair ; for it may have been a turnpike road, which the turnpike company were obliged to repair. At most, it could only be a nuisance, which any individual could remove,

But admitting this encroachment had been such an injury to the highway, that the town were bound to repair it ; then it was optional with the select-men, either to repair it, and charge the town, or pursue the steps of the statute, remove it as an encroachment, and call on the persons who had made it, to pay their expenses. But when they have made their election, they cannot pursue both remedies; they cannot proceed on the statute against the persons making the en croachment, and then, on failure, turn round against the town ; but this proceeding is conclusive evidence that they incurred this expense, not under the statute for repairing highways, hut under the statute against encroachments, am! will be a perpetual bar against any demand on the town.

I am of opinion, that there is no error in the judgment complained of.

In this opinion, Trumbuii, Edmond, Smith, Brain ard and Goddard, Js. concurred.

Baldwin, J.

The first question in this case is, whether the town has an interest in the event of this suit ? If so, w hether the nature of the action is such, that a justice of the same town can try it, notwithstanding such interest ?

To determine whether the town has an interest, wc ought to look further than the statute in question.

It is a principle, running through our system of laws on that subject, that the several towns shall furnish ali seedliil highways for public travel. It is made the duty of the select-men to lay them out; and if thuy neglect, or rt-fust.5 the county court will do it; bid, in both casos, a* the expense of the town. Such highways must be laid out. of a suitable width ; and if not otherwise made, and repaired, and protected in width, the town can be compelled to do it. Towns have, then, a direct interest in protecting from encroachments, the highways, which they have thus paid for, and are bound to furnish, it would seem, then, that wit bout the aid or direction of any particular statute, but by virtue of their general powers “ to take care of and order the pru - dential affairs of the town” and guard their interests, it would be. the duty of the select-men, to sec that encroach meats were not made on, or if made, that they should be. removed from, highways. To aid them in this duty, the statute respecting encroachments was made. It imposes no new duty, but gives the option of a more speedy and sovereign remedy. The select-men, acting under this law, are still acting for the benefit of the town, to secure its interest, and protect its rights: and for the benefit of the town, they are authorised to collect the expense from the person making the encroachment. But suppose that from insolvency, or other cause,.they fail to obtain compensation for their services in the mode pointed out by the statute ; is not the town whose agents they arc, and for whose benefit they have done the service, liable to make them compensation ?.1 think it is.

I know it is said, that they are the agents of the laic ; and acting in that capacity, the town is not liable to compensate them. To this I answer, that the select-men receive all their powers by the various laws respecting them. The duties imposed upon them, are various and extensive. It cannot be claimed, that they are to discharge them without compensation ; and 1 know of no other or better rule, than the one in universal practice, that the party for whose ben eltt they act; shall yield them their compensation.

In this case, the town receive the immediate benefit : and if compensation cannot be obtained in the mode pointed out by the statute, it seems to me, that the town is, and ought to be, liable. I am, therefore, of opinion, that the town is inter ested in the event of this suit.

The next question then occurs, whether a justice of the town can try a cause in which the town is interested.

As a general rule, the law wiM not countenance an interés-ied judge, or witness : but it is more strict in the. exclusion of a judge, than a witness. Members of located corporations, are often admitted as witnesses from necessity. That necessity never extends to a judge, except where the state is a party. In criminal eases, where the offence is punishable by fine, I agree, that usage, lias sanctioned 1 lie jurisdiction of a justice, where, the fine is payable into the treasury' of the town to which he belongs. This usage is, however, opposed to principle, and ought: not to be extruded ; and it never was, to my knowledge, extended to civil suits in which the town v as a party, or had an interest.

I am of opinion that the justice could not try the cause: and that there is manifest error in the record.

iíoswin?, J. was of the same, opinion.

( íoults, ,T.

In my opinion, the town of Hunt button is interested in the event of the suit; and 1 lio judgment is, therefore, erroneous. And the ground of this opinion is, that the removal of the obstruction in question, by the defendants in error, was in discharge of a duty, imposed by taw upon the. town, and which it was their duty, as select-men, to perform in the town’s behalf.

15y the general law of the state, each town is bound to keep in repair, all public highways, within its own limits: and though, in particular instances, this obligation is transferred, for a time, to turnpike companies : yet, these are only excepted cases, under special acts of incorporation; and therefore, such a transfer of the obligation is never to he presumed. Prima facie, tSie duty belongs to the towns. And this is a sufficient answer to the suggestion, that the highway in question does not appear, from the record, to he one of those, which it. is 1 ho duty of towns to keep in repair. From its being a public Irgliwav, that fart is to be presumed.

Now, the duty of a town to keep a highway' in repair, includes an obligation to do all that is necessary', to render the road, not only passable, but convenient for travelling. It. therefore, extends to the removal of all obstructions, which impede public travel, or which render if dangerous, difficult, or inconvenient. In the present instance, the obstruction., wiiiic it continued, rendered travelling, over that part of the road, in which it was raised, impossi - ble. Surely, then, if it liad not been removed, the town would have been liable to a prosecution. (Stat. Conn. lit. 86. c. 2. s. 3.) For if it is not the duty of towns, to render highways passable, when there is no pretence, that the obligation rests elsewhere , it is plain, that the duty does not exist at all : and our public roads may all be blocked up, and continue so, unless individuals will voluntarily open them-at their own charge.

Much has been said about the distinction between encroachments and nuisances, under our statute-law ; and it has been contended, that this action is brought upon the statute against encroachments, which will not support it. This is rather a verbal exception, than any thing else. The facts disclosed show, that the- obstruct ion was a nuisance : as it extended across the whole highway, and rendered it impassable. And there is no propriety hi saying, that the action is founded upon the statute against encroachments. To declare upon, a statute, or in any other way to plead it, is merely to state such facts, as bring .arcase within it. Ami the facts, alleged in this declaration, clearly bring the case within the statute against nuisaijces,. but not within that against encroachments. c

Had the defendants in error, then, as select-men, authority by law, to ;u:fvami did they act, as agents of the town ? A town can do an act of this kind, only by its agents; and iis select-men ¾⅜*0⅜ by statute, ex officio, its agents for the purpose. (Stat. Conn. tit. 86. c. 2. s. 3.) If, therefore, as Í have cndoavoftfod to show', it was the town’s duty to rendei the road passable^ and convenient, for travelling; it was, of course, the duty of the defendants in error, as select-men, to perform the service necessary to that end, in behalf of the town. They wefe bound, by a statute of the state, to do it, to save the town from a prosecution (Slat. Conn. uh. sup.) : and they have done it.» And if they fail in this suit, they have, of course, a right to resort to the town for indemnity. To deny them all compensation for their trouble and expense, except what they may he able to obtain from the wrongdoer, would be, in the highest degree, unjust. lie may not, be discovered, or lie may be insolvent. Are select-men, in all such cases, to be left without any indemni ty ? If not. they Must have it from the. town ; for they certainly cannot obtain it from any other quarter.

But select-men, according to this doctrine, it is said, may render towns liable, in this manner, ad libitum, By no means. The question, whether their services, in any particular instance were necessary, and whether their charges are reasonable, is open to investigation, as unliquidated claims are, in all other cases.

The act, done by these select-men, has been compared to that of a constable, in executing legal process — in which case, it is said, and said truly, that he lias no claim upon the town, which appointed him, for his services. But there is no similitude between the two cases. The distinction is between those acts, which are imposed, as legal duties upon towns, and those, which are not. A constable, is, for most purposes, not an agent of the town, by which be was appointed, but an officer of the law. In serving process, he executes no duty, which does, or can, appertain io a town : nor does lie act, in any sense, as its representative, or agent. .But sdcct-men, as such, in Jbestow-ing necessary labour or expense upoghway, act as much in discharge of a town duw-pjifhi'⅛⅞¾⅝⅝!' ter of town agents, as in furnishing supplies to a imuif'r. \nd they have, of course, the same claliji, ^AuWA'ftir indemnity, ⅛ the former case, as in the latter. _ I

The town of Huntington, therefore,\in and of course, the justice, who rendered5 ment, have an immediate interest in the event of CTie suit.

Jqdgment affirmed.


source: Caselaw Access Project

author: Swift, Ch. J. Hosmer, J.

license: Public Domain

text:
    Walker and others against Wheeler and others.
    T1IIS was a bill in chancery, brought by David Walker anti the heirs of Nathan Nichols Walker, against their sisters
      Patience Wheeler and Ann Wheeler, to regain their title to ¡he real cstuic, which had been distributed to then), under a conditional devise of their father Eliakim Walker, and had been forfeited at law, by non-performance of tin: condition. The principal facts are contained in the. statement of the case in the action at Saw Wheeler and Wife v. Walker, ante 196.. and-need tint bo repeated here.

      where» testator, having two sons and two daughters, devised to his sons his real estate, on condition that they should, within a time specified, pay to his daughters, a sum of money, thereby making an unequal distribution of his property among his children in favour of his sons ; and the devisees failed to pay the money by the time, in consequence of which, the heirs at law became entitled to the estate ; it was held, that a court of equity wouldrelieve against the legal effect of the breach of such condition, on a tender, by the devisees, of the money and interest.
    In all cases, where a condition subsequent has not been performed by the time, and com-pentatíon canbe made, a court of equity will grant relief. .....

      Hartford,

    November, 1817.

    This case was reserved, by consent of parties, for the con - sideration and ad> ice of the nine Judges.

      Daggett and A', Smith, for the plaintiffs,
    contended, that the condition annexed to the devise, was in the nature of a security for the payment of the money 5 and that chancery will relieve against the legal effect of the breach of such a condition, because the party may b& compensated in money for the non-performance. 2 Com. Dig. 408,409. 410.414. (Rose’s edit.) 8 Yin. Ahr. 336. 340. 1 Eq. Ca. Air. 106, 7, 8, 9. Popham v. Bamjield, 1 Vern. 83. Woodman v. Blake, 3 Vern. 222. Barnardistonv. Fane & al. 2 Vern. 366. JVorth-cote v. Duke, Ambl. 513, 4. 1 Madi. Chan. 36, 7.

      Sherman and Chapman, for the defendants,
    referred to Maston v, Willoughby, 2 Eq. Ca. Abr. 211. pi. 2. and Simpson y. Vickers, 14 Fes. jun, 341. as not entirely reconcileable with the doctrine advanced by the plaintiff’s counsel. But whatever the course of English precedents may be, they insisted, that the question was res integra in this court, and ought to be decided here on principle. It is equitable, as well as consonant to the policy of our laws, that children of the same parents should take equal portions of his property. It lias so happened, that the daughters in this case, have, a legal litleio the land in controversy, and including such land, their portions will not equal Ihe.portions of the sons. Then, why should a court of equity interpose to take from the daughters their lega! rights, or to give to the sons what equi-iy does not demand : Until the sons can shew that they have greater equity than the daughters, the law ought to take its course, - ; -
   Swift, Ch. J.

This was a devise . of real estate- to the st¡ns of the devisor, they paying to each of Ids daughters three hundred dollars within one year after his decease. The devisees failed to pay that sum within the year : and it lias been decided by this Court, that this was a conditional devise, and the devisees not having performed the condition, have no title at law. This is now an application in chancery, stating a tender of the money, and praying for a title to the lands according to the will,

It is a plain rule, that where a condition has not been performed by the time, and compensation can be made, a court of equity will interpose, and grant relief.

But it is insisted, that it appears from the will and tin facts agreed, that a much larger estate was given by the, de - visor to his sons, than to his daughters : and they having failed to perform the condition, by which they have lost their title at law, it is now most equitable that the estate should be divided among the heirs of the devisor, by which the daughters will receive their share ; and that it is unreasonable that a court of equity should interfere, and take away the legal estate from the daughters, and give it to the sons, who have a less equitable right, as they have already received a much larger share of the estate than the daughters. But in these cases, courts of equity cannot be governed by such considerations. It is a fundamental principle of law and equity, that every man has a right to dispose of and give away his property after his decease, in such manner, as he may think proper, provided he conforms to the rules of law ; and the will of the testator must be pursued and carried into effect, if legally expressed. Here, the intent of the testator was to save the lands to the sons, and though thev have not literally complied with the conditions of the devise, so that the estate is gone at law, yet a court of equity, by well known and long established rales, is now as much bound to regard the. intent of the testator, and to give it effect, as a court of law would have been, had the conditions of the devise been performed. No injustice, then, is done in taking the estate from those who have the legal tifie ; for this is carrying into e(lect the intent; of the testator, who liad an indubitable right to dispose of his estate in this manner.

I should advise, that the prayer of the bill be granted.

Hosmer, J.

It has been the invariable practice in equity, to relievo against forfeitures arising from the breach of conditions subsequent, where compensation can he made for the ¡failure of precise performance. Popham v. Bamjield & al. 1 Vern. 85. Woodman v. Blake, 2 Vern. 222. 1 Eq. Ca. Abr. 107 & seq. " Wherever the court can give satisfaction or compensation for the breach of a condition, they can relieve.” Grimston v. Lord Bruce & ux. 1 Salk. 156. It has been done in behalf of the voluntary devisee against the heir at law. Barnardiston v. Fane & al. 2 Fern. 366. The present case is free from doubt j and the relief sought is entirely conformable to good conscience.

The other Judges were of the same opinion, except Gotjxd, J., who gave no opinion, having been of counsel in the cause.

Relief to be granted according to the prayer of the bill.


author: Switt, Ch. J. Gould, J.

text:
    Couch against Meeker.
    To a promissory note given by A. to B. there was annexed this condition — that A. having this day bargained his Starr/arm, (so called,) to B, — now if A. stands to the bargain, the note is to be void — of not, it is to stand in fullfo^ce. In an action on the note, lowhichnon-■Gssumpsit was pleaded it was held, that the statute of frauds and perjuries did not preclude the plaintiff from proving, by parol evidence, that the note was delivered as an escrow, what were the conditions on which it was to take effect, and that they were performed ¡ though such conditions respected a parol contract for the sale of lands: the object and tendency of such evidence, not being to support an action on a parol contract for the sale of land,’but to shew that a written contract to pay money had taken effect.
    An escrow takes effect instantly, upon the performance of the condition, without any formal act of delivery over, by the depositary.
    THIS was an action on a promissory note, for 500 dollars, dated the 14th of March, 1816, and payable to the plaintiff, on demand.
    The defendant pleaded, 1st, non assumpsit, on which issue was joined ; 2dly, that there was a condition endorsed on the note in these words : “ The condition of the within note is such, that the said Meeker hath this day bargained his Starr farm (so called) to the said Couch ; now, if the said Meeker stands to the bargain, the within note is to be void : if not, then the within note is to stand in full force and the defendant averred, that he had fully kept and performed the said condition.
    To the second pica, the plaintiff replied, that on the 14th of March, 1816, it was agreed between the plaintiff and defendant, that the defendant should convey to the plaintiff the Shirr farm, mentioned in the condition, and that the plain - tiff, in consideration thereof, should give and deliver over to the defendant three promissory notes ci' one Sherwood, amounting to 4,500 dollars, and the defendant's own notes for 2,500 dollars; that to compel the defendant to fulfil and comply with this agreement, the defendant executed the note in suit, with the condition thereto annexed ; that the defendant had not kept and performed the condition, but had broken the same, and had not stood to said bargain, and had never conveyed said farm to the plaintiff, but had neglected and refused to do the same ; and that the plaintiff had, in all respects, complied with and fulfilled said bargain on his part.
    Hartford,
    November, 1817.
    The defendant, in his rejoinder, traversed this replication ; on which issue was joined.
    On the trial, the plaintiff proved, that the note in suit was signed by the defendant, and put as an escrow into the hands of one Benjamin ,Meeker, together with a certain other note, signed by the plaintiff, payable to the defendant, each having the same written condition mutatis mutaiidis, to be delivered, by the depositary, in pursuance of the mutual consent and agreement of the parties, to the party that should fail to fulfil the condition. The plaintiff then offered parol evidence to shew what bargain was meant in the condition, and the terms of it ; that it had not been fulfilled by the defendant; but that the plaintiff had, in proper time anti manner, offered to fulfil on his part. The defendant objected t& the admission of this evidence on either issue; but the court decided, that it was admissible on each issue respectively. It also appeared, that the note had never been delivered over to the plaintiff; but the depositary brought it into court. The defendant thereupon claimed, that the court s~tould instruct the jury, that the plaintiff, for this reason, could not recover, But the court charged the jury, that if they should find the facts set forth in the plaintiff's replication to be true, they must find a verdict in his favour on both issues. The jury accordingly found a verdict for the plaintiff, on both issues; arnl the defendant moved for a new trial. rFhe ques-. tions of law arising on this motimi, were reserved for the eonsideration and advice of the nine Judges.
    Sherman and Chapman
    argued in support of the motion The points discussed, and the topics of argument urged, are sufficiently noticed in the opinions of the Judges. They re-ferrecl to Rob, on Frav%s, 10. 105. 108. Shep. Touch~ 5~

      »V. Smith ami Bissell, contra.
   Switt, Ch. J.

The question in this ca.se, is, whether the contract is within the provisions of the; slid utc against frauds and perjuries.

The statute is, that no suit in law or equily shall be brought or maintained upon any contract or sale of lands, or any interest in or concerning them; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or some other person by him authorised. This statute only requires, that the agreement on which the action is brought, should be in writing. This action is brought on a written obligation, complete in ¡'sell ; and is warranted by a literal construction of the statute. Though it was delivered as an escrow, to take effect on the performance of certain conditions, which amounted to a contract for the sale of lands; yet such conditions air not required by the terms of the statute, or any construction ever given it, to be in writing. These conditions are not part of the written contract, hut only the terms upon which it was to take effect, or notthe proof of them, then, is necessary only to prove the execution of a written contract. The proof of the execution of a written contract must be by parol ; and it might as well be said, that parol proof is not admissible respecting the delivery of a deed conveying lands, as to say it cannot be admitted respecting the performance of the conditions, on which such deed is to operate; for in both eases, it is no more than proving the execution of the com rad , and it. has ofien occurred, that deeds conveying lands have bees, delivered as escrows upon parol Conditions, and they have, never been considered as void by the statute of frauds and perjuries.

It has been argued, that this is in substance an action to recover damages for the breach of a parol contract fog* the sale of lands, though it is in form an action on a \\ ritten contract. Admitting t his to be true, there was, in Substance, a vriLton contract to pay a certain liquidated sum in damages, in ease a parol contract for the. sale of lands should not he performed. It is on this written contract, that tins action is founded,* and is, of course, strictly conformable to the requirements of the statute

It. lias been insisted, that a court of equity could not have decreed a specific performance of the parol contract for the sale of the land in question ; and that, of course, a court of law cannot give damages for the non-performance of if. It will be conceded, that equity could not have interposed, and compelled a specific performance of the bargain for the sale of the farm : for this rested in parol, and the note did not specify the terms of it. But there is no rule that a court of law will not give damages for the breach of a contract respecting the sale of lands, which equity cannot enforce. Of course, this mode of reasoning cannot be applicable to the case in question. It is said, that written conditions were annexed to the note, different from the parol conditions : and that proof could not be admitted respecting such parol conditions. But the efficacy of the note depended solely on the parol conditions, on which it was delivered as an escrow. Of course, it operated when these were performed j and the written conditions were immaterial. And though it was not formally delivered over, by the depositary, to the plaintiff; yet it took effect in bis hands, the instant the conditions were performed, without any formal act of delivery on Bis part. ‘

It was, then, proper to admit the plaintiff, on the general plea of non assumpsit, to prove that the note was delivered as an escrow ; and that the events had happened, or that lie had performed the conditions, on which the note was to take effect, though these respected a parol contract for the sale of lands ; for this was only proving the execution of the note, and such conditions are not within the statute.

As the plaintiff is entitled to judgment on the general plea, the questions arising on the special plea are immaterial.

I would not advise a new trial.

Gould, J.

That the evidence, to which the defendant oh jected at the trial, was admissible, under the first issue, admits, I think, of no doubt. For under that issue, it goes, not to the terms, or the operation, of the written instrument, nor to the condition, upon which it was to become void, or remain in force ; hut, to the contingency, or event, upon which it was to he delivered over, by the depositary, to the plaintiff, as the deed of the defendant. In the depositary’s hands it was an esernv■ : such instruments, when delivered, being, here, specialties: And the condition, on which an escrow is to be delivered over, is always, like the act of signing or sealing, an extrinsic fact, in its nature proveable by parol? like any other matter in pais. And if the proof, necessary to this end, should happen to involve evidence of a parol agreement, respecting an interest in land ; this circumstance cannot vary the rule. For the object and effect of the evidence are, not to enforce the latter agreement; but to siiow, whether the written instrument is, or is not, the deed of the defendant,

Whether the evidence was admissible, under the second issue, was the principal question, made at the trial; but, as 1 view the case, it is not necessary to decide that question, for the purpose of disposing of the present motion. The performance of a condition, annexed to a deed, is, like its execution, or delivery, an extrinsic fact, and regularly proveable, like any other such fact. And if performance of the written condition, in this case, was legally proveable, at all; the parol agreement, to which it refers, must have been so : For the fact of performance, or non-performance, could be proved, in no other possible way. The written condition, taken by itself, is utterly vague and unintelligible ; and, of course, void, for uncertainty, unless it can be aided Ay proof of the parol agreement, to which it refers. For it does not show, by what act, or in what event, the note is defeasible. It is, then, a condition, by which, with the aid of the parol agreement, the note might, in some event, be defeated $ or it is void for uncertainty. If the note could, in any way, be defeated, by the condition ; it could he only by the defendant’s setting out the extrinsic agreement, and showing performance of it. And if the defendant could do this, the plaintiff might, of course, prove the same agreement, in support of his replication,for the purpose of showing, that it had not been performed : And upon this supposition, the evidence was properly admitted. If, on the other hand, the defendant could not legally prove performance, in this manner ; it must be, because Ihe condition is void for uncertainty, and cannot be made, good, by proof of the parol agreement: Upon which supposition, the note is, in law, unconditional, like a single bill ; and the plaintiff must he entitled to recover. It must necessarily he, therefore, either that the note is absolute in law, or, that the plaintiff was at liberty to prove the extrinsic agreement : And upon cither supposition, the plaintiff has a right of recovery. A new trial would, therefore, he to no purpose. And if so, the motion, which is but an application to the discretion of the court, ought not to prevail.

The case may still be presented in a different view, which will lead to the same result. Though the present question does not arise upon the pleadings, it is material to observe, that the second plea is radically bad. The defendant should have pleaded performance, if at all, specially, by showing, specifically, what he was bound to perform, to defeat the note, and alleging specific acts of performance. A general plea of performance, is allowed, only by way of exception to the general rule, to avoid great prolixity, or what has sometimes been called “ infiniteness,” in the pleadings. Cro. Eliz. 749. 916. 1 Term Rep. 753. And this exception obtains, only where the acts, to be done in performance, appear, from the nature of the case, to be very multifarious : As upon a sheriff’s bond, conditioned, that he shall faithfully discharge all the duties of his office; the bond of an administrator, well and truly to administer, according to law ; and in similar cases. The condition, in the present case, is clearly, not within the exception. But even if it were, the second plea would still be incurably defective : For it shows, neither what the defendant has done, nor what was necessary to be done, to perform the condition. In common language, it may be paraphrased thus : “ There is indorsed upon the note, a condition, that if I would do a certain act, the note should be void ; and I have done the act,” The pica and the written condition, recited in it, are both, essentially, as vague as this. The defect in the plea, therefore, is plainly, not in stating the defence, but in the defeme itself: that is, in the total want of any intelligible defence: And that, inlaw, is no defence at all. If, therefore, the second issue had been found for the defendant, and judgment rendered upon it, in his favour; the judgment would, unquestionably, have been erroneous. For it would be impossible for the court to presume, that performance of the undefined act, mentioned in the plea, had been proved to the jury ; because, no particular act could be legally proved, under such an utterly indefinite allegation.

1 have made these remarks upon the second jilea, to show, in a further and distinct point of view, that a new trial could answer no purpose for the defendant. Suppose it granted : and w hat would be the consequence ? As it i-⅞ incumbent on the defendant to show a performance of the condition, iu.% second pica would either remain as it is, or be altered by inserting a recital of the agreement, to which it refers, and a new special allegation of performance. If not tillered, it would be, of course, totally void of substance, as it is ; and no judgment upon it, in the defendant's favour, could stand. Indeed, it is very apparent, that to frame a good plea, upon the written condition alone, would be impossible. If, on the other hand, the plea should be altered, the alteration would be to no purpose, unless the defendant could be permitted to prove the extrinsic agreement, in order to prove performance. And if this could be permitted, in favour of the defendant; it cannot be denied, that Use plaintiff was properly allowed to do the same tiling, to rebut the claim of performance, or to show non-performance. It is apparent, therefore, as well in this view of the case, as in the former, that a new trial would be useless.

It has been objected, that for aught the court can know, the agreement, referred to, in the written condition, may itself have been in writing, and different from that proved by the plaiutiflas testimony. The obvious answer is, that, if there was such an agreement; the defendant should have pleaded and proved b. To aval! himself of this objection, he must take advantage of his own mispleading — and this lie cannot do.

But it is said. that, upen a bill in chancery, stating the note, the condition indorsed, and the parol agreement referred to, a specific performance of the agreement could not. be decreed — because it is not in writing : ami this is undoubtedly true. It is then asked, can there be a recovery at law, when there could, confessedly, be none in equity ? Most certainly there may he. Where equity interposes, by decreeing specific performance of a bond, for the convey anee of an Ínteres!, in land, the c.oudillun is regarded as the substance of the agreement, or contract, and the penalty, as merely in 'erraran, if, therefore, as in this case, there is no intelligible written condition ; there is no definite v ritt.cn agreement, performance cannot he decreed, under the statute of frauds and perjuries. But at law, the penal part of the instrument is the foundation of the action. And in this case, for the purpose of the present question, the note, which is complete in itself, is the penal part. The condition is only matter of defence z and if it is wholly uncertain, and void, the penal part is, in law, absolute, and a recovery must be had upon it. A similar distinction prevails, between debt on a penal bond, and covenant broken, though both are actions at law. If an impossible condition is underwritten, or indorsed, upon a bond ; the obligation is, in law, single — and in an action of debt, the obligee may recover, upon a single bill. Hut if the instrument had been in the form of a covenant, with the same condition incorporated with it j neither an action of covenant liroken, nor any other, could be maintained upon it. Puller-ion v. Jlgnew, 1 Salk. 1/2. 1 Pow. Cont. 267. This last objection, therefore, furnishes no support to the motion.

The other Judges were of the same opinion.

New trial not to be granted,


author: Swift, Ch. J. Bratnakd, J. Gould, J.

text:
    Curtis against Hurlburt :
    in error.
    THIS was an action qui tam against Ilurlburt, brought in the county court, for Fairfield county, on the statute, tit. Fisheries, c. 1. s. 6. to recover the penalty of 67 dollars, for using a bush-seine in Ousatonniek river. The declaration was in the words of that against Eastman,

       with the change only of the defendant’s name. The writ was dated on the Kith, and served on the 16th of May, 1814.
    The defendant pleaded in bar an action for the penalty here demanded, and a recovery, by the present plaintiff, against Eastman, reciting the record, and averring that the writ in that action was served first; that it was for the same matter and cause, and for the same offence, as this ; and that the judgment recovered had been fully paid and satisfied.
    The plaintiff’s replication traversed the averment, that the former action against Eastman was for the same offence; on which issue was joined : and the, jury found a verdict in favour of the defendant.
    Where two or more persons were concerned in drawing a bush-seine in Ousaton-niek river against the statute tit. 70. c. 1.«. 6., it was held, that this was a several of-fence in each person concerned in it, and that each was separately liable to the penalty imposed by the act.

      Hartford,

    November, 1817.
    The plaintiff then moved in arrest of judgment, that the defendant’s plea was insufficient. The court overruled this motion, and rendered judgment for the defendant. The plaintiff thereupon brought a writ of error in the superior court, assigning the general error. By agreement of par* ties, the cause was continued to the next term of that court, with a view to submit, in the meantime, the questions of law arising on the record, to the nine Judges for their advice.

      Chapman and Merman, for the plaintiff,
    remarked, that all crimes, at common Jaw, committed by two or more persons, are several; and all offences against the rights of individuals, are joint and several, if founded in tort, and joint, if founded in contract. They then contended, that all public offences, made so by statute, are several, unless made joint by the language of the statute; and proceeded to examine the decisions upon several English .statutes. Cartridge v. Naylor, Cro. Elia. 480. The (¿ueen v. King & al. 1 Salk. 182. Hardyman v. Whitaker & al. 2 East, 573. n. Barnard v. Bostling, 1 New Rep. 245. The result of all the cases is, that there are but two exceptions to the general rule : one is, where it is manifestly the object of the statute, to give a satisfaction to the party injured, in which case, it is obviously proper, that but one satisfaction should be obtained ; the other is, where the statute, in express terms, imposes one penalty, for an offence committed by two or more persons. In the case before the court, the offence was against the public, and no individual was entitled to satisfaction beyond others. Nor does the phraseology of the slatule in question imply, that sundry persons shall be subject to a joint penalty only, but the reverse. The words are “ that no person shall use any bush-seine, &c. on penalty of 67 dollars for every such offence the import of which is, that every person who shall commit that offence, shall pay the penalty. It cannot be doubted, that every person concerned in doing the act prohibited, is guilty of the offence.
    The nature of the offence, also, affords an argument in favour of 1 he plaintiff’s construction; for the injury to the public, is in proportion to the number concerned. Two or three individuals could produce little effect with a bush-seine, while twenty or thirty might sweep the river from JVlic-
      Milford to Stratford, and clear it of fish. In the latter case* 67 dollars would be a very inadequate penalty.
    The only authority, opposed to the plaintiff’s c laim, is an obiter dictum of Lord Mansfield, in Ilex v. Clark Sp al. Cowp. 612. The decision in that case was, that the defendants were severally liable to the penalty j but a preliminary remark of his Lordship may be thought to furnish a ground of distinction between that case and the present. It is this — ■ that where the offence is, in its nature, single, the penalty shall be single, because, though several persons join in committing it, it still constitutes but one offence. Lord Mansfield was a great man ; but aliquando boms dormitat Ilomerus. One of the instances given to illustrate his remark is the killing of a hare, which, he says, is but one offence in its nature, because whether one or twenty kill it, it cannot be killed more than once. Suppose he had put the instance of murder j is not the killing of a man as much one offence, in its nature, as the killing of a hare, and does not his Lordship’s reason apply as well in one case, as in the other; and yet, if twenty persons mqrder one man, and kill him but once, will they not all he hanged ? The distinction is manifestly an absurd one ; it was then taken for the first time ; and has never been regarded since.

      N. Smith and Bissell, contra,
    contended, that the word 4‘ penalty,” as used in this statute, relates to the offence merely, without any regard to the number of persons, who may be concerned in its commission. In support of this proposition, they relied on the following considerations.. First, the language of the statute, which gives “ the penalty of 67 dollars for every such offence.” What is the offence ? An act done. What is this act ? The drawing a bush-seine, This is no more than one offence, whether two, ten or twenty persons be concerned in committing it. Itcannot, ordinarily, be committed by a single person. A number of persons must,, almost necessarily, be concernedj and had the legislature intended that the penalty should be inflicted on every person so concerned, they would have expressed this intent; as in til. 40. c. 1. s. to. where the words are, iS such person or persons, society or company, and every of them, on conviction,” Ac. and tit, 159. where the words are, “ that each person so exhibiting, Ac. shall forfeit,” Ac. The offence iw-ingin its nature single, but a single penalty can be recovered. Rex v. Clark & al. Cowp. 612.
    Secondly, the amount of the penalty. This is not an act which is malum in se. The mischief to the public is the same, whether few or many be concerned; and for this rois- , chief, the forfeiture of one penalty is a remuneration.
    Thirdly, the construction which has been given to other statutes, where the language is the same as, or stronger than-in the, one under consideration ; as in tit. CO. c. 1. s. 2. which subjects the executor to a penalty of “ seventeen dollars per month” for neglect of duty ; and yet it has been held, that only one penalty of seventeen dollars can be recovered in one action, though there have been several months’ neglect. Bar - ber v. Eno, 2 Root, 150. So by the Massachusetts statute of 1783. c. 24. s. 16. “ any executor or executors” of a will arc subjected to a penalty of “ five pounds for each month he or she shall delay to present the will,” &c. In an action on that .statute for the forfeitures, it has been held, that though two or more persons are liable, but one forfeiture can be recovered. Hill & ux. v. Davis & al. 4 Mass. Rep. ! 37. Accumulating penalties are never inflicted, unless warranted by the express terms of the statute, or unless the crime for which they are inflicted, is, in its nature, several. The case of Bou telle, q. t. v. Nourse, 4 Mass. Rep. 431. arose upon a statute prohibiting the taking of salmon, shad, or ale wives, in certain waters, at certain periods, and inflicting a penalty on him or them so offending. It was held, that an action for the penalty might be brought against one or more joint offenders ; but that the plaintiff could have but one satisfaction.

    Fourthly, a joint prosecution might have been brought against all who were concerned in the offence ; and in that case, a single penalty only could have been recovered. Partridge v. Naylor, Cro. Eliz. 480. The King v. Bleasdale & al. 4 Term Rep. 809. Boutelle, q. t. v. Nourse, ubi sup.

         t Conn. Hep. 32:

   Swift, Ch. J.

All offences at the common law are several — that is, though several join in the commission, of the act, and that act is single, yet each is guilty severally, and is liable to a. separate punishment. If two should jointly take, and, with felonious intent, carry away, the goods of another, each would be guilty of the crime of theft, and might be prosecuted jointly, or separately. When a statute creates an offence, it may be joint or several, according to the language made use of. The statute on which tiie present question arises, is, that “ no person shall use any bush-seine in Ousatonnick river, Ac. on penalty of sixty-seven dollars for every such offence.”

The question is, whether this is a several offence in each person concerned in it, or only one offence in them all, so that one penalty only can he inflicted ?

No words can he more appropriate than the words of this statute to designate a several offence. »Yo person shall do the act, under a certain penalty, for each offence. It is the same as the words, Every person who docs the act — whoever does the act — if any person shall do the act, such person shall suffer a certain penalty. As by the common law, when several join in the commission of a crime, each is considered as severally doing the act $ so here, though several may join in the act, yet every person is considered as severally committing the crime, and incurs a several penalty.

The words no persons, or no person or persons, shall do au act under a certain penalty, are proper to designate a joint offence, and will be so construed, unless there is something to point out a several offence ; for in such case, the words of the statute inflict only one penalty on the persons who join in doing a specific act, and not a several penalty on each who may he concerned in it; of course, it is a joint, and not a several, offence in them all. Such is the literal meaning of the words, and this construction is fully supported by the case of Hardyman v. Whitaker and others, 2 East, 573. in a note.

The case of Rex v. Clark and others, Cowp. 610. has been relied on by tiie defendant as a direct authority in his favour. That was an information on a statute against several for assaulting and resisting certain custom-house officers in the execution of their duty, and rescuing out of their custody a quantity of brandy, &c. The words of the statute were : •* if any person or persons shall,” Ac. “ the party or parties shall, for every such offence, forfeit and lose 40/.” It was decided, that this was a several offence, and each liable to the penalty, on the ground that this was an offence in its nature several ; for it was said, one might resist, another molest, and another run away with the goods : which were distinct acts» and every one’s offence was entire and complete in its nature. On the same principle, in the present case, the of-fence would have been several, though joint words had been used in the statute creating it ; for here it may with equal propriety be said, that the offence was in its nature several j that one could make the seine, another put it into the rive?-, all might draw it, and others take out the fish ; here would, be distinct acts, and the offence of each would be entire and complete in its nature. The case, then, of Rea,- v. Clark, so far from being an authority iu favour of the defendant, is in point against him. The rule, however, respecting the distinction between joint and several offences, is laid clown in that case different from what l have stated in this. Lord MansJield says : “ Where the offence is, in its nature, single, and cannot be severed, there the penalty shall be single, because though several persons may join in committing it, it still constitutes but one offence. But where the offence is, in its nature, several, and where every person concerned may be separately guilty of it, there each offender is separately liable to the penalty, because the crime of each is distinct from the offence of the others, and each is punishable for his own crime.” I should much question the correctness of this distinction, whirl? is no where else to be found ; for it is manifest, whether the crime he in its nature single or several, it must depend on the language and provisions of the statute creating it, to ascertain whether the persons jointly con cerned in doing the act ¿reliable to a joint or several penalty., We must look to the statute creating the offence, to decide w hether it be joint or several j for at common law all offen-ces are several.

The case of Boutelle v. Nourse, in 4 Mass, Rep. 431. is against the defendant. That was an action on a statute, providing, that if any person or pci-sons should take or catch any salmon, alewives, Ac. he or they so offending should for - feit and pay as a fine for each and every salmon so taken, Ac. A recovery had been had against one jointly concerned in fishing with other s ; and then an action was brought against another, who pleaded the former recovery in bar. It was decided, that the action could not be sustained, and that the plea in bar was good. Here, the statute not only constitutes a joint offence, but inllicls a particular penalty upon a spe-oifir, act, whether performed by one or more, which would also constitute a joint offence j of course, there could be a recovery for one penalty only.

It has been further contended, that different words are used promiscuously in sundry statutes, as well as in different parts of the same statutes, where the manifest object is to punish the same kind of offence in the same manner; and that, of course, though the words are different, the statutes should have the same construction ; and if in one instance ii is admitted, that a joint offence is intended to be created, is ought to be admitted in all. But where the meaning of the statute is plain and evident, we must construe it according to the words ; and it can never be admitted to give a construetion to a statute different from the import of the words, from a conjecture that the legislature had a different meaning. Such a power would enable a court to make what they pleased of a statute : and in the present case, it may as well be said, because the legislature, in making laws respecting the same subject, have made use of words in some, which create a several offence, and in some, a joint offence, that they intended all the offences should be several, as that all should be joint.

I am of opinion, that the words in the statute under consideration, constitute a several offence ; and that the plea of the defendant is insufficient.

TrumhOjTi, J. was of the same opinion.

Bratnakd, J.

This action is brought: on the 6th section, chap. 1st, of the statute “ for encouraging and regulating fisheries.” The section is “ that no person shall use any bush-seine in Ousatonnick river, or in any way obstruct, encumber or impede the drawing of seines, or taking of fish, in any of the fishing-places cleared as aforesaid, either by felling trees, or sinking logs, or other incumbrances therein, or in any other manner whatsoever, on penalty of sixty-seven dollars for every such offence.” The facts are these. Sundry persons had used a bush-seine in that river, contrary to that section ; separate suits were brought against the individuals using the seine ; and a recovery of the penalty of sixty-seven dollars, had against one. This recovery, with a corresponding satisfaction, was pleaded in bar of the action.

The question arises upon the sufficiency of this pica— whether the use of a bush-seine is a single offence, and the penalty of 67 dollars to be inflicted on the offence when committed — or on each individual concerned in committing it. ^ aPPcars to me, that the use here contemplated, must be taken to mean a single use; that the offence, when committed, whether by one or more, is single ; that, therefore, the penalty is single. The same reasoning will apply to a log-thrown into the river, to the obstruction of fish ; the offence would be the same, whether thrown in by one man, or by many.

It is said, that the peculiar phraseology of the section, contruuls the. construction. It is “ that no person shall use any bush-seine, Ac. on penalty of 67 dollars,” Ac. It is contended, that this is several on each individual; that where the statute says, that no person or persons shall set or draw any seine, Ac. the offence is single, and the penalty single. But this dist inction cannot be consistent with the meaning, of the legislature.

The 8th section of the same statute says, that no person or persons shall draw any seine or other fish-craft in ({nine-bang river, except, Ac. on penalty of 14 dollars and the 9th section says, « that no person shall draw any seine or other fish-craft in Willhmntic or Nachtmge rivers, except, Ac. on penalty of 84 dollars.” Now, we can hardly suppose, that the legislature intended, that if twenty men drew a seine in (¿uinebaug river, there should be a forfeiture of 14 dollars only, and that if the sanu number of men should draw a seine in Willimantic river, there should be a forfeiture of twenty times 34 dollars. The act is the same in one case, as the other; single in both. Why is not the offence the same in one. case, as the other ; and single in both ?

It is. true, these two sections are now repealed, and their places supplied by the second and third sections of the fifth -hapicr, of i he same statute “ for encouraging and regulating fisheries.” The phraseology of these, two last sections, is perfectly similar, and exactly like the one under consideration : it is “ that no person shall draw any seine in ({uin~ (bang river, Ac. on penalty of 100 dollars.” Now, we can hardly suppose, that the legislature intended by the section in relation to ⅝uinebaug, now7 repealed — that if twenty men drew a. seine in that river, there should he a forfeiture of 14 dollars only; and that by the section substituted in its place, if twenty men should draw a seine in the same river, Hiere should be a forfeiture of twenty times 100 dollars.

I believe the fact to be, that where the legislature intended to inflict the penalty on each individual committing the offence, they have, in every instance, so expressed it. Hence, the clause in all those sections, and in all those cases in which such is their meaning, is added — “ and every person, who shall be convicted of a breach of this section of tiiis act, Ac. shall forfeit and pay,” Ac. I do not see the difference between the use of a seine, as a single act, and the killing of a liare. The act, in either case, when perpetrated, is one and entire ; and 1 cannot perceive, that Lord Mansfield descended from his greatness, when he said, that the life of a hare was single; and that the offence of killing a hare, how many soever might direct their shafts at his life, was still single ; and that on this offence, but one penalty, of course, could be inflicted. Cowp. 612. What is the offence complained of? The use of a hush-seine once. What is the-penalty for one offence ? Sixty-seven dollars. The sum has been paid.

In short, it appears to me, that the offence is single, and of course, the penalty single : that, the single use or draught of a seine is one act, and, when perfected, constitutes the offence ; that the legislature intended to inflict the penalty of 6” dollars on the offence when committed, and not on each individual committing the offence.

I would advise, that judgment be — that the plea in bar is sufficient.-

Baldwiv and Goddard, Js. were of the same opinion.

IIosmer, J. concurred in the opinion delivered by the Chief J ustice.

Gould, J.

The only question is, whether the penalty, inflicted by the statute, upon which this prosecution is founded, is single, or several. Now, every crime, as far as respects the guilt of the parties, engaged in the perpetration of it, is several : and it is a general rule, that if two or more persons concur, in the commission of an offence; each offender is liable to a several punishment. Tiiis principle extends.. generally, as will to statute-offences, as to those, which are punishable by the common law ; nor does there appear to be, in general, any distinction, in the application of it, between the higher kinds of punishment and fines, or mere pecuniary penalties, To this general rule, however, which I take to be universal at common law, some exceptions have arisen, in prosecutions on penal statutes ; and all the difficulty in the case is, in ascertaining the criterion, or line of distinction, by which those exceptions are limited. It seems, at any rate, to be incumbent on the party, who claims, that a given of-fence is not within the general rule, to show, that it falls within the principle of some of the excepted cases. For prima facie, at least, all crimes are, quoad the punishment, several.

The question has sometimes, or in one instance, at least, turned upon the nature of the offence, without regard to the terms, in which the penalty is prescribed in the statute ; as in the case of Rex v. Clark & al. Cowp. 610. But the final criterion, as I conceive, if not the only one, is the apparent intention of the legislature, to be collected from the statute, upon which the prosecution is founded. In the case of Partridge v. Naylor, Cro. Eliz. 480., which was an action upon a penal statute, against three, though the words of the act are, that “ every person offending, shall, for every such of-fence, forfeit,” <S;e, ; yet, the action being given only to the party injured by the offence, it was resolved, that only one penalty was incurred ; it being obviously intended by'the legislature, rather as a satisfaction to llic aggrieved party, than as a punishment of the offenders. And upon this ground it is, that Powell, J. distinguishes that case, from The queen v. King, l Salk. 182. The latter was the case of a conviction for deer-stealing, against two ; and the words of the statute being, that the offenders shall “ respectively forfeit 301. and the forfeiture being intended, not as a satisfaction, but as a punishment; the penalty w as awarded against each of the defendants. In Hardyman v. Whitaker & al. 2 East, 573. n., which was an action of debt against nine persons, for a breach of the game-laws, the statute enacts, that(i the person, or persons convicted,” shall forfeit 5L ; and it was resolved, 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 forfeit upc i” And it is added, that “ the distinction is, where the offences are made joint,” (i. e. by the terms of the statute) 14 and where not.” And in the same case, the court, in referring to The King v. Weston, in which it was holdeti, that each defendant had severally incurred a statute-penalty, assign as a reason for the determination, that the penalty in the statute is laid upon « every person offending.” The case of Barnard v. Gostling in error, in the Exchequer-Chamber, l New Rep. 245,, was an action of debt, against two, for certain penalties. The words of the statute are, that if any person shall,” Ac., si every such person shall, for every such offence, forfeit 50f.” And it was resolved, that the penalties were several ; because the statute declares “ every” offender liable to the penalty, and therefore, that two defendants could not be joined in the action ; it being debt. The King v. Bleas-dale & at. 4 Term Rep. 809., was the case of a conviction on Hie statute 5 Anne, for using a grey-hound to destroy game. The court held, that the question depended upon the statute, which enacts, that if any person, or persons, shall” &c.; the person, or persons, so convicted, shall forfeit,” Ac. 5 and that only one penalty was forfeited. The case of Bon-telle v. Nourse, 4 Mass. Rep. 451. was debt for a penalty, against a sole defendant, who pleaded in bar, a former recovery, with satisfaction, for the same offence, against one Morrill; and upon demurrer, the plea was adjudged sufficient, as only one penalty was incurred. The statute upon which that action, also, was brought, enacts, that “ if any persbn, or persons, shall take any salmon, Ac. he, or they, so offending, shall forfeit, Ac. as a fine for each and every salmon,” Sec. Here the words, « he or they shall forfeit,” clearly import, that if the offence should be committed by several, there should be but one penalty inflicted : and more especially, as a specific forfeiture is prescribed for each fish taken. The five cases, last cited, all turned, expressly, upon the construction of the statutes, upon which the prosecutions were founded ; and adopting this criterion, (for I am not satisfied with any other,) it appears to me, that the penalty, in the present case, is several.

The act upon which the prosecution is brought, provides, that “ no person shall use any bush-seine, in said Ousatounick river, Ac. on penalty,” Ac. These words, according to their proper acceptation, must be taken distributively : and if so. the clause requires the same const ruct inn, as if it were* “ each person offending shall forfeit or, í: all persone offending shall respectively forfeit.”

Another case cite:! at the bar, is that of Hill v. Davis, 4 Mass. Rep. 137., which was an action of debt, for a penalty, against two executors, for not presenting a will to the judge of probate, as required by a statute of the state of Massachusetts. Tiie determination, i:i that case, has no relation to the present question, it proceeded solely upon the farm of the action. The statute, bo wet or, enacts, that « every executor so neglecting. Ac, shall, for his, or her neglect, forfeit,” Ac, But Fursons, C. J. in delivering his opinion, observes, obiter, i( If both executors neglect, a joint forfeiture is incurred by both.” Now, upon this supposition, it would seem, the. neg led of one of the executors must be, in law-, the neglect of the other : a proposition, which, I confess, is to me not perfectly obvious. I am not, however, questioning the observation cited ; but there being no reasons assigned, for this part of the opinion, I do not understand the grounds of it : And not, knowing upon what principle it was advanced, I cannot decide bow far it is relative to the question now before the court.

It may lie proper to observe, that in those cases, in which the construction of the statute del ermines, whether the pm alty is joint or several, the question, whether one penalty only, or several, can be recovered, in a particular case, may, nevertheless, depend upon the form of the prosecution. For though several penalties may he indicted upon one indictment, or public prosecution, where they are, by law, several; yet, in a civil action, as I apprehend, and especially in the action of debt, there can, regularly, be but one judgment, and one entire recovery. This was the fatal objection to the action, in Barnard v. fíostlmp;. That, difficulty, however, docs not exist in the present case : as the action is against a sole defendant.

The distinction, arising out: of the nature of the offence, as pointed out by Lord Mansfield, in Rene v. Clarke, certainly exists ; but upon wluit principle, it can he adopted, as a criterion in questions of this kind, Í am at a loss to perceive. That was an information upon the statute, 8 Geo. 1. c. 18. s 25., for assaulting and resisting certain custom-house oilmens., hi the execution of their duty; and upon conviction, the question was. whether the penalty should be indicted upon mth of the defendants, severally, or one penalty only, upon allot’them. The court determined, that each had incurred a several penalty ; and Lord Mansfield stated the distinct ion thus : ei Where the offence is, in its nature, single, and cannot be several, there the penalty shall he single ; because, though several persons may join in committing it, it still constitutes but one offence. But where the offence is, in its nature, several, and where every person concerned may he, separate % guilty of it, there each offender is separately liable to the penalty; because, the crime of each is distinct from the of-fence of the others, and cadi is punishable for his own crime. For instance : the offence, created by stat. 1. and 2. Ph. & M. c. 12. is the impounding a distress in a wrong place. On", two, three or four, may impound it wrongfully; it is still but one act of impounding ; it cannot be several. It is but one offence; and therefore, should be satisfied by one. forfeiture. So under the slat. 5 .inn. r. 14. for the preservation of the game, killing a hare is but one offence, in its nature ; whether one, or twenty, kill it, it cannot be killed more than once. If partridges are netted by night; two, three, or more may draw the net; but still it constitutes but one offence. But this statute relates to an offence, in its nature, several; a several offence at common law ; and the statute adds a further sanction. One may resist, another molest, another run away with the goods. One may break the officer’s arm, another put out his eye. All these, arc distinct acts ; and every one’s offence entire, and complete, in its nature. Therefore, each person is liable to a penalty, for his own separate offence.”

The meaning of the distinction, thus pointed out by Lord Mansfield, is, that in the latter case, (that of resisting custom-house officers,) each of the acts, supposed to be done, by the different persons concerned, is, of itself, a resistance— which is the offence prohibited : so that each of those acts, taken singly, constitutes the offence : whereas, if several join in killing a hare, and each one does some distinct act, to accomplish the- purpose, (as, by giving the animal a separate wound :) each of those acts, taken separately, is not a killing, and therefore, does not, of itself, constitute 'the of-fence : there being, in the whole, hut one killing, am! consc-quenily but one crime committed. All this is certainly true ⅝ but how does it prove, that each individual concerned, is not, in law, separately guilty of that one crime ? Or, that each is not liable to a several punishment lbr it ? The general rule certainly is, that when several persons unite, in committing an offence, the act of one is the act of all, and of every other, respectively ; and that each is punishable for what is done by all, or hy any one of the parties concerned. If ten persons join in committing a murder, and each one commits a distinct act of violence, with his own hand; each several act does not, hy itself, constitute the murder. There is, in the whole, only one killing, and consequently, but one felony ; as in the case of killing a hare, under the game-laws, there is but one statute-offence. In this respect, therefore, the two cases are precisely alike. Rut in the former case, each person concerned is, in law, severally guilty of the crime of murder ; though there is but one murder committed and each is severally punishable for it. What: reason, then, arising out of the nature of the offence, can he assigned, why the same rule does not apply to the killing of a hare, by several ? I am constrained to acknowledge, that I am utterly unable to discover any reason. That the offence, in ttie one case, exists at common law, and is created by statute, in the other, can, surely, make no difference in the question, whether the crime, or the punishment, is, in the nature of the case, single, or several; though, where the statute is in affirmance of the-common law, as in Rex v. Clarke, the former circumstance may assist, in discovering the intention of the legislature. But with regard to the three instances, referred to by Lord Mansfield, in which the penalty is single, it appears decisively, from the statutes themselves, that a single penalty only was intended hy the legislature: and they all correspond, exactly, with Use rule of distinction, which I have been endeavouring to support. The penalty for impounding a distress in a wrong place, is given as a satisfaction to the party aggrieved hy the offence. And in the statutes, relating to the killing of a hare, and the netting of partridges, the penalty is made single, hy the words, the person or persons shall forfeit.”

If may also he worthy of consideration, that when the punishment of an offence, in which two or more persons join, is not several, all the offenders, except one, however numerous they are — may, and often will, escape all punishment. For the whole penalty and costs may be collected from one of them; and no contribution can he enforced against the others. Is this consistent with the general principles, and ends, of criminal law ? Where, indeed, a statute creating an offence, evinces, by its phraseology, or otherwise, an intention in the legislature, to inflict but a single penalty, (as where it is given, by tvay of compensation, to the individual, injured by the offence; or where the language of the act makes it single,) there is a plain positive ground of exception to the general rule ; and the will of the legislature, is a sufficient reason for it, without enquiring further. In almost all the decided cases, in which this question has arisen, the intention of the legislature, as collected from the statute itself , has been resorted to, as the criterion : and I am satisfied with it, as the true one.

But even according to the distinction in Rex v. Clarke, the penalty in this case, is, in my judgment, clearly several. For the statute does not require, as essential to the offence, the actual catching, or taking, of fish, in a bush-seine : the mere using,” of such a seine, incurs the forfeiture. And each act, of each individual in fishing, (i. e. in endeavouring to take fish,) with such a seine, is certainly “ using” it, for that purpose, within the principle of the distinction in Rex v. Clarke. Every such act, therefore, constitutes, of itself, the offence, prohibited in the statute. But I will not occupy time, in further applying that distinction to the present case : as I fully approve of the criterion derived from the construction of the statute. My opinion is, that the judgment ought to be reversed.

In what I have said of Lord Mansfield’s opinion, in Rex v. Clarke, l would not be understood to suggest a doubt of the correctness of the determination in that case : though the words of the statute, upon which the action was brought, are, “ the party, or parties,” shall forfeit. For the circumstance, that the offence incurred a several punishment, at common law, and that the statute sanction was only cumulative, was sufficiently evincive of the intention of the legis-lare, that the penalty should be several, notwithstanding the particular phraseology of the act. That circumstance re» polled the conclusion, which (he words,- “ party nr parlies,’* might otherwise have furnished.

Kiimoxd and Smith, Js. gave, no opinion, being reiat?« to one of the parties,

Plea in bar insufficient.,