Doyle v. Commissioners of Baltimore County , 12 G. & J. 484 ( 1842 )

Dorsey, J.,

delivered the opinion of this court.

By the third section of the act of 1838, chap. 392, every deposite of money as a wager or bet upon elections, is forfeited, and to be paid over to the levy courts or county commissioners of the county. The forfeiture attaches to the deposite the moment it is made. For this, see Gelston vs. Hoyt, 3 Wheat. 311, and the authorities there referred to. This being the public law of the land, a knowledge of it is imputed jo every person in whose hands such a deposite is made. No notice or warning therefore, is necessary to prevent the payment of the deposite to the parties to the bet. If such payment be made, it is at the risk of the person making it, who must abide the consequences of his unauthorised act. It hence follows, that the county court erred in permitting the warrant to be read to the jury, as stated in the appellant’s first bill of exceptions, it being irrelevant to the issue which the jury were sworn to try. But for this error, their judgment ought not to be reversed. The appellant could sustain no injury from the reception of the testimony objected to. Its admission conferred on him a benefit, rather than inflicted an injury, as the jury might thereby reasonably infer, that to entitle the appellees to recover, they must prove a warning or notice to the appellant, not to pay over the deposite to the winning party to the bet. The remarks made on the first bill of exceptions arc equally applicable to the second bill of exceptions. The testimony there objected to, and admitted by the court, being offered to prove a warning to the appellant, not to pay over the money to Crandall, and a notice to him, that the appellees were entitled thereto.

The testimony permitted to go to the jury in the third bill of exceptions, so far as it tended to prove the receipt of the deposite by the appellant, was properly received by the court, but such parts of it as were offered to disprove the payment of the deposite to Crandall, were impertinent to the issue, and therefore inadmissible. But its only effect being to establish a fact wholly immaterial to the issue in the cause, and not injurious to the appellant, its reception by the court is no ground for the reversal of the judgment. The testimony thus improperly received, could work no detriment to the appellant, but might have redounded to his benefit, by inducing the jury to believe, that if the deposite were without warning, or notice of the •claim of the appellees, their verdict must be for the appellant.

The first prayer in the appellant’s fourth bill of exceptions, calls on the court to instruct the jury, that if they “believe from the evidence that notes were deposited and not money, then the plaintiff cannot recover.” If by notes is to be understood the promissory notes of the parties to the wager, or of •other persons, the court were fully justified in refusing the prayers; because, by the uncontradicted evidence in the cause, the stake deposited by Hoebaker, was a hundred dollar bank note of the bank of Virginia, and therefore, the evidence before the jury did not warrant the court in granting the instruction prayed. But if by notes were meant bank notes, as the argument on both sides assumes, then the prayer was properly refused. This court, in the case of Towson vs. The Havre de Grace Bank, 6 Harr. & John. 53, having said that the objection, “that bank notes are not money, cannot be sustained; they answer all the purposes of money in the ordinary concerns of the community; by common consent they are treated as money, in the payment of debts, the purchase of goods and lands, and in the every day transactions between man and man, and at this hour can only be considered as such. They are a legal tender, unless especially objected to at the time, and will pass by will under the general description of money” — as “all my money in such a drawer.” And the same doctrine is to be found in The Bank of the United States vs. The Bank of Georgia, 10 Wheat.

We approve of the refusal to grant the appellant’s second prayer in his fourth bill of exceptions, because, if it were conceded that Crandall’s stake deposited, consisted wholly of shin-plasters, as they are termed, and that nothing could be recovered for them, it requires the court to instruct the jury, that no recovery could be had on account of $100 Virginia bank note, deposited by Doebaker.

The rejection of the third prayer of the appellant in his fourth bill of exceptions, requiring the court to instruct the jury, that if they believed “that the notes staked were of less value than $200 in gold or silver, or either, the plaintiffs cannot recover,” is too obviously correct to require any assignment of reasons to sustain it.

The refusal to grant the appellant’s fourth prayer in his fourth bill of exceptions, follows as a corollary from the interpretation given in the commencement of this opinion to the 3rd sec. of the act of 1838, chap. 392.

The fifth prayer in the appellant’s fourth bill of exceptions, was, we think, rightly refused by the court below. It required too much at the hands of the court. It called on it to instruct the jury, that the appellees could recover nothing if the Virginia bank notes were not at that time redeemable in gold or silver, or were so depreciated, that they would not be received in Baltimore in payment of debts. The failure of a bank to redeem its notes in specie, does not per se change the character or destroy the currency of its notes. And there was no evidence from which the court could submit it to the jury to find, that Virginia bank notes were so depreciated in value as not to be taken in payment of debts in the city of Baltimore, except it be in payment of debts due to the banks. Button the contrary, the proof was, that they “passed current from hand to hand in the city of Baltimore, and in purchases up anc| down the streets.” But suppose they were depreciated to the extent assumed in the prayer. According to the testimony before us, their greatest depreciation was not more than four per cent, below the specie standard, and to the extent of such their value, the appellees were assuredly entitled to recover.

We approve also of the county court’s opinion on the sixth prayer of the appellant’s fourth bill of exceptions. Doebaker having deposited his $100 in bank notes on the wager, it matters not whether Crandall’s stake against it was a horse, or any thing else, the bank notes, that is, the money of Doebaker was, under the act of Assembly, forfeited and payable to the county commissioners, although the horse or other property deposited by Crandall (not being money,) would not be.

The granting of the seven first prayers of the plaintiff in his bill of exceptions, follows as a necessary consequence of the principles which have been adopted in the preceding portion of this opinion.

Were the county court right in overruling the motion in arrest of judgment, is the only remaining branch of this case which we are required to examine?

Three reasons were assigned in the court below for arresting the judgment, to wit:

1st. “Because the declaration in this cause does not conclude against the statute in the case made and provided.

2nd. Because the declaration contains no averment that the offence was committed contrary to the statute on which the suit was brought.

3rd. Because the declaration contains no averment that the offence was committed contrary to any statute.”

The authority mainly relied on by the appellant in support of the reasons assigned for arresting this judgment, is the case of Lee vs. Clarke, 2 East, 340, in which Lord Ellenborough, in delivering his opinion, says, “but it is contended, that the conclusion here, ‘whereby and by force of the statute, an action hath accrued,’ &c., and will supply the want of the other allegation,” meaning contra formara statuti. “If it had said statutes, in the plural number, perhaps that might have done, but it certainly is not sufficient with reference only to the Stat. 2 Geo. 3, chap. 19, because that alone would not support the action.” The plaintiff’s right to recover in the case in 2 East, rested not on a single but several statutes. In the case before us, the declaration does conclude, “whereby and by force of the statute,” &c., and the action being wholly founded on a single statute, the declaration, even upon the principles recognized in'2 East, stands exempt from the defect so strenuously urged against it. It is also clearly sustained by the more recent case of the Attorney General vs. Rattenbury, 4 Eng. Excheq. Rep. 134, where, in a prosecution for a forfeiture for an offence, created by a particular statute, it was held not to be necessary to charge the acts illegally committed, to have been “against the form of the statute,” &c., but that it was sufficient to allege the forfeiture to have been “according to the statute,” &c., or “by virtue of the statute,” &c., fully equivalent to which is the allegation in the present declaration, of “whereby and by force of the statute in such case made and provided, the said sum of two hundred dollars, then and there so deposited, became forfeited and payable,” &c. The mode of declaring now complained of, is in strict conformity to a precedent, in 1 Harr. Ent. 621, taken from 7 Went. 223.

But conceding it was requisite in all the cases referred to, to charge the offence committed as contra formant statuti, such an allegation is wholly inappropriate to the case before us. In the authorities adduced, the suits were instituted for the recovery of penalties imposed on the perpetrators of certain acts prohibited by statute. In stating the perpetration of those acts, it might, not without reason, be requisite to state, that they were committed against the form of the statute in such case made and provided. But as respects the acts which create the forfeiture, for the recovery of which the present action is instituted, they are not in terms prohibited by any statute.

All that the act of Assembly does in relation to the subject is, that it declares every deposite of money in this State, as a wager or bet on elections to be held out of the State of Maryland, shall be forfeited and paid over to the levy court or county commissioners of the county, for the use of primary schools in said county. We think, therefore, that the declaration complained of, sufficiently indicates to the defendant the act of Assembly under which it is filed, and that the usual allegation (in suing for penalties,) of contra formam statuti is properly omitted.

A ground for arresting the judgment has been relied on in this court, which does not appear to have been one of the reasons assigned for that purpose in the court below, and that is, that the commissioners of Baltimore county are incompetent to sustain this action; that the suit should have been brought in the name of the State. And to sustain this position, Fleming qui tam vs. Bailey, 5 East, 513, has been cited. The words of the statute on which the action was there instituted, were, “that all pecuniary penalties imposed by this act, shall, when recovered either by action in any court, or in a summary way before any justice, be applied, one moiety to the plaintiff in any such action, or the informer before any justice, the other moiety to the King.” The statute further provided, that the penalties over £20, each, should be sued for in the name of the informer, but made no provision authorising the informer to sue in his own name, where the penalties did not exceed .£20 each. The suit was brought by Fleming qui tarn, for three penalties, each of the sum of ¿£20. The court held, that the action could not be sustained. Justice Lawrence observing, in reference to the portion of the statute recited, that it “only applies to the penalty when recovered, but does not give the informer the original power to sue for it.” Thus placing his decision upon the peculiar phraseology of the statute which gave no claim to the penalty until it was recovered, and such recovery, therefore, could only be had in the name of the King. Had the statute directed that the penalty, as soon as it was incurred and sued for, should be paid to the informer, ihe inference is manifest, that in the opinion of the learned judge, he could have maintained the action in his own name. In the case before us, the language of the act of Assembly is too clear to admit of a doubt. It declares that the entire deposite “shall be forfeited and paid over to the levy courts or county commissioners of the county, for the use of primary schools in said county,” and their right to sue for it in' their corporate name, is a point, we think, too clear for controversy. JUDGMENT AFFIRMED'.