Jones v. Berry , 33 N.H. 209 ( 1856 )

Sawyer, J.

The exception to the verdict in this case is founded on the supposition that the sale by a pedlar without license is prohibited by the statute of 1848, chap. 734, entitled “ an act relating to pedlars.” The act provides that every pedlar, or other person going from place to place, either on foot or with a horse, or otherwise, carrying to sell, or exposing for sale, any goods, &c., without license, shall be punished by fine, &e. Comp. Stat. 281. Whatever the acts, may be which are thus declared subject to the penalty, they are to be considered as prohibited, and the question is, what is it that is thus prohibited, the sale ? or the carrying to sell, and exposing for sale, only ? In Williams v. Tappan, 3 Foster 385, assumpsit was brought to recover the price of shingles sold in Massachusetts. JBy the law of that State, in force at the time of the sale, all shingles made in the State, or offered for sale, were required to be sur veyed and branded in a specified manner, and all shingles offered for sale without being thus surveyed and branded, were to be forfeited to the use of the town where they might be so offered. It was held that “ offering to sell” was not necessarily included in a sale, as a sale might be made without an offer to sell, and that, therefore, the sale was not to be considered as prohibited.

In Brackett v. Hoitt, 9 Foster 264, a similar question arose under the statute of this State relating to the sale of hay. Rev. Stat., chap. 107, secs. 1 and 2. These sections provide that all pressed hay, offered for sale in this State, shall be branded in a specified manner, and prescribe a penalty for offering to sell pressed hay not so branded. This action was also brought to recover the price of the article sold, and the exception was taken that the sale was prohibited. It was held, however, that it was the offer to sell and not the sale which was prohibited. The grounds of the decision in Williams v. Tappan were carefully reviewed, and the doctrine of that case was fully affirmed. Those cases are decisive of this. The statute relating to pedlars declares, not that every pedlar, or other person, going from place to place, selling, &e., shall be liable to the penalty, but carrying to sell, or exposing for sale. The prohibition of the statute, like the others referred to, is against the carrying to sell and exposing for sale, and against the sale itself. Those are no more necessarily implied in a sale than is the “ offering to selland the ease finds only that the stove was sold, if sold at all, by a pedlar, without license. These statutes, being all penal in their character, are to be construed strictly. The fair and obvious meaning of the words is undoubtedly to be given to them, and the intention of the legislature, as expressed, is to be carried into effect; but they are not to be strained to embrace by implication subjects not clearly within the obvious meaning of the terms employed.

We are satisfied with the soundness of the views expressed in the cases referred to, and can perceive no ground of distinction between those cases and this.

Judgment on the verdict.