Warren v. Doolittle , 5 Cow. 678 ( 1825 )

Golden, Senator.

(After considering, and expressing his opinion against the objections raised upon the bill of exceptions.) It is contended that there is error in the judgment, because it is against two defendants; whereas the statute is in the singular, and applies to one person only; its words being, “ if any person ” shall aid a tenant, <fcc.

We must interpret this statute according to its obvious meaning. It undoubtedly intended that all persons who should assist a tenant to defraud his landlord should be punished. It is not unusual in enactments of this kind to use the singular number, not in a numerical sense; but as designating a whole species. So in the decalogue, we are commanded not' to covet our neighbor’s wife, or his ox, or his ass, or his house. It has irever been thought, I believe, that this precept was confined to one of these objects; and that if our neighbor has two wives, two oxen, two asses, or two houses, we may covert one of them. We must read the statute, in my opinion, as if it had said, “ all persons” who shall unlawfully assist a tenant to remove his goods, shall pay to the landlord double the value.

Each defendant not liable for whole penalty ; but all defendants for one penalty. Landlord can recover but one penalty, whether he brings separate actions, or an action against all the offenders jointly. If the action, be in debt for a certain sum and refer to the statute by its title, this is sufficient, without claiming double value in terms.

Then the question is, whether the defendants, having been engaged in the same prohibited act, are each, liable for the whole penalty in separate actions; or whether they are jointly liable for a single penalty in one action. It is very certain that the statute will permit the landlord to recover the double value of the goods but once ; so that unless those who were concerned in the transgression, and were equally guilty, are jointly liable, but one of them can be punished. This we cannot presume was the intent of the legislature. We should not give .the statute a construction which would be so at variance with common sense and common justice. If an authority be necessary to show that this objection to the judgment ought not to prevail, it will he found in the case of Barnard v. Gostling, (2 East, 570,) in which the English Court decided that upon then-statute, which prohibits an unqualified person from using a grey hound, under a penalty of five pounds, two might be convicted in one penalty, though they could not each be charged with five pounds for the same act.

This objection comes rather awkwardly from the defendants below, because it is insisting on an error, which if it be one, is in their favor. Each insists that the judgment ought to be reversed, because he has been rendered liable for the penalty, together with his co-defendant, whereas, each should be charged, as they contend, with the whole of the double value of the goods. I think the case will not permit us to indulge the plaintiffs in error by pronouncing that they are liable so far beyond the present recovery.

It is insisted that the action is wrong, because it is not for the double value; and that nothing is said of the double value in the declaration.

I do not think this is so. The action is in a plea of debt for a hundred dollars. The first count concludes with an averment that “ an action had accrued to the plaintiffs to have from the defendants the said sum of one hundred dollars, according to the form of the statute in such case made and provided, entitled an act concerning distresses, rents and the renewal of leases, passed the 5th April, 1813 and the second count avers that the defendants below assisted the tenant to remove his goods, “ contrary to the form of the statute in such case made and provided.” In the case of Newcomb v. Butterfield, (8 John. Rep. 345,) in which the plaintiff attempted to recover treble damages for a trespass, the Supreme Court say, “ the declaration should refer to the act, so that the defendant may be apprised of the extent of the demand.” In the case we are now considering, the declaration does, as we have seen, refer to the statute very particularly. It gave the parties and the court sufficiently to understand that the action was for the double value. The declaration states the value of the goods, and the jury has found that they were worth twenty-nine dollars ; which, when doubled, is fifty-eight dollars, for which the judgment is rendered.

In actions for penalties depending on uncertain values the plaintiff need not recover the precise sum laid in the declaration. 3d point, judgment for double value.

The plaintiffs below do not recover more than they have demanded. In actions for penalties, where they depend on uncertain values, the plaintiff may recover less than he counts for. The rule, that in an action of debt, a plaintiff must recover according to his count, has been relaxed in a thousand instances, as in M’Quillin v. Cox, (1 H. Bl. 149 ;) and if the old rule were still adhered to, in actions of this nature, it would render all penal statutes nugatory, which provide that value shall be the measure of a penalty. It would be equally absurd to say that a party must, at his peril, fix the value at neither more nor less, than a jury may think right. If this were required, it is hardly possible that a penalty of this nature could ever be recovered.

The third point of the plaintiffs in error is, that the court below, “ under pretence that the jury had given a verdict for the value of the goods only,” instead of giving judgment on that verdict, gave judgment for double the amount of it, without regard to the finding of the jury.

' So far as this point refers to facts, it is not supported by the record. For certainly the jury did find specially the value of the goods ; and so far from the court’s not having regarded the verdict, the record states, that “ thereupon, according to the form of the statute, the court gave judgment for $58, being double the value of the goods and chattels so as aforesaid, by the jury aforesaid, found.”

The power of doubling the value does not belong exclusively to the jury.

But it was contended that the double value ought to have been found by the jury ; and could not be assessed by the court. Where double damages are given, they are constantly doubled by the court; and there seems to be no reason why the same course may not be pursued where a party is entitled to a double value by way of penalty.

Penalties are frequently given in this form, under the acts of Congress; and the question now under consideration has fften been presented in the courts of the United States.

In the case of Cross v. The United States, (1 Gall. Rep. 36,) the court says, “ In looking into precedents on informations for breaches of the revenue laws, we find that in general, the verdict is for the single value. But in such precedents, the issue is not found to be nil debet, but is a special issue; and the single value of the property is assessed by the jury, to enable the court to impose' the penalty as -well as to decree the forfeiture of the goods.” In the case before us, by finding for the plaintiffs upon the general issue, and finding the value of the goods, the jury found all the facts necessary to enable the court to see that the case was one in which the plaintiffs below were entitled to the double value of the goods, to assess such value, and to render their judgment accordingly.

In my opinion, the judgment of the Supreme Court must be affirmed with costs.

Per totam Curiam,

Judgment affirmed.