Megargell v. Hazleton Coal Co. ( 1845 )

The opinion of the court was delivered by

Rogers, J.

A common informer may bring an action in his own name, whether the penalty be given to him in whole or in part, and that without any positive direction in the Act imposing the penalty. But in the Act on which this suit is brought, the penalty is to be recovered by any person suing for the same; and in the 4th section, the sum, when recovered, is ordered to be paid, one-half to the person or persons suing for the same, &c., and the other half to the treasurer or county commissioners. Independently, therefore, of the general principle, the Legislature recognise the right of action in the common informer, but direct the use to which it is to be put when recovered. The Act, when fairly viewed, we think, admits of no other construction; and if the point depended alone on the words or the import of the language used by the Legislature, the court erred in ruling the plaintiff out of court. It was intended that the action should be brought on his responsibility, and that the common informer alone, in case of failure, should be answerable for the costs. A common informer has not only the right to sue, but, as is held in Caswell qui tam v. Allen (10 Johns. 118), he may receive and give an acquittance for the money; the statute, as in this State, providing that any person might prosecute the action for the penalty, and that one moiety should belong to him, and the other moiety, when recovered, should be paid into the treasury of the State. The right to receive, as is there held, is an incident to the right to sue; a positive and direct opposition to that assumed by the Court of Common Pleas. The right of the common informer to institute the action in his own name is expressly ruled in Vandeventer v. Van Court (1 Penn. N.J.Rep. 168). But the court say that when the penalty is given to him and others, he must declare specially qui tam, that the interest of those who have the right may appear of record. And for the latter reason only, the judgment was reversed. And to this effect is the case of Butler v. The President of the College of Physicians (Cro. Car. 256), and ---v. The Inhabitants of The Hundred{Cro. Car. 336). That a suit may be brought in the name of both is admitted, for so are the precedents; but that it must is denied on the authority of the cases cited. It may be brought, as is said in Cro. Car. 256, in both ways. If brought by the common informer, it is good, if it appears to be qui tam on the record; for it is not necessary it should be qui tam in the writ; for if the interest be set out in the declaration, it is good; for the only reason it is required is that no doubt may exist as to the persons entitled to the penalty when recovered. And whether this judicially appears is the only thing which creates any doubt in the case in hand. This, be it remembered, was an appeal from a justice; and the practice in Northampton county is to go to trial on the transcript, .which is substituted for a declaration. Now, in the transcript it appears that the justice ordered the penalty, when recovered, to be paid, one-half to the plaintiff and the other half to the treasurer or county commissioners. This was equivalent to a declaration qui tam, and for this reason good.

Besides, the plaintiff offered to amend by adding to the name of John Megargell these words: “who sues as well for himself as the treasurer of Northampton county.” Why this application was refused can only be conjectured; but I presume the amendment was rejected because it was supposed to change the cause of action by adding another party. But this is a mistake, as has been already shown : the proper party is the common informer, and the only effect of amendment is to perfect the record by a designation of the persons to whom the money when recovered is to be paid.

Judgment reversed, and a venire facias de novo awarded.