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But, on the other hand, where by a statute a new offence is created, and a penalty is given for it, or a new right is given and specific relief given for the violation of such right, the punishment or remedy is confined to that given by the statute.* "Where a new right," says the Supreme Court of New York, "or the means of acquiring it, is conferred, and an adequate remedy for its invasion is given by the same statute, parties injured are confined to the statutory redress." + Sometimes, however, doubts will arise as to whether the statute does or does not intend to take away the common-law remedy; and the answer will depend on the subject-matter. So, where the charter of a turnpike corporation provided that any person guilty of certain injuries to the road, as breaking down gates or digging up earth, should forfeit and pay a fine of fifty dollars, it was held that this provision was not intended to take away any common-law remedies for such injury or obstruction, upon the ground that the penalty fixed by the charter was, in many cases that might occur, wholly inadequate to indemnify the company. Where a statute does not vest a right in a person, but merely prohibits the doing of some act under a penalty, in such a case the party violating the statute is liable to the penalty only; but where a right of property is vested in consequence of the statute, it may be vindicated by the common-law remedy of action, unless the statute expressly confines the remedy to the penalty. So in Massachusetts, where a party was sued for obstructing the passage of fish up a river, it was objected that the franchise of the plaintiff in the fishing was created by a statute, and that as the same statute imposed a penalty for the infringement, the plaintiff's remedy was confined to the penalty; but the objection was considered bad, and it was held that the plaintiff was at liberty to sue at com

Colden v. Eldred, 15 J. R. 220; Troy and Boston Railroad Co. v. Tibbitts, 18 Barbour, 297. As to the remedies for non-payment of stock, it would seem that if the act of incorporation, or any public statute, declares that the subscriber to the stock shall pay the calls made thereon, or if he actually agree to do so, he is liable, and the remedy of forfeiture for non-payment is merely cumulative. But where there is a right of forfeiture given, and no duty imposed to pay, and no promise, then

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Nor is the com

mon law for the injury done to his franchise.* mon-law right to maintain an action in respect of a special damage resulting from the breach of a public duty, whether such duty exists at common law or is created by statute, taken away by reason of a penalty recoverable by a common informer being annexed as a punishment for the non-performance of the public duty. So, where a statute † makes it a duty of a ship+ owner to keep on board his vessel a proper supply of medicines, and imposes a penalty recoverable by a common informer as the specific punishment for the breach of that duty as to the public, sailors sustaining a private injury from the breach of the statutable duty, are entitled to maintain an action to recover damages.

But if the performance of a new duty created by act of Parliament, is enforced by a penalty recoverable by the party ag grieved by the non-performance, then there is no other remedy than that given by the act, either for the public or private wrong. So too, if there is no private damage; then if a statute points out a particular mode of procedure, it must be pursued. So it has been decided in regard to the recovery of a highway rate and a land tax. It is to be observed in general, that the infraction of a public prohibitory statute, even if passed chiefly for the protection of a particular class, does not confer any individual right unless the party alleging himself to be aggrieved, has sustained a special damage peculiar to himself. As to criminal legislation, it may be remarked, that where a statute prohibits an act to be done under a certain penalty, though no mention is made of indictment, the party-offending may be indicted and fined to the amount of the penalty; but where it is merely provided that if any person do a certain act he shall for feit a sum to be recovered by action of debt, no indictment can be supported.** If a statute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie Smith v. Drew, 5 Mass. 514; Almy v. Bridges, 1 B. and Ad. 847; see also, Stevens Harris, 5 J. R. 175. v. Jeacocke, 11 Q. B. 731.

+7 and 8 Vict. c. 112, s. 18. Couch v. Steel, 3 Ellis and Blackburn, Q. B. 402; Rowning v. Goodchild, 2 W. Bl.

905.

Underhill v. Ellicombe, M'Clel. and Y. 450; Doe dem. the Bishop of Rochester v.

Butler v. Kent, 19 J. R. 223; Lansing v. Smith, 8 Cowen, 146; Smith v. Lockwood, 13 Barb. 209.

**Chitty's Criminal Law, i, p. 162; Cro. Eliz. 635, 2 Inst. 131.

for disobeying the injunction of the Legislature.* The Revised Statutes of New York,† declare in conformity with these rules of the common law, that where the performance of an act is prohibited by any statute, and no penalty for the violation of such statute is imposed either in the same section containing such prohibition, or in any other section or statute, the doing such act shall be deemed a misdemeanor.

Statutory Forfeitures.-Property is often forfeited by illegal acts. This sometimes results from the rules of the common law, and sometimes from the provisions of statutes. But there is a marked difference in the two cases. A forfeiture at common law does not operate to change the property until some legal step has been taken by the Government for the assertion of its rights; but where a forfeiture is given by statute, the rules of the common law are dispensed with, and the thing forfeited. may either vest immediately or upon the performance of some future act, according to the will of the Legislature; and if no future time or future act is pointed out, then where, by the words of a statute, a forfeiture is attached to the commission of an offence, its immediate operation is to divest wholly the title of the owner, so as to deprive him of the right of maintaining any action or defence to which, as owner, he would otherwise be entitled. So, where the English navigation act had been violated, it was held that the property was forfeited though there had been no previous condemnation. So, where an act of the Congress of the United States, declaring that whenever certain articles "should be imported into the United States after the 20th day of May next, all such articles shall be forfeited to the U. S.;" it was held that an absolute and instantaneous forfeiture was created by the mere act of importation, that no seizure was necessary to vest the title in the Government, and that even a bona fide purchaser acquired no title. So, again, where a statute in New York, in relation to lotteries, provided that "all property offered for sale, distribution, or disposition

* Rex v. Davis, Say, 163.

Part iv. chap. i, title 7, vol. ii, p. 696. Bennett v. Am. Art. Union, 5 Sandford, 614 636; U. S v. Grundy, 3 Cranch, 337.

Wilkins v. Despard, 5 T. R. 112; Rob erts v. Wetherall, Salk. 223; s. c., 12 Mod. 92.

TU. States v. 1,960 bags of coffee, 8 Cranch, 398, overruling Mr. Justice Story's decision in the Mars, 1 Gallison, 192; Fontaine v. Phoenix Ins. Co. 11 J. R. 293; Kennedy v. Strong, 14 J. R. 128.

against the provisions of law, shall be forfeited to the people of the State," it was held that the mere offer for sale worked an immediate change and transfer of the title.*

Several Penalties.—Where a penalty is imposed upon the commission of an act, and the act is committed by several persons, the question sometimes arises whether only one penalty can be recovered against all, or whether the whole amount of the statutory forfeiture can be demanded against each of the offenders. And the rule is, that where the offence is in its nature single, and cannot be severed, there the penalty shall be single; because, though several persons join in committing it, it still constitutes but one offence. So, if a distress is wrongfully impounded, though several may co-operate, it is but one act of impounding. So, under the English game laws, killing a hare is but one offence, whether one or twenty kill it. So again, if partridges are netted by night, though two, three, or more may draw the net, still it is but one offence; and in these cases there can be but one penalty against all the parties found guilty.† So too, in this country, with regard to the removal of property liable to rent from off demised premises, before the remedy of distress for rent was abolished, it has been held to be but one act, and to subject all parties concerned to but one penalty.‡

But on the other hand, where the statute relates to an offence in its nature several, as, for instance, to the resistance of process, the acts of each are to be severally regarded, and the penalty to be imposed on each. One may resist, another mo

lest, another run away with goods; one may break the offender's arm, another put out his eye; all these are distinct acts, and the offence of each is complete in its nature. Therefore, each person is liable to a penalty for his own separate offence. Good faith no excuse for violation of Statutes.—We have already had occasion to notice the rule, that ignorance of the law cannot be set up in defence. All are bound to know the law; and this holds good as well in regard to common as to statute

614.

Bennett v. Am. Art Union, 5 Sandf.

Partridge v. Naylor, Cro. Eliz. 480; s. c. F. Moore, 453.

Warren v. Doolittle, 5 Cowen, 678;

Palmer v. Conly, 4 Denio, 375; Conley v.
Palmer, 2 Coms. 182.

Rex v. Clark, Cowp. 610; Palmer v.
Conly, 4 Denio, 375; Conley v. Palmer, 2
Coms. 182.

law, as well in regard to criminal as to civil cases. In regard even to penal laws, it is strictly true that ignorance is no excuse for the violation of a statute.* So in regard to frequent attempts which have been made to exonerate individuals charged with disobedience to penal laws, on the ground of good faith or error of judgment; it has been held that no excuse of this kind will avail against the peremptory words of a statute imposing a penalty. If the prohibited act has been done, the penalty must be paid. So in England, in debt, for a penalty under the game laws, for shooting without license, it was urged that the defendant acted in good faith, and relied on a license which proved insufficient; but it was held that acting bona fide was no excuse. So, where an act directed town supervisors to raise certain sums of money for the erection of public buildings, and declared that if they neglected or refused, each supervisor should forfeit the sum of $250, it was argued that the supervisors had a discretion, and that it must be shown that they abused this discretion or exercised it corruptly; but the act was declared to be imperative, and the supervisors to be liable. So where supervisors were by law directed to audit and allow the accounts of certain judicial officers, and in case of neglect or refusal were subjected to a penalty of $250; a mayor of a city, acting as supervisor, refused to audit an account of this class; and, in his defence, it was urged that he was not liable unless his intention in not auditing the account was corrupt; and that, in fact, he honestly believed the officers, whose account had been offered for audit, had been unconstitutionally appointed; but it was held to be no excuse. "The offence," said Mr. Senator Lott, in delivering the judgment of the Court of Errors, "consists in the refusal to perform the duty required by law, and not in the intent or motive by which the supervisors are actuated." So, a justice of the peace was held liable for a misdemeanor, as for a wilful neglect of duty, in refusing to take

* Smith v. Brown, 1 Wend. 231; Caswell officers in question had been appointed, had v. Allen, 7 J. R. 63.

Calcraft v. Gibbs, 5 T. R.-19.
Caswell v. Allen, 7 J. R. 63.

Morris v. The People 3 Denio, pp. 381 and 402. It was contended that the unconstitutionality of the act under which the judicial

been settled by the court of last resort (Purdy v. The People, 4 Hill, 384), and that this was a conclusive defence; but Mr. Senator Lott held that neither the supervisors nor the court in that suit, to which the officers were not parties, could determine the point,

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