Marsh v. Shute , 1 Denio 230 ( 1845 )

By the Court, Beardsley, J.

The justice rendered judgment in this case against three persons for a penalty of twenty-five dollars. This, I think, the statute- does not authorize. The section is in these words: “ Every trustee who shall refuse or neglect to render such .account, or to pay over any balance so found in his hands, shall, for each offence, forfeit the sum of twenty-five dollars.” (1 R. S. 486, § 100.) This plainly contemplates a several penalty upon each and every trustee who shall so refuse or neglect to perform his duty, and not a penalty upon all jointly,- who may be in default. The words used are distributive: “ every trustee” means each trustee by himself, and not all of them collectively.

The next succeeding section of the statute'confirms this interpretation. It declares that “it shall be the duty of.his successors in office to prosecute without delay, in their name of office, for the recovery of such 'forfeiture,” The person in default is to be sued by his successors, and if more than one is in default, each must be sued. Here is nothing which indicates that a single penalty is to be imposed upon all the trustees who may be in default, or a joint suit prosecuted, but quite the reverse.

This offence is in its nature several. True, every trustee may incur a penalty under the statute, but not for the same offence: the neglect of one is necessarily individual and several, and cannot be the neglect of another. A joint judgment, therefore, cannot be legally rendered under this section.

There are some penal statutes which authorize a joint recovery for the same offence, against several persons. Two or more may be guilty of a joint act, for which a single penalty may be imposed, but they cannot jointly be guilty of an omission of duty. The duty of each is a several duty, which he alone can violate; and the neglect of each, in the nature of things, must, in such cases, also be several.

Where a penalty is imposed on an offence which several may and do jointly commit, one recovery only can be had, and a joint action may be- sustained. It is but one offence to impound a distress in a wrong place, although several persons may be actors in impounding it. So to kjll a hare, is but one act and one offence under the English game law, and_that whether killed by one or twenty' unqualified persons. In these and similar cases, therefore, the English statutes inflict a single penalty upon all who are parties to the illegal act. (Rex v. Clarke, Cowp. 610.)

So where the words of the statute are in the plural number, and provide that the person or persons, offending shall forfeit a certain sum, a joint penalty may be recovered. (Hardyman v. Whitaker, 2 East, 572, note.)

But neither of these principles touch this case. This offence, in its nature, is several, and the penalty is not imposed on divers persons collectively. The offence' is an omission of individual duty: the omission or neglect of one person cannot constitute the offence of another, nor lay the foundation for a joint action against both. (Esp. on Penal Stat. 66 to 71; 1 Chit. Pl. 7th Amer. ed. 98; Barnard v. Gostling, 2 East, 569; S. C. in error, 1 New Rap. 245; Rex v. Atkinson, 2 Ld. Raym. 1248; Rex v. Weston, 2 Strange, 623; Rex v. Bleasdale, 4 Durn. & East, 809; Patridge v. Naylor, Cro. Eliz. 480; Warren v. Doolittle, 5 Cowen, 678.)

Upon this ground the judgment of reversal was correct, and must be affirmed. This renders it unnecessary to pass on other points which are suggested on the part of the defendant in error.

Judgment affirmed.