1 Tenn. 330 (T.N.Super.Law & Eq. 1808), Martin v. McNight

Citation:1 Tenn. 330
Opinion Judge:Humphreys, J. Overton, J. PER CURIAM.
Attorney:Barry and White argued for the new trial; Haywood, e contra.
Court:Superior Court Tennessee, Superior Court of Law and Equity of Tennessee

Page 330

1 Tenn. 330 (T.N.Super.Law & Eq. 1808)




Superior Court of Law and Equity of Tennessee.

October, 1808

         [ S. C., infra, 380.]

          An action for a penalty is a civil proceeding in its nature, although the defendant is not chargeable ex contractu, but rather as a trespasser. Absent persons may be charged, not as partners, but upon proof of aiding and assisting in the commission of the offense; and the action may be joint or several.

         In such an action, after verdict for the defendants, a new trial may be granted as to one, and judgment entered in favor of the other.

         And the only grounds for a new trial are misdirection by the Court as to matter of law, and fraud or improper practice in procuring the verdict.

         [Cited in: 6 Lea 633.]

         This was an action of debt grounded on the fourth and fifth sections of the Act of 1803, c. 3. The act imposes a tax upon merchants, peddlers, and hawkers of $25. and requires them, upon payment of the tax. to take out a license from the clerk of the County Court. The fifth section inflicts a penalty of $100 for selling without license, one-half to the use of the informer. A trial had taken place at a former term, when it was proved that the defendant, John, had sold goods at a certain place on the road, as a peddler without license; his brother James, who was reputed to be in partnership, not being then present. It was also proved that the two brothers were frequently together about that time, and employed in selling some of the same goods.

         Humphreys, J., upon the trial, was inclined to think that the absent defendant could not be found guilty; and, as this was an action of debt, the other must be acquitted.

         Overton, J., who then sat with Humphreys, J., was not prepared to give any opinion.

         Verdict for both defendants, and rule to show cause why a new trial should be granted which now came before the Court to be argued.

         Barry and White argued for the new trial; their argument, in substance, was that the tax operated upon the firm; that in this case respecting licenses for stores among mercantile men but one license was necessary, though several might be in partnership. If the tax is avoided, it is an equal benefit to all concerned, and therefore all should be liable for the penalty. They considered the case...

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