Martin v. M'Night

• Decision Date: 31 October 1808
• Citation: 1 Tenn. 330
• Parties: MARTIN, QUI TAM, v. JOHN AND JAMES M'NIGHT.
• Court: Tennessee Circuit Court

1 Tenn. 330

MARTIN, QUI TAM,

v.JOHN AND JAMES M'NIGHT.

Superior Court of Law and Equity of Tennessee.

October, 1808.

[ S. C., infra, 380.]

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 in the view of a contract with the government under the terms expressed in the act. Whenever they procured their goods with a view of peddling they then agreed, if we sell we will either pay $25 and take out a license, or $100 if we do not; and the selling afterwards by one of the parties was the same thing as if both had sold. No higher evidence of a copartnership is necessary in this case than any other. Express proof by articles of copartnership is never required. Holding themselves out to the world as such is sufficient.

In the criminal code, it was not a new thing to consider absent persons under particular circumstances as guilty. In the highest criminal cases there may be accessories, who are always absent; for if present, aiding and assisting, they are principals. In trespass, as contradistinguished from the felonies, all are principals; there can be no accessories, and absent persons may be aiding and assisting in a trespass as well as those present. These observations were made to put the case in the strongest point of view against them. This statute being made pro bono publico should not be construed strictly as penal statutes usually are. 4 Cun. ed. Bac. Ab. 649. It should receive an equitable construction for the good of the public. Suppose a pedler intrusts a slave to sell, is the State to have no remedy?

In this case the jury were misdirected by the Court, and for that cause there ought to be a new trial. 6 Guil. ed. Bac. 674, 675.

A few years ago Judge M'Nairy, when sitting in the Federal Court, granted a new trial, in qui tam action between Sanders qui tam and Tipton, nor was this lightly done: it was after elaborate argument. A new trial was not only granted in that case, but an amendment allowed.

Haywood, e contra.--This question must be considered under the ideas of criminal jurisprudence. It is impossible to charge the absent person as a partner. Partners in trade are liable upon the principles of contract,--which is never presumed as to crimes and misdemeanors. There is no proof that the absent person, James M'Night, assented to the violation of the penal law, and it never could have been the intention of the Legislature to inflict a penalty upon an innocent person. The way to construe this law is to make every man liable for his own offenses, and no further. In this way the other partners may be come at. It is, however, not material now to inquire whether the directions given by the Court were right or wrong; the jury have found the defendant not guilty, and a new trial can not be granted in a penal action when the defendants have been acquitted.^a1

If one be rightfully acquitted and the other not, a new trial will not be granted, which is precisely the case in Strange, 813. In this case there can be no doubt that James M'Night ought to have been acquitted. If the Constitution is not concerned in this case justice is, which is of as high importance. It has been argued that the defendants took out a license about a month after the offense was said to have been committed; that circumstance can have no effect upon what had previously taken place. Independent of all these considerations, there was on the trial a clear defect as to the evidence of partnership, let it be considered in what point of view it may.

Per Curiam.

After taking time to advise, this action must be considered in the nature of civil, and not criminal, actions. It is so laid down in Cowper, 32, Atcheison v. Everet, and 1 Guil, ed. Bac. 61. From the wording of this statute the penalty relates to the offense, and not immediately to the person and consequently the action may be joint or several.^d1 In actions of this kind no person can be charged, ex contractu, the Court in this respect think the reasoning of the...