Berry v. Stinson

The opinion of the Court was by Shepeey J. This case is presented on a general demurrer to the declaration. The first defect alleged is, that it does not appear to be an action of debt as provided by the Statute, c. 115, >§> 21. It is said, there should be a distinct allegation, that it is a plea of debt. The declaration alleges, that the defendant “ owes and unjustly detains” the amount demanded. These terms are sufficient to determine the kind of action; and the form used is in substance, that required by the English precedents. The second defect alleged is, that the declaration does not contain an averment, that the defendant unreasonably or without sufficient cause neglected to perform the duty required. It does allege, that from the time of his election and qualification, “ he hath neglected and still doth neglect.” The provision of the statute is, “ every treasurer neglecting his duty” shall forfeit and pay. And the language of the declaration is as full and decisive as that of the statute. A charge of continued neglect of duty implies blame* and excludes the idea, that there was sufficient reason for an omission to perform it. In the third place it is contended, that all the allegations in the declaration may be true, and yet the defendant may not have been guilty of any neglect of the duties required by the statute. They are sufficient to show a neglect of the duty required by the eighth section of the statute, c. 73 ; but the ninth section so far varies that duty, as to permit the treasurer to procure half-bushel, peck, and half-peck, measures made of wood, instead of the like measures made of copper, or pewter, as required by the eighth section! As the declaration alleges, [143] that he neglected to procure “ a complete set of beams and copper and pewter measures,” except the bushel measure and the nest of troy weights; it might be true, if all the measures of copper and pewter with half-bushel, peck, and half-peck, measures made of wood had been provided, that there would not be a complete set of copper and pewter measures, required by the eighth section. To avoid this difficulty, the plaintiff contends, that as the liberty to procure those measures made of wood is given by the ninth section, he is not obliged to negative their procurement in the declaration, that being only a matter of excuse, which might be offered in the defence. The rule, as stated in the cases of Williams v. The Hingham & Quincy turnpike, 4 Pick. 341, and of Smith v. Moore, 6 Greenl. 274, is, “ that where an action is given by statute, and in another section, or subsequent statute, exceptions are enacted, the plaintiff need not take notice of these exceptions in his count, but leave it to the defendant to set them up in defence. Eut where the exception or limitation is contained in the same section, which gives the right of action, the plaintiff must negative the application of them to his ground of action.” Whatever failure there may be in attempts to prescribe a rule in all cases, there can be no doubt, that the plaintiff must in his declaration allege all the facts, upon which the statute gives him a right of action. Having done this, if there are any matters of exemption, or excuse, they may well come from the defendant. The plaintiff does not bring himself within the rule stated in those cases, for the section, upon which his declaration is framed, does not give him a right of action. The phraseology of the statute is peculiar. It does not give the right of action for a violation of the duty required by any one section alone, but for the violation of any duties required by three sections, the eighth, ninth, and tenth, considered in connexion. The eleventh section creates the penalty and gives the right of action, the provision being, that “ every treasurer neglecting his duty required by the three preceding sections shall forfeit and pay for each neglect one hundred dollars.” His right to recover that penalty must therefore depend upon a neglect of duty to be [144] ascertained not from the provisions contained in any one of them, but from those contained in them all. By “ the enacting clause,” or “ by statute” as used in the books, is meant such an' enacting clause or statute provision, as creates an offence and gives a penalty, when it is said, where an action is given by statute or by the enacting clause, and in another section, or subsequent statute, exceptions are enacted, the plaintiff need not notice them. In this case the plaintiff is not entitled to recover upon the facts stated in his declaration, for the penalty is not incurred, except by a neglect shown from a consideration of the provisions of the three sections. Declaration adjudgéd bad.