Merriam v. Langdon

Church, J. Most of the exceptions, suggested by the plaintiff in error, to the proceedings and judgment of the county court, are, in our opinion, the result rather of professional ingenuity than of plausible objection ; and we have no difficulty in disposing of them accordingly. Such are the following. 1. That no other notice of the filing of the information and its pendency in the county court, was given to the defendant below, than by leaving with him a copy of it, by an indifferent person, in conformity with an order of that court. The statute under which these proceedings have been conducted, has made no provision for notice in such cases; and the general statute provision authorizing courts of law to make orders of notice, does not embrace the present case. But the power exercised by the court was necessary to the exercise of its jurisdiction and for the purposes of justice ; and if the notice given was reasonable, it was legal. It is not claimed, that the notice was unreasonable, either in respect to time or manner ; on the contrary, the defendant appeared upon the notice, made defence and was fully heard without objections. He must be considered as having waived them, therefore, if any cause of objection to the notice existed. 2. That for the purpose of proving that the defendant was carrying about the goods seized, as a pedlar, hawker and petty chapman, and that at and before the time of seizure, he did deal and traffic as such, the court admitted Leveret Bishop and others, to testify, that on former occasions, within a short time before the defendant left home with the goods seized, he had repeatedly carried about and sold, as a pedlar, &c. to the witnesses, certain specified foreign goods. To constitute an offence under this statute, so as to incur a forfeiture of goods, it is not sufficient that the defendant, in any one instance, has sold foreign goods, unless he has done so in a particular character; he must have traded, dealt or trafficked in such goods as a pedlar, hawker, and petty chapman ; and it was only for the purpose of proving the character of the defendant’s business and occupation, that this evidence was ad — 469 — mitted; and for such purpose it was certainly admissible, as conducing to prove, that he was, at the time of the seizure, car-. rying about and offering for sale these goods, in the same character, and not for the purpose of proving upon him a distinct of-fence, with which he was not charged in the information. 2 Stark. Ev. 372. The King v. Little, 1 Burr. 609. 10 Petersd. Abr. 207. Very much to the same purpose was the testimony of /S'. A. Tuttle and others, which was admitted to prove, that previous to the seizure, on the same day, as well as the day before, the defendant had sold to them, respectively, from the same load of goods seized, certain specified articles of foreign goods of a different description from any described in the information. It was earnestly insisted, at the bar, that this evidence did not conduce to prove, that the goods seized were offered for sale, although they were a part of the same load of goods from which foreign goods had been, by the defendant, just before sold : that as the statute upon which this prosecution is founded, is a penal statute, and as such, should be construed strictly, it would not justify the introduction of this evidence for the purpose of proving the issue in this case, viz. that the defendant had carried about and offered for sale the goods seized. That penal statutes should be construed strictly, is an elementary principle ; yet they should not be construed so strictly as to defeat the essential purposes of their enactment, when the intent is clear ; but, on the contrary, their language should be understood in its common, customary and popular signification. The United States v. Wiltberger, 5 Wheat. 76. The American Fur Company v. The United States, 2 Pet. 358. 1 Sw. Dig. 12. What is an offer to sell goods, within the obvious intent of this law i Can no other article be seized but that one which is particularly selected from others., and handed out to a purchaser for sale ? Is no other yard of cloth the subject of forfeiture but that one which a purchaser selects to be cut from a larger piece ? So to construe the law would be to defeat its object. If a merchant places his goods upon his shelves, opens his shop for business and invites the calls of customers ; or if an itinerant pedlar furnishes his carriage with vendible commodities of different descriptions, and in that character, carries them about in search of customers, and sells, from day to day, — 470 — to (^erent purchasers, we must studiously exclude all common to say, in the absence of contradictory or explanatory evidence, that the whole stock is not offered for sale. But this testimony was admissible, not only for this purpose, but, as was the testimony of Bishop and others, it was admissible to prove another part of the issue, that the defendant was a pedlar, hawker and petty chapman of foreign goods, and that he carried about the goods in question in that character. And for the same reasons, the testimony of Jonathan Andrews was admissible. 3. Because it was alleged in the information, that the defendant offered for sale his merchandize to Anna Scovill, S. A. Tuttle, Miles B. Ford, and several other individuals named, it was objected, that the plaintiffs could not, under such averment, prove distinct offers to sell to each of said persons severally. We think the obvious meaning of the information, in this part of it, is, that the defendant offered to sell, severally, to each of these persons. He carried the goods about, and offered them for sale to the public generally, and also to the before-named individuals, is the language of the information ; as if it had been, that the defendant had carried about and offered his goods for sale to the public generally, and to Anna Scovill, and also to S. A. Tuttle, and also to Miles B. Ford, Ac. 4. That the inventory lodged with Justice Blakeslee was a nullity, and should have been so adjudged by the county court; because Blakeslee, by the interference of the plaintiffs, refused to the defendant’s attorney both an inspection and a copy of it. The inventory was either good or not, when made and returned to the justice, as the law directs: it could not receive a character ab initio from subsequent events. If it was the duty of the magistrate either to permit an inspection or furnish a copy of the inventory, and he unjustly refused, the remedy of the defendant was obvious ; and no necessity existed for treating the proceedings as void. Objections of a more grave and doubtful character than such as have been noticed, have been urged against the proceedings of the county court; but upon a careful examination of them, we are persuaded that they should not prevail. 5. It is said, that the information is insufficient, because it does not allege, that the defendant traded, dealt and trafficked in — 471 — the goods seized. By the statute under consideration, it is enacted, “ That no person shall trade, deal and traffic, in this state, as a pedlar, hawker or petty chapman, in any foreign goods, wares and merchandize, and which are not the produce or manufacture of this or any of the United, States, upon penalty of forfeiting all such goods, wares and merchandize so by him carried about and offered for sale.” It is obvious, that the carrying about and offering for sale goods, is, by this statute, considered as trading, dealing and trafficking in them. The information avers, in the words of the statute creating the of-fence, that the defendant did, unlawfully, and contrary to said statute, trade, deal and traffic, in this state, as a pedlar, hawker and petty chapman, cfec. It also avers, that the goods seized were, by the defendant, “ as a pedlar, hawker and petty chap-man, then and there, and long before, carried about and offered for sale,” &c. It will not be easily discovered in what other form more definite, the offence could have been set forth. The allegations, in this respoct^ clcarly conform to the rule which requires, that where an offence i5*created by statute, the facts and circumstances which constitute the definition of it, must be averred. 2 Sw. Dig. 384. 2 East’s P. C. 985. 6. It is further claimed, thatthecounty court erred in permitting the plaintiffs to make material amendments of the information after the time for presenting a new information had passed. By the statute regulating these proceedings, it is provided, that the information against the goods seized shall be made to the next county court. This amendment was allowed at the fourth term of the court after the seizure. By the 6th section of the statute of limitations, it is enacted, “that no suitor action for any forfeiture upon any penal statute, shall be brought, by any person or persons, who may lawfully sue for the same, but within one year next after the offence committed.” The offence here charged was committed May 16th, 1832; and the amende ment was made at the September term of the county court, 1833. No new information could, at that time, have been lodged against these goods. Indictments cannot be amended, because they are the acts of a grand-jury upon oath, and cannot be altered, without the consent of the grand-jury. 2 Sw. Dig. 386. Rex v. Wilkes, 4 Burr. 2570. Hawk. P. C. 25. Regina v. Tuchin, 6 Mod. 281. 1 Petersd. Abr. 597. — 472 — Informations, whether presented by public officers or qui or whether operating in rem or otherwise, are amendable. 1 Petersd. Abr. 599. Rex v. Nixon, 1 Stra. 185. Rex Holland, 4 Term Ref. 457. Bonfield q. t. v. Milner, 2 Burr. 1098. Tallieur v. Cocks, cited in Steel v. Sowerby, 6 Term Rep. 173. Broadfoot v. The United States, 7 Cranch 496. Schooner Ann v. The United States, 7 Cranch, 570. Anon. 1 Gallis. 22. Amendments of informations, where the statute of limitations had run against the offence charged, have, in some instances, been refused, in England; but only in cases where there had been unreasonable delay in the prosecution, or where the effect of the amendment would have been to introduce a new cause of action itself barred by the statute. Goff q. t. v. Popplewell, 2 Term Rep. 707. Steel q. t. v. Sowerby, 6 Term Rep. 171. Ranking & al. q. t. v. Marsh, 8 Term Rep. 30. Cross v. Kaye, 6 Term Rep. 543. Peters v. Craft, 4 East, 433. Case of The Harmony, 1 Gallis. 123. But where no such reasons existed, amendments of qui tam informations have been allowed, notwithstanding no new information for the same cause could then be made; and such amendments were permitted in the following cases. Bearecroft v. Hundred of Burnham, 3 Lev. 347. Bonfield q. t. v. Milner, 2 Burr. 1098. Tallieur v. Cocks, cited 6 Term Rep. 173. Mace q. t. v. Lovett, 5 Burr. 2833. Maddock q. t. v. Hammett, 7 Term Rep. 55. Davis q. t. v. Saunders, 7 Mass. Rep. 62. The only case which has suggested to us a doubt on this subject, is that of Drake q. t. v. Watson, 4 Day, 37. in which the superior court, having refused liberty to amend a qui tam information upon the statute of usury, because the offence was then barred by the statute of limitations, this court, upon writ of error, refused to reverse that judgment. We have no occasion here to overrule the opinion of the court in that case, as it is plainly distinguishable from this. If the superior court had permitted the amendment to be made, and the judgment had been reversed on that account, we should believe it our duty to examine with more care the principles and reasons of that decision. It is certainly very well settled, at this time, that where the power of permitting amendments is conferred upon courts, the allowance or disallowance of them is a — 473 — matter of discretion with the court, and therefore, affords no ground for a writ of error; and this principle is of itself sufficient to justify the court of errors, in the case of Drake v. Watson, in refusing to reverse the decision of the superior court; and the same principle should govern us in affirming the judgment of the county court in this case. Mandeville & al. v. Wilson, 5 Cranch, 15. Chirac v. Reinicker, 11 Wheat. 280. The United States v. Bedford, 3 Peters 31. Mellish v. Richardson, 9 Bing. 125. (23 Serg. & Lowb. 276.) The case of Eno v. Frisbie, 5 Day, 122. was referred to, as opposing this principle; but it does not. That was a case of void process, attempted to be sustained, by resort to an amendment of it. And the court, very correctly, determined, that a void process could not be amended. Bunn v. Thomas & al. 2 Johns. Rep. 190. Buck v. Barnard, 4 Johns. Rep. 309. Cramer v. Van Alstyne, 9 Johns. Rep. 386. The laws of this state regulating the amendment of writs and declarations, have been variously modified, at different periods. By a statute enacted in 1724, an amendment was al_ lowed only after a judgment upon a plea in abatement. Under this statute, it became a question whether a plaintiff might not admit his writ or declaration to be abateable, and treat it as abated, without a plea and judgment, and move for its amendment ; and this question was finally decided affirmatively, in September, 1793, in the case of Livingston & al. v. Abel, 2 Root, 57; and to put that question entirely at rest, it was enacted, by the general assembly, in May, 1794, “ That the several courts of law and equity in this state, in any action hereafter brought, may, at any time, permit the parties respectively to amend,” &c. And such was the law when the case of Drake v. Watson was decided ; and so it continued to be until the revision of 1821, when it was, by statute, provided, not that the court might permit the plain tiff to amend, but that “ The plaintiff may amend any defect, mistake or informality in the writ or declaration, &c. provided such amendment shall not change the form or ground of the action,” &c. It has not been claimed, that the amendment in this case, operated to change either the form or ground of the action ; and as it did not, how could the court withhold from the plaintiff the right to amend, which the law had given him ? The payment of costs upon the amendment was a subject upon which the court — 474 — could exercise its discretion ; but the right to amend could not, under the circumstances of this case, be taken away. We are of opinion, therefore, that there is nothing erroneous in the judgment of the county court, and do advise the superior court accordingly. The other Judges concurred in this opinion, except Huntington, J., who gave no opinion, having been consulted in the cause. Judgment to be affirmed.