33 N.J.L. 273 | N.J. | 1869
The opinion of the court was delivered by
By the fifth section of the act concerning marriages, (Nix. Dig. 501,
The demurrer to the plea raises the question whether such an action must be brought by the person entitled to bring it, toithin one year from the time that the offence was committed ? The answer to it depends chiefly upon the construction to be given to the sixteenth section of the act for the limitation of actions (Nix. Dig. 472;
1. Where the whole penalty goes to the informer.
2. Where one-half goes to the state, and the other half to any other who shall prosecute in that behalf, &o.
3. Where the whole penally goes to the party aggrieved.
In the two former classes the limitation is one year, and in the other two years. Were this an action simply by a common informer to recover one-hall' of a penalty for himself, and the other half for the state, there could be no question about it being included in the second class, but instead of that the suit, by the act, is limited to a certain person — “to the parent, guardian, or person having charge of such minor.” It must.be brought by the person whose consent to the marriage is necessary. If there is a parent, as in this ease, the father, the action must be brought by him. Castner v. Egbert, 7 Halst. 259. He is not the party aggrieved under the third class referred to, as he is not entitled to the whole penalty, and he is not a common informer, for the penalty is not given to the state and any other person who will prosecute for it. The action is not what is known as a popular action. 2 Burns’ Jus., title Information 771; 3 Black. Com. 160.
It is a private action, in one sense, because it can only be brought by a certain person, yet the plaintiff is an informer, being what may be termed a quasi common informer. If this action is limited at all, it must be under the second class referred to. If not limited by the clause in the sixteenth section, in relation to qui tam persons, the action is unaffected by any statute of limitation. Courts are very reluctant to hold that a person may be subjected to a suit for a penalty for an
Such indefinite liability is unjust, and should not be so held unless the imperfections or the deficiencies of the law imperatively require it. Does that clause, then, merely include a common informer, or not only a common informer, but also any other who may lawfully prosecute -for himself and the state? The' chief difficulty in the construction, arises from the preceding clause, where the benefit and suit for the whole forfeiture are limited or given to any person or persons who shall prosecute for the same. Those words evidently refer to a common informer to whom a whole penalty may be forfeited. A party aggrieved is not included in them, for special provision is made limiting him to two years. Applying those words to a common informer, some color is given for making the same application to the words, “or to the State of New Jersey, and to any other who shall prosecute in that behalf,” &c., but such cannot be their meaning in our act.
The basis of the sixteenth section in question, is the statute of 3d Eliz., ch. 5, § 5. That statute did not contain the words in our act, where the whole penalty goes to the informer, nor the clause in relation to the party aggrieved. From February 10th, 1728, the fifth section of 3d Eliz., ch. 5, was in force in the province of New Jersey, by virtue of an act of that date (Allinson’s Laws 72) and in the state by the constitution of 1776, up to February 7th, 1799, at which time our present act was adopted — section sixteen referred to, then, for the first time, containing the words, “ to any person or persons, who shall prosecute for the same,” and, also, the clause eoncernigg the party aggrieved. (For convenience, section five of 3d Eliz., ch. 5, may be found in note on page 74 of Allinson.) The language of the statute of Elizabeth, so far as necessary to recite it, is as follows : “ And that all actions, suits, bills, or informations, which shall be brought for any forfeiture upon any penal statute made or to be made, except the statutes of tillage,
The early cases from which this conclusion is gathered, are so imperfectly reported; that it is difficult to tell, with certainty, whether a person could be considered a party grieved, unless either the whole penalty was limited to him, or such part thereof as could be treated as the whole, as t.o him. In the case in Shower 354, that was one of the questions debated by the court. At any rate, the party grieved was the person who had sustained some particular damage
But whether, if he sued in his own behalf and that of the king, and not for the penalty as a whole, to him, as a party grieved, he was entitled to recover them, is quite doubtful. However all this may be, Judge Paterson, in his revision, evidently regarded the defect of the English act, as to the party grieved, and also the defect as to the common informer, to whom a whole penalty was limited, and framed the sixteenth section as a modification of the English act, and to provide for all the defects stated. The party grieved is specially referred to, and by a strong implication, no party is recognized as a party grieved, unless the benefit and suit for the whole forfeiture are limited to him, and although that qui lavi clause was extracted from the statute of Eliz., yet in the mode of its adoption here, and its relation to the whole section, it must be treated as covering all forfeitures, where a part is limited to the state, and another part to an individual who may prosecute to effect, although that individual may be in some sense particularly grieved by the offence. The words are sufficiently comprehensive for that construction, and should not be hampered, now, by any difficulties in their construction, by the cases referred to. The clause reads — “ to the State of Slew Jersey, and to any other who shall prosecute in that behalf — who may lawfully sue for the same.” If a penalty is limited in part to a party who may be affected by an offence, bis interest in that respect is disregarded in the act, and he stands within that qui tam clause, the same as any other qui tam plaintiff. liéis not to be regarded in any way as a party grieved unless the whole forfeiture is given to him. This is the fair and reasonable construction of the section, and must be adopted by the court, or this suit he left unrestrained. Such a result would not he permitted unless the express terms of the act
The Chief Justice, and Justices Dalrimple and Depue, concurred.
Rev., p. 632, § 4.
Rev., p. 597, § 21.