24 N.H. 9 | Superior Court of New Hampshire | 1851
The defendant was entitled to receive the fees to which a recording or certifying officer is entitled by virtue of section 3, ch. 229, of the Revised Statutes. That section provides that “ To all recording or certifying officers, there shall be allowed, for each page of two hundred twenty-four words, copied or recorded, twelve and a half cents ; for any part less than a page, eight cents ; and for every certificate on a copy of a whole case, ten cents.”
The first question for consideration arises upon the ruling of the court, which was to the effect that the several certificates of the justice, appended to the various copies composing the entire copy of the case, were to be computed merely as a part of the copies of the case, and were not to be regarded as separate documents, and estimated as fractional parts of a page, and as such estimated at eight cents each. If there "be any error in this ruling, it consists in determining that the certificates are a part of the copies at all. They are not, in fact, any portion of the copies, but only attestations thereof. And we are of opinion that the statute is not to be construed as embracing these certificates within the provisions prescribing compensation for copies. Payment is to be made “ for each page of two hundred twenty-four words copied or recorded,” &e. Now the certificate of the justice, that what precedes it is a true copy, cannot itself be a copy, nor does it purport to be. And the same action, as we have seen, calls it “ a certificate on a copy.” If, then, the certificates cannot be treated as constituting any part of the copies, they clearly cannot be considered as fractional parts of pages of copies, and proper to be compensated for as such, as the
It was claimed at the trial, by the defendant, that if any single paper, constituting a part of the copies of the case itself, contained more than two hundred and twenty-four words, and less than four hundred and forty-eight words, the same should be taken and compensated for as two pages ; but the court ruled that it was to be taken only as a page and a part of a page. We think the ruling of the court, as it is understood by us, was entirely correct. The true rule of compensation of pages under the statute, as we think, is plain and simple. The entire number of words of the whole copy of a case is to be ascertained by a count, and the whole number of words thus determined is to be divided by 224, the number of words constituting a page, and the quotient will give the number of entire pages of the whole case, and these are to be cdmpensated for at twelve and a half cents per page; and if there be a remainder, or fractional part of a page, that is to be treated as a part of a page, for which eight cents more are to be paid. The fact that the entire copy of the case is made up of various papers or various parts, cannot affect or alter the mode of computation. The whole case is to be regarded as an entirety — as one copy — consisting of various parts, to be sure, but, nevertheless, only one copy of the case, and to be compensated for as such, according to the rule already suggested. The provisions of the statute furnish no
It was contended at the trial that the services for which the $2,50 was demanded and received, according to the allegations in the writ, were not only the making of the copies and the certificates thereon, but also the granting of the appeal and the taking of the recognizance in the case. But we think the dec
This view is in accordance with the rule of construction applicable to statutes, contained in the Revised Statutes, ch. 1, § 12. It is there provided that the words “ said” and “ such,” when
It was alleged in the writ that the defendant was entitled to receive the sum of one dollar and fifty-eight cents for “ said services,” and for the certificate on the copy of the whole case, ten cents, and no more; but the proof showed that the defendant was entitled to receive for the copies' $2,02-£. The court below ruled that the variance was immaterial, and to be disregarded. We think the ruling was correct. The whole penalty was incurred if any thing more was taken than was allowed by the statute. It is not a case where the penalty is graduated according to the amount of the excess received above the lawful sum, as in the case of usury, where the true sum should be stated. The averment here stated a sum to which the defendant was entitled, and the taking of a larger sum, and therefore stated a perfect cause of action. The proof showed that the defendant was entitled to a larger sum than that to which he was alleged to be entitled, and also that he demanded and received a larger sum than that to which he was in fact entitled. The material matter to be averred and proved was, that the defendant received of the plaintiffs a greater amount of fees than by law he was entitled to receive. All that was done. The proof did not agree with the averment in the declaration in point of amount, as to the sum to which the defendant was entitled, but
It was objected at the trial that it was not alleged in the plaintiffs’ writ that the $2,50 were received by the defendant within one year next before the time of the commencement of this action, and that alleged omission was made a ground of motion in arrest of judgment. The writ was dated on the 17th day of November, 1848, and the allegation in the declaration is that the copies were furnished and tendered to the plaintiffs on the 13th day of November, 1848, and the defendant did knowingly and unlawfully demand and take a greater fee for “ said services” than by law he was entitled to, to wit., the sum of $2,25, &c. It appears upon the writ, then, as far as any matter appears, that the services for which the payment was made were performed and completed, and the payment therefor demanded and received on the 13th day of November, 1848, and from the date of the
We entertain no doubt of the entire correctness of the charge of the court to the jury, that the reception of the $2,50 by the attorney of the defendant, subsequently assented to, and recognized by the defendant as being done by his authority, must be regarded as being the same as if it had been received by the defendant in person, and rendered him liable to the penalty of fifty dollars. And we think it is equally clear that if he acted under any misapprehension or mistake, the burthen of proof was on him to show it. This is but reasonable, since the party is presumed to know the law. The act of the attorney, done in behalf of the principal, and adopted by him, becomes the act of the principal. The money in the hands of the attorney was the money of the defendant, and the fact that he, in fulfilment of a prior agreement, left one half of the sum received in the hands of the attorney, as a compensation for his services performed for the defendant, cannot alter the case.
The reply of the juror to the inquiries of his brother as to the result of the .trial, had before him on the previous day, could of itself work no prejudice to the defendant; nor does it indicate any bias in favor of the plaintiff or defendant in the decision of the cause. The verdict had been agreed upon on the previous evening, and on the morning before returning the verdict into court, the juror told his brother, in reply to his inquiry respecting it, that it had gone in favor of the plaintiff. It would have been more in accordance with a just sense of propriety on the part of the juror, if he had declined giving the information sought. Still, since it is seen that it did not influence and could not influence the verdict, and furnished no evidence of partiality or misconduct on the part of the juror in determining, upon it, we are
The present action is debt for a penalty, for taking illegal fees, as a magistrate, for the copies of a case upon an appeal. The penalty is claimed for an alleged violation of section 25, ch. 229, of the Revised Statutes. The language of that section is as follows, namely: “ If any person shall demand and take any greater fee for any service than is allowed by law, or any fee to which he is not by law entitled, he shall forfeit fifty dollars for each offence, to the person who will sue for the same.” The action is brought by William W. Fowler and Henry S. Plumer ' as copartners, jointly negotiating business as a firm, who claim to be entitled to the penalty and a right to recover it in that capacity. But we are all of the opinion that the statute gives the penalty only to such individual as shall entitle himself to it by first commencing an action for its recovery. It was not the design of the statute to give the penalty and right of action for its recovery to two or more individuals, who should be copartners for other lawful purposes, nor to such as should associate themselves together and form a copartnership, or a combination or alliance, for the prosecution of an individual for the recovery of a penalty alleged to be incurred. If the statute might be regarded as giving the right of action to two persons sueing as a partnership, or to two persons who might see fit to commence a joint action, so, upon the same rule of construction, the action might be commenced in behalf of many individuals ; — of ten, fifty, or a hundred, or of a greater number. By the most obvious construction of the language of the act, the right of action, as we think, is limited to the individual who shall first, in good faith, commence and prosecute the action, and to him alone. It is not redress for an injury sustained, that is sought or obtained by the action. The party injured is entitled to his remedy, notwithstanding the recovery and payment of the penalty. And partnerships as well as all others are entitled to redress according to the injury sustained. The forfeiture of a penalty is created by statute for another and different object, and not by way of redress
Judgment arrested.