53 N.H. 581 | N.H. | 1873
I. The motion to reject the pleas should be denied, even though it be assumed that the pleas would not be receivable under the English statute of 4 Anne, eh. 16. The N. H. statute of January
II. A majority of the court are of opinion that the second count is defective in not showing for what particular six months of time the usurious interest was taken. The demurrer to the second count is therefore sustained.
III. Counsel may be heard further upon the plaintiff’s demurrer to the plea which the defendants have pleaded to the first and third counts. After this decision was announced, the questions arising upon the demurrer to the plea to the first and third counts were argued, elaborately and at length, by Burlce and A. Fdes for the plaintiff, and by Ira Perley for the defendants. No abstract of their arguments, sufficiently full to do them justice, can be given without occupying more space than can reasonably be devoted to the purpose. The following opinion of a majority of the court upon the principal question discussed was delivered at the June term, 1873, by
Ladd, J. The statute is, — “ If any person, upon any contract, receives interest at a higher rate than six per cent., he shall forfeit three times the sum so received in excess of said six per cent, to the person who will sue therefor.” Gen. Stats., ch. 213, sec. 3.
If .the question raised by the plaintiff’s demurrer is the one which has been so laboriously argued by the learned and eminent counsel on both sides, namely, whether a fair construction of this statute authorizes a separate suit for every separate receiving of usurious interest on the same contract, we think that question must be decided in favor of the defendants.
If we look at the section as it reads, and try to gather the meaning and intent of the legislature by giving to the language employed its common and natural sense, it certainly does not seem to import that a separate suit may be brought to recover the penalty for each separate receiving of extra interest, any more, to say the least, than that the whole must be included in one suit. The right to recover, either in
When we do this, we seem to be met, at the outset, by more than one well established and familiar canon of construction, which must be regarded as quite decisive. In the first place, it is well settled that the operation and effect of penal statutes cannot be extended by implication, — that is, things which do not come within the words of the ac shall not be brought within it by constnxction. Potter’s Dwar. St. 247, and cases cited. Further, when there is such ambiguity as to leave reasonable doubts of its meaning, courts will not inflict the penalty— ib. 245 ; and see, generally, upon the construction of penal statutes, tlxe wox’k above inferred to, and cases cited iix notes 245-264.
If the coui't, upon x’eading this section, ax’e unable to rid themselves of a reasonable doixbt whether the language employed is sufficient to give a separate actioxx for each separate receiving of extra interest, it plaixxly follows that no such construction can be given, because, as was well said by Heath, J., in Hubbard v. Johnston, 3 Taunt. 177, — “ The legislature is ever at hand to explain its own meaning, and to express more clearly what has been obscurely expressed.”
Again: the law does not favor or encourage multiplicity of suits, and
Is it not plain that such an interpretation of the law would make it a convenient and formidable weapon in the hands of any unscrupulous or vindictive person who might choose this means to gratify his private malice ? It certainly seems so to me, and I think such an intention on the part of the legislature cannot be made out inferentially, or by an interpretation which admits of doubt. To harass and vex and oppress even an offender against the law, by inflicting upon him a prescribed and definite punishment piecemeal, instead of all at once, would seem to partake more of the spirit and practice of the aboriginal inhabitants of the state, who are said to have made torture a pastime, than of the enlightened application of a humane and just law in regulating the affairs of a cultivated and Christian race. If it had been the intention of the legislature to create and establish such a right, — a right which leaves the amount of vexation and expense caused the offender in the process of inflicting a punishment, the extent of which is limited by law, so largely to the caprice or passion of those whose interest or wish it may be to persecute and injure him,— it is to be presumed they would have used language quite clear and unmistakable to indicate their extraordinary purpose ; and in the absence of such language we cannot infer such an intent.
The case of Tappan v. Prescott, 9 N. H. 531, in which it wgs held that three times the amount of two separate sums received as extra interest on the same loan could not be recovered of the usurer upon separate pleas, is, to my mind, an authority for the conclusion reached above. I am unable to discover the difference in principle, so far as the point now under consideration is concerned, between recovering a
But the question what is to be done with the demurrer still remains. There is no pretence that the plea shows any answer to either of the counts ; it has none of the attributes of a plea in bar, and as such I do not see how it can be sustained. In the view above taken, the declararation seems to be wrong, inasmuch as a single cause of action appears to be split up, part being made the basis of one count and part of another. But, it seems to me, the objection is matter of abatement, a mere matter of form, which the plaintiff would have leave to amend, on motion, as a matter of course. Inasmuch, however, as this point has not been much considered in the argument, the court will hear counsel further upon it, if they desire.
After the foregoing opinion was delivered, Burke and A. Edes for the plaintiff, and Perley and Cushing for the defendants, made elaborate arguments upon the question of pleading, which was left undecided. The positions taken, and the authorities cited and commented on by them respectively, so far as they are deemed material to the decision of this question, are considered in the following opinion of the court, which was delivered at the December term, 1873, by
Hibbard, J. The discussion of the questions of pleading, which have arisen upon the first plea to the first and third counts in this case, has lacked nothing which patient industry and exhaustive learning on the part of the eminent counsel, who have favored us with printed and oral arguments, could impart to it. But it is difficult to tell what useful purpose, whatever our conclusions might be upon the questions involved in the discussion, it could have been expected would be subserved by it. If this plea should be sustained, whether it were in bar or in abatement, it would be a matter of course that the plaintiff’ would, on reasonable terms, be allowed to amend his declaration by consolidating those counts. If it should not be sustained, it would be equally a matter of course that the defendants would, on reasonable terms, be allowed to withdraw it, and set up such a defence upon the merits as the facts of the case may require. And, if the defendants are liable upon the facts alleged in each count, or upon those alleged in one count and not upon those alleged in the other, or not liable upon those alleged in either, the result will not be affected by the form of declaring the amount of liability, if any, being neither increased nor diminished by declaring in two counts instead of in one.
It was decided at the last term, by a majority of the court, that the first and third counts, being for two distinct payments of usurious interest on the same contract, are bad; but the question was reserved for further consideration, whether the plea, because it is in bar and not in abatement, is not also bad, and therefore insufficient to enable the defendants to take advantage of the defence it states. We have found this question by no means free from difficulty; but, after an attentive consideration ot it, we have reached the following conclusion :
That this plea manifestly “ gives the plaintiff a better writ,” indicates that it should have been a plea in abatement. Steph. Pl. 431; Gould’s Pl., ch. 5, sec. 67; 1 Chit. Pl. 446. A plea in bar, “ impugning the right of action altogether, can of course give no better writ or declaration.” Steph. Pl. 432; ib, 51. “A plea in bar, unlike a plea in abatement, offers matter which is a conclusive answer or defence to the action upon the merits.” “ In other words, a plea in bar must deny, or confess and avoid, the facts stated in the declaration.” 1 Chit. Pl. 525. But the plea under consideration seeks only to take advantage of a defect in the form of the remedy, leaving the merits of the case wholly undetermined. It possesses the qualities of a plea in abatement, and not those of a plea in bar.
In Clark v. Lisbon, 19 N. H. 286, being four actions to recover a penalty of $12 in each, for not erecting and keeping in repair a guidepost at each of four intersections of highways, which the court held should have been brought in one action to recover but one penalty of $12, the writ in each case was quashed on motion, although the court intimated that they were proper cases for pleas in abatement.
It is laid down, in 1 Chit. Pl. 454, that “ in a penal action at the suit of a common informer, the priority of a pending suit for the same penalty, in the name of a third person, may be pleaded in bar, because the party who first sues is entitled to the penalty.” Although a plea of another action pending must ordinarily be in abatement, if there has been a recovery this may well be pleaded in bar. Rogers v. Odell, 39 N. H. 419. If a penalty is jointly incurred by several persons, a recovery and satisfaction against one is a good bar to an action against the others—Boutelle v. Nourse, 4 Mass. 431; and where the plaintiff splits an entire cause of action into two suits, a recovery in the first, though for less than the whole demand, is a bar to the second. 1 Chit. Pl. 199, note (1). “ The plea of a former judgment in an action for a part of such entire demand being valid as a plea in bar to the whole, it follows that a plea of the pendency of such an action is good in abatement for the whole.” Bendernagle v. Cocks, 19 Wend. 215, cited by the defendants’ counsel. But in this state, where the prior suit is still pending, the question how to take advantage of it does not appear to have arisen. In State v. Tappan, 15 N. H. 96, which was an indictment for taking unlawful interest, it is stated by Parker, C. J., that if there lias been an earlier prosecution, “ it may be shown in
In Hopkins v. A. & St. L. Railroad, 36 N. H. 9, the defendants objected at the trial that a count for injury to the plaintiff, and one for injury to his wife, could not be joined ; but Perley, C. J., in delivering the opinion of the court, said that the objection “ would properly be taken by demurrer, or motion to arrest the judgment, and not on trial.” In that case, as the alleged defect appeared on the face of the declaration, if the law had then required an action for an injury to the wife to be in the name of both husband and wife, a demurrer or motion in arrest of judgment must have been sustained, the action not being in favor of the right plaintiffs as to the second count. And it has been held that an objection that the form of action is misconceived, or that different causes of action are misjoined,, is not waived by pleading over. Morrison v. Bedell, 22 N. H. 236; Peabody v. Kinsley, 40 N. H. 418. But we are reminded by the defendants’ counsel that, if it had appeared on the face of the declaration that the two payments of interest were made on the same contract, the declaration would have been adjudged bad on demurrer; and it is strenuously urged that the plaintiff is getting an unfair advantage, if, by declaring, contrary to the truth, that the payments were made on different contracts, he may compel the defendants to plead the fact that they were made on the same contract, within the time limited for pleading in abatement, or lose the benefit of the objection; that, by demurring to the plea, the plaintiff admits the fact pleaded, and makes it a part of the record ; that, if the objection is a bar to the action when it appears on
This argument is not destitute of force; but it must be borne in mind that it is only upon technical grounds that a demurrer could have been sustained, if the declaration had alleged that the payments were made on the same contract. The two counts wrnuld then show one good cause of action in favor of the plaintiff against the defendants, declared for in the right form of action, and the objection that the contents of both counts should be merged in one would certainly be formal and not substantial. But it seems that, by the common law, a defect which appears on the face of the declaration should be taken advantage of by the demurrer, while, if it appears on the face of the writ, it should be taken advantage of by a plea in abatement or a motion to quash. Gould’s Pl., ch. 5, secs. 63, 64; Bean v. Green, 4 Cush. 280.
Whatever reason t' ere may have been for this rule in other jurisdictions, there seemf o be none in our practice. At the common law the declaration was .o part of the writ, but under our statute it is incorporated into tlic tvrit. This removes the inconsistency, referred to by the defendants’ counsel, of adjudging a writ bad on a plea in abatement when the i it is good, and it is only the declaration that is bad. If the letter of ne rule, that, while objections appearing on the face of the writ should be pleaded in abatement, those appearing on the face of the declaration should be pleaded in bar, is in force here, though the reason for it has disappeared, we see no occasion for extending it to cases that are beyond its letter because they may be within its spirit, as we are asked to do by holding it applicable to objections not appearing on the face of the declaration because they appear on the face of a subsequent part of the record.
That the rules of pleading entitle a defendant, on the state of facts raised by these pleadings, to demur where the objection appears on the face of the declaration, but in many instances require him to take advantage of it by pleading in abatement when it does not so appear, admits of no question. It is laid down in some authorities that all pleas to the declaration should be in bar; but it is well settled that some mistakes in the declaration, and we think this case presents one of the number, should be pleaded in abatement. 3 Bl. Com. 301; Gould’s Pl., ch. 2, sec. 34; ib., ch. 5, secs. 64, 83, 84. And it is no more our duty to apply to cases, where the defect does not appear in the declaration, rules that would be applicable if it did so appear, than to apply to cases, where the defect does appear in the declaration, rules that would be applicable if it did not so appear; and we are as much called upon to decide that the objection shall in both cases be taken in abatement because the rule requires it to be so taken in one of them, as that it shall in both cases be taken in bar because the rule requires it to be so taken in the other.
It was insisted in the argument that the fact stated in the plea, being admitted by the demurrer, is thus transported back into the declaration ; and so the plaintiff becomes guilty of the first fault, and the defendants
Under our practice of admitting amendments at every stage of a case, it becomes of little consequence in what way an objection to an amendable defect, whether it does or does not appear of record, is taken ; but we are of the opinion that, upon principle as well as upon authority, this plea should have been a plea in abatement.
Demurrer sustained.