4 Denio 374 | N.Y. Sup. Ct. | 1847
It may be true, that hereafter it will not be an offence against the provision of the statute in
It is a doctrine founded upon general principles of the law, that no statute shall be construed to have a retrospective operation, without express words to that effect, either by an enumeration of the cases in which the act is to have such retrospective operation, or by words which can have no meaning unless such a construction is adopted. (2 Dwarr. on Stat. 677.) A retrospective statute would partake in its character of the mischiefs of an ex post facto law as to all cases of crimes and penalties, and in measures relating to contracts or property would violate every sound principle.
In a recent case it was laid down, that when the law is altered by statute pending an action, the law as it existed when the action was commenced must decide the rights of the parties to the suit, unless the legislature express a clear intention to vary the relation of litigant parties to each other. (Hitchcock v. Way, 6 Adol. & Ellis, 943; see also Paddon v. Bartlett, 3
The remaining ground upon which the court below non-suited the plaintiff was, that the offence charged to have been committed upon which the penalty is claimed, was in its nature several; and that therefore each of the defendants was liable separately and not jointly for a penalty for his separate offence. The offence alleged against the defendants consists in having knowingly assisted the plaintiff’s. lessee to remove his goods from the premises demised by the plaintiff to him, for the purpose of avoiding the payment of certain rent remaining due upon the demise. It is plain that an action of debt on a penal statute will not lie against several for what in law is a separate offence in each. But when the act which is made an offence is in its nature single, and is one which cannot be severed, then the penalty shall be only single, and although several persons join in committing it, it still continues but one offence. (Marsh v. Shute, 1 Denio, 230; Ingersoll v. Skinner, id. 540.) This question has sometimes turned upon the nature of the offence, without regard to the terms in which the penalty is imposed in the statute, as in the case of Rex v. Clark, (Cowper, 610.) A better criterion, perhaps, is the apparent intention of the legislature to be collected from the statute, upon
The rule at common law is universal that every crime, as
Judgment reversed.
See Dash v. Van Kleeck, (7 John. 477,) and the cases cited by Bronson J. in Sackett v. Andross, (5 Hill, 334 to 336.)
If the section of the statute on which this suit was brought had been actually repealed, it would be difficult to sustain the action, though the judgment appealed from was rendered while the provision was in force. The effect of an appeal is to suspend the judgment and to subject the law as well as the fact to review. It destroys the effect of the judgment as res adjudicates. (Yeaton v. The United States, 5 Cranch, 281, 283; The Schooner Rachel v. The Same, 6 id. 329; Lewis v. Foster, 1 N. Hamp. 61.) And the general rule certainly is that the repeal of a penal statute prevents the recovery of penalties for acts committed before the repeal, though a suit has been commenced and a verdict obtained. (United States v. Passmore, 4 Dall. 372 and the cases cited; Butler v. Palmer, 1 Hill, 324 and cases cited by Cowen J.; Commonwealth v. Welch, 2 Dana, 330; Commonwealth v Leftwich 5 Rand. 657; Anon. 1 Wash. C. C. R. 84.)