Smith v. Brown

| N.Y. Sup. Ct. | Aug 15, 1828

By the Court,

Savage, Ch. J.

Brown sued Smith in the

court below, for the penalty under the tenth section of the act for the inspection of flour and meal, and to establish the standard weight of grain, passed March 5th, 1813. The penal clause is as follows: “ and if any person shall alter or counterfeit any of the aforesaid brand-marks, whether state or private, such person shall forfeit for every such offence, the sum of one hundred dollars.” The plaintiff in the conrt below recovered. Upon writ of error, the points relied on are, that the declaration is insufficient; that no alteration was made within the meaning of the act, but if so, not under circumstances to incur the penalty.

The declaration does not state that the flour had been purchased for exportation, nor that it had been branded according to the directions of the act. The declaration sets out the act sufficiently, which speaks entirely of flour intended for exportation. It then charges that the defendant was possessed of one such barrel of flour, which he had caused to be inspected, which the inspector had marked bad, and which mark the defendant altered contrary to the true intent and meaning of the statute. In Ferris v. Coles, (3 Caines, 212, 13,) it xvas decided that the statute confines the duty of the inspector and the penalties to be incurred, to flour and meal, shipped, purchased or manufactured for exportation. Flour not intended for exportation, need not - be inspected; and when it is offered for inspection, the reasonable inference is, that it is intended for exportation. The language of the declaration, that the defendant was the owner of one such barrel of flour which he had caused to be inspected, is a sufficient averment, especially after verdict, that the flour was intended for exportation. This question was not raised in the court below. .

The next question is, whether the cutting out the brand-mark is an alteration. The simple statement of the question seems to me an answer to it. I know of no course of reasoning or argument to elucidate a self evident proposition. To alter, is to make a thing different from what it was.. The erasing any letter, or the addition to the mark, is an alteration. But it is said it was ignorantly done, and with no intention to violate the law. Ignorance is no excuse for the violation of a statute; but if it were, it would seem from the testimony that the excuse does not exist. The defendant inquired of Mr. James whether he could not cut out the mark. He purchased it as bad, evidently with intent to defraud. He was told, that after he had left the bounds of the state, he could cut out the mark; clearly implying, that within the state, it would be improper and unlawful for him to do so.

This seems to me a very clear case for afiSrmance.

The judgment is affirmed.