Strong v. Stebbins

5 Cow. 210 | N.Y. Sup. Ct. | 1825

Curia, per Sutherland, J.

The evidence clearly establishes that the defendant instigated and advised the removal, knowing that rent was due; and with a view to put the goods beyond the reach of the landlord, But there is no proof that he aided or assisted in the removal, in any other -way than by receiving two dollars worth of the property ; and agreeing that his clerk, or brother, might be called up at night, to receive any of the property that might be brought to his house. There is no evidence, however, that any was brought there, and received pursuant this arrangement, or in any other way, except the trifling amount already mentioned.

The Judge was clearly wrong in the opinion that the tenant need not own the goods. The statute, upon which the action as as brought, is express upon this point. Bu the error is not material. The tenant being in possession, the presumption of law is, that he was the owner; and there was nothing to show that they did not belong to him. If the action had been against the tenant, the onus would have lain on him, to show that they were not his goods ; and so of^the present defendant.

I am also inclined to think, that the Judge erred in the opinion expressed by him upon the other point relative to the defendant’s agency in the affair. ,

This is a penal action. The statute giving it, is not to be enlarged by construction. It appears to me to contemplate physical aid, or assistance in some way,' either directly or indirectly, in removing, or concealing the goods. If the defendant’s servants by his direction, or with his knowledge and assent, had assisted, that would have rendered the defendant liable ; or if the goods had been removed to his house, and received and concealed by him, he knowing the object and circumstances of the removal, that would have brought him within the act. It provides that every .person, so- offending, shall forfeit and pay to the landlord, &c. from whose estate such goods, &ct wore so carried'off, &c. double the value of the goods by him carried off, or concealed as aforesaid. If the evidence is to be considered as establishing the fact that the defendant received and concealed two dollars worth of the goods, that xvould not make him liable for the whole.

I do not think the mere advising the removal of tht goods is sufficient to subject a party to the penalty given by the statute. The Judge, therefore,.in my opinion, erred in his charge to the jury; and a new trial must be grantedz with costs to abide the event.

New trial granted.