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Court of Exchequer.-Murray v. Mann.

found, then out of the real property. The counsel insisted, that under this act, the execution could not issue against personal property alone, as at the common law; that the amendment sought for would make a fourth kind of execution not known to the code, and could not be granted.

HURLBUT, J., thought otherwise, and granted the amendment on payment of costs of the motion.


Court of Exchequer.

[Trinity Term.]

MURRAY V. MANN.-16th June, 1848.


In an action for the standing of a horse at livery, the defendant sought to set-off as money received to his use the price paid for the horse, by a person to whom the plaintiff had sold him. It appeared that the sale was affected by fraud, a false warranty having been given that the horse was free from vice, and that on the purchaser discovering the deceit, he rescinded the contract, returned the horse and received back the money:-Held, First, that the set-off, could not be maintained as the defendant's right to the price of the horse as money received to his use, arose from the contract of sale, and on that being rescinded, his right to the money was gone.

Secondly, that the plaintiff, availing himself of the above facts to rebut the set-off, was not a violation of the rule of law which prohibits a party from setting up his own fraud.

Semble, per Park, B., that if before the contract was rescinded by the purchaser the plaintiff had paid the price over to the defendant, he might have recovered it back on the purchaser's rescinding the contract.

Per Park, B.-The wilfully telling an untruth to a party to induce him to alter his condition, whereby he is induced to alter it, is a fraud in law, for which an action of deceit will lie. Whether fraud has been practised is a question for the jury; but whether certain facts proved amount to fraud, is a question of law.

THIS was an action by a livery stable keeper for the standing of a horse; to which the defendant pleaded a set-off. At the trial before Park, B., it appeared that the defendant had sent the horse to the livery stables of the plaintiff, where it stood for some time. The setoff relied on was this, the plaintiff sold the horse to a person of the name of Bailey, who returned him as bad tempered; after which, the plaintiff sold him to Lilly for 125l., with a warranty that he was free from vice. Lilly after a few weeks, returned the horse on the ground that he was not free from vice, and received back the 125l., but the defendant contended that the money had been received to his use by the plaintiff who was therefore bound to account to him for it. There was some evidence, that the return of the horse by Lilly, and the re

Court of Exchequer.-Murray v. Mann.

payment of the 125l. to him, had been assented to by the defendant. The judge in summing up, told the jury that it lay on the plaintiff in the first instance to make out his claim for the standing of the horse. On his doing so, the defendant was bound to get rid of that claim, and this he did, by showing that the plaintiff sold the horse and received a sum of money for it, which then became money received to the use of the defendant. This turned the tables on the plaintiff again, so that it lay on him to make out that he had legitimately applied that money. In order to justify him in taking back the horse from the purchaser and refunding the price of it, the plaintiff was bound to show either that the horse had been returned and the money paid back with the assent of the defendant, of which there was some evidence; or that the contract for the sale of the horse had been rescinded. The purchaser was not entitled to return the horse unless there was an agreement that he should have a right to do so, or unless there had been fraud practised on him by the plaintiff falsely warranting the animal free from vice. If a man who sells a thing, warrants it to possess a certain quality which he knows it does not, with a view to increase the price, and in consequence of that falsehood obtains a higher price for it, it is both a legal and moral fraud. It was for them to say whether on the sale of the horse to Lilly, fraud had been practised on the purchaser, either by defendant or his agent. The jury having found for the plaintiff

Humphrey moved for a new trial for misdirection. He conceded that there was evidence of the defendant's assent to the return of the horse, and did not move on that ground. The judge was wrong in laying down to the jury, without qualification, that the telling such an untruth as this amounted to fraud. [Park, B.-I did not do so. I left them to say on the evidence had there been fraud practised. Platt, B.-The facts to constitute fraud must be found by the jury, but whether, taking certain facts as proved, they amount to fraud, is a question of law.] At least here was no such fraud as prevented the property in the horse passing to the vendee. [Park, B.-The case of Street v. Blay, (2 B. & Adol. 456,) is an anthority that if a man buy a specific horse the property passes, unless it has been sold with a special clause authorizing a return, or there has been fraud. Here was no special clause, and therefore, independent of the question of ratification, the only point is the fraud.] If any fraud were practised it was the plaintiff's own, to which the defendant was no party; and it is a principle that a man cannot set up his own fraud in answer to the claim of another who was not privy to it. Suppose the money had. been paid over to the defendant by the plaintiff before the horse was returned, could he have recovered it back? [Park, B.-I rather think he could, although it is not necessary to decide the point; for he paid it over under the supposition that the bargain with the purchaser was a binding one, and when the purchaser afterwards rescinded the contract the money would then have been paid over in consequence of a contract the consideration for which had failed.

Court of Exchequer.-Murray v. Mann.

[Platt, B.-It is a fallacy to call this setting up the plaintiff's own fraud; for you can only get your own money through the contract which he made with Lilly. If you take a contract you must take it with all its consequences. Park, B.-The rule of law is, that if an agent is guilty of fraud in transacting his principal's business with a third party the principal is responsible to that party. The learned Baron referred to Cornfoot v. Fowke, (6 Mee. & W. 358; 4 Jur. 919).]

PARK, B.-If at the time of the sale of this horse warranty were given that he was sound, which induced the vendee to enter into the contract, and that warranty was false to the knowledge of the vendor, it was a fraud on the vendee: for it answers the legal definition of fraud, viz., the telling of an untruth to a man in order to induce him to alter his condition and thereby inducing him to alter it. There can be no doubt that that is a deceit for which an action would lie. There is a difference between legal and moral fraud; but in the present case we have both; for the plaintiff warrants this horse free from vice, with intent to raise the price of it, and the vendee would not have given the price he did for it if he had not believed that statement to be true; and on its turning out to be a lie, he would be entitled to recover back his money. I am perfectly satisfied that the jury had their attention directed to that state of the law and of the facts. The other point, which at first sight seems to make a greater impression than it is entitled to make, although not discussed at the trial, did pass through my mind, viz., that the defendant had no right to this £125 at all, except through the act of his agent the plaintiff, and if that right rested on a defensible contract he must take his chance of its being defeated. This money was not money received to the use of any one by the plaintiff, but as it were deposited in his hands until the purchaser made up his mind whether he would return the horse or not-for fraud does not make a contract void, but only voidable at the discretion of the party on whom it has been practised, who in the present case might have elected to affirm the bargain. When, however, he chose to avoid the contract, and the purchase money was received back by him from the plaintiff, it ceased to be money in his hands which could be considered money received to the use of the defendant.

I, therefore, am clearly of opinion, that the set-off in this case was defeated by the fraud in the sale to Lilly. The plaintiff does not set up his own fraud against the defendant; he says, I only received that money subject to a defeasance. Independent, therefore, of the other fact, that the return of the horse was ratified by the defendant, I think there ought to be no rule.

The rest of the court concurring-Rule refused.

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LESS has probably been written upon this subject, than upon any other important branch of the law, and yet its great importance, and the uncertainty in which its rules are still involved, would seem to demand for it the attention and the labors of the profession. In the dearth of treatises upon this subject, it is proposed to lay down in the following pages a few rules mostly deduced from adjudged cases, and as far as practicable, in the language of the cases themselves.

And, in the first place, the rules of construction vary with the subject to which they are applied. As applied to the interpretation of penal statutes they differ from those applied to the interpretation of remedial statutes; as applied to wills, they differ from those applied to deeds.

We propose in the present number to consider the rules of construction as applied to statutes.

Is the statute penal or remedial?

And here we are met at the outset with the question, what is a penal statute? In a general sense, any statute which imposes a penalty is penal, but this is not strictly accurate. Statutes for the prevention of fraud, for the suppression of a public wrong, or to effect a public good, are not strictly penal statutes, though they impose a penalty. They are more properly remedial, and are to be construed accordingly. It has been even held, that a statute penal as to some persons, if generally beneficial, may be equitably construed.t The true distinction seems to be, that where punishment is the immediate object of the statute, and prevention but an incident, the statute is penal; where prevention is the immediate object and punishment but an incident, the statute is remedial.

Penal statutes must be construed strictly, yet not so as to defeat the obvious intention of the legislature. All the provisions must be taken together, and interpreted according to the import of the words

Taylor v. United States, 3 Howard 197. VOL. VII.

+ Sickles v. Sharp, 13 Johns. 497.



and not by mere divisions into sections, so as to give effect to the objects and intent of the statute.* The law upon this subject is laid down by Ch. J. Marshall with his usual force and clearness.t "The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislature, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment." And again, "this maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases, which those words in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend."‡

Of late years this maxim has received a much more liberal interpretation than formerly. Thus, the statute 1 Edw. VI. c. 12, having deprived those who stole horses of the benefit of clergy, it was held that one who had stolen a horse, did not come under the operation of the statute. Even as late as the reign of George II. the old maxim was strictly enforced; and it was held that the statute 14 George II. c. 6, which made it felony to steal sheep and other cattle, applied only to the sheep; the expression, other cattle, being too vague. But the extreme strictness of the old maxim has gradually been modified, and it is now interpreted as laid down in U. States v. Wiltberger, and other cases cited.

Remedial statutes, on the contrary, have always been liberally construed. They are to be so construed, if possible, as to suppress the mischief and advance the remedy. In interpreting them the court have not been tied down by the letter of the statute. They look freely to its spirit. The reason is obvious. It is found in the right to life and liberty as far more precious than that to property merely. So precious that none but the supreme authority of the land should have control over it.

A curious case is given in 2 Bl. 1226, in which the interpretation of the same statute depends upon the nature of the action instituted under it-whether penal or remedial. By statute 9 Anne, c. 14, if any person shall lose at any time or sitting £10, and shall pay it, he may recover it back; and if the loser does not, any informer may sue for it, and treble the value besides. In a case arising under this statute, in which the party had lost fourteen guineas at a sitting, with an interval for dinner, as the action was brought by the loser, the court held it a sitting within the statute, but intimated, that had it been brought by an informer, they would not have held it a sitting.§ It sometimes happens that a statute is both penal and remedial. In this case it is to be construed strictly.||

* Schooner Harriet, 1 Story, 251.

+ United States v. Wiltberger, 5 Wheat. 76.

Commonwealth v. Loring, 8 Pick. 370; Butler v. Richer, 6 Greenl., 268; Daggett v. State, 4 Conn. 61.

§ See too Cumming v. Fryer, Dudley Geo. 182.

Abbott v. Wood, 9 Shepley, 541.

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