United States Circuit Court.-Ferrett and Arthur v. Atwill

stowing it upon the informer does not give the mode of proceeding, he is bound to set forth the special matter upon which the right of action arises, and show and prove in what way the penalty vests in him. Cole qui tam. v. Smith, 4 Johns. R. 193. Bigelow v. Johnson, 13 Johns. 428. 15 Wend. 184. Smith v. Merwin, Fairbanks v. Antrim, 2 N. H. R. 105. 2 Aik. R. 41.

The doctrine in effect is common to actions founded upon statutes other than for penalties, for when a statute is made to remedy any mischief or grievance, or to bestow any interest or right upon an individual the mode of remedy, when one is designated by it, must be exactly followed, 11 Mass. R. 364. 12 Mass. R. 466, and if the form of remedy is not pointed out and the law supplies one by implication (7 Mass. R. 202. 13 Johns. R. 428) the plaintiff must aver and prove every fact necessary to show the right in him under the statute. We think under these well established rules of law, the two plaintiffs prosecuting this action, do not come within and satisfy the provisions of the statute giving the penalty "to the person who shall sue for the same."

There is a manifest distinction between the appointment of a penalty to a common informer, and imposing one for the benefit of the person aggrieved by violation of a statute. In the latter case the term "person" might justly be regarded as comprehending every one affected by the injury, because the design of such enactment must be to give a remedy coextensive with the mischief or grievance provided against.

These considerations have no relation to positive penalties established as sanctions of the law, and accordingly not intended to recompense individuals because of their particular injuries.

The language of the statute is to be particularly adhered to in the construction of penal laws, and when it has a natural and plain meaning, an artificial or forced one is not to be adopted. 1 Blac. 88. Dwarris 707, 11. Van Valkenburgh v. Torrey, 7 Cowen, 255.

The courts will not construe a penal law by equity even for the purpose of embracing cases clearly within the mischief intended to be remedied. United States v. Sheldon, 2 Wheat. 121. Myers

v. Foster, 6 Cowen, 569. Daggett v. States, 4 Cowen R. 60.

The courts sedulously limit the action of penal statutes to the precise cases described in them, and reject an interpleader tending to comprehend analogous matters, but not named by the legislature. The authorities cited are explicit to this point and are in unison with numerous others, English and American. 1 Salk. 205 Plow. R. 17. 5 East, 313. 4 Cowen, R. 67. 4 Cowen R. 424.

The privilege to claim or enforce a penalty is one of statutory appointment, and if not included in the acceptation of a penal enactment, must, even as à bare authority or power, be construed with like strictness.

In an action by man and wife against executors to recover a penalty imposed by statute for not proving the will within a fixed period, one half of the penalty being given to the plaintiff, and the other to the legatees, and the wife being a legatee, it was held by the Supreme Court of Massachusetts, that the suit could not be maintained in the name of husband and wife, the action being a popular one, and there being no joint interest in the verdict. Hill and wife v. Davis, 4 Mass. R. 410.

The doctrine was still more fully and explicitly declared in a later case in that court, in which it was held " that several persons could not unite in a qui tam. action as informers, the right to sue in such case resting upon the express provisions of the statute. Vinton and others v. Walsh, 9 Pick. 87.

When the penalty is given to any person or persons, a corporation aggregate cannot sue for it. 1 Kyd. Corp. 218; 8 Stra. 1241. margin.

Hammond, in his Treatise on Parties, says, it seems two cannot join as common informers in a penal action, unless specially allowed by statute. Hammond, 48.

The plain language and sense of the statute under consideration restricts the right of action to a single person, and we should not be disposed, on general principles, to enlarge its operation so as to encourage associations of individuals in instituting and conducting penal actions, if the nature of these actions did not in our opinion exact a vigorous adherence to the terms of the law.

United States District Court.-The United States v. Jarvis.

Judgment is accordingly rendered in this case for the demurrant with costs. The same judgment is rendered in the ten other suits between the same parties, on the same pleadings.

U. S. District Court.

[PORTLAND MAINE.]

and not having given reasonable notice of his intention to surrender it before the expiration of the quarter ending in October, by the local law of Massachusetts he became liable for an additional quarter's rent. It was paid by him, as the receipt is in the case. He also claimed $200 for one quarter additional clerk hire. His clerk was hired for a year terminating with April 1st, 1846, when the defendant's

Before the Honorable ASHER WARE, District appointment would expire by its limita

Judge.

THE UNITED STATES v. LEONARD JARVIS,
February Term, 1846.

DEBT ON BOND OF NAVY AGENT.

Haines, District Attorney, for the plaintiffs.

Preble, for the defendant.

WARE, DISTRICT JUDGE, after stating the facts, about which there was no controversy, charged the jury on the law involved in the case in substance as follows:

tion. The clerk being hired for the year, claimed his salary under the contract, but compromised for one quarter's salary instead of the whole, which was half a year. The amount claimed for office rent and clerk hire was the same as had been allowed from quarter to quarter in his previous THIS was an action of debt on the official settlement. The jury returned a verdict bond of the defendant as navy agent for for the United States for $, allowing Boston and Charlestown, for a, balance the set-off for office rent and clerk hire as alleged to be due from him on the final charged by the defendant, and disallow settlement of his accounts. The defending the commissions charged on the disant was appointed navy agent in April, bursements to Jarvis' heirs. The ques1838, to hold the office during the plea- tions of law involved in the case were sure of the president, for a time not exfully argued. ceeding four years. The compensation allowed for his services was one per cent. on the amount of his disbursements, but not to exceed in the whole 2,000 dollars a year. He was removed from office, September 27, 1841, six months and three days before the term of four years expired, and the first notice he had of his removal or of an intimation to remove him before the expiration of the term, was by the appointment of a successor. On the final settlement of his accounts by the accounting officers, there was found to be a balance due the United States of $715 97. The defendant claimed to be allowed $452 18, as commissions on one per cent. on $45,218 59 paid to the heirs of John Jarvis, for certain lands purchased by the secretary of the navy for the navy yard, as being an extra service, not coming within the regular duties of the navy agent, and for which he claimed to be entitled to a separate and additional compensation. And he also claimed $26 29, being the amount of several small items for office rent and charges for the remain-ed to consult the United States District der of the quarter ending October 1, and also $37 50 on one quarter's office rent from October 1st to December 31, 1841, after his removal from office. The defendant hired his office by a parol lease,

The most considerable item claimed by the defendant in offset is $152 18 charged as commissions on the disbursements of $45,219 59, paid to the heirs of John Jarvis, for lands purchased for the navy yard in Charlestown. The owner of the land not having left children, the money was to be paid to his collateral heirs, and as the secretary could not himself conveniently ascertain who they were, he employed the defendant to do the business. In his letter to him he says: "The money is sent to you, that no mistake may occur as to bringing it to the party entitled to receive it;-and to guard against any such mistake you are request

Attorney, Mr. Mills, and to pay over the amount, and to take the proper receipts and acquittances for the same, under his advice and direction." It is apparent that the service to be performed was one not

United States District Court.-The United States v. Jarvis.

only of considerable responsibility but of some delicacy, for if the defendant had paid the money to a wrong person, he might have rendered himself responsible, and if he is entitled to any compensation it is not contended that the sum charged is too much. But it is argued by the District Attorney that he is not entited to any, but that he was bound to perform this service for the compensations which he received as navy agent. That salary was established as a compensation for performing the ordinary service attached to the agency. Now this does not appear to fall within the range of his ordinary duties as navy agent, and it appears to me to be so treated by the secretary in his letter. It was an entire service, and attended with additional responsibility. But then it is argued by the attorney that admitting this, he is barred from receiving any additional compensation by the third section of the act of congress of March 2, 1839, ch. 82. 9 vol. U. S. Laws, ch. 1212, § 3. That section so far as it applies to this case is in these words: "No officer in any branch of the public service, or any other person whose salary, or whose living and emoluments are fixed by law and regulation, shall receive any extra allowance or compensation in any form whatever for the disbursements of public money, or the performance of any other extra service, unless the said extra allowance or compensation be authorized by law." The defendant was an officer whose pay and emoluments were fixed. It must, then, be admitted that the case comes within the words of the law, and must govern it, if the law is applicable to the case. But this is the very point which the defendant's counsel deny.

governs this case. The argument for the defendant is that this section is intended to apply to the subject matter of the act only, and is to be confined to the disburse ments of the appropriations contained in the act. This is, perhaps, the construction that would at first most naturally sug. gest itself. The act itself is one of those annual acts which spend their power in the course of the year, to which we are not accustomed to look for permanent regulations. If the legislature annex to such an act any special provision, which has a proper application to the subject matter of the act, and use no words indi cating an intention to give it a more extensive operation; the just conclusion would seem to be that the special regula tion was intended to be confined to the matters embraced by the act. It is remarked by Mr. Justice Story in delivering the opinion of the court in Minis v. The United States, 15 Peters, 445, that "it would be somewhat unusual to find engrafted on an act making special and temporary appropriations any provision, which was to have a general and permanent application to all future appropriations. Nor ought such an intention on the part of the legislature to be presumed unless it is expressed in the most clear and positive terms, and when the language admits of no other reasonable interpretation." This is emphatic language, and places this as a rule of interpretation on strong ground. The second section of this act also contains a special regulation applying to collectors of the customs, which is clearly intended to be permanent. It requires them to place money received on unascertained duties, or duties paid under protest, at once to the credit of the treasuThe act in which this section is found rer. The first words of the section areis one of the annual appropriation acts. “from and after the passage of this act all Its title is, "An act making appropria- moneys paid to any collector," &c., words tions for the civil and diplomatic expenses the meaning of which cannot be mistaken. of the government for the year eighteen But there are no words of the like import hundred and thirty-nine." The first sec- in the third section, and the omission of tion contains more than two hundred them undoubtedly favors the interpretaclauses, making as many distinct appro- tion put upon it by the defendant's counpriations for the various branches of the sel. But then though the formal words public service, and embracing all the civil most usually employed to exclude a doubt and diplomatic expenses for the current whether the regulation was intended to year. The second section contains a spe-be permanent or not, are not necessary. cial provision to which I shall presently refer, and the third has the clause which has been read, and which it is contended

They may be supplied by other language, clearly indicating the intention of the legislature. Now it is quite certain that this

United States District Court.-The United States v. Jarvis.

section must extend to matters beyond agency, and for no other, he not being the appropriation contained in the act. engaged in any other business that reIt provides that no officer in any branch quired his having an office. It was hired of the public service, or any other person on a parol lease; and, not having given whose salary and emoluments are fixed reasonable notice of his intention to quit by law and regulation, shall receive any before the termination of the quarter, by extra allowance or compensation in any the law of Massachusetts he became form, unless it is authorized by law. Now bound for another quarter's rent. Mass. this act embraces but part of the appro- Revis. Statutes, part 2, tit. 1, c. 60, § 26. priations for the year, so that we are ne- The ground of the claim is this: that, cessarily carried beyond the subject mat- having been dismissed from office when ter of this act. It must extend itself over it was too late to give the notice required all the appropriations of the year at least; by law, and having himself no previous and though it may be said that this clause notice that he was to be superseded, this of the law does not necessarily look be- is a loss which he incurred without fault yond the current year, yet the second on his part, in the broken business of the clause of the section evidently does. That plaintiffs, for which they were bound to provides that no executive officer other indemnify him. The answer is, that he than heads of departments shall apply held his appointment at the mere will of from the contingent fund of which they the president; and being liable to be rehave the control more than thirty dollars moved at any time without notice, he annually, to pay for newspapers and might have provided for the contingency pamphlets. The word annually here is in his contract. necessarily prospective, and extends the operation of this clause to future years. There is in the first clause no restrictive words confining it to the current year. If part of the section was intended to be permanent, it is quite natural to suppose the whole was. It would be very unusual to unite in a single section of a law one provision intended to be permanent, with another intended to be temporary, with out clearly distinguishing the permanence from the temporary part. My opinion is that this section is a conclusive bar to the allowance of the commissions claimed on the disbursement in question; and whatever we may think of the equity of the claim, it is not for the court or the jury to be wiser or more indulgent than the law.

This disposes of but part of the case. The other allowances claimed involve questions of much more delicacy and difficulty. The defendant claims an allowance of $26 29 for office-rent and for the three remaining days of the quarter ending October 1, and also for rent for the quarter following. These two claims stand on the same ground, and may be considered together. An office or place of business was necessary for the discharge of the duties of the agency, and had been charged and allowed at the same rate in previous quarters. It is admitted that it was hired and used by the defendant for the purpose of the

He

If this was a question between two individuals, and not between an individual and the government, I cannot say that I should feel rauch difficulty in arriving at a conclusion satisfactory to my own mind. It was necessary, in the transaction of the affairs of the agency, that the defendant should have a place of business where he might be found in business hours. He was engaged on a parol lease, and by law he was bound to give reasonable notice of his intention to quit, so he became bound for another quarter's rent. had held the agency for three years and a half, and the term for which he was appointed would not expire by its own limitation for six months. No complaint had been made against him, and he had no reason to suppose that he would be superseded before the expiration of that time. If he had engaged his office in the usual course of business, and there was nothing unreasonable in the terms on which it was engaged, considering the tenure on which he held the appointment, the principal would be liable for the loss. The question for the jury would be, whether an agent holding an appointment of so much importance, though the agency was "evokable at will, should be expected to engage his office rooms on a tenancy from day to day, or week to week. If the jury should think that he acted prudently and in good faith, an

United States District Court.-The United States v. Jarvis.

with a just regard to the interest of his principal, then I should say that in law he was justly entitled to look to his principal for an indemnity fairly incurred in the prudent prosecution of his proper business.

exercise of the will where the interests of other persons are affected, have their foundation in a rule of universal equity and justice, arising from the social notions of men, that a man shall so use his own rights as not to injure another. Sic utere tuo ut alimam non laudas.

est.* But the case of a parol lease at will, which arises in the present case, is one which perhaps still more clearly shows, that when it is said that an engage ment is liable to be terminated by the will of either party, it is, in the sense of It is true that when a man appoints an the law, a will under the control of reason agent or mandatory without limitation of and justice. Though it is said to be a time, he may always revoke the appoint- contract merely at will, yet, independent ment at will. A person may also enter of every statute regulation at the common into many other engagements generally law, the lessor cannot, without notice, liable to be dissolved at will, but which, eject the tenant and turn him into the where other persons have fairly and in street, nor can the tenant discharge himthe usual course of business, exercised self from the liability to pay rent without an interest under them, the law will pre-giving the landlord reasonable notice, to vent him from dissolving at an unreason- enable him to find another tenant. These able time; or if it does not absolutely restrictions on the capricious and wanton prevent the act, will hold him to indemnify those who may suffer an injury from it. This is a general rule of justice and equity, which is found in every system of refined and cultivated jurisprudence. The engagements may be terminated at will, but then this will must be exercised reasonably, and not in mere wantonness or malice. An illustration of the principle may be drawn from the contract of partnership. When entered into without any limitation of time, it may always be dissolved at the will of any of the parties. In that highly cultivated system of jurisprudence which forms the basis of the law of the whole continent of Europe, the Roman law, the renunciation of the partnership by one of the parties, to be valid, must be made in good faith, and not at an unreasonable time, to the injury of the common interest; for it is not, says the law, the private interest of the individual partner, but the common interest of the partnership that is regarded. This principle, so conformable to natural equity, to good faith and fair dealing, was adopted from the Roman law by the ancient jurisprudence, and is confirmed by the new civil code of France. And though no such restriction is perhaps established in the common law, yet it seems that a court of equity will interpose and restrain a partner from wantonly and maliciously putting an end to the engagement, to the injury of the common inter

*

Semper enim non id quod privatim interest anius en societati, servari solet sed quod societati expedit. Dig. 17. 2. 65. § 5.

Pothier, Contrate de Societe. No. 150, 151. Code Civile Francais, 1869-70.

This reasonable and equitable principle has also its application in the law of agency. There is no doubt, as a general rule, that the appointment of an agent may at any time be revoked by the principal without giving a reason for it, be cause it is the right of every man to employ such agents as he sees fit. The agent also has the same general right to renounce the agency at his own will; for it is an engagement at the will of both parties. But the contract of agency or mandate involves mutual obligations between the parties; and these commence, if not as soon as the appointment is made, at least as soon as the agent or mandatory commences the execution of the agency. If he has entered on the business, even if he does not accomplish prosperously what he has undertaken, he will be entitled from his principal to an indemnity for his expenses and services, if the failure does not arise from his own fault.‡ After he has engaged in the business of the agency, the principal may at any time revoke his powers and dismiss him from his service. But if his power is thus revoked, the principal will be responsible to him for any engagements he may have entered into, and any liabilities he may

Story on Partnership, No. 275, note 3. t4 Kent Com. 111.

Domat, Lois Civiles, liv. 1, tit. 15, § 2, No. 1, 2