Conley and Johnson, plaintiffs in error, vs. Palmer, defendant in error

Conley and Johnson, plaintiffs in error, vs. Palmer, defendant in error. Where an oflence was committed against the statute prohibiting the removal ol goods from demised premises to avoid the payment of rent, (3 S. S. 503, § 17,) so that the landlord had a right to sue for the penalty imposed before distress for rent was abolished by the act of 1846, (Stat. 369 ;) held, that the right of action was not taken away by the latter statute. Where a statute imposes a penalty or forfeiture for an act injurious to the rights of another, and the penalty is given to the party aggrieved, it is in the nature of a satisfaction for the wrong done. Only one penalty can be recovered for removing goods from demised premises contrary to the statute, and all who assist in the commission of the offence may be sued together. Palmer v. Conley, 4 Denio 374, affirmed. Palmer sued Conley and Johnson before a justice of Madison county, in debt for a forfeiture alleged to have been incurred by the defendants for a violation of the statute, (2 R. S. 503, § 17,) in knowingly assisting the plaintiff's tenant Harding, to remove his goods from the demised premises, leaving rent due thereon, for the purpose of avoiding the payment of such rent, it was alleged that the rent in question became due on the 1st of March, 1844, and that the offence was committed within thirty days next before that day. The defendants pleaded nil debet, and the trial took place on the 9th of May, 1845, when the plaintiff recovered judgment for $80, besides costs. The defendants appealed to the common pleas, and the cause was tried in that court on the 15th of June, 1846. After the plaintiff’s counsel" had opened the case, the defendants moved for a nonsuit on the grounds, 1. That the legislature having by an act passed May ' 13, 1846, (Stat. p. 369,) which took effect within twenty days thereafter, abolished distress for rent, the plain tiff’s cause of action was extinguished; and 2. That a joint action for the forfeiture could not be sustained against both defendants. The court granted the motion and nonsuited the plaintiff. The plaintiff excepted, and, after judgment against him in the common pleas, brought error into the supreme court where the judgment was reversed. (See 4 Denio, 374.) The defendants brought error to this court. II. Denio, for plaintiffs in error, insisted that the section of the statute upon which the action was brought, was repealed by the act of May 13, 1846, abolishing distress for rent. The section in question was part of the system of distress for rent, and inseparably connected with the other statutory provisions on that subject. Therefore, although this section is not in terms mentioned in the repealing statute, it fell with the system or remedy thereby abrogated. (Nicholas v. Squire, 5 Pick. 168; Bartlett v. King, 12 Mass. 330; Commonwealth v. Welch, 2 Dana, 330; 3 Marsh. Rep. 640; 3 Halstead, 48; 1 South. 146 ; 2 Dana, 344.) The judgment before the justice was vacated by the appeal to the common pleas. (2. R. S. 258, §§ 186, 192, 210, 211, 216, 217; 5 Crunch, 281; 6 id. 325; 1 N. H. Rep. 361.) So that on the trial in that court, there was nothing for the plaintiff to recover upon, except the original cause of action, and the right to recover that was gone from the time when the repealing statute, took effect. (The People v. Livingston, 6 Wend. 526; Butler v. Palmer, 1 Hill, 324, and cases there cited; 1 Kent’s Com. 465; Commonwealth v. Leftwich, 5 Rand. 657; Anon. 1 Wash. C. C. Rep. 84.) He also submitted that the action given by the statute in question was several against each offender, and that a joint suit against both defendants could not be maintained. B. D. Noxon, for defendant in error. The act of May 13, 1846, does not repeal the section of the revised statutes, on which this action is founded. The section is not mentioned m the repealing statutes, and statutes are not repealed by implication unless there is a plain and unavoidable repugnancy between the new provision and the former statute. (Foster’s case, 11 Coke, 56, 63, a; 2 Dwarris on Stat. 677; 9 Pick. 87.) The removal of the property for the purpose of avoiding the payment oí rent, took place before distress for rent was abolished by the legislature. The plaintiff’s right to sue was perfect as soon as the offence was committed, and the penalty to be recovered was in the nature of a debt or duty vested in the plaintiff That clearly was not taken away by the repeal. (The Company of Cutlers, &c., v. Raslin, Skinner s Rep. 363; Grosselle v. Ogilvie, 5 Brown P. C. 75; 9 Barn. & Cress. 524; Dyer 347; Dash v. Van Kleeck, 7 John. 502; Johnson v. Burrell, 2 Hill, 238.) The action was well brought against both defendants, for they jointly assisted the tenant in a single act for which a single penalty is imposed. The statute refers to severalty of offences, not oí persons. (Marsh v. Shute, 1 Denio, 230; Ingersoll v. Skinner, id. 540; Warren v. Doolittle, 5 Cowen, 678; C. Eliz. 480; 1 Salk. 182; 2 East, 573.) [MAJORITY — The Court,] The Court, after advisement, were of opinion that the cause had been properly decided in the supi’eme court, and thereupon the judgment was affirmed. See Pike v. Madbury, 12 New Hamp. 262 ; Boutelle v. Nourse, 4 Mass. 431; Frost v. Rowse, 2 Greenl. 130 ; Beadleston v. Sprague, 6 Johns. 101.