Strong against Stebbins

Strong against Stebbins. An action will not lie for the penalty given by the 14th section of the statute concerning distresses, rents, and the renewal of leases, (1 R. L. 437, 8,) for the removal or concealment of goods not the property of the tenant, though they be liable to distress. The act contemplates physical aid or assistance, directly or indirectly, in the removal, or concealment of the goods. Merely advising their removal will not subject to its penalty. Nor will the removal or concealment, of a part of the goods, subject to the penalty of removmg or concealing A penal statute is not to be enlarged by construction. A tenant being in possession of goods, the intendment of law is, that he is the owner; and the onus of proving the contrary, lies upon him who has removed them, to avoid a distress. Debt to recover the penalty giveh by the 14th section of the act concerning distresses, rents, and the renewal of leases, (1 R. L. 437, 8,) for wilfully and knowingly aiding, or assisting the tenant, in the fraudulent conveying and carrying away goods and chattels, and in keeping and detaining them, off and from certain premises, demised by the plaintiff to one Ambrose. The cause was tried at the Monroe circuit, September 27th, 1824, before Rochester, C. Judge. The main question upon the trial was, whether the acts of the defendant were such as brought him within that section of the statute upon which the action was founded. ' As to this, the tenant, who was called as a witness by the plaintiff, testified, that the amount of property removed was about $120; that it consisted of household furniture ; that it was removed, to avoid a distress, and for the joint benefit of himself and the defendant, who had a judgment against him. That the goods were removed in the night; and the defendant advised that they should be placed in such a situation that his brother Eber, who had receipted the property to the sheriff upon the defendant’s execution on his judgment, might get it; and that it might he applied on the defendant’s judgment. That about two dollars worth of the property was taken to the defendants; and it v/as agreed by the defendant that his clerk or brother might oe called up in the night to receive property brought there. A part of the property was removed to the house of one Lamb, who afterwards purchased, it for $20; and gave his note to the defendant for that amount. The defendant had-notice that the rent was due. The defendant’s counsel moved for a nonsuit, on the ground that the defendant merely advised, without aiding or assisting in the removal; but the Judge overruled the motion, on the ground that the advising of a removal, and and actual removal pursuant to such advice, with a view to have the goods applied on the defendant’s judgment, was aiding and assisting within the meaning of the statute ; and he charged the jury accordingly, who found for the plaintiff, $240. In the course of the trial, the defendant’s counsel objected, that it did not appear that the goods removed were the property of the tenant; but the Judge decided that this made no difference; that it was enough if they were dis-trainable. A motion was now made for a new trial. J. H. Gregory, for the defendant. R. Beach, contra. [MAJORITY — Curia, per Sutherland, J.] 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.