trary. How then can it be right to establish a rule not applicable to the particular case, but applicable to a mass of cases collected together, and to make that rule govern an individual case to which it may not at all apply?" Lord Alborough v. Frye, 7 Clar. & Fim. 436.

The case before Sir Wm. Grant was probably one of the few cases, (for undoubtedly there may be such cases,) in which the tables of mortality afford a sufficient criterion of value. The particular life was, perhaps, judging super risum corporis, a remarkable good one; and this seems to have been the reason why the parties acquiesced in the test furnished by the tables. We must, therefore, take leave to doubt whether Sir William Grant is probably amenable to the implied censure involved in Lord Cottenham's suggestion, that another course ought to have been taken by him to ascertain "more correctly the value." Why order an inquiry when the de quo inquirendum was admitted?

peached in a court of equity, it would be almost impracticable for an heir ever to sell a reversion, but the Lord Chancellor decreed relief upon payment of principal and interest and full costs-grounding his opinion chiefly upon a case Berney v. Pitt, 2 Vern. 14, decided by Chancellor Jeffreys-where, (overturning a decree of the great Lord Chancellor Nottingham,) he granted relief to a man who had sold his reversion at an under value,— Lord Jeffreys declaring that "these bargains were corrupt and fraudulent, and tended to the destruction of heirs sent to town for their education, and to the utter quin of families." The Lord Chancellor Cowper adopted the reasoning of Jeffreys, which he said, went to discourage a growing practice of devouring an heir on a confidence in Lord Nottingham's decree; but Lord Jeffreys' standing, showed that every one thought that the same was just, and that there was, therefore, no attempt in Parliament to reverse it." To this he added, that the objection of the difficulty which an heir would be exposed to of finding a market for his reversion, was of no harm-" for this," said Lord Cowper, (himself in his youth a rake and a spendthrift,)" will force an heir to go home to his father, or to bite on the bridle and endure some hardships, whereby he may grow wiser and be reclaimed."

We must, moreover, venture to express a doubt, whether Sir William Grant be justly chargeable with the parentage of the rule, that it is necessary for the party seeking the benefit of a transaction with an expectant heir, (competent by law to dispose of his property,) to show that the price was adequate. That rule, as Lord Cottenham truly remarks, has been In a very recent case, Edwards v. the subject of frequent commentary. In Browne, 2 Coll. 100, before the Vice plain English, its policy has been greatly Chancellor Knight Bruce, the sale of a doubted. The question is, can it justly reversionary interest in real and personal be ascribed to Sir William Grant? We property was set aside, on the ground of apprehend it has an infinitely less pure inadequacy of price. The observations original, as will appear from the following case, by wich Sir William Grant, so far from setting up as an inventor, held himself to be bound. The genuine parent of the rule in question was no other than Jeffreys, the tyrannical but able chancellor of James II.

of the court in delivering judgment, are material as showing what, under certain circumstances, shall be deemed a sufficient consideration; for of course, if the alleged deficiency were of trifling amount, the maxim de minimis non curat prætor would apply. His honor observed :—

The question we are referring to in I assume as true or highly probable, proof of this position is that of Twisleton that circumstanced as the property was, v. Griffith, 1 P. Wms. 310, before Lord the plaintiff would have found it difficult Chancellor Cowper, in 1716, where relief to effect a sale of his interest at a fair was decreed to an expectant heir, a man price. But after having given all the 34 years of age, who had sold his rever-weight that I think due to those considesion at an under value, but, as the court rations, I have found it impossible in my held without any circumstances of fraud judgment to reduce the fair value-the on the part of the defendant; for whom, market value-of the interest sold to so consequently, it was contended, that if low an amount as £1,900. The price such a transaction were liable to be im-given was £1,700. I think that upon a

Criminal Law.-Larceny.-Practical Point.-Trover-Special Damage.

sale of a reversionary interest by private | leged generality of the verdict immatecontract, the difference between £1,700 rial, the mode of death being substantially and £1,900 is material. The sale in the the same. Reg v. O'Brien, 1 Den. C. C. present case was by a min under 23, not 9. The following cases were referred probably embarrassed, but straitened cer- to in the judgment: Warneford's case, 1 tainly very desirous of obtaining money, Dyer, 50, b. n.; Wingfield's case, Cro. and having no property except that rever- Eliz. 739; Hargrave's case, 5 C. & P. sionary interest. Taking all the circum- 170; Tilley v. Wye, Cro. Eliz. 176; stances together, I am of opinion that this Mackally's case, 9 Cro. Rep. 67, a.; Rex dealing with a reversionary interest, if the v. Waters, 7 C. & P. 250. plaintiff considers it to be for his benefit to press the matter, cannot stand."

LARCENY.

CRIMINAL LAW.

DATE OF FELONY-HOW LAID WHEN STROKE
AT ONE TIME AND PLACE, AND DEATH AT

OBTAINING GOODS BY FORGED ORDER NOT
A LARCENY.

ANOTHER—A KILLING WITH A STICK OR THE following decision is of importance:

A STONE SUBSTANTIALLY THE SAME
MODE OF KILLING,

that he,

AN indictment charged J. O'B.,
on the 27th of May, feloniously and of his
malice aforethought, struck deceased with
a stick, of which said mortal blow de-
ceased died on the 29th May; that T. R.,
D. D., &c., on the day and year aforesaid,
at the parish aforesaid, feloniously and
of their malice aforethought, were present
aiding and abetting the said J. O'B.,
the felony last aforesaid, to do and com-
mit; and the jurors say, that the said

J. O'B., T. R., D. D., &c., him the de-
ceased, in manner and form last aforesaid,
feloniously and of their malice afore-
thought, did kill and murder.

The third count charged T. R., that he on the 27th May, a certain stone feloniously and of his malice aforethought, cast and threw, and with the said stone

so cast and thrown, struck deceased, of which said mortal blow deceased died on the 29th May: that J. O'B., D. D., &c., (as above.)

-A. went to B.'s shop, and said he had come from C. for some hams, &c., and at the same time produced a note in the following terms: "Have the goodness to give the bearer ten good thick sides of bacon, and four good showy hams, at the lowest price. I shall be in town on Yours, &c., C." B. thereupon delivered Thursday next, and will call and pay you.

and A. had no such authoriy from C.: the hams to A. The note was forged, The court held that A. was not guilty of larceny. Reg v. Adams, 1 D. C. C. 104.

Practical Point.

TROVER-SPECIAL DAMAGE.

Ir is a generally received opinion that no special damage can be recovered in an action of trover: that such damage would be inconsistent with the action; that the estimate of damage can only include the enhanced value of the goods. It will be

At the trial it was objected, 1st, That the indictment was inconsistent in charging the principals in the second, degree, with committing the felony at the time seen by reference to the case of Bodley of the stroke, whereas it was no felony v. Reynolds, reported in this number,' till the time of the death. 2dly, That that the court of Queen's Bench have dethe general verdict of guilty, left it uncer-cided that special damages may be re-. tain which was the cause of the death,

the stick or the stone; and that therefore covered in an action af trover, where the no judgment could be entered on either. damage was the natural and legal conseThe court held, 1st, That the form of quence of the act of conversion. the indictment was good. 2dly, The al

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

U. S. Circuit Court.

[SOUTHERN DISTRICT OF NEW-YORK.]

Before the Honorable SAMUEL NELSON, Cir-
cuit Judge, and the Hon. S. R. BETTS, District
Judge.

EDMUND FERRETT and TIMOTHY S.
THUR, qui tam. v. JOSEPH F. ATWILL.

under and in pursuance of the laws of the United States, nor done any act authorizing him to make such publication,which publication, false insertion and impression, so made by the said defendant, are contrary to the statute in such case made and provided. Whereby, and by force of the statute in such case made and

AR-provided, the said defendant forfeited to

SUIT FOR PENALTY-DEMURRER-PARTIES.

to.

the said United States of America and the said plaintiffs who sue, &c., for his said offence, the sum of one hundred dollars; and thereby and by force of the statute in such case made and provided, an action hath accrued to the said plaintiffs, who sue as aforesaid to demand and have of and from the said defendant, the sum of one hundred dollars, so forfeited as aforesaid and above demanded.

There was a second count, charging the defendant with publishing a certain rolume of music called, &c.

Demurrer to the first count, showing the following causes: 1. It is not averred or shown in the said count that the al

In the construction of acts of a penal character, the language of the statute must be strictly adhered By the second section of the Act of 3d February, 1831, (the copyright act.) it is enacted, "that if any person or persons, from and after the passing of this act, shall print or publish any book, map, chart, musical composition, priut, cut For engraving, not having legally acquired the copyright thereof, and shall insert or impress that the same hath been entered according to act of congress, or words purporting the same. every person so offending shall forfeit and pay one hundred dollars, one moiety thereof to the person who shall sue for the same, and the other to the use of the United States, to be recovered leged violation of the statute for which by action of debt in any court of record having this action was brought, took place after. cognizance thereof." F. and A. declared jointly the passing of the statute therein menin an action, cominenced on behalf of themselves tioned. 2. That the said violation is aland the United States against C.; C. demurred leged to be contrary to the form of the thereto on the ground that an action to recover such penalty could only be brought by one per-statute, without designating which statute son qui tam. Held, that the penalty given by is included, and without showing that it the act could not be recovered by more than is in violation of more than one statute. one person. Held also, that a declaration for such penalty in the name of two persons is bad 3. That the action is commenced by two, on general demurrer. jointly for themselves and the United. States of America; whereas an action to recover the penalty sued for in this case can only be brought by one person qui tam.

Joinder in demurrer.

DEBT for a penalty. The declaration alleged that the defendant, heretofore and within two years next before the commencement of this suit, to wit, on the Similar causes of demurrer to the sefirst day of July, in the year of our Lord cond count, with this additional cause, 1845, at the third ward of the city of viz., that it is not shown that the defendNew-York, in the county of New-York, ant did publish or print any book, map, and within the Southern District of New-chart, musical composition, print, cut, or York, did then and there publish a cer- engraving. tain musical composition called “Alethia Waltz," and did then and there falsely insert therein and impress upon the face thereof the words, Entered according to Act of Congress, A. D. 1814, by Joseph I. It is not shown in the declaration F. Atwill, in the Clerk's Office of the that the act, for which this action is District Court of the Southern District brought, took place after the passage of of New-York," by printing the same the statute: unless it did, the action will thereon. Averment that the said defend- not lie. But the plaintiffs are bound to ant had not, at the time of such publica-show, affirmatively, every thing necessary tion as aforesaid, legally acquired the to make out the defendant's liability. copyright of said musical composition, Com. Dig., Action on Statute, (A. 3.)

M. S. Bidwell and Samuel Owen, in support of the demurrer.

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

Pleader, (C. 76,) Green v. Bumpas, 1 Marv. & Yerg. As the declaration on its face leaves it doubtful whether the defendant is liable to the penalty, that is, whether the defendant has done the act since the statute was passed, it is on that account bad, at least on special demurrer. The court will make no intendment to support the action. Com. Dig., Pleader, (C. 22,) Plow. Com. 202, b. It is a general rule in all cases, (and à fortiori it must be a rule in penal cases,) that, if the declaration admits of two intendments, it shall be taken most strongly against the plaintiff. Ib. Besides, the presumption of law is in favor of the defendant's innocence. Best on Presumptions, 18. Matthews on Presumptive Evidence, 27; and in the absence of an express allegation, the declaration cannot be made good by argument or inference. Steph. Pl. chap. II. § 5. rule III. p. 426, (2d Amer. ed.) Accordingly, all the precedents contain such an allegation; even where the statute is an ancient one. 2 Chit. Pl. 512, 515. 7 Went. Pl. 121, et seq. 3 Mart. Vade Mecum, 487, et seq. This is high authority, especially on a question of pleading. Ram on Judgments, p. 13, § 5; and see also The King v. Green, 2 Show. Rep. 210, 211. 1 Saund. Rep. 309, a, (n. 5.) Wade g. t. v. Ripton, 1 Sid. Rep. 303. S. C., 2 Keeble Rep. 114.

Leonard v. Bosworth, ib. 421. 2. There are obvious considerations of convenience and policy in favor of such a construction. 3. There are express authorities in favor of it, both of text writers and adjudications. Hammond on Parties, 48. Vinton v. Walsh, 9 Pick. Rep. 87. 4. And there are decisions in favor of it in analogous cases. Hill and wife v. Davis et al, 4 Mass. Rep. 137. The Weavers' Comp. v. Forrest, 2 Strange's Rep. 1241, marginal note. 1 Kydon Corporations, 218 (n. c.) Maggs v. Ellis, Bull. N. P. 196. Marsh v. Shute, 1 Denio's Rep. 232.

III. The foregoing points apply to both counts. There is an additional objection to the second count. That count does not show that the defendant did publish or print any book, map, chart, musical composition, print, cut or engraving. The plaintiffs are not at liberty to depart from the words of the statute, and to raise questions as to whether other words substituted by them are of equivalent import.

IV. The court will not give the plaintiff's leave to amend after argument, in such a case, especially as they have already amended their declaration once. They will not aid the prosecution of a penal suit. Walton v. Kirby, 2 Hayw. Rep. 174. At all events, they will not, in à penal action, give leave to amend as to the parties. Evans qui tam. v. Stephens, 4 T. R. 228.

The defendant is therefore entitled to judgment.

Samuel Sherwood and R. V. Townsend, contra.

1. The statute of February 3d, 1831, on which this action is founded, is a public statute, and the court will take notice of it, and of its date. The allegation, therefore, that this statute was violated within two years next before the commencement of this suit, is a sufficient statement, if any were necessary, that the violation took place since February 3d, 1831.

II. The action is brought by two jointly for themselves and the United States: whereas an action to recover the penalty sued for in this case can be brought by only one person qui tam. 1. The statute does not give a joint action qui tam. to two or more persons; it gives such action to "the person" who shall sue for the same, not to the persons, or to the person or persons. The language of the statute is to be adhered to, unless there is some necessity (of which there is no pretence in this case) for departing from it to carry into effect the intention of the legislature. Dwarris on Statutes, 707, 708, 710, 711. This is especially the rule in the construction of penal statutes, which indeed are to be interpreted strictly. Myers v. Foster, 6 Cow. Rep. 567. Van Valkenburgh v. Torrey, 7 Cow. Rep. 252. Flem-to which the facts alleged have any appliing v. Bailey, 5 East. Rep. 313. U. S. v. Sheldon, 2 Wheat. 119. U. S. v. Wiltberger, 5 Wheat. 95. Dagget v. State, 4 Conn. Rep. 63. Booth v. State, ib. 65.

II. The facts stated in the declaration

as constituting a violation of the statute, sufficiently indicate the statute violated; there is now but one statute in existence

cation: the allegation therefore that the violation was against the statute, is sufficient. Barnum v. Webster, 5 Mass. 270. The People v. Barton, 6 Cowen, 270.

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

III. The second count shows a publi- | published a certain volume of music, called cation in violation of the statute, inso-" Alethia Waltz," and falsely inserted much as a volume of music is both a therein and impressed upon the title book and contains either musical compo- thereof, the words "entered according sitions or a musical composition, by the to the act of congress, &c.," without havvery meaning and understanding of the ing at the time legally acquired the copyrecords used; and the publication thereof right of the said volume of music. is a publication both of a book and of a musical composition.

IV. The statute of February 3d, 1831, on which this action is founded, gives the penalty to the person who shall sue for the same; and the word "person," as used in the 11th § of that statute, is equivalent to "party," and two or more persons may maintain a suit for the penalty. United States v. Benjamin Hill, before Judge Betts, March 26, 1846. Warren v. Doolittle, 5 Cow. 678, opinion of Colden.

NELSON, Circuit Judge, pronounced the decision of the court.-1st. The penalty given by § 11 of the act of February 3d, 1831, (the copyright act,) to any person who will sue for it, cannot be recovered in the name of more than one person. 2d. A declaration for such penalty in the name of two persons, is bad on general demurrer.

BETTS, District J., drew up the following opinion of the court.-The judgment of the court pronounced by the presiding judge being limited to two points, we do not consider it proper to discuss the other questions involved in the pleadings, and argued at length by the counsel.

Our judgment being peremptory against the action, it will not, as if an amendment were allowed, tend to abridge litigation or aid the parties in the disposition of the cause, to attempt now to settle the other points presented by the case.

The declaration contains two counts, each of which demanded a distinct penalty of $100.

The defendant demurred to the declaration, and in connexion with the general demurrer assigned various causes of demurrer, only one of which is passed upon by the court, to wit, that the action is brought by two persons jointly for themselves and the United States of America.

Some exceptions were taken to the sufficiency in form of the special demurrer, but we do not regard the question material, the objection to the declaration being good on general demurrer, because the right of action, if any, is under the statute, and the declaration must show the party suing competent to maintain it. Almy v. Harris, 5 Johns. R. 179.

The decision accordingly rests upon this, that the act of Congress does not authorize an action in the name of several persons and the United States, for the recovery of the penalties incurred by it.

The provisions governing the question, are contained in the eleventh section, which enacts "That if any person or persons, from and after the passing of this act, shall print or publish any book, map, chart, musical composition, print, cut or engraving, not having legally acquired the copyright thereof, and shall insert or impress that the same hath been entered according to act of congress, or words purporting the same, every person so of fending shall forfeit and pay one hundred dollars; one moiety thereof to the person who shall sue for the same, and the other to the use of the United States, to be recovered by action of debt, in any court of record having cognizance thereof."

In actions directly upon a statute, or on The first count charges that the defend- rights derived from a statute the party ant, on the first of July, 1845, at New-prosecuting must allege, and consequentYork, published a musical composition, ly prove every fact necessary to make out called "Alethia Waltz," and falsely in- his title to the thing demanded, and his serted therein and impressed upon the competency to sue for it. Com. Dig. acface thereof, the words "entered accord- tion on stat. A. 1, 2, 3 Pleader, c. 76. ing to act of congress, &c.," without having at the time legally acquired the copy-right of the said musical composition

The second count alleges that the defendant, at the time and place aforesaid,

An informer cannot support an action unless here be express provision in the statute enabling him to sue, (Stra. 828. 5 East. 313. Fleming v. Bailey,) and if the statute creating the penalty, and be