Ferris v. Coles

purchased, ma-inii'ucuued, or shipped for exportation, do the penalties attach, and if an inspector, without being requested, inspect against the will of the proprietor, Iho’ every cask be deficient in weight, and falsely tared, debt will not lie for tiie penalties, unless it appear the flour or meal was for exportation.

The declaration stated, that “ Edward Ferris, who sues “ in this behalf, as well for the poor of the city of New-Tork^ u as for himself, complains of John B. Coles” íkc. u that “ he render to the said poor; and to the said Edward, who 46 sues as aforesaid, five hundred and thirty-seven dollars “ and sixty cents, which he owes to, and unjustly detains “ from them. For that, whereas,” by the act it was enacted, that all wheat flour “ manufactured for’exporation,” should be packed in casks of a certain length, containing a certain number of pounds, “ the tare of each cask to be respective- “ ly marked on one head with a marking iron,” the * net weight only of each cask “ packed as aforesaid,” to be branded on it, and that the manufacturer or owner of any flour put up in casks, should “ be subject to a penalty of “ 50 cents, for every pound such cask was tared less than “ the true weight thereof, and any inspector of flour or “ meal, having reason to suspect such cask or casks to be “ falsely tared, might ascertain the same by a suitable ex- “ animation thereof,” and further, “ that it should be the “ duty” of the inspectors, “ upon application to them made, “ to examine and determine the quality of such flour,” and-u from time to time to weigh such casks of flour as they “ should suspect of being too light; and if found not to “ contain the just and true weight, to mark or brand the u same on the head with the word Lights and for each cask, “ which they should so mark or brand, they should be en- “ titled to receive from the owner, for their trouble of “ weighing the saíne, the sum of twenty cents for every « barrel,” and the manufacturer of such flour to “ forfeit “ and pay for every pound weight of flour deficient, the “ sum of twenty cents,” the same “ to be recoverable be- “ fore any justice of the peace, or in any court of record “ in this state having cognizance thereof, by any person, “ who would prosecute for the same, one half to the prose- “ cutor, and the other half to be paid to the overseers of “ the poor of the city or town, where the fraud was detect- “ ed the declaration then set forth, that the defendant, after the passing of the act, to wit, on &c. was “ the owner u of 384 half-barrels of flour tared two pounds each, less a than the true weight thereof, by reason whereof, and by

et force of the said act of the legislature of the state of Nexo-u York, an action hath accrued to the said Edward, who a sues in this behalf, as well for the poor of the said city of “ New-York, as for himself, to have and demand of the said “ John, the sum of 084 dols, parcel of the said 637 dols. u 60 cts» to wit, the sum of 50 cts. for every pound each “ of such casks was tared less than the true weight,” and also, “ that the said John was the manufacturer of 384 “ half-barrels of flour, which contained two pounds each, ic less than the weight branded thereon, by reason, &c. an action had accrued, &c»” “ to have and demand of the said 5t John the sum of 153 dols. 60 cts. (residue, &c„) being u the sum of twenty cents for every pound weight so do- 61 ficient,” yet, &c. “ to the damage of the said Edward, of ie 537 dols. 60 cts.” Plea the general issue, and joinder.

It was admitted that the plaintiff was required by the defendant to inspect 72 half-barrels of flour, which proved to be not only falsely tared, but deficient in quantity, and that the penalties thereby incurred were duly paid. That at this time the defendant had in his store 384 half-barrels, which had a few days before been inspected, and regularly marked and branded by the plaintiff, but that, cn his finding the above deficiency and falsehood in the tare, he insisted on re-inspecting them, which the defendant refused to permit, and absolutely prevented from being done. It was further admitted, in order to try the plaintiff’s right to inspect and weigh without request, that all the half-barrels were deficient in weight, as well as falsely tared, and that the defendant was both owner and.manufacturer.

To the case detailing these facts and pleadings, the defendant subjoined the following points, as what he should rely on in argument. 1st. That the declaration makes a demand, and requires judgment to be rendered for the poor of the city of Nexo-York, and Edward Ferris, whereas such a judgment cannot be given by law, under the act on which the suit is founded. 2d. That it is not averred in, nor does it appear by the plaintiff’s declaration, that the 384 half-barrels of flour, alleged to have been falsely tared, and deficient in weight, were intended for exportation, without which the penalty would, not arise.

3. That the plaintiff having once regularly inspected, marked and branded the said 384 barrels, was precluded from, afterwards saying they were falsely tared, or contain - ed less than their due quantity.

4. That the plaintiff had no right to inspect or examine without request.

The first point raised, resolves itself into this; that the declaration is on behalf of the plaintiff, and the poor of the city of New-Tork, instead of being on behalf of himself and the overseers of the poor. It is, in effect, the same thing, for the overseers are to distribute and pay over to the poor, who are the persons actually interested. To name them was unnecessary, and totally insignificant. Frederick v. Lookup, 4 Burr. 2019. French v. Wiltshire, Andrews, 67. The action is given to “ any person who will prosecute for the same.” It might therefore, have been in the name of the plaintiff only. This was settled by the third resolution, in the first of the cases adduced. The answer to the second objection of the de» fendant is, that in the section of the act by which the penalties are imposed, general expressions are used, not confining them to flour, &c. intended for exportation, respecting which the antecedent clause contains directions. It must have been equally the intention of the legislature to protect the citizen from fraud, as well as the stranger, and this was the reason of the generality of expression used in regard to the penalties. The construction we contend for derives support from the 7th § which supposes an inspection previous to that on exporting. The third point receives an easy answer. The 384 half-barrels had been inspected and branded only as to quality. Such a circumstance could never prevent the right to inspect the tare and quantity. An attention t© these two different objects of inspection, will remove all doubt on the last objection. Request is necessary to inspect, for the purpose of ascertaining the quality of flour to be exported; but not to detect imposition in weight and tare, and prevent defrauding the community.

The authorities cited are under the English statute of the 9 Anne c. 14. s. 2. By the words of that act it is expressly ordained, that “ it shall be sufficient for

place 0f exportation. This provision was dictated by the sole view of guarding our foreign trade. Had the defendant been about to export the flour, then indeed, I admit, that the plaintiff might have insisted on inspecting; but, in every other case we deny the right of doing so, undesired. The arguments on the other side would make every baker, nay, every person owning a barrel of flour, liable to the inspection-law, and also to the penalties, if falsely tared, or deficient in weight.

The first objection' is as to form. The cases cited shew it good.' The statute of Anne gives the penalties - imposed, one moiety to the informer, the . other to the poor, and yet a suit by the informer only, may be maintained. Therefore, here we may sue without the overseers. If it was competent for the plaintiff to use his own name alone, then the authority from Andrews is decisive. But as courts of law recognise trusts, and take notice of those beneficially interested, there can be no impropriety in naming the cestui que trusty instead of his trustee." . The ■ conclusion of the- declaration,- 'is to the damage “ of the said Edward,” and this will warrant a judgment'in his favor, on which he will, as to the-moiety not given to him by the statute, be trustee for those inti- • tied. The act makes it the duty of the owner, to have an inspection as to the quality ; of the officer',' ás td tare and weight. The branding therefore, the former,' cannot prevent ascertairiingthe(iatter. Whenever there iá“á “ reason to “ suspect” fraud in either óf thesef the officer has a right to inspect, without waiting for a desire to be made known, or confining the act to> flour destined for exportation. '•