2

company of the right to proceed by action for the recovery of the calls, or instalments of their subscriptions.1 And even after such suit brought, the company may declare a forfeiture of the stock, which cannot be pleaded in bar of the farther maintenance of the suit, where the value of the stock forfeited is not equal to the money due to the company. In such case, however, the stockholder is entitled, on assessment of damages, to insist, that the value of the stock forfeited shall be allowed in diminution of the sum, which the company would otherwise be entitled to recover. But where the stock forfeited is equal in value to the amount due to the company; the forfeiture may be pleaded in bar, and the plea will be good, provided it avers that the value of the stock is equal to the amount due.1

In an action against a mutual fire insurance company on a policy, which, in terms, was to become void if assigned without the consent of the company in writing, it appeared that one of the by-laws of the company was as follows: "When any buildings are mortgaged at the time they are insured, the mortgagee may have the policy assigned to him on his signing the premium note, or giving security for the payment of the same;" and on his so doing, any agent, &c., "shall be authorized to give the assent of the company to said assignment." It appeared that the buildings covered by the policy being under mortgage, the plaintiff stated the fact in his written application, adding, that he wished an assignment to the mortgagee. The court held that the act of issuing the policy

'Herkimer Manufacturing & Hydraulic Co. v. Small, 21 Wend. (N. Y.) R. 273; Troy Turnpike & Railroad Co. v. McChesney, 21 Wend. (N. Y.) R. 296; Instone v. The Frankfort Bridge Co. 2 Bibb (Ky.) R. 576; Gratz v. Redd, 4 B. Monroe (Ky.) R. 193, 194; Beene v. The C. & M. Railroad Co. 3 Alabama R. 660; Selma & Tennessee R. R. Co. v. Tipton, 5 Alabama R. 787.

2 Ibid.

Herkimer Manufacturing & Hydraulic Co. v. Small, 21 Wend. (N. Y.) R. 273.

• Ibid.

could not be deemed a consent in writing to the assignment, though the policy contained an express reference to the application, and that the policy was therefore void. Neither was the policy revived by the fact that the company, with a knowledge that the policy had been forfeited by assignment, had assessed the assured on account of losses occurring before the assignment, and had collected the assessments; the assured being held liable to contribute to all losses which happened while the policy was in force, though the assessment was not made until afterwards.'

2

A by-law cannot be enforced by avoiding any bond or covenant made in contravention of it; nor by disfranchising the offender. But it has been held, in Pennsylvania, that a bylaw of a church corporation, enforcing the payment of pewrent by suspending one in arrear for a longer time than two years of his right to vote for officers, was valid."

2. The general mode of enforcing the penalty of a by-law is, by bringing an action of debt or assumpsit to recover it.* In England it is held, that the penalty of a by-law is recoverable by distress and detention until payment, according to the forms of the common law. But when a by-law gives power to distrain upon due proof before the master and wardens, there can be no distress before verdict for the penalty; for

1 Smith v. Saratoga County Mutual Fire Ins. Co. 3 Hill (N. Y.) R. 508. • Harscot's case, Comb. 203; Doggerill v. Pokes, Moore, 411. 3 Rex v. London, 2 Lev. 201; Clark's case, 1 Vent. 327; Bab v. Clerk, Moore, 412, contra.

• Commonwealth v. Cain et al. 5 Serg. & Rawle (Penn.) R. 510.

Barber Surgeons v. Pelson, 2 Lev. 252; Clift. 901, 902, cited Com. Dig. By-law, D. 1; Tidd. Prac. 3, 4; Lee v. Wallis, 1 Kenyon's Cas. 295; Wooly v. Idle, 4 Burr. R. 1952; Feltmakers v. Davis, 1 Bos. & Pul. 98; Adley v. Reeves, 2 M. & S. 60; Mayor of London v. Sory, Carth. 92; Mayor of Exeter v. Tumlet, 2 Wils. 95; 2 Constable, (S. C.) R. 215.

• Clark v. Tucker, 3 Lev. 281; S. C. 2 Vent. 183; Bodwic v. Fennell, 1 Wils. 237; Clark's case, 5 Co. R. 64, a.; City of London's case, 8 Co. R. 253; Lee v. Wallis, Sayer, 263; S. C. 1 Kenyon's Cas. 295; City of London v. Wood, 12 Mod. 686.

2

there is no legal proof other than the finding of a jury.' And, unless there be a special custom or legislative authority for it, the penalty of a by-law cannot be enforced by distress and sale; or by detaining the offender's share of the profits of the company, until the amount shall be sufficient to liquidate the penalty. And a by-law founded on a custom to exclude foreigners, and authorizing a distress for the penalty in case of a breach of the by-law, without a previous demand and refusal of such penalty, is bad; and the defendant, justifying the taking of goods as a distress for a penalty incurred by breach of a by-law, must aver a previous demand and refusal of payment, and must prove that averment, although the by-laws do not exact any such preliminary. A by-law cannot compel the payment of a penalty, by excluding the offender from all participation in the profits of the company until payment; or by making a stop of his gun proof, which would prevent him from carrying on his trade with equal advantage; or by committing him to prison until payment; though he has assented to the by-law;' unless there be a special custom, or

4

6

Wood v. Searl, Bridg. 142.

2 Clark v. Tucker, 3 Lev. 281; S. C. 2 Vent. 183; Lee v. Wallis, 1 Kenyon's Cas. 295; S. C. Sayer, 263; Adley v. Reeves, 2 M. & S. 60. The corporation of Albany cannot pass a by-law subjecting a vessel, lying in any basin, dock, &c. to seizure and sale, in case of refusal by the owner, after notice, to remove her; the remedy for enforcing their by-laws being specified, and the right to make by-laws creating a forfeiture, not being given. Hart v. Mayor, &c. of Albany, 9 Wend. (N. Y.) R. 571. Adley v. Reeves, 2 M. & S. 60; S. C. called Adley v. 17 Ves. Jr. 304.

Whitstable Co.

• Davis v.
Adley v. Reeves, 2 M. & S. 60.

Morgan, 1 C. & J. 587; 1 Tyr. 457; 1 Price, P. C. 77.

Gunmakers v. Fell, Willes, 390.

71 Rol. Abr. 363 to 365; Wood v. Searl, Bridg. 141; Clark's case, 5 Co. R. 64, a.; City of London's case, 8 Co. R. 253; Bab v. Clerke, Moore, 411; Rex v. Clerke, 1 Salk. 349; Rex v. Boston, Jones, 162; Rex v. Merchant Tailors, and Rex v. London, 2 Lev. 200; London v. Wood, 12 Mod. 686; S. C. 1 Salk. 397; Barter v. Commonwealth, 3 Penr. & Watts, (Penn.) R. 253.

power granted by statute. In these cases, there is penalty upon penalty.'

4

3. The penalty of a by-law can in general be given only to the corporation injured by the offence against its regulations." And where the penalty is given in general terms, without specifying to whose use it is to be applied, it is to be understood to the use of the corporation. The form of reserving the penalty, however, is equally good, whether it be to the company, or to the masters, &c. for the use of the company. The penalty cannot be given to a mere stranger, as, “to any one who shall sue for the same;" for this would be like assigning a chose in action, which the policy of the law will not endure." Upon this principle, it has been held, in England, that if the injury be to a particular company, as where a custom excludes foreigners from the practice of a particular trade, or from the practice of the trade of a particular company as well freemen as foreigners, unless free of that company, the penalty of the by-law founded upon it ought not to be given to the municipal corporation, or their officer, but to the company injured, or their treasurer in trust for them. But where a by-law gave a penalty for trading against a custom excluding foreigners, to be recovered by the chamberlain, one third of it for the benefit of the prisoners of the jail, another third part for the informer, and the other third part remaining undisposed of, was for the use of the corporation; no exception was taken

Adley v. Reeves, 2 M. & S. 53.

Hollings v. Hungerford, cited in Bodwic v. Fennell, 1 Wils. 235; London v. Wood, 12 Mod. 686.

32 Kyd on Corp. 157.

Graves v. Colby, 1 Perr. & Dav. (Q. B.) 235.

Bodwic v. Fennell, 1 Wils. 233, 236, 237; Hollings v. Hungerford, and Ellington v. Cheney, there cited; Totterdell v. Glazby, 2 Wils. 266. • Wilton v. Wilks, 2 Ld. Ray. 1133; S. C. 6 Mod. 21; Weavers of London v. Brown, Cro. E. 803; Bodwic v. Fennell, 1 Wils. 235; Hesketh v. Braddock, 3 Burr. R. 1847; Wooly v. Idle, 4 Burr. R. 1951; York v. Wellbank, 4 B. & A. 440. But see Tailors of Bath v. Glazby, 2 Wils.

to this distribution of the penalty;' and it appears, says Mr. Willcock, to be unexceptionable, for the division is subsequent to the recovery, and no injury to the defendant.'

4. If the by-law does not specify in whose name the action for the penalty is to be brought, it must be brought in the name of the corporation. And where the penalty is given to the master and wardens of a company, to the use of the master, wardens, and company, the action cannot be maintained in the name of the master, wardens, and company, but must be brought in the name of the master and wardens alone, who would probably declare both in their natural and official capacities. But where the action for the penalty was brought by the master and wardens, who were such at the time the fine was incurred, but had ceased to be so at the time the action was commenced, a plea, that the plaintiffs were not master and wardens, was held good." If the by-law, as it may, limits the penalty to be recovered by the chamberlain or treasurer of the corporation, for the use of the corporation, the action must be brought in the name of the chamberlain or treasurer.

'Hesketh v. Braddock, 3 Burr. 1848; Player v. Archer, 2 Sid. 121; Harris v. Wakeman, Sayer, 254. When the penalty of a town by-law is to be paid, one half to the informer, and the other half into the treasury of the town, a qui tam action therefor may, it seems, be sustained in the name of the informer and the town treasurer. Bradley v. Baldwin, 5 Conn. R. 288.

2 Willcock on Mun. Corpor. 156, § 373.

2 Kyd on Corp. 157; Vintners v. Passey, 1 Burr. R. 235.

Feltmakers v. Davis, 1 B. & P. 101. But see Totterdell v. Glazby, 2 Wils. 266.

Graves v. Colby, 1 Perr. & Dav. (Q. B.) 235. And it seems that the right of action did not pass to the succeeding master and wardens. But Qu. Ibid.

Harris v. Wakeman,

• Chamberlain of London's case, 5 Co. R. 63 b.; Sayer, 254; Hollings v. Hungerford, cited 1 Wils. 235; Bodwic v. Pennell, 1 Wils. 235, 236, 237; Hesketh v. Braddock, 3 Burr. R. 1847, 1854; Feltmakers v. Davis, 1 B. & P. 101, 102. The statute of 1802, regulating the town of Hillsborough, (N. C.) enables the treasurer of the town to sue in his own name for penalties incurred under the by-laws authorized thereby, as well as for those incurred under the statute itself. Watts v. Scott, 1 Dev. (N. C.) R. 291.