§ 663. But where a right is granted by statute, and the act granting the right is silent as to the remedy, and a subsequent statute is passed giving a forfeiture or penalty for the violation of that right, as the right had become vested by the first act, such forfeiture or penalty is regarded merely as cumulative to the remedy provided at common law, in cases of the violation of a statute right, where the statute creating the right is silent as to the remedy. This rule was distinctly recognized by Justice Thompson, in the case of Livingston v. Van Ingen.(a) In that case, the legislature had granted, under the act of 1798, to certain persons the sole and exclusive right of using and navigating boats by steam in the waters of this state, but that act was silent as to the remedy for an infringement of the right. Subsequent acts created a forfeiture of boats used in violation of the right secured. Such forfeiture was held to be cumulative merely. Thompson, Justice, said in that case, “But it is said that the right claimed by the appellants being created by statute, they are entitled to no other remedy than that which the statute gives. Without examining whether the rule of law upon which this objection is founded is not confined to criminal cases altogether, it certainly cannot be applied to the present case, for the forfeiture is not given by the same statute which created and gave the right, nor until the right was actually vested in the appellants, by a fulfilment of the terms and conditions upon which they were to be entitled to the exclusive privilege now claimed by them; and if the right was vested, all existing remedies to enforce it were also vested, and are not to be taken away by implication. The act of April, 1808, creating the forfeiture, purports to be an act for the further encouragement of the

(a) 9 J. R. 507.

appellant's steamboats, which plainly shows that the remedies therein provided were intended as cumulative, and in addition to those already existing."

664. Where a statute does not vest a right in a person, but only prohibits the doing of some act under a penalty, the party violating the statute is liable only to the penalty. But where a right of property is vested in consequence of the statute, it may be vindicated by the common law, unless the statute confines the remedy to the penalty. This distinction was recognized and applied in the case of Barden v. Crocker, (a) The statute of 1815, ch. 11, sec. 1, provided that the town of M. should at a legal town meeting dispose of and grant, upon such conditions and under such restrictions and regulation as said town should establish, for that year, and so from year to year, the sole privilege of catching alewives with scoop nets or set nets, on the days and at the places designated by the act, to such person or persons as should give the most for the same, and give sufficient security for payment: such person so purchasing were to have the right to take fish, and no other person whatever. It further provided, that if any person should obstruct the passage of the fish, he should be liable to a penalty not exceeding $20, and not less than $5, to be recovered by indictment, complaint, or action of debt; the one half to the town, and the other half to the prosecutor. In an action for obstructing the passage of such fish, it was held, that the remedy prescribed by the statute was cumulative, and that an action on the case at common law might be maintained by the vendee, to whom the privilege had been sold by the town, against the person obstructing the passage of fish. The court placed their decision upon the ground that the grantee of the town

(a) 10 Pick. 383.

acquired a valuable interest or franchise in the fishery, and entitled at common law to a remedy for its disturbance. That in all cases where a man has a temporal loss or damage by the wrong of another, he might have an action on the case, to be repaired in damages. In answer to the objection that the plaintiff's remedy should have been a suit for the penalty, or by abating the nuisance, the court held it was clear, at common law, were it a public nuisance, one who sustained a particular injury might have his action for the damages, and the same rule must apply to a private nuisance. The remedies were cumulative. The penalties inflicted in the act were recoverable by a process in the nature of a prosecution for the public, but that could not affect the common law right of an individual to recover the particular injury sustained by reason of the nuisance. The suit for the penalty might be brought by persons who had no exclusive right to the fish, and would give no satisfaction for the injury done to the true owner. The penalty operated as a punishment of the offender, but made no adequate compensation for the particular injury to the plaintiff. That the distinction to be taken was where a statute does not vest a right in a person, but only prohibits the doing of some act under a penalty; in such cases the party violating the statute is liable to the penalty only. But where a right of property is vested in consequence of the statute, it is to be vindicated by the common law unless the statute confines the remedy to the penalty.

§ 665. The same rule obtained in another case.(a) The statute of 8 Anne, c. 19, gave to authors the sole right and liberty of printing their works for fourteen years, and certain penalties for violating the act. The

(a) Beckford v. Hood, 7 T. R. 620.

action in this cause was case for damages which the author had sustained for an invasion of his literary property. It was contended that his only remedy was for the penalty. The court held that the right of property was vested in the author, and the penalty a mere cumulative remedy. Lord Kenyon said: "The statute having vested the right in the author, the common law gives the remedy by action on the case for the violation of it. But it is agreed that as the statute in the same clause that creates the right has prescribed a particular remedy, and that no other can be resorted to; and if such appeared to have been the intention of the legislature, I should have subscribed to it, however inadequate it might be thought. But their meaning in creating the penalties in the latter part of the clause in question, certainly was to give an accumulative remedy." Ashurst, Justice, said: "Now I only consider the action for the penalties given to a common informer, as an additional protection, but not intended by the legislature to oust the common law right to prosecute by an action any person who infringes this species of property which would otherwise mainly attach upon the right of property so conferred. Where an act of parliament vests property in a party, the other consequence follows, of course, unless the legislature make a special provision for the purpose, and that does not appear to have been intended in this case. The penalties to be recovered may indeed operate as a punishment upon the offender, but they afford no redress to the injured party. The action is not given to him, but to any person who may get the start of him and sue first. It is no redress for the civil injury sustained by the author in the loss of his full profits."

§ 666. Where a statute gives a new power, and at the same time provides the means of executing it, those who claim the power can execute it in no other way.

Thus in Andover and Medford Turnpike Co. v. Gould,(a) where a statute authorized assessments to be made upon the shares of the corporation, and that whenever any proprietor should neglect or refuse to pay a tax or assessment within a limited time, the treasurer might sell the shares of the delinquent at public auction for the payment of the tax. It was held that in the absence of an express promise to pay, no action could be sustained to recover the assessment, but that the remedy was that pointed out in the act.

§ 667. It is in general true, that if an affirmative statute, which is introductive of a new law, direct a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner. Thus it has been held, that under the statutes of Massachusetts, which directed the method of laying out highways, provision was made that if any person be damaged in his property by laying out a highway, the town where the same is shall make such person satisfaction, according to the estimation of the committee; and provision was made, that the court of sessions might order the payment of such sum of money as should be assessed in damages, to be paid by the town out of the treasury, and in default of payment after a reasonable time, the court might levy the same by warrant of distress upon the personal property of the inhabitants. was held that an action of debt against the town could not be sustained, although the sessions had omitted to order payment of the damages.(b) In the case cited from Plowden it was held, that if an action founded upon

It

(a) 6 Mass. R. 41; see also 1 Metcalf, 138; 3 Fairfield, 388; 19 Wend. R. 405; 7 Mass. R. 102; 8 Mass. 138; 10 Mass. 284; 14 Mass. 286; 14 Pick. 483; 16 Mass. 94; 3 Metcalf, 520.

(b) Gedney v. Inhabitants of Tewksbury, 3 Mass. R. 308. See also Plowden, 206; Stradling v. Morgan, Hob. 298; Sid. 56.