
    Crafts vs. Leander Plumb.
    In an action for the penalty, for assisting a tenant in concealing goods, removed from demised premises, a party who deters a bailiff from taking the property by falsely denying the tenant to be the owner thereof and alleging a third person to be the owner, subjects himself to the penalty
    Where, however, in such case there is evidence that the intent in the making of the false allegation is not to defraud the landlord, but for a different object, and the jury pass upon the intent and acquit the defendant, the action being penal, the court will not grant a new trial unless the verdict be clearly against evidence.
    This was an action to recover the penalty given by statute for assisting a tenant in concealing goods, removed from demised premises, for the purpose of avoiding the payment of rent, tried at the Otsego circuit in September, 1831, before the Hon. Robert Monell, one of the circuit judges.
    Jasper Sherwood was the tenant of the plaintiff of certain premises, at an an nual rent of $ 100, under a lease for four years from the 31st March, 1828.
    On the second day of April, 1830, *a bailiff of the plaintiff went upon demised premises with a distress warrant, to distrain for rent then due, and made a distress upon some inconsiderable articles. On his way to the premises, he met the defendant, told him his business, and inquired about Sherwood’s horses and property. Sherwood was from home at the time. On the next day, the defendant was at the house of Sherwood, and soon thereafter the sons of Sherwood were sent out by their mother in different directions to meet their father; one of whom met him and informed him of the distress warrant, whereupon he put a span of horses and a wagon he had with him into the bam of one Bailey Plumb, and on the next day the wagon was taken by one of his sons, by his direction, to one Rufus Preston's. The horses were sent by Sherwood to one William Fisher's, and Fisher was requested by Sherwood to keep them out of the way, and one day Sherwood put them into the woods. A few days after the bailiff had distrained the property found on the premises, he pursued the defendant, who had gone off on a peddling expedition, and overtook him in Russia in Herkimer county, where he found him in possession of a wagon, harness and a span of horses ; the bailiff told him he would take the property under his warrant ; the defendant said that the horses were his own, and that the wagon was not Sherwood’s, but belonged to Rufus Preston, of whom he had hired it; that he knew where Sherwood’s property was—that it was where neither the plaintiff or the bailiff could get it. The wagon then in the possession of the defendant was the property of Sherwood, who testified that on his return from a journey on the fifth of May, he found the wagon at his house, and that the defendant told him he returned on the 27th April, and that he got the joke upon Tanner (the bailiff) at Russia. It appeared that two days previous to the time when the bailiff first met the defendant and inquired for Sherwood’s property, Sherwood had executed a mortgage of his horses and wagon to the defendant, and when the bailiff apprised the defendant of his business, he said to a person, then with him, he would take legal advice and see whether he could not hold the property under his mortgage ; that he was advised that the plaintiff could take *the property in thirty days after the rent fell due, whereupon he said that the plaintiff would have, good luck to find it. The defendant proved that about the first of April, he applied to two several individuals to hire him a wagon to go a journey, and that he was unsuccessful in his applications ; that he applied to Sherwood for his wagon, who refused to let him have it, unless he procured him a wagon to use as he wanted it; that "he accordingly applied to a neighbor, who agreed to let Sherwood have his wagon as he should want to use it, and then Sherwood let him have his wagon, which was subsequent to the time when the bailiff had been on the premises. The plaintiff claimed to recover for the wagon only, the value of which was shown to be about $40. The judge charged the jury that there was evidence that the defendant had assisted in removing the wagon, but in concealing it after its removal ; that the defendant was not liable for any opinion or advice given to the tenant but for his acts, and the plaintiff was bound to show that he had concealed .the wagon ; that the jury must look to the whole evidence to determine whether the defendant knowingly assisted in concealing the goods ; that it was proved that the defendant had endeavored to procure a wagon, elsewhere than from the tenant, to go his journey, that his journey was public, and it was for them to say whether the defendant had brought himself within the meaning of the act; that they would consider the conduct of the defendant at Russia, although it was not conclusive to show a concealment, and if it was satisfactorily explained, they would be warranted in finding for the defendant. The jury found for the defendant, and the plaintiff now asks for a new trial.
    W. Crafts, for plaintiff.
    On the strength of what was said by Mr. Justice Sutherland in delivering the opinion of the court in Strong v. Stebbins, 5 Cowen, 210, it has been supposed, that a third person is not liable for assisting a tenant in concealing goods, removed from demised premises for the purpose of avoiding the payment of rent, unless it be shown that he furnished to the tenant physical aid. That expression is found in the opinion, but it is also said, if he gives assistance *in any way, either directly or indirectly in removing or concealing the goods, he is liable; or if the goods be removed to his house and received and concealed by him, he knowing the object and circumstances of the removal, the action lies against him. However, the only point decided in Strong v. Stebbins, is, that the mere advising the removal of goods is not enough to subject a party to the penalty given by the statute. Here the defendant directed the removal, and subsequently concealed the wagon, with full knowledge of the object with which it was kept off of the demised premises. His knowledge of the facts is undeniable, and his false declaration to the bailiff, as to the ownership of the wagon, as effectually misled as any act that could have been resorted to.
    J. A. Spencer, for the defendant,
    relied upon the case of Strong v. Stebbins, and insisted that the principle there established, was, that unless the defendant furnishes physical aid or assistance, the action does not lie. The uttering of a falsehood is not enough to subject a party to the penalty of the statute which contemplates a putting away of goods beyond the reach of the landlord, an actual concealment. Here was no concealment; the wagon was in the view of the bailiff, and the story told him was probably to prevent the breaking up of a journey; and if such was the intent of the defendant, and not the defrauding of the landlord, the jury were justified in finding for the defendant ; and the action being penal, the court will not set aside the verdict.
   By the Court,

Savage, Ch. J.

The section of the statute upon which this action is brought is as follows : “ Any tenant or lessee who shall remove his goods from any demised premises, either before or after any rent shall become due, for the purpose of avoiding the payment of such rent, and every person who shall knowingly assist such tenant or lessee in such removal, or in concealing any goods so removed, shall forfeit to the landlord of the demised premises, his heirs or assigns, double the value of the goods so removed or concealed.” 2 R. S. 503, § 17. Under the same provision in the laws of 1813, 1 R. L. 437, 8, § 14, it has been decided that a third *person does not incur the penalty by merely advising the removal of the tenant’s goods. There must be some physical aid either by himself or his servants. 5 Cowen, 210. In this case there is no evidence that the defendant removed the wagon in question from the demised premises ; the evidence is that he took it from the door of another person. The evidence of concealment by the defendant is this : when inquired of by the constable who had the distress warrant, he stated that the wagon was not Sherwood’s, but that it belonged to Preston; this was untrue ; the wagon was Sherwood’s, and the defendant knew before he took it that the constable had a distress warrant which it was his duty to serve upon the property of Sherwood. This was not physical concealment; the constable saw the wagon and marked it. Still the effect was the same ; the constable was deterred by the falsehood of the de fendant from taking the wagon, and the plaintiff lost as much of his rent as the wagon was worth. I think the defendant cannot exonerate himself by such a quibble. But there was other evidence, the effect of which might be to show that the defendant’s object was not to aid the tenant in defrauding the landlord, but that he might not be interrupted himself in his journey. He had endeavored to procure another wagon, and had engaged Sherwood’s before he knew of the distress warrant. These facts raised considerations proper for the jury to pass upon, and they, by their verdict, have negatived the intent to avoid the payment of the rent. As the action is penal and the verdict is for the defendant, the court should not grant a new trial unless the verdict was clearly against the evidence.

New trial denied.  