Martin, Qui Tam v. M'night

thought the declaration was substantially defective, and that judgment should be arrested.

The writ issued in September, 1806. The declaration charged the offence to have been committed in the year 1805, and, on evidence, it appeared to have taken place in February, 1806. stopping Williams, for the plaintiff, said, that, whether the declaration was substantially *Page 381 good or not, was not for the jury to decide. The defendant might have demurred, or he may move in arrest of judgment.

CAMPBELL and HUMPHREYS, JJ., gave no opinion.

Verdict for plaintiff.

The following reasons in arrest of judgment were filed: —

1st. The defendant is not described in the declaration in the character he is described in the act.

2d. It is not distinctly set forth in the declaration that the defendant therein named did sell goods prohibited by the act; it is only said, being a pedler, c, and selling goods, which is a description of the person, not an allegation of the fact prohibited by the act.

Upon recurring to the declaration, it stated that the defendant not regarding the statute in such case made and provided passed the 7th of November, 1803, entitled, "An act ascertaining what property in this State shall be deemed taxable." "Sect. 5, it is enacted (here the clause was set out), did, after the 7th day of November, 1803, at ___, on ___, in the year, 1805, he, the said defendant, being a pedler and hawker, travelling from town to town, and to other men's houses, and trading and selling divers goods, wares, and merchandises, to wit, two yards of muslin, c, at ___, they, the said defendants not having before then had any license," c.

HAYWOOD, in support of the reasons, cited several books, showing that the statutes of amendment and jeofails did not apply to proceedings of this kind.

BARRY argued e contra

said he would take time to advise until the next day.

On the next day WILLIAMS and BARRY argued that the declaration was amendable, and cited 3 Term Rep. 349, 350; 3 Burr. 2833; Cowp. 437; 8 Mod. 376; 2 Burr. 1098.

HAYWOOD, e contra. — Amendments at the common law extended to all cases criminal us well as civil, whilst the cause was in paper, — but here it is not in paper. The statutes of jeofails do not extend to qui tam actions. Salk. 354.

BARRY, in conclusion, relied on 6 Guil. ed. Bac. 891, as to the construction of penal statutes.

The declaration is defective substantially, — nor could he agree with the opinion delivered by Lord Mansfield, in the case of Atchinson v. Everitt. Lord Mansfield was certainly a great man; it is however well known that he did not adhere to precedent so scrupulously as many other judges; his great mind was too apt to contemn the minutiæ of precedent. It embraced a subjectimpromptu, and thus it happened, from his great reputation and popularity, new principles were introduced. The statutes of amendments and jeofails do not apply to the case; the declaration is bad, and there must be judgment for the defendant.

was inclined to think the statutes of amendment and jeofails did not apply, — that the declaration was bad, and that judgment must be arrested.

Amendments at the common law applied as well to criminal as civil cases.¹ This proceeding is not of such a nature as to exclude the application of the statutes of amendment and jeofails, as it would seem from the case of Atchinson v. *Page 382 Everitt, Cowp. 382. He was inclined to think judgment should not be arrested.

¹ See 2 Binney, 514.

said he felt considerable doubt on the subject, and therefore wished it to be continued for advisement.

It was accordingly continued.

ORIGINAL NOTE. — The motion was overruled by Roane, circuit judge, at September term of Smith Circuit Court, 1812, ut audivi.

It was a subject of regret, that *Page 383 the inclination of his opinion differed from his brothers in office. The case of Atchinson v. Everitt¹ is decisive that this action is to be considered in the light of a civil action.² The opinion of Lord Mansfield is believed to be founded in principles of law. He was inclined to think that the statute of 4 Geo. II. c. 26, was enforced by our law, which adopted all the statutes of amendment and jeofails. But if that statute is not in force, we know the Act of 1786, c. 14, § 3, is, which enacts, that no instrument of writing which contains the substance shall be lost or destroyed for the want of form. He was inclined to think that the reasons should be overruled, but felt disposed for the subject to undergo further discussion.

¹ Cowp. 382.

² See 1 Wils. 125.