Sears v. United States

21 F. Cas. 938, 1 Gall. 257

Opinion

STORY, Circuit Justice.

Several errors-have been assigned. I shall pass over the-first, as it has been presented as the governing (point in another cause, and the present action may well be decided without reference-to it.

The second error strikes me to be fatal; the-offence charged in the declaration is the being knowingly concerned in a prohibited foreign voyage, and it is not alleged to be contrary to the form of any statute. The necessity of such an averment in an action founded upon a penal statute is abundantly supported by authority. 1 Saund. 135, note; 12 Mod. 52;. 1 Chit. PI. 356; Doct. Plac. 332.² The doe- trine was confirmed by the decision of this court in Cross v. U. S. [Case No. 3,434], on full consideration; and I consider it too well settled to admit of argument. Lee v. Clarke, 2 East, 333.

See authorities in Smith v. U. P. [Case No. 13,122]. SEARS [UNITED STATES v.). See Cases Nos. 16.246 and 16.247.

As to the third and fourth errors assigned, I incline to think them of no validity. The ob-' jeetionable parts of the allegations may be rejected as surplusage, or at most would be cured by verdict. There is no authority to show, that in a count on a penal statute, it is ¡ necessary to refer to the statute giving the j remedy, as well as to that creating the of- j fence, and giving the penalty; and in cases ; where this objection occurred incidentally, it i does not seem to have had much weight. 1 Chit. Pl. 359; Lee v. Clarke, 2 East, 333; Clanricarde v. Stokes, 7 East, 516. And there are many precedents in the books of entries, where it is omitted. Lil. Ent. 148, 175, 255; Lutw. 132, &c.; Co. Ent. 159. &c., 161, &c. No case has been cited, to show that in a declaration of this nature, it is necessary to aver the uses, to which the forfeiture is to be applied, and the general doctrine seems the other way. 2 Hawk. P. C. bk. 2, c. 2G, § 20; 4 Burrows, 2018. But even supposing that the special averments were necessary, which I do not admit, it is but the case of a title defectively stated, and not of a statement of a defective title. 4 Burrows, 2018.

As to the fifth error assigned, I think it to be clearly amendable, even supposing the description incomplete; for a court of error may amend an error apparent upon the face of the record, if there be sufficient matter to amend by. Rex v. Ponsonby, 1 Wils. 303; Tidd, Prac. (4th Ed.) 652.³ But “the United States” in the verdict seems to be a sufficient description of the plaintiffs in the original action, without further addition. It must be intended to mean “the United States of America.” !

But for the second error, the judgment must i be reversed. ¡

Judgment reversed. 1

Footnotes

2

But see Attorney General v. Rattenbury, 9 Price, 397, where in an information for a pe cuniary penalty for smuggling, it was not stated that the smuggling was “contra formam,” &e.; but only that the forfeiture accrued according to the form of the statute, &c., and it was held sufficient by the court. And a distinction was taken between an information of the crown for a penalty, and a suit by an informer for a penalty. The case of Lee v. Clarke. 2 East. 333, was on the game laws for a penalty by an informer. But in Wells v. Iggulden, 3 Barn. & C. 186, the court of king's bench held the law to be as decided in Sears v. U. S. It was, however, the case of an informer.

3

So it may allow an amendment of a clerical error, though nothing to amend by. De Tastet v. Rucker, 9 Price, 432. In King v. Attwood, Id. 483. Wood. B.. said it was not always a , valid objection that there was nothing to amend, ' as ex. gratia clerical mistakes. i