United States v. Allen

24 F. Cas. 772, 1 Brunn. Coll. Cas. 94, 4 Day 474

Opinion

Livingston, J.

This penalty may be recovered as under the collection law. The 89th section of that act

(a) authorizes a civil action only to recover the penalty for a breach. The word “ suit” implies, ex vi termini, a civil action. No part of the collection law contemplates an indictment. The difficulties suggested are real; but the statute has prescribed this course. It has been held by the circuit court in Vermont and in Virginia, that the District-Attorney had no option, but was obliged to bring an action of debt, until the enforcing law passed. Till then he was obliged to proceed by suit; and there is no suit adapted to the case but debt.

As to the other point, his honour said, he chose to keep the case sub judice until the next term, and learn the practice in Virginia and New-York, where similar actions had been brought. He added, at the same tune1, that he had an opinion of his own, which was, that thfc jUIT ought to have assessed the damages.

At the next term, the judgment of the district court in this case was reversed ; one of the grounds of reversal being, that the jury ought to have assessed the damages.

Scat. U. S. vol. 4 o. 427,