Virginia v. Smith

28 F. Cas. 1225, 1 Cranch 22

Opinion

KILTY, Chief Judge, and CRANCH. Circuit Judge,

allowed the amendment to be made.

MARSHALL, Circuit Judge,

contra. The grounds upon which the court allowed this amendment were, that it was not in a matter of substance. An information is in the nature of an indictment. The object .is the punishment of the offender. The fact, therefore, is the substance of the charge, and the person to whom the benefit is to accrue is immaterial. It differs from an action of debt brought by the commonwealth for the penalty. There the right of action is in consequence of the clause designating to whom the penalty shall accrue. It is part of the plaintiff’s title; and, if by law, the penalty did not accrue to the plaintiff, he could not recover. But, here the offender ought to be convicted whether the penalty accrue to the commonwealth or not.