
    *Sims v. Alderson.
    August, 1836,
    Lewisburg.
    Statutory Penalty — Recovery—Action of Debt. — A statute gives a penalty, to be recovered by bill, plaint or information: Held, the penalty may be recovered by action of debt.
    Same — Same—Declaration—Sufficiency of. — What declaration will be sufficient to maintain an action under the statute giving a penalty against an officer conducting an election, who shall so interfere in the election as to shew partiality for any of the candidates. ■
    Arrest of Judgment — Reversal—Judgment in Appellate Court. — After verdict for the plaintiff, the defendant moves for a new trial, and also in arrest of judgment; the court below, without deciding upon the motion for a new trial, is of opinion for the defendant upon the motion in arrest, and enters judgment in his favour, which is reversed in an appellate court: That court, upon overruling the motion in arrest, will not send the cause back for a decision ui>on the motion for a new trial, but will proceed to give final judgment for the plaintiff.
    Edward Sims, who sued as well for the commonwealth as for himself, brought an action in the circuit court of Fayette county against George Alderson sheriff of the said county, to recover a penalty of 666 dollars 66 cents under the 33d section of an act concerning general elections in this commonwealth, passed April 2d 1831. Supp. to Rev. Code, ch. 88, p. 112. The declaration was in debt, and contained three counts. The first count alleged that at the August election for the county of Fayette in 1831, the said Edward Sims, being a candidate to represent the counties of Fayette and Nicholas as a delegate in the lower house of the general assembly then next succeeding, those two counties being by *law entitled to send one delegate, and the said George Alderson being sheriff as aforesaid and conductor of said election, did interfere and shew a great partiality in favour of other candidates, and against the said Edward Sims, by advising and urging persons to vote against the said Edward Sims, and by refusing to receive votes of persons known to be favourable to him, though duly qualified, and urging their right to be heard in said election, and have their votes received and recorded in favour of the said Edward Sims. After which there was a further allegation that the said George Alderson sheriff as aforesaid, not regarding the statute, did not receive the said votes qualified as aforesaid, but wholly refused so to do, contrary to the form of the statute.
    The second count alleged that the said George Alderson sheriff as aforesaid, again disregarding the statute, on the day of the election in Eayette aforesaid, and when the said Edward Sims was a candidate as aforesaid for the suffrages of the qualified voters of Fayette and Nicholas for a seat in the lower house of the legislature, while conducting the said poll, did, by colour of his office, check the voters, and refused to receive more votes, and closed the polls before sunset, without making due proclamation, and without calling upon voters to come forward, in order to defeat the election of the said Sims, who had voters at the polls ready to give in their votes, but which were refused by the said George Alderson sheriff as aforesaid.
    The third count alleged that the said George Alderson sheriff as aforesaid, again disregarding the statute, while he .was conducting the election as aforesaid, did interfere and shew partiality in said election, by openly delivering a public speech in favour of one of the candidates for the suffrages of the people, and denouncing the pretensions or claims of the others, and endeavoured, by other unlawful means, to influence the election of the plaintiff. *The defendant demurred generally to the declaration, in which demurrer the plaintiff joined; and the defendant also pleaded nil debet, on which issue was joined. Upon argument of the demurrer, it was overruled, and a jurj’ were then impaneled to try the issue, and found a verdict for the
    
      plaintiff. The defendant moved the court for a new trial, and also filed errors in arrest of judgment. Upon the argument of those errors, the court considered them sufficient, and .gave judgment for the defendant. To that judgment a supersedeas was awarded.
    William A. Harrison, for the plaintiff in error.
    In the transcript of the record, it is stated that the errors filed in arrest are not to be found; but the opinion given by the court below upon the argument of those errors, shews that the motion in arrest involved merely the question raised by the demurrer to the declaration. The question is, whether the action of debt can be maintained. The statute creating the penalty uses the words “to be recovered by bill, plaint or information,” but the term bill covers the action of debt. 2 Chitty’s Pleading 13. Besides, it is a general rule that if an act imposes a penalty and prescribes no particular remedy, debt will lie. 13 Peters-dorff’s Abr. 281.
    William Smith and Johnson, for defendant in error,
    said, that even if it should appear that in England the term bill covered the action of debt, that was not enough. The question would remain as to the intention of the legislature of Virginia. They called the attention of the court to the act in 1 Rev. Code, ch. 51, ? 28, p. 163, and to the 31st section of the act of 1831, Supp. to Rev. Code, ch. 88, p. 112. It would be seen by these sections, that debt is expressly given wherever it is meant to be given at all. And the 31st section of the act of 1831 shews that the words bill, plaint or information were not considered to embrace the action of debt. If *those words were insufficient, by themselves, to give debt for the penalties created by the 31st section, they must be equally insufficient in a case arising under the 33d section. The same words, used in two clauses of a statute, must have the same meaning in each clause. But if debt could be maintained, the declaration is still radically defective. All the circumstances necessary to support the action must be laid. Mere recital is not enough: there must be express averments. The first count does not aver that there was an election, nor that the defendant conducted the election. The words being &c. are mere recital. Nor is there any averment that the defendant knew the rejected voters to be qualified. This is vital. Newell v. Commonwealth, 2 Wash. 88. The present, it should be remembered, is a penal action, and to be taken strictly.
    
      
      Statutory Penalty — Recovery—Action of Debt. — The action of debt is the peculiarly appropriate action to recover a penalty by statute. To this effect, see principal case cited in Russel v. L. & N. R. Co., 93 Va. 326, 25 S. E. Rep. 99. And in West v. Rawson, 40 w. Va. 482, 21 S. E. Rep. 1019, it is said: “If the statute prohibits the doing a thing under a penalty, and does not prescribe any mode of recovery, an action of debt may be maintained. Com. Dig. ‘Action upon Statute,’ F: 2 Bac. Abr. ‘Debt,’ A: Sims v. Alderson (1836), 8 Leigh 479.”
      See monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
    
      
      Judgment — Motion in Arrest — Motion for New Trial-Effect of Making Both Motions Simultaneously.— Where a motion in arrest of judgmentand a motion for a new trial are made at the same time, and are acted upon by the court at the same time, the order in which they may be considered by the court is not material; as under such circumstances the motion in arrest of judgment cannot be regarded as a waiver of objection to its verdict, or as an admission that the verdict is unobj ectionable. Gerling v. Agric. Ins. Co., 39 W. Va. 689, 693, 20 S. E. Rep. 691, 169; Sweeney v. Baker, 13 W. Va. 217, both citing the principal case.
    
    
      
      The section referred to is in these words: “If any sheriff or other officer conducting: an election shall, directly or indirectly, so interfere in the election of senators or delegates as to shew partiality for any of the candidates, he shall forfeit and pay the sum of 666 dollars 66 cents, to be recovered by bill, plaint or information in any court of record, one moiety to the use of the informer, and the other to the use of the commonwealth for the benefit of the literary fund." — Note in Original Edition.
    
   CARR, J.

I was very much struck with the arguments of counsel, and their objections taken to the form of the action and the defects of the declaration in this case; but upon reflection and examination of authorities, I have satisfied myself, 1. That the action of debt ma}r be brought on the statute, it being comprehended in the word bill. 2. That the count first laid in the declaration is good on general demurrer, though I do not believe it could have withstood a special demurrer. It is defective in details, but does not, I conceive, “omit any thing so essential to the action as that judgment according to law and the very right of the case cannot be given.” 3. I i am of opinion that we ought not to send the case back for a decision on the motion for a new trial; that motion being, as I think, waived by the errors in arrest, and rendered impracticable by the other circumstances which have taken place. I refer to the more extended views of the president in this case, of which I entirely approve, and to the authorities he cites, which I have examined.

*TUCKER, P.

This is an action brought against the sheriff of Payette under the statute, for partiality in conducting an election to the prejudice of the plaintiff, who was a candidate at the August elections in 1831. The defendant pleaded not gffilty, and a jury of the country have negatived that plea, and found him guilty of partiality in the conduct of the election, against the form of the statute. Having failed to acquit himself before his peers of this serious charge, he now seeks to arrest the judgment for the penalty, on the ground that the declaration is defective.

The first objection goes to the foundation of the action. It is contended that the action of debt is not within the provisions of the statute, which only authorize the recovery of the penalty by bill, plaint, or information ; that we have no proceeding by bill or plaint; that the remedy provided thereby is that by information alone; and that where a specific remedy is pointed out by the statute for the recovery of a penalty, that remedy only can be pursued.

It might perhaps be questioned whether this last position, true as it may be as a general principle, would govern this case. For it is laid down in the most ancient authorities, that “though the statute which gives the action for an escape limits the recovery by writ of debt, which imports, an original, yet debt by bill against him in custod. mar. will lie; for it is within the equity of the statute.” 1 Roll. 536, 1. 50, cited 1 Com. Dig. 438. A fortiori, as. debt is the peculiarly appropriate action in these cases (2Bac. Abr. Debt, A. ; 13 Peters-dorff’s Abr. 281), it is fair to conclude that if the action given is by bill, the action of debt will lie, by the equity of the statute.

I shall not, however, rest upon this ground. I am of opinion that the act of assembly intended the action of debt, by the language which it has used. That language has been handed down from century to century, ^having, found its way into the early statutes giving actions for the recovery of penalties. This is obvious from the use of the word plaint, which is not designed to refer to proceedings in inferiour courts, but to the court of king’s bench; for we are told that ‘ ‘anciently the process of trespass in the king’s bench was founded on a plaint or queritur entered on the records of the court. ” 1 Tidd 166, 167. But although this proceeding is no ltmger in use, yet the old formula of enactment as to proceedings under penal statutes, seems to be still retained in England, as well as with us. With respect to the term bill, that term, in law language (as here used) distinctly indicates an action by bill of Middlesex in the court of king’s bench. This bill of Middlesex was equally applicable to actions of debt, assumpsit &c. but as the action of debt is, as has been shewn, the most approved action for a penalty, where another is not pointed out, so the word bill here would be construed to mean bill in debt, or, in other words, an action of debt in the king’s bench. Now if, in an english statute, debt in the court of king’s bench would be vm-derstood by the word bill, how are we to understand it here? Are we to reject it entirely, or are we not rather to interpret it to mean debt in our courts of record? It is very well known that in our proceedings we have rather followed the forms of the king’s bench than' those of the common pleas; and hence it is that in our courts, as well as in our legislature, we often use phrases which belong to the formep rather than to the latter. This very word bill,— though we have no bill of Middlesex, — is used in the same way in our entries as in the king’s bench. Thus when judgment is entered for the defendant, the entry is that the plaintiff take nothing by his bill, but for his false clamour be in mercy &c. The entry in the common pleas would be, “that the plaintiff take nothing by his writ;’’ a form which perhaps was not followed with us because we do not com-menee with an ^original writ, r but begin the suit with a capias, according to the course of the king’s bench where the defendant resides in Middlesex. 1 Tidd 167.

It is said, however, that in this very statute, in another section, debt and bill are both mentioned. Supp. to Rev. Code, ch. 88, 3 31. The same thing is to be seen in english statutes. 4 and 5 Philip and Mary, cited 6 Co. 19, a. And the case already cited from Rolle shews that where debt is mentioned in the statute, it means peculiarly debt by original, that isi debt in the common pleas, though by the equity of (he statute the court extended it to the bill of Middlesex, that being, in effect, debt by bill in the king’s bench. There' is therefore no incongruity in the english statute, where it gives the remedy both by action of debt and by bill; since the former means debt in the common pleas, and the latter, debt in the king’s bench. Our statutes indeed, enacted at an early day (in 1784 and 1785) and which are the prototypes of the act in Supp. to Rev. Code. ch. 88, follow this language with no very great propriety; but it is obvious that it was taken, by the learnéd persons who then drew our statutes, from the familiar phraseology of the british statutes, under the impression that it was safest to follow the established formula. Be this as it may, we must take it that as the word bill meant debt in the english statute, it must have been designed to mean the same in ours. And as to the different phraseology in the two sections, it is easily explained when we attend to the fact that one of them was enacted in 1784 and the other in 178S. Upon the whole, therefore, I think that the action was properly brought._

*1 am not less satisfied that the first count of the declaration is good upon general demurrer. It would not have stood the test of a, special demurrer indeed, because the defendant might have demanded, if he chose, more certainty and preciseness in the plaintiff’s charge. He might have called upon him for specifications which would have enabled him better to understand the grounds upon which he was to be assailed. This is precisely the object of a special demurrer. It is the mode furnished the defendant, on the one hand, of compelling his adversary to give him fair, full and distinct notice of what is to be proved against him; and it is the protection furnished the plaintiff, on the other, against objections not going to the gist but only to the form of the action, which the defendant, in all fairness, should disclose, that they may be amended, instead of concealing and withholding them for the purpose of securing him against a judgment, m the event of a decision against him by his peers. This I take to be the true spirit of the statute of jeofails, in providing that upon demurrer “the court shall regard no other defect or imperfection in the writ, return, declaration or pleadings, than what shall be specially alleged in the demurrer as causes thereof, unless something so essential to the action or defence be omitted, as that judgment according to law and the very right of the case cannot be given, ’ ’ In this case every essential to the action is stated; and whether imperfectly or not, is unimportant; for the distinction Is between an imperfect or informal statement of a good cause of action, and the statement, however formally made, of a defective cause of action. The plaintiff sets forth that he sues qui tarn; he demands the precise penalty imposed by law; he states that at the August elections for Fayette in 1831, he was a candidate for the house of delegates, and that the defendant, being sheriff and conductor of the election, did interfere

and shew partiality in favour *of other candidates and against him,

“by advising and urging persons to vote against him, and by refusing to receive votes of persons known to be favourable to him, though duly qualified, and urging their right to.be heard in the said election, and to have their votes received and recorded in his favour.” What is there omitted in this declaration, so essential to the action, as that judgment according to law and the very right of the case cannot be given? I do not perceive. The facts of the election being held, of Sims being a candidate, and of Alderson being sheriff, are indeed set forth by way of recital, as they might well be; but the fact that the defendant did interfere and shew partiality, which is the gist of the action, is set forth directly and not by way of recital; and the cases agree that this is sufficient. Rulgham v. Light-foot, 1 Call 250. Moreover, this allegation is in the very language of the act, and it is followed by the specification that the defendant interfered by advising and urging persons to vote against the plaintiff. I say nothing of the other specification, as wanting perhaps some ingredients to render it complete. But the first is sufficient;1 and though on special demurrer it would be considered too general, as the defendant had a right to know what particular persons he was charged with advising, in order to enable him the better to defend himself, yet as he did not choose to demur specially, he cannot be received to make the objection on general demurrer. I am therefore of opinion that the court properly ■overruled the demurrer, and a fortiori, most improperly arrested the judgment. It must therefore be reversed, and judgment entered for the plaintiff, without regard to the motion for a new trial, which the defendant must be considered as waiving by moving in arrest of judgment. It is well settled that a party cannot move for a new trial after a motion in arrest (4 Barn. & Ores. 160), and though in this case the motions were probably simultaneous, yet as the party has, upon *his motion, actually had the judgment arrested erroneously, he cannot now go back to his motion for a new trial. It is not perceived how this consequence can be avoided. This court, in reversing the judgment in arrest, must give judgment for the plaintiff, which at once occludes the motion for a new trial; nor do I see how we could reverse and send the cause back for the court to consider that motion. Such a practice would lead to embarrassing difficulties and serious consequences, particularly as it respects the county courts, since the same court that tried the cause could rarely be assembled to pronounce on the motion; and indeed it would be mischievous in the extreme, if even the same judge, after a lapse of years, was called upon to decide it, and to sign a bill of exceptions setting forth the facts.

I am therefore, on the whole, of opinion to reverse the judgment, and enter judgment for the plantiff.

The other judges concurring, judgment of circuit court reversed, and judgment entered for the plaintiff. 
      
      Note by the president. See.also 21 James 1, ch. 4, •where the terms used are “action, hill, plaint or Information;” and Id. ch. 22, § 46. where the words used are “debt, hill, plaint or information.” These statutes are quoted 4 T. R. 66, 70.
     