
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    Gilbert v. Hendricks.
    A .justice of peace was sued, for the penalty imposed by act of assembly, for retailing spirituous liquors; and it was proved that the justice had, on one occasion, sold two half pints of whiskey, of his own manufacture, at the particular request of the purchaser, who did nof drink the same at the house of the justice. After a verdict for the defendant, a new -trial was refused, on the ground that it was a hard action, as the ■defendant appeared to act ignorantly, and not wilfully.
    Debt to recover the penalty imposed by an act of February, 1791, against'the defendant, as a justice of the peace for Lexington district, for retailing spirituous liquors. The act prohibits the retailing of spirituous liquors, or keeping of a tavern, by any justice of the peace, or any of his house or family, or for his emolument; or the granting of a license to retail, to any such.
    It was proved at the trial before Tivezevakt, J., in Lexington district, that defendant was a justice of peace, and that hpjhad sold a quart of whiskey, the produce of his own farm, at one time, which was taken away to be drunk at another place ; and another quart of whiskey at another time, which was part drunk at his house, and part taken away to be drunk elsewhere. The jury found,;a verdict for the plaintiff for fifteen dollars. The judge sent the jury out to reconsider their verdict, and informed them that they could not find for the plaintiff less than the forfeiture prescribed by the act. The jury retired, and some time after, brought in a verdict for the defendant, of not guilty.
    The motion in this court was to set aside the latter verdict, and for leave to enter up judgment on the first, for the amount of the penalty, or for a new trial.
    Egaij, for the plaintiff,
    cited Trials per Pais, 298. Plowden 114.
    Stark, E contra.
    By the act of 1791, the whole penalty goes to the informer. The testimony of the witnesses was not very satisfactory, that the defendant retailed spirituous liquors in violation of the act. It was a very hard action. The defendant had no mind to transgress. The plaintiff not to be favored. The suit is not to vindicate the law, but proceeds from base principles of enmity and self interest. The jury had a right to reconsider their verdict, and to change it. Cited Barnes, 425 Philips qui tam vs. Scullard. Action for £50 penalty, for selling one half pint cherry brandy. Verdict for defendant contrary to evidence. The court refused a new trial, it being a hard action, and the defendant having acted unwarily, without any evil intention. Once or twice selling spirituous liquors does not make a man a retailer, especially his own manufacture.
   Bat, J.,

delivered the resolution of the court, 28th April, 1807, Welds, J. absent. The case in Barnes very like this. It certainly appears to be a hard action. If the jury could conscientiously acquit the defendant, this court will not lend its aid to burthen him with this penalty, when it appears that he erred through mistake, or inadvertency ; and that he never made a practice of retailing, and had no apprehension that he was breaking the law.

Motion discharged.

Note. Qmrce. Whether the- court could grant a new trial for the State on acquittal? See 1 Burr. 11, 12. Verdict against evidence, refused to be set aside. The action frivolous and vexatious, and real damage small. Vid. 1 Burr. 54, 664. See 2 John. 46. Justice done. If a penalty is given by statute, but no action for the recovery of it is therein given, an action of debt will lie for such penalty. Poph. 175.  