
    The United States against Robert Allen.
    April, 1810.
    debtwiiuiein favour of the United ¿Stales torecoverthe by^iUsection of the first supplementary act to the embargo act, approved January 9, 1808, for being knowingly concerned in a foreign voyage in violation of that act.
    • su°h action the defendant plead nil debet, and the issue be found against him* the jury* and not the court, are to fix the amount of the penalty.
    THIS was an action of debt, brought to the district court, alleging that the defendant was master of the schooner Amazon, was concerned in fitting her out, and l*iat by his procurement she escaped without any clear-anee or permit, and departed from the port of New-Haven, and proceeded to a foreign port, contrary to the provisions of the embargo acts, particularly the first supplementary act, approved January 9, 1808 ; and demand-ijig the penalty of 20,000 dollars.
    The defendant pleaded nil debet; and the jury found, a general verdict that “ the defendant doth owe,” without assessing damages. On this verdict the court assessed damages, and rendered judgment for the amount against the defendant.
    An appeal being taken to this court, Staples, for the appellant, urged a reversal of the judgment below on. two grounds :
    1. That an action of debt is not sustainable in this case. Peake's Ev. 272. 1 Chitty on Plead. 105.
    2. That if sustainable, the jury, and not the court? ought to have assessed the damages.
    The District-Attorney, contra.
   Livingston, J.

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