
    James Greer vs. Robert Bumpass, (qui tam.)
    
    The plaintiff, in a penal action,' must aver every fact, necessary to sustain the action, and without being' informed of which, the court cannot judge whether he has cause of action or not.
    To subject a defendant to the penalty imposed by law, against merchants, hawkers, and pedlers, for retailing merchandise without licence, the declaration must aver he was a merchant, hawker, or pedler; 'and an averment that “defendant was not a person qualified as the statute required,” will not aid the want of such averment.
    Want of title to sue, is not cured in any case by verdict. Contra — where a good title is defectively averred.
    This was a qui tam action, brought in the circuit court of Wilson county, by Bumpass against Greer, to recover the penalty imposed by statute, against “merchants, pedlcrs and hawkers, for retailing merchandise without license.”
    The declaration demanded 100 dollars (the penalty prescribed,) &c. “For that the said James Greer, did sell and retail articles of merchandise, without first obtaining license according to the act of the general assembly in such case 'made and provided; he, the said Greer, not being qualified as the statute requires, &c., contrary to the form, &c., and thereby an action hath accrued,” &c. On the plea of nil debet, a verdict was returned by the jury for the plaintiff, for the amount of the penalty given by the act of assembly.
    A motion was made in arrest of judgment, and the following reasons assigned, why judgment could not be rendered on the verdict.
    First. The declaration does not charge, that said defendant, Greer, was a merchant, hawker or pedler.
    
    Second. It does not specify any articles of merchandise sold by said Greer, nor the time when sold, in order that it may appear they were articles of foreign merchandise.
    Upon argument of the motion, in the court below, it was overruled, and judgment entered up for the plaintiff.
    
      Rucks for the plaintiff in error,
    contended, that the declaration is substantially defective. This is an action quitam, upon the act of 1803, ch. 3, sec. 5, for the penalty of 100 dollars. It sets out, that Greer did sell and retail merchandise without a license according to the statute, and not being qualified as the statute requires, and contrary to the form of the statute, &c.
    The acts of 1803, ch. 3, sec. 5, and 1813, ch. 98, sec. 5, provide, “that if any merchant, pedlar or hawker, shall sell, &c., without first obtaining license, he shall forfeit and pay 100 dollars,” &c.
    Now the declaration no where describes the defendant as a merchant, pedler or hawker.
    The act of 1804, ch. 11, sec. 2, defines a merchant, ped-ler or hawker, to be one “whose known avocation is that of selling goods, wares and merchandise, and no other description of citizens shall be considered as coming within its per-view or meaning.”
    These statutes are to be taken in pari materia, and the declaration should have described the defendant as a merchant, pedler or hawker, whose known avocation was that of selling goods-, wares and merchandise. It should have g0ne fartlaer, and shown that he- sold such goods, wares and merchandise, as were prohibited bylaw, without a license; for the act of 1804, ch. 11, sec. 1, authorises the citizens of this state, to expose to sale, all kinds of goods and wares manufactured in this state, of the growth and materials thereof, either by wholesale or retail, without incurring this penalty; also, many other articles manufactured without the limits of this state. The act of 1813, ch. 98, sec. 21, au-thorises the farmer or other person, who shall drive stock, or carry any of the produce or manufactures of this state to market, to bring in his return cargo, any articles of merchandize, and vend the same to his neighbors without license or taxation; provided he do not hawk or peddle, or establish himself as a merchant. Now it would not be inferred by the court, that Greer sold such goods, wares and merchandise, as were prohibited by law, without license, but rather such as were allowed.
    The only charge in this declaration is, that the goods were sold contrary to the statute; but what kind of goods they were, or in what character Greer sold them, we are left wholly to conjecture; and we are asked to extend this conjecture against the defendant, and to carry it so far, as to presume that he is guilty of crime — the violation of a penal law.
    In 1 Chit. Plead. 357, it is laid down, that in all actions qui tam, it is material to state the offence charged to have beencommitted or omited, in such a way, as to bring it within the provision of the statute, and all material circumstances necessary to support the action, must be alleged. (Yide 5 Com. Dig. tit. pleader, ck. 76; 1 Com. Dig. act. upon stat. A. 3; 5 Mass. Rep. 266.)
    
      Spiers vs. Parker, 1’ Texm Rep. 141, was an action qui tam for £50, for impressing seamen. Under 19 Geo, 2, ch. 30, they were not liable to be- impressed, unless they had deserted; judgment was arrested, because it was not sufficiently negatived that they had not deserted.
    
      Radford vs. MAnlosh, 3 Term Rep. 636, was an action qui turn, under’ the post horse act 27, Geo. 3 ch. 26. The declaration charged that defendant kept false accounts; the act requires that he shall keep an account of the number of horses employed, the number of miles, the names of the drivers, &c. The judgment was arrested, because the declaration should have charged that the account was false in these particulars.
    
      Davy vs. Baker, 4 Burrow 2471, was an action qui tam for 5.00 pounds, under 2 Geo. 2, ch. 24, sec. 7, against bribery at elections. It provides, if any person shall ask, receive or take any money, or other reward, to vote at elections, &c. The declaration averred, that the defendant did receive a gift or reward, &c. The judgment was arrested— for it must set forth the manner of the bribe.
    In 13 John. 428, it is laid down, “where a penal statute gives no form of declaring, the plaintiff must set forth specially the facts which constitute the offence. (Yide also 13 John. 467, 8.
    O. B. Hayes and Martin for defendant in error.
    The acts of 1803, ch. 35, sec. 2 and 4; 181-3, ch. 98, sec. 2 and 5, and 1819, ch. 37, sec. 1, prescribe the tax on merchants, hawkers and pedlers, previously to their vending-merchandise : and also, prescribe the forfeiture for a violation of those acts.
    The acts of 1804, ch. 11, sec. 1, 2, and the act of 1821, sec. 14, designate the articles of trade, manufactures, &c-which may be vended without a license.
    It is contended in argument, that the declaration is defective, for want of an averment, that the plaintiff in error was either a merchant, hawker or pedler. We think that the declaration is certain and descriptive, to every necessary purpose.
    What, we would ask, in legal contemplation, constitutes-a merchant, hawker or pedler? As to the first character,it is a selling of goods at a fixed and permanent place. The itinerant mode of doing business alone, constitutes the distinction between the former and the latter character; but in either case, it is the selling of goods, which fixes their character, with reference to the acts of assembly, and the offence charged. Neither the stationary merchant, with merchandise on his shelves, or the hawker or pedlar, with them in his pack, would violate any law, until he had sold some portion of them. The selling alone, constitutes the offence, if it be done without license. And it can by no means be material, that Greer be described in the declaration, either as a merchant, hawker or pedler; for the penalty incurred, is precisely the same in either capacity. It is, therefore, well and sufficiently charged, “that the said James Greer, did sell and retail articles of merchandise, without first obtaining a license according to law, &c.”
    We think the argument, that the declaration should aver, that Greer sold articles prohibited by law, is equally unfounded. Th.e statutes of 1803, 1813 and 1819, before cited, prohibit wholly the retailing of merchandise without license. The acts of 1804 and 1821, extend the privileges of the citizen, by withdrawing from the prohibition the articles therein enumerated. Now if the articles vended by Greer, were such as are embraced in the latter acts, it was wholly a matter of defence, and was by no means a necessary, or even a proper averment. We take no rule to be better settled, than the one now contended for, that where a person is excepted out of the penalties of a law, by a proviso, or a subsequent clause, even in the same statute, but more obviously in a subsequent statute, that it is wholly matter of defence: and, therefore, no averment is necessary, that the defendant is not within the exception. (See Comyn's Digest 446, A. 3; 1 Term Rep. 141; 1 Chy. on Pleadmg‘%29; 8 John. Rep. 41, and 13 John. Rep. 428.)
    But aside from those considerations, we rely upon the aid of the statutes of amendment and jeofail, which extend equally to penal as to civil actions; for which we refer the court to Martin qui tam vs. M Knight, 1 Ten. Rep. 382, 3; 1 Douglass 115; Strange 1227; 4 Mass. Rep. 437.
    
    We contend most confidently, that after verdict, (at any rate,) this declaration is sufficient. For, although defects, imperfections or omissions in pleading, may occur, which would be fatal on demurrer; yet, if the issue joined, be such as necessarily required proof of the facts, so defectively or imperfectly stated or omitted, and without which it is not to be presumed the judge would direct the jury to give the verdict, or that the jury would have given it, such defect, imperfection or omission, is cured by'the verdict. (Anderson vs. jReeci, 2 Ten. Rep.; 1 Corny rds Digest 578, in note, and the numerous authorities there cited.)
    In the case before the court, whatever might have been the fate of the declaration on demurrer, the court will infer after verdict, that the avocation of merchant was proved upon Greer; and that all else, which was material tp sustain the action, was proved, otherwise the jury would not have found, or the court below pronounced judgment as in the present case. This course of decision is absolutely necessary, to the safety of litigants. A defendant should not be permitted, except in extreme cases, to plead to a declaration¡ and treat it as a good one, in all the courts below; and finally, when he has exhausted all his experiments there, to arrest the judgment here, at the cost, and perhaps ruin of his adversary.
    The cases of Spears vs. Parker, Radford vs. MTntosh, and indeed the whole of the cases relied on by Mr. Rucks, in the conclusion of his argument, go upon the want of a sufficient averment of the particular acts done, which were relied upon as the basis of the action, and not the particular character or occupation of the actor; and do not apply to this case, as we consider. For it is not pretended, even in argument, that the fact of Greer’s selling goods, without a license, is not averred.
   Crabb, J.

delivered the opinion of the court. It is said the court below erred in not arresting the judgment; and of that opinion is this court. This being an action upon a statute by a common informer, “the plaintiff in his declaration ought,” in the language of Chief Baron Comyns, (Com. Dig. title Pleader 676,) “to aver every fact, without being informed of which, the court cannot judge whether the plaintiff has cause of action.” Does it appear then in this, declaration substantially,for we disclaim all unseemly nicety and strictness, that the offence of retailing merchandise, as forbidden by the statute, was com-]->y Greer? Look to the acts of 1803, ch. 3, sec. 4, 5; 1804, ch. 11, sec. 2; and 1813, ch. 98, sec. 4, 5, 21— and you perceive, that only persons of a particular character, or engaged in specified pursuits, are liable to the action. The persons subject to it are merchants, hawkers and pedlers. Nothing is more natural then, than that the court, before they can consent to enter judgment against the defendant, should desire to know whether he is a merchant, hawker or pedler: for they are not willing to pronounce such judgment against a citizen who has “retailed articles of merchandise,” unless he comes within one of these denominations.

The plaintiff in an action must exhibit, in his declaration, a title to what he claims. He has no such title, except against a merchant, hawker or pedler. W ant of title is not ■cured in any case by verdict. Defective averments are, ■because it is presumed, that, although the allegations are not made with entire certainty and precision, they were proved to the satisfaction of the jury. But this principle cannnot be so used, as to dispense with an averment material to the plaintiff’s right of action, as is desired in this instance. It cannot be presumed, that the plaintiff was proved to be a merchant, &c. because, not being averred, •there was no issue upon it; there was no such matter in question, and such proof was not only unnecessary, but would have been impertinent.

It is supposed, however, that the statement “that defendant was not a person qualified as the statute requires,” and that the act charged was “contrary to the form of the statute,” are averments, though deficient ones, of the character of the plaintiff. To suppose so would be to proceed upon conjecture, that the pleader may so have intended, not upon the meaning of the terms. “The defendant was not qualified as the statute requires,” says the declaration: — How can this be made to méan, that he was a pedler, hawker or merchant?

The argument must go upon the ground, that all persons in society are liable to the forfeiture, except they have some specified qualification; whereas, on the contrary, all persons in society are exempted from it, unless they are ped-Ires, hawkers or merchants. It is not improbable that the declaration was drawn in imitation of some form prescribed in actions founded upon the English game laws. Or we may with some plausibility conjecture, that the pleader-, when he speaks of defendant’s not being qualified, intended to convey the idea that he had no license. But what we wish to know is, whether he is a person who is required to obtain a license.

We have examined the books referred to on both sides: For the Plaintiff—1 Term 141, 145; 3 Term 636; 1 Chitty’s Pleadings, 357, 359; 1 Blackstone’s Com. 89; 13 John. 428, 468; 5 Mass. 270; 2 Mass. 270; 4 Bur. 2471; 2 Strange, 999. For Defendant—1 Term Rep. 332, 381; 1 Com. Dig. (A. E.) 447, 578; 1 Chit. P. C. 229, 320, 402, 3; 1 Doug. 115; Strange, 1227; 4 Mass. 447, 8. We would also refer to Morrell qui tam vs Tuller, 7 John. Rep. 402; Cole vs Smith, 4 John. 196.

Upon the whole it is clear, that the declaration is radically defective.

The judgment of the circuit court is reversed, and this court, proceeding to do as that court should have done, arrest the judgment upon the verdict of the jury.

Judgment arrested.  