
    Stephen Peabody, Plaintiff in Error, versus Elna Hayt.
    The commanding officer of a militia company authorizing the clerk of the company to require of the keeper of a boarding-house within the limits of the company, information of the names of persons residing with him, in order to their enrolment, must give a special authority for the purpose.
    An action by the clerk against the keeper of such a house for the penalty for refusing such information, must be in case for a tort, and not in assumpsit: it must allege the offence to be against the form of the statute,, and must set forth the uses to which the penalty is by law appropriated.
    This was a writ of error to the Court of Common Pleas for this county, brought to procure the reversal of a judgment recovered by the said Hayt against the plaintiff in error.
    The original action was brought by Hayt, as clerk of a company of militia in Boston, for an alleged forfeiture of twenty dollars by Peabody, under the twentieth section of “an act for regulating, governing, and training, the militia of this commonwealth,”  passed March 6, 1810, requiring the keepers of boarding-houses to disclose the names of persons residing -and boarding in then houses to the commanding officers of the militia companies, (om prehending such houses within the company limits, or to persons acting under the orders of such commanding officers.
    The declaration sets forth the substance of the provision of said section, and alleges that on the 11th day of October, 1810, said Hayt, in pursuance of the written order of the commanding officer of the company, within whose bounds the said Peabody’s boarding-house then was, (which order was in these words, viz. • “ Boston, 11th Oct. 1810. Sergeant Bina Hayt, — You are hereby ordered to warn the company under my command to appear at the usual place of parade on Fort Hill, on Tuesday, the 16th inst., at 1 o’clock, P. M., armed and equipped for company duty James B. Marston, captain,”) requested said Peabody to * give information of the names of persons residing [ * 37 ] with him liable as aforesaid, which said Peabody then and there refused to do; and the said Hayt further saith, that there then resided in said Peabody’s boarding-house divers persons so liable, which said Peabody well knew, but whose names were un known to said Hayt; whereby, and by force of the law aforesaid, an action had accrued to said Hayt to have and demand of said Peabody the sum of twenty dollars; and the said Peabody, then and there, in consideration of the premises, became liable, and in consideration thereof promised the said Hayt to pay him the said sum on demand ; yet, though requested, &c.
    Upon the general issue of non assumpsit, joined in the court below, a verdict was found for the plaintiff, and judgment rendered thereon, for the sum of twenty dollars and costs.
    The plaintiff in error assigned the following errors:—1. That the action was assumpsit, instead of case. — 2. That it does not appear, from the said declaration, that Hayt had any orders from his commanding officer to make application to Peabody for the names of persons boarding with him, but only to warn the company under his command, viz., such persons as were actually enrolled in the company. — 3. That it is not set forth in the said declaration for whose use the- action was brought, nor how the forfeiture, if recovered, was to be appropriated. —- 4. That the issue tried in the action was immaterial. — 5. The general error, under which he shows that there is no allegation in the said declaration, that the facts charged therein are against the form of the statute.
    The defendant in error pleads in nullo est erratum.
    
    
      Fuller for the plaintiff in error.
    The statute gives the clerk of the company an action of the case for the forfeiture. This could never intend an action upon an assumpsit, for which there is no consideration, and between which and case for a tort there is a very wide distinction. The penalty is given, when the keeper of a boarding-house refuses information when applied to for that purpose by the commanding officer of the company, or by [ * 38 ] any person acting under the * orders of such commanding officer. The orders here must intend orders for this special purpose. Enrolment must precede a warning to appear at a muster, but the clerk had no authority to enroll, which belongs exclusively to the commander of the company. The clerk’s authority to warn could not then extend to any boarders in Peabody’s house, who had not been previously enrolled. The statute gives one fourth only of the penalties prescribed by it to the clerk, and the residue is to be paid over to the commanding officer. It is essential that this be stated in a declaration for a penalty. This being in its nature an action for a tort, the issue should have been not guilty; and the issue of non assumpsit is wholly immaterial. And in such an action it is essential that the fact or omission be alleged to be contra formam statuti. 
      
    
    
      Whitman for the defendant in error.
    The allegation of a promise to pay may be rejected as surplusage. The order to warn all persons liable included the authority to demand the names of inmates in boarding-houses; as without their names they could never be warned. The thirty-seventh section of the statute directs how the clerk is to distribute the fines and penalties; but it is his right and duty to collect them. If he neglects or refuses to pay them over, an action lies against him ; but this is nothing to the person who has incurred a forfeiture. The issue is not immaterial, but merely informal ; and this is cured, as are all the defects suggested, by the verdict, and particularly the omission of contra formam statuti. The jury, having found the promise, have thereby found every thing necessary to give it validity and binding force.
    
      
      
        Stat. 1809, c. 10S.
    
    
      
       2 East's C. L. 239.
    
   Curia.

Several of the objections, suggested for the plaintiff in error, are fatal to the proceedings brought before us by the writ in this case.

The intention of the section of the statute, on which the action for the penalty was brought, is to enable the commanders of companies to ascertain the persons within their districts liable [ * 39 ] to do military duty, in order that they may be * duly enrolled by him. This inquiry he may make by another; but in that case he must give a special authority for the purpose, and the person making the inquiry, if another than the commanding officer, must produce his authority, or the keeper of the boardinghouse is not bound to give the information required. This is a very distinct service from that of warning the members of a company already enrolled to attend a muster. Perhaps both services might be performed at the same time; but the delegating a power to enroll soldiers is a different thing from ordering the company to be warned, and ought not commonly to be intrusted to a warrant officer.

The action was misconceived. The statute gives an action upon the case for a tort, but no assumpsit is implied.

When a penalty is given by statute, and a civil action is provided for its recovery, it is essential, not only to set forth the provision of the statute, as was done in the case before us, but there must be a direct allegation that the offence, for which the penalty is given, was committed against the form of the statute, &c.

The declaration was also essentially defective in this case, in that it did not set forth the uses to which, by the statute, the penalty is appropriated. The clerk could not recover it to his own use; and if he did, the other person or persons entitled would have no remedy against him for their shares of the penalty.

Judgment reversed. 
      
      
         [Commonwealth vs. Inhabitants of Stockbridge, 11 Mass. Rep. 273. — Common wealth vs. Inhabitants of Springfield, 7 Mass. Rep. 9. — Commonwealth vs. Morse, 2 Mass. Rep. 388.—Ed.]
     