
    S. J. and W. M. Bayard vs. Smith.
    In an action to recover damages given by statute for a violation of its provisions, it is not necessary to recite the statute ; it is enough for a party seeking to avail himself of the statute to state facts, bringing his case within its provisions, and generally to refer to.it. All the circumstances, however, essential to the support of the action must be alleged, or in substance appear on the face of the declaration.
    Where the action is to recover damages for using false weights, it is not necessary to allege a scienter on the part of the defendant.
    A declaration in case will not be held bad even on special demurrer, although its conclusion be in debt, if without such conclusion enough be stated to make it a good declaration in case; the erroneous conclusion will be rejected as surplusage.
    Demurrer to declaration. The plaintiffs declared in case, for that whereas they, on, &c., at, &c., purchased of the defendant, and ho then and there delivered to them a large quantity of gypsum, being a commodity and article of trade, as and for 380 tons of gypsum; and that the defendant, on, &c., at, &c., in weighing the said quantity of gypsum, in order to deliver the same to the plaintiffs, pursuant to the said purchase, did then and there use certain weights, that is to say, 10 iron weights as weighing in the whole 480 pounds,' and 6 stone weights as weighing in all 520 pounds, which weights were not at the time conformable to the standard of weights of this state, established in the second title of the nineteenth chapter of the first part of the revised statutes of this state, but were different and variant therefrom, to wit, the said 10 iron weights used as aforesaid as weighing in the whole 480 pounds, weighing in fact only 404 pounds; and the said 6 stone weights used as aforesaid as weighing in all 520 pounds, weighing in fact only 447 pounds, contrary to the form and provisions of the said rrcond title of the nineteenth chapter of the first part of the revised statutes; oy reason of which variance and difference, there was then and there produced a large deficiency in the said estimated quantity of 380 tons, to wit, a deficiency of 56 tons and 1240 pounds of gypsum. By means [89] whereof the plaintiffs were injured, and sustained damages to a large. amount, to wit, to the sum of $200; and thereby and by force of the statute an action hath accrued to the plaintiffs to demand and receive of the defendant treble their damages, to wit, the sum of $600. There were three other counts similar to the above. The defendant put in a general demurrer to the whole declaration, and assigned, among others the following special causes of demurrer: 1. That the several counts of the deólaration purport to be in case, and the conclusion of each is in debt: 2. That the reference to the statute, under which the action is brought, is not sufficiently definite and certain.
    
      
      J. Holmes, for the defendant,
    insisted that the declaration is not sufficient to entitle the plaintiffs to recover the damages given by statute for using false weights; a general reference to the statute, under which the action is sought to be sustained, is authorized by express enactments in the actions of debt, assumpsit and trover ; but there is no such provision in reference to the action of case. The plaintiffs should have counted specially on the statute. The declaration is defective, also, in not charging a scienter, and is wrong in its conclusion in adopting the form used in the action of debt.
    
    
      M. T Reynolds, contra
   By the Court,

Nelson, Ch. J.

This action was brought upon the following section of the revised statutes; “ If any person or persons shall hereafter use any weights, measures or beams in weighing or measuring, which shall not be conformable to the standards of this state, established in this title, whereby any purchaser of any commodity or article of trade or traffic, shall be injured or defrauded, such purchaser may maintain an action on the case against the offender; and if judgment shall be rendered for the plaintiff, he shall recover treble damages, with costs of suit ” (1 R. S. 611. §33). No form of declaring is prescribed, nor are directions given in this respect, as is done in respect to certain actions given by the revised statutes (2 R. S. 351, § 1, 2, 3; id. 480, § 1; id. 482, § 10, 11, 12). The declaration, therefore, must be drawn as at common law. As this is a public statute, [90] it is not necessary to recite it. Indeed, it is never advisable to do so, as a mis-recital may sometimes be fatal. It is only necessary for the party seeking to avail himself of it, to state facts which bring his case within the provisions of the statute, and generally to refer to it (1 Saund. Pl. and Ev. 33, 34). All the circumstances essential to support the action must be alleged, or in substance appear on the face of the declaration (1 Saund. 135, n. 3; 5 East, 244; Saund. Pl. and Ev. 830). Testing the declaration in question by these plain rules, there is no difficulty in pronouncing it sufficient; it states with all due particularity the use of weights by the defendant, not conformable to the statute standard, and the injury of the plaintiffs thereby sustained as purchasers from him of a commodity or article of trade.

It is not necessary to allege that the defendant knowingly used false weights. The statute does not require such allegation. A party uses them at his peril; and is bound to see that the weights used by him are at all times conformable to the standard of weights prescribed by law. The form of the conclusion of the counts may be subject to the verbal criticism made upon them, namely, that they follow the precedents in debt; but this is merely surplusage, and not a defect available even on special demurrer. Every thing essential to the conclusion in an action upon the case is stated; the declaration alleges that the plaintiffs have sustained damages, and they are laid sufficiently large to cover the amount sought to be recovered (1 Chitty, 398), which is the principal objection of the conclusion.

Judgment for plaintiffs on demurrer; leave to defendant to amend on payment of costs.  