
    [Lancaster,
    May 29, 1824.]
    BUCKWALTER against The UNITED STATES.
    IN ERROR.
    In an action upon the aet of congress of 19th April, 1816, imposing new duties on licensesto distillers of spirituous liquors, the term during which the defendant used the still, and the sum claimed for double duties, should be stated in the declaration ; and the omission to state them, is not cured by verdict.
    A declaration demanding two distinct penalties and double duties for the use of two separate stills, is bad; the use of the stills being a single act, for which a single penalty can be recovered.
    The Court of Common Pleas, has jurisdiction of actions arising under the act of congress above-mentioned.
    The arbitration act of 20th March, 1810, does not embrace actions founded upon penal statutes. Therefore, if the defendant arbitrates the cause-, and upon an award being filed against him, enters an appeal, and the verdict, on the trial of the appeal, be for a less sum than the award, it nevertheless carries costs.
    The United States brought an action of debt in the Court of Common Pleas of Lancaster county, to recover a penalty for distilling without license, and for double duties, not exceeding two hundred and fifty dollars. The declaration calls on the defendant to answer the United States of a plea, that he render under them the sum of two hundred dollars, which to them he owes, and from them unjustly detains. It then sets out, that by the act of congressof 19th April, 1816, laying new duties on the distilling of spirituous liquors, it is enacted, “that if any person shall after the 30th day of June, then next following, use or cause to be used ajpy still or stills or other implements as aforesaid, in distilling spirituous liquors, or shall be the owner of, or have under his superintendence, either as agent or otherwise, any still or stills, or other implements, as aforesaid, which shall after the said day have been used as aforesaid, without having a license therefor, as aforesaid, continuing in force for the whole time, during which such still or stills, or other implements, as aforesaid,shallhavebeenthusused,or shall keepduring any period for which a license has been granted to such person, any still or boiler, or other implements, liable to duty, in their fixtures, in a situation for use, without having first obtained a license for the same, agreeably to the provisions of this act, every such person shall forfeit and pay the sum of one hundred dollars, together with double the amount of duties, which would have been payable for the term, during which such still or stills, or implements, as aforesaid, shall be thus used or kept in a situation for use, as aforesaid, had the said still or stills, or implements, as aforesaid, been entered according to the provisions of^this act, to be recovered with costs of suit.” The declaration then proceeds thus: “ And the United, States, in fact say, that after the aforesaid 30th June, and before the institution of this suit, to wit, on the 10th day of April, 1817, at the township of Caernarvan, in the county aforesaid, the said John Buckwalter, then and there did use a certain still, in distilling spirituous liquors, of the capacity of ninety seven gallons, including the head thereof, and had under his superintendence the said still, which after'the said day was used as aforesaid, without having a license therefor, whereby, and by force, of the act aforesaid, an action hath accrued to the said United States, to have and recover of the said John Buckwalter, as well the said forfeiture of one hundred dollars, as double the amount of duties, which would have been payable for the term during which such still has been used, had the same been entered according to the provisions of this act.”
    The second count of the declaration, lays another offence, and claims another forfeiture of one hundred dollars, for using another still of the capacity of sixty three gallons, in distilling spirituous liqours, and claims the double duties in totidem verbis.
    
    The cause was arbitrated, under a rule entei’ed by the defendant, and the arbitrators awarded the sum of 233 dollars and 60 cents, in favour of the plaintiffs. The defendant appealed from the award, and the cause afterwards came on for trial in the Court of Common Pleas, when the jury found a verdict for the plaintiffs for 215 dollars and 14 cents; 200 dollars, the amount of the two penalties, and 15 dollars and 14 cents, the amount of double duties claimed on both stills.
    On motion of the counsel for the defendant, the court below granted a rule to show cause why the judgment should not be entered without costs, which was afterwards discharged.
    On the argument in this court, Wright, for the plaintiff in error, contended,
    1. That the Court of Common Pleas had no jurisdiction of the parties, or the subject matter in contest in this suit. Act of Congress of 19th April, 1816, sec. 13,14. 6 Laws of United States, 74. Act of 3d March, 1815. 4 Laws of U. S. 854.
    2. That if the court had jurisdiction, it ought to appear upon the record.
    3. The declaration was defective, in not stating the length of time during which the plaintiff in error used the stills; nor, for what length of time he was liable to double duties. 1 Ba. Ab. 63.
    4. The verdict and judgment are for two distinct penalties, and double on duties two stills in one suit.
    5. The declaration does not conclude, contra formant statuti.
    
    6. The judgment for costs was erroneous, because the verdict was less than the award of arbitrators, from which an appeal was entered.
    
      Champneys m&Buchanan, for the United States,
    
    inconsequence of what fell from the court, did not speak to the first and second errors.
    With respect to the third and fourth errors assigned, they observed, that the declaration set forth, that the plaintiff in error, used the stills without license, which was the form of declaring, generally in use. If, however, the omission to state the time during which they were in use, was a defect, it was one which was cured by verdict, for the jury could not have found a verdict for the plaintiffs, if the time had not been proved, I Chitty on PI. 402, I Saund. 228. a. note I-.] Johns. Rep. 276. 5 Mass. R. 266. 1 Sell. Pr. 481. 2 Id. 408. 5 Bac. Ab. 349. ’
    5. It is not necessary that the declaration should conclude against the form of the statute, for the act is set out, and it distinctly appears, from the whole tenor of the declaration, that the offence was committed, in violation of the act. It is enough if the circumstances are so stated as to bring the offence within the statute. 2 Brown, 257. 11 Mass. Rep. 279.
    
    6. The act of congress expressly gives costs, which cannot be taken away by a state enáctment. Besides, a case like this, founded on a penal statute, does not fall within the provisions of the arbitration law, which is confined to civil actions.
   The opinion of the court was delivered by

Duncan. J.

There are numerous errors assigned, all of which it is unnecessary to consider, as there is one objection no verdict could cure. There is no precise time alleged, during which the plaintiff in error used the stills; nor an averment of the amount of the double duties. And there are double penalties given for the same offence. The infliction is not of several penalties for every still used, but for the use of any still or stills, or other implements used in distilling spirituous liquors. The use of the still or stills was a single act, for which one single penalty only can be recovered. The judgment shows from its amount, that the double penalties were given. It. is a verdict and judgment on the whole demand of the United States, for two forfeitures claimed by them. If there were two separate counts, one good and one bad, the court would award a venire facias de novo, to enable the plaintiffs to proceed on the good count. But here all is laid in one count. If the unsound part were mere surplusage, on which it might be presumed the jury could not have acted, that might be rejected. But this was not mere surplusage, it was an allegation of substance, that the defendant had forfeited two sums of money, which the United States claimed ; and it is certain that they have obtained a verdict and judgment for both. Both matters were actionable, equally so. And the rule is,'that where a count in a declaration, contains a sufficient cause of action, connected however with matter insensible and void, or not actionable, it would be intended after verdict for plaintiff, that the sum given is only for that part which is actionable. 15 Johns. 121. But where the plaintiff declares on a contract, consisting of several parts, and among other breaches assigns one, which from his own showing, could not have taken place before the action brought, if damages are assessed generally, the court cannot intend that the damages were only given for the actionable part. 2 Binn.-287. The time for which the double duties were demanded, and the sum should have been stated. 'Even in a civil action, verdict would not cure that defect. It is a defect in title, there is nothing from which any presumption can be made. In an action for the hire of a horse, without skying for what time, or for what price, it would be bad after verdict. But this is an action on a penal statute, where greater strictness is required, and where the offence must be laid with certainty. Davy v. Balter, 4 Burr. 2471. By the act for preventing bribery at parliamentary elections, it is enacted, “ that if any person shall ask or receive or take any money, orother reward, he shall forfeit £ 500.” The declaration stated the very words of the act, that the defendant did receive a gift or reward, without stating, what he received or took as a reward. There was a verdict on the general issue for the plaintiff; but the court arrested the judgment. Lord MansViejod, said the declaration was bad, and being upon a criminal charge, it ought to have been laid with certainty; that being after verdict makes no difference; it may be taken advantage of in arrest of judgment; it is not too late. And Mr. Justice Yeates, said it is clearly bad, it ought to have been laid with certainty, so as to be pleadable in another action. For this reason the judgment is reversed.

On the matter of jurisdiction, it is sufficient to observe, this court has often sustained actions on penal acts of congress, for the penalty, where the penalty is made recoverable in the state courts. And although convenience is no justification for the usurpation of power, yet as the court does not see how this conflicts with the constitution of the United States, the inconvenience may be considered; anditwould bean intolerable inconvenience and grievance, in an action for a petty penalty, to draga man from the most remote corner of the state, to the seat of the federal judiciary. It is too late to object to the defect in the original writ, or the variance between that and the declaration. 1 Saund. 318. It must after oyer of the writ, be pleaded in abatement, and is a cause of’demurrer; certainly it is not a matter of error. 2 Binn. 76. After plea pleaded, it is too late to take advantage of variance between the writ and declaration. 12 Johns. 430.

The writ itself, here, if advantage bad been taken of it in proper time, is defective. All actions of debt must be for numerical sums; formerly it was held, that if a less sum was recovered than that demanded in the writ, it was fatal, but this is not now the law; for where the entire sum is demanded, and it is shown by the counts to consist of several distinct items, or where it is diminished by extrinsic circumstances, this is good. 8 Wheat. 294.

So, where the penalty consists of not one entire act, but the amount depends on its continuance, as here, double duties for the time a still is used without license, there you may recover a less sum, 1 Peters Rep. 145; but where it is for one single act, with an ascertained penalty, the writ must be precise, and for that sum; for instance,- marrying a minor without the license of his parents; or, as here, using a still. But in all cases of debt, except under the statement law, which gives the form of writ, where a plaintiff claims a debt on contract, the writ must be for a certain sum; the object of the action being to recover a sum of money eo nomine.

As to the costs claimed by the plaintiff in error, for the costs recovered on the arbitration against the United States, besides the insurmountable difficulties of rendering a special judgment-against the United States, all the proceedings before the arbitrators were coram non judice. Debt for a penalty on a penal statute, is not within - the arbitration law; it only embraces rcivil suits or actions. An action for a penalty inflicted for an offence, is not a civil action. In Davy v. Baker, before cited, the action, such as this, is called a criminal charge,-and not a civil action, unless there is a special provision; Statutes of amendment do not expend to penal actions; but there is no difference between penal and other actions, as to judgments at common law. The act of 21st of March, 1806, allowing amendments after jury sworn, does not'extend to this speciesof action, butonlytoactions'for money owing, or due,or for damages by trespass or otherwise. It is as far from the word, as it is from the spirit of the' arbitration law, to include penal actions. An offender cannot say to the United . States, or to the state, I will arbitrate this matter with you. Now, as the arbitration was entered by plaintiff in error, and appeal by him, it is unreasonable that he should recover costs, which have been caused by his own erroneous proceedings. This action falls within none of the provisions of the arbitration law; all that was a mere nullity. The court, therefore, only order judgment ef reversal.

Judgment reversed.  