
    MARTIN QUI TAM vs. JOHN AND JAMES M'NIGHT.
    This was an action of debt, grounded on the 4 & 5 sections of the act of 1803. c. 3. The act imposes a tax upon merchants, pedlars and hawkers, of $25. and requires them upon payment of the tax, to take out a license from the clerk of the county court. The 5th section inflicts, a penalty of $100 for selling without license, one half to the use of the informer. A trial had taken place at a former term when it was proved that the defendant John, had sold goods at a certain place on the road, as a pedlar without license; his brother James who was reputed to be in partnership,not being then present.It was also proved that the two brothers were frequently together about that time, and employed in selling some of the same goods.
    Humphreys, j. upon the trial was inclined to think, that the absent defendant could not be found guilty ; and as this was an action of debt, the other be acquitted.
    Overton, j. who then sat with Humphreys, j. was not prepared to give any opinion.
    Verdict for both defendants, and rule to shew cause why a new trial should be granted which now came before the court to be argued.
    An action qui tam for the penalty incurred by sellinggoods without licence, can only be maintained against the person selling, and not against his partner. In such an action, after a verdict for the defendants,a new trial may be granted as to the party guilty of selling, & judgment, may be entered in favor of the other partner. In such cases the only grounds for granting a new trial, are either mis-direction by court as to matter of law, or fraud, or improper practices by the defendant in procuring the verdict.
    Barry and White, argued for the new trial ;
    their argument in substance was that the tax operated upon the firm ; that in this case respecting licences for stores among mercantile men, but one license was necessary, though several might be in partnership. If the tax is avoided, it is an equal benefit to concerned, and therefore all should be liable for the penalty. They considered the case in the view of a contract with the government under the terms expressed in the act. Whenever they procured their goods with a view of pedling, they then agreed, if we sell we will either pay $25 and take out a license, or $100 if we do not ; and the selling afterwards by one of the parties, was the same thing as if both had sold. No higher evidence of a copartnership is necessary in this case than any other. Express proof by articles of copartnership is never required. Holding themselves out to the world as such is sufficient.
    In the criminal code it was not a new thing to consider absent persons under particular circumstances, as guilty. In the highest criminal cases there may be accessories, who are always absent ; for if present aiding and assisting, they are principals. In trespass as contra distinguished from felonies, all are principals; there can be no accessories, and absent persons may be aiding and assisting in a trespass, as well as those present. These observations were made to put the case, in the strongest point of view against them. This statute being made pro bono publico should not be construed strictly, as penal statutes usually are. 4. Cun. Ed. Bac. Ab. 649. It should receive an equitable construction for the good of the public. Suppose a pedlar intrusts a slave to sell, is the state to have no remedy ?
    In this case the jury were misdirected by the court and for that cause there ought to be a new trial, 6. Guil. Ed. Bac. 674. 5.
    A few years ago judge M’Nairy, when sitting in the Federal court, granted a new trial, in a qui tam action between Sanders qui tam and Tipton, nor was this lightly done : it was after elaborate argument. A new trial was not only granted in that case but an amendment allowed.
    Haywood, e contra.
    This question must be considered under the ideas of criminal jurisprudence. It is impossible to charge the absent person as a partner. Partners in trade, are liable upon the principles of contract—which is never presumed as to crimes and misdemeanors. There is no proof that the absent person James M’Night, assented to the violation of the penal law, and it never could have been the intention of the legislature to inflict a penalty upon an innocent person. The way to construe this law is to make every man liable for his own offences, and no further. In this way the other partners may be come at. It is however not material now to enquire, whether the directions given by the court, were right or wrong, the jury have found the defendants not guilty, and a new trial cannot be granted in a penal action, when the defendants have been acquitted. 
    
    If one be rightfully acquitted, and the other not, a new trial will not be granted, which is precisely the case in Strange 813. In this case there can be no doubt that James M’Night ought to have been acquited. If the constitution is not concerned in this case, justice is, which is of as high importance. It has been argued, that the defendants took out a license about a month after the offence was said to been committed; that circumstance can have no effect upon what had previously taken place. Independent of all these considerations, there was on the trial a clear defect as to the evidence of partnership let it be considered in what point of view it may.
    
      
       Cowp. 37. Burr. 665. 1 T. R. 235. 2 T. R. 484. 4 T. R. 755 Cowp. 358 1 Wil. 17 329. 3 Will. 59. Burr. 2257. 2 Str. 1238.
    
   Per Curiam.

After taking time to advise, this action must be considered in the nature of civil, and not criminal actions. It is so laid down in Cowper, 382. Atcheison, vs. Everet, and 1 Guil. Ed. Bac. 61. From the wording of this statute the penalty relates to the offence, and not immediately to the person ; and consequently the action may be joint or several. In actions of this kind no person can be charged, ex contractu the court in this respect think the reasoning of the defendants counsel unanswerable. The following authorities shew it-Watson on Partnership, 180-1-3-7-8, 191, Cowp. 728, Rex vs. Hale. But the same books shew, that in the light of trespassers, absent persons may be charged where there is proof of their aiding and assisting in the commission of the offence. Partners however, are no more subject to an action of this kind, than other individuals.

In one point of view, evidence of a co-partnership might have some effect, and but one can be thought of at present by the court; where one partner stands by and sees another sell goods without making any objection.

The next question is, can the court grant a new trial, in a penal action of this kind, where a verdict has passed for a defendant; and if they can, in what cases? We have diligently searched the books, and find there are two, and only two, in which they can do it.

1st. If a verdict was founded on a mistake of the court, in their direction to the jury, as to matter of law.

2d. Where a verdict has been procured by the fraud or practice of the defendant. The books upon which we rely as to the first, are, 4 T. Rep. 753. Wilson vs. Rastal. 5 T. Rep. 19. Caleraft vs. Gibbs, which was upon a rule for a new trial, in a penal action. In the latter of these cases Lord Kenyon observed, “ that where there is any ground of objection to the law delivered by the judge, on which the verdict has proceeded ; if such objection be well founded, it is immaterial what the nature of the cause is. The application for a new trial, is a direct appeal to the justice and laws of the country, and cannot be tried or disposed of by any other rule.”

The case in Strange, 1283, does not apply on the part of the defence; and the only case in point, 1 Wils. 17, is too short and unsatisfactory a note to be relied on, when reason and other books are opposed to it. It has been urged, that no case authorising the granting a new trial, against an acquitted defendant in a penal action, can be found previous to the revolution. We do not understand that to be the case. In 3 Morg Essays, 120 ; in the case of Robertson qui tam vs. anno. 1728, it is stated that new tri Is had frequently taken place. Let it however be remarked, that we do not think any English writers since the revolution, respecting criminal law, ought, as such, to be implicitly attended to in the courts; nor, in fact, those on the civil or municipal laws since that time—but we deem ourselves bound to receive any light from them on the last ground, and shall be always glad to do it. As it respects criminal jurisprudence, their decisions since the revolution, when heard, ought to be narrowly looked into-in fact, so ought the decisions in the most despotic or licentious periods of the history of that nation.

Haywood for the defendants,

the next day did not oppose the new trial upon the ground upon which the court doubted, but insisted on the above authorities to prove that the court had no power to grant a new trial at all.

The court, upon the authorities collected in 6 Guil. Ed. Bac. 656. 6 T. Rep. 625, 619, ordered a new trial as to John, and judgment to be entered in favor of James M‘Knight.

We consider this case in the nature of civil proceedings, and it will not for a moment be thought, that indictments, or any criminal proceedings are subjected to the ideas we have delivered.

It is a principle consecrated to liberty, that where a defendant is acquitted in a criminal prosecution, no new trial can be granted.

On the subject before us, the law seems to be judiciously laid down in 6 Guil. Ed. Bac. Ab. 674.5. But one doubt remains with the court, whether they can grant a new trial against John, and not James, for we are clear, none ought to be granted against James. He was properly acquitted, and he cannot be jeopardized a second time. The counsel will look into this part of the case. 
      
       2 Haw 396, pl. 75. Cowp. 610. Rex vs. Clark, & al. 5 Mass.Rep. 269.
     