
    HEALD, plaintiff in error, v. WESTON.
    In an action for' a penalty under tlie act for organizing- and governing the militia the declaration must allege the offence to have been committed “against the form of the statute in that case made and provided.”
    
      Preston, for the plaintiff in error.
    
      Pontelle,- for the defendant in error.
    This was an action of debt to recover a penalty against the bow plaintiff in error, “ for neglecting to attend military duty, 5,1 whereby he has by statute forfeited the sum of one dollar and fifty cents,” &c. The magistrate who tried the cause having rendered judgment against the original defendant, he sued out this writ of error to reverse it; assigning divers errors,-among which Was this — that there is no allegation in the writ that the offence was committed against the form of the statute in such case made and provided. And for this cause the judgment was reversed.
   Mellen C.- J.

The only error we can notice on this record appears on the declaration. The averment is w that said Heald “ did not attend the said exercises on said day, but neglected “ the same, whereby he has by statute forfeited the sum of one “ dollar and fifty cents, and an action hath arisen by statute, to “ the plaintiff, as clerk as aforesaid, to have and recover the M same of the sai’d Heald.’* In Commonwealth v. Springfield, 7 Mass. 9. it is decided that an indictment for an offence created by statute must conclude contra formara statuti. We have reversed several judgments in civil actions where such an averment was wanting. In Lee v. Clark, 2 East. 333. which was an action for a penalty on the game laws, the declaration concluded — “ whereby and by force of the statute in that case made “ and provided an action hath accrued.” After verdict for the plaintiff the judgment was arrested, because it was not distinctly and explicitly alleged against the form of the statute. In that case the averment was much stronger than in the case at bar. See also Commonwealth v. Stockbridge, 11 Mass. 279. Sears, in error, v. The United States, 1 Gal. 258. Cross, in error, v. The United States, 1 Gal. 26. 1 Saund. 135. n. 1 Chitty’s Pl. 356. 12 Mod. 52.  