
    Daniel Moor versus Joseph Boswell.
    Judgment will not be arrested after verdict for the plaintiff, if a sufficient titii to the action be set forth, though it be defectively declared.
    The plaintiff declares in debt “ for that whereas one J. F. before A. R. Esq., one of the justices of the peace for this county, on the ',4th day of May last, recovered judgment against the plaintiff for the sum of nine dollars and ninety cents debt or damage, and two dollars eighteen cents charges of suit, on which judgment, after-wards, on the 28th day of the same May, a writ of execution in form prescribed by law issued, directed to the sheriff of said county or his deputy, which writ of execution was afterwards on the same day delivered to the said Boswell, then and ever since a deputy sheriff of said county, on which writ of execution the said Boswell afterwards, on the 13th day of June last, at said W., wilfully and corruptly demanded and received of the plaintiff the sum of two dollars and seventy-nine cents, being a greater fee or fees for the service and collection of said writ of execution, than by law is allowed and provided in such cases; whereby he has forfeited and ought to pay to the plaintiff the sum of thirty dollars, agreeable to law, he being the first person who has sued for the same. Yet though requested,” &c.
    Upon nil debet pleaded, a verdict was found for the plaintiff before Thatcher, J., at the last October term.
    The defendant then moved in arrest of judgment on the follow mg grounds, viz.
    
    1. Because it is not alleged in the declaration afore[*307] said, nor does it appear thereby, that the said sum of * two dollars and seventy-nine cents mentioned therein, was received by said Boswell, as a fee or fees for any services mentioned in an act entitled “ an act establishing and regulating the fees of the several officers hereafter mentioned, and for repealing the laws heretofore made for that purpose.”
    2. Because .it is not alleged, nor does it appear by the plaintiff’s declaration, that the said Boswell ever received on said execution more than two dollars and seventy-nine cents, whereas there appears to have been due on said execution the sum of twelve dollars and thirty-three cents.
    The cause stood over to this term, and now Wilde supported the motion in arrest of judgment, and contended that the declaration was wholly insufficient. It did not appear that the sum mentioned to have been received by the defendant was received as a fee. It might have been received in part of the debt, and if not endorsed upon the execution, it might well be said to be wilfully and corruptly received. If this were a mere civil action, perhaps the declaration, defective as it is, might have been cured by the statute of amendments after verdict; but the statute does not extend to penal actions.
    
      Kidder, for the plaintiff
    held the statute of amendments extended to penal as well as other actions. The expressions are very general and comprehensive: “No summons, writ, declaration, process, judgment, or other proceedings in the Courts, or course of justice, shall be abated, arrested, &c., when the case may be rightly understood,” &c. ().
    Now, in this case, it is alleged that the defendant wilfully and corruptly demanded and received a sum of money, being a greater fee or fees for the service and collection of the execution than by law is allowed and provided in such cases. If the declaration shows a” sufficient * cause of action, though imperfect- [ * 308 ] ly set forth, and the jury have found the facts with the plaintiff, no advantage can now be taken of mere inaccuracies and defects of form.
    
      Wilde
    
    in reply. The expressions made use of in the statute of amendments would, indeed, if unrestrained, extend not only to actions upon penal statutes, but to indictments and informations. This construction has never been given to it; and it is apprehended that the title and whole subject matter of the act naturally confine its operation to civil actions, in exclusion of criminal proceedings and actions for penalties.
    
      
      (1) Stat. 1784, c. 28. § 13.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

The action is debt upon the statute of 1795, c. 41., commonly called the fee bill, to recover of the defendant, a deputy sheriff of the county of Kennebeck, thirty dollars, being the penalty provided by the sixth section of that statute, for wilfully demanding and receiving greater fees for the services mentioned in the statute than are thereby allowed. The defendant pleaded the general issue, and a verdict having been found against him, he now moves to arrest the judgment.

It is a general and a reasonable rule of law, that after a verdict judgment may be arrested, if it appear from the declaration that the plaintiff’s title to his action is defective; but judgment will not be arrested when the defect is not in the title, but in the form of declaring it.

Let us now examine the declaration, and discover if there be any defect, and if there is, whether it be in the title to the action, or in the form of setting out the title. The allegation is, that the defendant wilfully and corruptly received two dollars and seventy-nine cents, being greater fees for the service and collection of an execution, which before was described and averred to have been delivered to the defendant, a deputy sheriff. Fees *are [ * 309 ] provided by the statute for serving an execution, and poundage for receiving the money. And it is very clear, that if the fees of two dollars and seventy-nine cents had been wrongfully received for the service of the said execution and for poundage, the penalty would have been incurred.

Tne objection is, that there is no averment that these fees were received, in fact, for the execution and for poundage.

There certainly is a defect in the declaration in this respect, and upon special demurrer the defendant would have had judgment. But taking together the whole declaration, the title to the action is not defective It sufficiently appears that the demand for the penalty is for exp«ssive fees for services noticed and provided for in the statute. TV*re is an averment that they were wilfully and corruptly received. And a verdict could not have been found for the plaintiff, unless he had given evidence to the jury, that the defendant did receive the fees complained of for the service of, and for poundage on, the execution. The defect in the count is not in showing a defective title, but in showing his title defectively. If the defendant would have availed himself of this defect, he ought to have demurred, and then the plaintiff might have amended the formal omission on payment of costs.

The judgment is not arrested, but must be rendered on the verdict . 
      
      
         Vide Williams vs. Hingham, Quincy Bridge Turnpike Corporation, 4 Pick. 341 —Ward vs Bartholomew, 6 Pick. 409. — Cornwall vs. Gould, 4 Pick. 444
     