
    MARTIN QUI TAM, vs. M'NIGHT.
    See the case stated in the case of the same plaintiff against John and James M‘Night, ante.
    The writ issued in September, 1806. The declaration charged the offence to have been committed in the year, 1805, and on evidence it appeared to have taken place in February, 1806.
    In charging an offence in a qui tam action, the date is not material—it is sufficient if the offence is proved to have been committed before the bringing of the action. Whether the statutes of amendment and jeofails, extend to qui tam actions
    N. W. Williams, on affidavit,
    moved on trial, to amend the declaration, by inserting the year 1806, instead of 1805.
    Haywood conceived the declaration was sufficient ; that if it appeared on trial, the offence was committed before the impetration of the writ, it was good. The date was not material, and of this opinion was the court.
    Haywood for the defendant,
    insisted before the jury, that the declaration was insufficient, in setting forth the offence of selling merchandize contrary to the act; the offence was not charged at all.
   Overton, j.

stopping Williams for the plaintiff, said, that whether the declaration was substantially good or not, was not for the jury to decide. The defendant might have demurred, or he may move in arrest of judgment.

Barry argued e contra.

Campbell, j. and Humphreys, j. gave no opinion.

Verdict for plaintiff.

The following reasons in arrest of judgment were filed :

1st. The defendant is not described in the declaration, in the character he is described in the act.

2d. It is not distinctly set forth in the declaration, that the defendant therein named, did sell goods prohibited by the act; it is only said, being a pedlar, &c. and selling goods, which is a description of the person, not an allegation of the fact prohibited by act.

Upon recurring to the declaration, it stated, that the defendant not regarding the statute, in such case made and provided, passed the 7th of November, 1803, entitled, “an act ascertaining what property in this state shall be deemd taxable.” “Sect. 5th, it is enacted, (here the clause was set out) did, after the 7th day of November, 1803, at , on , in the year, 1805, he, the said defendant, being a pedlar and hawker, travelling from town to town, and to other men’s houses, and trading and selling divers goods, wares and merchandizes, to wit, two yards of muslin, &c. at ,they, the said defendants not having before then had any licence, &c.”

Haywood in support of the reasons, cited several books, shewing that that the statutes of amendment and jeofails, did not apply to proceedings of this kind.

Overton, j.

Amendments at the common law applied as well to criminal as civil cases. This proceding is not of such a nature, as to exclude the application of the statutes of amendment and jeofails, as it would seem from the case of Atchison vs. Everit, Cowp. 382. He was inclined to think judgment should not be arrested.

Campbell, j. Thought the declaration was substantially defective, and that judgment should be arrested.

Humphreys, j. said he would take time to advise until the next day.

On the next day, Williams and Barry argued that the declaration was amendable, and cited 3 T. Rep. 349, 350. 3 Burr. 2833. Cowp. 437. 8 Mod. 376. 2 Burr. 1098.

Haywood e contra. Amendments at the common law extended to all cases criminal as well as civil, whilst the cause was in paper—but here it is not in paper. The statute of jeofails do not extend to qui tam actions, Salk. 354.

Barry in conclusion, relied 6 Guil. ed. Bac. 891, as to the construction of penal statutes.

Campbell, j. The declaration is defective substantially—nor could he agree with the opinion delivered by Lord Mansfield, in the case of Atchison vs. Everitt. Lord Mansfield was certainly a great man; it is however well known, that he did not adhere to precedent so scrupulously as many other judges; his great mind was too apt to contemn the minutiæ of precedent. It embraced a subject impromptu and thus it happened, from his great reputation and popularity, new principles were introduced. The statutes of amendments and jeofails, do not apply to the case, the declaration is bad, and there must be judgment for the defendant.

Humphreys, j. Was inclined to think, the statutes of amendment and jeofails, did not apply—that the declaration was bad, and that judgment must be arrested.

Overton, j. It was a subject of a regret, that the inclination of his opinion differed from his brothers in office. The case of Atchison vs. Everitt, is decisive, that this action is to be considered in the light of a civil action. The opinion of Ld. Mansfield is believed to be founded in principles of law.—He was inclined to think that the statute of 4 Geo. 2, c, 26, was enforced by our law, which adopted all the statutes of amendment and jeofails. But if that statute is not in force, we know the act of 1786, c. 14, s. 3, is, which enacts, that no instrument of writing which contains the substance, shall be lost or destroyed for the want of form. He was inclined to think, that the reasons should be over-ruled, but felt disposed for the subject to undergo further discussion.

Humphreys, j. said he felt considerable doubt on the subject, and therefore wished it to be continued for advisement.

It was accordingly continued.

Note.—The motion was over-ruled by Roane, circuit judge, at September term of Smith circuit court, 1812, ut audivi. 
      
       See 2 Binney, 514.
     
      
       Cowp. 382
     
      
       See 1Wils. 125V
     