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no notice, it must be referred to in an action grounded upon it. An omission will be fatal even after verdict.

If the action is grounded on several statutes, to say, "against the form of the statute," is bad.

So if it is grounded on one statute, and the declaration concludes, "against the form of the statutes," it will be bad. But if there are two statutes, the latter of which is merely explanatory of the former, to say, "against the form of the statute," will be good.

It should appear in the declaration, on reference to the statute, that the act or the omission complained of, constitutes the offence prohibited or contemplated in the statute. If there is any exception, in the clause which declares or defines the offence, it must appear, by averment or otherwise, that the defendant is not within such exception. But if the exception is in any other section, by way of proviso or otherwise, it is not necessary to notice it in the declaration; and the defendant, if he would have the advantage of the exception, must set it forth in his plea and show himself within it. 1 Term R. 141, 320; 6 Term R. 559; 1 Lord Raymond, 120; 5 Taunt. 2; 4 Johns. R. 194; 13 Johns. R. 428.

In setting forth the grievance or injury against which the statute is provided, it is not only the safest, but much the easiest way to adopt the language of the statute itself. There is less danger of mistaking the sense, and an inaccuracy of expression which is copied from a statute, will be viewed by the court with much more indulgence, than if originating with the pleader himself. The former, however inaccurate it may be, if intelligible at all, must be respected and observed by the court; otherwise the satute is virtually repealed; but the latter will usually be fatal, as not showing that the act complained of, is within the purview of the statute.

With regard to the manner of naming the plaintiff in the declaration, it should be observed, that where a penalty is given to a party grieved, he may sue in his own name, describing himself merely as he would do in a common action of Debt. This remark also applies where the whole penalty is given, "to him who shall sue for the same." He, too, declares in Debt as in common form. But where half only of the debt is given to him who will sue for the same and the rest to the poor of a town, or to the use of the commonwealth, &c., it is necessary that this party in interest, should be described in the declaration, with all convenient certainty.

In Mitchell v. Tibbets, 17 Pick. 298, it was held, that the court may allow amendments in qui tam actions. In that case, the declaration, in one count, claimed a number of penalties, for distinct violations of a statute, and the court permitted the plaintiff to amend, by filing separate counts for each violation.

In what county the action on a penal or remedial statute shall be

brought.

By Statute 1788, ch. 12, sec. 2, all actions on the behalf of any informer, or on the behalf of the commonwealth and any informer, must be brought in the county where the offence was committed. Otherwise the plaintiff or informer must be nonsuited. Whether this statute extends to an action brought on a statute by the aggrieved party, does not seem clear. Under the Statute, 18 Eliz. 5, making a provision

nearly similar, a party aggrieved was held not to be obliged to commence his action in the particular county where the grievance was committed, though a common informer was under that necessity. 1 Salk. 130.

By the Revised Statutes of Mass. when any forfeiture is recoverable in a civil action, the action shall be brought in the county where the offence is committed; if it appears on trial, that the action is brought in a wrong county, the verdict shall be found for the defendant. Chap. 90, sec. 17, 18.

DECLARATIONS IN DEBT ON PENAL STATUTES.

For occupying a building as a livery stable, in a part of the town, being a maritime town, without the direction of the selectmen.

To answer to A B, of A &c., Esq., who sues this action, as well for the poor of the said town as for himself, in a plea of Debt, for that the said S, on &c., at &c., occupied and improved a certain building, in a certain part of the said town of A, the same being a maritime town of this commonwealth, to wit, on street so called, for the business and employment of a keeper of a livery stable, and has continued to occupy and improve said building, as a livery stable, and for the business and employment appertaining thereto, and has been the keeper thereof ever since the said first day of, to the day of the purchase of the plaintiff's writ, and including the day of the purchase thereof, in a part of the said town of A, to wit, on street, being a part of the said town, in which the selectmen of said town, or the major part of them, had not at any time. heretofore, directed and determined that the said building might be occupied and improved as a livery stable, and for the business and employment relating thereto; contrary to the form of the statute in such case made and provided; and the plaintiff avers, that the said S so occupied and improved the building aforesaid, for the business and employment of a keeper of a livery stable as aforesaid, for the space of two months; whereby, and by force of the statute in such case made and provided, the said S has forfeited the sum of $50 for every month he so occupied the said building as a livery stable, as aforesaid, and amounting in the whole, to the sum of $100, and by force of the statute in such case made and provided, an action hath accrued to the plaintiff to demand and recover of the said S the said sum of $100, one third part thereof to the said plaintiff's own use, and the other two third parts thereof to the use of the

poor of the said town of A; yet the said S, though often requested, has never paid the same, but unjustly detains it, to the damage of the plaintiff, (who sues as aforesaid.)

NOTE. It should be, owes and detains, &c., or wholly refuses so to do, as in Assumpsit.

Qui tam, for a penalty for carrying an apprentice to sea without consent of master, under stat. 1784, ch. 72, sec. 11,

For that whereas, by a certain act made by &c., entitled &c., it is enacted, that every master, &c, [reciting the clause verbatim ;] yet the said T, notwithstanding the act aforesaid, on &c., being then bound on a fishing voyage to Cape Sables, at M aforesaid, took and received an apprentice of the plaintiff, named &c., under the age of twenty-one years, on board the schooner called &c. whereof the said T then and there was master, bound out to Cape Sables on a fishing voyage as aforesaid, and immediately set sail in said schooner, and carried and transported out of this government the said apprentice therein, without the consent of the plaintiff, his master, as aforesaid, against the form of the act aforesaid, by reason whereof, and by force of the statute in that behalf made and provided, the said T hath forfeited the sum of $-, one moiety to the use of this government, and the other moiety to the plaintiff, who sues, as well for this government as for himself; yet the said T, though often requested, refuses to pay the same. OVERING.

NOTE. The statute makes use of the word, "government;" otherwise it would have seemed more proper to have said "commonwealth." Probably, however, either will answer. For if "this government" means "this commonwealth," then it is obviously sufficient; but, if "this government," does not mean "this commonwealth," then the words must be senseless and inoperative.

For money had and received to the plaintiff's use, under the gaming act, to recover back money lost at play. This action is in Assumpsit. For that whereas the plaintiff, on &c., at &c., played with the said R at a game of cards, called &c., and the said R, at the said time, won of the plaintiff at said play, the sum of $, contrary to an act of this commonwealth, entitled "an act to prevent gaming for money or other property." And the plaintiff then and there paid the said R the sum so lost; whereupon the plaintiff saith, that the said R, at &c., aforesaid, received the said sum for the use of the plaintiff,

and that, according to the form of the aforesaid act, an action accrues to the plaintiff to sue the said R for the said sum, and to recover the same of him; yet the said R, though requested, hath not paid the said sum, but wholly refuses so to do. See 1 Lilly, 168. GRIDLEY.

Qui tam, for a penalty for gaming. In an action of Debt. FIRST COUNT, FOR MONEY. For that, on &c., at &c., the said R received to the use of the plaintiff and the poor of the said town of S, shillings, being so much money lost by one J W, a minor and servant of the plaintiff, to the said R, more than three months next before the commencement of this suit, by gaming and playing at cards with said R, and which money so lost, was then and there paid to the said R, the winner thereof; and the said J W hath commenced no suit therefor, whereby, and by force of an act &c., made &c., entitled &c, an action hath arisen to the plaintiff, according to the form of said act, to demand and recover of the said R the said sum of- shillings and &c., being treble the value thereof, amounting in the whole to &c., one moiety thereof, to the plaintiff's own use, and the other moiety to the use of the poor of the said town of S.

Another Count. For treble the value of goods lost at gaming. And for that, on &c., at &c., the said R took and converted to his own use, a watch &c., all of the value of &c., and being, until said conversion thereof, the proper goods of one J W, which he lost to said R, at &c., on the same day, being more than three months next before the commencement of this action, by gaming and playing at cards there, with said R, and which goods, so lost, were then delivered and paid to the said R, the winner thereof; and the said J W hath commenced no suit therefor; whereby, and by force of an act &c., made &c., entitled &c., an action hath accrued to the plaintiff, according to the form of said act, to demand and recover of the said R the said sum of $-, together with the sum of &c., being treble the value of said goods lost as aforesaid, amounting in the whole to the sum of -, one moiety thereof to the use of the plaintiff, and the other moiety thereof to the use of the poor of said town of S; yet, though requested, the said R hath not paid the said sums, or either or any of them, but refuses so to do; to the damage of the plaintiff, who sues, &c. W. PYNCHON.

NOTE. In Lynall v. Longbotham, 2 Wils. 36, the declaration only stated, that the plaintiff lost the money to the defendant, "by betting on the side of one J. C., at a certain game called a foot race;" and on argument the court adjudged that the declaration should have stated, that the said J. C. was playing at the game; for the statute was penal, and therefore judgment was for the defendant. Quære, if in the above declarations the name of the game should not be added? See Stra. 493.

For money lost at gaming and penalty also.

For that one C of &c., on &c., at &c., played with the said R, at a game of cards, called &c. And the said R then and there, at the said play, won of the said C the sum of $-, contrary to an act of this commonwealth, entitled, "an act to prevent gaming for money or other property." And the said C then and there paid the said R the said sum so lost but has not prosecuted him, the said R, for it or the value thereof, nor received the said sum, nor the value thereof, from the said R; whereupon the plaintiff saith, that the said R, at &c., on &c., received the said sum of $- to the use of himself the said R* wherefore, and by the law aforesaid, an action hath accrued to the plaintiff to sue the said R for that sum, and the same to recover of him, and further to sue for and recover of him, the said R, the further sum of $-, to be disposed of as the aforesaid act directs; yet the said R hath never paid the said sums, or either of them, though requested &c.; to the damage of the plaintiff, who sues as aforesaid, &c.

For a penalty for not making a sufficient passage for shad and alewives to pass up.

For that the said D and E, since the month of &c., did erect and build a dam in H aforesaid, across a stream there commonly called and known by the name of West River, or Little River, being a stream where the salmon, shad, and other fish, before and until the building of the dam aforesaid, usually passed up into their natural ponds above, to cast their spawn; but the said D and E, or either of them, never made a sufficient passage-way for the fish to pass up said stream, either through or round said dam; nor did they keep open any passage-way, for the free passage of the fish up the stream aforesaid, from &c., to &c.; by reason whereof, the said fish, during all that time and season, were wholly prevented from passing up the stream aforesaid, contrary to

* Quære. Under the statute should not this be, "to the use of him, the said C," (the loser of the money)? The statute enacts, that the loser may recover in an action for money had and received; but an informer must sue in Ďebt.

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