The opinion of the Court was drawn up and delivered at the April Term, 1841, by
Weston C. J.In none of the counts in the plaintiff’s declaration, is there any reference to the statute, upon which he claims to be allowed four fold interest by way of damages. If this falls within the class of penal actions, the current of authorities require, that the facts charged should be averred to be against the form of the statute, upon which it is based. The statute, upon which the plaintiff relies, calls the twenty-four per cent, damages, it imposes, a penalty. A similar statute in Massachusetts is called by the court highly penal, in the case of the Suffolk Bank v. the Worcester Bank, 5 Pick. 106. As it gives four times as much damage, as is allowed by law for the detention of the other debts, it is certainly penal in its character. But as it is given to the party injured, who seeks the recovery of a just debt, to which these increased damages are made an incident, we are not satisfied that it is to be regarded ptoperly as a penal action.-
In Reed v. Northfield, 13 Pick. 96, a similar point was raised, and the authorities bearing upon the question were examined, to which we refer, without deeming it necessary to cite them in detail. Shaw C. J., who delivered the opinion of the Court, takes a distinction between an action brought for damages given by statute to the party injured, and an action for a statute penalty, eo nomine. The action then under consideration, was for double *173damages, sustained by a defect in the highway. The Chief Justice says : “ In the present case, we think the action is purely remedial, and has none of the characteristics of a penal prosecution. All damages for neglect or breach of duty, operate to a certain extent as punishment; but the distinction is, that it is prosecuted for the purpose of punishment, and to deter others from offending in like manner.” And it was held by the Court, that the averment that upon the frets charged and by “ force of the statute in that case made and provided,” the town became liable, was sufficient.
In Bayard v. Smith, 17 Wendell, 88, which was an action for damages by the party injured by false weights, given by statute, the Court held a general reference to the statute sufficient. And in a note by the reporter, he states that a general reference is all, which can be required in such cases. If this is necessary, where the action is founded altogether on a public statute, of which the Court take judicial notice, it would seem to be still more necessary, where there is also a concurrent remedy at common law. In trespass by one tenant in common against another for treble damages, a reference to the statute, which imposes them, has always been deemed indispensable. So in actions against the sheriff for five fold interest, for not paying over money collected on demand, averments of his liability to this extent under the statute, are inserted in the declaration. And wherever penal damages are given by statute to the party injured, where he had before a remedy at common law, we are of opinion, that if he would claim the statute damages, the weight of authority requires, that he should do so by a reference to the statute.
If the plaintiff had averred the liability of the defendants to pay the fourfold interest, we should have been more strongly inclined to have got over this technical objection. But he sets up no such liability. The legal assumpsit, upon which he declares is, that in consideration of the previous averments, the defendants promised to pay each bill, according to its tenor. Facts are set forth, upon which a liability to increased damages under the statute might arise, but such liability is not charged, nor any such claim made by the plaintiff.
With every disposition to sustain a law, which has been deemed wise and salutary, and has repeatedly received the sanction of the *174legislature, both in Massachusetts and in this State, we feel constrained to decide, that if a plaintiff would avail himself of its provisions, he should set forth distinctly and affirmatively the extent of his claim. How much forbearance, the holders of bills might reasonably be expected to practice, under peculiar circumstances, each must decide for himself; but if he would hold a bank to the payment of the penal damages, given by statute, it cannot be regarded too much to require, that he should distinctly claim them in his declaration. If he does not, it is not unreasonable, that he should be restricted to the measure of damages, which the law accords to other .creditors.
In the Suffolk Bank v. The Worcester Bank, a question was presented about the penal damages. The declaration contained only a count for money had and received; but it was submitted to the court upon a case stated. Their attention was not called to the form of declaring.
The plaintiff has moved for leave to amend, if necessary. We do not deem it reasonable to grant it in this stage of the proceedings. The defendants have been defaulted upon the declaration, as it stood. The plaintiff has been paid principal and legal interest. The case has been argued upon the existing counts. And we do not fee1 justified in allowing them to be amended.