Several errors-have been assigned. I shall pass over the-first, as it has been presented as the governing (point in another cause, and the present action may well be decided without reference-to it.
The second error strikes me to be fatal; the-offence charged in the declaration is the being knowingly concerned in a prohibited foreign voyage, and it is not alleged to be contrary to the form of any statute. The necessity of such an averment in an action founded upon a penal statute is abundantly supported by authority. 1 Saund. 135, note; 12 Mod. 52;. 1 Chit. PI. 356; Doct. Plac. 332.2 The doe-*939trine was confirmed by the decision of this court in Cross v. U. S. [Case No. 3,434], on full consideration; and I consider it too well settled to admit of argument. Lee v. Clarke, 2 East, 333.
See authorities in Smith v. U. P. [Case No. 13,122]. SEARS [UNITED STATES v.). See Cases Nos. 16.246 and 16.247.As to the third and fourth errors assigned, I incline to think them of no validity. The ob-' jeetionable parts of the allegations may be rejected as surplusage, or at most would be cured by verdict. There is no authority to show, that in a count on a penal statute, it is ¡ necessary to refer to the statute giving the j remedy, as well as to that creating the of- j fence, and giving the penalty; and in cases ; where this objection occurred incidentally, it i does not seem to have had much weight. 1 Chit. Pl. 359; Lee v. Clarke, 2 East, 333; Clanricarde v. Stokes, 7 East, 516. And there are many precedents in the books of entries, where it is omitted. Lil. Ent. 148, 175, 255; Lutw. 132, &c.; Co. Ent. 159. &c., 161, &c. No case has been cited, to show that in a declaration of this nature, it is necessary to aver the uses, to which the forfeiture is to be applied, and the general doctrine seems the other way. 2 Hawk. P. C. bk. 2, c. 2G, § 20; 4 Burrows, 2018. But even supposing that the special averments were necessary, which I do not admit, it is but the case of a title defectively stated, and not of a statement of a defective title. 4 Burrows, 2018.
As to the fifth error assigned, I think it to be clearly amendable, even supposing the description incomplete; for a court of error may amend an error apparent upon the face of the record, if there be sufficient matter to amend by. Rex v. Ponsonby, 1 Wils. 303; Tidd, Prac. (4th Ed.) 652.3 But “the United States” in the verdict seems to be a sufficient description of the plaintiffs in the original action, without further addition. It must be intended to mean “the United States of America.” !
But for the second error, the judgment must i be reversed. ¡
Judgment reversed. 1
But see Attorney General v. Rattenbury, 9 Price, 397, where in an information for a pe*939cuniary penalty for smuggling, it was not stated that the smuggling was “contra formam,” &e.; but only that the forfeiture accrued according to the form of the statute, &c., and it was held sufficient by the court. And a distinction was taken between an information of the crown for a penalty, and a suit by an informer for a penalty. The case of Lee v. Clarke. 2 East. 333, was on the game laws for a penalty by an informer. But in Wells v. Iggulden, 3 Barn. & C. 186, the court of king's bench held the law to be as decided in Sears v. U. S. It was, however, the case of an informer.
So it may allow an amendment of a clerical error, though nothing to amend by. De Tastet v. Rucker, 9 Price, 432. In King v. Attwood, Id. 483. Wood. B.. said it was not always a , valid objection that there was nothing to amend, ' as ex. gratia clerical mistakes. i