The first error assigned is, in effect, that a conclusion “contrary to the law in such case made and provided,” is not a conclusion against the form of any statute; and if not, then upon acknowledged principles, the judgment ought to be reversed. The objection savors a good deal of technical nicety; but as this is a penal action, if it be well founded in law, the plaintiff in error ought to have the full benefit of it. At the argument, no authority precisely in point was produced, and the objection therefore was endeavored to be supported upon the general rule, and upon the meaning of the word “law.” It is true, that in 12 Mod. 52, Mr. Justice Eyre is made to say, that no words will supply the want of “contra forman statuti;” and he cited Cro. Jac. 142. The case in Cro. Jac. was where the conclusion was against the form of a statute, when the action depended upon statutes. And in the case before the court, in 12 Mod. 52, the opinion, if it meant to aver that no circumlocution would be sufficient, is at most but an obiter dictum, not necessary to the decision of that case. The other authorities cited at the bar prove no more than the general principle, that there must in effect be a conclusion against the form of the statute, but do not decide what the form of the allegation should be. 1 Saund. 135, note; 1 Chit. PI. 358; Doct. Pla*. 332. We are left then to consider the interpretation of the expressions used in the declaration. In an enlarged sense, without doubt, the word “law” may include positive as well as common law; but in technical precision, the word “law” is usually restrained to the common law, and other words, as “statute” or “act,” are applied to legislative provisions. Now the common law is, without doubt, as much “made and provided,” as the statute law, and therefore proprio vigore the expression, “law made and pi’ovided,” does not necessarily imply a public act of the legislature. I find, on examination, that this very point was before the supreme court of this state, in Com. v. Morse, 2 Mass. 138. The conclusion in that case was, “against the peace of the commonwealth, and the law in such case made and provided;” and the court said, that the indictment did not conclude against any statute. It is of great consequence in a public view to preserve the accuracy of pleadings. Every relaxation induces a new irregularity, and brings numerous and embarrassing questions before the court. The opinion of the highly respectable court, which I have cited; is entitled to great weight; and as I think it stands confirmed by the general current of authority, as to the general principle, and is shaken by no opposing adjudication, I concur on the oresent occasion.
As to the second error, I do not think it well founded. If two good causes of action are shown in the declaration, and only one penalty is sought, I do not see how it can vitiate the title to a recovery. The party may thereby have imposed upon himself unnecessary proofs, or exposed himself to the suggestion of inartificial pleading; but it is sufficient for the court, if a good title any where appear on the face of the declaration. This is not denied in the present case.
As to the third error, the counsel for the plaintiff in error have argued that the declaration ought to have averred, “that neither the vessel nor the cargo could have been seized for the offence aforesaid;” for that, upon the true construction of the statute, the United States have not an election to seize the property, or to proceed for the penalty, but are limited to a suit against the property, if within their jurisdiction. And I think, upon the authority of U. S. v. The Eliza [Case No. 15,041], decided at last February term, this is to be considered as the true construction of the third section of the statute (Act 9th Jan., 1808, e. 8) on which this prosecution is founded. But it does not follow that the present allegation is not sufficient. It is stated in the terms of the statute, and if the property was within the United States and might have been seized, jt was a good matter of defence at the trial under the general issue, and after verdict the inaccuracy, if any, would be cured. It is a general rule, “that wheresoever it may be presumed that any thing must of necessity be given in evidence, the want of mentioning it in the record will not vitiate it after a verdict.” T. Raym. 487. And this rule extends to actions upon penal statutes. Hob. 78; Carth. 304. It would be but a little defectively set fortfy and upon this ground the court proceeded against the first error in Frederick v. Lookup, 4 Burrows, 2018, and against the third and fourth errors in Lee v. Clarke, 2 East, 333. But I consider the averment is sufficient, even on special demurrer, and that the fact relied on would be a proper matter to come from the other party by way of defence. 5 Term R. 83; 2 Leon. 5. In general, it is sufficient to remain a suit upon a statute, that the case is brought within the terms of it. The case of Spieres v. Parker, 1 Term R. 141, is clearly distinguishable. It was there held, that if the enacting clause, which creates an offenee, contains exceptions, such exceptions must be negatived by the plaintiff in his declaration for the penalty. In that case the exceptions were not negatived and the declaration did not therefore contain within its terms sufficient allegations to show that the penalty had accrued.
The fourth and sixth errors have been disposed of in the ease of Sears v. U. S. [Case No. 12.592],
The fifth error was overruled in Cross v. U. S. (at May term, 1812) [Case No. 3,434].
See Com. Dig. “Pleader.” 2, § 10; Yelv. 116; 1 Yent. 135; Hawk. P. C. b. 2, c. 25, § 117,— which countenance the allegation, “contra for-mam statutorum.”On the whole, for the first error, I reverse the- judgment of the district court. Judgment reversed.