1789.
mitted the Plaintiff to amend his declaration, fwore the Jury again, and neither gave the Defendant an imparlance, nor ordered the plaintiff to pay the cofts occafioned by his faulty declaration.
The caufes being held under advifement for a confiderable time, in hopes that a compromife would take place between the parties, the judgesnow delivered their opinions feparately and at large.
M‘KEAN, Chieƒ Juʃtice : ––The arguments on the records before the Court, have been ably and learnedly enforced. To thefe, and to the authorities produced on both fides, I fhall briefly refer, while I confider in their order, the objections that have been made in favour of the Plaintiff in Error.
I. In fupport of the firʃt objection, a variety of precedents have been fhewn of declarations upon penal bills from 1Mod. Ent. 180. 281. Brown's Mod. Infrands, &c and the following books were cited : Doug. 658. 8 Co.133. 4 Bac. Abr. 13. 7 Co. 10. a. 4 Bac.Abr. 16. 363. 5 Bac.Abr.321. 1 Cro. E. 548. 2 Cro 183. 500. Cro. C. 515. Hob. 82. 232. 12 Mod. 81. 1 Bulʃtr. 163. Salk 662. 2L.Raym. 814. Carth. 322. Doctrin. Placit. 329. Co. Litt. 303.
But the Counfel for the Defendant in Error have an anfwered thefe cafes, by urging that oyer of the penal bill was prayed and granted ; that the Defendant below pleaded in chief to the declaration, payment, and joined iffue ; and that the verdict was for the Plaintiff below. They contended, that the Plaintiff was only bound to prove the gift of the action ; that it was not incumbent on him to prove that the fmaller quantity of 100,000 weight of tobacco was not paid ; that under the act for defalcation (1 State Laws 48.) the Jury are to find the fum really due; and that the defect, if it was one, is cured by pleading over in chief, and, alfo, by the verdict. In corroboration of thefe pofitions, the city. Doug. 658. 8 Co. 133. Vaugh. 93. 4. 5. 4Bac. Abr. 19. 16.Hob. 199. 1 Lill. Pract. Reg. 418. Cro.C. 209. 5 Com Dig. 57. 58. 60. 1 Mod. 169. 1 Salk. 37. 38. 133. 8 Mod. 356. 1 Lev. 190. 12 Mod. 44. Cro. I. 668. Tri. per pais. 289. 290. 306. 307. 368. Cro. Car. 515. Cro. E. 68. 12 Mod. 459. 414. Carth. Rep. 80. 94. 2Will. 380. Cowp. 407. 1Stra. 233. 2 Stra. 925. 1006. 1011. 1 Will. 255. 1Salk. 9. Bull.N.P. 147. 148. 3 Black. 410. Barr. on Stat. 193. 2 Black. 406. 1 Vent. 108. 114. 122. 156. 1 Com. Dig. 60. 2 Vent. 153. Keelw. 187. b. 7 Rep. 10. a. 9 Vin. Abr. 599. pl. 1. 10 Vin. Abr. 3. pl. 1. 16 & 17 Car. 2. c. 8.
We are clearly of opinion, that this detect in the declaration, with refpect to the averment, cannot now be taken advantage of as an error. It might indeed have been fatal on demurrer ; but, at this period of the caufe, it is cured by the plea in bar, by the verdict, and by the ftatutes of Jeoʃʃails. The defendant below pleaded payment, which admits the declaration to be good. 10 Vin. Abr. 3 pl. 12. The penal bill became a part of the record by the oyer ; and if the Jury had not been fatisfied, that the fmaller quantity was
not
