The defendant obtained a rule to shew cause why the judgment should not be arrested on the following grounds : First. That the Act of Assembly is not recited in the declaration.

Secondly. That the declaration does not conclude "against the form af the Act of Assembly," or allege that the offence was committed against any Act of Assembly.

Thirdly. That no breach is assigned in the declaration. Fourthly. That so far as the reference is made, it is stated to be against the Acts of Assembly, whereas there is but one Act.

It was argued by M'Kean for the rule, and Browne and Sergeant against it.

PER CURIAM.

Hemphill, President.

This is a rule to show cause why the judgment should not be arrested. The reasons are as follows.

First. That the Act of Assembly is not recited in the declaration.

Secondly. The declaration does not conclude "against the form of the Act of Assembly," or allege that the offence was committed against any Act of Assembly.

Thirdly. No breach is assigned in the declaration.

Fourthly. So far as the reference is made, it is stated to be against the Acts of Assembly, whereas there is but one Act.

The fourth exception is not supported in point of fact. The Act of the twenty fourth of December, one thousand seven hundred and seventy four, inflicts a penalty of ten shillings per cask, each containing thirty one and an half gallons; but the Act of the fifth of March, one thousand seven hundred and eighty seven, alters the size of the cask to twenty eight gallons; of course the penalty given by the first act is forfeited by the operation of the Act of 1787, for the shipping off of a less quantity than that mentioned in the act of one VOL. II. No. II.

D

1813.

REYNOLDS a ruinst

SMITH.

thousand seven hundred and seventy four. The action is founded on both acts, and could not be sustained on either, separately.

The other exceptions being very much connected with each other may be considered under one general view of the subject.

In an action for a statute penalty by an informer, it appears, from the authorities, that the general rule is that the fact must be alledged to be done against the form of the statute or statutes, (as the case may be) yet it rather seems to be admitted, that if such circumstances are stated as bring the case within the statute, it will be sufficient. It is essentially necessary to show, in some manner, that the offence is against the statute. Such an exception to the general rule, we think, ought to be supported: It is founded upon the most reasonable principles and prevents any advantage being taken merely on account of informality.

The offence in this case is described in the third and sixth sections of the act of one thousand seven hundred and seventy four, except so far as relates to the alteration of the size of the cask by the subsequent act.

By the third section it is provided, that no merchant or person whatsoever, shall lade or ship any shad or herring for exportation out of this province, before he shall first submit the same to the view and examination of the officer, or his deputy, appointed by the directions of this act, who shall search the same &c. The last part of the sixth section, on which the action is principally founded, is as follows: "or if "any person shall ship off any cask or casks of shad or her"ring, not branded with the provincial brand mark as afore"said, every such person so offending, shall forfeit and pay "the sum of ten shillings for every such cask so shipped."

Since the revolution, the State-arms have, of course, been substituted for the provincial arms.

The declaration recites, "that the defendant, the first "day of June, A. D. one thousand eight hundred and nine. "at the county aforesaid, did ship off and export from this. "Commonwealth eighty four casks of herring, which had not

"been submitted to the view or examination of the officer or "his deputy, by law for that purpose appointed, not branded "with the State brand-mark, whereby, and by force of the "Acts of Assembly of Pennsylvania, in such cases made and "provided, the said defendant hath forfeited the sum of for"ty two pounds, equal to one hundred and twelve dollars, to "wit, ten shillings for every cask, one half thereof to the in"former, &c. whereby an action hath accrued, &c.

The forfeiture of the sum demanded is expressly alleged to be by force of the Acts of Assembly, in such cases made and provided; and the declaration is further fortified by the conclusion, "whereby an action hath accrued &c." which has an evident relation as well to the Acts of Assembly as to the circumstances set forth.

It is the opinion of the Court that the circumstances stated in the declaration, are amply sufficient to bring the case within the Acts of Assembly. The rule must be discharged.

Rule discharged.

1813.

REYNOLDS

against SMITH.

1813.

Ripley, for the defendant, moved for a rule on the plain- 27 April. tiff to show his cause of action, and why the defendant should not be discharged on common Bail.

The Court received a motion

By a rule of the Court the motion should have been for a rule to made within the first week of the Term; but the Court re-action after the show cause of laxed the rule and received the motion, because the defendant expiration of had been confined in jail, and had no counsel, until after the of the term, expiration of the first week of the term.

the first week

contrary to the rule of Court; because the defendant had

been confined in jail and had no counsel until after the expiration of the first week of the

term.

CASES

IN THE

District Coust

FOR THE

CITY AND COUNTY OF PHILADELPHIA.

JUNE TERM, 1813.

1815. 7th June. On the trial of

an action brought against the

drawer of a promissory

of TH

note, the Court

admitted evidence tending

to shew that the note was

indorsed for

the accommo

dation of the drawer, by whom it was

GARRIGUES against VOGDES.

HIS was an action brought by Abraham Garrigues, against Jacob Vogdes, to recover the sum of 500 dollars, with interest, being the amount of a promissory note, dated the 14th day of January 1807, drawn by A. W. & W. Hayman, in favour of said Vogdes, and by him indorsed, payable 90 days after date. The note was given to the Haymans for the purpose of taking up a note of the same amount, previously indorsed by Vogdes for their accommodation, but which they neglected to take up, and which Vogdes was obliged to pay. One of the Haymans, without the previous knowledge of Vogdes, passed the note to Selby Hickman, to whom he was indebted. Hickman failed, and his assignee, Duffield, passed the note to Fricke, to whom Hickman was indebted in a sum less than the amount of the note. In case Vogdes paid the amount of the note, Fricke, who was acquainted with the above circumstances, was to deduct his debt, and 100 dollars for his trouble. Fricke, a short time before the note came to maturity, passed it to the plaintiff, were not satis- Garrigues, without indorsement. Ten days after the date of the note Vogdes caused an advertisement to be inserted three times in two daily newspapers, to both of which the firm to

fraudulently put in circula

tion, and that

the plaintiff paid no consideration for

the note; and the jury having found in favour of the

defendant, the Court, though they

fied with the

verdict, would not grant a

new trial.

CASES IN THE DISTRICT COURT, &c.

which the plaintiff belonged subscribed, forwarning all persons from receiving the note. The note was withdrawn from bank and protested regularly, but Vogdes, who was perfectly solvent, was not sued for nearly a year afterwards. The precise circumstances under which Garrigues received the note, did not appear, he was the creditor of Fricke to an amount greater than the note, and Fricke's olerk testified, that he understood, that the note was given on account; but there were no entries relative thereto in the books of Fricke; and Garrigues did not produce his books, though requested to do so, and to shew the consideration he gave for the note. The plaintiff's counsel objected to the evidence offered at the trial by the counsel for the defendant, to shew the want of consideration between the original parties. The Court admitted the evidence. The Jury having found a verdict in favour of the defendant, Milnor and Bradford obtained a rule to shew cause why a new trial should not be granted. Three reasons were filed.

1st. The Court erred in point of law, in admitting the defendant to give testimony to impeach the consideration of the note.

2dly. The verdict is against the charge of the Court in point of law.

3dly. The verdict is against the weight of evidence.

Wallace, for the defendant, opposed the rule.

Milnor. As the statute of Anne did not extend to Pennsylvania, in the year 1715 (a) our assembly passed a special act, for the purpose of establishing the negotiability of promissory notes, by making them assignable by indorsement, and allowing the assignee to sue in his own name.

The Supreme Court, M'Kean chief justice, in the construction of this act, decided, that the assignee of a promissory note, took it, subject to all equitable considerations to which the same was subject, in the hands of the indorser, the original payee. (b)

(4) Purdon's Abt. L. P. 23. (8) 1 Dall. Rep. 444. M'Cullough v. Houston.

1813.

263

GARRIGUES against VOGDES.