Prigmore v. Thompson

JUDGE Taylor delivered the opinion of the Court. This was a qui tam action to recover the amount of a forfeiture incurred under the Act of 1824, requiring hawkers and pedlars to take out a license. It is unnecessary to notice the many matters set out in the demurrer as special causes, and which are referred to in the fast assignment. The declaration is substantially defective, as it contains no averment that the defendant was either a hawker or pedlar, and sold goods as such. It is trae, that that part of the declai-ation which may be called the inducement, states “ that whereas the said Joseph L. Prigmore did, “ since the 25th day of December, 1824, and before the “ commencement of this suit, to wit, on the day of “ -April, 1825, at the town of Elyion, in the County of Jef-uferson aforesaid, as a pedlar, contrary to the provisions of the Statute in such case made and provided, sell goods “ and merchandize without license,” &c. &c. But there is no express averment that Prigmore was such hawker or pedlar as ought to take out license, nor is there any averment that he did sell goods, <fcc. An averment is a “ positive statement of facts in opposition to argument or inference.” There is no such statement in the declaration in this case, and the same certainty is always required in declarations in qui tam actions, as in indictment for misdemeanors. Let the judgment be reversed back to the writ, and the cause be remanded. Birney, for plaintiff in Error, cited Laws Ala. 853. 8 John. 218. 18 John. 428. Peck, for defendant in Error, cited 2 Bl. XL 842. 5 East. 244. 3 Wilson, 313. . 1 Term R. 141, &c¡ Rex against Little. 1st Burrow, 614.