Hitchcock v. Munger

Gilchrist, J. Where there are several counts in a declaration, whether the subjects of them be really distinct, or identical, [102] they must always purport to be founded on distinct causes of action, and not to refer to the same matter. Stephen on Pleading, (2d Ed.,) 318, 319. This is rendered necessary by the rule against duplicity, the object of which is to ensure the production of a single issue upon the same subject matter in dispute. 1 Ch. Pl. 259. This rule, though evaded as to the declaration, by the use of several counts, is not permitted to be directly violated. Where there are several counts, they are for all purposes as distinct as if they were in different declarations, and they must severally contain all necessary allegations. But a party has a common law right to introduce several counts into his declaration, in fact for the same subject matter of complaint, and varying from the first count only in statement, description, or circumstances. 1 Ch. Pl. 451. In Barnes vs. May, Cro. Eliz. 240, a demand hr assumpsit for wool sold, was alleged to have been made “ at such a day and place.” The second count contained an averment, licet similiter requisitas, without alleging day and place, and it was adjudged good. In assumpsit for the defendant’s board for 120 weeks, the count alleged the price to be 7s. per week. The second count was upon a quantum meruit; and after verdict for the plaintiff, it was moved in arrest of the judgment, because the weeks in the quantum meruit were not laid to be alia than those in the special promise, sed non allocatur ; for they do not appear necessarily to be the same, and without necessity the court will not intend them so. Bac. Abr., Pleas and Pleadings, B, l. In Tindall vs. Moore, 2 Wils. 114, the action was slander upon several sets of words spoken by the defendant of the plaintiff. The first set charged the plaintiff with setting a certain house on fire. In the fifth set he said that the plaintiff “ set the house on fire,” (meaning the same house.) After verdict for the plaintiff, it was moved in arrest, that the latter set of words were not actionable, and the inuendo could not relate to the house mentioned in the first set of words. But it was held that though the latter set of words were not in themselves actionable, they should have relation to the former set. In Phillips vs. Fielding, 2 H. Bl. 123, which was assumpsit for the nonperformance of a spe-. [103] cial agreement, the first count set forth certain conditions of sale, and it was held that the other counts might have referred generally to those conditions without repeating them. Could, J. said that he remembered an indictment for forgery, in which there were three counts for the forgery, and three for the utterance. In the first count the prisoner was particularly described, and the grand jury having rejected the three first counts, an objection was raised that the remaining counts described him as “ the said A. 33.,” by reference to the first; but all the judges held that the description was good, and that the latter counts might refer to the former. In Stiles vs. Nokes, 7 East 493, Mr. Justice Lawrence says that a general reference to former parts of the record may be sufficient in pleading, without repeating the whole of such parts, where it is a reference to something certain. In a second count upon a deed or agreement, it is proper to aver that a certain other deed or agreement was made between the parties, containing the like terms and stipulations as are contained in the deed set forth in the first count. 1 Ch. Pl. 450, note, (h) The second count in the declaration before us refers to the first count with as much particularity as the law and authorities require. We are of opinion that it is sufficient, and that the motion in arrest of judgment should be overruled. The defendant excepts, because the court did not instruct the jury, that in order to justify a verdict for the plaintiff all reasonable doubt should be removed that the defendant had incurred the penalty sued for. This exception renders it necessary to inquire into the nature of what is commonly called an action qui tarn. This is an action to recover a penalty imposed by a statute when a person commits some act considered detrimental to the community, but whose criminality is not of an aggravated nature. It is the mildest proceeding of a penal character known to the law. A recovery is followed by no disqualification. It is not like a fine where imprisonment is the consequence of nonpayment. In the case of Ketland, qui tam, vs. The Cassius, 2 Dall. 365, a distinction is made between prosecutions against [104] persons for crimes, and proceedings to recover a forfeiture ; and Wilson, J. says that taking cognizance of a proceeding merely in rem cannot be considered as taking cognizance of a crime or offence. The proper plea is nil debet, although the plea of not guilty is allowable. Stilson vs. Tobey, 2 Mass. 521; Coppin vs. Carter, 1 T. R. 462; Burnham vs. Webster, 5 Mass. 270. An amendment may be made of the declaration. Jones vs. Ross, 2 Ball. 143 ; Davis vs. Saunders, 7 Mass. 62. In Hill vs. Davis, 4 Mass. 140, following the doctrine of Blackstone, 3 Comm. 117, 161, the court consider the action as ex contractu. But in Hardyman vs. Whitaker, 2 East 573, (n,) it was held to be founded upon a tort. And such is the opinion of this court in Powers vs. Spear, 3 N. H. Rep. 35. The difference, however, is not material, as the cases cited do not hold such an action to be a criminal cause. The attorney general cannot enter a mile prosequi except for the king’s part of the penalty. Stretton vs. Taylor, Cro. Eliz. 138. The decisions that have been made in relation to qui tam actions are consistent with the judgment of the court in the important and much considered case of Atcheson vs. Everett, Cowp. 382, which arose under the Toleration Act of 7 & 8 Wm. 3, eh. 34. The action was debt, to recover the penalty given by the statute against bribery. The question was whether a Quaker could be received as a witness at the trial, upon his affirmation. The objection was made that he was incompetent, because the Toleration Act excluded his testimony in “ criminal causes,” and this action was alleged to be a “ criminal cause.” But the court said that the distinction between criminal prosecutions and civil actions was well known; that penal actions were never put under the head of criminal law, or crimes; and that the suit was as much/a civil action as an action for money had and received. Lord Mansfield said that when the legislature excepted to the evidence of Quakers in criminal causes, they must be understood to mean causes technically criminal. It was held, therefore, that the affirmation of a Quaker was admissible; and we think that an action qui tam, although a process to recover a penalty for the commission of an offence, is not a criminal prosecution in the [105] ordinary sense of that term, and that a verdict for the plaintiff cannot be regarded as a conviction of a crime. After summing up the testimony upon a criminal trial, it is the practice for the judge to state to the jury, that, in order to authorize a conviction of the prisoner, they should be satisfied of his guilt beyond a reasonable doubt. “ The principal difference,” says Phillips, “ to be remarked between civil and criminal causes, with reference to the modes of proof by direct or circumstantial evidence, is, that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment, than in the latter case, which affects life and liberty.” 1 Phill on Ev. 166. We have not seen the rule explicitly stated, except in McNally on Pv. 2, 3, 4, and 578. “ Every thing,” he says, “ is a doubt in a civil case, where the jury weigh the evidence, and, having struck a fair balance, decide according to the weight of the evidence. This, however, is not the rule in criminal cases; for it is an established maxim that the jury are not to weigh the evidence, but in cases of doubt to acquit the prisoner.” It is said in Poscoe on Crim. Ev. 14, that the soundness of this distinction may perhaps be doubted. And it seems incorrect to say that the jury are not to weigh the eviidence; for, unless they do so, they cannot judge whether the prisoner be guilty beyond a reasonable doubt. However this may be, wo are not aware that the rule has ever been applied except in prosecutions for cilmes; and as this was not such a prosecution, our opinion is that the ruling of the court was correct, and that there should be Judgment on the verdict.