#### NATHAN WRIGHT *vs.*THOMAS B. WHEELER.

Where a writ is signed by a cierk in blank, and delivered by himself or his deputy to another parson to be filled up and placed In the hands of the sheriff, the clerk is liable to the penalty of one hundred dollars, under the Act of 1836, *Rev. St. Ch.*31, *Sec.*46, if no security for the costs has been given, especially after the writ has been returned and regularly docketed by the clerk.

In an action upon a statute to recover a penalty, the plaintiff' must set forth, in his declaration, every fact, which is necessary to inform the Court, that his case is within the statute.

Therefore in an aetion on the statute, *Rev. St. Ch.*31, Sec. 44,46, against a clerk for not taking “sufficient security” for the costs, the declaration must set forth, either that the clerk took *no security,*or that he took insufficient security, knowing it to be insufficient; otherwise a demurrer will be sustained, or a judgment after verdict be arrested.

Appeal from the Superior Court of Law of Rockingham County, at the Fall Term, 1847, his Honor Judge Bailey presiding.

The defendant, in the year 1843, was, and still is, Cleric of the Court of Pleas and Quarter Sessions of Rocking-ham County. In that year a writ issued from his office* at the suit of one Charles G. Taft against the present plaintiff Nathan Wright. The plaintiff’s declaration states, that the defendant did issue said writ, and caused it to be placed in the hands of the sheriff, “without having taken of him, the said Charles G. Taft, before issuing said writ, *sufficient*security, conditioned,” &c. The action is brought under the Act of 1836, *Rev. St. Ch.*31, to recover the penalty ef $ 100, given in the 46th sec. By the 44 th section, the Clerk of every Court of record, or his assistant in office, is required before issuing any writ or other leading process, to take sufficient security of the person applying for it, conditioned,” &c. The 45th sec» *185tion directs, that the Clerk by himself or deputy, shall enter all writs issued by him in a book to be kept for that purpose, together with the names of the plaintiff and defendant, and the place of their abode, and the names of the security or securities, and where they live, &c. By the 46th section it is provided : “ If any clerk, either by himself or his assistant in office, shall issue any writ, die-otherwise than as by the two preceding sections directed, he shall pay to the defendant, &c., and shall also forfeit and pay, the sum of $100, &c., for such offence, so committed by sueh clerk, or his assistant in office, recoverable, &c., one half to the use of the person suing for the same, the other half to the use of the poor of the County.” The action is brought to recover this penalty. The case states, that Mr. Read, a practising attorney of the Court, was furnished with a blank writ, by whom he did not know, but, he believed, by the deputy clerk, which was signed by the clerk, and that he filled it up, and put it into the hands of the sheriff to be executed. _ It further appeared that it was executed and duly returned, and entered on the docket by the defendant, and the defendant afterwards executed a bond for the prosecution of the suit. Under these circumstances, the presiding Judge charged the jury, that the plaintiff was entitled to their verdict, as it was a matter of indifference from whom Mr. Read-received the writ, whether from the clerk, his deputy, or some member of the bar.

There was a verdict for the plaintiff and the defendant appealed.

*Waddell,*for the plaintiff.

*J. T. Morehead,*for the defendant, argued as follows :

This is an action, brought for the penalty given against the clerk, for issuing a writ without taking security for the prosecution of the suit. The language of the Act is, “If *186any clerk, either by himself, *or his assistant*in office, shall issue any writ, &c., he shall forfeit and pay the sum of one hundred dollars, &c., *Rev- St. ch.*31, *sec.*46. At the time the paper in dispute was handed out by the clerk with the defendant’s signature, it was no writ: it was nothing but a harmless piece of paper : because attestation is essential to every writ. *Constitution of the State, Sec.*36. The subsequent filling it up and inserting the attestation by a gentleman of the bar, cannot complete the offence, because the act gives the penalty against the clerk, only, for his omission to take security, or that of his *assistant*in office. Members of the bar are not assistants in office, nor does the law recognise them as such. *Shepperd*v. Lane, 2 Dev. 148. It is probable that an attorney may issue a writ signed by the clerk, as by the 43rd section of the same Act: “The clerk or attorney, issuing process, shall mark thereon the day on which the same shall be issued but it is clear that the *omission of the*attorney cannot subject the clerk to the penalty, because he is not his assistant in office. It is therefore submitted, that there is error in the charge of the Court, and that the defendant is entitled to a new trial.

But should the Court refuse a new trial, a motion in arrest of judgment is submitted, and the following reasons assigned.

1st. The declaration does not allege, that- the issuing of the writ was done by the defendant, wilfully or unlawfully, or against the will of Wright, the defendant, or without his leave or consent.

2nd. It is not charged that no bond was taken, at the issuing of the writ, but the averment is, the writ was issued, without having taken *sufficient security ; it*should have charged, that no bond or other security was taken. *Chitty's Plead.*240-41.

3rd. The declaration does not, negative the fact, that the writ was issued upon a certificate to sue in *forma pauperis*without security.

*1874th. It is of the essence of the offence, under the statute, that a writ had issued ; which should be set-forth in *licec verba ;*at all events, the declaration should aver all its material parts. The declaration does not set-forth the teste of the writ. An officer who justifies under process must set forth his process in *7icec verba. Chit. PI.*228. *Greene*v. *Jones,*1 Saun. 298, note 1.

Nash, J.

In the opinion of the Court below, we entirely concur. The defendant, by signing the writ in blank, and suffering it, in that situation, to leave the office, became responsible for the act of the person, who did issue it, without taking the security as directed by law. He thereby constituted Mr. Read- his agent, or in the words of the Act, Mr. Read was his assistant in issuing it. The language of the 46th section is, “ If any clerk by himself, or his assistant in office &c.” and the 45th directs, “ that the clerk by himself or his *deputy*&c.” thereby recognising in the act to be done by the clerk, before issuing the writ, a difference between the deputy and the assistant. The deputy is an officer, who must take an oath of office, before he enters upon his duties, and those duties continue as long as his appointment endures. An assistant is one, who is called in by the clerk, without any regular appointment, to aid him, either in conducting the business of the office generally, or to aid him in some particular. A. may be his assistant to-day, and B. to-morrow, and they may both be assistants, either in doing the same matter, or divers matters at the same time. But the defendant’s liability in this case is conclusively shown, by the fact that the writ was returned to him, and received by him, and regularly docketed. And he farther became, after its return, the surety on the prosecution bond. By these acts, he recognised and adopted the writ as regularly issued, and is concluded from the defence, that it was done by one not authorised by him. Upon this latter ground, the *188opinion of my brother Ruffin is founded, on this part of the case. If there were no other objection to the plaintiff's recovery, we should without hesitation affirm the judgment. But, unfortunately, the record discloses an error, for which the judgment must be arrested. It is a principle in pleading, that the declaration must set forth a good title to that, which is sought to be recovered; if it does not, the defendant may demur, or move in arrest of judgment, or bring a writ of error. *Archb. Civ. PI.*109. In an action upon a statute, to recover a penalty, the plaintiff must set forth in his declaration every fact which is necessary to inform the Court, that his case is within the statute, *Arch. Civ. PI.*106; and it is laid down by Mr. *Ghitty*in his treatise on pleading, 1st vol. 405, that it is necessary, in all cases, that the offence or act charged to have been committed, or omitted, by the defendant, appears to have been within the provision of the statute, and that *all the circumstances necessary to sustain the action, must he alleged.*In *Bigelow*v. John*ston,*13 Joh. R. 429, the same principle is recognised, and the Court state it to be a well settled rule in pleading, that, in declaring for offences against penal statutes, (when no form is expressly given) the plaintiff is bound to set forth, *specially, the*facts on which he relies to constitute the offence. Here no form is presented by the statute. So in Hall’s Rep. 1 vol. 324, *McKeon*v. *Lane,*it is decided by the Court, that the declaration must have sufficient certainty on its face, to enable the Court to know what has been done. Facts are to be stated, not inferences, or matters of law, and the party succeeds upon his facts as alleged and proved; nor will *the*conclusion *contra formam statuti*aid the omission, 1 *Saund.*135, IV. 3, 13 *East.*258. In the case before us, the declaration states the omission of duty on the part of the defendant to consist, in not taking *sufficient security,*before the writ was issued, but it does not inform us of what that insufficiency consists. Did it consist in not taking *189any bond, for that would come within the meaning of the statute, or did it consist in taking security which was known to the defendant, when he took it, to be insufficient. The insufficiency meant by the Legislature must have been one of these two, and could not refer to any deficiency in goodness, arising after the bond taken ; for it would come neither within the letter nor the meaning of the statute ; that evidently refers to the state of the facts at the time when the security ought to have been taken. The declaration, then, is defective : it does not set forth specially the *facts,*upon which the plaintiff relies to constitute the offence ; it has not that certainty on its face, as will enable the Court to see what has been omitted. The plaintiff has satisfied himself by stating only the inference, which the law draws from the facts. *McKay*v. *Woodle,*6 Ired. 358. For any thing that appears on the declaration, the defendant may have taken a bond for the prosecution. If he did, the penalty was not incurred, according to the true construction of the Act, although the surety might not, in fact, have been sufficient, unless the defendant wilfully received him, knowing him to be insufficient. For it was certainly not the intention of the Act to visit the clerk with the penalty, over and above damages to the party, for an innocent mistake as to the sufficiency of the surety. Therefore, the declaration ought to allege, either that the defendant took no bond at all, or that he took a bond from persons that were not sufficient, to the knowledge of the clerk. For it is not enough to bring a ease within the words of the statute; but it must be brought within its meaning and legal effect, and as if the words had fully expressed the meaning. As it is the duty of this Court to look into the whole *record*and pronounce such judgment thereon, as the Court below ought to have done, the judgment must be arrested, for the defect in the declaration.

Per Curiam. Judgment arrested.