Majority
p. 218Joseph Ely against Harman Van Beuren. ALBANY, August, 1805.
Headnote
After verdict-in a justices court in an action foe a penalty, it Will be intended that the offence proved, :was such as warranted ally declared . ior, and there;fore all form in the declaration asuit, if only.a penalty be mantled, it will, after verdict, be intended the res-.due was waiv-fend-uit^below cannot for error, that erwhhan might have been sued fact, ^winch*is ho offence, and mage? appear noitohavebeen for,C"and only maiter of ag-giavation. 'ON CERTIORARI. The suit below was under the . . 15th section or the act[1] concerning slaves and servants, to recover the penalty of 12 dols. 50 cts. for trading with the , ° . slave of the plaintiff. The declaration was for only 12 dols.” cts> stating the trading to be to.the amount of two dul-00 _ , and that the defendant had also innoculated the child 0f ⅛⅛ slave.
The errors submitted were, first, that the kinds of goods §⅛! Were not set forth. It might have been liquor ; and then, under the 15th section, the penalty was only five dol-2dly, that the plaintiff should also have declared for the treble value of the. articles traded in ; the action having ¡jeen for onfy jiajf Gf the forfeitures incurred, for the two J sums of 12 dols. 50 cts., and the treble value of the goods, ma‘ce but.one penalty.' 3dly,that the inoculation .complain-of, was no offence.
We must, after trial, intend, that the trad-was shewn by proof, to be within the loth section, and tras not for strong liquor. As to the suit being for only a Pari ihe penalty, it is clear that the plaintiff was entitled to wJjat he did demand, the 12 dols. 50 cts. ; he might have waived the treble, damages, as. he had a right to do,'and the defendant below cannot complain that the plaintiff has re* covered less than he might have sued for. The parties ap-peare¿ ay the tria}, and no-objection Vas taken to the form 1 . ,. ... of the declaration; eyery informality 01 .it is, therefore, cui-ed ; and we must now intend the substance of it vas proy’
p. 219
ed. The inoculation, therefore, was idle and null. It was . • , i • i i*. but mere aggravation, ana, as only a single penalty was recovered, it is evident no damages were given on that account. Affirm the judgment.