S. J. and W. M. Bayard vs. Smith, 17 Wend. 88

By the Court, Nelson, Ch. J. This action was brought upon the following

section of the revised statutes; “ If any person or persons shall hereafter use any weights, measures or beams in weighing or measuring, which shall not be conformable to the standards of this state, established in this title, whereby any purchaser of any commodity or

article of trade or traffic, shall be injured or defrauded, such purchaser may maintain an action on the case against the offender; and if judgment shall be rendered for the plaintiff, he shall recover treble damages, with costs of suit ” (1 R. S. 611. §33). No form of declaring is prescribed, nor are directions given in this respect, as is done in respect to certain actions given by the revised statutes (2 R. S. 351, § 1, 2, 3; id. 480, § 1; id. 482, § 10, 11, 12). The declaration, therefore, must be drawn as at common law. As this is a public statute, [90] it is not necessary to recite it.

Indeed, it is never advisable to do so, as a mis-recital may sometimes be fatal. It is only necessary for the party seeking to avail himself of it, to state facts which bring his case within the provisions of the statute, and generally to refer to it (1 Saund. Pl. and Ev. 33, 34). All the circumstances essential to support the action must be alleged, or in substance appear on the face of the declaration (1 Saund. 135, n. 3; 5 East, 244; Saund. Pl. and Ev. 830).

Testing the declaration in question by these plain rules, there is no difficulty in pronouncing it sufficient; it states with all due particularity the use of weights by the defendant, not conformable to the statute standard, and the injury of the plaintiffs thereby sustained as purchasers from him of a commodity or

article of trade. It is not necessary to allege that the defendant knowingly used false weights. The statute does not require such allegation. A party uses them at his peril; and is bound to see that the weights used by him are at all times conformable to the standard of weights prescribed by law. The form of the conclusion of the counts may be subject to the verbal criticism made upon them, namely, that they follow the precedents in debt; but this is merely surplusage, and not a defect available even on special demurrer.

Every thing essential to the conclusion in an action upon the case is stated; the declaration alleges that the plaintiffs have sustained damages, and they are laid sufficiently large to cover the amount sought to be recovered (1 Chitty, 398), which is the principal objection of the conclusion. Judgment for plaintiffs on demurrer; leave to defendant to amend on payment of costs.