Bat, J., delivered the resolution of the court, 28th April, 1807, Welds, J. absent. The case in Barnes very like this. It certainly appears to be a hard action. If the jury could conscientiously acquit the defendant, this court will not lend its aid to burthen him with this penalty, when it appears that he erred through mistake, or inadvertency ; and that he never made a practice of retailing, and had no apprehension that he was breaking the law. Motion discharged. Note. Qmrce. Whether the- court could grant a new trial for the State on acquittal? See 1 Burr. 11, 12.
Verdict against evidence, refused to be set aside. The action frivolous and vexatious, and real damage small. Vid. 1 Burr. 54, 664. See 2 John. 46. Justice done. If a penalty is given by statute, but no action for the recovery of it is therein given, an action of debt will lie for such penalty. Poph. 175.