¶1The opinion of the Court was prepared by
¶2The defendant was indicted for being a common seller of wine, brandy, rum and other strong liquors, without license, contrary to the provisions of the statute, c. 36, § 17. Forfeitures and penalties exceeding twenty dollars, are to enure to the sole use of the town, in which the offence was committed. The witnesses introduced to prove the offence were inhabitants of the town, in which the offence was alleged to have been committed ; and they were objected to as interested in the penalty to be recovered. If an action of debt had been commenced for the recovery of the penalty, as it might have been, the witnesses, if they should be considered as interested, would have been admissible under the provisions of the statute, c. 115, ■§. 75. It is not probable, that the legislature designed, that witnesses should be admitted or excluded *114merely on account of the form or name of the process used to recover the penalty. And yet an indictment can hardly be considered as included in the words “all suits at law.” Were the witnesses incompetent according to the rules of the common law, because they were interested in the event of a conviction ? The interest to exclude must be direct and certain, not contingent or consequential. If the penalty should be recovered and paid into the town treasury, the witnesses could have no title to any portion of it. They could be benefitted only by the diminution of a tax, which might afterward be assessed upon them. And they might not be inhabitants of that town, or be living, at the time of the next assessment. In the case of the King v. Prosser, 4 T. R. 20, Mr. Justice Buller states, that the question arose before Mr. Baron Burland, “ in an action on a penal statute, which gave part of the penalty to the parish; and a person being called as a witness to support the action, who was liable to be rated to the poor, it was objected that such liability rendered him incompetent; but the learned J udge said, that as he was not rated, he had not an immediate interest at that time; and the witness was admitted. The same point has since been repeatedly ruled by different Judges.” In the case of the King v. The Inhabitants of Kirdford, 2 East, 560, Lord Ellenborough says, “ the rule is well laid down in Rex v. Prosser, and in other cases, particularly one mentioned by Mr. Justice Buller, in that case, before Baron Burland.” And speaking of the interest of the witness in the case then under consideration, he said, “ it was perfectly contingent, whether the witness would be interested or not; he might die, or part with his property before the making of the next rate.” The same doctrine was held in the cases of Cornwell v. Shepherd, 1 Day, 35 ; Eustis v. Parker, 1 N. H. R. 273; Bloodgood v. The overseers of the poor of Jamaica, 12 Johns. R. 285. These authorities justify the presiding Judge in overruling the objection.
¶3The counsel for the defendant moved the Court to quash the indictment as being too general, indefinite and uncertain in the description of the offence. This motion was overruled. *115The Court was under no legal obligation to quash the indictment, if it had been defective; for the party had his remedy by a demurrer, or by a motion in arrest. Rex v. Brotherton, 1 Stra. 702; Regina v. Parry, 2 Ld. Raym. 865. If it were necessary to decide upon the indictment, it might be found sufficient. Butman's case, 8 Greenl. 113. The bill of exceptions does not present any legal ground of complaint.
¶4 Exceptions overruled,
¶5 and case remanded io the District Court,