¶1The questions argued in this case, appear from the opinion of the Court which was drawn up by
¶2Since the opinion in Lee v. Clarke, 2 East’s R., 333, pronounced in 1802, it has been invariably held by subsequent decisions, both English and American, that in an action on a penal statute the declaration must allege the fact *352to be done contra formant statuti, or in language equivalent thereto; unless the same facts "would constitute an offence or ground of action at common law; and we are not disposed, at this late day, without the aid of legislation, to obliterate so many legal monuments of the law, to avoid defects in the declaration now before us, if defects there be. A recent statute has rendered those words immaterial, in, indictments and complaints, but penal statutes, not being therein mentioned, still retain that one attribute of legal strictness.-.
¶3It has been also held, that the words, whereby and by force of the statute, an action hath accrued, &o., are not equivalent to the words, contrary to the form of the statute., -But the declaration in this case proceeds further than any other controverted declaration *ever before presented. After stating the offence in the words of the statute, it concludes • in the language following;- — Whereby, by force of sections two, (creating the offence,) and twenty-three, (providing the remedy,) of the twenty-third chapter of the Revised Statutes of the State of Maine, an action has arisen to the plaintiff,” &c.
¶4Now, while we adhere to the strictly technical rule, founded on good considerations, no doubt, although difficult to be perceived by the practical and common mind, still we' would not extend it, unless an omission so to do would tend to the prejudice of the defendant. Not being at present so impressed, the Exceptions must he overruled.