#### JOHN W. ATKINSON, Qui tam, v. GEO. W. WILLIAMS and D. R. MURCHISON.

The penalty for selling rosin in Wilmington without having it weighed, given by act of 19th March 1869, is not incurred where the rosin when sold was in transitu from Wilmington to New Tori, although the parties to the sale were both at the time in Wiliningtiiii.'

Action for a penalty, tried by Bussd, J., at New Hanover, Spring Term 1869. ■

The rosin, in the sale of which it was alleged that the penalty had been incurred,' had left Wilmington the day before by steamer for New York," and was then'in'lráñsiiu,. The parties to the sale both resided iff Wilmington,"and the1 transaction was baiia fidA. ' ‘.. '

*593His Honor baying given judgment for theplaintiff, the defendant appealed.

Person, for the appellant.

No counsel contra.

Reade, J.

“ All rosin sold in the city of Wilmington shall be weighed,” &c.; and “ Any person selling rosin in the city of Wilmington without its having been weighed as aforesaid, shall forfeit,” &c., act 29th March, 1869. The seller and buyer in the present case lived in Wilmington, and the sale was made there, but the rosin was not there, but was in transitu to New York.

The question is, are the sellers liable to the penalty:

They are not. The act was intended to regulate the local market of Wilmington, in regard to things present and sold there. How could the rosin be weighed when it was not there ?

Whether if the rosin had been sent out of the market and then sold t© avoid the operation of the act the penalty would have attached, is a question not before us, because it is stated that the transaction was bona fide.

The judgment below is reversed, and judgment here for the defendants.

Per Curiam. Judgment reversed.