principal is not an abfconding debtor, for if he be not, he is not liable to the action. Where a recovery is had by force of this action, and the eltate of the principal, by process and judgment of law taken from the garnishee, he is difcharged from the principal: and in action brought against him, may plead the general iffue, and give the ftatute in evidence. The garnishee, if judgment is rendered in his favour, is entitled to his cost.

Tho a thing in action cannot legally be affigned, yet equity will fo far prote&t fuch affignment, that where it shall appear on trial, that the debt was bona fide affigned, before the service of the original writ, it shall not be liable to be taken by this procefs. b Where a note was affigned, and by process of foreign attachment, the creditors of the affignor recovered it from the promillor, tho he gave notice of the fuit brought against him, to the affignee, and made all the defence in his power, on the ground of the affignment, it was held in an action brought by the affignee, in the name of the affignor, that tho the note was affigned, yet the recovery had against the promiffor, fhould bar the action, because the payment was compulfory in the courfe of law, and ought to exonerate him. Two garnifhees cannot be joined in a fcire facias, unless they are joint debtors, or agents.

CHAPTER SEVENTEENTH.

OF ACTIONS ON STATUTES.

WE have hitherto treated of actions at common law; but

where a perfon has a right of action, given him by virtue of fome ftatute, it is neceffary for him to bring his action on that ftatute, and he cannot declare generally, as at common law.— There are feveral kinds of actions, grounded on ftatutes, which I fhall confider feparately.

I. Of Action of Debt on Statutes. The general rule of law is, that wherever a ftatute prohibits a thing, as being an immediate offence, against the public good in general, under a certain penalty, and the penalty, or part of it, is given to him who

Fobbs, vs. Brewster. Sup C 1790.

Hooper. vs. Brown, Sup. C. 3793.

Stuart, vs. Brewfer and Boardman, Sup. C. 1793.

who will fue for it; any perfon may bring his action, and lay his demand as well for the state, as himself; but unless the penalty, or fome part of it be given to fome private perfon, fuch action will not lie. Penalties created by ftatute, may either be given to the perfon injured by the act, for which the penalty is incurred, or they may be given to any perfon, who will fue for the fame-when fuch person is called a common informer, and the fuit a popular action; the penalty is fometimes given, partly to the public, and partly to the party injured, or to a common informer, or for the benefit of fome corporation.

Action of debt, will lie in all cafes where the penalty is certain, and fixed by the ftatute. Where the whole forfeiture, or penalty, is given to fome particular perfon, this action will lie in his name only; but if part of the penalty be given to the public, and part to the individual, then the ftate must be joined in the fuit.

Where a statute gives a certain fum to the party injured, and inflicts a certain fine, to be paid to fome public treasury, there the plaintiff may either bring his action separately for the recovery of the penalty payable to himself, or may join the state in his fuit, and then the defendant may be fubjected to pay the fine to the ftate. But where the penalty is divided, and part is to be paid to the public, and part to the party injured, or where the action is given to fome common informer, the state must be joined in the suit. Where the fuit is intended to recover any penalty, more than belongs to the party fuing, it must be laid as well for the state, as for the party himself, even tho it being going to fome corpo ration, or a third person, and it must be alledged, that a right of a¶ion has accrued to them, to recover the fame. In an action of debt on ftatute, the plaintiff need not recite the ftatute, but may barely count upon it. If he takes upon himself to recite the statute, and materially varies from it in a fubftantial part, it is fatal; but an immaterial variance, will not be ill. Action of debt, will not lie upon a ftatute where the confequence of a conviction, is to fubject the party to a corporal punishment.

2. Affumpfit will lie on Statutes, in all cafes where debt will

of

3.

Of actions on Statutes, literally fo called. This is a form of action, peculiar to this state, and may be confidered as directly founded on the statute. It is very fingular for its fimplicity. It has not the form of debt, or affumpfit-Without assuming the fhape of the fiction of debt, on which the action is fuppof. ed to be grounded, it is brought directly for the penalty, or forfeiture. It recites, or counts upor the ftatute, in the fame manner as in debt, then alledges the fact that incurs the penalty-and demands the fame. It is an action in point of form, founded on the plaineft principles of common fenfe, regardless of legal fiction, and technical formality.

This action will lie, not only in all cafes where debt will, and is fo far governable by the fame rules; but will also lie in some cafes where debt will not where the penalty is not precisely fixed by law, but only according to a certain rate, dependant on the facts proved, and to be afcertained, and eftimated by the court as in the cafes of actions on the ftatute respecting tref. paffes, or on cafes where treble dantages are given. This action however, like the action of debt will not lie, where the confequence of the conviction would be to fubject the defendant to a corporal punishment, nor on the ftatute to prevent diforders in the night season, or against breaches of the peace. The general defcription of this action is, that it is a remedy given to the party in all cafes where any right is created, or penalty given by statute, whether the fum be previously fixed by ftatute, or whether it depends upon a calculation, or estimation by the court. This remedy has therefore rendered unneceffary, the action of debt on ftatute-tho it is ftill in ufe.

In all cafes, where a right of action is created by statute, it is neceffary that the action be brought on the ftatute, and not generally as at common law. The following point was fettled, in the cafe of Spalding against Weeks, and others, a fociety com mittee, on writ of error before the fuperior court. The plaintiff was elected a fociety collector, and refufed to accept, upon which the defendants in error, the fociety committee, brought their action to recover the penalty incurred by force of ftatute. It was an action

on the ftatute, and the payment of the penalty was not negated. For this there was a demurrer to the declaration, which was ad judged fufficient in the county court, and on writ of error, the judgment was affirmed on this principle, that tho in action of debt on ftatute, the payment of the penalty must be negated, yet that this action is of a different nature, and by long and immemorial usage had become established, and that it was not neceffary to negate the payment of the penalty.

4. Actions, or Informations qui tam, upon ftatutes, will lie in cafes where fome offence is created by ftatute, and a certain forfeiture, or damages to be estimated by the court, are given to the party injured, and a fine inflicted, payable into fome public treafury, and alfo corporal punishment. On all fuch ftatutes information qui tam will lie, and it partakes of a criminal prosecution; but there are fome inftances where this action will lie, by the practice of our courts, as on the ftatute respecting breach of the peace, and to prevent diforders in the night season, tho no corporal punishment can be inflicted, and the offender is only liable to damages, to the party injured, and to pay a fine to the public, at the difcretion of the court. But excepting these two inftances, I believe this kind of action will only lie, in the cafes where corporal punishment is to be inflicted, as on the statutes against forgery, perjury, and theft.

This is a motley kind of action, and originated from the practice of courts of law in this ftate. The courts have lately decided that it partakes fo much of actions of a criminal nature, that the parties cannot appeal. All informations qui tam, must be as well in the name of the state, as of the informer: the facts to constitute the offence must be stated in the fame manner, as in an indictment, and the declaration must conclude not only against the statute, but against the peace.

There is a material diftinction between the other actions on ftatutes and this, as it refpects the mode of procefs. In the former, the ordinary notice in civil fuits is required to be given to the defendant, but in this, a complaint or information is exhibited to a court, or fome juftice, fubfcribed by the informant, on which a

warrant

warrant fues to apprehend the body of the defendant, and him bring before the court, who may proceed inftantly to trial. But if the body of the defendant cannot be found, the procefs fails, for fervice of the writ cannot be made in any other mode.

When we confider the process to be the fame as in criminal profecutions, and that the perfon is to be arrested, and had before the court, it is apparent, that public policy will not permit, or public justice require, that this profecution should be extended farther than I have mentioned. There is a propriety in applying it in cafes where corporal punishment is to be inflicted, and alfo, in the cafes of breaches of the peace, and committing diforders in the night, as these are offences of a public nature, and are mala in se, or bad in themselves. But in cafes where actions are prohibited by pofitive ftatute as a political inconvenience, fuch mode of procefs could not be juftified. And according to the prefent pract ice, the liberty of the citizen can hardly be faid to be well fecured, for every perfon is liable in certain cafes to be arrested on qui tam profecutions, at the fuit of a private person, who is not under oath as an informing officer, and brought to immediate trial, with out the notice given in civil fuits.

All actions on ftatutes may be faid to depend upon the form of the statute, and where damages are given to fome private perfon, and fome punishment is inflicted by the public, the law authorifes the joining of the party and the public. The particular form of action must depend upon the nature of the crime, and the penalty, or punishment. Where the penalty is pecuniary and for a fum certain, debt or affumpfit will lie, or action on ftatute. Where the penalty is pecuniary and uncertain, but the act bad becaufe prohibited, and not bad in a moral view, there action on ftatute will lie. As in trefpaffes for cutting timber: but where the puniflunent is corporal, or the offences bad in themselves, and of a public nature, fo that the offender ought to appear in perfon for trial, as breaches of the then inforpeace, mations qui tam can only be brought and in the ftatutes against breaches of the peace, and committing diforders in the nigl.t, there is an exprefs authority ta arreft the defendant forthwith, and bring

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