Yarter v. Flagg

W. Allen, J. The Pub. Sts. c. 99, §§ 1, 2, in giving an action of tort to a common informer to recover of the owner of a place in which property is lost by gaming treble the value thereof, provide for the recovery of a penalty; and the action does not survive against the representatives of the defendant, either at common law or by the Pub. Sts. e. 165, § 1. The assumption on which the argument for the plaintiff is founded, that, prior to the General Statutes, the action to recover a like penalty survived because the form of the action was debt, is unwarranted. The earlier statutes, passed when debt was the common action for penalties, (St. 1793, c. 43, § 4; Rev. Sts. e. 118, § 42,) gave a qui tarn action of debt to recover a penalty, one half of which was for the use of the Commonwealth. The General Statutes, passed after the Practice Act (St. 1852, c. 312, § 2) had provided that tort should include all actions for penalties, prescribed the action of tort, and gave the whole penalty to the informer. St. 1785, a. 58. Rev. Sts. e. 50, § 12. St. 1837, o, 179. Gen. Sts. c. 85, § 1. Plainly neither action can survive against a defendant. Exceptions overruled.