DECEMBER TERM, 1827.
Thomas D. Watts v. Thomas Scott,
From Orange.
1 he act of 1802, c. 29, regulating the town of Hillsborough, enables the Treasurer of the Corporation to sue, in his o\vn name, for penalties incurred under the by-laws authorised by that act, as well as for those incurred under the act itself.
Tito Plaintiff, as Treasurer of the towu of Hillsbo-rough, warranted (he Defendant for a penalty incurred by the breach of an ordinance, passed by the Commissioners in the year 1822.
In the Superior Court, on the last Circuit, the Plaintiff relied upon the fifth section of the act of 1802, c. 29, entitled “ An act for the better regulation of the town of Hillsborough j” which section is as follows: “Arid be it further enacted, that the Commissioners of said town shall hereafter appoint a Treasurer, who, &c. and it shall be the duty of said Treasurer, in his own name, to sue for arid recover all forfeitures which shall accrue under this, or any other act heretofore passed and in force for the regulation of said town and contended, that under it, he was entitled to maintain the present action in his own name. His honor Judge Strange being of *292a (5i(ferent opinion, nonsuited the Plaintiff who appealed to this Court.
No Counsel appeared for the Plaintiff.
Badger, for the Defendant, submitted the case.
Ham, Judge.
The by-law under which the penalty in question is claimed, is not stated in the case ; but we are told that the Plaintiff founds his right to sue for it, under the 5th section of' the act of 1802, c. 29.. That section declares, that “ it shall be the duty of said Treasurer, in his own name, to sue for and recover all forfeitures which shall accrue under this or any other act heretofore passed.”
Now the penalty sought to be recovered, is not a penalty accruing for a direct breach of the act itself, as where the Constable refuses to execute a warrant, or process, directed to him from the Magistrate of Police ; but I think, by a liberal construction, it is a penalty accruing under the act. If the Commissioners are authorised to make by laws, (which is not disputed,) no doubt penalties are imposed for a breach of them, and such penalties indirectly accrue finder the provisions of the act which gave the power of imposing them, although they accrued directly under the by-law. No inconvenience can result from this construction of the act. The case is substantially within its meaning. — I therefore think, the nonsuit should be set aside, and a new trial granted.
Per Curiam. — Judgment reversed, and a new trial ' granted.