noticed in this connexion; and as it is instructive upon several points of frequent occurrence before justices, I give it at length-it may be found in 9th John. 367.

WALLSWORTH against Mead and Green.

In error, on certiorari, from a justice's court. Mead and Green, as overseers of the poor of the town of Norwich, brought an action of debt against Wallsworth, before a justice, to recover 25 dollars, on an order of bastardy, made by two justices of the peace, the 18th of September, 1801, which required W. to pay the weekly sum of 75 cents to the overseers of the poor, for the first year the child should be chargeable to the town, and 50 cents for every week thereafter, that the child remained chargeable. The plaintiffs demanded 75 cents a week, from the date of the order to the 10th of May, 1811. The defendant pleaded the general issue, and, specially, that no suit would lie on the order, it being illegal and void. The order, which was produced and read, directed the defendant to pay the weekly sum of 75 cents for 12 months, provided the child was so long chargeable.

The defendant produced in evidence a recognizance, dated the 28th August, 1810, taken for his appearance at the next general sessions of the peace, to abide and perform such order and orders as should be made pursuant to law. He also gave in evidence another recognizance, taken at the sessions, in October, 1810, for his appearance at the then next sessions. It appeared from the record of the court, that the defendant, at the sessions in January following, was discharged from his recognizance. The plaintiff's objected to this evidence, but it was admitted by the justice.

The plaintiffs then offered parol evidence to explain for what, and how the recognizances were taken and discharged. The defendant objected to such parol proof, but it was admitted by the justice. It was proved, that after notice of the order was served on the defendant, the plaintiffs received notice of an intended appeal from the order, to the October sessions. At the sessions, in October, the appeal was moved, and objected to by the plaintiffs, for want of sufficient notice in writing. The appeal was continued over to January, when the defendant appeared, and refused to prosecute his appeal, and his recognizance was thereupon discharged.

The defendant then objected that the plaintiffs were not entitled to recover, without showing that the child had actually been chargeable. The justice admitted the order as prima facie evidence of the child's being chargeable; but said that the defendant might show payment, or that the child had been maintained without any expense to the town.

No such evidence was given, and the justice gave judgment for the plaintiffs, for 25 dollars.

Per Curiam. The principal objection relied upon in this case is, that no action will lie upon the order in question. The objection is untenable. That order is an adjudication of a court of magistrates of competent authority, and conclusive upon the defendant, unless appealed from to the general sessions. Whether such appeal had been made, or can now be made, were questions not properly before the court. It was enough for the justice that such order was in full force, and not reversed or modified by the sessions. It was equivalent to a judgment that the defendant should pay the weekly sum of 75 cents. The order was prima facie evidence of the demand; and it rested with the defendant to show himself exonerated from the payment, in order to avoid the recovery against him. This seems to be the light in which such orders were held by this court, in the case of Sweet v. The Overseers of Clinton, (3 John. Rep. 26.) The judgment must, therefore, be affirmed.

Judgment affirmed.

3. The most usual actions brought in this court, for a penalty given by statute, are, actions for selling spirituous liquors without license, and other penalties, arising under the statute to regulate taverns and groceries; (u). actions for various penalties under the act to regulate highways, bridges and ferries; (v) for money or other thing won at playing any game, under the statute of betting and gaming;(w) and a great variety of other penalties for divers offences, scattered through our statute book, the rules of prosecuting for which are nearly the same in all cases. An action of debt prosecuted in the ordinary way before a justice, is also the only proper mode of recovering the penalty for obstructing or encroaching upon roads.(x) And it is proper also to remark, in regard to these actions, that the husband is in general answerable for a forfeiture under a penal statute, incurred by the wife; as for selling spirituous liquor without license; winning money at play, and so of other cases. (y) This is also the proper action against a sheriff for suffering a prisoner to escape from execution; or against a constable for neglecting to return an execution issued by a justice, within five days after the return day thereof, and it is not necessary to shew moneys collected by him to sustain the action.(z)

(u) 1 R. S. 676.

(v) id. 499.

(w) id. 666.

(x) 3 Caines, 259. 1 John. 510, and

vid. 7 Wen. 145.

(y) 10 John. 247.

(z) 2 R. S. 182, § 157. 20 John. 356. 10 Wen. 870.

And the constable's sureties are liable in the same action with him; for it is held that the responsibility of the sureties is co-extensive with that of the constable, and that they are liable whenever he is liable to a party, in whose favor an execution has been delivered to him. (a) These actions, when a part of the penalty goes to the informer, and a part to the overseers of the poor, commissioners of highways, or some person or persons other than the prosecutor, are called qui tam actions; when any one of the people is allowed to prosecute and recover the whole penalty to his sole use, they are called popular actions.(b) Other actions given by statute, as for escapes, lie only at the suit of the party aggrieved. These escapes are either voluntary, as where they are permitted by the officer, or negligent, being without his consent. In the former case, the officer cannot retake the prisoner, unless the plaintiff in the execution shall issue a new process; nor is his case bettered by retaking him, without such new process, or by a voluntary return, and continuance in custody by the prisoner before suit brought for the escape; unless the plaintiff in the execution does some act showing his election to hold him on the process; (c) but in case of a negligent escape, recaption on fresh pursuit, or voluntary return before suit brought, may be pleaded as a defence to the action. (d) In an action to recover money lost upon a horse race, under the act, (1. N. R. L. 223,) it was held, that the sum actually won by the defendant could alone be recovered, and though the whole be staked in his name, yet, if he in fact was the proprietor of only a part of the bet, and won only a proportion, his aliquot part alone was to be refunded. (e) The same construction would probably be given to sections 8 and 9 of the statute against betting and gaming, (1 R. S. 666,) which extend to bets made upon races, although not incorporated in the statute to prevent the racing of animals. An action cannot be sustained under the last named statute, for keeping a horse for trotting, and using him for that purpose on a wager;(ƒ) trotting is not racing within the meaning of the statute. All suits for forfeitures incurred for a violation of this statute, must be brought in the names of the overseers of the poor of the town where the offence is committed.(g) A license to keep an inn or tavern, is a personal trust, and cannot be assigned so as to protect any

one except the very person to whom granted.(h) Whether a contract to sell five gallons of spirituous liquor, to be taken away in small quantities, at the pleasure of the purchaser, the seller having no license, is a violation of the excise law, depends upon the question whether the seller's intention be fair, or a mere evasion of the statute; and this is a question for the jury.(i) Under the turnpike act, (1 N. R. L. 234, reenacted in 1 R. S. 590, § 50,) the toll gatherer is not liable to five dollars penalty, for demanding toll of one exempt from its payment, but only when he demands more than is due, or hinders and delays travellers and passengers bound to pay toll.(j) And where a turnpike act forbids a person, after having travelled upon it, to turn off with his team, cattle, &c. in order to pass the gate or gates on ground adjacent thereto, and again enter on the road, with intention to defraud the company, by avoiding the payment of toll, and inflicts a penalty, it is no excuse that he turned off and travelled on an old road, and the only question is, whether he turned off in good faith; and though he turn off more than half a mile from the gate, yet it is turning off on ground adjacent to the gate, within the meaning of the act.(k) A one horse waggon with a spring seat, and pannelled sides, and which is not used for farming purposes, or carrying goods, is a pleasure carriage within the meaning of the act to establish the Seneca Turnpike road company, passed April 1, 1800, (2 K. & R. ed. L. 412, 423, sess. 23, ch. 78, s. 11.) The toll thereof is 12 cents, and no penalty is, consequently, recoverable for taking that sum.(1)

SECTION II.

OF THE ACTION OF COVENANT.

Covenant lies in all cases for the recovery of damages, for breach of an agreement under seal, to do or not to do a particular thing, as to pay a sum of money, repair a house, and the like; and the bare putting a seal to a promissory note, actually changes the nature of the contract, and makes that a covenant which would otherwise have been a simple contract or promise. No consideration need be expressed, for the seal is said to import a consideration. No precise or formal terms are neces

(h) 14 John. 231. (i) 1 Cowen, 77. (j) 16 John. 78.

(k) 18 John. 56.
(1)18 John. 128.

sary to constitute a covenant, more than any other agreement. The inquiry always is, what was the intention of the parties? and any words amounting to an agreement or engagement to do or not to do, &c. will constitute a covenant; as if in a lease it is said, that "the lessee shall repair;" this is a covenant to repair, and so with any words of like import.(m)

This action is the usual and proper one in all the following cases, as well as in a great variety of others: 1. On a sealed note; 2. On an agreement, under seal, to pay a particular sum of money, either absolutely, or on certain conditions being performed by the party to whom payment is to be made; 3. On a sealed lease for rent certain, where there is an express covenant to pay; and the words yielding and paying, usual in a lease, are held to import a covenant ;(n) 4. On a covenant for quiet enjoyment of premises, leased or sold; 5. On a covenant to save harmless or keep indemnified; 6. On a covenant to make a title, or farther assurance of title; 7. On a covenant to pay taxes; 8. On a covenant not to plough meadows, commit waste, and other usual covenants in leases; 9. On an agreement under seal to do work, deliver a horse, &c.; 10. On bonds given in the course of a suit in a justice's court; such as bonds given on issuing an attachment, bonds on adjournment, and the like; 11. Against a constable and his sureties, or one of them, on an agreement under the statute, to pay money, which such constable shall become liable for, on account of any execution, &c.(0) But if the security required to be given by the statute be in the form of a penal bond to the people, as it may be,(p) an action of debt in the name of the people may be maintained on such bond;(9) but debt in such case will not lie in the name of the party aggrieved, the action should be covenant in his name, or debt in the name of the people.(r)

It is not necessary that both parties should execute the agreement; it is enough that this be done by the party to be charged ;(s) and if an indenture of apprenticeship state, that the son is bound with the consent of the father, and the father sign the indenture and seal it, he is accountable for a breach of the covenants, even though he is not named therein.(t) And covenant appears in general to be a concurrent remedy with debt, for the recovery of any money demand, where there is an express or implied contract

(m) Vid. Esp. Dig. N. Y. ed. pt. 2, 115. 5 Cowen, 170, and vid. 1 Bibb, 379. (n) id. ibid.

(0) 1 R. S. 840, § 30. 4 Wen. 414. (p) 5 Wen. 191. 9 id. 233.

(q) 5 Wen. 191. 9 id. 233.
(r) id.

(8) Cro. Eliz. 212.

(t) 10 John. 99.