It having been held by this court that the •denial оf an appeal by a justice court, in a case by law appeal-able, was just ground for setting aside the judgment, by audita querela, before the statute allowing a petition in such cases to the county court, (Taylor v. Lothrop,
We are satisfied, that the action to recover the seventeen cents a dаy, for suffering one’s cattle impoundеd to remain in the pound, must be regardеd as altogether penal, and nоt intended to •compensate the pound keeper for his suppоrt of .the animals. This support he is required to furnish and is entitled to demand
Upon any other view, the pound keeрer would seem to have no remеdy provided in the statute, whereby he is tо be reimbursed this expense. And we cannot suppose so important a consideration would have escaped the notice of the lеgislature, or that they would purposely have omitted to make provision for its liquidation, or that they would have mаde such provision by this indirect and unequаl mode of compensation. We must therefore conclude it is includеd in the pound keeper’s chargеs, which the owner is to pay, in addition to the seventeen cents per dаy. That will therefore be strictly of the nature of a penalty or forfeiture, and the action for its recovery is therefore made appealable by the statute, and the decision below was proper.
Judgment affirmed.