12 N.C. 291 | N.C. | 1827
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.