
    Ora A. Yarter vs. Dennis F. Flagg.
    Suffolk.
    Nov. 11, 1886.
    Jan. 7, 1887.
    Holmes & Gardner, JJ., absent.
    An action, under the Pub. Sts. c. 99, §§ 1, 2, to recover of the owner of a building treble the amount of money lost therein by gaming, does not survive against the legal representatives of the defendant, either at common law or by the Pub. Sts. c. 165, § 1.
    Tort, under the Pub. Sts. c. 99, §§ 1, 2, to recover of the owner of a building treble the value of money lost therein by Charles F. Yarter in gaming. Writ dated February 11, 1884. The defendant's death was suggested on March 20, 1885. An order summoning in the executors of his will issued on June 4, 1885, returnable in July, 1885. The executors appeared specially, and filed a motion to dismiss, on the ground that the action did not survive.
    After a hearing in the Superior Court, Brigham, C. J., sustained the motion, and ordered the action to be dismissed. The plaintiff alleged exceptions.
    
      F. A. Perry, for the plaintiff.
    
      J. Q. A. Brackett, for the defendant.
   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.  