#### ELDRIDGE BURNET vs. SAMUEL DAVIDSON.

An action on the ease will not lie at tho instance of A. against B., for bring» ing a covinous action against a third person for a penalty, which belong» to any one who would sue for it, which he had incurred under a statute, in which B. intended by his recovery in the action for the penalty, to prevent any other recovery, and that his own recovery should enure to the benefit of such third person.

If A. had brought his action against the person incurring the penalty, and he had pleaded a former recovery, A. might have replied that it was by covin.

If there be any redress for such covinous recovery, it is a public one, to be= proceeded against by indictment for a misdemeanor.

Appeal from the Superior Court of Law of Buncombe County, at the Special Term in July 1849, his Honor Judge Caldwell presiding.

This was an action on the case, and the declaration contained two counts. Upon the pleadings and evidence the ease appears to have been as follows: One Drury Burnet unlawfully set fire to the woods, whereby he became liable to pay fifty dollars, to the use of any person suing for the same, by the Rev. Stat. Ch. 16, and the defendant, by concert with Frederic Burnet, the father of Drury, warranted Drury Burnet for the penalty, and got judgment therefor, with the intent of favoring the said Drury and barring an action for the penalty by the plaintiff or any other person. There were the like allegations and evidence, as to another penalty incurred by one *95John Hyatt, and a recovery therefor by the defendant with the same intent. The declaration laid the injury to the plaintiff, in his being thereby hindered and barred from recovering those penalties from the said Drury Bur-net and John Hyatt. It was not alleged or proved, that the plaintiff had instituted any suit for either penalty. Upon not guilty pleaded, the Court instructed the jury, that the plaintiff could not recover, and, after a verdict and judgment accordingly, the plaintiff appealed.

J. W. Woodjin, for the plaintiff.

Avery, for the defendant.

Ruffin, C. J.

The Court is of opinion that the action will not lie. The Statute, 4 Hen. 7, ch. 20, gives to one, suing an action popular in good faith, the replication, .that a prior recovery pleaded was had by covin, and enacts, that, if the covin be found, the plaintiff with good faith shall have recovery and execution. That is among several beneficial ancient English Statutes, which were inadvertently not re-enacted in the revision of 1836, although they were suitable to our condition and had been in force and use here. The principle of the Statute, however, is so manifestly just in itself and so necessary to suppress fraud upon the law, as well as that on individuals, that, probably, it is proper to regard this Statute, like that of 13th of Elizabeth in favor of creditors, as but declaratory of the common law; for it would manifestly render useless all penal statutes, if covinous recoveries by friends, not enforced nor intended to be enforced, were allowed to protect the offender from an action brought in good faith. If that be correct, the plaintiff cannot have this action ; because it supposes the injury to the plaintiff to consist of his being barred of actions for the penalties, when, upon the declaration, it appears he was not barred. But that point need not now be determined, for, *96admitting the recoveries to be a bar, as supposed, yet the plaintiff has sustained no extraordinary or peculiar damage, but such only as is common to any one else. In such a case, the redress, if there be any, must be to the public, for the common wrong, and not to individuals. Co-vinous recoveries partake in some degree of the nature of compounding actions on penal statutes, which Mr. Blackstone classes among the misdemeanors against public justice, as contributing to make the laws odious to the people. 4 Com. 136. Hence the statute 18th Elizabeth, C. 5, which, by the way, is also not found in our statute book, inflicted the severe punishment of the pillory, besides a fine, for that offence. As the act of the defendant is of that nature, and every one can say, with equal truth, that he is, by means of the defendant, barred of recoveries for the penalties in question, the law cannot allow an action to any person or persons in particular, since, for the same reason, the defendant would be held liable for the same sum in innumerable suits, which would be most unreasonable and intolerable. William's case, 5 Rep. 73

Per Curiam

Judgment affirmed.