Section 3177 of the Revision provides that “ if the demand is not founded on contract, the original petition must be presented to some judge of the supreme or district court, or the judge of the county court, who shall make an allowance thereon of the amount in value of the property that maybe attached.” It has been held that this section refers to actions, ex delicto, as distinguished from actions ex contractu, and that it is only in actions of the former class that the petition must be presented to a judge for allowance. Johnson & Stevens v. Butler, 2 Iowa, 535; Raver v. Webster et al., 3 id. 502; Lord v. Gaddis, 6 id. 57.
This action is brought to recover a certain liquidated sum. The amount due does not depend upon a mere 'arbitrary estimation of a jury. If any thing at all is recoverable, it is the penalty fixed in the ordinance. Hence, at common law, the form of action would have been debt. 1 Chitty on Plead. 100; Stephen on Plead. 14.
On the principle of an implied original contract to submit to the rules of the community whereof we are members, a forfeiture imposed by the by-laws and private ordinances of a corporation, upon any that belong to the body, immediately creates a debt in the eye of the law, and, if unpaid, the remedy is by action of debt. The same reason may, with equal justice, be applied to all penal statutes, whereby a forfeiture is inflicted for transgressing the provisions therein enacted. Blacks. Com., 3d book, marg. pp. 159 and 160.
*362This is not an action ex deUcto, and hence, it is not governed by the provisions of section 3177.
. It follows that the court erred in sustaining the motion to dissolve the attachment.
Reversed.