
    REYNOLDSBURG:
    MAY TERM, 1829.
    M’Kinnie vs. Whitehorn.
    An overseer of the road may sue a delinquent hand the next day after the penalty accrues, and need not wait for ten days.
    This suit was brought by warrant, before a justice of the peace, to recover for a delinquency in not attending and working on a public highway, on notice given by the overseer to do so. On the trial before the circuit court, the judge charged the jury, “that unless they were satisfied that ten days had elapsed after the delinquency, before the action was brought, they ought to find for the defendant.” On this charge there was a verdict for the defendant; from which the plaintiff in error appealed to this court.
   Whyte, J.

delivered the opinion of the court.

The opinion of the court was no douht founded on what he conceived to be a sound construction of the act of 1804, ch. 1, sec. 8. “And whosoever shall, upon such notice, refuse or neglect to do and perform their du-therein, shall forfeit and pay the sum of seventydSve cents per day, for each person so neglecting or reiusing, to he recovered by warrant, and paid by the constable to the overseer, and by him to be expended in hiring other hands to work on said road. Provided, where any person or persons do not find it convenient to work as aforesaid, they shall be exempt from all costs and damages, provided they pay into the hands of the overseer of said road, the fine by this act imposed, in ten days from the time appointed to work on said road.”

We are all of opinion, that the construction given by the circuit judge, to this section, is not the correct one.

The object is to get money from a delinquent, to hire others in his stead to work on the road. After judgment for the fine, the constable cannot coerce the money by execution, in less than ten days, being obliged to levy and advertise. As an inducement to the defendant to pay earlier, the proviso is inserted. If any other would be the proper construction, then the act would be inconsistent with itself. The fourteenth section makes the overseer liable to a penalty of five dollars for permitting his road to remain out of repair fifteen days at any one time. If the circuit court be correct in this charge, the delinquent in this case would have twenty days "before the overseer could have commenced proceedings and-collected his money. In fifteen days he would have been liable himself. To save him from that liability, the act professes to give him the penalty against the delinquent. This is one object of the act; the other is the regular keeping up the highways of the country. As the utmost promptitude is expected of the overseer, so it must in like manner be expected of those subordinate to him. The delinquency of one day, entitles the overseer to the penalty of the next, because he is to use it to supply the place of such delinquent.

Judgment reversed.  