
    Samuel Carroll and Another, Plaintiffs in Error, versus James Richardson, Treasurer, &c.
    Error does not lie upon a judgment rendered upon a case agreed by the parties, for the opinion of the Court.
    Where a penalty, not exceeding fifty dollars, nor less than two dollars, is given wholly to the party injured he may bring his action before a justice of the peace, and allege his damage at twenty dollars.
    The plaintiffs in error brought their writ, in this case, to reverse a judgment which the defendant in error, as treasurer of the Norfolk and Bristol Turnpike Corporation, recovered against them at the Circuit Court of Common Pleas holden for this county, December, 1811 The- original action, which was commenced before a justice of the peace for this county, was trespass, “ for that, by an act of this commonwealth, entitled an act establishing the Norfolk and Bristol Turnpike Corporation, 
       among other things it is enacted, that if any person shall forcibly pass, or attempt to pass, either of the turnpike gates by force, without having first paid the legal toll at such gate, such * person shall forfeit and pay a fine, not exceeding fifty nor less than two dollars; to be recovered by the treasurer of said corporation, to their use, in an action of trespass. Now, the plaintiff avers that the said Samuel Carroll and Jabez Dilling, with force and arms, did, on the 27th day of June last, with a chaise drawn by one horse, forcibly pass one of the gates erected according to law on said turnpike, without first having paid toll at said gate ; whereby, and by force of the statute aforesaid, an action has accrued to the plaintiff, treasurer as aforesaid, in manner and form aforesaid, to recover a fine of the said Samuel and Jabez, not exceeding fifty nor less than two dollars; et alia enormia, &c. To the damage of the plaintiff, treasurer as aforesaid, as he saith, the sum of twenty dollars.”
    In the Common Pleas, the parties agreed to submit the cause to the opinion of that court upon certain facts stated, in substance as follows: — The defendants were passing the turnpike with a horse and chaise between the hours of ten and twelve in the evening, on a fast trot. When they came near to the turnpike gate, which was open, they whipped their horse. The toll-gatherer was standing by the side of the travelled part of the turnpike, opposite the gate, and demanded of them to pay the toll, which they did not do, but passed through the gate without stopping; and when the toll-gatherer overtook them and demanded the toll, they refused to pay, saying, “ If you keep a gate, keep it shut.” It does not appear that the defendants knew that it was a turnpike gate, except from the foregoing circumstances. The defendant Dilling was driving the horse, and Carroll was in the chaise with him. Whether this was a forcible passing the gate, within the meaning and intent of the statute, was the question submitted to the court.
    It was further agreed, that the opinion of the Court of Common Pleas upon the said question should be subject to *the opinion of the Supreme Judicial Court, on the record being removed into that Court by writ of error ; .and if the Supreme Judicial Court should decide on the merits and law as presented by the said question, all other errors were agreed to be waived.
    The court below, being of opinion that both of the defendants were guilty, entered judgment for the plaintiff for the sum of four dollars damage, with costs of suit.
    
      Chickering for the plaintiffs in error.
    
      J. Richardson pro se.
    
    
      
      
        Stat. 1801, c. 68, Special Laws, vol. ii. p. 522.
    
   Curia.

We are all of opinion that error does not lie upon a judgment rendered on a case stated by the parties for the opinion of the Court. If either party intends or expects to bring a writ of error, and wishes the facts spread upon the record, it will behave him to have the facts found by the jury in a special verdict, as the English practice is. The consent of parties cannot give to this Court a jurisdiction in a case where the law has not conferred it. The plaintiffs in error can therefore take nothing by their writ.

A point was suggested as to the manner of bringing the original action, and a question made, whether, as the statute had given a penalty of from two to fifty dollars, it was competent to the original plaintiff, by alleging his damages at twenty dollars, to bring his action before a justice, by which the defendants were deprived of an appeal to this Court. Had the forfeiture been wholly to the public, or part to the plaintiff, and part to the public, or to a county, town, &.C., the objection would certainly have great weight. But in this case, the whole penalty accrued to the corporation ; and their treasurer might legally claim less than the highest penalty, especially ‘considering the provisions of late statutes respecting costs on appeals to this Court.

Judgment affirmed.  