
    H. Bittle, Supervisor of Highways, v. James Hay.
    Where supervisor sues for penalty for obstructing road, there can he no judgment against him for costs; in such case, appeal lies from judgment of justice to the common pleas.
    ■ This cause came before the court upon a writ of error to the common pleas of Hamilton county.
    The plaintiff in error, in his character of supervisor, brought a suit against the defendant for obstructing a highway. The justice gave judgment for the plaintiff for two dollars penalty and costs. The defendant appealed to the court of common pleas, where the appeal- was sustained, and, upon trial, a verdict was found for the-defendant, and judgment given that he recover of the plaintiff his costs. To reverse this judgment the writ of error was brought. The errors assigned were: 1. The general *error. 2. That the court of common pleas had no j urisdiction. 3. That the suit, was originally commenced before a justice of the peace, from/ whose judgment the law gave no appeal.
    Storer and Fox, for plaintiff in error.
    Este, for defendant.
   By the Court :

The law in force when these proceedings took place, indeed, it is not essentially different now, directs that the supervisor shall' collect, by suit, all fines and forfeitures accruing for violations of the law regulating the opening of roads, unless the collection of the particular fine is otherwise pro vided for. The section under which the action is brought subjects the person who obstructs a public road to not less than two, nor more than ten dollars penalty, and authorizes a supervisor to sue for and recover the amount before any justice, unless some other person may have sued for and recovered the same. The judgment we are asked to reverse is for the defendant, and awards against the supervisor that he pay the costs. In respect to the costs, this is erroneous. Section 66 of the judiciary act of February 18, 1824, vol. xxii., provides for the case, and under it the judgment for costs must be reversed.

Upon full consideration, we think the appeal from the judgment of the justice to the common pleas was well taken by the •defendant. The judgment of that court should have been for him, but without costs. It must be reversed as to costs, and affirmed as to the residue.  