Majority
p. 510Rue against Sprague and Consaulis, commissioners of highways, of Charlton.
Headnote
Actions for penalties under the c< act to regulate highway s.must be brought in the nr me of the person who makes the complaint, andbc prosecuted accordingto the 25 dollar act; and not in a summary way.ON certiorari. The suit below was brought by the defendants to recover a penalty for encroaching on the highway, contrary to the provisions of the Act for regulating highways.[1] The process issued in the name of the plaintiffs, and required the defendant to shew cause, why, &c. and not to answer. On the trial, the justice admitted one of the plaintiffs as a witness.
Shepherd, for the plaintiff in error.
H. Bleecker, for the defendants.
The proceedings were under the 20 th section of the act, which directs, that the penalty is to be recovered in the manner providedby the ISthsection, where it is said that the penalty is to be recovered in the name of the person who makes the complaint. And according to' our decision in the case of Bennett and Ward,[1] the suit
† † 3 Caines, 259.
p. 511
should, have been prosecuted under the !§25 act. One of r the plaintiffs was sworn as a witness, and though a mere trustee, he was liable for costs, and so far interested. On both these grounds judgment must be reversed.
Judgment reversed.