Bennett v. Ward , 3 Cai. Cas. 259 ( 1805 )

Per curiam, delivered by

Kent, C. J.

The suit below, was an action of debt, conducted according to the regulations of the ¿10 act, and was brought to recover the penalty or forfeiture of f>5, under the 19th section of the act to regulate highways, which declares, that “ If any person shall obstruct “ any highway, &c. such person so offending, shall forfeit “ for every such offence, ⅜5, to be recovered, with costs of suit, in the name of any person who shall make complaint “ thereof before any justice of the peace fkc.upon the oath of “ one or more credible witnesses, and levied by distress and “ sale of the goods of the offender, by warrant from the justice, to be directed to any constable of the town, &c. and the “ constable is required t.o pay such penalty into the hands of u the commissioners of highways, &c. to be applied in im-ct proving the public roads and bridges in such town.”

The question is, whether the above recovery ought to have been in the manner prescribed by the ¿10 act, or ought to have been in a summary way, as the section under which it was had, would seem to prescribe ?

The section in question is very defectively drawn. , One part of it seems to contemplate a recovery by an action or suit in the ordinary mode, and the other part of it, so far at least, as relates to the collection of the money by the constable, uses language applicable only to cases of summary convictions. And where a statute admits of two constructions, it is advisable to give it that which is consonant to the ordinary mode of proceeding before magistrates, as being the most familiar to them, and because in that, the trial by jury is secured. Summary convictions are authorized frequently in the English laws, and they are required in three different cases in the act before us, viz. under the 11th, 12th, and 23d sections. But this mode of proceeding is always strictly construed by the courts, and is not to be adopted but where the language of the law is positive and Unequivocal. The judgment below must be affirmed.