delivered the opinion of the court, October 2d 1882.
The case, as presented in the transcript of the justice-, is clearly within the jurisdiction conferred by the Act of March 19th 1804, and there appears to be nothing in the record proper, or in the testimony before the court below, that would have justified a reversal of his judgment.
The remedy provided by the 14th section of the Act, for neglect to keep 'the road “ in good and perfect order and re-pan’,” appears to have been strictly pursued. An inquisition, condemning certain portions of the road, was taken, returned and duly served on the plaintiff in error, one of the company’s gate-keepers. The legal effect of that preliminary proceeding was to suspend the right of the company to demand or receive tolls on the defective portions of its road, until, in the language of the Act, they were put in “ good and perfect order and repair.” In addition thereto, that clause of the section on which the present action is founded declares, if any gate-keeper shall take or attempt to exact tolls for such portions of the road as have been condemned, during the time the same shall continue out of repair, such keeper shall forfeit and pay to the person who shall prosecute for the same, the sum of five dollars, to be recovered before any justice of the peace, as debts of equal *285amount are, or may be by law recoverable.” The language thus employed clearly indicates that the legislature intended to avoid technicalities by providing a plain civil remedy for the collection of the penalty, as often as it might be incurred. It is to be recovered as a debt of the same amount, in an action before any justice of the peace.
The siight discrepancy between the transcript, which shows simply an action of debt, and the summons, in which it is styled “ penal debt,” is wholly immaterial. Taken as a whole, the record exhibits a good cause of action. The inquisition given in evidence and fully set out in the transcript, together with proof of the service thereof on the defendant below, and his admission before the justice that he thereafter collected toll, all of which are shown by the record, made a clear prima facie case against him, which could not be successfully rebutted without affirmative proof that the condemned portion of the road had been put in good order and repair before he demanded toll. This was not done, and the judgment of the justice was, therefore, in accordance with the evidence before him.
Judgment affirmed.