Remarked that the award does not authorise the use of the road for the public. It is confined to the heirs and assigns of Eldridge; the evidence, therefore, that the defendant obstructed the public, was inadmissible. The' judgment is erroneous; it should have been entered for the penalty; but were this the only error, he would have been disposed to suspend the judgment until the amendment could be made by the court to which the writ of error was directed. As to the obstruction to the heirs, he expressed no decided opinion.

Rossell J. concurred with the Chief Justice. Southard J. was with the plaintiff in error, on all the points.

Judgment for plaintiff in error.