When this judgment was rendered, the 66th *75section of the practice act of 1824, 22 O. L. 63, was in force. That exonerates officers from payment of costs of suit prosecuted against them for acts done in pursuance of their official duties. Supervisors were bound by the road law, 22, vol. 315 to sue. It was erroneous, to give judgment against him for costs. This point has been expressly decided by the Court in Bank; Bittle v. Hay, 5 O. R. 270.

The passage of the new road law in 1832, 30 O. J. 18, re-enacting this clause in substance, and increasing the penalty, we think virtually repeals the act under which the suit was brought. The judgment being rendered after the new law went into force, there Was no foundation for it. The law being a penal one, must be construed strictly. Upon the question whether the law is repealed, we feel difficulty, and now experience some diversity of opinion. Indeed the question is not clear of all doubt; but if we err, it isbetter to err against the exaction cf penalties, than in favor of their exaction.

The judgment is reversed with costs.