The opinion of the court was delivered by

We think this suit was correctly dismissed. The action is obviously for a penalty. The words of the statute are, “ shall forfeit and pay the sum of ten dollars.” This penalty is not given to the party aggrieved, nor in lieu of damages by him sustained. For the town and the surveyor are equally liable for damages, (if any occur) whether the penalty is recovered or not. The penalty is expressly given to *277the town treasurer, for certain specified purposes, and to the prosecutor. It is not made essential that the prosecutor should have been injured by the defendant’s neglect, or, indeed, that any one should have been so injured. This is a much clearer case of penalty than that of Hubbell v. Gale, 3 Vt. R. 270. And it can, in no sense, be brought within the exception of Hall v. Adams, 1 Aiken 62.

Judgment affirmed.