Thompson  v.  How,  46  Barb.  287.  Where  the  statute  contemplates
one  offense,  in  the  commission  of  which  two  classes  of  persons  may
be  engaged,  the  penalty  is  one,  and  a  complaint  against  both  consti-
tutes but  one  cause  of  action.  People  v.  Koll,  3  Keyes,  236.
Where  the  statute  directs  that  on  neglect  of  the  overseers  to  prose-
cute, any  person  may  prosecute  in  their  name  on  giving  security  for
costs,  the  defendant  cannot  object  that  the  statutory  time  has  not
elapsed  or  security  been  given;  these  objections  can  only  be  taken
by  the  overseers.  Thayer  v.  Lewis,  4  Den.  269.  Where  a  penalty
is  fixed  between  certain  limits,  the  jury  may  be  governed  by  the
circumstances,  and  by  the  public  necessity,  in  fixing  the  amount.
Where  judgment  is  given  for  penalty  for  breach  of  an  ordinance,
the  alternative  sentence  must  strictly  conform  to  the  powers  con-
ferred by  the  statute.  Merlcee  v.  Rochester,  13  Hun,  157.  In  an
action  for  a  penalty  for  failing  to  attend  as  a  witness,  the  plaintiff
must  show  that  the  witness  was  material  and  that  damages  resulted
from  his  non-attendance.      Carrington  v.  Hutson,  28  Hun,  371.
In  an  action  for  a  penalty  for  watering  milk,  a  test  of  the  defend-
ant's milk,  made  a  year  after  the  alleged  violation,  is  not  evidence.
