The Opinion of the Court was delivered by
This was an action of debt brought to recover the penalty given by the statute, for cutting timber upon the canal lands. The prsecipe was filed, and the action commenced by one Isaac Cook, who was, at the time, acting as Canal Agent. The declaration was filed by David L. Gregg Esq., an attorney at law. No bond for costs was filed in the case.
The defendant, by his counsel, moved the Court to dismiss the cause, for the reason that the law did not authorize the institution of such a suit; that it was not commenced by an authorized person, and that there was no bond for costs filed in the case.
By the ninth and tenth sections of An Act to protect the Canal Lands against trespassers, approved March 4, 1837, a penalty was given against all trespassers who should cut timber on canal lands, to be recovered in an action of debt in any Court of competent jurisdiction, the action to be brought in the name of the State. The first section of the same Act provides for the appointment of a canal agent, and makes it his duty, among other things, to protect the lands, and to institute, attend to, and prosecute suits for trespasses to the same. This Act was amended by an Act approved February 26, 1839, by which it was made the duty of the Canal Commissioners to appoint one or more agents, not exceeding three in all. By Jin Jet to reduce the number of officers upon the Illinois and Michigan Canal, approved March 2,1842, all laws providing for the election or appointment of Cañal officers were repealed. The acting Commissioner was continued in office, and authorized to appoint an *555agent for the prosecution of trespassers on said lands. These are the only laws that have any direct bearing on the subject.
The laws of 1839 and 1842 only change the mode of appointing the agent. The provisions of the law of 1837, already alluded to, are still in force, and unrepealed. The mode of appointing the agent was changed, but the duty of preserving the land and bringing suits continued the same. The laws in force authorize the institution of such suits, and make it the duty of the agent to institute and prosecute them. This being his duty, it necessarily follows that he can employ any attorney at law to aid him in performing it. He is not limited in this respect to the Attorney General of the State, or the Prosecuting Attorney for the Circuit.
A State is never bound to give a bond for costs in any case; neither does it ever pay costs, except in some particular way pointed out by statute.
The Court below erred in dismissing the suit. The judgment is therefore reversed with costs, and the cause remanded for further proceedings.