The. opinion of the Court was drawn up by
The plaintiff contends that the warrant to apprehend him for the offence charged in the complaint on which it was issued, was unauthorized ; and that consequently the commitment of him to prisión, which was ordered by the defendant, was a trespass, for which he is entitled to damages. Iri support of this position, he relies upon the case of the Commonwealth v. Cheney, 6 Mass. R. 347, and insists, that the decision is a construction of a statute, w'hich has. been re-enacted in the Revised Statutes of this State, and therefore has been legislatively adopted ; but if otherwise, that it is applicable to and decisive of the case now before us.
It is a well settled rule, that “ if a provision of one statute receives a judicial construction, and is inserted in another, the same construction will' be given to it; but when the clause varies, it shows a different intention in the legislature. Rutland v. Mendon, 1 Pick. 154. It will bo proper to examine the statutes under which the case of Commonwealth v. Cheney was decided, and those of the Revised Statutes upon the same-subject, in order to ascertain, whether they are so substantially the same, that the legislature are presumed to have adopted in the latter the construction given to the former in that case.
The statute of 1787, c. 68, entitled “an act for the due regulation of licensed houses,” makes criminal certain acts, which are made so likewise by the Revised Statutes of this State, c. 36, and in each, two modes are provided for recovering the forfeiture incurred ; the former by information or indictment; the latter, by an action of debt in the name of the person prosecuting, or of the town or plantation, where the offence may have been committed, or by indictment. But in the act of 1787, a moiety of the penalty is appropriated to the use of the prosecutor, and the other moiety to the county in which the offence may have been committed, excepting when the prosecution is by a grand jury before the Supreme Judicial Court, or Court of general sessions of the peace, in which case, the whole forfeiture is to the use of the county. In the Revised Statutes the penalty enures wholly to the town, in which the offeuce may be committed, whether it be obtained in one mode or the other.
It will be seen that the duties of justices of the peace are more specifically pointed out and defined in the Revised Statutes, than they were by the act of 1783, and their powers are also materially different in one from the other. In that of 1783, they were empowered to hold to bail, when they suspected the person accused to be guilty. In the Revised Statutes, it is made their duty to issue a warrant on being satisfied of the truth of the charge, and only in such case; and to bind over and commit the person on having probable cause, to believe him guilty.
Judge Parsons in the opinion, in the case referred to by the plaintiff, says, “ the reasoning of the counsel for the Commonwealth would be conclusive, if the statute enacting the offence, had not so appropriated the forfeiture, and provided the mode of recovering it, as by necessary implication, to ex-
2. Was the defendant as a justice of the peace authorized to order the plaintiff to be committed, on his failure to recognize wi.th surety to appear at the District Court ?
' The statutes which we are now considering, like all others, are to be so construed, that they may have a reasonable effect, agreeably to the intent of the legislature. . Courts may give a sensible and reasonable interpretation to legislative expressions, which are obscure, but they have no right to distort those, which aré intelligible; neither is the language of a statute to be enlarged or limited by construction, unless its object and plain meaning require it.
It. will be noticed that in the Rev. Stat. justices of the peace have, by the language used, the same power, and are bound by the same duties in those cas.es where the' prosecution is by indictment only, as in those, where the prosecution may be by action of debt, or by indictment. The language used is clear, unambiguous, and comprehends all offences, not cognizable by a justice of the peace. Such being the case, some manifest inconvenience, or palpable injustice, must be shown to result from the adoption of the literal meaning, before we can be authorized to say that a different intention was entertained by the legislature. It would have been easy to have incorporated the exception, which it is contended is implied, if such exception was in fact intended ; but if .their meaning was otherwise, to have provided, that the power of justices to hold, to bail, should extend, to all cases where two modes of recov
There are many statutes of the United States, creating offences, which are punished by pecuniary forfeitures, a part of which in each case, arc to the use of the person informing and prosecuting therefor, and the other part to the use of the United States; and such penalties may be recovered by suit, or by- prosecutions in a criminal form. As an example, may be mentioned, “ An act to reduce into one, the several acts, establishing and regulating the postoffice department,” passed March 3, 1825. It is believed to be almost an uniform practice in prosecutions for the recovery of such forfeitures, to enter a complaint before a justice of the peace, that the accused may be arrested on a warrant, and held to answer at a tribunal having cognizance of the offence ; and yet on the principle contended for by the plaintiff’s counsel, all such prosecutions are unauthorized, and if followed by a commitment of the accused to prison, subject the magistrate to an action for damages.
This practice, which has so long prevailed, was unauthorized, if the case of Commonwealth v. Cheney, was a proper construction of the statutes under which it arose. No decided case was referred to by the Court, and we arc not aware that its doctrines have been reaffirmed. By that interpretation of the statutes, persons might persist in the most palpable violations of the license laws for a considerable time, and by absconding before a grand jury could act upon the subject, escape all punishment in a criminal form. Whether such an exemption was intended by the authors of those statutes, or would result from the language used therein, we may be permitted to doubt, without directly impugning the authority of that case ; for it may still remain as the construction of statutes no longer in force, and which have been replaced by those, which are essentially different.
The law of 1787 held out to individuals inducements to commence prosecutions by information, for a violation of its provisions, by giving a moiety of the penalty to the informer;
A further reason for supposing, that the authors of the law, intended what the language imports without the exception, which it is insisted is implied, is found in Revised Statutes, c. 36, § 22, which provides that no prosecuting officer shall discontinue any legal process, commenced or to be commenced, under the provisions of this chapter, except by the direction of the Court, before whom the same may be pending. By prosecuting officers we understand those officers whose duty it is to take charge of criminal proceedings in behalf of the State; and the prohibition in the section referred to is not limited to indictments, but will extend to warrants issued by magistrates, implying that other forms of criminal prosecution, than indictments may have been intended. Besides, is it to be presumed, that when the legislature denied to the prosecuting officers of the State, the exercise of a discretion in this particular, which they possess over criminal matters generally, they intended to allow an individual, friendly to those who per
Exceptions are sustained.