— It does not appear by the recognizance that the magistrate, by whom it was taken, had authority to receive it. His jurisdiction cannot be presumed, nor can such as he assumed be upheld; for in fact, the recognizance does not contain a sufficient description of any offence cognizable by him, or known to the law.
The charge against the accused, as stated in the recognizance to which we must look, and beyond which we cannot go for a description of the offence, is “ the crime of having sold at Saco in said county of York, on the twenty-eighth day of September, now last past, a quantity of spirituous liquors therein : — to wit, one glass of brandy, to one Moses Leighton of said Saco.” But it is not alleged, that the accused was not within the exception of the first and second sections of the Act, under which the complaint was preferred, or that the sale was in violation of the provisions of that Act, or of any law. He may have been appointed an agent for the town, and may have sold the spirituous liquors to be used for medical and mechanical purposes only, and the allegation in the complaint against him, as recited in the recognizance, may have been proved, without his incurring a penalty. We cannot assume, that acts which are consistent with innocence, and not alleged to be in violation of law are criminal, because they are so denominated by the magistrate, and when the facts necessary to constitute the crime are not stated. Stat. 1851, chap. 211, sect. 1, 2, 3, 4 ; R. S. chap. 171, sect. 30.
We are satisfied, for the reasons suggested, that the declaration is bad, and this conclusion renders the consideration of other positions, taken at the argument unnecessary.
Judgment for defendants, with costs.