The penalty imposed for the offence of which the plaintiff was convicted by the defendant, acting in his capacity as a magistrate, was originally given to the use of the town in which the offence was committed. Rev. Sts. c. 58, § 6. If this provision had remained in force, it is clear that the defendant could not legally have taken cognizance of the complaint against the plaintiff. Being an inhabitant of Braintree, he would then have been interested in the result of the prosecution; ánd this interest, however minute, would have taken away his jurisdiction of the charge against the plaintiff. Pearce v. Atwood, 13 Mass. 324. But the provision of the statute, which appropriated the forfeiture in such cases to the use of the town, was repealed by St. 1839, c. 135, by which it was enacted that “ fines recovered in all prosecutions *495of which the costs are paid by the commonwealth, shall be paid into the treasury of the commonwealth.” The complaint against the defendant clearly came within this provision, because it was properly prosecuted in behalf of the commonwealth by a complaint before a magistrate; Rev. Sts. c. 133, § 14; and, not being for a violation of a by-law of a town, it was a case in which the costs were to be paid out of the treasury of the commonwealth under Rev. Sts. c. 141, § 1.
Judgment for the defendant.