The opinion of the Court was delivered by
Phelps, J.This case was dismissed by the court below, upon the ground, that the justice, before whom the action was brought, and from whom it came up by appeal, was not competent to take jurisdiction of it.
The exception to his competency is, that he had previously acted as counsel in a cause growing out of the same transaction, and involving the same question of fact; in short, that he had instituted a criminal prosecution, which he conducted as counsel, and then took jurisdiction of a civil suit, brought to recover for the same act, which constituted the supposed offence.
The statute, p. 131, of the revised laws, prohibits a justice of the peace from acting as counsel or attorney, in a cause, in which he has acted as justice. But it does not, in terms, prohibit his acting as justice, where he has acted as attorney.
The 20th Section of the judiciary act, page 63, prohibits the judges of the higher courts from acting as judges in cases, where they have been attorneys or of counsel.
The statute, also, prohibits State’s attorneys from taking any fee or reward, from any party to a civil cause, growing out of any transaction, which occasioned a criminal prosecution, conducted by them.
*182How Is this difference to be accounted for ? Did the Legislature intend to prohibit the less evil and permit the greater? Or did they intend to restrict the judges of the higher courts, and rely, in the same particular, upon the discretion of inferior magistrates ? The situation oí a grand juror, prosecuting before a single magistrate, is precisely the same with that of a State’s attorney, prosecuting before another court. The latter is forbidden even to take a fee, as counsel, in a civil cause having a common origin with a criminal prosecution conducted by him. Shall the former be at liberty to act, not merely as counsel, but as judge in a similar case ?
Here is an apparent -inconsistency, which can be accounted for, only upon the supposition, that the legislature did not anticipate a case like this.. A literal construction of these statutes results in an inconsistency too glaring to be adopted. We consider this case as within the spirit of these statutes, and are, therefore, of opinion, that the suit was properly dismissed. A consideration of the consequences, which might follow from countenancing such a proceedure, impels us to this conclusion. If we hold the magistrate to be competent, in this instance, we authorize a party in a justice’s court to withdraw his • action, if he find his success doubtful, and renew it before his own counsel.
Judgment Affirmed.