The defendant was brought before Justice Whitney, on a grand-juror’s complaint, charging him with having kept a store or shop, for the purpose of selling wine, or spiritous liquors, to be drunk thereat, he not being a tav-erner ; and the justice, finding probable cause in support of the charge, and supposing that he had not jurisdiction to impose the fine prescribed by statute for the offence, ordered, that he become bound in a recognizance of 100 dollars for his appearance before the county court, then next to be holden in the county. The recognizance in suit was entered into, pursuant to this order ; and the defendant having neglected to appear at the county court, the question is, whether he is liable for such neglect.
The proceedings were all regular in point of form. The question therefore, is, whether the justice had authority to bind the defendant to appear before the county court, in the first instance ; or, whether it was not his duty, to hear and determine the cause, subject to the defendant’s right to appeal, if not satisfied with the decision of the justice.
It is claimed, that the statute, under which the proceeding was instituted (acts of 1846, p. 45. 47.) does not give jurisdiction exclusively to justices of the peace ; but that it is *407discretionary with them, either to impose the fine prescribed, or, to bind the delinquent to the county court.
We do not so construe the statute. By the 5th section, it is provided, “ that all informations or presentments for of-ences against any of the provisions of this act, whether made and preferred by an informing officer, or by any other person, may be heard and adjudged by a justice of the peace ; but the accused may appeal from the judgment of such justice to the county court.” Here jurisdiction is clearly given to justices of the peace ; and in the general statute, regarding the jurisdiction of the county court, in criminal cases, it is provided, that that court shall have jurisdiction only of all offences and crimes appealable from justices of the peace and not given to the sole jurisdiction of the superior court or justices of the peace.
The provision is the same, in regard to the exclusive jurisdiction of justices, in the revision of 1849. It is, that the county court shall have sole jurisdiction of all appeals from justices, and of all offences whereof the punishment does not exceed a fine of 200 dollars, and imprisonment in a common jail, or county work-house, not exceeding six months, “except of such offences as are given to the sole jurisdiction of justices of the peace.” Rev. Stat. 254. § 149.
These statutes, taken together, we think, necessarily exclude the county court from any original jurisdiction in cases of this sort. It is true, that the act giving jurisdiction of cases arising under it to justices of the peace, does not, in express terms, say, they shall have sole jurisdiction. Nor does the general statute, authorizing them, in criminal cases, to impose a fine of seven dollars. It merely provides, that they shall have cognizance of all offences punishable by fine not exceeding seven dollars. This has always been understood to give justices exclusive jurisdiction to the extent of imposing a fine of that amount. And we think the same language in the statute of 1846, should receive a similar construction.
Again, it is claimed, that the act of 1848, (p. 25. of acts of that year,) took away from justices the power to impose a fine to any greater extent than seven dollars; and thus, by implication, the fine in this case being fixed at ten dollars, conferred jurisdiction upon the county court. It is appar*408ent, that this was not the intention of the legislature. The revised statutes of that year went into operation on the 1st of January, 1819; and in them, the act of 1846, with its extended jurisdiction to justices, was reenacted. It cannot be supposed, that it was intended to exclude justices from the trial of cases under that act, for the limited period, between the rising of the assembly, in June, 1848, and the 1st of January, 1849. No reason existed for such exclusion ; and its effect would have been, to deprive justices of the power of committing vagrants to the work-house, for the period of forty days, as well as to take from them the power of imposing fines in prosecutions relative to the sale of spiritous liquors. This can hardly be supposed, without doing great injustice to the legislature.
But the act of 1848 is only a reenactment of the general limitation of justices’ jurisdiction in criminal cases : no new provision was intended by it. It is the same provision as was contained in the revision of 1821, and in the edition of 1838 ; and has, in substance, existed for a long time. Whether it was necessary for any purpose, to reenact it, is of no importance. It has never been supposed, that the reenactment of this general provision, as has been done, from time to time, whenever there has been a revision of the statutes, had any effect to deprive justices of their enlarged jurisdiction, in those specified cases where this general provision has been modified.
We are satisfied, for these reasons, that the recognizance is invalid, and the declaration founded on it, consequently insufficient: and so we advise the superior court.
In this opinion the other Judges concurred.Demurrer sustained.