The opinion of the court was delivered by
Pierpoint, Ch. J.The principal question in this case, is as to the construction to be given to the recognizance entered into by Alden Page as surety for the plaintiff Morrill, upon his appeal from the judgment rendered by the defendant as a justice of the peace, in a prosecution in behalf of the state against said Morrill, for selling intoxicating liquor contrary to law ; and the question here is, was that a recognizance for the personal appearance of Morrill at the term of court to which the appeal was taken, there to prosecute his appeal, Ac. ? If it was, then all the authorities agree that both at common law, and by our statute, Page had the right to arrest and hold the body of the said Morrill, to the end that he might have him in hand to surrender at said term of court, in discharge of his recognizance ; and the defendant was justified, upon the proper application of the said Page, in issuing, as a justice of the peace, a warrant for the arrest and imprisonment of said Morrill, for said purpose, as provided by our statute. On the other hand, if the recognizance was not for the personal appearance of Morrill, then Page had' no right to arrest and hold *736him, and the defendant as a magistrate had no authority in law to issue a warrant for that purpose, as he did in this case, and made himself liable in this action for so doing.
The recognizance required by the statute, and that taken in this case, is not in terms for the personal appearance of the respondent, but is that the respondent “ shall prosecute his appeal to effect, and answer and pay all costs, fines, and forfeitures, and undergo all penalties that shall be awarded against him.” It is said that he cannot prosecute his appeal without entering it in court, and appearing personally to answer to the prosecution. He may appear by attorney, and interpose defences that are available to his discharge, without his personal appearance.
We think no case can be found where a recognizance like the present, has been held to be a recognizance for the personal appearance of the respondent.
If in the case appealed, the respondent had entered his appeal in’ court, and had voluntarily appeared there, or had been surrendered by his bail, that would not have discharged the recognizance. That could be discharged only by the payment of all costs, fines, and forfeitures, &c., that should be imposed, either by the respondent or his bail. Or if the appeal is not entered, then the judgment appealed from, by our statute, stands in full force, to be executed the same as if no appeal had been taken, and the bail for the appeal is made responsible for it, and in such case the bail cannot discharge himself by surrendering his principal to the magistrate rendering the judgment, or to any other authority. If the bail cannot discharge himself in cases of this kind, by surrendering his principal, the whole reason upon which the law is founded that allows the bail to take and hold the body of his principal for the purpose of surrender, fails, and the law does not apply. Certainly the terms of the recognizance should not be extended by implication, for the purpose of giving such effect to the law. In a certain class of cases arising under the liquor law, so called, the respondent may be fined and imprisoned, as when he has been before convicted of similar violations of the same law ; but this we think cannot change the nature of the recognizance.
*737In the prosecution against Morrill, the magistrate simply imposed a fine. That was all he could do under the complaint, and all the county court could do, as there was no. allegation in the complaint of a former conviction.
If Page had kept Morrill in jail upon the warrant issued by this defendant, until a trial was had in the county court, it would have availed him nothing in the way of relieving himself; and to allow it, would be inflicting a great injury to no good end.
In all other cases under our statute where bail is taken in criminal proceedings, upon appeal or otherwise, it is taken for the personal appearance of the respondent, and all the provisions regulating the proceedings in such cases, have direct reference to bail of that character.
If the bail in cases like the one under consideration, has the right to arrest and imprison his principal, it is very doubtful whether the power is vested in any person" or tribunal to take a new recognizance, such as is required by the statute, and release him ; and if not, he must inevitably remain in jail until his case is finally disposed of by the appellate court.
We think it apparent from the language used in the statute, that the legislature intended to place the recognizance required in prosecutions under the liquor law, on substantially the same ground as that required in case of appeal in civil cases; the lauguage used in the two classes of cases being nearly the same. The object apparently being in the one case, to secure the payment of costs, fines, <fec., and thus punish the offender ; and in the other, to secure the payment of the costs and intervening damages, for the benefit of the other party.
Judgment of county court affirmed.