Hanson , 36 Me. 425 ( 1853 )

Appleton, J. —

The fourth section of statute of 1851, c. 211, entitled “an Act for the suppression of drinking houses and tippling shops,” imposes a forfeiture of ten dollars and cost for each and every sale of spirituous and intoxicating or mixed liquors, a part of which are intoxicating, made contrary to its provisions. It is provided by § 5, that “ any forfeiture or penalty arising under the above section may be recovered by an action of debt, or by complaint before any justice of the peace or judge of the municipal court, in the county where the offence was committed. The prosecutor has his election, which of these remedies he will pursue. The defendants in this case brought an action of debt against the plaintiff for a violation of the. Act referred to, and successfully prosecuted the same to judgment, from which the plaintiff appealed, but failing to furnish the security required by statute for the prosecution of his appeal, the magistrate before whom the cause was heard issued his mittimus upon which he was committed, whereupon this writ of habeas corpus was sued out at his instance, by virtue of which he was released from his imprisonment.

The question raised is, whether a magistrate is authorized to issue a mittimus in an action of debt brought to recover a penalty under the Act of 1851, c. 211. The forms of process are established by the statute of 1821, c. 63. By § 3 of that chapter, the forms of writs aud process to be used in civil cases triable before a justice of the peace, and applicable to the different forms of action, were given. By R. S., c. 114, § 1, the sixty-third chapter of the statutes of 1821 remains unrepealed. The magistrate is bound to conform to the-forms then established until they are changed by an Act of the Legislature or altered by'the Supreme Court under the provisions of that section. The respondents elected to proceed by action of debt. Neither the Legislature nor the Supreme Court have made any alterations in the forms of writs or other process. If, as is insisted by counsel, it was the design of the Legislature that judgments in actions of debt should be enforced by a mittimus, they have made no provisions by which such intention can be carried into effect. The old mode of enforcing judgments remains unaltered. The mittimus is applicable only to criminal procedure and was improvidently issued by the magistrate. The writ of habeas corpus was properly granted, and the plaintiff is to be discharged.

Shepley, C. J., and Tenney.and Rice, J. J., concurred.