
    Willard Waters qui tam, v. Ira Day.
    In a criminal case, any justice of the county has jurisdiction, though the penally or fine may go into the treasury of the town, of which such justice is a rated inhabitant; but in civil cases, if any part of the debt or avails of the action go into the town treasury, such justice has not jurisdiction. The action qui tam is a civil action.
    
    This was a qui tam action, for the rescue, by the defendant in Barre, of certain sheep, contrary to the statute against pound breach, &c., which gives the penalty, one half to the prosecutor, and the other half to the town, in which the offence is committed. It went up, by appeal from a justice of the peace, to the county court, where it was tried upon the following case stated;—
    “ In this cause it is agreed that judgment shall be entered “ for plaintiff,for the penalty of $ 10, provided the court should “ be of opinion that the magistrate had jurisdiction of said “ action. The plaintiff and defendant, and the magistrate, “ who tried said action, were, at the time of the rescue of !i the sheep, mentioned in the writ, and ever since have been “ and still are inhabitants of Barre, in said Washington coun- “ ty, in which town the offence was committed. The magis- “ trate, who tried said action, was, at the commencement “and trial of said action, a rated inhabitant of said Barre.
    “ This objection to the jurisdiction of said magistrate was “ taken before him on trial of said cause.
    The county court rendered judgment for the defendant, to which the plaintiff excepted.
    
      N. Kinsman, for plaintiff.
    The decision in the case of State v. Batchelder, 6 Vt. R. 479, settles the present case in favor of the jurisdiction of the justice. In that case the fine accrued to the town, by reason of the defendant’s violating a statute law of this state, and, in the present case, the fine accrued by the defendant’s violating another statute law of this state.
    Although there are different modes of collecting the penalty in the two cases, still the offences committed in the two cases are similar, and, in their nature, the same. In the present case the offence complained of by the plaintiff, is, in its nature, criminal. The statute, page 124, says, “'that every justice of the peace is empowered to hear, try and determine all pleas and actions of a criminal nature.” The plaintiff’ insists that this action is of a criminal nature, and, that one half the penalty goes to the town, can be no objection to the jurisdiction of the magistrate. His interest is too remote, to operate as an objection to his trying the case. See 12 Mod. 669. 5 Mass. R. 90.
    
      L. B. Peck, for defendant.
    There is a broad and clear distinction between the case of the Slate v. Batchelder-, on which the plaintiff mainly relies, and the present case. That was a criminal prosecution, instituted by a public officer, while the present case is a civil suit, in which the justice is interested. It was on this distinction, that Batchelder’s case is understood to have turned. The court regarded that part of the 23d section of the act of 1797, which provides that “ no justice of the peace shall take cognizance of any cause, when he shall be directly or indirectly interested in the cause or matter to be determined,” as applicable only to civil actions, and not extending to criminal prosecutions. The present case is clearly within the letter and spirit of the statute, and the very question now under discussion is said to have been so decided, some few years since, in Grand Isle county. The jurisdiction of the justice is not to be sustained, either on principle or authority. Haiokes et al. v. The Inhabitants of Kennebeck, 7 Mass. R. 401. Pearce v. Atwood, 13 Mass. R. 324. Ilill v. Wells 6 Pick. 104, 9.
   The opinion of the Court was delivered by

Collameb, J.

The jurisdiction of justices, in criminal cases is, by our statute, confined to those cases where the fine does not exceed seven dollars; and no exceptions are made, as to interest. In criminal prosecutions, all courts are in some degree pecuniarily interested, in the penalties, inflicted by way of punishment. It is matter of necessity for the police and public safety that, in relation to criminal jurisprudence, such incidental interests should be disregarded. The fines, in such cases, are not the subject or object of the prosecution; they are but the ultimate consequence or incident, and are inflicted for punishment, correction and example. The statute provides, that if any person shall profanely swear, in the presence of a justice, in the execution of his office, such justice is to convict him, without further proof, and make a record. This fine would go into the town treasury, yet, clearly, that would not deprive the justice of this power in his own town. All this was fully settled in the case of State v. Batchelder, 6 Vt. R. 47 9.

In civil cases no such necessity exists ; and the action, and' its whole object, is the recovery of the debt or demand sued for. Hence, the statute provides that, “no justice shall take cognizance of any cause, where he is within the fourth degree of affinity or consanguinity to either of the parties, or shall be directly or indirectly interested in the cause or matter to be determined.” All this clearly applies only to civil causes. It implies two parties, both capable of relationship. Interest in the caMse or matter cannot apply to a question of criminality : that is, whether the respondent is guilty of a breach of the peace, or a petit larceny, in which there is no pecuniary interest. The only question then re-? maining is, — is this a civil action ? That it is so, is clear from the following considerations. The form of the process is a writ, not a warrant. The defendant appears by attorney and must plead in writing. Depositions may be used, on the trial. The judgment must be enforced by execution, not by warrant or mittimus. Justices have jurisdiction to one hundred dollars. Putney v. Bellows, 8 Vt. R. 272.

The plaintiff in this cause has sued for over seven dollars, before a justice, and he, therefore, cannot insist that this is a criminal prosecution.

This, then, was a civil action, and had for its object the recovery o.f a debt of ten dollars, o.ne half of which was for th,e town of Barre, of which the justice was a rated inhabitant, and so was interested, in the matter to be determined. By the statute he was disqualified, and therefore, for want pf jurisdiction in the justice, this action is '

Dismissed.  