
    Commonwealth versus Josiah Stevens.
    Upon a complaint against one for unmilitary conduct on a muster day, to which he pleaded not guilty, and which was carried to the Court of Common Pleas by appeal, — if the jury find him guilty, the Court may award the penalty, although, on the plea of nil debet, the jury might have assessed the penalty.
    This was a writ of certiorari, issued to the Circuit Court of Common Pleas, for the county of Plymouth, at the instance of the said Stevens, a private soldier in a militia company, to bring before the court the proceedings upon a complaint made against him by Enos Eaton, clerk of a company of militia in Middleborough, in the said county, for unmilitary conduct on two several muster days. The * complaint was originally made to a justice of the peace, and process was issued by him within seven days after the first of the two days on which the misconduct was alleged to have been committed. An appeal was made to the Common Pleas, where the cause was tried by a jury, on the issue of not guilty; and a verdict being returned against the respondent, that court sentenced him to pay two fines, of five and ten dollars respectively, with the costs of prosecution.
    
      Eddy, for the respondent,
    argued that it was the province of the jury to assess the penalty, and not of the Court, the process being, in its nature, a civil action for the recovery of. a penalty; and for this he cited the cases of Dyer vs. Hunnewell, 
       and Stilson vs. Toby. 
       This must especially be proper, and even necessary, where the penalty demanded is by law uncertain in amount.
    
      
       12 Mass. Rep. 271.
    
    
      
       2 Mass. Rep. 522. — 3 Black. Com. 377.
    
   Sed per Curiam.

Under the plea of not guilty, the jury could not assess the fine. Had the respondent pleaded nil debet, which would have been the most regular, it would have been otherwise

Proceedings affirmed.  