Phinney , 32 Me. 440 ( 1851 )

Shepley, C. J.,

orally.

1. It is objected that the mittimus does not show that there, was a prosecutor, or who was the purchaser of the liquor, or when or where, or in what quantity it was sold. In support of the objection, the petitioner’s counsel has cited 4 Mass. 497 and 641. The former case has no applicability, because the offence there charged was one of which the magistrate had jurisdiction, not to render a final judgment, but merely to bind over. In the latter case, the recognizance did not present, enough to show that the justice had any jurisdiction whatever. But in this petitioner’s case, it is shown that the of-fence, of which he was convicted, was within the justice’s jurisdiction.

2. The sentence was, that the petitioner pay a fine to the State. This was erroneous, still the judgment is valid until reversed. If it were here upon a certiorari, the erroneous part might be reversed, leaving the penalty unappropriated. But the petitioner is not injured by the misappropriation. On paying the fine and cost, he would be discharged. That is enough for him. State v. Stinson, 17 Maine, 154; Ricker, petitioner, 31 Maine, 37.

The petitioner, if present on Habeas Corpus, could not be discharged. Petition withdrawn.