#### Robinson *vs.*The Commonwealth.

Appeal *from a J. P.*

[Mr. Turner for plaintiff: Atto. Gen. Morehead for defendant.]

From the Circuit Court for Madison County.

*April*23.

Whenever the matter in controversy — in a civil *or penal*ease— before a J. P. exceeds *£S,*an appeal lies.to the circuit court.

The penalty (by existing laws) for merely retailing liquors without license, is $20.

For beeping a tippling house, *i. e.*retailing in a house kept for that purpose, without license, the penalty amounts to $60.

Chief Justice Robertson

delivered the Opinion of the Court.

Thomas Robinson having appealed to the Circuit Court, from a judgment of a *Justice of the Peace,*for sixty dollars, on a warrant for *retailing spirituous liquors*without a tavern license — verdict and judgment for the same sum were again rendered against him, for *“keeping a tippling house.”*And this writ of error, brought to reverse the latter judgment, presents two questions: *First*— had the Circuit jurisdiction? *Second*— was the judgment right?

*First.*The *Justice*having adjudged against *Robinson*a penalty exceeding five pounds, he had a right to appeal to the Circuit Court, in virtue of the fourth section of an act of assembly of 1812 — “to increase the jurisdiction of magistrates;” which applies to cases merely penal, as well as to those more strictly civil; and to those *288in which the justice may have transcended his jurisdiction, as well as to those in which he had cognizance.

Where a warrant charges the defendant with retailing merely, he cannot be convicted, upon an appeal, of keeping a tippling house — a different offence. A *J. P.*has no jurisdiction of a charge for keeping a tippling house, as the fine exceeds $50. An appeal in such case,should be dismissed, for want of jurisdiction in the J. P.

*Second.*An act of 1793 (2 *Stat. Law,*1499,) denounced a penalty of ten dollars for either *keeping a tippling house, or retailing spirits without license, in or out of doors.*

An *act*of 1820 (Ib. 1502,) increased, to *twenty*dollars, the penalty for *retailing spirits out of doors.*

And-an *act*of 1831 (16. 1382,) added a penalty *oí fifty*dollars to that prescribed by the act of 1793, for *keeping a tippling house.*

Thus it is evident that any act of *merely retailing spirits*without license, is a specific offence subject to a fine of only twenty dollars; and that *keeping a tippling house,*or retailing without license in a *house,*kept for that purpose, is another and different offence for which the greater penalty of sixty dollars is denounced by the act of 1831.

And therefore, as the warrant charged only a retailing of spirits without license, *Robinson*could not'be legally convicted, on that charge, for *keeping a tippling house,*and moreover, the prescribed penalty for the act charged, is twenty dollars only; and, if the warrant would authorize a fine for sixty dollars for *keeping*a *tippling house,*when the charge- was simply a retailing of spirits, still, as the justice had no *jurisdiction to*render the judgment for sixty dolla-rs, *the*Circuit Court had no-authority to ,do so on the appeal, but should have dismissed the case for want of jurisdiction in the justice.

Wherefore, the judgment of the Circuit is reversed, and the cause remanded.