(after stating the case). The evidence is set out in the case stated, but it is apparent upon the record that *765the Superior Court did not have'jurisdiction, and the judgment must be arrested.
The prosecution was intended to punish for a violation of Chapter 135, section 23, of the Acts of 1887, which, among other things, imposes a tax of fifty dollars on itinerant salesmen, commonly known as “Cheap John” merchants, and requires a license to be obtained by them before selling. Section 35 of the act makes it a misdemeanor for such persons to sell merchandise without first paying the tax and obtaining the license, punishable “ by a. fine not exceeding $50, or imprisonment not exceeding thirty days.” It also subjects them to a penalty of $50, which penalty it is the duty of the Sheriff to cause to be recovered.
The punishment imposed, not exceeding a fine of $50, or imprisonment for thirty days, the justice of the peace, under §892 of The Code, had exclusive original jurisdiction within six months. There was no trial had before the magistrate, and no judgment, and consequently there could be no appeal, by which alone the appellate Court could acquire jurisdiction. The justice of the peace seems only to have exercised his functions as a committing magistrate, and required the defendant to enter into bond for his appearance to answer in the Superior Court, and this seems to have been treated as an appeal. There was no bill of indictment found by a grand jury.
This was erroneous. It is a criminal prosecution, and though no exception has been filed, nor any motion made to correct the judgment, it is nevertheless our duty to examine the record, and see if there is any error in it. State v. Wilson, Phil. Law, 237.
There is error, and the judgment must be arrested.
Error.