majority">Hinman, O. J.

The defendant was prosecuted for a nuisance in placing a building, and also a quantity of stone, and a stick of timber projecting from a building, upon a highway in the town of New Milford. There were two counts in the complaint, one relating to the building, and the other to the stone and the stick of timber. The justice made a general finding of guilty, and imposed a fine of seven dollars, and ordered the nuisance to be removed. From this judgment the defendant appealed to the superior court, and in that court moved that the complaint be dismissed on the ground that from the entire record of the justice it appeared that the defendant was not found guilty of the offences charged in both counts, and that therefore he could not be required to answer to both counts; and as there was nothing to show upon which count he was found guilty and on which not guilty, that he ought not to be required to answer to either count. This is claimed to appear from the record, because the lowest fine which the justice could inflict for one offence is five dollars, and as, had he found the defendant guilty upon both counts, the fines upon both would have exceeded the jurisdiction of the justice, and made it his duty to bind over the defendant to the superior court, and he did not do this, it is claimed to be apparent that he must have found him guilty upon one count only. We think, however, that if it be admitted that the proceeding of the justice was irregular, it is very questionable whether the defendant could take advantage of the irregularity after his appeal. The appeal was taken for the purpose of avoiding the judgment of the justice, *117and it has that effect. We doubt whether it is competent for the defendant to show by the judgment, which has been rendered void by the appeal, that the defendant was acquitted upon one of the counts. The record does not say so directly; and if, in fact, it was an irregular and illegal judgment, upon the facts found by the justice we do not see why it is not as probable that he imposed an illegal fine, that is, a fine of less amount than he was required by law to impose, as that he inflicted a legal fine upon a conviction on one count, and omitted to make any finding whatever upon the other. It appears to us therefore that it is for the defendant to show positively that he was acquitted upon one of the counts, and that it is not sufficiently shown in this indirect way, by an inference, drawn only from the amount of the fine imposed.

But we are not satisfied that there was any irregularity in the proceedings of the justice. It does not necessarily follow from the fact that there were two counts in the information, that there were proved, or attempted to be proved, two distinct offences. The justice made a general finding of guilty, and this it was proper for him to do if there was in fact but one offence, charged in different forms in the two counts. The presumption from the whole record of the magistrate is that but one offence was proved. Such clearly would be the presumption from a similar record in the superior court, had the defendant been there tried, and a general verdict of guilty found by the jury; and the ordinary form of the record of the superior court in such cases, is, we suppose, very similar to the record of the justice in this case; and we know of no reason why the presumption should not be the same with regard to both records.

It is further claimed that the record does not show that the justice had jurisdiction of the case, because it is not alleged in either count that the offence was committed in New Milford, or even in Litchfield county. But it is alleged that the highway which was encroached upon was all in the town of New Milford, and “ that said Merwin, near the railroad track in said town, unlawfully placed (the nuisances) in 'and upon *118said -highway,” Ac. It appears therefore clearly that' the offence was committed in the town of New Milford.

We are of opinion that there was no error in the refusal of the superior court to erase the case from the docket.

In this opinion the other judges concurred.

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