delivered the opinion of the court.

The fifth section of the seventh article concerning practice in criminal cases does not extend to trials for assault and battery before a justice. The 11th section of the law specially applicable to this subject declares that all trials under it shall be by a jury, &c., who shall assess the fine, &c. (R. C. 1855, p. 979.) The court had no authority therefore to assess the fine in this case, and the judgment must be reversed. The instructions given in the case were correct. We pass by the oral remarks of the court in relation to one of the witnesses without comment, as it is not likely that they will recur upon another trial.

Judgment reversed and cause remanded.