Opinion by

The defendant was charged before a justice of the peace that “he did wilfully and maliciously and with intent to disturb the peace, act in a disorderly manner *260towards the affiant and his family and especially toward his daughter, Elizabeth, by using vulgar, profane and indecent language in the presence and hearing of said parties with intent that they should hear the same.” The substance of the testimony of the witnesses is not set out in the transcript of the justice. There is nothing which shows that the defendant was charged with any statutory crime or had committed any offense defined under our criminal laws. The Act of May 2, 1901, Section 1, P. L. 132, punishes disorderly conduct, but such disorder must be accompanied “by loud, boisterous, and unseemly noise, or disturb the peaceable inhabitants near by or near to any public highway, etc.” None of these essentials are set out in the record. The magistrate entered judgment as follows: “Judgment is given that defendant pay cost of prosecution and in default of which ten days in Blair County jail.” Upon petition for a special allowance of a certiorari, the learned judge of the court below stated that had there been a fine imposed, he would have sustained the exceptions to the record, but “even though a defendant is not technically guilty of the crime charged, a magistrate has the power to punish a defendant by placing costs upon him.” The Act of September 23, 1791, 3 Smith’s Laws 37, provides “that where any person shall be brought before a court, justice of the peace or other magistrate ......on the charge......of having committed a crime and such charge upon examination shall appear to be unfounded, no costs shall be paid by such innocent person but the same shall be chargeable to and paid out of the county stock by such city or county.” This act is still in force and under it the magistrate has no power to impose the costs upon the complainant when the charge is unfounded: County of Lehigh v. Schock, 113 Pa. 373. The magistrate could do one of two things, discharge the defendant and the costs would then fall on the county or enter judgment convicting the defendant and unless the judgment be reversed the costs *261in the latter case would fall on him: Com. v. Evans, 59 Pa. Superior Ct. 607 (613).

We think the learned judge was wrong in holding that the justice had the power to punish the defendant by placing costs upon him when the record does not show that he was guilty of the crime charged.

The judgment is reversed.