The opinion of the Court was drawn up by
Appleton, J.The plaintiffs bring this action to recover the amount paid by them on account of one Charles Thompson, who had been sentenced to the Reform School, for the term of two years, by John Smith, the magistrate before whom he was brought for trial, upon the complaint of his father, on the charge of being “ an idle, ungovernable boy, and an habitual truant.”
The settlement of Thompson in the defendant town, the payment by the plaintiffs of the amounts sued for to the superintendent of the State Reform School, and due notice to the defendants are admitted.
It is insisted in the defence, among other grounds, that the complaint, judgment and warrant of commitment show no of-fence, and that, consequently, the proceedings were entirely unauthorized and void.
Formal defects in the’ proceedings should not be permitted to defeat the plaintiffs’ claim. But an entire want of jurisdiction on the part of the magistrate — an illegal conviction for a non-existent offence, is not a mere technicality and cannot be regarded as such.
The mittimus of the magistrate, after the usual direction to the Sheriff, &c., proceeds as follows: — “Whereas Charles E. Thompson of Lewiston, in said county of Androscoggin, a youth under the age of sixteen years, hath this day been convict*485ed before me, John Smith, Esq, one of the justices of the peace, &o., upon the complaint on oath of Hiram K. Thompson of said Lewiston, in said county, in which the said Thompson complains that Charles E. Thompson of Lewiston, in said county, on the third day of November, A. D., 1858, at Lewiston aforesaid, in the county aforesaid, is an idle, ungovernable boy, and is a habitual truant, against the peace of the said State and contrary to the form of the statute in such case provided — for which offence the said Charles E. Thompson hath been sentenced by me, the said justice, to the State Reform School, for the term of two years, or to be imprisoned in the county jail in Auburn, in the county of Androscoggin, for the term of ten days,” &c.
By R. S., 1857, c. 11, § 12, “towns may make by-laws, not repugnant to the laws of the State, concerning habitual truants and children between six and fifteen years, not attending school, without any regular and lawful occupation, and growing up in ignorance, as are most conducive to their welfare and the good order of society; and may annex a suitable penalty, not exceeding twenty dollars, for any breach thereof; but said bylaws must be first approved by a Judge of the Supreme Judicial Court.”
By § 13, it is provided that towns shall appoint persons to make complaint for violation of the by-laws established by virtue of the preceding section.
By § 14, the “ magistrate, in place of the fine aforesaid, may order. children, proved to be growing up in truancy and without the benefit of the education provided by law, to be placed for such periods of time as he thinks expedient in the institution of instruction, house of reformation, or other suitable situation provided for the purpose under the authority conferred by § 12.”
By statute of 1858, c. 37, § 2, authority is given the magistrate, when any person is convicted of “ truancy, or having violated any police or municipal regulations of any city or town, punishable in the county jail or house of correction,” to sentence the offender to the Reform School, &c.
*486It is apparent that there is no punishment provided by statute for the offence described in the complaint and mittimus. Indeed there is no offence set forth and defined, either in the Revised Statutes or in the subsequent legislation of the State, such as is the subject matter of the official action of the magistrate.
There is nothing in the statutes conferring jurisdiction on the magistrate to issue the process in question.
Under the authority conferred upon towns, the plaintiffs have made by-laws relating to “ habitual truants.”
By § 1 of these by-laws, “ any child between the age of ten and fifteen years, without any regular and lawful occupation, who shall, except in case of ill health, habitually neglect to attend school, or become an habitual truant, growing up in ignorance, upon conviction thereof, shall be fined not less than one nor more than five dollars.”
By § 2, “ instead of the fine mentioned in § 1, any justice before whom such child may be for trial, may, at his discretion, order such child convicted upon the foregoing section to be committed to the Reform School, for a term not exceed1 ing one year.”
But the proceedings before the magistrate are not based upon any by-law- of the town of Lewiston. No allusion is made in any way thereto. And, if the proceedings had been under those by-laws, the magistrate had no authority to sentence for a longer period than one year. So far as relates to the term of imprisonment, the sentence might as well have been for life as for two years.
The mittimus and other proceedings, not being warranted by the statutes of the State, nor the by-laws of Lewiston, the sheriff had no authority to commit nor the superintendent to receive. The plaintiffs were under no obligation to pay, and, having paid voluntarily, they cannot recover.
Plaintiffs nonsuit.
Tenney, C. J., and Cutting, Goodenow, Davis, and Kent, JJ., concurred.