If this mittimus was illegally issued, the defendant is liable in trespass for the arrest made thereon. Kendall v. Powers, 4 Met. 553. The only inquiry therefore is, whether upon the facts stated, the defendant in his capacity of justice of the peace had the authority to issue the mittimus directing the committal of the plaintiff to prison.
All parties have acted upon the hypothesis that the appeal was not properly taken, the plaintiff insisting that such was the fact before the common pleas, and procuring on his motion a dismissal of the action on this ground by the court of common pleas, and the defendant as a justice resuming his jurisdiction, and as it would seem under the order of. the court “ that the case be remanded to the magistrate for the enforcement of his sentence,” given before the application by the father to take an appeal for his son, the party then on trial. We have not thought it necessary to consider the question whether the appeal was not properly taken by the father, acting as next friend of his minor son, who had been convicted of a criminal offence, for the reason just stated, viz: all the parties have assumed that there was no legal appeal. Supposing this to be so, the ease presents itself thus; a party accused of the crime of assault and battery was tried, convicted, and sentenced to pay a fine and costs, all on the 10th of July, 1850. Thereupon the party thus convicted was permitted to go at large, and no order for his committal was then made. On the 19th of June, 1851, nearly a year after this, the party was arrested and committed to prison on the common mittimus, such an one as would have been appropriate on the day of the conviction, if he had failed to pa; the fine and costs.
This proceeding was, we think, unauthorized. A preliminary step, the issuing a copias to bring the party before the justice, to show cause why he should not be committed in execution of the sentence, would seem to be required at least *265before issuing a mittimus at that remote period from the time of passing sentence. • The party should, at that late day, have had the opportunity to show cause why he should not be committed to gaol for not paying the fine and costs he had been adjudged to pay. This not having been done, but a mittimus issued nearly a year after the time the party had been permitted to go at large, under judgment and sentence on the complaint against him, the proceeding was irregular and the mittimus not authorized.
Exceptions overruled.