
    Benjamin Melvin, Plaintiff in Error, versus William Bridge.
    A writ of error does not lie where the proceedings m any stage of them axe not according to the course of the common law.
    This was a writ of error upon a judgment of the Court of Common Pleas for this county.
    The defendant in error filed a complaint or information against the plaintiff in error before a justice of the peace, for this county, for taking certain fish in Merrimack river, contrary to the statute of 1789, c. 51 (1 Mass. Spec. Laws, 272), all the forfeitures imposed by said act being appropriated, one moiety to the poor of the town where the offence is committed, and the other moiety to the informant. The justice adjudged Melvin to pay a fine of five dollars and costs. Upon the appeal to the Court of Common Pleas, he was acquitted by verdict of a jury. It was therefore considered by the said court, that the said William Bridge take nothing by his complaint aforesaid, and that the said Benjamin Melvin be discharged and go thereof without day. Melvin thereupon moved for judgment for costs in his favor, which the Court denied. And this denial he now assigns for error.
    
      Bigelow, for the defendant in error,
    insisted that a writ of error did not lie in this case. This is not a proceeding according to the course of the common law, but a special process prescribed by statute.
    
      Stearns, for the plaintiff in error,
    said, that wherever the proceeding of the Court, in the last decision of a cause, was according to the course of the common law, error lies, however l * 306 ] *the cause may have originated. And he cited the case of Dowland vs. Slade &f Ux. 
      , which was a writ of right originally brought in the Manor Court of Common Pleas by writ of false judgment. It was held error lay from the Common Pleas to the King’s Bench.
    
      
       5 East’s Rep. 272. See also 2 Bac. Abr. 456.—1 Salk. 263.—Morgans Vade Mazum, 286, which cites 1 Roll. 744. 1. 23.
    
   Curia.

This suit is a criminal prosecution for an offence created by a statute. It was originated by a complaint to a justice of the peace, who issued his warrant, on which the plaintiff in error was apprehended, and, on trial before the justice, was convicted. Upon conviction, besides the pecuniary fine, there is a judgment of forfeiture of the engine used in taking the fish. On appeal to the Court of Common Pleas, exercising the criminal jurisdiction formerly vested in the Sessions, he was acquitted by verdict of a jury.

These proceedings are given by statute, and are not according to the course of the common law. For although at the Common Pleas the trial was by jury, yet if the plaintiff in" error had been convicted, the judgment would have been a fine, and imprisonmeni until the fine was paid, and also a forfeiture of the engine used; which judgment this Court is not empowered to render upon this process. The case cited from East was a common law remedy, pursued according to the course of the common law; and the judgment was prescribed by the common law.

The writ of error must be quashed. If the Court were to consider these proceedings as certified on a certiorari, the plaintiff in errai could not be relieved, as a judgment for costs could not be rendered, but only the proceedings affirmed or quashed . 
      
      
        [Commonwealth vs. Ellis, 11 Mass. 465.—Edgar vs. Dodge, 4 Mass. 670.—Commonwealth vs. Blue-Hill Turnpike Corporation, 5 Mass. 420.—Ed.]
     