
    Foster v. McAdams.
    One justice of tho peace cannot, by consent of parties, be substituted for another in the trial of a case in a precinct to which the former does not belong.
    Where tho parties having a suit pending before Justice Davis, in precinct No. 7, agreed that Justice Mason, of precinct No. 8, should sit with Jus tico Davis at the trial, and that the decision of Justice Blasón should be final, and the case was triéd in that way; Justice Davis entering up the judgment as the judgment of Justice Mason, and signing his own name thereto. Justiee Davis declining to express an opinion, bub malting no entry to that effect: Ileld, That the judgment was void. (Note 06.)
    See this case upon the subject of an award in ajustice’s court.
    Error from Walker. Injunction against an execution issued by a justice of the peace. It appeared that the parties had a suit pending before Davis in the 7th precinct; that they agreed that Mason, justice in precinct No. Ü, should sit with Davis in the trial of the ease, and that the decision of Mason should he final; that the judgment was entered up by Davis, signing his own name thereto, as the judgment of Mason, and declining to give an opinion of his own, but making no entry to that effect. The injunction was dissolved, and the plaintiff'obtained a writ of error.
    
      Wiley fy Baker, for plaintiff in error.
    I. The act of ISIS, (Hart. Dig., p. 520.) to’ “organize justice’s courts and define their jurisdiction,” provides for an election “ by the qualified electors of each justice’s precinct, semi-annually, “ two justices,” &e. There is no provision in the law for a justice hearing and determining cases out of his own precinct. Their civil jurisdiction is confined to their precincts respectively, except in certain eases. (Hart Dig., p. 527, art. 1717.) And hence it follows that one justice has no right to sit upon a case in anollier’s precinct. (2 Roof; R., 357; lid., 202.) And for the purpose of remedying this hiatus the Legislature, at the last session, passed an act, which see in acts of 1852, p.'l40, sec. 2. Their criminal jurisdiction is co-exten-sivo with the county. (Hart. Dig., p. 523, art. 1703.)
    II. The justice’s record and the, justice (Mason) who rendered the judgment in this case both show that the judgment was that of Mason and not of Davis; lienee it was void. Consent could not give jurisdiction where, otherwise, there was none. (Wynns & Lawrence v. Underwood, 1 Tex. It., 18.)
    HI.,It was not an arbitration under the statute, for the proceedings show that tlie parties did not intend to follow the statute for the submitting of matters of arbitrament and award. (Owens v. Withee, 3 Tex. R., 161.) And if it was a submission at common law, then the award is only matter for 1 lie foundation of an action, and cannot be enforced by execution. (1 Chitty Ph, m. p., 103; 8 Cow. R., 235; 7 Id., 522; 2 Saund. R., 62.)
    
      Yoakum 8f Campbell, for defendant in error.
    The judgment entered up by Judge Davis in this case is good as his judgment or as au award.
    1st. As his judgment. lie was not bound to adopt it if it did not coincide with his view. But we have reason to believe it did coincide with his opinion, because lie stated that the evidence was different from that of the former trial; also, the fact that he was not called on to prove that it was not his judgment is evidence that it was; and again, as he entered it upon his docket and signed his name to it as a judgment, the presumption is in favor of its being such.
    2d. It was a good common-law award. The parties liad agreed upon (he arbitrator. lie accepted the position, sat upon it, gave a decision; the parlies were there; his award was catered up as the judgment of the court.
    Our arbitration law does not apply to eases in'court, but only to cases not commenced. Its whole form of proceeding contemplates a new case. Here is a case in court, a reference is had as at co'tnmon law, no particular form is required, substantial justice has been done. The claim is small, yet the plaintiff is running up a heavy bill of costs to avoid the just penalty of a trespass on his neighbor’s property.
   Lipscomb, J.

The question presented in this ease is, can a justice of the peace go out of his own precinct and try and decide a civil suit?

The justices of the peace are elected fora particular precinct by the qualified voters of such precinct, (sec arts. 201, 202, 225, Hart. Dig.,) and it would seem to follow, as a matter of course, in the absence of any express authority of law to the contrary, that their jurisdiction is restricted and confined to the particular precinct for which and in which they had been effected by the qualified voters thereof. They can no more go out of their own precinct and try a civil suit than they could go out of their county and perform such judicial functions. And the question of jurisdiction is uot to bo waived, nor can it be given where it does not exist, even by consent of the parties. (Wynns & Lawrence v. Underwood, 1 Tex. R., 48.) In general a party is protected from a suit only in the precinct of his residence. ' To this there are some exceptions, snob as if there he no justice of the peace in the precinct of the defendant’s residence, or if it he within an incorporated (own or city. In the first exception he can he sued before the justice of the next adjoining precinct, and in the latter he can be sued .before any justice of (.he peace, within the corporation. In neither of these exceptions is it believed that the justice could go out of his own precinct to hold his court. lie, can bring the parties before him, hut he cannot go out of his prcciuct to try the ease. '

The record shows that the supposed judgment in this case was rendered and signed by Justice Mason out of his own precinct and in the precinct of Justice Davis, and the judgment was entered on the docket of the said Justice Davis not as Ins judgment but as the judgment of Mason. There was some evidence that the parties had verbally consented to the substitution of Mason in the place oí Davis; but tins consent, we have said, could not give jurisdiction to the substituted justice auy more tliau if lie was not in commission at all. .■{See the case above cited.)

Note 90. — Horan v. wahrenberger, ante, 313.

The appellant filed his petition, and prayed an injunction against an execution issued upon this void judgment. The injunction was granted by the district judge, but on a hearing of the case the court dissolved the injunction and di.-missed the petition. In the petition the circumstances under which the pretended judgment was obtained are fully stated, and he alleges that he is threatened with an execution upon this void judgment against his property. Perhaps this was the only appropriate and ample remedy that he could liave resorted to. "We believe that the injunction ought to have been, perpetuated, and the appellant relieved from the expense and trouble of further defense against the judgment, on the ground that it was a void judgment, for want of jurisdiction in the justice rendering it.

Tlie.judgment of the District Court is therefore reversed; and this court will render such judgment as the District Court ought to have given, perpetuating the injunction. '

Reversed and reformed.  