
    Pollard vs. Holeman.
    
      October 17.
    The legifia-ture had power to provide chat upon an appeal from the judgment of a ma. giftrate the circuit court ihould try the Caufe as if it had originated id that court
    And upon fuch appeal the queftion whether the a& giv ing juftices ju-riidi&ion to the extent of fifty dollars was or was uot confti-tutional, cannot arife.
   OPINION of the Court, by

Ch. J. Boyle.

The defendant in error having brought suit against the plaintiff before a justice of the peace, upon a note for 71. 9s. recovered judgment therefor, from which the plaintiff in error appealed to the circuit court.

When the cause came on for trial in the circuit court, the plaintiff in error moved the court to quash the judgment of the justice of the peace, upon the grounds that the acts of assembly increasing the jurisdiction of the justices of the peace are unconstitutional; but the court being of opinion those acts were not unconstitutional, overruled the motion ; and the plaintiff iii error making no further defence, judgment was given against him for the amount of the note -. to reverse wrhich he prosecutes this writ of error.

The point made in the court below, Which is the only one presented by the assignment of error in this court, was, in the attitude in which the cause stood, wholly ⅛* material. For however questionable may be the power of the iegisiature to increase the jurisdiction of justices of the peace, there can be no doubt of its competency to provide that the circuit court, when the cause is brought before them, should proceed to hear and determine it upon its merits; and the legislature has in fact so provided. For in the fourth section of the. “ act to increase the jurisdiction of magistrates,” it is expressly enacted, that the cause, when brought before the circuit court, “ shall be tried and determined in all respects as it would or might have been, liad it originally been instituted in said court.”

It is clear then that the judgment of the magistrate liad by the appeal become null and inoperative. The circuit court were not authorised either to affirm or reverse it ; but on the contrary they were bound without regard to it to decide the cause upon its merits. To require the court, therefore, to quash the judgment of the magistrate, was requiring them to do that which if done could have no possible effect; and their refusal to sustain the motion for that purpose was certainly not erroneous.

Judgment affirmed with costs.  