
    Poyser v. Murray.
    
      Friday, December 15.
    
    In a suit commenced before a justice of the peace, the 'want of jurisdiction can.be shown either before the justice-or on appeal to the Circuit Court.
    The refusal of the only justice of the peace of the proper township to entertain a suit, where he was legally competent and disinterested, did not, by the E. S. 1843, authorize the plaintiff to bring the suit in another township.
    The remedy of the plaintiff, on such refusal, was by suit against the justice.
    ERROR to the Lagrange Circuit Court.
   Stuart, J.

Murray sued Poyser before a justice of the peace, and had judgment. The cáse was appealed to the Circuit Court, and there was judgment for the plaintiff there also. Poyser prosecutes error.

There is no brief for Mwrray.

Counsel for Poyser insists that the Court had no jurisdiction, because the defendant was sued out of his township. There was another point argued, which it is not material to notice.

The facts, as shown on the trial in the Circuit Court, were, that Poyser lived in Eden township; that there was at the time in said township a justice of the peace acting, &c., not related, &c., and competent to try the cause, &c. It was further shown that the trial was had before a justice of the peace in Newberry township. Murray showed in defence that he had applied to the Eden township justice for a summons, who told him he did not wish to act, and advised him to settle it, and that he intended to resign jn a few days, which he did about eighteen days after the gUit was commenced.

A. Ellison, for the plaintiff.

The Court entertained jurisdiction and tried the cause.

The want of jurisdiction may be shown, in such cases, either before the justice or on appeal to the Circuit Court. Thomas v. Winters, 4 Blackf. 161.—Perkins v. Smith, id. 299. That the justice of the proper township declined to act, is the reason here given why the suit was brought in another township. It is not among the causes pointed out in the statute. R. S. 1843, p. 863. The Court have had some difficulty in coming to a conclusion whether the facts do not bring this case within the reason of the exceptions, and that therefore it is embraced within the provisions of the 4th section of chapter 47, R. S., supra. But a majority of the Court are in favor of holding the exceptions allowing parties to sue out of the township strictly; leaving Murray to his remedy against the magistrate.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  