
    Breese against Williams and Boies.
    No appeal lies from the judgment of a Justice’s Court on a demurrer, Taw'ftaCourt of Common Pleas, under the act to ex-diction o/justices of the 41. ch. 94)
    Where thereis an appeal tic^s aCourt" after a trial on fact,m“tiiere newUldtriaie by jury, upon the testimony of the same witissuTta°keSnon proper pleadmgs m the Court of Common Pleas.
    The practice of the Court of Common Pleas of Washington county, of proceeding by a general assignment of errors and joinder, is incorrect and improper.
    IN ERROR to the Court of Common Pleas of Washington county. Williams and Boies sued Breese in a Justice’s Court, on a promissory note, dated December 13, 1817, *"or twenty-six dollars, with interest. Breese admitted, that jJe gave the note, and pleaded in bar a discharge under the insolvent act, and produced his discharge, dated April 28, 1818, signed by William Robareis, first Judge of the Court of Common Pleas of Washington county. The plaintiffs demurred to the plea; and the Justice, considering the discharge invalid, gave judgment for the plaintiffs, for 28 dollars ant* cents. The defendant appealed, under the act passed April 10th, 1818, (sess. 41. ch. 94.) to the Court of Common Pleas of Washington county. On the return of the proceedings, there was, according to the practice of that Court, á general assignment of errors, and a joinder of in 77 , ° ° nullo est erratum ; and on this issue,'the Court of Common Pleas affirmed the judgment of the Justice’s Court; and 0n the judgment of the.Common Pleas of Washington, a writ of error was brought, returnable to this Court,
    
      On the return to the writ of error, the case was submitted without argument.
   Per Curiam.

The recovery before the Justice was for more than $25, besides costs; but it was upon an issue in law, without any issue in fact. The 17th section of “ the act to extend the jurisdiction of Justices of the Peace,” gives a right of appeal where a judgment shall be " rendered, either upon verdict or without a jury trial, above the sum of twenty-five dollars.” (Sess. 41. ch. 94.) According to the scope and provisions of the whole act, it is clear, that the right of appeal applies only to judgments on issues in fact. The statute contemplates and provides for a new trial upon the testimony of the same witnesses only; and requires, contrary to the practice of the Washington Common Pleas, that such issues in fact shall be tried by a jury, upon a proper issue framed, by pleading in the Court of Common Pleas,

By the 21st section of the same act, the remedy, by certiorari, is given in all cases, u where an appeal is not provided for” by that act.

This was a case for certiorari; (if the Justice’s judgment was erroneous ;) and it follows, that the Court of Common Pleas had no jurisdiction of the cause. The proceedings were coram non judice ; and it is of no consequence, that the present plaintiff in error made the appeal to the Common Pleas; because, consent cannot confer jurisdiction.

The judgment of the Common Pleas is a nullity; and the Justice’s judgment remains in full force. The writ of error must be quashed.

Writ of error quashed.  