
    Agee vs. Dement.
    Where a court or justice has uo jurisdiction of the subject matter in dispute, such want of jurisdiction cannot be waived by appearance, plea, consent, or in any way whatever, and any judgment rendered in such case must be void to all intents and purposes.
    Where a court or justice has jurisdiction of the subject matter, but not of the person, such want of jurisdiction of the person maybe waived by consent, pr by plea to the merits, and cannot afterwards be asserted.
    Where a warrant was returned for trial before a justice legally competent to try such warrant, and such justice transferred it to the jurisdiction of another justice: Held, that such transfer, without the consent of plaintiff and defendant, was illegal, yet if the party, plaintiff or defendant objecting thereto, did not plead in abatement, but pleaded to the merits, it amounted to a waiver, and the judgment rendered by such justice wouldbe valid.
    Catherine Dement sued out. a warrant on the 13th day of June, 1838, under the hand of Rufus F. Boyd, a justice of the peace for Gibson county, against John D. Agee, in trespass, for taking and converting to his own use two head of cattle, the property of the plaintiff, to her damage fifty dollars. This warrant was executed on Agee, and defendant notified to appear before H- Harrison, on the 27th June, 1838. On the 27th the defendant continued the cause by affidavit until the 13th July ensuing, then to he tried by Harrison and by Randal, who was invited to sit with Harrison.
    Qn the back of the warrant are the following endorsements:
    “Continued, on the affidavit of the plaintiff, to Trenton, before Esq. Davidson, on the 20th July, 1838, this 13th July, 1838. J. Randal, J. P.
    H. Harrison, J. P.”
    “July 20th, 1838. Judgment for defendant for costs of suit. A. S. Davidson, J. P.”
    “From the above judgment the defendant prays an appeal to the next circuit court, and having given bond, &c. the same is granted. A. S. Davidson, J. P.”
    It doqs, po^ a.ppear that Agee either assented or objected fo the transfer of the cause to be tried by Davidson, or that bq urged before Davidson his want of jurisdiction over his person.
    At the November term, 1838, of the circuit court of Gib" son county the cause was tried before judge Harris and a jury of Gibson upon the merits of the case, and a verdict rendered for the plaintiff for the sum of twenty-three dollars and costs of suit. The defendant moved the court to set this verdict aside, but the motion was overruled. A motion was also made in arrest of judgment. This motion was also overruled, and a judgment rendered upon the verdict. There is a bill of exceptions in the record setting forth the evidence and the particulars of the trial, but it does not appear that the defendant did or did not put in a plea in abatement in the circuit court or before the magistrate, or in any manner objected to atrial upon the merits of the cause.
    The defendant appealed in error to the supreme court.
    
      Raines, for plaintiff in error.
    
      Parker, for defendant in error.
   Tuiíeey, J.

delivered the opinion of the court

The principal question presented for the consideration of this court in this case arises upon the motion in arrest of judgment, and is, whether the circuit court had jurisdiction of the cause?

That the court had jurisdiction of the subject matter in dispute is not denied; but it is contended that it had not jurisdiction of the person of the plaintiff in error, and that therefore the judgment is void, and must be arrested. The want of jurisdiction in a court of the subject matter in dispute cannot be cured by appearance, by plea, by consent, or in any other way whatever; but the judgment is and must remain to all intents and purposes absolutely null and void. But it is not so in the case of a want of jurisdiction of the person. This is a personal privilege, and if the party seeks to avail himself of it, he must do it, if he appear, by plea in abatement; for if he enters an appearance and suffers a judgment by default, or if he plead to the merits of the case and go to trial, he has waived his privilege, and shall not be permitted afterwards to assert it.

To apply these principles to the present case. The warrant was returned before H. Harrison, Esq., and was by him and J. Randal, Esq., whom he had called to preside with him, transferred for final trial to the jurisdiction of A. S. Davidson, Esq. a justice of the peace for the same county. That there is no law warranting this mode of proceeding is unquestionably true. A. S. Davidson gave judgment for the defendant, from which the defendant appealed to the circuit court.

Whether the defendant was before the justice litigating his rights does not appear. If he was, and did not insist on his personal privilege, to wit, the want of jurisdiction of his person by the justice, in consequence of the irregularity of the proceeding, as matter in abatement, but defended his pase upon its merits, he gave the justice jurisdiction of his person. When the cause was removed to the circuit court he was in the same position, if he had not given jurisdiction of his person to the justice by an appearance and defence of his case upon its merits. Inasmuch as the circuit court had jurisdiction of the -subject matter of the suit he was bound by the law to insist upon his personal privilege as a matter in abatement before he defended his case upon its merits. This he omitted to do. It is then too late to seek protection from it now. Let the judgment therefore be affirmed.^  