
    Robert Hairston vs. Richard F. Francher.
    Cases brought from justices of the peace into the circuit court, may be tried in the latter court without any written pleadings whatever.
    An overseer of roads cannot maintain an action before a justice of the peace, against a person for obstructing the highway, unless he has first obtained a judgment of the board of police against the obstructor under the statute (H. & H. 450, § 29, and 453, 41,) which makes itthe duty of the overseer of roads to remove all obstructions upon roads, and charge the expense thereof to the offenders, and to report the number of days of the obstruction and the expense of removal, to the board of police, which was authorized to enter judgment thereon; which judgment, if for an amount less than fifty dollars, was recoverable by suit before a justice of the peace.
    In error from the Lowndes circuit court; Hon. Hendley S. Bennett, judge.
    Richard F. Francher had a warrant issued from a justice of the peace against Robert Hairston, to recover damages for obstructing a public highway; the justice gave judgment against Hairston for three days’ obstruction, six dollars and costs, which amounted to $43 50. Hairston appealed to the circuit court, where a trial before a jury was had, who found a verdict also against Hairston.
    No pleadings are set out in the record; nothing appears but the submission to the jury, the judgment and the bill of exceptions. The latter recites that the defendant plead the general issue in the circuit court; but it is not in the record. The evidence adduced on the trial was in substance as follows: Francher read the transcript of the records of the board of police of the county of Lowndes, state of Mississippi, laying out and establishing the road alleged to be obstructed; the appointment of himself as overseer of the road. He then proved by witnesses, that Hairston admitted, on the trial before the justice of the peace, that he had put up his fence across the road, and said that he would put it up as often as he pleased; and that the fence of Hairston, prior to the institution of the suit, had been erected across the road for as many as three days.
    On this testimony Hairston asked the court to instruct the jury,
    1. That if the jury shall believe, from the evidence, that the subject-matter of this suit was for obstructing a public highway, Richard Francher, the appellee, had no such interest in the subject-matter of the suit as enabled him to bring or sustain the same, and they must find a verdict for the appellant, Robert Hairston.
    2. That if the jury shall believe, from the evidence, that the obstruction of the road or highway, sued for by appellee, was the obstruction of a public highway, said Francher cannot bring or sustain this action therefor; and further, said justice of the peace had no jurisdiction of the cause, and they must find for the appellant, Robert Hairston.
    3. That the law is, that the obstruction of a public road is a public nuisance, for which the board of police may enter up a fine or judgment of $2 for every twenty-four hours’ obstruction; but that appellee, Richard Francher, had no right to make any such charge, or to bring or sustain any such suit, either in his individual capacity or as overseer of the road; and if the jury shall believe, from the evidence, that the obstruction sued for was such a nuisance, appellee, Richard Francher, cannot bring or sustain his action therefor; and they must find for the appellant, Robert Hairston.
    4. That the law is, that the justice of the peace had no jurisdiction of the cause, and this court has no jurisdiction of it, and the jury must find for the appellant, Robert Hairston.
    The court refused to give the charges, on the ground that the objections ought to have been taken by demurrer. After the verdict for Francher, a motion was made by Hairston for a new trial, which was refused, and this writ of error prosecuted.
    
      Evans, for plaintiff in error.
    ’'The statute is as follows, to wit: — “If any person shall fell ■any bush or tree into any public highway, or obstruct the same in any manner whatever, and shall not remove the same within twenty-four hours, it shall be deemed a nuisance, and every person, so offending, shall forfeit and pay'two dollars for every twenty-four hours such obstruction shall so remain, and the overseer of the district, when such may be, is hereby required to remove the same, and charge the same to such offender, and also return the number of days such obstruction so remained ¿cross said public road, to the board of police, who may pass judgment, not only for the charges paid by the overseer, but for the number of the days the offender suffered such obstruction to remain unremoved.” H. & H. 450, § 29.
    1. It is evident that Francher had no right to sue for a violation of' this statute. It is an offence against the public, and of course, an individual has no right of action. Every person in the state has the same right to sue that Francher claims ; but the evidence shows that Francher was overseer of the road obstructed. This, however, does not help the case. He does not sue as an overseer, and he cannot sue in that capacity' any more than he can as an individual. He cannot, as overseer, go beyond the power conferred by the statute. By this, his duty is to remove the obstruction, and charge the same to the offender, and to return the charge so made, and also the number of days such obstruction so remained across the road, to the board of police. Here his duty ends. He is not permitted to sue for even the charge made for removing the obstruction, and much less for the penalty of two dollars per twenty-four hours such obstruction remained. See H. & H. 452, § 38. It is made the duty of the board of police to impose this fine, as it is made their duty to pass judgment for the obstruction of a highway in the statute first above quoted. By reference to § 39, page 453, of H. & H. it will be seen that the fines and forfeitures under the act are to be recovered in the name of the president of the board of police.
    2. The court below admitted the charges to be law, and that neither the justice nor the circuit court had jurisdiction, but was of opinion that the charge could not be given, because Hairston did not demur. For a public nuisance such as the one sued for, Francher could not sue in any court. No jurisdiction whatever could take cognizance of Francher’s cause; yet in the court below the omission to demur gave jurisdiction. In Latham v. Edgarton, 9 Cow. 227, it is said, “ Though the parties appear and proceed to trial, without raising the objection, and the court, in fact, hear, try, and give judgment, and though the judgment be against the party succeeding before the justice, who pays it, yet it is not to be regarded as of any effect whatever when there is a want of jurisdiction. And in the same case, page 229, it is said that even after trial the court is bound to dismiss the cause on motion. See 1 Humph. 332.
    3. When there is a total want of jurisdiction it may be pleaded in bar, or given in evidence under the general issue. The true rule is laid down in Graham’s Practice, page 224, as follows, to wit: “ This is an objection which it is, in genera], unnecessary to plead, for if a want of jurisdiction appear in any stage of the cause, the plaintiff must fail. It has, however, been said, that after pleading a plea in bar it was too late to except to the jurisdiction of the court. 3 Johns. 105. This rule, it is true, prevails to a certain extent, but its operation is extremely limited, and it is confined almost exclusively to those cases in which a defendant, by reason of some local or personal exemption, is privileged from being sued, except in a particular place, or court.”
    t£ In an inferior court, if the fact of jurisdiction be alleged, but not proved, the plaintiff ought to be nonsuited on the general issue, and if the inferior court admit the jurisdiction, a bill of exceptions may be tendered. 1 Chitty PI. 442, 476; Gilbert O. P. 188, 189; 1 Saund. PI. and Ev. 98, n. 1.
    
      “ When the subject-matter of the plea is that the plaintiff cannot at any time sustain his action, it must be in bar.” 1 Chitty, 481. See, to the same effect, 1 Chitty, 474, noteb.; 6 East, 583; 3 Mass. R. 124; 4 T. R. 503.
    
      Hains and Harrison, for defendant in error.
    1. The charges requested were not properly the subject-matter of instructions for the jury. All the facts stated in them were set out upon the record, as constituting the right of action itself. They were alleged affirmatively, by the pleadings, and were the very foundation of the suit. Francher sued in his own name, in the capacity of overseer of the road, for the obstruction of a public highway, and before a justice of the peace. This was the case made by the pleadings, and if the facts thus set out did not give jurisdiction, advantage should have been talten of it in a different way. After pleading the general issue, the only way in which the question of jurisdiction could be brought before the jury, would be by new matter of evidence. ■
    2. The first and third charges amount in substance to this, that if the jury shall believe that the plaintiif is to be believed, when he states that he sues as overseer for the obstruction of a public highway, then he had no right to bring or sustain such a suit, and they “must find for the defendant.” In other words, if the case made is proved, the jury must find that the plaintiff had no right either to bring or sustain it; and inasmuch as he did prove it, they must find for the defendant. The defendant takes issue upon the facts, and because the plaintiff proves, all that he undertook to prove, and nothing more, the defendant is entitled to a general finding in his favor!
    3. As to jurisdiction, and the right of the overseer to sue in the manner he did. If this be a case of “ fine or forfeiture,” — and in all cases of fine or forfeiture the same may be sued for and recovered before a justice of the peace, in the name of the person suing for the same, — it follows that the court had jurisdiction, and that the suit was properly brought. The latter part of the section, (29) which requires the overseer of the road to remove the obstruction and charge the expenses to the offender, and return the offender to the police court, “ who may pass judgment, not only for the charges paid,” but for thé number of days the obstruction was permitted to remain, does, not take away the jurisdiction of the justices of the peace. At most, the remedy would be cumulative. Besides, justices of the peace have general jurisdiction over the amount in controversy, which has not been taken away.
    4. The amount in controversy is six dollars, and the record shows that Hairston declared that he had obstructed the road, and would do it again as often as he pleased. Francher was forced by law to accept the appointment of overseer, or be fined. He was also subject to be indicted, if he did not do his duty. If, therefore, the doctrine of “ de minimis non curat lex," is of any avail, it ought to be made to apply to such cases as this. Ex parte Bailey, 2 Co wen, 483; McCrow v. Hull, 1 Burrow, II; lb. 57; Fleming v. Gilbert, 3 Johns. R. 483; Hyat v. Wood, lb. 239; 7 Amer. Com. L. Rep. 125; 5 Johns. 137; 61b. 270; 8 lb. 369 ; 1 Johns. Cases, 255 ; 3 Verm. 73 ; 2 Bay, 126.
    £! The play should be worth the candle.” The legal costs, and the time of the witnesses, and of the parties, and of the court, should be considered. Smith v. Surber, 2 Marsh. 50.
   Mr. Justice Teacher

delivered the opinion of the court.

Francher instituted an action before a justice of the peace against Hairston for obstructing the highway. Upon judgment for the plaintiff below, before the justice, Hairston appealed to the circuit court. In that court there appears to have been no pleadings by the parties, with the exception that the record states that the defendant plead the general issue.” Upon the trial the defendant below prayed the court to instruct the jury thatthe cause was coram nonjudice, and that the defendant was entitled to a verdict in his favor. It appeared upon the trial that the plaintiff below was an overseer of the roads. There was no evidence of a judgment against the defendant below by the board of police. •

The statute makes it the duty of the overseers of roads to remove all obstructions upon roads, and charge the expense thereof to the offenders, and to report the number of days of the obstruction and the expenses of removal, to the board of police, which board is authorized to enter judgment thereon, subject to an appeal to the circuit court. How. & Hutch. 450, § 29 ; and 453, § 41. The judgment of the board, if for an amount less than fifty dollars, is recoverable by suit before a justice of the peace.

The statement in the record, that the defendant below plead the general issue, is contradicted by the record itself. There were no pleadings in the record to which an issue could be filed. There was no declaration. The plea of general issue amounted merely to a consent to go to trial. There being no occasion for pleadings in writing, in cases of appeal from a justice of the peace, the character of the party suing could be shown in evidence. An overseer of roads may institute such a suit, but to entitle him to recover in the action he must show, by competent evidence, that a judgment for the amount he seeks to recover, has been first entered up against his defendant, by the board of police. This is the foundation of his right of action. Such evidence not having been produced upon the trial of this cause, the judgment must be reversed, and a new trial granted.  