dissented, and filed the following opinion:
The fi. fa. in this case, as disclosed by the record, was issued under the seal of the Circuit Court by the clerk of the Circuit Court, was attested in the name of the judge thereof, and was returnable before the judge thereof. Eor these reasons I think it was properly treated as an execution issuing from the Circuit Court under the act of February 15, 1834. (Thomp. Dig., 360.) Upon the return of the execution, the record disclosed that ii purported to have been issued upon a judgment of the Circuit Court for a sum be*337low the amount of its jurdisdiction, and that instead of the judgment being the result of the exercise of the judicial discretion and power of that court, it was upon the face of the transcript of the record then on file a judgment of a justice of the peace. Under these circumstances I am clearly of the opinion that the judgment, so far as it purported to be a judgment of the Circuit Court, was void, and that the execution issued thereon being an execution emanating from that court was necessarily void also. With these views I think the judgment should be reversed and the case remanded, with directions to quashj the writ. As it is, the appeal being simply dismissed, I cannot see any escape from the conclusion that we are sustaining the Circuit Court in lending its process to a void judgment and giving effect to an execution both illegal and void. . This is not the view of the court, but being my opinion it is my duty to express it. I am not prepared to say that the Legislature may not authorize and require transcripts of justices’ judgments to be recorded by the clerk, or even underjproper regulations that he might issue an execution thereon ; but the regulations must be of such character as to, save the question of the jurisdiction of the Circuit Court, as" well as preserve the constitutional jurisdiction of the magistrate. With these views I must differ from the court.