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This was a proceeding commenced before a justice of tbe peace, by tbe plaintiff in error, against tbe defendants, as commissioners of section 16, in township 16, in range ten West, &c., to recover from tbe said defendants, as tbe cause of action is endorsed on tbe warrant, “bis proportionate share of tbe sixteenth fund, belonging to said township, for tbe year 1849.”
Tbe justice gave judgment in favor of tbe plaintiff, for tbe sum of twenty-four dollars, from which tbe defendants appealed to tbe Circuit Court, and plaintiff filed in that court bis statement, as follows : “ State of Alabama, Fayette county, Circuit Court; Term 1850; Appeal from ■-. Jeffries states that L. B. Harbin and Benjamin Jones, commissioners of 16th section, Township 16, Range 10, are justly indebted to him in tbe sum of twenty-four dollars and forty cents, for bis proportionable part for tuition for tbe year 1849, for scholars actually sent to school by him, which they refuse to pay.” *388To tbis statement there was a demurrer, wbicb was sustained by tbe court, and tbe plaintiff failing to amend, judgment final was rendered against bim, for cost, from wbicb tbis writ of error was sued out.
Tbe question wbicb first naturally arises, is, bad tbe justice of tbe peace any jurisdiction over tbis case? If be bad not, it is wholly immaterial, for what cause tbe Circuit Court repudiated tbe jurisdiction, since it could not have proceeded to judgment, however formal tbe statement may have been.
It is very clear, that, aside from the statutes upon the subject, the plaintiff could have no action at law against these defendants. Whether a bill in chancery would be to compel the performance of the trust, is not a question now before us. Since, then, the action is given by the statute, the court must have a warrant by the statute for its action, otherwise, its proceeding is coram nonjudice, and void. A remedy is given, where the funds are withheld by the commissioners, on motion of any legal voter of the township where the funds have been so withheld, in the regular Orphans’ Court of the county, wbicb, by its citation, is required to bring the commissioners before it instanter, to show cause why judgment should not be entered against them and their securities for said default. No other remedy has been given, and certainly none before a justice of the peace. Whether tbis remedy has been preserved, by being transferred to the Probate Court since the abolition of the Orphans’ Court, it is not necessary for us to decide. It is certain, that no statute gives jurisdiction to the justice, and as every justice’s court is dependent upon the statute law for all the -civil jurisdiction wbicb it may legitimately exercise, having no common law jurisdiction in civil matters, it follows that the justice bad no power over tbis proceeding. Tbis is not a case where the want of jurisdiction must be pleaded in abatement. Where the subject-matter of the suit is without the jurisdiction of the court, consent of parties cannot confer such jurisdiction; much less would it be conferred by mispleading. In such cases, it is the duty of the court to repudiate the cause, mero motu.
Let tbe judgment be affirmed.