The superior court has no jurisdiction in this case which is not conferred by statute. On referring to the 10th section of the act “for the suppression of intemperance,” (Stat. Ed. 1854, p. 822,) which gives jurisdiction to that court in cases arising on the eighth section of that act? on which the present complaint is founded, it appears that such jurisdiction is only appellate in its character, and that an appeal to that court by the accused is allowed only where “ a final judgment is rendered against him by a justice of the peace.” As the jurisdiction of that court does not attach until an appeal could be taken to it from the judgment of the justice, and that could be done only after a final judgment had been rendered by him, it results that the appeal having been taken, in this case, from a judgment of respondeas ouster, on a plea in abatement, which plainly is an interlocu*542tory, and not a final judgment, and one which, therefore, the superior court, as an appellate tribunal, had no power to review, it was unauthorized and therefore void, and conferred no jurisdiction on that court. And as such want of jurisdiction appears here on the face of the record, the case ought to be struck from the docket of that court. However ungracious it may be for the defendant to question the validity of the appeal in this ease, which was taken by himself, he is not, as claimed by the plaintiff, precluded from .doing so, as it is an objection to the jurisdiction of the court. It is a familiar principle that jurisdiction can neither be conferred, nor a want of it waived, by either or both of the parties. The superior court is advised accordingly.
In this opinion the other judges, Hinman and Ellsworth, concurred.
Case to be stricken from the docket.