delivered the opinion of the court.

The chief reason assigned for the reversal of the judgment is, that the act of assembly under which the case was carried to the circuit court, allowing a trial to be had de novo upon its merits, is unconstitutional. That the only grant of jurisdiction in the constitution to the circuit court, is of original character, and limited to sums where the principal in controversy exceeds fifty dollars, and hence the court could not legally take cognizance of this case. Although the plaintiff in error filed his declaration and went to trial without exception to the jurisdiction of the court, still if the acts of that court are unauthorized by the constitution, they cannot be sustained. Consent of parties will not give jurisdiction, where it is withheld by that instrument.

The constitution gives to the circuit court original, jurisdiction in all matters civil and criminal; but in civil cases only when the principal of the sum in' controversy exceeds fifty dollars. It confines the jurisdiction of justices of the peace to causes in which the principal in controversy does not. exceed fifty dollars, and secures the right of appeal in all cases tried by a justice, under such rules and regulations as shall be prescribed by law. Art. iv. sec. *23414-23. It is difficult to conceive how the right of appeal could have been given in plainer language, and we see no repugnancy to the constitution in the law which directs the appeal to be taken to the circuit court. It is left to the legislature to prescribe the rules and regulations which are to govern such appeals, and it has been done by that body in strict conformity to the power entrusted to it. It is insisted, however, that the provision of the statute which directs the trial to be had de novo upon the merits, gives the proceedings an original rather than an appellate character, and the amount in controversy being less than fifty dollars, the constitution is thereby violated. The statute gives to the party aggrieved a trial in the circuit court upon the merits, not confining that court to a review of the errors alleged to exist in the judgment of the justice. This was intended to prevent a reversal upon merely technical points, in regard to which the justices would be very liable to err. But this does not take from the proceeding its appellate character. The trial is had upon the same subject matter involved in the controversy in the magistrate’s court, and between the same parties, and the court is in substance directed to give the judgment the magistrate should have given. But for this, the cause might often be sent back upon reversal for errors not affecting the merits. The judgment of the justice, till taken up, is final and conclusive between the parties; when taken up, the jurisdiction of the justice is at an end, and his judgment is merged and extinguished in that of the circuit court. This proves that the proceeding is not original, but appellate in its chaacter. The certiorari is in this case but a substitute for an appeal.

It is further objected, that the judgment is erroneous, because it was rendered in the circuit court against the plaintiff in error for the balance certified by the jury against him, without a scire facias. How. & Hutch. 615. In an original suit in the circuit court, a judgment upon a certificate of a balance due the defendant without a scire facias, would be erroneous ; but upon trials before a justice of the peace the statute expressly authorizes such, judgment. H. & H. 437.

The judgment is affirmed.