*24The opinion of the court was delivered by

Application is made to this court for a mandamus to be directed to a Justice of the Peace, commanding him to issue an execution, on a judgment rendered before him against the defendant, as garnishee of an absconding debtor. The reason assigned by the justice, for refusing to issue an execution, is that the defendant in scire facias has appealed to the Court of Common Pleas of Monmouth county, and that that court has reversed his decision or judgment- in the matter.— Whether a mandamus ought to issue or not, depends therefore upon the question, whether an appeal lies to the Court of Common Pleas, from such a proceeding before a Justice? It is supposed by the counsel, that this question involves another,. namely, whether the proceedings in attachment before a Justice of the Peace, or any part of them, are instituted, or carried on, in a court for the trial of small causes; or whether the Justice is to be considered as executing a special authority delegated to him, simply in his official character, as a magistrate, by the 38d Section of the attachment act? Rev. Laws, 362.

Whatever of doubt or difficulty there may be in this latter inquiry, it is not necessary to be solved, in order to settle the real question before the court: for whether the Justice in a matter of attachment, acts simply as a commissioner, designated by his name of office, or as in a court for the trial of small causes, no appeal, in my opinion, lies from his decision in such matters, to the Court of Common Pleas, unless it be after an appearance by the defendant in attachment, under the provisions of the act of 1832. Harr. Comp. 405. And whether any appeal will lie even in that case, it is not now necessary to determine. An appeal from a Justice, or from a court, for the trial 'of small causes, is not a common law right; but like the civil jurisdiction of a Justice of the Peace, and the court for the trial of small causes itself, is a creature of the statute, and exists only where it is given by statute, either in express terms, or by a plain and irresistible implication. If the Court of Common Pleas then, has any jurisdiction by way of appeal, in this matter, it must be found in some statute. It is not pretended .that any appeal is given by the 33d Section of the attach*25ment act, Revised Laws, 362, under which the proceedings in this case were had; bnt it is supposed to be given by the provisions of the act constituting courts for the trial of small causes, and the various supplements thereto. There is, however, no foundation for such an argument. The appeals given and regulated by those acts, are appeals from judgments rendered in the form and manner prescribed by those acts — whereas, the proceedings in attachment, before a Justice, are not in pursuance of the act constituting courts for the trial of small causes, nor in conformity with its provisions.

But it is objected by the counsel to the defendant that a mandamus will not be allowed, where the party has another specific legal remedy, as it is insisted, he may have by a certiorari in this case, to the Common Pleas. The King v. Archbishop of Canterbury, 8 East. 213, 5 Com. Dig. 31, and the State v. Holliday, 3 Halst. 205, are cited in support oí this objection. The unauthorized and illegal proceedings of the Common Pleas, it is true, may be set aside on certiorari, but that is not an appropriate or adequate remedy. It would not give the plaintiff an execution against the garnishee, nor advance him in the prosecution .of his suit against the absconding debtor. It is not therefore, the specific and legal remedy, contemplated by the authorities just cited. If, indeed, the Common Pleas had jurisdiction in the case, that of the Justice, would be superseded by the appeal — a certiorari then, would be the only and specific remedy; but such is not the case.

It is objected again, that a mandamus will not go to a person acting judicially, though he may have erred in judgment. The U. States v. Lawrence, 3 Dall. R. 42. The principle is not disputed, but I apprehend it is misapplied. In the case just cited, the Judge had authority to issue, or not to issue, the warrant applied for; and he judicially determined that the evidence laid before him, was not sufficient to authorise his granting the application. But in the ease before us, the Justice refuses to proceed, on the ground that he had granted an appeal, when by law, he had no power or authority, under any circumstances to grant such appeal. The distinction is clearly marked and illustrated by the case of Jones v. Allen, 1 Green's *26R. 97. It is argued, however, that if a mandamus is awarded in this case, it must he because the justice has erred in granting an appeal; and then a writ of mandamus will supersede the writ of certiorari, in all cases, where an appeal has been improperly granted by a Justice, or improperly entertained by the Court of Common Pleas. This does not follow. The fallacy of the argument lies in confounding an irregular appeal, where an appeal might under some circumstances be regularly brought, with a case, in which there can under no. circumstances, be an appeal. If this had been a proceeding before a Justice, of which the Court of Common Pleas, under certain circumstances had an appellate jurisdiction, no mandamus could issue; the remedy would be by certiorari. But as it' is a matter of which the Common Pleas has no such jurisdiction, the granting of the appeal, by the Justice was a nullity, and the trial of it in the Common Pleas, coram non judice. The difference lies between an irregular proceeding and a void one. This is the latter. The case of Terhune v. Barkalow, 6 Halst. R. 38, is a decision on this point. The counsel for the defendant supposes that case was decided on the ground, that the defendant, had failed to pay the costs, as he had stipulated to do. This is a mistake. It is true the late Chief Justice, in delivering the opinion of the court, proceeded to show that even upon the merits of the case, supposing the Justice had a right to open his judgment, the plaintiff was entitled to execution, by the failure of the defendant to pay the costs; but he immediately adds: “ if a Justice has no such power,” (that is, to open a judgment,) “the propriety of a writ of mandamus is obvious, without reference to the ground of allowance already mentioned.” And the court being of opinion that a Justice of the Peace had no power to set aside or open his own judgment, ordered an alternative mandamus, requiring the Justice to issue execution, &c.

The last objection urged by counsel, viz: that a mandamus will not lie, aftér the party has had the benefit of a new trial on the merits, is obviated by what has been already said. The whole proceeding on the appeal, was coram non judice, and void — consent, expressed or implied, will not give jurisdiction— an alternative mandamus, ought therefore to issue.

*27Ford, J. and Ryerson, J. concurred in awarding an alternative mandamus, on the ground that no appeal lies from the judgment of a Justice, against a garnishee in attachment.

Cited in Cortleyou v. Ten Eyck, 2 Zab. 47.