¶1 dissenting.
¶2 I dissent from the judgment of the court upon the ground that the court of the justice of the peace had no jurisdiction to make the order requiring the sheriff to pay the claimant the amount of his preferred claim. A court of record, out of which an execution has issued, may, in the exercise of its common-law powers, determine the application of the proceeds of the execution. But courts of justice of the peace possess no common-law powers. Their functions are such, and only such, as the legislature has conferred upon them. The statutes of the state make no mention of orders of the character of the one under review. Applying the well-established principle that courts not of record, and not proceeding- according to the course of the common law, derive all their powers from the statute, and take nothing by implication, I am of. the opinion that the order of the justice is void.
¶3 This conclusion is strengthened by a consideration of the provisions of the practice act relating to appeals. Section 33T2 of .the General Statutes provides, among other things, that an appeal may be taken from any special order of the district court made after final judgment, but the statutes make no provision for appeals from orders of a similar nature made by the justices of the peace. If justices have the authority exercised in the present case their orders are final, while those of the district court are reviewable by appeal. This result is contrary to the general plan of procedure established by our laws, and tends to show that the exercise of the authority was not contemplated by the legislature.