¶1delivered the opinion of the court.
¶2Under the constitution of 1869, which provided that “a competent number of justices of the peace and constables shall be chosen in each county by the qualified electors thereof, by districts,” it was not in the power of the legislature to clothe the mayor of a town, comprising a part of a district for the election of justices of the 'peace, with the official character and jurisdiction of a justice of the peace for the district outside of the town; and the charter of Maiden, which contains a provision making the mayor ex officio a justice of the peace beyond the territory of the town, was, as to that, inoperative and void. Therefore, this case was not within the territorial jurisdiction of this justice of the peace.
¶3The appearance of the defendant before the justice of the peace in Maiden was not a -waiver of his right to raise the question of the jurisdiction of the justice of the peace in the circuit court. Code of 1880, § 2354, expressly secures this right.
¶4Affirmed.