The opinion of the court was delivered by
Ross, J.
The questions presented for consideration are, whether the pretended continuance of the case on the 5th day of December, 1871, by the justice of the peace, operated as a discontinuance of it ? And if so, whether the defendant waived such discontinuance, and submitted himself to the jurisdiction of the justice court ? On the 5th day of December, 1871, the return day of the writ, the justice of the peace before whom the writ was returnable, entered a continuance of the case to January 8, 1872, without going, with the writ in his possession, to the place appointed for the trial. Such want of appearance by the justice with the writ, was a discontinuance of the case. The defendant need have given no farther attention to the case. The language of the statute, Gen. Sts. ch. 31, § 37, is explicit on this point. It provides : “ No judgment of a justice shall be considered regular and of binding force, unless he shall be present with the plaintiff’s writ at the place appointed for the trial, within two hours after the time set in such writ,” unless the case is regularly continued, in Ms absence, by another justice. The decisions of this court on the construction of this and other similar statutes in regard to the entry and continuance of an action in a justice court, have all been to the effect, that the failure of the justice before whom the writ was returnable, to be present with the writ at the place appointed for the trial, within two hours after the time set for the trial, ended his jurisdiction over the case, unless' the case was continued by another justice, according to the provisions of section forty-two of the same chapter. Brown v. Stacy, 9 Vt. 118; Phelps v. Birge, 11 Vt. 161; Crawford v. Cheney, 12 Vt. 567; Hinman v. Swift, 18 Vt. 315; Whitcomb v. Rood, 20 Vt. 601; Underwood v. Hart, 23 Vt. 120; Babcock v. School District, 35 Vt. 250; Bryant v. Pember, 43 Vt. 599.
The jurisdiction of the court having been once lost in this *619manner, can be regained only by some voluntary, positive, affirmative act of the defendant, evincing a willingness or consent on his part that the court may proceed to hear and determine the case, notwithstanding such irregularity, working a discontinuance, has intervened. Sinman v. Swift and Bryant v. Pember. On the 8th of January, the defendant appeared and objected to having further proceedings in the case. The copies of record furnished this court, do not state very clearly the ground of the defendant’s objection. Both the counsel for the plaintiff and for the defendant, have argued the case as though the defendant’s objection then made was the same which he has made in the county court, namely, the failure of the justice before whom the writ was returnable, to be present with the writ at the place appointed for trial within two hours after the time named in the writ for the trial. From it having been so treated by the counsel, we assume that the objection was the same in both courts. If the defendant had appeared on the 8th of January, and raised some other objection to allowing the justice to proceed with the case, but had not raised the objection he now insists upon, it might have been a waiver of this present objection, and a submission to the jurisdiction of the court. Having insisted before the justice upon the objection which he now insists upon, and the justice having overruled the objection, and decided he had jurisdiction of the case, we do not think that the acceptance by the defendant of the terms imposed by the justice, and taking two jury trials of the case, were a waiver of his objection, or a voluntary submission by him to the jurisdiction of the justice. He could continue his appearance in the case, and oppose the rendition of a judgment against him in the justice court, without prejudice to his right to object in the county court, if he did not waive or withdraw his objection. He might accept the terms which the justice imposed, if he still insisted on his objections. He was not bound to withdraw from the contest, to preserve his rights, though he might have done so with safety to himself.
Judgment affirmed.