Page:Federal Reporter, 1st Series, Volume 3.djvu/915

 '908 FUSERAI. BBÏOBTEB. �tiee, the failure to make the affidavit oannpi be waived by the defendant's appearing and not taking the objection. Consent cannot giye jurisdiotion over the subject-matter. As the rule is very briefly but very exactly expressed, in Coffin, Executor, V. Tracey, 3 Gaines, 129, "Consent will take away error, but neither that nor confession will give jurisdiction." See, also, Bellinger v. Ford, 14 Barb. 250 ; Iloyt v. Molonij, 2 N. H. 322; Dudley v.. Mayhew, S N. Y. 9. �It is insisted, however, that as it does not afErmatively appear by the proofs that there was no afîidavit, and it does appear that the justice went on and topk jurisdi'etion, and the defendant appeared and pleaded, and raised no objec- tion, it will be presumed in support of the judgment that the necessary affidavit was made, or that these facts are suffi- cient proof that it was made, It is true that, in case of a judgment of, a court of general jurisdiction, everything not inconsistent with the record is presumed to have been regu- larly done that is necessary to S;ustain the judgment; but the coutrary rule app'ies when a right is set up under the judg- ment of a court of special or limited jurisdiction. The New York Code, § 532, provides as foUowa: "In pleading a judg- ment, f)r other determination,, of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction, but the judgment or determination may be stated to have been duly given or made. If that allegation is con- troverted the party pleading must,(^jpn the trial, establish the facts conferring jurisdiction." That a justice of the peace is a court or officer of special jurisdiction, within the meaning of the rule of pleading thus ohanged, and the rule of evidence thus embodied in the etatute law of New York, bas been often held by the courts. Turner v. Roby, 3 N. Y. 193; Yager v. Ilnnnah, 6 Hill, 631; Hunt v. Dntcher, 13 How. Pr. 638, 539; Barnes v. Harris, S Barb. 603. See, also, Alills v. Martin, 19 Johns. 7. �It cannot, therefore, be presumed that there was an affida- vit. The burden of proving the fact was assumed by respond- ent in setting up the judgment in her answer. The appear- ance of this libellant in the case is not sufficient evidence of ����