Barber vs. Winslow, 12 Wend. 102

By the Court, Nelson, J. 1 am wholly unable, after a critical examination of this case and of the elaborate arguments accompanying it, to distinguish it from that of Jenks v. Stebbins, 11 Johns. R. 224. Mr. Justice Spencer there referred to the cases of Morgan v. Dyer, 10 Johns. R. 161, Frary v. Dakin, 7 id. 75, and Service v.

Hermance, 1 id. 91, in which the rule is distinctly recognized (and he forfeited it by citing other cases) that in pleading a discharge under our insolvent laws, as in pleading the judgment of a court of special and limited jurisdiction, it is indispensible to set forth facts sufficient to give to the officer jurisdiction of the particular case.

The learned judge also admitted that where notice of the discharge was given under the general issue, it was incum-bent upon the defendant affirmatively to prove that the officer had jurisdiction to entertain the proceedings and grant the discharge ; and yet, the very point and the only one in the case was decided, which is raised here, that the production of the discharge was per se evidence sufficient of the facts thus indispensable to give jurisdiction to the officer.

That the officer has jurisdiction (he says) may be proved by parol, or by relying on the facts set forth in the discharge; for those facts are proof by virtue of the act. The subsequent cases in this court, of Wyman v. Mitchell, 1 Cowen, 316, Dakin v. Hudson, 6 id. 221, Borman v. Russ, 6 id. 234, Wheeler v. Townsend, 3 Wendell, 247, and Otis v.

Hitchcock, 6 id. 433, referred to and relied upon by the counsel for the defendant in error, are only recognitions or reiterations of the rules of pleading, stated and sanctioned in the preceding cases,and nothing more, and cannot be considered as in any way impeaching the soundness of the decision in Jenks v. Stebbins; on the contrary, they are founded upon that decision. As was said of the argument of the counsel for the plaintiff in that case, the fallacy of the argument of the counsel for the defendant here consists in blending the rules of evidence with the rules of pleading.

Were it necessary to assign any other reason for the correctness of the rule laid down in Jenks v. Stebbins, it may be found in the well settled doctrine that the record of a court of special and limited jurisdiction, which contains the allegation of facts showing jurisdiction in the particular case, isyier se sufficient to uphold the judgment until the contrary is shown. Were it not so, every judgment of a court of limited jurisdiction would be reversed of course upon error brought. A discharge under the insolvent laws is in all the cases .considered analogous to the judgment of such courts.

No doubt, it is competent to a party to defeat the effect of a discharge, by showing that the officer had not jurisdiction, notwithstanding the facts recited in the discharge, as it is always admissible thus to attack the judgment of a court of limited jurisdiction. 19 Johns. R. 345. 5 id. 41. 15 id. 141, 9 Cowen, 229. Judgment reversed..