
    Malone vs. Clark.
    An appeal from the judgment of a justice assumes that the parties were properly before him; and hence, as a general rule, an objection to the justice’s jurisdiction over the defendant’s person, can only be listened to in the common pleas on certiorari.
    Otherwise, semble, where the objection- was taken in the court below so that it may be regarded and returnable on appeal as- an issue.
    
    On an appeal by the defendant from a justice’s judgment rendered in favor of the plaintiff, it appeared from the return that the suit was commenced by attachment, without a sufficient affidavit and bond, and that both parties were before the justice and joined issue; whereupon the common pleas rendered judgment of discontinuance against the plaintiff, on the ground that the justice had no jurisdiction over the person of the defendant; Held, erroneous, especially as the return did not show the objection to have been taken before the justice.
    Though process before a justice be void because of some defect in the manner in which it issued, yet if the defendant appear at the return and do not object, but join issue upon the merits, the justice’s jurisdiction over his person will be complete.
    If a justice render judgment in a suit over the subject matter of which he has no jurisdiction, (e. g. slander or assault and battery,) and an appeal is brought, the common pleas ought not-to render any judgment thereon, but should refuse to entertain the cause. ' ■’
    Error to the Lewis common pleas. Malone sued Clark before a justice of the peace, by attachment, and judgment was rendered in favor of the plaintiff for $73,50. The defendant brought an appeal, and the justice returned that, both parties being present before him, an issue was joined, (setting forth the pleadings, which were in assumpsit,) upon which h.e tried the cause and rendered judgment. He also filed with his return a bond apd affidavit upon which the attachment was issued, together with the attachment itself. The common pleas rendered judgment of discontinuance against Malone, with costs, on the ground that the bond and affidavit were so defective as not to give the justice jurisdiction of the subject matter of the suit. Malone sued out a writ of error.
    
      W. óf C. Tracy, for the plaintiff in error.
    
      Dayan <Sf Parish, for .the defendant .in error.
   By the Court,

Cowen, J.

The subject matter of the suit was promises alleged to have been broken. It required no proceeding to give the justice jurisdiction of that. But if there had been a want of jurisdiction in this respect, as if -the subject matter had been slander or assault and battery, the course was, not to render any judgment at all. The court should have simply refused to proceed with the cause, and dismissed it from their consideration. If the justice had no jurisdiction in this respect, the common pleas had none.

But the question was not one of jurisdiction over the subject matter. The common pleas acted on an objection that there was no jurisdiction of the defendant’s person.

In general, such a question can be determined by certiorari only. The office of an appeal is to try the merits, and assumes that the parties were properly in court. Nor is there any express provision in the statute for the return of an objection made in the court below on account of the form in which the defendant may have been brought into court. True, in Bennett v. Ingersoll, (24 Wend. 113,) we held that an objection might be considered as an issue which the justice might return within § 194, sub. 4, 2 R. S. 188, 2d ed. Whether we were right or not, it is unnecessary now to enquire; for non constat that any objection was here made before the justice. That must have been done, and the fact appear by the return; or clearly there is nothing which can be considered an issue. On the contrary, the defendant must be taken to have waived all objection, and consented to appear. Such waiver and consent are sufficient to give jurisdiction over the person, though there be no process.

The judgment must be reversed.

Judgment reversed.  