after you had tried the petitioner and had committed him to the jail of Allen county?

"The defendant, Edward F. Clausmeier, objected to this question on the ground that the evidence is incompetent, immaterial, and irrelevant, and tends to attack collaterally and by secondary proof the verity of the judgment. The objection was sustained by the court.

"The petitioner, by counsel, then offered to prove by the witness that the affidavit set out in the record of the justice of the peace, at page 64 of docket D, was not filed until after the prisoner had been tried and committed to the county jail. "The evidence offered was excluded by the court, to which the petitioner excepted."

There is some apparent conflict in the decisions as to 109 the credit which should be given to the record of a court of inferior and limited jurisdiction.

It has been held that in a proceeding before a justice of the peace to obtain surety of the peace the record of the justice as to the acts and things done by and before him is not conclusive, and may be contradicted by parol evidence: Smelzer v. Lockhart, 97 Ind. 315.

The statute (Rev. Stats. 1881, sec. 1106) provides that 66 every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of the restraint, and shall be delivered therefrom when illegal."

And it is the rule that any statute which may operate in restraint of personal liberty must be strictly construed: Willis v. Bayles, 105 Ind. 363.

Even in case of a court of superior and general jurisdiction, and where the record shows a judgment and sentence entered up against a defendant, a writ of habeas corpus will be awarded and the defendant discharged, on a plea to the return, with proof, showing that no such judgment was entered upon the order-book until after adjournment of court: Passwater v. Edwards, 44 Ind. 343.

Further, as to setting aside fraudulent and other judgments, in a court of general jurisdiction, see Earle v. Earle, 91 Ind. 27; Miller v. Snyder, 6 Ind. 1; Patterson v. Pressley, 70 Ind. 94; Thompson v. McCorkle, 136 Ind. 484; post, p. 334; Gillette on Criminal Law, sec. 67.

Brickley v. Heilbruner, 7 Ind. 488, was a case where a judgment had been taken before a justice of the peace of one

township, against a defendant who was a resident of another township, although the summons, on its face, and the record of the proceedings before the justice, showed that he was properly served. The common pleas court dismissed an action brought to vacate the judgment; 110 but, on appeal, this court held that as the defendant was not a resident of the township where the suit was brought, and as there was in his township a justice competent to act, the summons was a nullity; and, as the defendant did not personally appear before the magistrate and submit to jurisdiction, that the judgment itself was invalid.

So, also, in Grass v. Hess, 37 Ind. 193, it was decided that where a resident of this state is sued out of his county before a justice of the peace, and process by summons is served upon him, and judgment is rendered against him without appearance, an injunction will lie to stay proceedings under the judgment.

In a like case, Gage v. Clark, 22 Ind. 163, the court intimated a doubt as to whether the statutory modes of vacating judgments prevail before justices, as in courts of general jurisdiction.

In Johnson v. Ramsay, 91 Ind. 189, this court, in citing the cases of Brickley v. Heilbruner, 7 Ind. 488, and Grass v. Hess, 37 Ind. 193, say: "These cases show that in Indiana an application to the proper court to vacate the judgment of a justice, rendered against a person not a resident of the township in which the suit was brought, is a direct attack upon the judgment; and they also show that, upon such a direct attack, you may prove the want of jurisdiction over the person and the nullity of the summons, notwithstanding a recital in the record that the defendant was duly served with process."

The foregoing cases are cited and approved in Brown v. Goble, 97 Ind. 86.

In Lavin v. Emigrant Industrial Sav. Bank, 1 Fed. Rep. 641, it is said that, "There is no question of the general rule of law that where an act is justified or a title made under the official act or decree of an officer or court of special and limited jurisdiction, the burden 111 is on the party setting up such title, or justifying such act to prove that the officer or court had jurisdiction. There must be evidence of those facts, the existence of which are essential to the exercise of the power or jurisdiction."

The court in that case holds, however, that a duly authenticated record, made by such officer or court of special or limited jurisdiction is prima facie evidence of the action taken upon the matter in question, and that "the presumption is always that the proceedings and acts of a court or public officer, apparently done in the discharge of his or its official duty, are regular and lawful, until the contrary is shown. .... So far as the record shows, on its face, that he acted, his action, in the absence of evidence to the contrary, is presumed to be lawful rather than unlawful.”

In People v. Warden of County Jail, etc., 100 N. Y. 20, which was on an action for a writ of habeas corpus, the court, speaking by Ruger, C. J., said that the questions arising in the case were governed by the rule favoring the widest latitude of examination, inasmuch as the judgment assailed was rendered by a court of limited jurisdiction, and its authority in the premises was disputed; that judgments pronounced by courts of special and limited jurisdiction, when questioned in any collateral proceeding, are of no force or effect as establishing a right to enforce them, unless accompanied by proof of the jurisdictional facts upon which the authority of the court to render the judgments depends; that the recital of jurisdictional facts in the records of such courts does not furnish even prima facie evidence of their existence; that such proof, when furnished, is subject to the right of the person affected thereby to controvert it and to show want of jurisdiction; "that when, however, a court has jurisdiction of the subject matter, and has 112 acquired jurisdiction of the person by the service of proper process, or the voluntary appearance of the party, it is competent for it to try and determine all questions within the issue arising during the course of the tria!, and its decisions thereon can be reviewed only in a direct proceeding."

The case of Vizzard v. Taylor, 97 Ind. 90, was a suit to enjoin a county treasurer from collecting an assessment made in a proceeding before a board of county commissioners. It was said by this court in that case: "We do not controvert the doctrine, well settled by many cases in this court, that the decision of an inferior tribunal, upon a matter in which it has jurisdiction, cannot be assailed collaterally for errors or irregularities. But the jurisdiction, to be complete, so as to preclude collateral attack, must exist both as to the subject

matter and as to the parties": See, also, Hord v. Elliott, 33 Ind. 220.

In the Board of Commrs. etc. v. Markle, 46 Ind. 96, we think the correct rule as to collateral attacks on proceedings before courts of inferior jurisdiction was well stated. "The facts," said the court, "which it is said must be shown to exist before the matter can be within the jurisdiction of an inferior court, and which can be inquired into collaterally, are such as, in the absence of which the court cannot rightfully hear and determine any question touching the matter in controversy. Hence a recital in the record of such facts may be shown to be false, and some courts hold that they are not even prima facie evidence of the truth, but that they must be proved by evidence aliunde. But whenever it is admitted, either in the pleadings or otherwise, as shown by proof, that such facts did exist, that the proper steps had been taken, such as the filing of an affidavit, petition, or other papers, authorizing the court to act, to make an investigation 113 and decision, then the jurisdictional facts exist. The whole question begins and ends here."

In citing the foregoing case, in Wilkinson v. Moore, 79 Ind. 397, Woods, J., said that it may now be regarded as well settled that, while the judgment of a justice of the peace, or other inferior tribunal, in a matter of which by law such court had jurisdiction, and wherein it had, according to law, acquired jurisdiction of the person, cannot be assailed collaterally on account of mere irregularities in the proceedings subsequent to acquiring such jurisdiction; yet, that "it is equally well determined that presumptions will not be indulged in favor of courts of limited powers, and their judgments have no force unless it be affirmatively shown that jurisdiction was acquired."

In relation to the statutory provision (Rev. Stats. 1881, sec. 1119), prohibiting any court or judge from inquiring into the legality of any judgment or process whereby the party is in custody, or from discharging him when the term of commitment has not expired, in certain named cases, one being when he is held "upon any process issued on any final judgment of a court of competent jurisdiction," it has been well said by Mr. Church, in his work on Habeas Corpus, second edition, section 81: "We apprehend that the true construction of such a statute leaves the question of jurisdiction always open. To bar the applicant from a discharge, by

means of habeas corpus, the court in which the judgment was rendered, or from which the process was issued, must have had jurisdiction to render such judgment. The tribunal must be competent to render the judgment under some circumstances. The prohibition forbidding the inquiry, by a court or judge, into the legality of any previous judgment or process, does not, and cannot 114 without nullifying, to some extent, the general principles governing the issuance of the writ of habeas corpus, take from the court or judge the power, or relieve him from the duty of determining whether the judgment or process emanated from a court of competent jurisdiction; and whether the court rendering the judgment or issuing the process had the legal and constitutional power to render such judgment or send forth such process. It simply prohibits the review of a decision of 'a court of competent jurisdiction.' Where it appears that

the relator is detained under the process, or under the final judgment of a court of competent jurisdiction, it is the duty of the court to remand him, unless it is shown that the process issued, or that the judgment was rendered without jurisdiction; and this the relator may always show, notwithstanding the statutory prohibition."

To give a justice of the peace jurisdiction over the person of any one charged with a violation of the criminal law the first step necessary is the filing of an affidavit naming the offense and the person charged with its commission. An affidavit filed afterward comes too late, and cannot be made to relate back so as to confer jurisdiction at the time of the trial: Hoover v. State, 110 Ind. 349 (353).

On the filing of the affidavit a warrant issues, and, on the apprehension and production in court of the defendant, the jurisdiction of the justice over the person is complete. As to all that may thereafter be done on issues based on the affidavit, whether what is done be regular and proper, or whether irregular and erroneous, it is not void, and can be inquired into only by way of appeal to a higher court. Without the affidavit, however, there is no jurisdiction, and all the proceedings are void.

115 In the case of a court of general jurisdiction such absolute verity is given to its record that we can examine that only to determine whether the court had jurisdiction or not. But in the case of a court of inferior and limited jurisdiction, as that of a justice of the peace, we may seek information