— Objection is taken by counsel for the defendant, to the preliminary proceedings in this case, there being no writ of error, and no duly authenticated copy of a record of the judgment sought to be reversed.
By c. 269, of stat. 1852, those preliminary proceedings in error have been dispensed with. That Act, however, by its terms, applies only to cases commenced after its passage, and cannot therefore affect the present case, which was commenced in Jan. 1851. It has been held that in proceedings in error there should be a strict observance of the rules of law. Simpson v. Wilson, 24 Maine, 437. The proceedings are therefore defective. But inasmuch as the defendant has pleaded to the merits of the case, he may be deemed to have waived his objections to those defects.
The paper in this case which purports to be a true copy of the record of the judgment, recites that the “ action was commenced on the 7th day of January, now last past, (1851,) and entered before me, said justice, on the 18th day of same January, and continued or adjourned two weeks, being lo the first day of February, then next folloAving, and then continued or adjourned again by request in writing of defendant’s counsel, on file, from that time a further time of four weeks, being to the first day of March, then next following.”
The plaintiff in error contends that the original action was not continued the second time as recited in the record, but by reason of the absence of the justice, was discontinued.
Errors in fact may be assigned which are not disclosed by the record. But it is a settled rule of law that nothing can be assigned for error which contradicts the record. King v. Robinson, 33 Maine, 114; Com. Dig. Pl. B. 16.
When the record of a domestic judgment states, that the defendant appeared by attorney, testimony that the attorney *100was not duly authorized cannot be received, for it would contradict the record. King v. Robinson, 33 Maine, 114. When a record recites that a court was held according to custom, it is against the record to say there is no such custom. Whistler v. Lee, Cro. Jac. 359.
It is contended by the plaintiff in error that the deposition of the justice should be deemed a part of his record, being his statement under oath, and when thus taken with the transcript of his record, or added to it, the error assigned would appear. But it is not competent for a party in an appellate court to present a fact by affidavit, which the record does not disclose. Powers v. David, 6 Ala. 9. Papers and documents filed in the case but not incorporated into the record constitute no part of it. Valentine v. Norton, 30 Maine, 194.
Though no presumption is to be made in favor of the jurisdiction of a justice of the peace, yet when the proceedings show that he has jurisdiction, the facts disclosed by his records within that jurisdiction are presumed to be correct, and entitled to the same credit as if contained in the records of other competent tribunals.
The plaintiff in this case, if he has suffered by the wrongful acts of the magistrate, has misconceived his remedy. The judgment must therefore be affirmed.
Costs for defendant.
Shepley, O. J. and Howard and Appleton, J. J., concurred.