The objection to the judgment produced, rests upon the point that the City Court of Brooklyn is a court of inferior limited jurisdiction,, and hence, in the language of the defendant’s points, “ there should always appear sufficient upon the face of the proceedings to show that it has jurisdiction in the cause of which it takes cognizance. The decree in question did not set out facts showing such jurisdiction.”
The City Court of Brooklyn was organized by an act of the Legislature of the 24th of March, 1849. (Laws of 1849, ch. 125.) It was declared to be a court of record, and its jurisdiction to extend to the following cases: 1st. To the actions enumerated in section 103 (now, 123) of the Code of Procedure, when the cause of action shall have arisen, or the subject of the action shall be situated within the said city. 2d. To all other-actions, where all the defendants shall reside or be personally served with the summons within said city. 3d. To actions against corporations created under the laws of this State, and transacting their general business within the said city, or established by law therein.
This action, to pronounce the nullity of the marriage, was within the jurisdiction of this court, provided the defendant resided or was personally served with the summons within the-city of Brooklyn. It is said, that neither of these facts appears upon the document produced. It deserves notice, that the objection comes from the defendant in this action, who was the-defendant in the cause in which the proffered judgment was given.
The first question I shall examine is, whether the last clause-of section 139 of the Code, adopted in 1851, that a voluntary appearance of a defendant shall be equivalent to personal service-of a summons upon him, does not apply to the proceedings in-the City Court of Brooklyn.
The Code as passed on the 12th of April, 1848, contained in section 8 the same provision as to the titles of the second part. applicable to all courts, and those applicable to the enumerated courts, as is found in the present section 8, except that the:*279number of the titles was twelve instead of fifteen. The section as it now stands was adopted the 11th of April, 1849.
When the Code of 1848 went into effect, the City Court of Brooklyn had not been established. It was organized by an act of the 24th of March, 1849, to go into effect on the 1st of May ensuing, except some few sections, as to elections, &e., which went into effect immediately.
In 1848 and in 1849, section 139 of the Code was merely, that jurisdiction was acquired from the service of the summons, or allowance of- a provisional remedy. In 1851, the clause was added: “ A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.”
In Mahoney a. Denman (1 Duer, 601), it was held at special term, two other judges concurring, that a defendant who voluntarily appeared and answered, could not in his answer take the objection of a want of jurisdiction in the Superior Court.
The case of Binckle a. Eckhart (3 Comst., 132) was cited, " where the Court of Appeals held, upon a question of the jurisdiction of a vice-chancellor, the cause of action appearing to have arisen elsewhere than in his circuit, that a voluntary appearance by a solicitor did not give jurisdiction. “ The residence of a party within the circuit was a jurisdictional fact, which must exist before the court can act at all, either by issuing process or accepting the appearance of the defendant.”
This case was decided in December, 1849, and in April, 1851, the clause of the Code referred to was adopted. (Laws of 1851, p. 887.)
When the Legislature, in March, 1849, established the City Court, must it not have meant, that the proceedings and practice should be regulated by the Code of Procedure, passed in 1848 1 Was it to be left to some other course of proceeding, except as expressly provided ? The argument" from the omission in the enumeration of the courts in section 8, in 1848, is of no weight, as this court did not exist, although the omission in 1849 is so. Yet it seems to me that section 4 of the act was adopted with a view to meet the very point. It directs, “ that the City Court shall possess the powers and authority in relation to actions in the said court, and the process and proceedings therein, as are possessed by the Supreme Court in relation to actions pending in said Supreme Court; and all laws regulating the practice of *280the Supreme Court, and. the course of procedure therein, shall, as far as practicable, apply to and be binding upon the said City Court.”
It deserves notice that the preamble to the Code uses the phrase, that a uniform course of proceeding in all cases should be established.
The powers of the Supreme Court in relation to actions— the process and proceedings in such court—all laws regulating its practice and the cause of its procedure, define and govern the mode of action in the City Court; of course where applicable, and when not otherwise specially regulated. It seems to me, that not only was the law of the Code which governed the Supreme Court, as the Code then existed, necessarily declared to be the law of the City Court when constituted, but that the section was prospective, and whatever rule should subsequently govern the proceedings in the Supreme Court, should be equally applicable to this.
If so, when the amendment of 1851 gave a rule to the Supreme Court, it gave one equally to the City Court.
The City Court has applied and determined cases upon provisions of the Code, not within the four first titles mentioned in section 8 (sections 69-126 inclusive). Toomey a. Shields (9 Legal Obs., 66) involved the consideration of sections 128 and 130.
It may aid this examination to advert to the provisions re specting others of the courts enumerated in sections 8 and 9—for example, the Superior Court. The jurisdiction which it could possess in an action like the present to declare a marriage null under section 33, could only be when the defendant resided or was personally served with the summons within the city of New York. The Code is expressly made to regulate its course of procedure by section 8. Thus it stood in 1848 and 1849. Then in 1851, the change in section 139 was made. The effect was undoubtedly to enlarge the jurisdiction of this court, by permitting the voluntary appearance to be the same as personal service.
Now, if by force of section 4 of the act as to the City Court, the Code was to govern its course of procedure, it seems difficult to say that the effect of the change in 1851 shall not be to enlarge its jurisdiction, when it is so as to the Superior Court. Grant *281that the Code was applicable at all, it seems to follow that all subsequent amendments of the Code, not clearly inapplicable, will regulate this court as well as the others. On what ground is a distinction to be made, between different subsequent amendments, so as to render some applicable and others not so? There are some of course which clearly cannot apply.
The argument that jurisdiction is not to be deduced by implication, but must be expressly given, seems to me as forcible in relation to the Superior Court, as to the one in question. We extend the jurisdiction of the former by the new clause, because the Code itself makes the Code relate to such court: we do the same here, because a particular statute makes the Code apply.
The effect of an appearance in an action is stated in several cases. The party admits himself to be regularly in court, and all defects in the summons and its service, and even the total omission of any service, becomes immaterial. (Webb a. Mott, 6 How. Pr. R., 439.) See as to the course in chancery (1 Barb. Ch. R., 81; 1 Hoffm. Pr., 170), particularly the case of Capell a. Butler (2 Sim. & St., 462).
We have, in the present case, undoubted jurisdiction of the subject-matter of the action, viz., the annulment of the marriage contract for physical incapacity, provided the defendant resided or was served within the city of Brooklyn. We have a recital in this judgment of what is equivalent to a general appearance, to an admission that he was regularly in court, with a consent recited to contain portions of the decree or judgment.
This is not properly a consent that a tribunal shall have jurisdiction of a case which the law has expressly or impliedly forbidden it to entertain. It is tantamount to an admission of residence, or of personal service; completing all that was necessary to perfect the jurisdiction.
The meaning of the rule, that consent cannot give jurisdiction, is well explained in the case of Overstreet a. Brown (4 McCord's R., 79). Jurisdiction cannot be given to a court merely by consent of parties ; but if the court has jurisdiction of the matter, .and one party has some privileges which exempt him from that jurisdiction, he may waive the privilege, if he chooses so to do. This is -repeated in nearly the same language in Bostwick a. Perkins (4 Georg. R., 67).
*282Hr. Justice Hand, in Kundolf a. Thalheimer (2 Kern., 593— 599), adverts to such a distinction, between jurisdiction depending upon residence or of the person, which could be waived by appearance and pleading, and jurisdiction of the subject-matter. He refers to Frees a. Ford (2 Seld., 176), which arose upon pleadings, and observes that the pleas in that suit were in truth' nothing more than demurrers to the complaint in effect.
So in the case of Binckel a. Eckhart (ut supra), the main objection was, that the vice-chancellor had not jurisdiction of the causes or matters, because they did not arise within his-circuit; and Justice Gardiner notices that a defendant may dispense with service of process, as he may waive any other personal privilege. But there, the bill alleged that the defendants were non-residents, and the latter appeared and admitted it. The want of jurisdiction appeared on the record.
It should be noticed that there is much late authority to show, “ that recitals or statements in the record of an inferior court of facts constituting jurisdiction, may be received as prima facie evidence of such facts.” By the Court, Paige, P. J., in Harrington a. The People (6 Barb., 607-610)—Willard, P. J., in Adams a. Saratoga and Washington Railroad Company (11 Ib., 455),—this decision was reversed on appeal (note at p. 415), but on the ground that the evidence offered to disprove the jurisdictional facts recited in the record should have been received in evidence, April, 1852. I have not been able to find a report of the case in the Court of Appeals. See also Barber a. Winslow (12 Wend., 102), as to the distinction in this, particular between the rules of evidence and the rules of pleading. See further, Clyde a. Rose Plank Railroad Company a.. Parker (22 Barb., 324). The recitals in a discharge under the insolvent laws are held to be prima fade evidence only of jurisdictional facts. Stanton a. Ellis (2 Kern., 575), but this is a, qualification of the statute (2 Rev. Stats., 38, § 19).
It must be admitted that many of the judges in the authorities cited to support the position of Justices Paige and Willard, use very different language. Yet it appears to me, that if the proposition can be maintained, that the clause of section 139 before discussed, applies to this court, then a record of such court (using the term in the sense of a judicial determination of rights, of the parties in a cause), which shows on its face jurisdictions *283of the subject of the action, and a voluntary appearance of the defendant, meets the requisition of the rule, that the record shall show jurisdictional facts, in its just sense.
3d. This does not, however, fully decide that there may not be a technical difficulty still existing, that the whole of the proceedings, which would constitute the roll, should be produced. I proceed to that question.
Mr. Gresly (On Evidence in Equity, p. 109) says: “ Where a decree contains a recital of a bill and answer, it may be admitted in evidence, without further proof of them.” He cites. Trevor, Ch. J., Wheeler a. Lowth (Comyn's Dig., c. 1, p. 97), and Twisden, J., in Trowel a. Castle (1 Keble, 91).
Trowel a. Castle is an express authority to the point, where the exemplification was under seal. This distinction would not, I apprehend, be now regarded. But in the present case, the decree is authenticated by the seal of the court.
Buller, J. (Butler's N. P., 235), thus states the rule. If a party wants to avail himself of a decree only, and not of the answer or deposition, the decree, being under the seal of the court, and enrolled, may be given in evidence without producing the bill and answer, and the opposite party will be at liberty to show that the point in issue was not ad idem with the present issue. He cites Lord Thanet a. Patterson (K. B. Easter, 12 Geo. II.)
Under decisions in our State, the enrolment of the decree would be unnecessary (5 Wend., 47; 5 Paige, 304).
In Layburn a. Crisp (8 Carr. & Payne, 397), upon a trial at bar, all the judges concurred in holding that a decree in chancery, with the bill and answer, was admissible in evidence without producing the depositions. Lord Abinger said he was not certain but that the decree would have been receivable without the bill and answer being put in.
In Davies a. Lowndes (1 Bing. N. Cas., 597), also a trial at bar, a decree in chancery was read in evidence. It does not appear whether the pleadings were introduced. (Blaver a. Hollis, 1 Crompt. & Meeson, 396.)
In Wynn a. Harman (5 Grat., 157), a decree in partition, and the report of the commissioners sufficiently designating the land referred to, was admitted without producing the whole-record.
*284In Whitmore a. Johnson’s heirs (10 Humph., 610), the rule is -explicitly admitted, that if a decree is in itself sufficiently comprehensive to show what was adjudged, and jurisdiction, it would suffice without producing the bill and answer. These were recited, but not in detail. The defect was, that the decree did not show that personal estate was exhausted, which was a statutory prerequisite to a sale of real estate, by the tribunal which had ordered such sale.
When the fact of jurisdiction is made out, every intendment •of regularity is made to support a judgment or decree, and regularity of proceedings. (12 Wend., 40.) Particularly is this the case when the decree is proffered to be used against a party who was a party to the suit itself, and when he himself can immediately contradict its recitals, even by his own oath. It was decided by the King’s Bench in Ashworth a. Kempe (Doug., 49), that a writ of execution is evidence of a judgment as to the party to the action in which it is given.