have actually misled the adverse party to his prejudice in aintaining his action or defense upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as shall be just."

The objections raised, that there was no proof that the justice of the peace had any authority to certify the case to the district court, that he did not in fact so certify it, and one of the reasons urged in support of the objection raised to the jurisdiction, which was that the action was instituted and carried on in Kansas without any complaint having been filed, have no force here. The case was sent to the district court upon the defendant's motion, and he appeared in the district court and contested the action. The cause of action apparently was founded upon a promissory note which was described in the notice issued by the justice to the defendant; the execution of the note was admitted in the defendant's answer, and a failure of consideration alleged as a defense. Under the cir cumstances, these matters could only have been taken advantage of in the courts of Kansas, if at all.

Questions were raised as to where the burden of proof rested to show the jurisdiction of the Kansas court both over the subject-matter of the action and the person of the judgment debtor, and as to the identity of the defendant in this action as the judgment debtor, and also as to the construction and effect of the pleadings in relation to these matters. The appellant contends that it was incumbent upon the plaintiff to prove at the trial that the district court was a court of general jurisdiction, or that it had jurisdiction over the subject-matter of that action in any event, and especially so in this case, because the plaintiff had alleged jurisdiction in his complaint which appellant denied in his answer. Such allegations in the complaint are not necessary, it seems, under the authorities. However, the allegation that the district court was one of general jurisdiction cuts no figure as to changing the burden of proof in this case. In the absence of evidence to the contrary, it would be presumed that the district court aforesaid is a court of general jurisdiction: See Phelps v. Duffy, 11 Nev. 80; Stewart v. Stewart, 27 W. Va. 167; Specklemeyer v. Dailey, 28 Neb. 101; 8 Am. St. Rep. 119; Pringle v. Woolworth, 90 N. Y. 502; Butcher v. Bank, 2 Kan. 70; 83 Am. Dec. 446. And the

production of the record with the seal of the court to the certificate was prima facie evidence that it was a court of general jurisdiction. It being a court of record, it is presumed to have had jurisdiction of the subject-matter of the action. The record itself affords presumptive proof of these matters. The subject-matter of the action was the money claimed to be due for which the action was brought, not the documents certified to the district court by the justice. Questions as to how the issue got in the district court only go to the regularity of the proceedings, and, as said before, could only be taken advantage of there if that court had jurisdiction of this defendant's person therein. The recitals in the record of the jurisdiction acquired over the defendant's person in that proceeding are prima facie evidence thereof, and the defendant offered no proof to contradict any of these matters.

He also contends here, that as his affirmative defense was not replied to or denied by the plaintiff, that it must be taken as true, and that judgment should have been rendered in his favor thereon. It is doubtful whether the defendant's whole answer raised any other issue than that of nul tiel record, and this is the only defense available under a general denial in an action upon a judgment of a court of record of a sister state. The so-called affirmative defenses were denials in form, and nothing was pleaded therein alleging that the court had not jurisdiction of either the subject-matter of the action, or of the defendant's person. The first paragraph of his further defense is the only one in any wise tending to show a want of jurisdiction of the subject-matter, wherein it seems to deny that the court had jurisdiction of anything. The first part of the second paragraph attempts to deny that the cause of action ever existed. These amounted to nothing more than statements of conclusions of law. The remaining part of this defense related to wholly immaterial matters. The affirmative defense could not have stood, had it been attacked in the superior court. Pleas to the jurisdiction must be direct and certain, and set up the facts which go to show a want of it: See Hill v. Men-denhall, 21 Wall. 453; Welch v. Sykes, 3 Gilm. 197; 44 Am.. Dec. 689; Diblee v. Davison, 25 Ill. 486; Moulin v. Trenton etc. Ins. Co., 24 N. J. L. 222; Shumway v. Stillman, 4 Cow. 292; 15 Am. Dec. 374; Price v. Ward, 25 N. J. L. 225. But no attention seems to have been given to the affirmative defense at the trial by either party. The appellant did not object to the plaintiff's proof as inadmissible, on the ground

that this defense had not been replied to, nor did he at any time move the court for judgment upon the pleadings, or ask for an instruction for a verdict in his favor upon that ground, If his answer, under the circumstances, raised any issue except that of a bare denial of the record, and any advantage could have been taken thereof, it was waived by him in failing to call the attention of the trial court thereto. It is possible an instruction was asked upon this ground by appellant, as an allusion is made in the record to instructions drafted by the defendant which the court refused to give, but none of these requests to charge are in the record, and consequently we know nothing of them.

Some of the cases above cited go to the extent of holding that not even jurisdictional matters can be questioned, in an action upon a judgment of a court of record of a sister state, unless a want of jurisdiction is shown by the record. Mills v. Duryee, 7 Cranch, 480, seems to be the first case laying down the doctrine that a want of jurisdiction in such cases could not be shown. This was subsequently recognized to be the correct rule in the opinions rendered in a number of cases arising in the state courts. But it was held not to apply, and the effect thereof was avoided, in nearly all of such cases to which our attention was called, in holding that where the appearance was by an attorney, his want of authority to appear could be shown; that the purported appearance by an attorney was only prima facie evidence thereof; or that where the record was silent as to any jurisdiction of the person, it could be shown that the court in fact had no such jurisdiction, etc. It is now well settled by the weight of authority, and is undoubt edly the better rule, that want of jurisdiction may be shown by the defendant, even to the extent of contradicting express recitals in the record, the same as in cases of foreign judgments. They are not regarded in the sense of foreign judgments, so that the merits may be inquired into, even where jurisdiction is had as in the case of judgments of the courts of other countries, nor yet in respect to jurisdictional matters are they to be regarded in the same light as judgments rendered in our own courts of record. The case of Mills v. Duryee, 7 Cranch, 480, and cases following that decision, are modified to this extent: Freeman on Judgments, 3d ed., secs. 452, 453, 559-566; Thompson v. Whitman, 18 Wall. 457; Shumway v. Stillman, 4 Cow. 292; 15 Am. Dec. 374; Bissell v. Wheelock, 11 Cush. 277; Jarvis v. Robinson, 21 Wis. 530; 94 Am. Dec. 5C6; Buffum v. Stimp

son, 5 Allen, 591; 81 Am. Dec. 768; Wheeler v. Raymond, 8 Cow. 311; Reid v. Boyd, 13 Tex. 241; 65 Am. Dec. 61; Moulin v. Trenton etc. Ins. Co., 24 N. J. L. 222; Stewart v. Stewart, 27 W. Va. 167; Danforth v. Thompson, 34 Iowa, 245; Borden v. Fitch, 15 Johns. 140; 8 Am. Dec. 225; Price v. Ward, 25 N. J. L. 225. Nor did the fact that it was stated in the complaint in pleading the judgment record that the pleadings in Kansas were had against the defendant in this action, with the denials contained in the answer, raise any issue of identity of person, as such denials amounted to no more than a denial of the record, according to the authorities cited, and it was necessary in this particular, to raise the question of identity, for the defendant to allege and prove every fact necessary to show that the court had no jurisdiction of his person. Had the court been one of limited jurisdiction, a different rule would obtain, and the party relying upon the judgment would be bound to show that the court had jurisdiction, if it was denied. But by the great weight of authority in cases like the one here, any. thing going to show a want of jurisdiction is an affirmative defense, as much so as a defense founded upon a set-off, or upon a payment of a judgment, or that it was obtained by fraud, or that the statute of limitations had run against it, unless this fact should appear upon the face of the complaint, in which case it could be taken advantage of by a demurrer: Wilt v. Buchtel, 2 Wash. Ter. 417. The name of the defendant in the record offered, being identical with that of the defendant in this action, is prima facie proof of identity of person: Campbell v. Wallace, 46 Mich. 320. The judgment record, when introduced in evidence, was prima facie proof of the plaintiff's right to recover in this action; no less effect could be given thereto under the authorities.

The main controversy in this case was as to what issues were raised by the pleadings, and as to where the burden of proof rested thereunder. The disposition made of the first point carries the second with it.

The last objection urged, raised in the motion for a new trial, that the damages recovered were excessive, in that interest was computed upon the aggregate amount of the judgment recovered in Kansas from its date, which included the costs of that proceeding, is not well taken. The interest was only computed at the legal rate here. Code, section 320, is not limited to domestic judgments. The costs of that proceeding were included in the judgment there rendered, and became a part

thereof; said judgment also allowed interest thereon. The legal rate would be recoverable unless a lower rate was speci fied: See Hopkins v. Shepard, 129 Mass. 600; Shickle v. Watts, 94 Mo. 410; Wetherill v. Stillman, 65 Pa. St. 105.

The judgment of the superior court herein is affirmed.

FOREIGN JUDGMENT - HOW PROVED. A foreign judgment may be proved by a copy thereof, duly authenticated by the duly authenticated certificate of an officer properly authorized by law to give a copy: Gunn v. Peakes, 36 Minn. 177; 1 Am. St. Rep. 661, and note; Lazier v. Westcott, 26 N. Y. 146; 82 Am. Dec. 404, and extended note; note to Messier v. Amery, 1 Am. Dec. 324. The clerk's certificate attached to the copy of the record of a judgment of another state is sufficient if the seal of the court is annexed, and the “presiding justice" of the court attaches his certificate that the attestation is in due form: Bean v. Loryea, 81 Cal. 151. Andrews v. Flack, 88 Ala. 294, is to the same effect.

JUDGMENTS-ENTRY BY CLERK.

· As to the validity of judgments entered by a clerk, see Rockwood v. Davenport, 37 Minn. 533; 5 Am. St. Rep. 872. JURISDICTION OF COURTS OF RECORD-PRESUMPTION AS TO: See extended note to King v. Bates, 20 Am. St. Rep. 521; extended note to Morrill v. Morrill, 23 Am. St. Rep. 114.

NAMES-IDENTITY OF, WHETHER PROOF OF Identity oF PERSON.-That the obligor and obligee are the same person is not a legal deduction from the identity of names: Allin v. Shadburne, 1 Dana, 68; 25 Am. Dec. 121; see Leland v. Eckert, 81 Tex. 226.

LEISURE V. KNEELAND.

(2 WASHINGTON, 537.)

INSOLVENCY, DISCHARGE IN, NOT BAR TO RECOVERY, WHEN. — - Where a decree of foreclosure is rendered against a party subsequent to his discharge in insolvency, but before such discharge is entered, and he fails to apply to the court to limit the plaintiff's recovery in the foreclosure suit to the proceeds of the sale thereunder, the discharge will not prevent a recovery for any deficiency that may remain after a sale of the mortgaged premises. C. W. Hartman, for the appellant.

Allen and Ayer, for the appellees.

SCOTT, J. In December, 1884, the respondents filed petitions under the insolvent debtor act, in the territorial district court of the second judicial district holding terms at Olympia, to procure a discharge from their indebtedness, and on June 9, 1885, they each obtained an order in said proceedings discharging them as prayed for. These orders were entered on