Page:Borden v. State ex rel. Robinson.pdf/21

Rh that they are as if they had never been: void things are no things." Cable vs. Cooper, 15 John. R. 155, citing 22 Vin. 13 pl. 17.

So the case of Skellun's ex. vs. May's ex. 6 Cranch R. 267, rests upon the same foundation. This case had been tried in the circuit court for the District of Kentucky, taken from thence to the supreme court of the United States and reversed and remanded, and, being again before the circuit court, it was then for the first time discovered to be a cause not within the jurisdiction of that court, and upon division of the judges as to whether it should be dismissed for want of jurisdiction that question was adjourned to the supreme court and after consideration it was determined that the circuit court of Kentucky should proceed with the cause. In this case then although jurisdiction did not appear upon the face of the record, and although the circuit court certified affirmatively that the cause was without the jurisdiction of the court, nevertheless for the reason that the merits of the cause had been finally decided in the supreme court its mandate had to be obeyed.

And upon the same foundation it was said by C. J. in Domina Regina vs. Barnaby, 1 Salk. 182, that although the justice had no jurisdiction of a prosecution for cutting down trees in the night time under the St. of 43 ''El. ch.'' 7, if the defendant had title to the land, and that, upon a conviction in such case, the justice, as well as he who might execute his sentence would be liable to an action, yet that if the justice's proceedings were confirmed in B. R., in such case no action would lie against either "for then it is supported by the authority of this court." Here then although the justice bad no jurisdiction of the subject matter, yet as soon as his judicial sentence has received the affirmative of a superior court, it has become as valid as it would have been in a case that had actually been committed by law to his jurisdiction and not excepted out of it as this was, the decision of the latter court having now become the law of the ease, to remain so until reversed on error.

In the first two cases, that is to say, the cases from 2 Salk. and from 6 Cranch, there was no margin for any presumption