Page:Borden v. State ex rel. Robinson.pdf/42

560 notice was not necessary, but the very reverse, that it had really been given.

So, with regard to the practice in New York, where the writ is no part of the record, the doctrine of presumptions in favor of the court's having proceeded upon due notice (although not apparent upon the record) has to some extent prevailed; yet even in that case I can find no case where the proceeding was against the person, that the doctrine, for which I contend, has been shaken. Hilburn vs. Woodworth, 5 ''John. Rep.'' 41. Roberson vs. Executors of Ward, 8 id. 90. Fenton vs. Garlick, id. 196. Pawling vs. Bird's Executors, 13 id. 192 and Borden vs. Fitch, 15 id. 142, are all cases showing that, in proceedings against the person, notice to the defendant is indispensably necessary to the validity of the judgment. C. J. in the last cited case says, "That to bind the defendant personally, when he was never personally served, nor had notice of the proceedings would be contrary to the first principles of justice." When this point was subsequently raised in 17 Wend. 484, Foot vs. Stevens, the whole decision was made to turn upon the effect of the omission of the words "in custody" &c. in the declaration. J. said: "The pleader let slip the words "in custody &c." and under the state of case, the court on the express recognition of the doctrine of presumptions in favor of the regularity of the proceedings of that court decided in favor of jurisdiction, but not that notice was not necessary. In the case of Hart vs. Seixas, 21 Wend. 53, the same omission appeared in the declaration as in the case in 17 Wend. and, waiving the doctrine of presumptions, the court decided that the record showed affirmatively that the party appeared.  J. said "Although it does not appear directly on this record that the defendants were served, I think it is virtually declared that they appeared in the cause; it states an imparlance with Hart and Bush at the September term."

The case of Bloom vs. Burdick, 1 Hill, was a proceeding in rem before the Surrogate to sell certain lands. The administrator petitioned for the sale and set out substantially such facts as