Page:Borden v. State ex rel. Robinson.pdf/43

Rh would be required by our statute to authorize our probate court to make sale of an intestate's lands for the purpose of paying debts &c. J. said, "The Surrogate undoubtedly acquired jurisdiction of the subject matter on the presentation of the petition and accounts; but that was not enough. It was also necessary that he should acquire jurisdiction over the persons to be affected by the sale." And in the same case it is afterwards said, "It is not only a general principle in the law that courts must acquire jurisdiction over the persons to be affected by their judgments, but in relation to these sales the statute has specially pointed out the means and imposed the duty to bring the parties before the court." It is to be remarked in this case that the courts of New York held the Surrogate's court to be one of inferior jurisdiction, and for that reason perhaps it was that although this was a proceeding in rem, they decided that notice to the persons interested should be given. Still the general doctrine of notice is broadly and unqualifiedly asserted, and after reviewing the decisions in 17 and 21 Wend. it is said by J. page 141, "But the principle remains untouched that whenever the want of jurisdiction appears the judgments of any and all courts will be void, and when the party in interest is to be brought in by means of public notice the want of such notice will be a fatal defect."

And in a still later case the same court, 1 Barber Rep. 289, In the matter of Flatbush Avenue, comes directly up to the support of the position I have assumed in regard to the constitutional rights of the citizen. It was a case where an attempt was made without notice to the owner to appropriate private property for publie use. J. said, "Under our institutions no man can be deprived of his rights save by the law of the land or the judgment of his peers. Amongst the rights thus protected is the right of private property." And in that part of the opinion relating to notice to the owner of the land, he said, "It is an inflexible rule of law that no man shall be deprived of his property without an opportunity of defending himself." So that the doctrine of notice as indispensably necessary to the