Page:Borden v. State ex rel. Robinson.pdf/49

Rh under said decree." And then with regard to these points he said, "When the record of a judgment is brought before the court collaterally or otherwise, it is always proper to inquire whether the court rendering the judgment, had jurisdiction. Jurisdiction is acquired in one of two modes; first, as against the person of the defendant by the service of process, or secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case the defendant is not personally bound by the judgment beyond the property in question. And it is immaterial whether he proceeds against the property by attachment or by bill in chancery. It must be substantially a proceeding in rem. The principle is admitted that where jurisdiction is acquired against the person by the service of process or by a voluntary appearance, a court of general jurisdiction will settle the matter in controversy between the parties. But this principle does not apply to a special jurisdiction authorized by statute, though exercised by a court of general jurisdiction." And in conclusion the court in that case said, "It may be difficult in some cases to draw the line of jurisdiction so as to determine whether the proceedings of a court are void or only erroneous. And in such cases every intendment should be favorable to a purchaser at a judicial sale. But the rights of all parties must be regarded. No principle is more vital to the administration of justice than that no man shall be condemned in his person or property without notice and an opportunity to make his defence." And the court proceeded to declare the decree and the sale under it absolutely null and void.

After this decision, so recently made by the highest judicial tribunal in the United States, in full and unqualified terms adopting the position assumed by Chief Justice in the case of The Mary, is it to be supposed that, if the doctrine laid down in 10 Peter and 2 Howard and the other decisions in support of them, conflicted with this, or did not, as I contend, apply to a very different class of cases, they would have passed unnoticed by the counsel and the court in this case; or that had these decisions been intended to controvert the doctrine laid