Page:Federal Reporter, 1st Series, Volume 1.djvu/678

 670 ÎEDEEAL EEPOKTEB. �ence, therefore, to the power to subject the property of absent persons to attachment for their debts does not tend to show that the process in this case was "due process of law," but rather thecontrary; ail the ordinary incidents of such process which alone make it "due process" are wanting, Nor is the object and design of the laws in question to apply the prop- erty to the payment of debts. Though that is incidentally provided for, their chief object, as well as their chief effeot, is to distribute it among the supposed next of kin, who have in fact no right to it. �There can be no question, also, that it ia within the power, and is the duty, of the state to provide ail proper safeguards for the protection of innocent persons who bave been led into mistake, to their injury, by the action of the surrogate, or otherwise; but, as it seems to me, this laudable and proper legislation must stop where it will operate to deprive another innocent person of his property for their benefit, There are some misfortunes that aven the most innocent cannot be pro- teoted against by the power of the state. Such is the case of persons who are innoeently misled into the belief that void judgments are valid, as in the case of a suit carried on against a person supposed to be alive, but in reality dead. Lorlng v. Folger, 7 Gray, 505; Jochimsen v. Savings Bank, 3 Allen, 87. �In fact, this argument for the protection of the innocent sufferer against the consequences of the acts of another, by whom he has been misled into the misfortune of parting with his money, seems to be a misapplication of the doctrine of estoppel in pais. If the plaintiff has, by his conduct or decla- rations, induced the defendant to pay this money to the per- son holding the letters, then he will be estopped to deny the authority of that person to reçoive it; but every case of estop- pel in pais must rest on its own peeuliar circumstances. The defendant has not pleaded an estoppel in pais, but an estoppel by record — a judgment alleged to be binding on the plaintif. Nor has any court directly or plainly put the exemption of the defendant from liability, in a case like this, on any other ground than such an estoppel by record. Nor does it seem to me that a person remaining out of the state for however long ��� �