Voorhees v. Jackson

IN error to the circuit court of the United States, for the district of Ohio.

The President and Directors of the Bank of the United States instituted an action of ejectment in 1831, for the recovery of a tract of land in the county of Hamilton, in the state of Ohio. On the trial of the case, in order to establish their title, they gave in evidence to the jury the proceedings in an attachment against Seth Cutter, in the county court of Hamilton county, commenced in 1807; under which the tract of land in the ejectment was sold, in 1808, and the sale returned by the auditors appointed by the court to make the same, on the 16th day of April 1808. The sale was confirmed by the court, at August term 1808; and, according to the provisions of the attachment law of the state of Ohio, the auditors had previously made a deed to William Woodward and William Foster, the purchasers of the property sold.

This deed was executed on the 28th day of May 1828, to Woodward & Foster, who on the same day conveyed the same to William Stanley.

The defendants in the ejectment claimed title to the premises, which were in their possession, under Seth Cutter. They insisted that the proceedings in attachment did not divest Seth Cutter of his title to the land: but the court instructed the jury otherwise. The jury gave a verdict in favour of the plaintiffs. To the judgment of the circuit court, on the verdict, the defendants below prosecuted this writ of error.

The record of the county of Hamilton county, in the attachment against Seth Cutter, and the opinion of the circuit court upon the title derived under it, by the plaintiffs below, were brought up by a bill of exceptions. The whole proceedings in the attachment are stated fully in the opinion of the court.

The case was presented to this court, on printed arguments, by Mr Caswell, and Mr Chester, for the plaintiffs in error; and by Mr Fox, and Mr Chase, for the defendants. Mr Sergeant also delivered to the court a written argument, for the defendants in error.

The printed argument of the counsel for the plaintiff in error, presented for the consideration of the court, was as follows:

1. Were the proceedings in attachment sufficient to divest the title of Seth Cutter to the premises in dispute?

2. Was that title by such proceedings, and by the deed made, vested in Samuel Foster and William Woodward?

The plaintiffs in error hold the negative on both these points.

The powers of courts are of two kinds, ordinary and extraordinary. The first are those general powers of adjudicating between parties, the defendant being within reach of their process, upon matters within the general cognizance of the tribunals, as established by law. The constitution or laws establishing the respective courts of the union or the states, define, by marked boundaries, these general powers, as distributed to the different courts, and fix the limits of their respective jurisdictions. Within these boundaries their power is exercised according to their own discretion and judgment of the law, and their adjudications are conclusive upon the rights of the parties, unless the case be regularly brought under the review of an appellate tribunal.

The constitutions of judicial tribunals are to be carefully distinguished from those laws which are made for the enlarging, defining or circumscribing the rights and liabilities of individuals constituting the community, over which the powers of legislation are exercised. From the former, a court derives its existence, its mode of being, and the essential qualities of its nature. They confer upon it its powers, define its jurisdiction, and limit its capacity. In expounding these fundamental laws, in which its judges have, if not a personal, yet an official interest, it can claim no right to bind the conscience or control the judgment of any other tribunal, not subordinate, before which the question may arise, whether its construction and judgment were right or wrong. It must be resolved by looking at the law itself.

The extraordinary or special powers conferred upon courts are of the same nature. Relating like them to their own power and jurisdiction, they have no exclusive right to judge of them, so as to silence the judgment of other tribunals, not subordinate, when the question is whether the power exercised has been conferred. In other words, the exercise of a power by a court does not prove the rightful existence of the power. And when a special power is conferred to be exercised in a certain mode, it is equally competent for another tribunal to consider whether the power has been exercised in the mode prescribed; for, in such case, the mode is an ingredient essential to the power, constituting, indeed, a condition on which the power depends. In such case the act is binding, or nugatory, as it pursues the mode or is done in disregard of it. And the record, to bind the rights of the parties, must show that the power has been exercised in strict conformity to the mode prescribed. It is not sufficient that the mode has been pursued in three out of four, or nine out of ten of its parts. It must be wholly pursued, to make the act valid. If twenty things are required by the law to be done by the court in exercising such special power, these being specially required, must not only be done, but specifically appear on the record to have been done. The omission of one is fatal; and a court, before which the adjudication shall be collaterally brought, cannot hold a right to be vested, or a title to be divested, by a record showing such an omission.

See Rose v. Himely, 2 Peters's Con. Rep. 100, 101, 102; Griffith v. Frazier, 8 Cranch 9; 3 Johns. Cas. 108; Rex v. Luke, 1 Cowper 26 (Lord Mansfield's opinion, p. 29); 1 Bur. 377; 4 Bur. 2244.

In Smith v. Rice, 11 Mass. Rep. 510, it is held, that although the court have jurisdiction of the subject matter, yet if the proceedings are not according to the course of the common law, and the statute be not strictly followed, the judgment is absolutely void, and vests no right. See also, Davol v. Davol, 13 Mass. Rep. 264.

The statute respecting attachments, in force at the time of these proceedings, will be found in 1 Chase's Stat. p. 462, passed in 1805. Section fifteen of this statute enacts:

'That the goods, chattels, lands, tenements, rights, credits, moneys and effects, of persons residing out of the state, shall be liable to be attached, taken, proceeded against, sold, assigned and transferred for the payment of their debts, in the same manner, as nearly as may be, as is herein provided, with respect to other debtors: provided, that instead of the oath or affirmation herein before provided, the applicant for such writ of attachment, his agent or attorney, shall make oath or affirmation that the defendant is not, at that time, resident within the state, as he verily believes; and that the said defendant is justly indebted to him in a sum of money, specifying as nearly as he can the amount of his demand or balance: provided also, that no judgment shall be entered by virtue of this section, until notice for the space of three months shall be given in one of the newspapers published in this state, of the issuing of such attachment, and at whose suit, against whose estate, from what court the same issued; and that unless the defendant in attachment shall appear, give special bail, and receive a declaration, judgment will be entered, and the estate so attached sold for the benefit of the creditors.'

For the other provisions regulating foreign attachments we are referred to those parts of the statute relating to domestic attachments. The first section relates to the oath to be taken by the plaintiff, the substance of which is changed, in the section just quoted, to accommodate it to the case of a non-resident debtor. It provides before what officer the oath may be taken; that it shall be taken and filed with the clerk of the court; and that any writ of attachment issued before the oath or affirmation be so taken and filed, shall be quashed on motion. Sections two, three, four, five, six and seven relate to the mode of executing the writ, garnishees, costs, trying the right of property, &c. Section eight is in these words:

'The court, at the return of such writ of attachment, shall appoint three discreet persons to audit and adjust the accounts and the demands of the plaintiffs, and so many of the creditors of the defendant in attachment, as may have applied to the court, or shall apply to the auditors for that purpose, before they shall have closed their report, which report shall be made in writing, signed by the said auditors, or any two of them, and shall be returned to the court from which such writ of attachment issued, and at the third term, including the term to which the writ of attachment was returned, final judgment shall be entered on such report: provided, that the defendant shall have been called three times, at each of the said terms, and have made default, and those defaults shall have been entered by the clerk,' &c.

Section eleven of this act is the last to which we deem it necessary to call the particular attention of the court. It authorizes the auditors, by virtue of an order from the court, to sell the lands and tenements, &c. attached: 'provided, that notice of such sale shall be set up in writing, at three of the most public places within the county, at least, or be advertised in a newspaper, published in the county, for the space of fifteen days, at least, prior to such sale; nor shall any sale be made of such lands and tenements, in less than twelve calendar months, from the return of such writ of attachment,' &c.

We will present at one view the requirements of the statute to which we ask the attention of the court.

1. The plaintiff must make and file an affidavit before any writ of attachment can issue.

2. This affidavit must state that the defendant is not resident within the state, as plaintiff believes.

3. An advertisement, minutely described in the statute, must be published in some paper of the state, three months before any judgment can be rendered.

4. No judgment can be rendered against the defendant until the third term, and then only on the express condition, that at each of said terms, he shall have been three times called, and have made default, and those defaults shall have been entered by the clerk.

5. No sale of lands can be made by the auditors in less than twelve months from the return of the attachment.

6. The auditors are required to give at least fifteen days notice, by advertisement, of the sale.

None of these requirements of the statute appear to have been complied with. The clerk has certified that the transcript contains all the matters of record, or on file, in the cause. There is no affidavit or mention of an affidavit in the transcript. The court of common pleas had no jurisdiction of the matter until this was made and filed. The defendant was not within the jurisdiction of the court, or liable to its process, and his property could only be proceeded against and subjected to sale, upon the making of such an affidavit or affirmation as is prescribed in the statute. Any process, and all the proceedings founded upon process of attachment, are a nullity without this. There is no room here for presumptions. Where title depends upon a record, nothing is to be presumed which does not appear in the record. Proceedings of courts can be shown only by their records, and what the law requires to be recorded, cannot be presumed to exist, where the record does not show it. The writ issued recites, that whereas the plaintiff had sufficiently testified. In what manner he testified, whether by a verbal oath or assertion without oath, does not appear. It does appear that it was not in the manner required, for then the oath would have made a part of the record. And it is not recited in the writ, that he had even testified that the defendant was not then resident within the state. The clerk himself seems to say, that he was not a resident. The language is, 'has sufficiently testified that Seth Cutter, who is not now a resident of the state.'

We conceive that the want of this affidavit is fatal to all the subsequent proceedings, and that any judgment rendered in the cause was a nullity.

The next defect in the record is, that it does not appear that the attachment was advertised according to the statute. This was the mode required by the statute for perfecting service: it was necessary to make Cutter a party to the cause to make the proceedings binding upon him. Without such a notice, his rights could not be affected by any judgment rendered in the cause. This matter is settled by the supreme court of Ohio, in Colwell, Adm. v. Bank of Steubenville, 2 Ohio Rep. 229, and in Taylor v. M'Donald, 4 Ohio Rep. 155, 156.

Chief Justice Marshall in the case of the Mary, 3 Peters's Cond. Rep. 312, says: 'it is a principle of natural justice, of universal obligation, that before the rights of an individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him.' The only mode in which implied notice could be given the defendant, in attachment, is by publication. No publication was made; no actual notice pretended: of course the party was not bound by the judgment, and his title to the land was not divested.

The court was authorized to give judgment at the third term, only on the express condition that, at each of the three terms, the defendant had been three times called, and had made default, and these defaults were entered by the clerk. At the first term he was regularly called and defaulted, according to the statute. At the second term there is no entry of calling, or a default. At the third term he was called, but whether once or more, does not appear. The court, in this state of the record, had no right or power to give judgment, and it is for this reason a nullity.

Twelve calendar months must, according to the terms of the statute, elapse after the return of the writ, before any sale could be made of the lands of the defendant. It does not appear, either from the return of the auditors, or their deed, when the sale was made. The order for sale, such as it was, was issued long before the expiration of the twelve months, and of course before the land was liable to sale. It is submitted, that the court could make no order of this kind before the end of the twelve months. They must wait until the land is liable to sale before they can order it to be sold. That order is in praesenti (not limited to a future time), to do that which there was no rightful authority to do. Such an order seems to us a nullity.

At least, if made within twelve months, it should appear not to have been executed till after their expiration.

The auditors are required to give at least fifteen days notice of the sale. This does not appear to have been done. It is not so stated in the deed. No proof of the fact is adduced. These auditors were not regular judicial or ministerial officers. They acted neither under the sanction of an oath of office, nor had they given any security to which the defendant could resort in case of injury. The power conferred must be strictly pursued. No presumptions can be made in their favour. That it would not be necessary, to sustain a title acquired under a sheriff's deed, to show that he had obeyed the law in the manner of making his sale, in every respect, may be admitted. But it by no means follows, that the same favour is to be shown towards a title claimed under the exercise of a special power, conferred on individuals. All the reasons are against it.

We have not thought it necessary to remark upon many things contained in this record, which, to say the least, appear to us singular. Whether the persons who adjusted the accounts against the defendants were auditors or referees, seems to be left in doubt. The nature of the claims against the defendant, by what evidence supported, or how ascertained, does not appear. The order to sell, issued to the auditors, does not appear. For aught that appears in the record, the sale was private, and without notice.

2. Admitting that the proceedings in attachment would have been otherwise sufficient to divest the title of Seth Cutter, the deed is not sufficient to vest that title in Samuel Foster and William Woodward. So far as we can conjecture from the return of the auditors, the land in question was sold to William Stanley. To him alone could the auditors convey. The return of the auditors is necessary to sustain the deed. Without this it cannot be pretended that the deed would be valid. The subsequent conveyance by Foster and Woodward to Stanley, does not alter the principle. They could convey no title which was not vested in them. If none was vested in them, none passed by their deed. It is not even shown or pretended, that Foster and Woodward were, by any act of Stanley, substituted in his place as purchasers. They stand entirely unconnected with the record. In the case of Den v. Lambert, 1 Green's New Jersey Rep. 182, this point is decided. There one individual was reported as the purchaser, and the deed was made to him and another. The question for the court was, whether such a deed vested any title. It was decided that it did not. If that was a correct decision, it is conclusive on this point.

It will probably be urged for the defendant in error, against the views we have presented of this case, that however erroneous the proceedings of the court of common pleas may have been, yet they cannot be inquired into collaterally: that their judgment is binding, until reversed by an appellate tribunal. This doctrine is true as to matters within the ordinary jurisdiction of courts, where the proceedings are according to the course of the common law. But not so in this case. The defendant was not within their jurisdiction. He could only be affected through his property lying within that jurisdiction. The court could only take jurisdiction in a certain state of facts, which must be made to appear by an affidavit filed. They could subject the property of the defendant only by a particular mode of proceeding. He was not a party in court, and the plaintiff took judgment against him at his peril. The purchaser was bound to inquire into the power of the persons acting as auditors, and the means by which the property was subjected to sale. The whole record is necessary to support their title, and to the whole they should have looked. The rights of the party could only be affected by strictly pursuing the law. Colwell v. Bank of Steubenville; and Taylor v. M'Donald, before cited.

But in relation to inquiring into the regularity of these proceedings collaterally, the legislature of Ohio has settled the question, so far as legislative construction can settle it.

By the act of February 4th, 1813, 2 Chase's Stat. 795, sect. 6, reciting, that whereas it had been doubted, &c., and for removing such doubts, it was enacted: 'that any person, in any suit or proceeding, founded upon, or in which it may be necessary to show any such process,' (in attachment) 'proceeding or judgment, may be permitted collaterally to impeach the same, and to show any irregularity therein, or any deviation from the authority conveyed by the said fifty-third section, or by the above recited act' (the act allowing and regulating attachments).

If it be objected, that this act was passed after the title is claimed to have vested, the case of Watson et al. v. Mercer, 8 Peters's Rep. 88, is an answer to such objection.

It is true that this clause, in the act of 1813, was afterwards repealed, with the whole act. But it cannot but be obvious that the reason why it was not re-enacted, was, that the reason given for passing it no longer existed; that the doubts in relation to the matter had ceased.

In Humphries v. Wood, Wright's Ohio Rep. 566, the court say: 'these proceedings' (in attachment), being ex parte and in rem, the statute must be strictly pursued, or no right is acquired under it;' and the proceedings were declared to be void, not voidable.

In M'Daniel v. Sappington, Hardin's Ken. Rep. 94, the court hold that, the remedy by attachment being in derogation of the common law, the statute giving the remedy ought to be strictly pursued in all its provisions.

These are the reasons for our respectfully insisting that the circuit court erred in giving judgment, on the point reserved, for the plaintiff. And unless there be something in the name or essence of a court which makes its ex parte proceedings binding upon the rights of individuals, despite of all the provisions of a statute vesting it with whatever power it has over the subject matter-unless, because it is authorized to do one thing it may do all things-unless, because it has power to do a particular thing in a particular mode, it may do the same thing in any other mode, according to its own pleasure-unless it can secretly, by the aid of irresponsible agents, held to their duty neither by oath or obligation, dispose of the property of citizens of other states according to its uncontrolled will; we think we may rightfully ask for the reversal of the judgment of the court below.

Mr Fox, with whom was Mr Chase, in their printed argument, argued for the defendants in error, as follows:

The objections urged below, and which we anticipate will be urged in this court against the validity of the proceedings in the attachment suit taken in the order in which they arise, as follows: First, because no affidavit of non-residence appears in the record; second, because there is no evidence of the pendency of the suit having been advertised three months; third, that the record does not show that the requisite defaults have been entered; fourth, that the deed ought not to have been made to Woodward and Foster, the sale having been made to Stanley.

As to the first objection, we say the statute does not require that the affidavit should be made a part of the record. All that is required by the law is the filing of the affidavit with the clerk. The affidavit ought certainly to be filed, but it is no more necessary that such affidavit should be recorded than that an affidavit to hold to bail, or the attorney's praecipe ordering a writ in a cause should be recorded, or that proof of such an affidavit having been made should appear in the record. Indeed in an ordinary suit the writ forms no necessary part of the record, unless required to be recorded by express statute. Until within a few years the writ is not to be found in the records of judicial proceedings in Ohio.

But in the present case the record does show that an affidavit was filed, for it is recited that the plaintiff 'has sufficiently testified to the judges of our court of common pleas that Seth Cutter, who is not now residing in the state, is indebted,' &c. Here it is shown that an affidavit had been made, and we presume that this recital must be held sufficient at this late period, even if the court should consider record evidence necessary to prove that an affidavit had been made. The next question arising in the cause, is whether it is essential that in an attachment suit, where the article seized is substituted for a personal service of process, the record must show that the proper advertisement of the pendency of the suit has been made.

We suppose it not necessary to the validity of the judgment, that any such advertisement should in fact be made, but at all events, we insist that no evidence of the fact of advertisement having been made need appear in the record.

We suppose in this as in all other proceedings in rem, the seizing of the property by virtue of process issued from a court having authority to issue the writ, vests in the tribunal from which the process issued a complete jurisdiction over the thing or property seized. If we are right in this position, it follows, we suppose, as a matter of course, that irregularities or errors in the subsequent proceedings of the court, can only be corrected by the courts of the state.

We insist that the issuing of the writ of attachment and seizing the real estate by virtue of that writ, gave to the court of common pleas of Hamilton county, complete jurisdiction of the property seized:

Because, First, the statute declares 'that the property so attached shall be bound from the time of levying such attachment.' Sec. 2d.

Secondly. Because the property from the time of attachment, is to 'remain in the care and safe keeping of the office, to abide the judgment of the court.' Sec. 3d.

Thirdly. Because at the return term of the writ, the court are authorized to refer the matters of account, &c., to the auditors to be adjusted. Sec. 8th.

Fourthly. Because the court are authorized to direct a sale of the personal property attached at any time after it is seized, if it be of a perishable nature. Sec. 11th.

Fifthly. Because the death of the defendant is not to abate the suit, but the right of the plaintiff is referred to the time of suing the attachment.

These acts could not be authorized to be done, unless upon the supposition, that the court by virtue of the seizure, had complete jurisdiction of the suit and of the parties thereto, so far as the disposition of the property attached was concerned. This is also agreeable to the analogous proceedings in the courts of admiralty and exchequer.

In admiralty causes, it is a universal principle that the seizure of property by an officer acting under authority, vests the right in the sovereign, and authorizes his courts to proceed and inquire whether, under the laws, the property seized has been forfeited, and to adjudge to whom it belongs and how it shall be disposed of; and all sentences, judgments and decrees, affecting the property so seized, are conclusive upon all the world, as to the right and title to the thing seized from the time of seizure. 4 Cranch 278; 1 Paine's C. C. Rep. 626. On the seizure of the property, the jurisdiction of the admiralty courts attaches, and the property is subject to the decision in the case. 4 Cranch 296; 1 Phil. Ev. 273; 12 Serg. & Rawle 289; 1 Paine's Rep. 626; 3 Binney 220; 5 Cranch 184.

If then the court had jurisdiction of the cause, the omitting to publish the pendency of the writ, did not divest the court of its jurisdiction. The court undoubtedly might have refused to have given judgment, and indeed ought not to have given judgment until the advertisement had been made, and we must suppose the court did require the evidence of such publication; as we are not to presume the judges neglected, or erred in the discharge of their duties. But suppose the court did not require any proof of such publication having been made; suppose that they were satisfied of its having been made from their own personal knowledge, such as their having read the notice in the newspaper, and admitting the court ought to have required other evidence of the fact: all that can be said in relation to the matter is, that the court erred, but the error of the court cannot affect the validity of the judgment. The purchaser of property is not responsible for the errors of the court or of the parties. Nor can the errors of the court of common pleas be inquired into by this court. This court, so far as the judgment of the court of common pleas of Hamilton county is concerned, is a foreign court, and as such cannot notice the irregularities of the Hamilton county courts. The regularity or irregularity of the proceedings of our own courts is an internal regulation of the state of Ohio, and as such, must be expounded by the courts of the state. Foreign courts cannot notice the errors of state courts. 4 Cranch 294; 1 Paine's Rep. 621.

'Where judicial proceedings are merely irregular, the courts of the country pronouncing the sentence, are the exclusive judges of that irregularity, and their decision binds the world.' 4 Cranch 278.

The case of Kempe's Lessee v. Kennedy, 5 Cranch 173, we conceive conclusive on this subject. In that case the court held that whether the inquest which was substituted for a verdict 'did or did not show that an offence had been committed, was a question which the court in New Jersey was competent to decide. The judgment it gave is erroneous, but it is a judgment, and until reversed, cannot be disregarded.' The same principle is recognized, 11 Mass. Rep. 229.

So in 12 Serg. & Rawle 289, it was held that money being attached in Louisiana, 'the judgment of the courts there touching the disposition of that money was conclusive. The thing attached being in Louisiana was subject to the jurisdiction of her courts. By what law it was to be governed, 'it was for the judges of those courts to decide; and we presume they would decide by their own laws.'

The third objection is, that the statute requires the defendant should be called for three successive terms and defaulted, and entries of such default entered of record, and that the record offered in evidence does not show that these defaults were entered This, like the other objections, is one which could only be taken advantage of by writ of error, which could only be prosecuted in the state court. It does not affect the validity of the judgment. There is no doubt the defendant ought to have been called three times, at three successive terms, and that an entry of such calling ought to have been made. But after admitting all this, the judgment still remains good until reversed. The plaintiffs in error, in order to sustain their objection, by their course of argument destroy all the well settled distinctions between void and erroneous judgments. The least irregularity; the smallest error in the judgment of the courts, if sufficient to reverse the judgment in a superior court, is also sufficient, according to this view of the case, to render it null and void. If this judgment was a valid judgment until reversed or set aside by a superior tribunal in Ohio, it is binding and valid every where. And being a proceeding in rem, not against the person; the seizing of the property being tantamount to personal service in a personal action; the court had jurisdiction of the matter, and that is all the law requires to make the judgment valid.

The last objection, as we understand it, is, that the deed is not made to the person who was returned as the purchaser at the auditor's sale.

It is true, that the auditors returned that the land in question 'was sold to William Stanley, for 170 dollars;' but this return is not conclusive on the purchase; the deed made to Woodward and Foster, is as strong evidence of the sale having been made to those persons, as the return to the court is of its having been made to Stanley. But we contend it is immaterial whether the sale was made to Stanley, or to Woodward and Foster. If the sale was to Stanley, he was equitably entitled to a deed for the property sold, and he was equitably entitled to direct the deed to be made to another. The statute does not require the auditors to make a deed to the purchaser. By the eleventh section they are authorized to sell and convey the lands. But to whom they are to make the deed is left to be decided by the principles of law and the agreement of the parties. The auditors, perhaps, could not be compelled to convey to an assignee of the purchaser, unless by the court of chancery; but if the purchaser requested the auditors to make the deed to Woodward and Foster, and the auditors did so, we do not perceive that the rights of Cutter were in any way affected by the arrangement. The equitable title to the lot was vested in Stanley by the purchase, and the right would have been enforced specifically by a court of equity, either on the application of Stanley (if he had parted with his interest), or of his assignee. The deed for Foster and Woodward shows that Stanley was satisfied with the doings of the auditors, or he would not have received a deed from Woodward and Foster. The latter made to Stanley a warranty deed, and both deeds bear date on the same day; it is evident, therefore, that Stanley, Woodward and Foster, the only persons interested in this matter, were perfectly agreed as to the manner of making the deeds; and as no law has been violated, we suppose the deeds are valid.

To these views of the matters in controversy, Mr Chase subjoined an argument, in which he contended:1st. It appears from the record and the law, that the proceedings in attachment were had before a court of competent jurisdiction.

2d. That in the exercise of this jurisdiction, a judgment was rendered and an order made; in virtue of which the land in controversy was properly sold

3d. That the judgment and order so made, having never been reversed, remain valid and in full force; and cannot now be collaterally questioned.

He cited Kempe's Lessee v. Kennedy et al., 5 Cranch 173, 2 Peters's Cond. Rep. 223; 3 Peters's Cond. Rep. 312; Ohio Forms and Practice 126, 359; Hartshorn v. Wilson, 2 Ohio Rep. 28; 6 Ohio Rep. 268; 2 Chase's Statutes 712; 5 Ohio Rep. 500; 1 Chase's Statutes 163, 164, 683, 795, 972; 5 Ohio Rep. 500, per Hitchcock, chief judge; Allen's Lessee v. Parish, 3 Ohio Rep. 190; Ludlow's Heirs v. Wade, 5 Ohio Rep. 501: Ludlow's Heirs v. M'Bride, 3 Ohio Rep. 257; Ludlow's Heirs v. Johnston, 3 Ohio Rep. 561; Dabney v. Manning, 3 Ohio Rep. 325; Colwell v. Bank of Steubenville, 2 Ohio Rep. 229; Cowden v. Hurford, 4 Ohio Rep. 133; Taylor v. M'Donald, 4 Ohio Rep. 154; Humphrey v. Wood, Wright's Ohio Rep. 566.

Mr Sergeant, also for the defendants in error, argued in writing:

First, That the sale which is questioned in this case, was made in the year 1808, about twenty-eight years ago. It was made under a judgment of a court of competent jurisdiction, and in conformity to that judgment. The deed was duly acknowledged, and was recorded in June 1808. The judgment stands in full force, and unreversed.

The objections made after this great length of time are, that certain things required by law in the course of the proceedings, do not appear to have been closed. It is not proved that they were left undone. The question then is, whether a party, after more than a quarter of a century, is bound, affirmatively and positively, to prove, in support of his title, that not only the court, but every officer and every person employed by the court, did what the law required to be done; or else to lose his land.

In such a case, presumption stands in the place of proof. The court will presume every thing to have been rightly and regularly done. This is due to the tribunal. Its conclusions are presumptive evidence that the right steps have been taken. This presumption arises immediately: it is strengthened by time: and after so many years, is indispensable to justice. How is it possible now to prove affidavits or advertisements?

2. The want of an affidavit is supposed to go to the jurisdiction of the court. If this were so, the plain answer would be, that it does not appear that there was no affidavit. The presumption is, that there was an affidavit; and after so great a length of time it is irresistible and conclusive.

But this is not the law. By the first section of the act of Ohio it is provided, that if the clerk issue a writ without an affidavit, 'such writ shall be quashed on motion, at the proper cost of the clerk issuing the same.' If there be no motion, then the writ cannot be qualshed; and if the writ be not quashed, it remains in force, and so supports the jurisdiction. The writ cannot be invalidated in any other way than this. It is a good writ if it be not so invalidated. In this case, therefore, the writ is a good writ, and unimpeachable now, in this collateral action, even if it were certain there was no affidavit.

3. There are some remarks made in the argument as to the time of sale, not very exact; nor, seemingly, much relied upon. It is only necessary, in order to dispose of these remarks, that the prohibition in the act, sect. 11, is limited specifically to the sale. The order of sale may be before the expiration of the year. The act seems to contemplate that it shall be at the time of giving judgment. The advertisement may be within the year; and if it announce a sale after the year, it is good.

Now, here, it does not appear that the sale was within the year. That would be enough. But the evidence is sufficient to show that it was after the year. The return of sale bears date the 16th of April, being eleven days after the end of the year. The reasonable presumption, according to the usual course of such business is, that this was the date of the sale, or as soon after as possible.

4. Upon the more general and very important question, whether these proceedings are examinable in a collateral suit, I wish to add a reference to the case of Thompson v. Tolmie, 2 Peters 157. The principles are there very fully and clearly stated; and that judgment is deemed to be decisive of the present case.

It will be perceived that the counsel on both sides refer to cases in Massachusetts as maintaining contradictory docrines. They do seem to be opposed to each other. But in Heath v. Wells, 5 Pick. 140, the former cases are reviewed and reconciled. Where the proceedings were held void, it was because there was wanting what was necessary to vest jurisdiction. The indispensable prerequisite did not exist.

Perhaps, too, the courts of Massachusetts were more liberal, because there was no opportunity of review by writ of error. It is not necessary to examine what weight ought in justice to be allowed to this consideration. Such motive for enlarging or relaxing the ordinary rule is not to be found in this case. Judgments in attachment were, and are examinable on error in Ohio.

And this leads to a remark upon the cases cited by the counsel of the plaintiff in error. They are all, without exception, (that in Wright's Ohio Rep. 566, included) writs of error. No instance of impeaching the proceedings collaterally, has been shown.

The distinction is a familiar one, and it is highly important.

Writs of error are limited in point of time. Collateral suits are almost without limitation.

Still more. Reversal of a judgment, on error, does not affect the title of a purchaser. The successful party does not go for the land, but for restitution of what was recovered from him by his adversary. The collateral suit seeks to recover the land, leaving the money in the hands of the adverse party, at the expense of the purchaser, who thus becomes the victim. The creditor gets his money, which is not unjust. The debtor is released without payment, and an innocent purchaser, invited by judicial proceedings, is made to pay. Duly encouraged, such a principle would soon lead to piratical adventures under colour of law.

Mr Caswell and Mr Chester; in reply to the argument of Mr Fox and Mr Chase; denied, that the proceeding by a foreign attachment, under the laws of Ohio, was a proceeding in rem. They argued that a foreign attachment is a proceeding against a debtor for the recovery of a debt due to the plaintiff in attachment. The debt does not grow out of the property attached; there is no offence committed or duty neglected in regard to it, to form the basis of the proceeding. The particular property seized is not in default: no offence has been committed by means of it, or in relation to it: there is no debt constituting a lien upon it; or in other words, it is not itself a debtor. No question is agitated or put in issue in relation to the property. The issue to be tried, if an issue be made up, is whether the person defendant is debtor, and the amount of the debt; and whether he is non-resident so as to be within the provisions of the statute.

There is nothing in this proceeding in common with proceedings in rem.

In answer to the position, that if the common pleas of Hamilton county had jurisdiction of the attachment suit, this court cannot look at their proceedings, it was urged, that the power delegated by a statute can be exercised in no other mode than that pointed out by the statute, and no presumption in favour of proceedings in a foreign attachment will be sustained, where the purchaser under them was never in possession, and where suit is brought after the lapse of twenty years.

They denied the arguments on the cases cited by the counsel for the defendants in error; and also the construction of the statute of Kentucky relative to sales made by administrators.

We trust we have satisfactorily shown that the grounds assumed by the defendants in error are not tenable; and that they are not sustained by the authorities cited in support of their positions.

Especially we think it is manifest both from authority and upon principle, that a general jurisdiction of a class of cases, coming under one general head, does not necessarily give or infer a jurisdiction over every particular case, or an unlimited power in relation to each case. See Bank of Hamilton v. Dudley's Lessee, 2 Peters 492, particularly pages 523, 524. That a power, even in a court, to do an act in a particular mode, does not give the power to do the act in any other mode. That when there is a power or jurisdiction, upon the condition of something being first done, the record must show that the thing required was done. That when, by the legislative act giving power over the subject matter, the court is prohibited from rendering judgment until certain pre-requisites have been complied with, the judgment is not merely voidable, but a nullity, unless these pre-requisites, being matters proper for the record, shall, by the record, appear to have been performed: most certainly is this the case, if the statute expressly prohibit any final action or judgment, until after these shall have been placed on the record. We think we have shown that a foreign attachment is not such a proceeding in rem, as comes within the principles laid down by admiralty courts, in relation to parties and notice in such proceedings; that in all ex parte proceedings, where there has been no actual notice to the person interested, he may avail himself collaterally of every advantage which he would have on a writ of error, for error in law; that where a statute requires notice or service of any kind, upon one who is to be thereby made a party to a suit, he is not bound, nor his property divested by any proceedings or judgment, unless such notice or service be shown, or may clearly be inferred from the record; that a jurisdiction or power is not acquired over the rights of a person, who is without the jurisdiction of the court and of the state, merely by the issuing of a writ against his property, without a compliance with any of those essential requisites on which, by the statute, the right and power of the court first to entertain the cause, and afterwards to proceed in it to judgment, depends; and finally, that in all ex parte proceedings, the plaintiff takes judgment at his peril, and purchasers must, at their peril, look to the whole record of the cause.

And if these, or any of these propositions be sound, then we have certainly brought our case within it, and are entitled to a reversal of the judgment below; for we have shown:

1. That by the statute the plaintiff must make and file an affidavit before any writ could issue; and no such affidavit was made or filed. (The defendant's counsel err when they say such an affidavit makes no part of the record.)

2. That this affidavit must state, that the defendant is not resident within the state, as plaintiff believes. No such affidavit was made or alluded to, or any intimation given that such a thing was testified to.

3. That to give notice to the defendant, an advertisement, the substance of which is prescribed in the statute, must have been published in some paper of the state, for three months before the court was vested with any power to give judgment, and no such notice is mentioned in the record; and there is nothing in or out of the record from which it can be inferred.

4. That no judgment could be rendered against the defendant until after three callings at each of three terms of the court, and three defaults entered on the record by the clerk; and that the power to give a valid judgment depended on this as a condition precedent. The callings and the defaults do not appear as required.

5. That no power to sell the land in question, and of course no power to order the sale of the land, existed till after the lapse of twelve months from the return of the attachment; and the order was issued long before the lapse of the twelve months; and there is no evidence that the auditors waited for the expiration of the time, or when, or where, or how they sold.

6. That the auditors were required to give at least fifteen days notice, by advertisement, of the sale; and it is not shown or pretended, either by the deed or otherwise, that such an advertisement was made; and,

7. That the return shows a sale to one man, and a conveyance made to others not in any mode connected with the record.

From the time of the sale to the present day, the defendant in attachment, and those claiming under him, have been in the undisturbed possession of the land, now at this late day brought into dispute; and viewing the decisions of the state courts, and the principles of law as we do, we most cheerfully unite in the sentiment and opinion so happily expressed by the defendant's counsel: 'that the judgment of this court will accord with the course of decisions in the state courts, and will tend not to impair, but to establish confidence; not to excite, but to repress the spirit of speculation in litigation; not to destroy, but to fortify the security of titles.'

Mr Justice BALDWIN delivered the opinion of the Court.