sufficient also to empower the court to pass upon the question of the custody and control of the children of the marriage, if they were then within its jurisdiction. But a decree on this subject could only be absolutely binding on the parties while the children remained within the jurisdiction; if they acquire a domicile in another State or country, the judicial tribunals of that State or country would have authority to determine the question of their guardianship there.1

* But in divorce cases, no more than in any other, can [* 406] the court make a decree for the payment of money by a defendant not served with process, and not appearing in the case, which shall be binding upon him personally. It must follow, in such a case, that the wife, when complainant, cannot obtain a valid decree for alimony, nor a valid judgment for costs. If the defendant had property within the State, it would be competent to provide by law for the seizure and appropriation of such property, under the decree of the court, to the use of the complainant; but the legal tribunals elsewhere would not recognize a decree for alimony or for costs not based on personal service or appearance. The remedy of the complainant must generally, in these cases, be confined to a dissolution of the marriage, with the incidental benefits springing therefrom, and to an order for the custody of the children, if within the State.2

When the question is raised whether the proceedings of a court may not be void for want of jurisdiction, it will sometimes be

brought home to the defendant or not. And see heirs of Holman v. Bank of Norfolk, 12 Ala. 369.

'This must be so on general principles, as the appointment of guardian for minors is of local force only. See Monell v. Dickey, 1 Johns. Ch. 156; Woodworth v. Spring, 4 Allen, 321; Potter v. Hiscox, 30 Conn. 508 ; Kraft v. Wickey, 4 G. & J. 322. The case of Townsend v. Kendall, 4 Minn. 412, appears to be contra, but some reliance is placed by the court on the statute of the State which allows the foreign appointment to be recognized for the purposes of a sale of the real estate of a ward.

2 See Jackson v. Jackson, 1 Johns. 424; Harding v. Alden, 9 Greenl. 140; Holmes v. Holmes, 4 Barb. 295; Crane v. Meginnis, 1 Gill & J. 463; Maguire v. Maguire, 7 Dana, 181; Townsend v. Griffin, 4 Harr. 440. In Beard v. Beard, 21 Ind. 321, Perkins, J., after a learned and somewhat elaborate examination of the subject, expresses the opinion that the State may permit a personal judgment for alimony in the case of a resident defendant, on service by publication only, though he conceded that there would be no such power in the case of nonresidents.

important to note the grade of the court and the extent of its authority. Some courts are of general jurisdiction, by which is meant that their authority extends to a great variety of matters; while others are only of special and limited jurisdiction, by which it is understood that they have authority extending only to certain specified cases.. The want of jurisdiction is equally fatal in the proceedings of each; but different rules prevail in showing it. It is not to be assumed that a court of general jurisdiction has in any case proceeded to adjudge upon matters over which it had no authority; and its jurisdiction is to be presumed, whether there are recitals in its records to show it or not. On the other hand, no such intendment is made in favor of the judgment of a court of limited jurisdiction, but the recitals contained in the minutes of proceedings must be sufficient to show that the case was one which the law permitted the court to take cognizance of, and that the parties were subjected to its jurisdiction by proper process.1

[* 407]

There is also another difference between these two classes of tribunals in this, that the jurisdiction of the one may be disproved under circumstances where it would not be allowed in the case of the other. A record is not commonly suf fered to be contradicted by parol evidence; but wherever a fact showing want of jurisdiction in a court of general jurisdiction can be proved without contradicting its recitals, it is allowable to do so, and thus defeat its effect. But in the case of a court of special and limited authority, it is permitted to go still further, and to show a want of jurisdiction even in opposition to the recitals contained in the record. This we conceive to be the general rule, though

1 See Dakin v. Hudson, 6 Cow. 221; Cleveland v. Rogers, 6 Wend. 438; People v. Koeber, 7 Hill, 39; Sheldon v. Wright, 1 Seld. 511; Clark v. Holmes, 1 Doug. (Mich.) 390; Cooper v. Sunderland, 3 Iowa, 114; Wall v. Trumbull, 16 Mich. 228; Denning v. Corwin, 11 Wend. 647; Bridge v. Ford, 6 Mass. 641; Smith v. Rice, 11 Mass. 511; Barrett v. Crane, 16 Vt. 246; Teft v. Griffin, 5 Geo. 185; Jennings v. Stafford, 1 Ired. 404; Hershaw v. Taylor, 3 Jones, 513; Perrine v. Farr, 2 Zab. 356; State v. Metzger, 26 Mo. 65.

See this subject considered at some length in Wilcox v. Kassick, 2 Mich. 165. And see Rape v. Heaton, 9 Wis. 329; Bimelar v. Dawson, 4 Scam. 536; Webster v. Reid, 11 How. 437.

3 Sheldon v. Wright, 5 N. Y. 497; Dyckman v. Mayor, &c., of N. Y., 5 N. Y. 434; Clark v. Holmes, 1 Doug. (Mich.) 390; Cooper v. Sunderland, 3 Iowa, 114; Sears v. Terry, 26 Conn. 273; Brown v. Foster, 6 R. I. 564; Fawcett v. Fowliss, 1 Man. & R. 102. But see Facey v. Fuller, 13 Mich. 527, where it was

there are apparent exceptions of those cases where the jurisdiction may be said to depend upon the existence of a certain state of facts, which must be passed upon by the courts themselves, and in respect to which the decision of the court once rendered, if there was any evidence whatever on which to base it, must be held final and conclusive in all collateral inquiries, notwithstanding it may have erred in its conclusions.1

held that the entry in the docket of a justice that the parties appeared and proceeded to trial was conclusive. And see Selin v. Snyder, 7 S. & R. 72.

1 Britain v. Kinnard, 1 B. & B. 432. Conviction under the Bumboat Act. The record was fair on its face, but it was insisted that the vessel in question was not a "boat" within the intent of the act. Dallas, Ch. J.: "The general principle applicable to cases of this description is perfectly clear: it is established by all the ancient, and recognized by all the modern decisions; and the principle is, that a conviction by a magistrate, who has jurisdiction over the subject-matter, is, if no defects appear on the face of it, conclusive evidence of the facts stated in it. Such being the principle, what are the facts of the present case? If the subject-matter in the present case were a boat, it is agreed that the boat would be forfeited; and the conviction stated it to be a boat. But it is said that, in order to give the magistrate jurisdiction, the subject-matter of his conviction must be a boat; and that it is competent to the party to impeach the conviction by showing that it was not a boat. I agree, that if he had not jurisdiction, the conviction signifies nothing. Had he then jurisdiction in this case? By the act of Parliament he is empowered to search for and seize gunpowder in any boat on the river Thames. Now, allowing, for the sake of argument, that boat' is a word of technical meaning, and somewhat different from a vessel, still, it was a matter of fact to be made out before the magistrate, and on which he was to draw his own conclusion. But it is said that a jurisdiction limited as to person, place, and subject-matter is stinted in its nature, and cannot be lawfully exceeded. I agree: but upon the inquiry before the magistrate, does not the person form a question to be decided upon the evidence? Does not the place, does not the subject-matter, form such a question? The possession of a boat, therefore, with gunpowder on board, is part of the offence charged; and how could the magistrate decide, but by examining evidence in proof of what was alleged? The magistrate, it is urged, could not give himself jurisdiction by finding that to be a fact which did not exist. But he is bound to inquire as to the fact, and when he has inquired his conviction is conclusive of it. The magistrates have inquired in the present instance, and they find the subject of conviction to be a boat. Much has been said about the danger of magistrates giving themselves jurisdiction; and extreme cases have been put, as of a magistrate seizing a ship of seventy-four guns, and calling it a boat. Suppose such a thing done, the conviction is still conclusive, and we cannot look out of it. It is urged that the party is without remedy; and so he is, without civil remedy, in this and many other cases; his remedy is by proceeding criminally; and if the decision were so gross as to call a ship of seventy-four guns a boat, it would be good ground for a criminal pro

[* 408]

When it is once made to appear that a court has jurisdiction both of the subject-matter and of the parties, the [* 409] judgment which it pronounces must be held conclusive and binding upon the parties thereto and their privies, notwithstanding the court may have proceeded irregularly, or erred in its application of the law to the case before it. It is a general rule that irregularities in the course of judicial proceedings do not render them void. An irregularity may be defined as the failure to observe that particular course of proceeding which, conformably with the practice of the court, ought to have been observed in the case; and if a party claims to be aggrieved by this, he must apply

ceeding. Formerly the rule was to intend every thing against a stinted jurisdiction that is not the rule now; and nothing is to be intended but what is fair and reasonable, and it is reasonable to intend that magistrates will do what is right." Richardson, J., in the same case, states the real point very clearly: "Whether the vessel in question were a boat or no was a fact on which the magistrate was to decide; and the fallacy lies in assuming that the fact which the magistrate has to decide is that which constitutes his jurisdiction. If a fact decided as this has been might be questioned in a civil suit, the magistrate would never be safe in his jurisdiction. Suppose the case for a conviction under the game laws of having partridges in possession: could the magistrate, in an action of trespass, be called on to show that the bird in question was really a partridge? and yet it might as well be urged, in that case, that the magistrate had no jurisdiction unless the bird were a partridge, as it may be urged in the present case that he has none unless the machine be a boat. So in the case of a conviction for keeping dogs for the destruction of game without being duly qualified to do so: after the conviction had found that the offender kept a dog of that description, could he, in a civil action, be allowed to dispute the truth of the conviction? In a question like the present we are not to look at the inconvenience, but at the law; but surely if the magistrate acts bona fide, and comes to his conclusion as to matters of fact according to the best of his judgment, it would be highly unjust if he were to have to defend himself in a civil action; and the more so, as he might have been compelled by a mandamus to proceed on the investigation. Upon the general principle, therefore, that where the magistrate has jurisdiction his conviction is conclusive evidence of the facts stated in it, I think this rule must be discharged." See also Mather v. Hodd, 8 Johns. 44; Mackaboy v. Commonwealth, 2 Virg. Cas. 268; Ex parte Kellogg, 6 Vt. 509; State v. Scott, 1 Bailey, 294; Facey v. Fuller, 13 Mich. 527; Wall v. Trumbull, 16 Mich. 228; Sheldon v. Wright, 5 N. Y. 512; Freeman on Judgments, § 523, and cases cited. 1 Ex parte Kellogg, 6 Vt. 509; Edgerton v. Hart, 8 Vt. 208; Carter v. Walker, 2 Ohio, N. s. 339; Freeman on Judgments, § 135.

2 66

The doing or not doing that in the conduct of a suit at law, which, conformably to the practice of the court, ought or ought not to be done." Bouv. Law Dic. See Dick v. McLaurin, 63 N. C. 185.

to the court in which the suit is pending to set aside the proceedings, or to give him such other redress as he thinks himself entitled to; or he must take steps to have the judgment reversed by removing the case for review to an appellate court, if any such there be. Wherever the question of the validity of the proceedings arises in any collateral suit, he will be held bound by them to the same extent as if in all respects the court had proceeded according to law. An irregularity cannot be taken advantage of collaterally ; that is to say, in any other suit than that in which the irregularity occurs, or on appeal or process in error therefrom. And even in the same proceeding an irregularity may be waived, and will commonly be held to be waived if the party entitled to complain of it shall take any subsequent step in the case inconsistent with an intent on his part to take advantage of it.1

We have thus briefly indicated the cases in which judicial action may be treated as void because not in accordance with the

* law of the land. The design of the present work does [*410] not permit an enlarged discussion of the topics which suggest themselves in this connection, and which, however interesting and important, do not specially pertain to the subject of constitutional law.

But a party in any case has a right to demand that the judg ment of the court be given upon his suit, and he cannot be bound by a delegated exercise of judicial power, whether the delegation be by the courts or by legislative act devolving judicial duties on ministerial officers.2 Proceedings in any such case would be void; but they must be carefully distinguished from those cases in which the court has itself acted, though irregularly. Even the denial of

1 Robinson v. West, 1 Sandf. 19; Malone v. Clark, 2 Hill, 657; Wood v. Randall, 5 Hill, 285; Baker v. Kerr, 13 Iowa, 384; Loomis v. Wadhams, 8 Gray, 557; Warren v. Glynn, 37 N. H. 340. A strong instance of waiver is where, on appeal from a court having no jurisdiction of the subject-matter to a court having general jurisdiction, the parties going to trial without objection are held bound by the judgment. Randolph Co. v. Ralls, 18 Ill. 29; Wells v. Scott, 4 Mich. 347; Tower v. Lamb, 6 Mich. 362. In Hoffman v. Locke, 19 Penn. St. 57, objection was taken on constitutional grounds to a statute which allowed judgment to be entered up for the plaintiff in certain cases, if the defendant failed to make and file an affidavit of merits; but the court sustained it.

2 Hall v. Marks, 34 Ill. 363; Chandler v. Nash, 5 Mich. 409. For the distinction between judicial and ministerial acts, see Flournoy v. Jeffersonville, 17 Ind. 173.