Sheldon v. Wright.

principle on which it affects the jurisdiction | entitled with him to the protection which of the surrogate; and the rule by which the the record of the summary proceedings afsufficiency of the proof of it is to be tested. fords. The surrogate unquestionably acquired jurisdiction of the subject-matter, on the presentation of the petition and account; but before he could grant a valid order of sale, he must also acquire jurisdiction of the person whose rights were to be affected by it, and that is accomplished by the publication of the order. Such publication must, therefore, be made before full juris-dition for litigating the jurisdictional fact; diction is obtained, not because the statute *514] *directs it, for the statutory provision is merely directory, but because it is a great and fundamental principle in the administration of justice, that no man can be divested of his rights until he has had the opportunity of being heard." (Corwin v. Merritt, 3 Barb. 345, and cases there cited.) Publication of this order then is a jurisdictional fact, of the evidence of which the surrogate must necessarily judge. He has judged and decided that the order was published as quired by the statute, and his judgment appears on the record of his proceedings.

The important particular in which the present case differs from the one of Dyckman v. The Mayor, etc., is, that the latter. Dyckman, appeared in the summary proceeding, and litigated on the merits; while in the former, the appellant did not appear. The question then arises, does his omission to appear place him in a more favorable conor in other words, can a party to a judicial proceeding, by lying by and omitting to appear, acquire a right to open the proceeding at any time, and litigate in a collateral action a jurisdictional fact? It will be perceived at once, that if the right depends on appearance or non-appearance, the fact that the party claiming it has been served with personal or statutory notice makes no difference. If there is any difference, it is in favor of him who has been served with perre-sonal notice, for such a notice is, in general, more difficult to prove after a considerable lapse of time, than a notice by publication; and should a proceeding be opened, and an inquiry instituted, whether a party to it had been served with personal notice of it, his prospect of success would always be good, and the better the longer the inquiry is delayed, and the later the day on which it is instituted.

The first inquiry then is, can that judgment be overhauled in this collateral action at the instance of the appellant?

The appellant became of age on the 27th of April, 1827. The order of sale was in the month of December, and the sale took place in the month of March previous, and this suit was commenced early in the year 1847. The respondent paid the fair value of the property, and went into possession of it under his purchase on the 1st of April, 1827, and has continued in it ever since. The injustice of now turning him out is most flagrant and should not be done, unless some inflexible rule of law requires it. While inquiring, however, whether there is any such rule, care must be taken that the hardness of the present case does not lead the inquirer astray.

It cannot be, therefore, that the acknowledgment or denial of the right of a party to a summary or other judicial proceeding, to disregard the record of it, and litigate collaterally a jurisdictional fact depends on his appearance or non-appearance in such proceeding. It rests on a deeper and broader ground, a principle which lies at the foundation of social *order, and which en- [*516 courages peace, and discourages litigation: and that principle is, that when a court or judicial officer, in the exercise of rightful functions, adjudges upon a matter, that judg ment is final between the parties and other persons claiming under them, and is conclusive on the facts which it embraces.

There are some qualifications of this principle, and the only one which it is necessary to notice on the present occasion is this: that if the court or officer who pronounces the judgment has not jurisdiction of the subject and parties, his judgment is not conclusive, and the difficult and important point for decision is whether the judgment of the surrogate is conclusive on the fact of the publication of the order for persons interested to

A similar question arose and was decided at the last term of this court, in the case of Dyckman v. The Mayor, etc., of New York (ante, p. 434). In that case the jurisdictional fact appeared on the record as in this case, and on the trial in the collateral action, proof was offered to show that the jurisdictional fact did not exist. The judge rejected the proof, and this court affirmed the rejection, on the ground that the record of the summary proceedings before the vice chancellor was conclusive. That case was different from this in three particulars; two unimportant and one important in the application of the principle of law. The two unimport-appear. ant particulars are these. In Dyckman v. The Mayor, etc., of New York, the evidence | offered to controvert the jurisdictional fact *515] was rejected, and *in the present case it was received. In that case, the mayor, etc., was a party to the summary proceedings and defendant in the collateral action; in this case the respondent is defendant in the collateral action, and not a party to the summary proceedings; but he is a privy in estate and contract with the administrator, who was a party, and, consequently, equally

In my opinion it is. When Thompson, Ch. J., said, in the case of Borden v. Fitch (15 Johns. 141), that "the want of jurisdiction is a matter that may always be set up against a judgment," and Spencer, Ch. J., quoted his language with approbation in Mills v. Martin (19 Johns, 33); and Sutherland, J., repeated it in Latham v. Edgerton (9 Cow. 229); these distinguished judges doubtless intended only to say that the want of jurisdiction might always be set up against å judgment when it appeared on the

-1 SELDEN. Sheldon v. Wright.

record, or was presented in any other unexceptionable manner.

been said, solely on the conclusiveness of the judgment of the surrogate.

The next and last subject of examination is the appointment of a guardian for the appellant.

One was duly appointed for him; but it is said, the appointment was not made six weeks before the entry of the order of sale, and this is said, because of a slip in the caption of the order, by which the day of the month in which it was made is in blank. Without inquiring whether it was necessary to appoint the guardian six weeks before making the order of sale, and without availing myself of any presumption that the surrogate did his duty seasonably and properly, and looking solely at the record in connection with the accompanying facts and circumstances for information as to the time when the appointment was made, I have no difficulty in arriving at the conclusion that the order to show cause, and the appointment of the guardian, were made on the same day, viz.: the 6th of September, 1846.

In respect to the inaccurate recital of the orders of sale in the deed, the discrepancy appeared and was corrected on the face of the deed. The error is too slight for serious consideration. The judgment should be affirmed.

Ruggles, Ch, J., and Gardiner, Jewett, McCoun, and Page, JJ., concurred.

Mullett, J., did not hear the argument.

In the case of Borden v. Fitch, before referred to, the notice to the party against whom the proceedings in Vermont for a divorce were taken, was by publication. The ground taken by the Supreme Court in deciding against the validity of those proceedings was that the party to be notified was the resident of another State, and never within the jurisdiction of the court. The principle of that decision is opposed by no case to my knowledge, and appears to be safe and wholesome in practice. It is simply this, that when a form or mode of notice to a party of a judicial proceeding is prescribed by statute, and the party resides within the territorial jurisdiction of the State and court, a notice in the mode designated is *517] *sufficient to give the court jurisdiction. In the present case the guardian of the appellant and the appellant himself resided in the county of Cayuga. The guardian was present in court, and appointed to his trust in the progress of the proceedings, and before the order of sale was made. The record of the Surrogate's Court shows, in addition to his judgment, that the order to show cause was published as directed by the statute, and that evidence of its publication was laid before him. We then have a case where a party resided in the State, and within the jurisdiction of the Surrogate's Court, where there is evidence on the record of its proceedings, that the statutory notice was actually given, and the judgment of the surrogate that such notice was full and perfect, and in such a case we are asked in a collateral action to disregard the surrogate's judgment, and open and investigate the jurisdictional fact of publication of the notice. This we cannot do, the surrogate's judgment being, in my opinion, conclusive. (See Dyckman v. The Mayor, etc., of New York, and cases there cited.) I have no doubt that the decision of the surrogate was correct in respect to the time and manner of publishing the order to show cause. It was in accordance with the language of the statute, and there does not appear to be any reason for a different construction. The decision of the Supreme The facts and circumstances upon which Court in Massachusetts, in the case of Bach- the knowledge and belief of the petitioner elor v. Bachelor (1 Mass. 255), is directly in was founded, were not, as in an application point, and appears to have been better con- for an attachment, required to be stated, sidered and to rest on sounder reason than and hence the numerous cases adjudging the adversary opinion of our own court in affidavits insufficient to confer jurisdiction an anonymous case involving the same to issue an attachment are not analogous, question. (1 Wend. 90.) The record of the nor was the surrogate at that time, as he is Surrogate's Court also shows that the guard- now, required to examine the petitioner on ian had full personal notice of the proceed- oath touching the time and place of the ings, certainly more than a fortnight, and death (2 R. S. 2d ed. 17, § 26), but satisfactory as will appear when the next question is ex-proof was all that was required. (1 R. L. amined, six weeks before the order of sale 445, § 6.) was made. But I place my opinion on neither of these two last grounds, as doing so would recognize the right of the appellant to institute, in this action, an inquiry respecting the existence of the jurisdictional *518] fact under consideration, and thereby endanger titles fairly acquired, and encourage litigation. I place it, as has already

Gray, J. (dissenting). The first question here presented is upon the sufficiency of the affidavit of Aaron B. Sheldon to confer jurisdiction upon the surrogate. The petition, which it was the object of the affidavit to verify, is full and sufficient. The alleged defect is in the affidavit. That states "that the material facts stated in the petition are true according to the best knowledge and belief" of the petitioner. The question [*519 being jurisdictional is not whether the surrogate erred as to the sufficiency of the proof to establish the facts stated in the petition, but whether the evidence had a tendency to establish them.

The affidavit is in accordance with the forms in use when it was made except that it omits the word "information." (Bridgen's Surrogate, 115.) The assertion that the material facts were true to his best knowledge and belief very clearly implied that he had knowledge in which he reposed confidence and which induced his belief in the truth of

Sheldon v. Wright.

Sheldon v. Wright.

furnishes no reason for disregarding the obvious intention of the law, by omitting to secure its publication at the next publishing day. It was insisted by the defendant's counsel that the surrogate had adjudged upon the evidence before him, that the order | to show cause was, immediately after it was made, published for four weeks successively, and that the defect in publication, if any, could only be taken advantage of by appeal. The surrogate, it is true, in a preamble to his order for sale, recited such a publication. That, however, is no evidence of the fact.

The original proof of the publication is the only competent evidence. (Striker v. Kelly, 2 Denio, 323; Varick v. Tallman, 2 Barb. 113; Beekman v. Bigham, decided by this court at the last term.)

State. The object of the publication in that case, as in the one now under consideration, was, to give notice to those interested in the proceeding. Notice is the essence of the thing required to be done. (Doughty v. Hope, 3 Denio, 249.) And where power is given a magistrate, on certain con- [*524 ditions, to take away the right which another has enjoyed, the statute directing the course of proceeding is not directory. (Davison v. Gill, 1 East, 64.) The rule upon this subject is well stated by Cowen, J., in Atkins v. Kinnan (20 Wend. 249), that where steps are authorized by statute in derogation of the common law, by which the title of one is to be divested and transferred to another, every requisite having the least semblance of benefit to the former must be comThe proof of publication before the surro- plied with; and the officer or inferior court gate establishes the fact that the order was invested with the power thus to transfer the published, once in each week, for four title of one to another, must pursue with weeks successively, but it has not a tendency precision the course prescribed by law, or to prove that it was published immediately, the act is invalid. (Bloom v. Burdick, 1 or at the earliest publishing day after Hill, 141, and cases there cited; see, also. it was made, but proves the reverse. upon this point, Ford v. Walsworth, 15 But concede that a publication for four Wend. 449; Rea and others v. McEachron, weeks successively, immediately prior to 13 id. 465.) These cases are full to the the day of showing cause would suffice, a point, that an heir shall not be deprived of *523] *publication once in each of four suc- his inheritance by a surrogate's sale, unless cessive weeks, prior to that day, would not all the requirements of the statute regulating then satisfy the statute. It must have been the proceedings are shown to have been published four weeks, and each publication fully complied with. Unless the word "imshould have been in the week succeeding mediately" be regarded as insignificant and the other. The statute in this respect is virtually blotted out, there is an entire abidentical with that requiring the publication sence of evidence that the statute, requiring of notice of an order to the creditors of an an immediate publication of the order, has insolvent (f R. S., 2d ed., 778, § 11), except been complied with literally or according in the one case the publication must be six to its spirit by a publication of the order, weeks, and in the other four. In the case either immediately or at the earliest practiof the insolvent, the order was required to cal day after it was made. This was the be published "six weeks successively." mode pointed out for obtaining jurisdiction Under that statute it has been adjudged over the parties interested in the inheritthat the order should have been published ance. A compliance with it was indispenthe whole of six weeks, that is, during forty-sable to the jurisdiction of the surrogate. It two days. (The People v. The Yates Com. has not been complied with, and the subse Pleas, 1 Wend. 90.) The counsel for the de- quent proceedings, in my judgment, are, fendant referred us to Bachelor v. Bachelor therefore, void. If the statute could have (1 Mass. 256) as bearing upon this point. The been satisfied by a publication for four order in that case was to have been pub- weeks successively, it does not place the delished "three weeks successively," and all fendant in any better condition, inasmuch the court decided was, that a week need not as the publication in one of the two newsintervene between each publication. The papers was several days short of four weeks time fixed for showing cause in that case prior to the day of showing cause. (1 Wend. does not appear from the report, and hence 90, cited above.) it does not appear whether the first publication in that case was three weeks, more or less, before the time for showing cause. We were also referred to Roseboom v. Van Vechten (5 Denio, 414), as authority for the position that an omission to publish the order, as required by law, was error merely, and not a jurisdictional defect. That case did not turn upon the effect of the omission to publish as required by law, but upon the fact that publication was made in accordance with the statute. The learned judge who delivered the opinion of the court in that case, remarked that the omission to publish, as directed by statute, would not render the proceeding void. The remark, however, is not sustained by the adjudged cases upon jurisdictional "defects in this

If these difficulties could all be surmounted, and the surrogate helped to jurisdiction, there is no evidence that he

exercised it on the day appointed in [*525, the order for showing cause. If, therefore, he had jurisdiction, he lost it by omitting to attend at the time and place specified in the order, and hearing the proofs of the ad-. ministrator and other persons interested in the estate, or then designating some other time or place for that purpose. The statute. is explicit in requiring the surrogate to either hear and examine the proofs on the day specified in the order, or on that day to designate a time and place when he will do So. There is an entire absence of evidence that he did either; but after a lapse of nearly two months, and on the 8th of December

Winter v. Drury — Dayharsh v. Enos.

following, his court is opened at Auburn,
where an order for the sale of the premises
in question is made.
Judgment affirmed.

WINTER v. DRURY.

Bill of exchange, not accepted, no lien on funds in hands of drawee, or subsequent assignee of the drawer.

An ordinary bill of exchange, payable generally and absolutely, but not accepted, gives to the holder no lien, either in law or equity, upon the funds of the drawer in the hands of the drawee, or an assignee of the drawer, by a subsequent assignment for the benefit of creditors.

CLARKE, a

manufacturer of carpets,

which he usually shipped to Furness, Brinley & Co., of Philadelphia, for sale on his account, having a balance to his credit of $250, drew a bill of exchange upon

Clarke and then remaining with the draw ees, the drawer had the right to dispose of it, at his pleasure. If intermediate the time of procuring the bill to be discounted, and its presentation to Furness, Brinley & Co.. the drawer himself had obtained the $250 from his correspondents, the plaintiff could not have maintained an action against Clarke for the sum thus received. It was not the money of the holder, but of the drawer. (11 Paige, 612.) The equities against the defendant, the assignee of Clarke for the benefit of creditors, who obtained [*531 the money in good faith, and without notice of the draft, are not stronger, certainly, than against the assignor. I think the decision of the Superior Court was right, and that the judgment should be affirmed. Judgment affirmed.

DAYHARSH v. ENOS.

waiver of obiections.

Where parties proceed to the trial by a jury in the County Court of an action which the Code omitted to give the County Court authority to try by jury, with out objection to the trial of the cause by the jury, they must be regarded as waiving the irregularity.

Furness, Brinley & Co., for $400, payable Trial by jury in County Court.- Implied at sight, and obtained the amount of the draft, less the usual exchange, from the plaintiff, an exchange broker in New York. On the same day Clarke assigned all his property to the defendant, Drury, in trust for the benefit of his creditors, and immediately sailed for England. The draft was presented to Furness, Brinley & Co., and payment refused by them, who immediately transmitted to Clarke a check for the balance of $250 due to him from them which was received by the defendant and placed

The County Court having jurisdiction of an action pending therein in which an issue of fact has been joined, in the absence of any specific directions for summoning or obtaining the attendance of a jury, has the power to order a jury to be summoned and drawn for the trial of the cause.-Per McCOUN, J.

by him to the credit of the assigned estate. THE facts appear in the opinions.
and applied to the payment of the debts of
the assignor, before receiving notice of the
plaintiff's claim. This suit was brought to
recover the $250 received by the defendant
from Furness, Brinley & Co. The bill was
dismissed with costs by the Superior Court
of the city of New York. The plaintiff ap-
pealed.

Thomas Barlow, for appellant.

*John G. Stower, for respondent. [*533

George F. Comstock, for appellant. Murray Hoffman, for respondent. *530] *Gardiner, J. The draft in question was an ordinary bill of exchange, payable generally and absolutely. In Harris v. Clark (3 Comst. 118), it was said, that a bill of exchange does not of itself give to the holder, either in law or equity, a lien upon the funds of the creditor in the hands of the debtor until an acceptance by the latter. And in the still stronger case (3 Comst. 243), of a draft drawn simultaneously with a consignment of cotton to a house in Scotland, the same doctrine was re-affirmed by this court. There is nothing in the case before us, to distinguish it in principle from those cited. The bill was not in terms drawn upon a particular fund, nor was the money of Clarke in the hands of the drawees alluded to, even in conversation, when the bill was discounted by the plaintiff. If the holder, by the receipt of the bill of exchange for value, acquired neither at law, or in equity, a lien upon the balance due to

the County Court of the county of Madison, Paige, J. This action was commenced in and an issue of fact was joined therein before the adoption of the Code. The Legislature, in the adoption of the Code, through inadvertence, omitted to give the County Court authority to try causes in which issues of fact had been previously joined, by jury. (Code of 1848, §§ 32, 35, 36, 37, 38.) But by the provisions of the Code (§ 32) the court retained jurisdiction of such causes, and of the parties. This cause was tried in the County Court by jury in September, 1848. The defendant appeared on the trial and interposed a defense to the suit on the merits, and omitted to make any objection on the trial to the trial of the cause by the jury, or by the court and jury. I think the defendant, having failed to take his objection at the proper time, must be regarded as waiving the irregularity of the trial by the court and jury, and acquiescing in consenting to such trial. This is not a jurisdictional question. The court *had [*534 jurisdiction both of the cause and of the parties, but by a mistake in adoption of the Code, it had no power to try the cause by a jury. We must regard the trial as a trial by the consent of parties. A party may silently acquiesce in, or ex

the