Id.; People v. Green, 58 N. Y. 295; Story v. N. Y. El. R. R. Co., 3 Abb. N. C. 478. It is difficult to see why this principle does not govern, in the construction of clause (c), unless a fatal evil potency exists in the difference between "other" and "further." If it so governs, then L. 1880, ch. 480, is valid, unless inconsistent with the local character of the county courts. That it is so inconsistent is, to the minds of some people, not clear.

Is it impossible to contend that when (A. D. 1869) the people gave the Legislature authority to "alter" the then existing jurisdiction of the county courts, and, at the same time, doubled the pecuniary limitation in actions for damages, they intended to fix such a limit, in such cases, which the Legislature should have no power to diminish, while, by clause (c) they conferred power to increase the pecuniary limitation, in their discretion, generally.

Those who strictly construe clause (c) have to explain the consistency of the Constitution, in limiting money actions to one thousand dollars, while allowing replevin for a chattel of any value, or foreclosure of a mortgage for any amount.

If the people, in clause (c), intended only to confer authority to bestow "new powers" and jurisdiction upon "new subjects," it would be instructive, if, keeping in view the principle of the Landers case, and the extensive enumeration of powers and subjects possessed and controlled by the county courts, on Jan. 1, 1870 (old Code, § 30), one would indicate the powers and subjects intended to be added.

To construe clause (c) as justifying L. 1880, ch. 480, would be in the direction of a beneficial reform; relieving the over-burdened Supreme Court calendars and clearing away occasions for the exercise of [extrajudicial energies on the part of county judges.

NEW YORK, Sept. 8, 1880.

Editor of the Albany Law Journal:

T. F. C. D.

The letter of brother Moak, in your last issue, was sound in the conclusion that the Legislature exceeded their powers in attempting to confer upon county courts a jurisdiction superior to that authorized by the Constitution.

The "blunder" is only of the harmless kind so likely to be committed by legislators unfamiliar with the organic law.

Chapter 245, Laws 1880, passed May 10, and which brother Moak says expressly repeals chapter 467, Laws 1870, was not to take effect until Sept. 1, 1880. The act of May 28, 1880 (ch. 245, Laws 1880), which brother Moak construes as amending a repealed statute, merely injects about three months of unconstitutionality into what was left of chapter 467, Laws 1870.

Yours truly,

NEW YORK, Sept. 4, 1880.

THE

NOTES.

EDWARD GEBHARD.

HE current number of the Journal du Droit International Privé devotes nineteen pages to abstracts of decisions of the courts of the United States, nearly all reproduced from and credited to this JOURNAL. It also contains leading articles on the Competency of French courts to take jurisdiction of suits between foreigners, by M. Féraud-Giraud; on Private International Law in Italian jurisprudence, by Prof. Esperson; on the Influence of the Religion of the married on causes of divorce in Austria, by Prof. Lyon-Caen; and other valuable matter. The London Law Times now has a department devoted to abstracts of recent American decisions. The August number

of the American Law Register has a leading article on

the Law of Slander as applicable to Physicians, by W. H. Whitaker; the case of Finch v. Great Western Ry. Co., concerning the restriction of use on an express grant of a private way, with a note by Edmund H. Bennett; and the case of Kincaid v. Hardin County, concerning a county's liability for negligence in the construction and keeping of a court-house, with a note by M. D. Ewell. In connection with Mr. Whitaker's article, we would draw attention to the recent case of Rodgers v. Kline, 56 Miss. 808; S. C., 31 Am. Rep. 389, where it was held that to charge a physician with "malpractice " in a particular case is not conclusively libellous in itself, if untrue, but it is for the jury to determine whether the word was used in a general and actionable sense. We are glad to learn, from the publisher's advertisement, that the (monthly) Register has facilities for publishing the most important decisions "long before they can be elsewhere reported."

The United States Supreme Court has adopted the following rule: "All records and arguments printed

for the use of the court must be in such form and size that they can be conveniently cut and bound so as to make an ordinary octavo volume. After the first day

of October, 1880, the clerk will not receive or file records or arguments intended for distribution to the judges that do not conform to the requirements of this rule." The requisite size is 9x5 inches.

"It is evident that the Albany Law Journal was not consulted in the organization of the American Bar Association. Its notes upon the meetings of the Association are written in an ill-natured, mocking spirit, which is discourteous to the gentlemen of the association and unworthy of the dignity of the Albany Law Journal."

So says the New Jersey Law Journal. On the same principle it is evident that the New Jersey Law Journal was consulted in the organization of the American Bar Association. In truth, New Jersey has had so much honor this year from the Association, that we fear the learned editor is not exactly in an impartial frame of mind. He says: "It is gratifying that New Jersey was called upon to furnish the second annual address of the American Bar Association, and that the occasion was so happily used to perpetuate the name and eminent services of one of our early lawyers and statesmen, William Patterson, honored and remembered here, but not elsewhere, according to his deserts." On the other hand, we have never desired, sought nor received honors from the Association, and regard ourselves as perfectly unbiased, and in a position to tell the exact truth about the new institution. We intend so to remain. So far from being ill-natured, or intending to be discourteous to its members, many of them are our friends, and we would gladly see it prosper. It is amusing to note that our contemporary regards our truth-telling about the Association as unworthy of our dignity. Unpleasant truths are frequently regarded by some people as undignified. We have dealt with the Association just as we have with that of our own State. We are not attending a bar meeting upon the death of a lawyer, and therefore we shall be understood literally and not euphemistically. We have said its membership is not increasing; that its recent meeting was not more largely attended than that of last year; that its proceedings were not so interesting; that the annual address was upon a trite subject; that many of the committees do not perform their duty; that there is an apparent homage to great names rather than to humble, useful, working material; in short, that the Association "is not a great success." Is not this the exact truth? We will "put ourselves upon the country" upon this, and we will not even challenge the members of the association as jurors.

A

The Albany Law Journal.

ALBANY, SEPTEMBER 25, 1880.

CURRENT TOPICS.

GREAT moralist has arisen in Danville, Va., in the person of a young man of the name of Dejarnette. This young man had a sister living out at domestic service, who was seduced under promise of

marriage and abandoned, but who refused to divulge the name of her betrayer, and was at last driven by distress and desperation to a house of ill-fame. After a week spent in this life, she wrote to her brother, a telegraph operator in a neighboring town, expressing her penitence, asking forgiveness, and beseeching him to take her away from that place of shame. This was the first intelligence the brother had received of the desperate act of his unfortunate sister, and he at once went to her, and with six pistol shots deliberately killed her. He publicly confessed the act, avowing that he performed it to make an example of her sin and shame. A jury have just convicted him of murder in the first degree, with a recommendation to mercy. We hope the authorities will hang this moralist on a particularly high gallows. There is altogether too much of this lofty emotional virtue in society, which seeks to right one crime by committing another, and a worse one. Such was the severe virtue of the boy Walworth, who killed his father for writing offensive letters to the wife and mother, and a jury did violence to justice by acquitting him on the ground that his emotions were apt to be too much for him. Then there was that other young Virginia gentleman, who was filled with emotion against a shoemaker who praised the pretty feet of his betrothed, and slew him. He got off with two years' imprisonment. The Virginia jury in the present case have kept their oaths, but have shown great weakness in recommending to mercy one of the most cruel, merciless, unnatural, and wicked of his kind. Christ would have said, "neither do I condemn thee; go and sin no more;" but this hard-hearted brother coolly kills his erring and penitent sister as an "example." If the young man had simply killed himself from a sense of his shame, society would have condoned his fault. The jury would probably have acquitted him if he had found out and killed her seducer. This would have been bad enough. But the line must be drawn somewhere, and we say, draw it right here, and hang the careful Spartan brother. Otherwise society will grow so virtuously refined, emotional and hysterical, that every man will be administering his own code of morals, at the mouth of a six-shooter, upon the persons of his relatives who offend his sense of right, finer and holier than Christ's.

The eighth annual Conference of the Association for the Reform and Codification of the Law of Nations opened on the 24th ult., at the Federal Palace, VOL. 22.-No. 13.

Berne. The following gentlemen were appointed officers of the Conference: President of the Conference, Dr. F. Sieveking, President of the Hanseatic High Court of Appeal, Hamburg; Vice-Presidents of the Conference, E. J. B. Cremers, late Minister of Foreign Affairs, Member of the Second Chamber of the Netherlands; F. R. Condert, Counsellor-atLaw, New York; Theodore Engles, President of the Board of Underwriters, Antwerp; Daniel de Folleville, Professor of Law, Douai; Dr. Ch. G. Koenig, Professer of Law, Berne, and President of the Swiss Society of Jurists; Sir Travers Twiss, Q. C.; G. E.

Wendt, D. C. L.; and General J. Grant Wilson, of

New York. The president, Dr. Sieveking, delivered the opening address. Sir Travers Twiss read a paper "On Consular Jurisdiction in the Levant, and the Status of Foreigners in the Ottoman Courts of Law." One of the members of the Japanese embassy, Mr. Irige, a member of the English bar, read a paper on “Consular Jurisdiction in Japan.” The latter was especially interesting. Papers were also read on Bankruptcy, by Dr. Fred. Tomkins, of London; on the International Protection of Sea Cables, by Sir Travers Twiss; on the International Law of Commandite and of Limited Partnership, by Mr. H. D. Jencken; on Domicile as Regulating tram; on the International Bearing of Marriage Testamentary and Matrimonial Rights, by Dr. TrisLaws, by Dr. J. G. Alexander. The latter recommended the abolition of all restraints on marriage not absolutely necessary. Important communications were read from the American committee on the subject of International Copyright, and discussion ensued. The Conference approved resolutions respecting international regulation of the law of securities payable to bearer. Notice was taken of the death of Dr. J. Thompson, of the United States. Ninety-eight new members have joined since the last meeting. The attendance was smaller than

usual.

Our last Legislature passed a bill providing for the payment by the city of New York of certain money to the widow of the late Judge Stemmler in lieu of the salary of which he had been deprived by the action of the courts in delaying the decision on his contested election case. Gov. Cornell, it is said, signed the bill, and then, without proceeding further, changed his mind and erased his signature. On behalf of Mrs. Stemmler, it is claimed that the governor's signature was final, and that he could not reconsider the case. Proceedings were therefore taken for a writ of mandamus requiring Comptroller Kelly to pay the amount of the appropriation. Thereupon Judge Beach issued an order for the examination of the governor and his private secretary to ascertain the facts. This order Gov. Cornell refuses to obey, on the ground that the proper places of inquiry for the ascertainment of the enactment of laws of the State are the officially published volumes of the State and the office of the secretary of State, and that any inquiry as to the details or particulars of the discharge of the governor's constitutional prerogatives in the executive chamber is

unconstitutional, and an unwarrantable interference with these prerogatives, and an implied censure upon the integrity and propriety of official action. He says: "There is but one tribunal authorized to make such inquiry, and the governor is unwilling to be questioned by any other authority." A bill to become a law not only needs the governor's signature, but his indorsement of approval, and delivery to the secretary of State. The statute law is as follows: "Every bill thus passed and certified must, before it becomes a law, be presented to the governor; if he approves he must sign it; and he shall indorse thereon a certificate of his approbation, and deliver the same so indorsed to the secretary of State, who shall certify and indorse upon every such bill the day, month and year when the same so became a law." All this before it "becomes a law." It is true the Constitution simply requires the signing, but the Legislature have added the other requisites, and they seem just as essential parts of the law as the signing. If this is a correct view, there can be no question that the governor's action is justifiable. Even if it is not a correct view, we do not suppose the governor is compellable as a witness in respect to his official action. This was held in the late case of Hartranft's Appeal, 85 Penn. St. 433; S. C., 27 Am. Rep. 667. The governor in refusing to obey the order, states that the bill was never "approved" by him.

The Legislature of Illinois must be an exceedingly careful and competent body. The Constitution of that State enjoins upon the judges the duty of pointing out every year to the governor such defects and omissions in the laws as they may find to exist, and of suggesting appropriate forms of bills to cure them. Only one report has been made under this provision, and that was in 1877. One of the judges recommends a modification of the divorce law, limiting the right of divorce to the single case of adultery. He says: "It is the testimony of careful observers that marital and family duties and rights are the more carefully observed, where divorces are not allowed. If the law did not allow a divorce, a vinculo matrimonii, then would people be more careful about contracting marriages. Hasty marriages would not take place. The laws of the country should not allow a divorce for any cause. Originally divorces were only allowed for the hardness of men's hearts.' It is not expected that this view, however sound, can prevail. But very many who have carefully considered the subject, do hold that divorce, a vinculo matrimonii, should only be granted for adultery." Possibly the "careful observers" above mentioned have never extended their travels so far as France. It is difficult, at all events, to understand why the denial of divorce should tend to restrain men from committing adultery. One would suppose that in very many cases the tendency would be precisely the contrary.

Speaking of the Employers' Liability Bill, the London Law Journal says: "With reference to the spirit of the bill it is somewhat singular to find an

So

American writer so little in harmony with the ideas of the working men's advocates as to pronounce this proposed change in the law 'so impolitic, unjust, and unequal as to verge on folly.' This is the language of the ALBANY LAW JOURNAL." When we wrote those words we had not the text of the bill, and supposed the changes much more sweeping than they are. The bill does not embrace menial or domestic servants. In regard to defective machinery and appliances, and in regard to the negligence of one delegated with the employer's authority, the bill establishes no new liability. probably, in regard to obedience to rules, by-laws, or instructions of the employer, if we rightly guess at the meaning of the provision. The new liability seems to be in the following cases: first, when the injury arises from the negligence of a superintendent; second, when it arises from the negligence of a superior servant whose orders the injured one was bound to obey; third, when it arises from the negligence of any servant having charge or control of any signal, points, locomotive engine, or railway train. Now considering this new doctrine with respect to natural persons (and not to corporations, as to whom the common law makes some exceptions because they can only act by agents), we do not feel inclined to retract our former expressions concerning the impolicy of the bill. Even as to corporations we should scarcely modify them. For example, suppose it is a rule of a railway company that a certain train shall leave a certain station at a certain hour. The conductor is informed by telegraph from headquarters that an extra train is in the way, and he must delay ten minutes. He disregards this, directs the leaving as usual, a collision ensues in consequence, and the engineer is killed. Under the bill, the company would be liable, for the fatality occurred in consequence of the act of the superior

servant to whose order the inferior was bound to

conform. Why should this be so? The master is not negligent. He exercised the precaution of a special direction, and the conductor's disregard was an act which he could not foresee nor provide against. Why should the engineer not take his chances, as against the employer? Or let us suppose the conductor told the engineer to delay ten minutes, and he delayed only eight, and in consequence the fireman was killed. Under the bill, the company would be liable, because the fatality occurred in consequence of the negligent act of one in charge of a locomotive engine. And yet, not conductor who was set over the engineer. Why only had the employer been diligent, but so had the should the employer be held responsible? Why should the servant, who voluntarily incurs the risk and is paid for running it, be put on the footing of the public? The Legislature acknowledges the hardship of the new theory by limiting the recovery in any case to three years' wages. If the theory is right, why fix any arbitrary limit? The truth is, it is an unwise and idle tampering with the law out of tenderness for the working men and forgetfulness of justice to employers. We say idle, because the new provisions will be defeated by special contract.

IN

NOTES OF CASES.

N McMahon v. Henning, U. S. Circuit Court, Kansas, July 30, 1880, 3 Fed. Rep. 353, it was held that a master is liable for negligence in permitting the use of defective machinery, whereby his servant was injured, although the negligence of a fellowservant contributed to the injury. The court say: "The common-law rule has never, to my knowledge, been carried so far as to permit the master to exempt himself from the consequence of his own personal negligence by showing that one of his servants (not the party injured) has been likewise negligent." "The true doctrine of the common law is that the master is liable to his servants, as much as to any one else, for the consequence of his own negligence; and it is no defense for him to show that the negligence of a fellow-servant (for which he was not responsible) also contributed to bringing about the injury. Shearman & Redfield on Negligence, § 89; Fifield v. Northern R. Co., 42 N. H. 225; Hough v. Railway Co., 100 U. S. 213; Cayzer v. Taylor, 10 Gray, 274; Paulmier v. Erie R. Co., 5 Vroom, 151, 157. In Cayzer v. Taylor the Supreme Court of Massachusetts state the rule as follows: 'But we are not prepared to say that if one uses a dangerous instrumentality, without the safeguards which science and experience suggest or the positive rules of law require, he is not responsible for an injury resulting from such use because the negligence of one of his servants may have contributed to the result, or because a possible vigilance of the servant might have prevented the injury.' That was a case in which a servant sued his master for injuries from the collapse of a steam boiler used in the defendant's manufactory, in which the plaintiff was employed." This is consistent with Booth v. Boston & Albany Railroad Co., 73 N. Y. 38; S. C., 29 Am. Rep. 97, where the injury was caused by the negligence of the company in not furnishing a sufficient number of brakemen on a train, and the negligence of the engineer in running the train; and with Stetter v. Chicago & N. W. R. Co., 46 Wis. 497; S. C., 29 Am. Rep. 102, note, where the injury was caused by the subsidence of an unsafe track, and the negligence of the conductor in disregarding his instructions to run slowly over it.

In Kuhn v. Jewett, Receiver, 32 N. J. Eq. 647, a railway train laden with petroleum was wrecked, owing to the defendant's negligence, and the petroleum escaping, took fire, ran into a brook, and was floated against and ignited the plaintiff's barn some distance away. It was held by the vice-chancellor that the defendant was liable. The court said: "There can be no doubt, I think, if in this instance the flames of the burning oil had been carried by the wind directly from the point of collision to the petitioner's building, and it had thus been set on fire and destroyed, that the injury would in judgment of law have been the natural and direct or

proximate result of the collision. So, too, if the burning oil had descended from the point where it

was first ignited, by the mere force of its own gravity, upon the petitioner's building and destroyed it, the connection between cause and effect would have been so close and direct that the defendant's

liability could not have been successfully questioned. So also if the fire had been carried from the place of its origin to the petitioner's building by a train of combustible matter deposited in its track by the operation of the laws of nature, the petitioner's injury, I think it could not have been doubted, would have been esteemed the direct result of the defendant's negligence." Citing Delaware, etc., R. R. Co. v. Salmon, 10 Vroom, 308; S. C., 23 Am. Rep. 214. "These principles must rule this case.

Their application is obvious.

For although water is almost universally used as a means to extinguish fire, and it seems at first blush absurd to say that it can be used for the purpose of extending it, yet it is true, as a matter of fact, that as an agency for the transmission of burning oil, it is just as certain and effectual in its operation as the wind in carrying flame, or a spark, or combustible matter in spreading a fire. In keeping up the continuity between cause and effect, it may be just as certain and effectual in its operation as any other material force." The court noticed and disapproved Hoag v. Lake Shore & Michigan S. R. Co., 85 Penn. St. 293; S. C., 27 Am. Rep. 653, a case exactly like the principal case, and also the Ryan case, 35 N. Y. 210, and the Kerr case, 62 Penn. St. 353; S. C., 1 Am. Rep. 431, as "standing opposed to both precedent and principle."

The case of English v. English, Court of Errors and Appeals, 32 N. J. Eq. 738, should be read in connection with Commonwealth ex rel. Drummond v. Ashton, ante, 183, and McKim v. McKim, 12 R. I. 462; 21 Alb. L. J. 343, as affording considerable countenance to seceding wives and mothers. The wife left her husband in 1875, on account of his "abuse of marital rights," taking with her their two children, a boy aged 6, and a girl aged 4 years. She petitioned for a divorce, but this was denied on his promise of amendment. He entreated her to return to him, but she refused. She was able and willing to maintain and educate the children, and they preferred to remain with her. The father was sober, moral, industrious, and of pecuniary ability. The boy was of a delicate constitution. Held, that the wife's acts did not amount to such "misconduct as to deprive her of the custody of the children for the present." The court said: "From every point of view, the cause has given to every member of this court an unusual degree of anxiety and concern in its decision." The decision was based on the supposed welfare of the children, the parents being on an equality. The court strongly intimated that if the boy were of sufficient age and health to enter upon a course of business training, the father would be awarded his custody. Dixon, J., dissented, and in one sentence expresses the dangerous tendency of this sentimental course of decision: "If a wife may, in the absence of legal

justification, remove herself and her children from their father's domicile, and fix their residence in a place where he may not abide, and still stand before the law upon an equal footing with him as to their custody, then is the headship of the husband and father no longer legally recognized."

REMEDY AGAINST JUDGMENT SUFFERED BY UNAUTHORIZED ATTORNEY.

IN Everett v. Warner Bank, Supreme Court of New Hampshire, June, 1878, 11 Rep. 275, the plaintiff sued for an injunction to restrain the enforcement of a judgment obtained against him without service of process, or his knowledge of the commencement or pendency of the action, upon the unauthorized appearance of an attorney, and without any cause of action. The answer admitted those allegations, and alleged that the attorney who thus appeared was responsible. The bill was dismissed, upon the authority of Bunton v. Lyford, 37 N. II. | 512, and Smyth v. Balch, 40 id. 363. The court said: "We are not unmindful that the weight of authority in the American courts at the present time seems to be against the doctrine of those cases. The rule is not in harmony with the general law of agency, for the reason that the legal presumption as to the authority of an attorney differs from that of other agents." "The opposite party is guilty of no negligence in relying upon the appearance of the attorney as authorized, and is entitled to reasonable protection against such damages as he might suffer, if the appearance, which the law presumes to be by authority, was held void." "To hold the unauthorized appearance void in all cases would not give reasonable protection to the party against whom the appearance is made." "If it is held void, the attorney would be liable to the party against whom he appeared. If it is held valid, he would be liable to the party for whom he assumed to appear. Why should one party, rather than the other, be compelled to seek his remedy against the attorney? It may be suggested whether there is not greater danger of injustice being done by parties falsely denying the authority of attorneys to appear for them, than is to be apprehended from unauthorized appearances by attorneys; and if the danger of a false denial of authority is vastly greater than the danger of an unauthorized appearance, whether justice and sound policy do not require, that when the attorney is responsible, the party for whom he appeared, rather than the other party, should be put to his action against the attorney. The rule as adopted in this State has always been distinctly recognized as an exception founded on the general ideas of justice and policy entertained by the court in this particular class of cases."

It seems a singular idea that a party, not served with process, ignorant of the pendency of the action, and not indebted to the plaintiff, should be bound to pay a judgment, obtained upon the unauthorized appearance of an attorney, because the attorney is responsible, and should have no indemnity except by resort to the attorney. There would

be some semblance of reason in this rule, if there had been service of process, for then the court would have acquired jurisdiction, and it would be impolitic, perhaps, to allow the defendant to escape jurisdiction by denying the authority of a responsible attorney. The danger of a false denial of the attorney's authority, suggested in the principal case, would seem rather small when there never had been service of process, or knowledge by the defendant of the pendency of the action, or any indebtedness, as in that case. But in such a case as this we cannot conceive any reason why the defendant, rather than the plaintiff in the original action, should be put to the trouble and expense of pursuing the attorney, nor can we see any reason for distinguishing between a case where the defendant was within the State and a case where he was non-resident at the time of the suit and appearance. The right of a court to render judgment rests upon the acquiring of jurisdiction, and not upon the mere ability to acquire jurisdiction.

It may be that this holding is put on the ground that this suit was a collateral proceeding, and not a direct application to the court which rendered the judgment. It was held, in Brown v. Nichols, 42 N. Y. 26, that such a judgment could not be collaterally attacked, but Grover, J., dissented, and Foster and Smith, JJ., said they would join him if it were a new question, and in Denton v. Noyes, 6 Johns. 296, it was held, Van Ness, J., dissenting, that such a judgment would not be set aside even upon direct application, if the attorney were responsible. But the court let the defendant in to defend. This case was questioned in Allen v. Stone, 10 Barb. 547, but acquiesced in, in Ellsworth v. Campbell, 31 Barb. 134. In Meacham v. Dudley, 6 Wend. 514, the court say the rule in Denton v. Noyes is hard, and where the attorney is irresponsible, they will let the defendant in to defend. In Ferguson v. Crawford, 70 N. Y. 253; S. C., 26 Am. Rep. 589, it was held that a domestic judgment might be collaterally attacked where the appearance was forged, and Denton v. Noyes and Brown v. Nichols were recognized and distinguished.

The doctrine of the principal case was held in St. Albans v. Bush, 4 Vt. 58; Abbott v. Dutton, 44 id. 546, and Newcomb v. Peck, 17 id. 302, all cases of collateral attack, the latter a suit on a judgment of another State.

In Shelton v. Tiffin, 6 How. 163, it was held that a judgment, obtained by an unauthorized appearance for a non-resident, could be collaterally attacked, and is a nullity. "An appearance by counsel under such circumstances," say the court, "to the prejudice of a party, subjects the counsel to damages; but this would not sufficiently protect the rights of the defendant. He is not bound by the proceedings, and there is no other principle which can afford him adequate protection. The judgment must be considered a nullity." He " not amenable to the jurisdiction of the court, and did no act to authorize the judgment. He cannot, therefore, be affected by it, or by any proceedings under it."

was