Sutherland v. De Leon | Cases | Westlaw

**1 *250 Appeal from Victoria County.

There is no rule of law which would authorize a court to declare an act of the legislature unconstitutional, unless it be clearly so. It would be a great abuse of judicial power to invoke the aid of the preamble to an act, to render it unconstitutional, when without such aid the objection would not exist.

The “retrospective” laws which are prohibited by the constitution are such acts as give a right where none before existed; and by relation back, give the party the benefit of it. But where a right already exists, it is in the power of the legislature to devise and provide a remedy.

The process referred to in the 7th section of the act of congress of December 22, 1836, “establishing the jurisdiction and powers of the district courts,” in such process as may be issued from the district courts in ordinary suits; and not such as the judge has been required to issue. It does not relate to mandamus, arrest and attachment. The section was not intended to modify the laws regulating attachments.

When a court has jurisdiction of the person, or of the subject matter, and the jurisdiction has attached in the particular case, its judgment cannot be questioned by a collateral inquiry; and until reversed, it is binding on all other courts. But if it has not jurisdiction of the subject matter, or the jurisdiction has not attached, its judgment would be a nullity, and would give no right, and afford no defense. [Post, 308; 2 Tex. 433; 4 Id. 101, 387, 431; 6 Id. 166; 9 Id. 256; 21 Id. 363; 24 Id. 468; 27 Id. 80.]

This was an action of trespass to try title. The defendants pleaded the general issue.

The plaintiff offered in evidence in support of his action two deeds or grants from the Mexican authorities. One for a league of land to himself, and the other for three leagues and sixteen labors to one Garcia, with Garcia's transfer of title to himself. He introduced witnesses by whom he proved the official character and signatures of the various officers whose names were to the grants; the seal of the state of Coahuila and Texas; the signatures of the parties; and the death or absence from the republic *251 of the subscribing witnesses. The defendants objected to these documents going to the jury on the ground that they were not on stamped paper, were not sealed with the seals for the proper years, were not legalized, and that there were no receipts on the margins by the proper officers, of the payment of the stamp duties and public dues; but the objections were overruled by the court and the deeds admitted; to which decision the defendants excepted.

The plaintiff then introduced the plot of each tract of land, and also the county map, showing their connection in one body, and represented on the county map as DeLeon's tract. The boundaries of the tract were proved, as also the correctness of the county map.

**2 The plaintiff also proved that the land in question had been occupied by him as a rancho, with various kinds of stock, uninterruptedly from the year 1826 to 1836, except while in possession of the public enemy; and that he and his family were ordered to leave the same in common with all other families, by General Rusk.

The defendants, as the foundation of their title to the lands in controversy, offered in evidence a judgment rendered by the district court of Victoria county at the March term, 1839, in the case of Menifee v. Fernando DeLeon; and also an execution issued on said judgment; and a levy and sale and deed by the sheriff to George Sutherland, one of the defendants; to all of which the plaintiffs objected, and the objection was sustained by the court, and the evidence ruled out upon the ground that the judgment was a nullity and void; to which decision the defendants excepted.

The defendants then proved that a man by the name of Nail was in possession of the rancho, formerly occupied by the plaintiff, in the spring of 1840, and continued in possession until the Comanche invasion in August, 1840; at which time or shortly afterwards, he abandoned it and moved away; and that while in possession he, Nail, stated that he held under George Sutherland, one of the defendants. They also proved that a man by the name of Porter had occupied *252 the same premises, with a stock of cattle; but whether before or after Nail, or under whom, was not shown. It was also proved that Fitzpatrick, one of the defendants, was living on the land at the commencement of this suit, in May, 1844, but it was not shown when his occupancy commenced. The defendants then again offered in evidence the same judgment, execution, levy, sale and deed, as color of title, which being objected to, were ruled out by the court, with the exception, that the deed alone might go in evidence under the 16th section of the “act of limitations” of February 5, 1841; to which decision the defendants excepted.

The defendants also proved that the plaintiff left Texas in 1836 and went to New Orleans, and from thence, in 1837, to Matamoros; and that he returned to Victoria in the latter part of 1842 or first of 1843.

The defendants then proposed to prove that the plaintiff, at the commencement of this suit, was an alien enemy, which being objected to was ruled out by the court, because the alienage of the plaintiff had not been specially pleaded; to which decision the defendants excepted.

The defendants moved the court to charge the jury that if they believed from the county map or other evidence, that the lands in controversy were within the twenty border leagues on the coast, they could not find for the plaintiff, unless he produced authority from the supreme government of Mexico for issuing the grants within that boundary; which instruction the court refused to give, but instructed the jury that there was no testimony before them in relation to that matter, and that they could not inquire into it.

**3 The defendants also moved the court to instruct the jury that if the plaintiff had shown no valid paper title, and the defendants were in possession, they could find for the defendants. The court instructed the jury that if there were no valid paper titles on either side, and the plaintiff had voluntarily abandoned the premises, they could find for the defendants, but not otherwise.

The court also instructed the jury that the objections *253 urged against the deeds of the plaintiff would not vitiate them; that if they believed them to be genuine, and that they emanated from the proper authorities, they were sufficient to sustain the plaintiff's action. That if they believed the deeds to be void, the original order of survey and field notes, if established by testimony, were sufficient to sustain an action of ejectment. That the deed of the sheriff to Sutherland was not sufficient to give color of title under the 15th section of the act of limitations, and that the jury could not take into consideration the judgment rejected by the court; but if the defendants had proved five years' peaceable possession under the deed, it would entitle them to recover. To all of which instructions the defendants excepted.

The judgment offered in evidence by the defendants as the foundation of their title was rendered at the March term, 1839, of the district court of Victoria county. The suit was commenced by attachment, which was issued by the district judge on the petition of the plaintiffs, alleging that the defendant, “a Mexican, now absent from the country, and out of the reach of the ordinary process of the law, did, in the spring of 1836, take and carry away from the store and warehouse of your petitioners,” etc., “sundry articles of merchandise,” etc. The petition prays that the judge will order a writ of attachment to issue “in conformity to the law of the 18th of December, 1837, against the property,” etc. It was sworn to by Menifee, one of the plaintiffs, who stated that to the best of his “belief, the merchandise was taken and carried away from our possession by one Fernando DeLeon, a Mexican,” etc. The attachment was issued on the 20th of September, 1838, and levied on four leagues of land, as the property of DeLeon, on the 22d of the same month. On the 21st of March, 1839, an attachment bond was executed and filed by the plaintiffs, and the cause proceeded to trial. In the transcript of the record of the proceedings there is a bill of exceptions, signed by the judge, which states “that at this time came on this case, upon the petition, oath, judicial order, attachment, return of attachment, *254 order of publication against the defendant, a non-resident, when A. Neill, attorney, came into court and moved the court to be permitted to enter an appearance for the defendant, which motion was opposed by the plaintiffs' attorney,” etc.; the court overruled the motion, but appointed the said Neill curator ad litem “to appear and plead for the defendant.” The jury returned a verdict for the plaintiffs, upon which the judgment was entered and execution issued, directed to the sheriff of Victoria county, commanding him “that of the goods, chattels and estates of the said Fernando DeLeon, he cause to be made,” etc. The execution was levied upon the lands of the defendant, and George Sutherland, one of the plaintiffs, became the purchaser.

**4 The objections urged in the court 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, are as follows:

1st. Because the writ of attachment was issued by and tested in the name of the judge, when it should have been issued by and tested in the name of the clerk.

2d. Because there is no evidence in the record that a citation ever issued to the defendant in attachment.

In reply to the first objection we say that the act of congress “establishing the jurisdiction and powers of the district courts,” passed December 22, 1836, p. 198, sec. 7, does not mean that the clerk shall issue “all” process, but that all the process that he issues shall be tested in his name. By an examination of the first clause of the section in question, it will be seen that the process contemplated by the act is such process as usually issues in term time, or is issued by the clerk in vacation in the necessary discharge of his official duties; but that the clause in question does not prohibit or forbid the judge from issuing any other process required of him by law. By the latter clause of the 4th section of *255 said act, the duties and authority of judges of the district courts are specified, in the performance of which it often will become important for the judge to issue processes in the absence of the elerk, among which are writs of “habeas corpus, mandamus, injunctions, supersedeas, and all other writs known to the law,” and among others known to the law is that of warrants to apprehend felons and persons charged with a breach of the peace and other misdemeanors; and especially the performance of this latter duty cannot be dispensed with or on any account omitted, because by the 4th article and 4th section of the constitution of the republic, the judges of the district courts are made “conservators of the peace throughout the republic;” and if the construction contended for by the counsel for the appellee, that the judge of the district courts can issue no process, then an important duty enjoined by the constitution upon the district judges might, and often must, remain unperformed, because they had no authority to issue the necessary process to carry out the provisions of the constitution, in consequence of the act of congress, disrobing them of the power given by the constitution. It is submitted that if there is found to be any collision between the constitution and the act of congress, the law will be so construed as to give all the authority contemplated by the constitution to the district judges.

By the 6th article of the “plan and powers of the provisional government,” adopted on the 7th November, 1835, the judges of the provisional judiciary had authority conferred on them to issue writs of sequestration, arrrest or attachment, in all cases established by the “civil code” and code of “practice of the state of Louisiana;” and this law continuing in force at the time of the proceedings in the attachment suit, we are therefore referred to the code and code of practice for the authority upon which the court acted. In the Code of Practice at art. 239 to 245 inclusive, will be found the authority of the judge to issue the attachment, and by him only, at the time of the adoption of the code of practice; but by an amendment to articles 214 and 237, the *256 clerks had concurrent (not exclusive) authority with the judge to issue process. The act of the provisional government and the act of congress referred to, taken pari materia, and interpreted on the long established principles of expounding statutes, the court, it is believed, will have no doubt in coming to the undivided conclusion that the act of congress is a cumulative remedy and that both laws can consistently be operative, and were in force at the time of the proceedings in the attachment cause. Vide 1 Kent, 460, 463, 464, and 1 La. T. R. (N. S.) pp. 194, 195, 196, 197. On the 28th of January, 1839, L. T. p. 89, sec. 2, congress authorized judges and justices of the peace to issue attachments, and no other officers can issue attachments according to said law. This shows most explicitly to what officers congress intended to confide the authority of receiving the petition, affidavit and bond of the party and judging of the sufficency of the security, and finally of issuing conservatory process of attachment. And further, congress on the 18th December, L. T. p. 102, passed an act “authorizing attachments to be issued in certain cases therein named.” By this law the mode of proceeding is rendered plain and simple, and well calculated to remedy the evils complained of by a robbed and plundered people.

**5 The second 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 attachment and citation have been properly served.

We suppose that it is not necessary to the validity of the judgment that any such citation, notice or publication should, in fact, be made or given. The decisions of the highest judicial tribunal of the state, under and by authority of whose laws these proceedings of attachment were had, fully sustain the doctrine that a writ of attachment, duly executed, stands in the place of a citation. Vide 3 La. Cond. 342. But at all events we insist that no evidence of the fact of the service *257 of an attachment and citation having been made need appear in the record. Vide 2 La. Cond. 662, 663.

We suppose in this and all other proceedings in rem, the seizing of 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 infer, as a necessary consequence, that all irregularities or errors in the subsequent proceedings of the court can only be corrected by the court that rendered the judgment. It is insisted that the issuing of the writ of attachment and seizing the real estate by virtue of that writ gave the district court of Victoria county complete jurisdiction of the property seized.

1. Because the code of practice declares that the sheriff “must seize and detain so much of whatever property the debtor may possess within the parish over which his powers extend.” Art. 256.

2. Because this levy may extend to all kinds of property “whether it consists of goods, effects, rights, credits or rights of action, as may be equal in value to the amount claimed in the suit.” Same act.

3. Because “he must immediately after deliver or send to the clerk of the court by which the attachment was granted, his return in writing, stating the manner in which he has executed the same.” Same act.

4. Because “the sheriff must take charge and keep possession of all goods and effects which he may have attached, and make an inventory, and hand or send the same to the clerk.” Art. 257.

5. Because the defendant “may have the levy of the attachment set aside on his appearing and giving bond and good security to pay the judgment that may be rendered.” Art. 259.

6. Because the court may order a sale at any time of the perishable property. Art. 261.

*258 7. Because the suit does not abate by death of parties. Vide act organizing district court, p. 203, sec. 16.

8. Because the property attached is in the custody of the law and cannot be released but by the appearance of the defendant, and if he does not appear, the cause proceeds to final judgment and sale of the property so attached.

**6 These acts could not be authorized to be done unless upon the supposition that the court by the seizure had complete jurisdiction over the subject matter in controversy and the parties to the suit, so far as the disposition of the property attached was concerned. This is in conformity to similar proceedings in the courts of admiralty and exchequer, 3 Bl. 257, 258. This proceeding being against the property or thing attached, and no personal notice given or left at his domicile or at his last place of residence, and an attorney of the court being appointed to represent and defend him, the proceedings are emphatically in rem and not in personam. Vide 4 La. Cond. 544, 545; vide the Code of Practice, arts. 254, 256, 260, 265.

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; Paine (C. C.), 626. On the seizure of the property the jurisdiction of the admiralty court attaches, and the property is subject to the decision in the cause. 4 Cranch, 296; 1 Phil. Ev. 173; 22 Serg. & Rawle, 289; 1 Paine, 626; 3 Binn. 220; 5 Cranch, 184; 1 La. Cond. 271; 4 Martin, 458; 4 Cranch, 434; Vatt. 1, ch. 7, art. 84.

If then the court had jurisdiction of the cause, the omitting to cause copies of the attachment and citation to be *259 affixed to the door of the parish church, or to that of the room where the court in which the suit is pending was held, did not divest the court of its jurisdiction. The court undoubtedly might have refused to give judgment, and indeed ought not to have given judgment until the attachment and citation had been affixed; and we must suppose the court did require the evidence of such notification; as we are not to presume that the judge neglected or erred in the discharge of his duties. But suppose the court did not require any proof of such notification having been made; or suppose they were satisfied from their own personal knowledge, such as having seen the copies of the attachment and citation affixed to the church or court room door; and admitting the court ought to have required other evidence of the fact, all that can be said in relation to this 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 district court of Victoria county be inquired into by this court in this collateral manner, when the time has elapsed when an appeal might have been taken and the judgment has become irreversible for error; and in this light the present judgment of the district court of Victoria county rendered in the attachment cause is in a foreign court, and therefore its regularity or irregularity cannot be inquired into. Foreign courts cannot notice the errors of inferior tribunals. 4 Cranch, 294; 1 Paine, 621. In treating the judgment in the attachment suit as a foreign judgment, because it is assimilated to a foreign judgment, because it has become irreversible for any irregularity, the following authorities apply with great propriety, 4 Cranch, 278; 5 Id. 173; 11 Mass. 229, so in 12 Serg. and Rawle, 289. But after admitting all the irregularities, the judgment still remains good until reversed. The appellee in order to sustain his objection by his course of argument destroys all the well settled distinctions between *260 void and erroneous judgments. The least irregularity, the smallest error in the judgment of the courts, if sufficient to reverse the judgment in the superior appellate 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 of the land, it is binding everywhere and for every purpose that a final and conclusive judgment can bind men and things. 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.

**7 1st. It is clearly deducible 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 of sale made, and an execution issued, in virtue of which the land in controversy was properly sold.

3d. That the judgment, order of sale and execution, having never been reversed, remain valid and in full force, and cannot now be collaterally questioned. To support these views the court is referred to: 5 Cranch, 173; 2 Pet. Cond. 223; 3 Id. 312; 2 Ohio, 28; 6 Id. 268; 5 Id. 500, 501; 4 Id. 133, 154; 3 Id. 190, 325, 561. Purchasers at sheriff's sales are not responsible for irregularities antecedent to issuing the execution or order of sale. Vide 3 La. Cond. 353, 354; 2 Id. 243, 661, 662, 663; 10 Pet. 449, 479; 4 Kent, 430 and note (a); Foster's Crown Law, 91. The judgment in the attachment cause becomes res judicata; vide, 2 v. Partida, p. 1247, rule 32; Denison v. Ingram, Dallam, 519, 520; 2 Martin, 303, 456, 460, 461; Fonblanque Eq. 27 and note; Id. 641, 642 and notes; Wheat. International Law, 120; Story Conflict *261 Laws, 485-494 at section 590-500; and 1 v. Partidas, 3, title 22, law 3, p. 264.

It is submitted that the judge of the court below erred in ruling that the proceeding in the attachment suit was a nullity.

1st. Because it has been shown by the record of the attachment cause that a legal and equitable cause of action against the defendant was contained in plaintiff's petition.

2d. Because an affidavit of the truth of the facts was attached.

3d. Because the bond required by law was given.

4th. Because a judicial order for an attachment was obtained from the judge in conformity to law.

5th. Because an attachment was duly issued by the judge.

6th. Because a levy of the attachment on the lands in controversy in the suit by the sheriff of Victoria county was made.

7th. Because publication was made, which may well be construed to mean to have been made by affixing copies of the attachment and citation to the door of the church or court room.

8th. Because the court appointed an attorney of the court to defend the absent defendant, according to art. 260 of C. of Prac.

9th Because preliminary proceedings were had by the attorney for the absentee.

10th. Because there appears to have been a regular trial, defense of the attorney, verdict of the jury and judgment of the court in conformity to the verdict of twelve jurors.

11th. Because an execution issued thereon, and the sheriff returned that he had levied and sold according to law the lands originally attached to the defendant in this suit, and had made him a deed according to law.

**8 The court below having ruled that these proceedings were null and void and prohibited appellant from reading the proceedings of said cause to the jury as evidence of his title under *262 the sheriff's deed, he was thereby deprived of his property, unjustly and illegally. But the errors of the court did not stop here, but continuing up the same strange notions of law, the appellant offered to read as law to the court and jury an act “authorizing attachments to be issued in certain cases therein named,” passed 18th December, 1837, p. 102, which law the court decided to be unconstitutional, null and void. By this act of congress the court will perceive that all the objections to the proceeding in the attachment cause were obviated, no citation was required and other formalities were dispensed with. But it is apprehended that the well settled distinction between the obligation of a contract, and the remedy on a broken contract, will settle the difficulty that embarrasses the court below. It is confidently believed that the following authorities will satisfactorily remove all doubts; the act neither impairs the obligation of the contract nor is it retrospective in regard to the obligation of the contract, but goes to the remedy; all laws of remedial character must, of necessity, be retrospective. Vide Brown et al. v. Richardson, 1 Mart. (N. S.) p. 207; Wheat. International Law, 124; 1 La. Cond. 157; 3 Mart. 531; Story Conflict Laws, 485, 486.

The court below misconstrued the law and injured the appellant by its positive and peremptory refusal to permit the jury to carry with them, on their retirement to consider of the verdict, the map of Victoria county, sworn to be so by the county surveyor, and given in evidence by the appellee in this cause, by which map the jury would have seen that the lands in controversy are situate within the ten coast leagues and that the grant of the lands to appellee and his vendor, by the authorities of the state of Coahuila and Texas, was not such a title as would enable appellee to recover the lands in controversy in an action of ejectment in which he must recover upon the strength of his own title and not on the weakness of that of his adversary. In a word *263 he did not and could not show a title from the sovereign of the soil and therefore would have utterly failed on this ground, but for the improper charge of the judge to the jury, and his aforesaid refusal to allow them to use the testimony of the appellee, allowed to be read by the court for the aid and use of the appellee, and refused the use of the evidence for the benefit of the appellant, by which clearly he was deprived of a judgment. Vide Stat. of 1840, p. 91, sec. 23; 2 Mart. 199; 1 N. Y. Dig. p. 947, sec. 796; People v. Dennison, 17 Wend. 312; purchaser at sheriff's sale holds the land, 1 N. Y. Dig. 890, sec. 156-7, in Wood v. Jackson, ex dem. Genet et al. 8 Wend. 9; conclusiveness of judgments, Hoyt v. Gelston, 1 N. Y. Dig. 892, sec. 176; 13 J. R. 141, and proceedings in rem. No sale by deed can be attacked for fraud at law; he that has the legal title in law has a good legal right. You can only attack for fraud in equity, suggesting the same, unless you allege fraud you cannot be permitted to prove it.

**9 The statement of facts in this case shows that the appellee, who was the plaintiff below, established a title to the land in controversy, sufficient to recover:

First. By written documents.

Second. By possession, and

Third. That the appellee, who was the defendant below, is estopped from disputing it.

First. It was proved in relation to the deed on paper of the second seal that they were given by the public officer, whose duty it was to keep the originals. His official character and his signature were both proven. These facts being established they were good evidence. Smith v. Townsend, Dall. Dig. 269, and the cases there cited.

Such copies are, in law, originals for all judicial purposes. United States v. Aredondo, 6 Pet. 691; see also Laws of *264 Coahuila and Texas; Instructions to Commissioners, art. 8, p. 71.

The deed on paper of the third seal is a grant to the commissioner himself. It was necessary that a special commissioner should be appointed for that purpose. This was done by the proper authority. The documents are proven up, item by item, and the original order of survey was proven, which order, under the constitution of the republic of Texas, is sufficient to sustain ejectment. Const. Gen. Prov. sec. 10.

This was an archive copy, in the hands of the proper officer till the law of 1837 was passed. The grantee, the archive keeper, was then in the United States. Though on its face it declares “let a copy be given to the grantor for his testimonio; yet the special commissioner did not make that copy. Should then the grantee make out and certify to a copy for himself? This was a deed sui generis, and the fact that the original was openly presented by the grantee, who was formerly the keeper of the archives under the law, cannot invalidate it. The circumstances of the case and the proof adduced to sustain the documents rebut all presumptions of fraud.

But in a case at law fraud must be proved; it cannot be presumed.

This deed is objected to as evidence, because it is an original, the others, because they are copies!

Second. The appellee has established a title by possession.

It was proved that the premises in question were occupied by him as a rancho, with various kinds of stock, uninterruptedly from 1826 to 1836, and that “they were not voluntarily abandoned.”

The rule is, “that a prior possession not voluntarily abandoned must put the tenant on his defense.” Smith v. Lorillard, 10 Johns. 338.

Third. Whatever the title of the appellee may be as against others, yet the appellant is estopped from disputing it.

The rule is, “that a party cannot gainsay a title as against *265 a plaintiff who claims under the same title under a prior right.” Jackson ex. dem. Boone v. Heriman, 10 Johns. 292; Adams Eject. 32.

**10 The appellee having shown a title sufficient to recover, it now remains to inquire if he has parted with that title.

First. The appellant exhibits a record, a judgment, an execution and a sheriff's deed.

Suit was commenced in 1838, judgment obtained in 1839, cause of action, stealing, in 1836.

It is contended on behalf of the appellee that the judgment is a nullity and absolutely void.

The proceedings purport to have been commenced under a law passed by the second congress in 1838, p. 102. It is entitled “An act to authorize attachments to be issued in certain cases therein named.” The first section enacts “that in all cases it shall be lawful for any person from whom property was wrongfully taken to sue out an attachment,” etc.

As the generality of this enacting clause would be extremely “inconvenient ” if not restrained, it is a rule of construction that we may resort to the preamble in restraint of this generality in such case. 1 Kent, p. 460. This, too, will give a clue to the real intention of the law makers.

This resort will show us that it was the intention to embrace “Mexicans who had stolen property and removed beyond the Rio Grande, and none other.”

This law, the appellee contends, is unconstitutional and no law.

First. Because it is partial in its terms, embracing none but Mexicans.

Second. Because it is an ex post facto law.

It refers exclusively to crimes already committed and punishes them by a new mode and convicts them by new testimony. 1 Kent, 408. At the time the act was passed the common law governed all causes of action that accrued of that nature. Const. art. 4, sec. 13.

If it be urged as a remedy it is retrospective. 7 Johns. 502.

*266 But again, the appellee contends that the judgment is null and void:

Because there was no writ or process, no notice.

The paper signed by James W. Robinson, the then presiding judge, was no writ or process.

“Every writ must be tested in the name of the clerk of the court from which the same may issue.” Laws of Texas, vol. 1, p. 201, sec. 7.

Under our constitution the judge cannot do a ministerial act. Const. art. 1, also 1 Kent, 10, 45. The mandate is a judicial act, the issuance of the writ ministerial. 4 N. S. 430.

But suppose we resort to the act of the consultation.

Article 6, p. 7, empowers the judge “to grant writs of sequestration, attachment or arrest in all cases established by the ‘civil code’ and ‘code of practice’ of the state of Louisiana to be regulated by the forms thereof.”

**11 This article, considered in connection with the judgment under review, suggests two facts for the consideration of the court.

First. That the “civil code” does not authorize an attachment for stealing.

Second. That according to the forms of the code of practice in cases of attachment a writ and citation or notice to the party were absolutely necessary.

The record of the judgment under review exhibits neither. Raguet v. Nixon, Dall. Dig. p. 386.

The review of the Louisiana practice in this case on the subject of attachment shows most conclusively that a citation actual or constructive is necessary in every conceivable case.

In fact, in all civilized countries a man must have actual or constructive notice before he can be divested of his property. Smith v. Rice, 11 Mass. 507; Hollingsworth v. Barbour, 4 Pet. 466. And constructive notice not authorized by law is no notice. Id.

*267 The fact that the court appointed a curator cannot cure the want of a writ and notice. For before the issuance of a legal writ and service thereof, and the service of citation as authorized by law, the case was “coram non judice.” The judge had no authority to appoint a curator before these preliminary steps had been taken.

The judgment then is not simply erroneous or irregular, but an absolute nullity, and hence may be called in question collaterally or otherwise. It is mere waste paper. It cannot sustain an execution and of course the deed under it did not pass the property of the appellee. So much then for the appellant's paper title.

Second. Can his deed inure to his benefit under the statute of limitations?

It cannot under the 15th section of the act passed 5th February, 1841, 5th Congress, p. 167. For a void deed cannot give color. Walker v. Turner, 9 Wheat. 541; Pray v. Pierce, 7 Mass. 381-3; Powell v. Harman, 2 Pet. 241.

It cannot under the 16th section of the act, for a void deed is no deed, and a record of “waste paper” can originate no title under the section.

Lastly. Did the court err in refusing the appellant, the defendant below, to introduce evidence to prove “that the plaintiff was an alien enemy” at the commencement of the suit?

No plea in abatement was filed.

The 5th Congress, p. 69, requires no other plea than that of “not guilty.”

This plea was intended to present and does present an issue on the merits. Proof of incapacity of plaintiff to sue is foreign to the merits. It is intended to supersede an inquiry into merits. Simeon v. Thompson, 4 D. & E. 54. The proof offered therefore was inconsistent with the pleadings and properly excluded. 4 Chit. 480. It was not conformable to the count upon which issue was taken. 1 Saunders, P. & E. 86. It was not issuable matter. It was not *268 applicable to anything on the record, but would have presented new matter foreign to the record. See 4 Pet. 501, and 1 Id. 386, 450.

**12 The fact of “alien enemy, at the commencement of the suit,” to be available, must be specially pleaded, “in limine litis,” and the plaintiff must take issue thereon.¹

I shall confine the argument which I propose to submit to the court in this case, mainly to the questions arising upon the exceptions to that portion of the judge's decisions in the court below, which ruled out as testimony the sheriff's deed to the appellants, and the previous judgment of the district court of Victoria county, under which the lands in controversy in this suit were sold.

The other points in the cause will, I apprehend, be found upon investigation to be in all respects in favor of the appellee; and if I shall succeed in showing to this court, that there was no error in ruling out that testimony, I shall have done all that is necessary, in my opinion, to sustain the judgment which was rendered in this cause; for upon that question, and that alone, it seems to me, the case must turn here.

The original suit in the district court of Victoria county, the record of which is sent up in the transcript in this cause, purports to have been commenced by an attachment which was sued out by the appellants against the appellee, under the provisions of an act of congress, approved December 18, 1837, entitled “An act to authorize attachments to be issued in certain cases therein named.” This act, as the record shows, was the authority upon which the whole proceeding was based. It was under the powers conferred by it, if any, that the court attempted to exercise jurisdiction over the parties, and the subject matter presented to it; and if it be shown that it is incapable of conferring that jurisdiction, *269 it will follow that the whole proceeding was coram non judice and void.

This I have undertaken to do, as far as the very limited time which I have had for this investigation will permit, and I commence by asserting in the first place, that the act itself is unconstitutional and void.

The object and intention of the act is explained in the preamble. Indeed, the preamble is a part of the law, because it is incorporated in it; by a reference to it the enacting clause of the statute is so obviously plain, that it seems almost impossible to divest the mind of the conviction that the legislature so intended it. The preamble was evidently drawn for the purpose of pointing out to the court the persons, and the subject-matter upon which the law was to operate; and the law gives the remedy for the evils alleged to exist, and against the persons who are alleged to have perpetrated them. 2 Laws, p. 102. It shows as clearly as language can convey impressions to the mind, that it was intended to operate exclusively upon “Mexicans residing upon the frontier. ” These Mexicans then must have been citizens, and the operation of the law upon them as a class, to the exclusion of all other citizens, was a violation of the 10th section of the “general provisions” of the constitution, and the 1st section of the “declaration of rights.” 2 Yerg. 209, 554, 599, 603, 605, 606, 614, 618.

**13 The citizens of the country who were Mexicans by birth had rights secured to them by the constitution, in all respects equal with other citizens, whether of European origin or of the Anglo-American race; and a law which affected or impaired those rights, and which did not operate upon the rights of all othersin the same way and to the same extent, was unconstitutional and void.

That it was intended the law should operate upon citizens of the country is shown not only by the preamble, but by the fact that it contemplates their owning land in the country, which they could not have done had they been aliens; or having once been citizens, had abandoned the *270 country, and become citizens of Mexico. The very act of permanent abandonment was a forfeiture of their lands under the constitution. Sec. 9, Gen. Prov.

Besides, if they were citizens of Mexico, that country being at war with Texas, they were alien enemies, and it would be an absurdity, and I might say barbarism, which I am not willing to attribute to the legislature, to suppose that they intended to punish each individual belligerent they might be able to reach, for facts recognized jure belli during the war. The acts charged in the petition and affidavit, in the attachment suit against DeLeon, were rightful acts of war, provided he were an alien enemy; and if it be held that the legislature intended to punish such, either civilly or criminally, by individual prosecutions in the courts of their own country, the principle and rule which would justify it would, if extended further, justify the prosecution and punishment for murder, of every individual Mexican that might be caught in the country, who had killed one of our citizens on the field of battle, on our own soil. Such doctrines are not recognized by civilized nations, nor do they find any sanction in the laws of war, in modern times at least. 1 Kent Com. 95, 96.

It is submitted that this act of congress is unconstitutional for another reason. If it were intended simply to give a remedy for wrongs previously done to the individual rights of others, and which remedy did not exist when the wrong was committed, it is retrospective. Or, if it be intended as a punishment to be inflicted upon the wrong doer, it is ex post facto. Gen. Prov. Const. sec. 16; 1 Kent Com. 408-9; Story Com. 485; Cox Dig. p. 180, sec. 144. Society for the Propagation, etc., v. Wheeler et al. 2 Gallis. 105.

It is admitted that where a remedy exists, it is competent for the legislature to enlarge or modify that remedy, and that the change will operate on antecedent acts; but it is not admitted that a remedy created by the legislature, where none previously existed, can operate retrospectively *271 under the provisions of our constitution. If it can, there is no meaning in that provision of the constitution which says that “no retrospective or ex post facto law, or laws impairing the obligation of contracts, shall be made.” The constitution of Texas differs from that of the United States, in the insertion of the word “retrospective” in this category, and the intention of it doubtless was to obviate inconveniencies and injuries which were supposed to have resulted from the decisions of the supreme court of the United States, which limited the term ex post facto to criminal acts alone; and if this be the true interpretation of the meaning of the convention, in the insertion of that word, then we must give a meaning to the word itself, such as they intended it should have, or we violate both the letter and the spirit of the constitution. If the term “ex post facto” means making an act punishable criminally which was not so punishable at the time it was done, then surely the term ““““retrospective,” if it means anything different from ex post facto, can only mean and was intended to mean, the making an act punishable civilly which was not so punishable at the time it was done. The giving a remedy, therefore, for a private or civil injury, when there was none existing at the time the injury was done, is as much inhib ited by our constitution as the prescribing a punishment for an act which was not punishable when done is inhibited by the constitution of the United States.

**14 It may be said, however, if this law be unconstitutional, the court still had jurisdiction of the cause under the then existing laws of the land, which recognized the proceeding by attachment. But if this position be assumed it cannot be sustained, because the record shows that the suit was brought under this particular statute and none other. The petition follows its language, refers to it and was evidently intended to be drawn in conformity with its provisions; the affidavit is supported by no other law at that time in force in the country; the subject-matter of the suit was one for which no other law provided a remedy by attachment; *272 the parties referred to it throughout the trial of the cause as the one under which they instituted their proceedings, and as the one under which they claimed the right to recover; the previous law required a bond to be given before the attachment issued, and in this case the bond was not executed until long after, and indeed the whole action of the court was predicated upon it, and unless it conferred the authority to act, there was none.

The law of Louisiana regulating attachments was the law of Texas, and was the only law then in force upon that subject, except this statute. That law gave no authority to issue attachments for stealing, and unless some other law can be found, which gave the authority to issue the attachment in this particular case, the court had no jurisdiction over the subject in that way. Art. 6, p. 7, Acts of Consultation; La. Code of Prac. p. 42, arts. 240-41. There can be no law found which conferred that authority, except this statute.

For another reason, the attachment could only have been issued under this or some other law which authorized it, in derogation of legal principles, because the petition and affidavit show that a felony was committed, and there is no principle of jurisprudence better settled than that the civil remedy in cases of felony is suspended until the party accused has been criminally prosecuted. The laws of Louisiana present no exception to this universally conceded principle, and the attempt to exercise jurisdiction to enforce a civil remedy in a case involving a felony, before there was a criminal prosecution of that felony, unless authorized by a special statute, would be an assumption of power not warranted by law. 4 Bl. Com. 343; 1 Chit. Crim. L. p. 5.

It is thus shown that the district court of Victoria county had no authority to act in the attachment suit against DeLeon, other than such as was conferred by the statute of December 18, 1847; and if that statute be unconstitutional, as we maintain it is, and as I think I have shown it to be, then of course it could confer no such authority. But if this court should be of a different opinion, and decide that the act is constitutional, *273 I still insist that the district court had no jurisdiction to hear and determine the cause, and that its judgmcnt was and is a mere nullity.

To hear and determine a cause, the court must not only have jurisdiction over the subject-matter to be decided, but it must have jurisdiction over the parties to be affected by its judgment. In this case, it is alleged, the court had jurisdiction neither over the party who should have been the defendant in the cause before it, nor over the subject-matter of its judgment.

**15 To give jurisdiction over the party he must, by some process known to the law, be cited to appear. No such process was sued out in this case. Under the law of Louisiana the process should have been issued by the clerk and placed in the hands of the sheriff; Louisiana Code of Practice, arts. 179, 239, 244, 251, and if the defendant could not be found, there should have been publication in the way designated by that law. Arts. 253, 254. None of these steps were taken; the party upon whom the judgment was to operate had neither actual nor constructive notice of the proceeding in which the judgment was rendered, and consequently the court had no jurisdiction over him. 4 La. Cond. p. 544-5; Hollingsworth v. Barbour et al. 4 Pet. 466.

To give jurisdiction over the property in a proceeding in rem, the property must be brought before the court or be in the custody of the law, by some process known to the law. In this case no such process was employed. The writ of attachment was issued by the judge, and we maintain that he had no authority to issue such a writ. He could order it, but it was the duty of the clerk to issue it, under the seal of the court, and place it in the hands of the sheriff. A writ issued by the judge himself is a nullity, and the party would not have been bound to obey it, even had notice of it been served upon him. 1 Laws of Texas, p. 201, sec. 7.

The proceeding in the district court of Victoria, however, was not strictly or technically a proceeding in rem. It was an action in personam, sought to be enforced by a proceeding *274 in rem for the purpose of bringing the defendant before the court. In attachment cases, not in admiralty, the process in rem is given only in the event of inability to bring the defendant into court by personal service of process upon him. It is an effort to coerce his appearance by a seizure of his property. It bears a stronger analogy to an attachment and sequestration in the English chancery, than to an action in rem, technically speaking. It is essentially a proceeding in personam, and the party to be affected by it must have notice, either actual or constructive of its existence.

A proceeding in rem is one that acts exclusively upon the thing, and not upon the party, and it must be upon the particular thing which is the subject of controversy. In this case the suit was brought against DeLeon for an act alleged to have been done by him. The property in question was not the cause of the suit. There was no claim to it except such as grew out of the personal liability of DeLeon; and it could be resorted to only as a collateral mode of reaching him. 2 How. 338; 1 La. Cond. 47; Id. 279; Cox Dig. p. 24, sec. 92.

Even in admiralty, if the suit be for a maritime debt contracted by the party, or for a personal tort, it is in personam; and there must be service, either actual or constructive upon the defendant himself, to give the court jurisdiction. It is true, if the defendant cannot be found, his property may be seized as a means of bringing him before the court; but the court acquires no especial jurisdiction over the property by the seizure, and the decree is against the defendant and not against the property eo nomine. It operates upon the property seized with no greater power than it does upon any other property of the defendant, and it is wholly inoperative to bind him or the property or to confer rights upon others unless he has been notified of the pendency of the suit by a publication of the monition. 3 Dallas, 321. Such a proceeding in admiralty is precisely analogous to the ordinary proceeding by attachment in the courts of law.

**16 A proceeding in rem, technically, is wholly different. The *275 jurisdiction in that case is acquired by getting possession of the thing itself. It is the thing which is alone the subject of controversy. It is upon that that the judgment of the court operates exclusively, and a decree rendered in the cause has no power whatever over any other property. The party interested has notice of the proceeding by publication, and may come in if he choose and defend his property; but he is not called in to defend himself, because there is no case against him. Hence it is, that when a court acquires jurisdiction in a proceeding in rem, its decree is said to bind all the world, because all the world are said to be parties; which means that any person may come in and make himself a party who has an interest in the property. 3 Pet. Cond. 311.

The ordinary suit by attachment is obviously different. It is a controversy between the plaintiff and defendant alone. It is for the recovery of some claim or demand which the plaintiff alleges he has against the defendant; and when he gets his judgment it is against the defendant, and not against any specific property. It is true, the property levied upon by the attachment may be sold to satisfy the judgment, but that is an incident which follows the judgment, and not the judgment itself -- other property not levied upon by the attachment may also be sold to satisfy the same judgment.

But if it were true that the original proceeding in Victoria county was strictly and technically a proceeding in rem, still we allege the court had not jurisdiction. It is an established rule, and one which is recognized in every civilized country, that a party to be affected by a judgment or decree of a court must have notice, either actual or constructive, of the proceeding in which the judgment or decree is pronounced. Without such notice the court can have no jurisdiction over him, and its judgment against him would be void. Not voidable, but absolutely void. 11 Mass. 512, 513; 7 Id. 83; 13 Id. 264; 2 Pirtle, 17, secs. 12, 15; Wash. Dig. 447, sec. 29; Dallam, 386, 407.

*276 A levy upon property by the attachment, even had the attachment legally issued, was not notice either actual or constructive to the defendant. Something beyond that was required. A citation should have been issued, and if it could not be personally served, it should have been posted up as the law directed. Both steps were necessary to give jurisdiction to the court, and unless both were pursued the judgment was a nullity. Dallam, 386, 407; 2 La. Cond. 130; Id. 738; 10 Martin, 472; 2 N. S. 552.

That the gentleman who represented the defendant in court derived no authority from him, and that his appearance in the cause affords no presumption of notice to the defendant is evident from the way in which he first presented himself; and from the refusal of the court to permit him to appear except under its own appointment as curator ad hoc.

**17 Notice to a curator thus appointed is not notice to the absentee. 3 N. S. 177; 6 Id. 15; 8 Martin, 205; 10 Id. 16; 4 Pet. 466; 2 La. Cond. 130; 10 Martin, 472.

The court could not appoint a curator ad litem until it had acquired jurisdiction of the cause by the employment of such process as was competent in law to give the defendant notice. Fisher v. Hamden, 1 Paine, 55; Cox, 431, sec. 217.

The jurisdiction conferred by the statute of 1837 was limited. It is true, it was conferred upon a court of ordinary general jurisdiction, but it was a jurisdiction not previously residing in the court. It was to be exercised in giving a remedy in a class of cases sui generis, and of very limited extent, and it was to operate on a very limited class of persons. The remedy itself (being a private and civil one for a public crime) was in derogation of the existing laws of the land and repugnant to well known and long established legal principles; and the fact of its being confided to a court of general jurisdiction did not make the jurisdiction in respect to the particular subject more general than if it had been confided to one which possessed no other powers whatever. If this position be sound, and I so regard it, the record of the *277 proceedings must show affirmatively everything that is essential to the validity of the judgment. Nothing will be presumed in favor of it. 3 Pet. Cond. 7; 5 Cranch, 173; 5 Pet. Cond. 672; Cox, 415, sec. 55; 2 Pirtle Dig. 19, sec. 9; Id. 15, sec. 1.

The powers conferred on courts are of two kinds -- ordinary and extraordinary. The first is that which gives the general right of adjudicating between parties, before the court, upon all the ordinary subjects prescribed by law; the other is special and limited to particular objects. In the first the judgments rendered are binding and conclusive unless reversed upon error or appeal. They cannot be inquired into collaterally. But with regard to the last, there is no such exemption. When a special power is delegated it must be exercised in strict conformity with the authority given; and it is competent for all other courts to inquire collaterally into the fact, whether or not it has been so exercised. Indeed it is essential to the validity of the act that the record of the proceedings should show that the power has been strictly pursued. The powers delegated by the statute of 1837 are of that special and extraordinary character, and it is therefore essential to the validity of the judgment rendered in this case, that it be shown affirmatively by the record that every thing was done which was necessary to give the court jurisdiction. 1 Pet. 640; 8 Wheat. 108; 4 Cranch, 241, 268-9; 2 Pet. Cond. 100; Cox, 21, sec. 60; Id. 413, sec. 37.

**18 But if the jurisdiction conferred by the statute were general, still the presumptions which are in favor of the judgments of courts of general jurisdiction cannot arise in this case, because the record shows affirmatively that the jurisdiction had not attached. To constitute jurisdiction in such a case as this, we again assert that two things were necessary; 1st, a legal attachment; and, 2d, a citation for the defendant, to be posted up if it could not be served personally. Neither one was sufficient without the other. Now if we presume a citation, and that it was posted up as the law required, because the record is silent upon the subject, we *278 cannot presume a legal attachment, because the record is not silent upon that subject. The attachment which brought the property in is in the record and is seen to be illegal and void as a process for that purpose. Allow then to the appellants the utmost latitude of presumption that can be claimed in favor of this judgment, and still it does not go far enough. To presume a legal attachment is to presume against the record; and without a legal attachment, even though the citation was issued and posted up, the court had not jurisdiction. The want of the attachment then is fatal to the judgment, and it is a defect which can be inquired into collaterally, even admitting the court in respect to this case to be one of general jurisdiction. 3 Pet. Cond. 7, 8; 5 Id. 670; 3 Yerg. 366; Id. 395.

That jurisdiction has attached in a particular case will never be presumed even in favor of courts of general jurisdiction. But when it is shown that it has attached by having the parties and subject-matter legally before it, then everything necessary to sustain the judgment is presumed. 6 Pet. 729.

It is supposed that the counsel who will close for the appellants will rely upon a few leading cases to show that the judgments of courts of general jurisdiction are binding upon all persons until reversed; that they cannot be inquired into in any other tribunal except upon appeal or writ of error; and that everything is to be presumed in their favor when brought into view collaterally.

I do not intend to controvert the correctness of these general propositions in cases where the jurisdiction is shown to have attached; but I propose to examine a few of those cases for the purpose of showing that they have no application to the one before this court; and that by no ingenuity can they be invoked to the aid and support of the judgment rendered in the attachment cause in Victoria.

The first of these cases which may be called a leading one is the case of Voorhees v. The Bank of the United States, 10 Pet. 449; and it is admitted that it fully sustains the *279 propositions laid down; but its inapplicability to the case now under consideration is found in the fact that the judgment there under review was not only the judgment of a court of general jurisdiction but that all the parties to be affected by it, as well as the subject-matter to be acted upon, were properly before the court. The validity of the judgment was questioned, not on account of a want of original jurisdiction in the court, but on account of supposed errors which occurred at the trial of the cause after jurisdiction had attached. In this case it is denied that jurisdiction ever did attach in the district court; because the defendant was not before it nor called upon by any process to appear before it, and because the attachment was wholly incompetent, as a legal process, to bring the property before the court. Neither the person nor the property was legally before the court and therefore it had jurisdiction of neither.

**19 In the very case now under review of Voorhees v. The Bank of the United States the court say, “A judgment irreversible by a superior court cannot be declared a nullity by any authority of law, if it has been rendered by a court of competent jurisdiction of the person, the subject-matter, with authority to use the process it has issued.” 10 Pet. 474.

What is meant by “jurisdiction of the person, the subject-matter, with authority to use the process,” if it allude not to the process which brings the person and the subject-matter before the court, to make the general jurisdiction which resided in the court attach to the particular person and particular subject-matter to be acted upon?

And again in the same case the court say, “The line which separates error in judgment from usurpation of power is very definite, and is precisely that which denotes the cases where a judgment or decree is reversible only by an appellate court, or may be declared a nullity collaterally when it is offered in evidence in an action concerning matters adjudicated or purporting to have been so. In the one case it is a record importing absolute verity; in the other, ‘mere *280 waste paper.”’ Id. 474. In the case of Voorhees v. The Bank, there was error which might have caused the reversal of the judgment by an appellate court. In this case there was an usurpation of power, which made the judgment “““mere waste paper.”

In the case of Grignon's Lessee v. Astor et al. 2 How. (U. S.) S. C. 319, the principles decided if not precisely similar were not adverse to those decided in Voorhees v. The Bank of the United States. The only difference is found in the difference in the character of the two cases. The case of Voorhees v. The Bank was one strictly in personam, where all the parties as well as the subject-matter were before the court; but in Grignon's Lessee v. Astor, the action was purely in rem. The judgment there questioned was one which had been rendered by a county court in Michigan, respecting an intestate's estate. The right of the county court to exercise jurisdiction in such a case was distinctly given by statute and was not controverted; but it was alleged to have been improperly exercised in that particular case. The supreme court decided that the county court had a general jurisdiction over the subject-matter; that its powers had been properly invoked; that it was a proceeding exclusively in rem; that the thing upon which the judgment was to act and which fixed the jurisdiction in the court was properly before the court; and that irregularities which occurred subsequently could only be inquired into in an appellate court. They could not be objected to collaterally in any other court. But in making that decision they use this strong and emphatic language, which in a few but very comprehensive words draws the distinction between that case and the one now before this court. They say “this is the line which denotes jurisdiction and its exercise in cases in personam; where there are adverse parties the court must have power over the subject-matter and the parties; but in a proceeding to sell the real estate of an indebted intestate, there are no adversary parties, the proceeding is in rem; the admistrator represents the land, they are analogous to proceedings in the admiralty, *281 where the only question of jurisdiction is the power of the court over the thing, the subject-matter before them, without regard to the persons who may have an interest in it; all the world are parties. In the orphans' court, and all courts who have the power to sell the estates of intestates, their action operates on the estate, not on the heirs of the intestate,” etc. 2 How. (U. S.) S. C. 338.

**20 It can hardly be necessary for me again to call the attention of this court to the fact that the action of the district court of Victoria was to operate upon the defendant, and not upon his property except as an incident. It was therefore not a proceeding in rem, and it was essential to the jurisdiction of the court that it should have had “power over the party.”

I have thus noticed these two cases decided by the supreme court of the United States, because it is believed they are the leading ones in federal jurisprudence, upon the subjects which they adjudicate; and I think I have shown there is nothing in them which controverts the positions I have taken and attempted to maintain in this case. Indeed I confidently assert that no case can be found, decided by any tribunal respectable for its learning and intelligence, in any of the courts of the United States, or of either of the states, or of England, or of any other country, which controverts the position that to give jurisdiction to a court over a party, the party himself must be brought before the court, either actually or constructively, by some process legally competent to that end. And if the court assume jurisdiction over him, without he is first brought before it by legal process, its action is coram non judice and void, and may be examined collaterally. It was doubtless this view of the subject which controlled the court below in ruling out the deed and record which were offered as testimony in the cause; and it is respectfully submitted that, upon a careful examination of all the authorities upon the subject, they will be found to sustain the decision then made.

It is said exceptions are to be found in the decisions of *282 the courts of Louisiana, and that they have gone further than the courts of the other states of the Union in preventing collateral inquiries into judgments previously rendered. If this were so, which however is not admitted, the reason might be found in the fact that in that state they have the action of nullity, by which judgments may be annulled without appeal, or even after the time for appealing or suing out a writ of error has elapsed. When the defendant has not been cited to appear, or when the judgment was rendered by an incompetent judge, the nullity of the judgment may be demanded at any time, however remote. La. Code of Pr. arts. 605, 606, 607, 610, 611, 612.

With such a certain and obvious remedy prescribed by law for the avoidance of illegal judgments, it would not be strange if the courts of Louisiana had determined not to inquire into them collaterally. But with us and the other states of the Union, there being no such remedy provided by law, the reason upon which such decisions are based, if such have been made, cannot exist, and they are wholly inapplicable to our courts.

If it should be decided here that a party cannot collaterally inquire into the validity of a judgment rendered against him in a cause, in which he had no notice to appear, and of the existence of which he knew nothing, upon the principle that courts possessing a general jurisdiction are presumed to act within the sphere of their legitimate powers; and that everything will be presumed in favor of their judgments; then such party would be totally without remedy, after the time for appealing or suing out a writ of error had elapsed, against the most iniquitous and unjust judgment, notwithstanding his failure to take the appeal or writ of error was the result of total ignorance on his part of the existence of the judgment, or the proceeding in which it was rendered.

**21 A decision which would lead to such consequences will, I apprehend, never be made in this court. Nor is it believed that a decision going to that extent has ever been *283 made even in Louisiana, where a remedy might be found in the action of nullity. In that state, it is true, for the reasons mentioned, the courts do not listen readily to objections urged to judgments rendered, when those judgments are brought collaterally before them; but it is believed that not a case can be found in their books where a judgment has been sustained, no matter how or when attacked, when it appeared that the court had no jurisdiction over the party to be affected by it or over the subject-matter of the snit. Such judgments are regarded in the courts of that state, as they are every where else, as “mere waste paper,” and may be inquired into at any and at all times, and in any way.

The other questions involved in this cause have been so ably and satisfactorily discussed by the gentlemen associated with me in this argument, that I deem it wholly unnecessary to occupy the time of the court in again adverting to them. I will, however, simply remark that there was no error in the decision of the judge in refusing to receive testimony offered to prove that the plaintiff was an alien, because no such matter was alleged in the pleading. Alienage must be pleaded in abatement or specially in bar. 9 Mass. pp. 347, 363, 431.

Besides, a person who left the country during the war and returned again during the war is not an alien, and the record shows that DeLeon did both. 2 Mass. p. 235.

There is a preliminary question in this case which must reverse the decision of the court below. The judge, under the plea of not guilty, refused to permit the defendant to prove that the plaintiff was an alien enemy at the time of the commencement of the suit. In the action of trespass to try titles, the legislature has abolished all special pleading, and permits all matters of defense to be given in evidence under the general issue. Vol. 8, p. 70. This statute, being remedial in its character, should be liberally construed. It *284 was in force when this suit was tried. Alien enemy may be pleaded either in abatement or bar, and the rule is, that whatever may be pleaded in bar may, in this form of action, be given in evidence under the general issue. 1 Chit. Pl. 482, 483; 10 J. R. 183; 11 Id. 418.

The plaintiff had himself introduced evidence of his being originally a Mexican citizen, of his going to Mexico and returning; the defendants had a right to rebut and explain this. DeLeon was one of those persons compelled to elect his allegiance between the old and new governments; if he adhered to Mexico he was an alien enemy, and the effect of his return depended upon the intent, and was a question for the jury. The proof in the record therefore does not show that he is a citizen. Inglis v. The Trustees, etc., 2 Pet. 99. The record does not and could not show that he was driven from Texas or compelled to adhere to the enemy, but only that he was required to remove from his residence for the sake of public security, which was endangered by the population in that vicinity. It was intended to be only a temporary order.

**22 It was error in the court below to rule out the judgment and sheriff's deed, offered in evidence by the defendant. His decision was based on the assumption that the court which rendered the judgment had no jurisdiction, owing to irregularities.

Jurisdiction depends either upon the person or property of the defendant, and a competent court may acquire it on either ground. Story Confl. Laws, 461. This was a proceeding in rem, and depends for its validity on the local laws. It purports to be under the act of 1837, vol. 2, 102, providing a remedy against such persons as wrongfully take and carry away the property of another, and reside beyond the jurisdiction of the courts of the country. The preamble of the statute recites that “many Mexicans” stole and carried away, etc., but the body of the act is general, and applies to all persons nonresident who wrongfully took and carried away property. The act is remedial, giving no *285 new right, but merely regulating the remedy. For it cannot be doubted that every one whose property is stolen or carried away has a right to a civil action to recover the same or its value. 2 La. (N. S.) 326; 3 Bl. Com. 116. The party might waive the tort and sue in assumpsit. 1 Sanders Pl. 127.

The constitutional objection, that this statute is retrospective, is clearly untenable, for every remedial act possesses that character in a greater or less degree. It is no objection to a law that it gives a new remedy or changes the old one. 3 Story Const. 251; 1 Kent, 455.

Moreover the constitutionality of the law was res judicata by the force of the judgment. Ex parte Watkins, 3 Pet. If such were not the case there could be no such thing as constitutional law.

There might be judicial speculation, but there could be no law; and the decision of this court in favor of the validity of the law and judgment might be treated as a nullity by every justice of the peace in the country. The judgment of a court of competent jurisdiction, when it has once acquired jurisdiction either of the person or the thing, is as conclusive upon the constitutionality of the law as any other part of the case. The courts may change their opinions, but it does not affect the result of a decision in a former case unreversed. Such a judgment becomes a muniment of title. If such were not the case, not only the law which is to govern future litigation, but all past judgments which quiet the disputes of title would be subject to the fluctuations of judicial sentiment, and the courts would be of little practical utility.

The judgment carried with the decision every other question necessary to it, if the jurisdiction once attached.

It is alleged the proceedings by attachment were void, because they do not show that there was a citation served by posting up as required by the law of Louisiana. The act of 1837 requires only an affidavit as to the property taken by the defendant; his non-residence; that the attachment *286 shall be levied by the sheriff on the defendant's property, and “that upon the return of such attachment the court shall proceed to the trial of such attachment and judgment, and execution as in other cases provided for by law.” The act makes the attachment the leading and only process in the case, and upon the return of it authorizes the court to proceed as in other cases, evidently intending as in other cases not proceeding by attachment, but as in ordinary suits. So far as this class of cases is concerned, the legislature intended to supersede the citation and publication, as required by the Louisiana code of practice, then in force in Texas, upon the subject of attachment. If such had not been the object of the legislature the whole statute would have been a work of supererogation, for it cannot be doubted that the ordinary remedy by attachment would have reached the case.

**23 The legislature may not only regulate the remedy but prescribe the manner in which process shall issue and be served, both by actual and constructive notice. The legislature had the right to say, as in fact it has done, that in a proceeding in rem the levy of process upon property is as good notice as leaving it at a deserted house of the defendant, which is held good notice in several instances by the legislation and adjudications of many of the states; or as in the case of the tax laws, which authorize execution as on judgment against the defaulting tax payers. 8 Porter, 250; Id. 245.

The act of 1837 clearly does away with the necessity of citation, because it authorizes the proceedings to be had upon the return of the attachment. It would be absurd to hold that a process should be served which the law did not require to be issued. In the case of Brown's Syndics v. Ferguson, which was a suit against an absentee, it was held that the appointment of a curator supplied the place of citation. 4 La. 288; and it was thought to be folly to issue a citation which could not be served. The law of 1837 required neither citation nor bond nor service. The jurisdiction *287 depends alone upon the affidavit, attachment levied and returned. It is purely a proceeding in rem and no jurisdiction of the person is contemplated. As to the class of cases recited in it, the statute was a repeal of the provisions of the code of practice. It was the intention of the legislature to give a more certain remedy; and remedial statutes are liberally construed to effect the intention of the law.

But admitting that the act of 1837 did not do away with the necessity of service of the petition and citation by posting it up, yet the act of January 28, 1839, which had been in force nearly two months when the suit was tried, and which repeals all other laws on the subject, clearly does away with the necessity of such a service, p. 99, 108, sec. 3, 12 and 22. There can be no doubt that the last act would apply to all proceedings in the suits pending at the time, which were had after the act took effect. It would control the service and such other portions of the proceedings as had not been previously perfected; 1 Kent, 465 (last ed. note); 1 Hill (N. Y.), 324. The act of 1839 makes the attachment the leading process and does not require any further notice, either actual or constructive.

It seems that the article in the acts of the consultation, adopting the Louisiana code of practice in proceedings in attachment, is only cumulative and did not repeal the then existing method of proceeding against absentees. If such be the case the record of the judgment against DeLeon shows all that the law required. Decrees of C. and T. 368, art. 98. “When a statute merely gives a new remedy without any negative expressed or implied, the old remedy is not taken away and the party may have his election between the two.” 3 Hill (N. Y.), 41; repeals by implication are not favored, 5 Id. 221. By reference to the above article it will be seen that the court might at any time during the progress of the proceeding, either with or without service by posting up, appoint a curator and proceed to judgment.

**24 It is argued, and there are some decided cases to that *288 effect, that this being a proceeding in derogation of the common law, it is necessary to show strictly everything that the statute recognizes in order to the validity of the proceeding. It will be found that most of these decisions are given on motion or plea to proceedings before judgment; but they have no application to the case at bar, which was a judgment rendered before the common law was in force in this country, and when the appointment of counsel for the absentee on the seizure of his property was the ordinary and not the extraordinary remedy. It was the common course of the civil law, and not therefore in derogation of common right. Neither the acts of the consultation nor the statutes, up to the time the attachment issued, had changed the old method of bringing an absentee into court. His curator, appointed without any citation or publication, represented him fully. We deny that at common law this judgment could be treated as a nullity even if we are required to comply with the requirements of the Louisiana code of practice. The district court was not one of special and limited jurisdiction. It was a court of full, original and general jurisdiction over the subject-matter -- the attachment. It had power to hear and determine, and a petition was presented stating facts which brought that power into action; upon the facts so stated an attachment was issued and levied upon property, which raised a subject-matter of jurisdiction as fully as though the party had been personally served. To maintain the reverse of this is to assert that jurisdiction depends entirely on the person and cannot be acquired without bringing in the defendant by service, which is not law. Besides, when the court has general jurisdiction and proceeds to judgment and the record is silent on the fact which gives jurisdiction, the presumption must be in favor of the regularity of the judgment. Grignon v. Astor, 2 How. (U. S.) 319; 20 Wend. 40; 4 Cow. 294. Granting then that in this case it was necessary that a citation should issue and be posted on the court house door; if the record is silent on the *289 subject and the court proceeds to final judgment the presumption is that it was done. If it was a fact necessary to be decided before the court could proceed, its existence will be presumed in favor of the regularity of the judgment. It is but a common presumption which is indulged in favor of all courts of general jurisdiction. In this case the sheriff has returned that he executed the attachment on the property but does not show how he disposed of the petition and citation. If it was necessary that they should be posted up before the appointment of a curator and judgment, and the court appointed a curator and proceeded to judgment, the presumption must be that the fact of such service existed and was proved to the court; and the rule would be the same although the law required the return to be in writing. Broomley v. Smith, 2 Hill, 518. So in a case of petition in a proceeding against unknown owners, it was objected that the affidavit and publication of notice required by the statute did not appear; but it was decided that the judgment could not be attacked collaterally for that reason. Cole v. Hall, 2 Hill, 625; so in Foster against Jones the court held that the garnishee could not move to set aside the attachment because of want of notice and affidavit, which would have been an erroneous decision if the judgment was a nullity. 1 McCord, 116; 2 Bailey, 214; 6 Porter, 365.

**25 The supreme court of the United States have gone further with their decisions. For although the federal courts are courts of special and limited jurisdiction, and jurisdiction must appear affirmatively upon the record, yet if it does not so appear, their judgments cannot be treated as nullities, but can be attacked only by appeal and writ of error. Ex parte Watkins, 3 Pet. 206-7.

Again, we say, even if we must support our judgment by the laws of Louisiana, that, according to the jurisprudence of that state, after the attachment has proceeded to judgment, the judgment cannot be attacked collaterally for previous irregularities. Decisions of their courts say that the *290 law must be strictly pursued; but it will be found that it was when the question was made in limine, and before judgment. After judgment their cases establish a different rule. In the case of Schlatter v. Broaddus, they held that the writ of attachment, duly executed, stands in the place of citation. The credits, goods and effects of the defendant, represent his person. 4 N. S. 430; 3 Cond. 342; Dafor v. Camfranc, 11 Mar. 607; 2 Cond. 243. In cases where personal service is required, or where in the absence of the defendant, a writ may be served by leaving it at the residence, if any service has been attempted; but if the one returned is defective, because it has not come up to the requirements of the law, the judgment may be reversed, but cannot be treated as a nullity.

In this case there is a return of service, which recites “executed” on four described leagues of land. It appears in proof, as made by the plaintiff below, that this place was the last residence of the defendant in the attachment; and ought not the court to presume that the copy of the petition were left there as required by art. 253 of the code of practice? The arts. 255-6 require the sheriff to keep the copy of the petition to deliver to the party or his curator, and that he shall return, in writing, the manner in which he has executed the attachment; but he is not required to return the manner in which he served the petition and citation. It can, therefore, be no objection to the judgment that it does not appear in the record. Coyce v. Curtis, Dall. 403. It may have been proved in open court.

It is objected that this attachment is issued by the judge, instead of the clerk; but this objection is clearly untenable according to the code of practice, which authorizes that to be issued either by the judge or clerk. The law of Texas, requiring all process to be tested in the name of the clerk, applies to process properly so called; an attachment never was treated as process. The objection, if well taken in limine, would come too late after the curator had pleaded to the merits and judgment. Code Practice, arts. 259, 260, 330, 343. *291 So far as irregularities of process are concerned, the appearance of the curator and pleading to the merits must have the same effect as that of the attorney appointed by the party himself. The law makes the curator the representative of the absentee, and gives him discretion in the management of the cause; and if his action did not bind the party, his appointment would be useless in the administration of justice. He has the power and authority of an attorney, and is responsible to the party for negligence or abuse of his trust. It is his pleading in the suit which renders it adversary and prevents the defendant from treating the judgment as a nullity. The curator's acts will be presumed to be regular and cannot be treated as nullities in a collateral proceeding. 9 La. 79; Id. 276, 277. Judicial attachments are issued by fiat of the judge, or rather, the fiat is the only process of attachment.

**26 Again, we say, there was an appearance in this case, authorized by the defendant, which was a submission to the jurisdiction of the court and a waiver of all irregularities of process. 3 Phil. Ev. 907; 12 Pet. 300; Dall. 593.

The record shows that Neill came into court as the attorney of the defendant, and moved for leave to plead, which, being resisted, the court refused to allow him to plead, unless he could produce a power of attorney, which he failed to do; but, on motion, was appointed curator. An appearance and motion for leave to plead is, certainly, as good as an appearance and withdrawal of plea, which has, repeatedly, been held sufficient. 7 Porter, 450. The appearance in this case would be held sufficient in Louisiana. 8 La. (N. S.) 235.

The court may, on affidavit and motion, demand the authority of the attorney to prosecute a suit, but never to defend; it is a question between the attorney and client.

“When the attorney takes upon himself to appear, the court looks no further, but proceeds as if the attorney had sufficient authority, and leaves the party his action against *292 him.” 1 Bac. Abr. tit. Att'y. p. 296; 1 Tom. 83; 2 Hill, 64.

In this case we say the record is more than silent. It recites in the bill of exceptions by the plaintiff in attachment, that the case came on “upon publication,” which must be held to mean such publication as the law required. It recites further, that the case came on “on judicial orderly attachment,” which should be held to mean more than the process. Judicial orderly attachment could, with much more propriety, refer to the whole proceeding required previous to the appointment of curator, because it was to that appointment the exception was taken. The bill was not well drawn, and if there is any ambiguity, the presumption must be in favor of the judgment. If the record does not show affirmatively that there was no publication by posting up, then the presumption must be, that the court required it to be done, and that it was had in the manner the law required in every respect.

If the proceedings in attachment were before the court on writ of error, it would not reverse, because the bill does not show the publication; and the rule is, that if it does not contain the evidence and show it to be all the evidence, the presumption is in favor of the judgment. The bill should have shown the publication posted up in hæc verba, or recited there was none. This rule is much stronger when the judgment is assailed collaterally. Dall. 376, 385. Even on a proceeding to reverse, he who assigns error must show it in the record.

The position that, quoad the proceeding by attachment, the district court is a court of special and limited jurisdiction is not law. The cases that once asserted it are not now authority, having been completely overruled by the recent decisions. 3 Pet. 201; Kemp v. Kennedy, 5 Cr. 173; 2 Hill, 518, 628; Cole v. Hall, Id. 64; 21 Wend. 40; 2 How. 319; 10 Pet. 449.

**27 Whether this is a proceeding in rem or in personam does not in the slightest degree change the result, for in the one *293 case or the other the authorities are clear that the judgment itself is prima facie evidence, that everything was correctly done as the law requires, and that the notice required whether actual or constructive was given. The presumption is as strong in one instance as the other. 4 Cow. 294; 2 Hill (N. Y.), 628. Whether it be necessary to have jurisdiction of the persons, the property or both, the presumption of law in favor of notice, the regularity of the judgment and all things necessary to it, as well service as others, is the same. 21 Wend. 45; 10 Pet. 476. Even in foreign judgments where notice may be contested. Shumroy v. Stillman, 6 Wend.

It is a singular idea that, although the judgment is conclusive as to the validity of the law and all proceedings necessary to the judgment, still a court may look behind a judgment and see whether process was rightly tested. The act of the court concludes as to the defects of process, which could only have been taken advantage of by motion to quash or plea in abatement. Such is the language of the books. The judgment carries its incidents with it.

An attempt has been made to evade the force of the cases of Grignon and Astor, and the Bank and Voorhees, on the ground that no question of notice arose, but such is not the fact. In the latter case, which was one of foreign attachment, one of the points made and responded to was, that the record did not show the publication required by law. And, if the judgment had been void for that reason, the sale would also have been void and confirmation of the sale would have amounted to nothing. A voidable act may be confirmed, but a nullity admits of no confirmation. In the other case the law of Michigan not only required that publication should be made before the court awarded the sale, but that it should be certified to by the judge, yet the court where the record was silent presumed the notice. The same presumption was made in the case in 2 Hill, 625, as well as in Kemp and Kennedy. Nor is there any good reason why the presumption should not be made in constructive as well as in actual *294 notice. The convenience of the rule is the same. The supreme courts of Louisiana and the United States have said, that after the lapse of the time for a writ of error, these judgments, for reasons of public policy, shall not be treated as nullities. 11 Mart. 607, and the case of Voorhees, 10 Pet. In a country like this such a rule is necessary to the security of society, and the reasoning of that high tribunal, respected alike for its character and great learning, comes with peculiar force.

**28 A great portion of the error in the argument on the other side grows out of confounding very different things. The counsel say that there was no power in the court, no jurisdiction, because the attachment was not properly tested and a citation properly published. The supreme court of the United States say that jurisdiction is the power to hear and determine. The law confided to the district court the power to hear and determine questions on foreign attachment against absent debtors. The plaintiff files a petition against D. alleging the indebtedness and the non-residence of D. This raises the power and authorizes the court to proceed, and if the petition had been demurred to, the court would have rendered judgment for the plaintiff. But the law requires certain steps to be taken and if they are not taken, it is not a want of power, but an abuse of authority.

Again, to make a good judgment in foreign attachment, the law requires certain proceedings. The proceedings are one thing, the proof of them another. The counsel says there is no proof of them unless they are spread out upon the records; we answer, that the record itself is prima facie proof that all these proceedings were had precisely as required by law for all purposes, except on a proceeding by appeal, a writ of error to reverse. And such is the language of the authorities.

It is very strenuously insisted in argument that the proceeding by attachment is void, because the attachment was issued by and tested in the name of the judge. I have already *295 shown that this objection, if well taken in limine, could not be urged after judgment. But in the practice of Louisiana, either judge or clerk issues the attachment and takes the bond. If the judge issues it, he never first directs a fiat to himself; if the clerk issues, it never pursues that course, but the precept or order to the officers to seize is both fiat and process. Such is also the present course in this state and all others with the officer whose duty it is to issue the attachment. It cannot be assimilated to a fiat for an injunction. It is a special precept or order which is issued under particular circumstances, supposed to be those of emergency by the judge or clerk and is not a regular or formal process. In this case the precept issued was returned into court by the officer, as the attachment was indorsed by the clerk as such, and by the court held to be sufficient process. The court treated and decided it to be the process of attachment as required by law. This decision, if erroneous, cannot be treated as a nullity in a collateral proceeding. 10 Pet. 473.

The second instruction given by the court was clearly erroneous; it assumes that although the titles themselves might be void for fraud or forgery as grants, yet the order of survey and the field notes made under them were sufficient to maintain the action. It may be true that in the absence of a grant, an order of survey and field notes would be sufficient from which one might be presumed; that, when the foundation is shown and proved to be a nullity, the superstructure is good, is certainly a singular opinion. The charge was calculated to mislead the jury, because from it forgery might have been inferred in the manner in which the grant was produced in court. It did not come from the proper place.

**29 The third charge is erroneous, because it goes to the weight of evidence.

The fourth charge was erroneous if the judgment was not void.

*296 5. At the request of the defendant the court refused to charge the jury, that if from the evidence they believed the land in controversy was within the ten coast leagues, it was necessary to show the assent of the supreme government of Mexico to the grant, which he refused, but charged further that they could not inquire into the matter. The subject was certainly open to inquiry, and therefore the charge was erroneous. If a legal commissioner made a grant in other respects valid, it might be said that the consent of the supreme government should be presumed; but that presumption, like most others, may be contradicted.

I submit that under the colonization law the consent was a condition precedent. The general colonization law of Mexico declares that to all grants within the ten coast leagues, the consent of the supreme executive shall be first had. This is a reservation of the land from sale, unless the condition precedent is complied with, which must be shown before the title can rest. Finlay v. King, 3 Pet. 374; 4 Kent, 125, 333. A patent for land reserved from sale is void. 2 How. (U. S.) 317; 13 Pet. 511, 450.

The court is not bound to give a hypothetical opinion, as the instruction would have been if the consent should be presumed from the act of the commissioner, yet if the judge assumes to give the law he must do it correctly or it will be error, and it may have misled the jury. 11 Wh. 596; Pet. Cond. 220; Etting v. The Bank. There was testimony before the jury calculated to throw suspicion upon the origin of the plaintiff's grant, and in that view of the case the instruction was pertinent. Again, there is on file in the land office a decree dated in 1828, giving to Power and Hewitson the right to colonize the country from the Nueces to the La Vaca river, which would destroy all presumptions in favor of the validity of the grant to another commissioner, as it will not be presumed that the government granted the same land twice, or that a commissioner from another colony could legally act in that of Power.

*297 Whatever may be thought of this instruction, there is no doubt of error in the other, because the charge went upon the ground that the grant being produced and shown to be void, the order of survey and the field notes under this very grant are valid and sufficient to authorize a recovery. If the grant is void, the order to survey under it is equally so, and of course the field notes share the same fate. The charge refers them all back to the void grant for authority, and declares them valid. Besides, I deny that a Mexican head-right, or order of survey which has not been ratified by a court or board of land commissioners, is sufficient to authorize either a survey or location or suit. It may not be a nullity, but the law of Texas does not make it sufficient to maintain title. It is not in itself a full title and the law does not admit it as sufficient evidence in an action of ejectment. If the party were in possession the effect might be different, but if he is out, it is not the evidence which the law requires in ejectment.

**30 There is no estoppel in this case, because the record does not show that the sheriff's deed was let in. The title of Sutherland was ruled out.

The counsel for the appellant having cited authorities in the closing argument, to which the counsel for the appellee had no opportunity of replying, the undersigned, with the permission of the court, submits the following considerations thereon:

The case, Ex parte Tobias Watkins, 3 Pet. 163, was upon an application to the supreme court of the United States for a habeas corpus. The applicant for the writ was in jail, under the sentence of the circuit court of Washington, District of Columbia, on a charge of crime. The only point applicable to the case decided by the court was that the supreme court had original jurisdiction to grant writs of habeas corpus, but could not inquire into the judgments of *298 the circuit court in criminal cases, because in such cases the power of the circuit courts over the subject was exclusive and conclusive. Everything else contained in the written opinion of the court was mere argument and illustration. If opinions were expressed upon other points, they were obiter dicta. “The court argued beyond the record.”

But even in that case it is not said that the judgment of the circuit court would have been anything more than a nullity, if it had not acquired jurisdiction over the person, notwithstanding its jurisdiction over the subject-matter was universal, unlimited and conclusive. The petition of Watkins showed that the circuit court did possess jurisdiction over his person, and its jurisdiction over the subject-matter was not questioned. The only ground urged for his discharge was that the power of the circuit court had been erroneously exercised in a case properly before it. All the reasoning of the court was predicated upon this allegation, and it decided that the circuit court was exclusively the judge of this matter.

In the case of Hort et al. v. Seixas, 21 Wend. 40, it was alleged there was error in the court which rendered the judgment, because a copy of the declaration did not appear to have been served upon the defendants, and because it was not stated in the declaration that they were in custody or had been attached. By the forms of pleading in New York, the declaration should state sufficient matter to show that the defendants were before the court; and probably the law required a copy of that declaration to be served upon the defendants. At all events such appears to be the practice. The court decided that the omission to allege in the declaration that the defendants were in custody, etc., would not be fatal on demurrer. It was therefore mere form and not substance. Such an allegation was not essential to show that the court had jurisdiction over the party. It would be presumed even though not alleged in the declaration. Besides, a strong feature in that case was, that the record showed affirmatively that a sufficient number of the defendants (three *299 being sued) were before the court to give it jurisdiction. It showed the defendants had leave to imparl, and that a copy of the declaration had been served on two of them. The court had jurisdiction of the subject and the parties, and the whole discussion in the supreme court was in reference to matters which occurred after it was shown the jurisdiction had attached. The reasoning of the court was evidently predicated upon the omission in the declaration to show that the defendants were in custody, etc. Judge Bronson in his dissenting opinion (to which and to the authorities there cited the attention of the court is respectfully invited) seems to think that a fatal error, because unless it appear in the declaration it appears nowhere; the capias being no part of the record. The whole case, however, taken in its broadest sense, seems to me to go no farther than this -- the supreme court say they will not presume the parties were not properly before the court simply because the declaration omitted to allege that they were.

**31 None of the other authorities cited by the counsel go so far as this of Hort v. Seixas; it is therefore unnecessary to advert to them in detail. But even if they did, and if they, combined with this, established every thing that is claimed for them, still I insist they do not controvert the position heretofore assumed for the appellee. The most that can be claimed for them is, that where the record is entirely silent in respect to a matter essential to the jurisdiction of a court of general jurisdiction, and the jurisdiction has been assumed, all other courts when the question comes up incidentally before them will presume that these essential requisites were performed. But no court asserts that it will presume in favor of another against what appears on the record of that other. Or in other words, no court will presume that another court had jurisdiction when its own record shows it had not.

In the case now before the court we say there does not appear enough on the record to show that the district court of Victoria had not jurisdiction. It shows affirmatively that *300 there was no legal attachment issued and levied; that the property was levied upon by virtue of a paper purporting to be an attachment which was absolutely void for illegality; and if we presume that a citation issued and was posted up because the record was silent upon the subject; still, the attachment being wanting, it was not such notice as would give jurisdiction; both being absolutely necessary under the law, to that end.

To this attachment, and which, I again repeat, was an essential part of the process to give constructive notice to the defendant, I would apply the language of the appellants' counsel used in another part of the case. “If the grounds upon which the court act are not shown, they will be presumed to be correct; but if produced and shown to be void, there is nothing left for presumption.”

If an attorney appear for a defendant, it is said he is presumed to have authority for so doing -- such presumption, if legal, cannot apply to this case because the record negatives the idea of Mr. Neill having been employed by DeLeon. He asked permission of the court to be allowed to appear. This is not the language or course of conduct of an attorney employed in a cause. It shows that he was not employed, and the court so decided when it refused to permit him to appear as an employee of DeLeon, and appointed him curator ad hoc. This appointment being void, as I trust I have already shown, no act of the curator can be construed to be the act of the defendant.

I do not controvert the opinion that a person in possession under a sheriff's deed may protect himself by a better outstanding title. But I do say, as my associate counsel has said, if the defendant sets up the plaintiff's title as the foundation of his own, he cannot afterwards controvert that title. In this case, however, he set up no outstanding title in opposition to that of the plaintiff. The record does not show that he offered a particle of evidence upon the subject of another outstanding title. He verbally asked the court to give hypothetical instructions to the jury upon a matter about which *301 there was no testimony before them, and the court very properly refused to do so. The defendant relied upon the title acquired from the plaintiff, through the sheriff's deed, and failing in that, he relied solely upon his possession.

**32 The possession of the defendant if adverse to the plaintiff was tortious and wrongful and gave him not even the naked right of possession. Adams on Eject. 29, notes; 1 Term, 107. The prior possession of the plaintiff, if not voluntarily abandoned, was sufficient to enable him to maintain his action.

This cause comes before us on an appeal from the district court for the county of Victoria. The action was brought by the appellee against the appellant to recover land. The facts of the case, so far as they are thought material to be noticed are these. Sutherland and Menifee sued out an attachment called in common law parlance an original attachment, against the appellees to recover the value of goods wrongfully taken and carried away from them by the appellant. It is said the attachment was sued out under the act of congress of the 18th December, 1837. It was issued by the judge of the district court, his own name being thereunto subscribed, on the petition of the plaintiffs. It was directed to the sheriff of the county and returned “levied on four leagues of land;” and such proceedings were had, that the plaintiffs in the suit had judgment and execution in their favor. The sheriff, under the execution, sold a portion of the land levied on, and Sutherland, one of the plaintiffs in the attachment, and who is also one of the appellants in this court, became the purchaser and received title from the sheriff for the land that is the subject of controversy in this suit. On the trial the sheriff's title was offered by the appellants in the defense, and was ruled out by the court; and in this it is contended by the appellants, the court erred.

Several objections were taken to the sheriff's deed, all based on the supposed nullity of the judgment on the attachment; *302 and it seems to be admitted by the appellee, that if that judgment is not absolutely void, its regularity cannot be questioned in a collateral inquiry; that if it is merely voidable and could be reversed for error on appeal, yet so long as it remains unreversed it cannot be questioned. It is res adjudicata. But it is contended that the judgment is void, because the act of congress under which the attachment was sued out is unconstitutional.

The first objection we shall notice to the constitutionality of the act of congress is, that it is partial in its operation, and designed to operate on Mexicans alone, a class of our citizens entitled to equal privileges with all others.

The authorities referred to and particularly that in 2 Yerger, 599, would certainly sustain the position assumed, if the premises were admitted that it applied to our Mexican citizens alone. But we will inquire if this is a fair construction of the act of congress of the 18th December, 1837. We will here insert the whole of that act; it is in the following words: “Whereas many Mexicans, residing upon our frontier, stole and drove off large herds of cattle, and took and carried off other property belonging to the citizens of the republic: and whereas those Mexicans have abandoned the country and removed beyond the Rio Grande, so that persons from whom they have taken property are wholly without remedy:

**33 Section 1. Be it therefore enacted by the senate and house of representatives of the republic of Texas in congress assembled, That in all cases it shall be lawful for any person from whom property was wrongfully taken, to sue out an attachment upon filing an affidavit stating to the best of his or her belief, the value of such property; and to the best of his or her belief, that the same was taken by the person against whom the attachment is prayed; and that the said party resides out of the jurisdiction of the court so that an action cannot be prosecuted against them; which said attachment may be levied by the sheriff of the proper county upon property both real and personal of the defendant.

*303 Section 2. Be it further enacted that upon the return of such attachment, the court shall proceed to the trial of such cause and judgment and execution as in other cases provided for by law.”

If the preamble was substantially carried into the enacting part of the statute, and we should construe it to mean Mexican citizens of Texas, the objection made by the appellee would be presented. But even if the language of the preamble was in the body of the act after the enacting clause, the more reasonable construction would be to refer it to such Mexicans as adhered to the enemy. We will not say that it was not competent for the legislature to provide a remedy for its citizens who had claims for property taken by Mexicans, so running away and adhering to the enemy and who had left property in the country. It seems to us that it would have been within the powers of congress to have appropriated such property to public use, and why not to the payment of the just demands of our citizens, without violating any privilege of the jus belli; would it not in fact be applying it to public use? There is a moral obligation on the part of the government to protect the citizen; it is one of the conditions on which his submission to and support of the government is based; and the citizen has an equitable claim on his government to compensation for spoliation committed on him by the public enemy. Again, confiscation of property for political offenses does not find much favor in modern times; it is supposed by many to belong to a less enlightened age; but surely courtesy for an enemy ought not to be carried so far as to place his property in a better condition than that of an alien friend, who resides beyond the jurisdiction of the court.

But the construction of the act of congress contended for is not correct. The preamble is no part of the act. If the enacting part was ambiguous, as to the meaning of the law-maker, it would be proper to resort to the preamble for the purpose of arriving at the true object intended. But we can *304 never resort to the preamble to control the meaning of the clear language of the statute following the enacting clause. The body of the act makes the remedy general against all persons who had wrongfully taken away property. The preamble only suggests that these Mexican robberies had awakened the legislature to the necessity of providing a remedy; as one or more acts of outrage would be the inducement to providing for another penalty or mode of trial. Again we know no rule of law that would authorize us to say, that an act of the legislature is unconstitutional unless it be clearly so; and it certainly would be a great abuse of judicial power to invoke the aid of the preamble to render it unconstitutional, when without such aid there could be no such objection. The rule is, to give it that construction that will sustain and not destroy it, if it can be done without subverting the obvious meaning of the language used.

**34 It is further urged that the act is unconstitutional because it gives a remedy by civil process for a felony; and further, that it gives a remedy where there was none before, and is therefore retrospective. We believe that neither of these conclusions can be deduced by fair construction from the language of the act. In no part of the body of the act is there any reference to stealing eo nomine, but it gives a remedy for the wrongfully taking away property. We surely will not be required, when the law uses the term wrongful, to say felony is meant, and that, too, a felony of so high a grade as to work a forfeiture; for that class alone would merge the civil remedy; such a construction would be a perversion of the ordinary meaning of words. It was admitted by the counsel for the appellee that it was perfectly competent to change the remedy or to give an additional one, but that to give one where none before existed would be retrospective and prohibited by the constitution of Texas. An ex post facto law has been usually held to apply to criminal proceedings only, and its judicial interpretation is, the making an act, not against law at the time it was done, punishable. It has never been contended that process for punishing an *305 offender, or bringing him to trial for an offense clearly known to the law, cannot be changed or modified. By analogy retrospection, within the meaning of the constitution, would be to give a right where none before existed, and by relation back, to give the party the benefit of it; if, however, the right already existed, it would be in the power of the legislature to devise and provide a remedy. This seems to be a fair construction of that part of the constitution that prohibits the passage of retrospective laws, if applicable to civil cases. If this should not be correct, it is pretty clear that the act of congress under consideration does not give a remedy where there was none before. In argument it was contended that there was no remedy in the case presented for the wrongfully taking away the goods of Menifee and Sutherland, until it was provided for by the act of 1837. This argument is not well founded; the law is believed to be otherwise. When goods have been wrongfully taken and carried away, making the taker a tort feazant, the tort may be waived and suit sustained for the value of the goods. This could have been done by the plaintiff in the attachment under the laws as they were in force before the act of 1837; DeLeon could have been sued for the value of the goods, if he could have been found, in an ordinary action, and by the appointment of a curator if absent. The act then did not give a right or a remedy where none existed before; it only gave an additional or cumulative remedy.

Another ground taken by the counsel for the appellee is, that if the act under which the attachment was sued out is free from objection as to its constitutionality, yet the judgment is a nullity, because the process was signed by the judge and not by the clerk. If the judgment was a nullity and absolutely void, its effect would be binding on no one, and no right could be founded on it. We have said that the act of 1837 cannot be impeached on the ground of its constitutionality, then there can be no question but the court derived from it jurisdiction of the subject-matter; and we will inquire whether the steps required by law were taken to *306 bring that jurisdiction to operate in the case before us. It seems to have been conceded in argument and it certainly is true, that up to the time of the passage of that act there had been no legislation in Texas since the revolution on the subject of attachments; but the ordinance of the provisional government, that introduced on this subject the code of practice of Louisiana, authorizes the judges of the provisional judiciary to issue writs of sequestration, arrest or attachment, in all cases established by the civil code and code of practice of the state of Louisiana. 7th article of the Plan and Powers of the Provisional Government, adopted 7th November, 1835. And by reference to the code of practice, under the head of attachment in the hands of third persons, will be found in the 239th article the following: “An attachment in the hands of third persons is a mandate which a creditor obtains from a competent judge commanding the seizure of any property, credit or right belonging to his debtor, in whatever hands they may be found, to satisfy the demand which he intends to bring against him. ” And article 241 is as follows: “A creditor may in like manner obtain a mandate of seizure against all species of property belonging to his debtor, real or personal.”

**35 From the above reference it seems clear that a judge was authorized to issue an attachment. It is, however, contended that so much of the code of practice as relates to the issuance of an attachment is controlled and modified by the act of congress of Texas, organizing the district courts. 1 Laws of Texas, p. 201. The seventh section of that act is in the following words: “The style of all process shall be, the republic of Texas, and shall be tested in the name of the court from which the same may issue; and the clerk issuing the same shall mark thereon the day on which it shall be issued.” There can be no doubt but the above section refers to such process as may be issued from the district court in the ordinary suits of that court; and not to such process as the judge had been required to issue himself, and it does not relate to a mandamus, arrest and attachment; *307 it was not intended to modify the laws regulating attachment. The authority given by the provisional government to the judges was unimpaired, unless the modification is to be found in the act of 1837.

Another objection taken by the appellee to the validity of the judgment is, that there was no citation served on the defendant or posted up as the law requires. The record does not show affirmatively that a citation was served, nor does it negative the fact of its having been done; a part of the record shows that “the cause came on,” “publication,” etc. What was meant by publication is left to presumption, and that would be in favor of the conclusion that publication of the citation had been made in conformity to law; this, at all events, would be the presumption where the judgment is sought to be nullified in a collateral way. But is it essential that a citation should have been issued or served at all, under the provision of the act of 1837? This act, under which the proceedings were had, does not in its terms require it. The first requisite is an affidavit of the value of the prop erty, and to the best of his belief, it was taken by the persons against whom the attachment is prayed; and that the party resides out of the jarisdiction of the court, so that an action cannot be brought against him. This affidavit authorizes an attachment to be issued and levied by the sheriff of the proper county upon the property, both real and personal, of the defendant. The affidavit is all that is necessary to support the attachment, and the sheriff is directed to make the levy; not a word is found in the statute about anything else to be done, in the commencement of the proceedings. Indeed, it would appear to be an idle form in a proceeding strictly in rem, as this was, against a non-resident on whom there could be no personal service, to have required a citation, and a copy of the process to have been posted at the door of the parish church. It is worthy of remark that in the subsequent legislation in this country, on the subject of attachment, in the act of congress of 1841, when a citation or notice is required to be published in cases *308 of non-residents, the same act authorizes the judgment to be entered for the amount of the debt established; and execution to run against all of the property of the defendant. Prior to that act no citation was required, and it is believed that until then the attachment was strictly in rem, and the judgment on it could only bind and operate on the property levied on.

**36 The second section of the act requires that on the return of the attachment, the court shall proceed to the trial of such cases and judgment and execution as in other cases provided for by law. Is it anything more than a fair and reasonable construction of the law to say that it requires nothing more to be done to bring the case into court, than is fully expressed by the language employed? After the return of the sheriff, “levied on the property of the defendant,” the jurisdiction has fully attached, and it becomes a cause in court. Such is the obvious and clear meaning of the law, for when that is done the second section of the act requires that it shall be tried and judgment and execution as in other cases. We consider it a fair construction of this part of the statute that it means the trial shall be conducted as in other similar cases, and that cases against nonresident defendants shall be within this rule. In the laws of Coahuila and Texas, 265, art. 98, it is provided that “when the defendant cannot be found or his residence be out of the state, and under circumstances that he cannot soon return, or being cited in the manner mentioned in the preceding articles, he does not reply in the time specified in the citation, or if on any stage of the trial whatever, one of the parties shall not appear when under obligation to do so, the judge, on information and petition of the party interested, shall appoint an attorney ad litem for the party absent, and the trial shall proceed in the same manner as if the party himself were present.”

This law is believed to have been in force in the courts of Texas until it was repealed by the statute of 1839 and 1840, introducing the common law; and it is believed to have been *309 the uniform practice to appoint an attorney to represent an absent party. The record shows that in the case under consideration, this practice was substantially complied with. If this view of the statute is correct, the judgment so far from being void would not have been voidable on error or on appeal. We are not now, however, to inquire into the irregularities of the judgment on the attachment; if not void, it cannot be treated as a nullity, although error may be very apparent on the record; until reversed, it is conclusive of the subject-matter, unless successfully impeached for fraud.

In Voorhees v. The Bank of United States, 10 Pet. 474, the court say that “the irregularities for which a judgment is not nullified are those which relate to the practice or mode of proceeding in the progress of a cause to judgment.” And again, in the same opinion, the court say, “in that case there are no provisions of the statute, that if the several acts there directed to be done are omitted, the sale or any other proceeding under the attachment shall be void; and the acts that should have been done were conditions precedent on which this power of the court to proceed depended, but the law did not prescribe what should be deemed evidence of the acts being done or directed that their performance should appear on the record,” And in Grignon et al. v. Astor et al. 2 How. 243, the supreme court of the United States say, when jurisdiction is attached to a subject or exists over a person, this court has adopted a rule applicable to all courts of record, that their decisions are conclusive, “it has a right to decide every question which arises in a cause, and whether its decision be correct or otherwise, its judgment, until reversed, is binding on every other court.” 5 Pet. 166; 1 Id. 340; 11 Id. 473.

**37 The principles of the cases above cited are conclusive of the character of the judgment on the attachment. The act of congress of Texas of 1847 gave jurisdiction of the subject-matter, the property of the defendant, on making the affidavit; the jurisdiction attached on the return of the sheriff *310 of the attachment levied, and jurisdiction having once attached, in the language of the supreme court, the decision is conclusive; an irregularity afterwards could not nullify the judgment. We believe that the true rule of distinction, as established by the concurrent decisions of the most respectable tribunals, between a void and a voidable judgment, is this: Has the court jurisdiction and has that jurisdiction attached? Has the court no jurisdiction or has the jurisdiction not attached? The former would be a judgment not to be questioned by a collateral inquiry; and until reversed, would be binding on all other courts; the latter would be a nullity and could give no right and afford no defense.

In the case before us, we consider the judgment in the attachment was not void, and that the district court erred in treating it as a nullity.

There were many other points presented by the record and insisted on in this court by the appellants' counsel; but as the view we have taken of the points considered is decisive of the case, we have not felt called on to dispose of the others.

The judgment of the district court is reversed.

NOTE. The cause, upon the motion of the appellee's counsel, was, at a subsequent day of the term, ordered to be remanded for a new trial.