When an ancient deed forms part of the original papers in a suit
in a court of record to determine the title to land to which the
deed relates, the record of the case is admissible against persons
who are not parties or privies to the suit in order to prove the
antiquity of the deed and to account for its custody.
Page 117 U. S. 256
An ancient, uncontradicted, and apparently genuine certificate
of a recorder that a deed was recorded in a specified year long
gone by, endorsed upon the original deed, is competent and
sufficient evidence that the deed was put on record in the year
named.
Stebbins v. Duncan, 108 U. S.
32, affirmed.
When it appears that a deed is at least thirty pears old and
that it is found in proper custody, and possession under it is
shown or other equivalent corroborative proof of authenticity, the
deed may be admitted in evidence.
The Act of the Legislature of Kentucky of December 19, 1795, "to
establish district courts in this commonwealth" conferred upon such
a court jurisdiction over suits to foreclose mortgages upon real
estate situated within its territorial jurisdiction.
When a court of general jurisdiction, empowered by statute to
acquire by constructive notice jurisdiction over rights of
nonresident defendants in property within its jurisdiction, takes
jurisdiction of a cause involving such rights after ordering
service of notice upon an absent defendant in the manner required
by the statute and after the lapse of the requisite time for
service, and adjudges the case, it will be presumed that every step
necessary to obtain jurisdiction has been taken, unless the statute
requires evidence of it to appear in the record.
This suit was in the nature of an action of ejectment to recover
possession of a tract of land formerly in Mason County, but now in
Greenup, Carter, and Boyd Counties, in Kentucky. The plaintiffs in
error were the plaintiffs in the circuit court. They alleged in
their petition that they were the lineal heirs of Carey L. Clark,
who died seized of a tract of eight thousand three hundred and
thirty-four acres, part of a tract of eighteen thousand acres,
granted by patent from the Virginia, dated April 21, 1792, to
Charles Fleeting, from whom their ancestor, Carey L. Clark, derived
title by a regular chain of conveyances, that the plaintiffs were
the owners, and entitled to the possession of the land sued for,
and that the defendants had unlawfully entered upon and unlawfully
withheld possession of the same.
The defendants, by their answers, denied these allegations and
averred that they were seized of the premises by paramount title.
The answers were traversed by the plaintiffs' reply.
There was a jury trial. The plaintiffs, to sustain the issue on
their part, offered in evidence the following documents as links in
their chain of title:
Page 117 U. S. 257
1. A copy, duly certified, from the land office of the State of
Kentucky, of the patent from the State of Virginia to Charles
Fleming, for the tract of land of which the land in controversy was
originally a part.
2. A copy of the will of Charles Fleming, devising a moiety of
said tract of land to William Fleming, John Bernard, Jr., and
Richard Bernard, as trustees.
3. A copy of a deed from Samuel Sackett and wife to Joseph
Conkling and others, dated August 29, 1795, for the particular land
in controversy in this case, together with certain other tracts
that had been patented by the State of Virginia to Charles
Fleming.
4. A copy of a mortgage from Joseph Conkling and others, the
grantees above named, to Samuel Sackett, the grantor above named,
conveying the same lands as above, and dated August 29, 1795.
5. A copy of a deed from William Fleming and the Bernards,
trustees as above under the will of Charles Fleming, to John Bryan,
conveying to Bryan the lands devised to them by the will of
Fleming, and dated December 31, 1796.
6. The original of the deed last named.
7. A copy of a deed from John Bryan and wife to Samuel Sackett,
dated January 28, 1797, conveying the same land conveyed to Bryan
by deed last above named.
8. The original of the deed last above named.
9. The original of a deed from Charles Fleming, dated August 8,
1784, to John and William Bryan, conveying to them 13,300 acres of
the land that had been patented to said Charles Fleming, and being
part of the 18,000 acre tract, of which tract the land in
controversy is also a part.
10. A certified copy from the Mason County Circuit Court of the
record in the case of
Carey L. Clark v. Joseph Conkling and
others, in which Clark, as the assignee of the above-mentioned
mortgage of Joseph Conkling and others to Samuel Sackett, brought
suit to foreclose the same.
It was shown that a short time before the trial in circuit
court, deeds 6, 8 and 9 were discovered in the office of the Clerk
of the Circuit Court of Greenup County, Kentucky,
Page 117 U. S. 258
among the original papers in a suit brought there in 1816 to
quiet title to part of the land conveyed by the deed of William
Fleming and the Bernards to John Bryan. The deeds were produced by
the court in obedience to a subpoena
duces tecum.
The court admitted in evidence the first four of the documents
above mentioned. All the others were rejected -- namely the
original and a copy of the deed from William Fleming and the
Bernards to John Bryan, the original and the copy of the deed from
Bryan to Sackett, the original of the deed from Charles Fleming to
John and William Bryan, and the copy of the record from the Mason
County Circuit Court in the case of
Clark v. Conkling and
others.
The court having excluded these documents, the plaintiffs were
unable to trace title to themselves for the premises in
controversy. Thereupon the jury, under the instruction of the
court, returned a verdict for the defendants, upon which the court
rendered judgment, and the plaintiffs sued out this writ of
error.
Page 117 U. S. 260
MR. JUSTICE WOODS delivered the opinion of the Court. After
stating the case as above reported, he continued:
We shall first consider the exclusion of the original deed from
Fleming and the Bernards to John Bryan, and the original deed from
John Bryan to Samuel Sackett. We are of opinion that they should
have been admitted in evidence. They have been certified to and
inspected by this Court. Their appearance affords strong evidence
of their genuineness and antiquity, and they are free from any
badge that would excite suspicion of fraud or forgery. In support
of their genuineness it was shown that a short time before the
trial in the circuit court, they were discovered by one of the
plaintiffs' attorneys
Page 117 U. S. 261
in the office of the Clerk of the Circuit Court of Greenup
County, Kentucky, among the original papers of a suit in that court
brought by one
James Hughes v. The Heirs of Thomas Shore
on July 15, 1816, to quiet his title to 16,000 acres of land in
Greenup County, part of the lands conveyed by the deed of William
Fleming and the Bernards to John Bryan. The deeds and the original
papers in that suit were produced by a clerk of the Greenup Circuit
Court in obedience to a subpoena
duces tecum. The record
of this case was admissible against persons, not parties or
privies, to prove the collateral fact of the antiquity of the
original deeds offered in evidence and to account for their
custody.
Barr v.
Gratz, 4 Wheat. 220.
The bill of Hughes averred that he derived title under the
patent to Charles Fleming, and by virtue of the devise in his will
to William Fleming and the Bernards, and the deeds of William
Fleming and the Bernards to John Bryan and of John Bryan to Samuel
Sackett. The complainant Hughes offered by his bill "to produce
said patent and deeds showing the deduction of title in proper
time, or whenever the court should require it." The two deeds
mentioned in the bill of complaint filed by Hughes correspond with
and appear to be the two original deeds, namely the deed from
William Fleming and the Bernards to John Bryan and the deed from
John Bryan to Samuel Sackett, offered in evidence by the plaintiffs
in this case, which were found among the other papers in the case
of
Hughes v. The Heirs of Shore. These deeds were
necessary exhibits and evidence in the case to entitle Hughes to
the relief prayed for. They were produced from the files of the
highest court of the county where the lands were situate, from the
custody of an officer charged by law with their care and
safekeeping, where they had been placed for a necessary and proper
use, and from which they could not be withdrawn without the order
and consent of the court. Their custody was therefore accounted
for, and was shown to be proper and beyond suspicion.
It further appeared that upon the trial of the case of
Hughes v. Shore's Heirs on July 8, 1825, the patent to
Charles Fleming from the Commonwealth of Virginia for 16,191 acres
of
Page 117 U. S. 262
land, the will of Charles Fleming, and the said deed of William
Fleming and the Bernards, trustees, to John Bryan, were offered in
evidence. The latter was rejected "because," as the bill of
exceptions states, "the certificate and seal of the Mayor of
Philadelphia" was
"not sufficient to authorize it to be read, and because the same
could not be read as a recorded deed, not having been recorded
within the time prescribed by law,"
and
"because, by rejecting this deed, complainants' chain of title
was broken, and they could not further progress with their
evidence, the court rendered a decree dismissing their bill."
It is therefore made clear by the evidence offered that at least
as early as the year 1825, the deed of William Fleming and the
Bernards to John Bryan was on file in the Circuit Court of Greenup
County, and it may be safely inferred that the other documents
mentioned by Hughes as his muniments of title were also on file in
the same court at the same time, and that all the deeds remained in
the custody of the court down to the time when they were produced
by the clerk under the subpoena
duces tecum issued in this
case, a period of fifty-five years.
Another circumstance relied on to show the genuineness of the
original deeds was that each bore, endorsed thereon, a certificate
apparently ancient and genuine, one with the signature of the
recording officer, and the other without signature, to the effect
that the deeds had been recorded in the year 1816. In the case of
Stebbins v. Duncan, 108 U. S. 32,
108 U. S. 50, it
was held that a certified copy of a memorandum made at the foot of
the record of a deed "recorded June 23, 1818," and without
signature, was competent and conclusive evidence that the deed had
been recorded at the date mentioned. In view, therefore, of the
habit or recorders of deeds, which is universal, and matter of
common knowledge, to endorse upon the deeds themselves the fact and
date of their registration, the certificates appearing on the deeds
in question were competent and sufficient evidence of the fact that
the deeds had been put upon record during the year mentioned in the
certificates. We think this evidence, supported by an inspection of
the deeds, was sufficient to justify their admission as ancient
deeds without direct proof of their execution. The rule is that
an
Page 117 U. S. 263
ancient deed may be admitted in evidence without direct proof of
its execution if it appears to be of the age of at least thirty
years, when it is found in proper custody, and either possession
under it is shown, or some other corroborative evidence of its
authenticity freeing it from all just grounds of suspicion.
Thus, in
Barr v.
Gratz, 4 Wheat. 220, a deed from Craig to Michael
Gratz, dated July 16, 1784, was offered in evidence, but was not
proved by the subscribing witnesses nor their absence accounted
for. Its admission was alleged as error, but this Court said that,
as the deed was more than thirty years old and was proved to have
been in the possession of the lessors of the plaintiff, and
actually asserted by them as the ground of their title in a prior
chancery suit, it was, in the language of the books, sufficiently
accounted for, and on this ground, as well as because it was a part
of the evidence in support of the decree in that suit, it was
admissible without the regular proof of its execution.
So, in
Caruthers v. Eldridge, 12 Grattan 670, it was
contended by the plaintiff in error that in no case could a paper
be admitted in evidence as an ancient deed, without proof of its
execution, until it was first shown that thirty years' quiet and
continued possession of the land had been held under the deed. But
the court held in substance that an ancient deed may be introduced
in evidence without proof of its execution, though possession may
not have been held for thirty years in accordance therewith, if
such account be given of the deed as may be reasonably expected
under all the circumstances of the case, and as will afford the
presumption that it is genuine. In
Harlan v. Howard, 79
Ky. 373, the Court of Appeals states the rule in relation to the
proof of ancient deeds thus:
"The genuineness of such instruments may be shown by other facts
as well as that of possession, and when proof of possession cannot
be had, it is within the very essence of the rule to admit the
instrument, when no evidence justifying suspicion of its
genuineness is shown, and it is found in the custody of those
legally entitled to it."
See also Vin.Ab., Evidence, A.b. 5, Ancient Deeds 7;
Com.Dig. Evidence, B, 2; 1 Greenleaf on Evidence § 144, and note 1;
Starkie on Evidence 524;
Page 117 U. S. 264
Phillipps on Evidence, Cowen & Hill's, Part II., note 197,
page 358
et seq., 3d ed.; note 430, page 400, 5th ed;
Doe v. Passingham, 2 Car. & P. 440;
Rancliffe v.
Parkyns, 6 Dow 149, 202;
Winn v.
Patterson, 9 Pet. 663;
Jackson v. Laroway,
3 Johns. Cas. 283;
Hewlett v. Cock, 7 Wend. 371.
In the case last cited, Judge Nelson, afterwards a Justice of
this Court, said that there was some confusion in the cases in
England and New York as to the preliminary proof necessary to
authorize an ancient deed to be read in evidence; that possession
accompanying the deed was always sufficient without other proof,
but it was not indispensable. He approved the decision in
Jackson v. Laroway, ubi supra, which he said had been
recognized as law in
Jackson v. Luquere, 5 Cowen 221, and
had undoubtedly in its favor the weight of English authority. These
authorities sustain the rule as we have stated it.
The deeds in question, when offered in evidence, purported to be
over eighty years old, and their appearance tended to prove their
antiquity and their genuineness. The testimony offered in support
of them proved their existence as far back as the year 1816, and
that in that year they had been placed upon the public record of
deeds, where, if properly acknowledged, they would have been
entitled to registration. In the same year in which they were
recorded, they were mentioned and referred to in the bill filed by
Hughes v. Shore's Heirs as muniments of his title, and he
offered to produce them when required. There is no reason to doubt
that they remained in the rightful custody of the clerk in whose
office they had become file papers until, after a lapse of at least
fifty-five years, they were found and produced upon the trial of
the present case by the officer to whose custody they belonged.
But the proof of the genuineness of both deeds was greatly
strengthened by evidence which applied directly to one only of the
two, namely, the original deed from John Bryan to Samuel Sackett
dated January 28, 1797.
This consisted of the record of a partition made October 18,
1810, on the application of James Hughes, by commissioners, under
authority of a General Act of the Legislature of Kentucky approved
December 19, 1796. Hughes claimed the undivided
Page 117 U. S. 265
half of the 18,000 acres conveyed to Charles Fleming by the
Governor of Virginia by patent dated April 21, 1792, and alleged as
muniments of his title the said patent, and the deed of John Bryan
to Samuel Sackett. On the strength of the title shown by Hughes,
the commissioners divided the 18,000 acres, and set off and
conveyed to him the one-half thereof in severalty, and, in their
deed of conveyance, referred to the patent to Charles Fleming, and
the deed of Bryan to Sackett, as links in the title of Hughes. The
partition thus made is shown to have been recognized by successive
conveyances of parts of the land set off to Hughes, and by
possession held thereunder. The testimony therefore shows that as
early as the year 1810, the deed of Bryan to Sackett was in
existence; that it was recognized as a genuine deed by public
officers whose duty it was to scrutinize it, and was made by them
the basis of their official action, and that possession has been
held of a portion of the land described therein by persons who
tract title through it to the patent to Charles Fleming. These two
deeds under consideration are shown by the record to have a common
history, and to have been relied on as links in the same chain of
title. Testimony, therefore, which is directly applicable to one
only tends to support the other. The facts, therefore, which we
have just stated in reference to the deed from Bryan to Sackett
tend to show also the genuineness of the deed from Fleming and the
Bernards to Bryan. We are therefore of opinion that the genuineness
of both deeds was proven, and that the court erred in excluding
them from the jury.
The offer in evidence of the original deed from Charles Fleming
to John and William Bryan dated August 8, 1794, stands upon
substantially the same ground as the two deeds already considered.
The bill of exceptions states that the plaintiffs offered in
support of the competency of this deed the same evidence as was
offered in support of the two last-mentioned deeds; that it was
found at the same time and place, and produced from the same
custody. In further support thereof, the plaintiffs produced the
clerk of the Mason County Court, having with him Deed Book B,
containing deeds recorded
Page 117 U. S. 266
in the clerk's office of that court, beginning February 22,
1794, and the two or three years next ensuing, and offered to show
that there was recorded in that book a deed identical in terms with
the aforesaid original deed. They also offered and read in evidence
a copy of the deed, duly certified from the clerk's office of the
Mason County Circuit Court, with a copy of the certificate thereto
appended showing that the original deed was recorded in the year
1794. It follows from what we have said in relation to the
admissibility of the other original deeds that this one also should
have been received in evidence, and that the circuit court erred in
excluding it.
It remains to consider the exclusion by the circuit court of
transcript of the record in the case of
Clark v. Conkling.
This was a suit brought by Clark in the district court held at
Washington, in Mason County, Kentucky, on June 13, 1798, as the
assignee of the mortgage from Conkling to Sackett, to foreclose the
same, and the record was offered only to show the orders and
decrees of the court in respect to the mortgaged premises situated
within its jurisdiction, and not to prove any personal decree
against the defendants. It appears from the record in this case
that a subpoena having been issued and returned, with the
endorsement that the defendants were not inhabitants of the
commonwealth, the court made the following order at its November
term, 1798:
"The defendants, not having entered their appearance agreeably
to an act of assembly and rules of this court, and it appearing to
the satisfaction of the court that they are not inhabitants of this
commonwealth, on the motion of the complainant, by his attorney, it
is ordered that the defendants appear here on the third day of our
next term, and answer the complainants' bill, and that a copy of
this order be inserted in the Kentucky Gazette or Herald for two
months, successively, another posted at the door of the courthouse
of Mason County, and that this order be published some Sunday at
the door of the Baptist meeting house in Washington."
In June, 1799, the bill was taken as confessed, and an
interlocutory decree made requiring the defendants to pay the money
due on the mortgage. The money not having been paid, a decree
Page 117 U. S. 267
of sale was made at the February term, 1800. The commissioners
to make the sale reported on July 19, 1802, that after public
notice they had sold the lands at public sale to Carey L. Clark,
the complainant. Afterwards a final decree was made foreclosing the
defendants of their equity of redemption in the premises.
The defendants objected to the introduction of the record, and
the objection was sustained, and the defendants now insist that the
exclusion of the record was right, first because the court did not
have authority of law to hear and determine the subject matter of
the suit, nor of suits of the class to which it belonged, and
second because the record exhibits no proof of the publication or
posting of the notice to the defendants, as required by the laws of
Kentucky.
We think the first objection is answered by reference to the
statute laws of Kentucky in force at the time. Section 8 of the Act
of the General Assembly of Kentucky approved December 19, 1795, "to
establish district courts in this commonwealth," provided as
follows:
"The jurisdiction of the said district courts respectively shall
be over all persons, and in all causes, matters, and things at
common law or in chancery, arising within their districts,"
excepting actions of assault and battery, or suits for slander,
and subjects of controversy of less than fifty pounds in value. 1
Littell's Laws of Kentucky 298.
Section 4 of the act approved December 19, 1796, directing the
method of proceeding in courts of equity against absent debtors and
other absent defendants, provides for constructive service by
publication
"in all cases whatever when a suit is or shall be depending in
any court of chancery, concerning any matter or thing whatever,
against any absent defendant or defendants."
1 Stat. (Laws M. & B.) 93. These provisions of the statute
law are ample to confer jurisdiction on the court where the
property in controversy is within its territorial jurisdiction, and
are so clear as to require no discussion of the question, for, as
was said in
Grignon's Lessee v.
Astor, 2 How. 338, "the power to hear and determine
a cause is jurisdiction. If the law confers the power to render a
judgment or decree, then the court has jurisdiction."
Page 117 U. S. 268
But it is objected to the record that it does not show
publication and posting of notice to the defendants, as required by
the order of the court and by law. The law is found in § 2 of the
Act of December 19, 1796,
ubi supra, and is as
follows:
"The court shall also appoint some day in the succeeding term,
for the absent defendant or defendants to enter his, her, or their
appearance to the suit, and give security for performing the
decree, a copy of which order shall be forthwith published in the
Kentucky Gazette or Herald, and continued for two months
successively, and shall also be published on some Sunday,
immediately after divine service, in such church or meeting house
as the court shall direct, and another copy shall be posted at the
front door of the said courthouse."
The plaintiffs in the present case offered evidence outside the
record to prove the fact that the order was published in the
Kentucky Gazette, as required by the statute, by calling the
assistant librarian of the public library at Lexington, "having
with him," as the bill of exceptions states,
"printed newspapers which appeared to be of great age, and which
purported to be the original files of the newspaper called the
Kentucky Gazette, published weekly, and plaintiffs showed, in nine
successive issues of said newspaper, weekly publications, beginning
with December 12, 1798, and ending with February 7, 1799, of"
the order of the court above mentioned. But no proof was offered
to show the publication of the order at the church or meeting
house, or the posting of it at the front door of the courthouse.
After the lapse of more than eighty years, proof not of record of
these facts was clearly impossible. The fact, therefore, that after
the lapse of so long a time the plaintiffs were able to show that
the order of the court had been obeyed, by its publication in a
newspaper, was persuasive evidence that the other requirements of
the order had also been performed.
But the record contained no proof of the publication and posting
of the notice as required by the statute, and it is insisted by the
defendants in this case that the record itself must show the
publication and posting of the notice as required by
Page 117 U. S. 269
law, otherwise the jurisdiction of the court does not appear and
its decree is absolutely void. While it must be conceded that, in
order to give the court jurisdiction over the persons of the
defendants, all the steps pointed out by the statute to effect
constructive service on nonresidents were necessary, yet it does
not follow that the evidence that the steps were taken must appear
in the record, unless indeed the statute expressly or by
implication requires it. The court which made the decree in the
case of
Clark v. Conkling was a court of general
jurisdiction. Therefore every presumption not inconsistent with the
record is to be indulged in favor of its jurisdiction.
Kempe's Lessee v.
Kennedy, 5 Cranch 173;
Voorhees
v. Bank of the United States, 10 Pet. 449;
Grignon v.
Astor, 2 How. 319;
Harvey v.
Tyler, 2 Wall. 328. It is to be presumed that the
court, before making its decree, took care to see that its order
for constructive service, on which its right to make the decree
depended, had been obeyed. That this presumption is authorized will
appear by the following cases:
In
Harvey v. Tyler, ubi supra, the Court, speaking by
MR. JUSTICE MILLER, said:
"The jurisdiction which is now exercised by the common law
courts in this country is in a very large proportion dependent upon
special statutes conferring it. . . . In all cases where the new
powers thus conferred are to be brought into action in the usual
form of common law or chancery proceedings, we apprehend there can
be little doubt that the same presumptions as to the jurisdiction
of the court and the conclusiveness of its action will be made as
in cases falling more strictly within the usual powers of the
court."
P.
69 U. S.
342.
In
Hall v. Law, 102 U. S. 461, the
validity of a partition of lands made by a circuit court of the
State of Indiana was attacked. This Court, speaking by MR. JUSTICE
FIELD, said: "All that" the statute
"designates as necessary to authorize the court to act is that
there should be an application for partition by one or more joint
proprietors, after giving notice of the intended application in a
public newspaper for at least four weeks. When application is made,
the court must consider whether it is by a proper party, whether it
is sufficient in
Page 117 U. S. 270
form and substance, and whether the requisite notice has been
given, as prescribed. Its order made thereon is an adjudication in
these matters."
The case of
Voorhees v. Bank of the
United States, 10 Pet. 449, was an action of
ejectment, and the case turned on the validity of a sale of the
premises in controversy under a judgment of the Court of Common
Pleas of Hamilton County, Ohio, in a case of foreign attachment.
The sale was attacked on the following among other grounds:
1. Because the statute authorizing the proceeding by foreign
attachment required that an affidavit should be made and filed with
the clerk before the writ issued, and no such affidavit was found
in the record.
2. Because the statute directed three months' notice to be
given, by publication in a newspaper, of the issuing of the
attachment, before judgment should be entered, and also required 15
days' notice of sale to be given, neither of which appeared by the
record to have been done.
3. Because the statute required that the defendant should be put
in default at each of the three terms preceding the judgment, and
the default entered of record, but no entry was made of the default
at the last of the three terms.
But the Court overruled the objections and sustained the
validity of the judgment and the sale. It said:
"But the provisions of the law do not prescribe what shall be
deemed evidence that such acts have been done, or direct that their
performance shall appear on the record. The thirteenth section of
the attachment law, which gives to the conveyances of the auditors
the same effect as a deed from the defendant in the attachment,
contains no other limitation than that it shall be 'in virtue of
the authority herein granted.' This leaves the question open to the
application of those general principles of law by which the
validity of sales made under judicial process must be tested, in
the ascertainment of which we do not think it necessary to examine
the record in the attachment, for evidence that the acts alleged to
have been omitted appear therein to have been done."
The result of the authorities and what we decide is that where a
court of general jurisdiction is authorized in a
Page 117 U. S. 271
proceeding, either statutory or at law or in equity, to bring
in, by publication or other substituted service, nonresident
defendants interested in or having a lien upon property lying
within its territorial jurisdiction, but is not required to place
the proof of service upon the record, and the court orders such
substituted service, it will be presumed, in favor of the
jurisdiction, that service was made as ordered, although no
evidence thereof appears of record, and the judgment of the court,
so far as it affects such property, will be valid. The case of
Galpin v.
Page, 18 Wall. 350, cited by counsel for defendant,
is not in conflict with this proposition. The judgment set up on
one side and attacked on the other in that case was rendered on
service by publication. The law permitted service to be made by
publication only where certain facts were made to appear to the
satisfaction of the court, and the court by a precedent order,
which must necessarily appear of record, authorized service to be
made by publication. But the record showed no such order, and the
publication therefore was the unauthorized act of the party, and
appeared affirmatively to be invalid and ineffectual.
See also
Pennoyer v. Neff, 95 U. S. 727,
95 U. S.
734.
It results from the views we have expressed that
The judgment of the circuit court of Kentucky must be
reversed and the cause remanded with directions to grant a new
trial.