stated. The Court below, WILLIAMS, P. J., gave judgment for the plaintiff in an able opinion. The case was argued by T. J. Fox Alden, Esq., for plaintiff in error, and by The opinion of the Court was delivered by LEWIS, J.-The power which a married woman exercises over her real estate, is not a mere naked power; nor is it altogether analogous to a power coupled with an interest. It is the right of disposition incidental to ownership. The disability of coverture is thrown around her for the protection of the rights of herself and her husband. It is a shield for defence-not a weapon for mischief. When that disability is removed, or, what is the same thing, whenever the law permits her to act in relation to her estate, she acts as proprietor, and may exercise the rights of one. She has a right, by law, to sell her estate, with the consent of her husband, provided there is no coercion. To secure the one, and at the same time to guard against the other, she is required to unite with him in the execution of the conveyance, and to separate from him in the acknowledgment of it. 6 Harris, 506; 7 Harris, 361. If she exercises, in this form, her right to sell, she may dispose of her estate upon such terms and conditions as she deems most advisable. She may, therefore, mortgage it for her husband's debts; for a mortgage is but a sale on condition. 3 John. Ch. Rep. 144; 7 Harris, 402. And, for the same reason, she may prescribe such terms, and waive such privileges, as she thinks proper to prescribe or waive, so long as her acts are essentially a part of the contract of sale, and bind nothing but the property sold. This has just been decided in the case of Black and wife vs. Galway. By the common law, she may be grantee in a deed, without the consent of her husband. He may, it is true, divest the estate by his dissent. But if he neither agree nor disagree, the purchase is good. Baxter vs. Smith, 6 Bin. 427; 4 Cruise's Dig. 25. She may even be the grantee upon condition, and she will be bound to perform the condition, "because it does not charge her person, but the land." 1 Roll. Ab. 421; 2 Cruise's Dig. 35. 66 In the case before us, the husband has not disagreed to the conveyance, and the estate is, therefore, vested in the wife. Under the operation of the act of 1848, it is to be "owned, used and enjoyed as her separate property." But the same act that gives her these advantages, attaches conditions in law to the grant. The estate is to be liable for "debts contracted by herself, or in her name, by any person authorized so to do." It is also to be liable for debts. contracted for the support and maintenance" of her "family, if no property of the husband can be found." She cannot take the benefits without performing the conditions. Even under the law, as it stood before the act of 1848, she could not retain the estate conveyed, without paying the judgment given for the purchase money. Heacock et al. vs. Fly, 2 Harris, 540. But in this case, the judgment bond for the purchase money is expressly charged upon the land by the terms of the conveyance. The payment of the money is the condition subject to which she accepted the property, and upon no just principle can she hold it without performing the condition. Under the act of 1848, her power to purchase gives her a right to contract for the payment of the consideration money, so far as to charge the property with such incumbrances as may be agreed upon to secure its payment. A judgment given for this purpose is, therefore, not void on the ground of coverture, and the application to deprive the creditor of the security for his money, was properly denied. If a Court permitted her to retain the property, and at the same time refuse to pay the consideration money, it would no longer deserve its designation of "a place where justice is judicially administered." It is not proposed to charge the woman, personally, with the judgment; nor are we prepared to say that her other property is chargeable with the debt. But clearly, the property purchased is bound by a judgment given for the consideration money. It is considered and adjudged, that the judgment of the District Court be affirmed, to be levied of the two lots, numbered 85 and 86, on Buena Vista plan, Second Ward, Allegheny, being the same which were conveyed by the said William Robinson to the said Arabella Patterson, by deed of the 1st August, 1848, recorded in vol. 81, page 599, in consideration in part of the judgment aforesaid. In the District Court for the City of Philadelphia. FRITZ VS. FISHER. 1. A judgment of one court will not be enforced by another, unless it is certain in itself, or is capable of being made so by intendment or presumption. 2. It seems, that a defence to the judgment of another State on the ground of want of notice should be pleaded; and that when it is not, the judgment will not be held invalid, merely because the record fails to show that notice was given. The opinion of the Court was delivered by HARE, J.-This is an action of debt against Fisher & Smith, founded on a judgment rendered by a justice of the peace in New Jersey. The judgment as produced and proved in this In the Court for the trial of small causes, before Joseph B. Strafford, Esq., Justice. Andrew Fritz, plaintiff, 08. Henry Fisher and George A. Link, defendant. In trespass on the case, damage $100. May 25, 1853. Issued a summons in the above case, returnable before me on Wednesday, the 1st day of June next, at 2 o'clock, P. M. Constable returned the same, as follows: "Served the within May 25, 1853, on the said Henry Fisher, by reading it to him, a copy not required. C. H. Gordon, Constable." June 1, 1853. Counsel for both parties sent me a note, requesting a postponement for two weeks, with an arrangement that plaintiff should then have the privilege of filing his state of demand; whereupon I adjourned the trial until the 15th inst. at 4 o'clock in the afternoon. June 15, 1853. Parties appeared. Plaintiff filed his state of demand. Trial court is against "defendants," but the record shows that Smith was the only person served with process, or who appeared in or defended the action. Fisher, consequently, contended at the trial, that the judgment as against him was a nullity; that the proof did not sustain the declaration, and that the plaintiff must fail on account of the variance. The point was reserved and is now before us for decision, and we have also to render judgment on a plea of nul tiel record, which raises nearly the same question. All judgments derive their force from the powers conferred by the State, on the courts which render them, and are therefore necessarily void when those powers are exceeded. This principle applies equally to the highest tribunals of Westminster Hall, or our own country, and to the pettiest magistrate or most inferior court. A criminal information in the Common Pleas, a common recovery in the Queen's Bench, an action of ejectment in the high Court of Chancery, would be all so much waste paper, and could not be pleaded or given in evidence as a justification, in an action of trespass against the sheriff, or any other officer of those courts, who should act upon them, even in obedience to the commands of his superiors. This was settled as far back as the case of the Marshalsea, 10 Coke, 68-76, and has never since been questioned. If, says Lord Coke, citing and relying on the language of the court in the case of Bower vs. Collins, in the 22 Edward, 4, 33, b, "the court has not power and authority, then their proceeding is coram non judice: as if the Court of Common Pleas hold plea in an appeal of death, or robbery, or any other appeal, and the defendant is attainted, it proceeded. Dudley, counsel for plaintiff. Dayton, for defendant. William Small, Lewis Yeager, Lewis Holtzworth, Restore Cook and David Brinnersholtz, were sworn as witnesses on part of plaintiff. Plaintiff also offered a transcript from Justice Curts' docket, and several receipts from defendants to plaintiff, in evidence, which were received. After hearing the witnesses and the parties, I gave judgment in favor of the plaintiff against the defendants for one hundred dollars damages, and two dollars and twenty-seven cents costs. I do hereby certify the above to be a true transcript from my docket, in the case as therein named. Witness my hand and seal at Camden city, in said county, this sixteenth day of November, A. D. eighteen hundred and fifty-three. [SEAL] JOSEPH B. STRAFFORD, J. P. pre is coram non judice: quod omnes concesserunt." Jurisdiction is sumed, said Parke, B., in delivering the judgment of the Exchequer Chamber in the case of Gossett vs. Howard, 10 Q. B. 359-543, "with respect to such writs as are actually issued by superior courts, that they are duly issued, and in a case in which they have jurisdiction, unless the contrary appears on the face of them, as it would, for instance, if a writ of capias for a criminal matter issued from the Common Pleas, or a writ on a real action from the King's Bench, or a real action not in the Crown's case from the Exchequer; in all of which cases the want of jurisdiction would appear." When, therefore, a court has no jurisdiction over the subject-matter of a cause, its judgment is void, and must be treated as such in every subsequent proceeding in which it is brought in question. But while the law thus strikes all judicial proceedings, which exceed their proper limits with utter inability, it makes certain presumptions in their favor, which experience has shown to be essential to the repose and safety of society. Thus, superior courts are presumed to exercise the powers committed to them properly, and their judgments will be held to be within their jurisdiction, unless the contrary appears on the face of the record, or upon a mere comparison of the subject-matter of the judgment, with the authority of the court. It is not necessary that the record should show jurisdiction, it will be enough if it do not directly or by a necessary implication negative its existence. This, indeed, is a mere application of the general maxim omnia rite acta, which has a wide and beneficial influence, not only in law, but in all the walks of life. But while it is universally conceded, that the record of a superior court need not show that its powers have been duly exercised over the subject-matter of the cause, there has been a wide difference of opinion in this country, whether the same rule applies to its jurisdiction over the persons of the parties, and whether a judgment can be valid, unless the proceedings on which it is based show, that the defendant was duly notified of their existence, or made himself amenable to the authority of the court, by a voluntary appearance. say in this country, for I am ignorant of the existence of any case in England, which justifies the inference, that a domestic judgment I |