cedure. The trust instead of being an indeterminate, illusory contract between parties, would become a fixed and determined entity, in other words, would become a new kind of corporation.

Such, in effect, is the new being that has in recent times been the subject of so much discussion. There is nothing frightful or unlawful in its organization. It is no octopus stretching forth its arms to clutch the nation within its greedy grasp. The parties in it are men not immortal fiends. The present age is one that demands the production of an article by the cheapest method. Reckless and unreasonable competition, had, by its wastefulness, entailed ruin upon many producers, and little attention was paid to cheap and saving methods of production. By means of combinations a fixed price was resolved upon, which price was most consistent with reasonable profits and improved manufacture. In time these combinations were more closely knit together, and in the "Trust" the closest kind of combination has been accomplished, which will redound to the benefit of the producer and consumer.. The most favorable conditions under which the article may be produced are sought, and the science of commerce is being rapidly brought to perfection. Slowly the huge combination progresses, smoothly and silently "the wheels within the wheels" revolve, each on its own axis, and by the united efforts of all the sought-for result is reached.

Combinations are not contrary to the spirit of the nation. The nation itself is a union of similar bodies, and the "Trust" seeks only to carry out this idea in a narrower state of affairs. Free and unrestricted competition causes the beggaring of the manufacturer, and by reducing his profits, reduces the compensation of his employees. It cheapens the goods, not

to the consumer, but to the middle-man, who, himself can reap no lasting or certain benefit, owing to the sudden and unforeseen fluctuations in the price, by which he may have on his hands, immense stocks of merchandise purchased before a rapid depression by reason of competitive strife. The consumer may gain a momentary advantage, but will suffer in the end, for the merchant and manufacturer in order to retrieve their losses will advance, at a favorable opportunity, the price twofold.

When the scare aroused by dissatisfied or disgruntled persons shall have been quieted and the people can look calmly at this "monster," can analyze it and see wherein it is beneficial, then will its many merits commend it to them. A fair stationary price, a better article, will be more advantageous in the eyes of the public than a continual war between producers, now causing abnormally low values, and again high prices beyond reason, and a poor article imperfectly made because of the uncertainty of price and sale. The "Trust" system will commend itself to the producers because of the reasonable and certain profits it offers them.

This is an age of progress, and each day sees a new idea or an improvement on an old one. Many of these by their novelty, their dissimilarity with former notions may not for the moment be seen in the true light.

But time will prove these as it does all things, and those very misguided beings, who now cry loudest against the "trust" will soon be equally loud in vaunting its many merits. The "trust" is as certainly a fixture in the world as the corporation, and coming years will see it risen to the same prominence and exercising the same influence upon the commercial advancement of the world.

The power of settling controversies arising between its citizens or called in question within its limits is one of the necessary incidents of every sovereignty. For this purpose there are in every country certain tribunals invested by usage or by express law, some-superior courts-with general powers embracing all cases or all of certain classes as civil or criminal; others-inferior-with power only over questions limited in character or amount, or arising within certain boundaries, &c.

To give full effect to their decisions the doctrine of "resjudicata," a branch of the law of estoppel is invoked, which declares that a decision directly upon the point by a court of competent jurisdiction is conclusive as to that point when called in question, in another action between the same parties, acting in the same character. "Justice requires that every cause be once fairly and impartially tried ; but the public tranquillity demands that, having been. once so tried, all litigation of that question, and between those parties, should be closed forever."

The rule also binds those in privity with a party, where he would be bound, because they represent him and are considered as identified in interest with him.

Strangers are not estopped by a judgment, since they had no power to protect their rights, nor any control over the proceedings, nor the right to defend or appeal.

But proceedings "in rem" are said to "bind the whole world;" as e. g., in admiralty-judgments condemning prop

erty as prize, and also decisions directly upon the personal status of the parties, as divorce, outlawry, &c. divorce, outlawry, &c. This is grounded, in the first class of cases, partly on the idea that all the world are parties and may appear and defend their interests, and partly on the principle that the property becomes, as the legal consequence of such adjudication, what the court has pronounced it to be. The second class of cases rest more upon the idea that it is necessary for the public welfare, that questions concerning the social and domestic relations of the residents of any community should be clearly defined and conclusively settled.

In order that a determination of any particular cause be legal and binding, the court must have acted within its authority, otherwise its judgment is "coram non judice," and either a nullity absolutely or for some purposes, or else is voidable by direct proceedings. It may always be impeached directly, and sometimes collaterally. To impeach a judgment collaterally is to deny its effect, as legal and binding, in some proceeding not instituted for the very purpose of annulling, correcting or modifying it or of enjoining its execution, as, e. g, in a suit upon the judgment.

The question of resjudicata is an inquiry into the effect of a valid judgment. While our subject is-when and how may a judgment be shown in a collateral proceeding, to be a nullity, which is for the most part a question of evidence. In order to the more logical prosecution of the in

quiry, it may be well to consider, 1st, domestic judgments; 2d, foreign judgments, and 3d, judgments of sister States.

But first, as to decrees. The sentence of a court of law is termed a judgment, while those of courts of equity and admiralty are called decrees. The in rem proceedings of admiralty courts are internationally recognized and have always and everywhere been considered conclusive. But on account of the conflicts and jealousy in early times existing between courts of law and of chancery, the former would not enforce or notice decrees of the latter. (1) But in the United States the sentences of courts of law and courts of equity are mutually recognized as of equal force. An action of debt may be brought on a decree of chancery if for an ascertained and specific amount and nothing more. (2) "And the record of the proceedings in the one case must be ranked with and responded to as of the same dignity and binding obligation with the records of the other. (3) So that hereafter the law as to judgments alone will be examined, except where doctrines especially applicable to proceedings in equity will require more particular notice.

I. DOMESTIC JUDGMENTS.

If the domestic court had not jurisdiction both over the subject matter and the parties, its judgment is either voidable or void. A voidable judgment is conclusive until reversed or modified by some direct proceedings, is binding collaterally A void judgment is a nullity, is a basis of no rights, in a collateral proceeding may be disregarded and impeached. But when we come to consider what evidence is admissible to overthrow the judgment, we must distinguish between courts of super

(1) 3 B. & Ald., 52

(2.) 16 How, (US) 65.

(3) 24 How., U. S. 203; 9 S. & R., 252.

ior and those of inferior jurisdiction, or between "courts of record" and "courts not of record." The books and papers, however, of inferior courts are often inaccurately termed "records."

A court of superior jurisdiction is one which is empowered generally to inquire into and determine ail cases which may arise, (1) as in England the Courts of Common Pleas, King's Bench and Exchequer ; in this country depending upon the statutes of the various States.

The Superior Court may decide upon its own jurisdiction, and need not spread the facts and evidence authorizing its action upon the record; while Inferior Courts must do so. The United States Courts are of limited but not inferior jurisdiction. (2) With reference to the proceedings of superior courts the maxim is "the record imports absolute verity;" it is the very best evidence and may not be averred against or contradicted by weaker. This conclusive effect was early given to it on account of the solemnity and dignity of the occasion, the high character of the tribunal, and for the sake of public policy, that confidence in the proceedings of the courts might be increased and titles depending upon them protected.

Whether in the particular case the court had or had not jurisdiction of the subject matter, will generally appear from the character of the judgment and from the law creating the general powers of the court. But even in the silence of the record as to jurisdictional facts, it will still be conclusively presumed that the court acted rightfully within its jurisdiction. (3)

And if a superior court exercising its common law authority had jurisdiction of the subject matter, there is a conclusive pre

sumption-only rebuttable by record proof -that the proper steps for acquiring jurisdiction of the parties, were taken; (1) for after the court has jurisdiction over the cause, the acquiring jurisdiction of the parties is a mere question of the proper exercise of its authority, and falls within the maxim "Omina praesumuntur rite acta."

"The presumption that the powers committed to a judicial tribunal have been properly exercised is essential to the repose and safety of society, and the inconvenience of allowing it to be met and overcome by parol evidence is greater than any benefit that could be derived from a different rule. The requisitions of natural justice are satisfied by establishing tribunals whose duty it is to ascertain that notice has been given, and not to proceed against any one without giving him an opportunity of being heard." (2) If the record show appearance by an attorney, his authority may not be questioned. (3) Hence we may conclude generally, that no evidence aluinde is admissible in a collateral proceeding to impeach the judgment of a domestic court of superior jurisdiction, proceeding according to the course of common law.

But if, from the entire record, read together, it is clear that the court did not have jurisdiction over the subject matter, or exceeded its jurisdiction, (4) or that the parties had not been notified; (5) the judgment is a nullity and may be. impeached collaterally; parol evidence in contradiction of the record is just as inadmissible to support as to overthrow the judgment. (6)

The New York court, in Ferguson vs. Crawford (70 N. Y., 253), take a position

apparently in direct antagonism to the courts of almost all the other States, allowing recitals of jurisdictional facts in the record of a superior court exercising common law powers, to be contradicted by parol evidence in order to avoid the effect of the judgment. The line of reasoning upon which the learned court finally rest the decision is that a judgment pronounced without giving the defendant a chance to be heard, might have been directly proceeded against by injunction in equity; and that under the reformed procedure of the code and in order to avoid multiplicity and circuity of action, all such matters may be set up in collateral proceedings upon such judgments as "equitable defenses." If this rule is confined to the admission of such evidence in only those cases where the party might have had equitable relief, the equities of the other party in the collateral proceeding being also protected, it would seem practical and beneficial.

But there is no presumption in favor of the judgments of courts of inferior jurisdiction, (1) or, according to the weight of authority, in favor of judgments of superior courts when exercising special statutory powers. (2) In such cases all the facts necessary to give jurisdiction must be pleaded, and must appear affirmatively before any effect will be given to the judgments. (3) The better opinion would seem to be that unless the statutes require such facts to appear upon the face of the proceedings, they may be shown aluinde." (4)

As only a court of superior jurisdiction can make a technical "record" whose recitals may not be contradicted, statements

of jurisdictional facts appearing upon the proceedings of inferior tribunals are only prima facie evidence. (1)

But in the case of superior courts, exercising statutory powers, if the record show the requisite facts, its verity may not be denied collaterally in the same State. (2)

In certain few cases the inferior court has power to decide as to its own jurisdiction, which decision is conclusive collaterally; (3) as, the decision of the Surrogate where his jurisdiction depended upon the regularity of a publication of an order to show cause against the sale of certain property. (4)

The common law only recognized one method of acquiring jurisdiction over a defendant, viz: by actual notice through service of process; but in some cases for the furtherance of justice, it has been found necessary to dispense with actual notice. Thus statutes often provide that the property within the State, of an absent or non-resident defendant may be proceeded against after certain forms have been gone through with, such as attaching the property, or publishing notice to defendant, or appointing a guardian ad litem to defend his interests; and after such formalities a judgment may be obtained against him. As these proceedings are in derogation of the common law, the provisions of such statutes must be strictly carried out, and the record must show them so to have been fulfilled. (5)

A few well reasoned cases combat the doctrine allowing a stronger presumption in favor of the judgment of a superior court when proceeding according to the course of common law, than in favor of the acts of the same tribunal when exercising statutory powers. (1) The California court say (34 Cal., 391): that the only reason for the distinction made between the judgments of the superior and those of inferior courts is that the former tribunals are presided over by men of experience, assisted by learned counsel; their proceedings are solemn and deliberate and in strict conformity with established modes, "and above all the judgments are taken down and made a matter of record at or about the time they transpire. Of inferior courts as a general rule, none of these things can be affirmed." That whether the court exercise common law or statutory powers, these same conditions are present, and hence the same presumption should support its judgment in the one case as in the other.

But as we have seen (supra) a large majority of the States are strongly arrayed against this doctrine, holding that the presumption always is that the common law course of procedure was pursued, and that any other method, depending merely upon statutory authority must appear to have been strictly followed, because in derogation of common law rights of person and property.

The Supreme Court of the United States makes a distinction in this respect in Galpin vs. Page (18 Wall., 350). "The presumptions indulged in support of the judgments of superior courts of general jurisdiction, are also limited to jurisdiction over persons within their territorial limits, and also over proceedings which

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(1) 34 Cal., 391; 10 Wisc. 572; 27 Tex, 250; 6 13 Bush, 544 102 Ind., 233, 322; 13 Minn, 400.