referred to. It may be thought, however, it is recognized, impliedly, in the instant case. But, in our opinion, it ought to be stressed as a sound rule of law. One may commit his goods to the keeping of another under whatsoever terms he sees fit, but it hardly may be thought a deliberate intrusting of his life and safety to another in the acceptance of his kindness or courtesy. There should be thought to be an assurance of care or skill in the management of a dangerous machine in which one is invited to ride. This view may be thought but an extension of the principle of the doctrine of the last clear chance, in the implied assurance that danger of that kind shall arise. ACCIDENT ACCELERATING DEATH NOT SOLE PROXIMATE CAUSE THEREOF.-Two recent decisions, one by the Supreme Judicial Court of Massachusetts and the other by the Supreme Court of Georgia, treat a question of great importance in accident insurance law, and, as they rest on not wholly dissimilar facts and reach directly opposite results, are hereinbelow contrasted. Leland v. Order of United Commercial Travelers, Mass., 124 N. E. 517; Pacific Mut. Ins. Co. v. Meldrim, Ga., 101 S. E. 305. The facts in the Leland case show that deceased insured was a commercial traveler, apparently in good health, and had been for sev eral years. In the morning, as he was going from his cellar to his room upstairs, he tripped and fell twice, becoming unconscious. He was assisted to his bed, regained consciousness, complained of pain in his right side, was treated by a physician, had difficulty in breathing and died that evening. An autopsy revealed heart and lung and other lesions in his system. Physicians testified that death resulted from heart failure at the time of the fall, his heart being pre-disposed to such failure from shock or overexertion. The Court said: "The deceased confessedly was suffering from disease or diseases which actively co-operated with the fall causing death. The disease and the fall were concurring, efficient and proximate causes in producing death. Either alone without the other would not then have resulted fatally. It cannot be held, with any due regard to the meaning of words in the contract here sued upon, that the death of the insured resulted from the accident 'alone and independent of all other causes' as 'the proximate, sole and only cause.'" In the Meldrim case the facts need not be expressly set out to understand the particular bearing of what was said by the court. The policy provided for an exception as to death not resulting "directly, independently and exclusively of all other causes in death." The Court stated that if such a clause were given "absolute literal meaning," the policy would be worth nothing to an insured. In support of this statement it quoted as follows from a prior decision by Georgia Supreme Court: "To hold in any case that a contract which stipulates that the loss for death should be payable only when the loss results solely and exclusively from an injury would be to hold that death must, in every case, be instantaneous and the immediate effect of the injury in question, for it is a matter of common knowledge that almost every human being has some weak spot in his organism, which might to a larger or smaller degree contribute to bring about death in a particular way in that particular case, although another person under the same circumstances might not have died. Except in the case of a human being who is in perfect health, or unless death is instantaneous, death never supervenes when it cannot be said that there was perhaps more than one cause which contributed to the fatality." While it may be that the Georgia court states the matter too extremely, yet it ought to be thought that accident insurance companies in insuring against accidental death do take risks among people as they ordinarily appear, or, as may be, they are. They are not selected risks on a basis of health, or upon activity, strength or age. And we believe they are not particularly graded on any basis of this kind. Our inclination, upon the whole, is rather towards the Georgia, than the Massachusetts, ruling. Certainly it is not to be thought the policy is to be taken in a strictly literal way. THE DISTINCTION BETWEEN COLLATERAL AND DIRECT DIRECT ATTACK UPON A JUDGMENT. The word "collateral" as applied to an attack upon a judgment has been used with less discrimination between it and its antithises than any other word in legal phraseology. The meaning which has been given to the word collateral by lexicographers and the sense in which the word is used by bankers, in reference to securities, are responsible in a great measure for the confu sion which has arisen in attempting to distinguish between the two kinds of attacks that can be made upon a judgment. As applied to an attack upon a judicial proceeding, the word collateral has a separate and distinct meaning from that given by the lexicographers, and different from that which it carries with reference to securities, and courts and text writers have so often referred to a direct assault upon a judgment as being a collateral attack that practitioners sometimes fall into an erroneous idea, that a collateral attack upon a judgment is any proceeding to set it aside, other than by a motion for a new trial or by appeal. If this were true, there would be no way to escape the effects of a void judgment after the time for taking an appeal had expired, and a void judgment would have the same force and strength of validity that a valid one would have. A valid judgment would stand upon its merit, while a void judgment would stand because it could not be attacked. There are two distinct methods of procedure by which a false judgment can be exposed. In one proceeding the record can be flatly contradicted, while in the other proceeding the record must be accepted as true. A judgment is the final adjudication and determination by a court of competent jurisdiction of the rights of the parties to an action in and to the subject-matter of the litigation. If it is for money, it is a debt. of record. If it is for a lien on property, it is a lien of record, and, if it is for property, it is a title. If it is rendered in an action for money and is a denial of the plaintiff's right to recover, then it is a shield for all time and a protection to the defendant against the assertion of any further claim of the plaintiff in any court. There are two kinds of judgments: Judgments are either in personam or in rem. They are in personam when the proceedings are again the person of the defendant. A judgment in personam is a contract, a fixed liability, which follows the party against whom it is rendered into any and every part of the world. A judgment in rem is not a fixed liability against the defendant, but is an adjudication pronounced upon the status of some particular subject-matter. It gives one party a title to, an interest in, or a lien upon some particularly described property owned or claimed by the other. A judgment determines and forever settles the rights of the parties to it. It is absolute, incontestable, and irrevocable, and can never again be called into question by any court, either domestic or foreign. Such an absolute and irrevocable determination of the rights of men can only be made by a court of competent jurisdiction and in a proceeding free from fraud. While the Constitution provides that full faith and credit shall be given in each state to the judicial proceedings of every other state, to entitle a judgment to this unquestionable recognition, it must really be a genuine judgment. A void judgment is not a judgment; and to determine whether a judgment is valid or void is simply to determine whether it is or is not a judgment. A void judgment is entitled to no faith or credit anywhere. It can neither give a right nor take one away. The full faith and credit clause of the Constitution does not prevent an inquiry by the courts of a state into the jurisdiction of the court in which a foreign judgment is rendered. By an Act of Congress, known as the Authentication Act, the records and judicial proceedings of the courts of any state or territory shall be proved or admitted in any other court within the United States by the attestation of the clerk and the seal of the court annexed, when there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken. The courts of one state may inquire into the right of another state to exercise authority over the parties to a judgment and the subject-matter of the action, and they may also determine whether the judgment is founded in and impeachable for a manifest fraud. In the very instructive case of Cole v. Cunningham,1 the Supreme Court of the United States, speaking through Chief Justice Fuller, said: "The Constitution did not mean to confer any new power on the states, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. Therefore, it must be understood that the public acts, records and judicial proceedings referred to in the full-faith-and-credit clause of the Constitution are such as are made or had in courts of acknowledged jurisdiction. The faith and credit to be given to the judgment of a court of one state by the courts of another, is that same faith and credit that it would receive in the state in which it is rendered." A court of competent jurisdiction of any state, having jurisdiction of the parties, would have the same unquestionable power to cancel a void judgment or one steeped in and impeachable for fraud, that it would have to cancel any other kind of a contract; and such courts may pass upon, fix and determine the rights of the parties the same as if no judgment had ever been rendered in the first place. This puts the proposition a little stronger than I have ever seen it put by any of the courts or authors, but, nevertheless, it is true. In the case of Dobson v. Pearce, cited with approval by Chief Justice Fuller, the plaintiff, in a judgment recovered in New York, brought an action upon it in the Supreme Court of Connecticut, whereupon the defendant in the judgment filed a bill against the plaintiff on the equity side of the same court, alleging that the judgment was procured by fraud and praying for relief. If he had merely defended against the New York judgment, upon the grounds that the judgment was procured by fraud, then his attack would have been a collateral one, and he would have been confined to the record alone for his evidence; but he made a direct attack upon the judgment in a separate suit filed on the chancery side of the court, and was permitted to go outside of the record and prove that the judgment was obtained by fraud. The plaintiff in the judgment appeared in and litigated the equity suit, and the Court adjudged that the allegations of fraud in obtaining the judgment were true, and enjoined him from prosecuting an action upon it. He assigned the judgment and it was held in a suit in New York, brought thereon by the assignee, that a duly authenticated copy of the record of the decree in the Connecticut Court was conclusive evidence that the judgment was obtained by fraud. This is no conflict of law nor conflict of jurisdiction, because the New York judgment was not a judgment. Any court in which a judgment is offered may call for an authenticated copy of the record for the purpose of ascertaining and passing upon the jurisdiction of the court in which the judgment was rendered. The courts have had some trouble in determining just what jurisdiction is. Chief Justice Green, of New Jersey, has said that jurisdiction is simply power. Judge Van Fleet says that this is the best definition that he has ever seen. The word power may define jurisdiction more accurately than it can be defined by any other single word, but this word alone cannot possibly define it. In the early case of United States v. Don, the Supreme Court of the United States, speaking through Judge Baldwin said: "The power to hear and determine a cause is jurisdiction." From the language of the Court in this case, jurisdiction was defined to be the power to hear and determine. After 365. (3) Perrine v. Farr, 22 N. J. L. (2 Zalr.) 356, (4) 6 Peters 691. 5 this definition had been quoted and approved by all the Supreme Courts of the land, learned and repeated by law lecturers of all the universities and law schools, and memorized by law students, in the case of ex parte Reed, the Court said in an obiter dictum not called for by the facts in the case: "We do not overlook the point that there must be jurisdiction to give the judgment rendered, as well as to hear and determine the cause." From this remark of the Court the definition of the word jurisdiction has since been defined by text-writers as "the power to hear and determine the cause and to give the judgment rendered." While this enlargement may be a little more explicit and may more readily carry a correct idea to the mind of the student, and even the practitioner, yet it adds nothing to the first definition of the Court. The judgment of the Court is really the determination of the cause. There can be no determination of the cause until the judgment is rendered. Courts do not try cases merely to ascertain what ought to be done. They try cases to ascertain what shall be done. If a court should be permitted to hear a cause and simply decide in his own mind what ought to be done, and then stop, the trial would be a farce. The cause is not determined until he renders his judgment, and the giving of the judgment is a determination of the cause. So the definition of Judge Baldwin, in the 6th Peters, will be found to express all the elements of jurisdiction. It is not the hearing of the cause nor the mere ascertainment of the rights of the litigants that affects the parties to a lawsuit. It is the judgment given that affects the parties, and, if this is void, the jurisdiction to hear is of little or no importance. In determining the validity of a judgment, we are often led into a state of confusion from a mistaken conception that jurisdiction depends upon facts or the actual existence of matters and things instead of upon the alle (5) 100 U. S. 13-23. (6) Words and Phrases, Vol. 4, p. 3235. gations made concerning them. In some cases, the jurisdiction of the court depends upon the existence of facts, and if, upon a trial of the case, the jurisdictional fact is not established by proof, the plaintiff's case falls for want of jurisdiction in the court to hear and determine his cause. This is true in a proceeding for a divorce under those statutes providing that the plaintiff, to obtain a divorce must have resided within the state in which he seeks relief for a definite period before the commencement of his action. If he fails to establish proof of his residence for the required period, by competent evidence, he must fail in the prosecution of his cause for want of jurisdiction in the court to hear his cause. On the other hand, a court of original jurisdiction may be without power to entertain a suit for a sum below a certain amount. As in Arkansas, no suit can be brought in the Circuit Court upon a contract for an amount not exceeding $100.00, exclusive of interest. If a party brings a suit in the Circuit Court of Arkansas upon an account, stating in his complaint that the amount in controversy is $50.000, he will state himself out of the jurisdiction of the court, and the court will refuse to hear his cause for want of jurisdiction; but if the court should hear the cause and give judgment, this judgment would be rejected as void wherever it might be offered. But if such party, without any intent to deceive or impose upon the court, states in his complaint that the defendant owes him $1,000.00, the court will take jurisdiction upon the statements contained in the complaint and not upon the facts as they may actually exist, and the court will hear his cause. If it is shown by the proof that he is entitled to recover only $50.00, the court will give him judgment for that sum, whereas it would have refused to entertain his suit at all in the first instance if he had stated that the defendant owed him only $50.00. When jurisdiction depends upon the existence of a fact and not alone upon the with the tropical verdure of the Soudan; one side, gradually and almost imperceptibly, passing from the traveler's view, while the other side, as if by a process of dreamy imagination, rises slowly to his vision. The distinction between a direct attack and a collateral one may, on first view, seem to be of the blending kind. But when the distin allegation of a fact in the complaint, the court may hear and pass upon the issue tendered as to the existence of the jurisdictional fact, just as it may pass upon any other issue. Thus, in a proceeding for a divorce, where the plaintiff alleges that he has been a resident of the state for the required time, and this allegation is denied by the defendant, and the court having jur-guishing principles between them are isdiction of the parties decides that the allegation is true, the issue as to this fact can never again be questioned in any other court, for the reason that both parties have had their day in a court of competent jurisdiction, and the question has been finally passed upon and determined. If, however, the plaintiff imposes upon a court and deceives the tribunal into a belief that the jurisdictional fact exists, and secures his judgment through default of the defendant, his judgment will be impeachable in any court of competent jurisdiction for fraud. A domestic judgment of a court of general jurisdiction, whether the record shows jurisdiction affirmatively or is silent upon the subject, is not subject to collateral attack based upon extrinsic evidence showing want of jurisdiction.' Judge Van Fleet, in his work on Collateral Attack, defines a direct attack on a judicial proceeding to be an attempt to avoid or correct it in some manner provided by law, and he defines a collateral attack as an attempt to avoid, defeat or evade it or to deny its force and effect in some manner not provided by law. I fail to see that either definition is wholly correct. A direct attack is never made merely for the purpose of avoiding a judgment, but it is always made for the purpose of destroying it. Legal questions may come together like the meeting of land and sea, making a line of demarkation that cannot be crossed without a full knowledge of its presence. They sometimes, however, come together like the blending of the parched sands of Sahara (7) Townsley-Myrick Dry Goods Co. v. Fuller, 58 Ark. 181. known and understood, it will be seen that they meet like land and sea, and without the least difficulty the practitioner cannot help but see just how far he can walk and just where he must take a boat. A void judgment may be defeated in a collateral attack, but, like a false witness, when so defeated in one case, it may appear dressed in the full gloss of validity in another case and necessitate another examination as to its character and credibility. But a direct attack is a proceeding to strike it dead. Some of the courts have said that a direct attack is one in which the recitals of the record may be contradicted, and that a collateral attack is one in which the recitals of the record must be accepted as true. This prescribes the rule of evidence in a direct attack and in a collateral attack, but it does not define the distinction between them. If this should be accepted as a correct definition, then it would be within the power of a judge to exclude all evidence in any case. except the record, and by so doing he would make the attack a collateral one. In any other case in which he might see proper to admit evidence aliunde, he would by his ruling make the assault a direct attack. Confusion sometimes arises from a misunderstanding as to what the record in a case is. The record consists of all papers filed and all entries made upon the dockets and journals of the court, and, if these show that the court had jurisdiction, another court will not undertake to inquire into the truth of this showing through other or outside evidence, except in a direct proceeding |