to contradict the record and show that the judgment is void.

It has been said that an attack upon a judgment in the wrong court or by the wrong party is a collateral attack. I do not think so. It occurs to me that any attack upon a judgment for the direct purpose of having it canceled, annulled, modified or vacated, whether with or without merit, before the right court or wrong court, or by the right party or by the wrong party, is a direct attack upon the judgment. I do not think that a mistake of a litigant as to his right to assail a judgment, or his error in going into the wrong court, or an error as to the merits of his case, would affect the character of his attack. If the wrong party brings a suit he will lose, of course, for the reason that he has no right to bring it. If he gets into the wrong court, he will lose for the reason that he has taken the wrong course, and, like a traveler who has taken the wrong road, cannot reach his destination; and, if his case is without merit, he will fail through the prevailment of justice, but neither of these errors would change the character of his assault.

I have said that a void judgment is no judgment, and that it can neither give right nor take one away; but under the decisions of the courts of many states this is not literally true. The court of Arkansas, for instance, refuse to give relief against a void judgment, unless the assailant of the judgment alleges and proves a meritorious defense to the original proceeding in which the void judgment is rendered. The rule of procedure is first to ascertain whether there is a valid defense and then to pass upon the validity of the judgment. If it is adjudged that there is no valid defense to the action, then the void judgment will not be disturbed. I have never been able to see the wisdom or correctness of this interpretation of the law and the reasoning of the courts in support of it is not convincing.

A void judgment is one which has only the form and semblance of a judgment; as if rendered by a court having no jurisdiction. It is a judgment in name and form only.

Mr. Freeman, in his work on judgments, says: "A void judgment is in legal effect no judgment. By it no rights vest. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it, and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress. The first and most material inquiry in relation to a judgment or a decree then is in reference to its validity, for, if it be null, no action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any legislature or other part of the government can invest it with any of the elements of power o vitality."

This is the universally recognized effect of a void judgment, yet if a party, by imposition or deception upon a court, or through any other means can succeed in obtaining a void judgment in Arkansas, he is permitted to enjoy the full benefits and fruits of a valid judgment as if rendered in a wise and honest proceeding, until the defendant appears in court and establishes a valid defense to the wrongful and void proceedings. This enables a litigant in Arkansas, by imposition and fraud upon the court, to take a judgment against an absent defendant, and then compel the defendant to come into the courts of Arkansas and litigate his cause before he can be relieved of the burdens of a void judgment; and, if he fails to do so, his rights must suffer the same as if a valid judgment had been rendered against him. By imposition and deception successfully practiced upon a court, one party can bring another into the local

courts of Arkansas from the most distant parts of the world and compel him to assume the burden of proof and submit to foreign jurisdiction attended by all its hardships and inconveniences.

An evil almost as great prevails in the state of Iowa and in some of the other states. In Iowa there can be no special appearance in a cause for the purpose of challenging the jurisdiction of the court, and if a party appears for the purpose of challenging the jurisdiction, he is deemed to be in court for all purposes. When a personal action is commenced in any of the courts of Iowa against an absent defendant, and he appears for the purpose of challenging the jurisdiction of the court, he is deemed to be in court for all purposes and must make his defense to the action. On the other hand, if a void judgment is taken against him and he appears in one of the courts of the state to have that judgment set aside, he can be met by a cross-complaint or a counterclaim, setting up the original cause of action upon which the void judgment was rendered.

Thus, it will be seen that the courts of Arkansas and Iowa, in an attempt to do substantial justice, extended their jurisdiction to every part of the world and have made it possible for an absent defendant to be brought into the courts of these states to

that these courts have swept away a most wholesome principle of law as a useless technicality.

When a party goes into the courts of his country for relief, he should be required to go into a court of competent jurisdiction, and he should be required to make his selection at his peril and should not be allowed to harass and annoy even the most culpable legal sinner in a court that has no jurisdiction of the case; and when he goes into a court without jurisdiction, the full penalty of his error should fall upon him alone, and even a defendant against whom he has a just and meritorious cause of action should not be made the victim of his folly. It is enough that a party shall answer in a court where he ought to answer, but it is too much to require him to respond to the wrongful action of a party brought in a foreign court that has neither jurisdiction of his person nor of his property. JAMES E. HOGUE.

Little Rock, Ark.

JUDGE-MADE LAW.

This

the justice of a cause of action upon which a void judgment has been rendered. rule is destructive of the principles upon which our government was originally founded, and is but little short of one of the

serious wrongs which Jefferson charged against King George the Third, in the Declaration of Independence, that of "transporting us beyond seas to be tried for pretended offenses." A man should know just where he can be sued and to what dictions he owes his allegiance.

It is really the intent of all courts and lawyers of true merit and ability to avoid and obviate the necessity for litigation, but in an attempt to do substantial justice, I fear

other apply them; the two provinces are distinct. Where a statute or a well-defined rule of the common law gives a positive command, creates a clear right, or imposes a definite disability, he who has to administer the law must obey it literally and exactly. Many laws, such as the rule of primogeniture, are conceived rightly or wrongly as being in the interests of the community and to be effective must be applied without exception or reserve, though in many individual cases the "fundamental principles of justice" appear to be outraged.

It is, generally speaking, for the lawgiver, not the judge, to consider these fundamental principles. Arbitrarily to depart from definite legal rules is to go backwards. Progress in law has been from the individual despotic judgments the "themistes," or "dooms," or archaic communities to the generality and certainty of the legislation of advanced societies.

The fundamental principles of justice are perhaps not difficult to ascertain. They seem to be summed up concisely in the opening paragraph of Justinian's Institutes: "Justice is the fixed will always to give each his due." The hard part is to determine what is any particular man's due and that determination will inevitably vary according to the mentality of the judge, even assuming every judge to be perfectly honest and unbiased in the usual sense of that word. To reduce the variation within the narrowest limits is the province of legislation. Legislation in this country, Dicey asserts (and to our thinking proves his assertion), lags behind general public opinion. It demonstrably does not lag behind judicial opinion: it is the new-fangled laws which try the mettle of the judge, and unhappy would often be the state of the suitor if a long tradition of observance of the law, however repugnant to the judge, had not made an impartial hearing fairly secure. It is wicked to "decree injustice by a law."

The legislature, however careful and provident, could not fully foresee the course of events; could not provide for the infinite changes which would occur; could not guard against the shifting meaning of words, as well as the complexity of affairs. The fact was that the socalled "intention of the legislature," and the same might be fairly said of the "will of the legislature" and the like expressions, were often legal fictions: the legislature had no clear "intention," the people no will, in regard to questions or situations which had not arisen and could not be foreseen. The consequence deducible from so-called "intention" might become strange when applied to a law or constitution some centuries old, or to one dating from a period wholly different from ours. Great judicial discretion, in effect the power of making law, was recognized by some codes. Thus, in one of the latest and most carefully prepared codes, the Swiss Civil Code, it was in terms stated that "the Civil Code applies to all cases in which it contains provisions either according to its letter or its spirit. If the Code contains no provision applicable to the question at issue the judge shall decide according to customary law, and where it is also absent according to recognized legal doctrine and science. In the absence of these sources he shall render judgment accordingly in accordance with such rules as he would enact if he were legislator." According to the Australian

Civil Code, "Where the case cannot be decided according to the literal text or the natural meaning of a statute, regard shall be had to analogous provisions chiefly contained in the statute and to the principles applying to similar matters. If the case is still doubtful it shall be decided, after carefully collecting and considering the principles of natural justice." He thought he would be right in saying that the most conspicuous example of a judicial law-making which the world had seen was to be found in the jurisprudence of the United States. He did not refer to the doctrine first fully developed by Marshall of the supremacy of the judiciary over the legislature when the latter overstepped the limits set by the Constitution, though the doctrine necessarily armed the former with immense powers exercised in the name of interpretation. He had specially in mind the doctrine more recently and at present being rapidly evolved of so-called "police powers," in virtue of which the American bench was called upon to decide the most important questions of public duty, to declare this statute valid, and that inoperative; in short, to determine the limits of modern legislative activity. In virtue of these powers the American judiciary had built up a body of law far surpassing in volume and novelty the additions in recent times made by English judges. Having considered the question of what, according to the decisions of the United States Supreme Court, was meant by "police powers," the lecturer said that a warm advocate of judge-made law had said: "There is no guaranteeing of justice except the personality of the judge;" and these words came near the truth. There was growing up a form of equity, none the less. real because it was termed judicial discretion. This meant justice in a larger measure, but it also meant uncertainty. The "socialization of law," as it was

times called, necessarily meant the en

largement of judicial discretion. It specially meant this when the legislature dealt, as often happened, with abstruse questions as to which science speaks with uncertain sound. There were sections, phrases and terms in the statute books where the legislature, in effect, said to the courts: "We have no clear meaning; you will have to find one for us." The personal element of the judge counted for more and more-his wide knowledge, his sagacity, his sympathy with the forces that move things with life in its many sides.

This is attractively stated, but in our opinion the committal to the judge of a discretion so wide as in effect to operate as legislation is a retrograde step and should only be resorted to in exceptional cases. A recent writer in the Central Law Journal, taking as his text the maxim, "The law is fairer than men," reinforces by weighty general arguments the old rule. Dealing with the favorite argument that the effect of wide judicial discretion would be to make decisions more practical, he points out that "men are in the habit of calling those things practical which are most accessible and may be enjoyed with least effort. Slight reflection should be sufficient to remind them that such things are also earliest to pass away." And he proceeds to show that the basis of law is generalization and that to reduce it to particular ends would be to debase it to selfish aims. The modern charge that the law and its machinery are nothing but a system of reactionary tyranny comes from persons or organiza tions of them who expect the law to contain nothing but that which they see to be peculiarly advantageous to them, where as all reasoning men know that security for the law is gone, if it depart from those universal principles which are the guaranty of justice to mankind as a whole. The very gist of the law's justice lies in its universality. His closing observations

Where plaintiff boarded a train with a ticket to F., and before arriving at F. informed conductor that he had decided to go on to W., and conductor directed him to get off at F. and buy a ticket, and he got off, but could not get a ticket because the agent was not in the ticket office, and he could not find him, carrier was liable for damages for ejecting him because he did not pay an excess fare chargeable in addition to the regular fare when the fare is paid in cash.

THOMAS, J. The question is, Had the plaintiff the right to ride upon the train without paying the extra fare required by defendant, if its conductor had informed or arranged with plaintiff that the latter would have a reasonable opportunity to purchase a ticket at Falkville, from that point to Wilhite, and defendant failed to give or provide him such an opportunity.

Under the law the conductor in charge of the train, in the discharge of the duties of his employment, is vested with the power of the defendant company in the collection of fares from passengers, and to that end is its vice principal, and may subject said company to liability for his acts while he is so acting. Republic I. & S. Co. v. Self, 192 Ala. 403, 407, 68 So. 328, L. R. A. 1915F 516; A. G. S. R. R. Co. v. Baldwin, 113 Tenn. 409, 82 S. W. 487, 67 L. R. A. 340, 3 Ann. Cas. 916. Railroad conductors make reasonable arrangement as to passengers transported under their direction, and may inform passengers what will be required of them, and bind the company by such information so given, in the discharge of the duties of their employment.

Wright v. Glens Falls, etc., R. R. Co., 24 App. Div. 617, 618, 48 N. Y. Supp. 1,026; Chicago, etc., R. R. Co. v. Burns (Tex. Civ. App.), 104 S. W. 1,081, 1,083; Dwinelle v. N. Y. C. & H. R. R. Co., 120 N. Y. 117, 127, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St Rep. 611.

Plaintiff, testifying, said that he had boarded the defendant's train going south to Falkville, with a ticket he had purchased thereto and which he surrendered to the conductor; and, before arriving at the point of destination, he informed that official that he had decided to go to Wilhite, a point on said road beyond Falkville, and that the conductor directed him to "get a ticket at Falkville"; that on arrival at this place he went to the ticket office (the place provided for the sale of tickets to prospective passengers), but did not find an agent therein; that he looked for the agent without success; that the train started before he was given an opportunity to purchase a ticket, and he returned to the train, and informed the conductor of the absence of the agent and of his inability to purchase a ticket; that he offered to pay the regular cash fare, which he gave the conductor, and that said official, after taking the money, informed plaintiff that he would have to pay the increased cash or "excess fare," and, failing to do so, was put off the train. Witness testified on cross-examination, "I had 5 cents more than the 15 cents" given the conductor, who demanded as the excess cash fare 25 cents, which was more than the witness possessed. Witness further admitted that he did not tell the conductor that he had not the 25 cents demanded as the cash fare, but stated that he “did not get on the train and buy a ticket to Falkville for the purpose of trying to go to Wilhite without paying the excess fare, so as to get a suit against the company"; that the price of a ticket from Falkville to Wilhite was 10 cents.

Defendant's conductor in charge of said train testified that plaintiff had a ticket, and that when he "got to Falkville he got off and ran over to the depot there, and the train was there about a minute"; that, returning, he "jumped on the front end of the smoking car," and asked the plaintiff where he was going, and, after his reply, "told him the fare was a quarter, and he said he would pay 10 cents, but not a quarter"; and witness said he "would have to let him get off, and he did, and that was all. ***”

Defendant insists that plaintiff made an admission that he knew about the cash fare, and Idid not tell the conductor whether he had other money or not. This is immaterial to the question of liability vel non for ejecting the plaintiff. The insistence is further made that the