Hollingsworth v. Barbour. 4 P. [* 474] agreement as to compensation, *but with an expectation of receiving as compensation the portion of land usually given for such services. The phrase, claim as locator,' grew out of this state of things; and has been universally understood by the people of the country to signify the compensation of a portion of the land located, agreed to be given by the owner of the warrant to the locator of it for his services. The term is believed never to have been used in any other sense, or as signifying the acquisition of property by any other species of contract, than a contract to locate for a portion of the land. According to well-settled rules of construction, the language of the statute must be understood in this its popular acceptation. “The order of publication in the case of Levi Hollingsworth, against the unknown heirs of John Abel Hamlin, was made at the November term of the Washington circuit court, in the year 1813; proof of the publication of the order, eight weeks successively, in the Bardstown Repository, was made on the 4th of April, 1814; and at the August term, in the year 1814, the final decree was rendered in the cause. These dates are important, because they show that the only remaining act upon which reliance was placed, and which passed on the 6th of February, 1815, is subsequent to the decree, and cannot apply to the case. The acts of 1796, and of 1802, already noticed, were the only statutes existing at the time of the proceedings and decree, in the suit of Hollingsworth against the unknown. heirs of John Abel Hamlin, which authorized the courts of the State to proceed upon orders of publication to decree against absent defendants. "It appears clear to my mind, that the case was not within the provisions of either of the statutes; and that the order of publication and the proceedings and decree thereupon were wholly unauthorized and unwarranted by the law of the land. The question is, is the decree therefore erroneous only, or is it simply void? "It seems difficult to escape from the conclusion that, if the order of publication was wholly unwarranted by law, the publication is as if it had never been made. Even in cases expressly authorized by the statute, a publication is only a constructive notice to [* 475 ] the party; but if the publication in *the particular case be unauthorized, no principle is perceived upon which it can be regarded as constructive notice. "It is an acknowledged general principle, that judgments and decrees are binding only upon parties and privies. The reason of the rule is founded in the immutable principle of natural justice, that no man's right should be prejudiced by the judgment or decree of a Hollingsworth v. Barbour. 4 P. court, without an opportunity of defending the right. This opportunity is afforded, or supposed in law to be afforded, by a citation or notice to appear, actually served; or constructively, by pursuing such means as the law may, in special cases, regard as equivalent to personal service. The course of proceeding in admiralty causes, and some other cases where the proceeding is strictly in rem, may be supposed to be exceptions to this rule. 66 They are not properly exceptions. The law regards the seizure of the thing as constructive notice to the whole world; and all persons concerned in interest are considered as affected by this constructive notice. But, if these cases do form an exception, the exception is confined to cases of the class already noticed, where the pro ceeding is strictly and properly in rem, and in which the thing condemned is first seized and taken into the custody of the court. The case under consideration is not properly a proceeding in rem; and a decree in chancery for the conveyance of land has never yet, within my knowledge, been held to come within the principle of proceedings in rem, so far as to dispense with the service of process on the party. There is no seizure nor taking into the custody of the court the land, so as to operate as constructive notice. Constructive notice, therefore, can only exist in the cases coming fairly within the provisions of the statutes authorizing the courts to make orders of publication, and providing that the publication, when made, shall authorize the courts to decree. It has been already shown that this case is not within the provisions of any statute. "It would seem to follow that the court acted without authority, and that the decree is void for want of jurisdiction in the court. But if not void, as being coram non judice, it is void and wholly ineffectual to bind or prejudice the *rights of Ham- [ * 476 ] lin's heirs, against whom the decree was rendered, because they had no notice, either actual or constructive. "The principle of the rule that decrees and judgments bind only parties and privies, applies to the case: for though the unknown heirs of Hamlin are affected to be made parties in the bill, there was no service of process, nor any equivalent to bring them before the court, so as to make them, in the eye of the law and justice, parties to the suit. "The case of Hynes v. Oldham, 3 Monroe's Reports, was cited to prove that the proceedings in the case of Hollingsworth v. Hamlin's Heirs were regular; but if not so, that they were at most only erroneous and not void. The cases appear to me to be essentially different. That was a case within the jurisdiction of the statutes authorizing publications: the publication had been made, and the Hollingsworth v. Barbour. 4 P. only objection was, that it did not appear that an affidavit had been filed by the complainant that the particular names of the heirs were unknown to him before making the order of publication. It was decided that that omission might have been a cause of revision or of reversal, upon appeal to the appellate court; but that the decree was not therefore void. "In the case under consideration, the law did not authorize publication at all. It is a case in which the court had no authority to pronounce any decree, until the party was served with process. It is not a case like the one cited, where there is an irregularity merely in the manner of issuing or awarding the notice by publication; but a case in which notice by publication is wholly unauthorized. In the case cited, the court of appeals admit that a judgment or decree rendered against a party without notice is void, and an unauthorized publication cannot be regarded as notice; and the case under consideration is as if no attempt to give notice had been made. "There is an obvious distinction in reason between this case and the case where there has been personal service of irregular or erroneous process. In that case the party has notice in part, and may, if he will, appear and object to or waive the irregularity; in [* 477 ] this, the publication being unauthorized, is not even constructive notice; and, unless the proceedings are considered as void, the injured party may be remediless. "There is another ground, on which it may well be questioned whether the complainant has made out such a case as will enable him to set up and assert the entries, survey, and patent of John Abel Hamlin against the defendants. The act of assembly of 1802 authorizes a decree upon an order of publication against heirs, where the particular names of the heirs are unknown. But the acts of assembly do not declare that it shall be taken for granted that there were heirs, and that the title passed by descent to them, and, by the decree and commissioners' deed, should pass to the complainant, whether any such heirs existed or not. The manifest object of the statute was to dispense with the necessity of inserting the particular names in the proceedings, and to substitute in the stead of the particular names their characteristic description of heirs of the decedent. But it is apprehended the record of the proceedings against the unknown heirs, &c., is no evidence that any such heirs existed, and that the decree and deed made in pursuance of it cannot avail to pass any title to the complainant, without some evidence that John Abel Hamlin left heirs upon whom his estate descended, and from whom it could pass by the commissioners' deed to the complainant. There is no evidence in this case conducing, in the slightest degree, Hollingsworth v. Barbour. 4 P. to show that John Abel Hamlin left any heirs capable of inheriting his estate. There is nothing for the complainant to rest upon but presumption. Although it may sometimes be presumed that a decedent left heirs rather than that he left none, it is not clear to my mind that the presumption should be indulged in a case like this, so far as to uphold the title of the complainant. It is but a presumption of fact in any case, and, like other presumptions, may be repelled by countervailing facts and presumptions. * "It appears that John Abel Hamlin was a foreigner, from France, and died in the city of Philadelphia, about the year 1788. The complainants' own bill against the unknown heirs of John Abel Hamlin contains no allegations in terms that he left any heirs capable of inheriting; on the contrary, it expressly [* 478 ] alleges that he left neither wife nor child; and that, after much inquiry, no person could be found who could give any account of his heirs. Twenty-five years intervened between the death of John A. Hamlin and the exhibition of the complainants' bill against his unknown heirs, in the Washington circuit court; and although it appears that he, until his death, and the complainant resided in the city of Philadelphia, and were personally known to each other, no heir ever appeared to claim his estate, nor did Hollingsworth ever ascertain the existence of any such heir. Nearly forty years have transpired since the death of Hamlin, and no heir has yet been heard of. Under such circumstances, if the presumption that Hamlin left heirs is not absolutely repelled, I think it so weakened that the court ought not to rest upon it as sufficient to sustain the complainants' title against the defendants, who have the legal title, and have been long in the possession and enjoyment of it. Even the indulgence of a general presumption that Hamlin left kindred, who, if citizens of the United States or of France, could inherit his estate, would not avail the complainant, without going the full length of presuming, also, that such kindred were, in fact, citizens or Frenchmen. The presumption that Hamlin left any kindred, citizens of the United States, is strongly repelled by the statements of Hollingsworth's bill in the Washington circuit court, and by all the circumstances of the There is nothing to found the presumption upon that he left heirs, who were French citizens, in 1778, when he died, but the circumstance that he had emigrated from Brittany, about or previous to 1779; a circumstance too feeble to justify this court in finding the case. fact to be so. "If Hamlin left kindred who were aliens, and belonging to any other nation, they could take nothing by descent, and nothing could pass from them to the complainant. The objection of the alienage Society for the Propagation, &c. v. The Town of Pawlet. 4 P. of Hamlin and his heirs, regarding him and them as French citizens or subjects, has not been considered, deeming it unnecessary to express any opinion on that point. Entertaining the opinion, as the foregoing observations have shown, that the complainant has failed to show himself legally invested with the claim and title of [* 479 ] * John Abel Hamlin, or of his heirs, if he left any, so as to enable him to set up the entries, surveys, and patent, in the name of John A. Hamlin, against the legal title and long possession of the defendants, all investigation of the relative merits of the original claims is necessarily superseded." The decree of the circuit court, dismissing the bill of the complainant, is affirmed, with costs. 14 H. 334. THE SOCIETY FOR THE PROPAGATION OF THE GOSPEL IN FOREIGN PARTS, Plaintiffs, v. THE TOWN OF PAWLET and OZIAS CLARKE. 4 P. 480. The general issue, pleaded to an action by a corporation, admits the competency of the plaintiff to sue in that action. A recognition in a charter, of the capacity of a body to take and hold lands by a particular name, confers the power, if it did not before exist. An ouster by a mere intruder will not be presumed. Though a purchaser derives title from the vendor, his entry and possession, being for himself, ousts the vendor. A foreign corporation, all the members of which are beyond seas, is within the exception of a statute of limitations. It is competent for a state legislature to deprive the plaintiff in ejectment of a right to recover mesne profits in that form of action. Construction of statutes of limitation of the State of Vermont. THE case is stated in the opinion of the court. Webster for the plaintiffs. Doddridge, contrà. * [ * 500 ] * STORY, J., delivered the opinion of the court; Baldwin, J., dissenting on the first point. This cause is certified to this court from the circuit court for the district of Vermont, upon certain points upon which the judges of that court were opposed in opinion. The original action was an ejectment, in the nature of a real action, according to the local practice, in which no fictitious persons intervene; and it was brought in May, 1824, to recover a [*501] certain lot of land, being the first division lot * laid out to the right of a society in the town of Pawlet. The plain |