Upon the evidence given at the trial, and that- offered by the defendant and excluded, it is difficult to see upon what principle the verdict for the plaintiff can be sustained.
Upon such evidence, assuming that the defendant could have proved what he offered, it appears that the defendant’s wife, prior to April 1, 1860, without cause and Without consent on his part, and against his remonstrance, deserted his bed and board and went to live with her children by a former husband, and continued thereafter to live with said children, one after another, till she was taken to the insane asylum, on or about the 17th day of June, 1864; that her husband was a man of property, worth at least $8000, and at all times willing to provide for and support her in a suitable manner, at his own house or in the insane asylum, if it were necessary or fit that she should be sent to any such asylum.
How, under such circumstances, he can be made responsible in this action for her support in the insane asylum, I cannot conceive.
These facts show that she was not a proper subject for the exercise of the power of the county judge to execute the certificate prescribed in and by section 26 of the act to organize the State Lunatic Asylum, passed April 7, 1842, as the same has been since modified by subsequent statutes.
This certificate is an adjudication in rem upon the subject to which it relates, and is probably prima facie evidence of the existence of the facts asserted therein, as against all persons notified to attend the hearing and investigation before such judge.
The county, through the superintendent of the poor, *515the overseers of the poor of the town of Perrinton, and the sons-in-law of the lunatic, (Hill and Staples,) having been duly notified to attend such investigation and actually appearing before the judge on such hearing, would be concluded by such certificates. They, or either of them, if dissatisfied with it, might have brought a certiorari to this court to review and reverse the same.
The statute does not declare what shall be the force or effect of such certificate as evidence, or whom it shall bind, and it must, therefore, stand upon the same basis with all other judgments or adjudications. It must bind those who were parties and privies, to the preceding, and had an opportunity to litigate the questions involved in such investigation and adjudication. Ho one else can be bound by this certificate.
It is a fundamental rule of law, and of common justice, that no one shall be concluded by a legal judgment, decision or adjudication had or made in any suit or proceeding to or in which he was not a party or privy and of which he had no notice, or in respect to which he had no opportunity to defend himself, or to litigate the question involved, or upon which his liability depended. The j urisdiction of all courts and officers exercising judicial functions is open to investigation, question and inquiry, whenever their proceedings are set up or sought to be enforced; and when there is no jurisdiction, such proceedings are absolutely void. (7 N. Y. Rep. 431. 23 Barb. 598. 45 id. 393.)
If this certificate, therefore, was prima facie evidence of the facts, it recites and affirms, or finds, it could not be conclusive on the defendant, and he was clearly entitled to disprove the facts alleged or stated therein, upon which the jurisdiction of the judge depended. It was error therefore, I think, to overrule most of the offers made by the defendant’s counsel on the trial. They went to disprove jurisdiction, and to show that the alleged lunatic had not become insane within one year nextprior to the granting of *516such certificate, as required in section 43 of the said statute as modified in 1850, and that she was not an indigent person, but was possessed herself of a sufficient separate estate for her support, and that her husband and children were each persons of wealth, and abundantly able to support her. Proof also that his wife deserted his house without cause and against his will, and that he was at all times able and ready and willing to support her in a proper manner, should, I think, have been received.
[Monroe General Term, September 7, 1868.E. D. Smith, Johnson and J. C. Smith, Justices.]
It seems to me that this proof, of itself, would have established a complete defense to the action. A husband who is ready, able and willing to support his wife, who gives her no just cause or occasion to abandon him or leave his bed and board, cannot be compelled to support her elsewhere than at his own house and home if he has one, by any private person, or by the town, or county, whether she be sane or insane. His liability for necessaries provided by other persons for her support, rests entirely upon the ground of his neglect or default.
The law has nothing to do with his domestic relations while he performs his proper duties in the support or care of his wife, and is free from all neglect or misconduct in respect to her, or is ready, willing and able to discharge all his proper duties to her. This proceeding before the county judge, it seems to me, was entirely unauthorized. The lunatic was not in a condition to give the overseers of the poor any jurisdiction, to interfere with her at the expense of the defendant. Certainly not till they had applied to him, and he had refused to take proper care of his wife and provide for her support in a manner conformable to her condition and his ability.
I think a new trial should therefore be granted, with costs to abide the event.
New trial granted.