dissenting. An accidental circumstance having deprived me of the opportunity to explain my views when this case was decided, I should not deem it important to do so afterwards were it not that I think a very serious error has been committed which will not merely be injurious in this case, but will ^e destructive of many titles.
*422The suit was in trespass, and the main purpose in instituting it probably was to determine the title to certain lands. Hough claimed to be in possession claiming a right to occupy under an insurance company whose title was traced through a chancery foreclosure in a suit in which James P. Scott was complainant and Lucy Piquette, Francis Piquette and George Hedfield were defendants. Lucy Piquette was mortgagor, and she and Francis Piquette were proceeded against as nonresidents. The majority of the Court has determined that these proceedings were fatally defective, because the Piquettes were never properly brought in.
The proceedings were twenty years old when the suit was brought, and we are not informed that the validity of the foreclosure was ever questioned before. The fact is not important except as it brings forcibly before us the danger of. over-nicety in criticising judicial proceedings; because they may be questioned after sixty years as well as after twenty, unless actual and continued possession has perfected a title under the statute of limitations. And if I am correct in my opinion that the proceedings were in conformity to the law, the error is emphasized and made more mischievous by the lapse of time.
I do not understand that any defect is pointed out except that the subpoena which was issued for service on the Piquettes was returned not served before the return-day had arrived. This appears to me a wholly unimportant fact. The statute makes no requirement upon the subject except that there shall be proof by affidavit that the process issued could not be served by reason of the absence of the defendant from the State. The officer’s return does not necessarily show this, nor is it necessarily shown by his affidavit. Indeed, it is not essential that the writ be placed in the hands of an officer at all; any' one may serve it, if service is practicable, and any one may show the impracticability of making service when such is the fact. I cannot think it possible that it was ever intended jurisdiction of a case should depend upon a circumstance so entirely unimportant as that a subposna which could not be served was left in the register’s office before its *423return-day, instead of being kept in the office of the sheriff or of the party.
The proof by the affidavit of the complainant that the subpoena could not be served on defendants by reason of their absence from the State, is full and complete, and is made after the return-day of process was passed. As the averment is made in positive terms, we must take it as made on personal knowledge of the facts. We have no right to infer that the affiant did not know the facts as fully as the officer; but even if we could, it would be unimportant, for it was for the court which acted upon the proof and made the order for publication, to decide upon its sufficiency; no one can deny*that the affidavit was “proof,” so that a case was made calling for judicial action. If so, the order of publication cannot be held void without disregarding the authorities. Brittain v. Kinnaird 1 B. & B. 432; Basten v. Carew 3 B. & C. 649; Sheldon v. Wright 5 N. Y. 497; Porter v. Purdy 29 N. Y. 106; Sitzman v. Pacquette 13 Wis. 291; Florentine v. Barton 2 Wall. 211. We need not go for the principle further than to Facey v. Fuller 13 Mich. 527 and Wall v. Trumbull 16 Mich. 228, which fully cover it. But the case of Pettiford v. Zoellner, ante, p. 358, decided with the principal case, seems to me authority more than ample for my views; for it was there held that an affidavit based on infor: mation and belief, without disclosing the source of the information, was sufficient. But surely an oath to hearsay cannot be “proof” and an oath to actual knowledge not proof, especially when the source of the hearsay is not given so as to impose upon the party making the affidavit some feeling of responsibility to the criminal laws. There could be no doubt, I think, which “proof” a careful judge would consider most trustworthy.
But the real jurisdictional fact in these cases is the fact which, when shown by proof, authorizes the court to make the order of publication. Pennoyer v. Neff 95 U. S. 714. There is little danger, therefore, of any wrong being done by an order of publication being made unadvisedly. If a party is proceeded against as a non-resident when in fact he *424has a domicile within the State, he is entitled as of right to have the proceedings set aside at any time, unless interests have been acquired by bona fide purchasers (Jermain v. Langdon 8 Paige 41), and possibly the case should be likened to that of administration upon the estate of a living person; in which case the proceedings are void though the proof as to the death may appear to have been complete and ample. Moore v. Smith 11 Rich. 569; Jochumsen v. Savings Bank 3 Allen 87; Melia v. Simmons 45 Wis. 334; D'Arusmont v. Jones (Tenn.) 11 Cent. Law Jour. 253 ; contra, Roderigas v. Savings Institution 63 N. Y. 460. But there has been noaverment in this case that the jurisdictional fact did not exist; all that is claimed is, that it was not sufficiently shown. The parties proceeded 'against under the order for publication never appealed, and never applied to set aside the proceedings on the ground either of defective showing, or that the fact affirmed did not exist. Suppose they had appeared after decree but before sale, and moved to vacate proceedings on the sole ground that the affidavit was defective and without denying its truth; what possible equity could they have had for relief upon this ground ? And what standing can others have upon equities which they fail to show ?
Comment on any other branch of the case is unnecessary in view of the opinion on file.